Vidah Packaging Ltd & Anor V. Augustine Ikem (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE O. LOKULO-SODIPE, JCA (Delivering the leading Judgment)

The appeal is against the adjournment sine die, by the Hon. Justice J.C. Nwadi (hereafter simply referred to as “the learned trial Judge”) of the High Court of Justice, Anambra State (hereafter simply referred to as “the lower court”) of a motion for stay of execution of judgment made to the court by the Judgment Debt/Respondent (hereafter simply referred to as “the Respondent”).

The relevant facts in relation to the motion, put briefly are that the Judgment Creditors/Appellants (hereafter simply referred to as “the Appellants”) commenced a suit against the Respondent before the lower court presided over by the learned trial Judge. Judgment was delivered in the suit in favour of the Appellants. The judgment, which is monetary in nature, was delivered on 28/2/2007.

On 6/3/2007, the Respondent filed a motion on notice dated the 5/3/2007 before the lower court seeking for an order staying the execution of the judgment of the lower court delivered on 28/2/2007. Both the Appellants and Respondent filed written addresses in respect of the motion.

When the motion came up for hearing, on 30/4/2007, learned counsel for the Respondent informed the lower court that an appeal had been lodged in the case and as such the said motion had been overtaken by events since it had been fixed for hearing on 3/5/2007 before the Court of Appeal. The learned trial Judge after saying that “a copy of the notice of the motion has been shown to the court” thereafter adjourned the motion before it, sine die.

Being dissatisfied, with the adjournment of the motion sine die the Appellants lodged an appeal to this Court by a Notice of Appeal dated 2/5/2007 and filed on the same date. The Notice of Appeal contains two grounds of appeal. The grounds shorn of their respective particulars read thus: –

GROUNDS OF APPEAL

1. GROUND ONE (1) Error in Law: The learned trial judge (sic) erred in law when without affording the Judgment Creditors/Respondents/Appellants an opportunity to be heard he adjourned the motion for stay of execution sine die.
2. GROUND TWO (2) Error in Law: The learned trial judge (sic) erred in law when he did not determine one way or the other the Judgment Debtor’s/Respondent’s motion on notice for stay of execution of the judgment of the court.”

In accordance with the Rules and practice of this Court, the Appellants duly filed and served their Brief of Argument. The Brief which is dated 20/7/2007 and filed on the same date was settled by Onyechi Araka. The Respondent filed a Notice as in Form 10A of the 2007 Rules of this Court to contend that the decision of the lower court dated 30/4/2007 be varied to read “In the circumstances the motion is struck out.” The Notice dated 7/5/2007 and filed on 12/5/2007 but deemed as properly filed and served on 10/11/2010 was filed by Chief Ikenna Egbuna. The appeal was entertained on 11/5/2011 and at the hearing Onyechi Araka learned counsel for the Appellants adopted and relied upon the Appellants’ Brief of Argument as hereinbefore identified in urging the Court to allow the appeal. Chief Ikenna Egbuna learned lead counsel for the Respondent at the hearing of the appeal equally adopted and relied on the Notice hereinbefore identified in urging the Court to dismiss the appeal and enter judgment in line with the said Notice.

The Appellants formulated two Issues for the determination of the appeal in their Brief of Argument. The issues read: –

“1. Whether the trial court was competent when it suo motu gave its 30th day of April 2007 ruling without hearing the parties before reaching a decision.

2. Whether the trial court was right when it failed to dispose of the motion on notice and/or determine the fate of the said motion on 30/4/2007.”

In Form 10A filed by the Respondent, it is contended that the decision of the lower court dated 30/4/2007 be varied as follows:

“COURT: In the circumstances the motion is struck out.”

The grounds the Respondent relies upon in seeking for the variation as stated above are: –

“i) The appeal has already been entered in this court and the Res removed from the court below.