Strabag Construction Nigeria Limited & Anor V. Peter Ugwu (2005)
LawGlobal-Hub Lead Judgment Report
MIKA’ILU, J.C.A.
In this matter the applicant, a judgment debtor, has by way of motion on notice applied to this court for the following:
- Staying the execution of the final judgment of the Enugu State High Court in this suit per Honourable Justice I. A. Umezuilike (OFR) delivered on the 28th of October, 2002 in suit No. E/54/47/97 pending the hearing and determination of the appeal in this case.
Or Alternatively
- An order varying the conditions of stay of execution of the judgment of the Enugu State High Court delivered in this suit on the 28th of October, 2002 granted by the lower court on 20th March, 2003 by a stay of the execution of the said judgment on such conditions more favourable and liberal than that imposed by the lower court as this honourable court may deem fit to impose having regard to the circumstances of this case.
- An order varying the conditions of stay of execution of the judgment of the Enugu State High Court delivered in this suit on the 28th October, 2002 granted by the lower court on 20th March, 2003 by a stay of execution of the said judgment on such condition that the applicant should furnish an insurance bond to cover the judgment sum pending the hearing and determination of the appeal in this suit.
- And for such further or other orders as this Honourable Court might deem fit to make in this circumstance.
Written addresses have been filed and exchanged. A preliminary objection has been raised by the respondent. The main reasons as advanced by the respondent’s counsel can be summarized as follows:
(i) This application was filed on 15th July, 2003, more than 14 days from 20th March, 2003 when the order in ruling of the court below, exhibited as exhibit “AFI”, was made.
(ii) The applicant should have applied before the expiration of the period of 14 days from the date of the order of the court below, 20th March, 2003.
(iii) That the applicant should have paid a bank draft of the judgment sum to the registry of the lower court within the 14 days which the applicant has failed to do.
The learned counsel for the respondent has with the above, submitted that the applicant is in wilful disobedience of the lower court’s order and as such this court should refuse the application. He relies upon the following cases: Shugaba v. U.B.N. Plc. (1999) 11 NWLR (Pt.627) 459, (1999) 71 LR CN 2720 at 2740; Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539 at 556; F.A.T.B v. Ezegbu (1992) 9 NWLR (Pt. 264) 132, 145.
The learned counsel has added that as per page 1 of exhibit AFI annexed to the affidavit in support of the preliminary objection, the applicant by its counsel asked for the judgment sum to be paid to the registry of the court below or a bank. The applicant is therefore estopped from asking for another position. That the applicant cannot approbate and reprobate. He has relied upon section 151 of the Evidence Act, Cap. 112 Laws of the Federation, 1990; Agidigbi v. Agidigbi (1992) 2 NWLR (Pt. 221) 98 at 119 and 120; Faponle v. UITHBM (1991) 4 NWLR (Pt. 183) 43 at 54-55.
The learned counsel for the applicant has correctly counter argued that by virtue of section 18 of the Court of Appeal Act, Cap, 75, Laws of Federation of Nigeria 1990 the Court of Appeal can grant an order for stay of execution unconditionally or grant same on more liberal terms than the ones granted by the trial court. That the Court of Appeal can make an order varying terms of earlier order of the trial court.
It is also settled law that a person who is not satisfied with the conditions of stay of execution of a judgment granted him in the lower court can apply to a court of appeal for the variation of that order. However, a careful consideration of F.A.T.B. Ltd. & Anor. v. Ezegbu & Anor. (supra), Shugaba v. U.B.A Plc. (supra) makes it clear that once a court makes orders which are clear and unambiguous, parties are bound by them and have duty to implement them and it does not matter whether the orders are improper or illegal.
A party in disobedience of court is a contemnor and cannot take proceedings in the cause for his own benefit. Courts do not exercise their discretionary powers to aid those who flout their orders. In this case, the order as in exhibit AFI made by the court below should have been complied with by the applicant within the period ordered or he should have taken necessary step in respect of the order before the appellate court. That applicant has not yet complied with the order. Moreso while he was applicant before the court below as per AFI, the proceedings for stay of execution, page 1 shows that the applicant through its counsel consented to the order. The court below therein on page 1 lines 16-19 stated as follows:
“Says he is not opposed to the money being paid into the buwels of the court or to a bank of their choice. As his problem is the ability of the plaintiff/respondent to refund the money.”
On page 2 the court below also stated as follows:
“However, counsel for the defendant/appellant did not oppose the payment of the judgment debt into a third party institution such as the bank or into the court for collection by the victorious party after the appeal. I think this is a fair compromise of the situation.”
It concluded as follows:
“I accept the contention of the defendants/applicants that the judgment (sic) be paid into the court. And I so order. Accordingly, the defendant/applicant is hereby ordered to pay a bank draft of the judgment debt to the Assistant Chief Registrar of Enugu High Court within 14th days from hence.”
The applicant is in disobedience of the said order. It has been undoubtedly made clear in FA.T.B. Ltd. & Anor. v. Ezegbu (supra) that a party in disobedience may be heard in any of the following situations:
(a) Where the party is seeking for leave to appeal against the order in which he is in contempt; or
(b) Where the contemnor intends to show that, because of procedural irregularities in making the order, it ought not to be sustained or
(c) Where the party is challenging the order on the ground of lack of jurisdiction.
(d) Where all that the contemnor is asking is to be heard in respect of matters of defence.
None of the above situations operates in this case. As I have indicated earlier that where a party has refused to implement a court order, the court will not give him audience. As the applicant has refused to implement the court order and moreso having consented to the grant or the order by the court below he is not entitled to be given audience by this court. The preliminary objection is upheld and the application is struck-out.
It is important to note that the court below has already exercised its discretion in staying the execution of its judgment pending determination of the appeal, though on condition. Therefore, even if this application is to be considered on merit the question is whether the applicant has cogent reasons why this court should issue an order varying the conditions of stay of execution of the judgment granted by the lower court. It has been made clear in Odogwu v. Odogwu (supra) that no court has an inherent jurisdiction to set aside the exercise of the discretion of another court except where such exercise;
(a) Was capricious
(b) Was based on extraneous factors or
(c) Did not follow accepted principles.
None of the above is applicable in this case. It has further been clarified in Faponle v. UITHBM that an appellate court will very rarely, if at all, interfere with the exercise of the discretion by a trial court and will refuse to substitute its own once the exercise of the discretion of the trial court is based on accepted principles and not on extraneous issues or facts or the private whims and caprices of the lower court. This is also not the case in this application. In our case, there is nothing in the affidavit in support of the application to show exceptional circumstances to warrant this court to exercise its discretion in favour of the applicant. The facts deposed therein only tell a tale of those indebted to the applicant which does not assist the case of the applicant. The application is dismissed as lacking in merit.
I award the sum of N3,000.00 as costs against the applicant in favour of the respondent.
Other Citations: (2005)LCN/1695(CA)
