Julius Oba Fatoyinbo & Ors V. Michael Dada Osadeyi & Anor(2002)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

This is an interlocutory appeal. It is an appeal from the ruling of the Court of Appeal Benin, delivered on 26th of June, 1995.

The appellants were the plaintiffs in the trial court at Ado-Ekiti High Court. They sued the respondents claiming title to a piece of land, damages for trespass and injunction. The respondents counterclaimed for the same reliefs. At the end of the trial, the court gave judgment in favour of the respondents per their counterclaim.

The appellants were dissatisfied with the decision and they appealed to the Court of Appeal, Benin. While the appeal was pending, (and it is still pending) the appellants applied to the trial court for stay of execution of its judgment pending the determination of the appeal.

The learned trial Judge, Adekeye, J. (as she then was) heard the application and refused it.

The appellants, still not happy, further filed a similar application for stay pending appeal before the Court of Appeal, Benin. The application was again heard by the Court of Appeal and was dismissed with N500.00 costs in favour of the respondents. They now appealed to this court on three grounds, and formulated three issues for determination in their brief of argument. The issues are :-

“(a) As plaintiffs/appellants are no trespassers on the disputed land, as defendants/respondents did not sue plaintiffs/appellants for forfeiture; as there is evidence that plaintiffs/appellants have been on the land for more than thirty years and as it is clear that it will work hardship on plaintiffs/appellants if they are restrained from going to the land in dispute, whether or not it was right for the lower court to refuse a stay of execution of the judgment on the land.

(b) Whether or not it was right for the lower court to dismiss plaintiffs/appellants application for a stay on the ground that plaintiffs/appellants filed no further and better affidavit to the counter affidavit of defendants/appellants indeed plaintiffs/appellants did file one.

(c) Whether the decision of the lower court dismissing plaintiffs/appellants (sic) is in line and consonance with the affidavit evidence and facts before the lower court”.

The respondents also filed a brief in reply and raised three issues for determination which read:

“1. Whether in the circumstances of two competing claims in respect of title to land, the winning party is not entitled to the immediate enjoyment of the fruits of victory.

2. Whether in the circumstances of this case the plea of hardship alone would be enough to deprive the winning party of the fruits of victory as if the winners are not entitled to the plea of hardship as occasioned by their deprivation.
3. Whether in any event, a party who is in contempt of two valid and subsisting orders of court is entitled to the discretion of this court being exercised in their favour while persisting in naked acts of disobedience”.

At the hearing of the appeal, the respondent was absent and was not represented by counsel. The appellants’ counsel adopted his brief of argument and urged the court to allow the appeal. The brief of the respondent is deemed argued in accordance with the rules of this court.

I will consider the issues raised by the appellants which I find more appropriate having regard to the grounds of appeal. But in view of the nature of the application which was the subject of this appeal, I intend to consider all the three issues together.

It is now well settled that the power of the courts to grant or refuse stay of execution of a judgment is discretionary but the discretion must however be exercised both judicially and judiciously and not arbitrarily. Such discretion must also take into account the competing rights of the parties to justice. In the exercise of the discretion, the courts will not make a practice of depriving a successful litigant, at the instance of an unsuccessful one, of the fruits of the judgment granted in favour of the former, until a further appeal is determined and the judgment set aside. And for an unsuccessful litigant to succeed in an application for stay of execution of a judgment, he or she must show special or exceptional circumstances clearly showing the balance of justice in his or her favour. These principles of law, inter alia, were enunciated in myriad decisions of this court notably Vaswani Trading Company v. Savalakh & Company (1972) 1 All NLR (Pt. 2) 483; Balogun v. Balogun (1969) 1 All NLR 349; Martins v. Nicannar Foods Company Limited (1988) 2 NWLR (Pt. 74) 75; Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257; Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129.