BALOGUN V. BALOGUN

• Pages: 321-323

321



NIGERIAN SUPREME COURT CASES

[1969] N.S.C.C.

BALOGUN V. BALOGUN

5

MICHAEL OLASUBOMI BALOGUN

V

10 DORCAS OLUWALE BALOGUN

SUPREME COURT OF NIGERIA

COKER,



J.S.C.

MADARIKAN,



J.S.C.

15



UDO-UDOMA,



J.S.C.

7th November, 1969.

APPELLANT

RESPONDENT

SUIT NO. SC 279/69

Landlord and Tenant - Ruling on application for stay of execution of maintenance

order - Issue whether payment of rent is maintenance allowance - An arguable

20





point of law to stay should be granted as this was a substantial reason to

deprive successfid party of fruits of judgment.

ISSUES:

1.

What must an unsuccessful litigant show, in order to get a stay of execution

25



against a successful one?

2.

Can the payment of rent be considered the same as a maintenance allowance

under any circumstances?

FACTS:

The appellant applied to the Supreme Court for a stay of execution of a main-

30





tenance order pending the determination of the appeal lodged in the Supreme

Court against that order. The respondent had applied to the High Court for a main-

tenance order and succeeded, as the applicant had deserted her, and the order

had been granted.

HELD:

35





1. In order to obtain a stay of execution of judgment against a successful party an

applicant must show substantial reason to warrant a deprivation of the

successful party of the fruits of his judgment by the Court. Where grounds exist

on the motion suggesting a substantial issue of law to be decided on the appeal

in an area in which the law is to some extent recondite and where either side

40





may have a decision in his favour such substantial grounds as would warrant

an interference clearly exists.

2. The argument here was that the payment of rent was not the same as

maintenance allowance. This was an arguable point and on that score alone

it would be only fair to both sides that a stay should be ordered, it being

45





understood by both sides that should the order of the High Court be affirmed

the order would take effect from the date assigned to it by the trial Judge.

CASES REFERRED TO IN JUDGMENT.

1.

Bendall v. McWhirter

(1952) 1 A.E.R. P.1307.

50



2.

Monk v. Bartram

(1891) 1 Q.B. 346.

Akinrele

(with him

Olakunri)

for the Appellant.

Onafowokan

for the Respondent.