Alhaji Bala Abdulkadiri & Anor V. Alhaji Baba Inuwa Ali (1998)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A.

The respondent herein was the plaintiff at the lower court. His claim against the applicants, at the Plateau State High Court holden at Jos jointly and severally was for the sum of N131,0417 being the outstanding balance due from the 1st applicant. The 2nd applicant guaranteed to pay the said sum upon default by the 1st applicant on 12th day of December, 1996, the trial Judge Naron J. entered judgment in favour of the respondent.

The applicants were not satisfied with this decision, they therefore appealed to this court. They then applied to the trial court for stay of execution of its judgment. The application was refused by the lower court. The applicants then brought a motion on notice to this court asking for the following order:

“An Order for stay of execution of the judgment of the lower court in suit No. PLD/J79/96 delivered on the 12th day of December, 1996 pending the final determination of the applicants’ appeal”.

Moving the motion, Mr. Ruba learned counsel for the applicants referred to the two affidavits filed in support of the motion and submitted that they have established special circumstances to enable the court to grant a stay of execution.

He submitted that if the applicants pay the judgment debt, they would not be able to prosecute the appeal. He also submitted that they are challenging the judgment of the lower court on the issue of jurisdiction and fair hearing. He referred to the grounds of appeal filed and submitted that the grounds of appeal raised serious issues of law. He referred to Obaro v. Dantat & Sawoe (1997) 10 NWLR (Pt.530) 676 at 679 and Union Bank v. Odusote Bookstare (1994) 3 NWLR (pt.331) 129; Para – 1 (1994) 3 SCNJ 1. He urged the court to grant the application.

Opposing the motion, Mr. Olorunmohunle learned counsel for the respondent submitted that the application lacks merit and should be dismissed. He submitted that poverty per se is not a ground for granting a stay. The applicants must place all the facts before the court which the applicants failed to do. He submitted that there is no factual support to the issue or jurisdiction. He referred lo paragraphs 9. 12 and 13 of the counter-affidavit which have not been challenged. He referred to the unreported case of Sony Ebitu v. I.G. Kachala, Appeal No. CA/J/77m/87 delivered on 28/3/88 and Babayagi v. Bida (1998) 2 NWLR (Pt.538) 367. He submitted that the applicants are not entitle to the relief sought and the application should be rejected. He also submitted that in the alternative, if the court is minded to grant the application, the applicants should pay the judgment debt into the court.

He referred to Alalade v. N.B.N. Ltd. (2) (1997) 8 NWLR (Pt 517) 514 at 520.

The principles guiding the grant or refusal of a stay of execution are well settled. See: Balogun v. Balogun (1969) 1 All NLR 349; Martins v. Niccumar Food Co. Ltd. (1988) 2 NWLR (pt.74) 75; Nwabueze v. Nwosu (1988) 4 NWLR (Pt.88) 257; Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129 and Kigo Nig. Ltd. Holman Brothers Ltd. (1980) 5 – 7 S.C. 60. The locus classicus on the issue of course is the case of Vaswani Trading Company v. Savalakh & Co. (1972) 12 S.C. 77 where the Supreme Court set down the principles which should guide a court in its consideration and determination of an application for a stay of execution. It was stated at page 81:

“When the order or judgment of a lower court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary he proved or established and for this reason the Court of Appeal and indeed any court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances … When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the court, especially the Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal, or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal, or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo”.I will now consider the facts to determine whether or not the appellants have established any special circumstance to enable us to use our discretion to grant a stay of execution of the judgment. The application was supported by a six paragraphs affidavit and a further and better affidavit of six paragraphs. The reasons why the stay should be granted are contained in paragraph 3. E.F.G.H.I.J and K or the affidavit in support. It was deposed:

“E. That the applicant are the respective bread winners of their families of 23 and 19 members respectively and that their income is about N6.200 and N6,000 respectively per month.

F. That the applicant family can hardly go on three square meal in a day now.

G. That as a result of paragraph (e) and (f) above the applicants do not have the money to liquidate the judgment sum or else they will be financially handicapped to prosecute the appeal.

H. That the applicants grounds of appeal raises serious issues of law and fact.