JELR 80521 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1950-51 13 WACA 266-269
Core Terms Beta
final leave
stay of execution
conditional leave
first motion
judgment debt
order of the court
privy council
way of deposit
due prosecution of the appeal
first place
h. o. davies
motion paper
payment of all costs
payment of costs
provisions of article
second motion
single judge
single judge of the court
29th june
cash deposit
court order
court orders
event of non-compliance execution
event of the appeal
judge's order
order of council
ordinary course
prescribed time
respondent's counsel
second place
similar circumstances
single judge of this court
such case
such procedure
such steps
supreme court
variation of an order
west african
whole notice of motion

*Page 266

Conditional leave to appeal and stay of execution granted on certain terms-Application to vary order by permitting appellant to pay judgment debt by instalments not entertainable-Order for appellant to give security in sum of £500 subject to conditions relating to prosecuting appeal and payment of costs is not satisfied by cash deposit of £500.

The appellant was the defendant. A single Judge of the Court granted conditional leave to appeal and also a stay of execution upon the defendant giving security in the sum of £500 subject to conditions for the due prosecution of the appeal and for payment of all costs to become payable to the respondent. In lieu of giving this security the appellant, through his solicitor, deposited in Court the sum of £500 without any undertaking.

The appellant moved the Court to vary Judge's order relating to stay of execution by permitting him to pay the judgment debt by monthly instalments of £50.

The respondent's Counsel argued that the order for security was not satisfied by the deposit of £500.

Held: The appellant was not, in fact, applying for an order suspending execution, but for an order as to how the judgment was to be satisfied. The Court had no power to entertain the application.

Held further, that the deposit of £500 without any order as to the terms and conditions under which it was held by the Court was not a compliance with the order of the Court requiring the appellant to enter into good and sufficient security. Final leave to appeal was refused.

Motion for final leave to appeal. W.A.C.A. 3319.

Case referred to: (1) Tairu v. Tairu, W.A.C.A., Judgment of 25th October, 1949.

H. O. Davies for Appellant. L. A. McCormqck for Respondents.

The following judgment was delivered: Verity, Ag. P. In this matter there are two motions before the Court which are inter-related and were heard together.

The first motion is for a variation of an order made by a single Judge of this Court on 29th June, 1951, and for an order for a payment of the judgment debt by instalments. The motion paper also contains an unusual, perhaps unprecendented prayer that the Court order that the judgment debtor should pay over to the judgment creditor any sums received by him from all his debtors. This last prayer was not pressed by Counsel for the judgment debtor, who indeed, suggested that it might be struck out. I think he was wise not to pursue this part of the application which, for a variety of reasons, I would not entertain, and to which in the circumstances I do not propose to give further consideration.

The second motion is one for final leave to appeal to His Majesty in Council against the judgment in regard to which the first motion relates.

Dealing in the first place with the first motion I think it is desirable to make clear what was the order which it is desired to vary. Upon the application for*Page 267conditional leave to appeal under article 6 of the Order of Council which makes provision for appeals from this Court to the Privy Council a stay of execution was also sought under the provisions of article 8. The application was made to a single Judge who granted a stay of execution, subject to the condition that the appellant should either pay into Court the amount of the judgment debt and costs or furnish security for the payment in the event of the appeal failing. The appellant was given twenty-one days within which to comply with the condition. In the event of non-compliance execution was to be carried out, the respondent being in such case required to give security for repayment in the event of the appeal succeeding. The appellant failed to comply with the condition upon which execution was stayed and execution was therefore carried out.

In lieu of complying with the condition of the order staying execution the appellant has applied to the Court to vary that order, under article 7 of the Order-in-Council. In the motion paper it is not specifically stated in what respect a variation is sought, but reading the whole notice of motion together with the affidavit in support thereof I think, it is sufficiently clear that the applicant seeks to set aside the order for a stay of execution and to substitute therefor an order for payment of the judgment by instalments. Counsel for the applicant in the course of argument clearly stated that he no longer seeks a stay of execution but that the judgment should be satisfied by monthly payment of £50-a matter which would satisfy the judgment debt in rather more than a century. Upon this fact being brought to the attention of Counsel he suggested that it would be at any time open to the respondent to apply to the Court to vary the order.

It is, I think, clear that the appellant is not, in fact, applying to this Court for an order suspending execution but for an order as to how the judgment is to be satisfied, which is not the function of this Court as a Court of Appeal from the judgment of the Court below, still less in the exercise of its power under the West African (Appeal to Privy Council) Order-in-Council, 1949. The powers of the Court under the Order-in-Council in regard to execution of a judgment appealed from are those conferred by article 8 which provides that the Court may either direct that the judgment shall be carried into execution or that execution thereof shall be suspended pending the appeal, as to the Court shall seem just. This power was exercised by a single judge of the Court on 29th of June, 1951, when execution was stayed upon certain conditions and otherwise to be carried into execution. By article 7 it is prescribed that such an order by a single judge may be varied, discharged or reviewed by the Court, but this does not confer upon the Court any further powers than those provided by article 8, that is, either to direct that execution shall be carried out or that it be suspended. If it is to be carried out, then execution will issue in the ordinary course and subject to such procedure as is prescribed by law for the execution of judgments in the Supreme Court, a matter with which this Court is not concerned. If on the other hand this Court orders that execution shall be suspended, then no further proceedings in execution shall be had, but in neither event has the Court, in my opinion, power under the Order-in-Council to take any such steps as are sought by this motion, which I would therefore dismiss with costs.

I would add, moreover, that having perused the record of the whole proceedings and considered the conduct of the appellant throughout, I should not be disposed to concur in any variation of the Order of the 29th of June, which I think was a very proper order in all the circumstances.

In the second motion, which is for final leave to appeal, objection was taken by Counsel for the respondents that the conditions of appeal prescribed by the order of the 29th of June have not been complied with in that, whereas the order requires that the appellant should within three months “enter into good and sufficient security to the satisfaction of the Court in, the sum of £500 for the due*Page 268prosecution of the appeal and payment of all such costs as may become payable to the. . . plaintiff respondent” in certain events, no such security has been entered into.

It appears that, having failed to find such security, a sum of £500 was paid into Court by the appellant's solicitor.

Although article 6 of the Order-in-Council makes no reference to security by way of deposit, and I am not of the opinion that the words either of the Order-in-Council or of the Order of the 29th of June, can strictly speaking be interpreted to include the giving of security in that form, yet I would incline to the view that had the leave of the Court been sought to give security by such means it would have been within the power of the Court to grant such leave.

It is clear, however, that in so doing the Court would have ordered that the amount be lodged in Court in such precise terms as would have secured to the respondent guarantee both of due prosecution and payment of costs as is prescribed by the Order-in-Council.

It is submitted on behalf of the appellant that the payment into Court of £500 does, in fact, provide such security and Counsel has referred to the case of Tairu v. Tairu (1), when in somewhat similar circumstances it was held that the deposit in lieu of bond in that case was an even higher form of security and that this Court, under the provisions of section 8 of the W.A.C.A. Ordinance (Cap. 229) would entertain the appeal, even though the conditions had not been strictly complied with.

It is to be observed that there were two elements in that decision: firstly, that the Court was evidently satisfied that the security given by way of deposit was adequate and secondly, that the appeal was entertained by specific statutory provision, even though the conditions of appeal had not been compiled with. It certainly did not decide that the payment of money into Court was the giving of security in the terms of the order for conditional leave to appeal. By invoking the provisions of section 8 of the Ordinance, indeed, it is clear that the Court held the reverse to be the case.

In my opinion neither of these elements exists in the present case. In the first place it is clear that section 8 of the W.A.C.A. Ordinance is not applicable to an appeal from this Court to the Privy Council and equally clear that there is no similar provision in the Order-in-Council governing such appeals. In the second place, I am by no means satisfied that the form of the deposit secures to the respondent any such guarantee as is required by the Order-in-Council or by the order of the 29th of June. A bond by way of security to be in compliance therewith must be so conditioned that the respondent shall have recourse to the amount thereof in the event of the appellant failing in due prosecution of the appeal and for the payment of all costs payable in the event of failure to obtain final leave to appeal or of the appeal being dismissed or of His Majesty- in-Council ordering the appellant to pay the respondent's cost of the appeal. There can, I think, be no doubt that were a bond entered into conditioned otherwise it would not be in fulfilment of the conditions of appeal and final leave would not be granted thereon. It is of the essence of such security that the respondent shall have recourse thereto without question.

It follows that when security is given by way of deposit the conditions upon which the respondent shall have recourse thereto must not only be identical but also beyond question. But is that so in the present case?

There is no order of the Court determining the conditions upon which the deposit is paid in or held by the Registrar or upon which the respondent shall have recourse thereto. There is no manner of acknowledgment whatever by the appellant of the conditions upon which the sum is paid in or held or upon which the respondent may rely. The deposit is merely acknowledged by the Registrar as received from “H. O. Davies, Esquire” (who happens to be*Page 269appellant's solicitor), and the receiving officer states that it is “fee for deposit £500 by Krekchi as a security to the satisfaction of the Court in the suit No. W.A.C.A. 3319, U. A. C. Ltd. v. F. Krekchi”. To it is also appended the signature of Mr. H. O. Davies, as that of the payer, a course prescribed for the completion of all Revenue Collection Receipts in that form of whatever nature may be the payment.

Is this to be deemed to be a deposit on such conditions as are required by the order of the Court relating to the giving of security? I think the question can best be answered by contemplating what would be the fate of a bond conditioned in such terms, i.e. that it were given “as security to the satisfaction of the Court” in such and such a suit.

I am unable to hold, therefore, that the deposit of a sum of money by Mr. Davies on such terms affords any such security as is required by the Order-in- Council and to which the respondent may have recourse without question, in all or any of the events in which a properly conditioned bond would be forfeit.

In my opinion, therefore, the conditions prescribed by the order of 29th of June in accordance with the provisions of article 6 of the Order-in-Council have not been complied with within the prescribed time and final leave to appeal should therefore be refused, with costs.

In view of the previous history of this case and with the intent that further time and money may not be expended on inapt applications to this Court, I would wish to observe that article 6 of the Order-in-Council provides that the time to be fixed for the period within which security is to be given shall not exceed three months from the date of the hearing of the application for leave to appeal under article 3, that this period has already passed, and that there is no provision in the Order-in-Council whereby this Court is empowered to enlarge the time so limited.

De Comarmond. S.P.J. I concur. Robinson, J. I agree.

Motion disallowed. Final leave to appeal refused.