Manhattan Investment Limited v. Co-operative Development Bank Plc (2009)

LawGlobal-Hub Lead Judgment Report

REGINA OBIAGELI NWODO, J.C.A.

This is an appeal by the Appellant against the decision of the Federal High Court Lagos Division presided by Abimbola Ogie J. on 19/01/05, wherein the Learned Trial Judge granted a conditional Stay of Execution of the ruling of the lower court delivered on 3rd of June 2004.

The Appellant was the Plaintiff Judgment Creditor in the lower court, whilst the Respondent herein was the Defendant Judgment Debtor. The Appellant had commenced a suit in the Federal High Court by Writ of Summons against the Respondent and two others: Securities and Exchange Commission and the Nigerian Stock Exchange wherein he claimed seven reliefs stated in paragraph 20 of his statement of claim, clearly stated in pages 8 & 9 of the record of Appeal. The Appellant subsequently withdrew the suit against Securities and Exchange Commission and the third Defendant the Nigerian Stock Exchange leaving the present Respondent. When the Appellant and Respondent settled amicably they filed and executed terms of settlement. The terms of settlement was entered as the consent Judgment of the court on 12th November 2002. In compliance with the consent judgment the present Respondent paid over to the Appellant, the judgment sum of N156,000,000 (One hundred and fifty-six million Naira) for transfer of its shares to the Respondent which were duly surrendered by the Appellant, the Respondent alleging statutory payments to the Nigerian Stock Exchange and other statutory authorities upon sale of shares withheld from the Appellants the sum of N2, 671, 500.00 on the basis that the amount was for payments made as statutory fees in respect of transaction involving sale of shares at the floor of the Stock Exchange. Appellant dissatisfied proceeded to the lower Court, where by Summons he sought a variation of the consent judgment. The Appellant filed a preliminary objection that the court was funtus officio and lacked powers to vary the consent judgment. The lower court upheld the objection in a ruling read on 3rd June 2004. The Respondent filed a motion for Stay of Execution of the ruling of 3rd June 2004. In the affidavit in support the Respondent exhibited the copy of the Notice of Appeal filed July 26th 2004 and a copy of a notice of motion dated 23rd July 2004 filed in the court of Appeal for extension of time to seek leave to appeal. The learned counsel for the parties addressed the court and the lower court in a considered ruling granted a conditional Stay of Execution and ordered as follows:

“The outstanding sum in dispute being N2, 671, 500.00 is deposited in the name of the Chief Registrar of Court in an interest yielding account of a first class Bank pending the hearing and determination of the appeal filed at the Court of Appeal within 30 days of this ruling.”

The Appellant aggrieved by the decision sought and obtained leave of the lower Court to appeal. Consequent upon which he filed the Notice of Appeal in the lower courts Registry on the 2nd of February 2005 containing 3 grounds of Appeal. In compliance with the rules of this court, the parties duly filed and exchanged their respective briefs of argument. On the 28th January 1990, the Appellant moved his motion filed 7/8/08 praying for an order directing that the first city monument Bank Plc be substituted for the Respondent on record that is co-operative Development Bank Plc, the application was granted and the proceedings in the Appeal became against First City Monument Bank Plc as the Respondent. Mr. F.C.A. Okoli learned counsel to the Appellant then proceeded to adopt and rely on the appellants Brief dated 31st October 2005 and filed on 21/11/05. He also adopted his reply Brief dated and filed 13th November, 2006. The learned counsel to the Respondent Mr. Akingboye adopted the Respondent’s brief dated and filed 26/6/06 which was deemed filed and served 9/11/06 pursuant to an order of this Court. Mr. Okoli from the three grounds of Appeal distilled three Issues for determination in this appeal and it reads as follows:

“1. Was it not wrong for the Lower Court to make the order of conditional stay of execution when the Respondent did not have a valid appeal considering that:

a. its notice of appeal was filed in the Lower Court’s Registry after the expiration of the prescribed time and the Court of Appeal had not extended the time; and

b. no leave of court had been obtained to file the purported appeal which is undoubtedly interlocutory in nature and raises issues of mixed law and facts?

2. Was the application for stay of execution not ex-facie incompetent when the purported appeal is not against the consent judgment under which the judgment debt is founded but only the ruling of June 3, 2004 regarding which there is nothing to stay?
3. Did the Respondent disclose any exceptional circumstance to warrant any order of stay of execution given its failure to even allege in its affidavit, much less establish, any reasonable probability that the Appellant would be unable to repay the N2, 671, 500.00 in issue in the event that the purported appeal succeeds?”.

Whilst the Respondent formulated 3 Issues for determination as follows:

“1. Whether the lower Court considered the existence of a valid appeal by the Respondent as a condition precedent to the grant of execution pending appeal.

2. Whether the Defendant/Respondent’s application for stay of execution was ex-facie incompetent?
3. Whether there exist any exceptional circumstances to warrant the grant of conditional stay of execution on behalf of the Respondent”.

Issue 1 formulated in the Respondents Brief is related to Issue I in the Appellants Brief whilst Issues 2 & 3 in both Briefs are in pari-material. Consequently, the Appeal will be determined on the Issues formulated by the appellant, as they are more apt to the grounds of the Appeal and comprehensive for determination of this appeal. The issues formulated by the Respondent equally within are considered within the three issues. Mr. Okoli under issue one submitted that it is settled law that the fundamental precondition for an application for Stay of Execution of judgment is the pendency of a valid appeal against the Judgment. He cited the following cases: Mobil Oil Ltd. v. Agadaigho (1988) 2 N.W.L.R. (Pt. 77) 383 and Consolidated Oil Ltd. v. Summeroid (Nig) Ltd. (1998) 8 N.W.L.R. (Pt. 561) 184.

It is his contention that the nature of the appeal is interlocutory which requires that it must be filed within 14 days of the decision sought to be reversed as provided by S. 25(2) of Court of Appeal Act. He referred to Nasco Management Services v. Amaku Transport Ltd. (2003) 2 N.W.L.R. (Pt. 804) 290. It is his submission that in the present case the grounds of appeal raise questions of mixed law and facts consequently prior leave of court must be obtained before the appeal can be filed. He referred to Ojukwu v. Onyeador (1991) 7 N.W.L.R. (Pt. 203) 286. Learned counsels further submission is that the Respondent failed to appeal within the prescribed time and appreciative of its position they filed a notice of motion in the court of appeal dated 23rd July 2004 seeking extension of time to appeal and leave to appeal, which application was not heard before the Respondent filed its Notice of Appeal in the lower court. Therefore there was no valid appeal. Mr. Akingboye learned Counsel to the Respondent responding submitted that by virtue of order 3 Rule 5 of the Court of Appeal Rules 2002 an appeal is deemed to have been brought when the Notice of Appeal has been filed in the Registry of the Court below and that in the instance case the Respondents appeal is deemed filed at the Court of Appeal. He distinguished the cases of Consolidated Oil v. Sumerond (Nig) Ltd. (1988) 8 N.W.L.R. (Pt. 561) page 184 and University of Agriculture, Makurdi v. Ogunieke (2000) 12 N.W.L.R. (Pt. 687) 360 at 367. The lower court ordered a conditional Stay of Execution pending the hearing and determination of the appeal filed at the Court of Appeal. This decision of the lower Court is the foundation of Issue one. The crux of the Appellant’s submission is that at the time the lower Court ordered the conditional Stay of Execution there was no valid appeal filed in the lower Court Registry or the Court of Appeal. The grantors refusal of a Stay of Execution is at the discretion of the court and as such the discretion must be exercised judicially taking into consideration the competing rights of the parties to justice. Therefore a party seeking to set aside an order for Stay of Execution must show that in the circumstances presented it was unjust and inequitable to grant the order. See Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 4 S.C.N.J. 174; Okafor v. Nnaife (1987) 4 N.W.L.R. (pt. 64) 129. The power of the Court to grant a Stay of Execution though discretionary is guided by some defined principles which are not exhaustive. One of these principles as established in a catalogue of decided cases is that the Court ought to consider in applications for Stay of Execution, whether there is a valid and competent pending appeal or Notice of Appeal filed. The Learned Trial Judge on page 66 of the record of appeal considered the submission of counsel on whether there is a valid appeal and held as follows:

“In this case Notice of Appeal Exhibit A was filed at Federal High Court on the 26th day of July, 2004 while the motion on Notice was filed on the 23rd day of July, 2004 – Exhibit C at the Court of Appeal for extension of time to obtain leave to appeal”.

The lower court held that there is a valid appeal pending. Whilst the contention of the Appellant is that the court is wrong in so holding. The ruling of the court below at page 63 of the record of Appeal shows that the application for Stay of Execution was in respect of the ruling of the lower court delivered on the 3rd of June 2004. In the affidavit in support of the motion on notice for Stay of Execution dated 29th July 2004, the deponent therein averred as follows in paragraph 6: