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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: 10TH FEBRUARY, 2015 Suit No. NIC/ABJ/278M/2014 BETWEEN DANIEL INYANG CLAIAMNT AND ZENITH BANK PLC DEFENDANT REPRESENTATION B. O. Nafagha Esq with Edward Iheoahan Esq for the Claimant. Dr. Soni Ajala Esq, Ikechukwu Ekene Esq and Obinna Ugwu Esq for the Defendant. RULING The defendant/applicant by a Motion on Notice dated 3rd October, 2014 and filed on 8th October, 2014 praying the court to grant:- 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 25th day of September, 2014, 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 25th day of September, 2014 has by a Notice of Appeal dated 2nd day of October, 2014 appealed against 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 D and E 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 asserts 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. This Motion on Notice is supported by an affidavit of 19 paragraphs sworn to by Ikechukwu Ekene Esq a counsel in the law firm of Messrs Deeplaw Associates Solicitor to the defendant/applicant and a written address. In the written address of the defendant/applicant, the applicant raised a sole issue for determination of the court which is:- Whether the applicant has made a sufficient case for the grant of this application by this Honourable Court. The applicant submitted that the stay of execution is an equitable remedy which is at the discretion of the court. That as with all other discretionary powers of the court, or must be exercised judicially and judiciously having regard to the justice of the case. Momah V VAB Petroleum Inc. (2002) 2 SC. 142 at 163 – 164 and Lijadu (1991) 1 NWLR (Pt. 169) 627 at 644. That what make the applicant case peculiar is as stated in paragraphs 3 – 9 of the affidavit and 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 if paid to him thereby leading to the destruction of the subject matter of the pending appeal. That the applicant is also prepared to undertake to pay the Judgment sum in the event of the appeal filed at the Court of Appeal. The applicant sought for status quo or rest sought to be preserved which is in the aggregate Judgment sum of N7,107,138.19 money that belongs to the members of the Public have placed their hard earned life savings with the defendant/applicant. The applicant further submitted that the grounds of appeal are substantial and are worthy of the grant of this application pending the determination of the appeal. See Josein Holdings Ltd vs. V Lornamead Ltd (1995) 1 NWLR (Pt. 371) at 254. The applicant submitted further that the applicant seeks to prevent a situation of fait accompli to the appeal filed in this case. That from its affidavit evidence 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. See Guinea Insurance Plc V Monarch Holdings Ltd (1996) 3 NWLR (Pt. 436) at 370. That the Judgment Debtor would have suffered jeopardy as he would have lost money without any means of recovering same, even where they succeed in their appeal. The applicant concluded urging the court to grant this application as contained in the Motion paper and grant the application for stay of execution of the Judgment delivered on 25th September, 2014 pending Appeal at Court of Appeal. The Judgment/Creditor/Respondent filed an eight paragraphs counter affidavit sworn to by Daniel Inyang the claimant in this suit and a written in support in opposition to the application. In his address two issues were raised to wit:- i. Whether the application of the applicant is competent? ii. Whether it is proper for the Judgment Debtor to be deprived the fruit of litigation in a monetary Judgment. On the 1st issue the Creditor urged the court not to grant the application because to him it is a strange prayer, in that the applicant is praying the court to restrain the Judgment Creditor from taking legal steps towards execution of the Judgment he has gotten. That legal relief of injunction cannot be deployed to restrain the Judgment Creditor. Relying on the case of Kubor V Dickson (2013) All FWLR (Pt. 676) 392 R. 6. The Creditor then said that once the prayer is incompetent, the court must strike out/dismiss them. That this is so because a party is bound by the reliefs sought on the face of the Motion paper. Relying on the case of Muktibras S/A Electrodomesticos V P. Z. Co PLc (UK) (2008) All FWLR (Pt. 326) Rt. 2. The Creditor also submitted that the application is incompetent because the Judgment Debtor has filed to exhibit the Judgment sough to be stayed. That the applicant has a duty to Exhibit the Judgment sought to stay. Citing the case of Mobil Oil Nig Plc V Rabiu (Supra):- Being an equitable remedy a party wishing to have a Judgment stayed must exhibit the Judgment in question. The copy of the Judgment which must be exhibited has to be that certified as true copy. The Creditor urged the court to resolve this issue in favour of the Judgment Creditor. On the 2nd issue which is:- Whether it is proper for the Judgment Creditor to be deprived the fruit of litigation in a monetary Judgment. On this the Creditor submitted that it is now law that a Judgment Creditor is entitled to the enjoyment of the fruit of his litigation. Relying on the case of Abiodun V Chief Judge, Kwara State (2008) All FWLR (Pt. 418) 539 Rt. 1. That it should be borne in mind that the Judgment sought to be stayed is a monetary Judgment. Citing the case of Ikere Local Govt. V Adelusi (2008) All FWLR (Pt. 404) 1534 Rt. 3 where the court held that:- In a Judgment involving money, as in the instant case, the terms upon which the court would grant a stay of execution are easier to determine than in other Judgment where the res is perishable or prove to alteration. The terms are:- (i) Whether making the Applicant to satisfy the Judgment would make this financial position such that he could not prosecute the appeal. (ii) Whether it would be difficult to secure the refund of the Judgment debt and costs from the Respondent, if the appeal succeeds, for which purpose the financial ability of the Respondent is taken into account. The Creditor further submitted that in an application for stay of Execution, it is the duty of the Judgment Debtor to convince the Court that the Respondent is a man of straw. See Okon V Bolingo. Urging the court to refuse the application as the Judgment Creditor cannot be described as a man of straw, in that this annual take home pay is in excess of the Judgment sum. Relying on Exhibit A attached to the counter-affidavit. Commenting in paragraphs 8 and 15 of the Judgment Debtor supporting the affidavit that the money that will be used to pay the Judgment Creditor is depositors’ money. This the Creditor challenged stating that the assets written of the Debtor is worth N200 billion. Alternatively, the Creditor submitted that as a last resort the court should order that the Monetary sum be paid to the Registrar of this Court who will pay same into an interest yielding account pending the determination of the appeal. Relying on the case of Mobil Producing Nig, UNLTD V Udo (2008) All FWLR (Pt. 421) 951 Rt. 3. Per OMOKRI JCA:- …… In suits involving money, the practice is for the money to be paid to the Registrar of the court who will then pay same into 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, none 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’s fear that the Applicant will be unwilling to pay the Judgment sum would no longer exist if it is paid into the court. Conclusion The Creditor urged the court to reject this application and dismiss same. In reaction thereof, the Judgment Debtor/Applicant filed a reply on points of law. In response the Judgment Debtor/Applicant referred to Orders 11 Rule 1(1), 30 Rule 1 of the National Industrial Court Rules 2007. The Judgment Creditor/Respondent did present two (2) issues for determination to wit:- i. Whether the application of the Applicant is competent? ii. Whether it is proper for the Judgment Debtor to be deprived the fruit of litigation in a monetary Judgment. In reaction thereof, the Judgment Debtor/Applicant filed a reply on point of law. The Judgment Creditor/Respondent in attempting to deny the obvious facts as deposed to in the affidavit in support of the motion on Notice to wit; ‘that the Judgment creditor lacks the means to repay the Judgment sum’, deposed to a fact not in exercise. This is exemplified in paragraph 4 Judgment Creditor/Respondent counter-affidavit, and it states thus:- (4) That my total annual takes home is above N9,800,000.00. A copy of my total emolument sent by my Employer to the Embassy of the United States of America in June, 2014 when my office was procuring Visa for me to attend a training in the United States of America is hereto attached and marked as Exhibit “A”. In an attempt at debunking the facts deposed to in paragraph 13 of the Judgment Debtor/Applicant affidavit in support of its motion, and paragraph 14 in the further and Better affidavit in support, the Judgment Creditor/Respondent procured a document to raise a contrary view, my lord, it is regrettable that the Judgment Creditor/Respondent can go to this extent of manufacturing a document tot his argument we rely on the Exhibit “A” in paragraph 4 of the Judgment Creditor/Respondent’s counter-affidavit. The said Exhibit ‘A’ was procured during the pendency of this suit No: NICN/ABJ/264/2012 which gave rise to this application herein, contrary to Section 83(3) of the Evidence Act, 2011. The said document was neither pleaded in his pleadings nor produced at trial and cannot form the basis of refusing this application. The said document was signed by unknown person. The said Exhibit “A” has no origin in its maker. The said Exhibit ‘A’ was neither addressed to the court nor to the Respondent. The said document has no bearing to the Respondent as it was addressed to a nebulous ‘visa officer’. Taking into account the hollowness of the respondent’s Exhibit ‘A’ as enumerated above, the court is urged to discountenance Exhibit “A” as it is fatally unhelpful to the unimpeachable deposition of the applicant that the respondent lacks the capacity to repay the Judgment sum in the event that the appeal of the applicant succeeds. It is in regard to the above that the court is urged to discountenance the said Exhibit “A” as same is a concoction of falsehood and offends Sections 56 and 94 of the Evidence Act 2011. In response to paragraph 1.3 of the written address in support of Judgment Creditor/Respondent’s counter-affidavit, we reiterate our point that in the instant application, the facts deposed to applicant’s affidavit in support are peculiar and as such, the court must exercise its discretion judiciously having regard to the justice of the case. See Momah V VAB Petroleum Inc. (2000) 2 SC. 142 at 163 – 164; Lijadu V Lijadu (1991) 1 NWLR (Pt. 169) 627 at 644. In reaction to paragraph 3.1 to paragraph 3.5 of the said counter-affidavit, we submit that the argument of the Judgment Creditor/Respondent holds no water as it is the Constitutional right of an aggrieved party to channel his grievances to the Appellate court when not satisfied with the Judgment of a trial court. See particularly, Section 243 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). More over, the subject matter must be preserved hence the need for the courts restraining Order. See Nwabueze V Nwosu (1988) 4 NWLR (Pt. 88) 257 at 269. By further re-direction of the court, the applicants grouse against this application is to scuttle the course of Justice and to render the Appeal nugatory. In response to paragraph 3.6 of the written address in support of Judgment Creditor/Respondents counter-affidavit, we submit that it is trite that a sin of the counsel cannot be visited on the client. See F.B.N. Plc V Maiwada (2013) 5 NWLR (Pt. 1348) 444 SC. Moreso, the Judgment Debtor/Applicant has taken further steps at filing a further and better affidavit wherein the said Judgment was duly attached. On this note, the debtor submitted that the mere filing a counter-affidavit with a frivolous document as a ground of striking out of the applicant’s motion is bizarre. By further re-direction of the court, we state that the authority of Mobil Oil Nig. Plc V Rabiu relied upon by the counsel to the Judgment Creditor/Respondent is of no moment and was indeed cited out of context. The Supreme Court has frowned at this practice. See the case Chidoka V F.C.F.C. Ltd (2013) 5 NWLR (Pt. 1346) 144 S.C. Assuming, there is the existence of a case so called, there is no nexus between the indented words purportedly coined and summed up in paragraph 3.6 and the facts in the extant application of the Judgment Debtor/Applicant. In reaction to Issue Two (2), debtor submitted that the Judgment Creditor/Respondent has not formulated a responsive issue. The content of the so called fallacious issue only corroborates the submission of the counsel to the Judgment Debtor Creditor/Applicant. The case of Vaswani Trading Company V Savalakh & Co (1972) 7 NSCC 692 exhaustively summarized the position of the Judgment Debtor/applicant as the ‘res’ need to prove the contrary. In response to paragraph 4.8 of the written address in support of Judgment Creditor/Respondent’s counter-affidavit, submitted that the since Judgment Debtor/Applicant’s deposition particularly at paragraphs 8, 9, 10, 14, 15 and 16 of the affidavit in support and paragraphs 9, 10, 11, 15, 16 and 17 of the Further Better Affidavit in support of the extant application, have not been disproved by the Judgment Creditor/Respondent, it is deemed admitted and as such need no further prove. The case of Nwaogu V Atuma (2013) 19 NWLR (Pt. 1363) 591 at Pg. 599 (Pt. 3) in instructive here where the Supreme Court held thus:- Where depositions in an affidavit are not controvrted such unchallenged facts are deemed admitted Counsel submitted that the court should discountenance the submission of counsel to the Judgment Creditor/Respondent as regards his prayers contained in paragraph 4.8 of the written address in support of the said counter-affidavit. It is further submitted that counsel for the claimant/respondent clearly cited decided cases that the facts are distinguishable from the case of the applicant herein. And in some instances, counsel to the claimant/respondent cited settled principles of law out of context. This is indeed unhelpful to the case of the respondent who has failed woefully to demonstrate financial capacity to repay the huge Judgment sum in the event that the appeal of the applicant succeeds. Against the foregoing, the Debtor submitted with respect to discontennce the cases cited and relied upon by the Judgment Creditor/Respondent such as Kubor V Dickson (2013) All FWLR (Pt. 676) 392; Muktibras S/A Electrodomesticos V P. Z. Co Plc (UK) (2008) All FWLR (Pt. 326); Mobil Oil Nig Plc V Rabiu; Abiodun V Chief Judge, Kwara State (2008) All FWLR (Pt. 418) 539; University of Ilorin V Akinola (2007) All FWLR (Pt. 372) 1844; Ikere Local Govt V Adelusi (2008) All FWLR (Pt. 404) 1534); University of Ilorin V Adewusi (No.1) (2008) All FWLR (Pt. 400); and Mobil Producing Nig Unltd V Udo (2008) All FWLR (Pt. 421) 951. Finally, the Debtor prayed this court to consider favourably the application of the applicant which is in consonant with her guaranteed constitutional right to exercise right of appeal in accordance with the law of the land. Most significantly, the formidable facts and circumstances of this application unequivocally tilts the balance of convenience in favour of granting the prayer of the applicant. The Debtor urged the court to exercise its discretion in favour of the applicant. 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, relying in particular on paragraphs 11, 12, 13, 14, 15, 16, and 17 of the affidavit in support of the Motion on Notice. The Applicant submitted that the court should grant the application on the interest of justice. However, a careful perusal of the application shows that there is no valid appeal before the Court of Appeal but only a notice 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. However, the court is mindful of the other issues raised by the applicant that the Creditor/Respondent has no means of refunding Judgment sum thus making it impossible to recover the huge sum in the event that the appeal of the Appellant is successful. That the balance of convenience is in favour of granting the application as the Applicant being a financial Institution with robust balance sheet has the capacity and capability to satisfy the Judgment debt upon the time the appeal court decides the defendant/applicant appeal. I cannot but agree more with the Debtor the applicant that the applicant is a financial institution with robust balance sheet with capacity and capability to satisfy the Judgment debt upon the time the appeal court decides the defendant/applicant appeal. The Judgment/Debtor is just making an assertion that the Judgment Creditor has no means to refund to Judgment sum if paid to him, without any evidence to this effect. It is on record that the claimant is still a worker and not a man of straw. In the interest of justice, the court will not refuse the grant of the stay of execution but hereby orders that the Judgment sum of N7,107,138.19 (Seven Million One Hundred and Seven Thousand One Hundred and Thirty-eight Naira Nineteen Kobo) Only be paid to the Registrar of this court and the Registrar to deposit same into an interest yielding account within one month of the grant of this application. This position is supported by the decision of the court in the case of Mobil Producing (Nig) UNLTD V Udo (2008) All FWLR (Pt. 421) 951 R 3, all ready reproduced above. Before ending this Ruling it is necessary to point out the habit of the learned counsel to the defendant Judgment Debtor who is in the habit of intimidating the court with his submissions which is on becoming of a counsel of a status. There is no court or anybody stopping the Judgment/Debtor from exercising his constitutional right to exercise his right of appeal. It is not for counsel to do thing in his own way there are court procedure to follow in filing an appeal at the Court of Appeal. The counsel to the Judgment should stop misleading his client, the Bank that is Zenith Bank is not above the law of the land. Your too know may lead you in misleading the Bank. I believe the court deserved some respect from counsel appearing in this court this attitude is frown at and I pray that this type of submissions should stop immediately. For the reasons given above, the stay of execution is granted with the money deposited with the court as ordered by the court within 30 days of this Ruling. Ruling is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE