Benedict Udeorah & Ors V. Okwundu Nwakonobi & Ors (1999)

LawGlobal-Hub Lead Judgment Report

FABIYI, J.C.A.

Vide the motion on notice dated 5-3-99 and filed on 11-3-99, the applicants prayed for:-

“1. AN ORDER for leave of this honourable court to substitute, (1) Oguno Isiuzo (2) Nwoye Onyemutagui (3) Nwankwo Adigwe (4) Obiora Iloka for the 2nd, 3rd, 4th and 5th Defendants/Appellants as representatives of the people of Osile Ogbunike in this appeal.

2. AN ORDER for stay of execution of the judgment of the High Court of Otuocha delivered by the Honourable Justice P. I. Amaizu (as he then was) on the 25th day of September, 1998.”

The application was supported by a 15 paragraph affidavit deposed to by Mrs Genevieve Peter-Okoye, learned counsel for the applicants. A copy of the judgment of the Trial court, which was not duly certified, is Exhibit ‘A’. Amended notice of appeal with amended grounds of appeal is Exhibit -B”. A counter-affidavit of 12 paragraphs, deposed to by Mr. P.C. Ikebuase, a legal practitioner in the chambers of G. E. Ezeuko, Esq. SAN, counsel to the Plaintiffs/Respondents, was filed in opposition to the application. It is instructive to note here that Mrs. G. Peter-Okoye further filed a 12 paragraph reply to the counter-affidavit.

On 23-9-99, Mr. G. E. Ezeuko, SAN, Learned Senior Counsel for the Respondents stated that he did not oppose prayer 1 for leave to substitute the 2nd, 3rd, 4th and 5th Defendants/Appellants who were said to have passed on to the great beyond. Without much ado, leave to substitute the stated late Defendants/Appellants was granted as prayed.

Prayer no 2 was the only one in contention. It is for stay of execution of the judgment of the Trial court dated 25-9-98.

At this stage, the facts, as discernible from the affidavit in support of the application, counter affidavit in opposition and reply to same should be duly assembled in as much as the same are relevant to prayer 2.

As can be gleaned from the affidavit in support, judgment in the suit was handed out by the Trial Judge, Amaizu, J., (as he then was) on 25-9-98. The Applicants felt dissatisfied and appealed on 26-9-98. CHC Nwanya, Esq. Applicants’ erstwhile counsel filed a motion for stay of execution of the judgment of the lower court. The motion came up for hearing before Obiora, J. on 2-2-99. As CHC Nwanya, applicants’ counsel, as at then, was absent, Obiora. J., struck out the applicants’ motion for stay of execution with N500.00 costs against the Appellants who had to change counsel. An amended notice of appeal was filed. It is Exhibit B. Applicants’ grounds of appeal contain substantial points of law. The land in contention is worth millions of Naira. Appellants have been in possession from time immemorial. The land is their main source of livelihood. The Respondents now trespass into other lands not attached to the judgment. That there is a risk of Respondents alienating the Res and thereby rendering nugatory the judgment of this Court.

The facts that can be garnered from the counter-affidavit point to the direction that the Respondents have been in actual possession of the subject-matter of the appeal and same was reaffirmed by the judgment of the Trial court handed out on 25-9-98. Notice cum grounds of appeal did not indicate any exceptional circumstance or substantial points of law warranting the grant of stay of execution of the judgment pending the determination of appeal. Immediately after the judgment, the applicant invaded the land and harvested all the crops on the land and cut down economic trees therein to the chagrin of the Respondents.

The Respondents have been in actual possession of the land and have been exercising acts of ownership as confirmed by the judgment of the lower court. The Respondents deny any plan to part with the Res and are willing to give an undertaking not to alienate any portion of the land.

The essential facts in the reply to counter affidavit are that acts of wanton destruction were caused by the Respondents. Applicants do not have interest in destroying their main source of livelihood which they depend on to prosecute this appeal. Applicants are prepared to accept an undertaking offered by the Respondents not to alienate any portion of the land in dispute pending the determination of the appeal to this court.

Mrs. G. Peter-Okoye moved the application with equanimity. She relied on her stated affidavit as well as the stated uncertified judgment – Exhibit ‘A’ and amended notice of appeal cum grounds of appeal- Exhibit ‘B’. She submitted that the court has jurisdiction, power and the will to grant the application. She observed that there are special circumstances to warrant a stay of execution of the stated judgment of the Trial court. She referred to paragraphs 9 – 15 of the affidavit in support.

She opined that their grounds of appeal contain substantial and arguable points of law and referred to the case of Martins v. Nicannar Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75 at 77. She referred, in particular, to ground no 6 of the grounds of appeal. She pointed it out that each party is ready to enter into an undertaking not to alienate any portion of the land pending the determination of the appeal. She urged that the application be granted.

Mr. G. E. Ezeuko. SAN, maintained that the complaint about judgment in the land matter being one in rem or in personam is not contained in the proceedings in the certified copy of the record of appeal. He referred to pages 179 – 180 or what he called record. He observed that consequently, the point raised cannot be an arguable point of law. Ground 6 relied upon by learned counsel for the applicant is not a special circumstance to grant a stay of execution according to the senior counsel. He further referred to page 193 of the record with him to show reliefs granted by the Trial Judge. According to the Senior Advocate, the appellants were found to be trespassers. He observed that it will not be correct to give them greenlight to go into the land. He cited the case of Lawrence Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129 at 137. He referred to paragraph 9(i) of the counter affidavit and re-affirmed the Respondents’ undertaking not to alienate the land and further referred to the case of Orient Bank of Nigeria Plc v. Bilante International Ltd. (1996) 5 NWLR (Pt.447) 166 at 168. Learned senior counsel submitted that the application does not qualify to be favourably considered as the only issue in the appeal relates to facts. He urged that the application be dismissed.