Bisi Oyeti V Afolabia Soremekun (1963)

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ADEMOLA JSC

The applicant in this case has moved this Court praying for a stay of execution of a judgment obtained against him in the High Court of Western Nigeria until his appeal pending before this Court is determined. Previously, the applicant sought for and obtained an order in the High Court, Western Nigeria, at Ikeja, a stay, granted on conditions as follows:

IT IS HEREBY ORDERED that stay of execution be and is hereby granted on the following conditions:

“(1) The applicant shall pay to the respondent on or before the 15th day of November, 1963 the damages and costs awarded against him in this case.

(2) The respondent shall give an undertaking to return the said amount if the appeal is successful

.

(3) The applicant shall pay into Court on or before the 10th day of October, 1963 and on or before the 10th day of each succeeding month until the determination of the said appeal all rents collected by him on the building erected on the land in dispute.

(4) The applicant shall forward all bills in respect of water rates to the Registrar of the Court and these shall be met from the funds deposited in Court by the applicant.

On the final determination of the appeal by the Supreme Court of Nigeria either party shall be at liberty to apply to this Court for the disposal of money deposited in the Court. If the applicant shall fail to fulfil any of the foregoing conditions within the time stipulated the respondent may take any steps he considers necessary to enforce the judgment.”

The applicant was dissatisfied with the aforesaid conditions laid down in the High Court, which appeared onerous to him, and has therefore come to this Court to ask for the same remedy a stay of execution.

Mr. Moore for the respondent raises a preliminary objection to the application. He submitted that the application is misconceived since a stay had been granted in the High Court. He argued that the proper course is for an appeal to this Court against the Order of the High Court. It is common ground however that the application for a stay made to the High Court was in order.

Now, Order VII, rule 37, of the Supreme Court Rules, deals with applications.

It states:-

“37. Whenever an application may be made either to the Court below or to the Court,” (the Supreme 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 was argued that in accordance with Order VII, rule 37 (supra), an application of this nature can be made to this Court only if a previous application had been refused in the High Court. As this is not the case here, the submission is that in case of dissatisfaction of the Order made in the High Court, the applicant may only appeal to this Court.

We are of the view that whilst proceedings by way of appeal to this Court may be a remedy in such cases, it is not the only remedy. The provisions of section 24 of the Federal Supreme Court Act, dealing with stay of execution, are worthy of consideration.

They state:-

“24. An appeal under this part” (i.e. in civil cases) “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.”

It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High Court has been granted in the High Court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High Court are onerous or, for any other reason, are found unreasonable.

The objection therefore cannot be sustained and the application should be argued.

OTHER CITATIONS: (1963) LCN/1029(SC)