➥ CASE SUMMARY OF:
West African Examinations Council V. The Governing Council of Industrial Training Fund & Another (CA/A/123/06, 10 JUL 2008)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Stay of execution pending Appeal.
➥ CASE FACT/HISTORY
This is an Application filed on the 29th day of September 2006 in which the Applicant prayed for the following relief:- “An order of the Honourable Court staying the execution of the Judgment of the Federal High Court No. 3, Abuja dated 2nd day of March 2006, pending the determination of this Appeal.” In support of the Application is an affidavit of 24 paragraphs, 6 paragraphs further and better affidavit and another 8 paragraphs further and better affidavit. The Respondents opposed the Application and relied on 18 paragraphs counter affidavit.
➥ ISSUE(S)
I. Whether in the circumstances of this case, the Applicant is entitled to an order of Stay of Execution of the Judgment of the trial Court?
➥ RESOLUTION(S) OF ISSUES
[APPLICATION DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE APPLICANT HAS NOT FURNISHED THE COURT WITH HIS STATEMENT OF ACCOUNT
‘In the instant case, a perusal of paragraphs 4, 5, 6, 7, 8, 9, and 10 of the affidavit in support of the application showed that the Res in the case is money.  And where judgment has been entered for the payment of a sum of money and the judgment debtor seeks a stay of execution, the affidavit or affidavits relied upon by him in such a situation, apart from stating the relevant facts upon which to consider the principles for stay, must ensure that these facts are full and frank, including a complete and accurate account and description of all the applicant’s income, assets, interests and properties as well as his obligations and liabilities. See – Ikeja Real Estate Ltd v. National Bank of Nigeria Ltd. (2000) FWLR Part 9 at Page 1448 at Page 1453 Paragraph E ratio 6; – Josiah Cornelius v. Ezenwa (supra) Page 626 Paragraphs A to B; – Chukwu v. Onyia (1990) 2 NWLR Part 130 Page 80 at 84 – 85. The applicant has not furnished the court with his statement of account as enjoined by law so as to assist the court in exercising its discretion either to grant or refuse the application.’
THE APPLICANT HAS NOT MADE OUT A CASE FOR THE GRANTING OF THE STAY OF EXECUTION
‘The next thing which I will like to comment upon is Exhibit “A” attached to the application i.e. The notice and grounds of appeal. The applicant attached Exhibit “A” to show that the appeal has great chance of success. A careful perusal of the said Exhibit “A” showed that it did not contain any recondite point of law.  In Ajomale v. Yaduat No. 2 (1991) 5 NWLR Part 191 Page 266, the Supreme Court considered the issue of reconditeness of a point of law in the consideration of an application for stay of execution and held that it is not every ground of appeal which has raised an important or difficult point of law that can suffice as a special circumstance on the ground of reconditeness. The reconditeness of a point of law with reference to an application for a stay of execution is not determined in the abstract by reference to the importance, or difficulty of the point raised in the ground of appeal per se. It is determined by reference to what the effect of a refusal to stay execution may be on the right of the applicant if successful in the appeal. See Ikeja Real Estate Ltd v. National Bank of Nigeria Limited (Supra) Page 1453 Paragraphs A – B. Also in T.S.A. Ind. Ltd v. Kema Investment Limited (supra) Page 66 at 84 lines 15 – 30. Ratio 6. It was held by the Supreme Court per Ogbuagu JSC thus:- “It is settled that the fact that an appellant has wonderful, substantial, impressive and arguable grounds of appeal, is not a special circumstance for granting a stay. In other words, it is not every case where grounds of appeal raise point or points of law that stay of execution will be granted.”’
‘In the instant case, the applicant in paragraph 10 of the affidavit in support of the application stated that the applicant is willing, ready and have the means to satisfy the Judgment debt. But in paragraph 8 of the same affidavit it was stated that if the Judgment sum is paid to the Respondents and the applicant succeeds on appeal, the Respondents will not be able to refund the Judgment sum to the Applicant. In reaction to the averments above, the Respondents filed an undertaking dated 3rd October 2006 to refund both the Judgment sum and interest to the applicant in the unlikely event that the appeal succeeds. The Respondents also filed an 18 paragraphs counter affidavit in which it was stated that the Respondents have a capital base including fixed assets, worth more than N30 Billion in addition to having the means and capacity to refund the Judgment debt in the unlikely event that the appeal succeeds. In addition the Respondent also filed Exhibit MS 2 which is the statement of account of the Respondents at Zenith Bank to show the financial status of the Respondents. In view of the foregoing, after a careful examination of the affidavit in support of the application, the two further and better affidavits, counter affidavit and the submissions of both counsel it is my view that the applicant has not made out any case to warrant granting its application for stay of execution of the Judgment of the trial court.’]
.
.
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✓ DECISION:
‘In view of the foregoing, after a careful examination of the affidavit in support of the application, the two further and better affidavits, counter affidavit and the submissions of both counsel it is my view that the applicant has not made out any case to warrant granting its application for stay of execution of the Judgment of the trial court. Consequently, this Application lacks merit and it is hereby dismissed. The Respondents are entitled to costs in this Application which is assessed at (N15,000.00) Fifteen Thousand Naira against the Applicant.’
➥ FURTHER DICTA:
⦿ PRINCIPLES GUIDING THE GRANT OF STAY OF EXECUTION
Also in U.B.N. v. Fajebe Foods and Another (1994) 5 NWLR Part 344 Page 342 to 343 AND Chief D. Achor and 1 Other v. M. Aduku and 1 Other (2005) 27 WRN Page 178, the principles guiding the grant of stay of execution pending appeal were stated as follows:- “In considering whether or not to grant a stay of execution pending an appeal, the Court will take into consideration the following points:- (a) The chances of the Applicant on appeal. If such a chance is virtually nill, then a stay may be refused. – Vaswani Trading Coy v. Savalakh (1972) 12 S.C. Page 77; – Wey v. Wey (1975) 1 S.C. Page 1; – Shoge v. Musa (1975) 1 NWLR Page 133; – Odufaye v. Fatoye (1975) 1 NWLR Page 222. (b) The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case (Dada v. University of Lagos (1971) 1 U.L.L.R Page 344; Utilgas Nigerian and Overseas Co. Ltd v. Pan African Bank Ltd (1974) 10 S.C. Page 105.) (c) Whether if the appeal succeeds, the Applicant will not be able to reap the benefit of the Judgment on appeal. (d) Where the Judgment is in respect of the money and costs whether there is a reasonable probability of recovering these back from the Respondent if the appeal succeeds Enegbuna v. Ebegbuna (1974) 3 W.S.C.A. Page 23. (e) Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the Appellant of the means of prosecuting his appeal Ewfisi v. Mbanugo (1970 – 71) 1 ECSLR Page 100) (f) A stay may be ordered in respect of the sum payable whilst an order for payment of the costs to the Counsel for the successful party is made on his giving an undertaking that he personally would refund the sum of money in case the appeal succeeds. (g) In granting a stay of execution, the Court exercises a discretionary power which must he exercised judiciously and judicially. (h) A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an Applicant for a stay but does not adequately take into account the Respondent’s equal right s to justice is a discretion that has not been properly exercised. (i) A winning Plaintiff or party has a right to the fruits of his judgment and the Courts will not make a practice, at the instance of an unsuccessful litigant, of depriving a successful one of the fruits of the Judgment in his favour until a further appeal is determined. (j) An unsuccessful litigant applying for a stay must show special circumstances or exceptional circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay. (k) The onus is on a party applying for a stay pending appeal to satisfy the Court that in the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable.
— J. O. Bada JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Jimi Olukayode Bada, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Umar Alhaji.
⦿ FOR THE RESPONDENT(S)
Mr. Sayo Odumosu.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
