MOTION NO: FCT/HC/M/9227/13 BETWEEN: CHUKWU CHRISTIAN NWEKE JUDGMENT CREDITOR/ RESPONDENT AND MOSES NWOBODO...JUDGMENT DEBTOR/ APPLICANT

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1 IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP, HON. JUSTICE A.A.I BANJOKO JUDGE MOTION NO: FCT/HC/M/9227/13 BETWEEN: CHUKWU CHRISTIAN NWEKE JUDGMENT CREDITOR/ RESPONDENT AND MOSES NWOBODO...JUDGMENT DEBTOR/ APPLICANT RULING The Judgment Debtor/ Applicant brought a Motion on Notice dated the 28 th of June 2013, filed on the 28 th of June 2013 and served on the Law Firm of the Judgment Creditor/respondent s counsel on the 5 th of July His application prayed for: 1. An Order to stay the execution of the Court s Judgment delivered on the 24 th of March 2013 pending the hearing and determination of the Appeal already filed at the Court of Appeal. 2. And such further Order or Orders as the Court may deem fit and proper in the circumstance In support of his application was a fifteen Paragraph affidavit deposed to by Evelyn Aniobi, a counsel at the Law Firm of Ibolo& Associates. She stated that she knew that the Court delivered an Executory Judgment on the 24 th of March 2013 in favour of the respondent and based on that Judgment the applicant has lodged an appeal against that Judgment by attaching a copy of the Notice of Appeal marked as Exhibit A. She also stated that this Court was competent to grant the application and unless restrained the respondent would execute the Judgment. She further stated that the applicant undertook to 1

2 indemnify against any damage the respondent might suffer if found that it ought not to have been granted. In response, the Judgment/creditor answered by a counter affidavit dated and filed on the 9 th of July 2013 and served on the Judgment debtor/applicant s counsel on the 10 th of July Nkemjika Adolphina of the Law Firm of Ikechukwu Uzuegbu & Co deposed the counter affidavit. She stated that the Judgment granted in favour of the Judgment Creditor was the sum of Seven Hundred Thousand Naira (N700, 000) whereon the Judgment debtor/ applicant applied to this Court to have the Judgment sum to be paid in instalments. She stated also that the first instalment payments ordered by Court was to begin in the month of June 2013 but the Judgment debtor has refused and failed to comply with that Order. Furthermore, she stated that there was no pending appeal at the Court of Appeal because there was nothing to show that the applicant applied for the Record of Proceedings.However, where there was an appeal, the respondent had the wherewithal to refund the Judgment sum if the appellate court sets aside the Judgment. According to her, the applicant was using this application as a ploy to deprive the respondent of enjoying the fruit of his Judgment. The Court should refuse and dismiss the application in the interest of justice. After a consideration of facts deposed to by parties and the written submissions of learned counsel, the principal issue for determination is Whether this Court should stay of the execution of its Judgment in favour of the Judgment debtor 2

3 A Notice of Appeal is the initiating process for an appeal before an Appellate Court. The Notice of Appeal contains what the subject matter of that appeal is as held in the case of DINGYADI V. I.NE.C. (NO 2) (2010) 18 NWLR (PT1224) 154.However, it is trite law that anotice of Appeal that has been filed would not operate as a stay of execution. See the case of OLORI MOTORS CO. LTD. V. U.B.N PLC (2006) 10 NWLR (PT. 989) 586.An applicant is expected to first and foremost bring an application before the trial Court for leave to stay execution. In the instant case, the applicant undertook that foremost step by filing his Motion on Notice for a stay of execution. To his application, he also attached a filed copy of his Notice of Appeal,which showed he had paid the sum of Five Thousand (N5, 000) Nairaas fees as prescribed by the Court of Appeal Rules In law, this step taken by the applicant goes to show that an appeal has been brought. See the cases ofleaders & COMPANY LTD. V. KUSAMOTU (2008) ALL FWLR (PT. 405) 1800 AT , PARAS. H - G (CA);MOHAMMED V HUSSEINI (1998) SCNJ 136, (1998) 14 NWLR (PT. 584) 108; EZOMO V. ATTORNEY-GENERAL OF BENDEL STATE (1986) 4 NWLR (PT. 36) 448. However, in myriad of judicial precedents, appellate Courts have gone further to distinguish between when an appeal is brought and when an appeal is entered. An appeal is entered in the Court of Appeal when the record of appeal has been received at the Court of Appeal from the High Court. See ABINA V. TIKA TORE PRESS (1968) 1 ALL NLR 210. Once this Court has transmitted the record of appeal to the Appellate Court, an appeal is said to be pending and the appellate becomes seised of the whole of the proceedings as between the parties and every application therein shall be made to the Appellate Court and not to the Court below as held by Per MUHAMMAD, J.S.C. in the case of VAB PETROLEUM INC. v. MR. MIKE MOMAH (2013) LPELR-19770(SC). 3

4 Once listed, the Appellate Court will not share jurisdiction over any matter concerning the Appeal with the Court below. Any concurrent jurisdiction ceases once the Appeal has been entered. See the cases of MOBIL OIL LTD. V. AGADAIGHO (1988) 2 NWLR (PT.77) 553; BIOCHEM AGROCHEMICAL V. KUDU HOLDINGS (1996) 2 SCNJ 212 AT 219; LEADERS & COMPANY LTD V. KUSAMUTU (2008) All FWLR (Pt.405) 1800 at From the above mentioned pronouncements, and from the fact that the appeal has not yet been entered, this Court remains seised of the matter and when considering an application for stay of execution, this Court has a duty to ensure that the successful litigant reaps the fruits of his successful litigation while an applicant seeking to deprive a successful litigant of the fruit of his labour must show substantial reasons why the court must grant him such indulgence. See Per AdekeyeJCA (as he then was) in the case of GOV OF OYO STATE V AKINYEMI (2003) 1 NWLR PG 16. PARA E;See alsooladimeji-ise-oluwa (NIG) LTD V. N.D. LTD (2001) 18 WRN 28; UNIVERSITY OF ILORIN V. ADESINA (NO. 1) (2008) ALL FWLR (PT. 400) 709 AT , PARAS G - D (CA) To enable the applicant succeed with his application for stay of execution, he must show special or exceptional circumstances see VASWANI TRADING CO. V. SAVALAKH (1972) 12 SC 77; L.S.D.P.C. V. CITYMARK (WA) LTD. (1998) 8 NWLR (PT. 563) 68; GENERAL OIL LTD. V. ODUNTAN (1990) 7 NWLR (PT.163) 423. Although, it is difficult to categorically say what exactly amounts to special or exceptional circumstance since such vary from case to case, our superior courts have given some insight in decided authorities on some guiding principle the courts should consider in granting stay of execution or proceeding even though such principles are not exhaustive. Some of the guiding principles could include the followings: - 4

5 (a) Stay of proceedings could be granted by a Court in order to preserve the res or subject matter of the litigation. This could apply to tangible or intangible res. See KIGO (NIG) LTD V. HOLMAN BROTHERS (NIG) LTD (1980) 5-7 SC. (b) The exercise of discretion by Court to grant stay should be predicated on the circumstances and facts of each case as there are some cases where to grant stay would inflict greater hardship than it would avoid. See ODOGWU V. ODOGWU (1990) 4 NWLR (PT.143) 224; AROJOYE V. UBA & ANOR: (1986) 2 NWLR (PT. 20) 101. (c) Stay of proceeding order in respect of interlocutory appeal should not be granted on filing legal issues, which can be taken up in the substantive appeal at the end of the hearing. See SCC NIGERIA LTD. & ANOR: V. OUR LINE LTD. (1995) 5 NWLR (PT. 395) 364. (d) Before an application for stay of proceeding/execution there must be in existence a valid and competent pending appeal (as mentioned above). See GENERAL OIL LTD. V. ODUNTAN (1990) 7 NWLR(PT. 164) 423; CARRIBEAN TRADING FIDELITY CORP V. N.N.P.C. (1991) 6 NWLR (PT.197) 352; STATE V. AJAYI (1996) 1 NWLR (PT.423) 169; EZE V. OKOLONJI (1997) 7 NWLR (PT.513) 515 (e) In an application for stay of proceedings, court must consider the competing right of both the applicant and the respondent to justice see EZE V. OKOLONJI (SUPRA). (f) Where an action is an abuse of the judicial process, an application for stay would be granted, see AKILU V. FAWEHINMI (NO.2) (1989) NWLR (PT.102) 122; JADESIMI V. OKOTIE (1986) 1 NWLR (PT. 16) 264. (g) Stay order should not be granted where the right sought to be protected by the applicant are ab initio a nullity. 5

6 (h) In application for stay of proceedings, the applicant always has the burden to show that the proceedings must be stayed pending the determination of the appeal and the reason advanced must be based on a well-founded ground. See EZE V. OKOLONJI(SUPRA) Now as it stands, the applicant has not satisfied this Court by affidavit or evidence that there that special or exceptional circumstance as it relates to a pending already filed at the Court of Appeal. If indeed there was, he would have attached to his affidavit in support, copies of the record of appeal complied and transmitted to the Court of appeal as contemplated in Order 8 Rule 7 of the Court of Appeal Rules 2011; MACFOY V. MACFOY (2007) VOL. 34 WRN 124 AT 127 LINES 15-20, (CA). Finally,that appeal would have been entered in the Cause List of the appellate court. See the cases of GOVERNING COUNCIL INDUSTRIAL TRAINING FUND V. CHIJIOKE & ANOR (1997) LPELR-5678(CA). It is only when such appeal is entered that it would only be necessary for this Court to tilt its discretion on favour of an applicant. The submission by learned counsel to the defendant applicant that the Notice of Appeal contains serious jurisdictional issues as well as substantial grounds of appeal would not suffice to stay execution because these are matters for the Court of Appeal to decide and this Court had becomefunctus officio in this regard. See the case of CHIEF OZO NWANKWO ALOR & ANOR V. CHRISTOPHER NGENE & ORS (2007) 17 NWLR PART 1062 AT , AT PARAGRAPHS H A, where perniki Tobi JSC stated the principle that A Latinism which literally means having performed his or her office in the cortex of a Judge, it means that the duty of function that the Judge was legally empowered and charged to perform has been wholly accomplished and that the Judge has no further authority or legal competence to revisit the matter. His Lordship Uwaifo JSC in the case of SHANU & ANOR VS. AFRIBANK NIG. PLC (2002) 6 S.C. PART 11 AT 135 held that it is a general rule that a Court is not permitted to reverse 6

7 itself on taking decision on an issue in the same proceedings. Having so taking a decision, it is neither that the Court is said to be functus officio on that issue nor is bound by it as an issue estoppels. After a Court has made an Order or given a Judgment, it becomes functus officio and cannot change or reverse the same except under the very restricted. This Court delivered its Judgment on the 27 th of March 2013 in favour of the Respondent/ Judgment Creditor in the sum of N500, and N200, 000 as cost. Thereafter, the Applicantfiled a Motion on Notice dated 2 nd of May 2013 and served on Respondent on the 10 th of May 2013 seeking for Orders to pay the Judgment sum by instalments in the sum of N5,000 (Five Thousand) as monthly instalments. This prayer was objected to by the respondent as being grossly inadequate on the 16 th of May The Court has taken cognisance of the facts deposed on the behalf of the respondent that the applicant has not complied with the Order of this Court. The Court s Order wasto make certain instalment payments in the sums of N250, 000 (Two Hundred and Fifty Thousand Naira) for the months of June and July and N200, 000 (Two Hundred Thousand Naira) for the month of September totalling the sum of N700, 000 (Seven Hundred Thousand Naira), which is, the Judgment sum. The applicant has failed to show the reasons for the non-compliance of the Court s Order. There are no special and exceptional circumstances before the Court and the application is found unmeritorious and is accordingly dismissed. JUSTICE A.A.I. BANJOKO JUDGE 7

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