WHETHER APPEAL HAS TO BE LODGED BEFORE STAY OF EXECUTION CAN BE GRANTED?

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WHETHER APPEAL HAS TO BE LODGED BEFORE STAY OF EXECUTION CAN BE GRANTED?

by Branham Chima.

Yes.

According to established legal principles, a request to pause legal proceedings or the enforcement of a judgment will not be considered unless an appeal has been formally filed. In simpler terms, the authority to halt the implementation of a judgment can only be used while a legitimate appeal is ongoing. This ensures that there is a legal basis and a proper process in place before any action can be taken to delay or stop the proceedings or execution of a judgment.

This position was highlighted in the case of Ayangbade v. UBA (NICN/YL/05M/2020, 9th February 2021) per Kado J. thus: ‘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.’

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