Utilgas Nigerian & Overseas Gas Co. Ltd V. Pan African Bank Ltd (1974)

LawGlobal-Hub Lead Judgment Report

COKER, JSC.

The present applicants, Utilgas Nigerian & Overseas Gas Co. Ltd., have applied to this court for an order to stay the execution of an order of the High Court of Lagos contained in the judgment of that court dated the 15th April, 1974. That order enjoins the applicants to give up possession of premises situate at Nos. 35/37, Martins Street, Lagos, on or before the 31st May, 1974.

The order to give up possession was sequel to proceedings instituted in the High Court, Lagos, by the present respondents, as plaintiffs, against the applicants, as defendants, for “possession of the premises consisting of the ground-floor at 35/37, Martins Street, Lagos, let to the defendants for one year under the rent of £3,000 (N6,000) for the whole year.” It seemed that in the proceedings leading to the judgment of the High Court, the plaintiffs had asked for possession of the premises concerned on grounds both of breach of covenants to deliver up possession of the premises and personal use.

Soon after the judgment of the High Court was given, the defendants applied to that court for a stay of execution of the order to vacate the premises but the application was refused by that court. Hence the present application. In refusing the application for stay in the High Court, the learned trial Judge observed as follows:- The only special circumstance deposed to in the affidavit to this application is to be found in para. 6 thereof. At the trial, the defendants’s case was not based on any hardship they would be faced with to find an alternative accommodation. The case was fought on the right of the defendants to remain in occupation on a supposed renewal of their contract of lease.

The point has been decided against them and the parties must abide by the terms of their own agreement.   In ordering the defendants to give up possession on or before 31/5/74, I took into consideration, inter alia, the length of time they had held over the premises without consent and to grant this application will amount to derogating from that importance consideration.” The learned trial Judge also took the view that there had been some “delaying tactics” on the part of the defendants. These matters, therefore, as adumbrated by the learned trial Judge, should be given careful consideration by this court in dealing with the present application.   Manifestly, the court has a discretion in granting or refusing an application for a stay of execution but it lies beyond argument that such a discretion ought to be exercised judiciously. (See the observations of this court in Vaswani Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77 at pages 85 et seq).

In this matter, the learned trial Judge who tried the case observed in the course of his Ruling, supra, that the case between the parties was fought on the basis of the competing rights of the parties with respect to immediate possession of the premises at Martins Street, Lagos. That of course is a substantial issue of law and if, as it appears, that issue is the kernel of the dispute between the parties, we are in no doubt that the matters to be resolved on appeal lie within a narrow compass. In those circumstances, the duty of a court of appeal is clear for it cannot be otherwise than desirable to keep matters in status quo for a free and unhampered consideration of the legal issue and a decision thereon.

For this reason, we will accede to the present application but must ensure, as the learned trial Judge did, that neither of the parties is allowed to employ any “delaying tactics” to the prejudice of the other. We should also ensure that the successful litigants are not unduly deprived of the fruits of the judgment which they had obtained even though that judgment is the subject of a pending appeal. We make the following orders:-  

(i) The order of the High Court, Lagos, in these proceedings made on the 15th April, 1974, whereby the defendants are to give up possession of the premises Nos. 35/37, Martins Street, Lagos, is hereby stayed until the determination of the appeal lodged by the said defendants. (ii) The other orders of the High Court, Lagos, in the same proceedings and judgment relating to the payment of mesne profits by the defendants to the plaintiffs or the costs of the proceedings or other costs or other orders are not stayed and they shall remain in full force.  

(iii) The Chief Registrar of the High Court, Lagos, is hereby directed to take all such steps as are necessary to get the record of appeal in this matter ready and transmit some to this court to reach it not later than the 14th December, 1974. (iv) That this appeal be listed for hearing on the 16th December, 1974, in this court. (v) That a copy of this order be served on the Chief Registrar of the High Court, lagos. (vi) That the defendants do pay to the plaintiffs the cost of the present proceedings fixed at N25.

Other Citation: (1974) LCN/1888(SC)