Energo Nigeria Limited V. Mr. James Okpe (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABDU ABOKI, J.C.A. (Delivering the Leading Ruling)

The Applicant’s Motion on Notice dated the 9th day of February, 2009 and filed on the same date was brought pursuant to order 7 Rule 3 of the court of Appeal Rules, 2007 and under the inherent Jurisdiction of this court for an order staying the execution of the Judgment delivered by Hon. Justice U. A. Inyang of the High court of the Federal Capital Territory, Abuja on Friday 30th March, 2007 pending the determination of the Appeal filed by the Applicant against the said Judgment.

The application is supported by an eighteen paragraph affidavit sworn to by one Mr. Jubril Mohammed, the personnel/Administrative Manager of the Applicant Company on 9th February, 2009. The Applicant also filed a further and better affidavit sworn to by Hycinth Enwefa Esq. its counsel on 8th June, 2009 and a further and better affidavit with four annexure – Exhibits HE-1, HE-2, HE-3 and HE-4.

The background facts leading to this application is that the Plaintiff/Respondent herein instituted an action at the lower court against Defendant/Applicant herein for a declaration confirming his employment and for the sum of N390,971.00 (Three Hundred and Ninety Thousand Nine Hundred and Seventy One Naira) as his accrued allowances and entitlement.

In defence, the Defendant/Applicant filed a Statement of Defence denied employing the plaintiff and also stated therein that it engaged subcontractors who were independent in the execution of the contract.

The Learned trial Judge delivered Judgment in favour of the Plaintiff/Respondent and the Defendant being dissatisfied with the decision of the lower court has appealed against the said decision upon the Grounds set out in paragraph 3 of the Notice of Appeal, Exhibit HE-1; whilst its application for stay of the said Judgment was refused by the lower court, hence this application.

The Respondent filed on 11th March, 2009 a counter-affidavit dated same date to this application necessitating this court to order that the parties file written addresses. The Applicant’s written address dated 20th January, 2010 and filed same date is deemed filed on 25th January, 2010. The Respondent also filed on 25th January, 2010 a written address dated, 22nd January, 2010.

In the Applicant’s written address, a lone issue was formulated for the determination of this application and it reads:

“Whether in the circumstances of this case, this honourable Court will exercise its discretion in favour of the Applicant for a stay of the execution of the Judgment delivered by the lower Court on Friday, the 30th day of March, 2007 pending the determination of the Appeal filed therein.”

The Respondent in his written address formulated three issues as follows:

“1. Whether an application for stay of execution of judgment is granted as a matter of course or upon established principles.

2. Whether the Applicant has satisfied the principles/conditions to be entitled to a favourable exercise of the discretion of the Court.
3. Whether in the present circumstance, it will serve the interest of justice and the equity of the instant case to grant the Applicant’s prayer.”

I have carefully perused the issues raised by both parties. It is my opinion that the lone issue as formulated by the Applicant is capable of determining this application and I adopt same accordingly.

On the issue, learned counsel for the Applicant Hycinth Enwefa submitted that in an application for stay of execution of judgment, the Court is exposed to two competing rights of the parties. He maintained that the first one is the right of the successful party to reap the total benefit of his success in the litigation while the second is the need to preserve the res pending the determination of the Appeal so that if the Appeal is successful, it should not be rendered nugatory.

Learned counsel submitted therefore that in determining the competing right of the parties, the court must invoke the discretionary jurisdiction not only judicially but also judiciously. He referred to the case of Magnusson v. Koiki (1991) 4 NWLR Pt. 183 page 128.