ADZRAH vs. NUTAKOR AND ANOTHER [1968]DLHC10249

Date	1968-11-20
Suit No.	G L R 1037 – 1040
Citation No.	[1968]DLHC10249

FRANCOIS J.

AGBESI FOR DJABANOR FOR THE PLAINTIFF-APPLICANT.

AMORIN FOR THE FIRST DEFENDANT.

GIKUNOO FOR THE SECOND DEFENDANT.

[1968]DLHC10249
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													<main id="main" class="content" style="min-height: 60rem" >ADZRAH<o:p></o:p>vs.<o:p></o:p>NUTAKOR AND ANOTHER<o:p></o:p>[HIGH
COURT, HO]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;line-height:150%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">G L
R 1037 – 1040&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:&nbsp;
20TH NOVEMBER, 1968<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AGBESI FOR DJABANOR FOR THE
PLAINTIFF-APPLICANT.<o:p></o:p>AMORIN FOR THE FIRST DEFENDANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

GIKUNOO FOR THE
SECOND DEFENDANT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

JUDGMENT<o:p></o:p>

</div>&nbsp;&nbsp;FRANCOIS J.<o:p></o:p>&nbsp;The plaintiff-applicant in suit No. L.19/60
was mulcted in costs of £G581 6s. by the Court of Appeal which ordered “the
court below to carry out.”&nbsp; The plaintiff,
dissatisfied with the turn of event, sued again in suit No. L.3/68 for reliefs
he regarded as still outstanding and undetermined.&nbsp; It was his contention in this application
that since a suit was pending in the High Court between him and the defendants,
the costs awarded by the Court of Appeal should abide the High Court
decision.&nbsp; He founded his prayer on Order
42, r. 49 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.
140A). The rule is stated as follows:<o:p></o:p>&nbsp;“49. Whenever an action shall be pending in
the Court against the holder of a previous judgment of the Court by the persons
against whom the judgment was given, the Court may, if it appear just and
reasonable to do so, stay execution of the judgment either absolutely or on
such terms as it may think just, until a judgment shall be given in the pending
action.”<o:p></o:p>&nbsp;“Court” has been defined by L.N. 140A, Order
1 as including “the Supreme Court and the Chief&nbsp;
Justice and Puisne Judges of the Supreme Court sitting together or
separately.”<o:p></o:p>&nbsp;As the rules from which this definition is
taken, though termed Supreme Court Rules, apply only to the Divisional Court, I
am of [p.1039] the view that “court” in the context can only mean the
Divisional Court.&nbsp; I&nbsp; am fortified in this view by the definition
of “Divisional Court” in Order 1 which is given as “the Supreme Court in any
Judicial Division.”<o:p></o:p>&nbsp;As I understand it, Order 42, r. 49 of L.N.
140A can only apply where there are two cases before the same Divisional Court,
one of which has been disposed of and the other pending trial.&nbsp; It seems in those circumstances it would be
inequitable for one of the parties to enjoy the fruits of a victory in one of
the cases when the outcome of the other may be decisively against him.&nbsp; A stay in those circumstances is calculated
to preserve the substance of a suit to allow a setting-off where applicable.<o:p></o:p>&nbsp;I have already held that the interpretation
of “the Court” in Order 42, r. 49 does not admit of different courts, but I
consider that the results would be absurd if a final judgment of the highest
court of the land could be stayed while the parties litigate over a matter that
might take several years to conclude.&nbsp; If
this were possible, a suitor who had&nbsp;
lost in the court of Appeal would promptly issue a new writ with
fanciful or fantastic claims and secure a stay in the matter.&nbsp; This would secure the inevitable result of
depriving the successful party of the fruits of his victory and further subject
him to the annoyance if interminable litigation.<o:p></o:p>&nbsp;Rule 35 of the Supreme Court Rules, 1962
(L.I. 218), that is the rules applicable to the Court of Appeal, reads as
follows:&nbsp; “Any judgment given by the
Court may be enforced by the Court or by the Court below or by any other Court
which has been seised of the matter, as the Court may direct.” (The emphasis is
mine.) Rule 36 reads:<o:p></o:p>&nbsp;“When the Court directs any judgment to be
enforced by another Court, a certificate under the seal of the Court and the
hand of the presiding Judge setting forth the judgment shall be transmitted by
the Registrar to such other Court, and the latter shall enforce such judgment
in terms of the certificate.”<o:p></o:p>&nbsp;Rule 35 therefore directs the court below,
while rule 36 enjoins strict execution of the judgment.&nbsp; In those circumstances it is my view that the
High Court has no discretion in the matter.&nbsp;
Rule 59 to which my attention has been drawn applies only in criminal
applications and has no relevance here.<o:p></o:p>&nbsp;In any event I am not satisfied that this is
a proper case in which discretion can be exercised in the applicant’s favour as
it does not appear just or reasonable so to do.&nbsp;
I</main>