Guardian Law ReportIn the Supreme Court of Nigeria, Holden at Abuja,On Friday, December 16, 2011, Before their Lordships:Walter Samuel Nkanu Onnoghen, Justice, Supreme Court;Muhammad Saifullahi M. Coomassie, Justice, Supreme Court;John Afolabi Fabiyi, Justice, Supreme Court;Bode Rhodes-Vivour,Justice, Supreme Court;Mary Ukaego Peter-Odili, Justice, Supreme Court;SC 290/2007Between:Chief (Dr.) Pere Ajuwa,Hon. Ingo Mac-Etteli(appellants)(Suing for themselves and onbehalf of Ijaw Aboriginesof Bayelsa State) andThe Shell Petroleum DevelopmentCompany of Nigeria Limited (respondents).SENIOR counsel for the appellants submitted that since this is a money judgment, the only instance where the court may allow the judgment debtor who has applied for a stay of execution pending appeal to retain the judgment debt is where the judgment creditor consent to same. He relied principally on the decision of this court in UBA Ltd. V. Odusote Bookstore Ltd. 3 NWLR (Pt. 331) 129 at 151.Senior counsel submitted that impecuniosity, per se, is not a ground for granting an unconditional stay of execution or varying the terms of stay already granted. He cited Francha (Nig.) ltd. V. Nigeria Arab Bank Ltd. (2009) 9NWLR (Pt. 671) 1 at 22. Senior counsel further submitted that the fact that a judgment debt is substantial or colossal is not a ground for granting an unconditional stay of execution. He cited Mobil Producing (Nig.) Unlimited V. Monokpo (2001) 18 NWLR (pt. 744) 212 at 242.On behalf of the respondent, senior counsel submitted that the judicial discretion of the court below to vary the terms of the stay of execution is not dependent on the consent of the judgment creditor. He maintained that to hold otherwise is to convert the judicial discretion of the court below to the discretion of judgment creditor.He asserted that judicial discretion must be exercised judicially and judiciously having regards to the peculiar facts of each case. Senior counsel maintained that where the exercise of discretion is clogged for being dependent on a factor outside the control of the court, like the consent of the judgment creditor herein as craved by the appellant, it ceases automatically to be judicial discretion. Senior counsel maintained that the consent of the judgment creditor must consent before an order of unconditional stay can be made. Senior counsel maintained that the case of SPDC for unconditional stay of execution was predicted on the doctrine of corporate death and not impecuniosity. He cited Orient Bank (Nig) Plc V Blante International Ltd (1996) 5 NWLR (Pr. 447) 166 at Odusote Bookstore Ltd. (supra) that the only occasion when it would be proper to order unconditional stay of execution pending appeal, will be when the judgment creditor consents to the court seized with the matter making the order, this court should overrule the decision to that extent. Learned counsel submitted that this court would overrule its previous where it is shown that:' the previous decision is clearly wrong and there is real likelihood of injustice being perpetrated; or' that the previous decision was given per incuriam; or' that a broad issue of policy was involved.In matter of judicial discretion, since the facts of two cased are not always the same, this court does not make it a practice to lay down rules or principles to fetter the exercise of its discretion, or that the lower courts. In matter of discretion, no one case is authority for the other. A court cannot be bound by a previous decision to exercise its discretion in a regimented way, because that would be as it were, putting an end to discretion. See Akuyiwa v Nwaonuma (1998) 13 (NWLR) Pt. 583) 632 at 647.Judicial discretion is a sacred power, which inheres to a judge. It is amour which the judge should employ judicially and judiciously and judiciously to arrive at a just decision.Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy, which demands, inter alia, that administration of justice shall be discharged without any form of prompting by the parties. Let me say it in passing that this court does not condone a situation where an earlier decision is capable of fettering the exercise of judicial discretion.Judicial discretion is a vital tool in the administration of justice. See Adisa V Oyinwola (supra). It is my considered opinion that the decision of this court, UBN V Odusote Bookstore Ltd. (supra) did not lay it down as a general principle of law that in all money judgment, the consent of judgment creditors must be secured to enable judges make order of stay of execution. It is when the judgment debtor is a bank or a financial institution and a proposal is being made as to where the judgment debt would be kept pending determination of the appeal that parties, but more especially the judgment creditor, will have an input.In effect, I agree with the stance of the court below that it is not a must that the consent of a judgment creditor must be had and obtained in all application for stay of monetary judgment.Such is only required where judgment debtor is a bank or financial institute, which has to keep the judgment debt in its bank where same is employed to its advantage.In sum, the invitation by the respondent's senior counsel to overrule the decision in respect of the point in UBN Ltd. V. Odusote Bookstore Ltd. (supra) is not of any moment. Judgment debtor/applicant deposit the judgment sum of US$1.5 billion with the Central Bank of Nigeria in an interest-yielding account in the name of the Chief Registrar, Federal High Court of Nigeria on or before 12.00 noon Monday, May 22, 2006, to await the out come of the appeal.The court below found that the trial High Court made the order of conditional stay in terms, which were onerous and impossible to comply with. This is clearly manifest in the 3rd further affidavit of the respondent. The respondent was ordered to pay the sum of U.S$1.5 billion within a time that is less than one working day. As the ready cash was not available, the respondent would have to dispose of its assets and oil wells, among others. If the appeal succeeds, the judgment will be barren, as their assets would have gone.All these factors convinced the court below to find that the respondent showed why the order in onerous and impossible of immediate performance. I feel the court below was in order. On behalf of the appellant, it was submitted that impecuniousity is agreed with same, but maintained that their stand is predicated on doctrine of corporation death and not impecuniousity. The court below agreed that in line with the doctrine of corporate death, the respondent should be kept alive to enable it pursue its appeal. It maintained that the goose that lays the golden eggs must not be allowed to pass-on. A death, which denies the respondent of prosecuting the appeal is not justice. The court below made its order to keep the appellant alive to prosecute the appeal. I am unable to fault that decision. The same was the stances of the court below in Orient Bank Nig. Plc V. Bilante International Ltd. (1996) 5 NWLR (Pt.447) 166 at 180-182.The appellants argued that there was no evidence before the court below that the Federal Government of Nigeria (FGN) has 55 per cent equity interest in the company. But I note that same is covered in paragraphs 13 and 24 of the 3rd further affidavit on pages 107-108 of Volume 2 of the record of appeal. As the depositions were not challenged, they are deemed to be admitted by the appellants. The appellant felt that the Federal Government of Nigeria is not a party and that the respondent ought to have joined the Federal Government of Nigeria and other 3rd party interest in the joint venture operated by SPDC were deposed to for the purpose of bringing to the notice of the court below third parties interest that would be adversely affect if unconditional stay was refused. That was well made as third parties' interest are equity's darling. The court must protect them jealously.The 1st issue is hereby resolved in favour of the respondent and against the appellants. Issue No. 2 as couched by the appellants, is whether the first prayer contained in the respondent's motion dated September 18, 2006, was not too vague and bad in law to be granted by the court.On behalf of the appellants, it was contented that prayer one in the respondent's motion dated September 19, 2006, is bad in law for misjoinder of prayers. Senior counsel submitted that a prayer for amendment is distinct and separate from a prayer for leave to raise fresh issues on appeal. He felt that the two prayers cannot be joined as the principles for the grant of the two prayers are not the same.Senior counsel felt that the court below ought not to have granted prayer one because it is too vague and imprecise. Senior counsel for the respondent, on his part, maintained that the appellant opposed only on technical ground by alleging misjoinder of prayers. The appellant did not challenge the merit of the reliefs sought in the said motion. Senior counsel for the respondent maintained that the appellant do not complain that both reliefs were misjoined in one paragraph.He asserted that the alleged misjoinder was at best, an irregularity, which the court below in discretion waived when it granted the motion. Learned senior counsel opined that no miscarriage of justice was alleged or proved and they failed to show the way they were prejudiced or misled by the alleged misjoinder. Senior counsel observed that the current attitude of this court, which has permeated all the levels of our court system, is a total departure from technicality as courts no longer sacrifice the interest of justice on the alter of technicalities. He cited Amaechi V INEC (2008) 5 NWLR (pt 1080) 277. To say the least, the wording of prayer one can be describe as inelegant. That is to suggest that two prayers to amend the notice of appeal and to raise fresh issues cannot be discerned therein. If they have been duly separated, the novel tag of 'misjoined of prayers' would have been avoided.In my considered opinion, same is an irregularity that was rightly waived by the court below. After all, the appellants have not shown how they have been prejudiced or misled. The technical objection is misconceived. The days of technicalities are gone. The current vogue is the doing of substantial justice to both sides in such a way that the main appeal will be heard and determined on its merit. See Bellow V Attorney-General Oyo State (1986) 12 SC 1; Ogunubi V Kosoko (1991) 18NWLR (Pt. 210) 51;. This issue is also resolved in favour of the respondent and against the appellants.Issue No. 3 is where the court below ought not to have struck out the respondents' appeal rather than setting it down for hearing expeditiously when the time within which the respondent should file its brief of argument had expired and there was no application for enlargement of time to file the brief. This issue encapsulates issues 3 and 4 formulated by the respondent. The complaint of the appellant is that the respondent failed to its brief of argument within the time stipulated by Order 6 Rule 2 of the court of appeal rules, 2002. On that ground, learned senior counsel for the appellants urged that the appeal of the respondent at the court below should be dismissed.Senior counsel for the respondent observed that SPDC Motion dated September 19, 2006, seeking amendment of SPDC original Notice of Appeal was filled on September 20, 2006, when SPDC was still within time in filing its brief of argument.Senior counsel said it was not the fault of the respondent that at the time the motion was eventually head on March 20, 2007 and ruling delivered in May 10, 2007, time for the filing of the briefs had elapsed. He observed that SPDC was not entitled to filed its brief of argument when the motion for amendment of notice of appeal and raised fresh issues was not heard in good time to enable it file its brief of argument within the time stipulated by the rule of the court below. The court eventually heard the motion and after granting same, made consequential orders to file briefs of argument and set the appeal down for hearing.All these steps were well taken. It was immaterial that no application was filed when the court below made the consequential orders. In Nneji & Ors. V. Chukwu & Ors. (supra) with a similar getting, this court held that the Court of Appeal for filing of briefs out of time without a prior application for same was an order necessary for determining the real question in controversy in the appeal. In the circumstance of this matter, can the respondent be said to have abandoned its appeal at the court below' I think not appellant's brief. I am at one with the court below as it was in order. In short, the issue is resolved in favour of the respondent and against the appellants.The court below in its bid to exercise its discretion judicially and judiciously examined the grounds of appeal and concluded that they raise substantial point of law as follows:' Constitution law and doctrine of separation powers;' Statute of limitation;' Jurisdiction of the Federal High Court to entertain the claims;' Capacity of the plaintiffs/respondents (at the trial court) to bring the claim;' Issue of bias.I seriously feel that parties should go to the court below and concentrate their armour for due employment in respect of the main appeal thereat.I come to the final conclusion that this appeal is devoid of merit and it is hereby dismissed. The appellant shall pay N500,000.00 costs to the respondent.
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