Atayi Farms Ltd V. Nigeria Agricultural Co-operative Bank Ltd & Anor (2002)

LawGlobal-Hub Lead Judgment Report

OBADINA, J.C.A.

This is an appeal, against the decision of the Benue State High Court, sitting at Makurdi, as contained in the ruling of Puusu, J. dated 12th of June, 1998.

The appellant was the plaintiff, while the 1st and 2nd respondents were the defendants at the trial court. On 12th day of February, 1998, the trial court entered judgment in the sum of N2,051,308.44 (Two Million, fifty one thousand, three hundred and eighty Naira, forty-four Kobo) in favour of the plaintiff/appellant, against the defendants/respondents, jointly and severally.

By a motion No. MHC/83m/98, dated the 27th day of February, 1998, and filed on 2nd March, 1998, the 1st defendant/respondent applied to the trial court, for an order staying the execution of the judgment. The motion came up for argument on the 18th of March, 1998. It was argued by the parties and adjourned to 24th of April, 1998, for ruling.

Before the date of the ruling, precisely on the 1st of April, 1998, the 2nd defendant/respondent, by motion No. MHC/133m/98, also applied for an order staying the same judgment of 12th February, 1998, pending an appeal to this court. On the 24th of April, 1998, the learned trial Judge adjourned the ruling to 5th of May, 1998, by saying:-

“The matter is further adjourned to 5th May, 1998, as I think it is better to treat the two applications at once.”

No objection was taken by any of the parties to the treating of the two applications at once, as stated by the trial Judge. On the 5th of May, 1998, the motion N0.MHC/133m/98 came up for hearing. The motion was argued by the parties and the trial Judge adjourned the rulings in the two motions to 12th of June, 1998. On the 12th of June, 1998, the learned trial Judge gave a short ruling to cover the two motions. The ruling reads as follows:-

“This ruling concerns two motions separately filed and argued having arisen as a result of a judgment delivered on 12th February, 1998, in suit No. MHC/75/1993 between the judgment creditor/respondent against the two judgment debtors/applicants. In both motions, the applicants are praying for an order staying the execution of my judgment in the suit pending the outcome of the appeals filed against the judgment for the total sum of N2,053,000.00 jointly and severally against the applicants.

The summary of grounds for the applications as disclosed by the affidavit evidence of the two applicants, are that there are substantial issues of law to be determined on appeal and that, the respondent will not be in a position to pay back the judgment sum, should the appeal succeed. However, the respondent has opposed the two applications on the grounds, that the grounds of appeal do not raise any recondite points of law and that the respondent would be in good position to pay the judgment sum should the appeal succeed.

Each of the applicants filed six grounds of appeal, five of which are grounds of law and one of the grounds is a complaint about double award. I deem it unnecessary to reproduce the grounds of appeal, but in view of the grounds of appeal and the huge judgment sum involved, I am inclined to grant and I hereby, grant the application for a stay of the execution pending the determination of appeal by the Court of Appeal.”

It is against this ruling of 12th of June, 1998, that the plaintiff/appellant appealed to this court.

The appellant filed four (4) grounds of appeal, from which he formulated three (3) issues for determination. The issues are as follows:-

1. Whether the learned trial court did not err in law, which error occasioned a miscarriage of justice, when it unilaterally consolidated motion No. MHC/133m/98 and motion No. MHC/83m/98 as if both motions were supported by the same facts and they raised the same issues.
2. Whether the trial High Court did not err in law and which error occasioned a miscarriage of justice when it attached weight to paragraph 2 the affidavit in support of motion No. MHC/83m/98, when the said paragraph was contrary to the mandatory provisions of section 89 of the Evidence Act, 1990.
3. Whether an application for stay of execution can be granted on a mere finding that the applicant’s grounds of appeal are grounds of law and that the judgment sum is huge.

The learned Counsel for the 1st respondent adopted the issues formulated by the appellant in his brief. The learned counsel for the 2nd respondent in his own brief formulated two (2) issues for determination in the following terms, namely:-

(1) Whether the consolidation of the rulings in the separate motions for stay filed by the respondents occasioned a miscarriage of justice.