Professor V.O.S. Olunloyo V. Adedapo Adeniran (2001)

LAWGLOBAL HUB Lead Judgment Report

KUTIGI, J.S.C.

In a contested suit between the plaintiff and the defendant herein before the Lagos High Court, the plaintiff on 6th February 1998 had judgment entered for him against the defendant thus:

“Judgment is therefore hereby entered for the plaintiff against the defendant in terms of the writ of summons and the statement of claim; that is to say:

(1) For forfeiture of the tenancy of the said premises and the tenancy of the defendant in respect of the said premises, No.34/36, St. Finbarr’s College Road, Akoka, Yaba is hereby forfeited.

(2) For possession of the demised premises, and it is hereby ordered that the defendant shall give up possession of the said premises No.34/36 St. Finbarr’s College Road, Akoka, Yaba and deliver up the same to the plaintiff on OR before the 31st day of March, 1998.

(3) For mesne profits, and it is hereby ordered that the defendant shall pay mesne profits or damages for use and occupation in respect of the said premises, No.34/36 St. Finbarr’s College Road, Akoka, at the rate of (N500,000) five hundred thousand Naira per annum from 1st January 1996 until possession of the said premises is given up.

(4) The defendant shall pay interest on all the sums of money due and payable as mesne profit OR

damages for use and occupation in respect of the said premises at the rate of 6% per cent per annum from 1st of January, 1976 until possession is given up.”

Dissatisfied with the judgment, the defendant filed his notice of appeal to the Court of Appeal, Lagos Division. This was followed up by an application to the trial High Court for unconditional stay of execution of the judgment above. On the 23rd April, 1998, the High Court delivered its considered ruling in which it granted the defendant a conditional stay of execution on the following terms:-

“(1) That the execution of the judgment dated 6th of February, 1998 be and is hereby stayed on the following conditions:-

(a) That the defendant/applicant pays the mesne profits or damages as contained in the judgment, namely, a sum of N500,000 per annum from 1st of January, 1996 to 31st of December, 1998 making a total sum of (N1.5m) one million, five hundred thousand Naira, within 21 days from today; 2nd of April, 1998.

(b) If the appeal is not finalised by 31st December, 1998, the defendant/applicant shall continue to pay a sum of (N500,000) five hundred thousand naira per annum with effect from 1st January 1999 until the appeal is finally disposed of.”

Once more the defendant was not satisfied with the above ruling. He filed a similar application before the Court of Appeal holden in Lagos. The Court of Appeal in its ruling dated the 21st June 1999, unanimously dismissed the application with N2,000.00 costs in favour of the plaintiff.

Aggrieved by the decision of the Court of Appeal the defendant has now appealed to this court.

The parties filed and exchanged briefs of argument as provided by the rules of court. At the hearing of the appeal these briefs were adopted by learned counsel on both sides who also made additional oral submissions.

Mr. Adeniran learned counsel for the defendant has formulated three main issues in his brief as arising for determination while Mr. Morris for the plaintiff also in his brief submitted only one issue for determination.

This being an interlocutory appeal in which case I am not permitted to make any observation which might appear to pre-judge the main issue in the substantive suit, I would prefer the plaintiff’s single issue which is direct and positive to the defendant’s three which border on the main appeal yet to be decided by the Court of Appeal. [see Egbe v. Onogun (1972) 1 All NLR (Pt. 1) 95; Mortune v. Gambo (1979) 3-4 SC 54]

Now the issue reads thus:-

“Whether or not the Court of Appeal applied the correct principles in its ruling by upholding the ruling of the trial court in the exercise of its undoubted judicial discretion in granting the defendant a conditional stay of execution of its judgment instead of an unconditional stay as sought by the defendant/appellant.”

The defendant’s main complaint is that the Court of Appeal did not properly consider the affidavit evidence before it reached its decision to dismiss the application and consequently he has not had a fair trial. He said by granting him unconditional stay of execution as sought and thereby remaining physically on the property, would be of great advantage to the plaintiff since the property will thereby be protected. He said the plaintiff will suffer no prejudice if unconditional stay of execution is granted. A number of cases were cited in support including Mohammed v. Olawunmi (1993) 4 NWLR (Pt. 287) 254; Ojikutu v. Odeh (1954) 14 WACA 640; Doherty & Anor. v. Doherty (1964) NMLR 144. We were urged to allow the appeal.

The plaintiff on the other hand submitted that the defendant had failed to show by his affidavit evidence special or exceptional circumstances why the plaintiff should be deprived the fruits of his judgment in his favour.

That the defendant in this appeal had also failed to show that the Court of Appeal erred in law and or on the facts in its determination of the application before it. He said the defendant neither showed in his affidavit before the Court of Appeal that the plaintiff would be unable to refund the mesne profit of N500,000 per annum nor his own (defendant’s) inability to pay as ordered by the High Court and confirmed by the Court of Appeal. That the Court of Appeal correctly applied the proper principles to the application and rightly dismissed the plaintiff’s application. We were referred to the following cases amongst others:-

Guinea Insurance v. Monarch Holdings (1963) 3 NWLR (Pt.227) 365. R.E.A.N v. Aswani iles Ltd. (1992) 3 NWLR (Pt.227) 1. Okafor v. Nnaife (1987) 4 NWLR (Pt.64) 129.

The court was asked to dismiss the appeal as lacking in merit.

Now, it is settled that a stay of execution will only be granted if and only if, the court is satisfied that there are special or exceptional circumstances to warrant doing so, because the principle of law is that a judgment of a court of law is presumed to be correct and rightly made until the contrary is proved or established. Courts will not therefore make the practice of depriving a successful litigant of the fruits of his success (See for example Martins v. Nicannar Foods Co. Ltd. (1988) 2 NWLR (Pt.74) 75; Shodeinde v. Registered Trustees of the Ahmadiya Movement in Islam (1980) 1-2 SC 163; Vaswani Trading Co. Ltd. v. Savalakh & Ors. (1972) 12 SC 77. A discretion to grant or refuse a stay must therefore take into account the competing rights of the parties see Okafor & Ors v. Nnaife (supra). And where there is a pending appeal as is the situation herein, the special circumstances which have received judicial approval are when execution would:-

(a) destroy the subject matter of the proceedings;

(b) foist upon the court a situation of complete helplessness; or

(c) render nugatory any order or orders of the appeal court;

(d) paralyse in one way or the other, the exercise by the litigant of his constitutional right of appeal; or

(e) provide a situation in which even if the appellant succeeds in his appeal, there could be no return to the status quo.

See generally Vaswani Trading Co. v. Savalakh & Co. (supra) Deduwa v. Okorodudu (1974) 6 SC 21; Kigo (Nigeria) Ltd v. Holman Bros. (Nig.) Ltd. (1980) 5-7 SC 60; Nwabueze v. Nwosu (1988) 4 NWLR (Pt.88) 257.

A litigant applying for a stay of execution must thus show special or exceptional circumstances pleading eloquently the balance of justice weighing in his favour, even though what constitutes special or exceptional circumstance may vary from case to case. See Okafor v. Nnaife (supra).

I have carefully read the record of proceedings in this appeal.

First of all it is instructive to note what the learned trial Judge who first heard the motion for stay had to say thus:-

“However, the judgment creditor does not oppose the application being granted on condition that the judgment/debtor pays the judgment debt and subsequent rents in advance. The judgment is in respect of money and possession. The applicant does not say in the affidavit in support that if the money is paid, the respondent would not be able to refund it, if the applicant should win on appeal.

It is the law that in considering an application for stay of execution, the court must take into consideration the competing rights of the parties to justice. See Okafor v. Nnaife (supra); U.S.N. v. Odusole Bookstore Ltd. (1994) 3 NWLR (pt.331) 129 at 150.

In the circumstances of this case, where the learned counsel for the defendant/applicant sti11believes that the case must last for 22 years. I think the only order that can lead to justice in this case is that of a conditional stay.”

The Court of Appeal in its lead judgment which was read by Aderemi, J.C.A. (and concurred in by the other Justices) also observed as follows:-

“Let me begin by saying that a judgment delivered by a court of competent jurisdiction remains valid until it is set aside. It must also be borne in mind that, generally, the law does not permit a successful litigant to be deprived of the fruits of his litigation and locking up funds to which prima facie, he is entitled. It therefore follows that to obtain a stay of execution of judgment against a successful party an applicant must show special circumstances or substantial reasons to warrant the deprivation of that party of the fruits of his judgment. See Balogun v. Balogun (1969) 1 All NLR 349 The court below in the exercise of its judicial discretion upon being faced with an application for unconditional stay of execution granted a conditional stay of execution in the terms stated above. It is these conditions that the applicant wants removed. What are the reasons adduced by the applicant that will justify the variation of the order of the court below Although the application is supported by a 60 – paragraph affidavit virtually all the paragraphs contain materials which are better employed for the argument of the appeal proper. Only paragraphs 57 and 58 contain materials which, with some strain, can be made use of in this type of application.

I have read these two paragraphs over and again they do not persuade me to upturn the ruling of the court below. As I have said this type of application calls for a great deal of exercise of judicial discretion. I have looked again at the ruling of the court below and I am satisfied that the exercise of its judicial discretion was founded upon the facts and circumstances presented before it. The conclusion it reached in the ruling was governed by law and equity. There is no basis for up turning the ruling.”

I have also read over and over again the ruling of the Court of Appeal. And guided by the principles recited above I am clearly of the view that the court was right in its observations and conclusions. It is to me doubtless that both the trial High Court and the Court of Appeal properly applied the correct principles of law in the exercise of their undoubted judicial discretion in granting a conditional stay of execution in this case. The applicant who wanted a variation of the conditional stay granted to him by the trial court, did not find it worthwhile to suggest any other term or condition. He did not also give reasons why he cannot meet the conditions prescribed as he completely failed or refused to file any affidavit of means.

I find no merit in the appeal. It is therefore hereby dismissed with N 10,000.00 costs against the defendant/appellant in favour of the plaintiff/respondent.

SC.89/1999