Alhaji Ishola Odedeyi & Ors V. Sabitiu Layinka Odedeyi & Anor (2000)
LAWGLOBAL HUB Lead Judgment Report
BELGORE, J .S.C
This is an interlocutory appeal against the decision of Court of Appeal which refused to grant the appellants a stay of execution of the judgment of High Court of Lagos. An earlier application for stay of execution pending appeal was refused by the High Court leading to similar application in Court of Appeal which was also refused.
The 1st and 2nd plaintiffs/respondents sued the 1st, 2nd, 3rd, 4th and 5th defendants/appellants seeking the setting aside of a certain deed of conveyance made by 1st Defendant to 2nd defendant and from 2nd Defendant to 3rd, 4th and 5th defendants as tenants. High Court granted substantial parts of the reliefs sought including nullification of the deed of conveyance, damages for trespass and injunction. The main issue in this appeal is very narrow and it is as follows:
“Whether the Court of Appeal Lagos (Division) was wrong in refusing the applicant’s application for stay of execution of the judgment of the Ikeja High Court delivered on 4th September, 1987, pending the hearing and determination of the appeal filed against this judgment.”
The main plank of the appellants’ application at the lower court as deposed in their affidavit was that there were factories and warehouses on the land; and also costly machineries installed in the said factories with over 4000 tons of raw materials made up of corn and coffee in the warehouses, In the counter-affidavit the plaintiff deposed that only three warehouses were on the land and that there were no factories, Two of the three warehouses were empty: the third one was half empty and was occupied by a tenant, Livestock Feeds Ltd. who stationed only one store-keeper and two security guards there, There was no coffee stored there contrary to appellants affidavits. The appellants, to plaintiff’s counter affidavit, filed better affidavit wherein they admitted there “was no longer a factory” on the land, but only “three warehouses”, Two of the warehouses were empty and the third let to Livestock Feeds Ltd. as contended by the plaintiffs.
The guiding principles is that a victorious party must not lightly be deprived of the fruit of his victory, Having won his case he under normal circumstance ought to be allowed execution of that judgment unless a special circumstance is advanced to justify stay of execution. (Vaswani Trading Co. Ltd. v. Savalakh (1972) 1 ALL NLR 483). “Special circumstance” is very wide and its category is not closed. However “special circumstance” though may include strong and substantial ground of appeal, this alone may not be enough. A strong and substantial ground of appeal does not necessarily mean the appeal may succeed: certainly the court must be wary of such ground so as not to prejudge the substantive appeal. In cases where the res, the subject-matter of the appeal, is at the risk of destruction if a stay is not granted, or its nature may be altered as to make it irreversible to its original state; or if it is monetary, and the victorious party is a man of straw, and may not be able to redeem the money should substantive appeal be decided against him, the court in its discretion will grant a stay of execution pending determination of the appeal.
There was a clear issue before Court of Appeal that there were only three warehouses on the land in dispute and two of them were empty; the third one was with a tenant who kept very little inside. Thus the affidavit evidence never revealed any serious contradiction to be resolved by oral evidence. Therefore, the cases of Falobi v. Falobi(1976) 1 NMLR 169, 178; Eboh v. Oki (1974) 1 SC 179 at 188, 189; and Akinsete v. Akindutire (1966) 1 All NLR 147, 148 will not apply as contended by the appellants. There is no evidence of threat to res if the execution is carried out as the res has not been shown to have been altered or destroyed since January, 1977 when High Court delivered its judgment. The only unfortunate thing is that for over twenty years the land has been allowed to waste – without development or improvement and the substantive appeal has not been heard and determined because of the little skirmishes brought by this interlocutory appeal.
I find no merit in this appeal and I dismiss it with N10,000.00 costs to plaintiffs/ respondents against defendants/appellants.
SC.128/1993