IN THE COURT OF APPEAL OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

ON TUESDAY, THE 13TH DAY OF DECEMBER, 2022

BEFORE THEIR LORDSHIPS:


OBIETONBARA O. DANIEL-KALIO        JUSTICE, COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO                JUSTICE, COURT OF APPEAL

ADEBUKUNOLA ADEOTI BANJOKO        JUSTICE, COURT OF APPEAL

APPEAL NO. CA/LAG/CV/777/2021

BETWEEN:

1. OPI INTERNATIONAL NIG. LTD

2. OLAIYA PHILLIPS                            

3. OLUTAYO OWUDOLE

AND

FIRST BANK OF NIGERIA LTD.         RESPONDENT/APPLICANT

RULING

(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)

By way of a Writ of Summons on the Undefended List before C.J. Aneke, J., of the Federal High Court, Lagos (the lower court), the Respondent, as Plaintiff, claims various sums of money against the Appellants, as Defendants, as follows:

  1. The sum of $105,425,129.24 (One Hundred and Five Million, Four Hundred and Twenty-Five Thousand, One Hundred and Twenty-Nine Dollars, Twenty Four Cents) as at the 31 December, 2020 being outstanding balance of the indebtedness (Dollar Denomination) of the 1st Defendant to the Plaintiff arising from the credit facility granted to the 1st Defendant and interest on the said sum at the rate of 5% per annum from the 1st day of January, 2021 until judgment is given in this case and thereafter at the rate of 10% till the liquidation of the judgment debt.

  1. The sum of N21,248,931,826.41 (Twenty-One Billion, Two Hundred and Forty-Eight Million, Nine Hundred and Thirty-One Thousand, Eight Hundred and Twenty-Six Naira, Forty-One Kobo) as at 17 December, 2020 being outstanding balance of the indebtedness of the 1st Defendant to the Plaintiff arising from the credit facility granted to the 1st Defendant and interest on the said sum at the rate of 15.5% per annum from 18th day of December, 2020 until judgment is given in this case and thereafter at the rate of 10% till the liquidation of the judgment debt.

  1. The sum of $9,219,649.80 (Nine Million, Two Hundred and Nineteen Thousand, Six Hundred and Forty-Nine Dollars, Eighty Cents) being the indebtedness of the 1st Defendant to the Plaintiff on Performance Bond FBNLS/SP/0241/OSA/05/19 dated 15th May 2019 issued to Shell Petroleum Development Company on behalf of the 1st Defendant.

  1. The sum of N926,284,980 (Nine Hundred and Twenty-Six Million, Two Hundred and Eighty-Four Thousand, Nine Hundred and Eighty Naira) being the indebtedness of the 1st Defendant to the Plaintiff on Performance Bond FBNLS/SP/0242/OSA/05/19 dated 15th May 2019 issued to Shell Petroleum Development Company on behalf of the 1st Defendant.

The Appellants contested the claim by filing a notice of Intention to defend the action. In a considered Ruling delivered on 30th September, 2021, the lower court transferred reliefs A & B to the general cause list for hearing and entered judgment in favour of the Plaintiff, now Respondent, in terms of reliefs C & D. Against that part of the Ruling/Judgment, the Appellants initiated this appeal by way of a Notice of Appeal filed at the lower court on 4th October, 2021 and followed it the next day (5th October, 2021) with a motion for stay of execution. The Appellant compiled Record of Appeal and transmitted it to this court on 25th October, 2021, but failed to file Brief of Argument as at 9th March, 2022 when this application was filed.

Following the events highlighted above, the Respondent filed the application, subject matter of this Ruling on 9th March, 2022 seeking for a single relief, couched thus:

AN ORDER of this Honourable Court compelling the Appellant to deposit the judgment sum in this case in the sum of $9,219,649.80 (Nine Million, Two Hundred and Nineteen Thousand, Six Hundred and Forty-Nine Dollars, Eighty Cents) and N926,284,980 (Nine Hundred and Twenty-Six Million, Two Hundred and Eighty-Four Thousand, Nine Hundred and Eighty Naira) with the Chief Registrar of this Honourable Court who in turn will deposit same in an interest yielding account of this Court in any reputable bank pending the determination of this Appeal.

AND for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

The grounds for seeking the relief as stated on the face of the motion on notice are:

  1. The trial Court gave judgment in favour of the Respondent on the 30th September, 2021.
  2. Immediately after the judgment, the Appellants filed Motion for Stay of Execution dated 4th October, 2021 before the trial Court and Notice of Appeal on the 4th October, 2021 against the judgment of the trial Court and thereafter compiled and transmitted the Record of Appeal to this Court.
  3. After transmitting the record of appeal to the Court of Appeal, the Appellant has not taken any step to file its brief of argument even though it’s well over 120 (sic: days) since the Record of Appeal was transmitted to this Court.
  4. The Appellant has failed to diligently prosecute this appeal

An affidavit of 7 paragraphs deposed to by one Olawale Balogun, a Litigation Secretary in the Law firm of counsel to the Respondent, together with a written address were filed in support of the application. In opposition, the Appellants, caused to be filed on their behalf, a counter affidavit of 7 paragraphs deposed to by one Wale Arowosaye, a Litigation Clerk in the Law firm of BA LAW LLP, counsel to the Appellants, together with a written address. The counter affidavit was filed on 7th April, 2021. The application was argued on 12/10/2022 by E.A. Oyebanji, SAN, leading Doris Okoroego. The Appellants/Respondents’ counter affidavit and written address was adopted by Chief Bolaji Ayorinde, SAN, leading Temilolu Tayo-Tiwo.

The grounds of the application also captured the facts deposed to in the supportingaffidavit, and since the grounds have been reproduced verbatim, the need to summarise the contents of the affidavit has been obviated. For the Appellants/Respondents to the application, paragraphs 3 – 5 of the counter-affidavit are relevant and I reproduce them here verbatim:

3.  That having studied the Affidavit in support of the Motion on Notice dated the 9th of April, 2022 deposed to by one Olawale Balogun, I state that the contents therein do not represent the true facts and I swear to this Counter Affidavit in opposition hereto.

4.        That Paragraph 4(f) of the Applicant’s Affidavit in support of the Motion on Notice dated 9th of March, 2022 are not true.

5.        That I was informed by Akin Apara Esq, of Counsel in Chambers on the 9th of March, 2022 at about 1pm in our Chambers at No. 136, Awolowo Road, Ikoyi, Lagos during briefing and I verily believe him as follows;

  1. That the Honourable Lower Court on the 30th day of September, 2021, entered Default Judgment on behalf of the Respondent/Applicant with respect to Claims C & D of the Respondent/Applicant Writ of Summons dated the 29th day of March, 2021 in its Ruling on the Appellants/Respondents’ Notice of Intention to Defend dated the 16th day of June 2021.
  2. That by the reason of the said Judgment, the Appellants/Respondents exercised their right of appeal and filed an Appeal against the Ruling/Judgment of this Honourable Court delivered on the 30th day of September, 2021.
  3. That the Appellants/Respondents have filed a Notice of Appeal against the aforesaid decision of this Honourable Court and the copy of the Notice of Appeal filed by the Appellants/Respondents.
  4. That the Appellants/Respondents have compiled the Record of Appeal and served same on all parties and transmitted to the Court of Appeal the said Record of Appeal.
  5. That in response to Paragraph 4(e) of the Applicant’s Affidavit in support of the Motion on Notice dated the 9th of March, 2022, the Appellants/Respondent’s failure to file its brief is not out of disrespect or disregard to this Honourable Court, or any attempt to frustrate the Applicants but rather as a result of the departure of the Counsel who had been in charge of the matter from the firm of the Appellants/Respondents’ firm.
  6. That in further response to paragraph 4(e), that there was also a slight delay in the perfection of the Appellant’s Counsel’s brief to prosecute the Appeal by the appellant as a result of the current on-going pandemic and the ensuing global inflation and financial difficulties experienced by the Appellants.
  7. That the Appellants/Respondents inted to file their Brief of Argument as they are very desirous of prosecuting the Appeal before this Honourable Court.
  8. That in response to paragraph 5 of the Applicant’s Affidavit in support of the Motion on Notice dated the 9th of March, 2022, the Appellants/Respondents will not be in a financial position to prosecute the Appeal and also it will paralyse the Appellants/Respondents financially from prosecuting its Appeal, making it impossible for the Appellants/Respondents to prosecute its Appeal.

5.        That the Appellants/Respondents would be severely prejudiced of the Respondent/Applicant’s Application were to be granted by this Honourable Court.

In the written address filed in support of the application, a single issue was nominated for determination, viz:

“Whether the Appellants ought to be ordered to deposit the judgment sum with the Chief Registrar of the Court of Appeal.”

Opeyemi Adekoya Esq., who settles the written address on behalf of the Respondent/Applicant submitted that from the deposition in the affidavit in support of the application, it is clear that the Appellants/Respondents are not interested in pursuing this appeal, having failed to file their Brief of Argument more than 120 days after the transmission of the Record of Appeal to this court. The Appellants’ refusal to file their Brief of Argument, according to counsel, is a ploy employed by them to deny the Respondent/Applicant the enjoyment of the fruit of the judgment in its favour.He submitted that this court has both inherent and statutory powers to make the order sought, relying on section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 6 of the Court of Appeal Rules, 2021. The court was urged to grant the application.

The Appellants/Respondents couched their own issue for determination as follows:

“Whether this Honourable court ought to grant the prayers as contained in the Respondent/Applicant’s motion on notice dated 9th day of March, 2022.”

Learned counsel who settles the written address on behalf of the Appellants/Respondents, Temilolu Tayo-Tiwo Esq., submitted that the Appellants having explained in the counter-affidavit the cause of the delay in filing their Brief of Argument, it will not be in the interest of justice to grant this application. Relying on the cases of Stanbic IBTC Bank Plc vs. Longterm Global Capital Ltd &Ors (2021) LPELR-56661 (SC) and Eluwa vs. Eluwa (2013) LPELR-22120 (CA), counsel submitted that courts do not normally punish a litigant due to the mistake of counsel. It was contended that the Appellants are not deliberately frustrating this appeal but are very much interested in pursuing same and had now filed their Brief of Argument. Learned counsel submitted that the Appellants would be financially incapable of prosecuting their appeal if the reliefs sought in this application are granted. The court was urged to dismiss the application in the interest of justice.

Resolution of the Application

In view of the similarity of the issues formulated by the parties, I will adopt the issue formulated by the Applicant in the resolution of this application. It is not in doubt that this court has the power to order the payment of judgment debt into an interest yielding account in the name of the Chief Registrar of this court. This power is both statutory and inherent. The instant application concerns the payment of monetary judgment entered by the lower court in favour of the Respondent/Applicant pending the determination of the pending appeal.The settled position of the law is that monetary judgment takes effect and becomes executory immediately upon pronouncement and the winning party is entitled to take benefit of it straight away, unless otherwise ordered by the court or expressly stayed. In Olatunji vs. Owena Bank Plc (2008) LPELR-2578 (SC), DahiruMusdapher, JSC, (as he then was, later, CJN, now of blessed memory), stated as follows:

"In my view, unless the Court otherwise orders, a judgment of Court to pay money takes effect from the day it is pronounced or delivered in Court. However, the Court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done. A person directed by a decree or order of Court to pay money or to do any other act is bound to obey the decree or order without any demand for payment or performance, and if no time is therein expressed, he is bound to do so immediately the decree or order is pronounced."

See also Zenith Bank Plc vs. The Daily Times Ltd & Anor (2021) LPELR-53043 (CA); Globe Motors Holdings Nigeria Ltd vs. Akinyemi Adegoke Oyewole (2022) LPELR-56856 (CA). Ordinarily, execution of monetary judgment is not stayed. As a general rule, the only ground upon which execution of monetary judgment can be stayed is the filing of an affidavit showing that if the judgment sum and costs were paid there would be no reasonable probability of getting them back if the appeal succeeds. See Daily Times Nigeria Plc vs. Kusamotu (2002) LPELR-10993 (CA). In the instant case, the Applicant obtained monetary judgment against the Appellants/Respondents at the lower court. The Appellants filed an appeal against the said judgment. Pending the hearing and determination of the appeal, the Applicant prayed this court to order that the judgment sum be deposited in an interest yielding account in the name of the Chief Registrar of this court. The Applicant did not ask that the judgment sum be paid to him directly, so the fear of whether it would be difficult to secure the refund of the judgment sum from the Applicant if the appeal succeeds, does not arise. It is also trite that the appeal of the Appellants cannot operate to stay the execution of the monetary judgment against them. See section 17 Court of Appeal Act, 2004 and the cases of T.S.A. Industries Ltd vs. Kema Investments Ltd (2006) LPELR-3129 (SC); APC &Ors vs. Karfi&Ors (2017) LPELR-47024 (SC).

The Appellants have stated in the counter affidavit that if the relief sought is granted, they will not be in a financial position to prosecute the appeal. This mere statement of possible impecuniosity, without more, has not attained the standard required by law. For the Appellants to convince the court that they will lack the financial capability to prosecute the appeal if the order is made, they must make full disclosure by annexing, for example,their balance sheet or statement of account to the counter affidavit as exhibit for the court to gauge the oral statement with the statement of their financial standing. As it stands now, there is nothing concrete before the court to support the deposition in the counter affidavit that if the court grants this application, the Appellants will not be able to financially prosecute the appeal. A calm reading of the Appellants’ counter affidavit shows that no cogent and verifiable reason(s) was adduced as to why the application should not be granted. In the result, I find merit in the application and same is granted as prayed. For the avoidance of doubt, I order that the judgment sum in the sum of US$9,219,649.80 (Nine Million, Two Hundred and Nineteen Thousand, Six Hundred and Forty-Nine Dollars, Eighty Cents) and N926,284,980 (Nine Hundred and Twenty-Six Million, Two Hundred and Eighty-Four Thousand, Nine Hundred and Eighty Naira) shall be deposited with the Chief Registrar of this Court, who in turn shall deposit the amounts in interest yielding accounts with a reputable Bank.I make a consequential order that at the conclusion of the appeal, whoever emerges victorious shall collect the principal sums and the accrued interest.

MUHAMMAD IBRAHIM SIRAJO

JUSTICE, COURT OF APPEAL

APPEARANCES:

Chief Bolaji Ayorinde, SAN, for the Appellant, with Temilolu Tayo-Tiwo.

E.A. Oyebanji, SAN, for the Respondent/Applicant, with Doris Okoroego.

M. I. SIRAJO, JCA.                                     CA/LAG/CV/777/2021

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