Effects of Stay of Execution on a Judgement Creditor Who Intends to Realise the Fruits of His Judgement: An Assessment By Adeke Aondongu Abel Esq

Abstract Upon adoption of written addresses, the trial court will evaluate evidence and come up with a decision call judgement. The party who wins would be desirous to reap the fruit of his judgement while the party who loses might want to exercise his constitutional right of appeal and so in order for him to protect the subject matter of litigation pending determination of his appeal he might need to file an application known as stay of execution. The court on it part will consider the competing interest of both parties and exercise its discretion one way or the other. Keywords: Stay of Execution, Applicant, Respondent, Discretion.    

• Introduction

Judgement marks the end of a case in any particular Court, subject of course, to the right of either party to appeal against the judgement to a higher Court. Once judgement has been delivered in favour of a party, the successful party is entitled to reap the benefits of his victory without much ado. There is no further need to notify the judgement debtor before taking steps to enjoy the benefit of the judgement. So, once there is an executory judgement in favour of a party, he can proceed to execute the judgement. However, the unsuccessful party (otherwise known as the judgement debtor) on the other hand, may feel aggrieved by the judgement of the trial Court and decide to appeal against same.[1] If the judgement debtor appeals, then he is deemed to have kept the litigation alive and therefore, there may be need to preserve the rest of litigation. Thus, an application for stay of execution, the Court is called upon to strike a balance between two competing rights of parties to justice- the right of judgement creditor to enjoy the fruits of his success at the litigation on the one hand and the right of the judgement to his constitutional right of appeal on the other hand. This is because unless restrained, the judgement may levy execution of the judgement and, in the process, destroy the res of appeal such that whatever victory the judgement debtor secures from the appellate Court is nugatory.[2] It also important to state that the principles of granting stay of execution pending appeal are similar to the principles for the granting of interlocutory injunctions. This is so because although the two reliefs are different and are made in different circumstances both serve virtually the same purpose, in that both are granted to maintain the status quo.[3]  

• Meaning and Nature of Stay of Execution

In the case of Tukur v Government of Gongola State the Supreme Court viewed stay of execution as an application that is brought by an applicant that has lost an entire action or part of it.[4] As to the nature of stay of execution the judgement of the Court is presumed correct unless strong and special circumstances warrant deciding otherwise. The special circumstances to be taken into account are those which go to the enforcement and not its correctness which is to be determined by taking into account competing rights of parties.[5]An appeal also does not operate as a stay of execution or of proceedings. The party appealing must have to apply.[6] A stay of execution is also not automatic upon filing an appeal.[7]   A party cannot be held to be in disobedience of the order he is appealing against and which he is applying to be stayed.[8] The nature of the stay of execution the Court grants would depend on the facts of each case. It is not in every case where an appeal genuinely raised a substantial issue of jurisdiction of the trial Court that a stay of execution is granted unconditionally. The fairness in doing so has to be borne in mind.[9] Order of stay of execution can only be granted in respect executory judgement. It cannot be granted in respect of a declaratory judgement or order of Court. This is because a stay of execution only prevents the beneficiary of the judgement or order from putting into operation the machinery provided by the law of execution of judgement or order, to resolve the issue if a judgement or order is executory to be put is “is there anything in the judgement/ order in favour of the Respondents which the Respondent could positively cause to be enforced.” If no, it is declaratory.[10] Where a Court grants a litigant a stay of execution, the Appellant is under an obligation to pursue the appeal with utmost diligence. Where he goes to sleep as to neglect compiling the records of appeal within the time prescribed, he does not deserve the continual protection of the Court and the trial Court may discharge the order.[11] Where judgement of the appealed against is executed whilst the motion for stay of execution is pending, the Court is competent to order the setting aside of the writ of execution or attachment and return the parties to status quo. The Court should at all times be master of situations.[12] Finally stay of execution is not to be used to regain possession of premises.[13]

• Special Circumstances in Relation to Grant of a Stay of Execution

Where there is a pending appeal, the special circumstances which have received judicial approval are when execution would:[14]

• Destroy the subject matter of the proceedings;
• Foist upon the Court a situation of complete helplessness: or
• Render nugatory any order or orders of the Appeal Court;
• Paralyse in one way or the other, the exercise by the of his constitutional right or appeal; or
• Provide a situation in which even if the Appellant succeeds in his appeal, there could be no return to the status quo;
• Where the applicant can show that when money is paid, pursuant to a monetary judgement, the claimant will be unable to refund it in a case the appeal succeeds or;
• That the appeal has great merit and to enforce the judgement or in the meantime will be ruinous to the applicant.

Base on the foregoing, it is quite clear that the court will ensure status quo to be maintained if it appears to it that failure to grant an application for stay of execution will jeopardize the subject matter and render the appeal nugatory if the appellant’s appeal succeeds. The significance of maintaining status quo in order to prevent the res from being destroyed was crystalized by Tobi JCA (as he then was) in the case of Lijadu v Lijadu[15] as follows: In an application for stay of execution, the Court has a primary duty to protect the res from being destroyed, annihilated or demolished… this is because if the res is destroyed in the course of litigation before the party gets judgement, then he has no property to make use of in the way he wants as the owner and the direct result in such circumstance is that the victor has in his hand a barren victory, a victory without a difference, an empty victory. He leaves the Court empty handed. In real fact, he leaves the Court in victory without victory. 1.3.1 Appropriate Applicant for Stay of Execution Unlike application for stay of proceedings which may be made by any of the parties, application for stay of execution is usually made by the defendant who lost at the trial. The reason is obvious. It is inconceivable that a plaintiff who losses his case would be applying for stay of execution because, in that case, there would be nothing to execute against him, unless, there is a counter claim against him.[16] 1.3.2 What Constitutes Special Circumstance? The Supreme Court in the case of Vaswani v Savalakh[17] answered the question as to what constitutes “special” circumstances for grant of application for stay of execution as follows: What will constitute “special” or “exceptional” “circumstances” will no doubt vary from case to case. Generally speaking, however, when it is stated that the circumstances or conditions for granting a stay should be special or strong, this involves 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 foist upon the court, especially the Court of Appeal, a situation of complete helplessness or render nugatory  any order or orders of the Court of Appeal or paralyse, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide 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.  

• Effect of stay of Execution on a Judgement Creditor from a Practitioner’s Perspective

Generally, most persons are of the opinion that stay of execution is one of the delay tactics employed by judgement debtors to deny judgement creditors from enjoying the fruits of their judgement. However, it will be humbly submitted that the proponents of this view have erred by failing to put into consideration the fact that the major duty of our Courts today is to do substantial justice by taking into cognizance the competing interest of the parties before exercising its discretion in one way or the other in all applications including stay of execution applications. It is in the light of the foregoing, that in the case of a monetary judgement the Court in a quest to strike a balance and do justice to both the judgement creditor and the judgement debtor, usually grants a conditional stay of execution by directing the judgement debtor to pay the judgement sum into an interest yielding account pending the final determination of the appeal. In this instance it’s partly an execution for the judgement creditor whom will simply apply to Court for the judgement sum to be given to him instead of going through the rigorous process of execution in the event the appeal fails. While on the part of the judgement debtor he can easily access the funds he paid as judgement sum into the account directed by the Court in event his appeal succeeds. This will likewise save him from the dilemma if the application for stay of execution was not granted by the court and the judgement sum he paid to the judgement creditor has already been expended by the judgement creditor, and the judgement creditor has no other financial means to satisfy the judgement debtor in the event his appeal succeeds which is justice for both parties. The aforementioned is in line with the doctrine of justice not being the prerogative of one single individual but rather the privilege for all which was promulgated by Oputa JSC (as he then was) in the case of Godwin Josiah v State[18]where he stated that justice; “ is not a one way traffic. It is not for the appellant alone”. “Justice is not even two-way traffic. It is really three-way traffic-”. Oputa JSC (as he then was) captured this more succinctly again, when stressing equality of the law in the case of Kalu v State[19] where he opined that: “it should one and the same even-handed justice, blind to all disparities in wealth and status, and no respecter of any person.” Conclusion Flowing from the above discussion, it is humbly submitted that stay of execution is a viable judicial tool used by our Court to protect the res pending the final determination of an appeal upon the fulfilment of the condition of the grant of same by an Applicant. And it has a positive effect on the judgement creditor as well as the judgement debtor since the main aim of a stay of execution s to protect the res which is usually the interest of both the judgement creditor and the judgement debtor. Adeke Aondongu Abel Esq Associate, S.M ALSO & CO, Opposite Government House, Damaturu, Yobe State- Nigeria. abeladeke@gmail.com [1]Agaba, J.A and Stanley-Idum, M.M (2015)” Civil Litigation in Nigeria,” Nelag & Company, Lagos, at p.696 [2] Ibid at p.697 [3]Imhanobe, S.O (2014)” civil Litigation in Nigeria,” Imhanobe Law Books Limited, Abuja at p.324 [4] (1988) 1 S.C. 78 [5]Olunloyo v Adeniran (2001) 14 NWLR (pt.734) pg 699 at 709 paragraphs F-G [6] Josiah Cornelius v Ezenwa (1996) 4 NWLR (pt.443) pg 391 at 410 paragraphs D-E [7]Ikere Local Government v OlumuyiwaOlufemiAdelusi (2008) AFWLR (pt404) pg 1534, pargraphs C-D [8]Okoma v Udoh (2002) 1 NWLR (pt.748) pg 438 paragraphs E-G [9]Agbaje v Adelekan (1990) 7 NWLR (pt.164) pg595 at 617 paragraphs C-D [10]Doma v Ogiri(1997) 1 NWLR (pt481) pg 322 paragraphs F-E [11]Dantata v Mohammed (2012) 8 NWLR (t.1302) pg366 at 382 paragraphs B-E [12] UBN v Fajobe (1994) 5 NWLR (pt.344) pg 325 paragraphs H-A [13]Adelaja v Ogunyade (2008)8 NWLR (pt.645) pg 376 paragraph E [14]Olunloyo v Adeniran supra foot note NO. 5 [15] 12 [16]Agaba, J.A and Stanley-idum, M.M opcit at p.698 [17] (i972) 12 S.C 77 [18] (1985) 1 NWLR (pt11) pg125 at 141 [19] (1987) NWLR(pt90) pg503]]>