T. S. A. Industries Ltd. V. Kema Investments Ltd (2006)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C.

This is an appeal against the ruling of the Court of Appeal, Lagos Division delivered on 14th May, 2001. The appellant had applied to that court (hereinafter called “the court below”), for a stay of execution of the judgment of the trial court delivered on 4th March, 1999 in suit No. IJ/1902/97. The court below after considering the affidavit in support of the application and that in opposition, granted the application; but conditionally. It is against the said grant/decision that the appellant has appealed to this court on two (2) grounds of appeal which read thus:

“(1) The lower court erred in law when it held that the decision of the Supreme Court in the case of Mohammed v. Olawumni (1993) 4 NWLR (Pt. 287) 254 at 281 is inapplicable herein.

Particulars of Error

“(i) In Mohammed v. Olawunmi (supra), the Supreme Court held that where the High Court proceeds with a case in defiance of an application for stay of proceedings pending in the Court of Appeal, an application to set aside the judgment or to stay execution of the judgment thereby obtained could be made to ensure that the Court of Appeal is not foisted with a fait accompli.

(ii) In the instant case, it is not in dispute that the lower court proceeded with the suit to judgment notwithstanding that it is aware of the application for stay of further proceedings pending before the Court of Appeal.

(2) The lower Court erred in law when it held as follows:

“In the instant case the High Court had dealt with the issue of application for stay of further proceedings and had gone further to deliver final judgment. The applicant did not predicate his application on the ruling of the court below refusing to stay proceedings made by the High Court. The appeal pending before this court i.e. this application is against the final judgment delivered by the lower court on 4-3-99″.

Particulars of Error

(i) The appeal on the basis of which the application in the lower court was made is the appeal instituted by a notice of appeal date 15th October, 1998, which is an appeal against the ruling delivered on 28th September, 1998;

(ii) In proceeding to judgment in defiance of the application to stay proceedings pending the said appeal, the High Court has effectively rendered the outcome of the said appeal nugatory.

(iii) The appeal against the judgment delivered on 4th of March, 1999, is only relevant as evidence of the defiance of the said trial court;

(iv) The Court of Appeal in the circumstances ought to have stayed the execution of the judgment unconditionally to ensure that the appeal before it is not rendered nugatory”.

The facts of the case leading to this appeal briefly stated, are that the plaintiff/respondents let/leased the property/premises (5) warehouses and office to the respondent/appellant, and factory for an initial term of 4 1/2 (four and half) years with an option to renew the same. The appellant at the commencement of the tenancy, paid for a period of 2 1/2 (two and half) years and never paid any rent even at the expiration of the said initial term of 4 1/2 (four and half) years. So, the option to renew the same, could not arise. The respondent caused statutory notices to be issued and served on the appellant to quit and pay the accrued rent. When the appellant would not react/comply the respondent was obliged to institute the action at the trail court claiming for possession and mense profit or alternatively damages for use and occupation at the rate of N4,660.800 from 1st of July, 1995 until possession is given up plus interest. After entering appearance, the appellant filed a statement of defence wherein it counter-claimed and sought for (2) two declarations.