OWENA MASS TRANSPORT COMPANY LIMITED & ANOR V CITY EXPRESS BANK LIMITED  ANOR

OWENA MASS TRANSPORT COMPANY LIMITED & ANOR V CITY EXPRESS BANK LIMITED ANOR


IN THE COURT OF APPEAL
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE

ON FRIDAY, 4TH MAY, 2018


Suit No: CA/AK/70M/2016(R)

CITATION:

Before Their Lordships:

UZO IFEYINWA NDUKWE-ANYANWU, JCA

OBANDE FESTUS OGBUINYA, JCA

RIDWAN MAIWADA ABDULLAHI, JCA


BETWEEN

OWENA MASS TRANSPORT COMPANY LIMITED
ONDO STATE GOVERNMENT
(APPLICANTS)

AND

CITY EXPRESS BANK LIMITED (IN LIQUIDATION)
NIGERIA DEPOSIT INSURANCE CORPORATION (LIQUIDATOR)
(RESPONDENTS)


PRONOUNCEMENT


A. COURT
1. Discretion of Court – The ingredients that determine the exercise of judicial discretion

However, I would like to add that discretion in the judicial and legal context means equitable decision of what is just and proper under the facts and circumstances of a particular case guided by the principles of law. see Artra Industries Nig. Ltd. V Nig Bank For Commerce & Industries (1998) 4 NWLR (PT. 546) PG. 357, Doherty V Doherty (1964) ALL NLR PG. 299. It follows that the exercise of discretion is not binding on another Judge per Ngwuta JCA (as he then was) in Soyinka V Oni (2011) LPELR 4096. The law allows a Court to exercise its discretion in any issue concerning the matter before it. The law presupposes that, the trial Judge is in charge of his Court and in dispensing justice he must be allowed to exercise its discretion judicially and judiciously. Thus, Courts are entitled to exercise their judicial discretion in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the case. See Owners of M.V. Lupex V. N.O.C. & S Ltd. (2003) 15 NWLR (PT. 844) PG. 469, Panalpina World Transport (Holding) Ag V Jeidoc Ltd. (2011) LPELR 4828 per Ogunwumiju, JCA. A Court is therefore entitled to exercise its discretion but with a rider that it must be exercised judicially and judiciously. Per NDUKWE-ANYANWU, JCA. read in context

B. JUDGMENT AND ORDER
2. Stay of Execution of Judgment – What stay of execution means and what must be proven for a stay of execution to succeed

A clinical examination of the two issues reveals that they exhibit interwoven relationship. To this end, I will, for spacial constraint and conservation of scarce juridical time, amalgamate their settlement. The reason for the fusion is simple. They share a common target: castigation of the improper manner the lower Court exercised its discretion in the applicants’ application before it. The substantive/main prayer in the application is prayer 2 which, inter alia, is displayed at the cradle of this ruling. It can be gleaned from its tenor, that the applicants are soliciting for an unconditional grant of stay of execution of the lower Court’s judgment delivered on 18th June, 2015. On this note, the principles governing stay of execution will be employed in the determination of the application.

By way of prefatory remarks, stay of execution, a post-judgment proceeding, connotes the halting, suspension or postponement of the enjoyment of rights declared in favour of a party (Respondent) by a Court pending the determination of an appeal, see Shodeinde v. The Registered Trustees of the Ahmadiyya Movement-in-Islam (1980) 1-2 SC/63/ (2001) FWLR (Pt. 581) 1065; T. S. A. Ind. Ltd v. Kema Inv. Ltd. (2006) 2 NWLR (Pt. 964) 300; Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) 566; Integration (Nig.) Ltd. v. Zumafon (Nig.) Ltd. (2014) 4 NWLR (Pt. 1398) 479. Its main object/purpose is to keep the state of affairs in status quo in order to preserve the res, the subject-matter of the action, from being destroyed, dissipated or wasted pending the determination of an appeal, see Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570.

For an applicant, in an application for a stay of execution of judgment to succeed, the law places the onus probandi on him to establish, to the satisfaction of a Court, a special, an exceptional or an unusual circumstance. In the eyes of the law, a special or exceptional circumstance is: “a peculiar or unique circumstance which is additional to the ordinary state of affairs,” see Nika Fishing 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. As to what constitute special circumstances, the incisive and dazzling insights made by Coker, JSC, in Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at 82, a locus classicus on ingredients of special circumstances, are apposite. His Lordship, succinctly, stated:

…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 helplessness or render nugatory any order or orders of the Court of appeal or paralyze, 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.

See also, Oyelami v. Mil Admin. Osun State (1999) 8 NWLR (Pt. 613) 45; Onuzulike v. Commissioner for Special Duties, Anambra State (1990) 7 NWLR (Pt. 161) 252; Olunloyo v. Adeniran (2001) 14 NWLR (Pt. 734) 699; Kabba Multipurpose Co-operative Union Ltd v. Irewole Multiplepurpose Union Ltd. (2000) 11 NWLR (Pt. 500) 622; Advanced Coating Technology Nig. Ltd v. F.B.N. Plc. (2009) All FWLR (Pt. 471) 982.
It appears that special circumstances, in relation to application for a stay, are open-ended in the sense that one or more may germinate from a particular case depending on its facts, see NNPC v. B.C.E. (2004) 2 NWLR (Pt. 858) 484. In this wise, generally, recondite, arguable or substantial points of law in a ground of appeal and poverty, resulting in the applicant’s inability to prosecute an appeal, have been held to qualify as special circumstance to warrant a grant of stay, see Okafor v. Nnaife (1987) 9-10 SC 105; T.S.A. Ind. Ltd. v. Kema Inv. Ltd (Supra); NNPC v. Famfa Oil Ltd. (2009) 12 NWLR (Pt. 1156) 462; Odedeyi v. Odedeyi (2000) 3 NWLR (Pt. 650) 565.

The judgment of the lower Court, being sought to be stayed, is monetary judgment. In an application for a stay of money judgment, the exceptional circumstances which an applicant has to additionally show are: (a) That making him satisfy the judgment will make his financial position such that he will not prosecute the appeal. (b) That it will be difficult to secure a refund of the judgment debt and cost from a Respondent if the appeal succeeds, see Ikere L.G. v. Olumuyiwa Olufemi Auguston Adelusi (2008) All FWLR (Pt. 404) 1534; NNPC v. Famfa Oil Ltd (Supra).

It is incumbent on the applicants to establish one or two of these exceptional circumstances in order to earn the favour of the Court. The reason is obvious. This application which is deeply rooted in the provision of Section 17 of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004, is founded in an equitable remedy which, in turn, involves this Court’s judicial and judicious exercise of discretion. Discretion signifies the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797. Being an exercise of discretion, the law mandates the applicants, if they must attract the favourable discretion of this Court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. This is because a Court does not dish or dash out its discretion in vacuo, material facts being, invariably, desiderata for such judicial exercise, see Dongtoe v. Civil Service Commission, Plateatu State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Remawa v. N CBCFC Ltd. (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30.

The applicants woke up to that judicial responsibility, presentation of material facts for use by this Court as the barometer to gauge the success of their application, when they filed the 33 – paragraph copious affidavit in support of it.
A Judge, in exercise of discretion, must act judicially and judiciously. To act judicially denotes “… discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances.” See Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously… is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision.” See Babatunde v. P.A.S. & T.A. Ltd (Supra) at 164, Per Ogbuagu, JSC.

Now, the law compels an applicant in this specie of application to file an appeal before or simultaneously with it, see N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376. The applicants paid total obeisance to that legal commandment in that they lodged an appeal on 25th June, 2015 against the decision of the lower Court delivered on 18th June, 2015. It was registered as CA/AK/96/2016. It was heard, contemporaneously with the application, on 8th March, 2018. Incontestably, the applicants raised four issues of jurisdiction in the appeal. In the eyes of law, issue of jurisdiction is a special circumstance that will warrant a grant of stay of execution, see NNPC v. Famfa Oil Ltd. (2009) 12 NWLR (Pt. 1156) 162; Alawiye v. Ogunsanya (Supra); Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) 566.

However, by virtue of the provision of Section 122 (2) (m) of the Evidence Act, 2011, I take judicial notice of the appeal. This Court, duly, heard it, declared it unmeritorious and dismissed it. The after math of the misfortune of the appeal is far-reaching. In the first place, it implies that there is no pending appeal or substratum for the application to perch and command any validity. It has, ipso facto, become an orphan/parentless.
Again, this Court will not be foisted with a state of complete helplessness nor will its decision be mired in a nugatory by a refusal of the application. At once, this Court will not be greeted with any fait accompli vis-a-vis the subject-matter/res of the case. On this score, I hold the humble view that the issue of jurisdiction, which the applicants brandish as a special circumstance is totally rendered lame. It comes to naught and cannot fly.
Indisputably, the res, in the case between the feuding parties is the judgment sum of N82,900,000 (Eighty Two Million, Nine Hundred Thousand Naira) only. Indubitably, it is a monetary judgment. It falls within the province of executory judgment that is submissive to stay of execution, see Carrena v. Akinlase (2008) 14 NWLR (Pt. 1107) 262; S.P.D.C.N. Ltd. v Amadi (2011) 14 NWLR (Pt. 1266) 157; Iragbiji v. Oyewinle (Supra). The applicants struggled in their affidavit to satisfy the conditions for a grant of this class of application, money judgment. In this perspective, the averments in paragraphs 22-25 of the affidavit come in handy. On this premise, I will at the risk of verbosity but borne out relevance, pluck them out, where they are ingrained in the affidavit, verbatim ac litteratim, thus:

22. That the financial situation of the applicants is so precarious that the 2nd Appellant/Applicant is running on deficit to finance the administration of the State.

23. That if Order of Stay of Execution by the trial Court is not made conditional, the payment of the said judgment sum will collapse the running of Government of Ondo State and bring the administration of the State to a halt.

24. That the Appellants/Applicants aware of the right of the judgment creditor to the judgment and are not intending to scuttle the enjoyment of it but are propelled by the present financial state of the applicants.

25. That the 1st Appellant/Applicant, the purported borrower of the loan is not in a financial position to satisfy the judgment of the trial Court as it has been moribund since 2001.

To begin with, this excerpt is obedient to comprehension. The law grants the Court the unbridled licence to draw inferences from evidence, inclusive of that in an affidavit, see Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421. I will reap from this hallowed principle of law in relation to the extract.

It is decipherable from these depositions, that the applicants are pleading impecuniousity which has afflicted the administration of the second applicant. To start with, these averments suffer from nudity. The applicants failed to demonstrate, in concrete terms through incorruptible documentary evidence, how they are being hunted by poverty. A mere ipse dixit of the deponent on the poverty of the second applicant, who did not show he has access to its finance, is not enough plea of its bankruptcy. It is always desirable to avail the Court of the statement of account of an applicant to assist it make an informed and balanced decision on a plea of indigency. In the view of the law, affliction of impecuniousity simpliciter is not a ground to found a stay of execution, see Ajuwa v. S.P.C.N. Ltd (2011) 18 NWLR (Pt. 1279) 797. Curiously, the applicants, in the scooped out paragraphs never related their pauperism/insolvency to their inability to prosecute the appeal. Indeed, they are void of the word appeal. Paucity of funds, which the applicants claim bedevil them, must be such that will disable their desire to conduct the appeal to conclusion.

In any event, the applicants diligently pursued the appeal and same had been heard and disposed of. This is another serious coup de grace in the applicants application.

At this juncture, it is germane to invite the order of the lower Court sought to be varied by the applicants. It is located at pages 11 and 12 of the additional record. It reads:

A. The execution of the Ruling of this Honourable Court delivered on 18th June, 2015 is hereby stayed pending the hearing and determination of the Defendants/Applicants appeal on the following condition:

(i) That the Defendants/Applicants [the applicants] shall pay the sum of N82,900,000.00 (Eight Two Million, Nine Hundred Thousand Naira) being the sum awarded to the Plaintiff/Respondents [the Respondents] in that Ruling to the Station Registrar of this Division who shall deposit same into an interest yielding account in the name of the Chief Registrar of the Federal High Court.
It is a settled principle of law, that a Court, faced with this kind of application, must take into account the competing rights of parties in the action as well as balance of rights in exercising its discretion to grant or refuse stay of execution, see S.P.D.C.N Ltd. v. Amadi (Supra); Ajuwa v. S.P.D.C.N. Ltd (Supra); Alawiye v. Ogunsanya (Supra); Aboseldehyde Lab. Plc. v. U.M.B. Ltd. (2013) 13 NWLR (Pt. 1370) 91; Integration (Nig.) Ltd. v. Zumafon (Nig.) Ltd. (Supra). The import of the order is unambiguous; the judgment sum should be deposited in an interest yielding account. It is for the mutual benefits of the parties as whoever comes out victorious will claim it with the interest that will accrue from it. This, to my mind, is a prerequisite of a balanced justice which caters for the interests of the contending parties: the defeated and the winner. Put the other way round, the lower Court considered and weighed the competing interests of both parties before granting the indulgence to the Respondents. That is a classic exemplification of paying due loyalty to the hallowed doctrine of acting judicially and judiciously. In a word, it never insulted the rules of discretion to warrant intervention by this Court.

My noble Lords, I must place on record, that in the wide domain of discretion, previous decisions are not of much relevance. The reason is not far-fetched.

The facts and circumstances of two cases are not always on all fours. A Court of law is not, willy-nilly, bound by a precedent in an earlier decision as that will be akin to putting an end to exercise of discretion. It can only use such decisions as guidelines, see Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Suleman v. C.O.P., Plateau State (Supra); Babatunde v. P.A.S. & T.A. Ltd. (Supra); Oyegun v. Nzeribe (2010) All FWLR (Pt. 542) 1612; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1. An appellate is usually loath to interfere with an exercise of discretion save where it is wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N. Ltd (Supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (Supra). The lower Court’s exercise of discretion was not guilty of any of these negative elements to warrant intervention by this Court.

In the light of this brief juridical anatomy, done in due consultation with the law, the lower Court’s exercise of its discretion was totally divorced from being injudicious.

It will amount to judicial sacrilege to tinker with a discretion that is not hostile to the law. In the end, I have no option than to resolve the conflated issues one and two against the applicants and in favour of the Respondents. On the whole, having resolved the two fused issues against the applicants, the fate of the application is plain. It is bereft of any bubble of merit and should be visited with dismissal. Accordingly, I dismiss the application. For the avoidance of doubt, I affirm the order of conditional stay of execution made by the lower Court on 11th March, 2016 over its decision delivered on 18th June, 2016. Per OGBUINYA, JCA. read in context


LEAD JUDGMENT DELIVERED BY OGBUINYA, JCA


By a motion on notice, dated 4th April, 2016 but filed on 5th April, 2016, the applicants prayed this Court for the following orders:

1. AN ORDER for extension of time within which the applicants may apply to this Court for variation of the conditions/terms imposed by the trial Federal High Court for the grant of a stay of execution in this Suit to wit: payment of judgment debt of N82,900.000.00 into Court pending the determination of the appeal, time allowed having expired.

2. AN ORDER for the variation of the conditions/terms imposed by the trial Federal High Court for the grant of stay of execution in the Suit to wit: payment of judgment debt of N82,900.000.00 into Court pending the determination of the appeal, by a grant of same unconditionally or such other terms as the Court may consider just.

AND FOR SUCH FURTHER or other orders as this honourable Court may deem fit to make in the circumstance.

The application was based on eight (8) grounds. It was supported by a 33-paragraph affidavit, deposed to by Helen Falowo, Esq., with three annexures, marked Exhibits A1 – A3, attached to it.

In objection to it, the Respondents filed on 29th April, 2016, a 17- paragraph counter-affidavit sworn to by Gerald Ogbonna, Esq.

Following the opposition to it, this Court ordered parties to file written addresses. The parties complied with the order. The application was heard on 8th March, 2018. During its hearing, learned counsel for the applicants, Bode Ayegbusi, Esq., adopted the applicants’ written address, dated and filed on 19th January, 2017, as representing his arguments for the application. He urged the Court to grant it. Similarly, learned counsel for the Respondents, Chief C. N. Z. Azike, adopted the Respondents’ written address, dated and filed on 31st January, 2017, as forming his reactions against the application. He urged the Court to dismiss it.

In the applicants’ written address, they distilled two issues for determination to wit:

1. Whether this honourable Court has jurisdiction to grant the relief sought by the applicants in this application.

2. Whether the applicants have disclosed sufficient material facts to be entitled to the grant of this application.

The Respondents, in their written address, crafted a single issue for determination viz:

Whether by the Affidavit in support of this application and the facts and circumstances of this case, there are special and exceptional circumstances to warrant the variation of the conditional stay of execution of the order of the trial court by granting same unconditionally.

A close look at the two sets of issues shows that they are identical in substance. In fact, the Respondents’ solitary issue can be, conveniently, subsumed under the applicants’. For this reason sameness, I will decide the application on the issues formulated by the applicants: the undoubted owners of the application.

Arguments on the issues

Learned counsel for the applicants submitted that the Court had the jurisdiction to grant the application by variation of order of stay of execution made by the Federal High Court (the lower Court). He relied on Orders 4 Rule 1 and 7 Rule 4 of the Court of Appeal Rules, 2011; Rastico Nig. Ltd. v. Societe Generale De Surveillance (1990) 6 NWLR (Pt. 158) 608; Mobil Producing (Nig.) Unltd. v. Udo (2008) All FWLR (Pt. 421) 951.

He stated that there must be pending appeal for a Court to have jurisdiction to grant the relief. He cited Intercontractors (Nig.) Ltd. v. U.A.C. (1988) 2 NWLR (Pt. 76) 303; Femi Lasode v. Okoroji (2008) LPELR – CA; Nigerian Spanish Eng. Co. Ltd. v. Olympic Steel Mill Hong Kong Ltd. (2000) 3 NWLR (Pt. 649) 403. He asserted that the applicants had filed an appeal before the Court and satisfied the requirement. He posited that a party could apply for variation of order of stay of execution without necessarily appealing the order of the lower Court. He referred to Rastico Nig. Ltd. v. Societe Generale De Surveillance (Supra); Oyeti v. Soremekun (1963) 1 All NWLR 349; Tidex Nig. Ltd. v. Maskew (1997) 1 NWLR (Pt. 1997) 1 NWLR (Pt. 482) 63.

Learned counsel reasoned that a party could apply for variation of terms of stay of execution where the terms were unfavourable to him. He relied on L.S.D.P.C v. Citymark (W.A.) Ltd. (1998) 8 NWLR (Pt. 563) 11; R.E.A.N. v. Aswani Textile Ltd. (1992) NWLR (Pt. 227) 1; Mobil Producing (Nig.) Unltd. v. Udo (Supra); Shell Petroleum Co. v. Pessu (2008) All FWLR (Pt. 404) 1550.

He persisted that the applicants had disclosed sufficient reasons for a grant of the reliefs. He explained that the applicants had challenged the jurisdiction of the lower Court to try the suit and that payment of the judgment sum would render them impecunious to prosecute the appeal. He added that the second applicants’ revenue from the federation account had dwindled such that it owed workers six months salary and could not ask for internal and external financial aids.

On behalf of the Respondents, learned counsel contended that the applicants must show special circumstance for the variation. He noted that a grant of the application would be based on the discretion of the Court which must be exercised judicially and judiciously. He relied on FBN Plc. v. Agbara (2015) 8 NWLR (Pt. 1460) 47; Ajuwa v. SPDC Nig. Ltd. (2011) 18 NWLR (Pt. 1279) 797; L.S.D.P.C. v. Citymark (W.A) Ltd. (Supra); Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 199) 266. He insisted that the applicants failed to show special circumstance. He observed that poverty would not be a ground to grant unconditional stay of execution.

He cited Franchal Nig Ltd. v. Nig. V. Nigeria Arab Bank Ltd. (2000) 9 NWLR (Pt. 671) 1. He pressed the Court to take judicial notice of 13% derivation allocation to the second applicant. He asserted hugeness of judgment sum would not be a ground to grant a stay. He cited Mobil Producing Nig. Unltd. V. Monokpo (2001) 18 NWLR
(Pt. 744) 12. He analysed the depositions in the applicants’ affidavit and maintained that they could not show any reason not to obey the order of the lower Court which was for the benefit of both parties. He reminded the Court that the judgment sum was the money had and received by the applicants, by way of loan, which they had the obligation to pay.

Resolution of the issues.

A clinical examination of the two issues reveals that they exhibit interwoven relationship. To this end, I will, for spacial constraint and conservation of scarce juridical time, amalgamate their settlement. The reason for the fusion is simple. They share a common target: castigation of the improper manner the lower Court exercised its discretion in the applicants’ application before it . The substantive/main prayer in the application is prayer 2 which, inter alia, is displayed at the cradle of this ruling.

It can be gleaned from its tenor, that the applicants are soliciting for an unconditional grant of stay of execution of the lower Court’s judgment delivered on 18th June, 2015. On this note, the principles governing stay of execution will be employed in the determination of the application.

By way of prefatory remarks, stay of execution, a post-judgment proceeding, connotes the halting, suspension or postponement of the enjoyment of rights declared in favour of a party (Respondent) by a Court pending the determination of an appeal, see Shodeinde v. The Registered Trustees of the Ahmadiyya Movement-in-Islam (1980) 1-2 SC/63/ (2001) FWLR (Pt. 581) 1065; T. S. A. Ind. Ltd v. Kema Inv. Ltd. (2006) 2 NWLR (Pt. 964) 300; Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1372) 566; Integration (Nig.) Ltd. v. Zumafon (Nig.) Ltd. (2014) 4 NWLR (Pt. 1398) 479. Its main object/purpose is to keep the state of affairs in status quo in order to preserve the res, the subject-matter of the action, from being destroyed, dissipated or wasted pending the determination of an appeal, see Alawiye v. Ogunsanya (2013) 5 NWLR (Pt. 1348) 570.

For an applicant, in an application for a stay of execution of judgment to succeed, the law places the onus probandi on him to establish, to the satisfaction of a Court, a special, an exceptional or an unusual circumstance. In the eyes of the law, a special or exceptional circumstance is: “a peculiar or unique circumstance which is additional to the ordinary state of affairs,” see Nika Fishing 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. As to what constitute special circumstances, the incisive and dazzling insights made by Coker, JSC, in Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC 77 at 82, a locus classicus on ingredients of special circumstances, are apposite. His Lordship, succinctly, stated:

…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 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.

See also, Oyelami v. Mil Admin. Osun State (1999) 8 NWLR (Pt. 613) 45; Onuzulike v. Commissioner for Special Duties, Anambra State (1990) 7 NWLR (Pt. 161) 252; Olunloyo v. Adeniran (2001) 14 NWLR (Pt. 734) 699; Kabba Multipurpose Co-operative Union Ltd v. Irewole Multiplepurpose Union Ltd. (2000) 11 NWLR (Pt. 500) 622; Advanced Coating Technology Nig. Ltd v. F.B.N. Plc. (2009) All FWLR (Pt. 471) 982.

It appears that special circumstances, in relation to application for a stay, are open-ended in the sense that one or more may germinate from a particular case depending on its facts, see NNPC v. B.C.E. (2004) 2 NWLR (Pt. 858) 484. In this wise, generally, recondite, arguable or substantial points of law in a ground of appeal and poverty, resulting in the applicant’s inability to prosecute an appeal, have been held to qualify as special circumstance to warrant a grant of stay, see Okafor v. Nnaife (1987) 9-10 SC 105; T.S.A. Ind. Ltd. v. Kema Inv. Ltd (Supra); NNPC v. Famfa Oil Ltd. (2009) 12 NWLR (Pt. 1156) 462; Odedeyi v. Odedeyi (2000) 3 NWLR (Pt. 650) 565.

The judgment of the lower Court, being sought to be stayed, is monetary judgment. In an application for a stay of money judgment, the exceptional circumstances which an applicant has to additionally show are: (a) That making him satisfy the judgment will make his financial position such that he will not prosecute the appeal. (b) That it will be difficult to secure a refund of the judgment debt and cost from a Respondent if the appeal succeeds, see Ikere L.G. v. Olumuyiwa Olufemi Auguston Adelusi (2008) All FWLR (Pt. 404) 1534; NNPC v. Famfa Oil Ltd (Supra).

It is incumbent on the applicants to establish one or two of these exceptional circumstances in order to earn the favour of the Court. The reason is obvious. This application which is deeply rooted in the provision of Section 17 of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004, is founded in an equitable remedy which, in turn, involves this Court’s judicial and judicious exercise of discretion. Discretion signifies the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797. Being an exercise of discretion, the law mandates the applicants, if they must attract the favourable discretion of this Court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. This is because a Court does not dish or dash out its discretion in vacuo, material facts being, invariably, desiderata for such judicial exercise, see Dongtoe v. Civil Service Commission, Plateatu State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 73 ) 203; In Remawa v. NACBCFC Ltd. (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30.

The applicants woke up to that judicial responsibility, presentation of material facts for use by this Court as the barometer to gauge the success of their application, when they filed the 33 – paragraph copious affidavit in support of it.

A Judge, in exercise of discretion, must act judicially and judiciously. To act judicially denotes “… discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances.”

See Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand,

“Acting judiciously… is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision.”

See Babatunde v. P.A.S. & T.A. Ltd (Supra) at 164, Per Ogbuagu, JSC.

Now, the law compels an applicant in this specie of application to file an appeal before or simultaneously with it, see N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376. The applicants paid total obeisance to that legal commandment in that they lodged an appeal on 25th June, 2015 against the decision of the lower Court delivered on 18th June, 2015. It was registered as CA/AK/96/2016. It was heard, contemporaneously with the application, on 8th March, 2018. Incontestably, the applicants raised four issues of jurisdiction in the appeal. In the eyes of law, issue of jurisdiction is a special circumstance that will warrant a grant of stay of execution, see NNPC v. Famfa Oil Ltd. (2009) 12 NWLR (Pt. 1156) 162; Alawiye v. Ogunsanya (Supra); Iragbiji v. Oyewinle (2013) 13 NWLR (Pt. 1 72) 566.

However, by virtue of the provision of Section 122 (2) (m) of the Evidence Act, 2011, I take judicial notice of the appeal. This Court, duly, heard it, declared it unmeritorious and dismissed it. The after math of the misfortune of the appeal is far-reaching. In the first place, it implies that there is no pending appeal or substratum for the application to perch and command any validity. It has, ipso facto, become an orphan/parentless.

Again, this Court will not be foisted with a state of complete helplessness nor will its decision be mired in a nugatory by a refusal of the application. At once, this Court will not be greeted with any fait accompli vis-a-vis the subject-matter/res of the case. On this score, I hold the humble view that the issue of jurisdiction, which the applicants brandish as a special circumstance is totally rendered lame. It comes to naught and cannot fly.

Indisputably, the res, in the case between the feuding parties is the judgment sum of N82,900,000 (Eighty Two Million, Nine Hundred Thousand Naira) only. Indubitably, it is a monetary judgment. It falls within the province of executory judgment that is submissive to stay of execution, see Carrena v. Akinlase (2008) 14 NWLR (Pt. 1107) 262; S.P.D.C.N. Ltd. v Amadi (2011) 14 NWLR (Pt. 1266) 157; Iragbiji v. Oyewinle (Supra). The applicants struggled in their affidavit to satisfy the conditions for a grant of this class of application, money judgment. In this perspective, the averments in paragraphs 22-25 of the affidavit come in handy. On this premise, I will at the risk of verbosity but borne out relevance, pluck them out, where they are ingrained in the affidavit, verbatim ac litteratim, thus:

22. That the financial situation of the applicants is so precarious that the 2nd Appellant/Applicant is running on deficit to finance the administration of the State.

23. That if Order of Stay of Execution by the trial Court is not made conditional, the payment of the said judgment sum will collapse the running of Government of Ondo State and bring the administration of the State to a halt.

24. That the Appellants/Applicants aware of the right of the judgment creditor to the judgment and are not intending to scuttle the enjoyment of it but are propelled by the present financial state of the applicants.

25. That the 1st Appellant/Applicant, the purported borrower of the loan is not in a financial position to satisfy the judgment of the trial Court as it has been moribund since 2001.

To begin with, this excerpt is obedient to comprehension. The law grants the Court the unbridled licence to draw inferences from evidence, inclusive of that in an affidavit, see Akpan v. Bob (2010) 17 NWLR (Pt. 1223) 421. I will reap from this hallowed principle of law in relation to the extract.

It is decipherable from these depositions, that the applicants are pleading impecuniousity which has afflicted the administration of the second applicant. To start with, these averments suffer from nudity. The applicants failed to demonstrate, in concrete terms through incorruptible documentary evidence, how they are being hunted by poverty. A mere ipse dixit of the deponent on the poverty of the second applicant, who did not show he has access to its finance, is not enough plea of its bankruptcy. It is always desirable to avail the Court of the statement of account of an applicant to assist it make an informed and balanced decision on a plea of indigency. In the view of the law, affliction of impecuniousity simpliciter is not a ground to found a stay of execution, see Ajuwa v. S.P.D.C.N. Ltd (2011) 18 NWLR (Pt. 1279) 797. Curiously, the applicants, in the scooped out paragraphs never related their pauperism/insolvency to their inability to prosecute the appeal. Indeed, they are void of the word appeal. Paucity of funds, which the applicants claim bedevil them, must be such that will disable their desire to conduct the appeal to conclusion.

In any event, the applicants diligently pursued the appeal and same had been heard and disposed of. This is another serious coup de grace in the applicants application.

At this juncture, it is germane to invite the order of the lower Court sought to be varied by the applicants. It is located at pages 11 and 12 of the additional record. It reads:

A. The execution of the Ruling of this Honourable Court delivered on 18th June, 2015 is hereby stayed pending the hearing and determination of the Defendants/Applicants appeal on the following condition:

(i) That the Defendants/Applicants [the applicants] shall pay the sum of N82,900,000.00 (Eight Two Million, Nine Hundred Thousand Naira) being the sum awarded to the Plaintiff/Respondents [the Respondents] in that Ruling to the Station Registrar of this Division who shall deposit same into an interest yielding account in the name of the Chief Registrar of the Federal High Court.

It is a settled principle of law, that a Court, faced with this kind of application, must take into account the competing rights of parties in the action as well as balance of rights in exercising its discretion to grant or refuse stay of execution, see S.P.D.C.N Ltd. v. Amadi (Supra); Ajuwa v. S.P.D.C.N. Ltd (Supra); Alawiye v. Ogunsanya (Supra); Aboseldehyde Lab. Plc. v. U.M.B. Ltd. (2013) 13 NWLR (Pt. 1370) 91; Integration (Nig.) Ltd. v. Zumafon (Nig.) Ltd. (Supra). The import of the order is unambiguous; the judgment sum should be deposited in an interest yielding account. It is for the mutual benefits of the parties as whoever comes out victorious will claim it with the interest that will accrue from it. This, to my mind, is a prerequisite of a balanced justice which caters for the interests of the contending parties: the defeated and the winner. Put the other way round, the lower Court considered and weighed the competing interests of both parties before granting the indulgence to the Respondents. That is a classic exemplification of paying due loyalty to the hallowed doctrine of acting judicially and judiciously. In a word, it never insulted the rules of discretion to warrant intervention by this Court.

My noble Lords, I must place on record, that in the wide domain of discretion, previous decisions are not of much relevance. The reason is not far-fetched.

The facts and circumstances of two cases are not always on all fours. A Court of law is not, willy-nilly, bound by a precedent in an earlier decision as that will be akin to putting an end to exercise of discretion. It can only use such decisions as guidelines, see Abacha v. State (2002) 5 NWLR (Pt. 761) 638; Bamaiyi v. State (2001) 8 NWLR (Pt. 715) 270; Suleman v. C.O.P., Plateau State (Supra); Babatunde v. P.A.S. & T.A. Ltd. (Supra); Oyegun v. Nzeribe (2010) All FWLR (Pt. 542) 1612; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1. An appellate is usually loath to interfere with an exercise of discretion save where it is wrongly exercised; tainted with irregularity, irrelevant or extraneous matters or defilement of the law, or in the interest of justice, see Ajuwa v. S.P.D.C.N. Ltd (Supra); T.S.A. Ind. Ltd. v. Kema Inv. Ltd (Supra). The lower Court’s exercise of discretion was not guilty of any of these negative elements to warrant intervention by this Court.

In the light of this brief juridical anatomy, done in due consultation with the law, the lower Court’s exercise of its discretion was totally divorced from being injudicious.

It will amount to judicial sacrilege to tinker with a discretion that is not hostile to the law. In the end, I have no option than to resolve the conflated issues one and two against the applicants and in favour of the Respondents.

On the whole, having resolved the two fused issues against the applicants, the fate of the application is plain. It is bereft of any bubble of merit and should be visited with dismissal. Accordingly, I dismiss the application. For the avoidance of doubt, I affirm the order of conditional stay of execution made by the lower Court on 11th March, 2016 over its decision delivered on 18th June, 2016. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed application.

NDUKWE-ANYANWU, JCA

I read in draft form, the Ruling just delivered by my learned brother, Obande Festus Ogbuinya, JCA, I agree with his reasoning and final conclusion. However, I would like to add that discretion in the judicial and legal context means equitable decision of what is just and proper under the facts and circumstances of a particular case guided by the principles of law. See Artra Industries Nig. Ltd. V Nig Bank for Commerce & Industries (1998) 4 NWLR (Pt. 546) Pg. 357, Doherty V Doherty (1964) ALL NLR Pg. 299. It follows that the exercise of discretion is not binding on another Judge per Ngwuta JCA (as he then was) in Soyinka V Oni (2011) LPELR 4096.

The law allows a Court to exercise its discretion in any issue concerning the matter before it. The law presupposes that, the trial Judge is in charge of his ourt and in dispensing justice he must be allowed to exercise its discretion judicially and judiciously. Thus, Courts are entitled to exercise their judicial discretion in accordance with the circumstances of the matter before them. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the circumstances of the case. See Owners Of M.V Lupex V N.O.C. & S Ltd. (2005) 15 NWLR (Pt. 844) PG. 469, Panalpina World Transport (Holding) Ag V Jeidoc Ltd. (2011) LPELR 4828 per Ogunwumiju, JCA.

A Court is therefore entitled to exercise its discretion but with a rider that it must be exercised judicially and judiciously.

For this and the more comprehensive reasoning in the lead Ruling, I also dismiss the application.

I abide by all the consequential orders in the lead Ruling.

ABDULLAHI, JCA

I have had the privilege of reading in draft the well-considered Ruling of my learned brother, OBANDE FESTUS OGBUINYA, JCA just delivered. His lordship has meticulously considered and comprehensively dealt and resolved all the salient issues in this application. I agree with his reasoning and conclusion that the application is unmeritorious and should be refused. I accordingly refuse same and abide by the consequential orders made in the said lead Ruling including order as to costs.

Appearances:

Bode Ayegbusi, Esq., ACLO, Ministry of Justice, Ondo State For Appellant(s)

Chief C. N. Z. Azike with him, N. O. Ezeorah, Esq. For Respondent(s)