Tika Tore Press Limited (Administrators Of The Estate Of Monsuru Badaru Abina, Deceased) V Tika Tore Press Limited (1968)

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ADEMOLA,    C.J.N 

The applicants, who are the administrators of the estate of Monsuru Badaru Abina (deceased), have applied to the High Court of Lagos State to have their names substituted in the books of the company for the deceased who, in his life time, held some shares in the respondent company known as Tika Tore Press Ltd. The court on 2nd April, 1968, granted the application and the company filed a notice of appeal against that ruling. A notice of motion was also filed in the High Court asking for a stay of execution pending the determination of the appeal. The learned judge of the High Court refused to grant a stay whereupon the company promptly applied to this court for a stay.    In opposing this application, counsel for the respondents [the administrator] filed a preliminary objection stating that the court cannot entertain an application for a stay in this matter since no appeal has been entered in this court.

In the argument which ensued, counsel on both sides agreed that although a notice of appeal had been filed, no appeal has indeed been entered in this court. It is also common ground that after an appeal has been entered in this court, until it is finally disposed of, the court shall be seized of the whole of the proceedings between parties to the matter by virtue of section 22 of the Supreme Court Act and also in accordance with order VII, rule 19, of the Supreme Court Rules; but ac-cording to order VII rule 12(2) however, an appeal is not entered until the record of appeal has been received in this court and entered in the cause list.

The rule reads:-

(2) The Registrar of the court below shall also cause to be served on all par-ties mentioned in the notice of appeal who have filed an address for service a notice that the record has been forwarded to the Registrar of the court who shall in due course enter the appeal in the cause list.”

In the case of Ogunremi and anor. v. Dada (1962) 1 All N.L.R. 663, this court at p. 668 of the report decided that an appeal to the Supreme Court is entered when the record of appeal is received in that court and entered in the court list in accordance with the above rules. In that case, judgment was entered in favour of the plaintiffs against the defendant in the High Court of the then Western Region. The defendant caused a notice of appeal to be filed in that court and then filed a motion in the Federal Supreme Court (as this court was then) for a stay of execution. The court refused to stay on the ground that a notice of appeal had not been entered in the court.

The present application differs from that made in Ogunremi and anor v. Dada (supra) in that the would be appellant, the company in this case, had previously made an application for a stay to the High Court which had been refused. The application therefore was in accordance with order VII rule 37 which states:-

“37.    Whenever an application may be made either to the court below or to the court it shall be made in the first instance to the court below, but If the court below refuses the application, the applicant shall be entitled to have the application determined by the court.”

The power on the Supreme Court to grant a stay of execution pending the determination of an appeal in civil cases is conferred by section 24 of the Supreme Court Act.

The effect of the jurisdiction of the High Court as a superior court of record to deal with matters before it and proceedings subsequent to its judgments are fully dealt with in our judgment in Ogunremi and anor v. Dada (supra) and it will be out of place to deal further with this in this judgment.

The question which arises for our decision is whether the present application can be heard in this court under order VII rule 37 without an appeal being formally entered in this court.

It appears to us that the object of order VII, rule 12 (2) (supra) is for the court, before hearing an application for a stay, to assure itself that the application was genuine and that the applicant has not applied to the court for a stay merely with the object of delaying or preventing the successful party from reaping the fruits of his judgment.

The conduct of the applicant that he is anxious to have the matter finally determined in the Supreme Court will be judged (although it is not conclusive) by the fact that he has entered his appeal in the Supreme Court.

When, how-ever, the applicant has filed his notice of appeal in the High Court and has followed is up by an application for a stay of execution in that court and his application is refused, his determination to appeal is manifested by his second application to this court when it is clear that he genuinely wished to appeal but it was not possible within that period to get the record of appeal ready in the High Court and it will be an injustice ff he were deprived the opportunity of putting his application before the court.

We are therefore of the opinion that where a first application has been made to the High Court in the first instance and refused, an application to this court under order VII, rule 37 could be heard and decided on its merits even though no appeal has been entered in the court within the meaning of order VII, rule 12(2).

The objection therefore fails and the court will hear the application for a stay.

Other Citation: (1968) LCN/1593(SC)