Chief (Dr) Pere Ajuwa & Anor V.the Shell Petroleum Development Company Of Nigeria Limited (2011)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI, J.S.C
This is an appeal against the ruling of the Court of Appeal, Abuja Division (“the court below” for short) delivered on 10th May, 2007.
By an Originating Summons issued at the Federal High Court, Yenagoa, Bayelsa State but later transferred and heard at the Federal High Court, Port Harcourt, (“the trial court”, for short) the appellant sought to enforce the Joint Resolution of the National Assembly awarding to the Appellants the sum US$1.5 billion damages as compensation for environmental degradation of the appellants, communities by the respondent’s oil production activities since 1956.
On February 24, 2006, the trial court gave judgment and ordered the respondent to comply with the resolution of the National Assembly and awarded the stated sum of US$1.5 billion to the appellants as compensation for injuries suffered. The respondent felt dissatisfied with the judgment of the trial court and appealed to the court below.
Equally, it applied to the trial court for it to make an order of unconditional stay of execution of it’s judgment. In a Ruling delivered on Friday, May 19, 2006, the trial court refused the application for unconditional stay and ordered the grant of stay of execution on condition that the judgment sum be deposited in the central Bank of Nigeria on or before 12 noon on Monday, May 22nd, 2006 in the name of the Chief Registrar of the Federal High Court.
Being dissatisfied with the Ruling of the trial court, the respondent filed a further application at the court below seeking that the order of conditional stay be varied by granting unconditional stay of execution pending the final determination of the appeal. The respondent filed another application dated September 19th, 2006 seeking leave of the court below to amend its Notice of Appeal by filing and arguing the Amended Notice of Appeal, leave to raise fresh issues and accelerated hearing of the appeal.
The two motions filed by the respondent were part-heard at the Port Harcourt Division of the court below when the appeal was transferred, suo motu, by the court for hearing at the Abuja Division of the court. When hearing resumed de novo) at the Abuja Division, the two applications were heard together. In the Ruling of the court below delivered on May 10th, 2007, the court below granted all the reliefs sought in the two motions. The court below gave the parties time for filing briefs of argument and adjourned the appeal to 21st of June, 2007 for hearing.
The appellants felt unhappy and appealed to this court against the stance posed by the court below.
Learned Senior Counsel to the respondent raised preliminary objections against the grounds of appeal contained in the Notice of Appeal filed by the appellants on 22nd May, 2007. For ease of reference and due appreciation, the six grounds of appeal without their particulars are reproduced as follows:-
GROUND ONE
The Court of Appeal erred in law in granting the appellant applicant’s prayer contained in their application filed on 20th November, 2006 seeking “leave to the defendant/appellant/applicant to amend the notice of appeal in this matter by filing and arguing the Amended Notice of Appeal including raising fresh issues herein attached as
Exhibit SPD1.”
GROUND TWO
The Court of Appeal erred in law when it held per O. O. Adekeye, JCA as follows:-
”I do not agree that the judgment creditor must consent to stay of monetary judgment. This is only required where the judgment debt (sic) is a bank or financial institution.”
GROUND THREE
The Court of Appeal misdirected itself in law in granting the appellant/applicant’s application for unconditional stay of execution of the judgment of the Federal High Court in this case on the ground that:-
“In the instant application, it is not disputed that the appellant/applicant has assets and facilities far in excess of the judgment debt within the jurisdiction of the court and Nigeria. SPDC is also a Nigerian Company wherein the Federal Government has 55% equity interests. It must not elude the court that any order made by court is an interim order pending the hearing and determination of the substantive appeal.”
GROUND FOUR
The Court of Appeal erred in law in allocating the time within which the appellant and the respondents ate to file their briefs of argument in this case and setting down the appeal for hearing on June 21st, 2007.
GROUND FIVE
The Court of Appeal erred in law in granting unconditional stay of execution of the judgment of the Federal High Court in this case in favour of the appellant/applicant’s application when time within which to file the appellant’s brief had expired and there was no application by the appellant/applicant to file its brief.
GROUND SIX
The Court of Appeal erred in law in refusing to dismiss the appellant’s appeal as urged by the respondents on 20th March, 2007.
The Senior Counsel for the respondent, with respect to the preliminary objection, initially maintained that since the present appeal arose from the interlocutory decision of the Court of Appeal made on May 10th, 2007 leave of the court below or this court ought to be obtained before filing the Notice of Appeal. He placed reliance on the provisions of section 21(2) of the Supreme Court Act. Senior Counsel submitted that since the appellants failed to obtain the requisite leave, the entire Notice of Appeal and the appeal are incompetent and should be struck out or dismissed.
Senior Counsel urged that the provisions of Section 21(2) of the Supreme Court Act should be read along with the provisions of Section 233(2) (a); (3) and (6) of the 1999 Constitution and that appeal on interlocutory decisions of the Court of Appeal lies to the Supreme Court with leave either of the court below or this court.
Senior counsel for the appellants had a contrary view. He felt that since the grounds of appeal are grounds of law, an appeal lies as of right to this court. He submitted that the argument of learned Senior Counsel for the respondent that Section 233(1) (2) (a) of the Constitution is subject to Section 21 (2) of the Supreme Court Act by reason of Section 233 (6) of the Constitution belittles the Constitution which is the organic law of the state and the grundnorm. He observed that Section 233 (2) (a) of the Constitution confers a specific right of appeal without any requirement for leave on questions of law against decisions of the Court of Appeal in any civil or criminal proceedings. He felt that what is contemplated by Section 233(6) are situations other than those already expressly provided for in the previous subsections of the section. He submitted that if a harmonious interpretation is given to Section 21 (2) of the Supreme Court Act, the court will arrive at an interpretation that leave of the court below or of this court is required for an appeal against an interlocutory order or decision of the court below on questions other than questions of law alone.
He opined that this is consistent with the provision of Section 233 (3) of the Constitution.
Senior counsel for the appellants referred to decisions of this court in National Employers Mutual General Insurance Association Ltd. V. Uchay (1973) 4 SC 1 (Reprint) and Onigbeden v. Balogun (1975) 5 SC 63 (Reprint). He submitted that the interpretation put forward by the Senior Counsel for the respondent is destructive of Section 233 (1), (2) (a) of the Constitution and disruptive of settled principles and therefore should be rejected. He cited the cases of Ojemen V. Momodu (1983) 1 SCNLR 188 at 203; Comex Ltd. V. N.A.B. Ltd. (1997) 3 NWLR (Pt. 496) 643 at 653; Maigoro V. Garba (1999) 10 NWLR (Pt.624) 555 at 567-568; Adeyemo V. Beyioku (1990) 10 NWLR (Pt. 635) 472 at 489; Ngige v. Achuhwu (2004) 8 NWLR (Pt. 875) 363 at 394.
At this point, it is apt to reproduce the provisions of Section 233(2) (a), (3) and (6) of the 1999 Constitution along with Section 21 (2) of the Supreme Court Act so as to appreciate their clear purport and intendment in relation to the point herein in contention. They read as follows:-
Section 233 (2) (a) of the 1999 Constitution:
“An appeal shall lie from decision of the Court of Appeal to the Supreme Court as of right in the following cases (a) Where the ground of appeal involves question of law alone, decision in any civil or criminal proceedings before the Court of Appeal”.
Section 233(3) of the 1999 Constitution:
“Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.”
Section 233 (6) of the 1999 Constitution:
“Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall subject to section 236 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.”
Section 21 (2) of the Supreme Court Act:
“Where in the exercise by the court of Appeal of its jurisdiction an interlocutory order or decision is made in the course of any suit or matter an appeal shall, by leave of that court or of the Supreme Court, as the case may be, lie to the Supreme Court; but no appeal shall lie from any order made ex parte, or by consent of the parties or relating only to costs.”
From the above reproduced Section 233(2) (a) of the 1999 constitution, it is clear beyond peradventure that an appeal shall lie from decision of the court of Appeal to the Supreme Court as of right where the ground of appeal involves question of law alone. Section 233 (2) (a) of the Constitution confers a specific right of appeal without any requirement for leave on question of law against decisions of the court below in any civil or criminal proceedings. And Section 233 (3) provides that subject to the provisions of subsection (2) of this section an appeal shall lie from decisions of the court below to the Supreme Court with the leave of the court of Appeal or the Supreme Court. To my mind, appeal on question of law alone without leave is unique. Section 233(6) relates to other appeals against interlocutory decisions of the court below on questions other than those of law. This is consistent with the provisions of Section 233 (3) of the Constitution.
It is my considered opinion that the provisions of Section 233 (2) (a), (3) and (6) should be given a harmonious reading in such a manner that it does not obliterate the clear provisions of Section 233 (2) (a) which gives a specific provision of right of appeal without leave on point of law. Subsection (3) of Section 233 of the constitution makes other rights of appeal subject to that provided in subsection (2) (a) of the same. To find otherwise will, in my opinion, be disruptive of settled principles. See: Ojemen v. Momodu 11 (supra) at page 203.
I do not agree with the stance posed by the respondent.
I hold that the appeal is competent.
That now takes me to the objection raised to the competence of grounds 3, 4 and 5 of the appellants’ Notice of Appeal. Chief Akinjide, SAN submitted that grounds 3, 4 and 5 are, at best, grounds of mixed law and facts and required the leave of either the court of Appeal or this court before they could be lodged. He observed that the stated grounds and their particulars must be read together to reach a decision. Learned senior counsel cited Opuiyo v. Omoniwari (2007) 16 NWLR (Pt. 1060) 415 at 430 and Metal Construction (W.A) Ltd. v. Migliore (1990) 1 NWLR (pt. 126) 299 at 314; Comex Ltd. v. N.A.B. Ltd. (1997) 3 NWLR (Pt. 496) 643 at 654.
Senior counsel submitted that the particulars attending to grounds 3, 4 and 5 challenge the evaluation by the court below and that the appellants contended that on the strength of the facts alleged therein, the court below ought to have reached a different conclusion. Senior counsel felt that same is clearly a question of fact.
Senior counsel submitted that the mere description or labeling of a ground of appeal as ‘error of law’ is not conclusive and is irrelevant to the determination whether that ground is of law, fact or mixed law and facts. The court looks at the substance of the complaint in the ground of appeal. He cited the cases of Nwadike v. Ibekwe (1987) 2 NSCC 1219 and Ojemen v. Momodu 11 (1983) NSCC 135. He observed that any issue for determination framed from grounds 3, 4 and 5 of the appellants’ Notice of Appeal are incompetent.
Senior counsel further submitted that grounds 3 and 5 should be deemed abandoned and liable to be struck out as no issue for determination was framed from the grounds. He cited Chukwumah V. Shell Petroleum (1993) 4 NWLR (Pt.289) 512 at 551.
Learned senior counsel finally urged that appellants’ Grounds 3, 4 and 5 should be struck out.
Learned senior counsel for the appellants agreed that in the determination of the question whether or not a ground of appeal is of law or fact or mixed law and facts, it is important to consider together the principal complaint and the particulars of the error provided thereunder.
He felt that the substance of the complaint in Ground 3 is that the court below misdirected itself in law as there was no evidence on record to support its decision to grant unconditional stay of execution. He submitted that the court below did not exercise its power to grant unconditional stay of execution on recognised legal principles. He cited the case of Ogbechie v. Onochie (1986) 2 NWLR (pt. 23) 484; Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718.
Senior counsel submitted that Ground 3 of the Notice of Appeal is a ground of law.
Further, senior counsel for the appellants submitted that grounds 3 and 5 were not abandoned as they were well covered by issues for determination raised by the appellants. He observed that ground 3 was argued under issue 1 while ground 5 relates to consequence of failure to file brief of argument within time prescribed by the Rules of court.
It has been pronounced by this court in Nwadike V. Ibelone (supra) at page 1235 that it is a recognised fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law by christening it ‘error of law’ or misdirection in law.
Grounds of appeal and particulars attending to them must be carefully read together to arrive at a decision.
As carefully set out by Nnaemeka-Agu, JSC in Nwadike V. Ibekwe (supra) on the point –
(a) It is an error law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion. O’Kelly v. Trusthouse Forte PLC (1983) 3 ALL ER 468.
(b) Several issues that can be raised on legal interpretation of deeds, documents, term of arts and inference drawn therefrom are grounds of law. Ogbechie V. Onochie (supra) at 491.
(c) Where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is aground of law. Benmax V. Austin Motor Co. Ltd. (1945) All ER 326.
(d) Where a tribunal states the law in a point wrongly, it commits an error in law.
(e) Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as a ground of law.
(f) If a judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law. Metal Construction (W.A) Ltd V. Migliore (supra) at page 315.
A careful appraisal of the particulars attending to ground shows that the complaint therein is that there is no evidence before the court below that the respondent is a Nigerian Company wherein the Federal Government has 55% equity interest. As for ground 4, the real complaint is that there was no application before the court below for enlargement of time to file the appellants’ brief thereat.
And as for ground 5, the complaint is that unconditional stay was granted at the time when the appellant did not seek leave to file its brief of argument. To my mind, the three grounds of the appeal, read carefully with their particulars; show that they are grounds of law.
It can be deduced that the first issue covers ground 1 of the grounds of appeal. It touches on principles of granting unconditional stay of execution. Issue 3 is covered by ground 5. It has to do with the complaint that appellant failed to file brief of argument within the time allowed by the Rules of court. In short, I am unable to surmise how the stated grounds of appeal can be said to have been abandoned.
In short, I over rule the preliminary objection had taken on behalf of the respondent. The appeal shall be considered on its merit anon.
The three (3) issues formplated on behalf of the appellants for determination read as follows:-
“(1) Whether the Court of Appeal followed the principle laid down by the Supreme Court for the grant of unconditional stay of execution for money judgment in granting to the respondent an unconditional stay of execution of the judgment of the Federal High Court.
(2) Whether the first prayer contained in the respondent’s motion dated 19th September 2006 was not too vague and bad in law to be granted by the court.
(3)Whether the court of Appeal ought not to have struck out “the respondent’s appeal in the court below rather than setting it down for hearing expeditiously when the time within which the respondent should file its brief of argument had expired and there was no application for enlargement of time to file the brief.”
On behalf of the respondent, four issues couched for determination read as follows:-
“(a) whether the judicial discretion of the courts to grant unconditional stay of execution is dependent on the consent of the judgment creditor, irrespective of the peculiar facts of each case.
(b) Whether or not, having, regard to the law and the affidavit evidence, the Court of Appeal was right in granting the reliefs contained in the first paragraph of the Prayers in the respondent’s Motion dated September 19th, 2006.
(c) Whether the order for the filing of briefs by the Court of Appeal is a necessary and consequential order following the grant by the Court of Appeal of the reliefs in the respondent’s Motion dated 19/9/2006 (as the respondents contends) or whether the order for the filing of briefs amounted to granting a relief not sought (as the appellants contend).
(d) Whether or not having regard to all the facts and circumstances of the case, the respondent’s appeal at the Court of Appeal can, in law, be deemed to have been abandoned.”
The 1st issue formulated by the parties, couched in different words, was hotly contested. It is whether the judicial discretion of the court to grant unconditional stay of execution is dependent on the consent of the judgment creditor or not.
Senior counsel for the appellants submitted that since this is a money judgment the only instance where the court may allow the judgment debtor who has applied for a stay of execution pending appeal to retain the judgment debt is where the judgment creditor consents to same. He relied principally on the decision of this court in UBN Ltd. V. Odusote Bookstore Ltd. 3 NWLR (Pt. 331) 129 at 151. Senior counsel felt that the court below violated the principle of stare decisis for not following the decision of this court therein. He felt that such a stance also violated the provision of section 287 (1) of the 1999 Constitution.
Senior counsel submitted that impecuniosity, per se, is not a ground for granting an unconditional stay of execution or varying the terms of a stay already granted. He cited Franchal (Nig) Ltd. V. Nigeria Arab bank Ltd. (2000) 9 NWLR (Pt. 67 1) 1 at 22; Nwabueze V. Nwosu (1988) 4 NWLR (Pt. 88) 272.
Senior counsel further submitted that the fact that a judgment debt is substantial or colossal is not a ground for granting an unconditional stay of execution. He cited Mobil Producting (Nig) Unlimited V. Monokpo (2001) 18 NWLR (Pt. 744) 212 at 242.
Senior counsel submitted that the court below seriously misdirected itself in law in basing its decision, inter alia, on the fact that SPDC is a Nigerian Company wherein the Federal Government has 55% Equity interests as there was no evidence on record on same. He observed that the Federal Government is not a party in the case.
Senior counsel further observed that the discretion to grant or refuse a stay of execution must take into account the competing rights of the parties. He cited Okafor V. Nnaife (1978) 4 NWLR (Pt. 64) 129 at 136; Mobil Oil (Nig) Ltd v. Agadaigho (1988) 2 NWLR (Pt. 77) 388 and Martins V. Nicanner Food & Co. Ltd. (1988) 2 NWLR (pt. 74) 75.
On behalf of the respondent, senior counsel submitted that the judicial discretion of the court below to vary the terms of the stay granted by the trial court by granting unconditional stay of execution is not dependent on the consent of the judgment creditor. He maintained that to hold otherwise is to convert the judicial discretion of the court below to the discretion of the judgment creditor. He asserted that judicial discretion must be exercised judicially and judiciously having regards to the peculiar facts of each case. Senior counsel maintained that where the exercise of discretion is clogged for being dependent on a factor outside the control of the court, like the consent of the judgment creditor herein as craved by the appellant, it ceases automatically to be judicial discretion.
Senior counsel submitted that in the exercise of discretion, each case is to be decided on the strength of its peculiar facts. He observed that what the appellants rely on to urge stare decisis arose from the opinion – obiter dictum of Uwais, JSC (as he then was) in UBN Ltd. Odusote Bookstore Ltd. (supra). He felt that the case is totally different from this case and therefore the principle of stare decisis does not arise.
Senior counsel maintained that the learned justice did not intend to lay down a binding principle of law applicable in all cases irrespective of the facts of each case that unless the judgment creditor consents, to allow the judgment debtor to retain the judgment debt would be to give the judgment debtor undue advantage over the judgment creditor. He observed that the opinion of the learned justice relates to – a bank that is a judgment debtor retaining the judgment debt as deposit.
Senior counsel maintained that the consent of the judgment creditor is not and cannot be a requirement for the court below to exercise its judicial discretion to grant unconditional stay of execution. He felt that it is not the law that a judgment creditor must consent before an order of unconditional stay can be made.
Senior counsel asserted that the terms of stay of execution imposed on SPDC by the trial court were onerous and impossible to comply with.
Senior counsel maintained that the case of SPDC for unconditional stay of execution was predicated on the doctrine of corporate death and not impecuniosity. He cited Orient Bank (Nig) Plc V. Bilante International Ltd. (1996) 5 NWLR (Pt. 447) 166 at 180 – 182.
On the point touching on colossal sum, he submitted that though same is not a determinant of whether conditional or unconditional stay should be granted, it is a factor to be taken into consideration.
Senior counsel observed that SPDC deposed to affidavit that the Federal Government of Nigeria (FGN) has 55% equity interest in the comp any and the averment was not controverted. The Federal Government of Nigeria has interest in the joint venture operated by SPDC. Senior counsel observed that third parties’ interests are equity’s darling and courts jealously protect them.
In the alternative, senior counsel urged that if it is decided in UBN Ltd. V. Odusote Bookstore Ltd. (supra) that the only occasion when it would be proper to order unconditional stay of execution pending appeal, will be when the judgment creditor consents to the court seized with the matter making the order, this court should overrule the decision to that extent.
Learned counsel submitted that this court will overrule its previous decision where it is shown that:
(i) the previous decision is clearly wrong and there is real likelihood of injustice being perpetrated; or
(ii) that the previous decision was given per incuriam; or
(iii) that a broad issue of policy was involved.
He cited Okulate v. Awosanya (2000) 2 NWLR (Pt. 646) 530 at 543; Adisa V. Oyinwola (2000) 10 NWLR (Pt. 746) 116. He further observed that this court will overrule its earlier decision where same is capable of fettering the exercise of judicial discretion by a court. See: Adisa V. Oyinwola (supra).
Senior counsel submitted that it will perpetrate injustice and also fetter the exercise of judicial discretion by the courts if it is upheld that the only occasion when it would be proper to order unconditional stay of execution pending appeal will be when the judgment creditor consents to the court seized with the matter making the order. He felt that such will put the grant of unconditional stay of execution in deserving cases at the whims and caprices of the judgment creditor who will just need to say ‘I do not consent’. He asserted that the opinion expressed by the learned justice in UBN V. Odusote Bookstore Ltd. (supra) did not require the judgment creditor to give reason for not consenting and that makes it impossible to challenge the refusal of the judgment creditor withholding his consent.
Senior counsel further asserted that it is also an issue of public policy to see that judicial discretion of the court is not put in the hands of interested parties to a case before the court. The court will be abdicating its constitutional role of adjudication if the court subjects the exercise of its judicial discretion to the whims and caprices of the interested Parties.
The heat generated in respect of this point is intense. In the ruling of the court below delivered on 10th May, 2007 Adekeye, JCA (as she then was) said-
“I do not agree that the judgment creditor must consent to all applications for stay of monetary judgment. This is only required where the judgment debtor is a bank or financial institution.”
In UBN Ltd. v. Odussote Bookstore Ltd. (supra) at page 151, the learned justice stated –
“Finally, in my opinion, the only occasion when it would be proper to order that a bank that is a judgment debtor could retain the judgment debt, in an order for stay of execution pending appeal, will be when the judgment debtor (sic) consents to the court seized with the matter making the Order.”
Earlier on at page 150, the learned justice stated as follows:-
“To allow the bank to retain the judgment debt as deposit notwithstanding that it will pay commercial interest on the amount, is in my opinion tantamount to giving it undue advantage over the judgment creditor. For it is a matter of common knowledge that the bank would employ the funds in charging higher interests than could accrue to the judgment creditor in the event of the bank’s appeal failing.”
At page 151 C-D, the learned justice finally caped same as follows:-
“In the present case, it is common ground, as the parties have agreed in the alternative to their conflicting submissions that the judgment debt should be deposited in either the First Bank of Nigeria Plc or the united Bank of Africa Plc. Consequently, I am satisfied that on the whole there are special circumstances to warrant the grant of the application for stay of execution pending the appeal in this court. Accordingly, the application is hereby granted on the following terms…”
In matters of judicial discretion, since the facts of two cases are not always the same, this court does not make it a practice to lay down rules or principles to fetter the exercise of its discretion or that of the lower courts. In matters of discretion, no one case is authority for the other. A court cannot be bound by a previous decision to exercise its discretion in regimented way, because that would be as it were, putting an end to discretion. See: Akujinwa V. Nwaonuma (1998) 13 NWLR (Pt. 583) 632 at 647; Attorney-General Rivers V. Ude (2006) 17 NWLR (Pt. 1008) 436 at 461; Odusote v. Odusote (1971) 1 All NLR 219 at 222.
Judicial discretion is a sacred Power which inheres to a judge. It is an armour which the judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any- form of prompting by the parties.
Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v. Whitman R. 11, 431 A.2d 1229, 1233; Black’s Law Dictionary, Sixth Edition Page 466.
It is clear that a judicial officer should exercise his discretion judicially and judiciously as well. See: University of Lagos v. Olaniyan (1985) 16 NSCC (Pt. 1) 98, 113; Eronini V. Iheuko (1989) 2 NSCC (Pt. 1) 503, 313; (1989) 3 SC (Pt. 1) 30.
Let me say it in passing that this court does not condone a situation where an earlier decision is capable of fettering the exercise of judicial discretion. Judicial discretion is a vital tool in the administration of justice. See Adisa V. Oyinwola (supra).
It is my considered opinion that the decision of this court UBN V. Odusote Bookstore Ltd. (supra) did not lay it down as a general principle of law that in all money judgments, the consent of judgment creditors must be secured to enable judges make order of stay of execution. It is when the judgment debtor is a bank or a financial institution and a proposal is being made as to where the judgment debt would be kept pending determination of the appeal that parties, but more especially the judgment creditor, will have an input.
In effect, I agree with the stance of the court below that it is not a must that the consent of a judgment creditor must be had and obtained in all applications for stay of monetary judgment. Such is only required where judgment debtor is a bank or financial institution which has to keep the judgment debt in its bank where same is employed to its advantage.
In sum, the invitation by the respondent’s senior counsel overrule the decision in respect of the point in UBN Ltd. V. Odusote Bookstore Ltd. (supra) is not of any moment.
In granting conditional stay of execution on May 19th, 2006, the trial court ordered as follows:-
”That execution of the judgment in this suit is stayed on condition that the judgment debtor/applicant deposit the judgment sum of US$1.5 billion with the central Bank of Nigeria in an interest yielding account in the name of the Chief Registrar, Federal High Court of Nigeria on or before 12.00 noon Monday, 22nd of May 2006 to await the out come of the appeal.”
The court below found that the trial High Court made the order of conditional stay in terms which were onerous and impossible to, comply with. This is clearly manifest in the 3rd further affidavit of the respondent. The respondent was ordered to pay the sum of US$1.5 billion within a time that is less than one working day. As the ready cash was not available, the respondent would have to dispose of its assets and oil wells etc. If the appeal succeeds, the judgment will be barren- as their assets would have gone. All these factors convinced the court below to find that the respondent showed why the order is onerous and impossible of immediate performance. I feel the court below was in order.
On behalf of the appellants, it was submitted that impecuniousity is not a ground for granting an order for unconditional stay of execution. The respondent agreed with same but maintained that their stand is predicated on doctrine of corporate death and not impecuniousity. The court below agreed that in line with the doctrine of corporate death, the respondent should be kept ‘alive’ to enable it pursue its appeal. It maintained that the goose that lays the golden eggs must not be allowed to Pass-on. A death which denies the respondent of prosecuting the appeal is not justice. The court below made its order to keep the appellant alive to prosecute the appeal. I am unable to fault that decision. The same was the stance of the court below in orient Bank Nig Plc v. Bilante International Ltd. (1996) 5 NWLR (Pt. 447) 166 at 180-182.
The appellants argued that there was no evidence before the court below that the Federal Government of Nigeria (FGN) has 55% equity interest in the company. But I note that same is covered in paragraphs 13 and 14 of the 3rd further affidavit on pages 107 -108 of Volume 2 of the record of appeal. As the depositions were not challenged, they are deemed to be admitted by the appellants. See: Omoregbe v. Lawani (1980) 3-4, SC 108, 117; Fasoro v. Beyioku & ors. (1988) 2 NWLR (Pt.76) 263, 271; Mogaji v. Cadbury Nig. Ltd. (1972) 2 SC 97; Okerie V. Ejiofor (1996) 3 NWLR (Pt. 434) 90 at 104.
The appellants felt that the Federal Government of Nigeria is not a party and that the respondent ought to have joined the Federal Government of Nigeria as a party. It should be stated that the facts of the interest of Federal Government of Nigeria and other 3rd party interests in the Joint Venture operated by SPDC were deposed to for the purpose of bringing to the notice of the court below ‘third parties interests’ that would be adversely affected if unconditional stay was refused. That was well made as ‘third parties’ interests are equity’s darling’. The court must protect them jealously.
The 1st issue is hereby resolved in favour of the respondent and against the appellants.
Issue No. 2, as couched by the appellants, is whether the first prayer contained in the respondent’s motion dated 19th September, 2006 was not too vague and bad in law to be granted by the court.
On behalf of the appellants, it was contended that prayer 1 in the respondent’s motion dated 19th September, 2006 is bid in law for misjoinder of prayers. Senior counsel submitted that a prayer for amendment is distinct and separate from a prayer for leave to raise fresh issues on appeal.
He felt that the two prayers cannot be joined as the principles for the grant of the two prayers are not the same. Senior counsel further submitted that just as an action is liable to be struck out for misjoinder of causes of actions, so also is an application liable to be struck out for misjoinder of Prayers. He cited C.C.B (Nig) Plc V. Rose (1988) 4 NWLR (Pt. 544) 37 at 46 and Amachree V. Newington (Pt. 1952) 97. Senior counsel maintained that it is not the function of the court to sever misjoined prayers. He cited Government of Gongola State V. Tukur (1959) 4 MLR (Pt. 117) 595 at 603; Commissioner for Works, Benue State V. Devcon Ltd. (1988) 3 NWLR (Pt. 83) 407 at 420.
Senior counsel felt that the court below ought not to have granted prayer I because it is too vague and imprecise. Senior counsel for the respondent, or his part, maintained that the appellants opposed only on technical ground by alleging misjoinder of prayers. The appellants did not challenge the merit of the reliefs sought in the said motion. Senior counsel for the respondent maintained that the appellants do not complain that both reliefs were not sought. The only complaint is that both reliefs were misjoined in one paragraph. He asserted that the alleged misjoinder was, at best, an irregularity which the court below in its discretion waived when it granted the motion.
Learned senior counsel opined that no miscarriage of justice was alleged or proved and they failed to show the way they were prejudicial or misled by the alleged misjoinder.
Senior counsel observed that the appellants’ allusion to misjoinder of causes of action is misconceived. He maintained that it is a rule of convenience and that the two prayers can be conveniently sought and granted in one application. He asserted that courts treat misjoinder of causes of action, if at all, as a mere irregularity.
Senior counsel observed that the current attitude of this court which has permeated all the levels of our court system is a total departure from technicality as courts no longer sacrifice the interest of justice on the altar of technicalities. He cited Amaechi V. INEC (2008) 5 NWLR (Pt. 1080) 277.
The reliefs sought in the motion dated 19th September, 2006 read as follows;-
“1. Granting leave to the Defendant/Appellant/Applicant to amend the Notice of Appeal in this matter by filing and arguing the Amended Notice of Appeal including raising fresh issues herein attached as Exhibit SPDC 1.
- For accelerated hearing of the appeal.”
To say the least, the wording of prayer 1 can be described as inelegant. That is not to suggest that the two prayers to amend the Notice of Appeal and to raise fresh issues cannot be discerned therein. If they had been duly separated, the novel tag of ‘misjoinder of prayers’ would have been avoided.
In my considered opinion, same is a mere irregularity that was rightly waived by the court below. After all, the appellants have not shown how they have been prejudiced or misled.
The technical objection is misconceived. The days of technicalities are gone. The current vogue is the doing of substantial justice to both sides in such a way that the main appeal will be heard and determined on its merit. See: Bello v. Attorney-General Oyo State (1986) 12 SC 1; Ogunubi v. Kosoko (1991) 18 NWLR (Pt 210) 511; Fawehinmi v. Akilu (1989) 3 NWLR (Pt 112) 643 and Egegbu V. F.A.T.B (1992) 1 NWLR (Pt. 220) 709.
This issue is also resolved in favour of the respondent and against the appellants.
Issue No. 3 is whether the court below ought not to have struck out the respondents’ appeal rather than setting it down for hearing expeditiously when the time within which the respondent should file its brief of argument had expired and there was no application for enlargement of time to file the brief. This issue encapsulates issues 3 and 4 formulated by the respondent.
The complaint of the appellants is that the respondent failed to file its brief of argument within the time stipulated by order 6 Rule 2 of the Court of Appeal Rules, 2002. On that ground, learned senior counsel for the appellants urged that the appeal of the respondent at the court below should be dismissed.
Further, senior counsel submitted that the court below was wrong when it allocated time within which the parties should file their briefs and set the appeal down for hearing. He felt that the appeal of the respondent at the court below is deemed, in law, as having been abandoned.
Senior counsel for the respondent observed that SPDC motion dated 19/9/2006 seeking amendment of SPDC original Notice of Appeal was filed on 20/9/2006 when SPDC was still within time in filing its brief of arguments. Senior counsel said it was not the fault of the respondent that at the time the motion was eventually heard on March 20th, 2007 and ruling delivered on May 10th, 2007 time for the filing of the briefs had elapsed. He observed that SPDC was not entitled to file its Brief of Arguments when the motion for amendment of Notice of Appeal and raising fresh issues was pending.
Senior counsel submitted that the order for filing briefs was consequential to the orders granted to amend Notice of Appeal, raise fresh issues and accelerated hearing. He felt that it was immaterial that no application was made at the time the court below so acted. He cited the case of Nneji & Ors. v. Chukwu & Ors (1988) 1 NSCC 1115.
Senior counsel further submitted that having regard to the facts and circumstances of the case, it cannot be said that SPDC had abandoned its appeal at the court below for the mere reason that time for filing of Briefs had elapsed. He cited the case of Obomhense V. Erhahon (1993) 7 NWLR (Pt. 303) 22 at 41.
Senior counsel observed that this court has in several decisions particularly in Amadi V. N.N.P.C. (2000) 10 NWLR (pt. 674) 76 frowned against the use of interlocutory appeal to delay the hearing of the substantive appeal, more so as there is nothing in this interlocutory appeal that will dispose of the substantive appeal. He urged that this appeal be dismissed.
From the facts and circumstances of this matter, it was not the fault of the respondent that its motion to amend its Notice of Appeal and raise fresh issues was not heard in good time to enable it file it’s brief of argument within the time stipulated by the Rules of the court below. The court eventually heard the motion and after granting same, made consequential orders to file briefs of argument and set the appeal down for hearing. All these steps were well taken. It was immaterial that no application was filed when the court below made the consequential orders. In Nneji & ors. V. Chukwu & Ors. (supra) with a similar setting, this court held that the order of the court of Appeal for filing of briefs out of time without a prior application for same was an order necessary for determining the real question in controversy in the appeal. The orders appear necessary and the need for same arose incidentally.
In the circumstances of this matter, can the respondent be said to have abandoned its appeal at the court below I think not. Again in a similar setting in Obomhense V. Erhahen (supra) at page 41, this court held as follows:-
”I do not think it is right or reasonable to hold that an appellant who has filed a motion for leave to file and argue additional grounds of appeal lacks the will to prosecute his appeal. I regard it as preposterous and an abuse of language to so hold. It is certainly not evidence of apathy towards the prosecution of the appeal or tardiness in doing so. It is certainly in my opinion the opposite. An appellant who has in court an application to file additional grounds of appeal cannot be said to be apathetic to the prosecution of the appeal the grounds of which he is seeking to add to.”
The court below maintained that – ‘there is no indication that this appeal was abandoned in default of filing the appellant’s brief’. I am at one with the court below as it was in order. In short, the issue is resolved in favour of the respondent and against the appellants.
The court below in its bid to exercise its discretion judicially and judiciously examined the grounds of appeal and concluded that they raise substantial points of law as follows:-
(1) Constitutional law and doctrine of separation of powers.
(2) Statute of limitation.
(3) Jurisdiction of the Federal High Court to entertain the claims
(4) Capacity of the plaintiffs/respondents (at the trial court) to bring the claim.
(5) Issue of Bias.
I seriously feel that parties should go to the court below and concentrate their armour for due employment in respect of the main appeal thereat.
I come to the final conclusion that this appeal is devoid of merit and it is hereby dismissed. The appellants shall pay: N50, 000.00 costs to the respondent.
SC.290/2007