J. Olayinka V. Yesufu Elusanmi & Anor (1970)

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COKER, J.S.C. 

The appellant has appealed to this Court against the judgment of Fakayode, J. (High Court, Oshogbo, Western State) whereby he has affirmed an order for an indefinite stay of execution of a judgment obtained by him against the respondent and his senior brother, one Yesufu Elusanmi. Apparently, the judgment relied upon the appellant was given by a Native Court in Ile-Ife on the 8th July, 1954; in respect of some monetary debt owing him by both the respondent and his brother.

It is conceded by the parties before us that the Native Court that gave this judgment does not now exist any longer. By a motion dated the 23rd July, 1962, and because the appellant has issued a writ of execution against him, the respondent applied to the Grade “B” Customary Court, Ife, “for an order for a stay of execution in case No.263 and 264/54 S.J. Olayinka v. Yesufu Elusanmi…” stating in the accompanying affidavit that at the time when the Native Court gave judgment against him in 1954 he was a minor. When the motion first came up for hearing in the Customary Court Grade “B” Court on the 6th September, 1962, the President of that Court made an interim order in the following terms:-

“As it appears that there is something fishy about the loan transaction, stay of execution is granted sine die.”

Later and on the 31st July, 1963, the motion was fully argued before him and he made a final order whereby he observed as follows:
“I have read the affidavit and counter-affidavit and heard counsel and I am satisfied that applicant was much under age at the time he was made surety for a loan made to his elder brother Yesufu Elusanmi. Order as prayer. Execution is stayed indefinitely…”

The appellant then appealed against this order to the High Court, Oshogbo, where his appeal was dismissed with costs. He has now appealed to this Court against the judgment of the High Court.

Before the High Court, it was submitted on behalf of the appellant that the proceedings were not competent because the judgment of the’ Native Court was res judicata as between the parties as it has not been legally and successfully challenged, that an order for a stay of execution must be contingent upon a certain legal phenomenon and that in any case the question of infancy could not be raised at that stage because it was never an issue in the substantive action in which judgment was given against the respondent. The learned Judge on appeal rejected these submissions observing inter alia, thus:

“I agree with the Lower Court that the respondent has established by evidence that he was an infant at the material time of loan and judgment.”
The Judge then went on to consider the provisions of section 4 of the Infants Law. Cap. 49 (Laws of Western Nigeria, 1959). He expressed the view that the contract of loan was one with an infant and so was void; and indeed included the following quotation in his judgment:

“The whole transaction is a nullity and any judgment or process or proceedings based on it is nothing but a nullity. see Macfoy v. United Africa Go. Ltd.”
He then dismissed the appeal of the appellant.

Before us the same arguments were put up for the parties, learned counsel for the respondent contending in favour of the judgment. To start with, we must observe that the case cited by the learned trial Judge in support of the reasoning which he had employed is clearly distinguishable from the present proceedings, and the Judge fell into the error of taking the present proceedings as one asking for the judgment of the Native Court in 1954 to be set aside.

It is not. In Macfoy v. U.A.G. Ltd. (supra), the point taken on appeal was whether the delivery of pleadings during the long vacation rendered such pleadings void or only voidable and indeed that case decided that such pleadings are only voidable at the discretion of the Court, but not void.

What the President of the Grade “B” Customary Court had before him and consequently what the Judge on appeal and this Court had, was a motion for a “stay of execution” of the judgment obtained against the respondent. It is manifest from the affidavits filed in this matter that an execution writ had already been issued against the respondent and the present proceedings are clearly to arrest the operation of the writ.

If that were so, as we have no doubt that it is, then unless a stay is being sought pending the incidence of a certain legal occurrence, a stay of execution is a completely misconceived proceeding to institute.

The order made by the President of the Customary Grade “B” Court and affirmed by the learned Judge on appeal postulates that the judgment of the native court is stayed indefinitely and is thereby divested of its legal force and effect even though it has not been appealed against or set aside in any way recognised by law.

The learned Judge on appeal took the view that the respondent has established by evidence that he was an infant at the time of the loan and therefore the transaction was void. No oral evidence was taken by him and the claim of infancy had rested on the ipse dixit of the respondent as contained in his affidavit and that of is co-debtor, Yesufu Elusanmi, who is his senior brother and indeed the principal/borrower from the present appellant. This issue even if it was relevant is hardly one to be decided without evidence.

We are satisfied that both the Customary Grade “8” Court and the learned Judge on appeal completely misconceived the entire proceedings and learned counsel for the respondent has had no argument of any substance in support of the judgment which had been affirmed. The appeal succeeds and it is allowed.

The Judgment of the High Court, Oshogbo, in Suit No. HOS/49N64, including the order for costs, and that in the Customary Grade “B” Court, Ile Ife, including the order for costs there as well, are both set aside. It is ordered that the motion of the respondent dated the 23rd July, 1962 be dismissed and this shall be the judgment of the Court.

Appeal allowed.

SC.91/69