In The Court of Appeal

(Ilorin Judicial Division)

On Thursday, the 14th day of June, 2012

Suit No: CA/IL/M.60/2011

 

Before Their Lordships

 

  

TIJJANI ABDULLAHI (PJ)

....... Justice, Court of Appeal

IGNATIUS IGWE AGUBE

....... Justice, Court of Appeal

OBANDE FESTUS OGBUINYA

....... Justice, Court of Appeal

 

 

 

 Between

UNIVERSITY OF ILORIN TEACHING HOSPITAL

Appellants

 

 

 And

DR. DELE ABEGUNDE 
(Suing for himself and on behalf of the family Late Chief Ernest Omotade Abegunde)

Respondents

 

 

 

 

 

 

RATIO DECIDENDI

 

 

 

 

1

INTERPRETATION OF STATUTE - SECTION 17 OF THE COURT OF APPEAL ACT, 2004: Interpretation of Section 17 of the Court of Appeal Act, 2004 with respect to factors to be considered in granting or refusing an Application for unconditional stay of execution of monetary Judgment of a Court of competent jurisdiction and whether Court may direct a departure from the Rules in anywhere it is required in the interest of justice

 

 

"For the avoidance of doubt, section 17 of the 2004 provides as follows:- "17. An appeal under this part of this Act shall not operate as a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court". Also there is no doubt that the Supreme Court per Coker, JSC, had held in Construzioni Generali Farsura Cogefar-S.O.A. v. Nigeria pott Authority and Joseph warren Mcewen (1972) 12 S.C. 107 at 110-111 while construing section 24 of the Supreme Court Act which is in pari materia with section 17 above quoted that: "We are in agreement with learned Counsel for the applicant that Section 24 of the Supreme Court Act does give this Court the power to order a stay of execution. We are also in igreement with him that this Court has the necessary jurisdiction to make an order for stay of execution on terms or conditions which may differ from those imposed by the Court below in granting a similar prayer. These matters were given consideration in the case of Oyeti v. Soremekun (1963) ALL NLR 349 where at page 351 this Court made the following observations:- "It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High Court has been granted in the High Court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High Court are onerous or, for any other reason, are found unreasonable." Furthermore, the earlier dictum of Ademola CJN in Bisi Oyeti V. Afolabi Soremekun (1963) 1 ALL NLR 349 at 350-351; is quite instructive on the point in issue when he posited thus: "It was argued that in accordance with order 7 Rule 37 (supra), an application of this nature can be made to this court only if a previous application had been refused in the High court. As this is not the case here, the submission is that in case of dissatisfaction of the order made in the High Court, the Applicant may only appeal to this Court." We are of the view that whilst proceedings by way of appeal to this court may be a remedy in such cases, it is not the only remedy. The provisions of section 24 of the Federal Supreme Court Act, dealing with stay of execution, are worth of consideration. They state:- "24. An appeal under this part (i.e. in civil cases) shall not operate as a stay of execution, either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court." It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High court has been granted in the High court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High court are onerous or, for any other reason, are found unreasonable". Learned counsel for the Respondent has rightly cited Solanke v. Somefun (1974) 1 S.C 141 at 148; where per Sowemimo, JSC, emphasized on the need for Rules of court to be obeyed or complied with and that any party or counsel seeking the exercise of the Court's discretionary power, must bring his case within the purview of the Rules upon which the Application is predicated and that upon failure to do so, it is but fair and right that the Court should refuse to exercise her discretionary power in favour of such a party. See also Owners of The M. V. "Arabella" v. Nigeria Agricultural Insurance Corporation (2008)5 SCNJ 109 at 120; cited by the learned counsel for the Respondent; Auto Import Export v. Adebayo (2003) 2 M.J.S.C 44 at 60; Ibodo v. Enarofia (1980) 5-7 S.C 42 and Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) at 181 para. C. However, the omission or error in stating the Rules under which the Application is brought (assuming there is any such omission which is not the case herein), is not such an irregularity which goes to the substance of the application so as to vitiate it as purported by the learned counsel for the Respondent. See per Tobi, JSC, who posited in Abubakar v. Yar'Adua (2008) 4 NWLR (pt. 1078) 467 at 510 paras. H, that as a matter of our adjectival law, and by the state of the noncompliance Rules, the Courts will regard certain acts of conducts of noncompliance as mere irregularity which could be waived in the interest of Justice, (assuming the learned Senior Counsel for the Appellant/Applicant was wrong in citing Order 4 Rules 6 and 11 (which is not the case). For instance Rule 6 of Order 4 of the Court of Appeal Rules, 2011 empowers the Court to make orders by injunctions or appointment of a Receiver or Manager, and such other necessary orders for the protection of property or person, pending the determination of an appeal to it, even though no application for such an order was made in the lower Court. The application for unconditional stay of execution is such an application envisaged by the Rule above cited. Again, the Learned Counsel for the Respondent cannot seriously contend that Rule 11 of Order 4 does not apply to the prayers sought in this Application. That Rule for instance charges and empowers the Court to be seised of the whole proceedings between the parties once an appeal had been entered and until finally disposed of and except as otherwise provided by the Rules, every Application therein shall be made to the Court and not to the Court below, but any Application may be filed in the Court below for transmission to the Court. From the foregoing provisions, the Rules 6 and 11 cover this Application. Assuming however that the prayers in the motion are not covered by the afore-stated Rules, let it be emphasized for the umpteenth time, that the era of strict and slavish adherence to technical and mechanical Rules of procedure, is gone for good as Courts nowadays are more disposed to doing substantial justice. This position of the Law is encapsulated in Order 4 Rule 6 and more particularly Order 20 Rules 2 and 3(1) which provides that the Court may direct a departure from the Rules in anywhere this is required in the interest of justice. Furthermore, the Court may, in exceptional circumstances, and where it considers it in the interest of justice so to do, waive compliance with the Rules or any part thereof. The above provisions of the Rules, is the essence of the dictum of Tobi, JSC, in Abubakar v. Yar'Adua (supra) at 511 paras E.G; that although Rules of Court are meant to be obeyed for that is why they were made, they should not be slavishly obeyed to the extent that justice in the case is asphyxiated, muzzled, destroyed and jettisoned over-board for the barometer for measuring a judicial process by the public is whether justice has been done to the parties, therefore his Lordship had admonished the Courts to do justice even if some harm is done to some procedural Rule like the one canvassed. See again Orient Bank (Nig) Plc. v. Bilante International Ltd. (1997) 8 NWLR (pt 155) Per Tobi, JCA, (as he then was) explaining the purport of the provision of Order 19 Rules 2 and 3(2) of the Court of Appeal Rules which were in pari materia with Order 20 Rules 2 and 3(1) of the current Court of Appeal Rules, 2011. On the whole, the submission of the learned Counsel to the Respondent on the preliminary point, is erroneous in that by the provisions of Sections 15 and 17 of the Court of Appeal Act alone, the Application is competent and can be sustained if the legal requirements are fulfilled. This takes us to the substance of the Application. It would appear that the learned Counsel on both sides of the divide are ad idem and the learned Senior Advocate has rightly cited the locus classicus of Vaswani Trading Company v. Savalakh & Company (1972) 12 SC 77 at 81-82 wherein Coker, JSC (as he then was), stated the law in these words:- "When the order or Judgment of a lower Court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or Judgment appealed against is correct or rightly made until the contrary is proved or established and for this reason the Court, and indeed any Court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observations of Bowen L.J. in The Annot Lyle (1886) 11 P. 114 at P. 116). We take it that the word "special" in this context is not used in antithesis to the words "common" or "normal" for that would be tantamount to pre-judging the appeal on a determination of an application for stay of execution. When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving 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 hopelessness or render nugatory any order or orders of the Court of Appeal or 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 will be no return to the status quo." The respective learned counsel for the parties have also rightly enunciated position of the law on the principles informing the grant or refusal of an Application for stay and in particular the learned counsel for the Respondent has hit the nail on the head when he posited citing the authority of SPDC v. Arho-Joe (Nig.) Ltd. (2003) FWLR (pt.184) 307 at 314 and Governor of Oyo State v. Akinyemi (2002) FWLR (pt. 120) 1761 at 1772; to submit that the grant of the application calls for the judicious and judicial exercise of the Court's discretion predicated on the juxtaposition of the competing interests of the parties. As I said elsewhere in University of Ilorin v. Adesina (2008) All FWLR (Pt. 400) 709 at 726-730; particularly at page 727 paras. D-H and 728 paras. A-H; the factors to be taken into consideration before a Court can grant or refuse an Application of this sort have been the subject of decisions in a welter of cases within our jurisprudence. Suffice it to say however, by way of emphasis that (see for instance the case of Vaswani Trading & Co. Ltd. v. Savalakh & co. (supra); Wey V. Wey (1975) 1 SC. 1 and Odufuye v. Fatoke (1975) 1 NMLR 222); the Court does not form the habit of depriving a successful litigant of the fruits of his Judgment and thus seldom grants a stay of execution of the Judgment of a Court of competent jurisdiction which is always presumed to be sacrosanct until set aside by the court of Appeal. Thus, until the Applicant, as in this case, has been able to show special and exceptional circumstances, this court even in its appellate jurisdiction cannot deprive the Plaintiff/Respondent albeit momentarily of the fruits of her victory. Generally speaking, the basic factors to be taken into consideration in granting or refusing an Application for stay of execution of a Judgment of a Court of competent jurisdiction are as follows: 1. There must be the existence of a valid appeal. See Mobil Oil Ltd. v. Agadiagho (1988) 4 SCNJ 174 and Martin v Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt. 74) 75. 2. The Grounds of appeal must be substantial and weighty and raise recondite point of law which are capable of tilting a scale of justice one way or the other. See Ajomale v. Yaduat (No. 2) (2003) FWLR (Pt. 182) 1913 at 1935; Balogun v. Balogun (1969) 1 All NLR 349 at 351. 3. Conduct of the parties it has been held that since stay of execution is an equitable relief the parties must come with clean hands and in particular the Applicant must not be blame-worthy either in his previous and present conduct to the Court and other parties to the case in the manner of the presentation of his application. See Momah v. VAB Petroleum Incorporated (2000) FWLR (Pt 5) 806 S.C; Ikeja Real Estate Ltd. v. N.B.N. Ltd. (2000) FWLR (Pt. 9) 1448 C.A and A.G Anambra State v. Onitsha North Local Government (2001) FWLR (pt. 45) 622; where the Supreme Court in spite of the weighty grounds of the appeal refused to grant the application for stay on the ground of the unpalatable conduct of the Applicant. 4. Existence of special circumstances and the need to protect the res - the term "special circumstance" may include: (a) Where the Ground of appeal is such that if the appeal eventually succeeds after the refusal of stay, an irreparable damage, injury or injustice shall have been occasioned such that there can be no return to the status quo ante; See Dr. Dada v. Unilag (1971) UILR 344; Utilgas Nigeria & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 S.C. 105; (1974) 1 ALL NLR (pt.2) 47. (b) That the res shall have gone so that the successful party will reap an empty victory if the appeal is in his favour. See Wilson v. Church (No. 2) 1879 12 Ch. D. 454 at 458 and Iriri v. Erharhobare (1979) 3 L.R.N 261; Vicent v. Xtodeus (1993) 6 SCNJ (Pt. 11) 283. (c) The need to prevent foisting a situation of complete hopelessness and helplessness so as to render the Judgment of the Court of Appeal nugatory. See Kigo (Nig) Ltd. v. Holman Bros. (Nig) Ltd. (1980) 5-7 SC, 60; Fatoyinbo v. Osadenyi (2002) 5 SCNJ 160 at 174 and Vaswani Trading Co., v. Savalakh Co., (Supra). (d) Finally, where the Judgment is in respect of money and costs there is a reasonable probability of recovering these back from the Respondent if the Appeal succeeds. See Lawrence Ogboeju Ebegbuna v. J. O. Ebegbuna (1974) 3 W.S.C.A. 29. Poverty is not a special ground for granting the stay of execution except where the effect will be to deprive the Appellant of the ability to prosecute his appeal. Nwajekwu Emefisi & Ors v. Mbanugwo & Ors (1970-71) 1 ECSLR 100, Lijadu v. Lijadu (1991) 1 NWLR 627 at 643; Okafor V. Nnaife (1987) 4 NWLR 139; Nwabueze v. Nwosu (1988) 4 NWLR 257 (S.C.). In recent times the Courts have held that the mere assertion by the Applicant that, if the judgment-debt is satisfied he cannot successively prosecute the appeal is not enough to warrant the grant of his application for stay of execution, so also will his assertion on the enormity and substantiality of the debt not constitute special circumstance for the grant of his application. In Anyaogu & Ors. V. Our Line Limited (1993) 4 NWLR (Pt. 289) 607; Ugwu & Ors. V. Ogbuzuru & 3 Ors. (1973) 3 ECSLR (Pt 11) 253; Abubakar v. Ali (1999) 1 NWLR (Pt. 588) 613 C.A. University of Ilorin v. Akinola (2007) All FWLR (Pt 372) 1844 C.A; Mobil Producing Nig. Unlimited v. Monokpono (2001) FWLR (Pt. 49) 1516 and Governor of Oyo State v. Akinyemi (2002) FWLR (Pt. 120) 1761; it was variously held that for a party to convince the Court to grant a stay of execution on ground of his financial disability to satisfy a monetary debt, he must disclose the sources of his income with the utmost candour and also the magnitude of his liabilities. Indeed, as far as the grant of stay of execution of monetary Judgment is concerned I reiterate our stand in Unilorin v. Adesina (No. 7) (supra) at pages 727-728; quoting the illuminating dictum of Adekeye, JCA (as he then was) in Oladimeji-Ise-Oluwa Ltd. v. N.D. Ltd. (2001) 18 WRN 28 at 36-37 that: "In a judgment involving money the terms upon which the Court would grant a stay are easier to determine than in other judgments where the res is perishable or prone to alteration. The terms-are-briefly stated thus: 1. Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal. 2. Whether it would be difficult to secure the refund of the judgment/debt and costs from the respondent if the appeal succeeds. For this purpose, the financial ability of the respondent is taken into account- Considerations in favour of the respondent are as follows:- (a) The fact that the respondent is entitled to reap the fruits of the judgment for that is the whole essence of litigation. (b) The court has a duty to ensure that the successful party reaps the benefit of his successful litigation. (c) The applicant seeking to deprive a successful litigant of the fruit of his labour must show substantial reasons why the court must grant the application". See also Per Abdullahi, JCA, in Ikere Local Government v. Adelusi (2008) All FWLR (Pt. 404) 1534; Okonkwo v. Nyamoko (2007) All FWLR (Pt 365) 608 and Odedeyi V. Odedeyi (2000) FWLR (Pt. 3) 489.or the avoidance of doubt, section 17 of the Court of Appeal Act, 2004 provides as follows:- "17. An appeal under this part of this Act shall not operate as a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court". Per AGUBE, J.C.A. (Pp. 32-44, paras. F-B) - read in context

 

 

 

 

2

JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT: Effect of weighty and arguable Grounds of Appeal of an Applicant for stay of execution of the Judgment of a Court

 

 

"All said and done, the authorities are now replete and settled that no matter how weighty the Grounds of Appeal of an Applicant for stay are, that alone without other factors which had earlier been highlighted, cannot ground the grant of the Appellant/Applicant's Application for stay of execution of the Judgment of a Court of law which is deemed sacrosanct; unless and until special and exceptional circumstances have been furnished by the Applicant. See the dictum of Sanusi, JCA in Ikeja Real Estate Limited v. National Bank of Nigeria (2000) All FWLR (pt 9) 1448 at 1453; which I adopt as mine. In this case, the Applicant has not shown any other special or exceptional circumstance(s) that would warrant this Honourable Court to depart from the position taken by the learned trial Judge and to grant this application for unconditional stay of execution of the Judgment of the lower Court." Per AGUBE, J.C.A. (P. 56, paras. B-F) - read in context

 

 

 

 

3

JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT: Whether for an applicant for stay of execution to earn the favourable discretion of a Court, he must prove by an affidavit, special or exceptional circumstance in order for a Court to properly exercise that discretion

 

 

"Indubitably, for an applicant for stay of execution to earn the favourable discretion of a court, he must, amply, demonstrate, by dint of an affidavit, special or exceptional circumstance which a court will use as a springboard for its judicious and judicial exercise of discretion. In the eyes of the law, a special or an exceptional circumstance is: "a peculiar or unique circumstance which is additional to the ordinary state of affairs", See Nika Fishing vs. v Lavina Corp (2008) 35 NSCQR 1 at 39, Per Tobi JSC; N.I.W.A. v. SPDCN Ltd. (2008) 13 NWLR (Pt. 1103) 48. Here, the applicant's supplication is for a variation of the conditional order of stay of execution, deposition of the judgment debt with the registrar of the lower court for payment into an interest yielding account with First Bank of Nigeria Plc or United Bank for Africa Plc within Ilorin, to an unconditional stay of the lower court's judgment debt. Now, I have given an intimate study/scrutiny to the applicant's affidavit. Curiously, throughout the length and breath of that affidavit, I cannot locate, or even stumble or, where it averred facts touching on the impossibility of return of the judgment sum to it should its appeal succeed. In the case of Olunloyo v. Adeniran (2001) 4 NWLR (Pt. 734) 699 at 714 Uwaifo, JSC, lucidly stated: "There can be no argument that a court has discretion to stay the execution of its judgment or that of another court.... But in order to properly exercise that discretion, it does not as rule have to base it on matters of defence of law or relief in equity which themselves in appropriate circumstances must be raised in the action itself. There must be special circumstances disclosed by the applicant seeking stay which render it inexpedient to enforce the judgment. The special circumstances which the court will take into account to entitle it to a stay of execution of the judgment are, as a general rule, such circumstances which go to the enforcement of the judgment and not those which go merely to its correctness...." Per OGBUINYA, J.C.A. ( Pp. 58-59, paras. A-D) - read in context

 

 

 

 

4

JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT: Required conduct or attitude of parties in an application for a stay of execution of execution of the Judgment of a Court

 

 

"Talking of conduct of parties, the Applicant as has earlier been noted has been accused of unpalatable conduct calculated to pervert the cause of justice in paragraphs 11, 14, 15, 16 and 17 of the Respondent's Counter-Affidavit which was not controverted. I reiterate what I said earlier that, an application for stay of execution calls for the exercise of the Court's equitable jurisdiction; hence parties herein must come to court with clean hands. The Appellant/Applicant in this case at least as at when this application was filed, had not transmitted the Record of Appeal to this Court neither had she filed her Brief of Arguments and since she is the one desperately seeking the court's discretion, she must be completely exonerated from any blame, either in his previous and present attitude to the Court or his conduct before it. She also should be seen to be wary of any untoward conduct or attitude towards other parties to the case or in the manner she has presented her application for a stay of execution to the court. See Okoya v. Santilli (1990) 3 SCNJ 83; Momah v. VAB Petroleum Inc (2000) FWLR (pt. 5)806 S.C.; N. I.P.S.S v. Osigwe (2008) 6 NWLR (pt 1083) 239 C.A.; Ikeja Real Estate Limited v. N.B.N. Limited (2000) FWLR (pt. 9) 1148 C.A.; Delta v. Wema Bank Limited (1999) 4 NWLR (pt 501) 624 and Lijadu (1991) 1 NWLR (pt. 169) 621." Per AGUBE, J.C.A. (Pp. 51-52, paras. F-E) - read in context

 

 

 

 

 

 

 

 

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Lead Ruling): This is an Application brought by way of Motion on Notice pursuant to Sections 15 and 17 of the Court of Appeal Act, 2010 and Order 4 Rules 6 and 11 of the Court of Appeal Rules, 2011. The motion prays for an Order or Orders:-

"(i) varying the order of the Federal High Court, Ilorin dated 25/10/2011 staying execution of the Judgment of the Federal High Court in suit No. FHC/IL/CS/20/2008 delivered on the 22nd day of July, 2011 by Honourable Justice A. O. Faji pending the hearing and determination of the Appeal on the condition that the judgment sum be deposited with the Registrar of the said court.

(ii) Granting an Order of unconditional stay of execution of the Judgment of the Federal High Court, Ilorin dated 25/10/2011 staying execution of the Judgment of the Federal High Court in suit No. FHC/IL/CS/20/2005 delivered on the 22nd day of July, 2011 by Honourable Justice A. O. Faji pending the hearing and determination of the Appeal;

And for such further Order or other Orders as the Honourable Court may deem fit to make in the circumstances of the case."

The Grounds for the Application as stated in the Motion paper are as follows:-

"i. The Appellant/Applicant has appealed against the Judgment of the Federal High Court, Ilorin Division.

"ii. The Judgment Sum is considerable and if execution is levied against the Defendant it might become difficult to recover the Judgment Sum.

"iii. In such circumstances, the appeal might be rendered nugatory if execution is levied."

In support of the Application, the Applicant through one of her counsel Olusegun Balogun Esq. deposed to a twenty-five paragraph affidavit to which three Exhibits marked OB1, OB2 and OB3 are annexed. Exhibit OB1 is the Judgment of the lower Court sought to be appealed against herein, Exhibit OB2 is the Notice and Grounds of appeal already filed in this Court, while Exhibit OB3 is the Ruling of the lower Court granting conditional stay of execution of the Judgment per A.O Faji, J. of the Federal High Court, Ilorin Division.

      Upon being served with the Motion Papers, the Respondent in opposing the motion filed a Counter-affidavit of twenty-three paragraphs deposed to by Abiodun Bello Esq. also a legal practitioner in the firm of Dayo Akinlaja & Co.; the learned counsel to the Judgment Creditor/Respondent. Owing to the contentious nature of the Application, parties were ordered by this Honourable Court to file their Written Addresses in support of their respective positions on the merit or demerit of the Application.

Before delving into the arguments adumbrated in the respective Addresses of counsel, it is necessary to state the genesis of the case culminating in this Application. The Respondent as Claimant in the lower Court suing for himself and on behalf of the family of Ernest Omotade Abegunde (deceased), instituted an action at the Federal High Court Ilorin claiming the sum of 20 Million Naira as Special damages and the sum of 35 Million Naira as general damages for the untold agony emotional distress, travails and deep trauma caused to him and other members of the family of the deceased on account of the negligent treatment that resulted in the untimely and avoidable demise of the deceased.

After hearing the parties to the suit the learned trial Judge entered judgment in favour of the Respondent for the sum of N3, 138,230.00 (Three Million, One Hundred and Thirty Eight Thousand, Two Hundred and Thirty Naira only) as special damages. The trial Judge also awarded the sum of N5, 000,000.00 (Five Million Naira) as general damages for untold agony, emotional distress, travail and deep trauma to the Plaintiff and other members of the family of the deceased on account of the negligent treatment that resulted in the untimely and avoidable demise of the deceased.

On the whole, in its Judgment delivered on the 22nd day of July, 2011, the Federal High Court awarded the sum of N8, 173,230 (Eight Million, One Hundred and Seventy Three Thousand Two Hundred and Thirty Naira) only as special and general damages in favour of the Respondent against the Appellant.

Dissatisfied with the judgment of the Court below, the Appellant has appealed to this Honourable Court against the said Judgment by the Notice of Appeal exhibited and marked Exhibit OB2 to the Motion paper. It would be recalled also that the Appellant/Applicant by a Motion on Notice dated 11th of August, 2011 and filed on the 12th of August, 2011, applied to the Court below for a stay of execution of the Judgment pending the determination of the Appeal by this Honourable Court. The Court below upon hearing learned counsel on both sides in respect of the application for stay of execution, made the following Orders:-

"The court therefore hereby Orders as follows: - A conditional stay of execution of the judgment delivered on 22/7/2011 is hereby granted. The Judgment debtor/Applicant shall within 7 days pay the Judgment sum of N8, 173,230 to the registrar of this Court. The Registrar shall forthwith thereafter pay same unto an interest yielding account in the name of the said Registrar with any branch of either First Bank Plc. or U.B.A. Plc. within Ilorin. The interest payable shall be prime interest".

In the Written Address settled by Olajide Ayodele, SAN for the Appellant/Applicant, a sole Issue was formulated for determination couched in the following terms:-

"(i) whether in all the circumstances of this case this Honourable Court should vary the condition Order of stay of Execution made by the Federal High Court."

On the other hand, Mrs. J.A. Aimien, who settled the Written Address of the Respondent, also formulated a sole Issue for determination thus:

"WHETHER THIS HONOURABLE COURT OUGHT NOT TO AFFIRM THE RULING OF THE LOWER COURT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE."

ARGUMENT OF THE APPLICANT'S SOLE ISSUE

The learned senior Advocate for the Appellant pointed out, firstly that, the application is brought pursuant to the provisions of Order 7 Rule 3 of the Court of Appeal Rules, 2011 which he reproduced adding that the application is predicated on the refusal of the Court below to grant a similar application before it on the 25th of October, 2011; per Exhibit OB3 attached to the Affidavit in Support of the application. He also alluded to Section 17 of the Court of Appeal Act, 2011 which he quoted and observed that the above quoted provisions of the Rules of this Honourable Court and the Court of Appeal Act, 2011 are in pari materia with the provisions of Section 24 of the Supreme Court Act, which came up for interpretation in the case of Construzioni Generali Farsura Cogefar-S.O.A. V. Nigeria Ports Authority and Joseph Warren Mcewen (1972) 12.S.C 107 at 110-111 per Coker J.S.C (as he then was), who was quoted in extenso.

The case of Bisi Oyeti v. Afolabi Soremekum (1963) 1 ALL NLR 349 at 350-351 per, Ademola CJN who was also quoted profusely and Vaswani Trading Company V. Savalakh & Company (1972) 12 SC 77 at 81-82 per Coker JSC., whose dictum was further reproduced also in extensor, were further cited to submit that generally, it is the law that the Courts will not ordinarily want to deprive a successful litigant of the fruits of his Judgment; as it is not the practice of the Courts to do so. The Courts, he therefore noted, have established the principle of not granting stay of execution of the Judgment of a Court unless in special and exceptional circumstances. In other words, he maintained, the Applicant must be able to show special and exceptional circumstances in the case which would warrant the grant of Order sought. These principles of law he further pointed out were set out by the Supreme Court in the well known case of Vaswani Trading Company, Savalakh & Company (supra) per Coker JSC.

The learned Senior Counsel then submitted that it is with the hindsight of the principles established in the Vaswani case above cited, that one must now seek to find out if in the circumstances of the present application, there are circumstances which can be described as special which will warrant the grant of the order sought by the Appellant/Applicant.

    In this wise, he highlighted the averments in paragraphs 5, 6, 7, 13, 15 and 18 of the Affidavit sworn to by Olusegun Balogun Esq. on behalf of the Appellant/Applicant, submitting that the pith substance of the complaint of the Appellant/Applicant against the Judgment of the Court below is the award of both special and general damages in the figures quoted in respect of the damages. The Applicant, he further submitted, is urging us to grant an unconditional stay of execution against the Judgment of the lower Court which no doubt made an Order of conditional stay of execution, as is quoted verbatim in paragraph 2 of the Appellant/Applicant's Written Address.

Referring us to UBN Ltd. v. Odusote Bookstore Ltd (1994) 3 NWLR (pt. 331) 129 at 149 - 150; per Uwais, JSC (as he then was), a case in which there was an award of special and general damages which is not completely dissimilar with the present case; it was submitted that in the present application, the award of damages is for special and general damages and there are grounds of Appeal against the said awards. He asserted further that the res to be preserved is the consequential award made by the Court below and in view of the foregoing facts we were urged to grant the prayers sought by the Appellant/Applicant on the Motion Paper for the following reasons:

(i) Because the Appellant/Applicant has shown that the Respondent has not shown sufficiently that he has the means of refunding this sum of money awarded as damages if the same is paid to him.

(ii) Because the Grounds of Appeal filed by the Appellant/Applicant against the award of damages are arguable and sustainable.

(iii) Because the award of general damages is a consequential award and is part of the res to be preserved.

(iv) Because the Appellant/Applicant has already taken steps that would enable the Appeal to be disposed of within reasonable time.

(v) Because the Appellant/Applicant will eventually be able to pay the sums awarded against it by the trial Judge in the event the Appeal fails.

ARGUMENTS OF THE RESPONDENT ON HIS SOLE ISSUE

Reacting to the submissions of the learned Senior Advocate for the Applicant, the learned Counsel for the Respondent alluded to order 4 Rules 6 and 11 of the Court of Appeal Rules, 2011 which contrary to the position maintained by the learned Senior Counsel has taken in paragraph 7 of his Written Address where he relied on Order 7 Rule 3 of this Honourable Court.

Learned counsel for the Respondent submitted that order 4 Rules 6 and 11 have no bearing with the prayers sought by the Applicant. He then stated the purports of those Rules submitting that the failure of the Appellant/Applicant to bring his case within the apposite Rules of this Honourable court taints the application with procedural irregularity which is incurable in law. The cases of Solanke v. Somefun (1974) 1 SC 141 at 148 per Sowemimo JSC (as he then was) and Owners of the MV "Arabella v. Nigeria Agricultural Insurance Corporation (2008) 5 SCNJ 109; where the Supreme Court emphasized compliance with rules of court were relied upon to submit that from the foregoing, it follows logically that Appellant/Applicant who seeks for grant of equitable relief must have fully complied with the Rules of this Honourable Court.

On the substance of this Application, it was his submission that it is elementary principle of law that the grant of stay of execution is a matter of discretion which should be exercised judicially and judiciously. The case of SPDC v. Arho-Joe (Nig.) Ltd. (2003) FWLR (pt. 184) 307 at 314 was cited to buttress the above submission, adding that, the discretionary powers vested in the Court is to put the competing rights of the parties in this application on the imaginary scale with a view to determining on whose favour the preponderance of evidence tilts and in doing so the Court is guided by principles. Placing reliance on the case of Governor of Oyo State V. Akinyemi (2002) FWLR (pt. 120) 1761 at 1772, the learned Counsel for the Respondent also submitted in tandem with the earlier argument by the learned Senior Counsel, that the grant or refusal of the Application is based on the Appellant/Applicant showing special and exceptional circumstances as the Court will not make the practice of depriving a successful litigant of the fruits of his judgment.

Learned Counsel to the Respondent noted that what constitutes special and exceptional circumstances must transcend the ordinary and must have some elements of uniqueness, peculiarity, distinctiveness and functional intimacy outside the ordinary trend or stream of happenings. Highlighting the averments of the Appellant/Applicant in paragraphs 6 and 7 of her affidavit, which are that their concern is that the Respondent's financial status is unknown, it was submitted that these fears have been allayed in paragraphs 10 and 11 of the Counter-Affidavit of the Respondent which disclose the status of the Respondent/Family Member which status is doubtless and judicially noticed.

It was again submitted that the Court below acting on the clarion call for justice in the matter ordered for the Judgment sum to be paid to the Registrar for onward payment into an interest yielding Account whereby parties would be at liberty to request for quarterly statements of the Account. Furthermore, it was submitted that the Judgment sum is without interest and this makes the order of the trial Court unassailable as the interest that would have accrued if the Judgment sum was paid into an interest yielding Account would cater for the possibility of the depreciation of the said sum in future. Thus, if the order of conditional stay is varied, learned counsel added, the Respondent stands the risk of losing the benefit or value of the Judgment if the appeal eventually fails considering the time the appeal may take in court.

He posed the question as to how the payment, of the Judgment sum into an interest yielding Account through the Registrar will work hardship against the Appellant/Applicant assuming the Respondent lacks the financial means to pay the Judgment sum in the event of the Appeal succeeding? On the contention by the Applicant that the payment into an interest yielding Account will foist upon the Court a situation of complete helplessness or render nugatory any order of the Court or how his right of Appeal would be truncated, the learned Counsel for the Respondent submitted per contra that the Appellant/Applicant has not so demonstrated how these situations would occur more so when he did not depose to any of such facts in her affidavit to this effect nor any argument canvassed in this direction.

Citing Okin Biscuits v. Oshe (2001) FWLR (pt. 41) 1932, learned Counsel again argued that the peculiar facts of this case are such that the Honourable Court ought to affirm the decision of the lower Court as Courts on general principles have the discretion to order payment of Judgment debt into interest yielding Accounts in the interest of justice, so that any party in whose favour Judgment is given at the end of the Appeal, will not suffer any loss. On the deposition of the Applicant in paragraphs 20 and 21 of her affidavit on lack of contingency funds, it was the learned Counsel for the Respondent's contention that this is an afterthought as such facts were not disclosed in the Court of first instance; and as such, this Court should not be persuaded by such averments as they were not substantiated with concrete evidence like Statement of Account and her Statutory Budget. For these submissions the cases of Ikeja Real Estate Limited v. National Bank of Nigeria (2000) ALL FWLR (pt. 9) 1448 at 1453 para. E per Sanusi, JCA and Live Stock Feeds Plc. v. Funtua (2005) ALL FWLR (pt. 286) 753 at 770 were relied upon to call on this Honourable Court not to exercise its discretion in favour of the Appellant for failing to show special and exceptional circumstances.

Citing again WAEC v. GCITF (2009) FWLR (pt. 453) 1299 at 1396 and Ajadi V. Ajibola (2004) 16 NWLR (pt. 898) 91; the learned Counsel for the Respondent again asserted that the Appellant also failed to show that her administration would be grounded if the Judgment Sum is paid to the Registrar or that the Appeal will suffer if the said sum is paid now and drew our attention to the inconsistent depositions in paragraphs 20 and 21 thereof which amount to approbating and reprobating. He also alluded to the lack of sincerity of purpose on the part of the Applicant as demonstrated in her failure to take concrete steps to prosecute her purported Appeal as the Records are yet to be transmitted to the Court of Appeal; after the expiration of the 90 days stipulated by the Rules, and that the Appellant/Applicant has delayed the prosecution of the Appeal notwithstanding the pendency of Application for extension of time to transmit the Records.

Relying again on the authority of Mobil Oil Nigeria Plc. V. Rabiu (2003) FWLR (pt. 149) 1546 at 1557; he submitted that where an Application for stay of execution has to do with monetary Judgment, the Grounds of granting it must conveniently be cogent in order not to unduly tie down the Judgment sum and cause injustice to the Judgment creditor.

Turning to the Grounds of Appeal filed by the Appellant/Applicant and the reliance the learned Senior Advocate placed on U.B.N Ltd. v. Odusote Bookstore Ltd. (supra), counsel for the Respondent posited that the Grounds of Appeal as enunciated in the Notice of Appeal are neither arguable nor substantial and the case cited by the learned Senior Advocate is not applicable to the facts, more so, when the learned Senior Counsel has conceded that the stay should not be granted in respect of the award of special damages.

In respect of general damages, learned Counsel pointed out that, stay was granted in that respect because the Respondent did not adduce evidence to show that the naira had depreciated when as in the instant case stay was granted by the lower Court because there was unimpeachable evidence of untold injury suffered by the Respondent. Learned counsel then cited with approval the dictum of Sanusi, JCA in Ikeja Real Estate Ltd. v. National Bank Nigeria (Supra) at 1453; on the assumption without conceding that the ground of Appeal on award of damages is anything to go by, submitting it is not an automatic yardstick. He added that his Lordship provided a complete answer to the case of Applicant herein at page 1453 paragraph F-G of the above cited case.

In the light of the above, the learned Counsel for the Respondent finally submitted that if this Court is minded to grant the Application, we should exercise our discretion judicially and judiciously in favour of the Respondent by ordering that the Judgment sum of N8, 173,230.00 (Eight Million, One Hundred and Seventy-Three Thousand, Two Hundred and Thirty Naira only), be paid to the Registrar who will in turn pay the money into an interest yielding account specifically opened for that purpose. We were therefore urged to dismiss the Application.

RESOLUTION OF ISSUES

I have carefully considered the submissions of the respective learned counsel for the parties in this Application and I intend to determine the merit vel non of same on the sole Issue formulated by the learned Counsel for the Appellant/Applicant. However, before doing this, I shall venture to comment on the preliminary issue of non-compliance with the Rules by the Applicant as canvassed by the learned counsel for the Respondent. The observation by the learned Counsel for the Respondent that whereas the learned Senior Counsel predicated this Application on Order 4 Rules 6 and 11 of the Court of Appeal Rules, 2011, the learned Senior Counsel rather predicated his arguments thereof on Order 7 Rule 3 of the Court of Appeal Rules, 2011 which provides thus:-

"3. Where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the refusal."

Besides, the learned Senior Counsel also relied on Sections 15 and 17 of the Court of Appeal Act, 2004, particularly Section 17 thereof along with the dictum of Coker, JSC in Construzioni Generalli Farsura Cogefar-S.O.A. (supra) which interpreted Section 24 of the Supreme Court Act and which authority along with Oyeti V. Soremekun (supra), empowers this Court to hear applications of this nature where a Court of first instance refused such an application or to vary the order of the Court of first instance where the conditions imposed by the Court of first instance are onerous. The Court of Appeal can also impose more favourable conditions for the stay of execution in spite of the earlier order made by the Court of first instance.

For the avoidance of doubt, section 17 of the 2004 provides as follows:-

"17. An appeal under this part of this Act shall not operate as a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court".

Also there is no doubt that the Supreme Court per Coker, JSC, had held in Construzioni Generali Farsura Cogefar-S.O.A. v. Nigeria pott Authority and Joseph warren Mcewen (1972) 12 S.C. 107 at 110-111

while construing section 24 of the Supreme Court Act which is in pari materia with section 17 above quoted that:

"We are in agreement with learned Counsel for the applicant that Section 24 of the Supreme Court Act does give this Court the power to order a stay of execution. We are also in igreement with him that this Court has the necessary jurisdiction to make an order for stay of execution on terms or conditions which may differ from those imposed by the Court below in granting a similar prayer. These matters were given consideration in the case of Oyeti v. Soremekun (1963) ALL NLR 349 where at page 351 this Court made the following observations:-

"It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High Court has been granted in the High Court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High Court are onerous or, for any other reason, are found unreasonable."

Furthermore, the earlier dictum of Ademola CJN in Bisi Oyeti V. Afolabi Soremekun (1963) 1 ALL NLR 349 at 350-351; is quite instructive on the point in issue when he posited thus:

"It was argued that in accordance with order 7 Rule 37 (supra), an application of this nature can be made to this court only if a previous application had been refused in the High court. As this is not the case here, the submission is that in case of dissatisfaction of the order made in the High Court, the Applicant may only appeal to this Court."

We are of the view that whilst proceedings by way of appeal to this court may be a remedy in such cases, it is not the only remedy.

The provisions of section 24 of the Federal Supreme Court Act, dealing with stay of execution, are worth of consideration. They state:-

"24. An appeal under this part (i.e. in civil cases) shall not operate as a stay of execution, either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court."

It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High court has been granted in the High court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High court are onerous or, for any other reason, are found unreasonable".

Learned counsel for the Respondent has rightly cited Solanke v. Somefun (1974) 1 S.C 141 at 148; where per Sowemimo, JSC, emphasized on the need for Rules of court to be obeyed or complied with and that any party or counsel seeking the exercise of the Court's discretionary power, must bring his case within the purview of the Rules upon which the Application is predicated and that upon failure to do so, it is but fair and right that the Court should refuse to exercise her discretionary power in favour of such a party. See also Owners of The M. V. "Arabella" v. Nigeria Agricultural Insurance Corporation (2008)5 SCNJ 109 at 120; cited by the learned counsel for the Respondent; Auto Import Export v. Adebayo (2003) 2 M.J.S.C 44 at 60; Ibodo v. Enarofia (1980) 5-7 S.C 42 and Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) at 181 para. C.

However, the omission or error in stating the Rules under which the Application is brought (assuming there is any such omission which is not the case herein), is not such an irregularity which goes to the substance of the application so as to vitiate it as purported by the learned counsel for the Respondent. See per Tobi, JSC, who posited in Abubakar v. Yar'Adua (2008) 4 NWLR (pt. 1078) 467 at 510 paras. H, that as a matter of our adjectival law, and by the state of the noncompliance Rules, the Courts will regard certain acts of conducts of noncompliance as mere irregularity which could be waived in the interest of Justice, (assuming the learned Senior Counsel for the Appellant/Applicant was wrong in citing Order 4 Rules 6 and 11 (which is not the case).

For instance Rule 6 of Order 4 of the Court of Appeal Rules, 2011 empowers the Court to make orders by injunctions or appointment of a Receiver or Manager, and such other necessary orders for the protection of property or person, pending the determination of an appeal to it, even though no application for such an order was made in the lower Court. The application for unconditional stay of execution is such an application envisaged by the Rule above cited.

Again, the Learned Counsel for the Respondent cannot seriously contend that Rule 11 of Order 4 does not apply to the prayers sought in this Application. That Rule for instance charges and empowers the Court to be seised of the whole proceedings between the parties once an appeal had been entered and until finally disposed of and except as otherwise provided by the Rules, every Application therein shall be made to the Court and not to the Court below, but any Application may be filed in the Court below for transmission to the Court. From the foregoing provisions, the Rules 6 and 11 cover this Application.

Assuming however that the prayers in the motion are not covered by the afore-stated Rules, let it be emphasized for the umpteenth time, that the era of strict and slavish adherence to technical and mechanical Rules of procedure, is gone for good as Courts nowadays are more disposed to doing substantial justice. This position of the Law is encapsulated in Order 4 Rule 6 and more particularly Order 20 Rules 2 and 3(1) which provides that the Court may direct a departure from the Rules in anywhere this is required in the interest of justice. Furthermore, the Court may, in exceptional circumstances, and where it considers it in the interest of justice so to do, waive compliance with the Rules or any part thereof.

The above provisions of the Rules, is the essence of the dictum of Tobi, JSC, in Abubakar v. Yar'Adua (supra) at 511 paras E.G; that although Rules of Court are meant to be obeyed for that is why they were made, they should not be slavishly obeyed to the extent that justice in the case is asphyxiated, muzzled, destroyed and jettisoned over-board for the barometer for measuring a judicial process by the public is whether justice has been done to the parties, therefore his Lordship had admonished the Courts to do justice even if some harm is done to some procedural Rule like the one canvassed. See again Orient Bank (Nig) Plc. v. Bilante International Ltd. (1997) 8 NWLR (pt 155) Per Tobi, JCA, (as he then was) explaining the purport of the provision of Order 19 Rules 2 and 3(2) of the Court of Appeal Rules which were in pari materia with Order 20 Rules 2 and 3(1) of the current Court of Appeal Rules, 2011.

On the whole, the submission of the learned Counsel to the Respondent on the preliminary point, is erroneous in that by the provisions of Sections 15 and 17 of the Court of Appeal Act alone, the Application is competent and can be sustained if the legal requirements are fulfilled.

This takes us to the substance of the Application. It would appear that the learned Counsel on both sides of the divide are ad idem and the learned Senior Advocate has rightly cited the locus classicus of Vaswani Trading Company v. Savalakh & Company (1972) 12 SC 77 at 81-82 wherein Coker, JSC (as he then was), stated the law in these words:-

"When the order or Judgment of a lower Court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or Judgment appealed against is correct or rightly made until the contrary is proved or established and for this reason the Court, and indeed any Court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observations of Bowen L.J. in The Annot Lyle (1886) 11 P. 114 at P. 116). We take it that the word "special" in this context is not used in antithesis to the words "common" or "normal" for that would be tantamount to pre-judging the appeal on a determination of an application for stay of execution. When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving 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 hopelessness or render nugatory any order or orders of the Court of Appeal or 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 will be no return to the status quo."

The respective learned counsel for the parties have also rightly enunciated position of the law on the principles informing the grant or refusal of an Application for stay and in particular the learned counsel for the Respondent has hit the nail on the head when he posited citing the authority of SPDC v. Arho-Joe (Nig.) Ltd. (2003) FWLR (pt.184) 307 at 314 and Governor of Oyo State v. Akinyemi (2002) FWLR (pt. 120) 1761 at 1772; to submit that the grant of the application calls for the judicious and judicial exercise of the Court's discretion predicated on the juxtaposition of the competing interests of the parties.

As I said elsewhere in University of Ilorin v. Adesina (2008) All FWLR (Pt. 400) 709 at 726-730; particularly at page 727 paras. D-H and 728 paras. A-H; the factors to be taken into consideration before a Court can grant or refuse an Application of this sort have been the subject of decisions in a welter of cases within our jurisprudence. Suffice it to say however, by way of emphasis that (see for instance the case of Vaswani Trading & Co. Ltd. v. Savalakh & co. (supra); Wey V. Wey (1975) 1 SC. 1 and Odufuye v. Fatoke (1975) 1 NMLR 222); the Court does not form the habit of depriving a successful litigant of the fruits of his Judgment and thus seldom grants a stay of execution of the Judgment of a Court of competent jurisdiction which is always presumed to be sacrosanct until set aside by the court of Appeal. Thus, until the Applicant, as in this case, has been able to show special and exceptional circumstances, this court even in its appellate jurisdiction cannot deprive the Plaintiff/Respondent albeit momentarily of the fruits of her victory.

Generally speaking, the basic factors to be taken into consideration in granting or refusing an Application for stay of execution of a Judgment of a Court of competent jurisdiction are as follows:

1. There must be the existence of a valid appeal. See Mobil Oil Ltd. v. Agadiagho (1988) 4 SCNJ 174 and Martin v Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt. 74) 75.

2. The Grounds of appeal must be substantial and weighty and raise recondite point of law which are capable of tilting a scale of justice one way or the other. See Ajomale v. Yaduat (No. 2) (2003) FWLR (Pt. 182) 1913 at 1935; Balogun v. Balogun (1969) 1 All NLR 349 at 351.

3. Conduct of the parties it has been held that since stay of execution is an equitable relief the parties must come with clean hands and in particular the Applicant must not be blame-worthy either in his previous and present conduct to the Court and other parties to the case in the manner of the presentation of his application. See Momah v. VAB Petroleum Incorporated (2000) FWLR (Pt 5) 806 S.C; Ikeja Real Estate Ltd. v. N.B.N. Ltd. (2000) FWLR (Pt. 9) 1448 C.A and A.G Anambra State v. Onitsha North Local Government (2001) FWLR (pt. 45) 622; where the Supreme Court in spite of the weighty grounds of the appeal refused to grant the application for stay on the ground of the unpalatable conduct of the Applicant.

4. Existence of special circumstances and the need to protect the res - the term "special circumstance" may include:

(a) Where the Ground of appeal is such that if the appeal eventually succeeds after the refusal of stay, an irreparable damage, injury or injustice shall have been occasioned such that there can be no return to the status quo ante; See Dr. Dada v. Unilag (1971) UILR 344; Utilgas Nigeria & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 S.C. 105; (1974) 1 ALL NLR (pt.2) 47.

(b) That the res shall have gone so that the successful party will reap an empty victory if the appeal is in his favour. See Wilson v. Church (No. 2) 1879 12 Ch. D. 454 at 458 and Iriri v. Erharhobare (1979) 3 L.R.N 261; Vicent v. Xtodeus (1993) 6 SCNJ (Pt. 11) 283.

(c) The need to prevent foisting a situation of complete hopelessness and helplessness so as to render the Judgment of the Court of Appeal nugatory. See Kigo (Nig) Ltd. v. Holman Bros.  (Nig) Ltd. (1980) 5-7 SC, 60; Fatoyinbo v. Osadenyi (2002) 5 SCNJ 160 at 174 and Vaswani Trading Co., v. Savalakh Co., (Supra).

(d) Finally, where the Judgment is in respect of money and costs there is a reasonable probability of recovering these back from the Respondent if the Appeal succeeds. See Lawrence Ogboeju Ebegbuna v. J. O. Ebegbuna (1974) 3 W.S.C.A. 29. Poverty is not a special ground for granting the stay of execution except where the effect will be to deprive the Appellant of the ability to prosecute his appeal. Nwajekwu Emefisi & Ors v. Mbanugwo & Ors (1970-71) 1 ECSLR 100, Lijadu v. Lijadu (1991) 1 NWLR 627 at 643; Okafor V. Nnaife (1987) 4 NWLR 139; Nwabueze v. Nwosu (1988) 4 NWLR 257 (S.C.).

In recent times the Courts have held that the mere assertion by the Applicant that, if the judgment-debt is satisfied he cannot successively prosecute the appeal is not enough to warrant the grant of his application for stay of execution, so also will his assertion on the enormity and substantiality of the debt not constitute special circumstance for the grant of his application. In Anyaogu & Ors. V. Our Line Limited (1993) 4 NWLR (Pt. 289) 607; Ugwu & Ors. V. Ogbuzuru & 3 Ors. (1973) 3 ECSLR (Pt 11) 253; Abubakar v. Ali (1999) 1 NWLR (Pt. 588) 613 C.A. University of Ilorin v. Akinola (2007) All FWLR (Pt 372) 1844 C.A; Mobil Producing Nig. Unlimited v. Monokpono (2001) FWLR (Pt. 49) 1516 and Governor of Oyo State v. Akinyemi (2002) FWLR (Pt. 120) 1761; it was variously held that for a party to convince the Court to grant a stay of execution on ground of his financial disability to satisfy a monetary debt, he must disclose the sources of his income with the utmost candour and also the magnitude of his liabilities.

Indeed, as far as the grant of stay of execution of monetary Judgment is concerned I reiterate our stand in Unilorin v. Adesina (No. 7) (supra) at pages 727-728; quoting the illuminating dictum of Adekeye, JCA (as he then was) in Oladimeji-Ise-Oluwa Ltd. v. N.D. Ltd. (2001) 18 WRN 28 at 36-37 that:

"In a judgment involving money the terms upon which the Court would grant a stay are easier to determine than in other judgments where the res is perishable or prone to alteration. The terms-are-briefly stated thus:

1. Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal.

2. Whether it would be difficult to secure the refund of the judgment/debt and costs from the respondent if the appeal succeeds. For this purpose, the financial ability of the respondent is taken into account- Considerations in favour of the respondent are as follows:-

(a) The fact that the respondent is entitled to reap the fruits of the judgment for that is the whole essence of litigation.

(b) The court has a duty to ensure that the successful party reaps the benefit of his successful litigation.

(c) The applicant seeking to deprive a successful litigant of the fruit of his labour must show substantial reasons why the court must grant the application".

See also Per Abdullahi, JCA, in Ikere Local Government v. Adelusi (2008) All FWLR (Pt. 404) 1534; Okonkwo v. Nyamoko (2007) All FWLR (Pt 365) 608 and Odedeyi V. Odedeyi (2000) FWLR (Pt. 3) 489.or the avoidance of doubt, section 17 of the Court of Appeal Act, 2004 provides as follows:-

"17. An appeal under this part of this Act shall not operate as a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court".

Going by all these authorities the pertinent question that calls for an answer is whether from the totality of facts deposed to in the Affidavit of the Applicant and Counter Affidavit of the Respondent nay the surrounding circumstances of this case, the Applicant has furnished us with special and exceptional circumstances to warrant the grant of her application for unconditional stay of execution of the Judgment of the Lower Court and to vary the order of the Court below.

To answer this question it is first of all necessary to determine whether there is a pending appeal with weighty grounds with the likelihood of success in this Honourable Court. From my careful perusal of the case file there is an Amended Notice of Appeal dated 31st day of January, 2012 but deemed filed on the 15th of March, 2012 and upon further perusal of the Twelve Grounds of the Appeal contained in the Notice of Appeal and the Particulars thereof, I have noticed that, except for Ground I which complains of the decision of the lower Court being unreasonable and unsupported by the weight of evidence, all other Grounds complain either of misdirection or mostly errors in law, committed by the lower Court in the course of its Judgment; In line with the decisions in Utilgas Nigeria and Overseas Gas Co. Ltd. v. Pan Afrian Bank Ltd. (1974) 10 S.C. 105; Mobil Oil Plc v. Rabiu (2003) FWLR (pt. 149) 1546; Mobil Oil Ltd. v. Agadiagho (Supra); Martin v. Nicanner Food Co, Ltd. (Supra); Balogun v. Balogun (Supra); Ajomale v. Yaduat (supra); Okafor v. Nnaife (supra); there is an appeal properly before this Court with the judgment sought to be stayed dully annexed to the Application and the Appellant/Applicant has demonstrated from the Grounds of Appeal, that the appeal involves substantial point or points of law that ought to have necessitated the parties and matters to be kept in status quo ante; until legal issues arising there from are resolved.

Turning to the facts in support of this Application it is also worth the while, to have recourse to the Affidavit and Counter-Affidavit of the parties. In the Affidavit in support of the Application, the Appellant/Applicant particularly relied on the averments in paragraphs 5, 6, 7, 8, 9, 11, 15, 20, 21, 22 and 23; wherein Olusegun Balogun Esq., stated the main reasons for the application inter alia:- 

"5. I have found out from the Judgment of the trial Court that a total sum of N3, 138,230 (Three Million, One Hundred and thirty Eight Thousand, Two Hundred and Thirty Naira) has been awarded against the Applicant as special damages.

"6. On Wednesday the 26th October, 2011 in my office at No. 42 Sultan Road, Ilorin at about 12 noon, I was informed by Dr. (Mrs.) Y. C. Ayo Bello, the Director of Administration of the Applicant at about 10 a.m. on 22nd day of October, 2011 in our office and I verily believe her that very little is known about the Respondent in this case and their financial means.

"7. The said Dr. (Mrs.) Y. C. Ayo Bello, informed me at the same time and place and I verily believe her that if the said sum of money awarded against the Appellant is collected by the Respondent, it may become considerably difficult to recover the said sum of money from the Respondent in the event the Appeal succeeds.

"8. The Applicant through the said Dr. (Mrs) Ayo-Bello has promised to make the necessary arrangements to expedite the processes of getting the record of proceedings of this Honourable Court transmitted to the Court of Appeal timeously.

"9. I have read through the Notice of Appeal Exhibit OB2 herein and I have found that it has raised very substantial point which make the Appeal arguable and substantial.

"11. I know as a fact that if the Appeal succeeds, the Appellant may have foisted on it, a situation of complete hopelessness.

"15. The complaint of the Applicant is against the award of both the special and general damages awarded against the Applicant in favor of the Respondent. The fact is shown on the Notice and Ground of Appeal Exhibit OB2.

"20. I was also informed by Dr. (Mrs) Y.C. Ayo-Bello and verily believe that the applicant a Federal Government institution operates its fund based on budgetary allocation. The judgment sum is not contained in the budget of the Applicant in fiscal period and there is no contingency fund available at the disposal of the Applicant.

"21. The current budgetary allocation of the Applicant had been designed for medical care of Millions of Nigerian citizens in line with Federal Government Medical Policy.

"22. The conditional order of stay of execution made by the lower Court will create untoward hardship on the Applicant.

"23. The applicant undertakes to prosecute the appeal expeditiously".

The Respondent on the other hand deposed in his 23 paragraph Counter-Affidavit, some salient facts in paragraphs 7, 8, 9, 10, 11, 16, 17 and 20 as follows:-

"7. That the Appellant/Applicant has now filed before this Honourable Court, a motion as well as the Affidavit in Support and the exhibit attached thereto dated and filed on the 27th October, 2011 for an Order, for the varying of the Order of stay of execution of the Federal High Court and granting unconditional stay of execution; 

"8. That I have had a cursory look at the said Motion and I have the reasonable belief that it is a calculated ploy to cause unwarranted delay and ultimately frustrate the Respondent herein from enjoying the fruits of his deserved Judgment.

"9. That I know as a fact distillable from the record of proceeding of the lower Court that the Respondent is an employee of the World Health Organisation (WHO) in Geneva, Switzerland.

"10. That the above fact has been restated by Mr. Ebenezer Abegunde's family who informed me in our chambers on the 3rd of October, 2011 at about 4 p.m. and I verily believe him that the Abegunde family and their buoyant financial status is well known.

"11. Further to the above and contrary to the depositions in paragraphs 6, 7 and 11 of Appellant's Affidavit in support of the Motion herein Mr. Ebenezer Abegunde did also inform me and I verily believe him that Dr. Dele Abegunde, the Respondent as an employee of the World Health Organization (WHO) in Geneva, Switzerland is capable of refunding the Judgment sum in the event that the appeal succeeds.

"16. Contrary to the deposition of the Applicant in paragraph 8 the Applicant has been causing unnecessary delay in the transmission of the record of proceedings in his case to the court of Appeal.

"17. That sequel to the above, I know as a fact that the 90 days within which the Appellant/Applicant is obliged to transmit the record of proceedings to the Court of Appeal after filing her Notice of Appeal has lapsed.

"20. Further to the above, I know as a fact that the cause of justice will be better served if the Applicant is asked to pay the judgment sum of Eight Million, One Hundred and Seventy Three Thousand, Two Hundred and Thirty Naira (N8, 173,230.00) only to the Registrar of this Honourable Court who would eventually pay same into an interest yielding account opened for that purpose".

Apart from the above averments, the Respondent also deposed to some other salient facts in paragraph 12, 13, 14, 15, 18 and 19 that:-

12. That the order of the lower Court which is sought to be varied was made in the spirit of balancing the interests of Appellant/Applicant and to justice.

13. That the Appellant/Applicant has not shown how she would be prejudiced or suffer inconvenience on account of the payment of the judgment sum to the Registrar of the court below.

14. That the averment of the Appellant/Applicant in paragraph 20 of her affidavit on the lack of contingency fund is an afterthought and a ploy planned and designed to pervert the cause of justice in the case.

15. That the deposition of the Appellant/Applicant in paragraph 21 of her affidavit that her current budgetary allocation has been wholly earmarked for medical care of millions of Nigerians is also an afterthought calculated to forestall the justice of the case.

18. That contrary to the position of the Appellant/Applicant in paragraphs 9, 10, 17 and 20 of her Affidavit in support, the Grounds in the Notice of Appeal are neither substantial nor arguable and the appeal has minuscule chances of success.

19. That contrary to the deposition of Appellant/Applicant in paragraph 20 of the affidavit in support the order of conditional stay of execution will meet the demands of justice in the case.
There appears to be no Further-Affidavit by the Appellant/Applicant to counter the averments in the above enumerated paragraphs of the Respondent's Counter Affidavit and these facts are deemed admitted. See Maersk Line & Anor. v. Adide Investment Ltd. & Anor (2002) 4 SCNJ 433. Ordinarily, with those admissions the Application ought to be dismissed without much ado. However, the foregoing scenario not withstanding we shall now consider whether from the averments in the Applicant's Affidavit, apart from the substantial nature of the Grounds of Appeal, there are other special and exceptional circumstances why this application should be granted. In answering the question, it would appear that the learned counsel for the Applicant hinged the substratum of the grouse of the Applicant in the excerpt of the learned trial Judge's holding as contained in Ground xii of the Notice of Appeal which avers thus:

"I am also of the view that the death caused untold agony, emotional distress, travails and deep trauma to the negligent treatment that resulted in the untimely and avoidable demise of the deceased. The circumstances are particularly traumatic as PW1 and other family members watched as the deceased died from lack of care in a hospital that is a Teaching Hospital. In the circumstances, I award N5 Million as general damages".

PARTICULARS

a. The relationship between the deceased and the defendant is contractual. 

b. General damages cannot be awarded in an action for breach of contract. 

c. The award along with Special Damages amounts to double compensation.

d. The trial Judge took into consideration extraneous issue".

As I said earlier, this Ground of Appeal and others are quite weighty and substantial but suffice to say that there are authorities galore in support of the view that the mere fact that the grounds of appeal are indeed very weighty and arguable and could tilt the justice of the case at the appellate court in favour of the Applicant is not enough to warrant the grant of a stay of the execution of this Judgment in the absence of other factors like Applicant's conduct, balance of convenience, etc which ought also to be taken into the account by the Court. Momah v. VAB Petroleum Inc. (2000) FWLR (pt. 5) 806 S.C. and Okoya v. Santilli (1990) 3 SCNJ 83. 

Talking of conduct of parties, the Applicant as has earlier been noted has been accused of unpalatable conduct calculated to pervert the cause of justice in paragraphs 11, 14, 15, 16 and 17 of the Respondent's Counter-Affidavit which was not controverted. I reiterate what I said earlier that, an application for stay of execution calls for the exercise of the Court's equitable jurisdiction; hence parties herein must come to court with clean hands. The Appellant/Applicant in this case at least as at when this application was filed, had not transmitted the Record of Appeal to this Court neither had she filed her Brief of Arguments and since she is the one desperately seeking the court's discretion, she must be completely exonerated from any blame, either in his previous and present attitude to the Court or his conduct before it. She also should be seen to be wary of any untoward conduct or attitude towards other parties to the case or in the manner she has presented her application for a stay of execution to the court. See Okoya v. Santilli (1990) 3 SCNJ 83; Momah v. VAB Petroleum Inc (2000) FWLR (pt. 5)806 S.C.; N. I.P.S.S v. Osigwe (2008) 6 NWLR (pt 1083) 239 C.A.; Ikeja Real Estate Limited v. N.B.N. Limited (2000) FWLR (pt. 9) 1148 C.A.; Delta v. Wema Bank Limited (1999) 4 NWLR (pt 501) 624 and Lijadu (1991) 1 NWLR (pt. 169) 621.

Apart from the above, the learned Counsel for the Respondent has highlighted contradictions and drawn our attention to the inconsistent depositions of Appellant/ Applicant in her supporting affidavit and that in one breath, in paragraph 16 thereof, the Appellant/Applicant averred that she has the ability and willingness to pay the Judgment debt in the event that the Appeal fails; while in another breath, she deposed in paragraph 20 and 21 that, the Applicant fears that her current budgetary allocation would not accommodate the Judgment Debt in this case. I agree completely with the learned Counsel for the Respondent that the posture taken by the Applicant amounts to approbating and reprobating which the law prohibits. See Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 97.

In Ikeja Real Estate Limited v. N.B.N Limited (2000) FWLR (pt. 9) 1448 C.A.; this Court held relying on Oduba v. Houtamangracht (1997) 6 NWLR (Pt 508) 185 and Eze v. Okolonji (1997) 7 NWLR (Pt. 513) 515; that the contradictions in the applicant's evidence on very serious and important issues of fact betrayed him as a dishonest person, which made him not to be seen as a person with clean hands who would attract the court's sympathy in his application for a stay of execution. Furthermore, where the applicant unnecessarily delays the hearing or take-off of the appeal filed by him to the Court of Appeal, a stay of execution will not be decreed in his favour. The learned Counsel for the Respondent was therefore on sound pedestal when he submitted that, the only logical reference which flows from the above analysis is that there is a clear absence of sincerity of purpose on the part of the Appellant/Applicant to comply with the Judgment of the lower Court.

The Appellant/Applicant has also not answered to the allegation by Respondent on the point that she did not depose to the facts of lack of contingency funds to pay the Judgment Sum and that the current budgetary allocation has been designed to meet the medical needs of Nigerians at the trial Court as done now in Paragraphs 20 and 21 of the supporting affidavit to the application before this Honourable Court. Consequently, I also agree that the failure of the Appellant/Applicant to depose to the facts as presented in paragraphs 20 and 21 of the supporting affidavit at the trial Court; is grossly fatal to her case and this Honourable Court cannot be favourably dispose or persuaded to exercise its discretion in her favour.

Going to the merits of the depositions in paragraphs 20 and 21, we had held in Unilorin V. Adesina (No. 1) (supra) and reiterate herein that in order for the Applicant to benefit from the discretion of this Court, where as in this case, she claims that she lacks contingency funds and that her budgetary allocation is to cater for the medical care of millions of Nigerians it behoves on her to furnish this Court with all the sources of her income like her statements of account, budgetary allocation for this fiscal year as purported and financial liabilities, with utmost candour. This she failed to do and that failure is fatal to her case. Accordingly, the dictum of Sanusi, JCA, in Ikeja Real Estate Limited v. National Bank of Nigeria (2000) All FWLR (pt. 9) 1448 at 1453; and other authorities like Live-Stock Feeds plc. V. Funtua (2005) ALL FWLR (pt. 296) 753 at 770; W.A.E.C. V. G.C.I.T.F (2009) F.W.L.R (Pt. 453) 1299 at 1396 and Ajadi v. Ajibola (2004) 16 NWLR (Pt. 898) 91; are very instructive.

Finally, on the heavy weather made of UBN Ltd. v. Odusote Bookstore Ltd (1994) 3 NWLR (pt. 331) 129 at 149 - 150; wherein Uwais, JSC (as he then was) opined as follows:-

"The amount due to the Plaintiff as special damages has been determined by the trial Court and the Court of Appeal to amount to N12, 040,641.76. Surely the Plaintiff is entitled to receive this amount. It is inequitable for the Defendant to continue to use it in order to further its own business. This is improper and should not be allowed because the balance of convenience is on the side of the plaintiff and not the Defendant. A stay of execution in respect of this part of the Judgment debt cannot, therefore, be granted.

Next is the general damage in the sum of N20, 000,000.00 awarded by the lower Courts and in respect of which there is appeal as contained in grounds 6 and 7 of the Notice of Appeal filed by the Defendant. The two grounds shorn of their particulars read:-

(6). The Court below erred in law in holding that the award of N20, Million should be based on rate of inflation and the fluctuations of the value of naira in the world market and thereby came to the wrong decision in the appeal. 

(7). The Court below erred in law by holding that the award of N20 Million as general damages was valid without properly considering the submissions made thereon and thereby came to a wrong decision in the appeal.

It seems to me this is the res to be preserved in the case because it is a consequential award. The balance of convenience and justice of the case demand that the status quo prior to the Judgment of the High Court should be maintained until the decision of this court, in the appeal, is delivered".

that case must have been decided on its peculiar facts and circumstances and is not apposite to the facts of this case.

All said and done, the authorities are now replete and settled that no matter how weighty the Grounds of Appeal of an Applicant for stay are, that alone without other factors which had earlier been highlighted, cannot ground the grant of the Appellant/Applicant's Application for stay of execution of the Judgment of a Court of law which is deemed sacrosanct; unless and until special and exceptional circumstances have been furnished by the Applicant. See the dictum of Sanusi, JCA in Ikeja Real Estate Limited v. National Bank of Nigeria (2000) All FWLR (pt 9) 1448 at 1453; which I adopt as mine. In this case, the Applicant has not shown any other special or exceptional circumstance(s) that would warrant this Honourable Court to depart from the position taken by the learned trial Judge and to grant this application for unconditional stay of execution of the Judgment of the lower Court.

Indeed, the situation warranting the grant of conditional stay of execution by the Court below, has not changed from what it was hitherto except for the surreptitious/afterthought averments by Appellant/Applicant that she did not budget for contingency funds and that whatever funds were available to her were to cater for the health care of millions of Nigerians which we must and have discountenanced in rejecting this spurious and frivolous application calculated to bid for time in order to deprive the Respondent and his siblings of the fruits of their hard earned victory in the lower Court.

On the whole, I agree totally with the learned counsel to the Respondent that, the Order of conditional stay of execution as granted by the lower Court was done in the best interest of justice and on the balance of the interests of the parties to this suit, since the Judgment sum would be deposited in an interest yielding account for the parties to abide the Judgment of this Honourable Court or the apex Court; if there is any need thereof. This Application is therefore unmeritorious and is accordingly dismissed. Parties shall bear their respective costs.

TIJJANI ABDULLAHI, J.C.A.: I read in advance the lead Ruling of my learned brother, Agube, JCA, and I am in complete agreement with his reasoning and conclusions brilliantly arrived at. I have nothing useful to add to what had been marshaled out in the said Ruling by the law Lord.

I too dismiss the application as lacking in merit and parties shall bear their respective costs as contained therein.

OBANDE OGBUINYA, J.C.A.: I have had the privilege to read, in draft, the dazzling leading ruling delivered by learned brother, Ignatius Igwe Agube, JCA. I endorse his reasons and conclusions therein.

Indubitably, for an applicant for stay of execution to earn the favourable discretion of a court, he must, amply, demonstrate, by dint of an affidavit, special or exceptional circumstance which a court will use as a springboard for its judicious and judicial exercise of discretion. In the eyes of the law, a special or an exceptional circumstance is: "a peculiar or unique circumstance which is additional to the ordinary state of affairs", See Nika Fishing vs. v Lavina Corp (2008) 35 NSCQR 1 at 39, Per Tobi JSC; N.I.W.A. v. SPDCN Ltd. (2008) 13 NWLR (Pt. 1103) 48.

Here, the applicant's supplication is for a variation of the conditional order of stay of execution, deposition of the judgment debt with the registrar of the lower court for payment into an interest yielding account with First Bank of Nigeria Plc or United Bank for Africa Plc within Ilorin, to an unconditional stay of the lower court's judgment debt. Now, I have given an intimate study/scrutiny to the applicant's affidavit. Curiously, throughout the length and breath of that affidavit, I cannot locate, or even stumble or, where it averred facts touching on the impossibility of return of the judgment sum to it should its appeal succeed. In the case of Olunloyo v. Adeniran (2001) 4 NWLR (Pt. 734) 699 at 714 Uwaifo, JSC, lucidly stated:

"There can be no argument that a court has discretion to stay the execution of its judgment or that of another court.... But in order to properly exercise that discretion, it does not as rule have to base it on matters of defence of law or relief in equity which themselves in appropriate circumstances must be raised in the action itself. There must be special circumstances disclosed by the applicant seeking stay which render it inexpedient to enforce the judgment. The special circumstances which the court will take into account to entitle it to a stay of execution of the judgment are, as a general rule, such circumstances which go to the enforcement of the judgment and not those which go merely to its correctness...."

The applicant failed/neglected to present before this court, via its affidavit, an unusual or peculiar circumstance that will make it inexpedient to enforce the judgment debt, which will be lying idle in a bank and waiting for collection by a successful party, should its appeal, before this court, sail through. In the glaring absence of such pivotal material facts, which  are desiderata here, this court will be insulting the law to grant the application. This is because, this court, like any other court, is mandated by law not to dish or dash out its discretionary power in vacuo, in this specie of application, but upon material exceptional circumstance. It is for this patent paucity or want of that an unusual circumstance, that I decline the applicant's inviting invitation to tinker with and vary the conditional order of stay of execution, generously, ordered by the lower court. In the result, I resolve the solitary issue in the application against the applicant.

Flowing from these reasons, coupled with the detailed ones advanced in the leading ruling, I, too, visit dismissal on the application. I abide by the consequential orders made in the leading ruling.

     Appearances       

Olajide Ayodele SAN with him Manzumu Isa Esq.; Yaqub Omotosho Esq.; Bola Ayodele Esq. and Philips Afolayan Esq.

For the Appelants

       

J.A. Amien (Mrs.) with Y.A. Alajo Esq.

For the Respondents