Introduction
A stay of execution is a post-judgment proceeding which connotes the halting, suspension or postponement of the enjoyment of rights declared in favour of a party by a Court pending the determination of an appeal.[1] Its main purpose is to keep the state of affairs in status quo in order to preserve the res, the subject-matter of the action, from being destroyed or wasted pending the determination of an appeal.[2] Generally, a Court has inherent jurisdiction to grant the stay of its judgment that is being challenged on appeal to a higher Court. However, the power to grant or refuse stay of execution pending an appeal lies at the discretion of the Court, which discretion must be exercised judicially and judiciously, bearing in mind the equal or competing rights of the parties.[3] In addition, the court should not deprive a successful litigant of the fruit of his success by ordering a stay of execution of its judgment pending appeal, except in special or exceptional circumstances.[4]
Filing an Application for stay
An applicant who seeks a stay of execution pending the determination of an appeal shall file a motion on notice supported by an affidavit, exhibits and counsel`s written address. This application with all annexures must be properly filed at the court registry, and then application fixed for hearing by the court. In addition, he must have a pending appeal showing that the grounds of his appeal already filed are substantial and pertain to issues on which the law is recondite and that special or exceptional circumstances exist to warrant the grant of stay.[5]
What constitutes special or exceptional circumstances
Special or exceptional circumstances are not exhaustive but depend on a particular case.[6] However, in an application for a stay of money judgment generally, the exceptional circumstances which an applicant has to additionally show are:
(a) That making him satisfy the judgment will make his financial position such that he will not prosecute the appeal.
(b) That if the judgment sum is paid there would be no reasonable probability of getting it back if the appeal succeeds.[7]
It is not the responsibility of the respondent to show that the Applicant has the means to pay. An applicant’s impecuniosity simpliciter is not an exceptional circumstance. It is only where the applicant pleads genuinely that it cannot prosecute the appeal if it pays the judgment debt and it is established that he has no resources to pay that it can be taken as a special circumstances to warrant a stay.[8] Since the relief sought after is an equitable remedy which involves the discretion of the judge, an applicant must furnish the court with sufficient material facts that it will use to exercise its discretion judicially and judiciously. [9]
Evidence to furnish in an application for stay of money judgment
If the applicant is a private person, he must depose to relevant fact, which is full and frank including a complete and accurate account and description of all his income, assets, interests and properties as well as its obligations and liabilities. Also avail the court with his statement of account.[10] Where a company is the applicant, it should prepare an audited annual statement of account. This will show its assets and liabilities. [11]
Finally, possible reasons most applications for stay of money judgment fail, or end with an order directing the applicant to deposit judgment sum into the court.
Judicial precedents have shown that once the applicant fails to place sufficient/ compelling evidence before the court, the court will then tilt towards a seemingly “balanced justice” which will be more seen as catering for the interests of the contending parties. [12] Once the facts placed before the court is not convincing, the court will refuse the application[13] or order a stay of execution of judgment upon the condition that the applicant shall deposit a particular title document with the Chief Registrar[14] or order the judgment sum be deposited in an interest yielding account (even where the applicant did not offer to deposit the judgment money in such an account).[15]
[1] Shodeinde v The Registered Trustees of the Ahmadiyya Movement-in-Islam (1980) 1-2 SC/63/ (2001) FWLR (Pt 581) 1065; T. S. A. Ind. Ltd v Kema Inv. Ltd. (2006) 2 NWLR (Pt 964) 300; Iragbiji v Oyewinle (2013) 13 NWLR (Pt 1372) 566; Integration (Nig.) Ltd. v Zumafon (Nig.) Ltd. (2014) 4 NWLR (Pt 1398) 479.
[2] Alawiye v Ogunsanya (2013) 5 NWLR (Pt 1348) 570.
[3] Soom and others v Jibo and others (2019) LPELR-47774(CA) 5-11 paras B-C.
[4] Okafor and other v Nnaife (1987) 4 NWLR (Pt.64) 129; Union Bank v Odusote Bookstore Ltd (1994) LPELR-3386(SC) 29-30 paras A –C.
[5] Momah v Vab Petroleum (2000) 1 SC 142; Okafor v Nnaife (1987) 4 NWLR (Pt 64) 129.
[6] NNPC v. B.C.E. (2004) 2 NWLR (Pt 858) 484.
[7] Ikere L.G. v. Olumuyiwa Olufemi Auguston Adelusi (2008) All FWLR (Pt. 404) 1534; NNPC V Famfa Oil LTD (2009) 12 NWLR (Pt 1156) 462, Martins v Nicana Food Co Ltd (1988) 2 NWLR (Pt 24); Daily Times of Nigeria Plc v Chief A. S. Kusamotu (2002) 15 NWLR (Pt 790) 401; LPELR-10993 (CA) 21-2 paras F-A.
[8] Guinea Insurance Plc v Monarch Holdings (1996) 3 NWLR (Pt 436) 365 at 370; Okafor v. Nnaife (1987) 9-10 SC 105; NNPC v. Famfa Oil Ltd (2009) 12 NWLR (Pt. 1156) 462; Odedeyi v. Odedeyi (2000) 3 NWLR (Pt 650) 565.
[9] Dongtoe v. Civil Service Commission, Plateatu State (2001) 9 NWLR (Pt 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt 738) 203; In Remawa v. NACBCFC Ltd. (2007) 7 NWLR (Pt 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt 1578) 30.
[10] Owena Mass Transport Co. Ltd and another v City Express Bank Ltd and another (2018) LPELR-45387(CA)
[11] Afe Babalola, Enforcement of Judgments (1st edn IQRA, 2003) 280.
[12] Owena Mass Transport Co. Ltd and another v City Express Bank Ltd and another (2018) LPELR-45387(CA) 6-20 para D.
[13] Babatunde Aribido v Global Formwork Nigeria Ltd HC FCT Oji J, CV\557 \10 (18 June 2010).
[14] Daily Times v Kusamotu (2002) LPELR-10993(CA) 22-23 paras A-F.
[15] Owena Mass Transport Co. Ltd and another v City Express Bank Ltd and another (2018) LPELR-45387(CA); Bon Ltd v Adegoke (2006) LPELR-7599(CA) 17-18 paras. F-E.