WHY THE ATTORNEY GENERAL LAGOS STATE IS WRONG ON INTERPRETATION OF COURT OF APPEAL’S JUDGMENT ON HIJAB: MY HUMBLE REJOINDER
By Akeem Kolawole (Esq)
LET me begin by stating that I would have preferred to address my colleague (probably senior) and brother A.O YEKINI ESQ. LLM,B.L,LL.B personally if I have his personal contact. In the absence of that however, I have decided after long consideration to respond to the various legal issues raised in his write up with the hope that this humble submission may get to him.
The decision to author this piece was borne out of sheer love of brotherhood and to further clarify the position of the law on same particularly after reading the press release of our Dear Amir, Dr. Saheed Ashafa.
Now to the gist proper, two issues can be distilled from the submission of my brother A.O YEKINI ESQ. LLM,B.L,LL.B to wit:
1. Whether a judgment of court can be stayed by filing of appeal against the judgment
2. Whether the MERE filing and service of a Stay of Execution can amount to stay of the judgment of court.
I must submit that I will argue the above issues based on what I believe is the present status of the case viz:
1. That LASG has appealed the judgment of the Court of Appeal
2. That LASG has filed a stay of execution both dated 10th September 2016
On issue 1 – Whether a judgment of court can be stayed by filing of appeal against the judgment
On this, I humbly adopt the submission of my learned brother as same is the position of the law. He submits inter alia :In law, every judgment given by a competent court is presumed to be valid and binding on all authorities and persons until such a decision is set aside. A decision of court does not not become binding only until the appellate process is exhausted. Rather, decisions of court are to be complied with forthwith.
The incoming CJN, Onnoghen, JSC has succinctly puts it in MADAM ABUSATU AGBOGUNLERI V. MR. JOHN DEPO & ORS (2008) LPELR-243(SC) that “a judgment given by a competent court of record in the exercise of its original jurisdiction remains binding on all concerned and command obedience until set aside.” The case law is repleted with this position. May I respectfully refer the learned AG to ODEBUNMI & ANOR. v. OLADIMEJI & ORS.(2012) LPELR-15419(CA); Jimoh Akinfolarin & Ors. Vs. Solomon Oluwole Akinola (1994) 4 SCNJ 30 at 46; OBI V. OJUKWU & ANOR.(2009) LPELR-8511(CA); OBIAGELI v. FCE ZARIA & ORS (2014) LPELR-24010(CA); and the list is endless’
ISSUE 2: Whether the MERE filing and service of a Stay of Execution can amount to stay of the judgment of court.
My brother has argued on this issue that the mere application ‘for a stay of execution has no effect on the judgment already rendered. The judgment remains binding on the State government until wither (sic) the Court of Appeal grants the stay or the Supreme Court reverses the decision of the Court of Appeal”. He further cited section 18 of the Court of Appeal Act.
I humbly submit that the above is a misapplication of the position of the law. While it is trite that mere filing of Appeal does not operate as stay of execution, THE MERE FILING OF A STAY OF EXECUTION (when the other party is aware) technically operates as a stay of execution till the court decides on it. I humbly rely on the Supreme Court decision in Vaswani Trading Company v. Savalakh (1972) 12 SC. 37 where the Supreme court held at page 87 Line 30 that ‘any action or conduct of one or the other of the parties to the action taken whilst an APPLICATION FOR STAY OF EXECUTION is pending in this court for the obvious or subtle purpose of stultifying the exercise by this court of its jurisdiction and indeed its duty to consider the application on the merit, MUST NOT be countenanced by this Court ‘
The meaning of the above is where there is a pending application for stay of execution, the execution of the judgment of court being appealed against must be stayed by the successful party until the court makes pronouncement on the application as stay of execution is to protect the subject matter of the action so that the decision of the court is not rendered nugatory, see Nigerian Bottling Company Plc. v. Alhaji J.A. Buraimoh NWLR Part 976.
Against the background of the foregoing, it is my considered view in line with long line of decided authorities that sadly the judgment of the Court of Appeal, as valid as it is, cannot be executed as a result of the pendency of a Stay of Execution filed by the LASG.