3PLR – MICHAEL KAASE AONDOAKAA, SAN V. HON. EMMANUEL BASSEY OBOT & ANOR

Published by Law Nigeria Admin at October 22, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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MICHAEL KAASE AONDOAKAA, SAN

V. HON. EMMANUEL BASSEY OBOT & ANOR.

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 17TH DAY OF JUNE, 2011

CA/C/94/2010

3PLR/2011/59 (CA)

OTHER CITATIONS

BEFORE THEIR LORDSHIPS

JA’FARU MIKA’ILU, JCA

MASSOUD ABDULRAHMAN OREDOLA, JCA

ISAIAH OLUFEMI AKEJU, JCA

BETWEEN

MICHAEL KAASE AONDOAKAA, SAN – Appellants

AND

HON. EMMANUEL BASSEY OBOT
ATTORNEY-GENERAL OF THE FEDERATION & MINISTRY OF JUSTICE – Respondents

REPRESENTATION

J. Yaji Esq. – For Appellant

AND

Uwemedimo Nwoko Esq. – for the 1st Respondent

For Respondent

MAIN ISSUES

WORDS AND PHRASES – “EXECUTORY JUDGMENT”: Definition of an “executory judgment”

“In Okoya vs. Santilli (1990) 1 NSCC 21 (pt.1) 367, the supreme court explained an executory judgment at page 406 as follows: “An executory judgment or order has coercive force and declares the respective rights of the parties and proceeds to order the defendant to act in a particular namely to pay damages, or refrain from interfering with plaintiff’s right and such order being enforceable by execution if disobeyed.” The judgment of the lower court in the instant application viewed holistically is an enforceable judgment as even the declaration therein that the 2nd defendant (Applicant) is not a fit and competent person to hold office is a complete and binding order.” Per AKEJU, J.C.A. (Pp.27-28, Paras.D-A)

COURT – DISCRETION OF COURT: When can the exercise of discretion by a Court be said to be judiciously exercised in an appeal

“… where an applicant has shown that substantial issues of law do exist in the appeal, it is a good and judicious exercise of the court’s discretion to order that matters be kept in status quo pending the resolution of those issues of law, see utilgas Nigerian & overseas co. Ltd. v. Pan African Bank Ltd. (1974) NSCC 393; Martins vs. Nicannar Food co. Ltd. & Anor (1988) 1 NSCC 613; Josien Holdings Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt. 371) 254.” Per AKEJU, J.C.A. (Pp.31-32, Paras.F-A)

COURT – DISCRETION OF COURT: Whether in the exercise of discretion a court ought to consider all that is relevant to the case

“The court that is called upon to exercise discretion must do so not only judicially and judiciously but reasonably and wisely too by giving consideration to all the materials relevant to the case and the appropriate law relating thereto. see University of Lagos vs. Aigoro (1985) 1 NWLR (pt. 1) 143.” Per AKEJU, J.C.A. (P.18, Paras.E-F)

COURT – DISCRETIONARY POWER OF COURT: What the court must consider in exercising its discretionary power

“In the exercise of its discretionary power, the court must consider the competing interests of the parties to justice, the right of the successful litigant to reap the fruits of his judgment and the need to ensure that the res is preserved so as not to render any decision of the court nugatory. It is also important that the Applicant is not denied of his Constitutional right of appeal.” Per AKEJU, J.C.A. (Pp.30-31, Paras.F-A)

PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION: What a party seeking the grant of a stay of execution must show

“The time honoured principle to be borne in mind is that a successful litigant is not to be deprived of the fruits of his victory in litigation, except where an applicant has shown exceptional or special circumstances warranting such deprivation. The onus is therefore on a party seeking the stay of execution to show that exceptional or special circumstances exist that will make the granting of the application desirable. See Vaswani Trading Co. Ltd, vs. Savalakh & Co. (1972) 12 SC 77; Balogun vs. Balogun (1969) 1 All NLR 349; Odedeyi vs. odedeyi (2000) 2 sc 93; Momah vs. VAB Petroleum Inc. (2000) 2 SC 142.” Per AKEJU, J.C.A. (Pp.19-20, Paras.F-B)

PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION: Guiding principles for the grant or refusal of an application for stay of execution

“In the exercise of its discretion to grant or refuse an application for stay of execution, the court is guided by some principles. It was stated by Fabiyi JSC in N.N.P.C v. Famfa oil Limited (2009) All FWLR (pt 480) 604 at 616 that: “The principles that should guide the courts in application for a stay of execution have been reiterated in many decisions of this court. Basically, a judgment creditor is entitled to have the fruits of his judgment. And so court of Appeal should not grant a stay unless there are special or strong circumstances for doing so. There must be some collateral circumstances and in some cases inherent matters which may, unless the order of stay is granted, destroy the subject matter of the proceedings or foist upon the court especially the court of Appeal, a situation of complete helplessness or render nugatory the order of the court of appeal or paralyze, in one way or the order, 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 could be no return to the status quo; Vaswani Trading & co. vs. Savalahk & co. (1972) 1 All NLR (pt.II) 483; (1972) 12 SC 7; (2000) FWLR (pt. 28) 2174.” Per AKEJU, J.C.A. (Pp.25-26, Paras.F-D)

INTERPRETATION OF STATUTE – ORDER 17 RULE 11 OF THE COURT OF APPEAL RULES 2007: Interpretation of the provisions of Order 17 Rule 11 of the Court of Appeal Rules 2007

“Under and by virtue of Order 17 Rule 11 of the court of Appeal Rules 2007 (the applicable Rules to this motion), this court, has the power in appropriate circumstances to grant accelerated hearing of an appeal. The Rule provides that: “The court may, where it considers the circumstances of an appeal to be exceptional or where the hearing of an appear ought to be accelerated in the interest or justice, waive compliance with the provisions of this order in so far as they relate to the preparation and filing of briefs of argument either wholly or in part or reduce the time limits specified in this order, to such extent as the court may deem reasonable in the circumstances of the case.” The desire of an Appellant to have the appeal heard on accelerated basis is in my view in consonance with the right of fair hearing guaranteed under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 that in the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal.” Per AKEJU, J.C.A. (Pp.18-19, Paras.F-D)

PRACTICE AND PROCEDURE – SERVICE OF PROCESS: Whether the issue of service of process is fundamental to adjudication

“The issue of service is quite fundamental to adjudication as a court will be incompetent to adjudicate over, or make orders in a matter in which the service of process had not been ascertained. Any such order will be a nullity and any person affected thereby will be entitled ex debito justitiae to have it set aside. see Ebimonure vs. Erinosho (1966) 1 All NLR 250.” Per AKEJU, J.C.A. (P.32, Paras.B-D)

MAIN JUDGMENT

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment):

The 1st Respondent herein was the plaintiff in suit No.FHC/CA/CS/50/2009 which he commenced through the originating summons filed at the calabar Division of the Federal High court on 15/5/2009 against the 2nd Respondent and the Applicant as the 1st and 2nd Defendants respectively for the following reliefs:

“AND the plaintiff seeks the following declarations:

That the 2nd Defendant undermined and/or subverted the rule of law, the due administration of justice and the independence, authority and integrity of the judiciary in the letter of 8th January 2008, and 16th February, 2009 written by him in the capacity of the 1st Defendant.
That the 2nd Defendant is not a competent, fit and proper person to hold and/or continue to hold office as the 1st Defendant having regards to oaths of Allegiance and office.
N100,000,000.00 damages against the Defendants jointly and severally.
Perpetual injunction restraining the 2nd Defendant from further and/or continued occupation of the office of the 1st Defendant and/or the discharge of the function of the said office.”

In the judgment delivered on 1/6/2010, the Federal High court, Division, per Hon, Justice A.F.A. Ademola ordered as follows:

“1. A declaration is hereby made that the 2nd Defendant undermined and subverted the rule of law, the due administration of justice and integrity of the judiciary in the letters of 8th January, 2008 and 16th February 2009 written by him in the capacity of the Defendant.

A declaration is hereby made that 2nd Defendant is not a competent, fit and proper person to hold office as the 1st Defendant having regards to the oaths of Allegiance and office.
N50,000,000,00 exemplary damages is hereby awarded against the 1st and 2nd Defendants in favour of the plaintiff.
A perpetual injunction is hereby made restraining the 2nd Defendant from occupying/holding the office of the Attorney General of the Federation and Minister of Justice and public offices in the Federal Republic of Nigeria.
It is further ordered that in the light of this judgment as well as section 150 (1) of the constitution of the Federal Republic of Nigeria 1999, the 2nd Defendant, Michael Kaase Aondoakaa, SAN be referred to the Nigerian Bar Association for appropriate disciplinary action whilst copies of this Ruling be served on the Honourable Attorney-General and Minister of Justice, and the Nigerian Bar Association.”

The Applicant as 2nd Defendant was dissatisfied with the judgment of the High court calabar, (hereinafter called the lower court) and appealed against the same through the Notice of Appeal filed on 10/6/2010 with 7 Grounds of Appeal, followed by another Notice of Appeal filed on 15/7/2010 with 15 Grounds of Appeal. In respect of the appeal, the Appellant’s Brief of Argument had been filed on 15/7/2010 before the instant application for stay of execution was filed.
By the instant motion on notice filed on 23/9/2010, the Applicant seeks the following orders:

“1. An order for STAY OF EXECUTION of the judgment/orders of the Federal High Court calabar, delivered on the 1st day of June, 2010 in suit No. FHC/CS/50/2009, pending the determination of the Appeal filed by the Appellant/Applicant to this Honourable Court.

An order of ACCELERATED HEARING of the Appeal No. CA/C/94/2010 filed by the Appellant/Applicant.
An order ABRIDGING TIME for filing briefs of argument in this appeal.
And for such further or other orders as this Honourable court may deem fit to make in the circumstances.”

The motion on notice was filed with the supporting affidavit of 15 paragraphs to which one Toryilo Akor, Male, Christian, Litigation Secretary, of No.3 Marakesh Street, wuse II Abuja deposed, while a further Affidavit was also filed on 22/11/2010.

Three documents were attached to the supporting affidavit as exhibits A (certified True copy of the judgment of the lower court); B (Notice of Appeal filed on 10/6/2010); and C (Notice of Appeal filed on 15/7/2010. The Written Addresses of the learned counsel for the Applicant settled by A. A. Ijohor, SAN & Co. was also filed with the motion.

The 1st Respondent filed a counter Affidavit of 21 paragraphs on 10/3/2011 and also fired a written Address.

This Application was heard by this court on 12/4/2011 in the presence of learned counsel for the Applicant and the 1st Respondent. They adopted and relied on the affidavit evidence and written Addresses already filed in court. T.J. Yaji Esq. for Applicant urged court to discountenance paragraphs 5, 8, 10, 13, 15, 16, 19 and 20 of the Counter Affidavit on the ground that they contain conclusion or argument and therefore offend against sections 86, 87 and 88 of the Evidence Act. He urged that the application be granted.

The learned counsel for the 1st Respondent, Uwemedimo Nwoko, argued otherwise. He referred to his counter Affidavit and submitted that there is nothing in the judgment to be stayed as orders 1 and 2 in the judgment are declaratory, and only the 3rd order is capable of being stayed. He urged that the stay be refused and the money be paid into court.
In the written address of the learned counsel for Applicant, filed with the motion, the following lone issue was formulated for determination:

“whether or not the Applicant/Appellant is entitled to the relief sought in this application.”

On this issue it was submitted that this court has the power under section 17 of the court of Appeal Act, 2004 and order 4 Rule II of the court of Appeal Rules 2007 to make an order for stay of execution of any judgment or decision from which there has been an appeal. The application is to be made by a motion on notice supported by affidavit setting forth the grounds upon which a stay of execution is sought. He submitted that in the instant case the appeal has been entered since the records of appeal have been transmitted and received in the registry of this court, citing Oyo state INEC vs. The Attorney General of oyo state & ors. (2006) All FWLR (pt. 334) 2012.

The learned SAN submitted that after an appeal has been entered and until it has been disposed of, the Court of Appeal shall be seized of the whole proceedings as between the parties thereto and every application in the appeal shall be made to the court of Appeal and not to the court below; citing Engr. Uwaifo & ors. v. Lagos state & ors (2000) 1 NWLR (pt. 1122) 341; Olatunji vs. owena Bank Plc (2001) FWLR (pt. 54) 342; Igwe Josiah Agu vs. Anyalogu (2001) 17 FWLR (pt. 68) 1247; Econet wireless Limited vs. Econet wireless Nig.Limited (2006) All FWLR (pt.300) 1601.

He submitted that the basic principle had been laid down in a long line of authorities that special circumstance must exist before a stay can be granted, citing vaswani Trading co. Ltd. vs. savalakh & co. (1972) 12SC 77; okafor vs. Nnaife (1987) 4 NWLR (pt. 64) 129; U. B. N. Ltd. vs. odusote Book store Ltd. (1994) 3 NWLR (pt.331) 129; Momah vs. VAB Petroleum Inc. (2004) 4 NWLR (pt.654) 534.

The Learned Senior Counsel conceded that the consideration of an application for stay of execution is at the discretion of the court to be exercised judicially and judiciously but submitted that it will be proper exercise of discretion to grant this application. He contended that the Notice And Grounds of Appeal attached to the supporting Affidavit as exhibit C has shown that the appeal raises issues of law which are substantial and recondite in nature and therefore should warrant the exercise of court’s discretion to grant the application. He said the issue touching on jurisdiction of the lower court has been raised as a result of non-service on the Appellant/Applicant which also deprived him of the right to fair hearing at the lower court. Another issue raised by the appeal, according to learned counsel is whether by an official act of the Attorney General of the Federation and Minister of Justice, the person occupying such office is a fit and proper person to hold or continue to hold the office having regards to the Oaths of office and Allegiance. He submitted that when the applicant has raised issue(s) in an area in which the law is to some extent recondite, it constitutes special or exceptional circumstance to grant a stay, citing Balogun vs. Balogun (1969) 1 All NLR 349; Cala Nigeria vs. Lead Merchant Bank Ltd. (2004) 5 NWLR (Pt.867) 575.

The learned SAN contended that the Appellant does not have the resources to pay the judgment debt and prosecute the appeal, though poverty simpliciter is not a special ground for granting a stay of execution, where the effect will be to deprive the Appellant of the means of prosecuting the appeal, it will be a special circumstance, citing Abdulkadiri vs. Ali (1999) 1 NWLR (pt.588) 613. He contended that the above facts constitute exceptional circumstances to justify the exercise of this court’s equitable jurisdiction and grant this application upon judicial and judicious exercise of its discretion as each case must be treated on its own peculiar facts, citing the cases of Diamond Bank Ltd. vs. P.T co. Ltd. (2001) 4 NWLR (pt. 703) 259; and B.O.N Ltd. vs. Adegoke (2006) 10 NWLR (pt. 988) 339.

He submitted that in the circumstances of this case in which the applicant has shown enough diligence in the pursuit of this appeal by filing and serving his Brief of Argument, he is entitled to the exercise of this courts discretion in his favour. He submitted also that the Applicant had deposed that he intended to contest election and that the loss to him from a refusal of this application will be more than to grant it. He urged court to hold that the Applicant will suffer more prejudice and grant this application in the interest of justice, citing Uro vs. Uwalimo (2000) FWLR (pt. 3) 414; Vaswani Trading coy. vs. Savalakh & Co. (2000) FWLR (pt. 28) 2174.

He contended that this court should, in the circumstances of this case exercise its powers under order 17 Rule II of court of Appeal Rule 2007 to direct the accelerated hearing of the appeal by abridging time since the applicant has already filed and served the Appellants Brief of Argument. The senior counsel urged this court to grant the application.

In the written Argument of the 1st Respondent, the learned counsel, Nwemedimo Nwoko Esq. raised one issue for determination:

“Whether the applicants entitled (sic) to an order staying execution of the judgment particularly the payment of the monetary award.”

The learned counsel did not oppose the prayer for accelerated hearing of the appeal and did not contest the argument that the grant or refusal of an application for stay of execution is at the discretion of the court to be exercised judicially and judiciously.

He however submitted that no issue of law that is substantial or recondite in nature has been raised In any of the grounds of appeal filed by the Applicant since the appeal is basically on alleged as well as lack of service and denial of fair hearing, lack of jurisdiction arising from alleged abuse of judicial process. He submitted that there is nothing recondite in any of these grounds to warrant the grant of stay of execution. He submitted that a ground of appeal does not become recondite just because the Appellant has tagged it so, it is recondite when it is peculiar and very strong while the fact that the Grounds of Appeal are arguable does not automatically lead to the grant of stay especially where the res is money, citing Fasel services Ltd. vs. NPA & Anor. (2001) 11 NWLR (Pt.723) 35; Denton-west vs. Muoma (2006) 6 NWLR (pt. 1083) 418.

The learned counsel contended that it is not true that the Applicant cannot pay the judgment sum and prosecute the appeal. He described the Applicant as a very rich senior Advocate of Nigeria with several choice property in both Nigeria and abroad and who handles many high profile cases; a man of stupendous wealth who cannot be prevented by Fifty Million Naira (N50,000.000.00) from prosecuting his appeal. He submitted that even if it were so, poverty is not a ground for refusal to pay judgment debt and impecuniously cannot be basis for favourable exercise of discretion to stay execution of monetary judgment. He contended that the Applicant has not proffered real evidence of his impecuniosity by presenting the evidence of his financial status as shown in his statement of Account as the court will presume affluence in favour of the Legal consultant, citing Denton-west vs. Muoma (supra), S.P.D.C. v. Okei (2007) 17 NWLR (Pt.1007) 1; Fasel Services Ltd. v. NPA & Anor. (supra).

The learned counsel submitted that the principle governing stay of execution of monetary judgment is very narrow, it is that the money should be paid to the 1st respondent or into an interest yielding account pending the determination of the appeal, on which he cited the cases of Governor, Oyo State v. Akinyemi (2003) 1 NWLR (Pt. 800) 1; Deduwa vs. Okorodudu (1974) 1 All NLR (Pt. 272) Utilgas vs. Pan African Bank Ltd. (1974) 10 SC 105; Uniport vs. Kraus Thompson organization Ltd. (1999) 11 NWLR (Pt.625) 91; Oladeji Ise-Oluwa Nig. Ltd. vs. Nigeria Distilleries Ltd. (2001)6 NWLR (Pt. 709) 427.

He submitted that the court does not make a practice of denying or depriving a successful litigant of the fruits of his victory in litigation or even delay same citing okafor vs. Nnaife (1987) 4 NWLR (pt. 64) 129; Vaswani Trading co, vs. Savalakh & co. (1972) 12 SC 77. He urged this court to reject the plea of the Applicant that payment of Fifty Million Naira (N50,000,000.00) will prevent him from pursuing his appeal, and to order the payment of the judgment sum to the 1st Respondent.

The learned counsel contended that the 1st Respondent has the means of repaying or refunding the judgment debt if the appeal is successful and it is only where the judgment sum will not be refundable by the Respondent that money judgment may be stayed; citing Guinea Insurance plc vs. Monarch Holdings Ltd. (1996) 3 NWLR (Pt. 436) 365; Kwara poly vs. Oyebamiji (2003) 3 NWLR (Pt. 1075) 459.

He urged this court to discountenance the allegation of the Applicant that he was not served personally or did not defend the suit as that fact is not relevant at the stage of this application, it only becomes relevant at the stage of the substantive appeal.

According to the learned counsel, the order of injunction restraining the Appellant from holding any public office in Nigeria is of public interest as the effect thereof is to keep the Appellant as far away from public office as possible.
He submitted that the judgment appealed against must be held to be valid even in the face of this appeal and this application for stay and there cannot be a higher assumption that the appeal will succeed than that it will fail, so the orders in the judgment remain potent, intact, and valid and must be obeyed. He urged this court to refuse this application.

Let me remark that while the law as cited by the learned counsel for the Applicant in Sections 86 and 87 are apposite, I find the content of the counter Affidavit of the 1st Respondent as emanating from facts within his knowledge as punctuated by use of “I know as a fact”.

The issue for determination in this application as derived from the formulation of issues by the two learned counsel in their Brief of Argument is whether the Applicant is entitled to the orders sought by him.

Let me start with the orders for accelerated hearing and to abridge the time for filing of Briefs of Argument.

At page 2 of the written Address of the learned counsel for 1st Respondent, the learned counsel, under 3. ARGUMENTS’ had stated thus:

“3 (1) we commence our submission by indicating that we will not oppose prayer 2 in the applicant’s motion, that is the prayer for accelerated hearing though it is obvious that the affidavit in support has not made any special or strong circumstance to warrant accelerated hearing. We leave it to the discretion of the Court.”

The court that is called upon to exercise discretion must do so not only judicially and judiciously but reasonably and wisely too by giving consideration to all the materials relevant to the case and the appropriate law relating thereto.
see University of Lagos vs. Aigoro (1985) 1 NWLR (pt. 1) 143.

Under and by virtue of Order 17 Rule 11 of the court of Appeal Rules 2007 (the applicable Rules to this motion), this court, has the power in appropriate circumstances to grant accelerated hearing of an appeal.
The Rule provides that:

“The court may, where it considers the circumstances of an appeal to be exceptional or where the hearing of an appear ought to be accelerated in the interest or justice, waive compliance with the provisions of this order in so far as they relate to the preparation and filing of briefs of argument either wholly or in part or reduce the time limits specified in this order, to such extent as the court may deem reasonable in the circumstances of the case.”

The desire of an Appellant to have the appeal heard on accelerated basis is in my view in consonance with the right of fair hearing guaranteed under section 36 (1) of The constitution of the Federal Republic of Nigeria, 1999 that in the determination of his civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal.

In the circumstances of the instant appeal and on the basis that the application for accelerated hearing is not opposed, it is proper that this court accedes to that prayer.

Again when it comes to the consideration of an application for stay of execution, the court is to exercise its discretion as to whether to grant or refuse such an application. The time honoured principle to be borne in mind is that a successful litigant is not to be deprived of the fruits of his victory in litigation, except where an applicant has shown exceptional or special circumstances warranting such deprivation. The onus is therefore on a party seeking the stay of execution to show that exceptional or special circumstances exist that will make the granting of the application desirable. See Vaswani Trading Co. Ltd, vs. Savalakh & Co. (1972) 12 SC 77; Balogun vs. Balogun (1969) 1 All NLR 349; Odedeyi vs. odedeyi (2000) 2 sc 93; Momah vs. VAB Petroleum Inc. (2000) 2 SC 142.

The parties in the instant application, i.e. the Applicant and the 1st Respondent have filed their respective Affidavit, and counter Affidavit and for the sake of clarity, I reproduce the salient portions as follows:

The Affidavit in support of the motion contains the following depositions inter alia:

“3. That I know as of fact that on the 1st day of June, 2010, the Federal High court Holden at calabar entered judgment against the Appellant/Applicant as 2nd Defendant in Suit No. FHC/CA/CS/50/2009. A copy of the said judgment is attached herewith and marked as Exhibit “A”.

That the lower trial court among other things awarded the sum of Fifty Million Naira exemplary damages in favour of the 1st Respondent against the Appellant/Applicant and 2nd Defendant.
That the Appellant/Applicant being dissatisfied with the said judgment of the lower court and in exercise of his constitutional right of appeal, instructed his counsel. A. A. Ijohor, SAN to file an Appeal against the said judgment.
That I have perused the Grounds of Appeal filed against the judgment of the Honourable lower court and I know as of fact that:

(a) The Grounds of Appeal raise substantial issues of law bordering on want of jurisdiction of the Federal High court to entertain the matter and make the orders it made and the abuse of judicial powers of the lower court.

(b) The said Grounds of Appeal disclose arguable points of law.

That I have been informed by the Appellant/Applicant on the 20th day of September, 2010 at No, 3, Marakesh Street, wuse II, Abuja at about 3.00p.m and I verily believe him to be true as follows:

(a) That on the 10th day of February, 2010, the Appellant/Applicant was no longer the Attorney General of the Federation and Minister of justice but the Minister of Special Duties.

(b) That on the 17th day of March, 2010, following the dissolution of the Federal Executive council of the Federation, the Appellant/Applicant was relieved of his appointment as a Minister of the Federal Republic of Nigeria.

(d) That as a result of the facts in paragraph 11 (b) and (c) the Appellant/Applicant does not have the resources to pay the judgment debt and prosecute his Appeal before this Hobourable Court.

(e) That the Appellant/Applicant is ready to pursue the Appeal to its logical conclusion and will not relax over it if a stay of execution is granted.

(f) That his law firm, M. K. Aondoakaa & co. has never acted privately as counsel or otherwise concerning the judgment sum of Four Hundred and Fifteen Million Naira in the Utan Bruma Victims’ case in suit No. FHC/CA/8/95.

(g) The payment of the said judgment sum of Four Hundred and Fifteen Million Naira in the Utan Bruma Victims. case in suit No. FHC/CA/8/95 was made by his predecessor in office, chief Bayo of SAN long before the Appellant/Applicant became the Attorney-General of the Federation and Minister of Justice.

(h) That the 1st Respondent deliberately failed to serve the Appellant/Applicant with the processes of court in this case so that he could misrepresent facts and obtain judgment through such misrepresentation.

(i) That the Appellant/Applicant intends to run for elective office of the senate for the Benue North-East senatorial seat during the forth coming general elections scheduled to hold in January 2011, while Primaries are already by the corner and would be adversely affected if the judgment of the lower court is not stayed.

(j) That in view of paragraph II (i), the Appellant/Applicant is desirous of an accelerated hearing of the Appeal to enable him contest in the said election for the Benue state North East senatorial Zone slated for January 2011 by the Independent National Electoral commission (INEC).

That the Appellant/Applicant’s counsel, A. A. Ijohor, SAN has already filed the Appellant’s Brief of Argument dated 14th day of July, 2010 on the 15th July 2010 and already served.
That the Appellant/Applicant has acted timely in filing the Appeal, compiling records of Appeal, and filing the Appellants’ Brief of argument and paying all the necessary fees.
That the best interest of justice will served in granting a stay of execution pending determination of the Appellant/Applicants Appeal at the Court of Appeal.”

The salient and material part of the counter Affidavit of the 1st Respondent filed on 10/3/2011 are as follows:

“2. Paragraphs 2-9 of Appellants Affidavit are true but paragraph 10 does not contain facts of the case. There is nothing recondite about want of jurisdiction or alleged abuse of judicial process when the Appellant is the real culprit.

paragraph II (a) and (b) are true. paragraph 9 (c) is a complete falsehood. The Appellant/Applicant’s Law Firm was still functioning in full capacity while he was holding public office and in fact was handling the fattest and juiciest briefs it had ever handled in its history.
The firm is called M. K. Aondoakaa & co; it is not a one man firm. Infact, it is a very large firm with many partners and juniors. The firm was still involved in the business of “Legal Practice, Legislative Lobbying, Corporate Consultancy and as investment Solicitors”.

Its letter dated 17th April, 2008 on the Utan Brama matter is here annexed and marked Exhibit EB1.

The Appellant/Applicant is very rich. He is currently serving in the united Nations and is paid in foreign currency particularly united states Dollars. The Appellant can pay the judgment sum and still comfortably prosecute this appeal.
Paragraph 11 (h) is not true. The Appellant was duly served with all processes and consistently represented throughout the trial. At the time of commencement of the suit, the Appellant personified both the Attorney-General and Michael Aondoakaa and just one service was sufficient for him in the two capacities, being one and the same person.
Throughout the trial of the case at the High court, the Appellant never complained of lack of service or improper service, even for one day.
Paragraphs 11 (i) and (t) are presumptuous and preposterous, anchored on the erroneous believe that the appeal will succeed. I know as a fact that this appeal does not in anyway dilute the potency of the subsisting judgment appealed against.
I know that it is in the character of the appellant to undermine the judgments of courts and treat with contemptuous disregard the orders of courts.
There is nothing recondite in the alleged “want of jurisdiction or abuse of judicial process” which form the applicant’s grounds of appeal.

The Applicant is a very rich senior Advocate of Nigeria and has more than enough money and assets to pay the judgment sum of N50 Million Naira into court and still prosecute his appeal comfortably.

His removal from office has nothing to do with his ability to pay except he intended to pay from public funds.
The Applicant used his private law firm to handle the Utan Brama case by writing letters and holding meetings with the parties.
The denial of the Utan Brama issue is a very belated after thought as he failed to deny this fact when confronted with it at the Federal High court and the Honourable court found that fact as admitted and true. That finding of fact cannot be challenged in this interlocutory application.
The Applicant is a man who is pathologically contemptuous towards the Courts and the institution of the judiciary and works to desecrate it and undermine the authority and integrity of judicial officers without any compunctions whatsoever.
I know as a fact that filing an appeal is no license to any person to attack the judgment of the court on the pages of newspapers. I know as a fact that it is a practical display to describe the judgment of a court as “irresponsible” as the applicant had done on pages of newspapers against the judgment in this case.”

In the exercise of its discretion to grant or refuse an application for stay of execution, the court is guided by some principles. It was stated by Fabiyi JSC in N.N.P.C v. Famfa oil Limited (2009) All FWLR (pt 480) 604 at 616 that:
“The principles that should guide the courts in application for a stay of execution have been reiterated in many decisions of this court. Basically, a judgment creditor is entitled to have the fruits of his judgment. And so court of Appeal should not grant a stay unless there are special or strong circumstances for doing so. There must be some collateral circumstances and in some cases inherent matters which may, unless the order of stay is granted, destroy the subject matter of the proceedings or foist upon the court especially the court of Appeal, a situation of complete helplessness or render nugatory the order of the court of appeal or paralyze, in one way or the order, 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 could be no return to the status quo; Vaswani Trading & co. vs. Savalahk & co. (1972) 1 All NLR (pt.II) 483; (1972) 12 SC 7; (2000) FWLR (pt. 28) 2174.”

At this stage of this interlocutory application, care must be exercised not to delve into the matters that will be decided in the substantive appeal which is already before this court, or to make pronouncements which may preempt whatever decision this court will eventually take in respect of the appeal. It suffices at this stage to state that the Applicant was at the material time of the commencement of the suit at the lower court the holder of the office of the Attorney General of the Federation and Minister of Justice. The 1st Respondent as the Plaintiff sued that office and joined the Applicant also in his personal capacity as the 2nd defendant. The judgment of the lower court delivered on 1/6/2010 was filed with this application as exhibit A and the reliefs granted by the lower court had earlier been set out in this Ruling. Two of the reliefs are declarations that touch the Applicant personally, a third relief is the amount of N50 million exemplary damages against the 1st and 2nd defendants. A perpetual injunction was ordered against the Applicant from hording not only the office as 1st defendant but any public office while a 5th relief was added that ordered that the Applicant be reported to the Nigerian Bar Association for appropriate disciplinary action.

The argument of the learned counsel for the 1st Respondent is quite valid in law that a declaratory relief not being executory does not attract an order for stay of execution. see Tukur vs. Govt. of Gongola state (1987) 1 NWLR (Pt.68) 39; In Okoya vs. Santilli (1990) 1 NSCC 21 (pt.1) 367, the supreme court explained an executory judgment at page 406 as follows:

“An executory judgment or order has coercive force and declares the respective rights of the parties and proceeds to order the defendant to act in a particular namely to pay damages, or refrain from interfering with plaintiff’s right and such order being enforceable by execution if disobeyed.”

The judgment of the lower court in the instant application viewed holistically is an enforceable judgment as even the declaration therein that the 2nd defendant (Applicant) is not a fit and competent person to hold office is a complete and binding order.

From the affidavit evidence of the Applicant and the written Address of the learned senior counsel, two circumstances have been given by the Application. The first is that he has filed his appeal now pending before this court and the appeal has raised substantial issues of law which include issues of the jurisdiction of the lower court.

I refer to paragraphs 10 (a), (b) and 11 (h) of the Affidavit in support of the motion as follows:

“10. That I have perused the Grounds of Appeal filed against the judgment of the Honourable lower court and I know as of fact that;

(b) The said Grounds of Appeal disclose arguable points of law.

That I have been informed by the Appellant/Applicant on the 20th day of September, 2010 Marakesh street, wuse II, Abuja at about 3.00p.m and I verily believe him to be true as follows:

The reaction of the 1st Respondent to the above depositions are in paragraphs 7, 8 and 14 of the counter Affidavit as follows:

“7. paragraph 11 (h) is not true. The Appellant was duly served with all processes and consistently represented throughout the trial. At the time of commencement of the suit, the Appellant personified both the Attorney General and Michael Aondoakaa and just one service was sufficient for him in the two capacities being one and the same person.

Throughout the trial of the case at the High Court, Appellant never complained of lack of service, even for one day.
There is nothing recondite in the alleged “want of jurisdiction or, abuse of judicial process” which form the Applicants, grounds of Appeal.”

The second reason or circumstance is that the Applicant does not have the resources to pay the judgment debt and prosecute his appeal before this court which is stated in paragraph 11 (b) (c) and (d) or the supporting affidavit as follows:

… (Reproduced earlier).

(b) That on the 17th day of March, 2010, following the dissolution of the Executive Council of the Federation, the Appellant/Applicant was relieved of his appointment as a Minister of the Federal Republic of Nigeria.

(d) That as a result of the facts in paragraph 11 (b) and (c), the Appellant/Applicant does not have the resources to pay the judgment debt and prosecute his appeal before this court.”

The Counter Affidavit of the 1st Respondent contains the following depositions in paragraphs 3, 4, 5, and 15 as follows:

“3. Paragraph 11(a) and (b) are true. Paragraph 9 (c) is a complete falsehood. The Appellant/Applicant’s Law Firm was still functioning in full capacity while he was holding public office and in fact was handling the fattest and juiciest briefs it had ever handfed in its history.

The firm is called M. K. Aondoakaa & co; it is not a one man firm. In fact it is a very large firm with many partners and juniors. The firm was still involved in the business of “Legal practice, Legislative Lobbying, Corporate Consultancy and as Investment Solicitors.” Its letter dated 17th April, 2008 on the Utan Brama matter is here annexed and marked Exhibit EB1.
The Appellant/Applicant is very rich. He is currently serving in the United Nations and is paid in foreign currency particularly United State Dollars. The Appellant can pay the judgment sum and still comfortably prosecute this appeal.
The Applicant is a very rich senior Advocate of Nigeria and has more than enough money and assets to pay the judgment sum of N50 million into court and still prosecute his appeal comfortably.

In the exercise of its discretionary power, the court must consider the competing interests of the parties to justice, the right of the successful litigant to reap the fruits of his judgment and the need to ensure that the res is preserved so as not to render any decision of the court nugatory. It is also important that the Applicant is not denied of his Constitutional right of appeal.

The Notice of Appeal filed by the Applicant on 15/7/2010 which is exhibit c contains 15 Grounds of appeal many of which raise issues of law dwelling extensively on jurisdiction of the lower court, lack of service of the originating process on 1st Respondent and the court granting more reliefs than were claimed by the plaintiff i.e. the 1st Respondent.

Without any attempt to pass any judgment as far as the grounds are concerned, I believe that they raise fundamental issues of constitutional law that touch on the jurisdiction and/or competence of the lower court in relation to the suit and the judgment thereon and where issues of law are involved in an appeal especially in area where the law is recondite, which may be resolved either way the court ought to keep matters in status quo so as to resolve those issues of law. In Balogun vs. Balogun (1969) 1 All NLR 341, the issue of whether payment of rent is maintenance allowance was held to constitute an arguable point to warrant the grant of stay.

Therefore where an applicant has shown that substantial issues of law do exist in the appeal, it is a good and judicious exercise of the court’s discretion to order that matters be kept in status quo pending the resolution of those issues of law, see Utilgas Nigerian & overseas co. Ltd. v. Pan African Bank Ltd. (1974) NSCC 393; Martins vs. Nicannar Food co. Ltd. & Anor (1988) 1 NSCC 613; Josien Holdings Ltd. v. Lornamead Ltd. (1995) 1 NWLR (Pt. 371) 254.

The Applicant has also raised the issue of non service of the process, or as argued by the learned counsel for the 1st Respondent, whether one service was sufficient was the Applicant as Attorney General of the Federation and Minister of Justice being the 1st defendant and as Michael Kaase Aondoakaa, SAN who was the 2nd defendant.

The issue of service is quite fundamental to adjudication as a court will be incompetent to adjudicate over, or make orders in a matter in which the service of process had not been ascertained. Any such order will be a nullity and any person affected thereby will be entitled ex debito justitiae to have it set aside. see Ebimonure vs. Erinosho (1966) 1 All NLR 250.

The second circumstance adduced by the Applicant is that he does not possess the resources to pay this N50 million exemplary damages and still prosecute the appeal. It is true as contended by the learned counsel for the 1st respondent that the Applicant has not furnished this court with the details of his earnings. It is however clear that under the Nigerian economy the amount of N50 million is beyond peanut or chicken feed and some restraint needs to be exercised in ordering its payment and receipt during the pendency of the Applicant’s appeal.

I accept and adopt the following words of my learned brother, Alagoa JCA in shell Petroleum company vs. Pessu (2008) All FWLR (pt. 404) 1550 was one that involved the award of sum of N85 million damages. In an application for stay of execution, my learned brother, Alagoa JCA made the following opined as follows at page 1560:

“what are the hard uncontested facts in the present situation? The judgment is a whopping N85,000,000.00 (eighty five million naira). If by any stretch of the imagination I won that kind of money in a lottery, my first thought would be to purchase a first class A380 Airbus ticket and visit each and every important in the world, lodging of course in the best suited of the best hotels in each city visited. There would most probably be enough left to purchase the latest limousines and cruise around with the jet setters on the paved streets of Paris, London and New York … And it may well have been a well deserved win but what if it turns out otherwise when the appeal is finally determined?”

It is however clear that the award of N50 million exemplary damages could only have been predicated upon the lower court possessing the jurisdiction which is an issue in the substantive appeal pending before this court.

For the foregoing reasons, I find merit in this application and it is granted, consequently a stay of execution of the judgment of the Federal High court, Calabar delivered on 1st June, 2010 in Suit No. FHC/CS/50/2009 is hereby ordered pending the determination of Appeal No. CA/C/94/2010 pending before this Court and the accelerated hearing of the same appeal is hereby ordered.

I make no order as to costs.

JA’AFARU MIKA’ILU, J.C.A.:

I am of the view that this application has merit and I allow it. A stay of execution of the judgment of the Federal High court, calabar delivered on 1st June, 2010 in suit No. FHC/C/50/2010 pending determination of appeal No.CA/C/94/2010 pending before this court and the order of accelerated hearing of the same are hereby given. No order as to costs.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.:

I have had the privilege of reading in draft and I agree entirely with the lead ruling just delivered by my learned brother, Isaiah Olufemi Akeju, JCA. I have nothing purposeful or purposive to add to the elucidating exposition of the position of the law on application for stay of execution, the sole issue raised for consideration in this application, vis-a-vis the given set of facts and peculiar circumstances of this particular case, coupled with the reasoning and conclusion reached thereon.

I also find that the application has merit and it is accordingly granted. I abide by the consequential orders made in the lead ruling of my learned brother, Akeju, JCA, inclusive of the order regarding costs.