Coker V Adeyemo & Anor (1965)

LawGlobal-Hub Lead Judgment Report

BRETT, J.S.C.

In this case three plaintiffs sued the defendant in the High Court of Western Nigeria claiming general and special damages for trespass to land and goods and an injunction to restrain the defendant from entering upon the land or doing anything adverse to their possession.

The third plaintiff withdrew, leaving Lamidi Adeyerno and Esther Titi as plaintiffs; later Juliana Ezekiel was substituted for Esther Titi for reasons which have not been made known to this Court. When the case came up for hearing in the High Court the defendant was absent and his counsel produced a certificate showing that he was excused duty on medical grounds and applied for an adjournment.

The judge formed the opinion that this was merely a device to delay the trial of the action and refused an adjournment. He also refused to permit counsel to withdraw from the case, hut counsel declined to cross-examine the plaintiffs witnesses, or to take any other part in the proceedings.

On the 17th March, 1965, the judge delivered his judgment awarding £399 special damages and £50 general damages to the first plaintiff and £315. 1Os special damages and £50 general damages to the second plaintiff, and granting the injunction asked for, besides 220 guineas costs.

The defendant gave notice of appeal against this judgment and also filed a motion asking the High Court to set aside the judgment as having been given in his absence. The High Court refused the application, but granted leave to appeal against its refusal, and it appears that two appeals to this Court may be pending. The High Court also refused to stay execution of its judgment and the defendant has now applied to this Court for a stay of execution as regards the damages, the injunction and the costs. The main ground for the application is the assertion, said to be based on the applicants personal knowledge, that the respondents arc poor people who would not be able to refund the damages if the appeal succeeded.

The Court is always slow to grant a stay as regards costs, and counsel for the parties agreed in open court that the costs awarded should be paid to Mrs Fowler, the respondents counsel, who undertook that they would be refunded if this Court so ordered. On this understanding the application is refused as regards the costs. As regards the damages, the first respondents counter-affidavit states as follows:-

‘1. That I am the 1st plaintiff in this suit and I have the authority of the 2nd plaintiff to swear to this Counter Affidavit.

2. That the damage awarded by the learned trial judge was in respect of the business properties and goods destroyed and taken away by the applicant.

3. That the applicant in his pleading admitted removing certain articles belonging to us.

4. That the amount awarded included only £100 in respect of unliquidated damages.

5. That before the destruction of our properties by the applicant, we were quite substantial people.

6. That we will be in a position to refund the amount involved should the applicants appeal succeed.’

This certainly leaves it doubtful whether the respondents could refund the damages if ordered to do so, and Mrs Fowler was unable to make any firm offer to provide security. At the same time it is hardly fair to penalize the respondents if, as they allege, their lack of means has been caused by the wrongful actions of the applicant. We think justice will be met by granting a stay on condition that within one month the applicant shall pay £400 into the High Court towards the special damages and give security with not less than one surety, to the satisfaction of the Chief Registrar of the High Court, for the balance of the special and general damages awarded, amounting to £414. lOs. Od. Each respondent may withdraw up to £200 on giving similar security with not less than one surety for its refund if this Court so orders. A stay of the injunction is refused, so that the status quo may not be disturbed.

We observe that in refusing a stay the judge of the High Court interpreted the decision of this Court in Ogunremi v. Dada FSC.220/1962 as meaning that he had no power to grant a stay until the appeal had been ‘entered’ in this Court within the meaning of Order 7, rule 19 of the Supreme Court Rules, that is to say until the record of appeal had been received in the Supreme Court and entered in the cause list. As this is likely to take months or even years, such an interpretation would make the power of granting a stay almost valueless. It is true that s.19C(3) of the High Court Law empowers the High Court to grant a stay ‘when an appeal to the Supreme Court is entered or leave to appeal is granted,’ but we regard it as clear that an appeal is ‘entered’ for the purposes of that section when the notice of appeal is received in the Registry of the High Court and we do not consider that the decision in Ogunremi v. Dada requires any other interpretation to be put on the section. The true position is as follows.

At any time after the notice of appeal has been received in the High Court or leave to appeal has been granted, and before the Supreme Court has become seized of the whole of the proceedings under Order 7, rule 19, a stay of execution may be ordered either by the High Court under its inherent jurisdiction: Ogunremi v. Dada; and under s.19C of the High Court Law, or by the Supreme Court, under s.24 of the Supreme Court Act 1960. At that stage Order 7, rule 37 of the Supreme Court Rules requires the application to be made to the High Court in the first place and the High Court has jurisdiction to entertain and adjudicate on it. After the record of appeal has been received in the Supreme Court and entered in the cause list under Order 7, rule 12(2), Order 7, rule 19applies and since the Supreme Court is by then seized of the whole of the proceedings any applications, including applications for a stay, should be made to the Supreme Court either direct or through the High Court. We trust that the position is now clear and that there will be no further misunderstandings of the High Courts power.

The order will be as stated and the respondents are awarded 5 guineas costs of the application.

Other Citation: (1965) LCN/1263(SC)