In the Supreme Court of Nigeria
On Friday, the 16th day of December 2011
SC.290/2007
Before their Lordships
Walter Samuel Nkanu Onnoghen ...... Justice Supreme Court
Muhammad Saifullah Muntaka-Coomassie ...... Justice Supreme Court
John Afolabi Fabiyi ...... Justice Supreme Court
Bode Rhodes-Vivour ...... Justice Supreme Court
Mary Ukaego Perter-Odili ...... Justice Supreme Court
Between
Chief (Dr.) Pere Ajuwa
Honourable Ingo Mac-Etteli ..... Appellants
(Suing for themselves and on behalf of IjawAborigines of Bayelsa State)
And
The Shell Petroleum Development Company of Nigeria Limited ...... Respondent
Judgment of the court
Delivered by
John Afolabi Fabiyi. JSC
This is an appeal against the ruling of the Court of Appeal, Abuja Division (the court below for short) delivered on 10th May, 2007.
By an originating summons issued at the Federal High Court, Yenagoa, Bayelsa State but later transferred and heard at the Federal High Court, Port Harcourt, (the trial court for short) the Appellant sought to enforce the joint resolution of the National Assembly awarding to the Appellants the sum US$1.5 billion damages as compensation for environmental degradation of the Appellants communities by the Respondents oil production activities since 1956.
On February 24th, 2006, the trial court gave judgment and ordered the Respondent to comply with the resolution of the National Assembly and awarded the stated sum of US$1.5 billion to the Appellants as compensation for injuries suffered. The Respondent felt dissatisfied with the judgment of the trial court and appealed to the court below. Equally, it applied to the trial court for it to make an order of unconditional stay of execution of its judgment.
In a ruling delivered on Friday, May 19th, 2006, the trial court refused the application for unconditional stay and ordered the grant of stay of execution on condition that the judgment sum be deposited in the Central Bank of Nigeria on or before 12 noon on Monday May 22nd, 2006, in the name of the Chief Registrar of the Federal High Court.
Being dissatisfied with the ruling of the trial court, the Respondent filed a further application at the court below seeking that the order of conditional stay be varied by granting unconditional stay of execution pending the final determination of the appeal. The Respondent filed another application dated September 19th, 2006, seeking leave of the court below to amend its notice of appeal by filing and arguing the amended notice of appeal, leave to raise fresh issues and accelerated hearing of the appeal.
The two motions filed by the Respondent were part heard at the Port Harcourt Division of the court below when the appeal was transferred, suo motu, by the court for hearing at the Abuja Division of the court. When hearing resumed de novo, at the Abuja Division, the two applications were heard together. In the ruling of the court below delivered on May 10th, 2007, the court below granted all the reliefs sought in the two motions. The court below gave the parties time for filing briefs of argument and adjourned the appeal to 21st of June, 2007, for hearing.
The Appellants felt unhappy and appealed to this court against the stance posed by the court below.
Learned senior counsel to the Respondent raised preliminary objections against the grounds of appeal contained in the notice of appeal filed by the Appellants on 22nd May, 2007. For ease of reference and due appreciation, the six grounds of appeal without their particulars are reproduced as follows:-
Ground One
The Court of Appeal erred in law in granting the Appellant/Applicant's prayer contained in their application filed on 20th November, 2006, seeking
leave to the Defendant/Appellant/Applicant to amend the Notice of Appeal in this matter by filing and arguing the amended Notice of Appeal including raising fresh issues, herein attached as Exhibit SPD 1.
Ground Two
The Court of Appeal erred in law when it held per O.O. Adekeye, JCA., (as she then was) as follows:-
I do not agree that the judgment creditor must consent to stay of monetary judgment. This is only required where the judgment debt (sic) is a bank or financial institution.
Ground Three
The Court of Appeal misdirected itself in law in granting the Appellant/Applicants application for unconditional stay of execution of the judgment of the Federal High Court in this case on the ground that :-
In the instant application, it is not disputed that the Appellant/Applicant has assets and facilities far in excess of the judgment debt within the jurisdiction of the court and Nigeria. SPDC is also a Nigerian Company wherein the Federal Government has 55% equity interests. It must not elude the court that any order made by court is an interim order pending the hearing and determination of the substantive appeal.
Ground Four
The Court of Appeal erred in law in allocating the time within which the Appellant and the Respondents are to file their briefs of argument in this case and setting down the appeal for hearing on June 21st, 2007.
Ground Five
The Court of Appeal erred in law in granting unconditional stay of execution of the judgment of the Federal High Court in this case in favour of the Appellant/Applicant's application when time within which to file the Appellant's brief had expired and there was no application by the Appellant/Applicant to file its brief.
Ground Six
The Court of Appeal erred in law in refusing to dismiss the Appellant's appeal as urged by the Respondents on 20th March, 2007.
The senior counsel for the Respondent, with respect to the preliminary objection, initially maintained that since the present appeal arose from the interlocutory decision of the Court of Appeal made on May 10th, 2007, leave of the court below or this court ought to be obtained before filing the Notice of Appeal. He placed reliance on the provisions of Section 21 (2) of the Supreme Court Act. Senior counsel submitted that since the Appellants failed to obtain the requisite leave, the entire Notice of Appeal and the appeal are incompetent and should be struck out or dismissed.
Senior counsel urged that the provisions of Section 21 (2) of the Supreme Court Act should be read along with the provisions of Section 233(2) (a); (3) and (6) of the 1999 Constitution and that appeal on interlocutory decisions of the Court of Appeal lies to the Supreme Court with leave either of the court below or this court.
Senior counsel for the Appellants had a contrary view. He felt that since the grounds of appeal are grounds of law, an appeal lies as of right to this court. He submitted that the argument of learned senior counsel for the Respondent that Section 233 ( 1) and (2) (a) of the Constitution is subject to Section 21 (2) of the Supreme Court Act by reason of Section 233(6) of the Constitution belittles the Constitution which is the organic law of the state and the grundnorm. He observed that Section 233(2) (a) of the Constitution confers a specific right of appeal without any requirement for leave on questions of law against decisions of the Court of Appeal in any civil or criminal proceedings. He felt that what is contemplated by Section 233(6) are situations other than those already expressly provided for in the previous subsections of the section. He submitted that if a harmonious interpretation is given to Section 21 (2) of the Supreme Court Act, the court will arrive at an interpretation that leave of the court below or of this court is required for an appeal against an interlocutory order or decision of the court below on questions other than questions of law alone. He opined that this is consistent with the provision of Section 233(3) of the Constitution.
Senior counsel for the Appellants referred to decisions of this court in National Employers Mutual General Insurance Association Ltd. v Uchay (1973) 4 SC 1; (1973) 4 SC (Reprint) 1 and Onigbeden v Balogun (1975) 4 SC 85; (1975) 4 SC (Reprint) 63. He submitted that the interpretation put forward by the senior counsel for the Respondent is destructive of Section 233(1) and (2) (a) of the Constitution and disruptive of settled principles and therefore should be rejected. He cited
the cases of Ojemen v Momodu (1983) 1 SCNLR 188 at 203; Comex Ltd. v N.A.B. Ltd. (1997) 3 NWLR (Part 496) 643 at 653; Maigoro v Garba (1999) 7 SC (Part III) 11; (1999) 10 NWLR (Part 624) 555 at 567-568; Adeyemo v Beyioku (1990) 10 NWLR (Part 635) 472 at 489; Ngige v Achukwu (2004) 8 NWLR (Part 875) 363 at 394.
At this point, it is apt to reproduce the provisions of Section 233(2) (a), (3) and (6) of the 1999 Constitution along with Section 21(2) of the Supreme Court Act so as to appreciate their clear purport and intendment in relation to the point herein in contention. They read as follows:-
Section 233 (2) (a) of the 1999 Constitution:
An appeal shall lie from decision of the Court of Appeal to the Supreme Court as of right in the following cases
(a) Where the ground of appeal involves question of law alone, decision in any civil or criminal proceedings before the Court of Appeal.
Section 233(3) of the 1999 Constitution:
Subject to the provisions of subsection (2) of this section, an appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with leave of the Court of Appeal or the Supreme Court.
Section 233(6) of the 1999 Constitution:
Any right of appeal to the Supreme Court from the decisions of the Court of Appeal conferred by this section shall subject to Section 236 of this Constitution, be exercised in accordance with any Act of the National Assembly and rules of court for the time being in force regulating the powers, practice and procedure of the Supreme Court.
Section 21(2) of the Supreme Court Act:
Where in the exercise by the Court of Appeal of its jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that court or of the Supreme Court, as the case may be, lie to the Supreme Court; but no appeal shall lie from any order made ex-parte, or by consent of the parties or relating only to costs.
From the above reproduced Section 233(2) (a) of the 1999 Constitution, it is clear beyond peradventure that an appeal shall lie from decision of the Court of Appeal to the Supreme Court as of right where the ground of appeal involves question of law alone. Section 233(2) (a) of the Constitution confers a specific right of appeal without any requirement for leave on question of law against decisions of the court below in any civil or criminal proceedings. And Section 233(3) provides that subject to the provisions of subsection (2) of this section an appeal shall lie from decisions of the court below to the Supreme Court with the leave of the Court of Appeal or the Supreme Court. To my mind, appeal on question of law alone without leave is unique. Section 233(6) relates to other appeals against interlocutory decisions of the court below on questions other than those of law. This is consistent with the provisions of Section 233(3) of the Constitution.
It is my considered opinion that the provisions of Section 233 (2) (a), (3) and (6) should be given a harmonious reading in such a manner that it does not obliterate the clear provisions of Section 233(2) (a) which gives a specific provision of right of appeal without leave on point of law. Subsection (3) of Section 233 of the Constitution makes other rights of appeal subject to that provided in subsection (2)(a) of the same. To find otherwise will, in my opinion, be disruptive of settled principles. See: Ojemen v Momodu II (supra) at Page 203.
I do not agree with the stance posed by the Respondent. I hold that the appeal is competent
That now takes me to the objection raised to the competence of Grounds 3, 4 and 5 of the Appellants Notice of Appeal. Chief Akinjide SAN, submitted that Grounds 3, 4 and 5 are, at best, grounds of mixed law and facts and required the leave of either the Court of Appeal or this court before they could be lodged. He observed that the stated grounds and their particulars must be read together to reach a decision. Learned senior counsel cited Opuiyo v Omoniwari (2007) 6 SC (Pt. I) 35; (2007) 16 NWLR (Part 1060) 415 at 430 and Metal Construction (W.A) Ltd. v Migliore (1990) 2 SC 33; (1990) 1 NWLR (Part 126) 299 at 314; Comex Ltd. v N.A.B. Ltd. (1997) 3 NWLR (Part 496) 643 at 654.
Senior counsel submitted that the particulars attending to Grounds 3, 4 and 5 challenge the evacuation by the court below and that the Appellants contended that on the strength of the facts alleged therein, the court below ought to have reached a different conclusion. Senior counsel felt that same is clearly a question of fact.
Senior counsel submitted that the mere description or labelling of a ground of appeal as error of law is not conclusive and is irrelevant to the determination whether that ground is of law, fact or mixed law and facts. The court looks at the substance of the complaint in the ground of appeal. He cited the cases of Nwadike v Ibekwe (1987) 2 NSCC 1219 and Ojemen v Momodu II (1983) NSCC 135. He observed that any issue for determination framed from Grounds 3, 4 and 5 of the Appellants' notice of appeal are incompetent.
Senior counsel further submitted that Grounds 3 and 5 should be deemed abandoned and liable to be struck out as no issue for determination was framed from the grounds. He cited Chukwumah v Shell Petroleum (1993) 4 NWLR (Part 289) 512 at 551.
Learned senior counsel finally urged that Appellants Grounds 3, 4 and 5 should be struck out.
Learned senior counsel for the Appellants agreed that in the determination of the question whether or not a ground of appeal is of law or fact or mixed law and facts, it is important to consider together the principal complaint and the particulars of the error provided thereunder.
He felt that the substance of the complaint in Ground 3 is that the court below misdirected itself in law as there was no evidence on record to support its decision to grant unconditional stay of execution. He submitted that the court below did not exercise its power to grant unconditional stay of execution on recognised legal principles. He cited the case of Ogbechie v Onochie (1986) 2 NWLR (Part 23) 484; Nwadike v Ibekwe (1987) 4 NWLR (Part 67) 718. Senior counsel submitted that Ground 3 of the Notice of Appeal is a ground of law.
Further, senior counsel for the Appellants submitted that Grounds 3 and 5 were not abandoned as they were well covered by issues for determination raised by the Appellants. He observed that Ground 3 was argued under Issue 1 while Ground 5 relates to consequence of failure to file brief of argument within time prescribed by the rules of court.
It has been pronounced by this court in Nwadike v Ibekwe (supra) at Page 1235, that it is a recognised fact that the line of distinction between law simpliciter and mixed law and fact is a very thin one. But one does not convert a ground of mixed law and fact into a ground of law by christening it 'error of law' or misdirection in law.
Grounds of appeal and particulars attending to them must be carefully read together to arrive at a decision.
As carefully set out by Nnaemeka-Agu JSC, in Nwadike v Ibekwe (supra) on the point -
(a) It is an error of law if the adjudicating tribunal took into account some wrong criteria in reaching its conclusion. O'Kelly v Trusthouse Forte Plc. (1983) 3 All ER 468.
(b) Several issues that can be raised on legal interpretation of deeds, documents, term of arts and inference drawn therefrom are grounds of law. Ogbechie v Onochie (supra) at 491.
(c) Where a ground deals merely with a matter of inference, even if it be inference of fact, a ground framed from such is a ground of law. Benmax v Austin Motor Co. Ltd. (1945) All ER 326
(d) Where a tribunal states the law in a point wrongly, it commits an error in law.
(e) Where the complaint is that there was no evidence or no admissible evidence upon which a finding or decision was based, same is regarded as a ground of law.
(f) If a judge considers matters which are not before him and relies on them for the exercise of his discretion, he will be exercising same on wrong principles and this will be a question of law. Metal Construction (W.A) Ltd. v Migliore (supra) at Page 315.
A careful appraisal of the particulars attending to Ground 3 shows that the complaint therein is that there is no evidence before the court below that the Respondent is a Nigerian Company wherein the Federal Government has 55% equity interest. As for Ground 4, the real complaint is that there was no application before the court below for enlargement of time to file the Appellants' brief thereat. And as for Ground 5, the complaint is that unconditional stay was granted at the time when the Appellant did not seek leave to file its brief of argument. To my mind, the three grounds of the appeal, read carefully with their particulars; show that they are grounds of law.
It can be deduced that the first issue covers Ground 1 of the grounds of appeal. It touches on principles of granting unconditional stay of execution. Issue 3 is covered by Ground 5. It has to do with the complaint that Appellant failed to file brief of argument within the time allowed by the rules of court. In short, I am unable to surmise how the stated grounds of appeal can be said to have been abandoned.
In short, I overrule the preliminary objection taken on behalf of the Respondent. The appeal shall be considered on its merit anon.
The three (3) issues formulated on behalf of the Appellants for determination read as follows: -
(1) Whether the Court of Appeal followed the principle laid down by the Supreme Court for the grant of unconditional stay of execution for money judgment in granting to the Respondent an unconditional stay of execution of the judgment of the Federal High Court.
(2) Whether the first prayer contained in the Respondent's motion dated 19th September, 2006 was not too vague and bad in law to be granted by the court.
(3) Whether the Court of Appeal ought not to have struck out the Respondent's appeal in the court below rather than setting it down for hearing expeditiously when the time within which the Respondent should file its brief of argument had expired and there was no application for enlargement of time to file the brief.
On behalf of the Respondent, four issues couched for determination read as follows:-
(a) Whether the judicial discretion of the courts to grant unconditional stay of execution is dependent on the consent of the judgment creditor, irrespective of the peculiar facts of each case.
(b) Whether or not, having regard to the law and the affidavit evidence, the Court of Appeal was right in granting the reliefs contained in the first paragraph of the prayers in the Respondent's motion dated September 19th, 2006.
(c) Whether the order for the filing of briefs by the Court of Appeal is a necessary and consequential order following the grant by the Court of Appeal of the reliefs in the Respondent's motion dated 19/9/2006 (as the Respondent contends) or whether the order for the filing of briefs amounted to granting a relief not sought (as the Appellants contend).
(d) Whether or not having regard to all the facts and circumstances of the case, the Respondent's appeal at the Court of Appeal can, in law, be deemed to have been abandoned.
The 1st issue formulated by the parties, couched in different words, was hotly contested. It is whether the judicial discretion of the court to grant unconditional stay of execution is dependent on the consent of the judgment creditor or not.
Senior counsel for the Appellants submitted that since this is a money judgment, the only instance where the court may allow the judgment debtor who has applied for a stay of execution pending appeal to retain the judgment debt is where the judgment creditor consents to same. He relied principally on the decision of this court in UBN Ltd. v Odusote Bookstore Ltd. (1994) 3 NWLR (Part 331) 129 at 151. Senior counsel felt that the court below violated the principle of stare decisis for not following the decision of this court therein. He felt that such a stance also violated the provision of Section 287(1) of the 1999 Constitution.
Senior counsel submitted that impecuniosities, per se, is not a ground for granting an unconditional stay of execution or varying the terms of a stay already granted. He cited Franchal (Nig.) Ltd. v Nigeria Arab Bank Ltd. (2000) 6 S.C. (Part I) 1; (2000) 9 NWLR (Part 671) 1 at 22; Nwabueze v Nwosu (1988) 9 SC 68; (1988) 4 NWLR (Part 88) 272.
Senior counsel further submitted that the fact that a judgment debt is substantial or colossal is not a ground for granting an unconditional stay of execution. He cited Mobil Producing (Nig.) Unlimited v Monokpo (2001) 18 NWLR (Part 744) 212 at 242.
Senior counsel submitted that the court below seriously misdirected itself in law in basing its decision, inter alia, on the fact that SPDC is a Nigerian company wherein the Federal Government has 55% equity interests as there was no evidence on record on same. He observed that the Federal Government is not a party in the case.
Senior counsel further observed that the discretion to grant or refuse a stay of execution must take into account the competing rights of the parties. He cited Okafor v Nnaife (1987) 4 NWLR (Part 64) 129 at 136; Mobil Oil (Nig.) Ltd v Agadaigho (1988) 2 NWLR (Part 77) 388 and Martins v Nicanner Food & Co. Ltd. (1988) 2 NWLR (Part 74) 75.
On behalf of the Respondent, senior counsel submitted that the judicial discretion of the court below to vary the terms of the stay granted by the trial court by granting unconditional stay of execution is not dependent on the consent of the judgment creditor. He maintained that to hold otherwise is to convert the judicial discretion of the court below to the discretion of the judgment creditor. He asserted that judicial discretion must be exercised judicially and judiciously having regards to the peculiar facts of each case. Senior counsel maintained that where the exercise of discretion is clogged for being dependent on a factor outside the control of the court, like the consent of the judgment creditor herein as craved by the Appellant, it ceases automatically to be judicial discretion.
Senior counsel submitted that in the exercise of discretion, each case is to be decided on the strength of its peculiar facts. He observed that what the Appellants rely on to urge stare decisis arose from the opinion - obiter dictum of Uwais, JSC, (as he then was) in UBN Ltd. v Odusote Bookstore Ltd. (supra). He felt that the case is totally different from this case and therefore the principle of stare decisis does not arise.
Senior counsel maintained that the learned justice did not intend to lay down a binding principle of law applicable in all cases irrespective of the facts of each case that unless the judgment creditor consents, to allow the judgment debtor to retain the judgment debt would be to give the judgment debtor undue advantage over the judgment creditor. He observed that the opinion of the learned justice relates to - a bank that is a judgment debtor retaining the judgment debt as deposit.
Senior counsel maintained that the consent of the judgment creditor is not and cannot be a requirement for the court below to exercise its judicial discretion to grant unconditional stay of execution. He felt that it is not the law that a judgment creditor must consent before an order of unconditional stay can be made.
Senior counsel asserted that the terms of stay of execution imposed on SPDC by the trial court were onerous and impossible to comply with.
Senior counsel maintained that the case of SPDC for unconditional stay of execution was predicated on the doctrine of corporate death and not impecuniosity. He cited Orient Bank (Nig) Plc. v Bilante International Ltd. (1996) 5 NWLR (Part 447) 166 at 180-182.
On the point touching on colossal sum, he submitted that though same is not a determinant of whether conditional or unconditional stay should be granted, it is a factor to be taken into consideration.
Senior counsel observed that SPDC deposed to affidavit that the Federal Government of Nigeria (FGN) has 55% equity interest in the company and the averment was not controverted. The Federal Government of Nigeria has interest in the joint venture operated by SPDC. Senior counsel observed that third parties' interests are equity's darling and courts jealously protect them.
In the alternative, senior counsel urged that if it is decided in UBN Ltd. v Odusote Bookstore Ltd. (supra) that the only occasion when it would be proper to order unconditional stay of execution pending appeal, will be when the judgment creditor consents to the court seized with the matter making the order, this court should overrule the decision to that extent.
Learned counsel submitted that this court will overrule its previous decision where it is shown that:-
(i) the previous decision is clearly wrong and there is real likelihood of injustice being perpetrated; or
(ii) that the previous decision was given per incuriam; or
(iii) that a broad issue of policy was involved.
He cited Okulate v Awosanya (2000) 1 SC 107; (2000) 2 NWLR (Part 646) 530 at 543; Adisa v Oyinwola (2000) 6 SC (Part II) 47; (2000) 10 NWLR (Part 746) 116. He further observed that this court will overrule its earlier decision where same is capable of fettering the exercise of judicial discretion by a court. See: Adisa v Oyinwola (supra).
Senior counsel submitted that it will perpetrate injustice and also fetter the exercise of judicial discretion by the courts if it is upheld that the only occasion when it would be proper to order unconditional stay of execution pending appeal will be when the judgment creditor consents to the court seized with the matter making the order. He felt that such will put the grant of unconditional stay of execution in deserving cases at the whims and caprices of the judgment creditor who will just need to say I do not consent. He asserted that the opinion expressed by the learned justice in UBN v Odusote Bookstore Ltd. (supra) did not require the judgment creditor to give reason for not consenting and that makes it impossible to challenge the refusal of the judgement creditor withholding his consent.
Senior counsel further asserted that it is also an issue of public policy to see that judicial discretion of the court is not put in the hands of interested parties to a case before the court. The court will be abdicating its constitutional role of adjudication if the court subjects the exercise of its judicial discretion to the whims and caprices of the interested parties.
The heat generated in respect of this point is intense. In the ruling of the court below delivered on 10th May, 2007, Adekeye, JCA, (as she then was), said:-
I do not agree that the judgment creditor must consent to all applications for stay of monetary judgment. This is only required where the judgment debtor is a bank or financial institution.
In UBN Ltd. v Odusote Bookstore Ltd. (supra) at Page 151, the learned justice stated-
Finally, in my opinion, the only occasion when it would be proper to order that a bank that is a judgment debtor could retain the judgment debt, in an order for stay of execution pending appeal, will be when the judgment debtor (sic) consents to the court seized with the matter making the order.
Earlier on at Page 150, the, learned justice stated as follows:-
To allow the bank to retain the judgment debt as deposit notwithstanding that it will pay commercial interest on the amount, is in my opinion tantamount to giving it undue advantage over the judgment creditor. For it is a matter of common knowledge that the bank would employ the funds in charging higher interests than could accrue to the judgment creditor in the event of the bank's appeal failing.
At Page 151 C-D, the learned justice finally capped same as follows: -
In the present case, it is common ground, as the parties have agreed in the alternative to their conflicting submissions that the judgment debt should be deposited in either the First Bank of Nigeria Plc., or the United Bank of Africa Plc. Consequently, I am satisfied that on the whole there are special circumstances to warrant the grant of the application for stay of execution pending the appeal in this court. Accordingly, the application is hereby granted on the following terms ......
In matters of judicial discretion, since the facts of two cases are not always the same, this court does not make it a practice to lay down rules or principles to fetter the exercise of its discretion or that of the lower courts. In matters of discretion, no one case is authority for the other. A court cannot be bound by a previous decision to exercise its discretion in regimented way, because that would be as it were, putting an end to discretion. See: Akujinwa v Nwaonuma (1998) 11-12 SC 112; (1998) 13 NWLR (Part 583) 632 at 647; Attorney-General Rivers v Ude (2006) 6-7 S.C. 131; (2006) 17 NWLR (Part 1008) 436 at 461; Odusote v Odusote (1971) 1 All NLR 219 at 222.
Judicial discretion is a sacred power which inheres to a judge. It is an armour which the judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any form of prompting by the parties.
Discretion had been defined to mean a power or right conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v Whitman R.11, 431 A.2d 1229,1233; Blacks Law Dictionary, Sixth Edition Page 466.
It is clear that a judicial officer should exercise his discretion judicially and judiciously as well. See: University of Lagos v Olaniyan(1985) 16 NSCC (Part 1) 98 at 113; Eronini v lheuko (1989) 3 SC (Part I) 30; (1989) 2 NSCC (Part 1) 503 at 313;
Let me say it in passing that this court does not condone a situation where an earlier decision is capable of fettering the exercise of judicial discretion. Judicial discretion is a vital tool in the administration of justice. See: Adisa v Oyinwola (supra)
It is my considered opinion that the decision of this court UBN v Odusote Bookstore Ltd. (supra) did not lay it down as a general principle of law that in all money judgments, the consent of judgment creditors must be secured to enable judges make order of stay of execution. It is when the judgment debtor is a bank or a financial institution and a proposal is being made as to where the judgment debt would be kept pending determination of the appeal that parties, but more especially the judgment creditor, will have an input.
In effect, I agree with the stance o