Government Of Gongola State V. Alhaji Umaru Abba Tukur (1989)
LawGlobal-Hub Lead Judgment Report
OBASEKI, J.S.C.
This appeal is probably overtaken by events i.e. the judgment (in the appeal lodged by the Respondent herein and the cross appeal lodged by the appellant against the decision of the Court of Appeal in the substantive appeal to it from the High Court) delivered a short while ago.
Following the decision of the Court of Appeal that:
“The Federal High Court has no jurisdiction to entertain, determine and grant the relief, the Respondent claimed in paragraphs 1 and 2 of the Respondent’s claim either separately or in combination with the other aspects of the Respondent’s claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.”
the Respondent applied to the Court of Appeal by Notice of Motion (pursuant to section 18 Court of Appeal Act 1976 as amended) for an Order.
“Directing a stay of its Order contained in its judgment dated 21st June, 1988 between the parties, in respect of appellant’s reliefs 1 and 2 in the lower court, pending the determination of the appeal against the same to the Supreme Court and for such further Order or Orders as this Honourable Court may deem just. ”
The grounds on which the application was based as contained in the affidavit evidence filed along with it are in the words of the Respondent:
“(1) The appeal raises substantial points of law which could be resolved either way.
(2) It is essential in the interest of justice that a stay of the Orders of this Honourable Court relating to reliefs 1 and 2 canvassed on my behalf in the lower court be granted pending the determination of the appeal aforesaid.
(3) The Respondent in this application will not be prejudiced by any such Order.
(4) The remaining part of your Lordship’s Orders contained in the judgment aforesaid not the subject of the said appeal, can be proceeded with by the lower court pending determination of the appeal herein.
(5) Unless my application be granted, it will render the appeal nugatory,”
The Court of Appeal after hearing counsel in argument granted the stay. Maidama, J. C. A., in his ruling (concurred in by Jacks and Adio, J.C.A.)
said inter alia:
“It was conceded that at the time of the alleged appointment the application for a stay had already been filed and brought to the notice of the Respondent and although under section 18 of the Court of Appeal Act 1976 an appeal by itself does not operate as a stay, if execution is yet in practice particularly as in this case where the question of the jurisdiction of the Federal High Court is involved in the enforcement of fundamental rights which is inseparably interwoven with a chieftaincy question; it would have been better for the Respondent not to have made the alleged appointment In a case where grounds exist suggesting that a substantial issue of law is to be decided on appeal in an area in which the law is to some extent recondite and where either side could have a decision in his favour where a stay ought to be granted See Balogun v. Balogun (1969) 1 All N.L.R. 349 at 351 and Martins case (supra). Further in this matter there is the question of jurisdiction of the trial court which forms part of the grounds of appeal disclosing a substantial arguable point of law which justify holding the matter in status quo until the appeal issues are resolved. See Martins case (supra).
Be that as it may the justice of the case will be better met by granting the application. The application is therefore granted as prayed.”
The Respondent to the application was dissatisfied with the decision granting a stay of the order and appealed to this court. The only ground of appeal filed with his Notice of Appeal reads:
“The learned Justices of the Court of Appeal erred in law in making an order staying the execution of the judgment of the court dated 21st day of June, 1988 pending the appeal lodged to the Supreme Court by the Respondent.”
Particulars of Errors
- The portion of the judgment of the Court of Appeal dated 21st June, 1988 appealed against by the applicant was “That part of the decision in which the Court of Appeal held that the Federal High Court has no jurisdiction, to entertain, determine or grant reliefs claimed in paragraphs 1 and 2 of Respondent’s claim either separately or in combination with the other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.”
- An order for “stay of execution pending appeal” is not an appropriate remedy where an appellate court has held that a lower court had no jurisdiction to entertain a matter and a further appeal is lodged against the judgment of the appellate court.
- An order for “stay of execution pending appeal” can only be made where the judgment appealed against contains an order capable of being positively enforced or executed against the applicant.
- There is nothing to enforce or execute against the other side in a judgment or portion of a judgment holding that the lower court has no jurisdiction to entertain a matter as this case.”
With leave of this court an additional ground was filed. This second ground of appeal reads:
“The Court of Appeal erred in granting the Respondent’s application for a stay of the judgment of the court pending the Respondent’s appeal to the Supreme Court, when the Respondent did not show any special and exceptional circumstances why the application should be granted.”
Arising from these 2 grounds of appeal two issues for determination in this appeal were formulated by the appellant and they read:
“(1) Whether an order for stay of execution pending appeal or stay of order contained in the judgment pending appeal is an appropriate remedy in law where the Court of Appeal held that the Federal High Court has no jurisdiction to entertain a matter and an appeal is lodged to the Supreme Court against the judgment of the Court of Appeal.
(2) Whether there were special or exceptional circumstances in the affidavit evidence in support of the Respondent’s application to justify the grant of the Respondent’s application for “stay pending appeal.”
The Respondent’s counsel however formulated only a single issue for determination in the Respondent’s brief as follows:
“Having regard to the question of jurisdiction of the Federal High Court, which is the substratum of this appeal from the genesis of this case up to this Honourable Court, whether the lower court was right in granting a stay having regard to all the circumstances of the stay.”
Briefs of Argument were filed by the parties in this appeal. Apart from the submissions and arguments in the appellant’s brief and the Respondent’s reply brief, there was no oral hearing or argument before this court. This was because accelerated hearing was granted by this court in the main appeal. The hearing was concluded on the 6th day of June, 1989 before adjourning for judgment. As this appeal did not come up for oral hearing earlier in time and in any event as the Order of the Court of Appeal will be discharged on the determination of the main appeal on the 5th day of September, 1989, oral hearing was dispensed with.
The appellant’s brief was drawn up and filed by their counsel Tayo Oyetibo, Esq., while the Respondent’s brief was drawn up and filed by his Counsel Mr. G. Brown-Peterside, S.A.N.
The 1st issue formulated by the appellant can be taken along with the issue formulated by the Respondent conveniently as the arguments on both issues traverse the same compass although the issues were differently worded.
In dealing with these two issues the first question that comes to mind is this “What was the Order stayed”
The proceedings both in the High Court and the Court of Appeal relate only to the objection in limine to the jurisdiction of the Federal High Court to entertain the reliefs claimed in the motion paper. The Federal High Court dismissed the objections in to and held it had jurisdiction to entertain and grant all the reliefs claimed. The Court of Appeal reversing the decision in respect of reliefs 1 and 2 held that the Federal High Court has no jurisdiction to entertain, determine and grant the reliefs the Respondent claimed in paragraphs 1 and 2 of the Respondent’s claim. It made no consequential Order or Orders. The only consequential Order that flows from the decision is an Order striking out the two items of claim from the reliefs claimed. The judgment of the Court of Appeal is merely declaratory. There is nothing to execute in favour of the appellant for which an order of stay can properly issue. An order striking out a claim over which a court has no jurisdiction automatically follows a declaration that the court has no jurisdiction and once it is made its operation is fulfilled. It cannot be stayed.
Learned counsel for the appellant also asked this pertinent question when he asked in his brief
“Now the pertinent question is, can the portion of the judgment of the Court of Appeal be enforced against the Respondent to warrant an application for “stay” pending appeal”
My answer is in the negative.
He then quite correctly submitted and I agree with him that it is not every judgment or order of the court that requires enforcement by the parties and therefore capable of being executed by the unsuccessful parties.
It should be noted that many judgments and orders do not require to be enforced as the judgment and order itself is all that the party obtaining it requires.
See Para. 565, Vol. 26 Halsbury’s Laws of England, 4th Edition, page 288.
The judgment of the Court of Appeal in question is one such judgment.
A declaratory judgment is complete in itself since the relief is the declaration. See Vol. 1 Halsbury’s Laws of England, 4th Edition, Para. 185-187; Akunnia v. Attorney-General of Anambra State (1977) 5 SC. (161 at 177). Judgments and orders are usually determinations of rights in the actual circumstances of which the court has cognizance, and give some particular relief capable of being enforced.
When therefore a court declares that it has no jurisdiction, besides the declaration of its incompetence which it has jurisdiction to make, no determination of rights or entitlement thereto which can be enforced by the beneficiary is made. The Court of Appeal made no determination of the rights of the parties requiring enforcement.
Learned counsel for the appellant contended that an order for a “stay” pending appeal can only be made where the judgment appealed against contains an order capable of being positively enforced or executed against the applicant and as there was nothing to enforce or execute against the Respondent in this case, the grant of a stay was in error. In support of this contention Construtioni ‘Generali’ Farsura Cogefar v. Nigerian Ports Authority (1972) 12 SC. 107 at 112-113; Clifton Securities Ltd. v. Huntley and others (1948) 2 All E.R. 283 at 284 were cited.
A stay of an order or judgment, in the submission of learned counsel, and I agree with him, merely arrests further action by the court itself in the suit against the judgment debtor or person adjudged liable on the claim.
For the definition of the word “execution” he relied on the definition given in Re Overseas Aviation Engineering (G.B.) Ltd. (1962) 3 All E.R. 12 at 16 and Blackman v. Fysh (1892) 3 Ch. 209 at p. 217 by Kekewich, J.
A stay of execution only prevents the plaintiffs or beneficiary of the judgment or order from putting into operation the machinery of the law the legal process of warrants of execution and so forth. An order for “stay” pending appeal therefore can only be granted in respect of executory judgment or order. But the judgment of the Court of Appeal is not an executory order.
The Court of Appeal cannot go outside the terms of the motion however misconceived it is. It is bound by the terms or prayers in the motion filed. (Commissioner for Works Benue State v. Devon Construction Co. Ltd. (1988) 3 N. W. L. R. (Pt.83) 407 at 420.) Since there was nothing to stay the Court of Appeal was in error to have made the Order prayed for.
Turning to issue No.2, learned counsel for the appellant referred to the guiding principles laid down by this court in Vaswani Trading Company v. Savalakh & Company (1972) 12 SC. 77 and the fact that the facts deposed to in affidavit and counter affidavit do not support a grant of the order. On the contrary they support a refusal of the Order as no special circumstances were shown to warrant a stay as defined in Okafor v. Nnaife (1987)4 N. W. L. R. (Pt.64) 129.
In reply learned counsel for the Respondent submitted in his brief that the argument that there is nothing to stay is totally misconceived. He submitted that the res to be preserved is not a tangible res. It is, he contended, a state of affairs, which can only be acknowledged by observation or otherwise, but not necessarily something that can be touched. He further submitted that in the main appeal i.e. the substantive appeal disposed of this morning, substantial points of law necessitating the parties and issues being held in status quo until legal issues are resolved are involved.
The substantial issue raised in this appeal is whether the judgment of the Court of Appeal declaring that the Federal High Court has no jurisdiction to entertain, determine and grant reliefs prayed for in paragraphs 1 and 2 of the statement of claim is a judgment or order that can be stayed. It should be borne in mind that at the stage when a court declares that it has no jurisdiction or has jurisdiction in a matter it has not entered into the determination of the rights of the parties. If it has heard evidence beside the evidence on the issue of jurisdiction, it has not assessed and evaluated the evidence to enable it determine the rights of the parties and or grant or refuse the reliefs claimed.
It is saying at that stage that it is incompetent to entertain, hear, and determine the case or that it is competent to hear and determine the case.
If it declares that it has no jurisdiction and is incompetent to hear and determine the case that is a complete decision in itself. It means that the court cannot proceed to hear evidence and determine the rights of the parties in the case. There is nothing in the decision calling for enforcement by any of the parties. So there is nothing to be executed and there is nothing to be stayed.
What then does execution mean It is defined in Stroud’s Judicial Dictionary, 4th Edition, Vol. 2, page 965 as follows:
“Execution, execution, and signified in law the obtaining of actual possession of anything acquired by judgment of law, or by a fine executory levied, whether it be by the sheriff or by the entry of the party” (Co Lith 154a). “Execution is, where judgment is given in any action that the plaintiff shall recover the land, debit or damages as the case is”
(Terms de law Ley). Execution means quite simply, the process for enforcing or giving effect to the judgment of the court’ (Per Lord Denning in Re Overseas Aviation Engineering (G.B.) (1963) Ch. 24).”
An application for a stay of execution postulates that the party applying has lost the action or some part of the action (See Construzioni General Farsura Cogefar-S. P. A. v. Nigerian Ports Authority 12 S.C. 107 at 112-113 (1972)).
A stay of an order or judgment merely arrests further action by the court itself in the suit. When therefore as in the instant appeal the court declares that the Federal High Court has no jurisdiction to entertain the claim, that brings any action the court could take in the suit to an end automatically and there exist no where any further action that could be arrested by the “stay.”
There is therefore nothing to execute and nothing to stay.
I therefore agree with learned counsel for the appellant that the application was misconceived. The appeal succeeds and it is hereby allowed. The decision of the Court of Appeal is hereby set aside and in its stead it is hereby ordered that the motion be dismissed for being misconceived.
The appellant shall have costs in this appeal fixed at N500.00.
NNAMANI, J .S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Obaseki, J.S.C. and I entirely agree with his reasoning and conclusions. I also take note of the fact that the Court of Appeal held that the Federal High Court had no jurisdiction in respect of the Respondent’s claims I and II. This was a declaratory judgment and not an executory one. There being nothing to execute, there was nothing on which the Court of Appeal could have granted the stay of execution. I endorse all the orders made by my learned brother, Obaseki, J.S.C.
KARIBI-WHYTE, J .S. C.: I have had the privilege of reading the judgment of my learned brother, Obaseki, J .S. C., in this appeal. I agree entirely with the reasoning therein that the Court of Appeal having held that the Federal High Court had no jurisdiction in respect of claims 1 and 2, there was nothing in their judgment to execute and in respect of which a stay of execution could be granted. The Court of Appeal was therefore wrong to have granted the stay of execution asked for by the Respondent. I therefore agree that the appeal of the appellant succeeds.
I adopt as mine all the reasons given by my learned brother, Obaseki, J.S.C., for allowing the appeal since I agree with all of them. I also allow the appeal.
Appellant shall have costs in this appeal assessed at N500.00.
SC.148/88
