⦿ CASE SUMMARY OF:
Lawrence Okafor And Ors v. Felix Nnaife (1987) – SC
– Stay of execution;
– Customary Tenants;
1. Lawrence Okafor;
2. Nwoye Akeme;
3. Michael Mgbemena;
4. Austine Achie
1. Felix Nnaife;
(1987) 4 NWLR (Pt.64)129;
(1987) All N.L.R 517;
⦿ LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
– Mr. M. A. Apampa.
* FOR THE RESPONDENT
– Mrs. G. U. E. Peter Okoye.
⦿ FACT (as relating to the issues)
The present Appellants were Defendants in the Onitsha High Court Suit No. 0/107/77. In that Suit the Plaintiff now Respondent claimed as follows:- “(i) A declaration that the Defendants as customary tenants of the Plaintiffs according to native law and custom have no right, to put tenants on the Plaintiff’s land or farm outside their homesteads or utilize or cut economic trees on the said land without obtaining Plaintiff’s permission. (ii) A declaration that according to the said native law and custom their holdings revert to the Plaintiff on their vacating the land. (iii) N600.00 damages for trespass. (iv) An injunction to restrain the Defendants, their servants and agents from putting tenants on the Plaintiff’s land or utilizing economic trees thereon or doing other acts therein inconsistent with their position as such customary tenants.”
Pleadings were ordered, filed and exchanged, and after due hearing on relevant evidence the learned trial judge found inter alia at pp. 23 and 24 of the copy of the judgment attached as Ex. D:- (i) “. . . None of the Defendants can now challenge the title of the Plaintiff over Ogbundo land, just as they can no longer deny being customary tenants of the Plaintiff at Armagu Settlement in Ogbundo…….” (ii) “Not having proved to be the owners of the Pink verge and also denying to be customary tenants of the Plaintiff, the Defendants have offered no explanation as to the basis of their presence in thePink verge and so are deemed to be trespassers. Accordingly the claim of the Plaintiff for N600.00 damages for trespass against the defendants jointly and severally succeeds and is hereby granted…….” (iii) “On injunction, the plaintiff seeks to restrain the defendants from putting tenants on Ogbundo land or utilizing the economic trees thereon. The other “acts” sought to be restrained were not clearly defined. Accordingly I hereby grant a perpetual injunction restraining the defendants, by themselves, their servants and agents from putting tenants on Ogbundo land or utilizing the economic trees on the land verged Pink in Exhibit A (and also Pink in Exhibit J)…”
Having lost in the Onitsha High Court, the Defendants filed an appeal against the entire High Court judgment to the Court of Appeal Enugu Division. During the pendency of that appeal the Defendants brought a motion before the Onitsha High Court for “Stay in respect of injunction”. After hearing the parties who relied on their Affidavit and Counter Affidavit the learned trial judge, Awogu, J.. (as he then was) held: “I am satisfied that the Applicants may no doubt have existing crops on the land in dispute. In view of the difficulty which the order of injunction may create in terms of the crops, the order of injunction will become operative with effect from May 1, 1987. The order in respect of putting tenants and cutting economic trees is not affected by this modification.”
Apparently dissatisfied with the Ruling of the Onitsha High Court on their “motion for a stay in respect of injunction,” the Defendants filed a fresh motion in the Court of Appeal praying “for an order that the judgment in the above suit, to wit, an order of perpetual injunction against the Appellants/Applicants be stayed pending determination of the appeal”.
The Court of Appeal held “I have gone through the Affidavit and the counter affidavit, I am of the view that no special ground has been shown to disturb the order made by Awogu, J. on 4/9/86. The best approach to a matter of this nature is for the applicants to apply for accelerated hearing of the appeal.”
The Defendants/Applicants chose to appeal to the Supreme Court against the order, on appeal, of the Court of Appeal refusing them “a stay of the order of perpetual injunction pending the determination of the appeal.”
1. Whether the Court below was right “in dismissing the motion praying a Stay of Execution of the judgment of the High Court”.
⦿ HOLDING & RATIO DECIDENDI
[APPEAL: DISMISSED, WITH N300 COST AGAINST THE APPELLANTS]
THE SUPREME COURT HELD: “I am in complete agreement with the Court below that on the materials before it, the Affidavit and Counter Affidavit, the Appellants did not show “any special ground” to enable the Court “disturb the order made by Awogu, J. on 4/9/86″.”
1. THE SUPREME COURT HELD AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. Now since the radical and primary role of Courts is to do justice in the atmosphere of fairness, will it be fair to the Respondent in this appeal to allow the losing Defendants/Appellants “to continue cutting down and selling the economic trees on the land” adjudged by the trial Court not to belong to them simply because their grounds of appeal contain some arguable point of law? I suppose not. Justice and fairness both demand much more than this. They also demand that the ratio of any case should not be pulled in by the hair of the head and made willy nilly to apply to cases where the surrounding circumstances are different. The case of Balogun v. Balogun supra may appropriately apply to divorce cases, but I am afraid it will work considerable hardship in land cases where as in the case on appeal a party adjudged a trespasser, in an application for stay pending appeal, is allowed to continue in his trespass, during that pendency, simply because his grounds of appeal (in the main appeal) contain an arguable point of law.
ii. Applying those principles enunciated in Vaswani’s case (supra), the present Appellants to succeed have to show “special” and/or “exceptional” circumstances. No paragraph in their affidavit in support can remotely be considered to be one of those special or exceptional circumstances which will predispose any Court to grant a stay of execution. The refusal to grant a stay in this case will not destroy the land in dispute nor will it render any judgment of the Court of Appeal nugatory. The defendants seems to be very rich and well to do, for they have already paid the damages and costs of N1,600.00 awarded to the Respondent. There is therefore no suggestion that the refusal of a stay will, for lack of funds or impecuniosity, interfere with or else paralyse their constitutional right of appeal.
⦿ SOME PROVISIONS
⦿ RELEVANT CASES
In Vaswani Trading Company v. Savalakh and Company (1972) 12 S.C. 77 at p.82 held that such circumstances will involve “a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the 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 paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.”
⦿ NOTABLE DICTA
What principles will, and should, guide the Courts in applications for a stay of execution? These principles have been reiterated in very many decisions of this Court. Perhaps it may be well here to re-emphasise some of them (1) The Courts have an unimpeded discretion to grant or refuse a stay. In this, like in all other instances of discretion, the Court is bound to exercise that discretion both judicially as well as judiciously and not erratically. (2) 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 to justice is a discretion that has not been judicially exercised. (3) 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. See the Annot Lyle (1886) 11 P.D. 144 at p. 116 C.A. per Bowen, L.J. (4) An unsuccessful litigant applying for a stay must show “special circumstances” or “exceptional circumstances” eloquently pleading that the balance of justice is obviously weighted in favour of a stay. (5) What will constitute these “special” or “exceptional” circumstances will no doubt vary from case to case. By and large, however, this Court in Vaswani Trading Company v. Savalakh and Company (1972) 12 S.C. 77 at p.82 held that such circumstances will involve “a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the 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 paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.” (6) The onus is, therefore, on the 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. (7) The Court will grant a stay where its refusal would deprive the appellant of the means of prosecuting the appeal Emmerson v. Ind. Coope & Co. (1886) 55 L.J. Ch. 905. The above are some of the general rules guiding and governing the Court in the exercise of its discretion to grant or refuse a stay. The above list is not, however, exhaustive. – Oputa JSC. Okafor v. Nnaife (1987)
A party, who has succeeded in a litigation, is fully entitled to the fruits of the litigation and to these he would be entitled until the judgment in his favour has been set aside. When a stay is granted therefore, the main principles must be fairness and equity having regard to such circumstance. And that is, if the successful party is not restrained temporarily from taking the full value of the judgment, there would be serious detriment, not only to the applicant but to the ultimate result which he would get were he to succeed later in the appeal he had lodged against the decision of the Lower Court. It may be that the property would have been destroyed, thus rendering the success of the appeal hollow and nugatory, or that the applicant would suffer untold hardship which could be justly avoided without damage to the successful party on the interim. – Eso JSC. Okafor v. Nnaife (1987)