UNIVERSITY OF ILORIN TEACHING HOSPITAL v DR. DELE ABEGUNDE (CA/IL/M.60/2011) [2012] NGSC 4 (13 June 2012)

TIJJANI ABDULLAHI (PJ)

....... Justice, Court of Appeal

IGNATIUS IGWE AGUBE

....... Justice, Court of Appeal

OBANDE FESTUS OGBUINYA

....... Justice, Court of Appeal

UNIVERSITY OF ILORIN TEACHING HOSPITAL

Appellants

DR. DELE ABEGUNDE 
(Suing for himself and on behalf of the family Late Chief Ernest Omotade Abegunde)

Respondents

RATIO DECIDENDI

1

INTERPRETATION OF STATUTE - SECTION 17 OF THE COURT OF APPEAL ACT, 2004: Interpretation of Section 17 of the Court of Appeal Act, 2004 with respect to factors to be considered in granting or refusing an Application for unconditional stay of execution of monetary Judgment of a Court of competent jurisdiction and whether Court may direct a departure from the Rules in anywhere it is required in the interest of justice

"For the avoidance of doubt, section 17 of the 2004 provides as follows:- "17. An appeal under this part of this Act shall not operate as a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court". Also there is no doubt that the Supreme Court per Coker, JSC, had held in Construzioni Generali Farsura Cogefar-S.O.A. v. Nigeria pott Authority and Joseph warren Mcewen (1972) 12 S.C. 107 at 110-111 while construing section 24 of the Supreme Court Act which is in pari materia with section 17 above quoted that: "We are in agreement with learned Counsel for the applicant that Section 24 of the Supreme Court Act does give this Court the power to order a stay of execution. We are also in igreement with him that this Court has the necessary jurisdiction to make an order for stay of execution on terms or conditions which may differ from those imposed by the Court below in granting a similar prayer. These matters were given consideration in the case of Oyeti v. Soremekun (1963) ALL NLR 349 where at page 351 this Court made the following observations:- "It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High Court has been granted in the High Court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High Court are onerous or, for any other reason, are found unreasonable." Furthermore, the earlier dictum of Ademola CJN in Bisi Oyeti V. Afolabi Soremekun (1963) 1 ALL NLR 349 at 350-351; is quite instructive on the point in issue when he posited thus: "It was argued that in accordance with order 7 Rule 37 (supra), an application of this nature can be made to this court only if a previous application had been refused in the High court. As this is not the case here, the submission is that in case of dissatisfaction of the order made in the High Court, the Applicant may only appeal to this Court." We are of the view that whilst proceedings by way of appeal to this court may be a remedy in such cases, it is not the only remedy. The provisions of section 24 of the Federal Supreme Court Act, dealing with stay of execution, are worth of consideration. They state:- "24. An appeal under this part (i.e. in civil cases) shall not operate as a stay of execution, either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court." It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High court has been granted in the High court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High court are onerous or, for any other reason, are found unreasonable". Learned counsel for the Respondent has rightly cited Solanke v. Somefun (1974) 1 S.C 141 at 148; where per Sowemimo, JSC, emphasized on the need for Rules of court to be obeyed or complied with and that any party or counsel seeking the exercise of the Court's discretionary power, must bring his case within the purview of the Rules upon which the Application is predicated and that upon failure to do so, it is but fair and right that the Court should refuse to exercise her discretionary power in favour of such a party. See also Owners of The M. V. "Arabella" v. Nigeria Agricultural Insurance Corporation (2008)5 SCNJ 109 at 120; cited by the learned counsel for the Respondent; Auto Import Export v. Adebayo (2003) 2 M.J.S.C 44 at 60; Ibodo v. Enarofia (1980) 5-7 S.C 42 and Oforkire v. Maduike (2003) 5 NWLR (Pt. 812) at 181 para. C. However, the omission or error in stating the Rules under which the Application is brought (assuming there is any such omission which is not the case herein), is not such an irregularity which goes to the substance of the application so as to vitiate it as purported by the learned counsel for the Respondent. See per Tobi, JSC, who posited in Abubakar v. Yar'Adua (2008) 4 NWLR (pt. 1078) 467 at 510 paras. H, that as a matter of our adjectival law, and by the state of the noncompliance Rules, the Courts will regard certain acts of conducts of noncompliance as mere irregularity which could be waived in the interest of Justice, (assuming the learned Senior Counsel for the Appellant/Applicant was wrong in citing Order 4 Rules 6 and 11 (which is not the case). For instance Rule 6 of Order 4 of the Court of Appeal Rules, 2011 empowers the Court to make orders by injunctions or appointment of a Receiver or Manager, and such other necessary orders for the protection of property or person, pending the determination of an appeal to it, even though no application for such an order was made in the lower Court. The application for unconditional stay of execution is such an application envisaged by the Rule above cited. Again, the Learned Counsel for the Respondent cannot seriously contend that Rule 11 of Order 4 does not apply to the prayers sought in this Application. That Rule for instance charges and empowers the Court to be seised of the whole proceedings between the parties once an appeal had been entered and until finally disposed of and except as otherwise provided by the Rules, every Application therein shall be made to the Court and not to the Court below, but any Application may be filed in the Court below for transmission to the Court. From the foregoing provisions, the Rules 6 and 11 cover this Application. Assuming however that the prayers in the motion are not covered by the afore-stated Rules, let it be emphasized for the umpteenth time, that the era of strict and slavish adherence to technical and mechanical Rules of procedure, is gone for good as Courts nowadays are more disposed to doing substantial justice. This position of the Law is encapsulated in Order 4 Rule 6 and more particularly Order 20 Rules 2 and 3(1) which provides that the Court may direct a departure from the Rules in anywhere this is required in the interest of justice. Furthermore, the Court may, in exceptional circumstances, and where it considers it in the interest of justice so to do, waive compliance with the Rules or any part thereof. The above provisions of the Rules, is the essence of the dictum of Tobi, JSC, in Abubakar v. Yar'Adua (supra) at 511 paras E.G; that although Rules of Court are meant to be obeyed for that is why they were made, they should not be slavishly obeyed to the extent that justice in the case is asphyxiated, muzzled, destroyed and jettisoned over-board for the barometer for measuring a judicial process by the public is whether justice has been done to the parties, therefore his Lordship had admonished the Courts to do justice even if some harm is done to some procedural Rule like the one canvassed. See again Orient Bank (Nig) Plc. v. Bilante International Ltd. (1997) 8 NWLR (pt 155) Per Tobi, JCA, (as he then was) explaining the purport of the provision of Order 19 Rules 2 and 3(2) of the Court of Appeal Rules which were in pari materia with Order 20 Rules 2 and 3(1) of the current Court of Appeal Rules, 2011. On the whole, the submission of the learned Counsel to the Respondent on the preliminary point, is erroneous in that by the provisions of Sections 15 and 17 of the Court of Appeal Act alone, the Application is competent and can be sustained if the legal requirements are fulfilled. This takes us to the substance of the Application. It would appear that the learned Counsel on both sides of the divide are ad idem and the learned Senior Advocate has rightly cited the locus classicus of Vaswani Trading Company v. Savalakh & Company (1972) 12 SC 77 at 81-82 wherein Coker, JSC (as he then was), stated the law in these words:- "When the order or Judgment of a lower Court is not manifestly illegal or wrong, it is right for a Court of Appeal to presume that the order or Judgment appealed against is correct or rightly made until the contrary is proved or established and for this reason the Court, and indeed any Court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observations of Bowen L.J. in The Annot Lyle (1886) 11 P. 114 at P. 116). We take it that the word "special" in this context is not used in antithesis to the words "common" or "normal" for that would be tantamount to pre-judging the appeal on a determination of an application for stay of execution. When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving 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 the Court, especially the Court of Appeal, a situation of complete hopelessness or render nugatory any order or orders of the Court of Appeal or Appeal or paralyse, 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 the case, and in particular even if the Appellant succeeds in the Court of Appeal, there will be no return to the status quo." The respective learned counsel for the parties have also rightly enunciated position of the law on the principles informing the grant or refusal of an Application for stay and in particular the learned counsel for the Respondent has hit the nail on the head when he posited citing the authority of SPDC v. Arho-Joe (Nig.) Ltd. (2003) FWLR (pt.184) 307 at 314 and Governor of Oyo State v. Akinyemi (2002) FWLR (pt. 120) 1761 at 1772; to submit that the grant of the application calls for the judicious and judicial exercise of the Court's discretion predicated on the juxtaposition of the competing interests of the parties. As I said elsewhere in University of Ilorin v. Adesina (2008) All FWLR (Pt. 400) 709 at 726-730; particularly at page 727 paras. D-H and 728 paras. A-H; the factors to be taken into consideration before a Court can grant or refuse an Application of this sort have been the subject of decisions in a welter of cases within our jurisprudence. Suffice it to say however, by way of emphasis that (see for instance the case of Vaswani Trading & Co. Ltd. v. Savalakh & co. (supra); Wey V. Wey (1975) 1 SC. 1 and Odufuye v. Fatoke (1975) 1 NMLR 222); the Court does not form the habit of depriving a successful litigant of the fruits of his Judgment and thus seldom grants a stay of execution of the Judgment of a Court of competent jurisdiction which is always presumed to be sacrosanct until set aside by the court of Appeal. Thus, until the Applicant, as in this case, has been able to show special and exceptional circumstances, this court even in its appellate jurisdiction cannot deprive the Plaintiff/Respondent albeit momentarily of the fruits of her victory. Generally speaking, the basic factors to be taken into consideration in granting or refusing an Application for stay of execution of a Judgment of a Court of competent jurisdiction are as follows: 1. There must be the existence of a valid appeal. See Mobil Oil Ltd. v. Agadiagho (1988) 4 SCNJ 174 and Martin v Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt. 74) 75. 2. The Grounds of appeal must be substantial and weighty and raise recondite point of law which are capable of tilting a scale of justice one way or the other. See Ajomale v. Yaduat (No. 2) (2003) FWLR (Pt. 182) 1913 at 1935; Balogun v. Balogun (1969) 1 All NLR 349 at 351. 3. Conduct of the parties it has been held that since stay of execution is an equitable relief the parties must come with clean hands and in particular the Applicant must not be blame-worthy either in his previous and present conduct to the Court and other parties to the case in the manner of the presentation of his application. See Momah v. VAB Petroleum Incorporated (2000) FWLR (Pt 5) 806 S.C; Ikeja Real Estate Ltd. v. N.B.N. Ltd. (2000) FWLR (Pt. 9) 1448 C.A and A.G Anambra State v. Onitsha North Local Government (2001) FWLR (pt. 45) 622; where the Supreme Court in spite of the weighty grounds of the appeal refused to grant the application for stay on the ground of the unpalatable conduct of the Applicant. 4. Existence of special circumstances and the need to protect the res - the term "special circumstance" may include: (a) Where the Ground of appeal is such that if the appeal eventually succeeds after the refusal of stay, an irreparable damage, injury or injustice shall have been occasioned such that there can be no return to the status quo ante; See Dr. Dada v. Unilag (1971) UILR 344; Utilgas Nigeria & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 S.C. 105; (1974) 1 ALL NLR (pt.2) 47. (b) That the res shall have gone so that the successful party will reap an empty victory if the appeal is in his favour. See Wilson v. Church (No. 2) 1879 12 Ch. D. 454 at 458 and Iriri v. Erharhobare (1979) 3 L.R.N 261; Vicent v. Xtodeus (1993) 6 SCNJ (Pt. 11) 283. (c) The need to prevent foisting a situation of complete hopelessness and helplessness so as to render the Judgment of the Court of Appeal nugatory. See Kigo (Nig) Ltd. v. Holman Bros. (Nig) Ltd. (1980) 5-7 SC, 60; Fatoyinbo v. Osadenyi (2002) 5 SCNJ 160 at 174 and Vaswani Trading Co., v. Savalakh Co., (Supra). (d) Finally, where the Judgment is in respect of money and costs there is a reasonable probability of recovering these back from the Respondent if the Appeal succeeds. See Lawrence Ogboeju Ebegbuna v. J. O. Ebegbuna (1974) 3 W.S.C.A. 29. Poverty is not a special ground for granting the stay of execution except where the effect will be to deprive the Appellant of the ability to prosecute his appeal. Nwajekwu Emefisi & Ors v. Mbanugwo & Ors (1970-71) 1 ECSLR 100, Lijadu v. Lijadu (1991) 1 NWLR 627 at 643; Okafor V. Nnaife (1987) 4 NWLR 139; Nwabueze v. Nwosu (1988) 4 NWLR 257 (S.C.). In recent times the Courts have held that the mere assertion by the Applicant that, if the judgment-debt is satisfied he cannot successively prosecute the appeal is not enough to warrant the grant of his application for stay of execution, so also will his assertion on the enormity and substantiality of the debt not constitute special circumstance for the grant of his application. In Anyaogu & Ors. V. Our Line Limited (1993) 4 NWLR (Pt. 289) 607; Ugwu & Ors. V. Ogbuzuru & 3 Ors. (1973) 3 ECSLR (Pt 11) 253; Abubakar v. Ali (1999) 1 NWLR (Pt. 588) 613 C.A. University of Ilorin v. Akinola (2007) All FWLR (Pt 372) 1844 C.A; Mobil Producing Nig. Unlimited v. Monokpono (2001) FWLR (Pt. 49) 1516 and Governor of Oyo State v. Akinyemi (2002) FWLR (Pt. 120) 1761; it was variously held that for a party to convince the Court to grant a stay of execution on ground of his financial disability to satisfy a monetary debt, he must disclose the sources of his income with the utmost candour and also the magnitude of his liabilities. Indeed, as far as the grant of stay of execution of monetary Judgment is concerned I reiterate our stand in Unilorin v. Adesina (No. 7) (supra) at pages 727-728; quoting the illuminating dictum of Adekeye, JCA (as he then was) in Oladimeji-Ise-Oluwa Ltd. v. N.D. Ltd. (2001) 18 WRN 28 at 36-37 that: "In a judgment involving money the terms upon which the Court would grant a stay are easier to determine than in other judgments where the res is perishable or prone to alteration. The terms-are-briefly stated thus: 1. Whether making the applicant to satisfy the judgment would make his financial position such that he could not prosecute the appeal. 2. Whether it would be difficult to secure the refund of the judgment/debt and costs from the respondent if the appeal succeeds. For this purpose, the financial ability of the respondent is taken into account- Considerations in favour of the respondent are as follows:- (a) The fact that the respondent is entitled to reap the fruits of the judgment for that is the whole essence of litigation. (b) The court has a duty to ensure that the successful party reaps the benefit of his successful litigation. (c) The applicant seeking to deprive a successful litigant of the fruit of his labour must show substantial reasons why the court must grant the application". See also Per Abdullahi, JCA, in Ikere Local Government v. Adelusi (2008) All FWLR (Pt. 404) 1534; Okonkwo v. Nyamoko (2007) All FWLR (Pt 365) 608 and Odedeyi V. Odedeyi (2000) FWLR (Pt. 3) 489.or the avoidance of doubt, section 17 of the Court of Appeal Act, 2004 provides as follows:- "17. An appeal under this part of this Act shall not operate as a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of Court". Per AGUBE, J.C.A. (Pp. 32-44, paras. F-B) - read in context

2

JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT: Effect of weighty and arguable Grounds of Appeal of an Applicant for stay of execution of the Judgment of a Court

"All said and done, the authorities are now replete and settled that no matter how weighty the Grounds of Appeal of an Applicant for stay are, that alone without other factors which had earlier been highlighted, cannot ground the grant of the Appellant/Applicant's Application for stay of execution of the Judgment of a Court of law which is deemed sacrosanct; unless and until special and exceptional circumstances have been furnished by the Applicant. See the dictum of Sanusi, JCA in Ikeja Real Estate Limited v. National Bank of Nigeria (2000) All FWLR (pt 9) 1448 at 1453; which I adopt as mine. In this case, the Applicant has not shown any other special or exceptional circumstance(s) that would warrant this Honourable Court to depart from the position taken by the learned trial Judge and to grant this application for unconditional stay of execution of the Judgment of the lower Court." Per AGUBE, J.C.A. (P. 56, paras. B-F) - read in context

3

JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT: Whether for an applicant for stay of execution to earn the favourable discretion of a Court, he must prove by an affidavit, special or exceptional circumstance in order for a Court to properly exercise that discretion

"Indubitably, for an applicant for stay of execution to earn the favourable discretion of a court, he must, amply, demonstrate, by dint of an affidavit, special or exceptional circumstance which a court will use as a springboard for its judicious and judicial exercise of discretion. In the eyes of the law, a special or an exceptional circumstance is: "a peculiar or unique circumstance which is additional to the ordinary state of affairs", See Nika Fishing vs. v Lavina Corp (2008) 35 NSCQR 1 at 39, Per Tobi JSC; N.I.W.A. v. SPDCN Ltd. (2008) 13 NWLR (Pt. 1103) 48. Here, the applicant's supplication is for a variation of the conditional order of stay of execution, deposition of the judgment debt with the registrar of the lower court for payment into an interest yielding account with First Bank of Nigeria Plc or United Bank for Africa Plc within Ilorin, to an unconditional stay of the lower court's judgment debt. Now, I have given an intimate study/scrutiny to the applicant's affidavit. Curiously, throughout the length and breath of that affidavit, I cannot locate, or even stumble or, where it averred facts touching on the impossibility of return of the judgment sum to it should its appeal succeed. In the case of Olunloyo v. Adeniran (2001) 4 NWLR (Pt. 734) 699 at 714 Uwaifo, JSC, lucidly stated: "There can be no argument that a court has discretion to stay the execution of its judgment or that of another court.... But in order to properly exercise that discretion, it does not as rule have to base it on matters of defence of law or relief in equity which themselves in appropriate circumstances must be raised in the action itself. There must be special circumstances disclosed by the applicant seeking stay which render it inexpedient to enforce the judgment. The special circumstances which the court will take into account to entitle it to a stay of execution of the judgment are, as a general rule, such circumstances which go to the enforcement of the judgment and not those which go merely to its correctness...." Per OGBUINYA, J.C.A. ( Pp. 58-59, paras. A-D) - read in context

4

JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT: Required conduct or attitude of parties in an application for a stay of execution of execution of the Judgment of a Court

"Talking of conduct of parties, the Applicant as has earlier been noted has been accused of unpalatable conduct calculated to pervert the cause of justice in paragraphs 11, 14, 15, 16 and 17 of the Respondent's Counter-Affidavit which was not controverted. I reiterate what I said earlier that, an application for stay of execution calls for the exercise of the Court's equitable jurisdiction; hence parties herein must come to court with clean hands. The Appellant/Applicant in this case at least as at when this application was filed, had not transmitted the Record of Appeal to this Court neither had she filed her Brief of Arguments and since she is the one desperately seeking the court's discretion, she must be completely exonerated from any blame, either in his previous and present attitude to the Court or his conduct before it. She also should be seen to be wary of any untoward conduct or attitude towards other parties to the case or in the manner she has presented her application for a stay of execution to the court. See Okoya v. Santilli (1990) 3 SCNJ 83; Momah v. VAB Petroleum Inc (2000) FWLR (pt. 5)806 S.C.; N. I.P.S.S v. Osigwe (2008) 6 NWLR (pt 1083) 239 C.A.; Ikeja Real Estate Limited v. N.B.N. Limited (2000) FWLR (pt. 9) 1148 C.A.; Delta v. Wema Bank Limited (1999) 4 NWLR (pt 501) 624 and Lijadu (1991) 1 NWLR (pt. 169) 621." Per AGUBE, J.C.A. (Pp. 51-52, paras. F-E) - read in context