Facho and Another v Siqueira and Others (C.C. 264-1929.)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

The Supreme Court has inherent power under section 99 of the Civil Procedure Ordinance to order a stay of execution ex debito justitiae, even where no express provision exists in the rules. The Court granted a stay of execution pending determination of an application for leave to appeal out of time to the East African Court of Appeal, conditional upon the applicant lodging security or the respondents providing counter-security for repayment if the decree is reversed.

Outcome

Stay of execution granted conditional upon security being lodged

Facts

On 19 August 1932, the Chief Justice ordered the first and second defendants to pay sums to the plaintiffs, and the third defendant to pay a sum found due by him, with execution against the third defendant postponed until execution had been levied against the first and second defendants. Execution was subsequently levied against the other defendants, not with entire success. The third defendant applied for a stay of execution pending an application to the Court of Appeal for Eastern Africa for leave to appeal out of time, and the subsequent determination of the appeal if leave were granted. The application for leave to appeal was listed for December 1933. The third defendant offered to provide security.

Issues

1. Whether the Supreme Court has inherent power to order a stay of execution of a decree pending an application for leave to appeal out of time.
2. Whether Order 39 Rule 4 of the Civil Procedure Rules applies to stay execution pending an application for leave to appeal to the Court of Appeal for Eastern Africa.
3. Whether the Court can exercise inherent jurisdiction under section 99 of the Civil Procedure Ordinance to grant a stay of execution.

Orders

• Stay of execution granted until the East African Court of Appeal has dealt with the application for leave to appeal out of time.
• Applicant to lodge security in an amount to be determined by and to the satisfaction of the Registrar.
• If respondents give security in like amount for repayment of money in the event of decree being reversed, then stay of execution not to be granted.
• Respondents to have seven days to file their security; if no such security filed, applicant to file his security within seven days thereafter.
• Costs of this application to be costs in the appeal.

Rules and key headnotes

Legislation cited (4)

• Civil Procedure Ordinance s.99
• Civil Procedure Rules Order 39 Rule 4
• Civil Procedure Rules Order 18 Rule 11
• East African Court of Appeal Rules 1925 Rule 27

Cases cited (8)

• In re the Queensland and Mercantile Agency Company (1892) 61 LJ Ch D 48
• Monk v Bartram (1891) 1 QBD 346
• Barker v Lavery (1881) 14 QBD 769
• Atkins v The Great Western Railway Company (1886) 2 TLR 400
• The Annot Lyle (1886) 11 PD 114
• Nanda Kishore Singh v Ram Golam Sahu (1913) 40 Cal 955
• In the Goods of Nuchin Nirain (1901) 5 CWN 781
• Dhunjibhoy v Nisbea (1888) 13 Bom 241

The original judgment as reported. Read the original PDF before relying on any passage.