JUDGMENT AND ORDER - STAY OF EXECUTION OF JUDGMENT - Whether a party can apply for stay of execution of a judgment in the absence of a pending competent appeal

 

 

IN RE: THE SHERIFF, HIGH COURT OF JUSTICE RIVERS STATE, PORT HARCOURT & ANOR (2017) LPELR-42509(CA)

 "The second limb of the objection is that as at the time of filing the Motion for stay of execution by the Applicant on the 5th March, 2014, there was no pending appeal which absolutely rendered their said Motion filed pending appeal incompetent. To resolve this, it may be necessary hereat to beam on the decision in Intercontractors vs. UAC (1988) NWLR Part 76 page 303, per Karibi-Whyte, J.S.C; where it was stated that every judgment takes effect on pronouncement. A Judgment Debtor seeking to stay the execution must show that he is challenging the judgment, or is asking for time to comply with the terms of the judgment. If it is a challenge of the judgment, a Notice of Appeal ought to have been filed, or will, on undertaking, be filed. See Oladapo V. ACB (1951) 13 WACA 110. See also the decision of this Court in Shinning Star Nigeria Ltd & anor vs. A. K. S. Steel Nigeria Ltd & ors (2010) LPELR CA/L/558M/2009, per Saulawa, J.C.A; where the Supreme Court case of Oladapo vs. ACB (supra) was referred to. It was recognised that although the general principle is that for an application for stay of execution or proceedings to be worthy of being granted, it must be predicated upon certain grounds which include that there must have been filed a valid and pending appeal, however, an application for stay could be granted in exceptional circumstances without any pending appeal.
Further, in the case of Nigerian Agricultural Co-operative Bank Ltd. vs. Ozoemelam (2016) LPELR-26051 (SC), the Supreme Court, per Ngwuta, J.S.C; reiterated the principle that an application for stay of execution pending the determination of appeal presupposes that an appeal had been filed before or simultaneously with the application. After all, a major consideration in the application is whether or not there are arguable grounds of appeal. Be that as it may; in exceptional or appropriate circumstances, the order for stay may be granted when the appeal had not been lodged upon an undertaking to file the Notice of Appeal without delay. See NDLEA vs. Okorodudu (1997) 3 NWLR Part 492 page 221; Fatoyinbo vs. Osadeyi (2002) 5 SC Part 11 page 1.
All these established that even with or without a pending Notice of Appeal, an application for stay of execution can be considered by the Court where there is an undertaking by the Applicant to file the Notice or there is already pending, an application for leave to appeal or for extension of time to appeal which is a clear manifestation of the Applicant's eagerness or intention or a seeming undertaking to file the Notice of Appeal the moment the order of the Court granting leave or extension of time to appeal is made therein.
In the instant application, the Applicant in paragraph 10 of its 3rd Further Affidavit in support of this Motion filed on 14/11/2016 averred that on the 31st October, 2016, and consequent upon the extension of time to appeal against the judgment of the lower Court granted by this Court, the Applicant filed a Notice of Appeal on the 1st November, 2016 attached as Exhibit "N" thereto.
What matters is the state of events at the time of considering the application or granting the order for stay of execution. At the time of consideration of this application, there was already filed, a Notice of Appeal by the Applicant pending before his Court.
In Nwabueze vs. Nwosu (1988) NWLR Part 88 page 257, the Supreme Court held the Court has discretion to grant stay of execution on being satisfied that there are exceptional circumstances which warrant the exercise of the Court's discretion in the application's favour. This is so whether there is an appeal pending or not.
All these evidently emasculated the contentions of the 1st Respondent under the second limb of its objection, and, as such, this Court is presented with no further option than to overrule the preliminary objection raised by it. Accordingly, the preliminary objection raised by the 1st Respondent is hereby disallowed."   Per ORJI-ABADUA ,J.C.A (Pp. 21-25 paras. F)