Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 16th October, 2014 Suit No. NICN/ABJ/49/2011 BETWEEN SHEDRACK ISHIEKWEME JUDGMENT/CREDITORS/ RESPONDENT AND DANTATA & SAWOE JUDGMENT/DEBTORS/ RESPONDENT REPRESENTATION Nicholas O. Eku Esq with Elbenezer Ebuatu Esq and Catherine Ogbeni Esq for the Judgment/Creditor/Respondent. Elder I. I. Okin Esq and P. A. Ejembi–Gomwalk Esq for the Judgment/Debtors/applicant. RULING This is a Motion on Notice brought by the Judgment/Debtor/Applicant dated 16th January, 2014 filed on the 17th January, 2014 praying the court for the following orders. 1. AN ORDER to stay execution the in Suit No./NIC/ABJ/49/2011 pending appeal. 2. AND for such further Order(s) as this Honourable Court may deem fit to make in the circumstances. The Motion is supported by a 28 paragraph affidavit sworn to by Omoh Augustine a litigation clerk in the law firm of Ichire Imo-Okim & Co, counsel representing the Judgment/Debtor/Applicant in the case with a written address filed along to the Motion on Notice. In opposition to the Motion for stay of execution the Judgment/Creditor/Respondent filed a counter affidavit of 18 paragraph sworn to be Catherine Urheme Ogbeni a legal practitioner in the laws firm of of Nicholas O. Eku & Co, counsel to the Judgment/Creditor/Respondent and written address in support of the counter affidavit. Parties adopted their briefs on the 16th July, 2014 and ruling was reserved for 16th October, 2014. It is the desire of the Judgment/Debtor/Applicant that the court grant a stay of execution of Judgment, and to support this stand the applicant raised an issue which is:- Whether an Order for stay of execution can be granted in the circumstances of this suit. The counsel submitted that this issue should be resolved positively in favour of this application to preserve the res. But it is important to note that the grant of this application is entirely at the discretion of the court. However, in exercising this discretion the law enjoins the court to do this judiciously, taking into consideration the special circumstance existing in this appeal. And also, judicious discretion of this power requires the court to take into consideration the fact that the grant of this application will enhance the course of justice. The special circumstances in this appeal has been stated by the Applicant in paragraph 6 of the affidavit in support of motion where he stated that the salary of the Judgment/Creditor is N30,000.00. And in paragraphs 14 and 18 of the affidavit in support of motion, the Applicant stated that the Judgment sum is N4,000,000.00. In paragraph 24 the applicant stated that the Respondent will be unable to pay back the Judgment sum if the appeal succeeds. Counsel further submitted that the combine effect of paragraphs 6, 14, and 18 of the affidavit in support of the motion show that the Respondent not be able to return the Judgment sum of N4,000,000.00 to the Applicant, when the appeal succeeds at the end the appeal. The implication here is that the res has the been destroyed and the essence of the appeal defeated. This, no doubt is a circumstance which the court should take into consideration in deciding this application. It is in situations like this that the courts enunciated the principles of special circumstance in considering applications of this nature. See the case of OLUNLOYO V ADENIRAN (2001) FWLR (PT. 73) 41 @ Pp. 47 – 48 Para G – B considered special circumstances as where execution would:- a. Destroy the subject matter of the proceedings; b. Foist upon the court a situation of complete hopelessness; or c. Render nugatory any order or orders of the appeal court; d. Paralyze in one way or the other, the exercise by the litigant of his constitutional right of appeal; or e. Provide a situation in which even if the appellant succeeds in his appeal, there could be no return to the status quo. See also the case of S.P.D.C. (NIG.) LTD V AMADI (2011) ALL FWLR (PT. 593) 1816, RATIO 8. Counsel submitted further that this application does not deprive the Respondent the benefit of his Judgment. It is only allowed temporarily in the interest of justice through the period of appeal having considered the special circumstances in the appeal. See the Supreme Court in the case of S.P.D.C (NIG.) LTD V AMADI (2011) ALL FWLR (PT. 593) P. 1816 RATIO 6 had this to say:- A stay of execution stops temporarily the beneficiary of the Judgment from enjoying the fruits of the Judgment while the appeal is being heard. It is usually granted before the hearing of the appeal and stays in force right through the appeal. The aim is to protect the res from destruction, thereby avoiding a situation where the court hearing the appeal is presented with a fait accompli. A stay of execution would be granted if the applicant is able to show special and exceptional reasons. In the instant case, the defendant was able to furnish a good and substantial reason to warrant a grant of its application for stay of execution of the Judgment against it. See also the case of PHILKO LIMITED V WEMA BANK PLC (2012) ALL FWLR (PT. 1487) RATIO 3. More so, on the contrary the Applicant in paragraph 4 of the affidavit in support of the motion, stated that he is well known and worth over N1,000,000,000.00 (One Million Naira) Only. This means when the appeal fails he is capable of paying the Judgment sum. The Applicant also submitted in paragraphs 22 and 23 of the affidavit support of motion, stated that the appeal requires leave of court and he has taken steps to get the leave of Court of Appeal. And the application for leave to appeal and the proposed notice and grounds of Appeal attached thereto show that there are substantial and recondite issues to law to be tired. And the appeal is arguable on the merit. They are not frivolous. Counsel submitted that the circumstance of this appeal regarding leave and paragraphs 6, 14, and 18 of the affidavit in support of the motion commend itself in the principle of special circumstance as stated in the case of OLUNLOYO V ADENIRAN (SUPRA). In paragraphs 5 and 14 of the affidavit in support of motion, the applicant has shown that there are special and exceptional circumstances to justify the grant of this application. The inability to recover the Judgment sum from the Judgment/Creditor if the appeal is allowed forms a special and exceptional circumstance to grant this applications. The res need to be protected so as not to render the appeal nugatory if it succeeds. Counsel also contended that the issue of balance of convenience weights in our favour. Paragraph 4 of the affidavit to this application is very eloquent on this. The applicant is well known, with substantial asserts dotted around, complying with the Judgment of this court if the appeal fails will not be difficult. Conclusion The material facts with which the court can grant this application have been placed before the court which bothers both on facts and law among other conditions for stay of proceedings in this application. This applicant has also shown in the affidavit that the Respondent is still in his employment. He therefore, urged the court to grant this application in the interest of justice. The Judgment/Creditor/Judgment raised 4 issues for the determination of the court:- 1. Has the applicant filed any valid Appeal before the Court of Appeal, to qualify to seek the relief of stay of execution pending the Appeal? 2. From the totality of the evidence and facts before this court, has the Judgment Debtor/Applicant the means and capacity to pay the Judgment sum pending the determination of the Appeal (if any)? 3. Has the Judgment Debtor/Applicant shown or disclosed any special and exceptional circumstances to justify the grant of this application for staying of execution pending Appeal? 4. What is the position of law regarding payment of Judgment sum and the fruit or benefit of Judgment to the Judgment/Creditor? On issue one, counsel submitted that the application for stay of execution pre-supposes that a valid Appeal exit and pending before the Court of Appeal. In the instant case, there is no valid Notice of Appeal filed and pending before the Appeal Court. Instead the application attached to the motion for stay is merely a proposed Notice of Appeal which has not been filed at all. This application is not only misleading but constitutes serious abuse of Court process. See the case of Oruruo V Ugwu (2007) 7 NWLR (PT. 10333) at page 225 C.A; that “an application for stay of execution pre-supposes that there is a valid pending Appeal. It went further to state that no court will consider an application for stay in respect of non-existent Appeal or invalid appeal”. Counsel submitted that this application is premature, misleading and brought in bad faith and should accordingly be dismissed with substantial cost against the applicant. On issue two, counsel submitted that from the totality of the evidence before the court, the applicant is a well-known Multi-National Construction Company in Nigeria. The company has a very good track record of Human Right Protection and cannot ordinarily Appeal and frustrate the execution of the Judgment of this Hon. Court considering the gross and heavy health implications on the Judgment/Creditor. The Judgment sum of N4 Million was granted to enable the Judgment/Creditor facilitate and improve his medical treatment on his blind right eye and nothing more. From the Judgment of the court, the court considered most importantly the serious risk factor against the Judgment/Creditor’s health if the Judgment sum is not paid timeously and the consequential impact it will have on the Judgment sum is not paid desires most speedily regular maintenance of the open socket created in his blind right eye. When it comes to the means and capacity to pay up the Judgment sum, counsel submitted that the Applicant is undoubtedly capable of paying the Judgment sum without stress. One of the factors, commonly considered by trial court on stay of execution is the nature of the subject matter of Appeal. And in this case, the subject matter is the health maintenance and regular medical attention of a disabled staff of the Applicant. The injury was sustained during his active service with the Applicant which is not being denied. The Judgment adequately considered all fails and came to the conclusion that the health of the Judgment creditor was of more paramount importance. It will therefore be a very big setback to turn around again to apply to deprive the Judgment/Creditor the fruit and benefit of utilizing this Judgment sum to treat himself. The nature of disability is such that require constant medical maintenance and management and possibly to acquire artificial eyes to cover the open socket of the blind eye. Granting this application will therefore mean that all these will have to wait pending the outcome of the appeal not yet filed. It is a notorious fact that appeals in the Court of Appeal usual last a minimum of 5 years, within which time the fate of the health condition of the Judgment/Creditor may have degenerated to a level of irreparable loss. The likelihood of the Judgment/Creditor going totally blind is most likely if nothing urgent is done to salvage the situation on time and protect the only remaining eye. And I strongly believe and submit that no court of law will ever allow such oppressive and wicked application to see the light of the day; especially in this era of International Protection Crusade on Human Right Protection and Enforcement. On the third issue for determination, counsel submitted that the affidavit in support of the application did not in any way disclose any special and exceptional ground to justify the grant of this application. A closer look at the affidavit in support of this application is merely canvassing issues and facts for which Judgment has been entered – after due consideration by this Hon. Court. An order for stay of execution pending Appeal (if any) is made to prevent the successfully party from reaping the fruit of his success at the trial. Therefore a stay of execution being a grave interruption of the interest of the successful party in a legal duel, any person who seeks such equitable remedy to deny even temporarily, the right of enjoyment by the successful party of the fruit of the Judgment must have very strong facts in support of the application. The court will be very hesitant to grant an order for stay of execution pending appeal where such strong facts and exceptional circumstances are lacking. See Jadesimi V Akele (1998) 11 NWLR (PT. 572) 133 CA. There is no single ground to justify this application laid before the court for consideration. Mere application for stay of execution cannot constitute a ground on its own. There is nothing all placed the court to guaranteed the safety and protection of the health of the Judgment/Creditor (subject matter) and or the payment of the Judgment sum for the continued treatment and regular maintenance of the open socket of his disabled eye which is the subject of the suit in the first instance. Counsel therefore, submitted that the application is made in bad faith and should accordingly be refused because the Applicant is not entitled to the relief sought. On issue four, counsel submitted that the legal principle on stay of execution is quite settled. A stay of execution had been held in plethora of cases as an act of stopping or arresting of execution of a Judgment – that is of the Judgment/Creditor’s right to issue execution, for a limited period. The mere fact that there is a proposed Notice of Appeal or even a valid Appeal does not operate as a stay of execution and any application for a stay; as a matter of law and principle must ensure that a clear and established facts convincingly disclosing special and exceptional circumstances are placed before the court for consideration. Unfortunately the affidavit in support of the Applicant’s application was merely telling stories of tales by moonlight that has no bearing and reference to the application. Application for stay of execution is not granted just for the asking; but must strongly support by good and sufficient grounds on the altar of justice to justify the grant of same. Stay of execution is a discretionary remedy. A trial Court of Appellate Court in considering an application for stay of execution should ensure that the successful litigants are not unduly deprived of the fruit of their Judgment which they obtained at the lower court; even though that Judgment is subject of a pending Appeal. See SPDC V ARHO-JOE (NIG.) LTD (2003) 1 NWLR (PT. 845) 19 CA and DAD V ITL (2005) 11 NWLR (PT. 936) 293 CA. Similarly, an applicant must show good faith in an application for stay of execution of the Judgment of a court; because good faith as it were is a very relevant consideration in such an application. See ORURUO V UGWU (SUPRA). In the instant case, the applicant DANTATA AND SAWOE cannot justify why they chose to deprive the Judgment/Creditor (poor injured servant) from enjoying the fruit of his Judgment which will only enable him to continue with his treatment. The sum of N4 Million is indeed very insignificant in the circumstances of this case. The Judgment/Creditor has every right to Appeal against the Judgment for the inadequacy or insufficiency of the Judgment sum compared to the nature and degree of injury and permanent disability, but chose to be humble and contented in order not to be seen as greedy. However, the Judgment/Creditor chose to accept the Judgment and the Judgment sum awarded and left the rest to God. The Applicant is also expected to own up to its cooperate responsibility live up to its corporate in the eye of the general public especially as it affect the welfare and health constrain of its workers who sustain injury in the course of their active service with the company. On a lighter mood, even the Judgment sum could hardly satisfy the cost of medical services in Nigeria talk less of treatment abroad. It is worthy of note to inform the court that the total cost of prosecuting the Appeal, Legal services and other resources will cost the applicant greater and much more above the Judgment sum of N4 Million now appealed against. This application for stay is indeed laughable, oppressive and wickedness in the highest order to mankind and should not be condone by any court of law and justice. It cannot by any standard and tests, qualify for an application made in good faith. In another angle, the Notice of Appeal is equally a strong influence in the court consideration for application for stay of execution. The totality of the grounds of Appeal did not raise any strong grounds of Appeal to suggest and infer success of the appeal. The Notice of Appeal did not raise any issue of law recondite in law to justify the grant of the reliefs sought. Virtually there is nothing contained in the Notice of Appeal that could in any way justify any success on Appeal. The purported notice of appeal is a mere sham calculated to deny the Judgment/Creditor the fruit of his Judgment without more. Finally, counsel submitted that the grant or refusal of an application for stay of execution pending Appeal is primarily at the discretion of this Hon. Court. However, such discretion must be exercised judiciously. The justice of this matter holistically is that the court should order the applicant to pay the Judgment sum to the Judgment/Creditor. However, if the court is in inclined to maintain status quo against all odd temporarily, they may consider most hesitantly, an order directing that the Judgment sum be deposited into the registry of this Hon. Court pending the Appeal in the interest of justice. This court has the power and jurisdiction to so order rather than an open blanket to the Judgment/Debtor without payment of the Judgment sum at this stage. This application is most under serving, characterized by bad faith, unmeritorious, vexatious and tantamount to breach of Fundamental Human Right of the Judgment/Creditor – (man inhumanity to man). I have carefully considered this application as well as the written addresses of parties. The sole issue for the determination is:- Whether this court can grant a stay of execution in the circumstances of this case. By Order 30 R 1 of the Rules of this court, empowers the court to entertain an application for stay of execution Section 47 of National Industrial Court Act 2006, also provides that an application for stay of execution is not automatic. It is trite that a court does not make a practice of depriving a successfully litigant of the fruits of his success. An applicant must therefore, show special or exceptional circumstances justify is the grant of an Order of stay of execution. In the case at hand the applicant’s reasons why the court should grant\the stay, taking into consideration the special circumstances existing in this appeal. a. The salary of the Judgment/Creditor is N30,000.00 while the Judgment sum is N4M (Four Million Naira) Only. b. That the Judgment/Creditor would not be able to refund the money N4 Million upon the success of the applicant at the Court of Appeal. c. That the Judgment/Debtor is multi-National Company which confirms that the Judgment sum can be paid by the Judgment/Debtor at anytime the appeal is concluded. In conclusion, the applicant submitted that the situation of special circumstances compelling the grant of this application and stay execution of the Judgment is there. However, a careful perusal of the application shows that there is no valid appeal before the Court of Appeal. All authorities regarding the stay of execution is predicated on the existence of an appeal that is valid appeal before the Court of Appeal. What has been exhibited is just proposed Notice of Appeal. The Motion on Notice before the Court of Appeal is for leave of the applicant to appeal against the decision of Hon. Justice M. Esowe delivered on 17th December, 2013 and nothing more. There is no assurance that the leave will be granted by the Court of Appeal and the court cannot speculate. However, the court is mindful of the other issues raised by the applicant that the Creditor still in the employment of the Debtor, that the salary of the Creditor is N30,000 only per month while the Judgment sum is N4,000,000.00 (Four Million Naira) Only. That the Judgment sum of appeal success, and by so doing the res will be destroyed, and the essence of appeal defeated. While it is not the practice of court to deny the successful litigant the fruits of his success. The Judgment/Debtor/Applicant has shown sufficient reasons to warrant the grant of the application for stay of execution. I cannot but agree with both the Debtor and Creditor that the applicant is a Multi-National Construction Company of High repute with capacity to the pay the Judgment sum. In the interest of justice, the court will not refuse the grant of the stay of execution but hereby orders that the sum of N4,000,000.00 (Four Million Naira) Only be deposited in the court’s account that is being managed for such matters by the Registrar of the National Industrial Court of Nigeria within one month of the grant of the application. For the reasons above, the stay of execution is granted with the money deposited with the court as ordered by the court. Ruling is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.