Adeogun v. Bakare (1986)

[1986] 5 .
Adeogun v. Bakare
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SANNI ADEOGUN

V.

LAMIDI BAKARE

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/68M/86

ABUBAKAR BASHIR WALI, O.F.R., J.C.A. (Presided and Read the Leading Ruling)

EPHRAIM OMOROSE IBUKUN APATA, J.C.A.

JOSEPH DIEKOLA OGUNDERE, J.C.A.

WEDNESDAY, 9TH JULY, 1986

PRACTICE AND PROCEDURE – Stay of execution – Whether delay a ground for not granting.

PRACTICE AND PROCEDURE – When application for stay can be brought in the Court of Appeal without first going to the High Court.

Issue:

Whether delay would defeat an application for a stay of execution.

Facts:

The appellant having lost an appeal at the High Court, Ilorin in a dispute over a piece of land applied for a stay of execution pending appeal, which was refused by the lower court.

He therefore appealed to the Court of Appeal. The respondent opposed the application contending that it was too late to entertain an application for a stay of a judgment given about one year and eight months ago.

Held (Dismissing the appeal):

1.
A Court of equity has always refused its aid to stale demands that is, where a party has slept upon his rights and acquiesced for a great length of time.

2.
Also when an equitable right is analogous to a legal right which is subject to a period of limitation in bringing actions to enforce it, the court of equity may by analogy apply the same provision to the equitable right.

3.
The position is that there is no rule of court specifying the period within which an application for a stay of execution should be made.

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4.
The length of time in bringing an application for a stay after the judgment complained of is not one of the questions.

5.
An application for a stay of the judgment of the lower court can be made in the Court of Appeal even when such an application has not been made in the lower court, after the records of appeal have been received by the Court of Appeal and entered in the cause list. This is so regardless of how long it takes for the records to get to the Court of Appeal: Coker v. Adeyemo (1965) 1 All N.L.R. 120 applied.]

6.
The Applicant has not shown that failure to grant a stay would adversely affect his interest should the appellant succeed, and it would be wrong to grant it in the circumstance.

Nigerian Cases Referred to in the Ruling:

Akwiwu Motors Ltd. v. Sogonuga (1984) 4 SC 185

Arojojoye v. U.B.A. (1986) 2 . (Pt. 20) 101

Board of Customs and Excise v. Barau (1982) 10 SC 48

Coker v. Adeyemo (1965) 1 All NLR 120

Jamakani Transport Ltd. v. Kalla (1965) NMLR 194

Ogbechie v. Onochie (1986) 2 . (Pt. 23) 484

Owuda v. Lawal (1984) 4 SC 145

Shoge v. Musa (1975) 1 NMLR 222

Utiligas Nig. & Overseas Co. Ltd. v. Pan Afrian Bank (1974) 10 SC 105

Vaswani v. Savalak Trading Co. (1972) 12 SC 77

Wey v. Wey (1975)1 SC 1

Foreign Case Referred to in the Ruling:

Wilson v. Church (1979) 12 Ch.D. 454

Nigerian Statutes Referred to in the Ruling:

Area Courts Law No. 2 1967 (Kwara State) Sections 28(2)(a), 53, 54, 59(l)(a)

Constitution of Nigeria, 1979, Ss. 220(l)(b), 222(1)

Application:

This was an appeal from the ruling of High Court, Ilorin which refused agrant of stay of judgment. The Court of Appeal also refused a grant.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the action is brought: Courtof Appeal, Kaduna Division

Names of Justices that sat on the appeal: Abubakar Bashir Wali, J.C.A. (Presided and Read the Lead Ruling); Ephraim Omorose Ibukun Akpata, J.C.A.; Joseph Diekola Ogundere, J.C.A.

Date of Judgment: Wednesday, 9th July, 1986

Appeal No.: CA/K/68M/86

High Court:

Name of the High Court: High Court. Ilorin

[1986] 5 .
Adeogun v. Bakare
(WALI, O.F.R., J.C.A.)
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      Upper Area Court:

Name of the Upper Area Court: Isolo Area Court Grade II

Area Court:

Name of the Area Court: Area Court Grade II, Isolo, Erin Ile

Counsel:

I. O. Ijaodola – for the Appellant.

Wole Olanipekun – for the Respondent.

WALI, O.F.R., J.CA. (Presiding and Delivering the Leading Ruling): The appellant/applicant was the defendant before the Isolo Area Court Grade II, Eren Ile, Kwara State before which he was sued by the respondent/Plaintiff claiming for and on behalf of his family and himself a piece of land lying on the right hand side of Ipete/Ijagbo Road at Emila Oba Oladcran’s royal garden at Ipee.

  The simple facts of the case, as concisely narrated in the judgment of the High Court Ilorin are as follows:

   In 1960 the appellant and one Joseph Adetunji went to respondent and his father to beg for a piece of land for Aduke of the appellant's family to build a house. The respondent informed the appellant to wait and that they would refer request to their family, the Emeta Family, for consideration and approval. Before the Emeta Family's reply to the appellant's request, the latter's family went into the site, started claiming that it belonged to Laodi family, the appellant's family.

   The case proceeded to trial, each side calling evidence to support his claim. At the end of the trial, the Area Court found in the respondent's favour that "the application made by the plaintiff for claiming the land is allowed as prayed. The land is awarded to plaintiff." The trial court however proceeded to make the following order in favour of Aduke on whose behalf the appellant was said to have requested the piece of land from the respondent. "We order that Aduke be allowed to put up her proposed building as no objection was earlier raised by the plaintiff's family."

From this judgment the appellant appealed to the Upper Area Court, Ilorin which dismissed his appeal. He lodged a further appeal to the Ilorin High Court; the respondent cross appealed against the order of the trial court, as affirmed by the Upper Area Court that Aduke be allowed to continue with her building construction on the land in dispute. Dismissing the appeal and allowing the cross-appeal, the Ilorin High Court in a reserved judgment ordered that:

“the main appeal fails and it is dismissed. The cross appeal succeeds and it is allowed. Consequently, we invoke section 59(1)(a) of the Area Courts Edict, 1967 to quash the incidental order, making allocation of the cleared land to Aduke and we affirm the decision awarding the entire land to the defendant.”

It must be typographical error to write defendant as the last word-in the preceding paragraph when in both fact and substance, it should be plaintiff, in other words, the respondent in this appeal. I accordingly make the following correction in the said paragraph that the last word in that paragraph reading as “defendant” shall be substituted with the words “respondent/plaintiff’.

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The appellant, still aggrieved by the High Court decision, has now appealed to this court.

In the interim, the appellant made an application for a stay of the judgment and order of the High Court before the said court and also for an order of interim injunction prohibiting the respondent, his servant and or agents and or privies from further alienating part of the land in dispute until the appeal is finally disposed of. The application was refused. He has now appealed to this court for the same relief. The application is supported by an 11 paragraph affidavit sworn to by one Joseph Oyewale Ijaodola a legal practitioner in J. O. Ijaodola & Co Ileri Oluwa Law Office. Also exhibited along with the application are the copy of the judgment of the llorin High Court of 20/11/84 marked exhibit CA1, the Notice and grounds of appeal marked exhibit CA2, a copy of the Ruling of the Ilorin High Court dated 24/4/86 refusing the applicant’s application for stay and interim injunction marked exhibit CA3 and a copy of the judgment of Isolo Area Court Grade II marked exhibit CA4. The respondent on his part filed an 11 paragraph counter affidavit sworn to by Lamidi Bakare, the respondent.

Learned counsel has relied on the affidavit and the grounds of appeal plus the documents exhibited. He submitted that the 2 grounds raised only issues of law, and not mixed law and facts and therefore the appeal is competent and within the purview of section 220(1)(b) of the 1979 Constitution. He further submitted that the issues for determination in the appeal are going to be:

(1)
Can a non-trespasser be sued?

(2)
Is there direct right of appeal from the Area Court to the High Court without going through the Upper Area Court?

In support of the above submissions he cited the celebrated case of Vaswani v. Savalak Trading Co. (1972) 12 S.C. 77. He urged us to dismiss the cross appeal on grounds that it is incompetent.

Replying to the submissions (supra) learned counsel for the respondent submitted that the two grounds of appeal are of mixed law and fact and therefore leave of either the High Court or the Court of Appeal is required as stipulated in section 222(1) of the 1979 Constitution. He also submitted that Aduke, was not a party to the appeal nor was she made a party as prescribed in section 222(a) of the Constitution. He said the remedies the appellant is seeking are equitable and therefore time is of the essence. He said the judgment of the Ilorin High Court against which the appellant is appealing was given on 20/11/84, while the application in which the order for stay and interim injunction are being sought was brought on 5/5/86 in this court. He submitted that the affidavit in support did not contain cogent reasons for the delay and that the land has all along been in the respondent’s possession. In support of these submissions, he cited the following cases: Ogbechi v. Onochie (1986) 2 . (Pt. 23) 484 at 486; Akwiwu Motors Limited v. Dr. Babatunde Songonuga (1984) 4 SC 185; Braimoh Owuda v. Babalola Lawal (1984) 4 SC 145; Jamakani Transport Ltd. v. Kalla (1965) NMLR 194 and Arojojoye v. U.B.A. (1986) 2 . (Pt. 20) 101 at 102. He urged this court to dismiss the application.

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I find it pertinent, in order to resolve the issues raised as to whether the two grounds of appeal are purely grounds of law or of mixed law and fact, to reproduce the two grounds:

“GROUNDS OF APPEAL

The learned Justices erred and/or misdirected themselves in law in dismissing the appellant’s appeal l when the trial Area Court held that it was Aduke who. was trespassing on the land in dispute and not the appellant and there was no claim that the appellant was authorised to fight the case on behalf of the aforesaid Aduke, assuming that the appellant comes within the purview of section 28(2)(a) of the Area Courts Law No 2 of 1967 (Kwara State) which is doubtful.”

“Particulars of Error/Misdirection in Law

“i. It was wrong of the respondent at the High Court who was the plaintiff at the trial Area Court to have sued the appellant who was the defendant at the trial Area Court rather than Aduke”

ii.
Only Aduke could authorise another person to defend the suit in her behalf and that person must come within the purview of section 28(2)(a) of the Kwara State Area Courts Law No. 2 of 1967.”

“GROUND 2

The learned Justices erred and/or misdirected themselves in law in allowing the cross appeal when

(i)
there was ho complaint at the Upper Area Court about the order of the trial court that Aduke should be allowed to continue her building. There was no direct right of appeal from the trial court to the High Court; and

(ii)
Aduke to be affected by the respondent’s cross-appeal was not a party before the High Court.

“Particulars of error/misdirection in Law

i.
A party can only complain at the High Court against the decision of the Upper Area Court. See sections 53 and 54 of the Kwara State Area Courts Law No 2 of 1967.

ii.
The Upper Area Court like any other appellate court can only adjudicate on complaint levelled against the decision of an Area Court and not to give gratuitous relief not sought by either side.

iii.
The High Court lacked jurisdiction to allow the cross appeal since Aduke was not a party before it, and Aduke was not given a hearing, let alone a fair hearing in the cross-appeal.”

No briefs were filed and the parties proceeded to argue the motion orally. Learned counsel for the respondent submitted that the motion is incompetent as the grounds of appeal, though couched as grounds of law alone, are in fact and substance grounds of mixed law and fact and therefore leave of either the High Court or the Court of Appeal is a condition precedent to the appeal.

Examining ground 1 and its particulars closely, the question whether Aduke was trespassing on the disputed land and therefore should be the correct

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party to be sued and not the appellant, cannot be decided independent of the facts involved in the case. It is a matter of mixed law and fact.

As for ground 2 the complaint there is that since the respondent did not complain against the order by the trial court before the Upper Area Court that Aduke should continue with her building construction on the disputed land, he cannot be heard to complain against the said order in the High Court by way of cross appeal. This is purely a ground of law. The fact that some of the particulars in support of the ground seem to raise some issues of fact, does not necessarily make the ground to be of mixed law and fact or of fact alone. See Board of Customs & Excise v. Alhaji Ibrahim Barau (1982) 10 S.C. 48.

In considering whether or not to grant an order of a stay of execution in a pending appeal, the following must be considered –

(a)
The chances of the applicant succeeding on appeal. If such chances are virtually nil the application will be refused. Vaswani Trading Co. Ltd. v. Savalak & Co. (1972) 12 S.C. 77, Wey v. Wey (1975) 1 S.C..1 and Shoge v. Musa (1975) 1 NMLR 222.

(b)
The nature of the subject matter in dispute, and whether maintaining the status quo until the judgment is disposed of will meet the end of justice in the case. Utilgas Nig. & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 S.C. 105.

(c)
Whether if the appeal succeeds, the appellant will not be able to reap the benefit of the judgment – Wilson v. Church (No.2) (1879) 12 Ch. D. 454, 458; and

(d)
Where the judgment is in respect of money and costs whether there is reasonable probability of recovering back from the respondent if the appeal succeeds.

None of these grounds are applicable to this application. There is nothing in the affidavit to show that if the judgment is not stopped the appellant will suffer anything. The person mostly affected by the judgment and order of both the trial court, the Upper Area Court and the High Court is one Aduke and who was neither a party in the trial court nor joined as such on appeal either in this court or in the courts below. This application has no merit. It is accordingly refused with N100.00 costs to the respondent.

AKPATA, J.C.A.: I have been privileged to read in advance the ruling of my learned brother, Wali, J.C.A. I agree with his reasoning and the conclusion that the application be refused.

Obviously, there is no merit in the application because there is nothing to show in the affidavit and the grounds of appeal exhibited that the applicant has vested interest in the landed property to warrant a stay of the judgment of the High Court. The person who stands to lose is Aduke. Whether the decisions of the Area Court, Upper Area Court and the High Court can be enforced against Aduke is not in issue in this application.

I find it a strange enunciation of the law by learned counsel for the respondent that delay would defeat an application for a stay of execution. According.to him it is too late to entertain an application for a stay in this court when the judgment

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complained of was delivered on 20/11/84, about one year and eight months ago. It is true that equity will come only to the aid of the vigilant, and not the indolent. A court of equity has always refused its aid to stale demands, that is, where a party has slept upon his rights and acquiesced for a great length of time. Also when an equitable right is analogous to a legal right which is subject to a period of limitation in bringing actions to enforce it, the court of equity may by analogy apply the same provision to the equitable right.

The position is that there is no rule of court specifying the period within which an application for a stay, of execution should be made. The length of time in bringing an application for a stay after the judgment complained of is not one of the questions to be considered in granting or refusing such an application. An application for a stay of the judgment of the lower court can be made in the Court of Appeal, even, when such an application has not been made in the lower court, after the records of appeal have been received by the court of appeal and entered in the cause list. (See Coker.v. Adeyemo (1965) 1 All NLR 180). This is so regardless of how long it takes for the records to get to the Court of Appeal.

    In the instant case, the records have not even reached here. It seems to me odd to talk of delay in the circumstance. The question is, what will the applicant suffer by the bringing of the application now which he would not have suffered if it had been brought much earlier than this? Learned counsel did not supply the answer.

  The position, however, is that as the applicant has not shown that failure to grant a stay would adversely affect his interest should the appeal succeed, it would be wrong to grant it in the circumstance. The application is therefore refused. Costs assessed at N100.00 in favour of the respondent.

OGUNDERE, J.C.A.: I am in complete agreement with the ruling just read by my learned brother Wali, OFR, JCA, both as to the reasoning and the orders made therein.

Appeal dismissed.

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