J.O Ojosipe v. John Dada Ikabala & Ors (1972)

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T. O. ELIAS, C.J.N. 

This is an application on behalf of defendant/applicant for an order:-

(i) for leave to appeal to this Honourable Court from a decision of the Lagos High Court made in the above matter on Monday, 21st February, 1972;

(ii) for leave to appeal to this Honourable Court from a decision of the Lagos High Court made in the above matter on Monday, 13th March, 1972;

(iii) staying all further proceedings in the said action in so far as it relates to each of the orders appealed from; and

(iv) such further or other orders as this Honourable Court may deem fit to make.

The affidavit in support of the application discloses that in Suit No.LD/967/71 in the High Court of Lagos the plaintiffs/respondents claimed against the defendant/applicant as follows:-

1. A declaration that the plaintiffs were entitled under Yoruba native law and custom to over 800 acres of the 1,152 acres of land acquired by the Federal Government at Iju Adiyan for the Iju Catchment Board and for which the defendant received the sum of 3518,805pounds compensation as the landowners’s agent.
2. An account of what is due to the plaintiffs from the defendant in respect of the sum of 3518,805pounds received by the defendant as the landowners’ agent for or on account of the plaintiffs, and an order for the payment by the defendant to the plaintiffs of what is found due on taking the said account.

Annual rental value 3100pounds.

The plaintiffs by an application to the High Court of Lagos dated 11th January, 1972, moved the court for orders:-

1. restraining the defendant from further disbursing the sum of 3518,805pounds compensation money for the plaintiffs’ land paid to the defendant until this action is decided, and
2. commanding the defendant to pay the said money into court for the preservation of the said sum of 3518,805pounds or whatever balance thereof remains until the determination of this action and for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

On 21st February, 1972, Lambo J. made the following order on the application:-

(a) That the defendant do deposit the sum of 3500,000pounds into the Central Bank within 72 hours.

(b) That the bank teller should be filed not later than Friday, 25th February, 1972..

(c) That the defendant should appear personally before him on Monday, 28th February, 1972, for consequential orders in the event of his failure to comply with the above orders.

It is against this order that the present application has been brought. The defendant/applicant averred in his affidavit that, of the total sum of 3518,805pounds he received pursuant to the decision of the Ikeja High Court in Suit No. IK/185/63, he still had only a sum of 3152,390pounds which he was holding to the plaintiff’s credit, having disbursed a substantial portion of it.

When the defendant/applicant applied for leave to appeal from and for a stay on the orders of 21st February, 1972, the Court adjourned the application until he complied with a further order that the defendant inter alia deposit the sum of 3500,000pounds with the Central Bank of Nigeria. The defendant next applied to the Supreme Court for leave to appeal from this interlocutory order of the High Court, but the Supreme Court gave a ruling on 1st March, 1972, refusing the defendant’s application and striking it out.

On 13th March, 1972, the learned judge made the following consequential orders, pending a ruling on the defendant’s application:-

1. That the defendant do file an affidavit showing full particulars of payments made by him from the time he received the 3518,805pounds until today. The particulars, which should be under four categories, shall contain the names and addresses of:

(A) The landowners,

(B) The lawyers,

(C) The defendant himself, and

(D) The orders

to whom money was paid, and the amount paid to each of them. If the payment was by cheque, the number and date of the cheque must be stated.

2. That a statement of account, duly certified by the Bank’s accountant, covering every item of payment in respect of the said sum of 518,805 must be filed along with the affidavit.
3. That the defendant shaIl comply with these orders not later than Friday, the 17th March, 1972, and effect service of all papers on the plaintiffs’ counsel and the Attorney-General, as was previously ordered.

The defendant/applicant thereafter applied for leave to appeal from and for a stay of the decision of the High Court, but his application was refused on 22nd March, 1972, by the learned judge who proceeded to direct that the order he made on 13th March, 1972, be complied with by 25th March, 1972, failing which he warned that serious consequences would foIlow. The learned trial judge later agreed to adjorn the matter by extending the time within which to comply with the order to 28th March, 1972.

The applicant stated in his further affidavit that he filed a motion for extension of time within which to comply with the order of 13th March, 1972, and a copy of the motion and affidavit before this Court was exhibited to the affidavit in support of that application. On 30th March, 1972, the learned judge dismissed the application for extension of time, describing it as dishonest and an abuse of the process of the Court. The learned judge then proceeded to commit the applicant to prison for six months for contempt and an application for bail pending appeal was refused. The applicant thereafter made a further oral application for leave to appeal from the committal order, but a decision on this application was adjourned to 10th April, 1972.

The appellant next filed two notices of appeal both in civil and in criminal forms as he considered the true nature of the committal uncertain. On 20th March, 1972, the judge heard arguments on the applicant’s application for an order dismissing the action on the ground that, even if all the facts alleged in the statement of claim were established, the plaintiffs would not be entitled to a decree. It is to be noted that, up to the beginning of the present matter, judgment on the motion had yet to be delivered.

In his ruling of 22nd March, 1972 (exhibit B1), the learned judge stated as follows: “In order that I might decide whether to grant or refuse leave to appeal against my order of the 21st February, 1972, in the exercise of my discretion, I ordered the defendant to file particulars of payments made by him from the time he received the 3518,805pounds until the date of the order. The particulars might show that there was justification for making the order for defendant to deposit the 3500,000pounds; on the other hand, they might not. But it is not until the particulars are filed will I be able to say whether leave to appeal from the order should be granted or refused.” It seems clear to us that the application for an order for leave to appeal against the order of the Lagos High Court made in this matter on 21 st February, 1972, is still pending in that Court, and that we should accordingly not interfere with it. We are of the view that section 21(2) and (3) of the Supreme Court Act 1960 and 0.7, r. 37 both require that the application in the lower court should first be disposed of before an application for leave to appeal can be brought in this Court. See our ruling in S.C. 42/1972 of 1st March, 1972 (ante, p. 128).

As regards the order made on 13th March, 1972, however, we think that the defendant’s application to the learned judge for leave to appeal against that order was rejected in these words:

“Defendant’s application, therefore, fails and it is hereby dismissed: Leave to appeal to the Supreme Court is refused; also refused is the order staying all further proceedings in this section in so far as it relates to the order appealed from.” Nevertheless, it seems to us that leave to appeal to this Court ought not to be granted in respect of the order made on 13th March, 1972, since the subject-matter is ancillary to that of the main order of 21st February, 1972, which, as we hold, is still pending before the Lagos High Court. The learned judge indeed stated specifically that the orders of 13th March, 1972 were made, “pending a ruling on defendant’s application.” The learned counsel for the applicant opened his argument with the assertion that this was his main prayer in the motion he brought. It is accordingly unnecessary for us to consider the cases cited to us on this score by the learned counsel for the appellant.

One matter on which we would like to comment relates to paragraph 9 of the defendant’s affidavit, quoted by the learned trial judge in his ruling given on 30th March, 1972. It reads as follows:-

“That although it is physically not possible for me to comply with the order of the court by twelve noon today for the reasons mentioned in paragraphs 4 and 5 of this affidavit, my counsel have advised and I verily believe that even after getting over the physical difficulties I ought not to comply with the order prior to the hearing and determination of my application to the Supreme Court.”

In view of the defendant’s earlier application on the same day to the Court “to grant him extension of time in which to comply with the order”, it does not seem right to us that the defendant should later on the same day swear to an affidavit saying that his counsel had advised and that he himself believed that he should not comply with the order, and this despite the qualification “prior to the hearing and determination of my application to the Supreme Court.” The proper Course for the defendant to have taken was to have applied for a stay of execution rather than for an extension of time.

The learned counsel for the applicant invited us to make a definitive ruling on the question whether or not notice of appeal from the ruling of a High Court judge should operate as a stay of execution or of proceedings arising out of his decision in the absence, apparently, of any contrary direction either by that High Court or by the Supreme Court. We are of the opinion that it would be clearly undesirable that a judge in the court below who has proper notice of an appeal to this Court should nonetheless proceed with the case in disregard of such notice. indeed, the learned trial judge, in his ruling of 30th March, 1972, said:

“Even if the application is genuine, there is undoubted authority for the proposition that an appeal does not operate as a stay of execution or of proceedings under the decision of the court below, except in so far as the court below or the Court of appeal may otherwise direct. There is no such direction so far. If there had been any, it would have been most discourteous of me to act in disregard of the order of a competent Court of superior jurisdiction, which in this case is the Supreme Court of Nigeria. ”

We therefore think it inappropriate to lay down any general rule that notice of appeal to a superior court, if duly given to a lower court, should be deemed to operate in every case as a stay of execution of the decision of that lower court. Judges are entitled to be trusted not to disregard the existence of such notice. In any case, we are of the view that each case must be considered in the light of its own peculiar facts, and that care must be taken not to lay down a new rule.

In the circumstances, the application is hereby refused.

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SC.42/1972