Download PDF
RULING. 1. This is a motion on notice dated 30/9/2019 and filed on the 4/10/2019, brought pursuant to section 47 of the National Industrial Court Act 2006; section 64(8) of the National Industrial Court Civil Procedure rules 2017; section 242(1) of the Constitution of the Federal Republic of Nigeria 1999 as altered and under the inherent jurisdiction of the court. The defendants/applicants are praying for an order staying the execution of the order of this Honourable court contained in the judgment delivered on the 13/6/2019 pending the final determination of the appeal. 2. The grounds upon which this application is brought are: I. The defendants/applicants being dissatisfied with the judgment of this Honourable court delivered on the 13/6/2019 filed a notice of appeal at the registry of this court in Abuja on 2nd day of August 2019. II. The defendants/applicants further filed a motion on notice for leave to appeal accompanied with an affidavit of urgency at the registry of the court of appeal on the 7/8/2019 with motion number CA/A/709/M/2019. III. The appeal centres on issues of law and the defendant is desirous of pursuing the appeal speedily and diligently. 3. The application is supported by a 16 paragraphs affidavit sworn to by one Michael Seun Bello, a member of staff in the Legal unit of the 1st defendant/applicant. In the affidavit in support it was averred that the defendants/applicants have lodged an appeal against the judgment of this court delivered on 13/6/2019 and a motion on notice seeking for leave to appeal was filed on 7/8/2019 at the court of appeal. The defendants/applicants have also filed an affidavit of urgency. It was also stated that all the grounds of appeal are weighty. They also raised very serious and fundamental issues which are arguable with great chances of success. The defendants will be denied right to fair hearing if stay is not granted. The defendants/applicants will suffer revenue loss. The claimants/respondents would not be prejudiced by the grant of this application and it is in the interest of justice to grant stay of execution. 4. A written address was filed along with the motion on notice. Evelyn Charles-Iyanya, Esq; counsel for the defendants/applicants in oral adumbration relied on the depositions contained in the affidavit in supports and adopts the written address as his argument. In the written address a sole issue was formulated for resolution, to wit: ‘’Whether this application is one that this Honourable Court can grant.’’ 5. In arguing the sole issue for determination counsel answer the question posed in the affirmative and went on to submit that this an application in which this court can grant and the applicants have been able to show that their application is not a frivolous or time wasting application, but an application borne genuinely, sincerely and in line with the principle of law and the interest of justice. 6. Counsel referred to order 64 of the National industrial Court of Nigeria Civil Procedure Rules 2017 and submitted that this court can grant stay of execution if party supplied sufficient grounds and materials warranting grant of the application. To support this contention counsel relied on the case of MOBIL PRODUCING NIGERIA UNLIMITED V AYENI 2008 LPELR CA/255/05. 7. Counsel also relied on section 47 of the National Industrial Court Act, in pressing for grant of this application. 8. Counsel argued that the court exercise of discretion should be judicially and judiciously. To support this view counsel relied on the case of OFODILE V EGWUATU 2006 I NWLR PT.961 421. It was also argued that that proper exercise of discretion should be according law and not humour. The exercise of discretion should be not be arbitrarily vague and fanciful but legal and regular. On this contention counsel relied on the UBN V ADJARHO 1997 4 NWLR PT.507 112, ODULAJA V WEMA BANK LIMITED 2015 ALL FWLR PT.800 1289 1300. 9. Counsel also relied on the case of HOLMAN BROTHERS LIMITED V KIGO NIGERIA LIMITED (1980) LPELR, where it was held the court from an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal if successful, is not nugatory. 10. Counsel contended that going by the exhibits attached to the affidavit it is proper and just to grant this application. In concluding argument counsel urged the court to grant stay of execution as the applicants are desirous of concluding the appeal speedily and diligently. 11. In reaction to the application, the claimants/respondents filed a 23 paragraphs counter-affidavit sworn to one Ogwuche Ameh, one of the claimants/respondents. A written address was also filed along with the counter-affidavit, wherein a single issue was formulated for determination, to wit: ‘’Whether the judgment debtors/applicants have satisfied the condition necessary for the grant of an order of stay of execution of the judgment of this court pending appeal.’’ 12. D. Ikwem, Esq; counsel for the Claimants/Respondents commenced argument by contending that it is not the practice of court to deprive successful litigant of the fruit of his success. However, the court may in special circumstances exercise its discretion to grant an application for stay of execution. In IWABUZE V NWOSU (1988) LPELR-2081(SC). Court will not as matter of course, deprive a successful litigant of the fruit f his success unless there are very special circumstances for doing so. 13. The exercise of discretion must be on sufficient materials placed before the court, as discretion is not exercised in vacuum, in isolation without reference to anything else. 14. It is the contention of counsel that for a stay to be granted the applicant must have a valid appeal, which entails where leave is required obtaining leave before filing of notice of appeal. on this contention counsel relied on the case of COKER V UBA PLC (1997) LPELR-880(SC). It is the contention of counsel that in the light of this decision of the Supreme Court and by paragraphs 5-13 of the affidavit in support and exhibit B and exhibit C, the applicants have filed notice of appeal before obtaining leave to appeal. This makes the notice of appeal invalid because it was filed before obtaining to appeal. Counsel also relied on the case of EHIGHIBE V EHIGHIBE 2016LPELR-40047CA, where the court held that an applicant cannot apply for stay where in the absence of a pending competent appeal against the said judgment. Application for stay cannot lie where there is no competent pending appeal. in support of this contention counsel relied on the cases of AJAOKUTA STEEL CO. LTD V U. W. C. INC. (2000) 12 NWLR PT.684; GOVT. GONGOLA STATE V TUKUR (1989) 9 SC 105; (1989) LPELR. Counsel contended that an application for stay of execution which is not grounded on an existing valid appeal is incompetent and liable to be struck out. Counsel further argued that even if court disagreed that there is a competent appeal, the affidavit in support is barren as no discernible special circumstances entitling the applicants to grant of stay has been disclosed. On this counsel relied on VASWANI TRADING CO. LTD V SAVALAKH 1972 1 ALL NLR PT.2 483. 15. Counsel contended that the assertions that if stay is not granted the applicants will be denied right to fair hearing and loss of revenue is worthless without stating how their right to fair hearing will be denied they also failed to disclose their accounts, assets, liabilities to enable court determine the possibility of loss of revenue or how their appeal if any will be worthless if this application is not granted. 16. Counsel also contended that the applicants have not shown substantiality of their grounds of appeal. OLUNLOYO V ADENIRAN 2001 14 NWLR PT.734 699. 17. Counsel also contended by order 64 rules 8(2) counsel submitted for a stay to be granted an appeal must have been filed and entered with a number. Record must have been transmitted the judgment debtors have not even initiated process of compilation of the record of proceeding. Where there is monetary order the court may stay the execution on condition that judgment debt is paid into an interest yielding account with the name of chief registrar. counsel by the rules court will not grant stay if it is minded unless the money are paid to chief registrar. 18. Counsel also contended that the applicants have not show how order of court of appeal will be rendered nugatory if this application is not granted. C 19. In concluding his submission counsel urged the court to refused the application. 20. In reaction to the claimants/respondents counter-affidavit, the defendants/applicants filed a 12 paragraphs further and better affidavit in support of the motion on notice, with an address, as response to the opposition of the claimants/respondents to this application. Counsel for the applicants also relied on the depositions contained in the further and better affidavit and adopts the written address that accompanied the further affidavit as his argument. 21. Counsel argued that the claimants/respondents hinged their opposition to applicants not showing exceptional and special circumstances and non-transmission of record of proceedings. It the contention of counsel that what constitute special or exceptional circumstances varies from case to case. According to counsel the court should do some balancing act between the contending interests of the parties. 22. Counsel also stated conditions to be considered in an application for stay of execution which include 23. Destruction of subject matter, situation of helplessness on the appellate court, whether execution will paralyse right of appeal, where order of court would be rendered nugatory and where the execution will prevent return to the status quo if the appeal eventually succeeds. 24. Counsel submitted the applicants have discharge the burden of proof on them with paragraphs 10, 11 and 12 of the affidavit in support of motion on notice. Counsel contended that applicants have satisfied the court that refusal of stay would be unjust and the right to appeal rendered nugatory. 25. While relying on the case of OLAJEDE V OLALEYE 2010 4 NWLR PT.1183 1, counsel argued that if stay is not granted there will be no return to status quo f appeal succeed since this is employment case. 26. Counsel contended that the applicants have filed application for leave, therefore they cannot be expected to jump gun by transmitting record without obtaining the requisite leave. 27. Counsel also contended the applicants have denied exhibits attached to counter affidavit on salary as this application is fo stay of execution and not garnishee proceedings. Counsel contended that sheriff and civil process Act is clear on how a judgment sum, if any, which was never an issue or canvassed at the trial court can be calculated and deliberated upon, not at the stage of application for stay of execution. 28. Counsel also contended that the depositions in counter-affidavit are meant to confuse and mislead the court from the main issue which is stay of execution of judgment and make the court sought that the judgment sought to be stayed is monetary. Counsel argued that deposition must not be questionable, incredible or unreliable or unbelievable. It must pass test of credibility. Exhibits attached to counter-affidavit have failed test of credibility test and unreliable. They are also not certified as public document. They are also marked confidential which have particular way to be obtained. AYANWALE V ATANDA 1988 1 NWLR PT.68 22. Counsel urged the court to discountenanced the claimants/respondents opposition and grant stay of execution to the applicants. COURT’S DECISION: 29. I have considered the processes filed in this application and both written and oral submission of counsel for both sides. 30. What this court is to determine is whether the applicants for stay of execution in this case have made out a case to entitle them to the grant of order staying execution of the judgment of this court. 31. The defendants/applicants anchored their application for stay of execution based on the serious, arguable grounds of appeal, denial of right to fair hearing if stay of execution is not granted, that they will suffer loss of revenue, appeal will be worthless if at the end appeal is decided in favour of the defendants/applicants, interest of justice and respondents will not be prejudiced by the gran of this application. 32. The claimants/respondents in their opposition insisted that the defendants/applicants are not entitled to the grant of stay execution in that there is no valid and competent notice of appeal, as the defendants are yet to obtain leave of the court of appeal and have not made effort to compile record of appeal. it is also the position of the claimants/applicants that even if this court is of the view that there is a valid and competent notice of appeal the defendants have not provided sufficient materials based on which this application can be granted. 33. It has been variously held by the courts that it is a fundamental principle in the administration of justice that a successful party or litigant must not be deprived or denied the reaping of the fruit of his judgment at the instance of an unsuccessful party. For a court to order a stay of execution which amount to denying a successful party, even temporary of the fruits of his judgment, the applicant seeking for the order of stay of execution, must show that there exists special or exceptional circumstances. 34. It is as well settled law that every judgment takes effect on pronouncement. See BANK OF WEST AFRICA V NIPC LTD 1962 LLR 31, OLAYINKA V OLUSANMI 1971 1 NMLR 277. And an applicant seeking to stay execution of judgment of court must show that he has challenged the judgement by way of appeal against which he is seeking for its stay of execution. This is done by filing a competent notice of appeal. OLADAPO V ACB (1951) WACA 110. 35. The granting of a stay of execution is a matter of exercise of discretionary power of the court. VASWANI TRADING CO LTD V SAVALAKH AND CO, the discretion must however, be exercised judicially and judiciously MOBIL OIL LTD V AGADAIGHO, The court must be guided by the well-established guiding principles for the exercise of the discretion. In order to obtain an order for stay of execution of a judgment against a successful party, an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the court. BALOGUN V BALOGUN 1969 1 ALL NLR 349. The court is enjoined not to deprive successful party of fruit of his judgment unless under very special circumstances. VASWANI such circumstances involved a consideration of some collateral ones and in some cases inherent matters which may, unless the order i=s granted destroy the subject matter of the proceedings or foist the court, especially the court of appeal situation of complete helplessness or render nugatory any order or orders of the cout of appeal 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 happened to the case, and in particular even if the appellant succeeds as the court of appeal there will be n return to the status quo. Where the order or judgment is not manifestly illegal or wrong it is right for ca to presume that the order or judgment appealed against is correct or rightly made until the contrary s proved. Poverty is not a ground upon which an order of stay can be granted. See VINCENT V XTODEUS 1993 6 SCNJ PT2 300. 36. Other consideration include chances of success, nature of subject matter in dispute whether maintaining the status quo until final determination of the appeal in the case will meet justice of the case, whether if appeal succeed applicant will not be able to reap the benefit of the judgment on appeal, if judgment involved money whether there is possibility of recovering back the money, and poverty is not a ground for granting stay of execution except where the effect will be to deprive the appellant the means of prosecuting his appeal. NWABUZE V NWOSU 1988 4 NWLR 257. 37. Applying the aforementioned principles law to the case at hand, it is clear from the judgment that the orders made by the court can be categorised into two, one there is the order for immediate reinstament of the claimants beck to their respective position to which they were appointed by the defendants before the withdrawal of their letters of appointment. The second is the order for payment of salaries and entitlements of the claimants from the date of withdrawal to the date of the judgment. It is clear to me that there is mandatory order which requires obedience and there is also the monetary aspect of the judgment. 38. I am satisfied from the evidence before me that the order of re-instatement of the claimants/respondents back to their various positions to which they were appointed before their letters of employment were withdrawn will not have any adverse effect on the defendants/applicants to my mind they stand loose nothing if the claimants are reinstated. The reinstatement to my mind will not render any order to be made by the court of appeal nugatory or deprived the defendants/applicants their right to fair hearing or impede them in prosecution of the appeal. Rather it is the claimants who have been out of job since the withdrawal of their appointment that will continue to suffer more injustice if an order of stay is granted against their reinstatement back to their job. 39. For the order for payment of salaries and entitlement, I am inclined to agree with the defendants/applicants that if payment is made recovery may be difficult, if at the end of the appeal the defendants/applicants succeed. And reaping fruit of the judgment in respect of monetary payment may not be possible. 40. In view of the reasons given above the application for stay of execution succeed in part. 41. For avoidance of doubt the order of the court is as follows:- I. The order of stay of execution in respect of reinstatement of the claimants back to their positions as per the judgment on appeal is hereby refused. II. An order of stay of judgment of this court for the payment of salaries and entitlement to the claimants/respondents from the date of withdrawal of their letters of appointment to the date of this judgment is hereby granted. 42. I made no order as to cost. 43. Ruling entered accordingly. Sanusi Kado, Judge. REPRESENTATION: