Sir Denis Ofordeme V. Engr. Chukwuma Onyegbuna (2005)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

In the suit No. E/702/2003, the plaintiff, now judgment creditor/respondent in this application instituted an action on the undefended list claiming the sum of $10,000 dollars or N 1, 350,000 from the defendant – now judgment debtor/applicant, which the latter failed to pay to the former’s foreign suppliers in China-Maxwell China Limited and 25% interest per annum until the sum is recovered. The trial court gave judgment in favour of the plaintiff/respondent on 16/2/04. The applicant before this court filed a motion before the trial court on 22/4/04 praying the court for an order staying execution of the judgment of the court pending the determination of the appeal filed by the applicant. In a considered ruling delivered on the 16/6/04 the lower court refused to grant the application for stay of execution of the judgment.

By virtue of Order 3 rule 3(3) of the Court of Appeal Rules, 2002 the applicant, filed a motion before this court on the 23/6/04 as defendant/judgment debtor prayed this court to stay execution of the judgment delivered on 16/2/04 pending the determination of the appeal already filed by him. He filed an application to amend the original grounds of appeal filed by him on 16/3/05 and this was granted by this court on the 9/5/05. The applicant filed a 22-paragraph affidavit in support of his application for stay of execution to which he annexed three documents as exhs. AUC-AUC2. The respondent reacted to this application by filing a 12-paragraph affidavit with two documents attached as exhibits A and B. Both parties filed written addresses – the applicant on 13/5/05 and the respondent on 19/5/05.

The crux of the argument of the applicant in respect of the application for stay of execution of the judgment delivered by the trial court on 16/2/04, is that he has appealed against the said judgment, while his grounds of appeal are substantial, cogent and arguable as they border on the illegality and unenforceability of the action. This touches upon the jurisdiction of the court to hear and determine the matter. The cause of action was ab initio founded upon an illegality, which contravenes sections 1, 2 and 3 of Part 1 of the Money Laundering Act M18, Laws of the Federation of Nigeria, Vol. 9, No. 3 of 1995. The respondent failed to comply with the requirements of section 3(1)(a), (b) and (c) of the Money Laundering Act, 1995 which regulates over the counter-exchange transactions. The learned trial Judge adopted the wrong procedure in the application of the Law for undefended list suit. On the claim of N800, 000 set up by the defendant, the matter should have been transferred to the general cause list.

What is special circumstance in an application for stay is not exhaustive. Facts and conditions do vary from case to case. In the instant case, the res is the monetary sum of N800, 000 set off against the respondent’s claim for $10.000. This court is urged to grant this application as its refusal would destroy the subject-matter of the appeal, foist upon the Court of Appeal a situation of complete helplessness and render nugatory any order made by this court after hearing and determination of this appeal. If the application for stay is granted – status quo would be preserved and this would provide him the means to prosecute the appeal as the applicant has every chance of success in the appeal. The applicant is of the opinion that the respondent would not suffer any hardship by granting the application. The respondent failed to give undertaking to pay damage in the event of the success of the appeal.

The respondent in his reply gave a background of the transaction between them as backed up by exh. A, which is the agreement between the parties. The applicant defaulted in the transaction by remitting only $80,000 dollars out of the $90,000 paid for and refused to return the said $10,000 dollars or the N1, 350,000 equivalents to the respondent with a 25% per annum interest rate. There is nothing illegal on the face of the agreement, exh. A. The relevant law on which the applicant relies to prove illegality of the transaction specified on exh. A shall be determined on appeal. The Foreign Exchange Monitoring and Miscellaneous Provisions Act No. 17 of 1995 which currently governs foreign exchange transactions in Nigeria makes the type of agreement and transactions entered into by the parties legal and proper. The appeal supposed to be filed by the applicant is only at the stage of filing notice and grounds of appeal. Records are yet to be settled and compiled for onward transmission to the Court of Appeal. Any applicant who wishes to deprive a successful litigant from reaping the fruits of the judgment must show special or exceptional circumstance which the court can take into account. The applicant has no facts disclosed in support of his application which can qualify as special circumstance. The subject matter of the appeal here is the return of the money paid to the applicant based on an agreement and even a valid and subsisting judgment of court. The status quo being asked by the applicant to be preserved is holding over the respondent’s money unlawfully.

The respondent substantiated the fact that he is a man of means by disclosing his business strength and source of income. He guaranteed the repayment of the judgment debt even without demand of the sum should the applicant succeed on appeal. The respondent cited the case of Okafor v. Nnaife (2002) 12 NSCQR pg. 511 or (1987) 9-10 SCNJ 63; (1987) 4 NWLR (Pt. 64) 129, while this court is urged to refuse the application as the applicant has not established any special reason to disturb the order of the trial court made on 16/6/04.

This court has painstakingly considered the arguments and submission of the applicant and the respondent in this application.

By virtue of section 18 of the Court of Appeal Act, Cap. 75, Laws of the Federation of Nigeria, 1990, an appeal under the Act shall not operate as a stay of execution. The Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with the rules of court.

Kosofe L.G. v. Demuren (2003) 9 NWLR (Pt.826) 435.

Certain major considerations when an application for stay is in issue are:

1. That a judgment of the trial court remains valid and subsisting until the contrary is proved.
2. That the respondent is entitled to reap the fruit of his judgment for this is the whole essence of litigation.
3. The court in considering an application for stay has a duty to ensure that:-

(1) It does not frustrate its judgment or that of the lower court until a further appeal.

(2) That a successful party reaps the fruit of his successful litigation, as that is the whole essence

of litigation.