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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip — Presiding Judge Hon. Justice V. N. Okobi — Judge Hon. Justice I. I. Kola—Olalere — Judge Hon. Justice O. A. Ohuseki—Osaghae — Judge Hon. Justice J.T Agbadu—Fishim — Judge DATED 5th May, 2010 SUIT NO. NlC/2/2008 BETWEEN Management of Dangote Industries Limited Pasta Plant, Ebute Ikorodu, Lagos - Judgment—creditor/Respondent AND National Union of Food, Beverages & Tobacco Employees (NUFBTE) — Judgment—debtor/Applicant REPRESENTATION: O. S. Sowemimo SAN, and with him are Victor Sodipe Esq., David Nkiwe Esq. and Akin Adewepo Esq., for the appellant Sola Iji Esq., and with him are A. I. Asemudara Esq. and Mrs. Olubunmi Ologundudu-Adewumi, for the respondent. RULING This matter came before this Court by way of appeal against the Award of the Industrial Arbitration Panel (IAP). The parties filed and exchanged written briefs of argument and subsequently addressed the Court. The Court delivered a well considered judgment in favour of the respondent on the 28th of January 2009, holding inter alia that — the employment of Comrade Paulinus Ufoh, Comrade Benjamin Akor, Comrade Christiana John, Comrade Ogu Santus, Comrade Bassey Apkan, Comrade Tony Ode and Comrade Sogo Omoyemi, all listed in Exhibit C, was terminated as a result of their involvement in union activities hence a nullity. They are entitled to be, and are hereby, re-instated without loss of salaries and other emoluments. The terminal benefits paid to them is to be deducted from what is due to them as salaries/emoluments since their wrongful termination on March 17, 2004. The judgment-debtor/applicant has since tiled series of applications before us after that judgment, one of which is the present motion on notice. The motion is brought pursuant to Order 30 Rule 1 of the National Industrial Contort Rules 2007 and under the inherent jurisdiction of this court, it is praying for of court staying the execution of the judgment delivered by this Court on 2009 pending appeal and for such further or other orders as this Court may deem fit o make in the circumstances. The motion is dated and filed lass of April 2009. It is supported by a seven-paragraphed affidavit deposed to by one David Nkire, a legal practitioner in the Chambers of Messrs Fola Sowemimo & Co., counsel to the judgment— debtor/applicant. The deponent deposed inter alia that being dissatisfied with the judgment of this court, the judgment/debtor/applicant filed a notice of appeal in the mailer, a copy of which was attached to the affidavit and marked exhibit DIL 1. He averred that the notice of appeal raises matters of fundamental right of the judgment—debtor/applicant and issues of recondite points of law. He averred that unless a stay of execution is granted pending appeal, the respondent will move to enforce the judgment of this Court which is the subject matter of the appeal and thereby destroy the rest of the appeal; whereas it is a right of the judgment-debtor/applicant to have the judgment reviewed and its right to fair hearing. Parties agreed to argue this application on record. Counsel to both parties filed and exchanged written addresses. In its written address, the judgment—debtor/applicant submitted that the issue for determination is whether special circumstances exist for the grant of stay of execution pending appeal in this matter. The judgment—debtor/applicant submitted that there exist special circumstances which warrant the grant of stay pending appeal in this matter. It submitted that courts over the years have outlined various considerations as constituting special circumstances to warrant the grant of stay pending appeals. To the judgment-debtor/applicant, two of these considerations are relevant for the purpose of this application. The first is whether the appeal will he rendered nugatory if the judgment of this Court delivered on the 28/01/2009 is enforced whilst the appeal is pending. It submitted that if no stay is granted to preserve matters in status quo, the respondent will proceed to enforce the judgment of this Court and the judgment— debtor/applicant’s appeal if successful will be rendered nugatory. In other words the rest of the appeal will he destroyed as the affected staff would have been paid huge sums of money which they may not be entitled to and the affected staff would have been reinstated wrongly. As such, to preserve the rest, it is necessary to grant a stay pending appeal in this matter, referring to VASWANI Trading CO v. SAVA LAKH & [1972] I All NLR (Part 2) at page 487 The second consideration according to the judgment—debtor/applicant is that the notice of appeal discloses an arguable appeal which raises matters of great constitutional importance bordering on the fundamental rights of the judgment—creditor/applicant on its right to tie Edom of association and fair hearing. It argued that issues pertaining to freedom of Association in the context of master and servant are still in a state of evolution in Nigeria and that there is a sister appeal which concerns the status of this Court. It opined that the law on these issues are recondite. The judgment-debtor/applicant submitted that there exist good and arguable grounds in the notice of appeal sufficient to warrant a stay of execution of the judgment, referring to BALOGUN v. BALOGUN [1969] 6 NSCC 321 at 322, ORIENT BANK (NIGERIA) PLC v. BILANTE INTERNATIONAL LTD (1990) 5 NWLR (Pt. 447) 166 at 178 F — G, DEDUWA v. OKORODUDU [1974] 6 SC 21 and OWENA BANK (NIG) PLC v. O. B. LTD CA (Pt. 564) at 136 regarding the criteria for granting a stay of execution. The judgment-debtor/applicant submitted that the grounds contained in the notice of appeal are cogent and arguable and that it is in the interest of justice few a stay of execution to he granted as the appeal has a good chance of success. It argued that added to the above special circumstances is that there are two notices of appeal arising from this matter, one bothering on the status of this Court and the second on the decision of the court on this matter made on the 28th January, 2009. It then submitted that even where the res is intangible the court has a duty to preserve it pending the outcome of the appeal so as not to render the appeal nugatory. In conclusion, the judgment—debtor/applicant urged the court to grant this application in the interest of justice as it is imperative that same he granted so that the appeal is not rendered nugatory. Opposing this application, the judgment—creditor/respondent filed a 10—paragraphed counter—affidavit dated 2nd May, 2009 and deposed to by one OLUNBUNMI OLOGUNDUD-ADEWUMI, a legal practitioner in the chambers of Sola Iji & Co. (Solidarity chambers), the counsel retained by the judgment—creditor/respondent in this matter. The averments therein are inter alia to the effect that the affidavit in support of the motion does not disclose how the judgment of this court has affected the judgment— debtor/applicant’s fundamental rights as enshrined in Chapter IV of the 1999 Constitution. And that contrary to the deposition in that affidavit, the judgment— debtor/applicant’s notice of appeal does not disclose any special circumstance to warrant a grant of this application. She deposed that the judgment-creditor/respondent is entitled to the fruits of the judgment of this court, the peaceful enjoyment of which the judgment- debtor/applicant’s motion is intended to frustrate. That the appeal and this application lack merit, the application is frivolous, vexatious, malicious, an abuse of court process and it was brought in bad faith. The judgment-creditor/respondent in its written address agreed with the judgment-debtor/applicant and submitted that the sole issue for determination is whether this court should grant a stay of execution in the circumstances of this case. It submitted that the court ought not to grant a stay of execution of its judgment delivered on the 28th of January, 2009 in the peculiar circumstances of this case. It submitted that the law is that to succeed in an application like the one at hand an applicant or an unsuccessful litigant “must show special circumstances or exceptional circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay”, referring to First Bank of Nigeria PLC v. J. O. Imasuen & Sons Nigeria Ltd [2006] All FWLR (Pt. 292) 47 at 57 paragraph F—G. The judgment—creditor/respondent further submitted that it is also the law that the court will not deprive a successful litigant of the fruits of his litigation pending an appeal, referring to Annot Lyle (1886)11 PD 114 at 116, Military Governor of Lagos State v. Ojukwu [2001] FWLR (Pt. 50) 1779 at 1 804 C — E. It, therefore, submitted that the sole aim of this application for stay in this matter is to deprive the judgment-creditor/respondent of the fruit of its judicial victory; to drive it from the seat of judgment and further embarrass and oppress its members. This is being done by the judgment-debtor/applicant without any special circumstance justifying same. It further submitted that the two special circumstances alleged by the judgment- debtor/applicant in its written submission are frivolous, baseless, of no consequence, not any way exceptional and, therefore, less than special. ‘The judgment-creditor/respondent continued by submitting that the two circumstances merely go to the correctness of the judgment and not its enforcement, referring to the dictum of Uwaifo, JSC in Olunloyo v. Adediran [2001] FWLR (Pt. 73) 41 at 51 F — G and 52 D — G. It submitted that the judgment-debtor/applicant has failed to show what losses it will suffer if the successful workers are reinstated. More over, that the judgment- debtor/applicant has not raised the issue of the inability of the judgment- creditor/respondent to repay the judgment debt (the pecuniary aspect of it) if the judgment-debtor/applicant succeeds on appeal, which is absolutely not likely. Despite that, the judgment—creditor/respondent went on to submit that it is willing and ready to guarantee repayment of the judgment debt should the appeal succeed (which is not likely), referring to NNPC v. BCE Consulting Engineers [2004] 2 NWLR (Pt. 858) 484. The judgment—creditor/respondent’s position is, assuming without conceding that the grounds of appeal raise arguable issues, the issues are not recondite and, therefore, a stay cannot be granted without the requirements being met (i.e. issues must be both triable and recondite), referring to First Bank of Nigeria Plc v. Imasuen & Sons (Nig.) Ltd [2006] All NWLR (Pt. 2922) 47 at 62. It submitted that the notice of appeal for the purpose of which this stay is sought is an attempt to circumvent the finality of the decision of this court by taking undue and undeserved advantage of the provisions of section 9(2) of the National Industrial Court Act 2006 which allows for appeal to the Court of’ Appeal on the question o fundamental rights. The judgment—creditor/respondent argued further that the judgment— debtor/applicant chases nothing on appeal but trifles. It submitted that there is fundamental rights issue in favour of’ the judgment—debtor/applicant, not to talk of’ the appeal itself. It contended that it is the substance of the suit that must he looked into to see whether fundamental rights issues exist and not how the applicant couched its notice of appeal, referring to the remarks of lkongbeh, JCA in Governor of Kwara State v. Lawal [2006] All FWLR (Pt. 336) at 346—7 and Trucks (Nig) Ltd. v. Anighoro [2001] FWLR (Pt. 37) 1000 at 1028— 1029. The judgment-creditor/respondent urged the court to dismiss this application more so that section 40 of the 1999 Constitution, the provision relating to fundamental human rights relied on by the judgment-debtor/applicant, applies to only human beings and not to juristic beings created by law like the applicant. The judgment-creditor/respondent maintained that it is manifest that the whole application for stay of execution is an attempt to obtain from the court through the backdoor what the applicant could not get in a valid judgment of the court that was given after a full trial, referring to Okafor v. Naife [1987] 4 NWLR (Pt. 64) 129 at 138; FWLR (Pt. 134) 60. The judgment—creditor/respondent then urged the court to note that nowhere is it stated or contended in the application that the appeal has merit. All that the judgment’- debtor/applicant was emphasizing was that its appeal shows arguable and substantial issues. The court was referred to the Supreme Court’s decision in T.S.A (Ind) Ltd v. Kema Investment Ltd [2006] All FWLR (Pt. 300) 1564 at 1576. Finally, it submitted that since the judgment—debtor/applicant has not shown in anyway that his appeal has merit, the question of the appeal becoming nugatory does not arise. The judgment- creditor/respondent, therefore, urged the court to refuse and dismiss this application for stay of execution. Reacting on points of law to the judgment-creditor/respondent’s reply written address, the applicant submitted that the case of Olunloyo v. Adediran cited by the judgment-creditor/respondent’s counsel is in support of the applicant’s position as stated in paragraph 3 of the judgment-debtor/applicant’s written submission. It further submitted that there are quite some recondite points of law raised in the judgment- debtor/applicant’s notice of appeal ranging from constitutional provisions, jurisdictional issues, issues bordering on locus standi, etc; and such issues raised are the basis upon which a court should grant a stay, referring to Olunloyo v. Adediran (supra) page 131 C-D. The judgment-debtor/applicant, therefore, submitted that its application should be granted as the appeal has merit and for the purpose of fair hearing and justice. We have carefully considered this application. As agreed upon by both parties, the only issue for determination is whether this court should grant a stay of execution in the circumstances of this case. Section 47 of the National Industrial Court Act 2006 provides for (lie grant of a stay of execution in the following words — Where permitted by this Act or any other Act of the National Assembly, an appeal to the Court of Appeal from the decision of the Court shall not operate as a stay of execution but the Court may order a stay of’ execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with Rules of Court. This presupposes that an application for stay of execution is not automatic. The courts have consequently laid down guiding principles which are he taken into account when considering whether to grant an application for stay of execution or not. In FIRST BANK OF NIGERIA PLC v. J 0. IMASUEN & SONS NIGERIA LTD [2006] All NWLR (Pt. 292) 47 at 57 — 58, for instance, Rabiu D. Muhammed, JCA had this to say while delivering the lead judgment —— in Union Bank of Nigeria Ltd. v. Odusote Bookshore Ltd [19941 3 NWI R (Pt. 331) 129, the Supreme Court laid down the principles which should guide a court in granting an application for stay of execution as follows: (a) The courts have an unimpeded discretion to grant or refuse a stay. In doing so, the court is bound to exercise that discretion both judicially and judiciously and not erratically. (b) A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the respondent’s equal right to justice is discretion that is not judicially exercised. (c) A winning plaintiff or party has a right to the fruits of his judgment and the court will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of judgment in his favour until a further appeal is determined. (d) An unsuccessful litigant applying for a stay of execution must show “circumstances or exceptional circumstances” eloquently pleading that the balance of justice is obviously weighed in favour of a stay. (e) What will constitute these ‘special’ or ‘exceptional’ circumstances must involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon (lie court especially the Court of Appeal a situation of complete helplessness or render nugatory any order or orders of’ the Court of Appeal or paralyze 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 happens to that case and in particular even if the appellant succeeds in the Court of Appeal there could he no return to the status quo. (f) The onus is on the party applying for a. stay pending appeal. to satisfy the court that in the peculiar circumstances of his case a refusal of a stay would be unlit and inequitable. (g) The court will grant a stay where its refusal would deprive the appellant of the means of prosecuting appeal. Although the court stated in that case that the list is not exhaustive, that notwithstanding the listed guile is very relevant to the case at hand. has the applicant here been able to show the court exceptional circumstances exhibiting that the balance of justice is weighed in favour of a stay of execution? Has it displayed that refusal of the application will he unjust and inequitable or was the applicant able to present credible argument indicating that the court’s refusal of stay will deprive it of the means of prosecuting the appeal’? In our considered view the answers to these questions are in the negative. The applicant made so much on its position that issues pertaining to freedom of association in the context of master and servant are still in a state of evolution in Nigeria and that there is a sister appeal which concerns the status of this court. In its opinion the law on these issues are recondite and that there exist good and arguable grounds in the notice of appeal sufficient to warrant a stay of execution of the judgment. in NNPC v. BCE Consulting Engineers [2004] 2 NWLR (Pt. 858) 484 at 498 F, Galadima, JCA delivering the lead ruling stated — In other words an important or recondite point of law should no per so warrant a stay of execution unless it also produces a special circumstance. Moreover, an appeal on the status of a court cannot he a ground for stay of execution of a judgment. The fact of the status of a court cannot go to the authority of a court to act in a particular manner if it has the jurisdiction to so act. In our opinion, the applicant’s argument here is not enough to avail it of our discretion in this application. In T. S. A. (intl.) Ltd v. Kema investment Ltd [2006 All FWI R (Pt. 300) 1564 at 1576 13 — E, Ogbuagu, JSC has this to say while delivering the lead judgment — Of course, and this is settled that where an appellant has wonderful, substantial, impressive and arguable grounds of appeal, it is not a special circumstance for granting a stay. In other words, it is not every case where grounds of appeal raise point or points of law that stay of execution will be granted. …The grant of a stay of execution, involving as it does the exercise of the court’s discretion, the court, without pre-empting the main appeal, by deciding the issue of law raised in the appeal ought always to take into account the chances of the point of law so raised, succeeding on appeal. That where the chances of success in the appeal, are virtually nil, such a ground of law will be unavailing. There is therefore the necessity of’ the applicant, applying for stay of execution, to demonstrate that this appeal has merit. The applicant has not shown any reason why we should depart from the above decision, On the whole, therefore, after comparing the competing interests and rights of the parties in this application we are of the view that the applicant has not shown exceptional circumstances to indicate that the balance of justice weigh in favour of the slay or that refusal will be unjust and inequitable. In this regard the winning party in the judgment in question, which is the judgment—creditor/respondent in this case, is entitled to the fruit of the judgment. We hereby refuse and so dismiss this application. Ruling is entered accordingly and we make no order as to cost. _____________________________ Hon. Justice B.B. Kanyip ¬¬¬______________________ _____________________ Hon. Justice V.N. Okobi Hon. Justice F.I. Kola-Olalere ______________________ _____________________ Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu-Fishim