Prof. Dupe Olatunbosun V. Anthony Anenih (2000)
LawGlobal-Hub Lead Judgment Report
AKAAHS, J.C.A.
The defendant/applicant brought this application under Order 3 Rule 4(1) of the Court of Appeal Rules and Section 18 Court of Appeal Act praying for the following reliefs namely:-
(i) Extending the time within which the applicant may apply for stay of execution; and
(ii) Staying the execution of the judgment of Benin High Court delivered on 8/2/96 pending the hearing and determination of the defendant/applicant’s/appellant’s appeal filed on 14/4/97.
The application is supported by a 46 paragraph affidavit sworn to by one Oluseun Abimbola, a legal practitioner in the firm of Akeredolu and Olujimi & Co. to which were annexed three exhibits namely the Writ of Summons in Suit No. 8/505/95 affidavit of service by pasting and a ruling delivered on 17/12/96. The respondent deposed to a 27 paragraph counter-affidavit in opposition and annexed five exhibits marked exhibits “A”- “F”. The applicant in response to the respondent’s counter affidavit deposed to three further and better affidavits with the second and third further affidavits titled “Further Affidavit No 2” and “Further Affidavit No. 3″. The ruling/judgment sought to be stayed was annexed to the Further Affidavit No.3
The Writ of Summons carried the following endorsements:
The plaintiff’s claim against the defendant:
(a) N1,800,000.00 (One Million, Eight Hundred Thousand Naira) being money had and received by the defendant, vide an agreement of 10th November, 1992 for the use of the plaintiff: and
(b) 21% interest per annum on the said N1,800,000.00 from the 26/12/92 until the judgment of this Honourable court…”
The affidavit of service by pasting sworn to by one Gbenga Obesesan, Senior Bailiff of the High Court of Justice Ring Road, Ibadan is dated 7/2/96. The following day, the matter came before Sadoh J. and having satisfied himself that all the processes were duly served as ordered by the court on the defendant entered judgment in favour of the plaintiff in the sum of N1.8 Million against the defendant with interest of 21% on the said sum from 26/12/92 to 8/2/96. Interest of 10% was further awarded until the judgment debt was paid with N3,000 costs against the defendant.
On 14/4/97 the defendant filed a notice of appeal. Two grounds of appeal were filed along with the notice of appeal as follows:-
(1) The learned trial Judge erred in law when he refused to set aside the judgment entered in default against the defendant on 8th February, 1996.
Particulars of Errors of Law:
(i) Since on the materials before the learned trial Judge it was clear that the defendant was not afforded a fair hearing, the judgment in default ought to have been set aside.
(ii) In refusing to set aside the judgment, the learned trial Judge failed to advert his mind to the various fundamental irregularities afflicting the Writ of Summons issued in this case, the service of same as well as the motion for judgment and further and better affidavit of the plaintiff.
(iii) No notice affixing hearing of the motion for judgment for 8th February, 1996 was served on the defendant.
- The learned trial Judge erred in law when he held that the defendant failed to satisfy the conditions for setting aside a default judgment.
Particulars of Errors of Law:
(i) The learned trial Judge failed to give any or adequate consideration to the materials before him in coming to his conclusion.
(ii) The application fulfilled the requirements of the law on setting aside of default judgment and the same ought to have succeeded.
(iii) There was nothing in the conduct of the defendant to justify a refusal of the application….
Arguing the application, Mr. Sobaloju who appeared for the applicant relied on the affidavit in support and the two further affidavits and submitted that stay should not be granted except for exceptional circumstances. He referred to paragraphs 5-15 of the affidavits and also paragraphs 11-14 of the further and better affidavit and argued that the applicant is entitled to a notice of adjournment and if the Notice is not served, whatever judgment is obtained based on the notice is a nullity. He cited Julius Berger (Nig.) Ltd. v. Femi (1993) 5 NWLR (Pt. 295) 612 in support of the contention. He further argued that the judgment is a default judgment and since the applicant’s contention is that the judgment was not given on the merits, this court ought to grant stay and relied on Ccmac Investments Ltd.v. F.F. and Securities Ltd. (1995) 8 NWLR (Pt 411) 113. He therefore urged this court to grant the application in view of the respondent’s request that a conditional stay could be granted provided the money is deposited with the registry of this court and same to be paid into any interest yielding account with a reputable bank. When reminded that a Writ of Fifa has been issued, learned counsel replied that the Writ is yet to be executed.
Mr. Mozia, learned counsel for the respondent in opposing the application relied on the 27 paragraphs counter-affidavit especially paragraphs 25 and 26 thereof and also Exhibits “D” & “E” annexed thereto to submit that, execution has already been levied since 30/6/97. He argued that the application is incompetent as the grounds of appeal are directed not against the judgment itself but the refusal to set aside the judgment. He further contended that the applicant ought to apply to Court first to set aside the execution before asking for a Stay since the Writ had been issued and the property of the judgment debtor attached. He submitted that until the Writ is set aside, the application is a nullity and also that no special circumstance has been shown by the applicant to enable this Court exercise its discretion to grant a stay of execution.
It was decided in Ccmac Investments Limited v. F.F. & Securities Limited (1995) 8 NWLR (Pt. 411) 113 following Balogun v. Balogun (1969) 1. All NLR 349 that in an application for stay of execution pending appeal, existence of substantial issue of law to be decided on appeal is a weighty factor to consider in granting the application. The two grounds of appeal reproduced above have no doubt raised substantial issues of law to be decided in the appeal. I therefore hold the view that the applicant has shown exceptional circumstances in the application to warrant this court to exercise its discretion in his favour. The argument by learned counsel for the respondent that an application to set aside the execution ought to have preceded the one for stay is untenable. The appeal is questioning the basis on which the judgment was given and whether the applicant should be denied a hearing on the merits. Success in the appeal will automatically lead to the judgment delivered on 8/2/96 being set aside and the case remitted to the High Court for hearing. I have given serious consideration to paragraph 11 of the affidavit in support of the application for stay, the hearing notice dated 7/2/96 on which the judgment of 8/2/96 is based and the decision of this court in Julius Berger (Nig.) Ltd. v. Femi (1993) 5 N.W.L.R. (pt. 295) 612 per Achike, J.C.A. (as he then was), and come to the conclusion that this application should be allowed. Accordingly, I grant a stay of execution of judgment of the Benin High Court delivered on 8/2/96 in Suit No. B/505/95 pending the hearing and determination of the applicant/appellant’s appeal filed on 14/4/97. I make no order as to costs.
Other Citations: (2000)LCN/0676(CA)