Vaswani Trading Co. v. Savalakh & Co. (1972)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

This motion raises in a very neat form a matter of practice which is of paramount importance and as, understandably, there is a total lack of statutory provisions on the matter, the issues for determination need rather close examination. Judgment for possession of premises situate and known as No.9, Ereko Street, Lagos, was given against the present applicants (as defendants to the action) by the High Court, Lagos, on the 29th July, 1972.

The present applicants have appealed to this Court against that judgment and they seek in the meantime that the order for possession might be stayed until the determination of their appeal to this Court. Section 24 of the Supreme Court Act provides as follows:-

“24. An appeal under this part shall not operate as a stay of execution, but the Supreme Court may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”, and Order VII, rule 37 of the Supreme Court Rules, which deals with the type of application contemplated, provides as follows:-

“37. 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.”

Hence, the applicants were bound to and indeed did apply to the High Court, Lagos, for an order for stay of execution of the judgment of that court. The motion to the High Court, Lagos, was duly heard and was on the 12th June, 1972, dismissed, the High Court ruling, inter alia, as follows:-

“On the facts of this case as found at the hearing, I cannot see any justification for granting a stay of execution. The application is therefore dismissed, but subject to this that pending the hearing of the appeal the premises shall not be let to a third party. The applicants will pay 33 pounds costs to the respondents.”

Incidentally, the 12th June, 1972 was the date on which by the judgment of the High Court, Lagos, dated the 29th May, 1972, the applicants were to give up possession of the premises concerned. However, after the dismissal of their application by the High Court, Lagos, the applicants on the following day, that is the 13th June, 1972, filed a motion to this Court asking for a stay of execution of the judgment of the High Court pending the determination of their appeal to this Court, notice of which had already been filed by then. Whilst their motion for a stay of execution was pending before this Court, as we still had to assign a date to it for hearing, and indeed on the 28th July, 1972, the respondents executed the judgment of the High Court, Lagos and took possession of the premises the subject-matter of the dispute. In these circumstances, the applicants further applied by way of motion to this Court for, inter alia:-

(ii) an order that the warrant of possession issued in the above matter be set aside and the defendants restored into possession of the property in dispute until any order that this Honourable Court might deem fit to make on the substantive motion dated the 12th June, 1972;

(iii) an order that further steps in execution of the judgment appealed from be stayed pending the hearing and determination of the substantive motion aforesaid;

(iv) accelerated hearing of the above appeal; and

(v) such further or other orders as this Honourable Court may deem fit to make.”

Both this consequential application and the original motion for stay of execution were argued and heard together and we observe that both were opposed vehemently by learned counsel for the respondents who, as stated before, were the original plaintiffs in the substantive action before the High Court, Lagos.

Before us, learned counsel for the applicants contended that to allow as matter of practice a successful party to proceed to execution in such circumstances is to condone what is tantamount to an abuse of the process of the court in that a litigant against whom similar proceedings are pending contemporaneously in two courts is entitled to a stay of action or proceedings before the lower of the two courts. Learned counsel also submitted on behalf of the applicants that the action of the respondents has the potential effect of stifling the exercise by the court of its undoubted jurisdiction and thereby destroying the subject-matter of the litigation. Learned counsel for the applicants furthermore submitted that on the principle of stare decisis this Court should on similar facts as in this case apply its own decision in the case of Sanni v. Otesanya, S.C. 8/70 decided on the 3rd February, 1970. Learned counsel for the applicants also urged in support of his application for a stay of execution that a notice of appeal to this Court had been duly filed; that the grounds of appeal show that there are substantial points of law to be raised on the appeal and that the refusal of an order for stay would render nugatory the benefits of any judgment of this Court in favour of the applicants should they succeed on their appeal.