Central Bank of Nigeria V. Beckiti Construction Limited (2003)
LawGlobal-Hub Lead Judgment Report
SULEIMAN GALADIMA, J.C.A.
By its application on notice filed on 19th March, 2003 brought before this court, applicant is praying for the following order:
“An order varying the order of conditional stay of execution made by the lower court on 3rd March, 2003 by substituting the condition given by that court with the following:
‘The judgment debt inclusive of all accrued interest be kept with the Central Bank of Nigeria which will give an undertaking to pay interest on the said amount at prevailing rate of time to time should the appeal be decided against it.”
The application is supported by a – 14 paragraph affidavit with the judgment and ruling of the lower court attached and marked exhibits ‘CBN1’ and ‘CBN4’ respectively. Exhibits ‘CBN2’ and ‘CBN5’ are the notice of appeal and a copy of letter written to the applicant by the respondent respectively. Respondent filed a counter affidavit of 10 paragraphs in opposition.
When this application came before us on the 3rd November, 2003 for hearing, Olatunji Oyeyipo, Esq., learned counsel for the applicant submitted that in an application for variation for conditional stay of execution, the applicant is expected to show how onerous the condition of stay has been. That the applicant is not satisfied with the ruling of the lower court delivered on 3/3/2003.
It is contended that the respondent by their exhibit ‘CBN5’ have shown that if the judgment sum remains with them it would be trapped. It is submitted that the case of U.B.N. Ltd. v. Odusote Bookstore Ltd. (1994) 3 NWLR (Pt. 331) 129 is not applicable to this instant case. Since the Central Bank, is a bank of the bankers, it does not operate strictly as a commercial bank and it will not in anyway trade with the respondent fund. Reliance was placed on Owena Bank Plc. v. O.B.C. Ltd. (1998) 9 NWLR (Pt. 564) 129; Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (Pt. 496) 643.
Chief Adedeji Adekoya, Esq. learned counsel for the respondent referred to the counter-affidavit filed on 30/4/2003 in opposition to this application. He contended that the applicant, having been fully settled needs not bring this application and urged that the application should be refused and consequently dismissed as it lacks merit.
This court has the jurisdiction and the discretion to vary an earlier order of the trial court for stay of execution under certain circumstances at the instance of the applicant who initially applied for an order of stay at the trial court. However, this power provided by Order 3 rules 23(2) and (3) of the Court of Appeal Rules, 2002, must be exercised judicially and judiciously. See C.G.F.C.S.PA. v. Nigerian Ports Authority (1972) 12 SC 107; Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129 and First Bank of Nigeria Ltd. v. Doyin Investment Nigeria Ltd. (1989) 1 NWLR (Pt. 99) 634.
In considering an application for variation of the condition of stay of execution the cardinal requirement under the principle of justice is to duly consider the respective and competing rights or interest of both parties in the application with a view to maintaining a balance in their positions and doing substantial justice to them.
The grounds for which the applicant has sought the order of this court are stated in paragraphs 3 -10 of the affidavit of Olatubosun Kajogbola in support of the application thus:
“3. That I have the authority of both my employers and the appellant/applicant to depose to this affidavit.
4. That by the judgment of the lower court delivered on 16th July, 2002, the court awarded damages in the sum of N82,865,451.51 with interest at 21% per annum from 1st June, 1992 till final liquidation of the judgment debt. A copy of the judgment is annexed hereto and is marked exhibit ‘CBN1’.
5. The applicant was dissatisfied with the judgment of the lower court and instructed our chambers to appeal which we immediately did. A copy of the notice of appeal is annexed hereto and is marked exhibit ‘CBN2’.
6. Further to the appeal and upon the instruction of the applicant, our chambers filed an application seeking an order staying execution of the judgment of the lower court.
7. Upon hearing argument of counsel on the application for stay of execution, the lower court on 3rd March, 2003 delivered its ruling wherein a conditional stay of execution was granted the condition being that the applicant pays the proceeds of the judgment ‘into an interest yielding account in the Commercial Bank where the proceeding amount in this suit is lodged within 14 days’. A copy of the ruling of the lower court dated 3rd March, 2003 is attached hereto and is marked exhibit ‘CBN3’.
8. I know as a fact that the Commercial Bank referred to in exhibit ‘CBN3’ is Capital Bank International Ltd. (formerly Credit Lyonnis Commercial Bank Ltd).
9. I am informed by S. M. Onekutu, Esq. an Assistant Director Legal in the Legal Department of the applicant bank and I verily believe him as follows:
i. The applicant is dissatisfied and apprehensive with the condition given for the order of stay of execution;
ii. The court below had earlier (by an order made on 29th June, 1993) ordered conditional stay of an interlocutory judgment obtained by the respondent herein against the applicant herein in the same proceedings), granted conditional stay of execution of the interlocutory judgment in similar terms. A copy of the ruling of the lower court embodying the said order is annexed hereto and is marked exhibit ‘CBN4’.
iii. Notwithstanding that this Honourable Court in its judgment delivered on Tuesday, 5th March, 1998 allowed the applicant’s appeal against the interlocutory judgment, the said Capital Bank International Ltd. at the instant of the respondent refused to refund the judgment debt in the interlocutory judgment to the applicant. Annexed hereto and marked exhibit ‘CBN5’ is a copy of a letter written to the said bank by the respondent’s counsel.
iv. The applicant is the foremost financial institution in the country, a banker to all other banks and the different tiers of government and it will remain in existence for as long as the country remains.
v. The applicant retains the capacity to pay the entire judgment debt inclusive of interest (which said judgment sum is over N200,000,000 – Two hundred million Naira only), at all times.
vi. In view of the relatively high incidence of bank failure in this country, it is unsafe to lodge such a huge amount in any commercial bank pending the hearing and determination of the appeal.
vii. The money if kept in the custody of the applicant has its safety guaranteed.
10. The applicant will prosecute this appeal most expeditiously and it has pending before this Honourable Court since 12th November, 2002 an application for departure from the rules by hearing the appeal on the bundle of documents complied by the applicant.”
An applicant who has been granted a conditional stay by the trial court has a heavy burden of proving that the conditions or terms imposed by the court are onerous and they thus deserve to be varied. This is in addition to the earlier burden or hurdles he has passed at the trial court when he sought for the exercise of discretion in his favour which was or has been granted. In the instant case, the applicant has discharged the onerous burden as required. It has proved that the conditional stay ordered by the trial court deserves to be carried.
Respondent has filed a counter-affidavit sworn to by one Ambrose Obi. It does not say much to support the respondent’s opposition, but be that as it may, I think it will be necessary to set it out in full for a better understanding of the facts involved. The counter-affidavit reads:
1. That I am the legal practitioner in the chambers of Adedeji Adekoya & Co.
2. That I am familiar with the facts in this suit.
3. That I have the authority and consent of the respondent to swear to this affidavit.
4. That the applicant has been granted a stay of execution by the High Court on condition that it pays the judgment debt and costs into another private bank.
5. That the applicant as a judgment debtor should not be allowed to dictate to the court where to keep the money pending the determination of the appeal.
6. That the applicant is a party in this suit and it has no leverage above other parties in this suit and both should be treated equally before the law.
7. That the applicant wants to take an unfair advantage over the defendant.
8. That the defendant does not agree that the applicant should keep the judgment debt and costs in its vault.
9. That the record compiled by the appellant is not complete and sufficient for the purpose of this appeal.”
The conditional stay of execution of the lower court reads as follows:
“That a stay of execution of the judgment delivered in this matter by this Honourable Court on 16th July, 2002 is granted, pending the determination of the appeal lodged subject to the defendant/applicant paying the proceeds of the said judgment into interest yielding account in the Commercial Bank where the proceeding amount in this suit is lodged with (sic) 14 days of this order.”
The applicant has sought in its application that the conditional stay be varied to allow the judgment debt be inclusive of all accrued interest be kept with the applicant which will give an undertaking to pay interest on the judgment debt at the prevailing interest rate, should the applicant fail to win the appeal. It would appear that the only reason why the respondent has opposed the application is that the applicant as a judgment debtor should not be allowed to dictate to this court where to keep judgment debt. That since the applicant is a party in this suit, it should not be allowed to have any leverage above the respondent. It is not shown that if the applicant is allowed to keep the judgment sum, it will not be able to repay or refund in the event that the appeal succeeds and that subsequent judgment will be rendered nugatory.
In UBN Ltd. v. Odusote Bookstore (supra) the Supreme Court alluding to some earlier decisions of this court in UBN Ltd. v. Emole (1991) 9 NWLR (Pt. 213) 74 at 83 and First Bank v. Doyin Investment (Nig.) Ltd. (1989) 1 NWLR (Pt. 99) 634; held that the only occasion when it would be proper to order that a bank that is a judgment debtor could retain the judgment debt, in order for stay of execution pending appeal, will be when the judgment creditor consents to the court seised with the matter making the order. Since the view of the consensus expressed by learned counsel for the parties in that case that the money be deposited either in the First Bank of Nigeria Plc. or the United Bank for Africa Plc., the Supreme Court accordingly made the order to that effect. In the instant case, there has been no such consensus reached by the learned counsel for the parties.
However, as I have stated earlier, the respondent has not shown that the applicant will not be in a position to refund the judgment sum to them in the event of its losing the appeal. The applicant’s main argument is that the res, that is the judgment sum remain safe with it being the banker of bankers, and that it would be ready to hand over the judgment sum to the respondent if at the end of the day victory remains with them.
In recent case of C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) 369 at 397, the Supreme Court observed as follows:
“The unchallengeable fact in this case is that the applicant is and would remain the banker of bankers. On that alone, it is not in doubt that the judgment sum would be best kept with it rather than any other bank.”
In that case, the Supreme Court took the view that the judgment sum would be best kept with the Central Bank rather than any other bank.
I have carefully considered all the facts which have been made available in this matter. It is my humble opinion that the balance of convenience and justice should be resolved in favour of the applicant.
I will therefore hold that the applicant ought to be granted prayers.
The application having succeeded, I order as follows:
1. That the judgment sum inclusive of all accrued interest be kept with the applicant (Central Bank of Nigeria).
2. The applicant shall within 14 days hereof give an undertaking that in the event of its losing the appeal it shall pay interest on the said judgment sum at the prevailing interest rate from time to time.
3. Each party is to bear its own costs.
Other Citations: (2003)LCN/1496(CA)