What are interim applications and orders pending appeals?

3 types of applications:

1. Stay of execution
2. Stay of proceedings
3. Injunction pending appeals

Any of these application can be made to stay the execution of judgement pending the outcome of the appeal. The way these are used will depend on the nature of the appeal, or which of the parties want to appeal.

Powers of the court to grant are usually inherent or derived from rules of court

Appeal itself per se does not operate as a stay.

 

Essence of making application

• To preserve the res or subject matter pending the determination of the appeal
• Not to irreversibly alter or change the character of the subject matter before appeal is determined
• The successful party at the end of the case will not have an empty judgement and the appeal is not rendered nugatory
• Status quo ante will be maintained pending determination of appeal

 

In which court can applications pending appeals be made?

• Trial court in the first instance
• If refused the application will be made to court of appeal within 15 days of refusal. See order 6 rule 4 CAR (court of appeal rules) 2016; OJOSIPE V IKALABA (1972) 1 All NLR (Pt. 1). P. 128

 

 Is it possible to make applications pending appeals directly to the court of appeal in the first instance? Yes in special circumstances, or where the appeal has already been entered in the appellate court – This means the lower court cannot be said to take the matter anymore. A matter would be entered at the appeal when all the records has been transferred and a suit number has been given to it.

• See or 6 r.4 CAR 2016; Mobil Oil Ltd v. Agadaigho (1988) 2 NWLR (PT.77) P.383; BASHORUN V CHIEF OF ARMY STAFF (1989) 5 NWLR (PT 123) 590
• See Or 6 r.6 CAR 2016

 

 A condition precedent for applying for any interim order pending appeal is that there must have been a valid notice of appeal filed. See Oladapo v ACB (1951); Intercontractors v UAC (1988)

High court’s jurisdiction to entertain applications pending appeal is limited to anytime after the notice of appeal is filed before it or leave to appeal has been granted.

 

After an appeal has been entered, all applications pending appeals should be made to the court of appeal. See Ogunremi v Dada 1962; COKER V ADEYEMO (1965)

 

STAY OF EXECUTION

Who applies for stay of execution?

Why apply for stay of execution?

• A successful party is entitled to the fruit of his judgment, consequentlythere is need for aggrieved party to preserve the res when appealing or maintain status quo ante
• Failure to ask for stay of execution may render the appeal nugatory or useless if it is eventually successful

 

Note that an appeal simpliciter will not act as a stay of execution – s 17 Court of appeal act., Cap C 36, LFN 2004(as amended in 2010); VASWANI V SAVALAKH(1972) 1 All NLR

Appellant in an appeal must apply for stay of execution for it to be granted.

Where application for stay of execution is pending in court. See Vaswani v Savalakh supra – once a stay of execution is pending and hasn’t been heard, it acts as a bar on the judgement creditor from executing the judgment

 

Power of court to grant stay

 The court have inherent and statutory power to grant stay of execution of its judgment. See OR 54 R 1 & 3 LAG; OR 45 R 1&2 ABJ; S 15 CA act; KIGO (NIG) LTD V HOLMAN BORS (NIG) LTD (1980) 5 – 7 SC P.60

Application for stay can be granted either conditionally or unconditionally – see Vaswani Trading Co v Savalakh& Co. supra

Power of court to grant stay is discretionary. OKAFOR V NNAIFE (1987)  - however this discretion must be exercised judiciously putting into consideration the competing interest of the two parties.

 

PROCEDURE

By motion on notice, supported by affidavit setting forth the groundsupon which the application is sought, written address & attach a valid notice of appeal. O 54 R 1 LAGOS ; OR 45 R 1 Abuja

Application is first made to the lower court except special circumstances makes it impossible or appeal as been entered at the court of appeal – OR 6 R 4  CAR 2016

If application is refused at lower court, another can be made to the court of appeal within 15 days after date of refusal – OR 6 R 3 CAR 

 

CONDITIONS FOR GRANT

1. Exceptional and special or substantial circumstances to warrant stay. Vaswani v Savalakh
2. Grounds of appeal must raise substantial issues of law or recondite point of law. AKANWA V IKEDIFE (1994)

• Further conditions stated in Martins v Nicannar Foods Co ltd (1988) 2 NWLR are: -

3. Chances of the applicant succeeding on appeal.
4. Whether the subject matter of the proceedings will be destroyed or altered.
5. Whether the applicant will be able to reap the benefit of the judgment if appeal succeeds
6. If judgment is for money and costs, whether there’s a reasonable possibility of recovering it back from the judgment creditor/ resp. if appeal succeeds
7. Poverty is not a ground for grant of stay except where the applicant will be deprived of means of prosecuting his appeal
8. Court will consider the balance of convenience and competing rights of the parties. UNION BANK NIG. V ODUSOTE BOOKSTORE (1994) 3 NWLR (PT 331) P. 129

 

Stay of execution is applicable to executory judgements and not declaratory judgements

Stay of execution may be granted conditional or unconditional. S 17 CA ; Coker v Adeyemo (1965) 1 All NLR  p. 120 ; Martins v Nicannar Supra.

Instalmental payment – O 39 R 8 Abuja; OR 35 R 4 LAGOS; S.21 SCPA

Variation of terms/ conditions of stay of execution. See Oyeti v Soremekun (1963) 1 All NLR p. 340

Note special condition for stay in Lagos – O 54 R 2. An applicant applying for stay in Lagos must go and compile the records of appeal within 90 days 

 

EXECUTORY/ DECLARATORY  JUDGMENT AND STAY

Executory judgement – it requires the losing party to do or restrain from doing something upon failure of which execution can be levied against the losing party.

Executory judgment can be stayed from execution.

Declaratory Judgement – proclaims the existence of a legal right / relationship and does not contain any order which may be enforced.

A declaratory judgment cannot be enforced and is incapable of being stayed from execution. See OKOYA V  SANTILLI (1990)

 

STAY OF PROCEEDINGS

Presupposes that an interlocutory order/ ruling is made during the pendency of the action.

When is it applied for?

• To suspend further proceedings in the suit pending the determination of the appeal against an interlocutory order/ruling. See OR 45 Abuja; OR 54 R 1 LAGOS

Who applies for it? – Any of the parties

Need to preserve the res in the pending suit and not render the appeal nugatory

 

Power of court to grant

Power of the court to grant is inherent and statutory OR 54 R 1 & 3 LAGOS; OR 45 R 1& 2 Abuja , S 15 CA Act

Power of court to grant stay of proceedings is discretionary and must be exercised judiciously and judicially not arbitrarily

• Competing rights of parties must be considered
• An appeal by itself does not operate as stay of proceedings. s 17 CA act

 

Procedure

 Bymotion on notice, supported by affidavit setting forth the grounds for the application, written address & attach notice of appeal

Application is made first to the lower court except there are special circumstances which make its impossible to do so. See OR 6 R 4 CAR

Where application is refused by the lower court another is filed at the CA within 15 days after date of refusal . OR 6 R 3 CAR

 Where appeal has been entered application will be filed directly at the court of appeal.

 

CONDITIONS

1. The applicant must establish that he has a valid cause of action in the substantive suit which is the subject matter of the motion for stay
2. There must be a valid pending appeal and arguable grounds of appeal, whichis likely to succeed. See OLAWUNMI V MOHAMMED (1991); SGB NIG LTD V I.F.I LTD (2000)
3. Special & exceptional circumstances must be established e.g. challenge o jurisdiction EZE V OKOLONJI (1997)
4. Discretion should be exercised judicially & judiciously.
5. The competing rights of the parties to justice must be considered
6. Whether the continuation of the action will be oppressive or vexatious to the applicant or would constitute an abuse of court process
7. The conduct of the parties & all the circumstances surrounding the case. See generally AKILU V  FAWEHINMI (NO 2) (1989)

 

Must every interlocutory decision be appealed against?

• Where the interlocutory order will not finally dispose of the case or affect the proceedings. No need to appeal or apply for stay of proceedings. See AROJOYE V UBA (1986); NNPC V ODIDERE ENT. (NIG) LTD (2008)
• A person who is not a party to a case cannot apply for a stay of proceedings. LIYANGE V SANI (1998)

 

Normally when applying to the high court all that is required is motion on notice with affidavit and written address.  

Where application for stay of proceedings is made to CA, some documents need to be exhibited

• Filed notice of appeal (CTC)
• Copy of ruling appealed against
• Copy of ruling or order refusing stay in court below
• Other relevant documents such as the writ of summons, pleadings, record of proceedings, documents tendered

 

INJUNCTIONS PENDING APPEAL

When can it be applied for? Where judgement has been given in the matter and don’t want other party to give effect to the judgment.

Who can apply for it?

1. A plaintiff whose claim has been dismissed can apply for an injunction pending appeal to maintain the status quo pending appeal i.e. preserve the res. ODUTOLA & ANOR V FBN (2000) 4 NWLR; SHODEINDE V REG. TRUSTEES OF AHMADIYA (1980)
2. An unsuccessful applicant for interlocutory injunctions may apply for injunction pending appeal. See OKOYA V SANTILLI (1990) 2 NWLR
3. If a plaintiff is given judgement in respect of a declaratory relief, and the defendant wants to appeal the decision, he can only apply for injunction pending appeal

Note: unlike application for stay of execution and stay of proceedings, applications for injunction can be made to court of appeal directly even though such an application had not been first made to the lower court. Or 4 r 6 CAR 2016; MIL. ADMIN. DELTA STATE V OLU OF WARRI (1998) 8 NWLR

 

PROCEDURE

Application is by motion on notice, supported by affidavit, written address & attached notice of appeal

 Conditions for grant the same as for stay of execution-

1. There must be special or exceptional circumstances warranting the grant of injunction pending appeal.
2. A valid notice of appeal must have been filed. Intercontractors v UAC (1988)
3. Grounds of appeal must raise a recondite or novel point of law
4. Grounds of appeal must raise substantial legal issues to be argued/ determined
5. Peculiar circumstances that may make grant of injunction in equitable
6. Existence of legal rights that needs to be protected
7. Balance of convenience must be established in appellants favour

Note: an interlocutory order declining jurisdiction is a final judgement.

• In an appeal against such decision the proper application pending appeal is application for injunction pending appeal

 

Ethical issues

Preservative orders preserve the res of the case so it would not be moved.

An enrolled order is signed by both the judge and the registrar.