Mr. Anthony Anieaseba Ette -VS- SEPTAGUS CONSULTING NIG LTD & ORS

IN THENATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO

22^ND DAY OF January, 2024

SUIT NO. NICN/CA/04/2020

BETWEEN:

Mr. Anthony Aniesebe Ette ……………………………………... claimant/respondent/applicant

AND

1. Septagus Consulting Nigeria Ltd. ………………..…………….. defendant/respondent

2. Keystone Bank Limited ………………………………. Defendant/applicant/respondent

RULING

1. This deals with three applications two filed by the 2^nd defendant and the other filed by the claimant. In this ruling the 2^nd defendant will be referred to as the 2^nd defendant/applicant/respondent. While the claimant will be referred to as the claimant/respondent/applicant.

2. The first application is a motion on notice dated 4/10/2022 and filed on the 5/10/2022. The motion on notice was brought pursuant to Order 7 Rule 1(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the court.

3. In the motion on notice the 2^nd defendant/applicant/respondent is praying for an order of this Honourable court staying the execution or enforcement, by any means, process or procedure whatsoever and howsoever of the judgment in suit no. NICN/CA/04/2020 delivered by His Lordship, Sanusi J, dated 28/7/2022, pending the hearing and determination of the 2^nd defendant/applicant/respondent’s appeal to the court of appeal, Calabar.

4. The grounds for the application are:-

a. That the claimant is likely to take steps that will foist a state of fait accompli on the court of appeal if execution/enforcement is not stayed.

b. That the execution is desirous of prosecuting its appeal and there is need to stay execution/enforcement of the judgment so as to allow the applicant the opportunity and liberty to pursue the appeal.

c. That there are serious issues and questions to be determined at the appeal.

d. That the stay of execution/enforcement is necessary to await the outcome of the decision of the court of appeal.

5. The application is supported by a 19 paragraphs affidavit, sworn to by one Imeobong Okon, a litigation secretary with Zenith Law Firm appearing for the 2^nd defendant/applicant/respondent. In the affidavit in support it was stated that on 28/7/2022, this court delivered judgment and immediately the applicant’s solicitor applied for CTC of the judgment which was obtained on 5/8/2022. A copy of the judgment was attached as exhibit A. the applicant being aggrieved and dissatisfied with the judgment, the applicant decided to appeal against the judgment. The legal officer in the applicant’s legal department who was at the time charged with responsibility for this case, and who has since left the employment of the applicant, did not carry through with the decision and did not in fact instruct our firm of the applicant’s decision to appeal. It was only when the firm was doing routine audit of cases that the case was spotted that the case was not closed out. The applicant’s legal department was contacted to find out what decision the applicant had reached on the matter. It was only then that did the applicant realise that its instruction to appeal and apply for stay had not been conveyed to our firm. By the time the decision was conveyed to the firm most of the solicitors including the senior partner who was to lead in the appeal, were not available on account of a combination of their having gone on long-scheduled vacations, illnesses and other critical family commitments.

6. The applicant has filed motion at the court of appeal for leave to appeal together with the proposed notice of appeal. A notice of appeal was also filed at the registry of this court. See exhibits B and C. The deponent of this affidavit believes that the notice of appeal contains cogent and competent grounds for appeal. The applicant is anxious, willing and determined to pursue the appeal to its logical end and is willing and anxious to settle record of appeal with the registry of this court and to pay for compilation, production and transmission of same to the court of appeal, Calabar. There are serious issues and questions to be determined at the appeal. The applicant believes there is a recondite issue to be settled. The applicant will suffer, if this application is not granted. It is in the interest of justice to grant the application.

7. In the written address in support of the motion for stay, a single issue was formulated for determination, to wit:-

Whether in the circumstances of this application this Honourable court ought to grant the relief sought by the applicant.

8. Counsel answers the issue for determination in the affirmative. It is submitted that an application for stay is an invocation of the equitable discretionary power of the court, and the discretion of the court is to be exercised judicially and judiciously, and on the merits of each individual case. The principles guiding the stay of execution or enforcement are, generally speaking, similar to those for stay of proceedings or the grant of interlocutory injunction.

9. Counsel argued with particular reference to stay of execution, the threshold principle in applying for stay of execution of judgment is for the applicant to show special or exceptional circumstances why the order should be made because the court will not make a practice of depriving a ‘’successful litigant’’ of the fruits of his success. In support of this submission counsel relied on the case of Josien Holding Ltd V Lornamed Ltd (1995) 1 NWLR (Pt.371) 254 @ 266, paras C-D.

10. It is also submitted that the applicant is not required to show that the appeal will succeed, he is only obliged to show that there is a substantial question raised in the appeal and that the circumstances are such as required that execution of the judgment be stayed. In support of this contention reliance was placed on the case of Integration Nigeria Ltd V Zamfon Nig. Ltd (2014) 4 NWLR (Pt.1398) 479 @ 490 paras D-H, Odedeyi V Odedeyi (2000) 3 NWLR (Pt.650) 655 @ 659 – 660, paras H-A.

11. Counsel also refers to the case of Vaswani Trading Co. V Savalakh & Co. (1972) 12 SC 77 (1972) NSCC (Vol.7) page 692, where it was held that special circumstances to justify the stay of execution of a judgment would involve the consideration of some collateral circumstances and in some cases inherent matters which may, unless the order of stay is granted, destroy the subject matter of the proceedings and foist upon the court, especially the appellate court, a situation of complete helplessness, or paralyse, one way or the other, the exercise by the litigant of his constitutional right of appeal.

12. Counsel submitted in Ndaba Nigeria Limited V Union Bank of Nigeria Plc (2007) 9 NWLR (Pt.1040) 439 2 466, paras E-G, special circumstances have been held to include:-

a. Where the subject matter of the dispute will be destroyed if the injunction is not granted.

b. Where a situation of complete helplessness will be foisted on the court especially the court of appeal.

c. Where execution will paralyse in one way or the other the exercise of litigants constitutional right of appeal.

d. Where the order of the court will be rendered nugatory.

e. Where the execution would provide generally a situation in which whatever happens to the case and in particular even if the appeal succeeds in the court of appeal there would be no return to status quo ante.

13. Counsel submitted the pivotal question at this state, is whether the applicant has shown that there exists special and exceptional circumstances to warrant the grant of this application. Counsel contended that in the affidavit in support it has been demonstrated that this application qualifies on virtually all the grounds for grant of stay.

14. In the circumstances of this application counsel adopted the averments and grounds of appeal in exhibit B. counsel submitted in those circumstances there should be no attempt to foist a fait acompli by attempting to enforce or execute the judgment before determination of the appeal.

15. Counsel also submitted if judgment is executed and the claimant takes benefit thereof, and the appeal is eventually successful, the applicant would have suffered irreparable damage. Neither the applicant nor the court nor the claimant would be able to undo the damage that would already have been done. Counsel submitted he knows this from bitter experience in other labour matters, and from simple logic and every day human nature and conduct.

16. It is submitted that the applicant’s proposed notice of appeal raises substantial and arguable grounds of appeal. in support of this contention reliance was placed on the case of Josien Holding Ltd V Lornamed Limited (supra), where the Supreme Court per Wali, JSC, held that:-

‘‘Where from the grounds of appeal filed there is likely chance that the appeal might succeed or the grounds of appeal raises substantial point of law, procedural or substantive, the court usually leans in favour of granting the application’’.

17. Counsel submitted this position of the law was affirmed in Ndaba Nigeria Ltd V Union Bank of Nigeria, Plc (supra).

18. According to counsel an objective consideration of the notice of appeal filed by the applicant would show that the appeal cannot by any stretch of the imagination be considered frivolous. Not by any means. Instead, it raises substantial questions that call for a review from the appellate court. Some of these issues have also been highlighted in paragraphs 10 and 11 of the supporting affidavit. according to the 2^nd defendant/applicant/respondent some of the questions relate to the reconditiness of the decision itself, such as consideration that in no other case that we are aware of, has a claimant who was never a staff of a bank, who does not have any letter of employment from the bank, and who clearly had acknowledged someone else as his employer, recover against the bank for the alleged wrongful termination of his employment by that someone else.

19. Counsel submitted that the grounds of appeal raised triable issues that may perhaps one could say ‘will most probably’ tilt in favour of the applicant. However, at this state the court will not consider whether the will succeed but decide whether the grounds are cogent decides the appeal, and not whether the appeal will ultimately succeed. If the judgment is not stayed and the appellate court in favour of the applicant, the applicant will not be able to enjoy the fruit of the appellate judgment and irreparable damage would already have been done. The balance of convenience is in favour of grant of this application.

20. In concluding his submission counsel submitted that in the light of the facts and circumstances of this case, and of materials placed before this Honourable court, and in view of the arguments advanced in favour of this application for stay, and on the strength of the judicial authorities relied upon, it is submitted that the applicant has made out a case warranting the grant of the prayer sought in the motion paper. Furthermore, it is also submitted that interest of justice will be best served if this application is granted.

21. In opposing the notion for stay the claimant/respondent/applicant on 20/3/203, filed a six paragraphs counter affidavit sworn to by Benjamin N. Ekpo, a litigation clerk in the chambers of counsel for the claimant/respondent/applicant.

22. In the counter affidavit it was stated that on 28/7/2022 this court delivered judgment against the applicant and refused to obey the order of the court and the claimant commenced contempt proceeding against the applicant by filing form 48 and form 49 duly served. Instead of respecting the court order the applicant filed this incompetent application for stay of execution. The averments in the affidavit in support are not capable of granting this application. That paragraphs 10 (a-d) and 11 are restating/repeating their statement of defence in the substantive and decided matter at this stage are inconsequential, unnecessary, unhelpful, immaterial and preposterous. Paragraphs 12 and 13 of the affidavit in support does not hold water are spurious as there is no competent grounds of appeal as claimed but merely an exercise to deprive the judgment creditor from reaping the fruit of the judgment of this court. The notice of appeal is gross and abuse of the use of the court process to overreach. There are no reasonable or substantial grounds of appeal that could be seen as recondite which should stall execution of the judgment of this court. The filing of notice of appeal simpliciter and application for stay of execution as done by the judgment debtor/applicant is not a bar against execution of the judgment of this court as the applicant would want the court to believe. The incompetent application for stay of execution and the propose notice of appeal are mischievous, considering the judgment sum and the cost of prosecuting the appeal. It is in gross abuse of use of curt process to override the cause of justice. All that, judgment debtor is attempting to do is circumventing contempt proceeding hanging on its neck by filing incompetent application while ignoring contempt proceeding before the court.

23. It was also stated that in garnishee proceedings against 1^st defendant, the 2^nd defendant/applicant/respondent as garnishee filed affidavit to show cause wherein it admitted having N2,318,921.39 and sought to be discharged from the proceeding. See exhibit AF. It is curious on face of exhibit AF that the 2^nd defendant/applicant/respondent and Garnishee in suit no NICN/CA/41M/2022, to now be pursuing appeal in a matter it had prayed the court to be discharged going by the affidavit to show cause. Granting of incompetent application for stay of execution will severely prejudiced the claimant/respondent/applicant.

24. In oral adumbration before the court Albert Ben, Esq; counsel for the claimant/respondent/applicant relied on the depositions in the counter affidavit filed in opposition to the application for stay of execution. Counsel also adopted the written address filed along with the four paragraphed counter affidavit as his argument in opposing the application for stay.

25. In the written address counsel contended that the application for stay was filed in order to circumvent contempt proceeding against the 2^nd defendant/applicant/respondent which was commenced by filing form 48 on 28/9/2022 and served on the 2^nd defendant/applicant/respondent. It is in attempt to circumvent the contempt preceding that an incompetent notice and grounds of appeal and application for stay of execution were filed. The incompetent processes were said to have been filed on 4^th and 5^th October, 2022, 7 days after service of contempt processes. Counsel submitted the court process is ab intio incompetent and does not exist at all in law. On this submission counsel relied on the case of NNB Plc V DENCLAG Ltd (2005) 4 NWLR (Pt.916) 549.

26. Counsel insisted that the application for stay of execution filed after the commencement of contempt proceeding against the 2^nd defendant/applicant/respondent is incompetent and the court lacks the requisite jurisdiction to entertain it, as it amount to abuse of court process. It is also submitted that the same 2^nd defendant/applicant/respondent had in an affidavit filed to show cause, had urged the court to discharge it. See exhibit AF. According to counsel it is full hardy in the face of this for the 2^nd defendant/applicant/respondent herein to feign pursuing appeal in this matter. Counsel argued it is an abuse of court process to overreach. Counsel also submitted that this court has power to prevent abuse of court process aiming at unjust overreaching a party as was decided by the Supreme Court in the case of Saint Roland V Osinloye (1997) 4 SCNJ 217.

27. It is also submitted that the conduct of the 2^nd defendant/applicant/respondent no doubt amounts to a gross abuse of court process employed to hurt, irritate, overreach and gain undue advantage over the claimant/respondent/applicant which the court must deprecate. N support of this submission counsel relied on the case of Estate of Humphrey Idrist V Ecodirl Nigeria Ltd (2016) All FWLR (pt.850) 1016 @ 1036-1037.

28. Counsel also submitted that granting this incompetent application in the light of the pendency of contempt proceeding which the 2^nd defendant/applicant/respondent has ignored and rather decided to pursue a stay of execution of judgment delivered about a year ago is a vice that this Honourable court should not condone as the claimant/respondent/applicant (judgment creditor) will seriously be further prejudiced.

29. Counsel urged the court to dismiss the application with substantial costs.

30. The second application is a motion on notice dated 16/5/2023 and filed on 30/5/2023. The motion on notice was brought pursuant to Order 57 Rule 4(1) & (2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the inherent jurisdiction of the court. The motion on notice is praying for:

1. An order of this honourable court extending the time within which the judgment creditor may file his counter affidavit in respect of the motion on notice filed by the 2^nd defendant /applicant/respondent for stay of execution in this matter as the time which the claimant/respondent/applicant could ordinarily file his counter affidavit had elapsed not on the fault of the claimant/respondent/applicant but due to the unforeseen circumstances of counsel which has to do with his health condition.

2. An order deeming the said counter affidavit already filed and served as having been properly filed and served, the appropriate fees having been paid.

3. And for such further order(s) as this Honouable court may deem fit to make in the circumstances.

31. The ground upon which this application is brought is that time allowed for filing counter affidavit had elapsed occasioned by ill-health of counsel.

32. The application is supported by a 9 paragraphed affidavit in support sworn to by one Mr. Benjamin N. Ekpo, a litigation clerk in the firm of Albert Ben & Co. counsel representing the claimant/respondent/applicant.

33. The deposition in the affidavit in support are to the effect that by the time the 2^nd defendant/applicant/respondent’s motion on notice for stay of execution was served, counsel was indisposed due to ill-health. By the time counsel resumed and become aware of the motion and then responded to same by filing a counter affidavit, time for filing counter affidavit had elapsed. The 2^nd defendant/applicant/respondent will not be prejudiced by the grant of this application. It is in the interest of justice to grant the application.

34. In the written address filed along with the motion on notice a single issue was formulated for determination to wit:

Whether this Honourable court in the circumstances stated in the face of the motion paper and affidavit in support of the motion on notice has the jurisdiction to grant this application.

35. In arguing the sole issue Albert Ben, Esq; counsel for the claimant/respondent/applicant submitted that as at the time the counter affidavit was filed it was out of time due to ill-health of counsel. The non-filing of the counter affidavit in time was not deliberate, hence this application to regularise the counter affidavit already filed and served. Counsel submitted that it is in the interest of justice to grant the application since the pivotal consideration of the court is the dispensation of substantial justice through determination of the matter on their merit. In support of this submission counsel relied on the case of Williams V Hope Rising Voluntary Funds Society (1982) 13 NSCC 36.

36. Counsel urged the court to grant the application.

37. The third application is a motion on notice brought pursuant to order 57 rule 4 (1 & (2) and order 17 rule 1 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and under the inherent jurisdiction of the court. the motion on notice is praying for:

1. An order extending the time within which the 2^nd defendant/applicant may file and serve its reply on points of law in response to the motion on notice for extension of time filed by the claimant on 30^th May, 2023.

2. An order deeming the 2^nd defendant/applicant/respondent’s reply on points of law in response to the motion for extension of time filed by the claimant on 30^th May, 2023 as proper, the appropriate fees having been paid.

3. And for such further order or other orders as this Honourabe court may deem fit to make in the circumstances.

38. The application is supported by a 4 paragraphed affidavit sworn to by one Imeobong Okon, a Litigation Secretary in the Zenith Law firm, representing the 2^nd defendant/applicant/respondent, wherein he stated that the 2^nd defendant/applicant/respondent on 5/10/2022 filed motion for stay of execution. In opposition to the motion for stay on 23/3/2023, the claimant/respondent/applicant filed a counter affidavit outside the 7 days allowed by the rules of this court without a motion to regularise which was then later filed on 30/5/2023 after the 2^nd defendant/applicant/respondent had been heard by this court on the 15/5/2023. The reply on point of law could not be filed within 7 days allowed by the rules of this court due to heavy load of work.

39. Counsel for the 2^nd defendant/applicant/respondent relied on the affidavit in support of this application and adopted the written address filed along with the application as his argument.

40. In the written address a single issue was formulated for determination, to wit:

Whether, in the circumstances of this case, this application ought to be granted.

41. In arguing the sole issue counsel submitted that this court has the power to grant this application and the length of the duration of the delay in bringing this application is immaterial provided there are good reasons to justify it as revealed in the affidavit in support. On this counsel relied on the case of Ikenta Best (Nig.) Ltd V AG Rivers State (2-008) 2 SCNJ 152.

42. Counsel also refers to order 57 rule 4 of the rules of this court and the reasons given in the affidavit in support and submitted that it will serve interest of justice to grant this application.

43. Counsel continued his submission that where prescription of law is mandatory even if only on a procedural level, a court in its quest to do justice ought generally to be imbued with the dictates of reason and nature of the particular case to seek to accommodate a party that appears to have run foul of the dictates of a procedural law. To support this submission counsel relied on the case of Broad Bank Nig. Ltd V Alh. S. Olayiwola & Sons Ltd (2005) 3 NWLR (Pt.912) 444. According to counsel granting this application will enable the court heard the position concerning the motion of 30/5/2023. Counsel urged the court to grant the application.

COURT’S DECISION:

44. I have carefully considered the three applications as well as the written and oral submission of counsel in respect thereof.

45. I shall consider the second and third motions together, this is because they are similar and deal with same issue i.e. extension of time.

46. The second motion which was filed on 30/5/2023 by the claimant/respondent/applicant is praying for extension of time to file counter affidavit to motion for stay of execution and deeming the counter affidavit already filed before the court as properly filed and served. The reason given for the delay in not filing counter affidavit was ill-health of counsel.

47. The 2^nd defendant/applicant/respondent did not file any counter affidavit in opposition to the motion for extension of time. However, a reply on points of law was filed on 27/6/2023 in opposition to the motion for extension of time to file counter affidavit out of time.

48. In the reply on points of law an attempt was made by counsel to state facts which ought to have been stated in an affidavit.

49. The counsel for the 2^nd defendant/applicant/respondent had stated in the written reply on points of law that the application for extension of time to file counter affidavit by the claimant/respondent/applicant is a ploy to arrest ruling of the court. Because according to counsel argument on the motion for stay has been taken and the matter adjourned to 23/6/2023 for ruling.

50. The motion on notice filed by the 2^nd defendant/applicant/respondent dated 21/6/2023 filed on 27/6/203, is praying for extension of time for the 2^nd defendant/applicant/respondent to file reply on point of law to the claimant/respondent/applicant’s motion on notice filed on 30/5/203 praying for extension of time to file counter affidavit to motion for stay of execution and deeming the said counter affidavit as properly filed and served.

51. I have in this ruling captured argument of counsel for and against grant of the two motions. The two applications are calling for exercise of discretionary power of the court which by law must be exercised judicially and judiciously. The reasons given for the delay in not filing the reply on points of law is heavy work load.

52. In order to have a clear picture of what transpired in court; it is pertinent to consider the record of the court.

53. A careful perusal of the record of proceedings of this court on 15/5/2023, will show that Goldie Ekasah, Esq; counsel for the 2^nd defendant/applicant/respondent informed the court of his motion on notice dated 4/10/2022 and filed on 5/10/2022, praying for staying of execution of the judgment of this court delivered on 28/7/2022, pending the hearing and determination of appeal pending before the court of appeal. Counsel relied on the 19 paragraphs affidavit in support of the motion and adopted the written address filed along with it as his argument. He also urged the court to grant the application.

54. In response Albert Ben, Esq; counsel for the claimant/respondent/applicant, submitted before the court that the application for stay of execution is incompetent, because the application was filed after the claimant/respondent/applicant had commenced contempt proceedings against the 2^nd defendant/applicant/respondent. Counsel further informed the court that they have filed 6 paragraphs counter affidavit wherein the notice of consequence of disobedience of order of court and to show cause were all served on the 2^nd defendant/applicant/respondent. The two notices were attached as exhibits AE and AF, respectively. Counsel then urged the court to dismiss the application for stay for being incompetent and an abuse of process of court.

55. At this juncture Yinka Gbadamosi, Esq; counsel for the 1^st defendant intimated the court of his motion on notice dated 13/2/2023 and filed on 16/3/2023, praying for stay of execution of the judgment of this court. Thereafter, the case was adjourned to 23/6/2023 for continuation of hearing of pending motion before the court.

56. From the record of proceedings of the court of what transpired in court on 15/5/2023, it clearly shows that the motion on notice for stay of execution had been argued. However, due to a pending motion by the 1^st defendant praying for stay of execution, the case was adjourned to 23/6/2023 for continuation of hearing.

57. On 23/6/2023, this court did not sit. The matter then came up on 30/5/2023, wherein the claimant/respondent/applicant filed motion on notice for extension of time to file counter affidavit out of time, which had already been relied on by counsel at the sitting of the court on 15/5/2023 in response to the motion for stay of execution which had also been moved.

58. Again, on 10/10/2023, when this matter came up before the court, Mr. Albert Ben, counsel for the claimant/respondent/applicant moved his motion papers filed on 30/5/2023. The case was then adjourned to 22/11/2024, for continuation of hearing.

59. From the above scenario the question that need resolution is, can a court grant application for extension of time to file out of time a counter affidavit that had already been used in arguing in opposition by a party in the case and a reply in opposition of motion that had been moved.

60. On 22/11/2023, when this matter came up before the court for continuation of hearing Mr. Albert Ben, counsel for the claimant/respondent/applicant again re-argued and moved his motion on notice filed on 30/5/2023 for extension of time to file counter affidavit which he had already relied on in opposition to the motion for stay of execution argued on 15/5/2023.

61. Mr. I. G. Akiki, counsel for the 2^nd defendant/applicant/respondent holding brief of Goldie Ekasah, Esq; objected to the motion for extension of time based on his reply on points of law filed on 27/6/2023. He also move his motion for extension of time to file the reply out of time and deeming same as properly filed and served.

62. The counsel for the claimant/respondent/applicant did not file counter affidavit to the 2^nd defendant/applicant/respondent’s motion on notice for extension of time to file reply on points of law in opposition to the motion for extension of time to file counter affidavit to motion for stay of execution. Counsel submitted that what is good for the goose is good for gander. Counsel urged the court to grant his application and discountenanced the objection.

63. Mr. I. G. Akiki, also re-argued the motion for stay of execution which had been argued by Mr. Ekasah, on 15/5/2023.

64. In opposing the application for stay of execution, Mr. Albert Ben, relied on the 6 paragraphs counter affidavit filed on the 20/3/2023 and adopted the written address filed along with the counter affidavit. Counsel insisted no appeal had been entered before the court of appeal.

65. I decided to extensively consider the record of the court so as to get out of the quagmire in which the parties found themselves in regarding their attempt to regularise their position before the court after argument had been taken.

66. As pointed out earlier the two applications for extension of time are calling for exercise of discretion which has to be judicially and judiciously exercised based on the facts and circumstances of each of the application under consideration.

67. For the counsel for the 2^nd defendant/applicant/respondent the failure to file reply on points of law in opposition to the claimant/respondent/applicant’s motion of 30/5/2023 was due to heavy work load on counsel. I note that there is no counter affidavit filed to contradict the depositions in the affidavit in support of the motion for extension of time to file reply on point of law out of time. This means there are no contrary facts to the facts deposed to in the affidavit in support of the motion for extension of time out of time.

68. On the motion on notice by the claimant/respondent/applicant for extension of time to file counter affidavit out of time, the reason given for the delay is ill-health of counsel handling the case. The 2^nd defendant objected to the grant of this application as according to counsel the application was meant to stall ruling that the court has adjourned to deliver. The application is meant to arrest ruling slated for 23/6/2023.

69. I have studied the record of proceedings of 15/5/2023, there is nowhere the court adjourned the case for ruling. The record of the court shows that the matter was adjourned for continuation of hearing of pending motion before the court. This means that the objection is based on misconception of what transpired in court on 15/5/2023. The objection failed and same is hereby refused.

70. It is clear to me from the record of the court the two applications under consideration have all been overtaken by event in that the counter affidavit which the claimant/respondent/applicant was the court to grant extension of time to file out of time had been utilised by counsel in response to the motion for stay this means there is no counter before the that had not been relied by counsel this goes to show that the application is an afterthought it cannot be grated. Likewise, the motion for extension of time to file reply on points of law to object to motion of 30/5/2023 has equally been overtaken by event in that the motion had been moved.

71. From all I have been saying above the two applications failed. They are accordingly refused and dismissed.

72. I now turn to the motion on notice for stay of execution of the judgment of this court delivered on 28/7/2022.

73. It is clear what this court is to determine in respect of the application for stay of execution is whether the applicant has made out a case to be entitled to grant of an order staying execution of the judgment of this court delivered on 28/7/2023.

74. The application for stay of execution was anchored based on the serious, issues and questions to be determined at the appeal. it was also asserted that if stay of execution is not granted, the applicant will suffer loss and the appeal will be worthless if at the end, the appeal is decided in favour of the applicant. It was also argued that interest of justice demand granting of stay as the claimant/respondent/applicant will not be prejudiced by grant of this application. The 2^nd defendant/applicant/respondent also expressed fear that if the judgment sum is paid and the appeal succeeds there is no means of recovering the judgment sum from the claimant/respondent/applicant.

75. For the claimant/respondent/applicant, it was contended that the 2^nd defendant/applicant/respondent refused to obey judgment of the court and that the application is a ploy to thwart the contempt proceeding commenced by the claimant/respondent/applicant against the 2^nd defendant/applicant/respondent through filing of form 48 exhibit AE, which had been served on the 2^nd defendant/applicant/respondent. There are also no competent grounds of appeal as it is only attempt to deprive claimant/respondent/applicant from reaping fruit of the judgment of this court. The notice and grounds of appeal are in gross abuse of court process. There are no recondite issues to be determined at the appeal. It is also stated that filing of notice and grounds of appeal simpliciter is not a bar against execution of judgment. The applicant had in garnishee proceeding for enforcement of the judgment of the court had filed affidavit to show cause and pray for discharge from the proceeding.

76. It has been variously held by the courts that it is a fundamental principle in the administration of justice that a successful party or litigant must not be deprived or denied the reaping of the fruit of his judgment at the instance of an unsuccessful party. For a court to order a stay of execution which amount to denying a successful party, even temporary of the fruits of his judgment, the applicant seeking for the order of stay of execution, must show that there exists special or exceptional circumstances.

77. It is as well settled law that every judgment takes effect on pronouncement. See BANK OF WEST AFRICA V NIPC LTD 1962 LLR 31, OLAYINKA V OLUSANMI 1971 1 NMLR 277. And an applicant seeking to stay execution of judgment of court must show that he has challenged the judgement by way of appeal against which he is seeking for its stay of execution.

78. The granting of a stay of execution is a matter of exercise of discretionary power of the court. See VASWANI TRADING CO LTD V SAVALAKH AND CO (supra), the discretion must however, be exercised judicially and judiciously. The court must be guided by the well-established guiding principles for the exercise of the discretion. In order to obtain an order for stay of execution of a judgment against a successful party, an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the court. See BALOGUN V BALOGUN (1969) 1 ALL NLR 349. The court is enjoined not to deprive successful party of fruit of his judgment unless under very special circumstances. See VASWANI v SAVALAKH (supra), such circumstances involved a consideration of some collateral ones and in some cases inherent matters which may, unless the order is granted destroy the subject matter of the proceedings or foist the court, especially the Court of Appeal situation of complete helplessness or render nugatory any order or orders of the court of appeal paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happened to the case, and in particular even if the appellant succeeds at the Court of Appeal there will be no return to the status quo.

79. Other consideration include nature of subject matter in dispute whether maintaining the status quo until final determination of the appeal in the case will meet justice of the case, whether if appeal succeed applicant will not be able to reap the benefit of the judgment on appeal, if judgment involved money whether there is possibility of recovering back the money, and poverty is not a ground for granting stay of execution except where the effect will be to deprive the appellant the means of prosecuting his appeal. See NWABUZE V NWOSU 1988 4 NWLR 257.

80. Applying the aforementioned principles of law to the case at hand, it is clear from the judgment that the order made by the court which the applicant want stay is monetary in nature. It can be deduced from the averments in the affidavit in support the major apprehension expressed by the 2^nd defendant/applicant/respondent is inability to recover the judgment sum if it succeeds on appeal.

81. Taking into consideration the need for preservation of the res subject matter of dispute is considered to be a special circumstance, I am of the view that interest of justice and the competing rights of the parties in this suit demands that this application should be granted conditionally. I therefore grant stay of execution of the judgment of 28/7/2022, pending the hearing and determination of the appeal before the court of appeal on the condition that:-

1. The 2^nd defendant/applicant/respondent shall within 21 days from the date of this ruling pay the judgment sums as contained in paragraph 238 sub-paragraphs v, vi, vii and viii of the judgment delivered on 28/7/2022, to the Chief Registrar of this Court, who shall in turn lodge the said money into an interest yielding account with a refutable Bank.

2. At the end of the appeal the successful party shall claim the money with the accrued interest.

3. Evidence of payment of the judgment sums to the Chief Registrar as ordered above shall be lodged with the Registrar of this court.

82. Ruling is entered accordingly.

Sanusi Kado,

Judge.

Albert Ben, Esq; for the claimant/respondent/applicant

U. O. Essien, Esq; for the 1^st defendant holding brief of Yinka Gbadamosi, Esq;

I. G. Akiki, Esq; for the 2^nd defendant/applicant/respondent, holding brief of Goldie Ekasah, Esq;