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The Applicants filed a MOTION ON NOTICE on 21st November, 2016 and dated 16th November, 2016, supported by a 5 paragraph affidavit deposed to by Mr. Joel Ali, praying the Court for Stay of Execution and/or all further actions of the judgment of this Honorable Court delivered in this suit on the 15th of November, 2016, pending the hearing and determination of the appeal lodged by the Applicants before the Court of Appeal, Abuja Division. Accompanying their Motion on Notice was their WRITTEN ADDRESS IN SUPPORT OF THE MOTION wherein they formulated one sole ISSUE Whether in the circumstance, the Honorable court ought to exercise its discretion in favour of the applicant. Learned Counsel of the Judgement Debtor / Applicant Juel Alih Esq. submitted that the grant of an application for stay of execution is not granted as a matter of routine, as same is within the discretion of the court considering the affidavit, facts and circumstances applicable to each case upon which the application for stay is predicated. He urged the Court to exercise such discretion judicially and judiciously. A.M CO. (MG.) LTD. V VOLKSWAGEN (MG.) LTD (2012) 11 NWLR PART 1312 P. 405 RATIO 6. He submitted however, that the court will grant the application where the applicant has disclosed a special and exceptional circumstance just as in the instant case, submitting that this requirement is the most fundamental of all. A.M CO. (NIG.) LTD. VS. VOLKSWAGEN (NIG.) LTD (SUPRA) RATIO 2. On what amounts to an exceptional circumstance, counsel cited the case of ROBERT V. CHINDA (2010) ALLFWLR PART 550 PAGE 1344 at 1358-1359E-B, where certain exceptional circumstances or factors were enumerated thus: (i) That the subject matter of the case may be destroyed if a stay of execution of the judgment is not granted; (ii) Where the execution of judgment will foist upon the court, especially the appellate court, a situation of complete helplessness or hopelessness; (iii) Where execution will render nugatory any order of the court; (iv) Where execution of the judgment will hamstring the exercise by the applicant of his constitutional right of appeal; (v) Where the applicant cannot be returned to his status quo if the appeal eventually succeed;” Learned Counsel of the Judgement Debtor / Applicant submitted that if the respondent is paid, it will destroy the subject matter of the appeal and will foist on the Court of Appeal a situation of complete helplessness, that it will hamstring the exercise of the applicants’ constitutional right of appeal and it will be impossible to return the applicants to status quo if the appeal succeeds, because the Respondent will not be in any position to refund the judgment sum. NIKA FISHING CO. LTD V. LAVINA CORP All FWLR [2008] PT 4371 at 22-24. Counsel to the Judgement Debtor / Applicant submitted that the competing rights of both the applicants and the respondent will be considered by the court to do justice. The court will take into consideration, the equity and justice of the application, which in effect amounts to a consideration of both sides of equity and justice of the application and see if hardship would be caused by the refusal of the application. THE REGISTERED TRUSTEES OF ACTS OF THE APOSTLES CHURCH V FATUNDE 120101 ALL FWLR PT51O 662 at 674. He submitted further that Courts have a duty to preserve the res for the purpose of ensuring that the appeal, if successful, is not rendered nugatory, arguing that in the instant case, since the subject matter is monetary in nature, if the Respondent is paid and the appeal succeeds, the applicant would be put in an irrecoverable position. Omololu Thomas V. Aderinokun [supra] Submitting that Application for stay of execution can only be granted where special and exceptional circumstances exist, adding that a special or exceptional circumstance is a peculiar or unique circumstance which is additional to the ordinary state of affairs. THE REGISTERED TRUSTEES OF ACTS OF THE APOSTLES CHURCH V FATUNDE 120101 ALL FWLR PTS1O 662 at 674, C-F. The Judgement creditor / Respondent filed a 20 paragraph COUNTER AFFIDAVIT IN OPPOSITION TO APPLICANTS’ APPLICATION FOR STAY OF EXECUTION DATED 16TH OF NOVEMBER, 2016 (filed on 7th December, 2016 and dated same day).accompanied with a WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT IN OPPOSITION TO STAY OF EXECUTION wherein they raised one sole ISSUE for determination: Whether a trial court would grant stay of execution based on a Notice of Appeal, when the express provision of the law and the constitution does not provide for an appeal, which said appeal is an academic exercise. Learned Counsel to the Judgment Creditor / Respondent Abiodun Ogharen Esq. submitted that the judgment or decision of this Honourable Court delivered on 16th November, 2016 cannot be appealed against because it is not a claim for enforcement of Human Rights or a criminal matter. Section 9 (1) and / (2) of National Industrial Court Act, 2006. He argued further that the Applicant did not counter claim or led evidence to show that their fundamental rights was violated, they therefore do not have any right of appeal to the Court of Appeal. NIGERIAN WESTMINISTER DREGGING AND MARINE LTD V JOHN OVOH (2013) 2 ACELER Pg. 1. Contending that this position was also re -affirmed by Section 254C (5) and (6), 1999 Constitution of the Federal Republic of Nigeria (Third alteration). He argued that the only window of appeal allowed from decisions of National Industrial Court is criminal matters and actions bothering on fundamental rights. Therefore, based on the foregoing, that there is no valid notice of Appeal against the judgment of this Honourable Court. Counsel to the Judgment Creditor / Respondent further submitted that a judgment of court is presumed to be correct and the court would only grant a stay of execution only if there are special or exceptional circumstances to warrant doing so. That the discretion to grant a stay must therefore take into account the competing rights of the parties. OLUNLOYO V ADENIRAN (2001) 7 NSCQR Pg. 313. He argued further that the Applicant has not shown any special or exceptional circumstance why a stay of execution should be granted. They have also not shown that the successful respondent should not be entitled to reap the fruits of his judgment and did not also propose a conditional stay because of falling value of the Naira before disposing of their appeal at the Court of Appeal. In ODEDEYI V ODEDEYI (2000)1 SCNQR Pg. 308. He submitted that Counsel’s address cannot be elevated to evidence and that Counsel cannot through the process of address introduce new facts not supported by evidence. SYLVESTER V OHIAKU (2013) 49 WRN Pg. 87, submitting that refusal to grant a motion or uphold a preliminary objection is not denial of fair hearing. OKAFOR V NNAIFE (2002) 12 NSCQR Pg. 511. Learned Counsel to the Judgment Creditor / Respondent urged this Honourable Court to dismiss this application with cost as the Applicant has not discharged the onus placed on him that the grant of the stay of execution will not result in the determination of the issue of the subject matter of the Appeal and secondly, that there would not be injustice to the Respondent. FRANAL LTD V. NIGERIA —ARAB BANK (2000) 2 PT. 2 NSCQR Pg. 1035. Court’s Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the Judgement Debtor /Applicant’s application. The Judgment Debtor / Applicants is seeking by an motion dated 16th November 2016 and filed on the 21st November 2016 an order of this court staying execution of the judgment delivered on the 15th November 2016, pending the hearing and determination of the appeal the Judgment Debtor / Applicants claim they lodged before the Court of Appeal. On the 17th January 2017 the Judgment Debtor / Applicants filed a further and better affidavit without leave of court to which was annexed a letter to the registrar of this court requesting a certified copy of the Judgement of this court Exhibit BL 1 and a copy of their Notice of appeal bearing Appeal No. CA/A/ 2016 and SUIT NO NICN/ABJ/108/2014 stamped received 21st November 2016 by the National Industrial Court. During oral adumbration of their addresses Counsel to the Judgment Debtor / Applicants submitted that the record of Appeal has been transmitted with number CA/A/7/2016, while the Judgment Creditor / Respondents urged the court to dismiss the Judgment Debtor / Applicants application in that the application was not set properly before the Court arguing that the Notice of Appeal was not certified contrary to paragraph 3 of their Further and better affidavit and that their notice of Appeal did not bear any Appeal No. And neither was the judgment of this court affixed to the application. Section 47 of the National Industrial Court Act 2006 specifically provides that an appeal does not ordinarily operate as a stay of execution of a judgment of this court. That is in line with judicial authorities on this issue, See the cases of ODOGWU V. ODOGWU [1990] 4 NWLR (PT. 143)224 (PT. 102) 122 and ANAKWENZE V. ONYEKWLU [1995] 5 NWLR (PT. 294) 502. To succeed in such application there should be a pending appeal and the pending appeal must be valid. See OLAWUNMI V. MOHAMMED [1990] 4SC 40, THE PROVOST ALVAN IKOKU COLLEGE OF EDUCATION V. AMUNEKE [1991] 9 NWLR (PT. 213) 49. N.B.N. LTD. V. NET [1986] 3 NWLR (PT. 31) 667. The Judgment Debtor / Applicants have argued that once an appeal is entered the lower court is obligated to stay the suit. I agree that once the appeal is entered in the court of appeal the court of first instance is required to stay execution. However there is nothing before this court to enable the court so determine. In ESOMO V. A.TTORNEY GENERAL BENDEL STATE [1986] 4 NWLR (pt. 36) 1 the court distinguished between an appeal being “brought” and an appeal that was “entered”, “. An appeal is "brought" when the notice has been properly filed in the Court below, and is only entered when the Appeal Court has received the Record of Appeal- See OGUNREMI V. DADA (1962) 1 ALL NLR 663; ADEWOYIN & ORS. V. ADEYEYE (1962) 2 ALL NLR. 108. In fact from the processes before the court and the submissions of counsel, including the applicant’s counsel submission during oral adumbration, that the case had been given the appeal no CA/A/7/2016 which does take the place of evidence, and was never substantiated in any written process, I find that there is nothing before the court to indicate that the case has indeed been entered. Furthermore from the written submission of counsel for the Applicant herein the main plank upon which this application is based is on the issue of preservation of the res pending the determination of the appeal. The crucial question to ask here is whether the Judgement Debtor /Applicant has any right of appeal in the circumstances? Put differently is there any res which may be lost forever if the execution of the judgment in this suit is not stayed pending the determination of the appeal. The Learned Counsel to the Judgement Creditor / Respondent rightly argued that as the Judgment Debtor /Applicants case was not one for enforcement of Human Rights or a criminal matter. Section 9 (1) and / (2) of National Industrial Court Act, 2006, relying on NIGERIAN WESTMINISTER DREGGING AND MARINE LTD V JOHN OVOH (Supra) being as the only window of appeal allowed from decisions of National Industrial Court;- criminal matters and actions bothering on fundamental rights, he went on to contend that there is no valid notice of Appeal against the judgment of this Honourable Court. this argument was not countered by the respondent counsel in fact learned counsel for the Applicant failed to refer the Court to any provision in the Constitution granting a right of appeal on every issue from the National Industrial Court to the Court of Appeal. In any case Section 243 (2)(3)and(4) of the 1999 Constitution as amended, provides as follows: “(2) An appeal shall lie from the decision of the National Industrial Court to the Court of Appeal as of right to the Court of Appeal on questions of fundamental rights as contained in Chapter IV of this Constitution as it relates to matters upon which the National Industrial Court has jurisdiction. (3)An appeal shall only lie from the decision of the National Industrial Court to the Court of Appeal as may be prescribed by an Act of the National Assembly: Provided that where an Act or Law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal, such appeal shall be with the leave of the Court of Appeal. (4) Without prejudice to the provisions of section 254C(5) of this Act, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final.[Underlining supplied for emphasis]”. The only other instance for an appeal to lie would be with leave of the Court of Appeal yet there is nothing before the court to indicate that the Judgement Debtor Applicants have even applied for leave to appeal afortori been granted leave to so appeal. Not to mention that from the foregoing, before an appeal shall lie to the Court of Appeal excepting on issues bothering on Fundamental Human Rights there should be an Act of the National Assembly prescribing so, and up till now there is no such Act,. The grounds of appeal as shown in the Notice of appeal exhibited in this motion certainly show that this appeal is not founded on the fundamental rights of the applicant. The forgoing position has finally been settled and upheld by the Court of Appeal Lagos Division in the case of COCA-COLA NIG. LTD. V. MRS. TITILAYO AKISANYA (2013) 1ACELR 28. I am aware of the position of the law that Stay of execution will only be granted by the court, if and only if it is satisfied that there are special or exceptional circumstances to warrant doing so AMADI V. CHUKWU (2013)5 NWLR (PT. 1347) 301, following VASWANI TRADING CO. LTD. V. SAVALAKH (1972) 12 SC 77 but where there is no pending appeal in a matter, it would be unnecessary to embark on a voyage of evaluating the applicants submission in the circumstances. An application for stay of proceedings or execution will not be granted being incompetent. FAMU V. KASSIM (2013) 7 NWLR (PT. 1352) 166 S.C. In the instant case, the application was incompetent and misconceived. NIKA FISHING C. LTD. V. LAVINA CORP. (2008) 16 NWLWR (PT. 1114) 509; OLAWUNMI V. MOHAMMED (1991) 4 NWLR (PT. 186) 516. Having found that there is no valid appeal before me I have no hesitation whatsoever in coming to the inevitable conclusion that the application is incompetent and unmeritorious, and same is hereby dismissed. I make no order as to cost. Ruling is hereby entered accordingly. ____________________ Hon. Justice E. N. Agbakoba Judge