Miss Olabisi Williams V. Alhaji Rabiu Busari (1973)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C. 

The application is one for a stay of execution of judgmentdebt and costs totalling ‘a32,837. 10d or N5,675 obtained by the respondent against the applicant in the High Court, Lagos. The affidavit in support of the Motion contains the usual averments suggesting difficulty or impossibility of retrieving the money from the other party in case the appeal succeeds.

There is also a counteraffidavit suggesting the ability of the respondent and his readiness at all times to pay back the judgment debt and costs to the applicant if she succeeded in her appeal to this court. We were also told at the hearing that execution had been partly levied on the applicant and as a result of this a taxi cab belonging to and operated by the applicant had been seized by the bailiff but not yet sold.Before us, learned counsel on both sides contended in support of these averments, either that the law should be allowed to take its course and stay of execution refused or that if stay of execution was not granted, the appeal would be stultified as, in any case, it would be impossible to get back from the respondent what would have been paid to him.

That brings us to the point of considering the merits of the whole application, including the fact that the action was one in damages for breaches of contract involving the sale of a taxi-meter and in respect of which the applicant complained in one of her grounds of appeal that the two parties are in turpe causa. The applicant had asked that we should grant a stay of execution but that in the meantime she should be allowed to be paying by way of deposit into this court monthly instalments which will eventually liquidate the whole debt. She indeed wanted to do so by twelve equal monthly instalment. We are not satisfied that we should make an order granting instalmental payments into this court of judgment-debt and costs obtained in another court for, quite apart from the fact that we have no supervisory powers over the mechanics of such payments, we would also be bound in those circumstances to make consequential orders which might, in the long run, be difficult to enforce.

We have however decided that the application for a stay is one which should receive our consideration, not only because of the nature of the subject-matter but because we consider that to refuse a stay in the present circumstances, when the taxi-cab involved had already been seized by the bailiff, would certainly stultify the appeal proceedings and if judgment on appeal went the other way, the result would be nugatory.

We will therefore accede to the prayer of the petition to grant a stay of execution but not on the condition requested by the applicant. We order that stay of execution of the judgment-debt and costs in this case be granted on condition that within seven days hereof the applicant execute before the Chief Registrar of this court a bond with two sureties proved to the satisfaction of the Chief Registrar to be house-owners in Lagos conditioned upon paying the entire judgment-debt and costs on the failure of the appeal.

We set aside the execution already levied and direct that the taxi-cab already seized by the bailiff should be returned forthwith to the applicant and that either party be at liberty to apply to this court for further and consequential orders in case the preparation and delivery of the records of appeal in the matter to this court are unduly delayed.

The applicant will pay to the respondent the costs of this application fixed at N21.

Other Citation: (1973) LCN/1765(SC)