SUNDAY EDITORIAL
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It is with deep sense of concern we write as medium to raise questions regarding the political rally conducted by the People’s Democratic Party gubernatorial candidate in Zamfara state on Sunday the 27th of November 2022.
If you follow the social media especially on Saturday the political supporters of the gubernatorial candidate had been on to the social media making all sort of noise about the political campaign rally.
Majority of them tagged the Sunday rally as the “Second Fatahu Gusau’ and for those who have the history of what Fatahu Gusau mean in 2011 it is well constructed that it’s a going to be full pledged campaign rally to sell the candidate to the people of Zamfara.
Some have been making the insinuation “Gobe Ne Fah” referring to the Sunday planned rally while others made pronouncement asking people to come enmarass without any fear to pay solidarity to the gubernatorial candidate of the PDP.
This is the beauty of democracy since Nigerians including the people of Zamfara are entitled to right of political association as enshrined in section 40 of the constitution of the Federal Republic of Nigeria 1999 as amended.
But the focus of this editorial today is basically on the legality of the rally in the eyes of law!!
To the best of our knowledge, the Federal High Court Gusau issued an order stating that PDP Zamfara will not filled any candidate for the post of Governorship come 2023.
That order emanates from the judgment issued in the case filed by two of the governorship aspirants that contested together with Dr. Dauda Lawal namely, Engr. Ibrahim Shehu Gusau and Hafiz Muhammad Nahuche.
In the eyes of law that judgment remain enforce pending any pronouncement by the appellate court and that the pronouncement may came either through substantive judgment emanating from the appeal filed or an “order for stay of execution” validly issued by the court.
To the best of our knowledge, after the court of appeal judgment on Wednesday the 23rd of November 2022 which quashed the first appeal made by the PDP gubernatorial candidate the gubernatorial candidate allegedly filed a “motion of stay of execution” on thesame date which was not yet served to the parties.
As at Thursday the 24th of November and Friday 25th of November 2022 the parties were yet to be served with the Notice of the appeal and processes in respect of the “motion on notice” this was confirmed by both the counsel to the defendants in the appeal.
By implications if the notice which is circulating on the social media is truly genuine then the parties need to be served and a reply need to also be filed by the respondents before a date is fixed by the court of appeal Sokoto for parties to come and argue their grounds.
Unless if the motion is heard and determined in the affirmative, the Federal High Court Gusau judgement which barred the PDP from fielding any governorship candidate for the 2023 election remain valid.
It is too confusing that the same PDP candidate whose primary election is annulled by the judgment of the Federal High Court Gusau is holding a rally from Sokoto to Zamfara.
The question to ask is in which capacity? Did he secure the “Order of Stay of Execution” as prayed for in his motion? If yes when does the Court of Appeal served the parties and when does the sitting which resulted to the issuing of the order hold?
These questions required a layman answer not even a logical one from the governorship candidate or his legal team.
We are raising this questions because majority of the PDP supporters in Zamfara misconceived the meaning of “motion filed” for an “Order Secured”.
We shall also ask for this question, can appeal filed operate as a stay of execution?
There are many decided cases that explained in clear terms that fiing an appeal does not actually resulted to a stay of execution of a judgment. See –Zenith Intl Bank Ltd. v. Alobu (2017) 4 NWLR (Pt. 1554) 135 – (court of Appeal).
The Court of Appeal stated:
“An appeal, where lodged does not operate as a stay of execution. Until a prayer for stay of execution is made and obtained the judgment creditor is entitled to enforce the judgment”.
WHAT ARE THE LAID DOWN PRINCIPLES GUIDING THE GRANT OF STAY OF EXECUTION??
A stay of execution is an equitable remedy. An Order for stay of execution is a discretionary matter and as with all exercise of discretion, it must be done judiciously and judicially.
By virtue of Section. 18 of the Court of Appeal Act 2004, the Court of Appeal has jurisdiction to grant or refuse stay of execution of a judgment appealed against, and such grant may be made unconditionally or upon conditions imposed with the judicial discretion of the Court. See also, Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.
There are laid down principles that guide the grant of a stay of execution. The locus classicus in Nigeria is Vaswani Trading Co. Ltd v. Savalakh & Co (1972) All NLR 922; (1972) 12 SC 50. See also Ajomale v. Yaduat (2) 1991 5 NWLR (Pt.191) Pg.266; Akilu v. Oduntan & Ors (1991) 2 NWLR (Pt.171) Pg.1. The following principles have been established in the long line of cases.
The guidelines are as follows:
“1. The Courts have the unimpeded discretion to grant or refuse a stay. In this and in all other instances of discretion, the Court is bound to exercise the discretion both judicially and judiciously and not erratically.
- 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 stay but does not adequately take into account the respondent’s equal right to justice is a discretion that is not judicially exercised. A winning plaintiff or party has a right to the fruits of his judgment and the Court 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 entertained.
- An unsuccessful litigant applying for a stay of execution must show special or exceptional circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay.
- What will constitute these special or exceptional circumstances vary from case to case. However, such circumstances involve 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 judgment or foist helplessness or render nugatory any order or orders of the Appellate Court or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally produce 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.he onus is on the party applying for a stay pending appeal to satisfy the Court that on the peculiar circumstances of his case, a refusal of a stay would be unjust and inequitable.
- The Court will grant a stay where its refusal will deprive the appellant of the means of prosecuting the appeal.
- The chances of the applicant on appeal are important. If the chances are virtually nill, a stay may be refused. The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case.
- Whether if the appeal succeeds the appellant will not be able to reap the benefits of the judgment on appeal.
- Whether the judgment is in money and costs and whether there is a remarkable probability of recovering these back from the respondent if the appeal succeeds.
WHAT NEXT?
It is our humble views that the PDP gubernatorial candidate for Zamfara should play it with caution simply to avoid falling victim of court contempt.
The judgment of the Federal High Court remain enforce until when the Court of Appeal decided other wise.
The rally for Sunday may be seen from the legal point that by the virtue of the Federal High Court judgement the PDP is presumed not to have a Governorahip candidate for the 2023 election unless decided other wise by the Court of Appeal.
Those canvassing for conducting the rally are only pushing for it on the basis of what they will get from hiring vehicles, and other expenses to be made by the gubernatorial candidate not because they have anything to offer him in the event the rally back-fires, God-forbid.
