Chief Shittu Ogunremi & Ors Vs D. Asiyanbi & Ors (1962)

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BRETT, F.J

This decision covers both the present application and that in Adeniyi v. Asiyanbi and others F.S.C. 364/1962.

This is an application by the appellants for a stay of execution of the judgment of the High Court of Western Nigeria pending the determination of an appeal to this court. No application for a stay has been made to the High Court itself, and the first question to be decided is whether the present application can be entertained, in view of Order VII, rule 37, of the Federal Supreme Court Rules, 1961, which provides that-

Whenever an application may be made either to the Court below or to the Court, it shall be made in the first instance to the Court below, but if the Court below refuses the application, the applicant shall be entitled to have the application determined by the Court.

It has been suggested that such an application can only be made to this Court, by virtue of rule 19 of the same Order, which provides that-

After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as maybe otherwise provided in this Order, every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court.

This rule, however, does not come into operation until an appeal has been “entered”, and that takes place when the record of appeal is received in this Court and entered in the cause list in accordance with Order VII, rule 12 (2), not when notice of appeal is given. The only question, therefore, is whether the application is one which the High court has power to grant.

Power to grant a stay of execution is expressly conferred on this Court by section 24 of the Federal Supreme Court Act, 1960. As regards the High Court, section 48 (3) of the Constitution of Western Nigeria provides that the High Court of the Region shall be a superior court of record, and save as otherwise provided by any law in force in the Region, shall have all the powers of such a court. Section 8 of the High Court Law provides that-To the extent that such jurisdiction shall be conferred by the Regional Legislature, the High Court shall be a superior court of record, and in addition to any other jurisdiction conferred by this or any other Law or Ordinance shall, within the limits and subject to the provisions of this Law, possess and exercise all the jurisdiction, powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England.

Section 19C (3) of the High Court Law, inserted by W.N. No.12 of 1961, provides that-

Where an appeal to the Federal Supreme Court is entered, or leave to appeal is granted, in any civil case, the High Court may, in its direction order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.

If, under any of these three provisions, the High Court has power to grant a stay of execution, the present application must fail; if not, the application must be considered on its merits. In my opinion the power to stay execution of its own judgment pending some further proceeding in the case, where the interests of justice require it, it is inherent in a court of record, and is therefore vested in the High Court by the Constitution of the Region. An allied power was exercised recently by Pennycuick, J., in Orion Property Trust Ltd. v. Du Cane Court Ltd. (1962) 1 W.L.R. 1085, citing Polini v. Gray (1870) 12 Ch. D. 438, and discussing the principles on which the court acts. It is unnecessary to inquire into the origin or antiquity of the power, but I may mention that provision for its exercise was included in the Common Law Procedure Act, 1852, which deals with proceedings in error, the precursor of the modern appeal, as supersedes of execution on the giving of bail in error by special order of the court (ss.150 and 151): see Justice v. Mersey Steel and Iron Company (1876) 1 C.PD. 575, where it was pointed out that under the Act, if bail in error was given execution was stayed as a matter of right; and Compare Order 58, rule 18 (6) of the present Rules of the Supreme Court in relation to appeals from County Courts. In the Supreme Court of Judicature in England the matter is now dealt with by the Rules of the Supreme Court. Order 58, rule 12, provides that-

Except so far as the court below or the Court of Appeal may otherwise direct –

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below.

It is well settled that a Rule of Court cannot confer jurisdiction, and, as Brett, M.R., put it in Cropper v. Smith, (1883), 24 Ch. D. 305, “by that rule it is assumed that the Court of Appeal has jurisdiction”; it would be equally true to say that by the rule it is assumed that the High Court has jurisdiction. A similar assumption is made about a County Court by Order 58, rule 18 (6); about other inferior courts by Order 59; and about certain tribunals by Order 59A, rule 1. The jurisdiction is nowhere expressly conferred on any of these courts or tribunals, but it is beyond question that it is possessed by the Court of Appeal, the High Court and a County Court: see Grimshaw Barker and Elliot Ltd. v. Parker, (1910) 2 K.B. 161, for the powers of a County Court.