RULING. This deals with a motion on notice dated 23rd day of November 2017 and filed 23rd day of November 2017, wherein the Judgment Debtor/Applicant is praying for an order of this Honourable Court staying the execution of the 25th October 2017, Judgment of in the suit No. NICN/ABJ/44/2013, between Abel Owotemi and FBN Merchant Bank Limited (former Kakawa Discount House Limited) pending the hearing and determination of the judgment Debtor/Applicant’s appeal against the said 25th October 2017 judgment. The application was brought pursuant to section 47 of the National Industrial Court Act 2006, Order 64 Rule 8(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the Court. The application is supported by a 37 paragraphs affidavit with six exhibits, FNB 1 – FNB 6, the affidavit in support was sworn to by one Peter Iwunor a Litigation officer in the law firm of Messrs Bola Olotu and Company, Solicitors to the Judgment Debtor/Applicant. In compliance with the Rules of this Court a written address was filed along with the motion on notice. Counsel relied on all the averments in the affidavit in support. He also adopted the written address as his argument. In the written address Counsel submitted lone issue for determination, to wit: ‘‘Whether the Honourable Court ought to grant the stay of execution in this case’’. In arguing the issue for determination Counsel submitted that the peculiar circumstance of this case warrants granting of the judgment Debtor’s application for stay of execution pending hearing and determination of the appeal against the judgment of 25th October 2017. Counsel also submitted that grant of this application for stay is at the discretion of the Court, which must be exercise judicially and judiciously based on the peculiar facts and circumstances of each case. Counsel submitted that the guidelines, principles and consideration for the exercise of a Court’s discretion in granting a stay of execution pending appeal have been highlighted and laid down by decided authorities like VASWANI TRADING COMPANY V SAVALAKH & COMPANY (1972) ALL N.L.R. 922, AJOMALE V YADUAT (NO. 2) (1991) 5 NWLR (Pt.191) 266. Counsel submitted that for the Court to grant Stay of execution of judgment pending appeal, the Applicant must have a valid and subsisting appeal and show special circumstance. Counsel contended that the Applicant in this case has a valid and subsisting appeal (i.e duly filed notice of appeal dated 20/11FBN 1 and FBN 2 attached to the affidavit in support.2017) against the 25th October Judgment of 2017, Counsel submitted that the Judgment Debtor does not only have a valid appeal and subsisting notice of appeal dated and filed on 20/11/17, but the judgment Debtor/Applicant in demonstration of its willingness, readiness preparedness to pursue its appeal to a logical and final conclusion has taken all other necessary steps expected to ensure an expeditious hearing and determination of the appeal. This was through prompt payment of deposit for the compilation of the records of proceedings. Counsel referred to paragraph 13, 34, exhibit FBN 2, 3 and 6 of the affidavit in support of the motion on notice. It is submitted that in addition to valid and subsisting notice appeal, the fundamental consideration and reasons which constitute special circumstance for the grant of a stay of execution are the need to protect the res, the need to maintain status quo and the need not to foist a situation of helplessness on the Court of Appeal should the appeal of the Judgment Debtor/Applicant succeed. It is the submission of Counsel that from the facts deposed to in the affidavit in support of the motion on notice, it is in the interest of justice to stay execution of the judgment so as to protect the res i.e N13,000,000.00 (Thirteen Million Naira) the subject matter. Counsel further submitted that if the judgment is executed the res will be destroyed, a return of status quo will be impossible and a situation of helplessness foisted on the Court of Appeal should the judgment Debtor/Applicant appeal succeed It is also the contention of Counsel that a consideration of the grounds of appeal in the Judgment Debtor/Applicant’s notice of appeal will reveal that the grounds of appeal and issues raised therein are fundamental, substantial, serious, arguable and recondite. Counsel contended that the issue of the 25/10/17 judgment being challenged on abandoned original statement of facts instead of amended one is fundamental and foundational, such that, if, it succeeds will in no small measure affect the said judgment and the awarded sum of N13,000,000.00. It is the contention of Counsel that it is in the interest of justice to grant this application and thus preserves the res i.e the judgment sum. More particularly considering the letter of 15/11/17 from the Solicitors of the judgment Creditor requesting payment of N26,164,192.02, which was not awarded by the court. But relating to claim 65(x) in the judgment Creditor/Respondent’s amended statement of facts plus 20% interest It is the submission of Counsel that grant of stay will not prejudice the judgment Creditor/Respondent In any way whatsoever. Counsel also submitted that equity of the case dictates that stay be granted rather than refused on this submission Counsel relied on the case of AJOMALE V YADUAT (NO. 2) (1991) 5 NWLR (Pt.191) 266. Counsel also submitted that the Applicant being one of the foremost financial institutions in this country is in a better position to pay the said sum N13,000,000.00 (Thirteen Million Naira) plus 20% interest per annum should the appeal fail, than for the judgment Creditor who lost his lucrative job since 2013 to refund the sum of N13,000,000.00 after spending same should the judgment Debtor/Applicant appeal succeed. JUDGMENT CREDITOR’S OPPOSITION TO THE APPLICATION FOR STAY OF EXECUTION In reaction to the Applicant’s affidavit in support of the motion on notice and the written address. The Judgment Creditor filed on 4/12/17, a counter-affidavit of 29 paragraphs. The counter-affidavit and the written address were on 22/5/18 by order of this deemed them properly filed and served. Ben Omotehinse, Esq; Counsel for the Judgment Creditor in his oral argument stated that he is relying on the content of the averment filed before the Court. Counsel also adopted his written address as his argument. In the written address Counsel submitted lone issue for determination, to wit: ‘‘Whether the Applicant is entitled to an order for stay of execution of the judgment of this Honourable Court’’. In arguing the issue for determination Counsel submitted that an application of this nature calls for exercise of discretionary favour of the Court, but the courts have also held that this discretion must be exercised judicially and judiciously based on peculiar circumstances of each case. On this submission counsel relied on LEADERS & CO V ADETONA (2003) 14 NWLR (PT.840) 431, F.I.B. V CITY EXPRESS BANK (200$0 6 NWLR (PT.869) 236. Counsel submitted that the undeniable discretion of this court is recognized under Order 64 Rule 10 of the National Industrial Court of Nigeria, (Civil Procedure) Rules 2017. Counsel also submitted that it is also a judicial principle that the court will not make a practice of depriving a successful litigant of the fruit of the judgment he has obtained from the court except the existence of a special and exceptional circumstances can be shown as established in the case of SPDC V (NIG) Ltd V OKEI (2006) 17 NWLR (Pt.1007) 1, OFORDEME V ONYEGBUNA (2006) 5 NWLR (PT.974) 549, OLA V WILLIAMS (2003) 5 NWLR (PT.812) 48. Counsel contended that special circumstance can arise in any of the situation enumerated. They are: 1. Where the subject matter of the dispute will be destroyed if the order of stay of execution is not granted. 2. Where a situation of hopelessness wold be foisted on the court especially an appellate court. 3. Where the order of the court would be rendered nugatory, and 4. Where execution will prevent return to status quo, if the appeal succeeds. Counsel referred to VASWANI TRADING COMPANY V SAVALAKH (1972) 7 NSCC 692, on special or strong conditions. According to counsel the res in monetary is not one which can be destroyed. It equally does not have the capacity to foist upon the court a situation of helplessness or render nugatory any order of the court of appeal. It is the contention of Counsel that the primary consideration in the determination of an application for stay is the existence of valid and arguable appeal by the Applicant as held in N. B. C. V BURAIMOH (2006) 6 NWLR (Pt.976) 387, Counsel submitted that the notice and grounds of appeal are prima facie frivolous. Counsel also submitted by the decision in UBA V ODUSOTE BOOKSTORE LIMITED (1994) 3 SCNJ 1, buoyancy is not one of the consideration for stay. Counsel referred to section 47 and submitted that this section is clear that an appeal is not stay of execution. Counsel submitted that an Applicant can only succeed upon fulfilment of conditions stipulated in Order 64 Rule 13(2) of the rules of this Court. It is contended in the instant case Applicant did not comply with the conditions. It is clear there is no evidence to show that has either attached nor exhibited evidence that their purported appeal has been entered at the court of appeal , neither has the applicant obtained leave of court of appeal to file its notice of appeal containing grounds that are not premised on fundamental rights or denial of fair hearing. Counsel referred to section 243 (2) and submitted that the Applicant does not have right of appeal It is only in respect of fundamental right that an appeal shall be considered. SKYE BANK PLC V VICTOR IWU LPER-42595 (SC).UWA. Counsel urged the court to in view of flagrant non-compliance with the rules of Court dismiss this application. REPLY ON POINT OF LAW The Judgment Debtor/Applicant on 21/5/18, filed a further and better affidavit to the affidavit in support of the motion on notice for stay of execution. Wherein the Judgment Debtor/Applicant debunked some of the deposition in the counter-affidavit. There are also averments to the effect that both parties have appealed to the Court of Appeal against the Judgment of 25/10/17. In the reply on points of law Counsel submitted that the provision of Rule 10(1) (2) (3) of Rules of Professional Conduct for Legal Practitioners 2007, provides that a lawyer acting in his capacity as a legal practitioner shall not sign or file a legal document unless there is affixed on such document a seal and a stamp approved by the Nigerian Bar Association. Counsel contended that legal documents include affidavits and noncompliance with this provisions of the rule renders such legal document (i.e affidavit) not to have been properly signed or filed. Counsel submitted the Judgment Creditor/Respondent’s counter-affidavit having been deposed to, signed and filed by Kitan Kola-Adefemi, a legal practitioner, without affixing any seal and stamp approved by the Nigerian Bar Association, ‘’shall be deemed not to have been properly signed and filed’’ Counsel submitted that the Judgment Creditor/Respondent’s counter-affidavit deposed to on 4/12/17 in opposition to motion for stay is incompetent having not been properly signed and filed. It is the submission of counsel that apart from noncompliance with Rule 10 of the Rules of Professional Conduct for Legal Practitioners, paragraphs 12, 13, 17, 19, 20, 22, 24, 25, 27 and 28, contravened section 115(2) of the Evidence Act 2011, for being legal argument but not facts, and for being legal conclusion that only the Court can reach after hearing the application. Counsel urged the Court to strike out the paragraphs for violating evidence Act. On this submission Counsel cited the case of CITIZENS INT’L BANK LIMITED V SCOA (NIG.) LIMITED (2006) ALL FWLR (Pt.323) 1680. It is the contention of counsel that if those offending paragraphs of the affidavit are struck out then the remaining averments are insufficient or inadequate in contradiction or opposition to the Judgment Debtor/Applicant’s motion for stay of execution pending the determination of the appeal. Counsel also submitted that where an affidavit is self-contradictory or a deponent self contradicts himself in his deposition on oath such affidavit is worthless. On this Counsel cited the case of NYUMA V AOR (2008) ALL FWLR (Pt.439) 571, AYANWALE V ATANDA (1988) 1 NWLR (pt.68) 22. To buttress his point Counsel referred to paragraph 8 of the counter-affidavit where it was stated that the Respondent’s amended statement of facts is said to have been dated on 1l/6/16 and in paragraph 16 Respondent’s statement of facts is said to be dated 16/6/17. It is also contended that the deponent of the counter-affidavit in paragraphs 5 and 6 lied on oath and falsely deposed in paragraph 5 to the fact "that the respondent commenced this suit by a General Form of Complaint and statement of facts dated 28th February 2017", and in paragraph 6 that the respondent's previous statement of facts is dated 28th February 2017. Counsel contended that from the suit number of this suit to wit "No. NICN/ABJ/44/2013", there is no doubt that this action/suit was commenced by the respondent in year 2013 and not 2017 as falsely deposed and lied on oath by the deponent in paragraphs 5 and 6 of the judgment creditor/respondent's counter affidavit. It is the submission of Counsel that neither the counter affidavit being self-contradictory is worthy of any evidential value nor the deponent worthy of being believed by this Court. On issue of non-compliance with Rules of Court Counsel submitted that the provision of Order 5 Rules 1, 3, 6(3) of the National Industrial Court of Nigeria, (Civil Procedure) Rules 2017, has stated that any non-compliance or failure to comply with any of the Rules of this Court will be treated as an irregularity and the Court shall not allow such mere technicalities to becloud doing justice to the parties based on the law, equity and fairness while also considering the facts of any matter before it. On this submission Counsel place reliance on DRAGETANOS CONSTRUCTION (NIGERIA) LIMITED VS. FAB MADIS VENTURES LIMITED  ALL FWLR Part 616 Page 441 Ratio 6. AYOGU VS. NNAMANI  ALL FWLR Part 283 Page 46. It is the submission of Counsel that assuming but without conceding that the judgment debtor/applicant has failed to comply with any provisions of the rules, that same be treated as mere irregularity and the court should not allow such technicality to becloud the sense of justice in this application, mindful of the fact that the issue of grant or refusal of stay of execution whether by the provision of Section 47 NICN Act or Order 64 NIC Rules, is at the absolute discretion of the Honourable court. Counsel urged the Court to so hold and to grant the judgment debtor/applicant stay of execution of the 25th October 2017 judgment of this Honourable court. Counsel also refereed to paragraph 13 of the further affidavit exhibit FBN 8 and the provision of Order 1 Rule 5 Court of Appeal Rules 2016 which states: - "In these Rules, unless it is otherwise expressly provided or required by the context- "Appeal means the filing of notice of appeal and includes an application for leave to appeal", and submitted that the judgment debtor/applicant’s application for leave to appeal, which is pending before the Court of Appeal, is also considered an appeal before the Court of Appeal. Hence either way, the judgment debtor/applicant has a pending appeal entered with appeal number(s) before the Court of Appeal against the said 25th October 2017 judgment of this Honourable Court. It is contended that the Judgment Creditor/Respondent has not exhibited before this Honourable Court any evidence of his alleged gainful employment or buoyance as to be able to refund the said N13million if after being allowed to have same, the Judgment Debtor/Applicant's appeal turns out to be successful. Counsel contended that the res being money is easily depletable, expended, diminished and can completely extinguished. Thus, the need for a preservation of same. In concluding his submission Counsel urged the Court to exercise discretion favourably towards the grant of this application for stay of execution pending the determination of the appeal and cross appeal of the parties respectively who are both dissatisfied with the 25th October 2017 judgment of this Honourable Court and have both appealed against same. This was not the situation in UNION BANK VS. ODUSOTE BOOKSTORES LIMITED (Supra). COURT’S DECISION I have very carefully gone through all the documents filed in this app1ication. I hold that the issue for determination is ‘whether this is a proper case to stay the execution of the judgement in this suit pending the determination of the appeal’’. Section 47 of the National Industrial Court Act 2006, specifically provided 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 and Anakwenze v. Onyekwelu [1995} 5 NWLR (Pt. 294) 502. In the same vein Order 64 Rule 8 of the National Industrial Court of Nigeria, (Civil Procedure) Rules 2017, also make provision for making an application for stay of execution or proceedings, but the application shall not operate as stay of execution or of proceedings. The combine effect of section 47 of the National Industrial Court Act 2006 and Order 64 Rule 8 of the National Industrial Court of Nigeria, (Civil Procedure) Rules, 2017, is to confer discretionary power on this Court to consider and determine any application for stay of execution or proceedings as the case may be. However, the discretionary power of the Court must be exercise in line with well-established guidelines as laid down by judicial precedents. One of the condition to be considered in considering application of stay of execution or proceedings is that there should be a pending appeal and the pending appeal must be valid. See Olawunmi v. Mohammed [1990} 4 SC 40, The Provost Alvan lkoku College of Education v. Arnuneke [1991} 9 NWLR (Pt.213) 49, N. B. N. Ltd V NET (1986) 3 NWLR (Pt.31) 667. The Judgment Creditor/Respondent has contended that there is no appeal pending. But, the Judgment Debtor/Applicant on his part insisted that there is a valid appeal pending. I examined the processes filed so far and I am convinced that the deposition in paragraph 13 of the further and better affidavit and exhibit FBN8 there is a valid appeal pending at the Court of Appeal. It is trite that the paramount issue for consideration is the fact that an application seeking for stay of execution must show special or exceptional circumstances why the order should be made, because the court will not make it a practice of depriving a successful party of the fruits of his success. See JOSIEN HOLDING LTD V LOORNAMED LTD 1995 1 NWLR PT.371 255. From the affidavit evidence before the Court and submissions of Counsel it is manifest that the main plank of upon which this application is predicated is the need to preserve the res from destruction. The judgment sum is N13,000,000.00 (Thirteen Million Naira) which is the subject matter of the appeal. The Judgment Debtor is apprehensive that if the judgment is executed, there may be no recovery if the appeal succeeds. However, the Judgment Creditor on his part disagreed and assert that he is into business and can refund the judgment sum if at the end of the appeal the Judgment Debtor succeeds. The discretion to grant or not to grant stay of execution must take into account the competing rights of the parties to justice. See OYEFESO V OMOGHEIN (1991) 4 NWLR (Pt.187) 596. In the further and better affidavit it was averred that the Judgment Creditor has cross-appeal against the judgment of 25/10/17. See paragraphs 10, 11 and 12 of the further and better affidavit. Despite the damning serious assertions in the further and better affidavit, the Judgment Creditor has not file any affidavit to contradict the averment contained therein. This means that the averment contained in the further and better affidavit are deemed admitted as true. From the foregoing, I am of the view that interest of justice and the competing rights of the parties in this suit demands that this application should be granted conditionally. I therefore grant stay of execution of the judgment of 25/10/17 pending the hearing and determination of the appeal and the cross-appeal on condition that the judgment sum of N13,000,000.00 (Thirteen Million) shall be paid to the Chief Registrar of this Court to be lodged in an interest yielding account and at the end of the appeal the successful party shall claim the money with the accrued interest. This order shall be complied with within 30 days. Ruling is entered accordingly. Sanusi Kado, Judge.