Usman Dantata Jnr. & Anor. V. Mouktar Mohammed (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Lagos State delivered by Hon. Justice E.O. Williams Dawodu on 29th January 2007. The stark facts which led to this appeal are that the Appellants herein were the Defendants at the lower court against whom the Respondent sued for possession due to failure of performance.

The Lagos High Court delivered judgment on 21st February 2005 granting reliefs (a), (b), (c) and (g) of the Claimant’s reliefs. Both the Defendants appealed and filed separate notices of appeal. They have been heard on appeal as CA/L/172/08 and CA/L/172A/08 respectively, They however entered joint notice of appeal against the ruling and the appeal has been entered as CA/L/172B/08 on 29th June 2006, the Lagos High Court, after hearing two separate applications for stay of execution by each of the Appellants, granted unconditional stay of execution with regards to the possession and injunctive reliefs granted to the Claimant on the property in dispute pending the appeal against the judgment.

On 26th July 2006, less than a month after the ruling staying execution, the Claimant filed an application pursuant to Order 54 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 praying for the discharge of the order of stay of execution or in the alternative for the Appellants to pay rent.

The Claimant’s application was hinged mainly on the provisions of the aforementioned Order 54 Rule 2. He contended that since a period of 90 days had elapsed after the judgment was delivered, the High Court should discharge the order of stay for failure to compile records of appeal within time. The 1st Appellant was the 1st Defendant at the trial court and he filed a counter affidavit and written address against the application while the 2nd Appellant now 2nd Appellant filed a counter affidavit and written address. The Applicant replied on points of law. The learned trial judge delivered a ruling dated 9th January 2007 wherein her ladyship granted the first leg of the Claimant’s prayer by discharging the order of stay of execution upon a strict interpretation of Order 54 Rule 2 of the Lagos State Rules.

Being dissatisfied with the ruling of the High Court, the Appellants filed an amended Notice of Appeal containing three grounds of appeal. It was filed on 15th May, 2011 and the Applicants’ brief was filed the same day. The Respondent’s amended brief was dated and filed on 11th May 2011 while the Appellants’ amended Reply brief was dated and filed on 19th May 2011. The parties agreed on the issues for determination and I will set out the issues as couched by the Appellant’s counsel which are stated as follows:

“1. Whether the learned trial judgment interpreted the provisions of Order 54 Rule 2 of the High Court of Lagos State (Civil Procedure) Rules 2004 correctly (Ground 1).

2. Whether the learned trial judge was right to have discharged the order of stay of execution granted in favour of the Appellants in the circumstances of this case (Grounds 2 and 3).

I am of the view that issue two is essentially a repetition of issue one, and this appeal can be determined by reframing both issues into one. Thus I will formulate the sole issue for determination in these terms. Whether the learned trial judge was right to have discharged the order of stay of execution in the circumstances.

Appellant’s senior counsel J. A. Badejo SAN argued that the learned trial judge interpreted Order 54 Rule 2 to mean that the 90 days stipulated for compilation of the records is mandatory. The court held that once the compilation of the records is not completed within 90 days, then the Lagos High Court is bound to discharge an earlier order for stay of execution. He argued that such interpretation is unduly restrictive. Counsel argued that the extent Court of Appeal Rules as at 2007 was the 2002 Rules which provides two methods of compiling records of appeal. The first is by the Registrar of the court below. This procedure which laid down all that is to be done is contained in Order 3 Rules 8 -13 of the 2002 Rules.

He submitted that the second option which was evolved by the practice of this Honourable court appears to have been accommodated under the miscellaneous provisions of the 2002 Rules (Order 7 Rule 2) which was interpreted to allow an Appellant to apply to the Court of Appeal to depart from its Rules to allow the records to be compiled by him to save time.

It was his contention that the only way the first part of Order 54 Rule 2 can therefore be interpreted to make it consistent with the extant Court of Appeal Rules as at 9th January 2007 is for it to mean that where an Appellant chooses to depart from the Court of Appeal Rules to compile the records himself, he shall do so within 90 days.

He further submitted that the first part of Order 54 Rule 2 did not also make it mandatory for the court to discharge an order of stay of execution if the records are not compiled within the said 90 days. Such compelling effect cannot be read into the phrase and the words used.

Learned Appellant’s senior counsel further submitted that a careful reading of the second part of Order 54 Rule 2 shows that it is the Respondent to the appeal who is given discretion to decide whether to apply to discharge the order of stay of execution granted.

Learned Appellant’s counsel submitted that the High Court is bound to look at the circumstances and facts before deciding whether it is just and proper to discharge the order of stay of execution under Order 54 Rule 2 as the Appellant cannot be held responsible and damnified for the delay in the compilation of the records. Senior counsel relied on the following cases: