Mr. Ganiyu Badaru v. Somolu Community Bank Nig. Limited (2008)
LawGlobal-Hub Lead Judgment Report
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.,
This appeal is against the Ruling of the Hon. Justice O.H. Oshodi (J) of the Lagos State High Court holden at Ikeja. The ruling which was pronounced on the 1st day of March 2005 dismissed the motion ex-parte of the Appellant which was filed on the 16th June 2004. Although filed ex-parte, the Respondent was eventually put on notice and issues were joined and keenly contested between the parties.
The Appellant sought an order for the leave of the High Court to levy execution of the judgment of this court against which an appeal had been entered in the Supreme Court.
The brief facts which culminated in this appeal commenced with the suit of the Appellant filed as suit ID/2460/94. On the 11th April 1997, the Hon. Justice C.A. Olorunnimbe (J) pronounced Judgment in favour of the Respondent granting an order of specific performance of the contract of sale of the landed property of the Appellant.
The said landed property is situated at and known as No 9, Alarape Street, Bariga, Somolu, Lagos. The learned trial Judge also ordered that the Appellant should deliver up possession of the said landed property to the Respondent forthwith. The Appellants appealed to this Court and on the 9th day of May 2004, in appeal No CA/L/344/99, this Court set aside the decision of the trial court.
The Respondent appealed to the Supreme Court where the matter currently resides. Meanwhile, the Appellant who is now respondent before the Supreme Court wants to levy execution upon the Judgment of this Court setting aside the decision of the trial court. (Ref: pages 18 – 38 of the records for this Appeal).
The Appellant’s three issues for determination were couched in these terms:-
“2.01. The first issue for determination in this appeal is whether the Appellant’s Application for an Order for Leave to Levy execution of judgment of the Court of Appeal No. CA/L/344/99 should be brought in the Supreme Court of Nigeria instead at the High Court of Lagos State of Nigeria.
2.02. The Second Issue for Determination in this appeal is whether the Application for Stay of Execution, which was filed in the Court of Appeal by the Respondent in the Appeal No. CA/L/344/99 after the Appeal had been entered in the Supreme Court of Nigeria constituted a Stay of execution of the Judgment in Appeal No. CA/L/344/99.
2.03. The third issue for Determination in this Appeal is whether the Ruling or Decision of the Honorable Justice O. H. Oshodi in suit No. ID/260/94 is a nullity.”
By a subtitle to wit: – “NOTICE OF PRELIMINARY OBJECTION”, the learned Counsel for the Respondent seems to have incorporated some argument in the Respondent’s brief. However, when the appeal was heard on the 22/03/07, the preliminary objection was not argued. There is also no evidence in the file that any notice of preliminary objection had been filed in compliance with the Rules of this Court, the preliminary objection is therefore discountenanced having been abandoned.
Respondent’s Issue
“Whether the Appellant’s motion in the High Court being a motion to enforce a judgment, an appeal from which has been entered in the Supreme Court, may be entertained by any court other than the Supreme Court.”
The Respondent’s issue seems more germane to the title subject of this strange appeal.
The theme of the augment of the Appellant in support of the three issues is the provision of section 287 (2) of the 1999 Constitution of the Federal Republic of Nigeria.
The said section provides that:
“The decision of the Court of Appeal shall be enforced in any part of the Federation by all authorities and person and by court with sub ordinary jurisdiction to Court of Appeal;”
Upon this provision of the constitution, the learned Counsel submits that the learned trial Judge erred in law in holding that the application of the Appellant for an order for leave to enforce the Judgment of the Court of Appeal should have been made in the Supreme Court of Nigeria. The learned Counsel maintains that the said decision of the learned trial Judge is a nullity being a contravention of the provisions of section 287 (2) of the constitution (Supra). The learned Counsel also relied on the following cases:
- Atolagbe v. Awuni (1997) 8 NWLR (Part 522) 536 at pages 564 to 588,
- Section 6(6) (b) of the Constitution of Nigeria 1999,
- Vaswani Trading Co. v. Savalake & Co. (1972) 12 SC 77 at pages 81, 82, 85, 86, and 89,
- Skencounsult (Nig.) Ltd. v. Ukey (1981) 1 SC at pages 9, 22, 26, 35 and 36.
- Overseas Construction Co. (Nig.) Ltd v. Creek Enterprises (Nig.) Ltd. (1985) 12 SC 158 at pages 178, 179, 192, 193 and 199.
Also cited are sections 6 (6) (b) of the constitution (supra) and section 24 of the Supreme Court Act 1960.
The learned Counsel also argues that the decision of the Supreme Court that a pending application for stay of execution operates as an interim stay of execution did not whittle down the effect of section 24 of the Supreme Court Act 1960.
We are urged to allow the appeal, set aside the Ruling of the learned trial Judge and grant all the prayers sought before the trial Court.
The Respondent’s brief of argument excluding the preliminary objection, starts at page 7 of the record with the following dialogue:
“Court to Oriade:
You confirm that all appeal has been entered at Supreme Court. Oriade: Yes that is why the Court of Appeal has no jurisdiction to entertain any application.”
The learned Counsel for the Respondent also drew our attention particularly to pg 3 paragraph 4.02 of the Appellant’s Brief where the Appellant concedes significantly as follows:
“Both parties and Court of Appeal agreed that Court of Appeal of Nigeria had no jurisdiction to entertain the Application of the Respondent for stay of Execution of the judgment in the Appeal No CA/L/344/99 after the appeal No. CA/L/344/99 had been entered in Supreme Court and that any application for Stay of Execution of the judgment thereon should be made in the Supreme Court.”
With these admissions by the Appellant, learned Counsel for the Respondent submits that the application of the Appellant before the trial Court was clearly incompetent. The High Court, posits the learned Counsel, has no jurisdiction to hear the application. Counsel further submits that by the provisions of order 8 Rule 10 of the Supreme Court Rules, the High Court is incompetent to transmit processes to the Supreme Court No reply brief was filed by the Appellant.
It is obvious that the learned Counsel for the Appellant has totally misconceived the import of the provision of section 287 (2) of the Constitution.
“The decisions of the Court of Appeal” which are “enforceable in any part of the Federation by all authorities and persons and by the court with subordinate jurisdiction,” are in my humble opinion, those decisions against which no appeals lie to nor are pending in the Supreme Court. Having conceded that an appeal had not merely been filed but dully entered before the Supreme Court, the argument of the learned Counsel to the Appellant that the decision of this court will be rendered nugatory if not enforced by leave of the trial court is non sequitur.
Order 8 Rule 11 of the Supreme Court Rules clearly provides that:
“After an appeal has been entered and until it has been finally disposed of the Court shall be seized of the whole proceedings as between the parties thereto, and except as may be otherwise provided in this Order every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court,”
The meaning of Order 8 Rule 11 (supra) was explained in the case of Ogunremi v. Dada (1962) ALL NLR p 657 @ 623 when the apex court held that once an appeal has been properly entered upon the receipt of the records from the court below, all subsequent applications must be made to the appellant Court seized with the matter not the Court below. (See also the case of Ezeokafor v. Ezelio (1999) 6 SCI).
The learned Counsel is right in his submission that the High Court is not the appropriate court to transmit any processes to the Supreme. “The Court below referred to in Order 8 Rule 11 of the Supreme Court Rules can only refer to the Court of Appeal which is the Court from which Appeals go directly to the Supreme Court” (Section 233 (1) of the 1999 Constitution (supra) referred”.
The appeal having been confirmed dully entered, all subsequent applications can be filed at the Supreme Court. All application pending at the Court of Appeal in respect of the matter becomes extinct if not transmitted to the Supreme Court.
The High Court lacks the competence to transmit any process pending before it to the Supreme Court. Transmission of any process from the High Court to the Supreme Court can be done only upon the specific direction of the Supreme Court to the High Court.
Let me however hasten to add that the Supreme Court cannot entertain an application for leave to levy the execution of the decision of this Court. The provision of Section 287 (2) of the 1999 Constitution is very clear and needs no extra-ordinary interpretation. Only Courts of subordinate jurisdiction shall enforce the decisions of this Court. The application was therefore filed in the appropriate Court.
However, to argue that the decision of the trial Court is a nullity because it declined to grant the application placed before it is erroneous. An application of this nature employs the discretion of the Judge which must to be exercised judicially and judiciously. In such situations, the trial Judge has the best judicial visual latitude within the prevailing circumstances to elect where to repose his discretion.
The Appellant having conceded that an appeal has been entered against the decision sought to be executed, it would be a poor exercise of discretion to grant such an application.
It has not been shown that the trial Court fell in to any error injurious to the Appellant in electing to exercise its discretion cautiously in view of the appeal pending before the Supreme Court.
I think it apposite for us in this Court to refrain from interfering with this judicious exercise of discretion by the learned trial Judge.
This appeal is BAD. It is hereby dismissed.
A cost of N30, 000.00 is awarded to the Respondent and against the Appellant.
It is hereby so ordered.
Other Citations: (2008)LCN/2902(CA)
