Clev Josh Limited & Ors. V. Elder Olaniran Ifeoluwa Tokimi & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

GUMEL, J.C.A.

Upon a motion on notice dated 31/1/06, the appellants/applicants seek for the following main relief, namely:

1. An order staying the execution of the judgment handed down by Honourable Justice Lambo Akanbi, sitting at the Federal High Court, Akure Division against the appellants/applicants on 2nd February, 2005 pending the determination of the appeal filed before this court by the appellants/applicants.

The motion was brought pursuant to S.18 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990 and under the inherent jurisdiction of this court. It is supported by a 22-Paragraph affidavit deposed to by one Emmanuel Omosanyin, a litigation clerk in the law firm of Olukayode Ogundana and Co., solicitors to the appellants/applicants it has exhibits A, E & C attached to it. There is also a further affidavit in support. It is of 10 paragraphs and was deposed to by one Sanmi Owoeye, a legal practitioner in the law film of Olukayode Ogundana and Co. It also has 3 exhibits as annexures.

In arguing this application before us on 31/5/07, learned counsel, Mr. Kayode Ogundana introduced the main affidavit in support with its exhibits as well as the further and better affidavit together with its annexures and told the court that he was going to rely on them and some decided cases to convince the court to grant this application.

According to Mr. Ogundana, the appellants/applicants have appealed against the decision of the lower court dated 2/2/05 in suit No. FHC/AK/CS/79/2004 He referred to the notice and grounds of appeal dated 17th February, 2005 and attached to this application as exhibit B. Learned counsel went further to explain that the applicants had applied to the lower court for an order staying the execution of the judgment dated 2/2/05, but same was refused in a ruling dated 20/4/05 and attached to this application as exhibit C. It was the refusal of the lower to grant a stay of execution of the judgment that necessitated the bringing of this application.

Learned counsel, Mr. Ogundana argued that an application of this nature can be granted where the applicant shows the existence of special and exceptional circumstances. He referred to the cases of Adje Kemovorv. Onafeko (2000) FWLR (Pt.9) 1425 at 1436-1438 G-A; and Governor of Oyo State v. Akinyemi (2002) FWLR (Pt.120) 1764 at 1772-1773 G-B; (2003) 1 NWLR (Pt. 800) 1. In addition to these decisions, learned counsel drew our attention to paragraphs 11, 12 and 13 as the exceptional or special circumstances that this court should consider to grant this application. Learned counsel also pointed out that these averments in paragraphs 11, 12 and 13 were not challenged or controverted in the counter-affidavit of the 1st respondent. He maintained that in the absence of a valid statement of account, the 1st respondent cannot prove or show his financial status.

While referring to the notice and grounds of appeal, (exh. B), Mr. Ogundana submitted that there are substantial questions of law to be decided in the appeal. He made copious references to the grounds of appeal and referred to the case of Bamaiyi v. A.-G., Federation (2001) FWLR (Pt.64) 344 at 367 A-D; (2001) 12 NWLR (Pt. 727) 468 to emphasize and underscore his view that the grounds of appeal involve substantial questions of law which also involve arguments in favour of more than one interpretation. He urged the court to grant this application.

In his response, learned counsel to the 1st respondent, Mr. Olusole Oke, went straight to the heart of the matter. Though he had filed a counter-affidavit and a further and better counter-affidavit and both had documents attached thereto, he chose to attack the competence of the appeal itself.

According to Mr. Oke, this application lacks merit. He added that it is a complete affront to the position of the law on the issue.

He went further to explain that any application for stay of execution must be predicated on a valid and competent notice of appeal. Mr. Oke pointed out that the relevant notice of appeal in exhibit herein falls short of the provisions of Sections 240 and 241 of the Constitution of the Federal Republic of Nigeria, 1999. He referred to exhibit B and highlighted that it is ex-facie incompetent because it is addressed as an appeal from the Federal High Court, Akure to the same Federal High Court, Akure. He added further that exhibit has failed to comply with O.3 r. 2(1) of the Court of Appeal Rules, 2002 and Civil Form 3 in Schedule 1 to the Rules.

Learned counsel, Mr. Oke continued to take on exhibit B when he pointed out further that it was signed by Olukayode Ogundana and Co. This signature, according to Mr. Oke, is neither that of any of the appellants nor their counsel. He added that by his appearance in court, learned counsel to the appellants/applicants is Mr. Olukayode Ogundana and not Olukayode Ogundana and Co. Learned counsel Mr. Oke submitted that in the circumstance of this application, Olukayode Ogundana and Co. is not the name of counsel to the appellants but the law firm of counsel to the appellants. Learned counsel urged the court to strike out the notice and grounds of appeal in exhibit B for being invalid and incompetent and to also refuse the application for stay for not having been predicated on a valid and competent appeal.

For whatever it was with, Mr. Oke of counsel argued that by virtue of S.135 (1) and (2) of the Evidence Act, Cap. 112, LFN, 1990, it was not for the 1st respondent to satisfy the court of its financial buoyancy, rather, it was for the appellants/applicants to show to the court that they would be able to satisfy the judgment debt if the appeal was decided against them. He pointed out that this financial buoyancy can be satisfied by exhibiting a statement of account. He drew the attention of the court to the 3rd applicant and argued that we should take judicial notice of its status as a Bank and to also take judicial notice of the fact that Banks in this country can go under and become distressed. He added that 3rd appellant can enjoy a presumption in favour of its financial buoyancy; the 1st and 2nd appellants/applicants cannot and should not enjoy that favourable presumption of financial buoyancy.

On the financial buoyancy of the 1st respondent, learned counsel referred to exhibits 2, 3 and 4 attached to the counter-affidavit and exhibits 1, 2, 3 and 4 attached to the further counter-affidavit as well as paragraph 3 of the counter-affidavit. He maintained that in the unlikely event that the appeal succeeds and it was allowed, the 1st respondent has presented good and enough evidence to make a refund of the judgment debt.

Mr. Oke explained that paragraphs 13, 16, 17 and 18 of the affidavit in support do not show any exceptional or special circumstances. He added that exceptional circumstances are dependant on the facts and special circumstances of each case. He urged the court to so hold. He concluded his arguments by submitting that the grounds of appeal are common place. They do not involve any recondite points. He urged the court to discountenance all the cases cited by Mr. Ogundana as they do not apply to the facts and circumstances of this case. He also urged that this application be dismissed with substantial costs.