Nigeria Ports Authority & Anor V. Construzioni General Farsura Cogegar Spa & Anor (1974)
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COKER, JSC.
This ruling concerns an application by Messrs. Construzioni Generals Farsura Cogefar – S.P.A. (1st defendant) for an order:- “directing that the terms upon which stay of execution was ordered by the court below should be modified by permitting the Chief Registrar of the High Court of Lagos State to instruct the Standard Bank of Nigeria Limited to place the sum of £287,986 to the credit of the 1st defendants upon the said defendants pro-viding a guarantee from the said Bank to refund the money aforesaid or any part thereof to the plaintiff in the event of an Order of this Honourable Court to that effect.”
The application is supported by an affidavit of counsel for the applicants and indeed most of the facts of the case are set out in that affidavit. It appears that the applicants were defendants in an action instituted in the High Court, Lagos, in which the plaintiffs were the Nigerian Ports Authority, the applicants were the 1st defend-ants and one Joseph Warren McEwen the 2nd defendant.
The claim in the Suit re-lates to an amount of £163,134 which the plaintiffs had claimed either as money had and received to their use together with Interest and damages or as general damages for deceit. The present applicants then counter-claimed in the action for a sum of £287,986 as “money due and payable by the plaintiffs to the 1st defend-ants on an agreement between the parties”.
In course of time, the High Court, Lagos, heard the case and gave judgment therein dismissing the plaintiffs’ case and entering judgment for the applicants on their counter-claim. Thereupon, the plaintiffs in the action, i.e. the Nigerian Ports Authority, filed an appeal against the said judgment and applied to the High Court, Lagos, for a stay of execution of the judgment debt and costs pending the determination of their appeal which they had filed.
The application of the plaintiffs for stay of execution was decided on the 7th February, 1972 and concerning that decision the affidavit accompanying the pres-ent application states as follows:- “8. That by an Order dated the 7th day of February, 1972 (a copy whereof is attached herewith and marked Exhibit “3”) the court decreed, inter alia, that the judgment debt of £287,986 be deposited in court and paid by the Chief Registrar to the Standard Bank of Nigeria Limited on fixed deposit pending the determination of the appeal. 9. That the 1st defendants have reached an agreement with the Standard Bank of Nigeria whereby the said Bank are prepared to guarantee that in the event of the Supreme Court making an order that the sum of £287,986 or any part thereof be refunded to the plaintiff and the 1st defendants fail or neglect or are unable so to refund same, they (the said Standard Bank of Nigeria Limited) would be prepared to do so.”
It is therefore obvious that what the present applicants want this Court to do is to direct that the amount of £287,986 should be paid out by the Standard Bank of Nigeria Ltd. to the applicants. Learned counsel for the applicants before us submitted that where a stay of ex-ecution is granted by the High Court on terms which are unreasonable or op-pressive an application may be made to this Court for a stay of execution when this Court, by virtue of powers conferred on it by section 24 of the Supreme Court Act, can make a fresh order for a stay; such order having the effect of varying the conditions imposed by the court below.
On the other hand, learned counsel for the 1st respondents to the Motion, that is the Nigerian Ports Authority, opposed the Motion, submitting that it was grossly misconceived in that the present applicants have neither asked for nor obtained any order for a stay of execution which could be varied at their instance. Learned counsel for the respondents also submitted that the applicants could only have suggested the type of order which they now seek in the present application if the Nigerian Ports Authority had themselves asked for an order for a stay of execution in this Court. We point out at this juncture that learned counsel for the 2nd respondent, that is Mr. J.W. McEwen, stated that he was not opposing the Motion.
Section 24 of the Supreme Court Act provides as follows:- “An appeal under this Part shall not operate as a stay of execution, but the Su-preme Court may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.” Although the section speaks of “conditions as may be imposed in accordance with rules of court” no such rules have been made; but it is a generally recognised practice to give or impose conditions under which an order for a stay of execu-tion is being made. We are in agreement with learned counsel for the applicants that section 24 of the Supreme Court Act does give this Court the power to order a stay of execution.
We are also in agreement with him that this Court has the necessary jurisdiction to make an order for stay of execution on terms or condi-tions which may differ from those imposed by the court below in granting a simi-lar prayer. These matters were given consideration in the case of Oyeti v. Soremekun (1963) 1 All N.L.R. 349 where at p.351 this Court made the following observations:- “It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High Court has been granted in the High Court; an applicant may, if he so desires, seek more fa-vourable conditions in the Supreme Court, if he thinks the conditions laid down by the High Court are onerous or, for any other reason, are found unreason-able.”
In that case, however, the party who had applied for a variation of the terms or conditions was the party who had applied for the stay of execution. In Akerefe v. Adedun, SC. 13/70, decided on the 9th June, 1970, this Court held, but at the in-stance of the party who had applied for a stay of execution, that ft would exercise its jurisdiction to vary the conditions imposed on granting a stay of execution by the High Court even IF such variation would be tantamount to annulling those con-ditions.
It seems clear that the jurisdiction to vary the terms or conditions on which a stay of execution was granted has always been exercised at the instance of the party who had sought the order for a stay. This indeed accords with common sense for If the other party was dissatisfied with the granting of an order for stay of execution, his remedy is to appeal against that order to be varied at his own in-stance.
Furthermore, such a party may not by himself apply for an order for stay of execution because judgment not being against him there was nothing which he could apply to be stayed. It is common ground, however, that the present applicants did not apply to the court below, and indeed to us, for any order for stay of execution. In this connec-tion, the argument of learned counsel for the applicants that either of the parties can apply for a stay of execution clearly overlooks the nature of the application which must and can only ensure at the instance of a party against whom execution could be and/or is being levied.
Apart from this, the type of prayer as well as the corresponding order would be meaningless if a party who had won a case could then apply to the Court for a stay of execution. We are ourselves in no doubt that any application for a stay of execution postulates that the party applying for it had lost the action or some part of the action; that he has appealed against the judgment or portions of it and that pending the determination of his appeal or such other contingency as may be specified, he would want that any form of execution which could be or Is being levied against him should be stayed by the court.
We point out again that the present applicants were on their counter-claim in the High Court, Lagos, adjudged entitled to the amount they claimed and indeed they got judgment for that amount. They could not and did not appeal from the judgment and clearly they fall outside the category of persons contemplated by an application for stay of execution for, at the very least, it must be accepted that as against them it is not possible to levy any form of execution. They have now asked for the terms on which an order for stay of execution was made in favour of the 1st respondents, i.e. the Nigerian Ports Authority, to be varied. The 1st respondents, i.e. the party which had obtained the order, have not complained about that order and the resistance of the application in this Court by learned counsel for the 1st respondents is sufficient evidence of their own aversion, at any rate at this stage of the proceedings, to an alteration of the terms on which they had obtained an order for a stay of execution.
As the present applicants are incapable of asking for an order for stay of execution, and have neither sought nor obtained such an order, it must follow that this Court cannot accede to the prayer in their application. We are not in agreement with learned counsel that the issues herein raised concern the exercise of its jurisdiction by this Court rather we think that these are matters of substantive law and whilst we are prepared to exercise jurisdiction over an application for a stay of execution, we cannot do so where, by the very language of the relevant law, the applicant does not come within the category of those persons or parties to whom the benefit of section 24 of the Supreme Court Act is available.
We have come to the conclusion that we are unable to accede to this Motion. We are rather impressed by the submissions of learned counsel for the 1st re-spondents that there was a gross misconception of the law to the stated or proved facts of this case. The application therefore fails and it is refused.
We order that the motion be and it is hereby dismissed. The applicants shall pay to the 1st re-spondents the costs of the application fixed at 7 guineas. We make no order for costs in favour of the 2nd respondent who had not opposed the Motion.
Appeal refused.
Other Citation: (1974) LCN/1840(SC)
