Madam Margaret Ezeokafor V. Emmanuel Ezeilo (1999)

LAWGLOBAL HUB Lead Judgment Report

ACHIKE, J.S.C.

These two suits were consolidated for the purpose of this appeal. Nevertheless, they will be considered separately. Learned Appellant’s counsel elected to take them in the order in which they are set out above.

SC.229/91

This appeal arose from the Ruling of the Court of Appeal Enugu Division delivered on 29th November, 1990. The genesis of the case as it is relevant to this appeal may be found in the judgment of the High Court of Anambra State sitting at Awka in its appellate jurisdiction, delivered on 21/7/87. The judgment was in favour of the Respondent herein. Dissatisfied with the said judgment, the Appellant herein, by motion dated 14/8/87 applied for leave to appeal to the Court of Appeal. The application was heard and granted by the High Court Awka on 20/8/87 whereupon the Appellant filed his Notice of Appeal dated 14/8/87. It was common ground that when the learned Judge of the High Court Awka sat and granted leave to the appellant to appeal (i.e. 20/8/87), the High Court of Anambra State was on its annual vacation.

Based on the aforesaid Notice of Appeal filed pursuant to the leave granted by the High Court, the Appellant applied to the Court of Appeal for an order of injunction, by a motion dated 20/1/90, restraining the Plaintiff/Respondent from causing any more damages etc on the land the subject of this suit, pending the appeal thereof. To this application, Respondent’s counsel filed a Notice of Preliminary Objection on the following grounds, to wit, (a) that the Supreme Court was then seized of the matter, and (b) that the lower court therefore had no longer the jurisdiction to entertain the application.

Relying on Order 8 rule 11 of the Supreme Court Rules 1985, the Court of Appeal upheld the objection and accordingly struck out the application with costs in favour of the Respondent. Dissatisfied with the Ruling, the Appellant appealed to this Court relying on one ground of appeal.

The parties filed and exchanged briefs of argument respectively dated 19th July, 1991 and 24th October, 1997. Appellant’s learned counsel. Mr. C.O. Anah, in his brief identified one issue for determination, namely.

“Whether the jurisdiction of the Court of Appeal to injunction in respect of its Ruling under Appeal to the Supreme Court is suspended arising from the fact that the Supreme Court is now seised of the matter, and the said matter had been entered at the said Supreme Court.”

On the other hand, Mrs A.J. Offiah, learned Respondent’s counsel also postulated a sole issue for determination to wit’

“Can the Court of Appeal exercise its jurisdiction to grant injunction in respect of its decision AFTER an appeal therefrom has been entered herein and the Supreme Court is seised of the proceedings.”

At the hearing before us the submission of learned counsel for the appellant can be summarized thus: on the authority of Shodeinde v. The Registered Trustees of the Ahmadiyya Movement-in-Islam (1980) 1-2 SC 163 and Kigo (Nigerian) Ltd. v. Holman Bros (Nigeria) Ltd (1980) 5-7 SC 60 the Court of Appeal could still entertain the application for injunction for the purpose of preserving the res as the court below did not lose its jurisdiction in this regard by the fact that the appeal had been entered in the Supreme Court. He urged us to allow the appeal because despite Order 8 Rule 11 the court below could still have entertained the application for injunction.

For the Respondent, learned counsel says that she relies on the submission in her brief and the Respondent’s contention at p. 17 of the record. She further submitted that Order 8 Rule 11 of the Rules of this Court provides a total answer to the issue raised in this appeal. It is her further submission that the purpose of that Rule is that when the appeal is entered, the Supreme Court becomes seised of the case to the exclusion of any court and the issue is not whether the court below and the Supreme Court have concurrent jurisdiction on the subject matter of the application. She proceeded to distinguish the decision in Shodeinde case from the operation of Order 8 Rule 11. In that case the appeal had not been entered before the application was made and furthermore, that case was concerned with the preservation of the res only and did not consider whether or not the appeal has been entered. Referring to Kigo case, she observed that no appeal was even pending at the Supreme Court when the appeal was heard by the Court of Appeal because the applicant was still applying for leave to appeal and no appeal had therefore entered.

Finally, she submitted that in the two cases the Supreme Court was not concerned with the interpretation of Order 8 rule 11. Accordingly, she urged us to dismiss the appeal.

It is clear to me that this appeal lies within a narrow margin. The application before the Court of Appeal to which the Respondent’s learned counsel raised a preliminary objection was one for an order of injunction. It is indisputable that by the combined effect of the provisions of sections 16 and 18 of the Court of Appeal Act 1976, the Court of Appeal has jurisdiction to grant an injunction where the circumstances so warrant. Furthermore, it is incontestable that all courts of record, as re-echoed by Eso, J .S.C, in the Kigo case, possess power of preservation of the res in their custody. The reason for this may not be difficult to appreciate; it ensures that the final order the court may make in relation to the res does not expose the court to a state of helplessness, leaving the victorious party to celebrate a mere empty and pyrrhic victory. Such a situation must be roundly condemned for it is a well-known maxim that the court does not act in vain. But the issue seems to me to be to what extent, if any, is this expansive jurisdiction of the Court of Appeal to grant injunction procedurally circumscribed, or even excluded by the operation of the Rule of court, and specifically by Order 8 Rule 11 of Supreme Court Rules of 1985. For a better understanding of the Ruling of the Court of Appeal leading to this appeal, it is necessary to examine Order 8 Rule 11 on which the court below anchored its decision. Rule 11 of Order 8 states: