Chief Yeshan Popoola Oyeshile Shodehinde & Ors V. The Registered Trustees Of The Ahmadiyya Movement In Islam (1980)

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IDIGBE, J.S.C. (Delivering the Leading Judgment)

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 briefs 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 respondent 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 (Candid 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, H.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 reservation “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. G. 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; (2) Wilson v. Church (1879) 11 Ch. D. 576; (3) Polini v. 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.670) of the judgment of Brett, F.I. 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 obiter 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)it 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 v. 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 up and enrolled, the plaintiffs 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, hearing to have asked the court 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.”

The contentions, submissions and judgment in Galloway (Supra) would appear to confine the basis for the 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: