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THERE CANNOT BE A STAY AGAINST A DECLARATORY ORDER

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In my opinion, there cannot be a stay of execution of a declaratory order or judgment. The contentions of Chief Benson for the respondents has not shown that it is a conceptual possibility. A defendant who has filed an appeal against a declaratory judgment or order is not entitled to apply for a stay of execution of that judgment or order. This is because a declaratory judgment or order has no coercive effect and threatens no one.

— Karibi-Whyte JSC. Okoya & Ors. V. S. Santilli & Ors. ( SC.206/1989, 23 MAR 1990)

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stay of execution

ENTRY OF APPEAL IS NOT A REQUIREMENT TO CONSIDER MOTION FOR STAY; AN APPEAL IS DEEMED TO BE ENTERED WHERE THE RECORD OF PROCEEDINGS HAS BEEN RECEIVED BY THE APPEAL COURT

The counsel for the judgment creditor/respondent has also contended that no appeal has been entered before the court of appeal. Let me quickly say that entry of appeal is not one of the requirements for consideration of motion for stay of execution. By the provision of Order 4 rule 10, Court of Appeal Rules 2016, an appeal shall be deemed to have been entered in the Court of Appeal when the record of proceedings in the court below had been received in the Registry of the Court of Appeal. By the provision of Order 4 rule 11 Court of Appeal Rules 2016, after an appeal has been entered and until it has been finally disposed of, the Court shall be seized of the whole of the proceedings as between the parties thereto, and except as may be otherwise provided in the Rules, every application therein shall be made to the Court of Appeal and not to the trial Court, but any application may be filed in the trial Court for transmission to the Court of Appeal. In the instant case, the present application is competent since there is an appeal filed though not entered in the Court of Appeal. If an appeal has been entered any complaint regarding steps taken towards the enforcement of the judgment appealed against or application for stay could only be ventilated in the Court of Appeal. See I.B.W.A. Ltd. v. Pavex Int’l Co. (Nig.) Ltd. (2000) 7 NWLR (Pt.663) 105.

— S. Kado J. Ayangbade v. UBA (NICN/YL/05M/2020, 9th February 2021)

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NO APPEAL HAS BEEN LODGED; STAY OF EXECUTION CANNOT BE GRANTED

On issue of filing of appeal or entry of appeal before the court of appeal, the law is well settled that an application for stay of proceeding or stay of execution will not be entertained unless an appeal has been lodged. In other words, the jurisdiction to stay execution of a judgment can only be exercised pending a valid appeal. In this case, after the Court of Appeal struck out the applicant’s notice of appeal and reversed the leave to appeal, there was nothing on appeal existing in the eyes of the law as at 27/11/2020. This means that whatever action taken in respect of the struck out notice of appeal has also gone and no more in existence to have life. In other words, in the absence of a pending appeal (and indeed a valid motion for leave to appeal) the Court would not have jurisdiction to entertain application for stay of execution. See NDLEA v. Okorodudu (1997) 3 NWLR (Pt.492) 221; Fatoyinbo v. Osadeyi (2002) 11 NWLR (Pt. 778) 384, Ogunseinde v. Societe Generale Bank Ltd. [2018] 9 NWLR (Pt.1624) 230.

— S. Kado J. Ayangbade v. UBA (NICN/YL/05M/2020, 9th February 2021)

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THE GRANT OF STAY OF EXECUTION IS NOT AUTOMATIC

It is a well settled position of the law that an appeal against a decision will not operate as an automatic stay of execution against such judgment. The grant or refusal of an application for stay of execution will always depend on consideration of the facts in a given case under consideration. It is trite law that where the judgment of a court of competent jurisdiction is not manifestly illegal or wrong, the judgment appealed against would be presumed to be correct or rightly made until the contrary is proved or established. For this reason, the court will not ordinarily make a practice of denying a successful litigant of the fruits of his success unless under very special circumstances. See In Re: Diamond Bank Ltd. (2002) 17 NWLR (Pt.795) 120.

— S. Kado J. Ayangbade v. UBA (NICN/YL/05M/2020, 9th February 2021)

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BECAUSE THERE ARE ARGUABLE GROUNDS OF APPEAL DOES NOT GRANT AUTOMATIC STAY

The fact that there are arguable grounds of appeal does not automatically entitle an applicant to the grant of a stay, particularly where the res is money. The applicant must still show that there are strong reasons for granting a stay of execution. The issue of balance of convenience is also such reason. The applicant must come to equity with clean hands. He must make a full and frank disclosure. See S.P.D.C. Nig. Ltd. v. Okei (2007) 17 NWLR (Pt. 1007) 1; Fasel Services Ltd. v. N.P.A. (2001) 11 NWLR (Pt. 723) 35; F.C.M.B. v. A.I.B. (Nig.) Plc (2000) 8 NWLR (Pt. 667) 42. The granting of stay of execution of judgment is subject to the discretion of the court which must be exercised judicially and judiciously based on the facts of each case. Apart from showing arguable points of law, there is also the question of the nature of the subject matter in dispute, can maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case or not. There is also the question of if the appeal succeeds, can the applicant be able to reap the benefit of judgment on appeal. Where the judgment is in respect of money, whether there is a reasonable probability of recovering the money back from the respondent if the appeal succeeds. I shall quickly add that poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the applicant of reaping benefit of the decision of the court on appeal.

— S. Kado J. Ayangbade v. UBA (NICN/YL/05M/2020, 9th February 2021)

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PARTY APPLYING FOR STAY OF EXECUTION SHOULD SATISFY THE COURT

It is settled law that the onus is on the party applying for a stay of execution to satisfy the court that in the peculiar circumstance of his case a refusal of a stay would be unjust and inequitable. The case of Balogun v. Balogun (1969) 1 All NLR 349 coram Coker, Madarikan and Udoma J.J. S.C. appears to me to be very apposite in this particular case. In the judgment of the court delivered by Coker J.S.C. at page 351, the court observed that:- “We are in full agreement with the principle that in order to obtain a stay of execution of a judgment against a successful party an applicant must show substantial reasons to warrant a deprivation of the successful party of the fruits of his judgment by the court. We are in no doubt whatsoever that where grounds exist on the motion suggesting a substantial issue of law to be decided on the appeal in an area in which the law is to some extent recondite and where either side may have a decision in his favour such substantial grounds as would warrant an interference clearly exist.”

— O. Kolawole JCA. Ladoke & Ors. V. Olobayo & Anor. (CA/L/137M/92 , 17 July 1992)

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BEFORE STAY OF EXECUTION IS GRANTED, THERE MUST BE SUBSTANTIAL ISSUE OF LAW DISPUTED

Similarly, in considering whether a stay of execution should be granted pending appeal the chances of the applicants’ success on appeal must weigh heavily on the court having regard to the strength of the grounds of appeal. In so doing, it is proper to bear in mind that a substantial and arguable ground of law on appeal is a collateral circumstance worthy of consideration in deciding whether to grant a stay of execution or not. In Martins v. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt.74) 75 Nnamani J.S.C. observed at page 83 G-H as follows:- “The court’s discretion to grant stay of execution must be exercised judiciously and it would be so exercised where it is shown that the appeal involves substantial points of law necessitating the parties and issue being in status quo until the legal issues are resolved- It is clear that this Court would consider granting a stay of execution where as Coker J.S.C. put it (in) Vaswani’s case “the grounds of appeal filed do raise vital issues of law and there are substantial issues to be argued on them as they are.” The late Justice of the Supreme Court observed further at page 83/84 that:- “I am not unaware of the decision of this Court in which the scope of this case appears to have been restricted. This is Okafor v. Nnaife (1987) 4 NWLR (Pt.64), 129. With all respect, I think this court was swayed in the Naife case by the facts of that case which involved continuous acts of trespass. In a case in which a substantial point of law, such as on jurisdiction, does arise Balogun’s case would still have full force.”

— O. Kolawole JCA. Ladoke & Ors. V. Olobayo & Anor. (CA/L/137M/92 , 17 July 1992)