CORAM

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ABUBAKAR TIJANI, JUSTICE, COURT OF APPEAL

UGOCHUKWU ANTHONY OGAKWU, JUSTICE,COURT OF APPEAL

EBIOWEI TOBI, JUSTICE, COURT OF APPEAL

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PARTIES

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BEST COURIER LIMITED

 

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CHUKWUDI OF OAKLEY INTERNATIONAL LTD

 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Magistrate Court delivered judgment against the Appellant for a total sum of N748, 000.00, who consequently appealed against same to the Lagos State High Court, Ikeja Division wherein it sought for leave to appeal and an order for stay of execution, The lower court granted the prayer for leave to appeal but refused the application for stay of execution hence, the instant appeal on the grounds that the trial judge erred in refusing to grant the application for stay. The Respondent on the other hand argued that the Appellant did not file any reply hence; the Appellant has conceded to the objection and admitted that the appeal is incompetent as it is filed out of time without compliance.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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Whether the Learned Trial Judge was right in refusing the stay of execution when the Appellant is raising the issue of juristic personality of the Respondent as a recondite ground

Whether the court below was right in refusing the application for stay

Whether a court can entertain the appeal when same is filed out of time.

 

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RATIONES DECIDENDI

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REPLY BRIEF – CONSEQUENCES OF AN APPELLANT’S FAILURE TO FILE A REPLY BRIEF

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“Like any human being, a party to an action either at the lower court or an appeal can decide to take any action or carry out any conduct, the truth however is that such a party will fall in line with the consequence of such an action. The refusal of the Appellant to file a reply brief has its consequences. It is that the Appellant is not challenging the objection raised and as such the court will deem the objection sustained and will therefore do the needful. Order 10 Rule 1 of the Rules of this court provides thus; “……. Where an Appellant fail to file a reply brief within the time specified in Rule 5, he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief.”

 

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REPLY BRIEF – CIRCUMSTANCES UPON WHICH A REFUSAL TO FILE REPLY BRIEF WILL BE FATAL TO A CASE

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“In Dada vs. Dosunmu (2006) 9 SC 1, the apex court acknowledging that refusal to file reply brief can be fatal went on to state the circumstance upon which such an action can be fatal. The apex court held: “Failure to file a reply brief to a respondent’s brief can only be fatal to the case of the appellant if the issues raised in the respondent’s brief are weighty, substantial, competent, and relevant in law. Where they are not, as in the instant case, the appellant must be spared the expenses involved in money and time in filing a reply brief to a worthless objection.” Similarly, in Godsgift vs. State (2016) LPELR- 40541 (SC), it was held: “Failure to file a reply brief to a respondent brief can only be fatal to the case of the Appellant, if the points raised in the respondent’s brief are weighty, substantial, competent and relevant in law. The Respondent herein, in its brief of argument filed in the Lower Court meticulously answered all the points raised and argued in the Appellant’s brief, shedding more lights on the identity of the Appellant as the one who was responsible for the death of the young school boy he took away from his school, contrary to the Appellant’s contention that there was no proper evidence of identification of the Appellant to secure his conviction. The Respondent has argument that this is not the case of disputed identity, because PW1 (the deceased’s father and former employer of the Appellant) stated in his evidence that he received a phone call and immediately recognized the voice of the caller as that of “Alex” (Appellant’s other name). The Respondent also stated in their brief that PW2 and PW3 who are the deceased’s class teacher and security man respectively in the school where the deceased was kidnapped identified the Appellant as the very person who came to the school and took away the deceased. They testified in Court to this effect. However, both PW2 and PW3 were not cross-examined by the appellant as the respondent therefore argued in its brief that the evidence identifying the appellant remained unchallenged. I agree with the learned counsel for the Respondent that the Appellant ought to have filed a reply brief to the points raised by the Respondent’s brief to the effect that PW2 and PW3 who gave evidence identifying the Appellant were never cross-examined by the appellant and their evidence therefore remained unchallenged. Since the Appellant failed to file a reply brief to state his own position of challenging evidence of PW2 and PW3, the Lower Court was right when it held that it had to take the position stated in the Respondent’s brief. The apex court went on to say: “The Court below was right. That is the position of the law on this point. I have said that filing of a reply brief by an Appellant is not mandatory; but where a Respondent’s brief raises a point of law not covered in the Appellant’s brief, an Appellant ought to file a reply. Failure to file one without an oral reply to the points raised in the Respondent’s brief may amount to a concession of the points of law of issues raised in the Respondent’s brief. See; Harka Air Services (Nig) Ltd vs. Emeka Keazor Esq (2011) 6 – 7 SC (Pt. II) 1. In other words, Appellant is deemed to have conceded all the new points or issues arising from the Respondent’s brief. See; Mrs. Matilda Aderonke Dairo vs. Union Bank Railway Corporation (2007) 7 SCNJ 13 P.1 In his brief, the Appellant set up the issue of alibi. The Respondent while replying to this issue raised a new point to the effect that the evidence of the Respondent’s witnesses specifically and unequivocally pinned down the Appellant to the scene of the crime thereby making the investigation of the defence of alibi unnecessary. Again the Appellant failed to reply to this point raised in the Respondent’s brief. He is deemed to have conceded this point raised in the Respondent’s brief. Yet, another point raised by the Respondent, which the Appellant ought to have replied to, was the point that the confessional statement of the Appellant, exhibits 11 and 12 were admitted by the trial Court without objection from the Appellant or his counsel. The Appellant had submitted in his brief that their Exhibits ought not to have been acted upon by the trial Court on the ground of involuntariness. The Appellant failed to file a reply brief to respond to the issue of admissibility of the Exhibits. This amounts to a concession of the said issue raised in the Respondent’s issue. Harka Air Service (Nig) Ltd vs. Emeka Ikeazor Esq (supra) Shuaibu vs. Maihudu (1993) 3 NWLR (Pt. 284) 748; Dada vs. Dosunmu (supra). As pointed out the Appellant ought to have filed a reply brief to respond to new points raised in the Respondent’s brief. Having failed to do that, the Court below was right when it held that it had to take the position stated by the Respondent in its brief.”

 

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REPLY BRIEF – PURPORT OF A REPLY BRIEF

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The purport of an appellant’s reply brief is to address new issues that may have arisen from the respondent’s brief of argument, and provide answers to clarify whatever such new issues may have exposed. See Omnia Nigeria Ltd vs. Dyktrade Limited NSCQR Vol. 31 2007 page 673”.

 

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STAY OF EXECUTION – GUIDING PRINCIPLES IN AN APPLICATION FOR STAY OF EXECUTION

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“The purport of a stay of execution is to suspend the rights of the successful party in a suit until the appeal is determined. See Aragbiji & Anor vs. Olabode Oyewinle & Ors NSCQR vol. 55 2013 page 284. The court is therefore called upon in a case for stay of execution to balance the interest of a successful party in a suit to enjoy the benefit of his success and the right of the other party to appeal against the judgment. In trying to carry out this balancing act, the court must ensure that the res or the subject matter of the judgment is not destroyed or the appeal made nugatory or reduce the effort of the appeal to nothing. If the appeal will be rendered nugatory or if refusing the stay will alter the res, the court will grant the stay of execution. In Okafor & Ors vs. Nwaife (1987) 9-11 SC 105, the apex court held: “What principles will, and should, guide the Courts in applications for a stay of execution these principles have been reiterated in very many decisions of this court. Perhaps it may be well here to re-emphasise some of them: (1) The Courts have an unimpeded discretion to grant or refuse a stay. In this, like in all other instances of discretion, the Court is bound to exercise that discretion both judicially as well as judiciously and not erratically. (2) A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for a stay but does not adequately take into account the Respondent’s equal right to justice is a discretion that has not been judicially exercised. (3) A winning Plaintiff or party has a right to the fruits of his judgment and the Courts will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is determined – see the Annot Lyle (1886) 11 P.D. 144 at P. 116 C. A. per Bowen, L. J. (4) An unsuccessful litigant applying for a stay must show “special circumstances” or “exceptional circumstances” eloquently pleading that the balance of justice is obviously weighted in favour of a stay. (5) What will constitute these “special” or “exceptional” circumstances will no doubt vary from case to case. By and large, however, this court in Vaswani Trading Company vs. Savalakh and Company (1972)12 SC 77 @pg. 82 held that such circumstances will involve “a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy and subject matter of the proceedings or foist upon the court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case and in particular even if the appellant succeeds in the court of Appeal, there could be no return to the status quo” (6) The onus is, therefore, on the party apply for a stay pending appeal to satisfy the court that in the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable. (7) The court will grant a stay where its refusal would deprive the Appellant of the means of prosecuting the appeal – Emmerson vs. Ind. Cooper & Co. (1886)55 L. J. Ch. 905. The above are some of the general rules guiding and governing the court in the exercise of its discretion to grant or refuse a stay. The above list is not, however exhaustive” Similarly, in Odedeyi & Ors vs. Odedeyi & Anor (2000) 3 NWLR (Pt. 650) 655, the apex court held: “The guiding principle is that a victorious party must not lightly be deprived of the fruit of his victory, having won his case he under normal circumstance ought to be allowed execution of that judgment unless a special circumstance is advanced to justify stay of execution. (Vaswani Trading Co. Ltd. vs. Savalakh (1972)1 ALL NLR 483. “Special circumstance” is very wide and its category is not closed. However, “special circumstance” though may include strong and substantial ground of appeal this alone may not be enough. A strong and substantial ground of appeal does not necessarily mean the appeal may succeed: certainly the Court must be wary of such ground so as not to prejudge the substantive appeal. In cases where the res, the subject-matter of the appeal, is at the risk of destruction if a stay is not granted, or its nature may be altered as to make it irreversible to its original state; or if it is monetary and the victorious party is a man of straw and may not be able to redeem the money should substantive appeal be decided against him the court in its discretion will grant a stay of execution pending determination of the appeal”.

 

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GRANT OF A STAY OF EXECUTION – SPECIAL AND EXCEPTIONAL CIRCUMSTANCES THAT WILL WARRANT THE GRANT OF A STAY OF EXECUTION

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“The onus is on the Appellant to show special or exceptional circumstance as to why the Application should be granted. See; Michael Olasubomi Balogun vs. Dorcas Oluwale Balogun LC Vol. 4 2012 page 388. The Supreme Court in Fatoyinbo & Ors vs. Osadeyi & Anor (2002) 5 SC (Pt. 1) 1, brought out what will constitute special and exceptional circumstance in these words: “special and exceptional circumstances must be shown by the applicant to warrant the grant. What constitutes special and exceptional circumstances varies from case to case, and although it is not possible to define exhaustively what could amount to special circumstance, this court in the Vaswani vs. Savalakh case (supra) @ pg. 487 gave an idea of what it could amount to, when it held that: “When it is stated that the circumstances or condition for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may unless the order for stay is granted, destroy the subject matter of the proceedings or foist upon the court, especially the court of appeal a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal, or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo”. One of the important considerations in an application for stay of execution pending appeal is the preservation of the “res” and the maintenance of the “status quo ante” so that is the appellant succeeds on appeal he/she would not have a hollow judgment”.

 

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CASES CITED

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STATUTES REFERRED TO

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