MILITARY GOVERNOR, LAGOS STATE & ORS (APPELLANT)

v.

CHIEF EMEKA ODUMEGWU OJUKWU (RESPONDENT)

(1986) All N.L.R. 233

Division: Supreme Court of Nigeria

Date of Judgment: 14th February, 1986

Case Number: (SC. 241/850)

Before: Obaseki, Eso, Uwais, Kawu, Oputa, JJ.S.C.

On October 10, 1985 an exparte application was brought before the High Court by the respondent seeking interim injunction restraining the Military Governor of Lagos State, the Commissioner of Police, Lagos State and the Attorney-General, Lagos State from ejecting him and members of his family from No. 29 Queens Drive, Ikoyi. The trial Judge granted the interim order for injunction on the grounds of the respondent's ownership of the house and impending threat to evict him. The matter then moved to one of notice to the applicants at this stage the respondent now contended that the property at 22 Queen's Drive belonged to Ojukwu transport company owned by his late father. The learned trial Judge refused to grant equitable relief of junction against the Lagos State Government on the ground that the property is an abandoned property and that the respondent had failed to show that he had a legal right to or interest in the property.

On an appeal to the Court of Appeal against this decision Ojukwu Transport Limited applied to be joined as a party interested in the matter. Pending this appeal the Lagos State Government resorted to self help and evicted the respondent notwithstanding the fact that his application was pending before the Court of Appeal. The Court of Appeal therefore held that the right of self-help ended when issues were turned over to the Court and therefore ordered the reinstatement of the respondent into the company.

The Lagos State Government refused to comply with this order and instead appealed to the Supreme Court on the ground that the remedy of interlocutory injunction is not available for an act which has been carried out and concluded.

HELD:

1.      Kayode Eso, J.S.C.-"I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the court further by seeking a remedy in a higher court while still in contempt of the lower court. It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive under the Constitution of the Federal Republic of Nigeria 1979, the Executive, the Legislature (while it lasts) and Judiciary are equal partners in the running of a successful government... The organs wield powers and one must never exist in sabotage of the other or else there is chaos."

2.      While the contempt of the Court of Appeal by the applicants is still subsisting, it would be inequitable to give consideration to the application of the applicants.

3.      It is trite law that a party has no right to take matters into his own hands once the court is seized of it.

Application dismissed.

A. Adetosoyo Esq, Solicitor-General, Lagos State for Applicant.

Chief F. R. A. Williams, S.A.N. (with Ladi Williams and F. R. A. William Jnr.) for Respondent.

Kayode Esq, J.S.C.-On 11th December, 1985, the following application, dated 9th November 1985, was filed before this Court-

"TAKE NOTICE that this Honourable Court will be moved on ........... day of ............... 1985 at the hour of 9 o'clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the applicants for:

(1)     An Order staying the execution of the ruling delivered by the Court of Appeal, Lagos, in this suit and dated Wednesday 13th of November, 1985, pending the final determination of the appeal lodged herein to the Supreme Court;

(2)     Such further Order or Orders as this Honourable Court may deem fit to make."

It was supported by an affidavit containing 18 paragraphs, some of which I would refer to later in these Reasons.

Also, on 11th December, 1985, the respondent through his learned Counsel Chief F. R. A. Williams, S.A.N., filed a notice of preliminary objection as follows

"NOTICE OF PRELIMINARY OBJECTION

TAKE NOTICE that at the hearing of the defendants application dated the 9th of December 1985, the plaintiff will object that the said application is frivolous, vexatious and an abuse of the process of the court because-

(1)     The said application has been filed in order purely to delay the execution of the order of the Court of Appeal reinstating the plaintiff to possession of his residential house at No. 29 Queen's Drive, Ikoyi.

(2)     There was no genuine intention to prosecute the appeal initiated by the Notice of Appeal dated the 22nd day of November 1985.

The grounds of appeal contained in the said Notice of Appeal are frivolous and manifestly arguable."

The application was heard by this Court on 16th December, 1985, that is, precisely five days after it had been filed: We determined the application that day and dismissed it, after reserving our reasons for dismissing the application.

It would be useful to state a few facts as disclosed on the facts placed before us preceding the present application for a good understanding of this matter.

On 10th October 1985 an ex-parte application made by Emeka Ojukwu respondent in this Court came before the High Court of Lagos State (Omotosho, J.) seeking interim injunction restraining the Military Governor of Lagos State, the Commissioner of Police, Lagos State, and the Attorney-General, Lagos State from ejecting the said Emeka Ojukwu, who hereafter will be referred to simply as Ojukwu in these Reasons for Ruling, and members of his family from No. 29 Queen's Drive, Ikoyi, which he referred to in his application as his house. The interim order sought from the High Court was meant to operate only until there was reasonable opportunity to have the matters in issue before the High Court dealt with. Ojukwu swore to an affidavit before the High Court that the house belonged to his father after whose death he, Ojukwu, became the owner of the house.

He went on further and deposed on oath that during the period of the Civil War which lasted from 1967 to 1970, and which he led against Nigeria from an enclave he termed Biafra, the house remained unoccupied. After the Civil War, Ojukwu resided in the Ivory Coast and though that war ended in 1970, Ojukwu came back to Nigeria, only in 1982, after he had been granted a full pardon by the Government of the Federal Republic of Nigeria.

Ojukwu then said he moved to the house having paid the sum of N90,000.00 to the Lagos State Government for "expenses incurred by the said Government in keeping the house." And that all the members of his family had been residing in the house before the present trouble.

The learned Judge granted the interim order for injunction on the grounds of his ownership of the house and impending threat to evict him.

The matter then moved to one of notice to the Lagos State. Ojukwu would appear, at that stage, to have changed front.

He now said the property belonged to Ojukwu Transport Company owned by his late father and that the N90,000.00 which he paid was paid to Agents in charge of the property for the purpose of securing a lease of the property.

The learned trial Judge refused equitable relief of injunction against the Lagos State Government on the ground that the property is an abandoned property and that Ojukwu had failed to show that he had a legal right to or interest in the property. The learned Judge also said that Ojukwu had not come to Equity with clean hands. (Italics mine).

What followed was an application by Ojukwu Transport Limited (thereinafter referred to in this Ruling as Ojukwu Transport) as a Party interested before the Court of Appeal, asking for leave to appeal against the Ruling of the High Court and an application by Ojukwu seeking that he be "reinstated in his residence at No. 29 Queen's Drive, Ikoyi." The Court of Appeal went thoroughly through the both prayers. One serious point brought before the Court of Appeal was that since the notice of leave to appeal was filed and served on the Lagos State Government, the Government resorted into what they termed self help and evicted Ojukwu notwithstanding the fact that his application was pending before the Court of Appeal. The Lagos State Government used "some one hundred and fifty armed men" to evict Ojukwu, even when his suit was pending in the High Court and his application was before the Court of Appeal. Nnaemeka Agu, J.C.A., delivering the Ruling of the Court of Appeal traced the history of such forcible eviction from the time of Richard II in England and dealt with the position of the law in this country. And after a thorough investigation of the law, in regard to which I would respectively commend the learned Justice for his industry, he came to the conclusion that the right of self-help ended when the issues were turned over to the Court. The Court then ordered that Ojukwu be reinstated into the property, following the forcible ejection which the Lagos State Government termed self-help.

Now, and this is important. The Lagos State Government refused to comply with this order of the Court of Appeal. Or to put it mildly, did not comply with the order. The order was held on 13th November 1985 and was in the following terms-

(ii) Pending the determination of the appeal of the applicant against the said decision, against the respondents and in favour of the applicant an order of mandatory injunction restoring the applicant to his residence at No. 29 Queen's Drive, Ikoyi, Lagos, and restraining the respondents and all their officers, servants, agents and functionaries from evicting or taking any steps to evict the applicant from his residence at No. 29 Queen's Drive, Ikoyi, Lagos."

Rather than comply with this simple but positive order, the Lagos State Government appealed on 22nd November to this Court on the ground inter alia that:

"the remedy of interlocutory injunction is not available for an act which has been carried out and concluded"

In this case, what the notice of appeal was in effect, saying was that that has been carried out forcibly with over one hundred and fifty men in arms, even when the matter to be determined was before the Court of Appeal. Or to put it in more legal form, carried out as a way to forestall the decision of the Court of Appeal against which an appeal is now being lodged to this Court.

Indeed, following the notice of appeal to this Court, the Lagos State Government applied to the Court of Appeal, the Court whose order has been forestalled! Seeking an order pursuant to section 18 of the Court of Appeal Act for a stay of execution of the mandatory injunction granted to Ojukwu. On 3rd December, 1985 Kolawole, J.C.A. delivering the ruling of the Court of Appeal said inter alia-

"If the appeal of the State Government is successful the respondent can be ejected by due process of law. In this regard Chief Williams has shown magnamity by offering an undertaking in damages by way of rental income if the State Government is successful in its appeal. In that regard no stay would be granted. Learned Attorney-General contended before us that as Chief Ojukwu is a trespasser at 29 Queen's Drive, Ikoyi, the State Government is not prepared to accept any undertakings in damages in the form of rental income from him.

Having regard to the status of irremovability acquired by Ojukwu after the judgment of this Court, it follows that the Lagos State Government is not entitled to a stay of execution because it never made out any special circumstances upon which to grant the stay. (See Keaves v. Dean (1924) 1 K.B. 685 at 686). The prayer for stay of execution is therefore refused and the application is dismissed."

In the same Court, Ademola, J.C.A. in a concurring ruling, said-

"This Court in an earlier ruling had taken the view that it was wrong to eject the respondent by force under the doctrine of self-help. It therefore seems to me that to accede to the contention of the learned Attorney-General that the status quo should be maintained is to condone what we have condemned by the judgment of this Court earlier on. The Court cannot blow hot and cold. To be consistent with our earlier ruling, this application is refused and it is hereby refused with cost."(Italics mine)

The Lagos State Government still failed to comply with the order of the Court of Appeal! And I think it is this dreadful situation that prompted Chief F.R.A. Williams, S.A.N. learned Counsel for Ojukwu to file his notice of preliminary objection dated 11th December. I have already set out this notice earlier in this Ruling.

We heard the two applications together.

Mr Adetosoye the learned Solicitor General for the Lagos State pleaded for the restoration of the status quo ante the judgment of the High Court. He said Ojukwu had been in occupation for 10 months before the Lagos State Government got to know of his occupation.

Chief Williams for his part emphasised the deliberate disobedience of the order of the Court of Appeal by the Lagos State Government and that the Government was in contempt of the Court of Appeal.

I think it is a very serious matter for anyone to flout a positive order of a court and proceed to taunt the court further by seeking a remedy in a higher court while still in contempt of the lower court. It is more serious when the act of flouting the order of the court, the contempt of the court, is by the Executive under the Constitution of the Federal Republic of Nigeria 1979, the Executive, the Legislature (while it lasts) and the Judiciary are equal partners in the running of a successful government. The powers granted by the Constitution to these organs by s.4 (legislative powers), s.5 (executive powers) and s.6 (judicial powers) are classified under an omnibus umbrella known under Part II to the Constitution as, "Powers of the Federal Republic of Nigeria." The organs wiled those powers and one must never exist in sabotage of the other or else there is chaos. Indeed there will be no federal government. I think, for one organ, and more especially the Executive, which holds all the physical powers to put up itself in sabotage or deliberate contempt of the other is to stage an executive subversion of the Constitution it is to uphold. Executive lawlessness is tantamount to a deliberate violation of the Constitution. When the Executive and the Legislature together and which permits the judiciary to co-exist with it in the administration of the country, then it is more serious than imagined.

By virtue of the Constitution (Suspension and Modification) Decree 1984, No. 1 a good number of the provisions of the Constitution were suspended. Indeed, what was left was what had been permitted by the Federal Military Government to exist. All the provisions relating to the Judiciary were saved. Section 6 of the Constitution, the most important provision, in so far as the institution known as the Judiciary is concerned, which vests in courts the judicial powers of the Federation was left extant. The Military Government had the power and still has to put an end to the existence of that provision. It has not done so, and that must have been advisedly for it does intend that the rule of law should pervade. It is the clearest indication against rule by tyranny, by sheer force of arms against a presumption subjecting the nation to the rule of might as against rule of right.

That being the case, it behoves every organ of the Military Government to make it clear at all times, albeit as the presumption is always that of rule by might of the military, to assume a perennial onus of demonstrating a rebuttal of this onus.

With the contempt of the Court of Appeal by the applicants still subsisting, it would be inequitable for this Court to give a consideration to the application of the applicants. Let the Lagos State Government purge itself of this serious contempt, of this apparent violation of the Constitution even as amended by Decree No. 1 of 1984 before coming to seek the favour of the Court.

Another very important matter emanates from the act of the applicants. They have no right to take the matter into their own hands once the court was seised of it. The essence of rule of law is that it should never operate under the rule of force or fear. To use force, seek the court's equity, is an attempt to infuse timidity into court and operate a sabotage of cherished rule of law. It must never be!

It is for these reasons that I dismissed the application of the applicants-The Military Government of Lagos State, the Commissioner of Police, Lagos State and the Attorney-General, Lagos State on 11th December 1985 and so be it.

Obaseki, J.S.C.-On the 16th day of December, 1985, the application of the applicant praying this Court of

"(1)    An order staying the execution of the ruling delivered by the Court of Appeal, Lagos, in this suit and dated Wednesday 13th day of November, 1985 pending the final determination of the appeal lodged herein to the Supreme Court;

(2)     such further order or orders as this Honourable Court may deem fit to make"

came before this Court for hearing. After hearing the submissions of counsel on both sides on the application, I found no merit in the application. I accordingly dismissed it and reserved my reasons for the ruling till today. I have since then seen the draft of the Reasons for Ruling just delivered by my learned brother, Eso, J.S.C. in the application and I agree with it and adopt the reasons as my own.

The said Ruling complained of as appears in the Ruling delivered by Nnaemeka-Agu, J.C.A. (with which Mohammed and Kutigi, JJ.C.A. concurred) reads:

"In the result, I hereby grant:

(i) To Ojukwu Transport Limited, the Party Interested leave to appeal against the decision of Omotosho, J. given in a Lagos High Court on the 11th October, 1985; and

(ii) Pending the determination of the appeal of the applicant against the said decision against the respondent in favour of the applicant an order of mandatory injunction restoring the applicant to his residence at No. 29 Queen's Drive, Ikoyi, Lagos and restraining the respondents and all their officers, servants, agents and functionaries from evicting or taking any steps to evict the applicant from his residence at No. 29 Queen's Drive, Ikoyi, Lagos."

It is even an interim injunction and will terminate on the determination of the appeal lodged against the refusal of an interlocutory injunction. The points highlighted during the hearing were that:

(1)     there is a subsisting and substantive claim by Chief Emeka Odumegwu Ojukwu against the Military Governor of Lagos State and two others in the High court of Lagos State before Omotosho, J. in which Chief Emeka Odumegwu Ojukwu is challenging the constitutionality of the decision by the appellants/applicants to eject him from the premises at 29 Queen's Drive, Ikoyi, Lagos.

(2)     the premises had been let out by the appellants to G. Cappa;

(3)     apprehensive that the appellants would use force to eject him without resort to court processes, Chief Emeka Odumegwu Ojukwu made an interlocutory application for an interim injunction pending the determination of the case. An interim ex parte order was first made by learned judge pending the service of notice of motion and hearing of the notice of motion. This order was subsequently discharged when after the hearing, the application was refused;

(4)     the appellants subsequently moved into the premises with over 150 armed policemen, forcibly ejected the respondent and threw him out into the streets;

(5)     the appellants did not secure any court order to back up their action;

(6)     Chief Emeka Odumegwu Ojukwu subsequently filed his notice of appeal against the refusal of the order of interim injunction and applied to the Court of Appeal to order his re-instatement into possession. Ojukwu Transport Limited the acknowledged owner of the premises then applied for leave of appeal against the said order of refusal of interim injunction pending the determination of the suit;

(7)     The Court of Appeal granted both orders and hence this application. The principal question was whether there was legal and constitutional basis or authority for the action taken by the appellants to eject Chief Emeka Odumegwu Ojukwu from the premises the subject matter of a pending matter between the parties before the High Court.

I can find no constitutional or legal authority to support the action of the appellants. Indeed all the authorities are the other way.

In the area where rule of law operates, the rule of self help by force is abandoned. Nigeria, being one of the countries in the world, even in the third world which profess loudly to follow the rule of law, gives no room for the rule of self help by force to operate. Once a dispute has arisen between a person and the government or authority "and the dispute has been brought before the court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course. The action the Lagos State Government took can have no other interpretation than the show of intention to pre-empt the decision of the court. The courts expect the utmost respect of the law from the government itself which rules by the law.

The cases of Daniel v. Ferguson (1891) 2 Ch. 27 (per Kay, L.J. at 30), Von Joel v. Hornsey (1895) 2 Ch. 774; Agbor v. Metropolitan Police Commissioner (1969) 1 W.L.R. 703 vividly illustrate the attitude of the courts in England. They show that the courts will order a status quo ante. In the United States of America, the courts are guided by the same principles and their attitude is well illustrated by J. Edwards Jones v. Securities Exchange Commissioner 80 L. Ed 298, U.S. 1-33, 1015-1235.

If the Government of Lagos State wants possession from Chief Emeka Odumegwu Ojukwu, it should apply for an order of possession from the competent court of law.

This application was for a stay of execution. The appellants/applicants have failed to show that a refusal may render any judgment they may get in their favour nugatory; Vaswani Trading Co. v. Savalak & Co. (1972) 1 All N.L.R. (Part 1) 483 at 487. learned Counsel for the appellants admitted that Chief Emeka Odumegwu Ojukwu had been on the premises before the applicants threatened to eject him by force. He also admitted that Chief Emeka Odumegwu was still in occupation of the premises when he took out proceedings to restrain the appellants from ejecting him. He also admitted that the substantive action for injunction still has to be heard and determined. It would appear that the applicants want the court to put a premium on unlawful means of obtaining possession. This, this Court will certainly not do in view of its solid stand in favour of the rule of law.

The salient facts of this case appear to be on all fours with the facts in J. Edwards Jones v. Securities and Exchange Commission 80 L Ed. 1015 298 U.S. 1-33. There the second head note reads.

"After a defendant has been notified of the pendency of a suit seeking an injunction against him, even though a temporary injunction be not granted, he acts at his peril and subject to the power of the court to restore the status wholly irrespective of the merits as may be ultimately decided."

Mr Justice Sutherland delivering the judgment of the Supreme Court of the United States of America, said at p. 102:

"such a proceeding is analogous to a suit in equity to obtain an injunction and should be governed by like consideration... The rule is well settled both by the courts of England and of this country, that where a suit is brought to enjoin certain activities for example, the erection of a building or other structure, of which suit the defendant has notice the hands of the defendant are effectually tied pending a hearing and determination even though no restraining order or preliminary injunction be issued. We briefly revised the decisions:

'In Daniel v. Ferguson (1891) 2 Ch. 27-CA; suit had been brought to restrain the defendant from building so as to darken plaintiffs' lights. Notice of motion for a temporary injunction to be made upon a designated date was served on the defendant. After receiving notice, the defendant put on a large number of men and proceeded with his building running a well up to a height of about 39 feet from the ground before the injunction was granted. The court without regard to the ultimate rights of the parties held that the wall thus run up by the defendant should be torn down at once, as an attempt to anticipate order of the court. A like situation was presented in Von Joel v. Hornsey (1895) 2 Ch. 774-CA. In that case, the evidence showed that the defendant had repeatedly evaded attempts to serve him with process, and in the meantime had gone on with the building. Again without regard to the ultimate rights of the parties, the court directed the defendant to pull down that part of the building thus erected. The Supreme Court of Pennsylvania in several cases had followed the same rule, Clark v. Marin 49 PA 289, 298, 299; Easton, S.E. & W.E. Pass R. Co. v. Easton 133 PA 505, 519, 19 A 486; Cooke v. Boynton 135 PA 102, 19A, 944; Meigs v. Millgan 177 PA

' 66, 72, 76, 35A, 600; Fredericks v. Huber 180 PA 572, 575, 37A, 90

The conclusion to be drawn from all the case is that after a defendant has been notified of the pendency of suit seeking an injunction against him even though a temporary injunction be not granted he acts at his peril and subject to the power of the court to restore the status wholly irrespective of the merits as they may be ultimately decided 1 High, Inj. 4th ed 5(a). We hold the principle of this rule to be applicable to the present case. When the proceedings were instituted by the Commission and the registrar was called upon to show cause by a stop order should not be issued, the practical effect was to suspend, pending the enquiry all action of the registrar under the statement."

I will not like to leave this ruling without referring to the case of Agbor v. Metropolitan Police Commissioner (1969) 1 W.L.R. 703. In that case, acting on executive instructions through the foreign office an the Home Office, the Metropolitan Police had on March 7, summarily evicted the applicant and her children. Jones, J. refused the orders asked for. On appeal to the Court of Appeal, allowing the appeal Lord Denning, M.R. said at p. 707:

"The plain fact here is that Mr & Mrs Agbor claim as of right to be entitled to possession of the ground floor of this house. They occupied it on February 4. They entered by stealth. They used a key that had been left behind. But they did it under a claim of right. It may be that they had no such right as they claimed. But even so the proper way to evict her was by application to the courts of law. No one is entitled to possession of premises by a strong hand or with a multitude of people. That has been forbidden ever since the statute of Richard II against forcible entry. This applies to the government departments also... They must not take law into their own hands. They must apply to the court for possession and act only on the authority of the courts... Seeing however that possession was taken from her wrongfully, it should be restored to her. Thus only can the law be vindicated. If she is to be turned out, it must be by due process in the courts of law and not be action of the executive... In my judgment, this Court should make an interim order that she be restored to her possession of this flat. The final rights can be decided later."

The above dictum is instructive and I say that the state of the law in this country, Nigeria, particularly in Lagos, is no different. It has always been so since before independence in 1960. See Okotie-Eboh v. D.P.P. (1962) 1 All N.L.R. 353.

I will be doing injustice to the course of the rule of law if I grant this application and allow the eviction of the respondent to stand. The Nigerian Constitution is founded on the rule of law the primary meaning of which is that every thing must be done according to law. It means also that government should be conducted within the framework of recognised rules and principles which restrict discretionary power which Coke colourfully spoke of as "golden and straight met wand of law as opposed to the uncertain and crooked cord of discretion" (see 4 Inst. 41). More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive. See Wade on Administrative Law 5th Edition p. 22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decrees No. 1 of 1984 and No. 17 of 1985.

The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizens.

It was for the above reasons and the reasons in the Ruling of my learned brother, Kayode Eso, J.S.C. that I dismissed the application.

Uwais, J.S.C.-I had the advantage of reading in advance the reason for ruling by my learned brother Eso, J.S.C. I entirely agree with the reasons given by him.

When we dismissed this application on 16th December 1985, I expressed by concern on the failure of the applicants to comply with the order made by the Court of Appeal that the possession of the house in dispute should be restored to the respondent. I think I should still stress that it is a matter of grave concern that the Military Government of Lagos State should be seen to disregard a lawful order issued by a court of law. If Governments treat court orders with levity and contempt the confidence of the citizen in the courts will be seriously eroded and the effect of that will be the beginning of anarchy in replacement of the rule of law. If anyone should be wary of orders of court it is the authorities; for they, more than anyone else, need the application of the rule of law in order to govern properly and effectively.

It is for these and the fuller reasons given by my learned brother Eso, J.S.C. that I dismissed the application on 16th December, 1985 with N25.00 costs to the respondent.

Kawu, J.S.C.-I have had the advantages of reading in draft the Reasons for Ruling just delivered by my learned brother, Eso, J.S.C. I entirely agree with the reasons and respectfully adopt them as mine. It was for the same reasons that I dismissed the applicants' application on the 16th day of December, 1985.

Oputa, J.S.C.-I have had the privilege of a preview of the lead Reasons for Ruling just delivered by my learned brother, Eso, J.S.C. I am in complete agreement with him that the applicants' prayer for a Stay of Execution should be refused. I also agree with his sound reasoning and valid conclusions. But as the issues raised in this application affect radically and fundamentally the concept and practice of the Rule of Law in our country; the Protection of the Individual Citizen from an Abuse of Executive Power; and the Role of our Courts in the Preservation of Law and Order in our society; it is in my humble view, necessary that the fullest expression be given to the views of individual Justices of this Court at least to further emphasise the points so ably made in the lead Reasons for Ruling.

Admittedly, the country is now governed by a Military Regime but it is to the eternal credit of all the Military Governments in Nigeria in general and the present Military Regime in particular, that each pledged itself to observe and to be bound by the basic principles of the Rule of Law. This is highly commendable for where the rule of law is forced to abdicate the rule of force is automatically enthroned. And this is why, and where, certain features of this application are rather disturbing.

On the 16th day of December, 1985, this Court heard an application on a "Motion of Notice" allegedly brought under Sections 22 and 24 of the Supreme Court Act 1960; Order 8, Rules 11 and 12 of the Supreme Court Rules 1985 and under the Inherent Jurisdiction of the Court. The prayer was for:-

"1.     An Order staying the execution of the Ruling delivered by the Court of Appeal, Lagos, in this Suit and dated Wednesday 13th of November, 1985 pending the final determination of the appeal lodged herein to the Supreme Court;

2.      Such further Order or Orders as this Honourable Court may deem fit to make"

If one may overlook the appropriateness or otherwise of the sections of the Supreme Court Act 1960 and Rules 11 and 12 of Order 8 of the Supreme Court Rules of 1985, it is necessary to point out that the motion now before the Court does not constitute an appeal to this Court against the refusal of a Stay of Execution by the court below nor is it an appeal against the Order of Omotosho, J. dated 11/10/85. No, it is an entirely new and fresh application based on the fact that the present applicants have appealed to this Court as per their Notice and Grounds of Appeal-Ex. B attached-against the Ruling of the Court of Appeal date 13th day of November 1985. This brings into its proper focus the "Notice of Preliminary Objection" filed by Chief Williams for the respondent, namely that the Grounds of Appeal filed are "Frivolous and manifestly unarguable."

Ordinarily any court has a discretion to grant or refuse a stay of execution pending an appeal but this is a discretion that must have to be exercised both judicially and judiciously bearing in mind the equal right of the parties before it (here the applicants and the respondents) to justice. Normally therefore a court will not deprive a successful litigant, (here the respondent) of the fruits of his litigation (here an Order restoring him, Chief Emeka Odumegwu Ojukwu-to his residence at No. 29 Queen's Drive, Ikoyi and restraining the present applicants ... from evicting or taking any steps to evict the respondent from his residence at No. 29 Queen's Drive, Ikoyi, Lagos) pending the appeal, see Annot Lyle (1886) 11 PD 114 at p. 116. The second hurdle the present applicants will have to scale is to show that if the stay of execution, they are praying for, is not granted, their appeal if successful would be rendered nugatory:-Wilson v. Church No. 2 (1879) 12 Ch. S. 454 at p.459. The third requirement is for the applicants to satisfy the court that there exists one or other of those exceptional circumstances crying out for a stay of execution:-Vaswant Trading Co. v. Savalakh & Co. (1972) 12 S.C. 77. It has also been held that where the refusal of a stay would destroy the subject matter of the action that eventuality would amount to exceptional circumstance which will warrant a stay:-Emmerson v. Ind. Coope & Co (1886) 55 L.J.Ch. 905. Fourthly every court has an inherent jurisdiction to stay proceedings on the ground that they are an abuse of process or that they are frivolous and vexatious. By the same token, if the grounds of appeal the applicants filed are frivolous, this Court will not stay execution pending such appeal.

I will now apply the principles stated above to the peculiar facts of this case to determine on whose side (applicant or respondent) the balance of justice is weighted and against whom the sword of equity points ominously? A motion for a stay of execution is usually accompanied by an affidavit deposing to facts (now law, not speculation) which will persuade and incline the court to grant a stay. Here an affidavit of 18 paragraphs was filed. The reasons for the prayer for an Order for Stay were given in paragraphs 15 to 17 of the affidavit in support. It may be both necessary and convenient at this stage to reproduce these paragraphs in order to ascertain whether or not such paragraphs can sustain an application for a Stay:-

"14. That if Stay is refused, it may have the effect of encouraging persons generally to illegally occupy premises and rush to court thereafter knowing that they cannot be ejected until the final determination of the suit instituted after the illegal occupation.

15.     That if Stay is not given it may encourage some members of the public to occupy by force government residential buildings without any lawful authority.

16.     That if Stay is not given, the order to restore the respondent to No. 29 Queen's Drive, Ikoyi, would have the effect of legalising an illegality which is the act of breaking in.

17.     That the applicants have a right to protect their interest and that of the general public against an illegality of forcible breaking in and taking over the property of another."

Paragraphs 14, 15, 16 and 17 reproduced above offend all known rules relating to affidavits. One of those rules is that "an affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument or conclusion." That is the provision of Section 86 of the Evidence Act, Cap. 62 of 1958. Paragraphs 14 to 17 of the affidavit in support of this Motion are at best merely speculative and at worst wholly argumentative. They are conclusions which are even not legally valid. They are assumptions not borne out by the facts of this case which is the only case now before the Court, the facts of which have not even been thoroughly gone into by the trial court. In such a situation, it is not highly presumptuous of a mere Litigation Clerk to assume the role of judge and jury and pronounce on "illegality", "forcibly breaking in and taking over of another", "illegal occupation" and "legalising an illegality" etc? I wonder and my wonder grows even more apprehensive, when one recalls that by the mandatory provisions of Section 85 of the Evidence Act, Cap. 62 of 1958-"every affidavit used in the court shall contain only a statement of facts and circumstances to which the witness deposes either of his own personal knowledge or from information which he believes to be true." Paragraphs 14 to 17 above do not contain a statement of facts. They rather contain unsupported assumptions and legal conclusions based on non-existent or not yet proven facts. From the point of view of these apparent contraventions of Sections 85 and 86 of the Evidence Act, paragraphs 14 to 17 of the affidavit in support of this Motion for a Stay ought to be struck out. And when these paragraphs are struck out, there is absolutely not one single averment to support the prayer in this Motion for a Stay of Execution. Chief Williams, S.A.N. in ground 1 of his Notice of Preliminary Objection described the application for a stay as "frivolous, vexatious and an abuse of process." I am in full agreement that paragraphs 14-17 of the affidavit in support are all these and more. They are untenable and cannot support this Motion.

Perhaps the most ominous most menacing and most portentous impact of these paragraphs-14-17-is the assault they make on the entire court system itself. The court system cannot be maintained without the willingness of parties to abide by the findings and orders of a competent court until reversed on appeal. This presupposes that no party and no court of subordinate or even co-ordinate jurisdiction can say:-"I do not like the order made and I will not obey it." And that is exactly what the Lagos State Government is doing in this case. And that posture has to be condemned in the strongest of terms if we are not to say goodbye to the Rule of Law. I shall deal in greater detail with this aspect later on in this Ruling.

Let us look at what the Court of Appeal found regarding the speculations and conclusions contained in paragraphs 14 to 17 of the applicants' affidavit in support-

1.      At page 26 of the lead judgment in CA/L/195/85 Nnaemeka-Agu, J.C.A. observed:-

"There is a world of difference between moving into a premises as stated in the first paragraph and breaking into it as averred in the second ... Without some evidence from G. Cappa Ltd, who were said to be in possession and had the keys one cannot say that the charge of breaking in has been proved."

And at p.27 the learned Justice of the Court of Appeal found:-

"I can only reach one conclusion that is that breaking in was not proved."

2.      At pages 38/39 Uthman Mohammed, J.C.A. in his own judgment found:-

"I agree as my learned brother had established, in his ruling, that Chief Ojukwu did not force himself into the premises in question. Having paid N89,000.00 for the unexpired term of G. Cappa's tenancy before moving into the premises, it would be wrong to say that Chief Ojukwu had broken and entered the house."

3.      I. L. Kutigi, J.C.A. in his own judgment at p. 40 held:-

"It is evident that the appellant, Chief Ojukwu, remained in peaceful occupation of the property from November 1984 until 12th August 1985 when the respondent, the Lagos State Permanent Secretary, wrote him a letter No. LGS.539/S2/258 requiring him to move out by 28/8/85 or be ejected."

And at p. 43 the learned Justice of the Court of Appeal continued:-

"I will say immediately that I regard as most unfortunate the finding by the learned trial Judge that the appellant Chief Ojukwu is a trespasser. That finding will have to await the hearing of the substantive suit this being an interlocutory application only ...

The evidence is that the appellant occupied the house in November 1984. He was not disturbed by anyone until he got the letter dated 12/8/85 asking him to move out by 28/8/85 or be rejected. This is a period of about ten (10) months. I am of the view that he was there long enough to be properly described a "being in possession." And he was probably there under a claim of right made in good faith."

And at p.45, Kutigi J.C.A. concluded:-

"I think Chief Ojukwu has been wrongfully evicted from No. 29 Queen's Drive, Ikoyi.'

It is true that the present Applicants appealed against the above Ruling of the Court of Appeal to the Supreme Court. That appeal has not yet been heard. It is only the Supreme Court that can validly pronounce on the correctness or otherwise of the Appeal Court's Ruling and Order. The present Applicants are bound whether they like it or not, to abide by the ruling and comply with the order of the Court of Appeal until reversed. Not even the Lagos State Military Governor nor the Commissioner of Police Lagos State nor the Attorney-General of the Lagos State let alone a mere Litigation Clerk in the Ministry of Justice, Lagos State can swear to paragraphs 14 to 17 or the Affidavit in support of this Motion alleging directly or indirectly that Chief Ojukwu 'committed an illegality' in entering No. 29 Queen's Drive or that "he did not enter with lawful authority' or that "he committed an "act of breaking in'. All these allegations will await the decision of the Supreme Court after hearing the appeal against the decision of the Court of Appeal in Suit No. CA/L/1195/85. Until then the Applicants in this Motion are bound by the findings and order of the Court of Appeal. It is none of their business to sit on appeal against any judgment or order of the Court of Appeal. I agree that during the hearing of their appeal in this Court, they will be at liberty to attack both the findings and order of the Court of Appeal. Yes, this they can do then but this they cannot do now in a fresh application to this Court for a stay of execution of the self same Ruling pending their appeal. Before their appeal to this Court is heard and determined, it has to be presumed that the Court of Appeal was right in its findings and in its Ruling. Without this presumption, there will be complete chaos in our judicial system.

I now come to the most disturbing and the most disquieting aspect of this application-namely the sustained refusal of the Applicants to abide by the Order of the Court of Appeal to restore the Respondent Chief Emeka Ojukwu, to his residence at No. 29 Queen's Drive, Ikoyi Lagos pending the determination of the Appeal. That Order was made on 13th day of November 1985. The present Applicants refused to obey the Order. Rather on the 3rd December 1985, they brought an application for a stay of Execution of its Order of 13/11/85 in the Court of Appeal. That Court (the Court of Appeal) on 3/12/85 dismissed the application for a stay of execution as completely lacking in merits as no exceptional circumstances were either averred in their affidavits or proved. The Applicants still refused to obey the order of 13/11/85. What was their next step? On 11/12/85, almost one month after the original Order was made, the Applicants then filed a fresh application in the Supreme Court for a stay of execution of the Appeal Court's Order of 13/11/85. Before considering further, the merits of this application which (if paragraphs 14 to 17 are removed) has no affidavit of substance to support it, it is necessary to observe as follows:-

1.      A judgement or ruling of a competent court ought not to be illusory, but ought to have its consequences. One consequence of the Order of the Court of Appeal dated 13/11/85 is the restoration of Chief Ojukwu to his residence at No. 29 Queen's Drive. The applicants by their delaying tactics have so far made that order illusory.

2.      A judgment once given should be accepted as correct until the contrary is proved. This can only be done by and in an appropriate higher Court of Appeal-in this case the Supreme Court. This Court has not yet over-ruled or set aside the Order of the Court of Appeal of 13/11/85.

3.      He who is in defiant disobedience of the law-here an Order of court-cannot appeal to the same law to help them continue in his disobedience.

4.      The Applicants in this Motion are asking the court to exercise its discretion as equitable and the function of equity is to supplement the law never to counteract or contradict the law.

The Applicants' Brief contained practically nothing else. What were the issues calling for decisions by this Court? These were not formulated. This again supports Chief Williams' Notice of Preliminary Objection that the "applicants are merely adopting delaying tactics and that the entire application and the grounds of Appeal filed are frivolous and manifestly unarguable."

The Applicants however relied on the case of Kigo (Nigeria) Ltd. v. Holman Bros (Nigeria and Goodwin Barshy Ltd, Third Party (1980) 5-7 SC.60 for the proposition that "the court from which an appeal lies as well as the court to which an appeal lies both have a duty to preserve the res for the purpose of securing that the appeal if successful is not nugatory'. While I must observe that the issue in Kigo's case supra was issue of jurisdiction and stay of proceedings, there is no doubt at all that submission of Chief Williams in Kigo's case supra at p.67 of the report quoted above by the present Applicants represents a correct statement of the law. The issue here is not whether the court has jurisdiction to grant a stay. No It is rather whether on the facts and circumstances of the case as deposed to the Applicants' Affidavit in support "the restoration of Chief Emeka Ojukwu into No.29 Queen's Ikoyi pending the determination for the appeal against the decision of the High Court in the interim injunction" would render the appeal nugatory if it succeeds. What is the meaning of "nugatory" as used above? I cannot do better than quote the memorable words of Coker, J.S.C. in Vaswani Trading Company v. Savalakh 7 Co. (1972) 12 S.C.77 at p.82:-

"When it is stated that the circumstances or conditions for granting a stay should be special or strong, we take it as involving a consideration of some collateral circumstances and perhaps in some cases inherent matter which may, unless the order for stay is granted destroy the subject matter or the proceedings or foist upon the court, especially the Court of Appeal a situation of complete helplessness or render nugatory any order or orders of the Court of appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which what ever happens to the case; and in particular even if the appellant succeeded in the Court of Appeal, there could be no return to the status quo. All rules governing stay of actions or proceeding, stay of executions of judgments or orders and the like, are but corollaties of this general principle and seek to establish no other criteria than that the Court, and in particular the Court of Appeal should at all times be master of the situation and that at no stage of the entire proceeding is one litigant allowed at the expense of the other or of the court to assume that role."

In Vaswani's Case supra there was an Order for possession, an appeal against that Order, and an application for a stay which was refused. The High Court although it was well aware of the pending appeal, nonetheless granted the Order for possession. It was in the circumstances such as these that this Court made the observation I quoted above. In Vaswani's case supra the grant of possession had the effect of rendering any Order on appeal nugatory even if the appellant won.

In this case, the applicants are batting on an entirely different wicket. By no stretch of the imagination can the Order restoring Chief Emeka Ojukwu into possession of No.29 Queen's Drive Ikoyi affect adversely the appeal against the interlocutory Order of the Lagos High Court or the judgment of the Court of Appeal, Lagos Division now on appeal to this Court. There is nothing at all in the affidavit of the Applicants to suggest either that the Respondent, Chief Emeka Ojukwu, will destroy or alienate the property at No. 29 Queen's Drive Ikoyi before the hearing of the appeal or that his occupation of that property will diminish its value before the appeal is heard. There is here none of those special circumstances that cry out for a stay. The expression "render nugatory" is not cosmetic or merely decorative. It means what it says. It is the Applicants to this Motion who want to render the Ruling and Order of the Court of Appeal nugatory by defiant disobedience. In deciding that the Respondent acted illegally and that "his restoration to No.29 Queen's Drive Ikoyi would have the effect of legalising an illegality" the Applicant have (even before the real issues in the substantive case pending in the Lagos High Court are determined) assumed the role of Defendants, judge, jury, Sheriff and Executioner all rolled into one. They thus found the Respondent guilty of "illegality which is the act of breaking in" and with the mighty arm of executive power forcibly ejected him from No. 29 Queen's Drive Ikoyi without an Order of court to the effect. I will here reiterate what this Court said to that effect. I will here reiterate what this Court said in Vaswani's case supra namely "that the court... should at all times be master of the situation and that at no stage of the entire proceeding is one litigant allowed at the expense of the other or of the Court to assume that role."

Viewed from this angle the Applicants and not the Respondent are the parties guilty of "illegality."

The learned Solicitor-General in his oral submission to us emphasised that:-

"I am asking for the preservation of the Status quo pending the determination of the case before Lagos High Court."

Now the expression Status quo in this case can mean one of two things or even both. There is a status quo ante bellum. There is also a status quo ante litem. Literally the status quo ante bellum (the state before the war) will here be the state of No. 29 Queen's Drive Ikoyi before the Nigerian Civil War. All sides agree that before the Civil War the property at No. 29 Queens Drive Ikoyi belonged to Ojukwu Transport Ltd. Does the learned Solicitor-General want to restore the property to Ojukwu Transport Ltd.? That question was not answered directly. All the Solicitor-General submitted was that 'the Lagos Status Government was trustee for Ojakwu Transport Ltd." The relevant status quo here therefore is the status quo ante litem (the state before the lis), that is the actual peaceable status of the property at No. 29 Queen's Drive Ikoyi which preceded the action now pending in the Lagos High Court, On this point, the Court of Appeal per Kutigi, J.C.A. held at p.40 of Ex.A1 that:-

"it is evident that the Appellant Chief Ojukwu, remained in peaceable occupation of the property until the Respondent, the Lagos State Permanent Secretary wrote him a letter No. LGS.539/S.2/257 dated 12th August 1985 requiring him to move out by 28/8/85 or be ejected... By another letter dated 4th September 1985 Exh. B from the Commissioner of Police Lagos State the Appellant was directed to hand over, the keys of the house by 11/9/85 or be ejected. The applicant did not hand over the key to anyone. He decided to take legal action."

He sued the present Applicants claiming a declaration and an injunction.

What then is a lis? Lis means suit, action, controversy or dispute. In the instant case, the controversy or dispute started on 12th August 1985 when the Lagos State Permanent Secretary wrote the Respondent letter No.LGS.539/S.2/258. The suit or action was started on 5/9/85 when the Respondent, Chief Emeka Ojukwu, sued the present Applicants. The status quo ante litem will therefore be the state of the property either before 5/9/85 or before 12/8/85. The learned Solicitor-General admitted that "Chief Emeka Ojukwu, moved in and stayed there (No.29 Queen's Drive Ikoyi) for ten months before the letter of 12/8/85 was written by the Permanent Secretary, Lagos State." The Court of Appeal found (rightly or wrongly) is immaterial now, since we are not hearing an appeal from the court below) that "Chief Okukwu remained in peaceable occupation of the property" until the letter of 12/8/85-that is before the lis. The only status quo that can be restored in this case is the "peaceable occupation by Chief Emeka Ojukwu" before the controversy or dispute or suit or action commenced. That was what the Court of Appeal did in Ex. A1. The learned Solicitor-General's submission that the status quo to be restored is the one that existed after the Ruling of Omotoso, J. on 11/10/85 is misconceived and wrong because then there was a lis pendens (a pending suit at law) and the status quo of the property No.29 Queen's Drive Ikoyi was in litem (in dispute) and not ante litem in the middle of the dispute. It was not made ante litem so it cannot confer on No. 29 Queen's Drive Ikoyi any status quo ante litem.

I must however hasten to add that putting or preserving any property in status quo pre-supposes the existence of an actual, peaceable, uncontested status quo preceding the pending controversy, as distinguished from a status quo effected by a wrong-doer before institution of the suit. In other words, a trespasser cannot by the very act of trespass create a status quo respecting the property in dispute and then ask the court to restore that as the status quo. In Thomson v. Park (1944) 2 All. E.R.477 the Defendant was a licensee on the premises; the Plaintiff revoked the licence; the Defendant thereafter re-entered the premises as a trespasser. The Plaintiff asked for an interim injunction. Du Parcq, L.J in that case observed:-

"it is impossible to make an interim order of injunction which on the face of it may not do some injustice to one party or the other. It is impossible to go fully into the fact at that stage of the case, and with the best will in the world an order may be made which will afterwards be regretted. The aim of interim order is to preserve the status quo. The status quo that could be preserved was the status quo that existed before those illegal and criminal acts of the defendant.

In the case now before us, the court below per Nnaemeka-Agu and Uthman Mohammed, JJ.C.A. did not find that the Respondent broke and entered No. 29 Queen's Drive Ikoyi and Kutigi, J.C.A. regarded 'as most unfortunate the finding by the learned trial Judge that the Appellant, Chief Ojukwu is a trespasser. That finding will have to await the hearing of the Substantive Suit this being an interlocutory application only." It is because the court below did not find in Ex. A1 that the Respondent was either a trespasser or that he broke and entered No. 29 Queen's Drive Ikoyi vi et armis that I hold that the status quo to be preserved is the peaceable possession of No. 29 Queen's Drive Ikoyi by Chief Emeka Ojukwu pending the determination of the Substantive Suit in the Lagos State High Court.

Chief Williams, S.A.N in his reply to the oral arguments of the learned Solicitor-General of Lagos State submitted:-

1.      That the most unfortunate aspect of this case is that Lagos State Government deliberately disobeyed the Order of the Court of Appeal.

2.      That the action of the Lagos State Government constitutes a usurpation of the judicial functions of the courts.

In his short Ruling delivered on 16/12/85, Obaseki, J.S.C. who presided remarked:-

"The applicants overlooked their right to arm themselves with an Order of Court in consonance with the Rule of Law which the Federal Government loudly declares and to which we are all committed to observe before embarking on the course they took to eject the respondent when the matter of the validity of their decision so to do is still before the High Court."

I am in full agreement with the severe strictures of Chief Williams against the Lagos State Government. Those strictures were well deserved.

There is no doubt that we are under a Military Regime but it is a regime that had pledged itself to observe and abide by the Rule of Law. The Rule of Law presupposes-

1.      That the State (including the Lagos State Government) is subject to the Law.