Lydia Modupe Lawal-osula & Ors V. Chief Saka Lawal Osula & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C. 

The applicants in this case filed an application before this Court praying for the grant of the following orders until the disposal of the substantive appeal now pending in this Court:-

“(i) An order substituting the 1st defendant/appellant who died intestate on 31st May, 1993 with Hajia Morenike Ibrahim Yahaya, Mrs. Iyabo Akai and Mrs. Edugie Agada who together with the 4th defendant/appellant/applicant are her personal representatives and children.

(ii) An order granting an enlargement of time within which to apply for a stay of execution.

(iii) Stay of execution of the orders contained in the judgment of the Court of Appeal. Benin Division delivered on December 11, 1992 pending the determination of the appeal already filed and entered in this Honourable Court.

(iv) An interlocutory injunction restraining the 1st plaintiff/respondent by himself, his servants, agents or privies from taking over, disposing of or otherwise dealing with the real and personal property presently comprised in the estate of the Late Usman Mofeyintioluwa Lawal-Osula pending the determination of the appeal already filed and entered in this Honourable Court.”

Prayer (i) of the application to wit: “an order for substituting the 1st defendant/appellant who died intestate on 31st May, 1993 with Hajia Morenike Ibrahim Yahaya, Mrs. Iyabo Akai and Mrs. Edugie Agada when together with the 4th defendant/appellant/applicant are her personal representatives and children “was granted as it was not opposed .

Prayer (ii) was also voluntarily withdrawn and same was struck out. As regards prayers (iii) and (iv) which were taken together, learned counsel relied on the affidavits and other documents filed in support of his prayers and urged the court to grant them. He cited and relied on Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773 at 778 in support.

Mr. C. Aghoja, learned counsel for the 3rd defendant/respondent submitted that the affidavits and other documents filed by the applicants did not show special circumstances to warrant granting the orders sought in prayers (iii) and (iv). In addition, learned counsel further contended that the applicants have not still complied with the orders of the Court of Appeal issued in relation to the deceased’ s estate in dispute and have, even seven months thereafter, sold one of the properties comprised in the said order of the Court of Appeal. They have also given Estate Agents instruction for the disposal of other properties affected by the same order. He therefore submitted that the applicants are in contempt of the Court of Appeal orders which have not been suspended or vacated and urged this court not to give indulgence to the flouting of a court’s orders. He cited and relied on the following decisions in urging this court not to grant the orders prayed for Hart v. Hart (1990) 4 WBRN 1 at 19; Tewogbade & Sons Ltd. V. Governor of Oyo State (1991) 2 NWLR (Pt. 171) 52 at 59 and Oyeyemi v. Erewole Local Government (1993) 1NWLR (Pt. 270) 462 at 468.

Mr. Evbuomwan, learned counsel for plaintiffs/respondents, after relying on the counter-affidavits he had filed, said he adopted the submissions made by learned counsel for the 3rd plaintiff/respondent and urged the court to refuse the application in terms of prayers (iii) and (iv) thereof. He cited and relied on Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77; Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257 and 258-259; (1988) 2 NSCC 480; Governor of Lagos State v. Ojukwu (1986) 3 NWLR (Pt. 26) 39,

In prayers (iii) and (iv) of the application. the applicants who also are the appellants in this appeal, are asking for a stay of the judgment of the Court of Appeal by an interlocutory order of injunction restraining the respondent, his servants. agents or privies from enforcing the orders of the Court of Appeal contained in its judgment.

The often-quoted statement of law relating to the question of stay of execution made by this court in Vaswani Trading Co. v. Savalakh (supra) provides a clear guiding principle for granting a stay of execution in a case that satisfies the conditions stated therein. In the judgment Coker. J.S.C. stated thus:

“Stay of execution will be granted where failure of it will destroy the subject-matter of the proceeding or foist upon the court especially Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse the exercise by the litigant of his constitutional right of appeal or provide a situation whereby even if the appellant succeeds on appeal there will be no return to the status quo.”

In that case, this court expressly stated as a rule that it will only grant the application when the applicant establishes that there are special circumstances. In this type of application, the evidence to support it is always provided by means of affidavit or affidavits unless it is one of the orders being asked for at the end of the hearing of the case by a successful litigant.