Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 19TH MARCH, 2015 Suit No. NICN/ABJ/43M/2015 BETWEEN ABDULAZEEZ IBRAHIM CLAIAMNT AND ZENITH BANK PLC DEFENDANT REPRESENTATION Elvis Ofor Esq for the Defendant/Applicant. Mohammed Lukeman Esq for the Claimant/Respondent. RULING 1. AN ORDER restraining the Claimant/Respondent from taking steps howsoever in the execution and/or enforcement of the Judgment made by this Honourable Court on the 16th Day of February, 2015 pending the determination of Appeal filed at the Court of Appeal by the defendant/applicant. 2. AND FOR SUCH FURTHER ORDER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances. The grounds of this application are as stated below:- 1. That the defendant/applicant being dissatisfied with the Judgment of this Honourable Court delivered in this matter on the 16th day of February, 2015 has by a Notice of Appeal dated the 24th day of February, 2015 appealed the said Judgment. 2. That the enforcement/execution of the order of this Honourable Court shall render the appeal of the defendant/applicant nugatory in the circumstance that the appeal succeeds. 3. That the grounds of the appellant appeal raised substantial grounds of law that borders on the fundamental rights of the defendant/applicant particularly the failure of the court to properly appraise Exhibits PW3 and PW10 and DW1 together with the failure of the respondent to provide credible evidence in proof of his claim before the court. 4. That the appellant/applicant is not only a foremost financial institution in Nigeria but indeed very buoyant, formidable and highly capitalized bank in Nigeria with robust balance sheet and assets with unquestionable capacity to meet the obligation of paying the Judgment sum anytime upon the determination of the pending appeal. 5. That the Judgment creditor has no means of refunding the Judgment sum thus making it impossible to recover the huge Judgment sum in the event that the appeal of the appellant is successful. The applicant formulated a sole issue for determination which is:- Whether the applicant/defendant has made a sufficient case to be entitled to your Lordships favourable discretion and grant of this application. The applicant counsel submitted that the law is trite that stay of execution is an equitable remedy which is at the discretion of the court. As with all other discretionary powers of the court, it must be exercised judicially and judiciously, having regard to the justice of the case. Please see MOMAH V VAB PETROLEUM INC. (2000) 2 SC 142 AT 163 – 164 AND LIJADU V LIJADU (1991) 1 NWLR (PART 169) 627 AT 644. In other words, no one case is a binding authority on the court in the exercise of its discretion. Each case must be decided in accordance with its own peculiarities. What makes the case of the applicant herein peculiar is stated in paragraphs 3 – 19 of the affidavit in support of the motion. Above all, the applicant stand the risk of irredeemable revenue loss without just cause as the Judgment creditor is clearly not in a position to refund the Judgment sum if the money is paid to him thereby leading to the destruction of the subject matter or the pending appeal. The applicant is also prepared to undertake to pay the Judgment sum in the event of the failure of the appeal filed as the Court of Appeal is the last Court of Appeal under the statute establishing this court. Counsel submitted that the status quo or res sought to be preserved here is the aggregate Judgment sum of N7,107.138.19 money that belongs to the members of the public who have placed their hard earned life savings with the defendant/applicant. The applicant has filed a Notice of Appeal that (Exhibit ZIB 1) against the decision of this court. The said appeal raises recondite and substantial issues of law bordering on the fundamental rights of the defendant/applicant. It is submitted further that the grounds of appeal are substantial and are worthy of the grant of this application pending the determination of the appeal. This is particularly so because the threshold issue in the appeal of the applicant rest on the infraction of the fundamental rights of the defendant/applicant. Counsel submitted further that all that the applicant seeks by this application is to prevent a situation of fait accompli to the appeal filed in this case. It is believe of the applicant that the Judgment sum will be preserved by the grant of this application. From our affidavit evidence before your Lordship, the Judgment creditor may not be able to pay back the money and may go ahead to dissipate same if this application is not granted. In Guinea Insurance Plc V Monarch Holdings Ltd (1996) 3 NWLR (Pt. 436) 365 at 370, it was held thus:- In the case of a money Judgment, the fact that a Judgment debtor will be unable to repay when the appeal against the Judgment raises substantial grounds is a special circumstance. It is submitted that where this is done, the Judgment creditor would have suffered jeopardy as he would have lost money without any means of recovering same, even where they succeed in their appeal. We refer your lordship to the case of Vaswani Trading Company V Savalakh & Co (1972) 7 NSCC 692 where the law was stated thus:- When it is stated that the circumstances or condition for granting a stay should be special or strong, we take it as involving circumstances or 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 the court, especially the court of appeal, a situation of complete helplessness or render nugatory any order or orders of the courts of appeal or paralyze in one way or the other, the exercise by the litigants of his constitutional right of appeal, or generally provide a situation in which whatever happens to the case and in particular even if the appellant succeeds in the court of appeal, there could be no return to the status quo. See also AJOMALE V YADUAT (NO: 2) (19991) 5 NWLR (PART 191) @ 266 @ 291. In conclusion the applicant urged the court to grant this application so that the Court of Appeal would not be left with a fait accompli that would lead to dissipating the res. That the applicant will effectively exercise their right of appeal in pursuit of justice in this matter. By Order 30 Rule 1 of this Honourable Court and on the strength of the court inherent powers, the court is empowered to grant the prayers we seek in this application in the interest of justice to both parties. The court is urged to grant this application and stay the execution of the Judgment delivered on the 16th day of November, 2015 pending the determination of the Applicant’s appeal. In reaction to the application the claimant/respondent filed a 14 paragraphs affidavit sworn to by Abdulazeez Ibrahim the claimant in the suit, with a written address in support. The claimant raised an issue for the determination of the court whether or not the defendant/applicant has fulfilled the conditions precedent necessary to the grant of this applicant. In arguing this issue formulated the claimant argued that the order for stay of execution is such that is not granted automatically having regard to the equitable nature of the application. He stressed that the court in the exercise if that discretion the court has a duty to do so judicially and judiciously based on relevant and cogent materials because discretion must not be exercised in vaccum. Basically a Judgment creditor is entitled to have the benefits of the fruits of his Judgment and a court should not grant stay of execution unless there are special or strong circumstances for doing so. See Amadi V Chukwu (2013) All FWLR (Pt. 703). 1. The claimant argued that the applicant must establish the following:- a. Legal right:- that interlocutory application are granted to support legal right where one is established to exist for the purpose of restraining a threatened wrong to a right and not to restrain the lawful enjoyment of a legal right. That the applicant has no legal right to be impeded by the refusal of this application. The Judgment creditor has a legal right to enjoy the fruit of his Judgment such that this court may enforce and execute. b. Substantial issue to tried:- that the application has no substantial or recondite issue to be tried at the Court of Appeal. That the Notice of appeal is not substantial appeal, and an appeal is constituted and complete when it is entered and the mere filing of a Notice of appeal does not by itself constitute an appeal. c. Balance of Convenience:- claimant contended that the balance of convenience does not tilt in favour of the applicant for the fact that he has nothing whatsoever to lose if the application is refused and the Judgment is enforced. The claimant has been out of employment is at for a period of 31/2 hrs definitely is at danger and would be seriously inconvenienced by the order of the court in reaping the benefit of its Judgment if stay is granted. That the defendant can sufficiently be compensated in damages in the event its appeals succeeds. d. Irreparable Damages:- that the applicant must show the irreparable loss or injury shall be occasioned if the Judgment of this court is enforced. The applicant has not in any averment of his affidavit shown any circumstance that may occasioned should this application be refused. e. Conduct of Right:- he argued the court need to put into consideration the conduct of parties both before and at the time of the application. In that the application is well known to lack respect for contractual term and conditions of the contract of employment the breach of which necessitated the institution of this case before the court. In conclusion the court is urged by the claimant to dismiss the application in its entirety so as to enable the claimant reaps the fruits of his Judgment. The application further filed a further and better affidavit dated 24th February, 2015 of 18 paragraphs. I have carefully considered this application as well as the written address of the parties. As argued 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 the 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 preponderance that an application for stay of execution is not automatic. The courts have consequently laid down guiding principles which are to be taken into account when considering whether to grant an application for stay of execution or not. In Olojede V Olaleye, (2010) 4 NWLR (Pt. 1183) P. 1 at 41, the Court of Appeal:- An application for stay of execution and or injunction pending appeal calls for judicial and judicious exercise of court discretion. An application seeking an order or injunction or stay of execution pending appeal must furnish the court with special and exceptional reasons why a successful party should be deprived, though temporarily, of the enjoyment of the fruits of his Judgment. The applicant also has to show that the balance of Justice is in his favour and that there are strong and arguable grounds of appeal which are not frivolous, upon which the application is predicated. This is so because courts are not in the habit of depriving a successful litigant of fruits of his Judgment. See Martins V Nicannar Foods Co. Ltd (1988) 2 NWLR (Pt. 74) 75, Shodeinde V Regd. Trustees of Ahmadiyya Movement in Islam (1980) 1, 2, SC 163, Vaswani Trading Co. Ltd V Savalakh & Co. (1972) 12 SC 77, Nwabueze V Nwosu (1988) 4 NWLR (Pt. 88) 257, Lijadu V Lijadu (1991) 1 NWLR (Pt. 169) 627. Also in Olunloyo V Adeniran (2001) 14 NWLR (Pt. 734) 699 at 709 the Supreme Court held that:- A stay of execution will only be granted if and only if the court is satisfied that there are special or exceptional circumstances to warrant doing so. This is because the Judgment of a court is presumed to be correct and rightly made until the contrary is proved or established. The court will not, therefore, make a practice of depriving a successful litigant of the fruits of his success. In the instant case, the applicant did not show why the Judgment creditor should be deprived of the fruits of his Judgment. In any event, all the authorities regarding the grant of stay of execution predicates on the existence of an appeal and this in my view means a valid appeal before the Court of Appeal. In the instant case, a look at Exhibit Z1B1 exhibited by the applicant does not show that there is a valid appeal. What is exhibited is a notice of Appeal without more which is a mere intention to appeal. There is no evidence before this court that an appeal has been entered at the Court of Appeal as there is no appeal no on Exhibit A1 which is the notice of Appeal. In view of this I am of the considered view that there is no valid appeal before the Court of Appeal and 1 so hold. See also First Bank of Nigeria Plc V J. O. Imasuen & Sons Nig. Ltd (2006) All FWLR (Pt. 292) 47 at 57 – 58, Union Bank of Nigeria Ltd V Odusote Bookstore Ltd (1994) 3 NWLR (Pt. 331) 129, Management of Dangote Industries Ltd V NUFBTE (2010) 20 NLLR (Pt. 57) P. 402. I will not refuse to grant the stay of execution of the Judgment, but this is on condition that the money should be paid to the Registrar of this court and the Registrar to deposit same into an interest yielding account within 30 days of the grant of this application. See the case of Mobil Producing (Nig) UNLTD V Udo (2008) A9 FWLR (Pt. 421) 951 R. 3 where the court held:- In suit involving money, the practice is for the money to be paid to the Registrar of the court who will then pay same with an interest yielding account pending the hearing and determination of the appeal filed. If the applicant’s appeal succeeds, they will have the Judgment sum plus the accrued interest. That way, one of the parties will be prejudiced. If the applicants are robust and financially viable the payment of the sum of N6,402,000.00 to the court should not be problematic. Similarly, the respondent fear that the applicant will be unwilling to pay the Judgment sum would no longer exist if it is paid into the court. Relying on the above case the court orders that the Judgment sum of N31,825,000.00 (Thirty-one Million Eight Hundred and Twenty-five Thousand Naira Only) to be paid to the Registrar of this court within 30 days. Ruling is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.