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H. TAI. AJOMALE
IN THE SUPREME COURT OF NIGERIA
31ST MAY, 1991
BEFORE THEIR LORDSHIPS
Chief G.O.K. Ajayi, S.A.N. (with him Mrs. A.M.O. Obe and E. E. Akpan, ESQ.) – for the applicant
Mr. G. C. Enumah, – for the respondents
PRACTICE AND PROCEDURE – Appeals -Appellate jurisdiction -Exercise of -Whether Supreme Court can hear matters emanating from High Courts.
PRACTICE AND PROCEDURE – Jurisdiction -Appellate – Sources of – Supreme Court – Whether can hear matters emanating from a High Court -Jurisdiction and Power – Difference between.
KARIBI-WHYTE, J.S.C. (Delivering the Lead Reasons for Ruling):
On the 11th March, 1991 when the appeal in this case came up for hearing, learned counsel to the appellants sought to argue a motion on notice to the respondents for:-
(i) An Order granting him an extension of time within which to apply for a suspension of the injunction made by the High Court of Lagos State (Ilori, J.) on the 18th December, 1987 pending the determination of the appeal lodged herein against the decision of the Court of Appeal dated the 12th May, 1990.
(ii) An order suspending the injunction made by the High Court of Lagos State (Ilori, J.) on the 18th December, 1987 pending the determination of the appeal lodged herein against the decision of the Court of Appeal dated the 12th May, 1990 and for such further or other order or orders as the court may deem fit to make in the circumstances.”
Before the motion could be argued, Mr. Enumah, learned counsel to the respondents raised a preliminary objection that the application of the applicants is seeking to stay a decision of the trial court. This court he submitted has no jurisdiction to hear the application.
We then heard argument on the applicant’s preliminary objection to the jurisdiction of this court, and summarily upheld objection. We indicated that we shall give the reasons for upholding the objection today. I now state hereunder my reasons for upholding the objection to the application.
I have already set down the prayers in the application sought to be argued. It is however necessary also to give a brief resume of the genesis and circumstances which have prompted the making of the application.
Applicant who is also the appellant before us, is the appellant in the appeal pending before the Court of Appeal. He was the defendant in the High Court. Respondents before us who are also respondents in the Court of Appeal in the main appeal were the plaintiffs in the High Court.
The action by the plaintiff was for:-
After a full hearing on pleadings, the trial judge found for the plaintiff and granted the reliefs claimed. The learned judge found that the defendant was a trespasser and awarded N1,000 as damages. He also granted a perpetual injunction against the defendant. Defendant appealed to the Court of Appeal.
On the 24th December, 1987 the defendant filed a motion for stay of execution of the judgment of the trial judge. The motion was fixed for hearing on the 25/1 /88 and was granted by the learned judge after due hearing.
Plaintiff/respondent then appealed to the Court of Appeal against the ruling granting the stay of execution. Thus two appeals in respect of the same case were pending in the Court of Appeal. There was the appeal by the defendant against the judgment of the High Court, and the appeal by the plaintiffs against the ruling of the learned judge on the application for stay of execution.
The Court of Appeal heard and allowed the appeal of the plaintiffs against the ruling for stay of execution. The defendant, has appealed to this court against the judgment of the Court of Appeal setting aside the order for stay of execution, pending the determination of the appeal against the judgment of the learned judge in the Court of Appeal.
The motion is for this court to stay execution of the ruling of the trial judge set aside by the Court of Appeal.
Mrs. Obe has submitted that this court has jurisdiction to make the order sought because it has the powers to make any order which the court below can make. It was submitted that it is necessary to preserve the res the subject matter of the appeal before the court.
Mr. Enumah for the respondent on his part submitted that this court lacked jurisdiction to hear the application. He pointed out that the order is seeking to exercise jurisdiction over the decision of the High Court, a jurisdiction it is constitutionally precluded from exercising. Learned counsel referred to his affidavit, and further affidavit, and urged the court to dismiss the application.
I think it is admitted on all sides that the aim of the application is to stay execution of the ruling of the trial judge staying execution of his judgment which has been set aside by the Court of Appeal. It is not disputed that in the absence of the stay of execution the plaintiff who is entitled to the fruits of the judgment is free to levy execution. But the crux of the issue before us is whether this court can exercise jurisdiction in the matter before us.
It is well settled that exercise of appellate jurisdiction is entirely statutory. In this country the exercise of all original appellate jurisdiction is derived either from the Constitution 1979 or from particular statute. These are the only sources from which jurisdiction is derived –See Adili v. State (1989) 2 N.W.L.R. 305.
The appellate jurisdiction of the Supreme Court is set out in section 213(1) of the Constitution 1979 which provides as follows:-
“The Supreme Court shall have jurisdiction to the exclusion of any other court of law in Nigeria to hear and determine appeals from the Court of Appeal.”
It is quite plain from the above section that the Supreme Court cannot exercise appellate jurisdiction over matters emanating other than the Court of Appeal. See A. G. of Oyo State v. Fair Lakes Hotel Ltd. (1988) 5 N.W.L.R. (part 2) 1. This court therefore cannot exercise appellate jurisdiction over decisions of the High Court.
It is quite clear from the words of the prayers sought and particularly the words underlined, that this court is being called upon to exercise jurisdiction over the decision of the High Court by staying execution of orders made by that court. This is a jurisdiction constitutionally vested in the Court of Appeal by section 219 of the Constitution 1979 to the exclusion of any other court of law in Nigeria.
Section 219 of the Constitution 1979 provides as follows:-
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other of law in Nigeria to hear and determine appeals from the Federal High Court, High Court of a State, Sharia Court of Appeal of a State and Customary Court of Appeal of a State.”
Thus exclusive jurisdiction to hear and determine appeals from the High Court Is by the Constitution vested in the Court of Appeal. See Akilu v. Fawehinmi (No.2) (1989) 2 N.WL.R. (part 102) 122. No other court in Nigeria Including the Supreme Court is vested with this jurisdiction.
Mrs. Obe has invited this court to exercise the powers which the Court of Appeal could have exercised if it was hearing the matter.
I think this is an error emanating from confusion of the exercise of power with the question of exercise of jurisdiction. Where a court has no jurisdiction, with respect to a matter before it the juridical basis for the exercise of any power with respect to such matter Is also absent. This is because power can only be exercised where the court has the jurisdiction to do so. See Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 6 S.C. 158. Jurisdiction is not to be equated with powers. Whereas jurisdiction is the right in the court to hear and determine the dispute between the parties, the power in the court Is the authority to make certain orders and decisions with respect to the matter before the court. This is clearly implied by the provisions of section 6 of the Constitution 1979 which prescribed the powers of the courts and in Chapter VII of the Judicature, where the jurisdiction of the courts have been prescribed in sections 212, 213, 219, 220, 230, 236, 242, 247, 250 of the Constitution 1979.
Since the appellate jurisdiction of this court has been excluded by section 219 of the Constitution 1979, vested in the Court of Appeal we cannot exercise any of the powers vested in us by the Constitution which we could have exercised had we the requisite jurisdiction. See Uhunmagho v. Okoiie (1989) 1 N.W.L.R. (part 50) 356 S.C.; Jadesimi v. Okotie-Eboh (1986) 1 N.W.L.R. (part 16) 264.
This court therefore has no jurisdiction to hear the motion of the application. The above were the reasons for upholding the objection of Mr. Enumah and striking out the motion.
OBASEKI, J.S.C.: I have had the advantage of reading in draft the ruling just delivered by my learned brother, Karibi-Whyte, J.S.C., and I find his opinions on the issues for determination in the application for suspension of the order of injunction made by the Lagos State High Court (Ilori, J.) in accord with mine.
I therefore agree with him that the application be dismissed and I hereby dismiss the application.
BELGORE, J.S.C.: I read in advance the ruling by my learned brother, Karibi Whyte, J.S.C. I am in full agreement with his reasons for the ruling. The Constitution of the Federal Republic of Nigeria 1979 is clear in its provisions as to appellate jurisdictions. By S.219 thereof, the Court of Appeal has exclusive jurisdiction to hear appeals from the High Courts. Frog-jumping a court however urgent a matter and whatever its importance, is no reason for disregarding the clear provisions of the Constitution. (See Akilu & Anor. v. Fawehinmi (No. 2) (1989) 2 N.W.L.R. 122). Where a court has no jurisdiction it has no power to deliberate on the issue. (Bronik Motors Ltd. v. Wema Bank (1983) 6 S.C. 158). To ask this court to exercise the powers of Court of Appeal as prayed by learned counsel for the appellant, amounts to invitation to breach the Constitution in view of the clear provisions of section 212 through to S.250 of the Constitution.
It is for the above reasons and full reasons in the reasons for ruling of Karibi-Whyte, J.S.C., that I struck out the motion on 11th March, 1991.
NNAEMEKA-AGU, J.S.C.: I have had a preview of the reasons for ruling just delivered by my learned brother, Karibi-Whyte, J.S.C. His reasoning agrees entirely with my own. I have come to the same conclusion. It was for the same reasons that I disallowed the application and reserved reasons for my ruling till today.
WALI, J.S.C.: I have read in advance, the Ruling of my learned brother, Karibi-Whyte, J.S.C., which has just been delivered. I agree with the reasoning and the conclusion of my learned brother that this court lacks jurisdiction to entertain the motion. It is for these same reasons that I upheld the objection of the learned counsel for the respondents to that effect on 11th March, 1991 and summarily struck out the motion.