A. U. Deduwa & Ors Vs Emmanuel Amoma Okorodudu & Ors (1974)

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ELIAS, CJN. 

On Monday, June 10, 1974, this Court heard arguments for and against the motion brought by the applicants on the Ruling of Atake, J., given on January 7, 1974, in consolidated suits No.W/22/68 and No. W/28/69 in which the learned trial Judge, in answer to the applicants’ application before him for a stay of execution of the judgment and orders and costs awarded against them in the two consolidated suits, made the following orders:  

“(1) That the order of forfeiture and injunction made in the judgment of this Court is hereby stayed only in respect of the area occupied and settled on by the applicants which area is shown in the plan T. J. M. 1609 (Exhibit 1) and which area to be more precise is all that area in the said plan T. J. M. 1609 (Exhibit 1) verged pink but less the areas: (a) verged yellow, (b) verged purple, and (c) hatched blue, pending the determination of their appeal to the Supreme Court. (2) That the applicants shall not,pending the determination of their said appeal be at liberty to lease or let orin any other way alienate that part of the land verged pink in plan T. J. M.1609 (Exhibit 1) on which they are now allowed to continue their settlement and occupation as ordered in (1) above.

Any alienation so made or any attempt to make one shall not only be deemed a contempt of the order of this Court punishable by imprisonment for 6 months with hard labour for each occasion on which it is made but shall be without effect whatsoever. (3) That the costs awarded against the applicants in this suit be paid into Court within 30 days from today. (4) That on the respondents entering into Bond verified with an appropriate affidavit to refund the costs in the event of the applicants succeeding on appeal the Higher Registrar of this Court shall be at liberty to pay out the costs to the respondents.”  

In support of the present motion asking that this Ruling be set aside, Dr. Odje, learned counsel for the appellants argued that the learned trial Judge should have granted as prayed a stay of execution of the judgment of the Warri High Court delivered on November 24, 1973. He relied on the several paragraphs of the affidavit exhibited to the motion, particularly paragraphs 3-7 and 11-19 which contain a narrative of events that took place in the Warri High Court during which, after having been granted leave to appeal to the Supreme Court on November 19, 1973, certain of their numbers were on the following day convicted of contempt of court and their unsuccessful attempt to have the case transferred to another court to be handled, if possible, by another lawyer.

Little also was argued in support of the motion itself for a stay of execution except that we were referred to Vaswani Trading Co. v. Savalakh & Co. (1972) 12 SC. 77, at pp. 90-91, in which this court granted a stay of execution in circumstances which seem to us to be quite different from those in the present case.

In that case, the applicants for a stay of execution had been forcibly ejected by the successful party in pursuance of the judgment, but that is not the position in this case since the ruling being appealed against ordered the maintenance of the status quo ante pending the determination of the appeal which had already been lodged in the substantive action. Learned counsel also briefly stressed that the appellants would suffer hardship if the orders for forfeiture and injunction were not stayed by this court. Although we were not told precisely why or how.  

Chief Williams for the 1st and the 2nd respondents, Chief Awolowo for the 3rd respondent, Mr. T. K. Dugbo for the 4th respondent and Dr. Ajayi for the 5th to the 14th respondents severally and individually opposed the motion on the grounds (a) that the grant of a prayer for a stay of execution is a matter solely within the discretion of the court,and (b) that learned counsel for the applicants had dwelt almost exclusively on matters not bearing directly on the issue of whether or not stay of execution should be granted under the motion before this court.    

It is settled law that three main considerations would seem to underlie the grant by a court of a prayer for stay of execution: (a)a stay of execution will not be granted if to grant it might deprive the winner in the court below of the fruits of its victory: Barker v. Ladery (1885) 14 QBD 769, at 770; (b) a stay of execution should not be refused if the effect of such refusal would render the appeal nugatory, if it should be eventually successful; Wilson v. Church (No. 2) (1879) 12 Ch b. D. 454, at 457;and (c) if the request for stay and the subject-matter of the appeal have the same subtratum so that the grant of the one would dispose of the other, the stay of execution should be granted: Metropolitan Real & General Properties Trust Ltd. v. Slater (1941) 1 All ER 310.

As can be seen from the Orders against which this motion has been brought, these considerations would not seem to justify our grant of a stay of execution of the orders contained in the Ruling of Atake, J., dated January 7, 1974.

This is the reason why on Tuesday June 11, 1974, we refused the applicant’s motion.

Other Citation: (1974) LCN/1908(SC)