IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR, PhD

 

DATED: 8^TH DAY OF MAY, 2026                    SUIT NO: NICN/PHC/17/2014

 

BETWEEN

 

OGBOGBO CHIEDU PATRICK ------------------CLAIMANT/RESPONDENT

 

AND

 

UNITED BANK FOR AFRICA PLC. --------------DEFENDANT/APPLICANT

 

 

REPRESENTATIONS:

E.S. Jaja for the Claimant/Respondent.

E. Imegi with N.E. Oji for the Defendant/Applicant.

 

 

RULING

 

This ruling is in respect of an application brought before this Court by the Defendant/Applicant seeking an order staying the execution of the conditional stay of execution earlier granted by this Court on the 30^th day of June, 2025 pending the hearing and determination of a motion filed at the Court of Appeal seeking variation of the said order.

 

The Claimant/Respondent commenced this suit via a General Form of Complaint filed on the 4^th day of February, 2014 wherein he claimed against the Defendant/Applicant the following reliefs:

a.    A declaration that the termination of the Claimant’s employment with the Defendant via a letter of termination dated the 22nd day of January, 2014 is wrongful, illegal and amounts to a breach of the contract of employment between the parties.

 

b.    A declaration that the Defendant’s failure, refusal and neglect to release the findings of its disciplinary committee/investigation report, having concluded investigation/sitting since the 11th day of December, 2013 before terminating the Claimant’s employment on the 22nd day of January, 2014, thereby subjecting the Claimant to inhumane treatment, undue hardship, frustration, pain, inconvenience, untold discomfort, emotional and psychological trauma, is unlawful, inhuman and amounts to unlawful interference with the Claimant’s employment.

 

c.    A declaration that the Claimant is entitled to the sum of ?13,790,000.00 being monies allegedly owed to him by the Defendant in the course of his employment.

 

d.    A declaration that the Claimant is entitled to general damages for wrongful termination of employment, breach of contract, inhuman treatment, hardship, frustration, inconvenience and emotional trauma allegedly occasioned by the Defendant’s acts and omissions.

 

e.    An order directing the Defendant to pay the sum of ?13,790,000.00 allegedly owed to the Claimant.

 

f.    An order awarding the sum of ?75,000,000.00 as general damages against the Defendant.

 

g.    Interest at the rate of 21% per annum from the 31st day of January, 2014 until judgment and thereafter at the rate of 15% per annum until final liquidation of the judgment sum.

 

Upon the determination of the substantive suit, this Court delivered its final judgment on the 13th day of January, 2025 wherein the sum of ?10,250,000.00 was awarded in favour of the Claimant/Respondent as monetary reliefs with a directive that the judgment sum be paid within thirty (30) days, failing which same would attract interest at the rate of 15% per annum until final liquidation.

 

Following the delivery of the judgment, the Defendant/Applicant filed an application seeking a stay of execution of the judgment of this Court. The said application was heard and determined on the 30th day of June, 2025 wherein this Court granted a conditional stay of execution upon the condition that the judgment sum be deposited into an account in the name of the Chief Registrar of this Court.

 

Dissatisfied with the said conditional order, the Defendant/Applicant filed the instant Motion on Notice on the 16th day of July, 2025 pursuant to Order 17 Rules 1(1), (2), (3), (4), (5) and (6), Order 64 Rule 8(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of this Court.

 

The Defendant/Applicant seeks the following relief:

 

1. An Order of this Honourable Court staying the execution of the order of conditional stay of execution granted on the 30th day of June, 2025 pending the hearing and determination of the motion to vary the said order filed at the Court of Appeal on the 11th day of July, 2025.

 

2. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

 

The motion is supported by a 26-paragraphed affidavit deposed to by one Mark Friday and accompanied by a written address.

 

Arising from the written address, learned counsel for the Defendant/Applicant formulated a lone issue for determination as follows

Whether, having regard to the circumstances of this case, affidavit evidence and other materials before this Court, a case for the grant of stay of execution of the order of conditional stay in this suit has been made out by the Defendant/Applicant?

In arguing the lone issue, counsel to the Applicant submitted that this Honourable Court is imbued with all the power to grant the reliefs herein sought by the Defendant/Applicant and order a stay of execution of its order hereinbefore referred. 

 

Counsel added that the justification for the grant of an application of this nature has been emphasized that it is part of the primary obligation of the Court of law to ensure that the rest of the subject matter of a suit is not destroyed.

 

Counsel equally added that this court has the discretion and the discretion must be judicial and judicious in all ramification and that the exercise of discretion should be to maintain status quo until appeal is heard and determined. Counsel cited the cases of S.P.D.C. LTD Vs. AMADI (2011) FWLR PT 593, Pg 1816, particularly at page. 1824, and also the case of MORISON INDUSTRIES PLC Vs. CPL INDUSTRIES LTD (2010) FWLR PT 552, page 1753,particularlyat page 1754-1755, and NIGERIAN BREWERIES PLC V. DUMUJE (2016) 8NWLR |PT. 1515] 536 AT PAGES 580, PARAS. F-G, 608, PARAS. E-F.

 

Counsel also posited that in the instant case, there exist a pending appeal, special and exceptional circumstance justifying the grant of stay and that the refusal to grant the stay of execution will jeopardize or prejudice the Applicant’s right or otherwise be unjust or inequitable. Counsel cited the cases of KALU V. ODILI & ORS (1993) -1653(SC), Julius Oba Fatoyinbo Vs, MICHEAL Dada Osadeyi (2002) 11 NWLR (Pt.778)384 at 392-393 Paragraphs C-G, AJOMALE VS. YADUAT (No. 2) (1991) 5 NWLR (Dt. 191) 266 at 291 PARAS E-F, SHELL PETROLEUM COMPANY OF NIGERIA LIMITED VS. OJIOWHOR MONDAY AMADI& ORS (Supra) 203 PARAS F-H and FAGBONHUN V. OGUNLEYE (2012) LPELR-14804 (CA).

 

Counsel concluded by urging this court to grant the application. 

In response to the foregoing, the Claimant/Respondent on the 27^th of January, 2026 filed a 16 paragraphed Counter-Affidavit deposed to by Ogbogbo Chiedu Patrick and a written address in opposition of the application. Arising from the written address, counsel to the Claimant/Respondent formulated a lone issue for determination to wit:

 

Whether the Defendant/Applicant has placed before this court special circumstance and sufficient facts to warrant the exercise of discretion of this Honourable Court for the grant of stay of execution of the conditional execution made by this Honourable Court.

 

In arguing the lone issue, counsel contended that the philosophy behind litigation is that a successful litigant would enjoy the fruit of his judgment, and any other application intended to negate the foregoing philosophy as in this present application by the Defendant/Applicant would certainly constitute a clog in the wheel of justice. Counsel cited the case of VASWANI TRADING COMPANY VS. SAVALAKH (1972) 12 SC 77 ANLR PT. 2.

 

Counsel argued further that it is trite that an unsuccessful litigant applying for a stay of conditional execution must show special or exceptional circumstances which will certainly depend on the facts and circumstances of each particular case. Counsel also contended that while the Applicant has failed to show special circumstance, the application is also incompetent because a certified copy of the ruling is not exhibited and that the notice of appeal annexed as Exhibit A is not signed. Counsel in this regard cited the cases of MAMMAN VS. SALAUEEN (2005) 13 NWLR (PT. 958) 478 and OLUNLOYO VS. ADENIRAN (2001) FWLR (PT, 73) PG. 41 RATIOS 1-6, SHODEIDE VS. TRUSTEE IN ISLAM (2001) FWLR (PT.58) 1065, (199) 165.

 

Counsel also posited that the Defendant/Applicant is in contempt of the order of this court and cannot in that circumstance be seeking the discretion of the court. Counsel cited the case of OSULA V OSULA (1995) 3 NWLR (PT. 382) PG. 128 @ 134. See also FIRST AFRICATRUST BANK LTD & ANOR VS. BASIL O EZEGBO & ANOR (1992) 9 NWLR (P. 264) 132.

Counsel urged the court to dismiss the application with substantial cost.

 

In response to the counter-affidavit, the Defendant/Applicant filed a further affidavit of 27 paragraphs deposed to by Mark Friday and a reply on point of law. Arising from the said reply, counsel contended that the Defendant’s application is not a clog in the wheel of justice and while stating the conditions for the grant of stay of execution, counsel added that the case of Mammanv Salaudeen cited by the counsel to the Claimant is inapplicable.

 

With regards to failure to exhibit the ruling of this court, counsel posited that the certified true copy of the ruling was not ready at the time of filing the application and the enrolled order has now been annexed. With regards to the unsigned proposed notice of appeal, counsel posited that the proposed notice of appeal is not a filed copy but merely a draft.

 

With regards to issue of contempt, counsel reacted by contending that the Applicant cannot be in contempt of an order he is appealing against. Counsel cited the cases of EZEGBU V F.A.T.B. (SUPRA), and the case of GROUP DANONE V. VOLTIC (NIG.) LTD. (2008) 7 NWLR (PT.1087) 637.

 

In view of all the foregoing, I have carefully considered the motion filed by the Defendant/Applicant, the affidavit and Further Affidavit in support thereof, the Counter-Affidavit in opposition together with the exhibits annexed to the said processes. I have equally considered the submissions of learned counsel to both parties in their respective written addresses as well as the Reply on Points of Law filed by the Defendant/Applicant. Consequently, the sole issue for determination in this application is as follows:

 

Whether the Defendant/Applicant is entitled to the grant of a stay of execution of the order of conditional stay of execution made by this Court on the 30th day of June, 2025.

 

In resolving the sole issue, I must foremost state that I reckon that the instant application was brought pursuant to the Rules of this Court, which constitute the procedural framework within which the adjudicatory powers of this Court are exercised. It is not in doubt that this Court possesses the discretion to grant or refuse an application of this nature and that such discretion must at all times be exercised judicially and judiciously.

 

While the Defendant/Applicant brought the instant application pursuant to Order 17 Rules 1, 5 and 6 and Order 64 Rule 8(1) of the Rules of this Court, I observe that learned counsel to the Applicant made no specific reference to the said provisions in the written address filed in support of the application.

 

Upon a consideration of the said provisions, I reckon that Order 17 contains the general provisions regulating motions before this Court, while Order 64 specifically regulates applications relating to stay of execution and stay of proceedings pending appeal.

 

For the umpteenth time, I shall reproduce the provisions of Order 64 Rule 8 under which the instant application was brought. The Rule provides thus:

 

“8.—(1) An application made to the Court for a stay of execution or proceedings under any judgment or decision appealed against shall be made by motion on notice supported by affidavit setting forth the grounds upon which a stay of execution or of proceedings is sought.

 

(2) Notwithstanding anything to the contrary, mere filing of application for stay shall not operate as stay of proceedings or stay of execution.

 

(3) Furthermore, the mere filing of an application simpliciter shall not be sufficient for the Court to grant—

 

(a) a stay of execution of the judgment of the Court; or

(b) a stay of proceedings before the Court.

Provided that where an appeal has been filed, and all records of proceedings have been transmitted and an appeal has been entered; that is to say the appeal has been issued a number, the Court may on sufficient grounds stay the execution of the judgment or proceedings upon which the appeal has been entered.

 

Provided further that in an application seeking a stay of execution of the judgment of the Court pending appeal, where an appeal has been entered in line with the provisions of this Order, the Court may stay the execution of the judgment on the condition that the judgment debt (where the issue is monetary) is paid into an interest-yielding account in the name of ‘The Chief Registrar, National Industrial Court of Nigeria’ pending the hearing and determination of the appeal.”

 

On the face of it, Order 64 Rule 8 would ordinarily regulate an application for stay of execution pending appeal. However, I must immediately point out that while the said provision regulates applications for stay of execution of a judgment or stay of proceedings, the instant application is peculiar in the sense that it seeks a stay of execution of an order earlier made by this Court after hearing and determining a previous application for stay of execution.

 

Put differently, the Defendant/Applicant had initially applied for a stay of execution of the judgment of this Court and the said application was conditionally granted. The same Applicant has now returned before this Court seeking a stay of execution of the very order which was conditionally made in its favour.

 

While every litigant retains the right to approach the Court with any application considered necessary, I must state, without hesitation, that the nature of the instant application is not one contemplated under Order 64 of the Rules of this Court.

 

For the avoidance of doubt, only one application for stay of execution is contemplated under the Rules of this Court. In that regard, Order 64 Rule 11(2) provides thus:

 

“11(2) Where the Court has struck out an application for stay, no further application for stay shall be made in the same matter.”

 

Bearing the foregoing provision in mind, the instant application appears to this Court to constitute an attempt to ridicule the administration of justice. This is because where a party whose application for stay has been refused outright is precluded from bringing a further application for stay before this Court, it becomes even more untenable for a party whose application for stay had already been granted, albeit conditionally, to seek another stay against the conditional order earlier made in its favour.

 

It must be emphasized that the conditional stay earlier granted by this Court was itself fashioned in the interest of justice and in accordance with the intendment of the Rules of this Court. The condition requiring the judgment sum to be paid into an interest-yielding account in the name of the Chief Registrar was designed to preserve the res pending appeal and to ensure fairness to both parties.

 

The implication is clear: where the Defendant/Applicant succeeds on appeal, the judgment sum together with the accrued interest would be refunded to it. Conversely, where the Claimant/Respondent succeeds on appeal, he would ultimately enjoy the fruits of his judgment together with whatever interest may have accrued on the deposited sum.

 

It is therefore rather surprising that the Defendant/Applicant has failed to appreciate the interest of justice protected by equitable and balanced nature of the conditional order made by this Court, and has instead elected to file the instant application seeking to stay the execution of an order directing it merely to deposit the judgment sum into an interest-yielding account under the supervision of the Chief Registrar of this Court pending the determination of the appeal.

 

Upon a careful consideration of the instant application, I find that the application does not come within the contemplation of the Rules of this Court. More importantly, even assuming, without conceding, that the application falls within the contemplation of the Rules of this Court, the Rules expressly require that the Applicant must have filed an appeal, transmitted the records of proceedings, and obtained an appeal number before this Court can exercise its discretion in favour of such an application.

 

In the instant case, the Defendant/Applicant neither referred to compliance with any of the foregoing requirements nor placed sufficient materials before this Court establishing compliance therewith. Upon a careful examination of the affidavit and Further Affidavit in support of the application together with the annexures thereto, no deposition was made indicating that the records of proceedings had been transmitted or that the appeal had been duly entered and assigned an appeal number as contemplated under Order 64 Rule 8 of the Rules of this Court.

 

Bearing the submissions of learned counsel for the Defendant/Applicant in mind, I must reiterate the position of the Court in ANYANWU v. OKOROAFOR & ORS. (2012) LPELR-20823(CA), where the Court held thus:

 

“The principles guiding the grant or refusal of an application for stay of execution and injunction are the same. Both are granted as a matter of discretion of the court and which discretion is usually exercised based on a consideration of same conditions. Generally however, the courts are loath to deny a successful litigant from enjoying the fruits of the judgment. The court should also consider the effect of refusal of the application on the appellant/applicant if he eventually succeeds in the appeal. In the determination of whether or not to grant an order of stay of execution, the court should therefore do a balancing act between the contending interests of the parties. In doing that balancing act, the court would consider whether the Applicant has disclosed special circumstances which would attract the determination of the application in his favour.

 

Some of the circumstances under which an application for stay of execution or injunction pending appeal may be made are:

 

(a)  Whether the subject matter of the dispute will be destroyed if injunction or stay of execution is not granted;

(b) Where a situation of helplessness would be foisted on the court, especially an appellate court;

(c)  Where execution will paralyze right of appeal;

(d) Where the order of the court would be rendered nugatory; or

(e) Where execution will prevent a return to the status quo if the appeal eventually succeeds.

 

By the use of the word ‘or’ it means that these conditions are considered disjunctively. It means therefore that the presence of any of the above stated requirements will suffice for the grant of the injunction. The burden is on an applicant to depose to an affidavit which discloses any of the above stated special circumstances.”

Per TSAMMANI, J.C.A. (Pp. 54–55, paras. C–E).

 

Bearing the foregoing principles in mind, I must state that this Court had already taken into account the necessity of preserving the res and ensuring that the appeal, if successful, is not rendered nugatory when it earlier granted a conditional stay of execution directing the Defendant/Applicant to deposit the judgment sum into an interest-yielding account in the name of the Chief Registrar of this Court pending the determination of the appeal.

 

Consequently, any further application seeking this Court to go beyond the balanced and equitable order already made in the interest of justice and fairness to both parties is, in the view of this Court, an abuse of court process.

 

In the light of the foregoing finding, the various arguments canvassed by learned counsel on both sides with respect to special circumstances, failure to exhibit the ruling, and the issue of contempt become of no moment in the face of the incompetence of the application and the failure of the Defendant/Applicant to satisfy the mandatory requirements stipulated under the Rules of this Court.

 

In the final analysis, the lone issue formulated for the determination of this application is resolved in favour of the Claimant/Respondent and against the Defendant/Applicant to the effect that the Defendant/Applicant is not entitled to the grant of a stay of execution of the order of conditional stay of execution made by this Court on the 30th day of June, 2025.

 

The consequence of the foregoing is that the instant application lacks merit in its entirety and is accordingly dismissed.

 

Ruling is accordingly entered.

 

I make no order as to costs.

 

………………………………………………………………………..

HON. JUSTICE Z. M. BASHIR, Ph.D

JUDGE