ABINA & ORS V. TIKA TORE PRESS LTD

• Pages: 164-166

164



NIGERIAN SUPREME COURT CASES

[1968] N.S.C.C.

ABINA & ORS. V.

TIKA TORE PRESS LTD.

5

AJIBADE ABINA AND OTHERS

(Administrators of the Estate

of Monsuru Badaru Abina, Deceased)

V

TIKA TORE PRESS LIMITED

SUPREME COURT OF

NIGERIA

ADEMOLA,



C.J.N.

LEWIS,



J.S.C.

MADARIKAN,



J.S.C.

10th June, 1968.

APPLICANTS

RESPONDENTS

SUIT NO. SC.99/1968

10

15

20

Practice and Procedure - Application to High Court for stay of execution pending

determination of appeal refused - Application for stay to Supreme Court -

whether application could be heard in Supreme Court under order VII rule

37 without an appeal being formally entered in Supreme Court.

25

SSUES:

1.

What is the object of order VII rule 12(2) of the Supreme Court Rules.

2.

Whether an application for a stay of execution pending determination of appeal,

can be heard in the Supreme Court under order VII rule 37, without an appeal

being formally entered in the Supreme Court.



30

FACTS:

The applicants, as the administrators of the estate of the late Monsuru Badaru

Abina, applied to the Lagos High Court to have their names substituted in the books

of the company for the deceased who, in his lifetime, held some shares in the re-

spondent company. The court granted the application and the company filed a



35

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 refused to grant a stay, whereupon the company applied to the Su-

preme Court for a stay. Counsel for the respondents then filed a preliminary ob-

jection stating that the Supreme Court cannot entertain an application for a stay in



40

this matter since no appeal has been entered in it.

HELD:

1 The object of order VII rule 12(2), rules of the Supreme Court is for the court,

before hearing an application for a stay, to assure itself that the application was

genuine and that the application has not applied to the court for a stay merely



45

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.



50

2. When, however the applicant has filed his notice of appeal in the High Court

and has followed it up by an application for a stay of execution in that court

and his application has been refused, his determination to appeal is manifested

by his second application to the Supreme Court when it is clear that he genuinely