In The Supreme Court of Nigeria

On Friday, the 16th day of October 1987

S.C. 89/1987

Between

Lawrence Okafor         .......            Appellant

And

Felix Nnaife                   .......            Respondent

Judgement of the Court

Delivered by

Chukwudifu Akunne Oputa. J.S.C

The present Appellants were Defendants in the Onitsha High Court Suit No. O/107/77. In that Suit the Plaintiff now Respondent claimed as follows-

(i)         A declaration that the Defendants as customary tenants of the Plaintiffs according to native law and custom have no right, to put tenants on the Plaintiff's land or farm outside their homesteads or utilize or cut economic trees on the said land without obtaining Plaintiff's permission.

(ii)        A declaration that according to the said native law and custom their holdings revert to the Plaintiff on their vacating the land.

(iii)       N600.00 damages for trespass.

(iv)       An injunction to restrain the Defendants, their servants and agents from putting tenants and agents from putting tenants on the Plaintiff's land or utilizing economic trees hereon or doing other acts therein inconsistent with their position as such customary tenants.

Pleadings were ordered, filed and exchanged, and after due hearing on relevant evidence the learned trial judge found inter alia at pp.23 and 24 of the copy of the judgment attached as Ex. D

(i)         . . . None of the Defendants can now challenge the title of the Plaintiff over Ogbundo land, just as they can no longer deny being customary tenants of the Plaintiff at Armagu Settlement in Ogbundo

(ii)        Not having proved to be the owners of the Pink verge and also denying to be customary tenants of the Plaintiff, the Defendants have offered no explanation as to the basis of their presence in the Pink verge and so are deemed to be trespassers. Accordingly the claim of the Plaintiff for N600.00 damages for trespass against the defendants jointly and severally succeeds and is hereby granted.

(iii)       On injunction, the plaintiff seeks to restrain the defendants from putting tenants on Ogbundo land or utilizing the       economic trees thereon. The other "acts" sought to be restrained were not clearly defined. Accordingly I hereby grant a perpetual injunction restraining the defendants, by themselves, their servants and agents from putting tenants on Ogbundo land or utilizing the economic trees on the land verged Pink in Exhibit A (and also Pink in Exhibit J).

It is important to observe that for the purposes of the present appeal it is not necessary to decide whether the above findings and judgment of the trial Court were right or wrong as the only issue now on appeal is the rather limited issue of whether the Court below was right "in dismissing the motion praying a Stay of Execution of the judgment of the High Court".

Having lost in the Onitsha High Court, the Defendants filed an appeal against the entire High Court judgment to the Court of Appeal Enugu Division. During the pendency of that appeal the Defendants brought a motion before the Onitsha High Court for "Stay in respect of injunction". After hearing the parties who relied on their Affidavit and Counter Affidavit the learned trial judge, Awogu, J. (as he then was) held-

Court

I am satisfied that the Applicants may no doubt have existing crops on the land in dispute. In view of the difficulty which the order of injunction may create in terms of the crops, the order of injunction will become operative with effect from May 1, 1987. The order in respect of putting tenants and cutting economic trees is not affected by this modification.

Apparently dissatisfied with the Ruling of the Onitsha High Court on their "motion for a stay in respect of injunction," the Defendants filed a fresh motion in the Court of Appeal praying "for an order that the judgment in the above suit, to wit, an order of perpetual injunction against the Appellants/Applicants be stayed pending determination of the appeal". What were the reasons given by the Appellants/Applicants for their renewed application for a stay of the order for injunction?

Paragraphs 1 to 8 of their affidavit in support of their motion merely recounted the history of the case. Only paragraphs 9, 10, 11 and 12 can be said to be in any sense connected with the present application. I will reproduce these paragraphs-

(9)        That the respondent and his people have been harassing us and other members of Amagu Community.

(10)      That on 31/7/86 and 10/8/86 the respondent and his people were shooting guns within our premises and boasting that they would push us out of the land.

(11)      That we have farms and economic plants on the land in dispute and the respondent and his people are intent on frustrating the appeal if a stay of execution is not granted.

(12)      That we have paid to the respondent the sum of N1,600.00 being damages for trespass and costs.

The Plaintiff/Respondent filed a Counter Affidavit. Three or four paragraphs of this Counter Affidavit will be relevant in considering whether to grant or refuse a stay. They are-

(2)        That the injunction sought against the appellants/applicants was to stop them putting tenants on the land and charging and collecting fees from them and also to stop them cutting and utilizing economic trees on the land.

(4)        That such a stay will be highly prejudicial to the Respondent.

(5)        That the appellants/applicants are intent on cutting down and selling our economic trees on the land and putting tenants and charging them fees and utilizing all to the prejudice of the plaintiff/respondent.

(6)        That with the stay of execution already granted by the lower Court, the appellants/applicants will be able to reap their cash crops and no further prejudice will be suffered by them.

These were the materials before the Court of Appeal. On these that Court held-

Ruling

 . . . I have gone through the Affidavit and the counter affidavit, I am of the view that no special ground has been shown to disturb the order made by Awogu, J. on 4/9/86. The best approach to a matter of this nature is for the applicants to apply for accelerated hearing of the appeal.

Instead of applying for an accelerated hearing of the main appeal, the Defendants/Applicants chose to appeal against the order, on appeal, of the Court of Appeal refusing them "a stay of the order of perpetual injunction pending the determination of the appeal."

The Appellants filed and relied on their Brief of Argument. The Respondent filed no Brief. He however filed a Notice of Preliminary objection under Order 2 Rule 9 of the Supreme Court Rules 1985. The Court held that the Respondents' Preliminary Objection was misconceived as the only ground filed was definitely a ground of law and not a ground of fact or of mixed law and fact requiring leave under S. 213 (3) of the Constitution of the Federal Republic of Nigeria, 1979.

The only Question for Determination in this appeal as indicated in the Appellants' Brief is-

Whether their Lordships of the Court of Appeal did or did not exercise their discretion properly on the materials before them in refusing the Appellants a stay of execution of the judgment of the High Courts?

I must observe that what was before the two Courts below was an application for a stay of the order of injunction and not for a stay of the entire judgment. And what were "the materials before them" - the Court of Appeal - in support of, or in opposition to their order the subject matter of this appeal?

It was the Appellants/Applicants' Affidavit and the Respondent's Counter-Affidavit. Can it be said that on those two documents the Court below exercised its discretion wrongly?

This raises the further question - What principles will, and should, guide the Courts in applications for a stay of execution? These principles have been reiterated in very many decisions of this Court. Perhaps it may be well here to re-emphasise some of them -

(1)        The Courts have an unimpeded discretion to grant or refuse a stay. In this, like in all other instances of discretion, the Court is bound to exercise that discretion both judicially as well as judiciously and not erratically.

(2)        A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for a stay but does not adequately take into account the respondent's equal right to justice is a discretion that has not been judicially exercised.

(3)        A winning Plaintiff or party has a right to the fruits of his judgment and the Courts will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is determined  See the Annot Lyle (1886) 11 P.D. 144 atp. 116 C.A. per Bowen, L.J.

(4)        An unsuccessful litigant applying for a stay must show "special circumstances" or "exceptional circumstances" eloquently pleading that the balance of justice is obviously weighted in favour of a stay.

(5)        What will constitute these  'special" or  "exceptional" circumstances will no doubt vary from case to case. By and large, however, this Court in Vaswani Trading Company v. Savalakh & Company (1972) 12 S. C. 77 at p.82 held that such circumstances will involve "a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the Court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal 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 appellant succeeds in the Court of Appeal, there could be no return to the status quo".

(6)        The onus is, therefore, on the party applying for a stay pending appeal to satisfy the Court that in the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable.

(7)        The Court will grant a stay where its refusal would deprive the appellant of the means of prosecuting the appeal   Emmerson v. md. Coope & Co. (1886) 55 L.J. Ch. 905.

The above are some of the general rules guiding and governing the Court in the exercise of its discretion to grant or refuse a stay. The above list is not, however, exhaustive.

There may also be other circumstances which in a particular case or type of cases may dispose a Court to grant an order for stay. These circumstances may not apply generally. I will here refer to two decisions of this Court cited and relied upon by the learned counsel for the Appellants in his Brief. In Balogun V. Balogun (1969)1 All N. L. R. 349, a matrimonial cause, where the issue was - "whether payment of rent is maintenance allowance" - this Court held that this was an arguable point and that on that score alone it would be only fair to both sides that a stay should be ordered, it being understood by both sides that should the order of the High Court be affirmed the order would take effect from the date assigned to it by the trial judge.

Now since the radical and primary role of Courts is to do justice in the atmosphere of fairness, will it be fair to the Respondent in this appeal to allow the losing Defendants/Appellants "to continue cutting down and selling the economic trees on the land" adjudged by the trial Court not to belong to them simply because their grounds of appeal contain some arguable point of law? I suppose not. Justice and fairness both demand much more than this. They also demand that the ratio of any case should not be pulled in by the hair of the head and made willy nilly to apply to cases where the surrounding circumstances are different.

The case of Balogun V. Balogun supra may appropriately apply to divorce cases, but I am afraid it will work considerable hardship in land cases where as in the case on appeal a party adjudged a trespasser, in an application for stay pending appeal, is allowed to continue in his trespass, during that pendency, simply because his grounds of appeal (in the main appeal) contain an arguable point of law.

The next case I will like to comment on is Utilgas Nigerian & Overseas Gas Co. Ltd. V. Pan African Bank Ltd. (1974) 1 All N. L. R. (Part 11) 47. There, there was a judgment for recovery of possession against the Defendant who applied unsuccessfully to the Lagos High Court for a stay pending appeal. The Defendants then applied to this court for a stay. The Court relying on its earlier observations in Vaswani Trading Co. V. Savalakh & Co. supra ordered a stay. In my view the observations of this Court in Vaswani's case supra contain the principles of general application.

Applying those principles enunciated in Vaswani's case supra the present Appellants to succeed have to show "special" and/or exceptional" circumstances. No paragraph in their affidavit in support can remotely be considered to be one of those special or exceptional circumstances which will predispose any Court to grant a stay of execution. The refusal to grant a stay in this case will not destroy the land in dispute nor will it render any judgment of the Court of Appeal nugaroty. The defendants seems to be very rich and well to do, for they have already paid the damages and costs of N1,600.00 awarded to the Respondent. There is therefore no suggestion that the refusal of a stay will, for lack of funds or impecuniosity, interfere with or else paralyse their constitutional right of appeal. I am in complete agreement with the Court below that on the materials before it, the Affidavit and Counter Affidavit, the Appellants did not show "any special ground" to enable the Court "disturb the order made by Awogu, J. on 4/9/86".

In the final result and for the reasons given above, this appeal lacks merit and that was why the Court did not call upon learned counsel for the Respondent, G. U. E. Peter Okoye (Mrs). The appeal ought to be dismissed and it is hereby dismissed. I award costs to the Respondent which I assess at N300.00.

  Judgement Delivered by

Eso. JSC

I have had a preview of the lead judgment which has just been delivered by my learned brother, Oputa, J.S.C. I agree with the detailed summary of facts and that the only issue before this Court is whether or not the Court of Appeal was right to have dismissed the motion placed before it, which sought a stay of execution of the judgment of the trial Court.

I do adopt the general principles which have been laid down in the lead judgment as regards seeking stay of a judgment. I would like to add however, that a stay of execution is never to be used as a substitute for obtaining the judgment which the trial court has denied a party. A party, who has succeeded in a litigation, is fully entitled to the fruits of the litigation and to these he would be entitled until the judgment in his favour has been set aside. When a stay is granted therefore, the main principles must be fairness and equity having regard to such circumstance. And that is, if the successful party is not restrained temporarily from taking the full value of the judgment, there would be serious detriment, not only to the applicant but to the ultimate result which he would get were he to succeed later in the appeal he had lodged against the decision of the Lower Court. It may be that the property would have been destroyed, thus rendering the success of the appeal hollow and nugatory, or that the applicant would suffer untold hardship which could be justly avoided without damage to the successful party on the interim. In Holmand Brothers V. Kigo, this Court examine the position thoroughly, and counselled against the destruction of the res in action, pending the determination of the appeal.

With these few comments added, I agree entirely with the reasoning and conclusion reached by my learned brother, Oputa, J.S.C. and will also dismiss this appeal, abiding fully, with all the orders made in the lead judgment of my learned brother Oputa J.S.C.

  Judgement Delivered by

Aniagolu. J.S.C.

The judgment just delivered by my learned brother, Oputa, J.S.C., was made available to me in draft and I am in complete agreement with his reasoning and conclusion.

What the appellants who have been found not to be the owners of the land in dispute want of this Court, in effect, is for Court to lend its authority to the Appellants, for them to continue devastating the land in dispute by being allowed to continue cutting down and selling the economic trees on the land while the owner of the land - the Respondent - sits back and watches, helplessly, the fruits of his judgment being denied and deprived him. That will be justice inverted. I will not be a party to such an inversion.

The appeal is entirely without merit and that was why we did not call upon Mrs G. U. E. Peter-Okoye for a reply. Accordingly, I would also dismiss this appeal and hereby dismiss it with N300.00 costs to the Respondent.

  Judgement Delivered by

Nnamani. J.S.C.

I had the advantage of reading in draft the judgment just delivered by my learned brother, Oputa, J.S.C. and I entirely agree with his reasoning and conclusions.

It is pertinent to remember that in its judgment in the main suit between the parties the Onitsha High Court on 31st July, 1986 held that "None of the Defendants (appellants herein) can now challenge the title of the plaintiff (respondent herein) over Ogbundo land, just as they can no longer deny being customary tenants of the plaintiff at the Amagu settlement in Ogbundo". The Court granted N600 damages for trespass against the appellants. A perpetual injunction "restraining the defendants, by themselves, their servants and agents from putting tenants on Ogbundo land or utilising the economic trees on the land verged Pink in Exhibit A (and also Pink in Exhibit J)" was also granted.

When the appellants applied to the High Court for a stay of execution, that court on 4th September, 1986 varied the order of injunction such that the appellants can reap their crops on the land. The application before the Court of Appeal was for a stay of execution of the High Court's order of perpetual injunction. On 29th January, 1987 the Court of Appeal refused the application.

It would seem to me that the Appellants seek a stay of execution of the injunction which in effect would allow them to continue to exploit the economic trees and put tenants on the land.

The principles on which this Court will grant a stay of execution have been settled in several decisions of this Court. See Vaswani Trading Company V. Savalakh & Company (1972) 12 S.C. 77 at 82; Kigo (Nigeria) Ltd. & Anor. V. Holman Bros. (Nigeria) Ltd. (1980) 5-7 S.C. 60 at p.74 and lately Obeya Memorial Specialist Hospital & Anor. V. The Attorney-General of the Federation and 1 Or. To get a stay of execution, more so in the circumstances of this case, the applications have to show special or exceptional circumstances. I see no such circumstances from the appellants' affidavit. May be as the Court of Appeal observed, the appellants ought to have pressed for accelerated hearing of their appeal against the High Court judgment in the substantive matter before the Court of Appeal. I see no merit in this appeal which was why learned counsel to the Respondent, Mrs G. U. E. Peter-Okoye was not called upon.

For these reasons, and for the more detailed reasons set down in the judgment of my learned brother earlier referred to, I too dismiss this appeal. N300 costs to the Respondent.

Judgement Delivered by

Uwais. J.S.C.

I have a preview in draft of the judgment read by my learned brother Oputa, J.S.C. I entirely agree with it. Accordingly, I too do not see any merit in the appeal. It is hereby dismissed with N300.00 costs to the respondent.

Counsel