Chief James Adebayo Oyewusi & Ors. V. Governor Of Oyo State & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Judgment)

A stay of execution of a judgment of the High Court of Justice of Oyo State holding at Ogbomosho (the court below) was granted by that court on 18.7.2008 pending the determination of an appeal against the award of title to a disputed parcel of land located at Ogbomosho Farm settlement in Ogbomosho, Oyo State and general damages of N500,000 in favour of the present appellants against the 3rd respondent.

In granting the application for stay of its judgment the court below ordered at pages 163-164 of the record of appeal, (the record) –

”The Judgment Creditor/Respondents are restrained from tampering with the existing structure of the appellant/applicant, his privies and assigns on the land which is the subject matter of the appeal pending the determination of the appeal filed by the judgment Debtor/Applicant against the judgment of this court delivered on 7th March, 2007. The status quo on these structures must be maintained by the parties.

The applicant shall pay the adjudged sum of N500,000 into an interest yielding account in a reputable bank within jurisdiction to be opened by the Registrar of the court pending the hearing and final determination of the appeal lodged by him.

The applicant shall give an undertaking to pay damages to the Judgment Creditor/Respondents for any damages that they may be proved to have resulted from the grant of the 1st leg of the application if it is later found to have been wrongly granted.

However in the interest of justice the order of stay granted in respect of the 1st leg of the application may be discharged if the Applicant is found wanting in the prosecution of the appeal and the adjudged sum to be paid into the bank shall be ordered to be paid back to the Respondents.”

Naturally, the present appellants were aggrieved by the Ruling and appealed against it in an original notice of appeal which was by order of the Court amended. The amended notice of appeal with seven grounds of appeal was filed on 22.4.09. Briefs were exchanged between the appellants and the 3rd respondent. The 1st – 2nd respondents did not file any brief of argument. By an order of the court granted on 7.2.2011, the appellants were allowed to argue the appeal on the appellants’ brief and the 3rd respondent’s brief.

The appellants earmarked two issues for determination on the appeal worded thus –

“(i) Whether the appellant disclosed any exceptional or special circumstances to justify the grant of stay of the monetary judgment awarded against him by the lower court.

(ii) Whether the 3rd respondent who was adjudged a trespasser can be granted an order for stay of execution in order to maintain the status quo”

The appellants prefaced their submissions with reference to the cases of Okafor v. Nnaife (2002) FWLR (Pt.134) 504 at 606-607, Okin Biscuits v. Oshe (2003) 5 NWLR (Pt.709) 369 at 372-372, Okon v. Bolingo Hotels Ltd. (2004) ALL FWLR (Pt.214) 70 at 84, Vaswani Trading Co. v. Savalakh & Co. (2000) FWLR (Pt.28) 2174 at 2180 or (1972) ANLR 922 at 926, Balogun v. Balogun (1969) ALL NWLR (?) 341, Progress Bank v. Ok Contract (1998) 2 NWLR (Pt. 532) 45, Annot Lyle (1886) 11 PD 114 at 116, SFLK (Nig.) Ltd. v. Intercontinental Bank Ltd. (2004) ALL FWLR (Pt.206) 485, Kosofe Local Govt. v. Demuren (2002) FWLR (Pt.131) 1852 at 1867, Akibu v. Oduntan (1986) 1 NWLR (Pt.171) 1 at 13 and Babatunde v. Olatunji (2000) 2 NWLR (Pt.464) 557 at 568 to contend that a successful party is entitled to enjoy the fruit of his judgment unless there are exceptional or special circumstances shown by the judgment debtor that the subject-matter of the appeal is endangered to the extent of rendering the outcome of the substantive appeal nugatory or academic by reducing it to an empty shell of litigation leaving the appellant empty – handed in the event the appellant wins the appeal, in which case a stay of the judgment may be made pending the determination of the appeal.

The appellants argued on the first issue that the 3rd respondent did not make full and accurate disclosure of his statement of account or economic/financial capacity, nor did the 3rd respondent pray in his motion paper for conditional stay of the money judgment, consequently the court below should not have granted a conditional stay of the money judgment of N500,000 by directing the 3rd respondent to deposit the said sum of money in an interest yielding account to be managed by the Registrar of the court below pending the outcome of the appeal when the 3rd respondent did not establish exceptional or special circumstances, nor asked for such an order to warrant a grant of it by the court below citing in support the cases of Sirpi v. Alu Steel Construction (Nig) Ltd. (2000) 3 NWLR (Pt.644) 229 at 239, Chikwu v. Onyia (1986) 2 NWLR (PT. 130) 80.

Arguments on the second issue for determination ranged along the line that the judgment awarding the disputed piece of ground to the appellants is executory and/or declaratory defying the remedy of stay of execution, nor did the 3rd respondent establish the piece of land in question would perish before the appeal is determined, nor was it shown by the 3rd respondent that the disputed area of land was facing imminent destruction, consequently it was wrong for the court below to stay the judgment in respect of the disputed piece of land in favour of the 3rd respondent who was adjudged a trespasser on the land by the court below and was not entitled to continue his acts of trespass by remaining on the land to the detriment of the appellants that won the land suit vide Okafor v. Nnaife (supra) at 615, Okoya v. Santili (1986) 2 NWLR (Pt.131) 132 at 138, Government of Gongola State v. Tukur (1986) 2 NWLR (Pt. 117) 592, Awoniyi v. Registered Trustees AMORC (2000) FWLR (Pt.25) 1597 at 1617 – 1618, Nnoli v. Offodile (2005) ALL FWLR (Pt.254) 960. Fatoyinbo v. Osadeyi (2002) FWLR (Pt.110) 1770, Strauss v. Strauss (1866) LR 123, Gamu v. Hausa (2006) ALL FWLR (Pt.293) 384, JAMB v. Nkeiruka (2007) ALL FWLR (Pt. 381) 1780 Buraimoh v. Akande (2000) FWLR (Pt.79) 1423, ARC v. Fassassi (No.3) (1987) 3 NWLR (Pt.59) 37, Akibu v. Oduntan (supra) at 13 and Otiki v. Bahjeson (2000) FWLR (Pt.27) 2036 at 2045; upon which it was urged that the appeal be allowed.