Evangelist E. Adeyemi Oyeneye V. S. O. Odugbesan

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C 

This is an application for leave of this court to appeal to the Supreme Court against the judgment of Taylor, CJ., (High Court, Lagos) dated the 14th June, 1971, and for stay of further proceedings on the said judgment pending the determination of the appeal.

The applicant was the defendant and the respondent the plaintiff in an appeal which was heard in this court and decided on the 26th March, 1971. In its judgment, this court, inter alia, awarded to the plaintiff damages for trespass, declaration of title to the piece of land as claimed by the plaintiff and an injunction to restrain the defendant and his agents or servants from further trespass on the said land. As the defendant would not leave the premises, thus continuing to be disobedient to the order of injunction, the plaintiff applied to the High Court, Lagos for “a writ of possession to be issued against the defendant pursuant to the judgment of the Supreme Court given in the substantive suit”.

On the 14th June, 1971, Taylor, CJ., made an order in the case asking the defendant to vacate the premises on or by the 19th June, 1971. The present complaint of the defendant is that the application for a writ of possession was not the appropriate way of making him obey the order of injunction and that the judgment was wrong to order him to vacate. He was going to appeal against the order and sought leave of the Chief Justice to do so.

The learned Chief Justice refused the leave sought but before his ruling on the 19th July, 1971, refusing leave, the defendant had vacated the premises and had therefore complied with the order of this court. It is now sought still to appeal against the order asking him to vacate.It is correct that a would be appellant is entitled to come to this court to ask for leave to appeal where such leave had been refused by the High Court but it is wrong to assume that the granting of such leave by this court is automatic.

In the case in hand, it is clear that the point to be decided by this court if the appeal comes before us is a purely academic one for this was not a case in which the defendant was ever lawfully in possession. It was a case in which he was adjudged to be a trespasser and asked to desist from continuing his trespass.

It would not, as Taylor, CJ., observed, have been necessary to apply for a writ of possession against him and his continued stay on the premises after the judgment of this court is a flagrant demonstration of his defiance of the order against him. Learned counsel referred us to a number of authorities as to the propriety of granting leave even where the question to be decided on appeal is a purely academic one. We will not exclude the possibility of this but must point out that the cases must be decided on the circumstances characterising them and it is sufficient to point out that even learned counsel conceded that the cases which he had cited to us are those in which the prospective appellants were entitled to come here as of right and not by leave as is required by law.

This is a case where apart from being merely academic, the point which is sought to argue is no more than a cover for a disguised act of contempt. We will therefore refuse leave to appeal. The  other part of the Motion, that is stay of proceedings, had been abandoned by learned counsel for the applicant.

We will therefore dismiss the application. It is hereby dismissed. The applicant will pay 7 guineas costs to the respondent.

SC.186/1968