➥ CASE SUMMARY OF:
Yusuf Moshood Ayangbade v. United Bank For Africa (UBA) (NICN/YL/05M/2020, 9th February 2021)
by Branham Chima.
➥ ISSUES RAISED
Stay of execution.
➥ CASE FACT/HISTORY
This deal with motion on notice dated 1st day of December 2020 and filed the same day wherein the applicant is praying for:- 1. AN ORDER of the Hon. Court staying the execution of the judgment /decision of the this Hon. Court delivered on the 6th of July 2018, made in favour of the judgment Creditor Respondent herein pending the hearing and determination of the appeal filed against the said judgment/decision by the Judgment Debtor/Applicant. 2. AND for such orders as the Hon. Court may deem fit to make in the circumstances of this case.
➥ ISSUE(S) & RESOLUTION(S)
[APPLICATION GRANTED]
↪️ I. Whether the Judgment Debtor/Applicant is not entitled to the grant of stay of execution of the decision contained in the judgment of the Honourable court dated the 6th day of July 2018, pending the hearing and determination of the Appeal filed against the said judgement?
RESOLUTION: IN APPLICANT’S FAVOUR.
[A LEAVE TO APPEAL IS AN APPEAL; THUS AN APPEAL HAS BEEN FILED
‘In the present case the situation is totally different, the judgment debtor/applicant had vide exhibit ‘C’ attached to the affidavit in support filed before the court of appeal motion on notice dated 30/11/2020 and filed on 1/12/2020, praying for enlargement of time to apply for leave to appeal and leave to appeal. By the provision of Order 1 Rule 5 of the Court of appeal Rules 2016, an application for leave to appeal is considered to be an appeal. In view of this trite position of the law I hold that there is a valid appeal pending before the court of appeal Yola Division, as far exhibit C attached to this application.’
REFUSAL TO GRANT THE STAY WILL RENDER THE JUDGEMENT NUGATORY
‘The applicant has deposed to the facts that if stay is not granted and the judgement is enforced there can be no going back to status quo or recovering the judgment sum, and refusal to grant stay of execution will render the judgment of the court of appeal nugatory. The judgment creditor/respondent did not contradict or controvert the deposition of the judgment debtor/applicant on the issue of rendering decision of the appellate court nugatory and the inability of the judgment creditor/respondent to refund the judgment sum. The failure to controvert these facts has shown that the judgment creditor/respondent is deemed to have admitted those facts and accepted them to be the truth.’
CONDITIONAL STAY IS GRANTED
‘In view of all I have been saying above the judgment debtor applicant has established that it is entitled to have the res protected from being frittered away or destroyed. However, having regards to the nature of the res which is monetary in order to strike a balance, so as not to put any of the parties in jeopardy or at disadvantage, I shall grant conditional stay of execution.’]
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✓ DECISION:
‘It is the order of the court that, an order of stay of execution of judgment of 6/7/2018, is hereby granted, subject to the judgment debtor applicant paying the judgment sum by issuing a bank draft in the name of the Chief Registrar of this court, who shall in turn deposit the said judgment sum into an interest yielding account. At the end of the appeal, the part that got judgment shall have the money deposited with the Chief Registrar, plus the interest, minus any service charge by the bank. For avoidance of doubt, it is not the judgment debtor/applicant that will deposit the money in an interest yielding account, it is the Chief Registrar of this court that will do so.’
➥ FURTHER DICTA:
⦿ THE GRANT OF STAY OF EXECUTION IS NOT AUTOMATIC
It is a well settled position of the law that an appeal against a decision will not operate as an automatic stay of execution against such judgment. The grant or refusal of an application for stay of execution will always depend on consideration of the facts in a given case under consideration. It is trite law that where the judgment of a court of competent jurisdiction is not manifestly illegal or wrong, the judgment appealed against would be presumed to be correct or rightly made until the contrary is proved or established. For this reason, the court will not ordinarily make a practice of denying a successful litigant of the fruits of his success unless under very special circumstances. See In Re: Diamond Bank Ltd. (2002) 17 NWLR (Pt.795) 120. — S. Kado J.
NO APPEAL HAS BEEN LODGED; STAY OF EXECUTION CANNOT BE GRANTED
On issue of filing of appeal or entry of appeal before the court of appeal, the law is well settled that an application for stay of proceeding or stay of execution will not be entertained unless an appeal has been lodged. In other words, the jurisdiction to stay execution of a judgment can only be exercised pending a valid appeal. In this case, after the Court of Appeal struck out the applicant’s notice of appeal and reversed the leave to appeal, there was nothing on appeal existing in the eyes of the law as at 27/11/2020. This means that whatever action taken in respect of the struck out notice of appeal has also gone and no more in existence to have life. In other words, in the absence of a pending appeal (and indeed a valid motion for leave to appeal) the Court would not have jurisdiction to entertain application for stay of execution. See NDLEA v. Okorodudu (1997) 3 NWLR (Pt.492) 221; Fatoyinbo v. Osadeyi (2002) 11 NWLR (Pt. 778) 384, Ogunseinde v. Societe Generale Bank Ltd. [2018] 9 NWLR (Pt.1624) 230. — S. Kado J.
⦿ ENTRY OF APPEAL IS NOT A REQUIREMENT TO CONSIDER MOTION FOR STAY; AN APPEAL IS DEEMED TO BE ENTERED WHERE THE RECORD OF PROCEEDINGS HAS BEEN RECEIVED BY THE APPEAL COURT
The counsel for the judgment creditor/respondent has also contended that no appeal has been entered before the court of appeal. Let me quickly say that entry of appeal is not one of the requirements for consideration of motion for stay of execution. By the provision of Order 4 rule 10, Court of Appeal Rules 2016, an appeal shall be deemed to have been entered in the Court of Appeal when the record of proceedings in the court below had been received in the Registry of the Court of Appeal. By the provision of Order 4 rule 11 Court of Appeal Rules 2016, after an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in the Rules, every application therein shall be made to the Court of Appeal and not to the trial Court, but any application may be filed in the trial Court for transmission to the Court of Appeal. In the instant case, the present application is competent since there is an appeal filed though not entered in the Court of Appeal. If an appeal has been entered any complaint regarding steps taken towards the enforcement of the judgment appealed against or application for stay could only be ventilated in the Court of Appeal. See I.B.W.A. Ltd. v. Pavex Int’l Co. (Nig.) Ltd. (2000) 7 NWLR (Pt.663) 105. — S. Kado J.
⦿ BECAUSE THERE ARE ARGUABLE GROUNDS OF APPEAL DOES NOT GRANT AUTOMATIC STAY
The fact that there are arguable grounds of appeal does not automatically entitle an applicant to the grant of a stay, particularly where the res is money. The applicant must still show that there are strong reasons for granting a stay of execution. The issue of balance of convenience is also such reason. The applicant must come to equity with clean hands. He must make a full and frank disclosure. See S.P.D.C. Nig. Ltd. v. Okei (2007) 17 NWLR (Pt. 1007) 1; Fasel Services Ltd. v. N.P.A. (2001) 11 NWLR (Pt. 723) 35; F.C.M.B. v. A.I.B. (Nig.) Plc (2000) 8 NWLR (Pt. 667) 42. The granting of stay of execution of judgment is subject to the discretion of the court which must be exercised judicially and judiciously based on the facts of each case. Apart from showing arguable points of law, there is also the question of the nature of the subject matter in dispute, can maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case or not. There is also the question of if the appeal succeeds, can the applicant be able to reap the benefit of judgment on appeal. Where the judgment is in respect of money, whether there is a reasonable probability of recovering the money back from the respondent if the appeal succeeds. I shall quickly add that poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the applicant of reaping benefit of the decision of the court on appeal. — S. Kado J.
➥ LEAD JUDGEMENT DELIVERED BY:
Justice Sanusi Kado
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
