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.

(2) Whether the lower court acted judicially and judiciously when it granted the stay.

A close study of the issues shows that issue No.1 formulated by the appellant and issue No.1 raised by the 2nd respondent are similar and the same in substance. They both relate to the question of whether the consolidation of the two motions was proper or it occasioned a miscarriage of justice.

In arguing the issue the learned Counsel for the appellant referred to Order 34 rule 6(1) of the High Court of Benue State (Civil Procedure) Rules Edict, 1988 and submitted that the trial court could only exercise the jurisdiction to consolidate the two motions when-

(i) The issues are the same in all the actions;

(ii) The issues can be properly tried together; and

(iii) The issues can be determined at one and the same time.

He said that the power of the court could not be exercised where any of the pre-conditions was absent. He referred to the two motions in question and submitted that the issues for determination were different. He referred to the motion No. MHC/83m/98 and argued that the issues for determination in the motion were-

(1) Whether the court would rely on paragraph 2 of the affidavit of Odo Alagi in support of the said motion, when the said paragraph did not comply with section 89 of the Evidence Act;

(2) Whether the applicant made a full disclosure of his income; and

(3) Whether the applicant’s grounds of appeal raised substantial issues of law for determination of the Court of Appeal.

He argued that the issue that arose for determination of the trial court in motion No. MHC/133m/98 was whether the grounds of appeal filed by the applicant raised substantial issues of law. He submitted that the issues in the two motions were not the same as the first and second pre-conditions were not satisfied. He submitted that since the first and second pre-conditions have not been satisfied, the trial court was wrong when he proceeded to determine the two applications in the same ruling without determining the various issues raised in each of the applications. He urges the court to allow the appeal.

The learned Counsel for the 1st respondent submitted that the learned trial Judge acted properly when he consolidated two applications. He referred to Order 34 rule 6(1) of the Benue State High Court (Civil Procedure) Rules Edict, 1988. He argued that the two motions fell squarely within the contemplation of the said Order 34 rule 6(1) of the rules. He referred to the record of appeal where the learned Judge ordered that the two motions be treated together or at once and argued that it was not correct that the Judge consolidated the motion suo motu. The appellant did not object to the applications being treated together. He submitted that the appellant was estopped from complaining about the consolidation.

The learned Counsel for the 2nd respondent in his brief argued that the action, the judgment of which was stayed by the court was instituted against the respondents jointly and severally; the judgment was given against the respondents jointly and severally and the two applications were for the stay of the said judgment. He argued that it would make no sense to have considered the rulings on the two motions separately in view of the facts that the issue was the same and the subject matter was the same. He urged the court to dismiss the appeal.

The main contention of the appellant is that the learned trial Judge was wrong in Law when he suo motu consolidated the two motions for stay of execution, when the two motions were supported by separate affidavit evidence.

Order 34 rule 6 of the Benue State High Court (Civil Procedure) Rules Edict, 1988 makes provisions with respect to consolidation of actions.

It provides inter-alias as follows:-

6(1) Actions pending in the High Court may be consolidated by order of the court or a Judge in chambers, where it appears that the issues are the same in all the actions and can therefore, be properly tried and determined at one and the same time.

(2) An order to consolidate may be made where two or more actions are pending between the same plaintiff and the same defendant, or between the same plaintiff and different defendants or between different plaintiffs and different defendants.

Provided that where actions are brought by the same plaintiff against different defendants, they shall not be consolidated without the consent of all the parties unless the issues to be tried are precisely similar.”

A careful reading of Order 34 rule 6(1) of the Rules shows that when actions are pending before the High Court, the court has a discretion to consolidate the actions where:-

(i) The issues are the same in the actions; and

(ii) The actions can be properly tried and determined at one and the same time.

Order 34 rule 6(1) of the Rules clearly shows that the discretion is that of the court. The consent or concurrence of the parties thereto is not required. Where however, the actions are brought by the same plaintiff against different defendants, the court cannot consolidate the actions without the consent of the parties; unless, of course, the issues to be tried are precisely similar- see Order 34 rule 6(2) of the Rules.

The contention of the appellant is that the consolidation was made without the consent of the parties, and the issues to be tried were not precisely the same.

The first approach in resolving the issue of consolidation or non-consolidation the interpretation of Order 34 rule 6 sub-rules 1 and 2 of the High Court of Benue State (Civil Procedure) Rules Edict, 1988, which provides that:-

(1) Actions pending in the High Court MAY be consolidated by order of the court or a Judge in chambers where it appears that the issues are the same in all the actions and can therefore be properly tried and determined at one and the same time.

(2) That an order to consolidated MAY be made where two or more actions pending between the same plaintiff and same defendant or between the same plaintiff and different defendants.”

The essence of interpretation of a statute is to get at the intention of the draftsman through the words actually used. In Erastus Obioha v. Iyibo Kio Dafe (1994) 2 NWLR (Pt. 325) 157 at 180 to 181, this court, per Onalaja, J.C.A., interpreted the word “MAY” as follows:

“In the interpretation of a statute the cardinal principle is to discover through the words used in statute, law, decree, Act and Edict the intention of the draftsman, when the matter that calls for interpretation is a word like, in the instant appeal with the word “MAY” the whole section is to be read together without taking the word out of con in trying to discover the intention of the draftsman… Whenever a statute creates a duty the first primary question to my mind for judicial decision, is what is the sanction that has been provided for its breach. No statute creates an obligation without anticipating a breach. Is there any sanction? If there is, then it is mandatory. It is absolute. Where the court cannot interfere to compel performance or indeed punish the breach of duty the Act is directory – see Ifezue v. Mbadugha (1984) 1, SCNLWR 427; Ijebu Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136… to interpret the word “MAY” one has to look in depth into the con in which the word appears as it must be the controlling factor whether it is mandatory or directory.”

Still on the word ‘may’ whether it is mandatory or directory or discretionary, the learned author of Black’s Law Dictionary 5th Edition defines the word “MAY” at page 863 as follows:

“MAY-An auxiliary verb qualifying the meaning of another verb by expressing ability, competency, liberty, permission, possibility, probability or contingency. U.S. v. Lexington Mill & Co. 232 US. 399, 345 CT. 337,340 58 LED 658. Regardless of the instrument however, whether constitution, statute, deed, contract, or whatever courts not infrequently construe may as ‘shall’ or ‘must’ to the end that justice may not be the slave of grammar. However, as a general rule, the word may will be treated a word of command unless there is something in con or subject-matter of act to indicate that it was used in such sense. In construction of statutes and presumably also in construction of federal rules word ‘may’ as opposed to ‘shall’ is indicative of discretion or choice between two or more alternative, but con in which word appears must be controlling factor.

The word ‘may’ was interpreted by the Supreme Court by Kayode Eso, JSC, in Alhaji Chief A. B. Bakare v. A.-G., Federation & 2 Others (1990) 5 NWLR (Pt. 152) 516, to be directory and not mandatory. From the plethora of the judgments of the Supreme Court and Court of Appeal to interpret the word ‘MAY’ one has to look in depth into the con in which the word appears, as it must be the controlling factor whether it is mandatory or directory.

Applying the above to the instant appeal, looking in depth at the provision of Order 34 rule 6(1) and (2) of the Benue State High Court (Civil Procedure) Rule Edict, 1988, the word may therein is absolutely discretionary. In actions pending before the court, the trial court has a discretion to consolidate the actions, where it appears that the issues are the same in all the actions and can therefore, be properly tried and determined at one and the same time. Let us now critically look at the parties, the subject-matter and the issues in the instant appeal.

In suit No. MHC/75/93, the appellant as plaintiff instituted an action against the respondents jointly and severally claiming in paragraph 31 of his statement of claim a total sum of three million, two hundred thousand Naira (N3,200,000)as special and general damage:- see pages 8-9 of the record of appeal. At the end of the trial, the learned trial Judge in his considered judgment entered judgment for the plaintiff/appellant against the respondents jointly and severally in the sum of N2,051,308.44 (Two million, fifty one thousand, three hundred and eight Naira forty-four Kobo). The defendants/respondents then appealed against the judgment. By motion No. MHC/83m/98, the 1st defendant/respondent applied on the 2nd day of March, 1998, for an order staying the execution of the judgment delivered on the 12th of February, 1998. The application was heard on the 18th of March, 1998, and ruling was adjourned to 24th of April, 1998.

On the 1st day of April, 1998, before the date fixed for ruling in the application for stay brought by the 1st defendant/respondent, the 2nd defendant/respondent also filed a motion No. MHC/133m/98, praying for an order staying the execution of the said judgment in No. MHC/75/93 delivered on the 12th February, 1998. The application came up for hearing on the 24th April, 1998, a date earlier fixed for ruling in the motion filed by the 1st defendant/respondent, but the learned Counsel who filed it on behalf of the 2nd defendant/respondent wrote for adjournment. Before adjourning the application the learned trial Judge stated as follows:-

“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, or indeed, by the appellant to the order of the court to treat the two applications at once.

The application as well as the ruling in the application by the 1st defendant/respondent was adjourned to 5th of May, 1998. On the 5th of May, 1998, the said application by the 2nd defendant/respondent was heard by the learned trial Judge and rulings in the two applications were adjourned to 12th of June, 1998. The learned trial Judge wrote one ruling in respect of the two applications.

The first question that calls for an answer by the court is whether the trial Judge was right in treating the two motions together; in other words, whether the trial Judge was right when he suo motu, consolidated the two applications.

As stated earlier on, in this judgment, Order 34 rule 6(1) of the Benue State High Court (Civil Procedure) Rules Edict, 1988 gives the court discretion to consolidate actions pending before the court where it appears that the issues are the same in all the actions and can therefore be properly tried and determined at one and the same time.

The main purpose of consolidation is to save costs and time and therefore, it will not usually be ordered unless there is some common question of law or fact bearing sufficient importance in proportion to the subject matter of the action to render it desirable that the whole should be disposed of at the same time. See Diab Nasr v. Complete Home Enterprises (Nig.) Ltd. (1977) 5 SC 1 at 11; Payne v. British Time Recorder Co. (1921) 2 K.B. 1 at 16; Daws v. Daily Sketch and Sunday Graphic (1960) 1 WLR 126 or (1960) 1 All E.R. 397.

In the instant case on appeal, the judgment dated 12th February, 1998, was against the two respondents jointly and severally. The judgment is not severable. The two applications in question are for stay of execution of the same judgment. The parties to the judgment and to the two applications are the same. The issue for the determination in the two applications, namely – stay of execution are the same and the res to be protected by the two applications are the same.

The learned Counsel for the appellant argued that the issues for determination in the two motions were not the same. He referred to paragraph 2 of the affidavit of Odo Alagi in support of the motion. He said the affidavit did not comply with section 89 of the Evidence Act; and said that the applicant’s grounds of appeal raised substantial issues of law as the issues raised in motion No. MHC/83m/98 and that those issues were different from those raised in the other motion No. MHC/133m/98.

I think there is a misconception on the part of the learned Counsel for the appellant with respect to what is meant by issue that must be the same when considering whether or not to consolidate two actions, Order 34 rule 6(1) of the Benue State High Court (Civil Procedure) Rules Edict, 1988, says – “Actions pending in the High Court may be consolidated by order of the court or of a Judge in chambers where it appears that the issues are the same in all the actions and can therefore be properly tried and determined at one and the same time.” The word issues, within the con of this case mean the subject matter of the motions to be consolidated, an order for stay of execution. It does not mean the evidence required to prove the motion as argued by the learned counsel to the appellant by his reference to paragraph 2 of the affidavit in support of the motion No. MHC/83m/98.

The learned author of Essays on Civil Proceedings by A. Obi Okoye, Volume 1 page 290, paragraph 293 has the followings to say:-

“An order for consolidation of actions is one of convenience and at the discretion of the court. If a Judge consolidates some suits, he need not be the one that will try the actions; but the trial Judge is till at liberty to vary the order. The object of consolidation is to save time and costs. To consolidate there should be some common questions of law or fact bearing sufficient importance in proportion to the rest of the subject-matter of the actions to render it desirable that all the suits should be disposed of at the same time.”

Paragraph 2 of the affidavit in support of the motion No. MHC/83m/98 being complained of by the appellant is not the issue for determination by the motion but evidence in proof of the issue for determination, namely, the stay of execution of the judgment dated 12th February, 1998. The evidence in support of the motion No. MHC/83m/98 may not necessarily be the same as the evidence in support of the motion No. MHC/133m/98 for stay of execution of the same judgment dated 12th February, 1998. The issue for determination of the court in the two motions is stay of execution of the judgment in suit No. MHC/75/1993 dated 12th February, 1998.

Consolidation of suits is a measure adopted to save multiplicity of actions with the attendant costs where one action would serve to determine the rights of a number of persons where the said persons have the same interest in one cause or matter. It is a measure purposely adopted for the convenience of the parties. See Lediju v. Odulaja (1943) 17 NLR 15; therefore, an order of consolidation will not be made unless there is some common question of law or fact bearing sufficient importance in proportion to the rest of the subject of the action to render it desirable that the whole actions should be disposed at the same time. In the two motions in the instant case, the common question to be determined or the deciding factor is the stay of execution of the judgment dated 12th February, 1998. See Ekun v. Messrs A. Younan & Sons (1959) WRNLR 190; Nasr v. Complete Home Enterprises (Nig.) Ltd. (1977) 5 SC 1; Nigerian Engineering Works Ltd. v. Denap Ltd. & Other (1997) 10 NWLR (Pt. 525) 481 at 515.

In the circumstances, it is my view that the parties to the two motions are the same; the issues are the same and there are some common question of law bearing sufficient importance in proportion to the rest of the subject matter of the motions to render it desirable that the motions should be disposed of at the same time. Therefore, the order of the trial Judge made on the 24th of April, 1998, to treat the two applications at once was properly made. See Nasr v. Complete Home Enterprises (Nig.) Ltd. (supra); see also Nigerian Engineering Works Ltd. v. Denap Ltd. & Other (supra); Daws v. Daily Sketch (1960) 1 All E.R. 397.

In that regard, I am of the view that having regard to the provision of Order 34 rule 6(1) of the Benue State High Court (Civil Procedure) Rules, the learned trial Judge was right, when he consolidated the two motions as he did. I am unable to see any miscarriage of justice being suffered by the appellant and neither did the appellant show to the court any miscarriage of justice suffered by him.

Issue No.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 of 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.”

In arguing the issue under consideration, the learned Counsel for the appellant submitted that the learned trial court was in error in law, when it declined to strike out paragraph 2 of the affidavit in support of the motion No. MHC/83m/98, for failure to comply with section 89 of the Evidence Act. He referred to paragraph 2 of the said affidavit and argued that the deponent gave reasonable particulars in respect of his informant as the Makurdi Branch Manager of the appellant bank, but failed to disclose the name of the Manager. He argued that any paragraph of an affidavit that offended against any mandatory provisions of the Evidence Act, ought to be struck out or ignored. He submitted that the learned trial Judge was in error when he did not strike out the said paragraph 2 but proceeded to attach weight to it. He urged the court to allow the appeal.

The learned Counsel for the 1st respondent in his brief submitted that paragraph 2 of the motion No. MHC/83m/98 did not offend section 89 of the Evidence Act. He referred to the said paragraph 2 of the said affidavit and argued that the deponent named the source of his information at the Makurdi branch manager of the 1st respondent bank. The learned Counsel conceded that the name of the manager was not mentioned in the affidavit, but he argued that the omission did not derogate from the requirement of section 89 of the Evidence Act. The learned counsel further argued that appellant filed a counter-affidavit and replied to the issues contained in paragraph 2 aforesaid. He submitted that the appellant was estoppped from complaining about the said paragraph 2. He further submitted that the affidavit was saved by section 84 of the Evidence Act. He referred to Order 2 (1)(i) of the High Court of Benue State Civil Procedure Rules and argued that the trial court treated the non-strict compliance as mere irregularity in line with Order 2(1)(i) of the Rules.

In his own argument in his brief, the learned Counsel for the 2nd respondent argued that the issue of paragraph 2 of the affidavit in support of the motion No. MHC/83m/98 is a technical one and is subsidiary to the main issue of whether the lower court should have granted the applications. He argued that the 1st respondent is a limited liability company acting through the instrumentality of people. He said, it was not disputed in the counter affidavit that the 1st respondent had a branch manager who on 27th February, 1998, in the chambers of the 1st respondent’s solicitors, gave information to the deponent, Odo Alagi. He submitted that the appellant was deemed to have accepted and admitted the fact of the existence of the branch manager. He referred to the case of Onuzulike v. C.D.S. (Anambra) (1992) 3 NWLR (Pt. 232) 791 at 807. He argued that what is important is the source of the information. See Osain v. Flour Mills of Nigeria (1968) All NLR 432. He urged the court to dismiss the appeal.

The question that calls for an answer by the court is whether paragraph 2 of the affidavit in support of the motion No. MHC/83m/98 offends section 89 of the Evidence Act and should be struck out.

Section 89 of the Evidence Act, provides as follows:-

“When such belief is derived from information received from another person, the name of his informant shall be stated, and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.”

In paragraph 2 of the affidavit in support of the motion No. MHC/83m/98, the deponent, Mr. Odo Alagi deposed as follows:-

(2) That I am informed by the Makurdi Branch Manager of the applicant, Mr… in chambers on the 27th February, 1998, at 5.30pm of the following facts and I verily believe him.

(a) …………………………..

(b) …………………………..”

The main contention of the appellant is that failure of the deponent to mention the name of the Makurdi branch manager of the 1st respondent/applicant is fatal to the affidavit, as it offends the provisions of section 89 of the Evidence Act.

It is obvious that the information contained in paragraph 2 of the affidavit in question, as quoted above was derived from sources other than the personal knowledge of the deponent. This brings me to the case of Chief R.I. Osian v. Flour Mills of Nigeria Ltd. (1968) 2 All NLR 13 at page 15, where the court, Kazeem, J. (as he then was) interpreted section 87 and 88, of the then applicable Evidence Act, which are in pari materia with sections 88 and 89, of the Evidence Act, Cap. 112 of the laws of the Federation, 1990. The court stated as follows:-

“Where the information contained in an affidavit is derived from source other than the personal knowledge of the deponent, he must state the source of the information and belief in compliance with sections 87 and 88 the Evidence.”

The point must be made that the emphasis is on ‘the source’ of the information. In this respect, it is pertinent to recall the views expressed by Lord Alverstone, CJ. (with which I entirely agree) in Re-J.L. Young Manufacturing Co. Ltd. (1900) 2 Ch. 753 thus:-

“This case is one of general importance as regards the practice of the admissibility of evidence by affidavit. In my opinion, some of the affidavits in this case are wholly worthless and not to be relied upon. I notice that in several instances, the deponents make statements on their “information and belief”, without saying what their source of information and belief is, and in many respects, what they so state is not confirmed in any way. In my opinion, so-called evidence on “information and belief” ought not to be looked at, at all, not only unless the court can ascertain the source of the information and belief, but also unless the deponent’s statement is corroborated by some one who speaks from his own knowledge. If such affidavits are made in future, it is as well that, it should be understood that they are worthless and ought not to be received as evidence as any shape whatever.”

In the present case, the deponent, Odo Alagi clearly showed the source of his information and belief, when he stated as follows:

“That I am informed by the Makurdi Branch Manager of the applicant Mr… In chambers on 27th February, 1998, at 5.30pm of the following facts and I verily believe him…”

What the deponent is under a duty to show in order to comply with the provision of sections 88 and 89 of Evidence Act, is the source of the information. A source which can be verified if there is a need to verify it. In my opinion, the deponent in this case has clearly stated the source of his information and consequently, the respondents have substantially complied with sections 88 and 89 of the Evidence Act, Cap.112 of the Laws of the Federation, 1990. The Makurdi branch manager of the applicant/appellant referred to in the affidavit in question is identifiable. The information could be verified from its source, i.e. from the branch manager aforesaid. The particulars of where and when the said information was given are clearly supplied by the deponent.

Furthermore, section 84 of the Evidence Act, empowers the court to permit an affidavit to be used notwithstanding the affidavit is defective in form according to the Evidence Act. Section 84 of the act provides that the court may permit an affidavit to be used, notwithstanding it is defective in form according to this Act, if the court is satisfied that it has been sworn before a person duly authorised.There is no complaint that the said affidavit, was not sworn before a duly authorised person. To my mind there is no defect in the affidavit, and if there is any, such a defect has been saved by section 84 of the Evidence Act. In the circumstance, I am of the view that the learned trial court was right, when in its consideration of the case it attached weight to paragraph 2 of the said affidavit.

Issue No.3

Issue No.3 formulated by the appellant reads as follows:-

“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.”

In arguing the issue, the learned Counsel for the appellant, referred to the findings of the trial court on page 36 of the record of appeal where the learned court stated:-

“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… In view of the grounds of appeal and the huge judgment sum involved, I am inclined to grant the application for stay of execution pending the determination of appeal by the Court of Appeal.”

He submitted that the discretion of the court to grant a stay of execution could not be said to be judiciously exercised unless and until there is specific findings that the grounds of appeal filed do raise vital issues of law and there are substantial issues to be argued on appeal. He referred to Mashud Itopa Abbas v. Chief J.O.J. Ajoge (1996) NMLR (Pt. 444) 596. He contended that the mere finding of the learned trial Judge, that 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 awards is not enough to support a relief of stay of execution. He argued that the mere existence of grounds of appeal which are grounds of law alone, without a finding that such grounds of appeal raise substantial issues of law to be decided on appeal was not enough to justify the granting of a relief of stay of execution. He urged the court to allow the appeal.

In arguing the issue, the learned Counsel for the 1st respondent referred to the grounds of appeal and paragraph 2 (c) of the affidavit in support of the 1st respondent’s application and submitted that the learned trial Judge was right in granting the stay based on the grounds of appeal which are on substantial points of law and taking into account the very huge judgment sum. He argued that it is not in every case that such words as ‘recondite’ as in Balogun v. Balogun (1969) 1 All NLR 349, substantial points of law or ‘triable issues’ as in Mushud Itopa Abbas v. Chief J.O.J. Ajoge (1996) NMLR (Pt.444) 596 would be used. It is enough to state as the trial Judge did, taking cognisance of the grounds of appeal especially, in view of paragraph 2 (c) of the 1st respondent’s supporting affidavit. He submitted that the learned trial Judge was right when he granted the stay of execution of the judgment. In his own argument on the issue, the learned Counsel for the 2nd respondent referred to the case of Vaswani Trading Co. v. Savalakh (1972) 12 SC 77 and G.M.C. (U.K.) Ltd. v. Medicair W/A Ltd. (1998) 2 NWLR (Pt. 536) 86 at 94 and submitted that where the grounds of appeal raise vital issues of law and they are substantial in nature, a stay of execution should be granted. He urged the court to dismiss the appeal.

The main complaint of the learned Counsel for the appellant in the issue under consideration is the findings of the trial Judge. His complaint is that the trial Judge did not make specific finding that the grounds of appeal involve substantial points of law necessitating the partiies and issues being in status quo until the legal issues are resolved.

The law is well settled that where a judgment or a ruling is attacked on the ground of being against the weight of evidence, or where the finding or non-finding of facts is questioned, the Court of Appeal in its primary role in considering a judgment on appeal in a civil case in which the findings or non-finding of facts is questioned, will seek to know the following, namely:-

(a) The evidence before the trial court;

(b) Whether it accepted or rejected any evidence upon the correct perception;

(c))Whether it correctly approached the assessment of the value on it;

(d) Whether it used the imaginary scale of justice to weigh the evidence on either side;

(e) Whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof:- See Agbonifo v. A. Aiwereoba (1988) 1 NWLR (Pt. 70) 325 at 339; Misr (Nig) Ltd. v. Ibrahim (1975) 5 SC 55 at 6,-2; Egonu v. Egonu (1978) 11-12SC 111 at 129.

Based on these authorities and the combined provisions of section 18 of the Court of Appeal Act, 1976, and Order 1 rule 20 sub-rules 4, 5 and 8 of the Court of Appeal Rules, I will go into consideration of issue No.3 as formulated by the appellant. The courts have over the years, evolved standard principles to be considered in granting an application for stay of execution of the judgment of courts pending an appeal. The court has a discretion to grant a stay of execution, if it is satisfied that there are exceptional and special or substantial reasons or circumstances to warrant a deprivation of the successful party of the fruits of his judgment:- See Micheal Balogun v. Dorcas Balogun (1969) 1 All NLR 351. The onus is on the party applying for a stay of execution to satisfy the court that in the special circumstances of his case, there are some special and exceptional reasons which make the granting of a stay desirable:- See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77; Nwabueze v. Nwosu (1988) 4 NWLR (Pt.88) 257; Government of Gongola State v. Tukur (1989) 4 NWLR (Pt. 117) 592; L.S.D.P.C. v. City Mark (W.A.) Ltd. (1998) 8 NWLR (Pt.563) 681, (1998) 61 LRCN 4660 at 4681. What constitutes special or exceptional circumstances varies from case to case, and it depends on the fact of each particular case.

It is settled that where grounds exists on the motion, suggesting a substantial issue of law to be decided on appeal in an area in which the law is to some extent recondite and either party may have judgment in his favour, stay of execution must be granted. In Balogun v. Balogun (supra), the Supreme Court held inter-alia, as follows:-

“Where grounds exist on the motion, suggesting a substantial issue of law to be decided on appeal in an area in which the law is to some extent recondite, stay of execution must be granted’ -See also Kigo (Nigeria) Ltd. v. Holman Bros. (Nigeria) Ltd. & Others (1980) 5-7 S C 60.

This means that where the grounds of appeal raise substantial issues of law to be decided on appeal, there is a special or exceptional circumstance shown by the appellant/applicant and a stay of execution must be granted.

The point must however be made, that it is not always whenever a ground of appeal raises a difficult (recondite) point of law that it constitutes a special circumstance for which a stay of execution can be ordered. Similarly, it is not in every case where the grounds of appeal raise arguable points of law that a stay of execution will be ordered. Each case depends on its peculiar merit:- See Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Ajomale v. Yaduat (1991) 3 LRCN 950 or (No.2) (1991) 5 NWLR (Pt 191) 257; L.S.D.P.C. v. City Mark (W.A.) Ltd. (1998) 8 NWLR (Pt563) 681, (1998) 61 L.R.C.N. 4660 at 4686. In the instant case, in the consideration of the application for stay of execution the learned trial Judge in his short ruling, stated 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/75/93 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 the 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 back 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 stay of the execution pending the determination of appeal by the Court of Appeal.”

The complaint of the appellant is that the trial Judge did not specifically make a finding that the grounds of appeal do raise vital issues of law and that there are substantial issues to be argued.

I do not think there is any magic in the use of the words recondite as used in Balogun v. Balogun (supra) or substantial triable issues or exceptional or special circumstances used in Vaswani Trading co. v. Savalakh Co. (supra) or Okafor v. Nnaife (supra). I think what is important is that, the trial Judge should look at the grounds of appeal and the whole of the affidavit evidence in support of the application as to whether there are substantial points of law or triable issues raised in the appeal, and that the grounds of appeal do in fact raise substantial triable issues or special or exceptional circumstances. Once the grounds of appeal do raise substantial triable issues, I think it is enough if the trial Judge did advert his mind to it and take cognisance of the grounds of appeal and the totality of the affidavit evidence in support of the application, in his consideration as to whether or not to grant a stay of execution of the judgment, which in this particular case, the learned trial Judge did.

He stated in his ruling at page 36 of the record of appeal that each of the applicants filed six grounds of appeal, five of which are grounds of law; and one, a ground of fact complaining about double award.

Earlier in the ruling, the learned trial Judge stated that the summary of the grounds for the applications as disclosed by the affidavit evidence before him is that there are substantial issues of law to be determined on appeal, that the respondent therein i.e. the present appellant would not be able to pay back the judgment sum should the appeal succeed. He concluded by saying:-

“In view of the grounds of appeal and the huge sum involved, I am inclined to grant and I hereby, grant the application for stay of execution pending the determination of the appeal by the Court of Appeal.”

A cursory look at the grounds of appeal in question at pages 23-27 of the record of appeal shows that the grounds of appeal do raise some substantial and triable issues of law for determination on appeal.

In that regard, I am of the view that there are exceptional and special or substantial reasons or circumstances disclosed in the applications by the respondents/applicants before the learned trial Judge did. I think the trial Judge to warrant the grant of the application as the learned trial Judge did exercise his discretion properly, judicially and judiciously.

In the final analysis, I am unable to see any merit in the appeal. The appeal accordingly fails and it is hereby, dismissed. There shall be no order as to costs.

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Other Citations: 2002)LCN/1205(CA)