Nigerian cases on stay of execution

Nigerian cases on Stay of Execution (Rationes decidendi)

Nigerian cases on Stay of Execution

Below are some rationes decidendi from cases about or relating to the stay of execution in Nigeria. A stay of Execution is an order by a court to temporarily suspend another court order or judgement.

Presupposition of Stay of Execution

University of Agric., Makurdi v. Ogwuche (2000) 12 NWLR (Pt. 681) 360

A stay of execution in its connotation presupposes that there is a subsisting competent judgment which execution has to be stayed. But the court cannot stay execution of a judgment that is yet to be given. The grounding of stay of execution is coterminous with the pendency of an appeal and the appellant has to apply for it, as it is not as a matter of right. Besides, it underscores the presence of a valid notice of appeal containing competent grounds in the matter.

Effect of a stay of Execution

SPDC (NIG) LTD v. AMADI & ORS (2011) LPELR-3204(SC)

“Executory judgments on the other hand are stayed. In considering an application for stay of execution or injunction the grounds of appeal should not be taken in isolation, rather it is the effect of refusal of the application on the appellant if he subsequently wins the appeal that is of utmost importance. A stay of execution stops temporarily the beneficiary of the judgment from enjoying the fruits of the judgment while the appeal is being heard. It is usually granted before the hearing of the appeal and stays in force right through the hearing of the appeal. The aim being to protect the RES from destruction, thereby avoiding a situation where the court hearing the appeal is presented with a fait accompli. A stay of execution would be granted if the applicant is able to show special and exceptional reasons.” Per OLABODE RHODES-VIVOUR, JSC

Principle guiding the grant of a Stay of Execution


The application before this Court is for an Order staying the execution of the judgment of the Court below. A stay of execution is an equitable remedy. An Order for stay of execution is a discretionary matter and as with all exercise of discretion, it must be done judiciously and judicially. By virtue of S. 18 of the Court of Appeal Act 2004, the Court of Appeal has jurisdiction to grant or refuse stay of execution of a judgment appealed against, and such grant may be made unconditionally or upon conditions imposed with the judicial discretion of the Court. See also, Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.

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The Court should be mindful when faced with an application for stay of execution to ascertain that such an application is not merely a ploy to stall the proceedings but that the applicant has germane reasons for bringing such an application. This Court per Onalaja J.C.A. has formulated a comprehensive list of principles to serve as beacons to guide the Courts, be it of first instance or an appellate Court in considering the issue of stay of execution. See P.H.M.B v. Utomi (1999) 13 NWLR (Pt. 636) P. 572 at 574-575,

The locus classicus in Nigeria is Vaswani Trading Co. Ltd v. Savalakh & Co (1972) All NLR 922; (1972) 12 SC 50. See also Ajomale v. Yaduat (2) 1991 5 NWLR (Pt.191) Pg.266; Akilu v. Oduntan & Ors (1991) 2 NWLR (Pt.171) Pg.1. The following principles have been established in the long line of cases.

“1. The Courts have the unimpeded discretion to grant or refuse a stay. In this and in all other instances of discretion, the Court is bound to exercise the discretion both judicially and judiciously and not erratically

2. A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the respondent’s equal right to justice is a discretion that is not judicially exercised.

3. A winning plaintiff or party has a right to the fruits of his judgment and the Court will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is entertained.

4. An unsuccessful litigant applying for a stay of execution must show special or exceptional circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay.

5. What will constitute these special or exceptional circumstances vary from case to case. However, such circumstances involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or judgment or foist helplessness or render nugatory any order or orders of the Appellate Court or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally produce a situation in which whatever happens to the case and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.

6. The onus is on the party applying for a stay pending appeal to satisfy the Court that on the peculiar circumstances of his case, a refusal of a stay would be unjust and inequitable.

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7. The Court will grant a stay where its refusal will deprive the appellant of the means of prosecuting the appeal.

8. The chances of the applicant on appeal are important. If the chances are virtually nill, a stay may be refused.

9. The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case.

10. Whether if the appeal succeeds the appellant will not be able to reap the benefits of the judgment on appeal.

11. Whether the judgment is in money and costs and whether there is a remarkable probability of recovering these back from the respondent if the appeal succeeds.

12. Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting the appeal. See also Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Martins v. Nicanner Foods Co. Ltd (1988) 2 NWLR (Pt. 74) 75

In this case, the prayer for stay of execution pending appeal is made to prevent the successful party in this case, the Respondent from reaping the fruits of his success at the trial. It is a serious interruption of the interest of the Respondent and for the Appellant to successfully deny even temporarily, the Respondent of the benefits of this success, the Appellant must have strong reasons- exceptional reasons. There is nothing to show that the Respondent intends to destroy or alienate the res of the substantive suit. In fact, Paragraphs 3 and 11 of the Respondent’s counter affidavit show that the Respondent does not intend to alienate, destroy or restructure the res pending the determination of the appeal, even though the judgment was given in his favour. See Jadesimi v. Aleke (1998) 11 NWLR (Pt.572) 133; A.U Deduwa & Ors v. Emmanuel Amoma Okorodudu & Ors (1974) LPELR-936 (SC).

The onus is on the Applicant to satisfy this Court that in the circumstances, a refusal of stay would be unjust and inequitable. He must show cogent reasons to deny the Respondent enjoyment of his success at the Court below. See Olatunji v. Owena Bank PLC (2008) LPELR-2578 (SC); (2008) 8 NWLR (Pt.1090) 668. There is the necessity of an applicant applying for a stay of execution to demonstrate that his appeal has merit. See T.S.A Industries Ltd v. Kema Investments Ltd (2006) LPELR-3129 (SC). – Per HELEN MORONKEJI OGUNWUMIJU, JCA

What an applicant for stay of execution must prove


An applicant for stay of execution bears the burden of showing that the grant of stay of execution will not result in the determination of the issue subject matter of the appeal, and there will be no injustice to the Respondent -Per Adolphus Godwin Karibi-Whyte, JSC

Can an appeal operate as a stay of execution?

Zenith Intl Bank Ltd. v. Alobu (2017) 4 NWLR (Pt. 1554) 135 – (court of Appeal)

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An appeal, where lodged does not operate as a stay of execution. Until a prayer for stay of execution is made and obtained the judgment creditor is entitled to enforce the judgment.

When a stay of execution will not be granted


“It is settled law that once an execution is completed you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment. Put another way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law which does nothing in vain. In a situation where execution had been levied, the proper application is for an order of Court setting aside the writ of attachment or execution if actual execution had not been carried out. The same principle applies to an order of injunction, either interim, interlocutory or perpetual. It cannot be granted to restrain the carrying out of an already completed act.” – Per WALTER SAMUEL NKANU ONNOGHEN, JSC

Granting a stay of execution


“The grant of stay of execution is entirely within the discretion of the court making the order. For an applicant to be entitled to the exercise of the discretion he must bring his conduct within the legitimate scope of the exercise of discretion. -See Leavis v. Leavis (1921) P.299. Hence, where he is in continuing disobedience of the Order of the Court, I do not conceive it legitimate to consider the exercise of discretion in his favour. – See Gower v. Gower (1938) P. 106. The contumacious behaviour is more egregious and censorious where the Applicant seeks the discretion of the court to endorse such a behaviour.

The Court guards its powers and image jealously. It should therefore be extremely wary in the manner it exposes such image, the diminution of its powers and the enforcement of its authority to public ridicule. In my respectful opinion as no court has an inherent jurisdiction to set aside the exercise of discretion of another except where such exercise has been capricious, or based on extraneous factors, and not following the accepted principles so will the valid exercise of discretion to stay execution not be interfered with.”

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