JUDGMENT OF APALOO J.A.
Apaloo J.A. delivered the judgment of the court. On 23 July 1970, the applicant obtained against the respondent judgment for a large amount of money. Six days later, that is on 29 July, the respondent filed an appeal against the said judgment. By reason of the provisions of the Court of Appeal (amendment) Rules, 1969 (L.I. 618), that appeal operated as a stay of execution unless the court ordered otherwise. Shortly afterwards, the applicant invited the High Court to decree that the appeal shall not operate as a stay of execution.
After hearing argument, this prayer was declined. The learned judge’s ruling proceeded on the basis that the respondent, was like any other judgment debtor, liable to be proceeded against by any of the well-known processes for enforcing judgments. The learned judge after reviewing the circumstances of this case thought it would be “unfair to allow the plaintiffs to go into execution while the appeal is pending.”
This ruling obviously did not meet the wishes of the applicant so he repeats the application in this court as rule 29 of the Supreme Court Rules, 1962 (L.I.. 218), entitles him to do. Mr. Quashie-Idun for the applicant invited us to exercise our discretion in the applicant’s favour and to order that the appeal shall not operate as a stay of execution. It is said that the appeal is without merits. Having heard both sides, we do not think we have been put in possession of the facts of this case in a manner that will entitle us to express any view on the probable success or failure of this appeal.
But we ourselves drew Mr. Quashie-Idun’s attention to the provisions of the State Proceedings act, 1961 (Act 51), and invited counsel to say whether he can lawfully proceed into execution against the respondent. It is there that Mr. Quashie-Idun’s difficulties began. He then says, he does not seek leave to go into execution but wishes the order made so he can put certain pressures on the respondent. It seems to us plain that we cannot stultify ourselves by making any orders which cannot be lawfully enforced and if as counsel admits, he cannot competently levy execution against the respondent, then this application is pointless.
We cannot help thinking that counsel for the applicant overlooked the provisions of section 15 (4) of Act 51. We believe that had the learned judge’s attention been drawn to it, his decision would have been founded on the simple ground that such an order would be wholly futile. Ac
