➥ CASE SUMMARY OF:
Alhaji Aransi Ladoke & Ors. V. Alhaji M. Olobayo & Anor. (CA/L/137M/92, 17 July 1992)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Stay of execution.
➥ CASE FACT/HISTORY
In this interlocutory appeal, the Plaintiffs/Respondents’ claims as endorsed on the Writ of Summons in the Lagos High Court are as follows:- “1. A Declaration that the Defendants were, by virtue of a unanimous decision of the Working Committee of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State, duly and lawfully suspended from office as the Executive Committee of the Association with effect from the 18th day of December, 1990. 2. A Declaration that the Plaintiffs on record are the Executive Members of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State. 3. An order that the Defendants do render an account of all money or monies collected by them from members of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State being levies, rents, charges dues and by whatever name called collected at various times between 1982-1990. 4. A perpetual injunction restraining the Defendants from parading themselves as Executive members of Alayabiagba Market Association Boundary, Ajegunle, Lagos State and from doing anything pursuant to the said offices to wit collection of rents, dues, charges, levies and performance of such functions incidental thereto. 5. A perpetual; injunction restraining the Defendants whether by themselves, agents, servants or representatives in interest or otherwise however from interfering in any way whatsoever with the performance by the Plaintiffs on record of their lawful duties as the Executive members of the Alayabiagba Market Association, Boundary, Ajegunle, Lagos State.”
The learned trial Judge, Adeniji J. granted an order of interlocutory injunction restraining the Defendants/Respondents whether by themselves or by their servants, agents, privies and assigns and otherwise howsoever from erecting or further erecting market stalls at the Alayabiagba Market pending the final determination of this suit. He also ordered that the Defendants be restrained from parading themselves as the Executive Committee of the Alayabiagba Market Association pending the final determination of the suit pending before him. The third order of injunction restrained the Defendants from collecting rents/levies dues, charges or any money whatsoever from traders in the Alayabiagba Market until the Defendants/Respondents shall have rendered account of money so far collected on behalf of the Association.
The Defendants promptly filed a notice of appeal against the said order of Adeniji J. dated 13 February, 1992. They also applied for a stay of execution of the orders of the lower court pending the determination of the appeal lodged against the said Ruling: On the 12 May, 1992, Adeniji J. refused the application for a stay of execution and pursuant to Order 3, rule 3 (3) and (4) of the Court of Appeal Rules 1981, as amended the Applicants have applied to this Court for a similar relief.
➥ ISSUE(S) & RESOLUTION(S)
[APPLICATION GRANTED]
↪️ I. Whether the stay of execution should be granted?
RESOLUTION: IN APPLICANT’S FAVOUR.
[THERE ARE SUBSTANTIAL POINTS OF LAW IN ISSUE
‘It therefore seems clear to me that grounds 2 and 12 of the grounds of appeal which complain that the learned Judge has no jurisdiction to make an order not related to the cause of action are arguable points of law demonstrating that substantial reasons which would warrant the grant of stay of execution clearly exist.’
‘I have dealt at length with the question of the grounds of appeal filed suggesting that substantial grounds of appeal are to be decided to warrant the grant of a stay of execution having regard to the various views of the Supreme Court in Balogun v. Balogun, Okafor v. Nnafie, Martins v. Nicannar, Agbaje v. Adelekan (1990) 7 NWLR (Pt. 164) 595 and Odofin v. Agu, which is that latest in the series.’
THIS CASE REQUIRES A STAY OF EXECUTION AS THERE IS SUBSTANTIAL ISSUE OF LAW IN CONTEST
‘In my view, the grounds of appeal to which reference has been made which complain that the learned Judge erred in law in granting the injunction sought which finally decided the contest between the parties summarily without permitting the applicants the right of trial raise substantial and serious issues of law as would warrant an interference with the Ruling of Adeniji J. pending the determination of appeal. (See Lawrence David Limited v. Ashton (1991) 1 All E.R 385 at p. 395; NWL Ltd. v. Woods (1979) 3 All E.R. 614 at 626 a-b per Lord Diplock). As it is usual from experience in this court, when an interlocutory injunction has been granted in the court below, it takes some time, over three to five years, before the appeal against such interlocutory injunction is disposed off. The action in the court below may take a longer time to be concluded. The order of injunction continues in operation to the embarrassment of the court. In such circumstance, this court may properly go on to consider the prospects of the plaintiffs succeeding in the action. Another way of reaching the same conclusion is to say that the defendants may suffer damage if the injunction is wrongly granted which is uncompensatable by the plaintiffs and therefore it becomes necessary to consider the relative strength of the applicants’ case. (See page 396 a-c Lawrence David Ltd. v. Ashton (supra). I think that upon the basis of the strength of the applicants application, this is a proper case in which the orders of interlocutory injunction should be stayed.’
THE BALANCE OF CONVENIENCE FAVOURS THE APPELLANT/APPLICANTS
I am of the view that the balance of convenience is in favour of the Applicants as the cost of the reconstruction of the market may have gone beyond 100% and probably impossible to complete the reconstruction at the end of the case. In any event, the reconstruction is not a waste it is an improvement and the Respondents have not deposed to any fact that at the conclusion of the case, irreparable injury will be caused to them if a stay of execution is granted to the Applicants and it turned out that they win the case.]
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✓ DECISION:
‘From the foregoing reasons, I am of the opinion that the justice of this case demands that a stay of execution of the Ruling of Adeniji J. made on 13th February, 1992 in Suit No. LD/3072/91 be made. Accordingly, I hereby order a stay of execution of the Ruling of Adeniji J. dated 13th February, 1992 pending the determination of the appeal lodged against the said Ruling. The Applicants are awarded N150.00 costs against the Respondents.’
➥ FURTHER DICTA:
⦿ AVERMENTS NOT DENIED IS DEEMED ADMITTED
In the counter-affidavit filed on 5 June, 1992, the Respondents did not deny these weighty statement of facts. The effect of their failure to deny these facts is that those facts are deemed to be admitted and are no longer in controversy. When positive assertions are made in an affidavit which go to the root of the application, it is incumbent on the opposite party to deny such positive allegations clearly and specifically. When the assertions are left undenied, the court is bound to accept those assertions as proved and such assertions may be used in favour of the deponent and against the adverse party. (See Nwosu v. Imo State E.S.A. (1990) 2 NWLR (pt.135) 688, 721A, 735A-B; Alagbe v. Abimbola (1978) 2 S.C. 39; Abeo v. Ogunyemi (1990) 3 NWLR (Pt.141) 758,762 E-F.) — O. Kolawole JCA.
⦿ PARTY APPLYING FOR STAY OF EXECUTION SHOULD SATISFY THE COURT
It is settled law that the onus is on the party applying for a stay of execution to satisfy the court that in the peculiar circumstance of his case a refusal of a stay would be unjust and inequitable. The case of Balogun v. Balogun (1969) 1 All NLR 349 coram Coker, Madarikan and Udoma J.J. S.C. appears to me to be very apposite in this particular case. In the judgment of the court delivered by Coker J.S.C. at page 351, the court observed that:- “We are in full agreement with the principle that in order to obtain a stay of execution of a judgment against a successful party an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the court. We are in no doubt whatsoever that where grounds exist on the motion suggesting a substantial issue of law to be decided on the appeal in an area in which the law is to some extent recondite and where either side may have a decision in his favour such substantial grounds as would warrant an interference clearly exist.” — O. Kolawole JCA.
⦿ INTERLOCUTORY MOTION MUST BE BASED ON SUBSTANTIVE RELIEF
In my view, there must be endorsed on the writ of the plaintiff the commission of a wrong which is the cause of an action followed by an interlocutory application. Where an interlocutory application as in the motion before the court below is not based on a substantive relief claimed in the writ of summons, the court lacks jurisdiction to award such injunctive order. — O. Kolawole JCA.
⦿ BEFORE STAY OF EXECUTION IS GRANTED, THERE MUST BE SUBSTANTIAL ISSUE OF LAW DISPUTED
Similarly, in considering whether a stay of execution should be granted pending appeal the chances of the applicants’ success on appeal must weigh heavily on the court having regard to the strength of the grounds of appeal. In so doing, it is proper to bear in mind that a substantial and arguable ground of law on appeal is a collateral circumstance worthy of consideration in deciding whether to grant a stay of execution or not. In Martins v. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75 Nnamani J.S.C. observed at page 83 G-H as follows:- “The court’s discretion to grant stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating the parties and issue being in status quo until the legal issues are resolved- It is clear that this Court would consider granting a stay of execution where as Coker J.S.C. put it (in) Vaswani’s case “the grounds of appeal filed do raise vital issues of law and there are substantial issues to be argued on them as they are.” The late Justice of the Supreme Court observed further at page 83/84 that:- “I am not unaware of the decision of this Court in which the scope of this case appears to have been restricted. This is Okafor v. Nnaife (1987) 4 NWLR (Pt.64), 129. With all respect, I think this court was swayed in the Naife case by the facts of that case which involved continuous acts of trespass. In a case in which a substantial point of law, such as on jurisdiction, does arise Balogun’s case would still have full force.” — O. Kolawole JCA.
⦿ A PARTY IN A LITIGATION IS ENTITLED TO REAP THE FRUITS OF HIS SUCCESS
A party in victory in a litigation is entitled and must reap the fruits of his success. That is the essence of the victory and litigation itself. Once he is denied that benefit accruing from his success, then he can be said to have only barren victory or victory in name without more. — Niki Tobi JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Owolabi Kolawole, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)/APPLICANT(S)
Mr. Femi Okunnu.
⦿ FOR THE RESPONDENT(S)
Mr. Okoh.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ AN INTERLOCUTORY MOTION SHOULD BE BASED ON RELIEF SOUGHT IN THE SUBSTANTIVE ACTION
This court, in Okoya and Ors. v. Santilli (1991) 7 NWLR (Pt.206) 753; observed at page 765 B-C (per Niki Tobi J.C.A.) as follows:- “An interlocutory application or motion should normally be based on the substantive action before the court. In other words, an interlocutory application or motion should normally be based on specific reliefs sought in the substantive action. As a general rule therefore, if an interlocutory application or motion does not seek a prayer related to the cause of action, the application or motion is incompetent. An applicant cannot, at the interlocutory level, make a fresh case, different from the cause of action.”
⦿ AN APPEAL DOES NOT ACT AS AN AUTOMATIC STAY OF EXECUTION
In Agba v. Okogbue (1988) 4 NWLR (Pt.91) 747, I observed at page 753 G-H as follows:- “It must be clearly borne in mind that a stay of execution is never granted as a matter of course because section 18 of the Court of Appeal Act, 1976, enacts that an appeal under part 2 of the Act shall not operate as a stay of execution. The grounds of appeal filed against the judgment must therefore be tested under a microscopic mirror if the application is not a ruse to delay the enjoyment of the fruits of the judgment by the respondent. In so doing, it is wrong to suggest that a court is acting as if it is hearing an appeal because it has pointed out the absurdity of a ground of appeal in considering whether it is prima facie an arguable ground”.
➥ REFERENCED (OTHERS)