NICN - JUDGMENT
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YOLA JUDICIAL DIVISION
HOLDEN AT YOLA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
9TH DAY OF FEBRUARY 2021 SUIT NO NICN/YL/05M/2020
Yusuf Moshood Ayangbade …………………claimant/judgment/creditor Respondent
AND
United Bank For Africa (UBA) …………………………Judgment/Debtor/Applicant
RULING.
1. This deal with motion on notice dated 1st day of December 2020 and filed the same day wherein the applicant is praying for:-
1. AN ORDER of the Hon. Court staying the execution of the judgment /decision of the this Hon. Court delivered on the 6th of July 2018, made in favour of the judgment Creditor Respondent herein pending the hearing and determination of the appeal filed against the said judgment/decision by the Judgment Debtor/Applicant.
2. AND for such orders as the Hon. Court may deem fit to make in the circumstances of this case.
2. The grounds upon which this application was brought are as follows:-
I. The Judgment Debtor/Applicant appealed against the decision of this Hon. Court in Appeal No. CA/YL/106/2019 between United Bank for Africa Plc Vs Yusuf Moshood Ayangbade on substantial and recondite ground on the 05/04/2019 having been granted extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal from the decision of this Hon. Court.
II. The Appeal No. CA/YL/106/2019 was struck out on 27/11/2020 for being incompetent.
III. The Judgment Debtor/Applicant is still desirous of prosecuting the appeal against the decision of this Hon Court in Suit No. NICN/YL/03/2016 between Yusuf Moshood Ayangbade Vs United Bank for Africa Plc.
IV. As a result of the ruling of the Appellate Court delivered on 27/11/2020, the Judgment Debtor/Applicant has to re-ignite its appeal against the decision of this Hon. Court in Suit No. NICN/YL/03/2016.
V. The time within which to appeal has however elapsed during the course of hearing of the Appeal No. CA/YL/106/2019 at the appellate Court and the Judgment Debtor/Applicant has a choice to come properly either before this Hon Court or the Court to reignite its appeal.
VI. The Judgment Debtor/Applicant as a result has now filed a motion on notice on 30/11/2020 before the Court of Appeal for extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal from the decision of this Hon. Court. The proposed Notice of Appeal is also attached to the Motion.
VII. There is a real and high risk that the Judgment Debtor/Applicant would not be able to recover the money from the Judgment Creditor/Respondent in the event that the appeal is successful and that would amount to injustice to the Judgment Debtor/Applicant.
VIII. The Judgment Debtor/Applicant has already provided a Bond as reputable Bank in favour of the Judgment Creditor/Respondent, while the appeal is being prosecuted.
IX. It would he both just and equitable for the stay to be granted on the same terms as the court earlier granted.
3. The application is supported by an 18 paragraphs affidavit sworn to Dr. Toluwani J. Ojo, Esq; There are three exhibits attached to the affidavit in support. Counsel for the judgment debtor applicant while adumbrating relies on all the paragraphs of the affidavit and exhibits attached to the affidavit in support. Counsel also adopted the written address filed along with the motion on notice as his argument.
4. In the written address counsel formulated a sole issue for determination, to wit:-
Whether the Judgment Debtor/Applicant is not entitled to the grant of stay of execution of the decision contained in the judgment of the Honourable court dated the 6th day of July 2018, pending the hearing and determination of the Appeal filed against the said judgement.
5. In arguing the single issue for determination counsel contended that it is a general principle of law that a successful party to a proceeding will not be deprived of the fruit of his judgment. However, the court may in some appropriate, special or exceptional circumstances exercise its judicial discretion in favour of a presumable loser under the judgment, who may apply for an order of execution of its judgment pending the hearing and determination of an appeal. In support of this contention counsel relied on the case of lse-Oluwa Nig. Ltd. V. Nig. Distillers Ltd (2001) 6 NWLR (Pt.709) 427. It is contended that the party applying for such a stay of execution or injunction has the onus of showing satisfactory special or exceptional circumstances entitling him to the equitable relief. The applicant must also plead sufficiently the balance of convenience that tilts the scale in determining whether to grant a stay of execution/injunction or not.
6. Counsel also refers to the supreme court cases of VASWANI TRADING COMPANY V. SAVALKH & CO. (1972) 7 NSCC 692 and the court of Appeal case of Fortune International Bank Plc V City Express Bank Ltd & Anor. (2005) 1 WRN 133 @ 127, where it was held that special circumstances are very wide in scope. Which include substantial and arguable ground of appeal contained in the notice of appeal fled before the court. The court went further and held that in the case where the res of the action is a quantified amount, an applicant may obtain stay of execution pending appeal, if, he can show that the respondent will be unable to repay back the judgment sum, if, the appeal succeeded. Counsel also placed reliance on the case of Kwara Polytechnic V Oyebamji (2008) 3 NWLR (Pt.1075) 459.
7. It is submitted that the applicant has placed sufficient materials in the affidavit in support to show entitlement to the relief being sought. Counsel placed reliance on paragraphs 5 – 17 of the affidavit in support and exhibit A and urged the court to exercise its discretion in favour of granting of stay of execution.
8. Counsel contended that though court do not make practice of depriving successful party from reaping fruit of his judgment, the law allows temporary deprivation where special circumstances exist. Counsel argued that the applicant in this case has established special circumstance and if stay is not granted there will be no return to status quo if appeal succeeds and the judgment sum could not be recovered. This is because there is no available verifiable information about the financial standing/worth of the judgment creditor respondent. According to counsel there is high risk that the applicant would not be able to recover the judgment sum from the respondent in the event that appeal succeeds. Counsel contended that justice of the matter is in favour of granting stay.
9. It is the submission of counsel that granting of this application will prevent the res of the subject of appeal from being destroyed. If this application is refused it will render decision of the Court of Appeal nugatory. It is also the position of counsel for the applicant that the balance of convenience is in favour of the Judgment Debtor/Applicant. Also the Notice of Appeal has shown prima facie arguable grounds and that the appeal is not frivolous, the Honourable Court is humbly urged to grant this application as prayed.
10. It is further contended that the subject of the appeal pending before the court of Appeal, that is, the res is tangible. Where the res in an appeal are tangible, it would constitute a special circumstance to warrant the court to grant a stay of execution. Counsel urged the court to grant the application in the interest of justice.
11. In opposition to the application (motion on notice) for stay of execution, dated 1/12/2020, the Judgment creditor/respondent has filed a six paragraphs counter affidavit dated 7th December 2020. The counter affidavit was sworn to by one Smith Kanatapwa Na’ Allah, the litigation secretary of the respondent’s counsel. Attached to the counter affidavit are Exhibits A, Al & B. Exhibits A & A1, are the judgment debtor/Applicant’s Counsel’s letter dated 29”’ November 2018 and its attachment confirming the payment of the sum of N15,611,103.74 (Fifteen Million, Six Hundred and Eleven Thousand One Hundred and Three Naira, Seventy Four Kobo) into Account No.3002578892, United Bank For Africa (UBA) in the name of the Chief Registrar of this Court. Exhibit B is the copy of Ruling of the Court of Appeal, Yola Division in appeal No. CA/YL/13/2019 between the Applicant and the respondent delivered on 1st April 2019 striking out the original notice of appeal.
12. Counsel for the respondent relied on the depositions contained in the counter affidavit and the exhibits attached therein. Counsel also adopted the written address fled along with the counter affidavit as his argument. Counsel adopted the sole issue formulated by the applicant.
13. In arguing in opposition, counsel referred to Order 64 Rule 13(2) of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017, and contended that the motion on notice for stay of execution has not satisfied the requirement of the rules of this court. Counsel contended that the application is incompetent and gross abuse of court process by reason of its failure to fulfil conditions outlined in Order 64 Rule 13(2) of the rules of this court. Counsel for the judgment debtor/respondent has stated that applicant is making this application for the 2nd time in the same matter after her initial appeal to the court of appeal has failed. It is the contention of counsel that the authorities cited by the applicant are not helpful as they are cases where there is valid appeal actually pending and not as in the instant case where no appeal has been filed or entered in the court of appeal.
14. Counsel contended that the original notice of appeal dated 17th July 2018 which was used by the judgment debtor respondent to obtain the order of stay of execution on 5th October 2018, was struck out by the Court of Appeal in Appeal number CA/YL/13/2019 for want of competence. The Court of Appeal after hearing parties and their respective counsel delivered judgment in favour of the judgment creditor respondent on 27/11/2020. The appeal of the judgment debtor applicant against the judgment of this Honourable Court in appeal Nos. CA/YL/13/2019 and CA/YL/106/2019, between the judgment debtor applicant and judgment creditor respondent failed and same were struck out accordingly.
15. Counsel concluded his submission by contending that this application is clearly oppressive and an abuse of court process, there must be an end to litigation and this Honourable court has a duty to protect the sanctity of its subsisting judgment until same is validly set aside. Counsel urged the court to refuse the application.
COURT’S DECISION:
16. I have carefully perused the motion on notice for stay of execution dated and filed on 1st day of December 2020, by the judgment debtor/applicant praying for an order of this court staying the execution of the judgment of this court delivered on 6/7/2018.
17. I have also perused the counter affidavit of the judgment creditor/respondent filed in opposition to grant of order for stay execution. I have equally listened attentively to the submission of counsel for both parties in adumbration of their respective position taken in respect of this application.
18. For the judgment debtor applicant, the grant of order for stay of execution of the judgment of 6/7/2018, will go along way in preserving the res the subject matter of this application. And refusing the application will render any decision to be arrived at by the court of appeal nugatory as the judgment creditor respondent does not have any verifiable financial means to show that if the judgment sum is paid to him it can be recovered in the event of judgment of the appeal court goes the way of the judgment debtor/applicant. It is also the position of counsel that the grounds of appeal are arguable and on substantial points of law.
19. The judgment creditor/respondent in opposing to the application for stay of execution, has deposed to in the counter affidavit that this court has earlier granted stay and the application is being made for the second time. The initial notice of appeal of the judgment debtor/applicant has been struck out by the court of appeal for being incompetent. Thus, according to counsel for the judgment creditor/respondent, the applicant is not entitled to grant of stay of execution as the application is an abuse of court process, since a stay has earlier been granted and the appeal struck out for being incompetent. Counsel urged the court to refuse the application since there is no valid appeal before the court of appeal.
20. It is a well settled position of the law that an appeal against a decision will not operate as an automatic stay of execution against such judgment. The grant or refusal of an application for stay of execution will always depend on consideration of the facts in a given case under consideration.
21. It is trite law that where the judgment of a court of competent jurisdiction is not manifestly illegal or wrong, the judgment appealed against would be presumed to be correct or rightly made until the contrary is proved or established. For this reason, the court will not ordinarily make a practice of denying a successful litigant of the fruits of his success unless under very special circumstances. See In Re: Diamond Bank Ltd. (2002) 17 NWLR (Pt.795) 120.
22. The fundamental principle guiding the grant or refusal of an application for stay of execution of a judgment pending the determination of an appeal against it is the existence of special circumstances. Such special circumstances would involve the consideration of some collateral circumstances, and in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings and foist upon the court, especially the Court of Appeal, a situation of complete helplessness, or 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 happens to the case, and in particular even if the case succeeds in the Court of Appeal, there can be no return to the status quo. See Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77.
23. The judgment debtor/applicant has insisted that the affidavit in support of the motion on notice for stay has sufficient materials facts to warrant the exercise of discretion of the court in favour of the applicant. The grounds of appeal are arguable and on substantial points of law. This makes it to be a special circumstance that if it exists will warrant granting order for stay of execution in order to protect the res from destruction or been frittered away.
24. The judgment creditor/respondent’s counter affidavit in opposition dwells on abuse of court process and incompetency or absence of a valid appeal. According to counsel, the applicant has on 17/7/2018 filed notice of appeal and also obtained conditional stay on 5/10/2018. However, the notice of appeal of 17/7/2018 was struck out on 1/4/2019 by the court of appeal for want of competence. At the same time the court granted leave to the judgment debtor applicant to file fresh notice of appeal dated 5/4/2019. On 27/11/2020, the court of appeal reversed the fresh leave to appeal granted to the judgment debtor/applicant for being incompetent. See exhibit B attached to the affidavit in support.
25. Based on the facts contained in the counter affidavit, counsel contended that there is no appeal filed or entered in the court of appeal. The applicant has also not fulfilled conditions stipulated in order 64 rule 132) of the rules of this court. It is also contended that the application is being made for the 2nd time in the same matter after initial appeal has failed.
26. Let me say that the position taken by the counsel for the judgment creditor/respondent on abuse of court process and lack of filing of appeal or entry of appeal at the court of appeal is faulty in that exhibit B attached to the affidavit in support of this application clearly shows that the striking out of the notice of appeal and reversal of the order for leave to appeal were based on incompetency. In the two situations there was no decision made on the merit. In the circumstances it cannot be seriously argued that there is abuse of court process.
27. On issue of filing of appeal or entry of appeal before the court of appeal, the law is well settled that an application for stay of proceeding or stay of execution will not be entertained unless an appeal has been lodged. In other words, the jurisdiction to stay execution of a judgment can only be exercised pending a valid appeal. In this case, after the Court of Appeal struck out the applicant’s notice of appeal and reversed the leave to appeal, there was nothing on appeal existing in the eyes of the law as at 27/11/2020. This means that whatever action taken in respect of the struck out notice of appeal has also gone and no more in existence to have life. In other words, in the absence of a pending appeal (and indeed a valid motion for leave to appeal) the Court would not have jurisdiction to entertain application for stay of execution. See NDLEA v. Okorodudu (1997) 3 NWLR (Pt.492) 221; Fatoyinbo v. Osadeyi (2002) 11 NWLR (Pt. 778) 384, Ogunseinde v. Societe Generale Bank Ltd. [2018] 9 NWLR (Pt.1624) 230.
28. In the present case the situation is totally different, the judgment debtor/applicant had vide exhibit ‘C’ attached to the affidavit in support filed before the court of appeal motion on notice dated 30/11/2020 and filed on 1/12/2020, praying for enlargement of time to apply for leave to appeal and leave to appeal. By the provision of Order 1 Rule 5 of the Court of appeal Rules 2016, an application for leave to appeal is considered to be an appeal. In view of this trite position of the law I hold that there is a valid appeal pending before the court of appeal Yola Division, as far exhibit C attached to this application.
29. The counsel for the judgment creditor/respondent has also contended that no appeal has been entered before the court of appeal. Let me quickly say that entry of appeal is not one of the requirements for consideration of motion for stay of execution. By the provision of Order 4 rule 10, Court of Appeal Rules 2016, an appeal shall be deemed to have been entered in the Court of Appeal when the record of proceedings in the court below had been received in the Registry of the Court of Appeal.
30. By the provision of Order 4 rule 11 Court of Appeal Rules 2016, after an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in the Rules, every application therein shall be made to the Court of Appeal and not to the trial Court, but any application may be filed in the trial Court for transmission to the Court of Appeal. In the instant case, the present application is competent since there is an appeal filed though not entered in the Court of Appeal. If an appeal has been entered any complaint regarding steps taken towards the enforcement of the judgment appealed against or application for stay could only be ventilated in the Court of Appeal. See I.B.W.A. Ltd. v. Pavex Int’l Co. (Nig.) Ltd. (2000) 7 NWLR (Pt.663) 105.
31. Having found that there is an appeal filed at the court of appeal and that there is no abuse of court process, I shall proceeds to determine the entitlement or otherwise of the prayer for stay of exution.
32. The fact that there are arguable grounds of appeal does not automatically entitle an applicant to the grant of a stay, particularly where the res is money. The applicant must still show that there are strong reasons for granting a stay of execution. The issue of balance of convenience is also such reason. The applicant must come to equity with clean hands. He must make a full and frank disclosure. See S.P.D.C. Nig. Ltd. v. Okei (2007) 17 NWLR (Pt. 1007) 1; Fasel Services Ltd. v. N.P.A. (2001) 11 NWLR (Pt. 723) 35; F.C.M.B. v. A.I.B. (Nig.) Plc (2000) 8 NWLR (Pt. 667) 42.
33. The granting of stay of execution of judgment is subject to the discretion of the court which must be exercised judicially and judiciously based on the facts of each case. Apart from showing arguable points of law, there is also the question of the nature of the subject matter in dispute, can maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case or not. There is also the question of if the appeal succeeds, can the applicant be able to reap the benefit of judgment on appeal. Where the judgment is in respect of money, whether there is a reasonable probability of recovering the money back from the respondent if the appeal succeeds. I shall quickly add that poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the applicant of reaping benefit of the decision of the court on appeal.
34. The applicant has deposed to the facts that if stay is not granted and the judgement is enforced there can be no going back to status quo or recovering the judgment sum, and refusal to grant stay of execution will render the judgment of the court of appeal nugatory. The judgment creditor/respondent did not contradict or controvert the deposition of the judgment debtor/applicant on the issue of rendering decision of the appellate court nugatory and the inability of the judgment creditor/respondent to refund the judgment sum. The failure to controvert these facts has shown that the judgment creditor/respondent is deemed to have admitted those facts and accepted them to be the truth.
35. In view of all I have been saying above the judgment debtor applicant has established that it is entitled to have the res protected from being frittered away or destroyed. However, having regards to the nature of the res which is monetary in order to strike a balance, so as not to put any of the parties in jeopardy or at disadvantage, I shall grant conditional stay of execution.
36. It is the order of the court that, an order of stay of execution of judgment of 6/7/2018, is hereby granted, subject to the judgment debtor applicant paying the judgment sum by issuing a bank draft in the name of the Chief Registrar of this court, who shall in turn deposit the said judgment sum into an interest yielding account.
At the end of the appeal, the part that got judgment shall have the money deposited with the Chief Registrar, plus the interest, minus any service charge by the bank.
37. For avoidance of doubt, it is not the judgment debtor/applicant that will deposit the money in an interest yielding account, it is the Chief Registrar of this court that will do so.
38. Ruling entered accordingly.
Sanusi Kado,
Judge.