Daily Times of Nigeria Plc V. Chief Mrs. A. S. Kusamotu (2002)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

The applicant brought an application on 20/4/2000, praying for the following:

“1. An Order staying execution of the final judgment of the Lagos State High Court, per Honourable Justice O. O. Obadina (as he then was) delivered on 23rd October, 1998.

ALTERNATIVELY

An order granting stay of execution of the judgment of the Lagos State High Court, delivered in this suit on 23rd October, 1998, upon a liberal term, than the one granted by the trial High court.

ALTERNATIVELY

An order varying the terms of the order made by the Honourable Chief Justice, Christopher Segun, made herein on the 20th day of January, 2000.”

The applicant filed in support of the application, a 12 paragraph affidavit to which were annexed several documents as exhibits, namely notice of appeal, exhibit ‘T01’; ruling of the lower court delivered on 29/1/2000 exhibit ‘T02’.

The respondent filed a counter-affidavit of 31 paragraphs on 5/6/2000, while the applicant filed a reply to the said counter-affidavit on 20/6/2000, made up of 19 – paragraphs and the last annual return/audited account of the appellant filed in 1994, was attached and marked as exhibit DTI”

On 22/4/2002, we heard the application. Mr. Rotimi Jacobs of counsel for the applicant, moved the motion. He submitted that the judgment sum involved was N5 Million and that this sum is colossal to warrant granting liberal terms or condition for the stay of execution of the said order of the lower court. It was submitted by the learned Counsel for the applicant that, if the judgment sum is paid to the respondent she would not be able to refund the said money, if eventually the appeal of the appellant succeeds. Expressing serious financial difficulties the learned Counsel referred to paragraph 18 of the reply to counter-affidavit in which exhibit “DT.1″ was attached. This was an audited account for 1994, showing that the applicant never made any profit since 1993. He submitted that substantial and arguable points of law have been raised in the appeal.

Mr. B. Okafor of counsel for the respondent, opposed the application making reference to the counter-affidavit and relying on paragraph 9 particularly. He said while the applicant has no means to settle the judgment debt, if it loses the appeal, the respondent is a lady of substance, who has the means to refund the applicant if the appeal succeeds. He said the application is incompetent, because the applicant has failed to comply with the order made by the lower court that the judgment debt be paid within the 30 days and they have sought no further extension of the time limit.

It is note worthy that the relevant paragraphs of the affidavit in support of this application are the following:

7. That I am informed by the appellant/applicant through its Secretary/Legal Adviser – Mr. T. Tamunokonbia and I verily believe him as follows:

(a) That the respondent is a retired employee of Savannah Bank of Nigeria Plc.

(b) That if the judgment sum is paid to the respondent, she would not be able to refund the said money if eventually the appeal of the appellant succeeds.