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Yusuf vs. Edun

BOLA YUSUF

V

ZULUKAINAINI OLADIMEJI EDUN

COURT OF APPEAL

( ILORIN DIVISION )

ABOYI JOHN IKONGBEH JCA ( Presided and Read the Lead Ruling )

WALTER SAMUEL NKANU ONNOGHEN JCA

JA’AFARU MUKA’ILU JCA

CA/IL/M.23/03

WEDNESDAY, 24TH MARCH, 2004

COURT - Discretionary power of to grant stay of execution -  How exercised

JURISDICTION - Issue of - Whether constitutes a special circumstance for purposes of stay of execution

PRACTICE AND PROCEDURE - Stay of execution - Discretionary power of court to grant - How exercised

PRACTICE AND PROCEDURE - Stay of execution - Issue as to trial court’s jurisdiction - Whether can constitute a special circumstance for purposes of stay of execution

PRACTICE AND PROCEDURE - Stay of execution - When should be granted

Issues:

1.              Whether the Court of Appeal considering the circumstances or antecedents of this case, should grant a stay of execution of the order of the trial court asking or directing the Sheriff of

the High Court to return the Mercedes Benz 200 seized as a result of execution of the judgment against the respondent.

2.              Whether the Court of Appeal should dismiss and/or strike out the notice of appeal of the respondent in the original land dispute filed on 23rd May, 2000 for want of prosecution.

Facts:

The applicant was the successful plaintiff before the High Court of Kwara State, sitting at Ilorin. On 26th April 2000 the court gave judgment for him against the defendant, the respondent herein, for, among other things, N100,000.00 for trespass to land. The respondent filed his notice and grounds of appeal against the judgment on 23rd May, 2000 and successfully applied to the trial court for stay of execution of it. Thereafter, nothing further happened concerning the appeal. Matters remained as they were until 19th April, 2001, almost one year after the judgment, when a notice discontinuing the appeal was filed on behalf of the defendant/judgment debtor/appellant. On 28th May, 2001, the court formally took notice of the discontinuance and accordingly, discharged its order staying execution of the judgment. Seeing no further impediment on his way, the plaintiff/judgment creditor applied for a writ of fieri facias in respect of the judgment debt of N100,000.00 and same was issued on 11th July, 2001. Armed with this, the Sheriff of the High Court on 6th November, 2001 commenced the execution process by attaching a Mercedes Benz car found in the judgment debtor’s premises.

The judgment debtor did nothing about it, but his father commenced inter-pleader proceedings, claiming that the attached car was his and not the judgment debtor’s. His claim was however, dismissed on 2nd May, 2002 . Meanwhile, on 28th February, 2002 the judgment debtor filed an application praying the lower court for “an order of this court granting the applicant leave to withdraw his notice of discontinuance filed on the 19/4/ 2001 .” He also sought orders to relist his appeal and restore the order for stay of execution that was discharged on 28th May, 2001, almost one year previously. Against stiff opposition from the judgment creditor, the court on 2 nd July, 2002 granted all the prayers sought. One of the grounds for objection was that in the circumstances of the case, the court had become functus officio and so, lacked the jurisdiction to entertain the application. On 17th July, 2002, some 15 days after the ruling granting the prayers, the Assistant Sheriff advertised by public notice the sale of the attached car at a public auction scheduled for 19th July, 2002. The auction took place on the scheduled date and one Razaq Haruna Kannike bought and took possession of the car. On 4th October, 2002, almost three months after the sale, the judgment debtor filed an application praying the lower court for three reliefs, essentially seeking to set aside the execution that had taken place and to have the car returned to him. On 26th March, 2003, the court delivered its ruling, granting all the prayers. Aggrieved by the ruling, the judgment creditor appealed to the Court of Appeal and filed an application for stay of execution.

The order, the execution of which is sought to be stayed is the order granting the third prayer by the respondent herein, as applicant before the High Court. The prayer was for - ‘an order of court directing the Sheriff or any other person in possession of the said car to deliver same to the applicant.’

The applicant’s application at the lower court for similar reliefs had been refused.