Chief D. S. Yaro V. Arewa Construction Ltd. & Ors. (1998)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI,  J.S.C 

By motion on notice the appellant/applicant prays for the following orders:-

“(a) an order for enlargement of time within which to apply for stay of execution of the judgment of the lower court;

(b) an order Staying execution of the judgment delivered by the Court of Appeal on 11th July, 1996 pending the hearing and determination of the appeal lodged in this honourable court; and

(c) such further and or other orders as this honourable court may deem fit to make in the circumstances.”

The motion was supported by an affidavit, a further and better affidavit, and a reply affidavit, a reaction to the counter-affidavit deposed to on behalf of the 1st respondent on 23rd October, 1997.

Paragraphs 2,3,4,6,8, 11, 12, 13, 14, 16, 17, 18, 21,22,25 & 27 of the affidavit read as follows:-

“2. That on the 11th day of July, 1996, the Court of Appeal delivered judgment in the above matter dismissing the appeal of the appellant. A copy of the said judgment is herewith attached and marked “A”.

3. That the appellant being dissatisfied with the said judgment promptly filed a notice of appeal against the said judgment to the Supreme Court. Copies of the notice of appeal and the receipt for filing same are attached herewith and marked “B” and “B 1” respectively.
4. That the appellant at the same time promptly filed in the court below an application for a stay of execution of the said judgment pending the hearing and determination of the appeal.
5. That the said application was subsequently heard on 22nd January, 1997 and ruling thereon was reserved sine die.
6. That no hearing notice as to when the ruling was to be given in the matter was given.
7. That upon a search conducted at the Registry, I discovered that ruling on the appellant’s motion for stay of execution was delivered on 10th March, 1997 in the absence of all the parties and their counsel in the matter. Attached herewith and marked “C” is a copy of the said ruling.
8. That I am informed by Mr. Kehinde Sofola, SAN the leading counsel to the appellant and I verily believe that important points of law are involved in the appeal and that the appellant has a very good chance of success in the appeal.
9. That I am further informed by the said Mr. Kehinde Sofola, SAN and I verily believe that unless a stay of execution pending the hearing and determination of the appeal is granted, the appeal will be rendered nugatory in the most likely event of it being successful.
10. That this court will be faced with a fait accompli unless the stay applied for is granted.
11. That the ‘res’ in this matter is the property known as Plots Nos. 157/159 which has always been in the possession of the appellant.
12. That the appellant has expended huge sums of money in renovating the property in dispute since he was let into possession of same quite apart from huge sums of money paid by him for the purchase of same.
13. That the said property, the subject matter of this suit, has long been encumbered by third party interests.
14. That unless a stay of execution is granted pending the hearing and determination of the appeal, the “res” will be destroyed and all the appellant will obtain, in the most likely event of the appeal being successful, will be a mere barren judgment.
15. That unless a stay is granted, the respondents would take steps to have the property in dispute sold off thereby foistering on the Supreme Court a situation of complete helplessness and rendering nugatory whatever orders this honourable court might subsequently make.
16. That it is in the interest of justice that the application for a stay of execution of the decision of the court below is granted pending the hearing and determination of the appeal herein.
17. That I honestly and reasonably believe that the respondents herein would not be prejudiced in any way if this application is granted.”

Paragraph 3-13 of the further and better affidavit also read thus:-

“3. That the pending application for stay of execution of the judgment delivered by the Court of Appeal was filed in this court on 1lth July, 1997 and immediately served on all parties.

4. That the said application was then fixed for hearing on 26th January, 1998.
5. That despite due service of the application it was only the 1st respondent who reacted thereto through one B. Aluko-Olokun of counsel.
6. That on the said day the matter came up for hearing, Mr. M. E. Azoro of counsel for the 2nd respondent filed their counter affidavit and also intimated the court that he then had instructions to appeal for both respondents.
7. That it was during the course of the proceedings that counsel for the said respondents informed the court for the first time that the property, the subject-matter in dispute, has been sold to one Alhaji Mudi Yabo Mohammed of 32. Bye-Pass Road, Sokoto, the third respondent herein.
8. That as a result of the above information, this honourable court ordered that the said Alhaji Mudi Yabo Mohammed be joined as a party to the proceedings.
9. That the applicant has informed me and I verily believe that since the inception of this action, he has been in possession of the property, the subject-matter of the dispute in this case, and has continuously exercised maximum overt acts of ownership and possession over same without any let or hindrance from anybody.
10. That I am further informed by the applicant and I verily believe that the purported sale of the property to Alhaji Mudi Yabo Mohammed is a ruse calculated at pulling wool across the face of the court.
11. That the alleged wrongful, purported sale of the property on 9th August, 1996 was less than a month after the delivery or the Court of Appeal’s judgment while the alleged settlement of indebtedness of the 1st respondent to the 2nd respondent was claimed to be in December, 1996, some five months later.
12. That the alleged wrongful purported sale clearly took place during the pendency of the proceedings in court in this case.
13. That the respondents will not suffer any prejudice by the grant of this application.”

The 1st respondent filed two counter-affidavits on 23/10/97 and 23/1/98 respectively. In the first counter-affidavit it is stated as follows:-

“3. The 1st respondent has fully repaid the amount by which it was indebted to the 2nd respondent.

4. By a letter dated 18/12/96 the 2nd respondent acknowledged that the 1st respondent is no more indebted to it. A copy of the said letter is exhibited hereto and marked as Exhibit E. The 1st defendant is no more under receivership.
5. The 1st respondent raised the money by which it paid off its indebtedness to the 2nd respondent by selling the property No. 157/159 Club Road, Kana in Kano State of Nigeria on 9/8/96.
6. The fore-going facts in paragraphs 4 and 5 above were disclosed to the applicant in the counter-affidavit which the 1st respondent filed in response to the affidavit of the applicant in support of its motion for stay of execution at the Court of Appeal.
7. The losses which the applicant may suffer if the appeal to the Supreme Court succeeds and this motion is refused can be adequately compensated by award of costs.
8. That the 1st respondent has suffered greatly as a result of this case which has as at now lasted for over ten years by paying large sums of money as interest to the 2nd respondent.”

In the second counter-affidavit it is also stated thus:-

“5. The 1st respondent sold the property after the Court of Appeal has given judgment in the appeal before it and before the appellant filed his notice of appeal to the Supreme Court. The appellant had behaved as if he was not going to appeal against the judgment of the Court of Appeal.”