Chief Shittu Ogunremi & Ors Vs D. Asiyanbi & Ors (1962)
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BRETT, F.J
This decision covers both the present application and that in Adeniyi v. Asiyanbi and others F.S.C. 364/1962.
This is an application by the appellants for a stay of execution of the judgment of the High Court of Western Nigeria pending the determination of an appeal to this court. No application for a stay has been made to the High Court itself, and the first question to be decided is whether the present application can be entertained, in view of Order VII, rule 37, of the Federal Supreme Court Rules, 1961, which provides that-
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.
It has been suggested that such an application can only be made to this Court, by virtue of rule 19 of the same Order, which provides that-
After an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as maybe otherwise provided in this Order, every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court.
This rule, however, does not come into operation until an appeal has been “entered”, and that takes place when the record of appeal is received in this Court and entered in the cause list in accordance with Order VII, rule 12 (2), not when notice of appeal is given. The only question, therefore, is whether the application is one which the High court has power to grant.
Power to grant a stay of execution is expressly conferred on this Court by section 24 of the Federal Supreme Court Act, 1960. As regards the High Court, section 48 (3) of the Constitution of Western Nigeria provides that the High Court of the Region shall be a superior court of record, and save as otherwise provided by any law in force in the Region, shall have all the powers of such a court. Section 8 of the High Court Law provides that-To the extent that such jurisdiction shall be conferred by the Regional Legislature, the High Court shall be a superior court of record, and in addition to any other jurisdiction conferred by this or any other Law or Ordinance shall, within the limits and subject to the provisions of this Law, possess and exercise all the jurisdiction, powers and authorities which are vested in or capable of being exercised by Her Majesty’s High Court of Justice in England.
Section 19C (3) of the High Court Law, inserted by W.N. No.12 of 1961, provides that-
Where an appeal to the Federal Supreme Court is entered, or leave to appeal is granted, in any civil case, the High Court may, in its direction order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.
If, under any of these three provisions, the High Court has power to grant a stay of execution, the present application must fail; if not, the application must be considered on its merits. In my opinion the power to stay execution of its own judgment pending some further proceeding in the case, where the interests of justice require it, it is inherent in a court of record, and is therefore vested in the High Court by the Constitution of the Region. An allied power was exercised recently by Pennycuick, J., in Orion Property Trust Ltd. v. Du Cane Court Ltd. (1962) 1 W.L.R. 1085, citing Polini v. Gray (1870) 12 Ch. D. 438, and discussing the principles on which the court acts. It is unnecessary to inquire into the origin or antiquity of the power, but I may mention that provision for its exercise was included in the Common Law Procedure Act, 1852, which deals with proceedings in error, the precursor of the modern appeal, as supersedes of execution on the giving of bail in error by special order of the court (ss.150 and 151): see Justice v. Mersey Steel and Iron Company (1876) 1 C.PD. 575, where it was pointed out that under the Act, if bail in error was given execution was stayed as a matter of right; and Compare Order 58, rule 18 (6) of the present Rules of the Supreme Court in relation to appeals from County Courts. In the Supreme Court of Judicature in England the matter is now dealt with by the Rules of the Supreme Court. Order 58, rule 12, provides that-
Except so far as the court below or the Court of Appeal may otherwise direct –
(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below.
It is well settled that a Rule of Court cannot confer jurisdiction, and, as Brett, M.R., put it in Cropper v. Smith, (1883), 24 Ch. D. 305, “by that rule it is assumed that the Court of Appeal has jurisdiction”; it would be equally true to say that by the rule it is assumed that the High Court has jurisdiction. A similar assumption is made about a County Court by Order 58, rule 18 (6); about other inferior courts by Order 59; and about certain tribunals by Order 59A, rule 1. The jurisdiction is nowhere expressly conferred on any of these courts or tribunals, but it is beyond question that it is possessed by the Court of Appeal, the High Court and a County Court: see Grimshaw Barker and Elliot Ltd. v. Parker, (1910) 2 K.B. 161, for the powers of a County Court.
I hesitate to propound any general principle without a more complete review of the authorities, and of the history of the jurisdiction, than we have had in this case, but the authorities appear to me at least to justify the proposition that a court of record whose judgments are subject to appeal has inherent power to stay the execution of any judgment against which an appeal has been brought, in order to render the right of appeal more effective. It is clearly not an appellate power, since it is possessed in England by the courts from which any appeal lies as well as by those to which the appeal is brought, and this no doubt explains why the Federal legislature thought it necessary to include express provision conferring the power of ordering a stay of execution on the Federal
Supreme Court in section 24 of the Federal Supreme Court Act, 1960. But this express provision does not in my opinion, derogate from the power which the High Court possesses as a court of record.
It is true that expressions are sometimes used which would seem to imply that in England the power is derived from the Rules of the Supreme Court, but I think the true effect of the applicable rules is analogous to that of order 25, rule 5, in relation to declaratory judgments (formerly dealt with in the Chancery Procedure Act, 1852), as explained in Guaranty Trust Company of New York v. Hannay and Company, (1915) 2 K.B. 536, by Pickfrod, LJ., at p.562-4, and by Bankes, L.J., at pp.567-570. That is to say, that it regulates the practice of the Court in the exercise of a power derived aliunde, and does not confer a power.
If this view is correct, it is not strictly necessary to consider whether the Regional Legislature has validly, if superfluously, conferred this particular power on the High Court, either by the general words vesting in it all the jurisdiction, powers and authorities of the High Court of Justice in England or by the express words of section 19C(3), but the point was fully argued before us and in case I am mistaken on the fast ground I think it is right to say that in my opinion the legislature can validly confer such a power, and that even if the High Court had not the necessary power as a court of record it would have it by virtue of the High Court Law. The Regional legislature is empowered to make laws for the peace, order and good government of the Region with respect to any matter not included in the Exclusive Legislative List, so long as such laws are not inconsistent with the Constitution of the Federation or of a region, or with any Federal Law. Judged by this test, the only provision which has been suggested as capable of invalidating the sections conferring this power is section 110 (6)(b) of the Constitution of the Federation, which provides that-
Any right of appeal to the Federal Supreme Court from the decisions of the High Court of a territory conferred by this section-
(b) shall be exercised in accordance with any Acts of Parliament and rules of court for the time being in force in the territory regulating the powers, practice, and procedure of the Federal Supreme Court Paragraph (a) of this subsection deals with the persons by whom a right of appeal may be exercised, and in my opinion paragraph (b) deals solely with the manner in which a person having a right of appeal is to proceed in exercising his right. I do not consider that it can be interpreted as containing an implied prohibition which would preclude a Regional Legislature from empowering the High Court of the Region to stay execution of its own judgment when an appeal to the Federal Supreme Court is brought. Since it is clear that when the judgment appealed against related to a Regional matter the Federal legislature cannot confer this power on a Regional High Court, the effect of such a prohibition would be that no legislature in the Federation could confer the power on any court other than the Federal Supreme Court in such a case. It cannot be said that such a prohibition is necessary for the due exercise of its functions by the Federal Supreme Court, indeed for the reasons stated in Orion Property Trust Ltd. v. Du Cane Ltd. (supra) it is expedient for that purpose that the High Court should possess the power.
Sections 107(1) and 110(1) of the Constitution of the Federation expressly provide that the jurisdiction which they confer on the Federal Supreme Court is conferred on it to the exclusion of any other court, and if it had been intended that the power of staying execution of the judgment of a High Court pending an appeal should not be conferred on any court other than the Federal Supreme Court, I should have expected more explicit wording.
If it is accepted that a Regional legislature may confer this power on the High Court of the Region, it must follow from what I have said earlier in this judgment about the powers of the High Court in England that the legislature of Western Nigeria has conferred the power by the general words of section 8 of the High Court Law, and that the enactment of section 19C (3) was not strictly necessary. It also follows that if the High Court of any other territory in Nigeria has been vested with the jurisdiction powers and authorities of the High Court in England it possesses the power to order a stay of its own judgment pending an appeal to this Court.
To sum up, I am of the opinion that both as a court of record and by the virtue of the High Court Law, the High Court of Western Nigeria has power to order a stay of execution in the present case, and I would strike out the motion with costs assessed at five guineas.
Other Citation: (1962) LCN/0999(SC)
