Aluminium Manufacturing Company Nigeria Limited V. Volkswagen Of Nigeria Ltd. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Lead Ruling)

By a Motion on Notice dated and filed on 22nd July, 2010, the Judgment Debtor/Applicant prayed this court for the following reliefs:-

“1. An order staying the execution of the Judgment of this honourable Court delivered on 4th February, 2010 per their Lordships Adzira Gana Mshelia, Regina Obiageti Nwodo, Adamu Jauro JJCA pending the determination of the Judgment Creditor’s appeal pending at the Supreme Court.

IN THE ALTERNATIVE

2. AN ORDER of this Honourable Court granting leave to the Judgment Debtor/Applicant to pay instalmentally the Judgment Debtor/Applicant to pay instalmentally the Judgment debt of N4,883,261.00 (Four million, eight hundred and eighty three thousand, two hundred and sixty one naira) only plus interest at the rate of 7’bd% (seven and a half percent) per annum from 8/12/92 till judgment debt is fully liquidated and N10,000.00 all being the judgment of this Honourable Court per their Lordships Adzira Gana Mshelia, Regina Obiageli Nwodo, Adamu Jauro, JJCA on 4th February, 2010 in the following manners:

(i) One lump sum payment of N3,491,479.50 (three million, four hundred and ninety one thousand, four hundred and seventy nine naira, fifty kobo) only being 30% (thirty percent) of the Judgment sum to be paid immediately upon granting of this order;

(ii) Thereafter equal monthly instalment of the sum of N678,898.90 (six hundred and seventy eight thousand, eight hundred and ninety eight naira, ninety kobo) only per month for the next 12 (twelve) months to liquidate the Judgment sum.

AND FOR SUCH FURTHER order and/or other orders as this Honourable court may deem fit to make in the circumstance”.

The grounds upon which this application is anchored are that:-

1. The Judgment Creditor/Respondent has appealed against the Ruling and Judgment of this court.
2. The parties are not in agreement of the actual calculation of the total sum of money payable as Judgment debt.
3. The Judgment Debtor/Applicant cannot afford to pay the Judgment sum and at the same time defend the appeal.

In support of the application is a 19 paragraphs affidavit with seven exhibits marked TA1 to TA7 attached. Also in support is a 9 paragraphs affidavit with a bundle of documents attached which is marked exhibit TA8. Both affidavits are deposed to by Taiwo Akinpelu, a Litigation Officer in Chief Rotimi Williams Chambers, Solicitors to the Judgment Debtor/Applicant.

In opposition to this motion, the Respondent filed a Counter Affidavit of nine paragraphs on 22/8/11 which is deposed to by Oluka Nwidaa, a Solicitor in Ezeobi and Company, a firm of Legal Practitioners for the Judgment Creditor/Respondent.

When this application came up for hearing on 7th February, 2012, the learned counsel for the Applicant moved the motion in terms and urged the court to grant the application.

In response, the learned senior counsel for the Respondent, Chief T.A. Ezeobi, SAN, leading other counsel, submitted that the Applicant herein, not having an appeal against the Judgment of this court which they seek a stay, cannot make an application for stay or instalmental payment, stating further that it is an abuse of court process. He relies on the case of Denton West v. Chief Muoma (2008) 6 N.W.L.R.(Pt.1083) 418 at 437 paragraph G to 439 paragraph B. He further contended that the Applicant ought to have applied at the court below except there are exceptional circumstances. He urged this court to dismiss this application.

In a brief rejoinder, the learned counsel for the Applicant E. O. Etomi (Mrs.), referred to Order 19 Rule 5 of the Rules of this court 2011 and the case of Kosofe Local Government v. Demore (2002) N.W.L.R. (Pt.131) 1861 at 1865 and submitted that by the Rules of this court, the Applicant is entitled to approach this court with this application. She urged this court to grant this application.

It is trite and well settled in many judicial authorities that where the Judgment of a court of competent jurisdiction is not manifestly illegal or wrong, the Court of Appeal would be correct to presume that the Judgment or order appealed against is correct or rightly made until the contrary is proved or established. See Nigerite Ltd. v. Dalami Nig. Ltd. (1992) 7 N.W.L.R. (Pt.253) 288; Denton West v. Muoma (2008) 6 N.W.L.R. (Pt.1083) 418; In Re-Diamond Bank Ltd. (2002) 17 N.W.L.R. (Pt.795) 120 at 134 G – H. Thus, this court will not ordinarily indulge in the practice of denying a successful litigant of the fruits of his success except under very special circumstances. See Vaswani Trading Company v. Savalakh & Co. (1972) 12 SC 77 at 81.