TAI AJOMALE v YADUAT AND ANOTHER (SC 193/1989) [1991] NGSC 5 (31 May 1991)

TAI AJOMALE (APPELLANT)

v.

YADUAT AND ANOTHER (RESPONDENTS)

(1991) All N.L.R. 197

Division: Supreme Court of Nigeria

Date of Judgment: 31 May 1991

Case Number: SC 193/1989

Before: Andrews Otutu Obaseki; Adolphus Godwin Karibi-Whyte; Salihu Modibbo Alfa Belgore; Phillip Patrick Nnaemeka-Agu; Abubakar Bashir Wali, JJSC

ISSUE

Whether special circumstances existed in order to allow a stay of execution proceedings until finalisation of an appeal, as provided for in Section 24 of the Supreme Court Act.

FACTS

The appellant was a legal practitioner who had moved onto land that had been a refuse dump. He cleared the land, cleaned it and proceeded to erect a building thereon, part of which he occupied with his family and part of which he let to a tenant. The land, at the time, was subject to disputes over title. In the High Court the defendant tasted early success when that court found that it was entitled to exercise its discretionary powers to allow a stay of execution in the defendant's favour. The Court of Appeal set that order aside and the defendant now appealed to the Supreme Court, arguing that a stay should have been allowed pending the appeal. Grounds raised for this contention included, inter alia, that the defendant's reputation and good name would suffer if the stay of execution were to be allowed and that this consideration amounted to a special circumstance as provided for in Section 24 of the Supreme Court

Act 1960. That Section determines that an appeal does not operate as a stay of execution, while at the same time providing the court with a discretionary power in the presence of special circumstances.

HELD (Unanimously dismissing the appeal)

1.      On consideration of a stay of execution

The overriding consideration where a stay of execution is requested pending an appeal, is the assurance that a successful appeal should not be rendered nugatory. Nnaemeka-Agu, JSC, at page 210.

2.      On the determination of special circumstances

The reputation of a legal practitioner does not amount to a special circumstance warranting an exercise of a court's discretion to allow a stay of execution. Nnaemeka-Agu, JSC, at pages 211 and 212

3.      On the granting of a stay of execution

Once it was found that the defendant was a wilful trespasser, it was erroneous to grant him (the trespasser) a stay of execution pending his appeal against the finding. Karibi-Whyte, JSC, at page 217.

4.      On the right to succeed with a stay of execution

A person found to have been a trespasser ought not to be entitled to a stay of execution; even more so when it was found that the party concerned had been a wilful trespasser. Nnaemeka-Agu, JSC, at page 206.

5.      On the special circumstances which justify a stay of execution

The recondity of a point of law where such is raised as constituting a special circumstance which may justify a stay is determined in concrete terms by reference to what the effect of a refusal to stay may be on the appellant if successful in the appeal. Nnaemeka-Agu, JSC, at page 213.

Chief G.O.K Ajayi, S.A.N, A.M.O Obe and E.E. Akpan, for the Appellant

G.C. Enumah, for the Respondents

The following cases were referred to in this judgment:

Nigeria

Akujobi Nwabueze v Obioma Nwosu (1988) 4 NWLR 257

Alhaji AW Akibu v Alhaja Munira Oduntan (1991) 2 NWLR (Part 171) 1

Architects Registration Council v Fassasi (No. 3) (1987) 3 NWLR 37

Balogun v Balogun (1969) 1 All NLR 349

Deduwa v Okorodudu (1974) 6 SC 21

Enekebe v Enekebe (1964) 1 All NLR 102

John Akujobi Nwabueze v Obioma Nwosu (1988) 4 NWLR 257

Lawrence Okafor v Felix Nnaife (1987) 4 NWLR 129

Martins, P. O. P. v Nicanner Food Co Ltd & another (1988) 2 NWLR 75

Military Governor of Lagos State & others v Chief Emeka Odumegwu Ojukwu & another (1986) 1 NWLR 621

Nwabueze v Nwosu (1988) 4 NWLR (Part 88) 257

Okafor v Nnaife (1987) 4 NWLR (Part 64) 129)

Olabisi William, Miss v Busari (1973) 2 SC 19

Turkur v Government of Gongola State (1989) 4 NWLR (Part 117)

University of Lagos & another v Aigoro (1985) 1 NWLR 143

Vaswani Trading Co v Savalakh & Co (1972) 1 All NLR (Part 2) 483.

Foreign

Erinford Properties Ltd v Cheshire County Council (1974) Ch 261

Maxwell v Keun (1928) 1 KB 645

Wilson v Church (No. 2) (1879) 12 Ch D

Nnaemeka-Agu, JSC (Delivered The Leading Judgment):- This is an appeal against the judgment of the Court of Appeal Lagos Division which had on 12 May 1989, allowed an appeal by the plaintiffs against a ruling by Ilori, J sitting in a Lagos High Court whereby he ordered a stay of execution subject to certain conditions, of his judgment, pending appeal.

In the court of trial the plaintiffs had claimed against the defendants the following reliefs:-

"1.     A declaration of title to a statutory right of occupancy deemed to be granted by the Governor of Lagos State in respect of the plot of land known as Plot 55 Alade Avenue, in Lawani Balogun Layout at Wasimi Village, Ikeja, Lagos State, Ikeja District TPA 0314 of 7th March 1964 and shown in Plan AT/43/66 dated 20th April 1966 filed herewith.

2.      N20 000 being Special and General Damages for the trespass committed by the defendant, his servants or agents on the said plot of land in possession of the plaintiffs.

3.      An injunction restraining the defendant whether by himself, his servants or agents or otherwise howsoever from further entering, doing or taking away anything from the said plot of land and/or interfering with the plaintiffs' rights over the said plot of land.

4.      Costs.

5.      Possession."

After full hearing the learned trial Judge on 18 December 1987, found for the plaintiffs and granted to them the declaration they sought. He also concluded as follows:-

"Arising from the facts as found herein, I hold that the defendant's vendors had nothing to sell when they purportedly resold to Bamigbala Amao the area of land vested in Lawani before the sale to Bamigbala Amao. The plaintiff has established better title to the land in dispute.

I find as a fact that after purchase of the land in dispute, the plaintiff retained possession but did nothing on the land hence occupiers of neighbouring premises used it as a rubbish dump. The land was cleared and fenced up by the defendant but since a trespasser cannot have possession in law, the possession remained throughout in the plaintiffs, whom I hold had no materials or foundation on the land."

He also found that the defendant was a trespasser, awarded general damages of N1000 against him and granted to the plaintiffs perpetual injunction against him.

The defendant appealed to the Court of Appeal against the said judgment. Thereafter, by a motion dated 24 December 1987, he moved the court for another stay of execution of the said judgment pending appeal. In paragraphs 8, 9, 10, 11 and 12 of the affidavit in support of the motion, he deposed to the following facts:-

"8.     That I have on the land a building which I occupy with my family and other relations.

9.      That I am still indebted to several friends and finance houses for the cost of the building.

10.     That my solicitor informed me and I verily believe that there are good and substantial points of law in my favour, for consideration of the Court of Appeal.

11.     That if the order restraining me from going into the property in dispute either by myself, agent and or servant is executed, it will adversely affect my reputation as a legal practitioner and also expose me and my family to an untold hardship.

12.     That the structure of the property which is now duplex building may be altered if the defendant/applicant and his family are ejected."

In opposition to the motion the second plaintiff filed a counter-affidavit sworn to on 19 January 1988. In paragraphs 6, 8, 9 and 10 of the said counter-affidavit he deposed as follows:-

"6.     That as to paragraph 9 of the said affidavit, the defendant/applicant during the pendency of this suit surreptitiously constructed the said building, fully appreciative of the risk he was taking.

8.      That as to the issue of untold hardship which will befall the defendant/applicant's family deposed to in paragraph 11 of the said affidavit, the defendant/applicant as a Senior Legal Practitioner should have known better not to purport to take 'possession' of the land in dispute and during the pendency of the suit.

9.      That throughout this dispute-cum-action, the defendant/applicant has conducted himself in a cavalier manner, disregarding the police advice that both parties should not go to the said land to avoid a breach of the peace and whilst the police conducted their investigation."

I may pause here to observe that the defendant filed no further affidavit to controvert the above deposition. It is, of course, trite law that when, in a situation such as this, facts are provable by affidavit and one of the parties deposes to certain facts, his adversary has a duty to swear to an affidavit to the contrary if he disputes the facts. Where, as in the instant case, such a party fails to swear to an affidavit to controvert such facts, these facts may be regarded as duly established. In the instant case, from the contents of the above paragraphs of the further affidavit sworn to by the second plaintiff and the portion of the judgment of the learned trial Judge quoted above, it appears that the land in dispute was vacant and undeveloped land at the time the proceedings commenced. The defendant cleared it and fenced it round, commenced a building, rushed it through, and packed into one of the duplex during the pendency of the proceedings in the trial court. I shall bear these facts in mind in my consideration of this appeal.

Further, the learned trial Judge without showing that he adverted to the above facts, granted to the defendant his application for a stay of execution of the judgment. In doing so, he relied on two grounds: - first, that the plaintiff had raised a recondite point of law. According to the learned trial Judge the only ground of appeal is the locus of the plaintiffs who although were granted letters of administration to administer the estate of an intestate utilised the proceeds of the property to purchase real estate which became the res litis. No authority was made available to the court on this point hence its consideration by the Court of Appeal will lead to definitive statement of the law. The second ground was what the learned trial Judge regarded as a special circumstance in that the defendant and members of his family live in one wing of the twin duplex building on the land in dispute. If the defendant and his family were to be evicted they would have to look for alternative accommodation, and if he succeeded on the appeal they would have to move back. As I have observed, the learned trial Judge did not however consider the circumstances under which the building was put up and how the defendant went into possession thereof on the evidence before him. In fairness to the learned trial Judge, however, he made the order for a stay of execution on the following conditions:-

"(a) That the respondent should prosecute his appeal timeously and expeditiously.

(b)     That the Deputy Chief Registrar of the Court shall from the end of the month collect from the respondent the rent or an amount equivalent to the rent of the wing of the duplex let out and pay the same to the Court to abide with the result of the appeal.

(c)     That after the determination of the appeal, the successful party shall collect the sum so paid to the Court and

(d)     If the applicant shall fail in this appeal, he shall pay to the respondent an amount equivalent to the money paid into the Court in respect of the other wing for use and occupation of the wing now occupied by him and members of his family."

The plaintiff appealed to the Court of Appeal. In the lead judgment of Ademola, JCA to which Akpata, JCA (as he then was) and Awogu, JCA, concurred, he noted as follows:-

"The contention as I see it is that the respondent here who lost the case in the court below had, during the pendency of the case, erected a building on the land in dispute which he has now lost; and he occupied part of the building while he let the other part to a third person.

But by a stay of execution which was granted him, he has in effect kept part of the building on which he has been declared a trespasser, while the money he realised on the part he let out would be kept by the Registrar of the High Court until the appeal he lodged is disposed of in this Court."

Later the learned Justice of Appeal held:-

"For the respondent to remain rent-free on the property is a derogation of the judgment the learned Judge has given which declared the appellant to be the owner of the land. It is a deprivation of the appellant's right to the fruits of his judgment by asking the Registrar to put in the court an unspecified amount as rent derivable from the other part of the house which is occupied by a third party. What the other party who occupies other wing of the house pays is not known.

The learned Judge was clearly in error in granting a stay of execution to somebody he has declared trespasser by the very award of damages against him which is contained in his judgment. By allowing the respondent to remain on the land by his occupation of part of the building on the land, the learned Judge has negated his order of injunction made against the respondent."

The court therefore allowed the appeal and set aside the order for stay of execution made by the learned trial Judge.

The defendant (hereinafter called the appellant) has now appealed to this Court. Arising from the grounds of appeal the following issues have in the opinion of the learned Counsel for the appellant arisen for determination in the appeal:-

"(1)    Whether the Court of Appeal was right in impliedly stating that the learned trial Judge has not determined the issue of locus standi, but had merely reserved it for the Court of Appeal.

(2)     Did not the trial Judge base the grant of the order for stay on the hardship that would be suffered by the defendant/ appellant?

(3)     Whether or not a Court can grant an order of stay of execution where it would have the effect of negating the order for injunction made in the judgment.

(4)     Whether the Court of Appeal should have allowed the appeal on a combination of three grounds namely:-

(i) That the amount of the rent payable for the half-duplex let out to a tenant was not ascertained and directed to be paid into court.

(ii) The appellant was not himself ordered to pay rent for the portion occupied by him and

(iii) That the appellant committed wilful trespass in building the house in dispute."

Learned Counsel for the plaintiffs (hereinafter called the respondents) formulated the following two issues for determination:-

"(1)    Whether the Court of Appeal is correct in holding that, on the totality of the evidence before it, the defendant/appellant's case is not a proper one to grant a stay of execution.

(2)     Whether in view of decided cases, the ground that there is a recondite point of law is sufficient to found and warrant the grant of stay of execution in the present case."

Chief Ajayi in respect of the first issue, pointed out that contrary to the view of the Court of Appeal, the learned trial Judge resolved the issue of locus against the appellant. So, he was entitled to take it up on appeal. So on the authority to Balogun v Balogun (1969) 1 All NLR 349 being a recondite point of law, it was a special circumstance which would entitle him to a stay. In his submission, the Court of Appeal failed to understand the second ground on which the learned trial Judge made the order for stay when it stated that the trial court did not base its order on hardship, whereas it did. He further submitted that the Court of Appeal was in serious error when it held that the learned Judge ought not to have granted the order because it reversed the order of injunction made by him in the main judgment; whereas he could. He relied on the case of Erinford Properties Ltd v Cheshire County Council (1974) Ch 261, at pages 267-268. On the last issue, he contended that the applicant should have been ordered to pay rents on the wing of the duplex house which he occupies. This was an order which the court ought to have made, as the appellant made an offer to pay rents in that court. This Court can now make the order, he submitted. He urged the Court to rule that there is no rule of law which stipulates that once a person has been adjudged a trespasser, he cannot get an injunction issued in his favour to restrain the execution of the judgment. He also submitted that Akpata, JCA (as he then was) quarrelled with the order made not because it ordered a stay of execution, but because the conditions imposed were vague and unfair. He urged the Court to allow the appeal but impose equitable conditions.

Learned Counsel for the respondent filed a brief. I regret to observe that it did not deal specifically with most of the points raised by the learned Counsel for the appellant. However, he went ahead to advance arguments as to why the appeal should be dismissed. I wish to seize this opportunity to observe that a good respondent's brief has two broad functions. It is refutatory in that it answers the specific points upon which the appellant's brief is attacking the judgment appealed from. It is also supportive in that it advances arguments in support of the reasoning in the judgment appealed from. It is, therefore, unsatisfactory for a respondent in his brief to do one and leave the other. However, I am bound to consider the points raised in the appeal on their merits, as I see them.

I shall make short points of some of the points raised by the learned Counsel for the appellant. It is really rather putting the matter too highly to say that the learned trial Judge's second reason for granting the application was hardship. The learned trial Judge stated:-

"The next question is whether there is any other special circumstance in this case. The respondent and members of his family reside in one wing of the twin duplex built on the land. If no stay is granted, they will have to be evicted, look for alternative accommodation and move back if he succeeds in his appeal . . ."

This is not a finding of hardship. It is much less a decision as to balance of hardship, as there is nothing to show that the hardship of the other party was considered at all. A stay may, in appropriate cases be granted on basis of balance of hardship; not on mere convenience of one party. It is in this case, as the Court of Appeal pointed out, rightly in my view, simply based upon a consideration of the convenience of the appellant without regard to the established rights or convenience of the other party. The applicant's convenience cannot be a special circumstance for a grant of a stay of execution within the contemplation of the law.

I do not think that the learned Counsel for the appellant's attack, in the fourth issue formulated by him, on the views expressed by Akpata, JCA, (as he then was) is justified. The learned Justice of the Court of Appeal condemned the order made by the learned trial Judge on the grounds that:-

(i) The rent to be paid into court by the appellant on the part of the duplex building he let out to a tenant was not specified.

(ii) That the appellant was himself not asked to pay rent for the wing of the house which he occupies with his family and

(iii) That the appellant committed wilful trespass in building the house in dispute during the pendency of the suit.

On the contrary, I am of the view that the learned Justice of Appeal (as he then was) was perfectly justified in his stand. The first two grounds just mentioned look to me very much like transferring the benefit of the judgment of the learned trial Judge from the successful respondents to the unsuccessful appellant, and not just a stay of execution. The essence of an order for stay of execution is to maintain the status quo before the order and prevent the successful party from insisting on his adjudged rights by invocation of the coercive jurisdiction of the courts in a process of execution. In a case like this, this can only be done, if a stay can be ordered at all, by insisting that the unsuccessful defendant pays a specified fair and economic rent for the wing of the duplex he occupies and collects a reasonable economic rent from the tenant he installed in the other wing. But -and that would have been the stay - because the right to the property was still in dispute in the appeal, the rents for both wings would have been paid into court pending the result of the appeal. Indeed the nature of the order made by the learned Judge reminds me of what I said in this Court in the recent case of Alhaji A. W. Akibu & others v Alhaja Munira Oduntan & others (1991) 2 NWLR (Part 171) at pages 14 where I said:-

"Moreover, this Court makes interim orders or grants interlocutory injunctions either to preserve the res or in protection of rights pending appeal. What the applicants are seeking is not an order to preserve the res. No case has been made out for a preservation order. Also, as their rights have been adversely pronounced upon in a final judgment of the High Court, I cannot see what rights of theirs there can be to be protected by an order of interlocutory injunction."

And I had also stated:-

"This to my mind