Chief Joseph Akinbinu Akinnawo V. Chief Lisadoko John Orotusin (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the Ondo State High Court, Ondo Judicial Division, delivered on 28th October, 2008 in Suit No. HOD/101/98.

The Appellant is the Plaintiff/Judgment Creditor in Suit No. HOD/101/98. In a judgment delivered on 30th June, 2008, the Appellant obtained judgment against the respondent, as the Defendant in that matter. In a notice of appeal dated and filed on 9th July, 2008, the Respondent herein appealed against the judgment of 30/6/2008.

Upon and subsequent to this notice of appeal, the Respondent herein as the Defendant/Judgment Debtor/Applicant, in a motion on notice dated 28th July, 2008 but filed on 29/7/2008 sought for an order of Court “staying” the judgment of the Court delivered by Odusola, J on the 30/06/08.

This application was supported by a 36 paragraph affidavit deposed to by the within named Defendant/Judgment Debtor/respondent. A number of copious documents were attached to this affidavit as exhibits A to H – H24. To oppose this motion, the within named Plaintiff/Judgment Creditor/Appellant deposed to and filed a 22 paragraph affidavit with Exhibits A to C attached, while the Judgment Debtor/Applicant filed a 26 paragraph further affidavit to join issues with the Judgment Creditor/Respondent.

Issues having been duly joined on the application, it proceeded to hearing wherefor the lower Court took the arguments and submissions of respective learned counsel. In his ruling the learned judge of the lower

Court, Kolawole, J., decided thus: –

“In conclusion, I believe that the application of the applicant is meritorious and ought to be granted and it is hereby granted. I therefore order stay of execution of the judgment of this Court delivered on the 30th of June, 2008 pending the determination of the appeal filed by the applicant at the Court of Appeal…”

The Plaintiff/Judgment Creditor was dissatisfied with the order of Kolawole, J. staying the execution of the judgment of Odusola, J. delivered on 30/06/08. He appealed to this Court in a notice of appeal dated and filed on 29/10/2008. This notice of appeal contains 7 grounds of appeal with their particulars.

To argue the appeal, learned counsel Mr. Awosunle filed a brief of argument dated 17/3/2011. The Respondent’s brief of argument was filed on 31/5/11 and deemed properly filed upon the order of extension of time made by this Court on 10th November, 2011 and the payment of default penalty made on 14th November, 2011.

Learned Counsel to the Appellant formulated and argued 4 issues for the determination of this appeal. They are: –

“(1) Whether the Lower Court was right when it granted a stay of Execution in favour of the respondent when a Stay of Execution was not expressly and explicitly sought. This issue relates to ground 7 of appeal.

(2) Whether there was a competent and valid appeal pending at the time the Lower Court granted the Stay of Execution. This issue relates to grounds 2 & 5 of appeal.

(3) Whether Exhibits A, B, C, D, E, F, G and H-H24 attached to the respondent’s affidavit in support were properly in evidence to justify the exercise of the Lower Court’s discretion in the grant of the Stay of Execution. This issue relates to Ground 6 of appeal.