Gopal Sri Ram JCA:

This is the judgment of the court.

This appeal raises a short point of procedure. Counsel for the respondent says that it is a point of much importance. With respect, my learned brothers and I do not agree. It is, we think, hardly likely to recur in the future.

The factual matrix against which the point arises need not be gone into in much detail.

There were monies in court that had been paid in by the respondent. After the trial was over, the respondent applied for payment out. The judge allowed that. The appellant at once asked for a stay because it wanted to take the matter further. The judge asked for a written application to be made. The appellant said that it would do so, but requested an interim stay in the meantime. The judge refused the request. The appellant then appealed against the refusal of the interim stay and applied to this Court for a stay pending appeal. That application went before the late Wan Adnan Ismail PCA. His lordship granted an interim stay, which was later extended by this court. All relevant proceedings before us in this regard have since been withdrawn and the only question that remains for disposal is one of costs.

Counsel for the respondent has argued that it is entitled to all costs incurred with regard to the stay proceedings before this court because the order refusing the interim stay was non-appealable so that this court had no jurisdiction to deal with the matter in the first place. It is therefore contended that the only avenue available to the appellant was to appeal against the order directing the release of the monies from court and to move this court for a stay in those proceedings. Several authorities were cited to us in support of this argument. It is necessary to discuss only two of them.

In Cropper v. Smith [1883] 24 Ch D 305, the defendants in a patent action applied to the High Court to stay proceedings under the judgment entered against them. Chitty J refused that application and after the time limited to appeal against that order had expired, the defendants moved the Court of Appeal for a stay. Although that application was dismissed on its merits a preliminary question arose as to whether the appellant's motion was an appeal or an application. This is because appeals to the Court of Appeal in England are brought by notice of motion and not as here, by way of a notice of appeal. Had it been an appeal, it would have been out of time. The court interpreted the motion before it and came to the conclusion that it was not an appeal against Chitty J's order. It held that O. 58 r. 16 of the 1875 Rules conferred concurrent jurisdiction upon the High Court and the Court of Appeal to entertain an application for a stay. Rule 16 of the 1875 Rules is similar to s. 73 of our Courts of Judicature Act 1964. In essence, both provide that an appeal is not to operate as a stay of execution unless the High Court or the Court of Appeal may so order. It was in this context that Brett MR, after referring to O. 58 r. 16, said this:

By that rule it is assumed that the Court of Appeal has jurisdiction, and to my mind, according to the true reading of that rule, not a jurisdiction by way of appeal merely,but an independent jurisdiction, and if that rule had remained alone it would have been obvious to my mind that the application might have been made either to the Court appealed from or to the Court of Appeal. Then the 17th rule says that, 'Wherever under these rules an application may be made either to the Court below or to the Court of Appeal' (which in terms assumes that but for what is going to be said immediately afterwards it might be made either to the Court below or to the Court of Appeal) 'it shall be made in the first instance to the Court or Judge below.' That imposes a limitation on the action of the Court of Appeal, but a limitation not affecting its jurisdiction, and does not at all shew that the motion in the Court of Appeal is an appeal. On the contrary, the