3PLR – MANHATTAN INVESTMENT LIMITED V. CO-OPERATIVE DEVELOPMENT BANK PLC

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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MANHATTAN INVESTMENT LIMITED

V.

CO-OPERATIVE DEVELOPMENT BANK PLC

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 27TH DAY OF MARCH, 2009

CA/L/83/2005

3PLR/2009/48 (CA)

 

OTHER CITATIONS

 (2009) LPELR-4472 (CA)

 

BEFORE THEIR LORDSHIPS

CLARA BATA OGUNBIYI, JCA

ADZIRA GANA MSHELIA, JCA

REGINA OBIAGELI NWODO, JCA

 

BETWEEN

MANHATTAN INVESTMENT LIMITED – Appellants

 

AND

CO-OPERATIVE DEVELOPMENT BANK PLC – Respondents

 

MAIN ISSUES

1. PRACTICE AND PROCEDURE – APPLICATION FOR STAY OF EXECUTION: What the court must consider before granting the application for stay of execution

“The power of the Court to grant a Stay of Execution though discretionary is guided by some defined principles which are not exhaustive. One of these principles as established in a catalogue of decided cases is that the Court ought to consider in applications for Stay of Execution, whether there is a valid and competent pending appeal or Notice of Appeal filed.” Per NWODO, J.C.A. (P. 18, paras. B-C)

 

2. PRACTICE AND PROCEDURE – APPLICATION FOR STAY OF EXECUTION: What must an applicant seeking application for stay of execution of judgment pending an appeal show by affidavit evidence

“One of the principles that guide the court in deciding on whether to make an order for Stay of Execution pending an appeal is that the applicant must show by affidavit evidence that there is valid and competent pending appeal filed in respect of a decision he seeks stay of its execution. See Clev Josh Ltd. v. Tokimi (2008) 13 N.W.L.R. (Pt. 1104) CA 422; Consolidated Oil Ltd. v. Sumeroid (Nig.) Ltd. (1998) 8 N.W.L.R. (Pt. 561) CA 184 P.D.P.; Matins v. Akannor food Co. Ltd v. Another (1988) 2 N.W.L.R. (Pt. 74) page 75. There must be a valid Notice of Appeal to sustain an order for conditional Stay of Execution pending an appeal.” Per NWODO, J.C.A. (P. 25, paras. A-D)

 

3. PRACTICE AND PROCEDURE – APPLICATION FOR STAY OF EXECUTION: Factor to be considered in applications for Stay of Execution of Judgment debt

“One of the circumstances considered in applications for Stay of Execution of Judgment debt is the ability to pay back the money. See Guinea Insurance Plc. v. Monaco Holding (1996) 3 N.W.L.R. (pt. 436) 365.” Per NWODO, J.C.A. (P. 33, paras. E-F)

 

4. PRACTICE AND PROCEDURE – APPLICATION FOR STAY OF EXECUTION: What is the applications for stay of execution pending an appeal founded on

“Applications for Stay of Execution pending an appeal must be founded on a substantive dispute which must be clear and direct. The respondent is not restricted to appeal only against the consent judgment however he is limited to appeal against any order of the lower court constitutionally recognized as a decision. The Notice of Appeal must be tied to a decision and an application to stay that decision pending appeal.” Per NWODO, J.C.A. (P. 28, paras. A-B)

 

5. PRACTICE AND PROCEDURE – APPLICATION FOR STAY OF EXECUTION: What is required for the grant of Stay of Execution pending an appeal and the essence of stay of execution pending an appeal

“The basic principle has been set out by the Apex Court in a long line of authorities including the cases of Vaswani Trading Company v. Savalakh (1972) 12 SC 77; Okafor & Ors, V, Nnaife (1987) 4 N.W.L.R. (Pt. 64) 129 and U.B.N. Ltd. v. Odusote Bookstore Ltd. (1994) 3 N.W.L.R. (Pt. 331) 129, It is required in applications for stay that special or strong circumstances must exist before a stay could be granted, The essence is to maintain the status quo ante in order to ensure that the res which is the subject is not destroyed nor rendered the proceedings nugatory.” Per NWODO, J.C.A. (Pp. 31-32, paras. E-A)

 

6. PRACTICE AND PROCEDURE – COURT – DISCRETION OF COURT: Whether the grant or refusal a stay of execution of judgment pending appeal is at the discretion of court

“The grantors refusal of a Stay of Execution is at the discretion of the court and as such the discretion must be exercised judicially taking into consideration the competing rights of the parties to justice. Therefore a party seeking to set aside an order for Stay of Execution must show that in the circumstances presented it was unjust and inequitable to grant the order. See Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 4 S.C.N.J. 174; Okafor v. Nnaife (1987) 4 N.W.L.R. (pt. 64) 129.” Per NWODO, J.C.A. (Pp. 17-18, paras. G-A)

 

7. PRACTICE AND PROCEDURE – APPEAL – FRESH ISSUE: When can a fresh issue be raised on appeal

“Therefore once an issue is not canvassed it cannot be raised on appeal except on Jurisdiction but where an issue is canvassed but not pronounced upon it can be raised if the appeal is on the failure of the court to pronounce on an issue canvassed upon it. See U.S. Steel (Nig) Ltd v Government of Anambra State (2991) 8 NWLR (Pt. 1715) 454. Netufo v Omoolorun 2005 12NWLR Pt. 938 CA 1.” Per NWODO, J.C.A. (P. 36, paras. A-B)

 

8. PRACTICE AND PROCEDURE – APPEAL – FRESH ISSUE: Whether a fresh issue can be raised on appeal

“The law governing appellate procedure and practice is very clear, an appellate court cannot go on a frolic in search of facts outside that presented at the trial court. The court is forbidden from raising factual issues that were not canvassed at the trial court except if leave have been sought for to raise such fresh issue on appeal. See Haimisu v. COP 1998 2 NWLR (Pt. 537) CA 269 Dungus v Mbudiye 2005 8 NWLR (pt. 927 CA 292. A party can only raise a fresh issue not canvassed previously after leave of the Appellant Court has been sought and obtained the learned counsel to the Appellant submission that even without considering existence of exceptional circumstance the principle remains a life and open on appeal can only apply when leave have been obtained. See Owie v Ighiwi 2005 5 NWLR Pt. 971 SC 184” Per NWODO, J.C.A. (P. 35 paras. D-G)

9. PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL: Whether the ground of appeal in a notice of appeal must arise from the judgment appealed aganist

“This court and the Apex Court in a catalogues of decided cases have held that the grounds of appeal must of necessity arise from the judgment, ruling or decision of the court below. In Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt. 264) 156 at 184 the Supreme Court discussed the necessity for a ground of appeal to arise from the judgment appealed against and observed. “It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision”. See also Egbe v. Alhaji (1989) 1 N.W.L.R. (Pt. 128) 546 at 590, Senator Adesanya v. President of Nigeria (1981) 1 N.C.L.R.358. In Atoyebi v. Government of Oyo State (1994) 5 N.W.L.R. (Pt. 344) 290 at 305, Iguh JSC observed: “An appeal presupposes the existence of some decision which is appealed against on a given point or points. Where therefore there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate court. The appellate jurisdiction of this court inter alia is to review the decisions/and or judgments of the Court of Appeal. If therefore, an issue neither arose nor called for the determination of the Court of Appeal which therefore did not consider the issues, it seems to me that such an issue may not form the basis of an appeal to the Supreme Court and a purported appeal to this Court on such an issue will be incompetent and may be struck out. See Uhunmwangho v. Okojie (1989) 5 NWLR (Pt. 122) 471 at 491.” See also Bello v. Aruwa 1999 8 NWLR (Pt 615) 465.” Per NWODO, J.C.A. (Pp. 36-37, paras. B-C)

10. PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – INTERLOCUTORY AND FINAL JUDGMENT: Distinction between interlocutory and final judgment of court

“The question of when is a decision final or interlocutory has no statutory definition or specific answer. It is a Vexed Issue that must always be considered in the light of the peculiar decision at hand and the application that lead to same. This question has given rise to a lot of Judicial authorities and I find of great assistance the Supreme Court decision on Omonuwa v. Oshodin (1985) 2 N.W.L.R. (Pt. 10) 924 where in Karibi -Whyte JSC extensively reviewed several decided foreign and Nigerian authorities and set out certain principles as a guide to the court in making the distinction of whether a decision is final or interlocutory. In an old English case in Jerome and Peek v. Peek (1948) 2 All ER 297 the Court held that if the Learned Trial Judge had agreed to review his judgment that decision could clearly not have disposed of the rights of the parties and that a refusal to review does not because it is the judgment which is the subject of the application for review which finally disposed of the rights of the parties, not the trial Judges refusal to review”. It is obvious from the decided cases that the two main methods adopted in determining whether a decision is final or Interlocutory: are the nature of the application to the court and the nature of the orders made. The basic features of an interlocutory order are as follows (a) orders on rights not finally determined (b) Applications which are simply made for the purpose of keeping things in status till the rights are determined (c) Decisions made for the purpose of obtaining some direction of the court on how the matter before the court is to be conducted (d) An order sought or made which does not deal with the final rights of the parties but merely directs how the declarations of rights already in the decisions are all final judgment are to be worked Interlocutory in nature. See Blakey v. Layham (1889) 43 Ch. D 25 Nasco Management Service Ltd. v. A. N. Amaku Transport Ltd. (2003) 2 N.W.L.R. (Pt. 804) CA 290. An action commenced by the Writ of Summons, Originating Summons or by any other method provided in the Rules of Court is normally terminated by a Judgment of the Court determining the rights of the parties on the issues joined any other process arising after Judgment that requires a clarification of the Judgment, or Stay of Execution, are all interlocutory matters. Therefore, it is imperative to look at the nature of the application to the court and the order made. Both ought to be considered before deciding whether a decision is final or interlocutory. This is because the defect in relying on the nature of the order made alone is that it ignores the issue given rise to the application and fastens on the order which is the result of the application. Therefore, it accords with common sense to look at the relief sought as well as the final order See Omonuwa v. Oshodin (1985) 2 N. W.L.R. (Pt. 10) SC 924 Karibi-Whyte JSC had this to say: “All the cases cited agreed on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties, (and not merely an issue) in the case. Where only an issue is the subject matter of an order or appeals the determination of that Court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties, is in my respectful opinion interlocutory.” Per NWODO, J.C.A. (Pp. 20-22, paras. A-C)

11. PRACTICE AND PROCEDURE – APPEAL – NOTICE OF APPEAL: Whether the fact that an application was filed in the Court of Appeal seeking extension of time or leave to appeal can validate a Notice of Appeal which was filed out of time without leave

“The fact that an application was filed in the Court of Appeal seeking extension of time or leave to appeal cannot validate a Notice of Appeal which was filed out of time without leave as same is incompetent abinitio.” Per NWODO, J.C.A. (P. 24, paras. A-B)

12. PRACTICE AND PROCEDURE – COURT – POWER OF COURT: Whether the power of appellate courts to grant a stay of execution of judgment of lower court is statutory

“…it is pertinent to emphasis that the power of the Court of Appeal and the Supreme Court to grant a Stay of Execution is conferred by the respective Act governing the various statutory provisions creating the courts. The Court of Appeal Act specifically stated that an appeal does not operate as a stay. It presupposes there must be an appeal pending before the jurisdiction of the Appellant courts can be invoked to entertain an application for Stay of Execution.” Per NWODO, J.C.A. (P. 28, paras. E-G)

13. PRACTICE AND PROCEDURE – APPEAL – VALIDITY OF AN APPEAL: Factors to consider in ascertaining whether an appeal is valid

“In order to ascertain whether the appeal is valid, two fundamental questions ought to be answered. First is to ascertain the nature of the decision for which notice of Appeal is filed and whether it requires leave of court. Secondly the date the Notice of Appeal was filed MUST be clear and unequivocal for purpose of determining whether there is compliance within the prescribed period.” Per NWODO, J.C.A. (P. 19, paras. D-F)

 

MAIN JUDGMENT

 

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment):

This is an appeal by the Appellant against the decision of the Federal High Court Lagos Division presided by Abimbola Ogie J. on 19/01/05, wherein the Learned Trial Judge granted a conditional Stay of Execution of the ruling of the lower court delivered on 3rd of June 2004.

The Appellant was the Plaintiff Judgment Creditor in the lower court, whilst the Respondent herein was the Defendant Judgment Debtor. The Appellant had commenced a suit in the Federal High Court by Writ of Summons against the Respondent and two others: Securities and Exchange Commission and the Nigerian Stock Exchange wherein he claimed seven reliefs stated in paragraph 20 of his statement of claim, clearly stated in pages 8 & 9 of the record of Appeal. The Appellant subsequently withdrew the suit against Securities and Exchange Commission and the third Defendant the Nigerian Stock Exchange leaving the present Respondent. When the Appellant and Respondent settled amicably they filed and executed terms of settlement. The terms of settlement was entered as the consent Judgment of the court on 12th November 2002. In compliance with the consent judgment the present Respondent paid over to the Appellant, the judgment sum of N156,000,000 (One hundred and fifty-six million Naira) for transfer of its shares to the Respondent which were duly surrendered by the Appellant, the Respondent alleging statutory payments to the Nigerian Stock Exchange and other statutory authorities upon sale of shares withheld from the Appellants the sum of N2, 671, 500.00 on the basis that the amount was for payments made as statutory fees in respect of transaction involving sale of shares at the floor of the Stock Exchange. Appellant dissatisfied proceeded to the lower Court, where by Summons he sought a variation of the consent judgment. The Appellant filed a preliminary objection that the court was funtus officio and lacked powers to vary the consent judgment. The lower court upheld the objection in a ruling read on 3rd June 2004. The Respondent filed a motion for Stay of Execution of the ruling of 3rd June 2004. In the affidavit in support the Respondent exhibited the copy of the Notice of Appeal filed July 26th 2004 and a copy of a notice of motion dated 23rd July 2004 filed in the court of Appeal for extension of time to seek leave to appeal. The learned counsel for the parties addressed the court and the lower court in a considered ruling granted a conditional Stay of Execution and ordered as follows:

“The outstanding sum in dispute being N2, 671, 500.00 is deposited in the name of the Chief Registrar of Court in an interest yielding account of a first class Bank pending the hearing and determination of the appeal filed at the Court of Appeal within 30 days of this ruling.”

The Appellant aggrieved by the decision sought and obtained leave of the lower Court to appeal. Consequent upon which he filed the Notice of Appeal in the lower courts Registry on the 2nd of February 2005 containing 3 grounds of Appeal. In compliance with the rules of this court, the parties duly filed and exchanged their respective briefs of argument. On the 28th January 1990, the Appellant moved his motion filed 7/8/08 praying for an order directing that the first city monument Bank Plc be substituted for the Respondent on record that is co-operative Development Bank Plc, the application was granted and the proceedings in the Appeal became against First City Monument Bank Plc as the Respondent. Mr. F.C.A. Okoli learned counsel to the Appellant then proceeded to adopt and rely on the appellants Brief dated 31st October 2005 and filed on 21/11/05. He also adopted his reply Brief dated and filed 13th November, 2006. The learned counsel to the Respondent Mr. Akingboye adopted the Respondent’s brief dated and filed 26/6/06 which was deemed filed and served 9/11/06 pursuant to an order of this Court. Mr. Okoli from the three grounds of Appeal distilled three Issues for determination in this appeal and it reads as follows:

“1.     Was it not wrong for the Lower Court to make the order of conditional stay of execution when the Respondent did not have a valid appeal considering that:

1. its notice of appeal was filed in the Lower Court’s Registry after the expiration of the prescribed time and the Court of Appeal had not extended the time; and
2. no leave of court had been obtained to file the purported appeal which is undoubtedly interlocutory in nature and raises issues of mixed law and facts?
3. Was the application for stay of execution not ex-facie incompetent when the purported appeal is not against the consent judgment under which the judgment debt is founded but only the ruling of June 3, 2004 regarding which there is nothing to stay?
4. Did the Respondent disclose any exceptional circumstance to warrant any order of stay of execution given its failure to even allege in its affidavit, much less establish, any reasonable probability that the Appellant would be unable to repay the N2, 671, 500.00 in issue in the event that the purported appeal succeeds?”.

Whilst the Respondent formulated 3 Issues for determination as follows:

“1.     Whether the lower Court considered the existence of a valid appeal by the Respondent as a condition precedent to the grant of execution pending appeal.

2. Whether the Defendant/Respondent’s application for stay of execution was ex-facie incompetent?
3. Whether there exist any exceptional circumstances to warrant the grant of conditional stay of execution on behalf of the Respondent”.

Issue 1 formulated in the Respondents Brief is related to Issue I in the Appellants Brief whilst Issues 2 & 3 in both Briefs are in pari-material. Consequently, the Appeal will be determined on the Issues formulated by the appellant, as they are more apt to the grounds of the Appeal and comprehensive for determination of this appeal. The issues formulated by the Respondent equally within are considered within the three issues. Mr. Okoli under issue one submitted that it is settled law that the fundamental precondition for an application for Stay of Execution of judgment is the pendency of a valid appeal against the Judgment. He cited the following cases: Mobil Oil Ltd. v. Agadaigho (1988) 2 N.W.L.R. (Pt. 77) 383 and Consolidated Oil Ltd. v. Summeroid (Nig) Ltd. (1998) 8 N.W.L.R. (Pt. 561) 184.

It is his contention that the nature of the appeal is interlocutory which requires that it must be filed within 14 days of the decision sought to be reversed as provided by S. 25(2) of Court of Appeal Act. He referred to Nasco Management Services v. Amaku Transport Ltd. (2003) 2 N.W.L.R. (Pt. 804) 290. It is his submission that in the present case the grounds of appeal raise questions of mixed law and facts consequently prior leave of court must be obtained before the appeal can be filed. He referred to Ojukwu v. Onyeador (1991) 7 N.W.L.R. (Pt. 203) 286. Learned counsels further submission is that the Respondent failed to appeal within the prescribed time and appreciative of its position they filed a notice of motion in the court of appeal dated 23rd July 2004 seeking extension of time to appeal and leave to appeal, which application was not heard before the Respondent filed its Notice of Appeal in the lower court. Therefore there was no valid appeal. Mr. Akingboye learned Counsel to the Respondent responding submitted that by virtue of order 3 Rule 5 of the Court of Appeal Rules 2002 an appeal is deemed to have been brought when the Notice of Appeal has been filed in the Registry of the Court below and that in the instance case the Respondents appeal is deemed filed at the Court of Appeal. He distinguished the cases of Consolidated Oil v. Sumerond (Nig) Ltd. (1988) 8 N.W.L.R. (Pt. 561) page 184 and University of Agriculture, Makurdi v. Ogunieke (2000) 12 N.W.L.R. (Pt. 687) 360 at 367. The lower court ordered a conditional Stay of Execution pending the hearing and determination of the appeal filed at the Court of Appeal. This decision of the lower Court is the foundation of Issue one. The crux of the Appellant’s submission is that at the time the lower Court ordered the conditional Stay of Execution there was no valid appeal filed in the lower Court Registry or the Court of Appeal. The grantors refusal of a Stay of Execution is at the discretion of the court and as such the discretion must be exercised judicially taking into consideration the competing rights of the parties to justice. Therefore a party seeking to set aside an order for Stay of Execution must show that in the circumstances presented it was unjust and inequitable to grant the order. See Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) 4 S.C.N.J. 174; Okafor v. Nnaife (1987) 4 N.W.L.R. (pt. 64) 129.   The power of the Court to grant a Stay of Execution though discretionary is guided by some defined principles which are not exhaustive. One of these principles as established in a catalogue of decided cases is that the Court ought to consider in applications for Stay of Execution, whether there is a valid and competent pending appeal or Notice of Appeal filed. The Learned Trial Judge on page 66 of the record of appeal considered the submission of counsel on whether there is a valid appeal and held as follows:
“In this case Notice of Appeal Exhibit A was filed at Federal High Court on the 26th day of July, 2004 while the motion on Notice was filed on the 23rd day of July, 2004 – Exhibit C at the Court of Appeal for extension of time to obtain leave to appeal”.

The lower court held that there is a valid appeal pending. Whilst the contention of the Appellant is that the court is wrong in so holding. The ruling of the court below at page 63 of the record of Appeal shows that the application for Stay of Execution was in respect of the ruling of the lower court delivered on the 3rd of June 2004. In the affidavit in support of the motion on notice for Stay of Execution dated 29th July 2004, the deponent therein averred as follows in paragraph 6:

“6.     That being dissatisfied with the said ruling, the Applicant filed an appeal against the ruling of this Honourable Court delivered by Hon. Ogie J. on 3rd June, 2004. Attached herewith and marked “A” and “B” are copies of the Notice of Appeal and the Revenue Receipt for filing some. Also attached herewith and marked “C” is a copy of Motion for leave to appeal with attached exhibits dated 23rd day of July, 2004 and filed at the Court of Appeal”.

The Notice of Appeal referred to in the paragraph can be found on page 31 of the record of appeal which reflects the Notice of Appeal was filed on 26/7/04. Also exhibited on the same motion is a copy of the motion for leave to appeal dated 23rd July 2004 exhibiting a Notice of Appeal dated 26/7/04 in respect of the same ruling of the court. The Learned Trial Judge considered the averments in the affidavit and the exhibits before she held there was a valid appeal. In order to ascertain whether the appeal is valid, two fundamental questions ought to be answered. First is to ascertain the nature of the decision for which notice of Appeal is filed and whether it requires leave of court. Secondly the date the Notice of Appeal was filed MUST be clear and unequivocal for purpose of determining whether there is compliance within the prescribed period.

The Notice of Appeal in respect of the decision of the lower court dated 3rd June 2004 arose out of two applications consolidated for hearing. The summons on notice for variation of consent judgment and a notice of preliminary objection to hearing of the summons on the ground it is incompetent. Mr. Okoli’s submission is that the appeal against the ruling of the court on those applications is interlocutory in nature. The question of when is a decision final or interlocutory has no statutory definition or specific answer. It is a Vexed Issue that must always be considered in the light of the peculiar decision at hand and the application that lead to same. This question has given rise to a lot of Judicial authorities and I find of great assistance the Supreme Court decision on Omonuwa v. Oshodin (1985) 2 N.W.L.R. (Pt. 10) 924 where in Karibi -Whyte JSC extensively reviewed several decided foreign and Nigerian authorities and set out certain principles as a guide to the court in making the distinction of whether a decision is final or interlocutory.

In an old English case in Jerome and Peek v. Peek (1948) 2 All ER 297 the Court held that if the Learned Trial Judge had agreed to review his judgment that decision could clearly not have disposed of the rights of the parties and that a refusal to review does not because it is the judgment which is the subject of the application for review which finally disposed of the rights of the parties, not the trial Judges refusal to review”.

It is obvious from the decided cases that the two main methods adopted in determining whether a decision is final or Interlocutory: are the nature of the application to the court and the nature of the orders made. The basic features of an interlocutory order are as follows (a) orders on rights not finally determined (b) Applications which are simply made for the purpose of keeping things in status till the rights are determined (c) Decisions made for the purpose of obtaining some direction of the court on how the matter before the court is to be conducted (d) An order sought or made which does not deal with the final rights of the parties but merely directs how the declarations of rights already in the decisions are all final judgment are to be worked Interlocutory in nature. See Blakey v. Layham (1889) 43 Ch. D 25 Nasco Management Service Ltd. v. A. N. Amaku Transport Ltd. (2003) 2 N.W.L.R. (Pt. 804) CA 290.

An action commenced by the Writ of Summons, Originating Summons or by any other method provided in the Rules of Court is normally terminated by a Judgment of the Court determining the rights of the parties on the issues joined any other process arising after Judgment that requires a clarification of the Judgment, or Stay of Execution, are all interlocutory matters. Therefore, it is imperative to look at the nature of the application to the court and the order made. Both ought to be considered before deciding whether a decision is final or interlocutory. This is because the defect in relying on the nature of the order made alone is that it ignores the issue given rise to the application and fastens on the order which is the result of the application. Therefore, it accords with common sense to look at the relief sought as well as the final order See Omonuwa v. Oshodin (1985) 2 N. W.L.R. (Pt. 10) SC 924 Karibi-Whyte JSC had this to say:

“All the cases cited agreed on the proposition that a decision between the parties can only be regarded as final when the determination of the Court disposes of the rights of the parties, (and not merely an issue) in the case. Where only an issue is the subject matter of an order or appeals the determination of that Court which is a final decision on the issue or issues before it, which does not finally determine the rights of the parties, is in my respectful opinion interlocutory”.

In the instance case the order of the lower court was that the summons was incompetent, consequent upon which the preliminary objection to the hearing of the summons was upheld and the summons dismissed. The rights of the parties on the issues raised in the Writ of Summons were condensed when consent Judgment was entered. The consent Judgment was the final decision on the writ of summons. The processes filed thereafter seeking clarification and variation of the consent Judgment are interlocutory in nature as there determination will not amount to a final decision on the rights of the parties as per the writ. There is no doubt decision closed in that court because the rights had been earlier settled. Writ of Summons was condensed when consent Judgment was entered. The consent Judgment was the final decision on the Writ of Summons. The processes filed thereafter seeking clarification and variation of the consent Judgment are interlocutory in nature as there determination will not amount to a final decision on the rights of the parties as per the Writ.

Applying the principles enunciated in both tests, that is the nature of the application and the nature of the order made, it is my firm view that the ruling of the court on 3rd June, 2004 was an interlocutory decision. There was no determination of independent or fresh rights of the parties. By Section 25(2) of the Court of Appeal Act 1976 now S24 (2) of the Court of Appeal Act 2004, the Respondent has a prescribed period to file a Notice of Appeal. Once the decision is interlocutory. I for purposes of emphasis reproduce S25 (2) (a) as follows:

“The period for the giving of Notice of Appeal or Notice of Application for leave to appeal are (a) in an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision … ”

The Ruling of the court as reflected in the notice was on the 3rd of June 2004, the Notice of Appeal on page 31 of the record was filed on the 26/7/2004 a period of more than 14 days prescribed for filing of appeals against interlocutory decision. Subsequent to filing the Notice of Appeal the Respondent filed a Motion dated 23/7/2004, a notice for extension of time to appeal and leave to appeal in this court. There is no evidence from the record of Appeal that this application was subsequently heard or even a date given.

It is obvious that at the time the Notice of Appeal was filed the Respondent was out of time and had filed outside the 14 days prescribed period. It is also indisputable that no leave of court was obtained to regularize same. The fact that an application was filed in the Court of Appeal seeking extension of time or leave to appeal cannot validate a Notice of Appeal which was filed out of time without leave as same is incompetent abinitio. The Learned Trial Judge tied the conditional Stay of Execution to the hearing and determination of the appeal filed at the Court of Appeal. Learned Counsel to the Respondent submitted that the Notice of Appeal is deemed to have been brought when it is filed in the Registry of the Court below. With the greatest respect to the Learned Counsel that is not the crux of the issue raised. The bone of contention of the Appellant’s Counsel is that the Notice of Appeal filed in the court below was filed out side of the prescribed 14 day period and the grounds of the notice contained mixed law and facts for which leave was not obtained before the filing. As long as grounds of Appeal leave must be sought and obtained contain mixed law and facts.(sic) The Respondent must seek leave of court before filing the Notice of Appeal. This rule has become an Elementary procedure and failure to do so make the particular Ground incompetent. The Respondent also failed to seek leave and extension of time to file outside the 14 days prescribed period. I therefore hold that at the time the lower court made the order of stay there was no valid Notice of Appeal. The Notice of Appeal was incompetent, the Learned Trial Judge erred when he tied the conditional stay to an appeal pending in the court of appeal when there is no valid Notice of Appeal filed nor an appeal pending the motion for extension of time to appeal had not been fixed nor heard.

One of the principles that guide the court in deciding on whether to make an order for Stay of Execution pending an appeal is that the applicant must show by affidavit evidence that there is valid and competent pending appeal filed in respect of a decision he seeks stay of its execution. See Clev Josh Ltd. v. Tokimi (2008) 13 N.W.L.R. (Pt. 1104) CA 422; Consolidated Oil Ltd. v. Sumeroid (Nig.) Ltd. (1998) 8 N.W.L.R. (Pt. 561) CA 184 P.D.P.; Matins v. Akannor food Co. Ltd v. Another (1988) 2 N.W.L.R. (Pt. 74) page 75. There must be a valid Notice of Appeal to sustain an order for conditional Stay of Execution pending an appeal. Consequently, since there was no valid Notice of Appeal pending at the time the conditional Stay of Execution was made pending an inexistence appeal. This issue must succeed; I find issue 1 in favour of the Appellant.

Under Issue 2 whether the application for Stay of Execution is not exfacia incompetent when the purported appeal is not against the consent Judgment but against the ruling of June 3, 2004 for which there is nothing to stay. It is the submission of the Learned Counsel for the Appellant that an application for Stay of Execution like the one for an injunction must be directly connected to and founded upon the substantive dispute. He referred to Adewale Bello Construction Co. Ltd. V. IBWA (1991) 7 N.W.L.R. (Pt. 204) 498. Mr. Okoli’s contention is that there was nothing in the decision for which Notice of Appeal was filed which was capable of being stayed and that the Notice of Appeal is not in respect of the consent Judgment and therefore the lower court ought not to have made the order of Stay of Execution. He also referred the court to the nature of relief sought in the Notice of Appeal. Mr. Akingboye submission is that the matter which the court dismissed was on issue of whether the lower court can interpret and clarify its Judgment regarding the sum of N2, 671,5 00.00 being in dispute which sum represent the statutory deduction that was paid to statutory bodies. It is his further submission that the application for stay is competent as the lower court granted a conditional stay upon the disputed sum of N2, 671, 500.00 which condition they have complied too. The consent Judgment did not originate the Notice of Appeal filed 26 July, 2004 at the Federal High Court. The Motion on Notice dated 27 July, 2004 merely sought an order staying execution of the ruling of the lower court and upholding the objection that the application by summons cannot be entertained by the court as the court lacked jurisdiction.
Infact for emphasis I reproduce the decision of the Learned Trial Judge on page 54 of the record where she said:

“I therefore find and hold that any attempt to clarify, vary, interpret, review or otherwise these position or any portion will be inconsistent with the terms of the judgment. This Court further holds that it is bound by the decisions of Superior Court on the issue and as a result, I uphold the Preliminary Objection for the judgment creditor that this Court is not competent and therefore lacks jurisdiction”

After this pronouncement the Learned Trial Judge still proceeded to stay execution of part of the consent Judgment which is not the basis of the Notice of Appeal. The lower court having pronounced it lacked competence to review the consent Judgment in effect to hear the summons for variation should not have gone further. The Respondent having not filed an appeal against the consent Judgment cannot competently seek a Stay of Execution of the said consent Judgment indirectly under the guise that he is aggrieved with the ruling refusing variation of the consent Judgment when he has not appealed against the Judgment. (See: Momah v. VAB (2000) 2 SC page 142). The consent Judgment is not on appeal. The summon to vary was not considered on its merit but on grounds of competence of the court to vary a consent Judgment on how much to pay nor on ground of fraud. The Learned Trial Judge was wrong when she proceeded to order a conditional Stay of Execution on the payment of part of the consent Judgment when there is no Notice of Appeal against same. The order to pay the Judgment sum into an interest yielding account no doubt had the effect of staying the consent Judgment.

Applications for Stay of Execution pending an appeal must be founded on a substantive dispute which must be clear and direct. The respondent is not restricted to appeal only against the consent judgment however he is limited to appeal against any order of the lower court constitutionally recognized as a decision. The Notice of Appeal must be tied to a decision and an application to stay that decision pending appeal.It is clear from the record of Appeal that at the time the lower court exercised its discretionary power and granted a conditional Stay of Execution pending Appeal. There was no competent Notice of Appeal. It is therefore my firm view that the lower court failed to exercise her discretion judicially in favour of a grant of conditional Stay of Execution. See Mobil Oil (Nig.) Ltd. v. Agadaigho (1988) I N.S.C.C. (Pt. 1) Page 777; Yola v. Agogo (1975) 1 N.M.L.R. (245).

On question of competency of application for Stay of Execution raised by learned counsel to the Appellant, it is pertinent to emphasis that the power of the Court of Appeal and the Supreme Court to grant a Stay of Execution is conferred by the respective Act governing the various statutory provisions creating the courts. The Court of Appeal Act specifically stated that an appeal does not operate as a stay. It presupposes there must be an appeal pending before the jurisdiction of the Appellant courts can be invoked to entertain an application for Stay of Execution. In the lower court an application for Stay of Execution can be filed and considered following certain judicial laid down principles. In other words, the discretionary power of the Trial Judge is what will be the determinant factor whether it was exercised judicially and judiciously bearing in mind the set out guidelines on what to consider. One of which is whether a Notice of Appeal has been filed. Therefore the existence or none has nothing to do with competence of the court to hear an application for Stay of Execution as long as it is properly filed in accordance with the rules of court. What is paramount to consider is whether the trial court exercised her discretion judicially and judiciously guided by the laid down principles to consider in Applications for Grant of Stay of Execution.

Like I earlier stated under issue one, at the time the conditional stay was granted there was no valid Notice of Appeal. The lower courts discretion is exercised judiciously if it is shown that she duly considered if there exist a valid Notice of Appeal and the nature of the appeal. Whether leave is required by native of this application the onus was on the Respondent to show in the application that the appeal involves substantial points of law necessitating that parties maintain status quo until the legal issues are resolved, this will move the lower court to look at the grounds of appeal to see exfacia if the Notice of Appeal does disclose substantial grounds of appeal such as on jurisdiction or recondite point of law. See Martins v. Nicannar Food Co. Ltd. & Another Supra. In the instance case there was no competent Notice of Appeal consequently any consideration of the nature of the grounds is founded on nothing. Some of the principles to consider in application for stay were considered. Lower court erred when she held that the notice of appeal filed outside the prescribed period without leave and without leave being law and facts was valid. Thus the discretion was not exercised judiciously.

On issue 3, whether the Respondent did disclose any exceptional circumstance to warrant any order of Stay of Execution given its failure to establish any reasonable probability that Appellant would be unable to repay the N2, 671, 500.00 in the event that the appeal succeeds. It is the submission of Mr. Okoli that before the court can make an order for Stay of Execution concerning a money Judgment, the application must have satisfied it that there is a strong probability that the Judgment creditor would not be capable of repayment of the money in the event of success of the applicant’s appeal. He cited AG Federation v. Ajayi (1996) 5 N.W.L.R. (Pt. 448) 283 and D.T.N. Plc v. Kusamotu (2002) 15 N.W.L.R. (Pt. 790) contention that the lower court was wrong to grant the Stay of Execution in the absence of any exceptional circumstance. He stated that there is no where in the Respondent’s affidavit where it was alleged much less established that there was any reasonable probability that the Appellant cannot repay the sum of N2, 671, 500.00 in the event that such repayment is decreed upon determination of the purported appeal.

Mr. Akingboye’s submission is that the issue on exceptional circumstance was never raised or canvassed in argument by the Appellant at the lower court and as such goes to no issue. He cited Hamisa v. C.O.P. (1998) 2 N.W.L.R. (Pt. 537) Pg. 273 para C. He further contends that the thrust of Appellant’s issue for determination at the lower court was only on whether there was a valid appeal upon which a stay should be granted and that reference was not made to issue of exceptional circumstances. He submits that since it was not canvassed it cannot form the basis of this appeal he urged the court to dismiss the appeal. On point of law, Mr. Okoli for the Appellant submitted that even where a trial court in an application for a Stay of Execution considers only threshold issues, like the existence of a valid appeal without considering the existence of exceptional circumstances, the latter remains live and open on appeal. It is his contention that the trial courts in this case considered the point and the held that special circumstances exist for it to grant the Stay of Execution. He referred to pages 67 – 69 of the record.

The basic principle for grant of Stay of Execution has been set out by the Apex Court in a long line of authorities including the cases of Vaswani Trading Company v. Savalakh (1972) 12 SC 77; Okafor & Ors. V. Nnaife (1987) 4 N.W.L.R. (Pt. 64) 129 and U.B.N. Ltd. v. Odusote Bookstore Ltd. (1994) 3 N.W.L.R. (Pt. 331) 129, It is required in applications for stay that special or strong circumstances must exist before a stay could be granted, The essence is to maintain the status quo ante in order to ensure that the res which is the subject is not destroyed nor rendered the proceedings nugatory. Mr. Akingboye contended that the issue of exceptional circumstance was never raised or canvassed in argument by the Appellant at the lower court. I have carefully gone through the ruling of the lower court appealed against and contained on pages 63 to 69 of the record of Appeal. The Learned Trial Judge in her ruling on page 68 had this to say:

“It would be in the interest of justice of this case for the Court in it discretion and inherent powers under the Rules of Court – Order 50(2)(2) to preserve the judgment sum whether the defendant/Applicant had paid fully (in their view) or that the Plaintiff/Respondent is entitled, to it either party would not lose and the issue of double payment would not arise, chances of getting the money back would be taken care of, as the money would be invested for the declared owner.”

This is the crux of the decision. However, the affidavit in support of the application for stay did not raise any issue on whether the Appellant will be able to repay the Judgment sum or not nor did the present Appellant file a counter affidavit. Equally, the Learned Counsels in their submissions did not raise the point on whether the Judgment creditor is capable of repaying the money if the appeal succeeds, The learned Trial Judge from her ruling did not consider the question of whether the Appellant will be able to repay or not all the court said on payment was that if stay is granted issue of double payment would not arise and chances of getting the money back would be taken care of.

Mr. Akingboye contended that the issue of exceptional circumstance was never raised or canvassed in argument by the Appellant at the lower court I have carefully gone through the ruling of the lower court appealed against and contained in pages 63 to 69 of the record of appeal. The Issue of special circumstance was raised by the Respondent counsel whilst moving the motion for stay and the learned trial judge in her ruling on page 68 had this to say:
“It would be in the interest of justice of this case for the Court in it discretion and inherent powers under the Rules of Court – Order 50(2)(2) to preserve the judgment sum whether the Defendant/Applicant had paid fully (in their view) or that the Plaintiff/Respondent is entitled, to it either party would not lose and the issue of double payment would not arise, chances of getting the money back would be taken care of, as the money would be invested for the declared owner”.

One of the circumstances considered in applications for Stay of Execution of Judgment debt is the ability to pay back the money. See Guinea Insurance Plc. v. Monaco Holding (1996) 3 N.W.L.R. (pt. 436) 365. This case was cited by the Learned Trial Judge. However, the affidavit in support of the application for stay did not raise any issue on ability to pay the money judgment and on whether the appellant will be able to repay the judgment sum or not once paid. The present Appellant did not file a counter affidavit deposing to facts on that issue. Applicant did not present same as special circumstance. In the lower court the Learned Trial Judge from his ruling did not consider the question of whether the Appellant will be able to pay or not nor was it canvassed by the learned counsels in their submissions, all the court said as regard payment was that if stay is granted issue of double payment would not arise and chances of getting the money back would be taken care of. In effect there was no decision on whether the Appellant will be able to repay the judgment sum in question. For emphasis the particulars of Ground 3 of the said notice of appeal reads as follows:
“3. Grounds of Appeal:

(1)     The Learned Trial Judge erred in law when she held that the questions arising from the 1st Defendant/Appellant’s Summons will amount to a variation of the consent judgment delivered on 12th day of November, 2002 and as such lacks jurisdiction to entertain same.

(2)     The Learned Trial Judge erred in law in holding that it cannot make

corrections upon a consent judgment where there is an ambiguity that needs clarification in the said judgment.

(3)     The Learned Trial Judge erred in law when she held that she was incompetent to resolve question of interpretation by way of summons on notice which to do so will be tantamount to the court sitting over its own judgment.

(4)     Further grounds of appeal will be filed upon receipt of the ruling and the proceedings in the matter”.

The Appellant’s grouse in ground 3 is that the trial judge erred in law in over looking the judgment creditor’s ability to repay the judgment sum. The issue of ability to pay the judgment sum was not raised in the submissions of the learned counsels’ in the lower court nor did the trial judge consider nor make any pronouncements on the Respondent in ability to repay the money judgment. The point on ability to pay judgment debt is a special circumstance. Furthermore, the case cited under particular (a) was not equally considered in the Ruling. The Appellant ground 3 did not arise from the decision of the lower court on 19/1/05. What then is the status of ground three from wherein issue 3 was distilled? The law governing appellate procedure and practice is very clear, an appellate court cannot go on a frolic in search of facts outside that presented at the trial court. The court is forbidden from raising factual issues that were not canvassed at the trial court except if leave have been sought for to raise such fresh issue on appeal. See Haimisu v. COP 1998 2 NWLR (Pt. 537) CA 269 Dungus v Mbudiye 2005 8 NWLR (pt. 927 CA 292.

A party can only raise a fresh issue not canvassed previously after leave of the Appellant Court has been sought and obtained the learned counsel to the Appellant submission that even without considering existence of exceptional circumstance the principle remains a life and open on appeal can only apply when leave have been obtained. See Owie v Ighiwi 2005 5 NWLR Pt. 971 SC 184. Therefore once an issue is not canvassed it cannot be raised on appeal except on Jurisdiction but where an issue is canvassed but not pronounced upon it can be raised if the appeal is on the failure of the court to pronounce on an issue canvassed upon it. See U.S. Steel (Nig) Ltd v Government of Anambra State (2991) 8 NWLR (Pt. 1715) 454. Netufo v Omoolorun 2005 12NWLR Pt. 938 CA 1.

This court and the Apex Court in a catalogues of decided cases have held that the grounds of appeal must of necessity arise from the judgment, ruling or decision of the court below. In Saraki v. Kotoye (1992) 9 N.W.L.R. (Pt. 264) 156 at 184 the Supreme Court discussed the necessity for a ground of appeal to arise from the judgment appealed against and observed.

“It is a well settled proposition of law in respect of which there can hardly be a departure that the grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio of the decision”. See also Egbe v. Alhaji (1989) 1 N.W.L.R. (Pt. 128) 546 at 590, Senator Adesanya v. President of Nigeria (1981) 1 N.C.L.R.358.

In Atoyebi v. Government of Oyo State (1994) 5 N.W.L.R. (Pt. 344) 290 at 305, Iguh JSC observed:

“An appeal presupposes the existence of some decision which is appealed against on a given point or points. Where therefore there is no complaint in respect of a decision that has arisen from a judgment appealed against, such a decision may not form the basis of an issue for determination by an appellate court. The appellate jurisdiction of this court inter alia is to review the decisions/and or judgments of the Court of Appeal. If therefore, an issue neither arose nor called for the determination of the Court of Appeal which therefore did not consider the issues, it seems to me that such an issue may not form the basis of an appeal to the Supreme Court and a purported appeal to this Court on such an issue will be incompetent and may be struck out. See Uhunmwangho v. Okojie (1989) 5 NWLR (Pt. 122) 471 at 491.” See also Bello v. Aruwa 1999 8 NWLR (Pt 615) 465.

In the instance case ground 3 in the Notice of Appeal contains particulars on the Appellant dissatisfaction that the lower court erred in law. The Ruling of the learned trial Judge did not pronounce on the issue of the Respondents ability or inability to pay money Judgment nor was it canvassed. Consequently ground 3 is incompetent as it did not arise from a decision of the court below. Likewise, Issue 3 formulated from an incompetent ground is also incompetent as it stands on nothing and must be struck out. Issue 3 is accordingly struck out. See MBN Plc v. Nwobodo (2005) 14 N.W.L.R. (Pt. 945) SC 379. Iloabachie v. Iloabachie (2005) N.W.L.R. (Pt. 656) 194. From the totality of the forgoing this appeal will succeed on the basis of issue 1 and partially on issue 2. There was no competent notice of appeal at the time the order for conditional Stay of Execution was made. Consequently, the order for conditional Stay of Execution was made pending a non existence appeal and same cannot subsist. There is merit on the main issue in this appeal to sustain the relief sought by the Appellant. I hereby set aside the order of conditional stay of execution made by the lower court and I make no order as to cost.

CLARA BATA OGUNBIYI, J.C.A.: I have been privileged to read in draft the lead judgment just delivered by my learned brother Nwodo JCA. I agree completely with the reasoning and conclusion arrived thereat.

I would briefly wish to state just for purpose of emphasis that the existence of a valid notice of appeal is paramount and non negotiable, the absence which would amount to putting something on nothing and which obviously would not stand but collapse. In other words, in the absence of a valid notice of appeal there could not have been any valid and subsisting order for conditional stay of execution.

It is the former that gives life to the latter. On the totality of the appeal therefore I agree with the lead judgment of my brother that same has merit and therefore succeeds. I also set aside and vacate the order of conditional stay of execution by the lower court and abide by the order made as to costs herein.

ADZIRA GANA MSHELIA, J.C.A.: I read in advance the judgment of my learned brother Nwodo, JCA just delivered. I entirely agree with the reasoning and conclusion that the appeal is meritorious and should succeed.

The lower court has discretion to grant a stay of execution on being satisfied that there are exceptional circumstances which warrant the exercise of the court’s discretion in the applicant’s favour. What is paramount to consider is whether the learned trial Judge by granting the stay of execution exercised her discretion judicially and judiciously. Apparently there was no appeal pending when the stay of execution was granted. The order made cannot therefore be allowed to subsist. This court is therefore entitled to interfere with the exercise of lower court’s discretion having regard to the circumstances of the case. See Nwabueze Vs Nwosu (1988) 4 NWLR (Pt 88) 257 and University of Lagos Vs Agoro (1985) 1 NWLR (Pt 1) 143.

For this reason and in addition to the detailed reasons contained in the leading judgment, I too set aside the order of conditional stay of execution made by the lower court and abide by the order made as to costs.

Appearances

Mr. F. C. A. Okoli For Appellant

AND

Mr. C. O. Akingboye with C. U. Okeke For Respond