RULING. i.e. whether having regard to the circumstances of this case the applicant is entitled to the Court s discretion ion in granting

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Shauna Maude Pearson
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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY HOLDEN AT HIGH COURT OF JUSTICE APO ABUJA ON THE 4 TH DAY OF JULY, 2013 BEFORE HIS LORDSHIP: - HON. JUSTICE M.A NASIR COURT NO.:- HIGH COURT TWENTY TWO (22) SUIT NO.:- FCT/HC/CV/1935/2012 BETWEEN: ABUJA CLINIC LIMITED JUDGMENT CREDITOR/RESPONDENT AND UNIC INSURANCE PLC JUDGMENT DEBTOR/APPLICANT RULING Before this Court is a motion on notice filed by the judgment debtor/applicant on the 12 th of April, 2013 pursuant to Order 45 of the High Court of FCT Civil Procedure Rules, 2004 and under the inherent jurisdiction of this Court. The application is praying for an order of Court staying the execution of the judgment delivered in this suit on the 12 th of February, The application is supported by 14 paragraphs affidavit supported by a written address wherein M.A. Kazeem Esq of counsel to the applicant raised one issue for determination i.e. whether having regard to the circumstances of this case the applicant is entitled to the Court s discretion ion in granting Page 1

2 the stay of execution of the judgment of this Court made on the 12 th of February, Counsel submitted that the Court of Appeal in the case of Union Bank of Nig. Plc vs. Alhajir Aminu Ishola (2001) 15 NWLR (part 735) 47 gives the Court the discretion to exercise its discretion in favour of the applicant and grant this application. He added that once the applicant can show special or exceptional circumstances, the Court is well empowered to grant the application for stay of execution. On what constitutes special and exceptional circumstances, counsel cited Vaswani Trading Co. vs. Savalakh & Co. (1972) 7 NSCC 692. He stated that the issue of jurisdiction raised by the applicant is very fundamental and goes to the root of the Courts power to adjudicate over this matter, and same amounts to exceptional circumstance which the applicant must show to be entitled to the Courts discretion. He cited Denton West vs. Muoma (2008) 6 NWLR (part 1083) 418. He urged the Court to grant the application. S.G. Kekere Akpe Esq filed a 5 paragraphs counter affidavit on behalf of the judgment creditor/respondent and a written address duly adopted. Counsel argued that the only ground of appeal contained in the notice of appeal is frivolous and does not constitute special circumstances that Page 2

3 would necessitate/warrant the grant of a stay of execution of judgment of the lower Court. Furthermore, the judgment that is sought to be stayed being a money judgment, the applicant must establish by affidavit evidence that the judgment creditor/respondent would not be able to refund the money if the appeal succeeds. Counsel submitted that the judgment of the Court being that of debt arising from a simple contract/breach of contract, it is the High Court and not the Federal High Court that has the requisite jurisdiction to determine same. Thus the issue of jurisdiction raised in the said ground of appeal cannot constitute a special circumstance for the grant of a stay of execution. He cited Felix Onuorah vs. Kaduna Refining & Petrochemical Co. Ltd (2005) 2 SCNJ 179 at 189, Franchal Nig. Ltd & 1 or vs. Nig. Arab Bank Ltd (2000) 6 SCNJ 38, T.S.A. Ind. Ltd vs. Kema Invt. Ltd (2006) 1 SCNJ 117 at 128, Denton West vs. Muoma (cited supra). He argued that the judgment of the Court being money judgment, the only ground for a stay of execution is by affidavit that convincingly show that if the money is paid to the judgment creditor/respondent, there is no likelihood of the money being paid back if the appeal succeeds, and same is lacking in the applicants affidavit. Reference was made to Page 3

4 Josiah Cornellius vs. Ezenwa (2000) 8 NWLR (part 670) 616 at 625. He urged the Court to refuse the application. The applicants counsel filed a reply on points of law dated 16 th May, 2013 wherein he argued extensively and supported same with authorities that the Federal High Court and not the High Court had the jurisdiction to entertain the suit. He cited the provisions of the Insurance Act, Cap 117, LFN 2004 to submit that the Act vests exclusive jurisdiction of all Insurance Matters Civil or Criminal on the Federal High Court. He prayed the Court to grant the application bearing in mind the Constitutional and jurisdiction issues raised by the applicants. The guiding principles for the grant or refusal of an application for stay of execution are well defined and have been severally enunciated in many judicial decisions. An applicant seeking an order for stay of execution pending appeal must furnish the Court with special and exceptional reasons why a successful party should be deprived, though temporarily, of the enjoyment of the fruits of his judgment. The applicant also has to show that the balance of justice is in his favour and that there are strong and arguable grounds of appeal which are not frivolous, upon which the application Page 4

5 is predicated. This is so because Courts are not in the habit of depriving a successful litigant of the fruits of his judgment or locking up funds to which a successful litigant is entitled. See Olojede vs. Olaleye (2010) 4 NWLR (part 1183) page 1, Martins vs. Nicannar Foods Co. Ltd (1988) 2 NWLR (part 74) page 75, Clev Josh Ltd vs. Tokimi (2008) 13 NWLR (part 1104) 422 at 266. There must also be a valid appeal with the grounds of appeal being arguable and substantial, or raise recondite points of law which are capable of swaying the pendulum of justice one way or the other, and at best in favour of the applicant. See Bayero vs. Agundi (2005) All FWLR (part 290) page An appeal is said to be initiated after the filing of the appropriate notice of appeal as prescribed by the rules of the relevant Courts. Going through the records of the Court, this Court has come across a Notice of Appeal in the case file. The said notice is indeed competent and this goes to show that a competent appeal has been duly filed by the applicant thereby fulfilling the first requirement expected of an applicant for stay of execution. Page 5 The next and most important is the duty on the applicant to furnish the Court with special and exceptional

6 reasons why a successful party should be deprived, though temporarily, of the enjoyment of the fruits of his judgment. The burden placed on the applicant for a stay of execution is discharged when he is able to show special and exceptional circumstances justifying its grant, and this means showing collateral circumstances or highlighting inherent matters which may unless the order of stay of execution is granted, destroy the subject matter of 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 of the litigant of his constitutional right of appeal, or provide a situation in which whatever happens to the case, and in particular if the applicant succeeds in the Court of Appeal, there will be no return to the status quo See Buraimoh vs. Akande (2001) 15 NWLR (part 736) page 293 at 303. Learned counsel to the applicant has argued that the issue of jurisdiction raised by the applicant is exceptional circumstance, enough to warrant a grant of this application. Learned counsel to the respondent on the other hand has argued that the judgment of the Court being money Page 6

7 judgment, the only requirement on the applicant is to show that if the judgment debt is paid the judgment creditor will not be able to refund the money in case the appeal succeeds. In this regard, I am at one with Mr. Kekere Akpe that the judgment of this Court sought to be stayed is money judgment. The applicant has deposed in paragraphs 7 13 as follows: 7. That if the stay of execution is refused, it is uncertain whether the judgment creditor/respondent is financially capable of refunding the judgment sum in the event that the appeal succeeds. 8. That it is not in the interest of justice to preserve make an order against the applicant that may lead to destruction of the res of this litigation which will render the appeal nugatory. 9. That the applicants ground of appeal which borders on the jurisdiction of the Court raise good, substantial and recondite issues of law which the Court of Appeal will have to determine. 10. That a recondite point of law raised in the Notice of Appeal on the jurisdiction of the lower Court in this matter is worthy factor to be taken into consideration in Page 7

8 the exercise of the Courts discretion to grant the stay of execution. 11. That the balance of convenience is in favour of the applicant. 12. That the applicant is ready and willing to prosecute the appeal expeditiously. 13. That it is in the interest of justice for this application to be granted as the judgment creditor/respondent will not be prejudiced if this application is granted. From the averments above has the applicant disclosed any special and exceptional circumstances for the grant of the stay of execution? The principle has long crystallized that a stay of execution can only be granted upon the applicant showing that there exist special or exceptional circumstances for doing so, bearing in mind always that the compelling reason for granting a stay is to preserve the res from destruction and thereby maintain the status quo at all material times so that if the appeal is successful, at the end of the day, the proceedings in respect thereof would not be rendered nugatory. See Momah vs. VAB Petroleum Inc. (2000) 1 SC page 42. Thus the grant of a stay of execution of a judgment Page 8

9 should only be made in very special circumstances. See Wey vs. Wey (1975) LPELR SC 312/1974. As earlier stated the judgment of this Court sought to be stayed is money judgment and as a general rule, the only ground for a stay of execution of money judgment is where an applicant satisfies the Court that if the judgment debt is paid, there is no reasonable probability of getting it back if the appeal succeeds. See Guinea Insurance Plc vs. Monarch Holding Ltd (1996) 3 NWLR (part 436) page 365, Kwarapoly vs. Oyebamiji (2008) 3 NWLR (part 1075) page 459. In S.P.D.C. (Nig) Ltd vs. Okei (2006) 17 NWLR (part 1007) page 1 at 25, the Court held There should be no stay of execution of judgment where; a) It has not been shown by the applicant that the respondent will be unable to refund the judgment debt in case the appeal succeeds; or b) The respondents deposition in his counter affidavit as to its credit worthiness stands unchallenged; or c) Where the respective parties express their ability to pay or refund the judgment sum. Page 9

10 The affidavit or affidavits relied upon by the applicant apart from stating relevant facts upon which to consider the principles for a stay, must ensure that those facts are full and frank including the applicant s income, assets, interest and properties as well as his obligations and liabilities. That is the only way the Court can best exercise its discretion to grant or refuse the stay. See S.P.D.C. (Nig) Ltd vs. Okei (supra) at page 27. A careful perusal of the applicants affidavit in support does not disclose exceptional or special circumstances to warrant the grant of stay of execution. The affidavit has also not shown that the respondent will be unable to refund the judgment debt in case the appeal succeeds. The Judgment creditor/respondent has deposed in paragraphs 4(f) and (g) of the counter affidavit as follows: 4(f) That the judgment creditor/respondent is a corporate body with head office at 22 Amazon Street, Maitama, a high brow area of Abuja. (g) That the judgment creditor/respondent is a health care service provider to multinational organizations, corporate bodies and Government Agencies in Abuja, Federal Capital Territory and has enormous resources at her disposal to refund whatever money Page 10

11 is paid by the judgment debtor/applicant, if he succeeds on appeal. The above averments have not been contradicted. An application for stay of execution is not granted as a matter of course. It is dictated by the discretion of Court judiciously and judicially exercised. In the instant, there is nothing on which to base the exercise of such discretion in favour of the applicant. See Aje Printing (Nig) Ltd vs. Ekiti L.G.A. (2009) 7 NWLR (part 1141). The successful litigant i.e. the respondent having won his case is entitled to be allowed to enjoy the fruits of his success. Execution of his judgment should and ought not be stayed until and unless special circumstances are shown to justify the stay of execution. See Okafor vs. Nnaife (1987) 4 NWLR (part 64) page 129. In my view therefore, applicant has failed to establish exceptional and special circumstances to warrant the grant of stay of execution. The application is refused and it is hereby accordingly dismissed. Signed Honourable Judge Appearances: J.O. Okpor for the Respondent/judgment creditor O.S. Bolarinwa for the judgment debtor/applicant Page 11

BETWEEN: AND AND RULING

BETWEEN: AND AND RULING IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA ON THE 28 TH DAY OF NOVEMBER 2013 SUIT NO. FCT/HC/M/8529/13 BEFORE HIS LORDSHIP: HONOURABLE JUSTICE FOLASADE