In The Supreme Court of Nigeria
On Friday, 15th day of February 1980
SC 11/1977
Between
Chief Yeshau Popoola Oyeshile Shodehinde & Ors. ....... Appellants
And
The Registered Trustees of the Ahmadiyya ....... Respondent
Movement-In-Islam
Judgement of the Court
Delivered by
Chukwunweike Idigbe
My Lords this appeal has come before us upon a preliminary point which as can be evinced from the proceedings in the court below, the reliefs filed by, and the arguments of counsel in this court calls for a decision on questions of considerable importance to litigants who being dissatisfied with and intending to appeal from, decisions of the High Court to the Federal Court of Appeal (which I will hereafter refer to simply, as "the Court of Appeal") are at the same time anxious to preserve the status quo of the subject matter of litigation pending the determination of the appeal. The questions fall into two main parts, and they are:
(1) whether, generally, the High Court has jurisdiction to stay proceedings in respect of its decision under appeal (a) where by the said decision it has dismissed a claim before it "absolutely"; and (b) if so, whether in any event it can exercise such jurisdiction after the order has been drawn up and enrolled?
(2) (and this has been the major issue on which arguments have centred in this appeal) whether the High Court has jurisdiction to stay proceedings, under its judgment on appeal upon application by parties to the proceedings (and, in particular, by an unsuccessful plaintiff) for "injunction to restrain an act under the decision on appeal pending the determination of the said appeal.
The appellants have failed in their action in the High Court Lagos State in which, inter alia, they had asked for a declaration that as against the respondents, they alone are the lawful representatives of the Ahmadiyya Movement-in-Islam and are accordingly entitled to all the lands, buildings and other property belonging to the Movement. Dissatisfied with the decision of the High Court (Candido Johnson, J.) the appellants duly filed notice of appeal from that decision to the Court of Appeal. Shortly after filing the notice of appeal but before the appeal had been "entered" in the Court of Appeal [i.e. before the record of proceedings "had reached the Court of Appeal" - see Shittu Ogunremi v. Dada (1962)1 All N.L.R. 663 at 668], they applied to the Court of Appeal by a notice of motion for "an order of injunction" restraining the defendants (i.e. respondents) and or their agents from "inter alia" damaging destroying or defacing "the buildings or parts of the buildings the subject matter of this appeal pending the determination of the appeal lodged therein". The respondents upon an objection in limine argued that it was wrong for the applicant to have brought the application directly into the Court of Appeal; the application, they submitted, ought to have been made in the first instance in the court below (i.e. the High Court); and they urged the Court of Appeal to strike out the application. By a majority decision the Court of Appeal [Coker, Aseme, JJ.C.A. Akinkugbe, J.C.A. dissenting] upheld the contentions of the appellants and struck out the application; hence this appeal.
In this Court the appellants contend, as they did in the court below, that where the High Court has dismissed a claim "absolutely" (i.e. without reservations) "there is no jurisdiction left in that court" to restrain proceedings or actions under its decisions pursuant to an application for an order of injunction. The court could not in those circumstances by an order of injunction preserve the subject matter of litigation "pending the determination of any appeal from its decision". In the alternative learned counsel for the appellants, Mr. O.O. K. Ajayi, submits that even if the High Court had jurisdiction in those circumstances to entertain such an application (i.e. for injunction pending appeal or for stay of any action or proceedings pursuant to its judgment under appeal) it could not do so once the said judgment had been "drawn up and enrolled". Learned counsel for the appellant said, in effect, that he felt inclined to the alternative submission because (a) all the decided cases in England upon which he relied for his contention show that where the court exercised such jurisdiction (and it was always the Court of Appeal in England) it did so before the judgment or order under appeal was "drawn up and enrolled"; and (b) the various dicta in these decisions justify his contention that once the order under appeal was drawn up and enrolled the court was functus officio quoad granting an injunction or otherwise suspending or interfering with actions or proceedings under the said judgment or order. We were then referred to a number of cases which include Galloway vs. The Mayor the Commonality, Citizens of London 46 E.R. 560; (2) Wilson vs. Church (1879)11 Ch. D. 576; (3) Polini vs. Gray (1879)12 Ch. D. 438; (4) Otto vs. Lindford (1881)18 Ch. D. 394; (5) Orion Property Trust Ltd. v. Du Cane Ltd. (1962)3 A.E.R. 466; (6) Eringford Properties Ltd. v. Cheshire County Council (1974) Ch. 261 and (7) (the Nigerian cases of) Ogunremi vs. Dada (Supra).
In conclusion learned counsel for the appellants submitted that the appellants' claims having been dismissed without reservations in the High Court, that court can no longer entertain this application for an order restraining proceedings under its judgment on appeal. Consequently Order 7 Rule 37 Supreme Court Rules 1961, applicable in the Court of Appeal (hereafter referred to as "S.C.R.") did not apply; what applies - according to learned counsel - is Rule 36 of Order 7, S.C.R. Therefore, applying the decisions in Galloway (Supra), Wilson v. Church (Supra) the Court of Appeal erred in holding that the present application should have first been made in the High Court.
Learned counsel for the respondents, Chief F. R. A. Williams, contends that the present application of the appellants is, indeed, nothing more than one for "suspension of rights" and preservation of property (the subject matter of litigation) pending the determination of an appeal from an order affecting that property. The expression used in the application is immaterial; what matters is the substance. Whether the prayer in the application is for "an injunction" or "stay of proceedings" or "stay of execution", the High Court, learned counsel submits had in the circumstances the jurisdiction to suspend proceedings or actions under, or pursuant to the order or decision on appeal. It was wrong, he submitted, to contend that once the High Court had dismissed a claim "absolutely" (i.e. without reservations) it was functus officio quoad granting an order of injunction in the case or otherwise restraining proceedings or actions under or pursuant to its judgment under appeal. Learned counsel then referred to the case of Shittu Ogunremi vs. Chief Dada (Supra) relying, in particular, on the underlined passages [at (1962)1 All N.L.R. p.670j of the judgment of Brett, F.J. and with which Taylor and Bairamian, F.JJ. concurred, which I set out hereunder:
I hesitate to propound any general principle without a more complete review of the authorities and of the history of the jurisdiction, than we have had in this case, but the authorities appear to me at least to justify the proposition that a court of record whose judgments are subject to appeal has inherent power to stay the execution of any judgment against which an appeal has been brought, in order to render the right of appeal more effective. It is clearly not an appellate power, since it is possessed in England by the court from which an appeal lies as well as by those to which the appeal is brought . .
Although the italicised passages in the above quotation from Ogunremi v. Dada (Supra) appear, at first sight, to cover the matter under consideration, I regard them as obiteT dicta in so far as they relate to the main issue for determination in this appeal which is whether (a) the High Court has jurisdiction to stay proceedings or actions, by way of an order of injunction, under or pursuant to its decision or order on appeal pending the determination of that appeal and (in any event) (b) can exercise such powers after the order or decision had been "drawn up and enrolled". Therefore, I consider this principal issue before us res integra, and would now proceed to examine in detail the cases cited to us in the course of argument and the various points of decision therein upon which learned counsel have sought to rely in support of their respective submissions.
The head note to the case of Galloway vs. The Mayor, The Commonality and Citizens of London (1865) 46 E.R. 560 shows that a bill filed by the plaintiff to restrain the defendants from taking certain properties of his (the plaintiff) under certain statutory powers having been dismissed and the order of dismissal having been drawn u p and enrolled, the plaintiff's application for an interim order to preserve and protect the property, pending the determination of his appeal from the order of dismissal, was dismissed because the Court (whose judgment was on appeal) having dismissed the claim "without any reservation" (i.e. absolutely), had no jurisdiction to make the order prayed for in the application. Sir Hugh Cairns (afterwards the great Lord Chancellor Cairns) argued that there is no jurisdiction to make such an order in a dismissed suit and that the case had no analogy to "that of staying proceedings under a decree pending an appeal; the court having made a decree is doing something and has control over its own proceedings . . . here it has decided that it ought not to do anything and so has negatived its having jurisdiction". The submission was upheld. The Attorney-General (Sir R. Palmer), Messrs. Jessel and Bristowe for the Railway Corporation argued that the court of trial cannot after deciding by decree "that the plaintiff had no right to an injunction" grant him one upon an interlocutory application; it was further contended that "it is a strange notion that when the court has decided that the plaintiff is not entitled to relief, he is to have it (even if in the interim only) because he is going on appeal". And in the same case Galloway (Supra) Turner, L.J. observed:
I think that the plaintiff if he intended to appeal to the House of Lords, ought at the hearing to have asked the court so to frame its order as to keep alive its jurisdiction pending the appeal. This not having been done, we should be departing from what I understand to be the course and practice of the court, if we were to grant the plaintiff the injunction he asks. [Italics supplied]
The contentions, submissions and judgment in Galloway (Supra) would appear to confine the basis for decision in that case to the principle that a court having dismissed or refused a claim for injunction ought no longer to have the power to entertain an application (or grant it) for the same claim (i.e. of injunction) even on an interim basis.
The head note in Wilson v. Church No. (1) (1879)11 Ch.D. 576 reads:-
When an action has become altogether dismissed by a Divisional Court no order can be made under Rules of Court of 1875 Order 58 Rules 2 and 5 to stay proceedings pending an appeal; but the Court of Appeal will, in a proper case, grant an injunction to restrain any of the parties parting with the property till the hearing of the appeal.
The argument of the applicant in that case had been that once the lower court has dismissed the claim before it absolutely that court could not, as the case of Galloway (Supra) decides, entertain an application for stay of proceedings pending an appeal from that order of dismissal; it was, he submitted, therefore, proper to bring his application for stay of proceedings pending the appeal in the Court of Appeal (England). The respondents, on the other hand, submitted that in view of Order 58 Rule 17 rules of court under the First Schedule to the Supreme Court of Judicature Act 1875 (amending The Supreme Court of Judicature Act of 1873) - hereafter referred to as the "R.S.C. of 1875" - and which is almost in pari materia with Order 7 Rule 37 S.C.R. the applicants ought to have brought their application in the first instance in the lower court. Sir George Jessel M.R. held in an extremely short judgment (with which Brett and Cotton, LL.J. concurred) that the court of first instance (Fry, J.) having dismissed the claim altogether (i.e. absolutely) that court had no jurisdiction to stay proceedings and the application was properly made in the Court of Appeal (England)" it should, I think, be pointed out here that from the law journal report of the proceedings in Wikon V. Church No. (1) (i.e. Supra) it does appear that Jessel, M.R. regarded the application in question "not" as one for stay of proceedings but as "an original motion for injunction" brought directly in the Court of A p peal and which that court could always entertain (see (1879)48 L.J. Ch.D.690).
In Pelini v. Gray (Supra), a decree having been made in three suits for the administration of the personal estate of an intestate directing an inquiry as to her next of kin, a certificate later issued showing five named persons of the family named "F" resident abroad as being next of kin of the intestate; consequently an order was made for distribution among them of the fund in court. S. who had not been a party to the proceedings applied and alleged that she was next of kin. The Vice-Chancellor directed that the order of distribution be suspended (i.e. an order of injunction) and that inquiry be made as to whether S. had made out a prima facie case. As it was reported that a prima facie case had not been made out the Vice-Chancellor directed that the distribution of the fund should go on without prejudice to any independent proceeding by S. Four of the five shares were at once transferred to four of the five certified named next of kin; the fifth share remained in court. Two of the shares, which had been transferred, were sold out and the proceeds received by vendors. S., following a subsequent action initiated by her, obtained an order granting an injunction to restrain any dealing with the shares which had not been sold and directing an inquiry as to who were the next of kin, and this order was directed to be taken as made in the three suits as well as in the action by S. The chief clerk again found the "F" Family to be the next of kin. An action by S. to vary the certificate was dismissed by the Vice-Chancellor but the injunction was continued in the three suits until further order. (i.e. the injunction for suspension of distribution continued). S appealed and the Court of Appeal (England) affirmed the decision of the Vice-Chancellor and dismissed S.'s bill, but S. desired to appeal to the House of Lords:
Held: Since if S. should succeed in the House of Lords her success would be nugatory or useless, unless in the meantime the fund was protected. The order of injunction (by the V.C.) ought to be continued until the determination of the appeal. Sir George Jessel, M. R. observed that the principle which underhes all orders for the preservation of property pending litigation is that the ultimately successful party in the litigation is to reap the fruits of that litigation, and not to obtain merely a barren success. The important point to note in Pelini V. Gray, however, is that learned counsel for the appellants from the decision of the Court of Appeal in England to the House of Lords specifically requested as follows:
We ask to have the order on appeal, which has not yet been drawn up, put in such a form as to protect the fund pending our appeal to the House of Lords. (Italics supplied)
and Sir George Jessel, MR. observed: at pp.443-444
As the order of the Court of Appeal has not been drawn up there is no question of rehearing. (Italics supplied - see [1879]. 12 Ch. D at 442-3).
It does appear from the foregoing that Pelini v. Gray and Galloway (Supra) appear, ex facie, to support the contention that once the judgment has been drawn up and enrolled, the court whose judgment is under appeal cannot restrain proceedings or actions under that judgment. However, it is desirable here, to quote a very relevant passage from the judgment of the court in the case (i.e. Pelini v. Gray); and in the first instance, I quote from that of Jessel, M.R. at p.443:
The question before us is this: An action is brought to determine the rights of claimants to a fund. The plaintiffs fail in the court of first instance and in the court of second instance, but are about, bona fide, to prosecute an appeal to the court of ultimate resort. The plaintiffs allege that that appeal will be nugatory if the fund is paid out to the defendants and that if the plaintiffs should ultimately succeed in the House of Lords, that success will be useless to them unless an interim order is made for preserving the fund " assuming that contention to be correct in fact, the question is, whether this court has jurisdiction to prevent such a consequence. It appears to me a principle that the court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, . . . that the ultimately successful party is to reap the fruits of that litigation, and not obtain merely a barren success. That principle, as it appears to me, a p plies as much to the court of first instance before the first trial, and to the Court of Appeal before the second trial as to the court of last instance before the hearing of the final appeal". The rule under the Judicature Act is Rule 3 of Order 52 which is this: 'it shall be lawful for the court or a Judge upon the application of any party to an action, and upon such terms as may be Just, to make an order for the detention, preservation or inspection of any property being the subject of such action'. The terms in which the jurisdiction is conferred are general and unlimited. (Italics supplied)
And yet again, I quote from the judgment of Cotton, L.J. at p.446:
. The only question we have to consider is, whether or not the court has jurisdiction in a proper case to stay all dealings with a fund pending an appeal to the House of Lords although the court has decided against the title of the plaintiff and dismissed the
"K" action. I see no difference in principle between staying the distribution of a fund to which the court has held the plaintiff not to be entitled, and staying the execution of an order by
"L" which the court has decided that a plaintiff is entitled to a fund. In that case, as in thhis case, the court, pending an appeal to the House of Lords, suspends what it has declared to be the righ of one of the litigant parties. On
"N" what principle does it do so? It does so on this ground, that where there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the fund, would make the appeal nugatory . . . then it is the duty of the court to interfere and suspend the right of the party who, so
"O" far as the litigation has gone, has established his rights. That applies in my opinion . . . to where the action has been dismissed (and) . . . to where a decree has been made establishing the plaintiff's rights." (parentheses and italics supplied)
Otto V. Lindford (1881)18 Ch. D. 394 was a straightforward case of an application for stay of execution of payment of costs awarded in the court of first instance. The plaintiffs action for alleged infringement of a patent had been dismissed with costs by the Vice-Chancellor. The plaintiff appealed from the order of dismissal. He then asked for leave in the Court of Appeal to give a short notice of motion to restrain the defendant from enforcing the order of costs pending appeal. When asked by the Master of the Rolls whether he had already applied to the court below, learned counsel for the plaintiff in reply said that "it was laid down in Wilson v. Church (Su p ra) that where an action has been dismissed the court below has, no jurisdiction to stay proceedings, and the application must be to the Court of Appeal .
Again, Jessel, M.R. told counsel:
That was a case of an entirely different description. The plaintiffs were asking for an injunction to restrain the trustees from parting with the trust funds pending the appeal. That was not an application for stay of proceedings under the order appealed from, for that order did not give any directions for dealing with the fund, and the court below having dismissed the action had no jurisdiction to grant the injunction sought.
The Master of the Rolls then directed that since the application was for stay of proceedings from the order appealed from it should be made in the first instance to the Vice-Chancellor in the court below. It should be pointed out that although Cotton and Brett, L.JJ. concurred with the views expressed by the Master of the Rolls, so far as the underlined portion of the quotation above is concerned, the former (i.e. Cotton, L.J.) made these rather pertinent observations: -
I have no doubt that, though the action is dismissed the court below can, pending an appeal, stay the doing (of) anything under the order of dismissal, and. . . the application for that purpose must be made to the Vice-Chancellor (i.e. the court below)" (Italics supplied)
The above observations of Cotton, L.J. are in my humble view, a far cry from support for the view that once a court and for that matter, the Supreme Court (and in Nigeria, the High Court) has dismissed a claim it is left without jurisdiction from restraining any proceedings or actions under its order if there should be an appeal from that order.
The facts in Orion Property Trust v. Du Cane (Supra) put shortly are as follows: On the 29th January, 1962 judgment was delivered in an action, in the Chancery Division, concerned With the shareholding in, and control of, defendant company. By this judgment L. the Secretary and Manager of the defendant company was held entitled to a block of shares of the defendant company which in a small way gave him majority control of that company. On 25th May of the same year (1962) at an extraordinary general meeting of the defendant company a resolution was passed for the increase of its capital by £150,000 divided in three million shares of one shilling each; and on the same day the directors issued 800,000 of the new shares to Mrs. H. a daughter of L., who really was L.'s nominee. Four days later (i.e. 29th May) notice of motion was given in the action on behalf of another company, which held a block of shares of the defendant com p any slightly less than that of L., against the defendant company and its directors from issuing any of the three million shares. Judgment in this action was entered, on 6th June, 1962 and on 19th June, 1962 the plaintiff gave notice of appeal; and on an application for injunction pending the appeal: Held (Pennycuick, J.) that on the principle that the court would intervene pending an appeal to restrain an act that might deprive an appellant of the results of the appeal, he had jurisdiction to grant an injunction and, in the circumstances of the case, he would grant the injunction sought. In Eringford Properties Limited v. Cheshire County Council (Supra) Megarry, J. (as he then was) took much the same line of reasoning and decision as did Pennycuick, J. in the Orion Properties Case (Supra).
Following the decision in Wilson v. Church (Supra) the Annual Practice (also sometimes referred to as "the White Book") has consistently (see 1962, 1973, 1976 and 1979 Annual Practice) stated (using Wilson v. Church as its authority for the statement) that:
where an action has been dismissed in the court below, that court has no jurisdiction e.g. to restrain a defendant from parting with a trust fund pending an appeal: the application for that injunction must be made to the Court of Appeal. [Italics supplied Annual Practice 1976 Vol.1 atp.880 under notes on Order 59/13/1 wherein also the endorsements "Per centra, Orion Properties Trust Ltd. v. Du Cane Court Ltd, are added).
It is also interesting to point out that the learned authors to the Annual Practice 1976 Vol.1 at p.465 in their notes to Order 29/1/11B made the following observations [citing Eringford Properties (Supra) as their authority).
where the Judge dismisses an interlocutory motion for an injunction, he nevertheless has jurisdiction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal, and it is not necessary for the applicant to apply to the Court of Appeal. (Italics supplied)
It is my humble and respectful view that the above quotation at page 880 of Vol.1 of the 1976 Annual Practice for which the case of Wilson v. Church (Supra) is cited as authority for the view expressed therein, cannot be right. The argument in Wilson v. Church (Supra) had, in effect, been that the application although, ex facie, for an order for injunction was, in substance, one for stay of proceedings pending an appeal and should, under Order 58 Rules 16 and 17 R.S.C. of 1875 [in pari materia with Order 59 Rules 13 and 14(4) of the 1976 and 1979 Rules of the Supreme Court (England)), be made in the first instance in the court below, that is, to the trial Judge. But the action in Wilson V. Church (Supra) was dismissed and therefore the question of a stay of proceedings (in regard to the nature of the application therein) could hardly have arisen; and so Order 58 Rule 17 (i.e. the current rule 14(4) of Order 59) aforesaid could not be applicable to the point in issue in Wilson (Supra). The matter before the court in Wilson was- as Sir George Jessel, M. R. has been quoted, as having stated in the Law Journal Reports - "an original motion" which the Court of Appeal could entertain.
Again, I would rather confine the decision in Otto v. Lindford (Supra) to what it decided which is that the application being one for a stay of execution of costs awarded in the judgment on appeal it should in accordance with the Rules of the Court then applicable to the proceedings be made in the first instance in the trial court (or court below). That is the ratio decidendi of Otto v. Lindford; Wilson v. Church (Supra) came into the case as an entirely different decision, which the court had, incidentally, to distinguish. It is my respectful view, therefore, that the comments on Wilson in Lindford are simply obiter.
Finally, I think it is settled in England (see Cropper v. Smith (1883)24 Ch. D. 305) and in Nigeria (see Shittu Ogunremi v. Dada (1962)1 All N.L.R. 663) that an application for stay of proceedings or execution under a judgment of the Supreme Court (in England) or in the High Court (in Nigeria) on appeal to the Court of Appeal must in the first instance be made to the Court of Appeal. The two courts have concurrent or co-ordinate jurisdiction in this matter. [See Brett, Cotton and Bowen, L.JJ. in Cropper v. Smith (Supra).]
What then is the position regarding an application for an order of injunction pending appeal? It does not appear to me that the position can be any different. I find considerable support for this view in that portion of the judgment of Cotton, L.J. in Polini vs. Gray (Ibidem at p.446) which I set out earlier between the marginal capital letters "K"-"L" and "N"-"O". As the learned Judge said, there is "no difference in principle between staying the distribution of a fund to which the court has held the plaintiff not to be entitled, and staying the execution of an order by which the court has decided that a plaintiff is entitled." I find it difficult, therefore, to subscribe to the view that a court becomes stripped of its jurisdiction to control the proceedings to the extent of preserving the subject matter of litigation, should it become necessary to do so, as soon as the court dismisses the proceedings before it. An application for an injunction to restrain proceedings or actions under a judgment under appeal pending the determination of the appeal appears to me to be an original motion which the court whose judgment is under appeal can entertain. It was, however, argued and contended that even if the court could, in these circumstances, intervene it can no longer do so as soon as its order has been drawn up and enrolled. While, however, it is true that except by way of appeal no Court, Judge or Master has the jurisdiction to rehear, review alter or vary its judgment or order after it had been entered or drawn up either in an application made in the original action or matter, or in a fresh action brought to review such judgment or order, the sole object of the rule, it should be remembered, is to bring litigation to finality [see Halsbury Laws of England Vol.223rd Edition - Paragraph 1665 at p.785, also Flower v. Lloyd (1877)6Ch. D. 297. Re St. Naziare Co. (1879)12 Ch. D. 88]. I think it is pertinent here to draw atten