Integration (Nigeria) Ltd V Zumafon (Nigeria) Ltd (2014)
LAWGLOBAL HUB Lead Judgment Report
MARY PETER-ODILI, J.S.C.
This is an appeal against the Ruling of the Court of Appeal, Enugu Judicial Division delivered on 22nd September, 2004 wherein it ordered the appellant to pay the judgment debt of Eight Million Naira (N8, 000,000.00) with ten thousand naira (N10,000.00) costs.
FACTS BRIEFLY STATED
The suit originated at the Enugu High Court on the 30th day of July, 1999 where the plaintiff now respondent brought an action against the defendant now appellant seeking the following reliefs:
(a) Specific performance of the contract between the plaintiff and the defendant dated 27th August 1998.
(b) An order of Perpetual Injunction restraining the defendant from purchasing and laying or utilizing 150mm ductile iron delivery pipes or any other type or size of pipes for water supply at the University of Nigerian Teaching Hospital, Ituku Ozalla, Enugu from any other source or source(sic) whatsoever other than from the plaintiff or in the alternative;
(c) N6,596,285.00 as loss of profit flowing directly from the defendant’s breach of the said contract as against what was mutually agreed.
(d) N30,000.00 as general damages for breach of contract.
On the 1st of April, 2003 Judgment was entered in favour of the plaintiff now respondent for eight million naira as general damages. The defendant appealed to the Court of Appeal and also filed a motion for stay of execution exhibiting the Notice and Grounds of Appeal.
The motion for stay of execution was granted on the 11th day of April 2003 in favour of the defendants as follows:
“The judgment debt of (N8, 000.000.00) (Eight Million Naira” with N10,000 (Ten Thousand Naira) cost should be paid into an interest Yielding Account with the First Bank of Nigeria Plc. Okpara Avenue Enugu in the Name of the Assistant Chief Registrar, High Court Enugu and the party that eventually wins in the appeal should collect the money with the interest on it.”
The defendant not happy with the terms of the stay of the execution order appealed by way of motion on notice to the Court of Appeal, Enugu Division to have the condition for stay of execution reversed. The appellate court refused the application and stated as follows:
“Generally, this court will sparingly interfere in the exercise of discretion of the lower court. On the whole we are not satisfied that there are special circumstances or sufficient materials placed before this court to warrant reviewing the condition for stay ordered by the lower court. It is refused. The order of the lower court ought to be carried out to the letter and also immediately in the circumstances of this case.”
The defendant not satisfied once again has appealed to the Supreme Court seeking that the order of the High Court of Enugu State as affirmed by the Court of Appeal be reviewed.
On the 28th October, 2013 date of hearing, Dr. E. E. J. Okereke, learned counsel for the appellant adopted the brief of argument he had settled and filed on the 18/10/04. In the brief, learned counsel for the appellant had distilled three issues for determination which are stated hereunder:
- Whether the Court of Appeal acted judiciously and judicially in exercising its discretion when it took the posture that this being a money judgment, respondent was entitled to reap the fruits of its judgment and no more.
- Whether the Court of Appeal was precluded from exercising its discretion in granting a stay of execution with or without conditions if there were other circumstances recognized by law and relied upon by the applicant which would avail the court the opportunity to exercise the discretion to grant the applicant’s prayer.
- Whether the applicant was given a fair hearing in presenting argument of its application.
For the respondent, learned counsel on its behalf adopted a brief of argument which was titled “Respondents Reply Brief of Argument” settled by Ifeanyi Udenze Esq. and filed on 28/9/05. He distilled a sole issue for determination, viz:
Whether the Court of Appeal acted judiciously and judicially by refusing to interfere with the discretion of the lower court exercised in favour of the appellant.
The single issue as couched by the respondent seems apt and sufficient to utilise in answering the question in dispute.
Canvassing for the appellant, Dr. Okereke of counsel said that in the appellant’s affidavit and Grounds of appeal at the Court of Appeal that there was no breach of contract that warranted an award of damages. That the respondent’s counter affidavit did not challenge that contention and was merely insisting that respondent was entitled to reap the benefits of the money judgment in its favour.
He stated on that the principle of law that a successful litigant is entitled to the fruits of its judgment is a general principle and is not applied like a robot but there are other situations that would make this inapplicable such as the present instance. He cited Balogun v. Balogun (1969) 1 ALL NLR 349;
Vaswani Trading Co v. Savalakh & Co. (1972) 12 SC. 77; Utilgas Nigerian & Overseas Co. Ltd v Pan African Bank Ltd (1974) 10 SC. 105.
For the appellant was submitted that the Court of Appeal was entitled to look at the Notice of Appeal and the judgment and make a finding as to whether a substantial point or points of law raised therein may likely affect the result of the appeal. That the judgment itself dismissed all the three reliefs specifically asked for by the respondent but proceeded to award general damages. Also that the judgment stated that the contract was impossible to perform and came to the decision that the contract was frustrated and the parties discharged from their obligation.
Dr. Okereke contended on that the respondent claimed for a breach of contract of 27th August, 1998 whilst the court gave judgment for two breaches. That it is trite law that the court is bound to show the basis for the award of general damages and cannot make an award in vacuo. That the refusal of the Court of Appeal to consider the grounds of appeal and appraise the judgment was prejudicial to the appellant’s application and occasioned a miscarriage of justice.
For the appellant was further raised the fact that appellant was given five minutes by the Court of Appeal to present his argument and so the applicant’s counsel was in the circumstances not given the opportunity to present the argument for the applicant. That the haste applied by the court below deprived the lower court the opportunity of giving a considered judgment and a serious error was made which led to a miscarriage of justice. He cited Mohammed v Kano N.A. (1968) ALL NLR 426.
Learned counsel for the respondent, Mr. Ifeanyi Udenze in response said that the order for stay of execution of judgment pending appeal is a discretionary order. That an appellate court can only interfere with the discretion of the lower court where such a discretion of a lower court is manifestly wrong, arbitrary, reckless and injudicious. He cited Obieze v. A. G. Rivers State (2001) 12 SCNJ 35 at 39.
Learned counsel for the respondent said appellant either at the Court of Appeal or at the Supreme Court did not raise by way of affidavit evidence any issue of recklessness or arbitrariness or that the judgment was injudicious. That the decision of the lower court ordering the judgment debt to be paid into an interest yielding account in the name of the Chief Registrar of the court can hardly be described as injudicious, arbitrary and reckless. He said appellant’s argument dealing with the main appeal instead of addressing the relevant issue of the exercise of the discretion of the lower court would not work in favour of the appellant.
The central part of the judgment, basis of this appeal shall be recaptured thus:
“We have carefully gone through the relevant affidavit in support of the application and the relevant paragraphs of the counter affidavit. The main plank of the arguments of the appellant as deposed to in paragraph 8 of the affidavit is that it has not got that sum of N8 million and N10,000.00 cost to deposit with the lower court as this would cripple its business. This assertion without more has never been considered as special circumstances in an application for a stay…
Generally, this court will sparingly interfere in the exercise of discretion of the lower court. So much so where it was the appellant that sought for it at the lower court. On the whole we are not satisfied that there are special circumstances or sufficient materials placed before this court to warrant reviewing the condition for stay as ordered by the lower court. It is refused. The order of the lower court ought to be carried out to the letter and also immediately in the circumstances of this case.”
Having stated the salient part of that judgment of the lower court, the next leg is whether that court was correct and therefore the need to have recourse to the principles guiding the ordering of a stay of a judgment of court. The guides are well stated in the oft quoted decision of this court in Vaswani Trading Company v. Savalakh & Company (1972) NSCC 692 at 695 per Coker JSC and they are as follows:
“When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may unless the order for stay is granted destroy the subject – matter of the proceedings or foist upon the court especially the court of appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the order, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.”
Again to be said in line with the decision of the Supreme Court in Utilgas Nigeria & Overseas Co. Ltd v Pan African Bank Ltd (1974) NSCC 393, is that though the courts including the Apex Court have a wide discretion in granting or refusing an application for stay of execution of a judgment already delivered but such discretion should be exercised judiciously and it would be so exercised where it is demonstrated that the appeal involves substantial point or points of law necessitating that the parties and matters be kept in status quo until the legal issues are resolved.
It must not be lost sight of in all these that at the root of it all is the basic fact that a party to obtain a stay of execution of a judgment against a successful adversary must show substantial reasons to justify the denial of that successful party of the fruit of his judgment by the court. To state the above differently is to emphasie that a judgment that is executory should have no hindrance from the delivery of the judgment to the effecting of the order or orders of court emanating therefrom.
A basic rule and sacrosanct and so to restrain the immediate execution of that judgment some special circumstances or unique occurrence must exist to hold back the hand of the court. See Balogun v. Balogun (1969) ALL NLR 341.
The principles above recanted situated in the present circumstances of this case throw up the fact that what is being called up right here and now is the exercise of the discretion of the trial High Court endorsed by the court of appeal which translates to a concurrent decision of the two courts below. In this regard is a reiteration of the fact that this court in its appellate jurisdiction will rarely interfere with the exercise of its discretion by the lower courts. It can only be done where such an exercise is based on extraneous issues or where the exercise of such discretion is not bona fide. I place reliance on the case of Obi Eze v Attorney General of Rivers State (2001) 12 SC (Pt. 11) 21 at 31 & 32.
From the foregoing and what is available to this court, the appellant has gone into the merits of the substantive appeal at the Court of Appeal leaving unattended the necessary materials that would impel this court to be favourably disposed to his application. The discretion exercised by the trial court and affirmed by the Court of Appeal of ordering the judgment debt to be paid into an interest yielding account in the name of the Chief Registrar of the court do not in my humble view qualify for an injudicious, arbitrary and reckless exercise of the discretion of the court.
It has to be said that the appellant flying the flag of fair hearing on the ground that he did not have as much time at the Court of Appeal to properly address the court of the important angles that would have changed the mind of the court has no leg to stand on since at this point where he has had all the time and the Brief of Argument to persuade this court to redress an anomaly done in the lower court he had not been forthcoming.
Citing the case of Isiyaku Mohammed v. Kano N. A. (1968) 1 ALL NLR 424 has not enhanced his condition as the facts in that case are different from the current one. In that case the right to fair hearing of the accused was infringed upon as there were irregularities in the conduct of the investigation and trial. That is a far cry from what is obtaining in the current circumstances as the affidavit from which the appellant ought to have highlighted the reasons albeit special circumstances for which the stay of execution or reviewing of the order of the trial court would have been based was empty. The Court of Appeal was therefore right to say so in its judgment and I see no reason to depart from that stance of the Court of Appeal which supported what the trial court did.
To the question therefore raised in this appeal my answer is an emphatic No, in that the Court of Appeal acted judiciously and judicially in refusing to interfere with the discretion of the trial High Court in exercising the discretion against the appellant. This appeal lacking in merit is hereby dismissed.
I award the sum of N100,000 costs to the Respondent to be paid by the Appellant.
SC.189/2004