Michael Olasubomi Balogun Vs Dorcas Oluwale Balogun (1969)

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COKER, J.S.C.

The applicant, Michael Olasubomi Balogun, has applied to this Court for a stay of execution of an order made by Adedipe J., in the High Court of Lagos on the 15th day of September, 1969, pending the decision of this Court on the appeal lodged against that order. It appears from the affidavit in support of the application that the respondent, Dorcas Oluwale Balogun, had successfully applied to the High Court of Lagos for a maintenance order against the applicant.

The applicant was adjudged to have deserted the respondent and had been by virtue of the provisions of section 22 of the Matrimonial Causes Act 1965, ordered to pay her maintenance allowance. The order of the learned judge is contained in the following portion of his judgment:- “After taking into consideration the salaries earned by both parties and their expenses, I find that the sum of £20 paid monthly by the respondent into the applicant’s account, for her maintenance and that of the child of the marriage, is totally inadequate.

Apart from the sum of £20 paid monthly to the applicant, the respondent is hereby ordered to pay the rent of £24 a month in respect of the flat occupied by the applicant and her son at No. 51 Ogunlana Drive, Surulere, from 1st October, 1968 until this order is altered or reviewed by a court of competent jurisdiction. PAGE| 2 If they have been living in the same house the husband could not have turned her out. See Bendall v. McWhirter [1952] 1 All E.R. page 1307.

As he alone lives in what should have been the matrimonial home at Apapa as he did not want the applicant to live with him there, I am of the opinion that he is bound to provide her with a reasonably suitable alternative accommodation as a matrimonial home. On the evidence before me, I cannot say that the respondent has willfully neglected to provide for the maintenance of the applicant and her son, but I find that the amount paid to her monthly for her maintenance and that of the child of the marriage is inadequate.”

An appeal has been lodged against that order and whilst the applicant is prepared to continue the payment of the monthly allowance of £20 which he now makes to the respondent he would ask for a stay on the order in respect of £24 described as rent. Learned counsel for the respondent has opposed this application and has urged on us the argument that a successful party should not except there be substantial reasons therefor be deprived of the fruits of his judgment.

He referred us as well to the classic decision of the Court of Appeal in Monk v. Bartram [1891] 1 QB. 346 where it was stated that no special circumstances were shown in the case the only ground for the application being that an appeal was being lodged on the ground of misdirection. We are in full agreement with the principle that in order to obtain a stay of execution of judgment against a successful party an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the court.

We are in no doubt whatsoever that where grounds exist on the motion suggesting a substantial issue of law to be decided on the appeal in an area in which the law is to some extent recondite and where either side may have a decision in his favour such substantial grounds as would warrant an interference clearly exist. The argument here is that the payment of rent is not the same as maintenance allowance.

We think this is an arguable point and that on that score it will be only fair to both sides that a stay should be ordered, it being understood by both sides that should the order of the High Court be affirmed the order would take effect from the date assigned to it by the learned trial judge. In the circumstances we would order a stay of execution in respect of the amount of £24 ordered to be paid by the applicant over and in addition to the £20 which it was agreed he had been paying to the respondent.

This order is made and will enure until the appeal herein is disposed of or until abrogated by any further order or orders of this Court. We make no order as to costs. Stay of execution ordered.

Other Citation: (1969) LCN/1648(SC)