Honourable Commissioner For Education, Akwa Ibom State & Ors V. Harrikok Engineering Company Limited & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI J.C.A. (Delivering the Lead Ruling)

The Appellants/Applicants were, by Ruling in HEK/MISC.90/2010, granted an order for stay of execution of the Judgment of the High Court of Akwa Ibom State, sitting of Eket, delivered in Suit No HU/28/2005, upon certain conditions. The Appellants/Applicants, dissatisfied with the said conditions, filed this application seeking:

1. An Order to set aside or vary the conditions granted by the Akwa Ibom State High Court Eket on 19/5/11 in Suit No HEK/MISC.90/2010 for a stay of execution of the Judgment of the said High Court in Suit No HU/28/2005 delivered on 1/2/10 pending the determination of the Appeal to this Court against the said Judgment.
2. Such further order(s) as this Honourable Court may deem fit to make in the circumstances.

In support is an affidavit deposed to by Mr. Okon Udo, Chief Litigation Officer in the Ministry of Justice, State Secretariat, Uyo, Akwa Ibom State. Annexed to the affidavit are Exhibits OU1, OU2, OU3, OU4, and, OU5. The facts leading to this application, as set out in the supporting affidavit, are as follows:

The Appellants/Applicants were the defendants in Suit No HU/28/2005, decided on 1st February, 2010 by the lower court in favour of the Respondents/Respondents, who were the plaintiffs in the lower court. The lower court had awarded in favour of the Respondents/Respondents, as general damages, the sum of N20million; and costs of N30, 000.00.

The Appellants/Applicants filed a motion for stay of execution of the said judgment in the lower court pending appeal. But before the motion was heard, the Records of Appeal were transferred to this Court on 20th August, 2010. The State Counsel, Bassey Ekanem Esq., who had been handling the matter, thereupon abandoned the motion.

Another State Counsel, apparently unaware of this development, appeared in the lower court and moved the motion for stay of execution. The lower court granted the application for stay of execution on the condition that the judgment debt should be deposited in the Bank. The Honourable Attorney General of Akwa Ibom State was unaware of the said Order until their Brief of Argument had been filed.

The reasons for seeking a variation of the condition set by the lower court are that the said the condition is onerous, harsh and difficult to fulfill in view of the present economic situation in the State. That it is in the interest of justice that execution of the judgment be stayed unconditionally pending the determination of the appeal against the judgment.

The Appellants/Applicants further deposed that unless the execution of the judgment is stayed unconditionally, the Appeal may be rendered nugatory. That to deposit such a large amount of money in any Bank will deprive the Appellants/Applicants of funds to use for other urgent purposes. That they cannot afford to part with such funds at this time because of the dwindling state of economy of the 3rd Appellant/Applicant. That no budgetary provision was made for the Judgment sum by the 3rd Appellant/Applicant in the present year’s budget; and that to take away that amount of money of money will deprive other citizens of their rights; as well as prevent the 3rd Appellant/Applicant from performing its primary responsibilities.

The Respondents/Respondents filed a counter affidavit denying the averments of the Appellants/Applicants, and, annexing one exhibit, marked Exhibit 1.

Bassey J. Ekanem Esq., State Counsel, Ministry of Justice, Uyo, Akwa Ibom State filed a written address for the Appellants/Applicants in which they raised for determination the following issues:

1. Whether the fact that the trial court had granted the Applicant’s application for stay of execution, though conditionally, can prevent the Applicants from filing an application in this Court seeking for a variation or setting aside of the conditions.
2. Whether from the facts as deposed in the Affidavit in support of this application, if would be in the interest of justice to set aside or vary the conditions for the stay of execution of the said judgment granted by the lower court pending the determination or outcome of the Applicant’s Appeal to the Court of Appeal.

On Issue I, learned State Counsel relied on Order 7 Rule 3 of the Court of Appeal Rules 2011, Section 17 of the Court of Appeal Act, 2004 to submit that applications of this nature may be made. He also relied on Tidex (Nig) Ltd. vs. Maskew (1997) 1 NWLR (PT 482) 453; Ladipo vs. Aminike Investment Co. Ltd (1998) 4 NWLR (PT 546) 496: Aje Printing (Nig) Ltd vs. Ekiti LGA (2009) 7 NWLR (PT 1141) 512.

On issue No 2, he relied on the averments in the supporting affidavit and submitted that it would be in the interest of justice to allow the application, and, hear the appeal, upon the Respondents filing their Respondents’ Brief. Sylvanus A. Obot Esq. of Counsel for the Respondents/Respondents filed a written address in which he raised 2 Issues for determination as follows:

1. Whether this Honourable Court has power to hear and determine this application same being incompetent and abuse of court process and judicial powers.
2. Whether in the circumstances of this case the Applicants have disclosed any compellable ground to warrant this court to vary or set aside the discretionary Order of the lower court made on 19/5/2011 by Hon Justice Charles Ikpe.

On Issue No 1, he submitted that this Court lacks jurisdiction to entertain the instant application on the grounds that the application is brought in utmost bad faith and constitutes on abuse of court process. That matters arising from the State High Court can only be entertained by the Court of Appeal upon on appeal being duly filed. That there being no appeal filed against the Order of the lower court made on 19/5/2011, the prayer to vary the conditions in the said Order cannot be made pursuant to Section 17 of the Court of Appeal Act. That this application is brought under a wrong law and is therefore incompetent: and should be struck out.

On Issue No 2, he submitted that no compellable reason has been given to warrant the grant of the application. That the order of the lower court made on 19/5/2011 was an equitable discretionary order exercised in accordance with the law, specifically, Order 55 Rule 2(1) and (2) of the High Court Rules of Akwa Ibom State 2009. That this Court cannot easily interfere with the findings of fact made by the trial court unless such findings are perverse or not supported by evidence on record or based on evidence not legally admissible. He relied on Ekeh v. Amechi (2010) ALL FWLR (PT 512) 1132 at 1154: Owor vs. Christopher (2010) ALL FWLR (PT 511) 962; Mobil Producing Nigeria Ltd vs. Udo (2008) ALL FWLR (PT 421) 951.