Vaswani Trading Co. v. Savalakh & Co. (1972)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

This motion raises in a very neat form a matter of practice which is of paramount importance and as, understandably, there is a total lack of statutory provisions on the matter, the issues for determination need rather close examination. Judgment for possession of premises situate and known as No.9, Ereko Street, Lagos, was given against the present applicants (as defendants to the action) by the High Court, Lagos, on the 29th July, 1972.

The present applicants have appealed to this Court against that judgment and they seek in the meantime that the order for possession might be stayed until the determination of their appeal to this Court. Section 24 of the Supreme Court Act provides as follows:-

“24. An appeal under this part shall not operate as a stay of execution, but the Supreme 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.”, and Order VII, rule 37 of the Supreme Court Rules, which deals with the type of application contemplated, provides as follows:-

“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.”

Hence, the applicants were bound to and indeed did apply to the High Court, Lagos, for an order for stay of execution of the judgment of that court. The motion to the High Court, Lagos, was duly heard and was on the 12th June, 1972, dismissed, the High Court ruling, inter alia, as follows:-

“On the facts of this case as found at the hearing, I cannot see any justification for granting a stay of execution. The application is therefore dismissed, but subject to this that pending the hearing of the appeal the premises shall not be let to a third party. The applicants will pay 33 pounds costs to the respondents.”

Incidentally, the 12th June, 1972 was the date on which by the judgment of the High Court, Lagos, dated the 29th May, 1972, the applicants were to give up possession of the premises concerned. However, after the dismissal of their application by the High Court, Lagos, the applicants on the following day, that is the 13th June, 1972, filed a motion to this Court asking for a stay of execution of the judgment of the High Court pending the determination of their appeal to this Court, notice of which had already been filed by then. Whilst their motion for a stay of execution was pending before this Court, as we still had to assign a date to it for hearing, and indeed on the 28th July, 1972, the respondents executed the judgment of the High Court, Lagos and took possession of the premises the subject-matter of the dispute. In these circumstances, the applicants further applied by way of motion to this Court for, inter alia:-

(ii) an order that the warrant of possession issued in the above matter be set aside and the defendants restored into possession of the property in dispute until any order that this Honourable Court might deem fit to make on the substantive motion dated the 12th June, 1972;

(iii) an order that further steps in execution of the judgment appealed from be stayed pending the hearing and determination of the substantive motion aforesaid;

(iv) accelerated hearing of the above appeal; and

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

Both this consequential application and the original motion for stay of execution were argued and heard together and we observe that both were opposed vehemently by learned counsel for the respondents who, as stated before, were the original plaintiffs in the substantive action before the High Court, Lagos.

Before us, learned counsel for the applicants contended that to allow as matter of practice a successful party to proceed to execution in such circumstances is to condone what is tantamount to an abuse of the process of the court in that a litigant against whom similar proceedings are pending contemporaneously in two courts is entitled to a stay of action or proceedings before the lower of the two courts. Learned counsel also submitted on behalf of the applicants that the action of the respondents has the potential effect of stifling the exercise by the court of its undoubted jurisdiction and thereby destroying the subject-matter of the litigation. Learned counsel for the applicants furthermore submitted that on the principle of stare decisis this Court should on similar facts as in this case apply its own decision in the case of Sanni v. Otesanya, S.C. 8/70 decided on the 3rd February, 1970. Learned counsel for the applicants also urged in support of his application for a stay of execution that a notice of appeal to this Court had been duly filed; that the grounds of appeal show that there are substantial points of law to be raised on the appeal and that the refusal of an order for stay would render nugatory the benefits of any judgment of this Court in favour of the applicants should they succeed on their appeal.

For the respondents it was argued by learned counsel that section 24 of the Supreme Court Act clearly stipulates that an appeal would not operate as a stay of execution and that when he caused execution to be levied he was not aware of any proceedings for stay of execution pending in this Court and that in any case the application for stay of execution, in view of the affidavit in support of it, should be regarded by this Court as lacking in substance since nothing special was shown as a ground for asking for the stay. Learned counsel also submitted for the respondents that the court should not deprive a successful litigant of the fruits of his judgments unless very strong reasons are shown for doing so and that such strong reasons are not shown in the present application.

The arguments of learned counsel on both sides clearly set out the facts and indicate precisely the issues to which we must turn our direction. When the order or judgment of a lower court is not manifestly illegal or wrong, it is right for a court of appeal to presume that the order or judgment appealed against is correct or rightly made until the contrary be proved or established and for this reason the court of appeal, and indeed any court, will not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances. (See in this connection the observations of Bowen, L.J. in The Annot Lyle (1886) 11 P.D. 114 at p. 116). We take it that the word “special” in this con is not used in antithesis to the words “common” or “normal” for that would be tantamount to pre-judging the appeal on a determination of an application for a stay of execution. When it is stated that the circumstances or conditions for granting a stay should be special or strong we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject-matter of the proceedings or foist upon the court, especially the court of appeal, a situation of complete helplessness or render nugatory any order or orders of the court of appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the court of appeal, there could be no return to the status quo. All rules governing stay of actions or proceedings, stay of executions of judgments or orders and the like, are but corollaries of this general principle and seek to establish no other criteria than that the court, and in particular the court of appeal, should at all times be master of the situation and that at no stage of the entire proceedings is one litigant allowed at the expense of the other or of the court to assume that role. In Sanni v. Otesanya, supra, in circumstances not dissimilar, this Court ordered the setting aside of the writ of possession already executed and returned the parties to the original status quo pending the determination of the substantive motion for stay of execution. In circumstances which are comparable, the West African Court of Appeal once observed as follows:-

“In our opinion there is substance in the point raised by counsel for the appellants. In view of the fact that there was an appeal pending in a suit involving ownership of the land which is the subject of the present suit the proper course for the learned trial judge to have adopted would have been to adjourn the case pending determination of the appeal, with liberty to either side to apply for the hearing to be continued. To do otherwise would work an injustice to the appellants in the event of their appeal in Ekiti Divisional Native Court Suit No. 2 of 1949 being successful, as they could not then renew their claim in the present suit.” (See per Foster-Sutton, P. in Shekoni v. Ojoko (1954) 14 W.A.C.A. 504).

In the present case there is no doubt that the writ was executed and possession wrested from the applicants whilst their motion to this Court for a stay of execution was pending and awaiting a date to be assigned by this Court for the hearing of the application. It is true and correct to observe that the notice of appeal filed would not operate as a stay of execution and section 24 of the Supreme Court Act makes this more clear; but it is equally correct to point out that the section does not prescribe in favour of any execution being carried out during the pendency of an appeal. Indeed, by its provisions it postulates that during the pendency of an appeal the Supreme Court has got the jurisdiction to accede to an application for a stay of execution conditionally or otherwise. The section does not give any licence, directly or indirectly, for the issue and execution of any processes which may ultimately be offensive. The section simply de-limits the scope of the statutory position of the parties after the filing of a notice of appeal. Clearly therefore to employ this section as a spring-board for the issue and process of an inopportune execution would be an abuse of the process of the court. Speaking of the attitude of the courts to an abuse of process, Lord Blackburn said in The Metropolitan Bank Ltd. etc. v. Pooley (1885) 10 App. Cas. 210, at page 220:-

“But from early times (I rather think, though I have not looked at it enough to say, from the earliest times) the court had inherently in its power the right to see that its process was not abused by a proceeding without reasonable grounds, so as to be vexatious and harassing the court had the right to protect itself against such an abuse; … ”

(See also Logan v. The Bank of Scotland No.2 [1906] 1 K.B. 141).

We think that in the circumstances of the present case, the action of the respondents constitutes an abuse of the process of the court. We think also that it is idle for the respondents to argue, as learned counsel on their behalf has attempted to do, that they were not aware of the pending proceedings in this Court. We think that they were so aware and even if that were not so the law clearly makes the Deputy Sheriff their agent in these matters by virtue of Order II, rule 29 of the Judgments (Enforcement) Rules, Cap. 189 which provides as follows:-

“29. (1) In every case of execution all steps therein shall be taken on the demand of the party prosecuting the judgment who shall be required to provide means of identification of the party against whom process is issued. The party prosecuting the judgment is responsible for providing all service, execution, and mileage fees which may be due and execution shall not be proceeded with until such fees are made available.

(2) The party prosecuting the judgment shall be liable for any damage arising from any illegal or irregular proceeding taken at his instance, but this provision shall not exempt any officer or bailiff from any liability to which he would otherwise be liable …. ”

More important, however, is the duty of this Court, as indeed that of other courts, to ensure that its orders are not nugatory. The applicants are exercising their undoubted right of appeal.The respondents are well aware of this and the applicants are certainly entitled so to exercise that right as long as they do so in accordance with the provisions of the statute conferring the right. If they in transgression of these terms go outside them or anyone of them, they are not exercising an undoubted right for all rights of appeal are statutory and no question of abuse can arise. There has been no suggestion before us that the present applicants were acting outside their scope or terms of the statute and it is manifestly the duty of the court to protect the exercise of that right and to ensure that its own orders in that connection at any stage of the lawful and regular proceedings are not rendered useless by the action or conduct of either of the parties. In Wilson v. Church (No.2) (1879) 12 Ch. D. 454 at 460, Cotton L.J. stated the principle thus:-

“That possibly was rather novel, but it was right, in my opinion, to make that order to prevent the appeal, if successful, from being nugatory. Acting on the same principle, I am of opinion that we ought to take care that if the House of Lords should reverse our decision (and we must recognise that it may be reversed), the appeal ought not to be rendered nugatory. I am of opinion that we ought not to allow this fund to be parted with by the trustees, for this reason: it is to be distributed among a great number of persons, and it is obvious that there would be very great difficulty in getting back the money parted with if the House of Lords should be of opinion that it ought not to be divided amongst the bond-holders.”

(See also per Brett L.J. ibidem at p. 459). The granting of a stay of execution is a matter of discretion for the court and any action or conduct which tends to stifle the exercise of such discretion must be frowned at by the court. (See the observations of Lord Esher M.R. in The Attorney-General v. Emerson and others (1890) 24 Q.B.D. 56 at p. 58. Also dicta in The Ratata [1897] P. 118 pp. 131, 132). We are satisfied that in this case the respondents were aware that a motion was pending before this Court for a stay of execution duly filed in accordance with law at a time when the respondents might not proceed to execution for Order IV, rule 1 of the Judgments (Enforcement) Rules, Cap. 189 prescribes as follows:-

“1. (i) No writ of possession shall be issued until after the expiration of the day on which the defendant is ordered to give possession of the land, or, if no day has been fixed by the court for giving possession, until after the expiration of fourteen days from the day on which judgment is given.

(2) No other process shall, except by express leave of the court, be issued until after the expiration of three days from the day on which judgment is given.”

Thus, although section 24 of the Supreme Court Act states that an appeal shall not operate as a stay of execution it does not interfere with proceedings or an application for a stay of execution and by the same token any action or conduct of one or the other of the parties to the action taken whilst an application for a stay of execution is pending in this Court,for the obvious or subtle purpose of stultifying the exercise by this Court of its jurisdiction, and indeed its duty to consider the application on its merits, must not be countenanced by this Court. Section 24 concerns the filing of an appeal and the effect in law of such an act on the execution of the judgment under appeal; the section also concerns the application for a stay of execution of the judgment appealed against for it gives the court the power to grant such an application. But the section, perhaps deliberately, does not say anything concerning the effect on such application to this Court for a stay of execution of the judgment. Whilst by virtue of the provisions of the section, an appeal or the filing thereof could not ipso operate as a stay of execution, clearly in practice, the position should be different where apart from filing an appeal, the prospective appellant also files an application in this Court, by which a stay of execution of the same judgment is sought. In such circumstances, a general appraisal of the whole situation is absolutely necessary and it is most desirable that the court should ensure that, at that stage of the proceedings, it is not possible for any party to present it with afail accompli. We wish to make it clear that our present decision does not in the least whittle down the effect of section 24 of the Supreme Court Act. This Court is loath to lay down any hard and fast rule with regard to matters on which other courts are entitled to exercise their discretion. Indeed, when in another matter it was urged upon this Court to do so, we made the following observations:-

“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.”

(See Ikabala and ors. v. Ojosipe (1972) 4 S.c. 86 at page 92). We still observe, however, that despite this, this Court will interfere in a case involving an abuse of the process of the Court and we propose to do so here. We will set aside the writ of possession which was executed in this case with such manifestly irregular design and purpose.

With respect to the motion for stay of execution, we are in agreement with learned counsel for the applicants that the grounds of appeal filed do raise vital issues of law and that there are substantial issues to be argued on them as they are. The applicants have urged us to grant their application and have pointed out that their right to the possession of the premises would be lost for all times even if they won the appeal unless a stay of execution was granted. The respondents have not countered these allegations or arguments in any way. They had filed a counteraffidavit but this only sets out the story of the seizure of possession from the applicants by the execution of the judgment appealed against. We pointed out before in this judgment that there was an application for stay of execution to the High Court, Lagos. We now observe that the learned trial judge who heard that application in the High Court and dismissed it was apparently himself adverting to the special circumstance characterising this case when he stated in the course of his ruling that the respondents should not let the premises to a third party until the determination of the applicants’ appeal to this Court.

We think that this is a case in which we ought to grant the order for a stay of execution pending the determination of the appeal filed by the applicants. Both sides seem to agree that an order for accelerated hearing of the appeal would meet the justice of the case. So we think as well. However, we can do very little at this stage seeing that the record of appeal has not reached this Court and we know precious little about the present fortunes of the records in the Court below. We do not propose to make an order for accelerated hearing now but we grant liberty to either or both of the parties to re-apply to this Court on that issue later.

In the circumstances we make the following orders:-

(i) All writs of execution issued in this matter are hereby set aside.

(ii) The present applicants are restored into possession of the premises No.9, Ereko Street, Lagos forthwith and this order is to be carried out by anybody either in actual possession of those premises or who is in control of such possession.

(iii) A stay of execution of the judgment of the High Court in this matter is granted until the determination of the appeal of the applicants in this case.

(iv) Application for accelerated hearing is struck out but with liberty to either or both of the parties to re-apply for same at any time after the preparation of the record of appeal.

(v) The respondents to this action will bear the costs of these proceedings assessed at 20 guineas and payable to the applicants.

---

SC.164/1972