Strabag Construction Nigeria Limited & Anor V. Peter Ugwu (2005)

LawGlobal-Hub Lead Judgment Report

MIKA’ILU, J.C.A.

In this matter the applicant, a judgment debtor, has by way of motion on notice applied to this court for the following:

1. Staying the execution of the final judgment of the Enugu State High Court in this suit per Honourable Justice I. A. Umezuilike (OFR) delivered on the 28th of October, 2002 in suit No. E/54/47/97 pending the hearing and determination of the appeal in this case.

Or Alternatively

2. An order varying the conditions of stay of execution of the judgment of the Enugu State High Court delivered in this suit on the 28th of October, 2002 granted by the lower court on 20th March, 2003 by a stay of the execution of the said judgment on such conditions more favourable and liberal than that imposed by the lower court as this honourable court may deem fit to impose having regard to the circumstances of this case.
3. An order varying the conditions of stay of execution of the judgment of the Enugu State High Court delivered in this suit on the 28th October, 2002 granted by the lower court on 20th March, 2003 by a stay of execution of the said judgment on such condition that the applicant should furnish an insurance bond to cover the judgment sum pending the hearing and determination of the appeal in this suit.
4. And for such further or other orders as this Honourable Court might deem fit to make in this circumstance.

Written addresses have been filed and exchanged. A preliminary objection has been raised by the respondent. The main reasons as advanced by the respondent’s counsel can be summarized as follows:

(i) This application was filed on 15th July, 2003, more than 14 days from 20th March, 2003 when the order in ruling of the court below, exhibited as exhibit “AFI”, was made.

(ii) The applicant should have applied before the expiration of the period of 14 days from the date of the order of the court below, 20th March, 2003.

(iii) That the applicant should have paid a bank draft of the judgment sum to the registry of the lower court within the 14 days which the applicant has failed to do.

The learned counsel for the respondent has with the above, submitted that the applicant is in wilful disobedience of the lower court’s order and as such this court should refuse the application. He relies upon the following cases: Shugaba v. U.B.N. Plc. (1999) 11 NWLR (Pt.627) 459, (1999) 71 LR CN 2720 at 2740; Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 556; F.A.T.B v. Ezegbu (1992) 9 NWLR (Pt. 264) 132, 145.

The learned counsel has added that as per page 1 of exhibit AFI annexed to the affidavit in support of the preliminary objection, the applicant by its counsel asked for the judgment sum to be paid to the registry of the court below or a bank. The applicant is therefore estopped from asking for another position. That the applicant cannot approbate and reprobate. He has relied upon section 151 of the Evidence Act, Cap. 112 Laws of the Federation, 1990; Agidigbi v. Agidigbi (1992) 2 NWLR (Pt. 221) 98 at 119 and 120; Faponle v. UITHBM (1991) 4 NWLR (Pt. 183) 43 at 54-55.

The learned counsel for the applicant has correctly counter argued that by virtue of section 18 of the Court of Appeal Act, Cap, 75, Laws of Federation of Nigeria 1990 the Court of Appeal can grant an order for stay of execution unconditionally or grant same on more liberal terms than the ones granted by the trial court. That the Court of Appeal can make an order varying terms of earlier order of the trial court.

It is also settled law that a person who is not satisfied with the conditions of stay of execution of a judgment granted him in the lower court can apply to a court of appeal for the variation of that order. However, a careful consideration of F.A.T.B. Ltd. & Anor. v. Ezegbu & Anor. (supra), Shugaba v. U.B.A Plc. (supra) makes it clear that once a court makes orders which are clear and unambiguous, parties are bound by them and have duty to implement them and it does not matter whether the orders are improper or illegal.

A party in disobedience of court is a contemnor and cannot take proceedings in the cause for his own benefit. Courts do not exercise their discretionary powers to aid those who flout their orders. In this case, the order as in exhibit AFI made by the court below should have been complied with by the applicant within the period ordered or he should have taken necessary step in respect of the order before the appellate court. That applicant has not yet complied with the order. Moreso while he was applicant before the court below as per AFI, the proceedings for stay of execution, page 1 shows that the applicant through its counsel consented to the order. The court below therein on page 1 lines 16-19 stated as follows:

“Says he is not opposed to the money being paid into the buwels of the court or to a bank of their choice. As his problem is the ability of the plaintiff/respondent to refund the money.”

On page 2 the court below also stated as follows: