RULING. On the 11th day of January 2016, the Judgment Creditor filed form 48, notice of consequence of disobedience to order of Court contained in the judgment delivered on 15th day of December 2015, by this Court. Upon being served with form 48 notice of consequence of disobedience to order of this Court, the Judgment Debtors/Applicants filed motion on notice seeking for leave of the Court of Appeal to file notice and grounds of appeal against the final decision of this Court in suit No. NICN/ABJ/344/2013, delivered on 15th day of December 2015. Upon filing of the motion on notice at the Court of Appeal seeking for leave to appeal against the judgment of this Court, the Judgment Debtor/Applicant on 19th day of February 2016, filed motion on notice for stay of execution of the judgment of the Court which the Judgment Debtor/Applicant is seeking leave of Court of Appeal to appeal against. However, following the coming into force of the National Industrial Court of Nigeria, (Civil procedure) Rules 2017, the Judgment Debtors/Applicants on 5th day of January 2018, filed fresh application for stay of execution of the judgment of this Court delivered on 15th day of December 2015, to be in line with the new rules of Court. In the motion for stay of execution, the Judgment Debtors/Applicants are praying this Court for an order staying the execution of the judgment of the National Industrial Court of Nigeria, Abuja Division (Court One) presided over by Hon. Justice B. A. Adejumo, OFR and delivered on 15th day of December 2015, pending the hearing and determination of the appeal in respect thereof for which the leave of the Court of Appeal is being sought for filing of notice and grounds of appeal. The applicants are also praying for such further or other orders as this Honourable Court may deem fit to make in the circumstance. The grounds for this application are:- 1. The applicants being dissatisfied with the judgment of the National Industrial Court of Nigeria, Abuja Division delivered on 15th day of December 2015, have applied for leave of the court of appeal to file the notice and grounds of appeal. 2. That there is no constitutional right for the applicants to appeal against the decision of the National Industrial Court of Nigeria to the Court of Appeal hence the need to seek leave of the Court of Appeal. 3. That there is the urgent need for status quo to be maintained to await the final decision of the Court of Appeal. 4. The application was brought pursuant to Order 64 Rule 8(1) of the National Industrial Court of Nigeria Civil Procedure Rules, 2017 and the inherent powers and Jurisdiction of the Court. The application is supported by a 5 paragraphs affidavit and one exhibit marked as Exhibit ‘A’. 5. In line with the rules of this Court the Applicants filed along with their application a written address. In oral submission before the Court, Counsel for the Judgment Debtors/Applicants, relied on all the averments contained in the affidavit in support as well as the exhibit therein. Counsel also adopted the written address as his argument of the motion. In the written address adopted by Counsel one issue was distilled for determination. To wit: ‘‘Whether the applicants have provided sufficient materials showing special circumstances to warrant the trial court exercising its discretion in applicant’s favour by granting of this application. In arguing the issue for determination, Counsel for the Judgment Debtors/Applicants submitted that this Court has discretionary power to grant this application. It is the contention of Counsel that the discretion must be exercised judicially and judiciously and not arbitrarily. On this submission Counsel relied on FATOYIBO Vs. OSADEYI (2002) FWLR (Pt.110) 1770. Counsel also submitted that the discretion should take into consideration competing rights of the parties to justice since in the exercise of the discretion, the court will not make a practice of depriving successful litigant at the instance of an unsuccessful one, of the fruits of the judgment until a further appeal is determined and the judgment set aside. Counsel on this submission relied on VASWANI TRADING CO VS SAVALAKH & CO (supra). Counsel also submitted notwithstanding the above submission, substantial and arguable ground of appeal exist, to warrant granting stay in favour of the applicants. Counsel cited MARTUNS Vs NICANNAR FOOD CO LTD (1988) 3 NWLR (pt.74) 75. Counsel referred to exhibit ‘A’ and submitted that all the grounds of appeal are strong and arguable, this amount to special circumstances. Counsel also referred to paragraph 4(e) and (i) of the affidavit in support and submitted that the grounds of appeal borders on substantial and not frivolous issues of jurisdiction. Counsel relied on AGBAJE Vs ADELAKUN (1990) 7 NWLR (Pt.164) 595. Counsel also contended that the Judgment Creditor being security guard, it would be extremely difficult for him to refund the pension that would be paid to him in the event that the appeal succeeds. Counsel referred to paragraph 4(h) of the affidavit in support and submitted that this also amount to special circumstance to favour granting of stay. On this submission Counsel relied on IKERE LOCAL GOVERNMENT Vs OLUMUYIWA OLUFEMI AUGUSTON ADELUSI (2008) ALL FWLR (pt.404) 1534. Counsel contended that if stay is not granted the res will be destroyed and foist a situation of complete helplessness and render nugatory any order if the appeal succeeds. Counsel also submitted refusal of this application will occasion more harm than good. Counsel further referred to exhibit A which is evidence of proposed notice and grounds of appeal and urged the Court to grant this application because there is a valid pending appeal. NIKKA FISHING CO LTD Vs (Supra) Counsel urged Court to grant this application in the interest of justice to enable Applicants exercise their constitutional right. Opposition to the application for stay. In opposing this application, the Judgment Creditor filed an 11 paragraphs counter-affidavit wherein it was stated that the application is meant to deprive the Judgment Creditor of the fruit of the judgment. It was also averred that the grounds of appeal are not cogent to warrant granting of stay. It was averred in the counter-affidavit that this court has jurisdiction over employment matters. It was also stated that the Respondent will be able to refund the pension to be paid to him, if the appeal succeeds. In the written address filed by the Respondent two issues were formulated for determination. To wit: 1. ‘‘whether the judgment Debtors/Applicants have shown substantial reasons to entitle them to the grant of this application’’. 2. ‘‘whether there is an appeal challenging the judgment of this honourable Court delivered in this suit’’. In arguing issue one, Evelyn Moses, Esq; Counsel for the Judgment Creditor/Respondent submitted that the principle governing stay of execution were enunciated in the case of FRANCHAL NIG. LTD & ANR. VS NIG. ARAB LTD (2000) NSCQR, Vol. 2, page 1035, in the dictum of Uthman Mohammed, JSC, at pages 1064 and 1065, where he stated that; "Stay of Execution is a discretionary remedy. An Appellate Court in considering an appeal against the refusal of a court to order for stay of Execution should ensure that the successful litigants are not unduly deprived of the fruits of the judgment which they had obtained at a lower court even though that judgment is the subject of a pending appeal. It is also relevant to point out, as the court has done in several decisions, that the guiding principle in application for a Stay of Execution of a judgment is for the Applicant to give substantial reasons to warrant deprivation of the successful party of the fruits of his judgment. Where grounds exist suggesting a substantial issue of law to be decided on the appeal in an area in which the law is to some extend recondite either side may have a decision in his favour. See BALOGUN V. BALOGUN (1969) 1 ALL NLR 349.However, where the appeal is against a judgment where the Applicant for a stay had admitted liability in the trial of the Court. It is my strong view that such application is without merit and should be refused". It is the submission of Counsel that the Judgment Debtors/Applicants in this case have not shown any special or exceptional circumstances to warrant the granting of a Stay of Execution, neither have they shown that the balance of justice is in their favour. We further submit that the submission of the Judgment Debtors/Applicants that paragraphs 4 (e) and (k) of its affidavit in support of this application amounts to special circumstances is untrue. As it is not every case where grounds of appeal raise point or points of law, that Stay of Execution will be granted. On this submission Counsel referred to the case of T.S.A. INDUSTRIES LTD V. KEMA INVESTMENT LTD (2006) NSCQLR Vol. 25, 39 @ 54 where the Supreme Court held that that an Appellant has wonderful, substantial, impressive and arguable grounds of appeal is not a Special circumstance for granting a Stay. In other word, it is not every case where grounds of appeal raise point or points of law that Stay of Execution will be granted. On this submission Counsel relied on OKAFOR & ORS V. NNAIFE (Supra) at pg 137 and the case of ALHAJI AGBAJE & 5 ORS. V. MR ADELEKAN & 4 ORS (1990) 7 NWLR (pt 164) 595 @ 611; (1990) 12 SCN) 18 at 27. Counsel also submitted further that the Judgment Creditor/Respondent will be able to refund his pension to be paid to him by the Judgment Debtors/Applicants in the event the appeal succeeds. It is also submitted that the Applicants will not be prejudiced by the refusal of this application. Counsel urged the Court to resolve issue No 1 in favour of the Judgment Creditor/Respondent. On issue two, Counsel contended that Exhibit "A" of the Judgment Debtors/Applicants is a motion seeking leave to appeal against the decision of this court. The said motion has not been moved. That is to say, that the leave to appeal against this judgment is yet to be obtained. Counsel contended that since the leave of the Court of Appeal to appeal against this judgment has not been obtained since 2015, there is therefore no appeal challenging the judgment of this Honourable Court as such, this present application for stay of Execution is standing on nothing. Counsel urged this Honourable Court to resolve issue No.2 in favour of the judgment Creditor/Respondent. Counsel urged the Court in the interest of justice to exercise its discretion in favour of the Judgment Creditor/Respondent and refuse this application as same is aimed at denying the Judgment Creditor/Respondent of the fruits of his judgment. Reply by the Applicants. In reaction to the counter-affidavit the Judgment Debtors/Applicants filed a 6 paragraphs further and better affidavit wherein the averments in the counter-affidavit were debunked as not correct and true. In the reply on point of law Counsel submitted that the existence of appeal is enough to constitute special circumstances, thereby preventing destroying the subject matter of appeal and foist situation of complete helplessness. Counsel also submitted that what will constitute special circumstances have been stated in VASWANI V. SAVALAKH (Supra). Counsel submitted that the applicants’ inability to prosecute an appeal is not their fault as they could not dictate when their application at the Court of Appeal should be heard. It is the contention of Counsel that right of appeal is constitutional which inure to all citizens of Nigeria. Counsel submitted filing of application for leave is an appeal in itself. It is submitted that hearing of application is not within the control of parties. Counsel also submitted that poverty has been held to qualify as special circumstance. It is the submission of Counsel that recondite point of law arguable or substantial point of law are grounds to warrant a grant of stay of execution of judgment OKAFOR V NNAIFE (1987) 9-10 SC 105 COURT’S DECISION I have painstakingly perused the content of the motion on notice for stay, the affidavit in support, counter-affidavit in opposition, further and better affidavit, as well as the written addresses filed by Counsel for both parties. The Applicants submitted sole issue for determination, while the Respondent submitted two issues for determination. However, I shall formulate single issue which I feel will dispose of this application. The sole issue is:- ‘‘Whether the Judgment Debtors/Applicants have made out a case for grant of stay of execution’’. As rightly submitted by Counsel for both parties in their written addresses before the Court and in their oral submissions before the Court, an application for stay of execution of Court judgment is seeking for exercise of discretionary power of the Court, which like every discretionary power must be exercised judicially and judiciously, taking into consideration the entire facts and circumstances of the case. The discretion will be exercised where it is demonstrated that the appeal involves substantial point or points of law necessitating that the parties and matters are kept in status quo until the legal issues are resolved. It is also required that the Applicant must show substantial reasons to justify denial of successful party of the fruit of the judgment. This presupposes that there should be no hindrance to shield the judgment Creditor from reaping the fruit of the judgment. Therefore, for execution to be stopped the Applicant for stay must show special circumstances or unique occurrence must exist to deprive a successful party from enforcing the judgment of the Court. The Applicant for stay, must therefore clearly show that there exists special or exceptional circumstances showing the balance of justice tilt in his favour. The grant or refusal of stay of execution of judgment by the Court is purely discretionary. The consideration by the Court must involve consideration of some collateral circumstances and perhaps in some cases inherent matters, which may unless the order of stay of execution is granted, the subject matter will be destroyed or foist upon the Court a situation of complete helplessness or render nugatory any order or orders or paralyze 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 there could be no return to status quo. See VASWANI V SAVALAKH (Supra). From the affidavit evidence the Judgment Debtors/Applicants have averred that the prosed notice and grounds of appeal are arguable, as they borders on competency and jurisdiction of the entire action. It was also stated that the judgment Creditor being a guard may not be able to refund the pension and gratuity which the judgment ordered to be paid to him, if the appeal succeeds. However, the Judgment Creditor on his part averred that he can refund the pension and gratuity if on appeal the Judgment Debtors/Applicants succeeds. I have taken a hard look at all the processes filed and argument canvassed for and against this application. It is apparent from the proposed notice and grounds of appeal that there are arguable issues to be canvassed by the parties in the appeal. More particularly the issue of statute of limitation raised therein. To my mind this is enough to establish special and exceptional circumstances to warrant exercise of discretionary power of the Court in favour of the Applicants. However, in exercising the discretion, the Court will also take into consideration the interest of the Judgment Creditor which must also be protected, more especially considering that the application for leave to file notice and grounds of appeal against the judgment of this Court sought to be stayed is still pending yet to be heard by the Court of Appeal. Albeit, the Judgment Creditor has stated in his averment before the Court that he can refund the judgment sum if at the end of appeal he loses, but there is evidence adduced in the affidavit evidence as to his means and how the refund could be made and from what source. The contention of the Respondent that there is no valid appeal pending before the Court of Appeal cannot be justified on face of exhibit ‘A’ attached to the affidavit in support of this application. The reason being that by law an application for leave to appeal is also regarded by the rules of the Court of appeal as an appeal. It is therefore clear that there is a valid appeal before the Court of Appeal. It is only when the application is taken and refused by the Court of Appeal that it can be said that there is no valid pending appeal at the Court of Appeal. As pointed out earlier one of the cardinal principle that will agitate the mind of the Court in granting or refusing application for stay of execution is the issue of preserving the res and the consideration of balancing the interest of the parties. In view of the foregoing, the application for stay of execution succeed and is hereby granted, on condition that the judgment sum shall be paid in the name of the Chief Registrar of this Court to be lodged in a bank account, so that at the conclusion of the appeal the part that succeed should collect the money with the interest that must have accrued. This is the order shall be complied with within 60 days from the date of this ruling. Sanusi Kado, Judge.