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GOVERNMENT OF GONGOLA STATE v. ALHAJI UMARU ABBA TUKUR(1989)

GOVERNMENT OF GONGOLA STATE v. ALHAJI UMARU ABBA TUKUR

In The Supreme Court of Nigeria

On Tuesday, the 5th day of September, 1989

SC.148/88

 

JUSTICES

ANDREWS OTUTU OBASEKI    Justice of The Supreme Court of Nigeria

CHUKWUDIFU AKUNNE OPUTA    Justice of The Supreme Court of Nigeria

SALIHU MODIBBO ALFA BELGORE    Justice of The Supreme Court of Nigeria

ABDUL GANIYU OLATUNJI AGBAJE    Justice of The Supreme Court of Nigeria

AUGUSTINE NNAMANI    Justice of The Supreme Court of Nigeria

PHILLIP NNAEMEKA-AGU    Justice of The Supreme Court of Nigeria

ADOLPHUS GODWIN KARIBI-WHYTE    Justice of The Supreme Court of Nigeria

Between

 

GOVERNMENT OF GONGOLA STATE  Appellant(s)

AND

ALHAJI UMARU ABBA TUKUR  Respondent(s)

RATIO
THE POSITION OF LAW ON DECLARATORY JUDGMENTTS

A declaratory judgment is complete in itself since the relief is the declaration. See Vol. 1 Halsbury’s Laws of England, 4th Edition, Para. 185-187; Akunnia v. Attorney-General of Anambra State (1977) 5 SC. (161 at 177). Judgments and orders are usually determinations of rights in the actual circumstances of which the court has cognizance, and give some particular relief capable of being enforced.
When therefore a court declares that it has no jurisdiction, besides the declaration of its incompetence which it has jurisdiction to make, no determination of rights or entitlement thereto which can be enforced by the beneficiary is made. The Court of Appeal made no determination of the rights of the parties requiring enforcement. PER OBASEKI, J.S.C,

THE POSITION OF LAW ON STAY OF EXECUTION

A stay of an order or judgment, in the submission of learned counsel, and I agree with him, merely arrests further action by the court itself in the suit against the judgment debtor or person adjudged liable on the claim.
For the definition of the word “execution” he relied on the definition given in Re Overseas Aviation Engineering (G.B.) Ltd. (1962) 3 All E.R. 12 at 16 and Blackman v. Fysh (1892) 3 Ch. 209 at p. 217 by Kekewich, J.
A stay of execution only prevents the plaintiffs or beneficiary of the judgment or order from putting into operation the machinery of the law the legal process of warrants of execution and so forth. An order for “stay” pending appeal therefore can only be granted in respect of executory judgment or order. But the judgment of the Court of Appeal is not an executory order.
The Court of Appeal cannot go outside the terms of the motion however misconceived it is. It is bound by the terms or prayers in the motion filed.   (Commissioner for Works Benue State v. Devon Construction Co. Ltd. (1988) 3 N. W. L. R. (Pt.83) 407 at 420.) Since there was nothing to stay the Court of Appeal was in error to have made the Order prayed for. PER OBASEKI, J.S.C,

OBASEKI, J.S.C. (Delivering The Leading Judgment): This appeal is probably overtaken by events i.e. the judgment (in the appeal lodged by the Respondent herein and the cross appeal lodged by the appellant against the decision of the Court of Appeal in the substantive appeal to it from the High Court) delivered a short while ago.
Following the decision of the Court of Appeal that:
“The Federal High Court has no jurisdiction to entertain, determine and grant the relief, the Respondent claimed in paragraphs 1 and 2 of the Respondent’s claim either separately or in combination with the other aspects of the Respondent’s claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.”
the Respondent applied to the Court of Appeal by Notice of Motion (pursuant to section 18 Court of Appeal Act 1976 as amended) for an Order.
“Directing a stay of its Order contained in its judgment dated 21st June, 1988 between the parties, in respect of appellant’s reliefs 1 and 2 in the lower court, pending the determination of the appeal against the same to the Supreme Court and for such further Order or Orders as this Honourable Court may deem just. ”
The grounds on which the application was based as contained in the affidavit evidence filed along with it are in the words of the Respondent:
“(1) The appeal raises substantial points of law which could be resolved either way.
(2) It is essential in the interest of justice that a stay of the Orders of this Honourable Court relating to reliefs 1 and 2 canvassed on my behalf in the lower court be granted pending the determination of the appeal aforesaid.
(3) The Respondent in this application will not be prejudiced by any such Order.
(4) The remaining part of your Lordship’s Orders contained in the judgment aforesaid not the subject of the said appeal, can be proceeded with by the lower court pending determination of the appeal herein.
(5) Unless my application be granted, it will render the appeal nugatory,”
The Court of Appeal after hearing counsel in argument granted the stay. Maidama, J. C. A., in his ruling (concurred in by Jacks and Adio, J.C.A.)
said inter alia:
“It was conceded that at the time of the alleged appointment the application for a stay had already been filed and brought to the notice of the Respondent and although under section 18 of the Court of Appeal Act 1976 an appeal by itself does not operate as a stay, if execution is yet in practice particularly as in this case where the question of the jurisdiction of the Federal High Court is involved in the enforcement of fundamental rights which is inseparably interwoven with a chieftaincy question; it would have been better for the Respondent not to have made the alleged appointment In a case where grounds exist suggesting that a substantial issue of law is to be decided on appeal in an area in which the law is to some extent recondite and where either side could have a decision in his favour where a stay ought to be granted See Balogun v. Balogun (1969) 1 All N.L.R. 349 at 351 and Martins case (supra). Further in this matter there is the question of jurisdiction of the trial court which forms part of the grounds of appeal disclosing a substantial arguable point of law which justify holding the matter in status quo until the appeal issues are resolved. See Martins case (supra).
Be that as it may the justice of the case will be better met by granting the application. The application is therefore granted as prayed.”
The Respondent to the application was dissatisfied with the decision granting a stay of the order and appealed to this court. The only ground of appeal filed with his Notice of Appeal reads:
“The learned Justices of the Court of Appeal erred in law in making an order staying the execution of the judgment of the court dated 21st day of June, 1988 pending the appeal lodged to the Supreme Court by the Respondent.”
Particulars of Errors
1. The portion of the judgment of the Court of Appeal dated 21st June, 1988 appealed against by the applicant was “That part of the decision in which the Court of Appeal held that the Federal High Court has no jurisdiction, to entertain, determine or grant reliefs claimed in paragraphs 1 and 2 of Respondent’s claim either separately or in combination with the other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.”
2. An order for “stay of execution pending appeal” is not an appropriate remedy where an appellate court has held that a lower court had no jurisdiction to entertain a matter and a further appeal is lodged against the judgment of the appellate court.
3. An order for “stay of execution pending appeal” can only be made where the judgment appealed against contains an order capable of being positively enforced or executed against the applicant.
4. There is nothing to enforce or execute against the other side in a judgment or portion of a judgment holding that the lower court has no jurisdiction to entertain a matter as this case.”
With leave of this court an additional ground was filed. This second ground of appeal reads:
“The Court of Appeal erred in granting the Respondent’s application for a stay of the judgment of the court pending the Respondent’s appeal to the Supreme Court, when the Respondent did not show any special and exceptional circumstances why the application should be granted.”
Arising from these 2 grounds of appeal two issues for determination in this appeal were formulated by the appellant and they read:
“(1) Whether an order for stay of execution pending appeal or stay of order contained in the judgment pending appeal is an appropriate remedy in law where the Court of Appeal held that the Federal High Court has no jurisdiction to entertain a matter and an appeal is lodged to the Supreme Court against the judgment of the Court of Appeal.
(2) Whether there were special or exceptional circumstances in the affidavit evidence in support of the Respondent’s application to justify the grant of the Respondent’s application for “stay pending appeal.”
The Respondent’s counsel however formulated only a single issue for determination in the Respondent’s brief as follows:
“Having regard to the question of jurisdiction of the Federal High Court, which is the substratum of this appeal from the genesis of this case up to this Honourable Court, whether the lower court was right in granting a stay having regard to all the circumstances of the stay.”
Briefs of Argument were filed by the parties in this appeal. Apart from the submissions and arguments in the appellant’s brief and the Respondent’s reply brief, there was no oral hearing or argument before this court. This was because accelerated hearing was granted by this court in the main appeal. The hearing was concluded on the 6th day of June, 1989 before adjourning for judgment. As this appeal did not come up for oral hearing earlier in time and in any event as the Order of the Court of Appeal will be discharged on the determination of the main appeal on the 5th day of September, 1989, oral hearing was dispensed with.
The appellant’s brief was drawn up and filed by their counsel Tayo Oyetibo, Esq., while the Respondent’s brief was drawn up and filed by his Counsel Mr. G. Brown-Peterside, S.A.N.
The 1st issue formulated by the appellant can be taken along with the issue formulated by the Respondent conveniently as the arguments on both issues traverse the same compass although the issues were differently worded.
In dealing with these two issues the first question that comes to mind is this “What was the Order stayed”
The proceedings both in the High Court and the Court of Appeal relate only to the objection in limine to the jurisdiction of the Federal High Court to entertain the reliefs claimed in the motion paper. The Federal High Court dismissed the objections in to and held it had jurisdiction to entertain and grant all the reliefs claimed. The Court of Appeal reversing the decision in respect of reliefs 1 and 2 held that the Federal High Court has no jurisdiction to entertain, determine and grant the reliefs the Respondent claimed in paragraphs 1 and 2 of the Respondent’s claim. It made no consequential Order or Orders. The only consequential Order that flows from the decision is an Order striking out the two items of claim from the reliefs claimed. The judgment of the Court of Appeal is merely declaratory. There is nothing to execute in favour of the appellant for which an order of stay can properly issue. An order striking out a claim over which a court has no jurisdiction automatically follows a declaration that the court has no jurisdiction and once it is made its operation is fulfilled. It cannot be stayed.
Learned counsel for the appellant also asked this pertinent question when he asked in his brief
“Now the pertinent question is, can the portion of the judgment of the Court of Appeal be enforced against the Respondent to warrant an application for “stay” pending appeal”
My answer is in the negative.
He then quite correctly submitted and I agree with him that it is not every judgment or order of the court that requires enforcement by the parties and therefore capable of being executed by the unsuccessful parties.
It should be noted that many judgments and orders do not require to be enforced as the judgment and order itself is all that the party obtaining it requires.
See Para. 565, Vol. 26 Halsbury’s Laws of England, 4th Edition, page 288.
The judgment of the Court of Appeal in question is one such judgment.
A declaratory judgment is complete in itself since the relief is the declaration. See Vol. 1 Halsbury’s Laws of England, 4th Edition, Para. 185-187; Akunnia v. Attorney-General of Anambra State (1977) 5 SC. (161 at 177). Judgments and orders are usually determinations of rights in the actual circumstances of which the court has cognizance, and give some particular relief capable of being enforced.
When therefore a court declares that it has no jurisdiction, besides the declaration of its incompetence which it has jurisdiction to make, no determination of rights or entitlement thereto which can be enforced by the beneficiary is made. The Court of Appeal made no determination of the rights of the parties requiring enforcement.
Learned counsel for the appellant contended that an order for a “stay” pending appeal can only be made where the judgment appealed against contains an order capable of being positively enforced or executed against the applicant and as there was nothing to enforce or execute against the Respondent in this case, the grant of a stay was in error. In support of this contention Construtioni ‘Generali’ Farsura Cogefar v. Nigerian Ports Authority (1972) 12 SC. 107 at 112-113; Clifton Securities Ltd. v. Huntley and others (1948) 2 All E.R. 283 at 284 were cited.
A stay of an order or judgment, in the submission of learned counsel, and I agree with him, merely arrests further action by the court itself in the suit against the judgment debtor or person adjudged liable on the claim.
For the definition of the word “execution” he relied on the definition given in Re Overseas Aviation Engineering (G.B.) Ltd. (1962) 3 All E.R. 12 at 16 and Blackman v. Fysh (1892) 3 Ch. 209 at p. 217 by Kekewich, J.
A stay of execution only prevents the plaintiffs or beneficiary of the judgment or order from putting into operation the machinery of the law the legal process of warrants of execution and so forth. An order for “stay” pending appeal therefore can only be granted in respect of executory judgment or order. But the judgment of the Court of Appeal is not an executory order.
The Court of Appeal cannot go outside the terms of the motion however misconceived it is. It is bound by the terms or prayers in the motion filed.   (Commissioner for Works Benue State v. Devon Construction Co. Ltd. (1988) 3 N. W. L. R. (Pt.83) 407 at 420.) Since there was nothing to stay the Court of Appeal was in error to have made the Order prayed for.
Turning to issue No.2, learned counsel for the appellant referred to the guiding principles laid down by this court in Vaswani Trading Company v. Savalakh & Company (1972) 12 SC. 77 and the fact that the facts deposed to in affidavit and counter affidavit do not support a grant of the order. On the contrary they support a refusal of the Order as no special circumstances were shown to warrant a stay as defined in Okafor v. Nnaife (1987)4 N. W. L. R. (Pt.64) 129.
In reply learned counsel for the Respondent submitted in his brief that the argument that there is nothing to stay is totally misconceived. He submitted that the res to be preserved is not a tangible res. It is, he contended, a state of affairs, which can only be acknowledged by observation or otherwise, but not necessarily something that can be touched. He further submitted that in the main appeal i.e. the substantive appeal disposed of this morning, substantial points of law necessitating the parties and issues being held in status quo until legal issues are resolved are involved.
The substantial issue raised in this appeal is whether the judgment of the Court of Appeal declaring that the Federal High Court has no jurisdiction to entertain, determine and grant reliefs prayed for in paragraphs 1 and 2 of the statement of claim is a judgment or order that can be stayed. It should be borne in mind that at the stage when a court declares that it has no jurisdiction or has jurisdiction in a matter it has not entered into the determination of the rights of the parties. If it has heard evidence beside the evidence on the issue of jurisdiction, it has not assessed and evaluated the evidence to enable it determine the rights of the parties and or grant or refuse the reliefs claimed.
It is saying at that stage that it is incompetent to entertain, hear, and determine the case or that it is competent to hear and determine the case.
If it declares that it has no jurisdiction and is incompetent to hear and determine the case that is a complete decision in itself. It means that the court cannot proceed to hear evidence and determine the rights of the parties in the case. There is nothing in the decision calling for enforcement by any of the parties. So there is nothing to be executed and there is nothing to be stayed.
What then does execution mean It is defined in Stroud’s Judicial Dictionary, 4th Edition, Vol. 2, page 965 as follows:
“Execution, execution, and signified in law the obtaining of actual possession of anything acquired by judgment of law, or by a fine executory levied, whether it be by the sheriff or by the entry of the party” (Co Lith 154a). “Execution is, where judgment is given in any action that the plaintiff shall recover the land, debit or damages as the case is”
(Terms de law Ley). Execution means quite simply, the process for enforcing or giving effect to the judgment of the court’ (Per Lord Denning in Re Overseas Aviation Engineering (G.B.) (1963) Ch. 24).”
An application for a stay of execution postulates that the party applying has lost the action or some part of the action (See Construzioni General Farsura Cogefar-S. P. A. v. Nigerian Ports Authority 12 S.C. 107 at 112-113 (1972)).
A stay of an order or judgment merely arrests further action by the court itself in the suit. When therefore as in the instant appeal the court declares that the Federal High Court has no jurisdiction to entertain the claim, that brings any action the court could take in the suit to an end automatically and there exist no where any further action that could be arrested by the “stay.”
There is therefore nothing to execute and nothing to stay.
I therefore agree with learned counsel for the appellant that the application was misconceived. The appeal succeeds and it is hereby allowed. The decision of the Court of Appeal is hereby set aside and in its stead it is hereby ordered that the motion be dismissed for being misconceived.
The appellant shall have costs in this appeal fixed at N500.00.

NNAMANI, J .S.C.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Obaseki, J.S.C. and I entirely agree with his reasoning and conclusions. I also take note of the fact that the Court of Appeal held that the Federal High Court had no jurisdiction in respect of the Respondent’s claims I and II. This was a declaratory judgment and not an executory one. There being nothing to execute, there was nothing on which the Court of Appeal could have granted the stay of execution. I endorse all the orders made by my learned brother, Obaseki, J.S.C.

KARIBI-WHYTE, J .S. C.: I have had the privilege of reading the judgment of my learned brother, Obaseki, J .S. C., in this appeal. I agree entirely with the reasoning therein that the Court of Appeal having held that the Federal High Court had no jurisdiction in respect of claims 1 and 2, there was nothing in their judgment to execute and in respect of which a stay of execution could be granted. The Court of Appeal was therefore wrong to have granted the stay of execution asked for by the Respondent. I therefore agree that the appeal of the appellant succeeds.
I adopt as mine all the reasons given by my learned brother, Obaseki, J.S.C., for allowing the appeal since I agree with all of them. I also allow the appeal.
Appellant shall have costs in this appeal assessed at N500.00.

OPUTA, J.S.C.: I have had the privilege of a preview in draft of the lead judgment just delivered by my noble and learned brother, Obaseki, J.S.C., and I am in complete agreement with his reasoning and conclusion.
This appeal seems to be the third facet of a three cornered fight between the parties, a fight which arose from the decision of the Court of Appeal that:
“The Federal High Court has no jurisdiction to entertain, determine and grant the relief, the Respondent claimed in paragraphs 1 and 2 of the Respondent’s claim either separately or in combination with the other aspects of the Respondent’s claim in other paragraphs notwithstanding the alleged violation of the fundamental rights guaranteed by section 33(1) of the Constitution.”
Notwithstanding the above decision, the Court of Appeal went ahead and granted the plaintiff/Respondent’s other claims which definitely arose out of his deposition and detention and were thus very closely linked with, incidental and subsidiary to his two main and principal claims:
1. the quashing of the deposition Order issued against him, and 2. a declaration that he is still the Emir of Muri.
The plaintiff appealed and the Defendant cross-appealed.
This appeal and cross-appeal formed the 1st and 2nd facets of the continuing struggle between the parties. The third facet was sparked off by the grant of a stay of execution (of its Order in respect of the plaintiffs claims 1 and 2) by the Court of Appeal at the instance of the plaintiff.
Now having held that the High Court had no jurisdiction to entertain the plaintiffs claims 1 and 2 dealing with the plaintiff’s deposition and subsequent detention, one wonders the reasoning behind the grant of a stay of execution. The deposition was a completed transaction so was the detention. There was an appeal against both Orders. The result of that appeal will be either to confirm the judgment of the Court of Appeal or to reverse it. It is the judgment of the Supreme Court in the main appeal of the plaintiff that can make any difference to his deposition or detention not a stay of execution for there was nothing to stay.
Incidentally, the Supreme Court dismissed the plaintiffs appeal on the technical but radical and substantial ground that he approached the wrong court  the Federal High Court, Kano which lacked both the “geographical” and the “legal” jurisdiction to entertain the plaintiff’s claims Nos. 1 and 2. As was stated in the lead judgment, this third facet of the legal tussle between the parties has been overtaken by the judgment in the main appeal. The stay of execution had become a dead issue. The life of an Order for stay pending appeal expires on the hearing of that appeal.
But can there really be a stay of execution of a judgment “that the court below had no jurisdiction to entertain the case” The answer should be a positive and unhesitating capital NO. The grant of such an Order is a futile exercise because there was nothing to execute anyway.
Also a declaration simplifier is a solemn affirmation of a state or status by a court. That in itself is a complete relief which is not executory. An Order has to be executory before its anticipated execution can be stayed. A declaration that the trial court had no jurisdiction cannot be stayed on any supposed “good and arguable point or points of law” or on any supposed “exceptional circumstances.”
Execution is really the last state of a suit, the final process, whereby the winning party reaps the benefit of the judgment in his favour by obtaining possession of anything adjudged to belong to him by the Court. In this case, the declaration that the trial Federal High Court had no jurisdiction to entertain the plaintiff’s claims Nos. 1 and 2 had not adjudged anything as belonging to the Defendant. The Defendant cannot therefore levy any execution and there cannot be a stay of execution of any Order which no execution can effectively be levied.
The application for stay by the Plaintiff was misconceived and the grant of that application by the Court of Appeal was, with respect, also misconceived and wrong.
In the final result and for the reasons given above and for the fuller reasons in the lead judgment of my learned brother, Obaseki, J.S.C., which I now adopt as mine, I, too will allow the Defendant’s appeal, set aside the Order of the Court of Appeal and award costs of N500.00 to the appellant.

BELGORE, J.S.C.: The prayer for perpetual injunction having been overtaken by events, is hereby allowed.

AGBAJE, J .S.C.: On the issue of stay of execution I have had the opportunity of reading in draft the lead judgment just read by my learned brother,Obaseki, J.S.C. I agree entirely with his reasoning and conclusion. I abide by all the consequential orders in his judgment.

NNAEMEKA-AGU, J.S.C. The main issue in this appeal on which I wish to express an opinion is the first issue which, put simply, raises the question whether a declaration by the Court of Appeal, Jos Division, that the Federal High Court, sitting at Kano, had no jurisdiction to entertain the suit before it because it raises a chieftaincy question which is not a cause or matter cognizable by the Federal High Court, is a judgment of such a nature that it could have been stayed by the Court of Appeal.                        .
On the second issue, let me say straight away that even if I come to the conclusion that a stay of execution is an appropriate remedy for such a judgment, I entirely agree with my learned brother, Obaseki, J.S.C., that for the reasons so amply stated in his lead judgment the application for a stay of execution would have still been refused on the ground that no special circumstances have been shown why a stay should have been ordered.
I regard it as now perfectly settled that the court will not, at the instance of an unsuccessful party, make a practice of depriving a successful litigant of the fruits of his successful litigation, pending an appeal, unless special circumstances have been shown. This is the result of all the cases: see for example: Vaswani Trading Co. v. Savalakh & Co. (1972) 1 All N.L.R. (Pt.2) 483. Balogun v. Balogun(1969) 1 All N.L.R. 349. Utilgas Nigerian Overseas Co. Ltd. v. Pan African Bank Co. Ltd. (1974) 1 All N.L.R. (Pt.247.)
As pointed out by the learned counsel for the appellant, paragraphs 8 and 9 of the counter affidavit evidence before the Court of Appeal raised two vital points namely that
“8 If a new Emir of Muri is appointed and the Respondent eventually wins his appeal to the Supreme Court and the original action in the trial court, the new Emir of Muri would vacate the office; and
9. That the Respondent would not suffer any injury if a new Emir of Muri is appointed as he, the Respondent can always regain his office upon a successful prosecution of his appeal in the Supreme Court.”
It does not appear from the record that there was any further affidavit or any other material to contradict the above positive depositions of the appellant who was the Respondent to the application. These facts must, therefore, be deemed to have been established. And, if they were, there would be no basis for an order of stay of execution. With respects, it would have been obvious to the respectful Justices of the Court of Appeal that when it was shown from the uncontradicted affidavit evidence before them that there could be a return to the status quo if the applicant was successful in his appeal, the basis for grant of a stay of execution was gone unless and until that assertion was displaced, if it could be. Impossibility of return to this situation was, in fact, one of the conditions adverted to at page 487 of Vaswani’s Case (supra). I must emphasize in this regard that, like all other preservative orders, the raison d’ etre of all orders for a stay of execution is that unless the order is made an irretrievable and irrevocable situation will arise which will result in a successful appellant not being able to reap the fruits of the judgment in his favour if he succeeds in the appeal. Conversely, when it is shown that this situation will not arise no order of stay of execution should be made.
The first and crucial question is whether the Court of Appeal was right to have granted a stay of execution of its own judgment declaring that the Federal High Court had no jurisdiction to determine claims numbered 1 and 2 in the plaintiff’s claim. They so held because those claims raise a chieftaincy question over which jurisdiction did not lie in that Court but in the High Court of the State. The contentions of the appellant are that the court lacked the vires to stay such a judgment because it was declaratory of the fact that the trial court had no jurisdiction, and so, there was nothing to stay.
In fairness to the learned Justices of the Court of Appeal, I wish to point out that this issue was not raised before, or decided by the Court of Appeal. But being of the nature of an issue of jurisdiction, I must consider it. This is because if the judgment/order is not of a type that could be stayed that is the end of the matter. Having observed that it was not argued, I must state that their Lordships proceeded on the assumption that every judgment of a court of competent jurisdiction could be executed and that such an execution could be stayed.
This is far from the true position. For, as I shall show anon, certain types of judgments are not capable of execution: and only those judgments which can be executed can be stayed. One of those types of judgments which cannot be executed is an interlocutory judgment. The Federal Supreme Court in F. Afuwape and Ors v. E. A. Shodipe and Ors. (1957) 2 F. S. C. 62, at p. 64; (1957) S. C. N. L. R. 265 at 267-268 referring to the interlocutory judgment against the 1st to 7th Defendants, said:
“The judgment of the Court below does not at once affect the status of the parties, neither does it finally dispose of their rights, since it leaves undecided the very point at issue, namely whether there would be partition or sale. Again nothing can be done and no execution can proceed without further reference to the court. ”
So, much as nobody can rightly deny that many interlocutory judgments are judgments/orders in law in that they are decisions of courts on a question or questions at issue between the parties to a proceeding properly before the court (for which, see Vol. 22 Halsbury’s Laws of England (3rd Edn.) p. 740), yet there are certain types of judgments that cannot be executed.” In the case of Akunnia v. Attorney-General of Anambra State (1977) 5 SC. 161,at p. 177, this Court came to the same conclusion where it drew a distinction between an executory and a declaratory judgment. Both must be obeyed but it is only the former that can be executed: such an execution may be stayed. The question is whether the judgment in this case is among those that are capable of execution.
Now what is the meaning of execution I think execution simply means the process whereby a judgment or order of a court of law is enforced or given effect to according to law. Our Sheriffs and Civil Process Act (Cap. 189) Laws of the Federation, 1958 deals elaborately with those processes for execution that are recognized at law. Just as judgments can often be executed according to the provisions of that Act or the corresponding laws of a State, it is only those judgments that are capable of execution that their execution can be stayed.
I therefore wish to begin my consideration of the main issue raised by this appeal by pointing out that although every judgment of a court must be obeyed and is effective from the date of its delivery or from such a date as the judgment itself appoints, the method of enforcement of a particular judgment depends upon the type of judgment.
In sum
(i)   A judgment/order for payment of money may be enforced by a writ of fieri facias, garnishee proceedings, a charging order, a writ of sequestration or an order of committal on a judgment debtor’s summons.
(ii)  A judgment for possession of land may be enforced by a writ of possession, a writ of sequestration or a committal order.
(iii) A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution of their value, a writ of sequestration or writ of committal.
(iv) A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person.
For these see sections 20, 24, 25, 35, 38, 44, 55, 57, 58, 65, 82 and 83 of the Sheriffs and Civil Process Act (Cap. 189) Laws of the Federation
1958. Outside those methods of execution contained in the Sheriffs and Civil Process Act and Laws, mention may be made of other special forms of execution created by different statutes. Examples are decrees of dissolution of partnerships and winding-up of companies and adjudication in bankruptcy. Hence under statutes, these constitute execution stricti sensu. In equity, however, equitable execution by means of appointment of a receiver, supplemented, where necessary, by an order of injunction is also applicable. “Execution” includes both legal execution, stricti sensu and equitable execution: Blackman v. Fysh (1892) 3 Ch. 209 at p. 217. Outside these means of execution and some auxiliary processes which aid them, there is no other form of execution. And when a Defendant applies and is granted a stay of execution, it is one of the above processes that is stayed.
Conversely where none of the above processes can be applied, there can be no stay of execution.
From the above points and principles it can be seen that although all courts of law in Nigeria have power to give mere declaratory reliefs by direct provisions in the Rules applicable in Lagos, Bendel and Western States, and by implication of English law in the Eastern and Northern States not all those bare declarations are capable of immediate execution. This is because a bare declaration which is neither positive nor accompanied by a consequential order may turn out to be incapable of immediate execution. For it is sometimes only when there is a positive order disobedience to which can be punished by committal, or an accompanying executory order and the Defendant fails to obey it that the coercive power of court can readily be invoked, without further reference to court, as a judicial sanction, by means of the appropriate means of execution. But let me not be misunderstood to say that a mere declaratory relief is useless or could be ignored. On the contrary, every judgment of court ought to be obeyed until it is set aside or declared a nullity. See on this Greffith Street: Principles of Administrative Law (4th Edn.) p. 241. In particular, as against a State functionary, a pronouncement on a right, with or without a sanction, is enough and is expected to be instantly obeyed, the underlying principle in all civilized societies being that a coercive sanction against a government is unnecessary because it must obey any judgment of its own court.
What then is the position where, as in the present case, the judgment or order is in the nature of a declination of jurisdiction All that the Court of Appeal decided on the point is that the Federal High Court had no jurisdiction to entertain claims numbered 1 and 2. It appears to me that, subject to appeal, that decision stands and must be obeyed and respected until it is set aside on appeal. But that is besides the point. To say that an order must be obeyed and respected is one thing; and to say that it is capable of execution which can be stayed is quite another. In my opinion, as the Court of Appeal merely declared that the Federal High Court had no jurisdiction to entertain the suit, which declaration is negative in form, there is nothing to execute just as there is no execution to be stayed. As Denning, LJ., said in Barnard v. National Dock Labour Board (1953) 2 Q.B. 18, at p. 41:
“I know of no limit to the power of the court to grant a declaration except such limit as it may impose upon itself ”
It is a matter of commonsense that when a court declines, or is declared to be without, jurisdiction any enforcement action against such a decision must of necessity be against the court itself rather than against the goods or persons of the unsuccessful party. Such a coercive action against the court itself as the very fountain of judicial justice is not the contemplation of the law of execution. There is therefore great force in the argument of the learned counsel for the appellant that the declaration of want of jurisdiction is not capable of execution and so cannot be stayed. I agree too that the Respondent’s remedy, if at all, lay in an application for injunction.
For the above reasons and the fuller reasons contained in the judgment of my learned brother, Obaseki, J.S.C., I agree that the appeal succeeds,and is allowed.
I subscribe to the orders made by him.

 

Appearances

Tayo Oyetibo ( with him, Ndubuisi Agetu and E. D. Audu, Director of Civil Litigation, Gongola State Ministry of Justice) For Appellant

 

AND

Brown Peterside, S.A.N., ( with him, Chief Ayoola Akomolafe and Charles Obishai) For Respondent