Lingo Nigeria Limited & Anor V. Julius Nwodo, Esq. (2003)

LawGlobal-Hub Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.C.A.

In an application filed on 13/2/2003, the applicants prayed for the following reliefs:
“1. AN ORDER of the Honourable Court staying execution of the judgment of Honourable  Justice, I. U. Bello, delivered on the 18th day of November, 2003 (sic) by way of variation of his consequential order for stay of execution.

2. AN ORDER of the Honourable Court varying the order of the said  Justice, I. U. Bello, ordering that the judgment sum be paid into court, until the final determination of the appeal.

3. AN ORDER of the Honourable Court directing the appellants/applicants to deposit with the said court banker’s guarantee to cover the judgment sum in lieu of depositing the judgment sum before the lower court.”

The following three grounds were set out in the application in support of the reliefs:
“1. The High Court of the Federal Capital Territory Judiciary has in the time past, experienced cases of exhibits in court being sold and money paid into court, either being embezzled by officials of the court or disappearing mysteriously.

2. That if the judgment sum is deposited into the court, there is the danger of same not getting to the appellants/ applicants in the event of their succeeding in the appeal.

3. That a banker’s guarantee on the judgment sum is as good as the money itself.”

Also, a five paragraph affidavit and some exhibits supported the application.

While moving the motion on 12/5/03, learned Counsel for the applicants applied to abandon prayer 1 of the motion. There was no objection from the respondent. Prayer 1 was accordingly struck out. Learned Counsel for the applicants submitted that his application was brought pursuant to section 18 of Court of Appeal Act; Order 3 rules 3(3) and (23) of the Court of Appeal Rules, 2002 and the inherent powers of the court. The rules of this court empower the court to grant the orders being sought. It was deposed to in the affidavit that the alternative remedy i.e. Bank guarantee is as good as money and the respondent stands to loose nothing, if bank guarantee is given.

Learned Counsel cited and relied on the case of DTN Plc. v. Kusamotu (2002) 15 NWLR (Pt. 790) 401 at pages 407 paragraph 12. Learned Counsel argued that they ask for variation of the conditions of the order granted by the trial court because paying the judgment sum into the trial courts registry may lead to the danger of non-return of same in case the appeal succeeds. Learned Counsel stated that the position of the law is that an application for variation of court’s order is always at the instance of the party, who applied for stay at the lower court and it is erroneous to suggest that we have to appeal against the order. He cited the case of Construzioni General Farsura Cogefar SPA and Anor. v. NPA and Anors. (1972) 1 All NLR 509. He also referred this court to Aguda’s Practice and Procedure of the Supreme Court, the Court of Appeal and High Court of Nigeria. He urged the court to grant the application.

In opposing the motion, learned Counsel for the respondent filed a counter affidavit of 14 paragraphs sworn to by the respondent. It is accompanied by one exhibit. Learned Counsel for the respondent placed reliance on all the paragraphs of the counter affidavit especially paragraphs 6, 9, 10 and 12. Learned Counsel stated that the general rule is that a judgment creditor is entitled to the fruits of his judgment.

He cited the case of L.S.D.P.C. v. City Mark (WA) Ltd. (1998) 8 NWLR (Pt. 563) 681. For the court to depart from the general rule it is for the applicants to show special circumstances. Reliance was placed on the L.S.D.P.C.’s case cited (supra). The applicants, he argued, have failed to show such special circumstances in this case. They did not contend that they could not pay the judgment sum or that if they pay it they cannot prosecute the appeal or that same, if paid to the respondent, cannot be retrieved.

Again, learned Counsel urged this court to hold that the contention that exhibits get missing from the lower court is spurious, without even making the registry of the lower court to be a party to the application no facts to back up that allegation. Exhibits C and C1 annexed are strange documents which cannot confirm that exhibits deposited with lower court’s registry get missing. There is nothing wrong with the order that the judgment sum be paid into an interest yielding account in a bank. By producing a bank guarantee, the judgment debtors will keep on holding the judgment sum in their possession.

Learned Counsel referred to Diamond Bank’s case (supra). He urged this court to exercise its powers to order that judgment sum be paid directly to the judgment creditor. Learned Counsel cited and relied on the case of L.S.D.P.C. v. City Bank (W.A) (supra), pages 693 – 696. Finally, learned Counsel argued that the right thing for the applicants was to appeal on that order before seeking for variation.