JUDGMENT OF FRANCOIS J.
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.” 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. 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. 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:
“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.”
“Court” has been defined by L.N. 140A, Order 1 as including “the Supreme Court and the Chief Justice and Puisne Judges of the Supreme Court sitting together or separately.”
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. I 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.”
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. 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. A stay in those circumstances is calculated to preserve the substance of a suit to allow a setting-off where applicable.
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. If this were possible, a suitor who had lost in the court of Appeal would promptly issue a new writ with fanciful or fantast
