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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: November 04, 2014 SUIT No. NIC/PHC/07/2012 Between Chibueze Chiagorom - Claimant/Respondent And Diamond Bank PLC - Defendant/Applicant Representation: Chief M. I. Ahamba SAN; with him, C. C. Okoroafor Esq, and T. E. Nwokedi for the Claimant/Judgment Creditor/Respondent. Mazi Udeagbulem for the Defendant/Judgment debtor/Applicant. RULING The application before the court is premised on a judgment delivered in this suit on the 31st day of March 2014 wherein judgment was entered in favour of the Claimant. The Defendant/Applicant, dissatisfied with the decision of this court, and having filed an appeal against the said judgment of this court delivered on 31/3/2014, brought this application seeking for an order of this court staying the execution of the orders and decisions contained in the judgment of this court in Suit No NICN/PHC/07/2012 delivered on the 31st day of March 2014 until the final determination of the appeal filed against the said judgment. In support of the said application dated the 19th day of April and filed on the 2nd day of May 2014, is an affidavit of Five (5) paragraphs sworn to by Onyekachi Odike with the consent of the Applicant. Accompanying the application are Exhibits “A” and “B” which are the copy of the judgment appealed against and the Notice and Grounds of Appeal. The applicant has placed reliance on all the paragraphs of the affidavit and the exhibits. In the accompanying written address in support of the application, the applicant has raised a sole issue for the determination of the court, which is: “Whether this application ought to be granted?” In arguing this sole issue in the affirmative the applicant submits that a court has the powers to stay execution of its judgment pending the determination of an appeal filed against the said judgment. The factors which will persuade the court to exercise this discretionary remedy in favour of an Applicant, as in the instant case include: (i) Whether there is a pending appeal against the judgment? (ii) Whether the Notice and Grounds of Appeal is valid and raises arguable and or recondite points of law which are likely to succeed? (iii) Whether refusal to stay execution of the judgment will affect the ability of the Appellant to prosecute the appeal? (iv) Whether refusal to stay execution of the judgment will/may render the outcome of the appeal nugatory if it succeeds. (v) Whether the Respondent will be able to refund the judgment sum if paid to him while the appeal is pending and the appeal ultimately succeeds? (vi) The conduct of the Applicant. See: SPDCN VS. AMADI [2011] 4 NWLR (Pt. 1266) 157. NDABA NIG LTD vs. UBN PLC [2007] 9 NWLR (Pt. 1040) 439 It is the submission of counsel for the applicant that all the above enunciated conditions/principles for the grant of a stay of execution inure in favour of the Applicant in the instant Application. The Notice and Grounds of Appeal of the Applicant apart from being valid, raises recondite and arguable issues of law which are likely to be resolved in favour of the Applicant. Again, this court has not only the power but a duty to ensure that an appeal if successful, is not rendered nugatory. In other words, this court must ensure through a judicial and judicious application and exercise of its discretion that a fait accompli is not hoisted on the outcome of an appeal of successful. The Respondent has at the trial complained of hardship. The possibility or livelihood of his refunding the judgment sum, though uncertain as contended in the Notice and Grounds of Appeal, if the appeal is successful is very slim if not none existent. Conversely, the Applicant is ever ready, willing, able and capable of paying an ascertained sum if this application is granted and its appeal eventually fails. If the above two scenario are juxtaposed, it will clearly be seen that the balance of convenience, and interest of justice weighs more in favour of granting this application than otherwise. The Respondent will lose nothing much by exercising a little patience, to wit, awaiting the outcome as this appeal to avoid having to go through a worse hardship of having to source for the judgment sum if he had made use of it and the appeal succeeds. Counsel concluded by submitting that the balance of convenience weighs in favour of granting this application, and that the averments in the affidavit in support of this application bear clear testimony to this. He urged the court to grant the application. In opposition to the Applicant’s application for stay of execution, the Claimant/Respondent on the 8th day of May 2014 filed a Counter Affidavit of Nine (9) paragraphs deposed to by the Claimant himself. Also filed along with the affidavit is a written address wherein counsel reproduced the orders of this court contained in its judgment delivered on 31st March 2014 as follows: (a) The defendant is hereby ordered to pay to the claimant damages for wrongful dismissal made up of loss of emolument from the date of the wrongful dismissal being 31st day of January, 2011 until the judgment day being today the 31st day of March, 2014. This is calculated at N4,338,000.00 (Four Million, Three Hundred and Thirty Eight thousand Naira) per annum. (b) In line with the provision of Section 19(d) of the NIC Act 2006, compensation of N4,338,000.00 (Four Million, Three Hundred and Thirty Eight Thousand Naira) only is hereby awarded to the claimant, being his salary for one year for the wrongful act of blacklisting the claimant, and the resultant unemployability causing injury to his reputation and professional credit. (c) The defendant is to pay N200,000.00 cost to the claimant. Learned Counsel for the Claimant/Applicant proceeded to formulate one issue for determination, which is “Whether the applicant has furnished this Honourable Court sufficient reason to grant this application.” In arguing the sole issue, it is the submission of Counsel that an application for stay of monetary judgment as this instant case calls for judicial and judicious exercise of Court’s discretion. To this end and to ensure that the respondent (claimant/judgment creditor/respondent) is not deprived of the benefit of his judgment the Appellate Courts have laid down some conditions precedent which an applicant must establish to warrant grant of stay of execution in a monetary judgment. Those conditions to be proved are: (a) Whether making the applicant to satisfy the judgment would make his financial position such that he would not be able to prosecute his appeal. (b) Whether it would be difficult to secure the refund of the judgment debt and cost from the respondent if the appeal succeeds. See the case of OLOJEDE vs. OLALEYE (2010) 4 NWLR (Pt. 1183) 1 at 43, paras D-F Counsel went further that, in considering (a) above however, the applicant is expected to disclose all sources of his income and also the magnitude of his liability with utmost candour before the Court can be convinced to exercise its discretion in his favour. Learned Counsel pointed out that the defendant/judgment debtor/applicant merely deposed to an affidavit through one Onyekachi Odike who is not even the staff of the defendant/applicant, that it would not be able to prosecute the appeal if it pays the judgment sum. He submitted that the judgment debtor/applicant was not saying the truth when it was deposed on its behalf that it would not be able to prosecute the appeal if the judgment debt was paid. No further disclosure of its impecunious status was made to enable this Court exercise it discretion judiciously among the competing interest of the parties in this application. The failure of the applicant to make this all important full disclosure, Counsel submits, has knocked off from the base the very pillar upon which the applicant application is standing. He urged the court to reject the applicant’s invitation to grant its application without discharging the burden of placing before the Court special circumstances why it cannot pay the judgment sum. On whether the claimant/judgment creditor/respondent can refund the judgment sum if the defendant succeeds, it was the submission of the Claimant that the defendant/judgment debtor/applicant has failed to place before the Court, facts to show that the respondent cannot refund the judgment sum if need be. Counsel went further that the claimant/judgment creditor/respondent in his counter-affidavit vehemently denied any suggestion that he cannot refund the judgment sum in the event of the defendant’s success at the Appeal Court. He urged the court to discard the argument that the claimant/judgment creditor/respondent cannot refund the judgment sum if he lost at the appeal. It was the further submission of Counsel to the Claimant that on the other hand, the appellate Courts have stated a number of other factors which ought to be considered by the Courts in the determination of application for stay of execution of monetary judgment, and these are; (a) the fact that the respondent is entitled to reap the fruit of his judgment for that is the whole essence of litigation; (b) the Court has a duty to ensure that the successful party reaps the benefits of his successful litigation; and (c) the applicant seeking to deprive a successful litigant of the fruit of his labour must show substantial reasons why the Court must grant the application. See the case of Olojede vs. Olaleye (supra) page 43, paras F-H. Considering the above factors, Claimant’s Counsel submitted that where the Court does not agree with Claimant’s submission to dismiss the application, Counsel urged in the alternative, that the Court orders payment of the judgment debt into another bank preferably First Bank, Zenith Bank or Guarantee Trust Bank in the name of the Registrar of the Court. Counsel concluded by submitting that the defendant/judgment debtor/applicant having failed woefully to show exceptional circumstances to enable the Court to deprive the claimant/judgment creditor/respondent the benefit of his judgment the Court should dismiss this application. The Claimant/Respondent had on the 2nd day of October 2014, filed a further counter affidavit with a written address. This was struck out on the application of the Learned Senior Counsel for the Claimant in open court on the 3rd day of October 2014. On the 3rd day of October 2014, the Defendant/Judgment Debtor/Applicant filed a further affidavit and further written address in support of its application for stay of execution. The applicant retained its original issue for determination which is Whether this application ought to be granted? In arguing the said issue, Learned Counsel pointed that in paragraph 4(d) of the applicant’s affidavit in support of the motion it was deposed that it will be almost impossible to recover the judgment sum from the judgment creditor if it is paid but the appeal later succeeds. He went on that that averment was neither denied nor challenged. It is therefore deemed admitted. See NWOSU vs. IMO STATE ENVIRONMENTAL AUTHORITY [1990] NWLR (Pt. 135) 688 at 735 B – C According to Counsel, This fact creates a special circumstance to justify a stay of execution. Referring to the cases of AJOMALE vs. YADUAT (No. 2) M [1991] 5 NWLR (Pt. 191) 257 at 290 – 291 – 292 E – B and 291 – 292 E – A. VASWANI TRADING CO. vs. SAVALAKH & CO. [1972] 12 SC 77 at 90 to 91, Counsel submitted that the Supreme Court took due time in each of these cases cited, to explain the meaning of recondite issues of law i.e. issues which are capable of being decided either way in the appeal. Referring the Court to Paragraphs 5 and 6 of the further affidavit, Counsel submitted that the applicant has now proposed better options for ensuring that none of the parties will suffer injustice whichever way the appeal turns out. He urged the Court to grant the application. On the 3rd day of October 2014, upon the moving of the application and adoption of addresses, Learned Counsel for the Respondent pointed out that the Applicant’s further affidavit filed on the 3rd day of October was filed without leave of court. He went on to urge the court to take judicial notice of paragraph 4c of the affidavit in support of the application, and uphold same as a lie. In further adumbration on points of law, Learned silk for the Respondent called the attention of the Court to Order 30 of the Rules of this court which he submitted operates to protect a judgment debtor from a judgment creditor who is using judicial process to frustrate a judgment debtor’s realization of his award. He went on that the courts are now in favour of non-delayance of matters. He therefore urged the court to strike out the applicant’s application in view of Order 30 Rule 2 of the NIC Rules 2007. Counsel cited the case of EZEGBU vs. FATB LTD. (CA) (1992) 1 NWLR Pt. 220 Pg. 699 at 722 where Niki-Tobi JCA (as he then was), held that a Court is entitled to hear an oral application to set aside a proceeding. He cited further, the case of MAUSOL vs. KOIKI (1993) 9 NWLR (Pt. 317) Pg. 287 at 296, and submitted that nothing prevents the court from allowing the applicant from making an oral application to set aside a proceeding. He went on that having found this morning that the record of appeal has not been produced, the respondent has a duty to ask the court to set aside the applicant’s application, as the judgment debtor/applicant is out of time for over three (3) months. To counsel, Order 8 Rule 4 of the Court of Appeal Rules gives litigants the right to compile records. He urged the court to refuse the application for stay of execution. At this point, learned counsel for the applicant Mazi Udeagbulem Esq. submitted that the applicant was being boxed into a corner by the submissions of learned silk for the Claimant, by his copious references to Order 30 Rule 2 of the NIC Rules and Order 8 Rule 4 of the Court of Appeal Rules. He therefore sought leave to reply since new issues of law had been raised. The court however pointed out that the further counter affidavit and address of the Claimant/Respondent had been struck out therefore counsel could only react to the verbal submissions of the learned silk. The court therefore granted leave to the Applicant’s to file his reactions to the verbal submission within 7 days from that date (3rd October 2014) when the application was moved, and same will be considered in the court’s ruling. In accordance with the leave of court sought and obtained on the 3rd day of October 2014, the Defendant/Applicant/Judgment Debtor on the 8th day of October 2014 filed its reaction to the Claimant/Respondent’s Counsel’s verbal submissions made on 3rd October 2014. The said reply is therefore deemed adopted, having been filed by leave of court, and is hereby considered in this ruling. In the said reply of the Defendant/Applicant/Judgment Debtor filed on the 8th day of October 2014, the following two (2) issues were raised for the determination of the court: (i) Whether the procedure adopted for raising Order 30 Rule 2 of the Rules of this court is competent. (ii) Whether Order 30 rule 2 of the Rules of this Court removes the discretion of the Learned Trial Judge to refuse a stay of execution otherwise deserved. In arguing issue one, it was the submission of counsel for the applicant that the Provisions of Order 30 rule 2 of the NIC Rules grants the Respondent an option to apply to strike out the application or discharge the order where already granted. Counsel went further to submit that the “application” contemplated in Order 30 Rule 2 must be one which affords the adverse party the opportunity to respond to the “application”, that is to say, a notice of motion supported by an affidavit. To counsel, by Order 30 Rule 4 of the NIC Rules, in any application made to the court under this order, a formal order shall be drawn up embodying the terms of the decision of the judge and bearing the date upon which the order is made. He went on that in effect, Order 30 does not distinguish or differentiate between any specie of application in the Order 30 thereof. Counsel therefore submitted that where the statute has imposed a duty on parties (not on the court) to follow a specific procedure for doing any act, the parties are not at liberty to adopt any procedure. He cited the following cases on this point: PROVOST L.A.C.O. vs. EDUN (2004) 6 NWLR (Pt. 870) 476 at 506H and 509D-F N.N.B. PLC vs. DENCLAG LTD. (2005) 4 NWLR (Pt. 916) 549 at 574G-H NIG. CEMENT CO. LTD. vs. NIG RAILWAYU CORP. (1992) 1 NWLR (PT. 220) 747 at 758 AMAECHI vs. INEC (2008) 18 NWLR (Pt. 118) 172 He submitted further on the point that the effect of failure to fulfill a condition precedent to the commencement of an action (in this case the failure to file an application in accordance with Order 30 Rule 1) has been profusely decided by the most superior courts. See SANDA vs. KUKAWA LG (1991) 2 NWLR (Pt. 174) 379 Counsel submitted that the oral submissions made by learned senior counsel to the respondent do not accord with the provisions of Order 30 Rules 1, 2, and 3 of the Rules of this Court. The said submissions are therefore incompetent and should be disregarded. In arguing Issue two (2), it was the submission of counsel for the applicant that the essence of Order 30 Rule 3(1) is clearly set out therein: “An application for stay shall be regarded as an urgent matter.” To counsel, that is the sole essence of Order 30 Rule 2 which he states, does not make any prohibitive provision against a Judge considering the merit of an application for stay of execution. It only requires the judge to regard and treat it as an urgent matter. According to counsel, the wisdom in this construction is that an impecunious appellant is not permanently denied a stay of execution because of his inability to compile records within 21 days. Counsel went on that the bottom-line and fulcrum of the discretion to stay execution of a monetary judgment is that the judge faced with such application should strike a just balance between (a) ensuring that a judgment creditor is not denied the benefit of fruits of his judgment; and (b) ensuring that a successful appellant is not denied the easy recovery of the judgment debt if already paid. According to counsel, the judgment creditor did not deny the averment on oath that it will be almost impossible to recover the judgment debt from him if same is paid and the appeal succeeds. He submitted that whether or not the exact sum of the judgment debt is certain is a substantive issue in the grounds of appeal, and that neither the trial court nor the counsel can decide that point. Only the Court of Appeal can decide it; and that the applicant has proposed and offered the surest means for guaranteeing the protection of either side in this case. He said that the applicant has no intention of depriving the judgment debtor of the judgment debt and indeed interest if the appeal fails. Counsel to the appellant submitted finally that whether or not the record of appeal has been compiled within 21 days from the date of filing the appeal and if not then whether or not the failure was caused by the appellant is a question of fact which the court cannot believe or disbelieve from the oral statement of counsel from the bar. It is not a fact which the court can suo motu verify in the recess of the chambers without inviting the attention of the parties. He went on that those facts depend on verification between the parties, the Registrar of court and the court. This counsel stated needs to be so where any justiceable excuse for non-compliance may exist. Pointing out the provisions of Order 8 Rule 4 of the Court of Appeal Rules which allows a total of 90 days for the Appellant to compile the record, and yet, provisions are made for extension of that time, Counsel urged that the two issues canvassed should be determined against the judgment creditor, but went ahead in conclusion, to urge the court to make an order which will best protect the two sides to this application. On 3rd October 2014 when the application for stay of execution by the judgment debtor/applicant was being heard, the learned Senior Counsel for the judgment creditor/respondent made an oral application for the striking out of the application citing Order 30 rule 2 of the Rules of this court on the ground that the applicant has not complied with the said rule in the compilation of the record of appeal. Learned Senior Counsel submitted that the applicant has not produced the record of appeal and it is out of time for about 3 months notwithstanding that Order 8 Rule 4 of the Court of Appeal Rules allows the applicant to compile the record where the registry of court didn’t do so within the time limited for the purpose. By leave of this court, the applicant filed a written reply on 8th October 2014 to the oral submissions of the learned silk for the respondent. The applicant’s counsel has argued in the written reply that the oral application made by the respondent’s counsel is not contemplated in Order 30 Rule 2. According to the applicant’s counsel, any application under the rule should be one by motion on notice and since the mode of the application has not accorded with the rule, the application is incompetent and should be disregarded by this court. The applicant’s counsel has further submitted that the import of Order 30 Rule 2 is for an application for stay of execution to be treated as an urgent matter and it is not to prevent the court from considering the merit of the application for stay of execution. Upon service of the applicant’s reply on the respondent’s counsels, they in turn filed a process titled “Reply on Fresh Issues” on 20th October 2014. The said reply on fresh issues is not properly before me as it was filed without leave of this court. I shall accordingly disregard it in this ruling. Order 30 rule 2 of the NIC Rules 2007 provides- “An applicant for stay of execution of a judgment or for stay of proceedings under this order shall compile the record of appeal within 21 days from the date of filing a notice of appeal and where the record is not so compiled, the respondent may apply to strike out the application or discharge the order where already granted.” It is on the basis of the above provision of the rule that the respondent’s counsel has now applied that the application be struck out. The application for striking out was made orally and the applicant/judgment debtor’s counsel has urged this court to disregard the oral application as it is unknown to the Rules. Before I go into the implication of Order 30 Rule 2 to the substantive application for stay of execution, there is the need to first determine, at this point, the competence of the viva voce application made by the learned silk for the respondent. In his oral submissions, senior counsel for the respondent relied on 2 authorities which permit him to make this oral application to court. They are EJEGBU vs. FATB LTD (1992) 1 NWLR (Pt. 220) 699 at 922 and MAGNUSSON vs. KOIKI (1993) 9 NWLR (Pt. 317) 287 at 296. I agree with learned senior counsel on these authorities as they are to the point as submitted. In addition to the above authorities, it was also made quite clear in the case of MOBIL OIL NIGERIA PLC vs. RABIU (2003) FWLR (Pt. 149) 1546 at 1559 that - “There is nothing which prevents the court in appropriate cases from allowing or permitting an applicant to make an oral application in open court”. To me, the word “apply” as used in the rule does not appear to limit the mode of making the application to be by motion on notice only. It appears settled that applications may in some occasions, be made orally to court. I hold that the oral application made by learned senior counsel for the respondent is competent and has been properly made. I shall now turn to the effect of Order 30 Rule 2. By the rule, the applicant is required to compile the record of appeal within 21 days from the date of filing a notice of appeal and if not so done, the application for stay of execution is liable to be struck out. The notice of appeal annexed as Exhibit B to the applicant’s motion for stay of execution shows on its face that it was filed since 30th April 2014. The applicant, by the rule, ought to compile the record within 21 days from the date the notice of appeal was filed. The respondent’s counsel has now submitted that the applicant has failed to do so. With this submission, the burden has been shifted to the applicant to show otherwise. Instead of convincing this court that the applicant has complied with the rule, the applicant’s counsel went on to argue in his reply that the rule does not prevent the court from considering the merit of the application for stay. It appears to me counsel’s argument is that even though the requirement has not been complied with by the applicant, this court must nonetheless proceed into the merit of the application for stay of execution. With respect to the counsel to the applicant, that is not the law. The rule is clear as to the effect of failure to compile records within the prescribed time. The result is that the application is liable to be struck out upon the application of the respondent. From the submission of learned counsel for the applicant, it is clearly not denied that the record has not been compiled. The record in question is the record of this court in this proceedings and I am entitled to take judicial notice of it. I have the power to look at the records of these proceedings in order to resolve the issue being contended by the parties. See OYEWOLE vs. AKANDE (2009) All FWLR (Pt. 491) 813 at 836. I have accordingly scrutinized the record in this proceeding and I cannot find any evidence therein to show that it has or that it is being compiled for transmission to the Court of Appeal. Also, there is no evidence on record to suggest that the applicant has applied to the registry of this court for the compilation of the record. I find that the applicant has not compiled the record of appeal neither has he initiated the process to do so within 21 days of filing of Notice of appeal as mandated by the rules of this court. Consequently, I am in total agreement with the learned senior counsel for the respondent that the application for stay of execution ought to be struck out. Be that as it may, the question of stay of execution is at the discretion of this court. In the interest of doing justice to the parties to this application, I am inclined to look at the application itself to see if the order sought should be granted or granted on condition. The applicant has brought this application for stay of execution of the judgment of this court delivered on 31st March 2014. The object of the judgment sought to be stayed by the application is the monetary sums awarded to the respondent. It is well settled that a court of law does not make the practice of depriving a successful litigant of the fruit of his litigation and thereby locking up the funds to which he is, prima facie, entitled pending the determination of the appeal. See SPECIALIST CONSULT vs. RIVERS STATE GOVERNMENT (2002) FWLR (Pt. 91) 1478 at 1491. It is also well settled that in an application for stay of execution, the court has a duty to ensure that the successful litigant reaps the fruit of his success while an applicant seeking to deprive a successful litigant of the fruit of his labour must show substantial reasons why the court must grant him such indulgence. See OKAFOR vs. ONAIFE (2002) FWLR (PT 134) 604 AT 614; GOVERNOR, OYO STATE vs. AKINYEMI (2002) FWLR (Pt. 120) 1761 at 1772. In a judgment involving money, the important guidelines the court will consider in an application for stay of execution are- i. Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal. ii. Whether it will be difficult to secure the refund of the judgment debt and cost from the respondent if the appeal succeeds. See DEDUWA vs. OKORODUDU (1974) All NLR 672; GOVERNOR, OYO STATE vs. AKINYEMI (SUPRA) at 1772. In the applicant’s affidavit in support of the application, it was deposed in paragraph 4 (c) and (d) as follows- “(c). That the amount of money in addition to being uncertain is substantial and if it is paid, the ability of the defendant/applicant to fund the appeal will be fettered, (d). That the claimant/respondent relied on hardship at the trial such that if the judgment is enforced and the appeal succeeds, it will be almost impossible to recover the sum paid.” By these depositions, the applicant has contended that the respondent will not be able to refund the judgment sum if the judgment is enforced but the appeal succeeds. In his counter affidavit deposed to by himself, the respondent, other than denying that he never pleaded nor gave evidence of hardship during the trial, did not refute the allegation that he will not be able to refund the judgment sum in the event the appeal succeeds. I will take it proved that there is a reasonable possibility that the respondent will be unable to refund the judgment sum if the applicant’s appeal succeeds. It seems to me the respondent took that eventual inability into consideration when he deposed in paragraph 8 of his counter affidavit as follows- “That it will serve the interest of justice to order the defendant to pay the judgment sum into an interest yielding account of the registry of this honourable court pending the determination of the appeal filed by the defendant” The respondent has by this deposition suggested a conditional stay and it is obvious he is not opposed to the grant of a conditional stay of execution. The applicant took up the proposition in its further affidavit by deposing to the fact that it is ready to deposit the judgment sum into an interest yielding account of this court and it is willing to secure a bank guarantee to pay the judgment debt. Where there is apprehension as to the inability of the respondent to secure a refund of the judgment debt after an appeal, the practice of the court is to exercise its discretion in granting a conditional stay upon the payment of the judgment debt into an interest yielding account of the court for delivery to whoever succeeds on appeal. See GOVERNOR, OYO STATE vs. AKINYEMI (SUPRA) at 1774. In this instant case, both parties seem to agree that the best course to be taken on this application is to order a conditional stay. The applicant has undertaken in its further affidavit to pay the judgment debt into an interest yielding account of this court. I have carefully considered the affidavit evidence of the applicant and the concession by the respondent and I hold the view that an appropriate order that will serve the justice of this case should be made. In exercise of a court’s discretion, it is permitted to grant a prayer in an application on a condition different from that requested by the applicant. See ESTISIONE H. NIGERIA LTD vs. OSUN STATE GOVERNMENT (2006) All FWLR (Pt. 340) 1131 at 1148 In the situation of this application, since both parties are agreed to a conditional stay of execution of the judgment, I am of the opinion that an order directing the payment of the judgment debt into an interest yielding account will meet the justice of this case as the winner in the appeal will not suffer any loss. Therefore, instead of striking out the application, this court is obliged to exercise its discretion in the interest of justice to grant a conditional stay of execution. In the light of the foregoing considerations, this court hereby orders a conditional stay of execution of the judgment of this court delivered on 31st March 2014 on the following conditions- i. The applicant is directed to pay the judgment debt, including the cost awarded and interest, calculated up to date of this ruling to the Chief Registrar of this court to be deposited in an interest yielding account in a reputable bank. ii. The applicant shall pay the said judgment debt to the Chief Registrar of this court within 21 days of this ruling. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Presiding Judge