In The Supreme Court of Nigeria

On Friday , 15^th day of February 1980  

SC 11/1977

Before Their Lordships

Between

 And 

Judgement of the Court

Delivered by

Chukwunweike Idigbe

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 reliefs 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 respondents, 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 (Candido 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, JJ.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 reservations) "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. O.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 Galloway vs. The Mayor the Commonality, Citizens of London 46 E.R. 560; (2) Wilson vs. Church (1879)11 Ch. D. 576; (3) Polini vs. 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.670j of the judgment of Brett, F.J. 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 obiteT 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) 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 vs. 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 u p and enrolled, the plaintiff's 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, ought at the hearing to have asked the court so to frame its order as 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. [Italics supplied]

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

When an action has become altogether dismissed by a Divisional Court no order can be made under Rules of Court of 1875 Order 58 Rules 2 and 5 to stay proceedings pending an appeal; but the Court of Appeal will, in a proper case, grant an injunction to restrain any of the parties parting with the property till the hearing of the appeal.

The argument of the applicant in that case had been that once the lower court has dismissed the claim before it absolutely that court could not, as the case of Galloway (Supra) decides, entertain an application for stay of proceedings pending an appeal from that order of dismissal; it was, he submitted, therefore, proper to bring his application for stay of proceedings pending the appeal in the Court of Appeal (England). The respondents, on the other hand, submitted that in view of Order 58 Rule 17 rules of court under the First Schedule to the Supreme Court of Judicature Act 1875 (amending The Supreme Court of Judicature Act of 1873) - hereafter referred to as the "R.S.C. of 1875" - and which is almost in pari materia with Order 7 Rule 37 S.C.R. the applicants ought to have brought their application in the first instance in the lower court. Sir George Jessel M.R. held in an extremely short judgment (with which Brett and Cotton, LL.J. concurred) that the court of first instance (Fry, J.) having dismissed the claim altogether (i.e. absolutely) that court had no jurisdiction to stay proceedings and the application was properly made in the Court of Appeal (England)" it should, I think, be pointed out here that from the law journal report of the proceedings in Wikon V. Church No. (1) (i.e. Supra) it does appear that Jessel, M.R. regarded the application in question "not" as one for stay of proceedings but as "an original motion for injunction" brought directly in the Court of A p peal and which that court could always entertain (see (1879)48 L.J. Ch.D.690).

In Pelini v. Gray (Supra), a decree having been made in three suits for the administration of the personal estate of an intestate directing an inquiry as to her next of kin, a certificate later issued showing five named persons of the family named "F" resident abroad as being next of kin of the intestate; consequently an order was made for distribution among them of the fund in court. S. who had not been a party to the proceedings applied and alleged that she was next of kin. The Vice-Chancellor directed that the order of distribution be suspended (i.e. an order of injunction) and that inquiry be made as to whether S. had made out a prima facie case. As it was reported that a prima facie case had not been made out the Vice-Chancellor directed that the distribution of the fund should go on without prejudice to any independent proceeding by S. Four of the five shares were at once transferred to four of the five certified named next of kin; the fifth share remained in court. Two of the shares, which had been transferred, were sold out and the proceeds received by vendors. S., following a subsequent action initiated by her, obtained an order granting an injunction to restrain any dealing with the shares which had not been sold and directing an inquiry as to who were the next of kin, and this order was directed to be taken as made in the three suits as well as in the action by S. The chief clerk again found the "F" Family to be the next of kin. An action by S. to vary the certificate was dismissed by the Vice-Chancellor but the injunction was continued in the three suits until further order. (i.e. the injunction for suspension of distribution continued). S appealed and the Court of Appeal (England) affirmed the decision of the Vice-Chancellor and dismissed S.'s bill, but S. desired to appeal to the House of Lords:

Held: Since if S. should succeed in the House of Lords her success would be nugatory or useless, unless in the meantime the fund was protected. The order of injunction (by the V.C.) ought to be continued until the determination of the appeal. Sir George Jessel, M. R. observed that the principle which underhes all orders for the preservation of property pending litigation is that the ultimately successful party in the litigation is to reap the fruits of that litigation, and not to obtain merely a barren success. The important point to note in Pelini V. Gray, however, is that learned counsel for the appellants from the decision of the Court of Appeal in England to the House of Lords specifically requested as follows:

We ask to have the order on appeal, which has not yet been drawn up, put in such a form as to protect the fund pending our appeal to the House of Lords. (Italics supplied)

and Sir George Jessel, MR. observed: at pp.443-444

As the order of the Court of Appeal has not been drawn up there is no question of rehearing. (Italics supplied - see [1879]. 12 Ch. D at 442-3).

It does appear from the foregoing that Pelini v. Gray and Galloway (Supra) appear, ex facie, to support the contention that once the judgment has been drawn up and enrolled, the court whose judgment is under appeal cannot restrain proceedings or actions under that judgment. However, it is desirable here, to quote a very relevant passage from the judgment of the court in the case (i.e. Pelini v. Gray); and in the first instance, I quote from that of Jessel, M.R. at p.443:

The question before us is this: An action is brought to determine the rights of claimants to a fund. The plaintiffs fail in the court of first instance and in the court of second instance, but are about, bona fide, to prosecute an appeal to the court of ultimate resort. The plaintiffs allege that that appeal will be nugatory if the fund is paid out to the defendants and that if the plaintiffs should ultimately succeed in the House of Lords, that success will be useless to them unless an interim order is made for preserving the fund…" assuming that contention to be correct in fact, the question is, whether this court has jurisdiction to prevent such a consequence. It appears to me a principle that the court ought to possess that jurisdiction, because the principle which underlies all orders for the preservation of property pending litigation is this, . . . that the ultimately successful party is to reap the fruits of that litigation, and not obtain merely a barren success. That principle, as it appears to me, a p plies as much to the court of first instance before the first trial, and to the Court of Appeal before the second trial as to the court of last instance before the hearing of the final appeal". The rule under the Judicature Act is Rule 3 of Order 52 which is this: 'it shall be lawful for the court or a Judge upon the application of any party to an action, and upon such terms as may be Just, to make an order for the detention, preservation or inspection of any property being the subject of such action'. The terms in which the jurisdiction is conferred are general and unlimited.  (Italics supplied)

And yet again, I quote from the judgment of Cotton, L.J. at p.446:

…. The only question we have to consider is, whether or not the court has jurisdiction in a proper case to stay all dealings with a fund pending an appeal to the House of Lords although the court has decided against the title of the plaintiff and dismissed the

"K" action. I see no difference in principle between staying the distribution of a fund to which the court has held the plaintiff not to be entitled, and staying the execution of an order by

"L"  which the court has decided that a plaintiff is entitled to a fund. In that case, as in thhis case, the court, pending an appeal to the House of Lords, suspends what it has declared to be the righ of one of the litigant parties. On

"N" what principle does it do so? It does so on this ground, that where there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the fund, would make the appeal nugatory . . . then it is the duty of the court to interfere and suspend the right of the party who, so

"O" far as the litigation has gone, has established his rights. That applies in my opinion . . . to where the action has been dismissed (and) . . . to where a decree has been made establishing the plaintiff's rights." (parentheses and italics supplied)

Otto V. Lindford (1881)18 Ch. D. 394 was a straightforward case of an application for stay of execution of payment of costs awarded in the court of first instance. The plaintiffs action for alleged infringement of a patent had been dismissed with costs by the Vice-Chancellor. The plaintiff appealed from the order of dismissal. He then asked for leave in the Court of Appeal to give a short notice of motion to restrain the defendant from enforcing the order of costs pending appeal. When asked by the Master of the Rolls whether he had already applied to the court below, learned counsel for the plaintiff in reply said that "it was laid down in Wilson v. Church (Su p ra) that where an action has been dismissed the court below has, no jurisdiction to stay proceedings, and the application must be to the Court of Appeal …….

Again, Jessel, M.R. told counsel:

That was a case of an entirely different description. The plaintiffs were asking for an injunction to restrain the trustees from parting with the trust funds pending the appeal. That was not an application for stay of proceedings under the order appealed from, for that order did not give any directions for dealing with the fund, and the court below having dismissed the action had no jurisdiction to grant the injunction sought.

The Master of the Rolls then directed that since the application was for stay of proceedings from the order appealed from it should be made in the first instance to the Vice-Chancellor in the court below. It should be pointed out that although Cotton and Brett, L.JJ. concurred with the views expressed by the Master of the Rolls, so far as the underlined portion of the quotation above is concerned, the former (i.e. Cotton, L.J.) made these rather pertinent observations: -

I have no doubt that, though the action is dismissed the court below can, pending an appeal, stay the doing (of) anything under the order of dismissal, and. . . the application for that purpose must be made to the Vice-Chancellor (i.e. the court below)" (Italics supplied)

The above observations of Cotton, L.J. are in my humble view, a far cry from support for the view that once a court and for that matter, the Supreme Court (and in Nigeria, the High Court) has dismissed a claim it is left without jurisdiction from restraining any proceedings or actions under its order if there should be an appeal from that order.

The facts in Orion Property Trust v. Du Cane (Supra) put shortly are as follows: On the 29th January, 1962 judgment was delivered in an action, in the Chancery Division, concerned With the shareholding in, and control of, defendant company. By this judgment L. the Secretary and Manager of the defendant company was held entitled to a block of shares of the defendant company which in a small way gave him majority control of that company. On 25th May of the same year (1962) at an extraordinary general meeting of the defendant company a resolution was passed for the increase of its capital by £150,000 divided in three million shares of one shilling each; and on the same day the directors issued 800,000 of the new shares to Mrs. H. a daughter of L., who really was L.'s nominee. Four days later (i.e. 29th May) notice of motion was given in the action on behalf of another company, which held a block of shares of the defendant com p any slightly less than that of L., against the defendant company and its directors from issuing any of the three million shares. Judgment in this action was entered, on 6th June, 1962 and on 19th June, 1962 the plaintiff gave notice of appeal; and on an application for injunction pending the appeal: Held (Pennycuick, J.) that on the principle that the court would intervene pending an appeal to restrain an act that might deprive an appellant of the results of the appeal, he had jurisdiction to grant an injunction and, in the circumstances of the case, he would grant the injunction sought. In Eringford Properties Limited v. Cheshire County Council (Supra) Megarry, J. (as he then was) took much the same line of reasoning and decision as did Pennycuick, J. in the Orion Properties Case (Supra).

Following the decision in Wilson v. Church (Supra) the Annual Practice (also sometimes referred to as "the White Book") has consistently (see 1962, 1973, 1976 and 1979 Annual Practice) stated (using Wilson v. Church as its authority for the statement) that:

where an action has been dismissed in the court below, that court has no jurisdiction e.g. to restrain a defendant from parting with a trust fund pending an appeal: the application for that injunction must be made to the Court of Appeal. [Italics supplied Annual Practice 1976 Vol.1 atp.880 under notes on Order 59/13/1 wherein also the endorsements "Per centra, Orion Properties Trust Ltd. v. Du Cane Court Ltd, are added).

It is also interesting to point out that the learned authors to the Annual Practice 1976 Vol.1 at p.465 in their notes to Order 29/1/11B made the following observations [citing Eringford Properties (Supra) as their authority).

where the Judge dismisses an interlocutory motion for an injunction, he nevertheless has jurisdiction to grant the unsuccessful applicant an injunction pending an appeal against the dismissal, and it is not necessary for the applicant to apply to the Court of Appeal. (Italics supplied)

It is my humble and respectful view that the above quotation at page 880 of Vol.1 of the 1976 Annual Practice for which the case of Wilson v. Church (Supra) is cited as authority for the view expressed therein, cannot be right. The argument in Wilson v. Church (Supra) had, in effect, been that the application although, ex facie, for an order for injunction was, in substance, one for stay of proceedings pending an appeal and should, under Order 58 Rules 16 and 17 R.S.C. of 1875 [in pari materia with Order 59 Rules 13 and 14(4) of the 1976 and 1979 Rules of the Supreme Court (England)), be made in the first instance in the court below, that is, to the trial Judge. But the action in Wilson V. Church (Supra) was dismissed and therefore the question of a stay of proceedings (in regard to the nature of the application therein) could hardly have arisen; and so Order 58 Rule 17 (i.e. the current rule 14(4) of Order 59) aforesaid could not be applicable to the point in issue in Wilson (Supra). The matter before the court in Wilson was- as Sir George Jessel, M. R. has been quoted, as having stated in the Law Journal Reports - "an original motion" which the Court of Appeal could entertain.

Again, I would rather confine the decision in Otto v. Lindford (Supra) to what it decided which is that the application being one for a stay of execution of costs awarded in the judgment on appeal it should in accordance with the Rules of the Court then applicable to the proceedings be made in the first instance in the trial court (or court below). That is the ratio decidendi of Otto v. Lindford; Wilson v. Church (Supra) came into the case as an entirely different decision, which the court had, incidentally, to distinguish. It is my respectful view, therefore, that the comments on Wilson in Lindford are simply obiter.

Finally, I think it is settled in England (see Cropper v. Smith (1883)24 Ch. D. 305) and in Nigeria (see Shittu Ogunremi v. Dada (1962)1 All N.L.R. 663) that an application for stay of proceedings or execution under a judgment of the Supreme Court (in England) or in the High Court (in Nigeria) on appeal to the Court of Appeal must in the first instance be made to the Court of Appeal. The two courts have concurrent or co-ordinate jurisdiction in this matter. [See Brett, Cotton and Bowen, L.JJ. in Cropper v. Smith (Supra).]

What then is the position regarding an application for an order of injunction pending appeal? It does not appear to me that the position can be any different. I find considerable support for this view in that portion of the judgment of Cotton, L.J. in Polini vs. Gray (Ibidem at p.446) which I set out earlier between the marginal capital letters "K"-"L" and "N"-"O". As the learned Judge said, there is "no difference in principle between staying the distribution of a fund to which the court has held the plaintiff not to be entitled, and staying the execution of an order by which the court has decided that a plaintiff is entitled." I find it difficult, therefore, to subscribe to the view that a court becomes stripped of its jurisdiction to control the proceedings to the extent of preserving the subject matter of litigation, should it become necessary to do so, as soon as the court dismisses the proceedings before it. An application for an injunction to restrain proceedings or actions under a judgment under appeal pending the determination of the appeal appears to me to be an original motion which the court whose judgment is under appeal can entertain. It was, however, argued and contended that even if the court could, in these circumstances, intervene it can no longer do so as soon as its order has been drawn up and enrolled. While, however, it is true that except by way of appeal no Court, Judge or Master has the jurisdiction to rehear, review alter or vary its judgment or order after it had been entered or drawn up either in an application made in the original action or matter, or in a fresh action brought to review such judgment or order, the sole object of the rule, it should be remembered, is to bring litigation to finality [see Halsbury Laws of England Vol.223rd Edition - Paragraph 1665 at p.785, also Flower v. Lloyd (1877)6Ch. D. 297. Re St. Naziare Co. (1879)12 Ch. D. 88]. I think it is pertinent here to draw attention to the observations of Thesiger, L.J. on the issue at p.101 in Re St. Naziare Co. (Ibid).

I entirely agree with the conclusions at which the other members of the Court have arrived . . .1 would only add that they seem to me to harmonize entirely the practice under the Judicature Act in all Divisions of the High Court, because, whatever may have been the practice in the High Court of Chancery before the Judicature Act as to the review of their decisions or the rehearing of their decisions, nothing can be clearer than that there was nothing analogous to that in the Common Law Courts, and it is equally clear that under the Judicature Act, after once the Common Law Division of the High Court of Justice has pronounced a decision upon the matter in dispute . . . there is no power in that Division of the High Court to rehear or review that decision upon any suggestion that it has been misled, or that the parties have not brought all evidence which ought to have been brought in order to enable the Court to arrive at a just conclusion . . . [Italics supplied].

There never was any question in the Common Law Court of rehearing or reviewing a decision once delivered, let alone doing so before any of its order thereon was drawn up, entered or enrolled; this is also confirmed from the quotation above (i.e. in the judgment of Thesiger, L.J.). It is my view that the Judges of the Chancery Division of the High Court were only being mindful of the inhibition on their pristine powers by the Judicature Act when in the various cases [after Galloway (Supra) they took the precaution of finding out whether or not the orders, on appeal had or had not already been drawn up and entered before entertaining applications, before them, for stay of proceedings or actions based on the said orders pending appeal. Even then the issue in these circumstances relates to the power of the court to review, or even revoke its decision. With all respect to the various observations, in the cases cited before us, on the question where or not the order on appeal had been perfected when the courts entertained applications for stay of proceedings by injunction, I am persuaded to the view that an application simplicter, to a court for preservation of the subject matter of an appeal pending the determination of the appeal truly invites any change, alteration or review of its judgment or, to be precise, that kind of alteration of judgment (on a rehearing or review based on "the suggestion that the court was misled, or that parties have not brought all the evidence which ought to have been brought in order to enable the court to arrive at a just conclusion") as is contemplated under the general doctrine or principle of review of a court's decision prior to the order thereon being perfected. McPhillips, J.A. in the British Columbia Court of Appeal in his dissenting judgment in Andler v. Duke (1932)3 D .L.R. 210 at p.218 appears to me to be of the same view, when he observed:-

.......With great respect to all contrary opinion, even although the judgment has been taken out and entered, there remains the power to preserve the res - it is not in any way changing or altering the judgment, it is merely a preservative order from time immemorial exercised all the Courts [Italics supplied].

I would, therefore, like to conclude this judgment by making it qrnte &lear that the High Court does not lose its jurisdiction to entertain applications for stay of proceedings or actions under its judgments orders or decisions under appeal to the Court of Appeal because by the said order, decision or judgment it had dismissed the claim before it "absolutely" (i.e. without reservation); and it makes no difference (1) that the applicant, in the circumstances, is the plaintiff who lost his claim or (2) that his application is couched in the form of request for an order of injunction and (3), in any event, that the decision order or judgment in question (i.e. on appeal) has been drawn up and entered. I am in respectful agreement with the observations, in Polini v. Gray (Ibidem at p.446) of Cotton, L.J. wherein he said that:

It (the Court) does so (i.e. suspends, pending an appeal, what it has declared to be the right one of the litigant parties) on this ground that where there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is a reasonable ground of appeal, and if not making the order to stay the execution of the decree . . . would make the appeal nugatory . . . then it is the duty of the Court to interfere and suspend the right of the party who, so far as the litigation has gone, has established his rights. That applies . . . just as much to the case where the action has been dismissed, as to the case where a decree has been made establishing the plaintiffs title. [Italics supplied]

Further, on this issue it had also been said that:

…… Courts should not be too vigilant to say that they lack jurisdiction; certainly they should not be too vigilant to say that there is no jurisdiction when the interests of justice are at stake …..

See the dissenting judgment of McPhillips, J.A. in Andler v. Duke (1932) 3 D.L.R. 210 at 218 British Columbia Court of Appeal: [Italics supplied]. Therefore, I incline to the view that unless there is manifest lack of jurisdiction (or specific statutory provision thereto) in the High Court, Your Lordships ought not, in the knowledge of the existence of the inherent power of the Court of Chancery to preserve the subject-matter of litigation before it pending an appeal from its decision - (1) as English Legal history and various court decisions in England have shown and, (2) in the face of the specific provisions of sections 10 and 18 of the High Court of Lagos State (Cap. 52 in volume 3 of the Laws of Lagos State 1973) and similar provisions of which exist in the High Court Laws of the other States in this country - to lend support to the contention that, in the circumstances under consideration in this a p peal, there is any lack of jurisdiction in the High Court of Lagos (and the High Courts in the Federation, generally) to deal with the application in issue in this appeal.

Finally, in the event, however, that I am wrong in the view I take of the effect of the drawing up and enrolment of the order, decision or judgment on appeal on the questions in issue in this appeal I would like to point out that: (1) except for one or two of the 19 States in the Federation of Nigeria there is, as far as I know, no statutory provisions in our various laws for the drawing up and enrolment of orders, decisions or judgments of the High Court in this country; and (2) for several years covering my experience the practice has always been for the High Courts to entertain applications for preservation of the subject-matter of litigation after an appeal from its judgment has been lodged, or for stay of proceedings under its judgment on appeal, pending the appeal without reference to the question whether or not the order, decision or judgment under appeal has already been drawn up and en rolled. It is, therefore, my respectful view that it is now too late in the day to lay down any principle which will involve such a consequence. Once again, I will quote with my respectful approval and concurrence from the dissenting judgment of McPhilips J A. in Andler v. Duke (Ibidem at p.219).

I may say that during some 40 years that I can speak about, the res was always p reserved in this count, allowing a judgment given . . . Now I have not had time to go into an intricate survey of all the authorities but I am satisfied that what I have said is in conformity with the practice of this court for long years, and when we have practice extending over a long period of time, why should a Court in a case so vital, refrain in preserving the res? [Italics supplied]

I am, therefore, persuaded to agree with the submissions of learned counsel for the respondents Chief F. R. A. Williams on this Accordingly, I am firmly of the view that the majority judgment of the Court of Appeal t a his application should, pursuant to the provisions of Order 7 Rule 37 of the S.C.R. have been made in the first instance in the High Court of Lagos State. I would dismiss this appeal and I agree with the order as to Costs proposed in the judgment of my learned brother, My Lord, Sowemimo J S. C.

Judgement delivered by

Sowemimo. J.S.C.

I am in complete agreement with the judgment just read by my learned brother Idigbe. In the final analysis, I agree that the preliminary objection raised against the application in the Federal Court of Appeal was properly upheld. It is therefore ordered that this appeal be dismissed. The judgment of the Federal Court of Appeal is upheld and the application for injunction brought before that Court which should have been brought to the High Court of Lagos State is hereby struck out. The respondents are entitled to the cost of this appeal, which is fixed at N322 to be paid by the plaintiffs/appellants.

Judgement delivered by

Obaseki. J.S.C.

The appellants herein were plaintiffs and the respondents defendants before the High Court of Lagos State (Ademola Johnson, J.) In an action commenced by a writ of summons claiming in their particulars of claim several declarations and orders of injunction. These are in terms of the endorsement on the writ of summons:

(1)    A declaration that the resolution passed by the Executive Committee of the Ahmadiyya Movement-In-Islam on the 12th day of May, 1974 whereby it purported to change the name of the Movement to Anwar-Ul-Islam Movement is null and void and is not binding on the plaintiffs.

(2)    A Declaration that the plaintiffs and those who adhere to them alone lawfully represent the Ahmadiyya Movement-in-Islam Nigeria and are entitled to the whole lands and property belonging to the said Movement within Lagos State as at the 11th day of May, 1974 which were held by and vested in the 1st defendant as Registered Trustee on behalf of the plaintiffs and those adhering to them as constituting the true and lawful Ahmadiyya Movement-in-Islam and that the defendants are bound to hold and apply the same on behalf of the plaintiffs.

(3)    A declaration that the plaintiffs and those adhering to them lawfully represent the Ahmadiyya Movement-In-Islam Nigeria and are entitled to all the funds and all the movable property of the said Movement as at the 11th of May, 1974 and to have the same applied for and on behalf of those adhering to them and that by adhering to a body known as Anwar-Ul-Islam the 2nd, 3rd and 5th defendants and those adhering to them had become seceders from the Ahmadiyya Movement-In-Islam and had automatically ceased to be members of the Ahmadiyya Movement-In-Islam.

(4)    A declaration that all property vested as at the 11th day of May, 1974 in the Registered Trustees of the Ahmadiyya Movement-In-Islam appointed in 1974 were vested and held by them for and on behalf of the Ahmadiyya Movement-In-Islam and that no part thereof can be lawfully iverted to the use of any other association not maintaining and adhering to the whole of the fundamental principles and tenets contained in the Constitution (including the conditions of Bal'at and the Articles of Faith) of the Ahmadiyya Movement-In-Islam without the unanimous consent of all the members of the Ahmadiyya Movement-In-Islam.

(5)    A declaration that the former members of the Ahmadiyya Movement-In-Islam who had adhered to a body known as the Anwar-Ul-Islam or who now so describe themselves have thereby lost all beneficial right to such property of the Ahmadiyya Movement-In-Islam whether real or personal and that the 1st defendants cannot lawfully apply the same for the benefit of such members or of the Anwar-Ul-Islam or its members.

(6)    A declaration that the 2nd, 3rd and 5th defendants had before or on the 12th day of May, 1974 become Apostates and thereby automatically ceased to be members and officers of the Ahmadiyya Movement-In-Islam Nigeria and that all acts performed as such thereafter are null and void and of no effect.

(7)    An order of the return of all movable property documents (whether of title or not) records, account books and papers belonging to the Ahmadiyya Movement-In-Islam which are or have been in the possession of the defendants.

(8)    An order for the payment to the plaintiffs of all sums of money belonging to the Ahmadiyya Movement-In-Islam as at the 12th day of May, 1976 which the defendants have spent or utilised whether from its Bank Accounts otherwise

(9)    An Account of all rents, royalties or other sums of moneys received by the defendants in respect or on account of the properties, movable or immovable of the Ahmadiyya Movement-In-Islam including sums received on account of the operation of the printing press of the Movement.

(10) Payment over to the plaintiffs of all sums found due.

(11)  An injunction restraining the defendants their servants and agents from continuing to occupy or use or in any way interfere with the plaintiffs' right to occupy and use all the properties real and personal, of the Ahmadiyya Movement-In-Islam.

(13) An injunction restraining the 1st defendant and the 2nd to 7th defendants from applying the property of the Ahmadiyya Movement-In-Islam for the benefit of Anwar-Ul-Islam and from performing their duties as such otherwise than in accordance with directives of the plaintiffs or any Executive Committee appointed by it.

(14)  An injunction restraining the defendants from taking any steps to divert the plaintiffs of their properties or from taking any steps to effect the change in the name of the plaintiffs in respect or in relation to the plaintiffs' properties."

Pleadings were ordered and served and evidence was heard. At the conclusion of the hearing, the learned trial Judge held that the plaintiffs/appellants were not entitled to any of the declarations and orders claimed and dismissed the suit and then went on to discharge the interim injunction granted in respect of the building construction at the Central Mosque. More particularly, the concluding portion reads:

It is my judgment that as from the 12th May, 1974 when the legally constituted Executive Committee of the Movement passed the resolution to effect a change in the name of the Movement, the Ahmadiyya-In-Islam ceased for the time being to exist and it [was] succeeded by Anwar-Ul- Islam Movement of Nigeria. The plaintiffs therefore represent a non-existent Movement. Their only existence as of now in my considered view is as a dissident or position group in the Anwar-Ul-Islam Movement of Nigeria and the remedies which I consider open if they are dissatisfied with that position are as I have earlier stated. It follows therefore from my judgment that the plaintiffs are not entitled to any of the declarations and or orders claims. They are accordingly dismissed.

The interim injunction earlier granted in respect of the building construction at the Central Mosque is hereby discharged.

This was on the 28th day of February, 1977.

On the 7th day of March, 1977, the appellants filed their Notice of Appeal against the judgment of Ademola Johnson, J.

Before evidence was taken and on the application of plaintiffs, there was also a consent order made on the 5th day of January, 1976 by Adebiyi, J. in the matter which reads:

Application under Order 39, Rules 4 & 12 of the High Court of Lagos State (Civil Procedure) Rules ……

IT IS HEREBY ORDERED, BY CONSENT AS FOLLOWS:

(i)    That the parties hereto, their servants or agents shall from the 20th day of November, 1975 until the determination of this suit refrain from changing the names, titles or labels of any institutions, properties or documents which bear or have borne the name title or label of the Ahmadiyya Movement-In-Islam to any other name, title or label.

(ii)    That the defendants, their servants or agents shall from the 20th day of November, 1975 refrain from interfering with the possession or control of the properties or documents of the Ahmadiyya Movement-In-Islam at present in the possession or control of the plaintiffs by whatever name described.

(iii)   That the defendants, their servants or agents shall from 20th day of November, 1975 refrain from spending any funds collected for or on behalf of the building committee for the erection of the new Ahmadiyya Central Mosque at Ojo Giwa Street, Lagos.

It is further ordered:

(i)     That the defendants shall within 14 days hereof file in court (serving a copy thereof on learned counsel to the plaintiffs) a list of all institutions, properties or documents which, had before the said 20th day of November, 1975, had changes of names, title or labels at the hands of the defendants; and

(ii)    that the defendants shall within 14 days hereof supply to the learned counsel for the plaintiffs a copy of the bank statement of the funds collected by the building committee for the erection of the new Ahmadiyya Central Mosque at Ojo Giwa Street, Lagos. The balance in the said account shall be paid by the defendants into a savings account at a reputable bank and the passbook relating thereto deposited with the Registrar of this Court.

Soon after the Notice of Appeal was filed, the appellants filed in the Federal Court of Appeal a motion praying the court for an order of injunction restraining the defendants, their servants and or agents from

(1)    preventing the plaintiffs and those adhering to them from entering, praying in and continuing to use the mosque and other premises of the Ahmadiyya Movement-In-Islam which were occupied, controlled and used by the plaintiffs as at the 24th March, 1977 pending the determination of the appeal lodged herein.

(2)    interfering with the existing arrangement for the conduct of prayers and the administration of the mosques and schools belonging to the Ahmadiyya Movement-In-Islam occupied and controlled by the plaintiffs until the determination of the appeal lodged herein

(3)    changing the names, labels or titles of the mosques and schools controlled and used by the plaintiffs and those adhering to them pending the determination of the appeal lodged herein.

(4)    damaging, destroying or defacing the buildings or parts of buildings the subject-matter of this appeal pending the determination of the appeal lodged herein.

(5)    continuing the construction of the building of the Ahmadiyya Central Mosque at No.53/57 Ojo Giwa Street, until the determination of the appeal lodged herein.

To this application: the respondents by their counsel filed a Notice of Objection on the grounds that:

(1)     No application for any of the reliefs sought for in the motion was made in the first instance to the court below; and

(2)    The application now made by Motion before this Honourable Court contravenes Rule 37 or Order 7 of the Rules in force in this Honourable Court.

After hearing the submissions of counsel on the objection, the Federal Court of Appeal, by a majority of two to one, i.e. (Aseme and Coker, JJ.C.A.) (Akinugbe, J.C.A. dissenting) upheld the objection and struck out the motion.

It is against this ruling on the objection that this appeal has been brought.

However, suffice it to refer to the concluding portion of the judgment of the Federal Court of Appeal (Coker, J.C.A. delivering the judgment) which reads:

Happily, Megarry, J. carefully reviewed the earlier authorities including Orion's case m his judgment in Eringford Properties Ltd. & Anor. V. Cheshire County Council (1974) Ch. D. 261. He stated at p.263 as follows:

Broadly, the conflict may be said to centre round dicta in two very short judgments by Sir George Jessel, M.R. in the Court of Appeal in Wilson v. Church (1879)11 Ch. D. 576 and Otto v. Lindford (1881)18 Ch. D. 394, on the one hand and on the other hand the more substantial judgments in the Court of Appeal in Wilson v. Church (No.2) (1879)12 Ch. D. 454 and Polini v. Gray (1879)12 Ch. D. 438. At least at first sight the dicta support the view that a Judge who has dismissed an action has no jurisdiction to grant an injunction restraining the successful defendants from parting with the subject matter of the action pending an a p peal. The decisions on the other hand support the opposite principle. In the words of Pennycuick J. in the Orion case (1962)1 W.L.R. 1085, 1090, the effect of the principle is that

the court of first instance has the jurisdiction to make an order preserving the subject matter of the action in the appeal, even though the action has wholly failed.

Such a principle plainly seems to be consonant with the undoubted jurisdiction of a Judge who has made an order to grant a stay of execution of that order pending an appeal, a jurisdiction which is the subject of rules of court."

We have earlier referred to the provisions of section 18(3) of the High Court of Lagos Law and also Order 39 Rule 13 of the High Court of Lagos (Civil Procedure) Rules 1972 and are of the view that there is nothing therein to justify the limitation of the jurisdiction of the High Court of Lagos to make an order of interl9cutory injunction pending an appeal to this court. It is sufficient for this reason to hold that this application contravenes Order 7 Rule 37 of the Supreme Court Rules. We are therefore of the view that this application is not properly before us and must therefore be and is hereby struck out.

The appellants being aggrieved, filed, along with their Notice of Appeal, five grounds of appeal which read:

(1) Error in Law:

Having held that the statutory provisions and the jurisdiction of the High Court in England and in Lagos State were similar, the Federal Court of Appeal erred in law in not following the decisions of the English Court of Appeal on the practice and procedure relating to the court to which applications for injunctions pending appeal should be made when a plaintiff's case has been dismissed: when

The Rules of Court applicable to the Federal Court of Appeal enjoin it to follow the practice for the time being applicable in the said Court.

(2) Error in Law:

The Federal Court of Appeal erred in law in holding that a plaintiff whose claim has been dismissed in the High Court cannot make an application for an injunction to restrain the successful defendant pending the determination of the appeal to the Court of Appeal in the first instance when:

(a)   There is no provisions in the Supreme Court Rules 1961 as to the court to which an application should first be made

(b)   The practice in the Court of Appeal in England as shown by the decisions of that court is that such an application should be made to the court of appeal in the first instance.

(3) Misdirection in Law:

The Court of Appeal misdirected itself in law in holding that the case of Hyde v. Warden 1 Ex D 309 was not helpful and that it did not establish any principle of law: when

The same was reported as authority for the proposition that the court of appeal can grant injunctions pending the determination of an appeal even though no application for such an order had been made to the court below.

(4) Misdirection in Law:

The Court of Appeal misdirected itself in law when it held that the English authority cited to it could only be a guide as to the interpretation of the law and practice if these provisions are similar to those of the English courts when:

The decisions of the English Court of Appeal are binding in matters of practice and procedure on the Federal Court of Appeal in the absence of any provisions on the point in the Rules of Court applicable to the Court of Appeal.

5. Error in Law:

The Federal Court of Appeal erred in law in holding that there was nothing to Innit the provisions of s.18(3) and Order 39 Rule 12 of the High Court Law and High Court (Civil Procedure) Rules of Lagos State respectively so as to exclude power to make an order for interlocutory injunction pending appeal where the plaintiffs claim has failed when:

(i)     The object of these provision were to preserve the rights of the parties to the property either before adjudication thereupon by the court or after the same shall have been established therein.

(ii)    A plaintiff whose case has been dismissed has no such rights to preserve under these provisions which the High Court can protect thereunder.

(iii)   The established rule of practice in England which has the same statutory provisions is that it is only the Court of Appeal that can grant injunction in the circumstances.

It seems to me that the area of controversy in this appeal is very severely limited and, besides, an examination of the case law in the English Courts on practice and procedure in applications of this nature, it calls for a close examination of the limit and extent of the jurisdiction of the High Court in such applications for injunctions pending appeal where the court has dismissed the action.

It does seem to me that the broad view of the law is to preserve the jurisdiction of the High Court until the matter, if it goes on appeal is finally disposed of by the Court of Appeal and the Supreme Court. More so as the High Court is in the final analysis saddled with the jurisdiction to enforce all Orders made by the Appeal Courts and the legal theory supporting the jurisdiction conferred on courts of appeal postulates that the courts of appeal are in a corrective position doing exactly what the lower court should have done in exercise of its original jurisdiction.

It is not disputed that the Court of Appeal has jurisdiction but the contention is that the High Court having dismissed the action totally is functus officio. The question that arises is:

Can it be functus officio to the extent of allowing the subject matter to evaporate or pass from hand to hand before the appeal courts in their appellate jurisdiction become seised of the matter?

That is the major question.

The appellants' contentions lucidly set out in paragraph 5 of the introductory section of their brief are:

(i)     that where a plaintiff's case has been absolutely dismissed by the High Court, that court has no jurisdiction to entertain an application by such unsuccessful plaintiff for an injunction against the successful defendant pending the determination of his appeal to the Court of Appeal.

(ii)    That there are no provisions in the said Rules governing applications for injunction pending appeal where the plaintiffs' case is dismissed, and

(iii)   Only the Federal Court of A p peal has power to entertain such applications and Order 7 Rule 37 will not be applicable in the circumstances.

Order 7 Rule 37 of the Supreme Court Rules 1961 applicable to proceedings in the Federal Court of Appeal provides that

whenever an application may be made either to the court below or to the Court, it shall be made in the first instance to the court below but if the court below refuses the application, the applicant shall be entitled to have the application determined by the Court.

The contention of the appellants that there are no provisions governing applications for injunctions pending appeal where the plaintiffs case is dismissed has brought into question the extent of the jurisdiction of the High Court of Lagos and the need for the application of the provision of Order 7 Rule 36 of the Supreme Court Rules which reads:

Where no other provision is made by these Rules: the procedure and practice for the time being in force in the Court of Appeal in England shall a ply in so far as it is not inconsistent with these Rules and the forms in use therein may be used with such adaptations as are necessary. (Italics mine)

The contention that the High Court of Lagos has no jurisdiction to entertain the application is based on the premises that there is no specific statutory provision or Rule of Court conferring jurisdiction on the High Court to entertain such applications upon a dismissal of the substantive claim.

Whether this assumption has proper foundation in law will be examined later. However, the three issues raised by the appellants in their brief predicated on the above premises are

(1)    Whether having regard to Order 7 Rule 36 the Federal Court of Appeal is bound as a matter of law by the decisions of the English Court of Appeal on matters of practice and procedure of that court (except where there is inconsistency) or whether the Federal Court of Appeal follow instead the decisions of Judges of the English High Court on the same.

In my respectful opinion, this issue does not arise having regard to the express provisions of the Rule alluded to i.e. Order 7 Rule 36. There can be no question of abandoning the decisions of the Court of Appeal for that of the High Court on practice and procedure in situations that call for the application of the Rule.

The 2nd issue raised by the appellants is:

Because the majority opinion of the Federal Court of Appeal has based its decision on the main issue upon the scope of the statutory provisions and Rules of Court applicable to the High Court of Lagos State whether having regard to the decisions of the English Court of Appeal the power to grant interlocutory in junction conferred or declared by section 18 of the High Court Law and Order 39 Rule 12 of the High Court of Lagos (Civil Procedure) Rules also empower that court also to grant an injunction pending the determination of an appeal to the Court of Appeal when the plaintiffs' case had been dismissed absolutely and without reservation by the High Court.

IN THE ALTERNATIVE

Whether provisions of section 18 of the High Court Law and of Order 39 Rule 12 make provision within the meaning of Order 7 Rule 37 of the Supreme Court Rules 1961, for the making of an application to the High Court for an injunction pending appeal by the plaintiff whose action has been dismissed absolutely by the High Court.

It appears from arguments put before us that counsel used the term "dismissed absolutely" to denote a situation where the action has been dismissed and the judgment enrolled in a drawn up order. Before us it was agreed by counsel on both sides that there was no drawn up order enrolling the judgment of the High Court.

It is also necessary to observe at this stage that the arguments of counsel both before the Federal Court of Appeal and before us proceeded on the assumption that the judgment had been enrolled in drawn up order and it is on that assumption that the issue is being further examined, counsel for the appellants having conceded that the High Court has jurisdiction before the enrollment of its judgment to entertain the application.

That a judgment can always be modified before it is drawn up or perfected is not open to debate. Jenkins. L.J. in Re Harrisons Settlement (1955) Ch. 260, observed at 276:

We think that an order pronounced by the Judge can always be withdrawn or altered or modified by him until it is drawn up passed and entered. In the meantime it is provisionally effective, and can be treated as a subsisting order in cases where the justice of the case requires it, and the right to withdrawal would not be thereby prevented or prejudiced.

and at pp.283-284, he concluded that

When a Judge has pronounced judgment, he retains control over the case until the order giving effect to his judgment is formally completed.

but advised that

The control must be used in accordance with the discretion exercised judicially and not capriciously.

See also the case of Asiyanbi v. Adeniyi (1967)1 All N.L.R. 82 at 86-87 where the Supreme Court approve the above passages.

Counsel for the appellants pointed out that the pith of the decision of the Federal Court of A p peal is that the p rovisions of Section 18 of the High Court of Lagos Law and of Order 39 Rule 12 of its Civil Procedure Rules setting out the powers of the High Court to grant interlocutory injunction in general and wide enough to include a power to grant an injunction pending appeal to a plaintiff whose claim had been dismissed by it absolutely.

He submitted that the Federal Court of Appeal was in error in so holding for a number of reasons principal among which are the following:

(1)    The Federal Court of Appeal had itself found in effect, that the statutory provisions and Rules of Court applicable in the High Court of Lagos and the High Court of Justice in England were in pan materia and that their jurisdiction was similar"

(2)    Having found that:

(i)     there was no specific statutory provision or rule of court directly covering the situation that arose; and

(ii)    the English statutory provisions and Rules of Court applicable were inpari materia with those in Nigeria.

the Court of Appeal should have considered itself bound to follow the decisions of the English Court of Appeal.

Sections 10 and 18(3) of the High Court of Lagos State Law are relevant to this consideration and in this regard it is desirable to advert to their provisions. Section 10 reads:

The High Court shall in addition to any other jurisdiction conferred by the Constitution of the Federation or by this or any other enactment possess and exercise within the limits mentioned in and subject to the provisions of the Constitution of the Federation and this enactment all the jurisdictions, powers and authorities which are vested in or capable of being exercised by the High Court of Justice in England.

and Section 18(3) of the High Court of Lagos Law reads:

If whether before or at or after the hearing of any civil cause or matter an application is made for an injunction to prevent any threatened or apprehended waste, or trespass the injunction may be granted if the court thinks fit whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise or (if out of possession) does or does not claim a right to do the act sought to be restrained under any colour of title and whether the estates claimed by both or by either of the parties are legal or equitable.

Order 39 Rule 12 of the High Court of Lagos (Civil Procedure) Rules 1972 provides:

In any action or matter in which an injunction has been or might have been claimed, the plaintiff may before or after judgment apply for an injunction to restrain the defendant or respondent from the repetition or continuance of the wrongful act or breach of contract complained of, or from the commission of any injury or breach of contract of a like kind relating to the same property or right or arising out of the same contract and the court or Judge in chambers may grant the injunction either upon or without terms as may be just.

Section 2(1) of the Law (Miscellaneous Provisions) Law Cap. 65 Laws of Lagos State is also relevant to the question of jurisdiction under consideration. It reads:

Subject to the provisions of this section and except in so far as other provision is made by any Federal or State enactment, the common law of England and the doctrines of equity shall be in force in Lagos States.

An order of injunction is an equitable remedy formerly available in the High Court of Chancery. The present position in England is that the Supreme Court of Judicature Act 1873 (now re-enacted as section 18(1) of the Supreme Court of Judicature (Consolidation) Act 1925) vested all the jurisdiction exercisable by the High Court of Chancery prior to 1875 in the then newly created High Court of Justice in England.

Thus the High Court of Lagos from provisions of section 2(1) of the Law (Miscellaneous Provisions) Law and section 10 of the High Court of Lagos Law is vested with jurisdiction to administer rules developed by the Old High Court

of Chancery in England prior to the Judicature Act of 1873 and empowered to exercise all the powers formerly exercisable by that court.

The respondents' counsel found himself unable to agree with appellants' counsel contention and submitted that a court was absolutely dismisses a claim nevertheless has jurisdiction to entertain an application at the instance of the claimant for an injunction pending an appeal from an order of dismissal.

He gave a number of reasons principal among which is that jurisdiction to grant injunction has always been assumed to exist as part of the general jurisdiction exercisable by the courts and it does not derive from any statutory provision. He submitted that it is the same principle that underlies the grant of a stay of execution against a successful defendant. This is to prevent the appeal from being rendered nugatory by the activity of the initially successful party if he eventually loses in the contest before the Appeal Court.

Learned counsel for the appellants based his arguments principally on the authority of Wilson v. Church (1879)11 Ch. D. 576 and the Supreme Court Practice 1979.

He referred to the case of Otto v. Lindford (1881)18 Ch. D. 394 on the question of stay proceedings, distinguished it from this case and examined the cases of

London Railway Company v. The Great Northern Railway Company (1882-3)11 Q.B.D. 30;

Richardson v. Methey SchoolBoard (1893) 3 Ch. D. 510

Cummings v. Perkins (1899)1 Ch. D. 16

to show that the provisions of the Judicature Acts relating to power to grant interlocutory injunction did not give to any court any jurisdiction which no court had before but has only dealt with procedure by giving to one division the procedure of the other division.

He also cited the case of Galloway v. The Mayor etc. of London (1865) 45 E.R. 560, where the Court of Appeal in Chancery held that it was settled practice of the Court not to grant an injunction p ending appeal where the plaintiffs failed. Similarly, he cited Hyde v. Warden(1876)1 Ex 309 in support of a direct application to the Court of Appeal where the plaintiffs' case was dismissed.

He distinguished the case of Polini v. Gray (1879)12 Ch. D. 438 where the Court of Appeal granted an order of injunction pending appeal to the House of Lords.

He submitted that the decisions of Megarry J. in Eringford Properties Ltd. v. Cheshire County Council (1974) Ch. 261 and Pennycuick, J. in Orion Property Trust Ltd. v. Du Cane Court Ltd. & Ors. (1962)1 W.R. 1086 cannot represent the law as the practice and procedure of the Court of Appeal in England.

Learned counsel for the respondents also referred to all the authorities cited by learned counsel for the appellants and more and dealt with them at length. These are:

(1)    North London Railway Co. v. Great Northern Railway Co. (1883)11 Q.B.D. 30 at p.36 where Brett, L.J. observed:

I personally have very strong opinion that the Judicature Act has not dealt with jurisdiction at all but with procedure.

(2)   Holmes v. Millage (1893)1 Q.B. 551 at 553. There, Lindley, L.J. observed:

Although injunctions are granted and receivers appointed more readily than they were before the passing of the Judicature Acts, and some inconvenient rules formerly observed have been very properly relaxed, yet the principles on which the jurisdiction of the court of Chancery rested have not changed.

(3)    Eringford Properties v. Cheshire County Council (1974) Ch. 261. There Megarry, J. expressed the views which indicated that a party faced with a decision that no injunction should be granted pending trial can nevertheless apply that an injunction be granted pending an appeal from an order refusing the interlocutory injunction.

(4)    Missini & Ors. v. Balogun (1968)1 All N.L.R. 318.

(5)    Re Harrisons Settlement (1955) Ch. 260. There at page 267 Jenkins L.J. observed:

(6)    Asiyanbi v. Adeniyi (1967) All N.L.R. 82 where the Supreme Court approved the passage just above cited.

(7)    Polini v. Gray XII Ch. D. 438 where Cotton L.J. at 446 stated the principles on which the Court acts as follows:

It does so on the ground that when there is an appeal about to be prosecuted the litigation is to be considered as not at an end and that being so, be there is reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the fund would make the appeal nugatory.

(8)    Orion Property Trust Ltd. v. Du Cane Court Ltd. (1962)1 W.L.R. 1085. There Pennycuick J. at p.1090 said:

The Court of first instance has jurisdiction to make an order preserving the subject-matter of the action in the appeal even though the action has wholly failed.