I.O. OLANIYONU (PLAINTIFF/APPELLANT)
BRITISH-AMERICAN INSURANCE CO., LTD. (DEFENDANT/RESPONDENT)
(1971) All N.L.R. 543
Division: Court of Appeal, West
Date of Judgment: 21st September, 1971
Case Number: SUIT NO. CAW/88/1970
Before: Kester, P., Eso, Akinkugbe, JJ.A.
Appeal from the High Court (West).
(1) The principle upon which the court would act when an application for a stay is brought in regard to a judgment wherefrom an appeal has been lodged to the Supreme Court is that the application must show that very exceptional circumstances exist to warrant the intervention of the court.
(2) The court will be slow to interfere with the rights of a successful litigant in a matter where an appeal has been lodged therefrom to the Supreme Court.
(3) Mere inability to repay the amount without anything further would not constitute exceptional circumstances to warrant the intervention.
(4) In this case, no exceptional circumstances had been shown to warrant the intervention of the court in this matter; consequently the application must be refused.
Case referred to:
Ibadan Sawmills and Timber Exports Ltd. v. S.C.O.A. Motors (H.M.E.D. Division) Suit N. CAW/3/1969.
APPEAL from the High Court (West).
SUIT NO. CAW/88/1970.
Odofin for the Applicants.
Somolu for the Respondent.
Eso, J.A.:-The application of the British-American Insurance Company Limited is for an order granting a stay of execution of the judgment delivered by this Court on 17th August, 1971.
By that judgment the appeal of Olaniyonu against the judgment of the High Court was allowed and we awarded a total damages and costs of £579.
The applicants now seek an order for a stay of this judgment pending an appeal against that judgment to the Supreme Court.
The grounds upon which the applicants rely for the order are set out in the affidavit of one Sikiru Agboola Lasisi a Law Clerk and the arguments of learned Counsel Mr Odofin in this Court. In the course of his arguments learned Counsel referred us to paragraphs 12, 13 and 14 of the aforesaid affidavit which state:-
"12 That the defendants are a reputable Insurance Company carrying on business throughout Nigeria and have sufficient assets within the jurisdiction of this Honourable Court to discharge their ultimate liabilities under any final judgment.
13 That to the best of my knowledge, costs in the sum of 60 guineas awarded against the plaintiff in the High Court has not been paid to the defendants and there is every reason to believe that, the defendants, should they make payment now, may well find it impossible to recover their money in the event of a successful appeal to the Supreme Court.
14 That the defendants are willing to enter into a bond for the payment of the judgment debt and costs in the event of their appeal to the Supreme Court being refused."
Counsel also referred to paragraphs seven and ten of the counter affidavit sworn by Olaniyonu himself. The paragraphs state:-
"7 That if the judgment debt with costs are paid to me, I have sufficient means to repay it back if judgment is given against me in the Supreme Court.
10 That a lot of hardship will be caused to me if the judgment debt and costs in this case is not paid to me until the appeal to the Supreme Court is determined at an uncertain future date."
Now we have already laid down the principles governing the granting of stay of judgment of this Court where there is an appeal from that judgment to the Supreme Court. In Ibadan Sawmills and Timber Exports Ltd. v. S.C.O.A. Motors (H.M.E.D. Division) in Suit CAW/3/69 delivered on 22nd July, 1969, we said as follows:-
"The principle upon which this Court would act when an application for stay is brought in regard to a judgment of this Court wherefrom an appeal has been lodged to the Supreme Court is that the application must show that very exceptional circumstances exist to warrant the intervention of this Court. This Court will be slow to interfere with the rights of a successful litigant in a matter where an appeal has been lodged therefrom to the Supreme Court...Mere inability to repay the amount...without anything further would not constitute exceptional circumstance to warrant the intervention."
Let us now examine the grounds relied upon in this application as revealed by the affidavits and submissions of learned Counsel. The sum total of all these is that the applicants are a reputable company with enough assets to satisfy the judgment debt whereas the judgment creditor had not paid the costs that were awarded against him in the High Court. The deponent, that is, the law clerk also said that "there is every reason to believe that the defendants (that is the applicants) should they make payments now, may well find it impossible to recover their money, in the event of a successful appeal to the Supreme Court." Neither the deponent nor the applicants have disclosed what this reason is or how the deponent came about the reason if it exists.
As against this, the judgment creditor said in his affidavit and this has not been controverted that he offered the costs of 60 guineas to the applicant's Counsel but this was returned. It is significant that throughout his submissions in court the applicant's Counsel who, incidentally, also argued the appeal before us, never adverted to this statement. He made no comments whatsoever on this portion of the counter affidavit.
In our view, no exceptional circumstance has been shown in this case to warrant the intervention of this Court in this matter and for these reasons we will refuse the application which is hereby dismissed with costs.