IN THE NATIONAL INDUSTRAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE HIS LORDSHIP HONOURABLE JUSTICE E. N. AGBAKOBA
DATED: 12TH MARCH, 2020 SUIT NO NICN/ABJ/264M/2019
MR. CHRISTOPHER AIGBODION ESEKHAIGBE ... CLAIMANT/RESPONDENT
1. THE HON. MINISTER FOR EDUCATION
2. FEDERAL MINISTRY OF EDUCATION
3. THE EXECUTIVE SECRETARY NBTE
4. NATIONAL BOARD FOR TECHNICAL EDUCATIO
5. THE RECTOR, AUCHI POLYTECHNIC, AUCHI ... DEFENDANTS/
6. THE REGISTRAR, AUCHI POLYTECHNIC, AUCHI APPLICANTS
7. AUCHI POLYTECHNIC, AUCHI
FRANCIS ADEJO Esq holding the brief of A. A. ATEMOAGBO Esq for the Judgment Creditor/Respondent.
No appearance for the Judgment Debtors.
1. Applicantsfiled a MOTION ON NOTICE on 9th September, 2019 supported by a 16 paragraph affidavit deposed to by Dr. G. E. Ihionkhan, praying this Honourable Court for: An Order staying the execution of the Judgement of this Honourable Court delivered on the 3rd day of July 2019, in suit No SUIT NO NICN/ABJ/451/2016. MR. CHRISTOPHER AIGBODION ESEKHAIGBE v THE HON. MINISTER FOR EDUCATION & 6 Ors pending the hearing and determination of the Appeal against the said Judgement of this Honourable Court.
WRITTEN ADDRESS IN SUPPORT OF MOTION ON NOTICE
Whether it is not in the interest of justice for this court to exercise its discretion to grant a stay of execution of the judgment delivered by this court on 3 day of July, 2019 in Suit No. NICN/ABJ/451/2016.
2. Learned Counsel to the Judgement Debtor submitted that all rules governing stay of action or proceedings, stay of executions of judgments or orders and the like, are but corollaries of the general principle and seek to establish no other criteria than that the court, and in particular the Court of Appeal should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the court to assume that role. Balogun v Balogun (1969) ANLR 341 — 343; NNPC v. Famfa Oil Ltd (2009) 12 NWLR (pt. 1156) 462 at 493 -494.Judgement Debtor’s Counsel, drawing the Honorable Court’s attention to exhibit B attached to the supporting affidavit, submitted that the Defendants/Applicants have substantial ground of appeal to canvass before the appellate Court in an area where the law is recondite; and that the court ought to lean liberally towards the grant of this application. Nicanner Food Company Ltd (1988) 2 NWLR (Pt. 74) 75; (1988) 3 SC 429 at 434 — 437.
3. The Judgment Creditor/Respondent filed a 12 paragraph COUNTER AFFIDAVIT IN OPPOSITION TO THE MOTION FOR STAY OF EXECUTION on 21stOctober, 2019 and deposed to by Mr. Christopher Aigbedion Esekhaigbe.
JUDGMENT CREDITOR/RESPONDENT’S WRITTEN ADDRESS IN OPPOSITION TO THE MOTION FOR STAY OF EXECUTION
4. Learned Counsel to the Judgement Creditor submitted that even where there is a valid Notice of Appeal, there must be evidence that the conditions of Appeal have been fulfilled. And that the Applicants in paragraph 10 of the Affidavit in Support of the Application stylishly stated that they have fulfilled the conditions to warrant the grant of the Application without exhibiting any document showing such fulfillment. MOBIL OIL (NIG.) LTD VS. AGADAIGHO (i988 LPELR 1882 (SC); P.O. P. Martins Vs. Nicannar Food Co. Ltd. (1986) SC 230 (1988) 2 NWLR (Pt. 74) p.75; (Section 18 of the Court of Appeal Act No.43 of 1976).Per NNAMANI, JS.C. (P. 25, paras. B-C);SUMMERSET CONTINETAL HOTEL LTD & ORS V. OGUNGBE & ORS. (2019) LPELR-47293(CA), per OBASEKI-ADEJUMO, J. C.A. (Pg. 28-29, paras. D-B). Judgement Creditor’s Counsel contended that there are no arguable grounds or recondite points of law, and even where there are, the courts over the years have held that not in all circumstance where there are recondite points of law to be argued that a stay of execution will be granted. BALOGUN V. BALOGUN (1969) LPELR-25558(SC), per Coker (J.S.C.) (Pg. 2-3, paras. E-F).He argued that at best the Grounds of Appeal will be arguable and it is not in all cases where a Ground of Appeal is arguable that a stay will be granted. FATOYINBO & ORS. V. OSADEY! & ANOR. (2002) LPELR-1252(SC), per KALGO, J.S.C. (Pp. 11-12, paras. F-A).
5. Counsel to the Judgement Creditor submitted that the second legal point is that though the grant or otherwise of a stay of execution is at the discretion of the court; such discretion should not be exercised to deprive a successful litigant the fruit of his Judgment. FBN PLC v. AGBARA (2015) 8 NWLR PT. 1460 PG. 47 at 66.
6. The third legal point, as canvassed by Judgement Creditor’s Counsel, is that it is not in all cases where an Applicant for a stay of execution states that he has good and reasonable chances of success that a stay will be granted. That this is because some grounds of appeal even though resolved in favour of an appellant does not change the tenor of the Judgment appealed against such as the court using a wrong principle to arrive at the right Judgment. AYISAT AJOKE SULE V. MOJIDI LAWAL (1977) 1 FCA 139.Furthermore, that the mere fact of filing an appeal do not lead to the grant of a stay of execution. SIRPI ALUSTEEL CONSTRUCTION (NIG.) LTD V. SNIG (NIG) LTD (1999) LPELR-6118(CA), per IKONGBEH, J.C.A. (Pp. 13-16, paras. C-F).
7. On the 24th February 2020 parties adopted and adumbrated their respective processes and this matter was adjourned for this ruling.
8. I have carefully considered this application, the authorities relied upon and the submission of counsel. I am of the view that the issue for determination here is whether this court should grant a stay of execution in the circumstance of this case.
9. This court is empowered by its enabling Act to decide whether to grant a stay of execution or not. Section 47 of National Industrial Court Act, 2006 provides thus:
“Where permitted by this Act or any other Act of the National Assembly, an appeal to the Court of Appeal from the decision of the court shall not operate as a stay of execution but the court may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with Rules of Court.”
10. The issue of appeals from the National Industrial Court to the Court of Appeal is governed by the provisions of the 1999 Constitution (as amended). By virtue of section 243(2) of the 1999 Constitution (as amended) any party who is aggrieved with the decision of the National Industrial Court can appeal against such decision to the Court of Appeal as of right (ie he does not require the leave of the trial court or the Court of Appeal to do so) provided, however, that the decision he seeks to appeal against arose from a question of fundamental right as contained in Chapter IV of the Constitution in so far as it relates to matter upon which the National Industrial Court has jurisdiction to entertain as per Section 254(1-5) of the Constitution or any other jurisdiction as may be conferred upon it by an Act of the National Assembly. In other words, that the only decisions of the National Industrial Court from which a party in a civil action can exercise a right of appeal without much ado is where it emanates from questions of fundamental rights but limited to those contained in Chapter IV of the Constitution. LAGOS SHERATON HOTEL & TOWERS V H.P.S.S.S.A (2014) 14 NWLR (Pt.1426)45 at 65.
11. Under the provisions of Section 243(3) of the 1999 Constitution (as amended) and except for the right of appeal under Section 243 (2) and 254C (5) and (6) therein, any appeal from the decision of the National Industrial Court to the Court of Appeal and pertaining to any cause or matter in which jurisdiction is conferred on the National Industrial Court shall only be as prescribed by an Act of the National Assembly. Provided, however, that where such act or law prescribes that an appeal shall lie from the decisions of the National Industrial Court to the Court of Appeal on any other matter, such appeal shall be with the leave of the Court of Appeal.
12. Furthermore, that by virtue of Section 243(3) of the 1999 Constitution (as amended) except for the right of appeal under Section 243 (2) and 254C (5) and (6) therein, any appeal from the decision of the National Industrial Court to the Court of Appeal such appeal shall be with the leave of the Court of Appeal.
13. Now to the issue of Stay of Execution; - It is settled law that a stay of execution is predicated first on the existence of an appeal against the decision of the Court, hence if no valid appeal has been filed, an application for stay of execution is incompetent. MOBIL OIL (NIG) LTD V AGADAIGHO (1988) 2 NWLR (Pt. 77) 383, MARTINS V NICANNAR FOOD CO. LTD (1988) 2 NWLR (Pt. 74) 75, A.M. CO. NIG LTD V VOLKSWAGEN (NIG) LTD (2012) 11 NWLR (Pt. 1312) 405 at 415.
14. Considering the Constitutional requirement precedent to the fact of showing the lower court that there is in existence a valid appeal, I find that the what the Judgement Debtor has put before this court is short of what constitutes a valid appeal for the consideration of a stay and on that basis this application fails in its entirety and is denied.
15. All in all, I find and hold that all the application of the Judgement Debtor in their motion of 9th September 2019 lacks merit, fails and is hereby dismissed.
16. Cost of N100, 000.00 are hereby awarded against the Judgement Debtor Applicants severally.
17. This is this Court’s ruling and it is hereby entered accordingly.
HON. JUSTICE E. N. AGBAKOBA