My One Penny: On Stay of Proceedings Pending Interlocutory Appeal

By Oseme Peremene Anthony, Esq.

1. MICHAEL & ORS v. ACCESS INVESTMENT (NIG) LTD & ORS 

Whether the Court wi grant an application for stay of proceedings pending an appeal filed against an interlocutory decision, the resolution of which will not dispose of the pending appeal

“Again, where the appeal upon which an application for stay of proceedings is predicated is against an interlocutory order, and the interlocutory order appealed against is not one that finally disposed of the case, it would be wrong to stay proceedings because of an appeal lodged against it by an aggrieved party – Arojoye Vs United Bank for Africa Ltd (1986) 2 NWLR (Pt 20) 101 Obinyiruika Vs Aliche (1991) 4 NWLR (Pt 183) 87. It is not in contest that the ruling of this Court on deconsolidation that grieved the third Respondent and in respect of which it filed the application for leave to appeal is an interlocutory decision – Ifediorah Vs Ume (1988) NWLR (Pt 74) 95. The intended interlocutory appeal of the third Respondent against the Ruling will not dispose of this pending appeal, it is thus improper to grant a stay of proceedings – Kabo Air Ltd Vs Inco Beverages Ltd (2003) FWLR (Pt 136) 944, Aregbesola Vs Oyinlola (2008) All FWLR (Pt 436) 2018.”

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2. MICHAEL & ORS v. ACCESS INVESTMENT (NIG) LTD & ORS 

_ – Whether the Court will grant an application for stay of proceedings pending an appeal filed against an interlocutory decision, the resolution of which will not dispose of the pending appeal_

“Again, where the appeal upon which an application for stay of proceedings is predicated is against an interlocutory order, and the interlocutory order appealed against is not one that finally disposed of the case, it would be wrong to stay proceedings because of an appeal lodged against it by an aggrieved party – Arojoye Vs United Bank for Africa Ltd (1986) 2 NWLR (Pt 20) 101 Obinyiruika Vs Aliche (1991) 4 NWLR (Pt 183) 87. It is not in contest that the ruling of this Court on deconsolidation that grieved the third Respondent and in respect of which it filed the application for leave to appeal is an interlocutory decision – Ifediorah Vs Ume (1988) NWLR (Pt 74) 95. The intended interlocutory appeal of the third Respondent against the Ruling will not dispose of this pending appeal, it is thus improper to grant a stay of proceedings – Kabo Air Ltd Vs Inco Beverages Ltd (2003) FWLR (Pt 136) 944, Aregbesola Vs Oyinlola (2008) All FWLR (Pt 436) 2018.”

3. ELOBISI & ORS v. ONYEONWU & ORS (1989) LPELR-20455(CA)

_ – When an application for stay of proceedings pending appeal will arise_

“I must admit that it is not always easy to determine whether to order a stay of proceedings or not. What is not in doubt is that such applications for stay of proceedings are more prevalent in certain situations than others. It is said that the usual cases of application for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the Court pending the outcome of the appeal on the interlocutory decision: see Akilu v. Fawehinmi (No.2) (supra) at page 165.”

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4. ELOBISI & ORS v. ONYEONWU & ORS (1989) LPELR-20455(CA)

_ – When an application for stay of proceedings pending appeal will arise_

“I must admit that it is not always easy to determine whether to order a stay of proceedings or not. What is not in doubt is that such applications for stay of proceedings are more prevalent in certain situations than others. It is said that the usual cases of application for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the Court pending the outcome of the appeal on the interlocutory decision: see Akilu v. Fawehinmi (No.2) (supra) at page 165.”

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5. ELOBISI & ORS v. ONYEONWU & ORS (1989) LPELR-20455(CA)

_ – When an application for stay of proceedings pending appeal will arise_

“I must admit that it is not always easy to determine whether to order a stay of proceedings or not. What is not in doubt is that such applications for stay of proceedings are more prevalent in certain situations than others. It is said that the usual cases of application for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the Court pending the outcome of the appeal on the interlocutory decision: see Akilu v. Fawehinmi (No.2) (supra) at page 165.”

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6. ELOBISI & ORS v. ONYEONWU & ORS (1989) LPELR-20455(CA)

_ – When an application for stay of proceedings pending appeal will arise_

“I must admit that it is not always easy to determine whether to order a stay of proceedings or not. What is not in doubt is that such applications for stay of proceedings are more prevalent in certain situations than others. It is said that the usual cases of application for stay of proceedings arise where a party who has appealed against an interlocutory ruling seeks a stay of proceedings in the matter before the Court pending the outcome of the appeal on the interlocutory decision: see Akilu v. Fawehinmi (No.2) (supra) at page 165.”

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7. DINGYADI & ANOR v. INEC & ORS (2010) LPELR-40142(SC)

_ – When an application for stay of proceedings pending appeal will be granted_

“The Courts had decided that where an interlocutory appeal will finally dispose of the case pending before a lower Court, a stay of proceedings will be granted. Arojoye v. U.B.A. (1986) 2 NWLR pt. 20 pg. 101; Obinyiriuka v. Aliche (1991) 4 NWLR pt. 183 pg. 87.”

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8. JOSIAH CORNELIUS LTD & ORS v. EZENWA (1996) LPELR-1632(SC)

_ – Whether an appeal can operate as a stay of execution_

“The law is clear, that is, that an appeal does not operate as a stay of execution or of proceedings. Any party appealing against the interlocutory decision of a court is under a duty to apply for stay of further proceedings pending appeal if he believes the result of his appeal will affect further proceedings in the matter.”

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9. AUDU v. OWOLABI (2012) LPELR-8012(CA)

_ – Principles governing the exercise of discretion of court in applications to stay proceeding_

“… There is no doubting the fact that there is a
competent pending appeal before us, which gives the needed platform to bring an application for stay of proceedings of the suit at the Lower Court, but that is not all that is needed to ground application for stay of proceedings, as filing of interlocutory
appeal does not and cannot translate to automatic stay of proceedings of the main case at the Lower Court, where the issues canvassed in the interlocutory appeal does not and cannot infringe on the right of the plaintiff to proceed with his claim, nor with the power and jurisdiction of the Court to go on with the substantive case. See the case of EMIR OF KANO V. AGUNDI (supra). Of course, to allow indiscriminate stay of proceedings of causes and matters at the trial Court, simply because an applicant has filed an interlocutory appeal, would amount to granting unfettered judicial space to the filing of mischievous, spurious and frivolous interlocutory appeals with the sole aim of frustrating or delaying
the hearing/determination of cases applicants
would not want to be heard and determined by the trial Court. Authorities replete on when the Appellate Court can exercise its discretion in favour of an application to stay proceedings at the Lower Court, to enable an interlocutory appeal to be disposed of by the Appellate Court, and the case of Registered Trustees of FGC V. Adeyinka (2010) 8 NWLR (Pt.1195) 33 has, quite comprehensively, spelt out what can allow or refuse, the granting of a stay of proceedings. The principles were clearly stated by the Respondent’s counsel as earlier reproduced in this ruling. I hereby reproduce the principles again, to provide a mirror to see through the Applicant’s application in this appeal:
“(a) There must be a competent pending appeal…
(b) The pending appeal must be arguable…
(c) The applicant must establish that there are
special and exceptional circumstances to warrant the grant of the application.
(d) The Court must consider the right of both the applicant and the respondent…
(e) Where an appeal raises issue of Jurisdiction of the Lower Court, this Court will grant an application for stay of proceedings…
(f) Where an action is an abuse of judicial process an application for stay of proceedings would be granted
(g) If the interlocutory order will finally dispose of the case, a stay of proceedings should be granted…
(h) Another important factor is the preservation of the res…
(i) In view of the importance the Court attached to the protection of the fundamental rights entrenched in the Constitution, an application for stay will be granted if a final determination is likely to render the right sought to be protected, null and void.
(j) An application for a stay of proceedings being an equitable remedy, the applicant must place before the Court all material facts to enable the Court consider the application sympathetically.
(k) Where an application for stay of proceedings will unnecessarily delay and prolong proceedings, it will not be granted.
(l) The Court has a discretionary power to exercise in the matter and like every other discretionary power; it must be exercised judicially and judiciously…”
Also in the case of NNPC V. D.E. NIG. LTD.
(supra), this Court held; as follows:
“When an interlocutory order does not finally
dispose of the case, it would be wrong to stay
proceedings because of an aggrieved party. This is because such an order could be made the subject of appeal, if it ultimately becomes necessary, following the final judgment. It saves time and expense to proceed with the case. It is the duty of every Court to eliminate situations which may unnecessarily cause delay in the administration of justice. However, if a successful appeal will put an
end to the proceeding in the trial Court, prudence dictates that a stay of proceedings be granted.”

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10. AUDU v. OWOLABI (2012) LPELR-8012(CA)

_ – Principles governing the exercise of discretion of court in applications to stay proceeding_

“… There is no doubting the fact that there is a
competent pending appeal before us, which gives the needed platform to bring an application for stay of proceedings of the suit at the Lower Court, but that is not all that is needed to ground application for stay of proceedings, as filing of interlocutory
appeal does not and cannot translate to automatic stay of proceedings of the main case at the Lower Court, where the issues canvassed in the interlocutory appeal does not and cannot infringe on the right of the plaintiff to proceed with his claim, nor with the power and jurisdiction of the Court to go on with the substantive case. See the case of EMIR OF KANO V. AGUNDI (supra). Of course, to allow indiscriminate stay of proceedings of causes and matters at the trial Court, simply because an applicant has filed an interlocutory appeal, would amount to granting unfettered judicial space to the filing of mischievous, spurious and frivolous interlocutory appeals with the sole aim of frustrating or delaying
the hearing/determination of cases applicants
would not want to be heard and determined by the trial Court. Authorities replete on when the Appellate Court can exercise its discretion in favour of an application to stay proceedings at the Lower Court, to enable an interlocutory appeal to be disposed of by the Appellate Court, and the case of Registered Trustees of FGC V. Adeyinka (2010) 8 NWLR (Pt.1195) 33 has, quite comprehensively, spelt out what can allow or refuse, the granting of a stay of proceedings. The principles were clearly stated by the Respondent’s counsel as earlier reproduced in this ruling. I hereby reproduce the principles again, to provide a mirror to see through the Applicant’s application in this appeal:
“(a) There must be a competent pending appeal…
(b) The pending appeal must be arguable…
(c) The applicant must establish that there are
special and exceptional circumstances to warrant the grant of the application.
(d) The Court must consider the right of both the applicant and the respondent…
(e) Where an appeal raises issue of Jurisdiction of the Lower Court, this Court will grant an application for stay of proceedings…
(f) Where an action is an abuse of judicial process an application for stay of proceedings would be granted
(g) If the interlocutory order will finally dispose of the case, a stay of proceedings should be granted…
(h) Another important factor is the preservation of the res…
(i) In view of the importance the Court attached to the protection of the fundamental rights entrenched in the Constitution, an application for stay will be granted if a final determination is likely to render the right sought to be protected, null and void.
(j) An application for a stay of proceedings being an equitable remedy, the applicant must place before the Court all material facts to enable the Court consider the application sympathetically.
(k) Where an application for stay of proceedings will unnecessarily delay and prolong proceedings, it will not be granted.
(l) The Court has a discretionary power to exercise in the matter and like every other discretionary power; it must be exercised judicially and judiciously…”
Also in the case of NNPC V. D.E. NIG. LTD.
(supra), this Court held; as follows:
“When an interlocutory order does not finally
dispose of the case, it would be wrong to stay
proceedings because of an aggrieved party. This is because such an order could be made the subject of appeal, if it ultimately becomes necessary, following the final judgment. It saves time and expense to proceed with the case. It is the duty of every Court to eliminate situations which may unnecessarily cause delay in the administration of justice. However, if a successful appeal will put an
end to the proceeding in the trial Court, prudence dictates that a stay of proceedings be granted.”

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11. NIZO (NIG) LTD & ANOR v. ALIYU (2005) LPELR-7533(CA)

_ – General principle governing the exercise of discretion by the Court in applications for stay of proceedings_

“There is no doubt at all as to the state of the law as regards the present application. An application for stay of proceedings may be made by a party who has appealed against the interlocutory decision and seeks a stay of proceedings in the matter before the lower Court, pending the outcome of or determination of the appeal as stated in Kigo (Nig) Ltd. v. Holman Bras (Nig) Ltd. (1980) 5 – 7 SC 60 at 61 and Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264. Application for stay of proceedings pending appeal may also be brought where a final judgment is appealed against.
In such situation, the proceedings that may be appealed are those relating to execution of the final judgment or other steps that relate to the execution as was the case in Shodeinde v. Registered Trustees of Ahmadiyya Movement in Islam (1980) 1-2 SC 163 and, Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 165.
The general guiding principles the Court will take into consideration in the exercise of its discretion to grant or refuse an application for stay of proceedings pending the determination of an appeal are trite. The general guiding principles recognized and applied by Courts is that the applicant seeking the relief for stay of proceedings pending the determination of an appeal, must show there exists special or exceptional circumstances in his case justifying the deprivation of the successful party in an interlocutory or final decision of the right to enjoy the fruits of the victory, even if temporarily, by stay of further proceedings in the matter. See Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 166; Vaswani Trading Co. v. Savalakh

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12. NIZO (NIG) LTD & ANOR v. ALIYU (2005) LPELR-7533(CA)

_ – General principle governing the exercise of discretion by the Court in applications for stay of proceedings_

“There is no doubt at all as to the state of the law as regards the present application. An application for stay of proceedings may be made by a party who has appealed against the interlocutory decision and seeks a stay of proceedings in the matter before the lower Court, pending the outcome of or determination of the appeal as stated in Kigo (Nig) Ltd. v. Holman Bras (Nig) Ltd. (1980) 5 – 7 SC 60 at 61 and Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264. Application for stay of proceedings pending appeal may also be brought where a final judgment is appealed against.
In such situation, the proceedings that may be appealed are those relating to execution of the final judgment or other steps that relate to the execution as was the case in Shodeinde v. Registered Trustees of Ahmadiyya Movement in Islam (1980) 1-2 SC 163 and, Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 165.
The general guiding principles the Court will take into consideration in the exercise of its discretion to grant or refuse an application for stay of proceedings pending the determination of an appeal are trite. The general guiding principles recognized and applied by Courts is that the applicant seeking the relief for stay of proceedings pending the determination of an appeal, must show there exists special or exceptional circumstances in his case justifying the deprivation of the successful party in an interlocutory or final decision of the right to enjoy the fruits of the victory, even if temporarily, by stay of further proceedings in the matter. See Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 166; Vaswani Trading Co. v. Savalakh

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13. NIZO (NIG) LTD & ANOR v. ALIYU (2005) LPELR-7533(CA)

_ – General principle governing the exercise of discretion by the Court in applications for stay of proceedings_

“There is no doubt at all as to the state of the law as regards the present application. An application for stay of proceedings may be made by a party who has appealed against the interlocutory decision and seeks a stay of proceedings in the matter before the lower Court, pending the outcome of or determination of the appeal as stated in Kigo (Nig) Ltd. v. Holman Bras (Nig) Ltd. (1980) 5 – 7 SC 60 at 61 and Jadesimi v. Okotie-Eboh (1986) 1 NWLR (Pt. 16) 264. Application for stay of proceedings pending appeal may also be brought where a final judgment is appealed against.
In such situation, the proceedings that may be appealed are those relating to execution of the final judgment or other steps that relate to the execution as was the case in Shodeinde v. Registered Trustees of Ahmadiyya Movement in Islam (1980) 1-2 SC 163 and, Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 165.
The general guiding principles the Court will take into consideration in the exercise of its discretion to grant or refuse an application for stay of proceedings pending the determination of an appeal are trite. The general guiding principles recognized and applied by Courts is that the applicant seeking the relief for stay of proceedings pending the determination of an appeal, must show there exists special or exceptional circumstances in his case justifying the deprivation of the successful party in an interlocutory or final decision of the right to enjoy the fruits of the victory, even if temporarily, by stay of further proceedings in the matter. See Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 166; Vaswani Trading Co. v. Savalakh

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14. OKEM ENTERPRISES (NIG) LTD & ANOR v. NDIC (2002) LPELR-5995(CA)

_ – General principle governing the exercise of discretion by the Court in applications for stay of proceedings_

“However the second leg of the relief sought by the applicants is for an order staying further proceedings of the said suit. I notice this application was filed almost a year ago. I have once observed in Nigerian Airports Authority v. Aja Enyi (supra) at page 182 – 183 thus: “The order for a stay of proceedings is an antithesis to the speedy hearing of a case. It connotes a punitive element when not desirable on the part of the anxious plaintiff, the hearing of whose claim will be unjustifiably delayed. A plethora of cases lean unfavourably against the grant of a stay of proceedings pending the determination of appeal where the grounds of appeal are lacking in substance, frivolous and grossly incompetent …..” Hence, it is usually regarded as exorbitant judicial exercise in view of the delay that is often associated with such exercise. A stay of proceeding therefore is not granted lightly or on frivolous grounds. An applicant who only engages in a ploy to waste time and deny the respondent the opportunity to have his case heard would not be granted a stay of proceeding of the trial Court. Again, whether or not to grant a stay of proceedings pending an appeal against an interlocutory order depends on a number of factors, bearing in mind the circumstances of each case. However, the most important consideration where an interlocutory order does not finally dispose of the case, it could be wrong to stay proceedings simply because of an appeal which has been lodged against it by an aggrieved party as such an order could be made the subject of appeal, if it ultimately becomes necessary after the final judgment. On the other hand the interlocutory appeal, if successful will automatically put an end to the proceedings in the trial Court, prudence really dictates that a stay of proceedings should be granted. A good example of the latter situation is where the issue of jurisdiction is raised in appeal. The issue of jurisdiction is fundamental and crucial but such issue must be substantial and not raised merely as a ploy to delay, the proceedings. If the trial Court pronounces upon the issue of jurisdiction and holds that it has jurisdiction, proceedings must be stayed to enable this Court look into the substance of such ground of appeal. This is the law: See Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) 710 at 727. I have carefully studied the two grounds of appeal. They are substantial and are arguable. An application to stay further proceedings must disclose first from the affidavit evidence and the exhibited notice of appeal that the grounds are substantial and/or arguable.: See Sodeinde v. Registered Trustees of the Ahmadiyya Movement-in-Islam (1980) 1 – 2 SC 163. It is also a settled principle that the applicant seeking a stay of proceedings pending appeal must show special or exceptional circumstances. If a genuine issue of jurisdiction is raised by an applicant, then he has satisfied a special or exceptional circumstance to warrant the grant of stay of further proceedings pending the determination of his appeal. As I have said before the applicants in the instant case have shown this special or exceptional circumstance. They have raised genuine issue of jurisdiction, not merely as a ploy to delay the hearing of the case.”

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15. OKEM ENTERPRISES (NIG) LTD & ANOR v. NDIC (2002) LPELR-5995(CA)

_ – General principle governing the exercise of discretion by the Court in applications for stay of proceedings_

“However the second leg of the relief sought by the applicants is for an order staying further proceedings of the said suit. I notice this application was filed almost a year ago. I have once observed in Nigerian Airports Authority v. Aja Enyi (supra) at page 182 – 183 thus: “The order for a stay of proceedings is an antithesis to the speedy hearing of a case. It connotes a punitive element when not desirable on the part of the anxious plaintiff, the hearing of whose claim will be unjustifiably delayed. A plethora of cases lean unfavourably against the grant of a stay of proceedings pending the determination of appeal where the grounds of appeal are lacking in substance, frivolous and grossly incompetent …..” Hence, it is usually regarded as exorbitant judicial exercise in view of the delay that is often associated with such exercise. A stay of proceeding therefore is not granted lightly or on frivolous grounds. An applicant who only engages in a ploy to waste time and deny the respondent the opportunity to have his case heard would not be granted a stay of proceeding of the trial Court. Again, whether or not to grant a stay of proceedings pending an appeal against an interlocutory order depends on a number of factors, bearing in mind the circumstances of each case. However, the most important consideration where an interlocutory order does not finally dispose of the case, it could be wrong to stay proceedings simply because of an appeal which has been lodged against it by an aggrieved party as such an order could be made the subject of appeal, if it ultimately becomes necessary after the final judgment. On the other hand the interlocutory appeal, if successful will automatically put an end to the proceedings in the trial Court, prudence really dictates that a stay of proceedings should be granted. A good example of the latter situation is where the issue of jurisdiction is raised in appeal. The issue of jurisdiction is fundamental and crucial but such issue must be substantial and not raised merely as a ploy to delay, the proceedings. If the trial Court pronounces upon the issue of jurisdiction and holds that it has jurisdiction, proceedings must be stayed to enable this Court look into the substance of such ground of appeal. This is the law: See Kotoye v. Saraki (1993) 5 NWLR (Pt. 296) 710 at 727. I have carefully studied the two grounds of appeal. They are substantial and are arguable. An application to stay further proceedings must disclose first from the affidavit evidence and the exhibited notice of appeal that the grounds are substantial and/or arguable.: See Sodeinde v. Registered Trustees of the Ahmadiyya Movement-in-Islam (1980) 1 – 2 SC 163. It is also a settled principle that the applicant seeking a stay of proceedings pending appeal must show special or exceptional circumstances. If a genuine issue of jurisdiction is raised by an applicant, then he has satisfied a special or exceptional circumstance to warrant the grant of stay of further proceedings pending the determination of his appeal. As I have said before the applicants in the instant case have shown this special or exceptional circumstance. They have raised genuine issue of jurisdiction, not merely as a ploy to delay the hearing of the case.”

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16. CHUKWUDINOBI v. ADAGUN 

_ – Whether an appeal can operate as a stay of proceedings_

“I agree with the submissions of the Respondent that an appeal does not automatically translate to a stay of proceedings. Any party to an action appealing against an interlocutory decision of the Court has a duty to apply for a stay of proceedings pending the hearing and determination of the interlocutory appeal especially in instances where the Applicant believes that the result of the appeal will affect further proceedings in the matter, see the cases of NWAESHI V. OKPALA & ORS (2013) LPELR- 21222 (CA), JOSIAH CORNELIUS LTD V. EZENWA (1996) 4 NWLR (PT 443) 391.”

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17. CHUKWUDINOBI v. ADAGUN

_ – Whether an appeal can operate as a stay of proceedings_

“I agree with the submissions of the Respondent that an appeal does not automatically translate to a stay of proceedings. Any party to an action appealing against an interlocutory decision of the Court has a duty to apply for a stay of proceedings pending the hearing and determination of the interlocutory appeal especially in instances where the Applicant believes that the result of the appeal will affect further proceedings in the matter, see the cases of NWAESHI V. OKPALA & ORS (2013) LPELR- 21222 (CA), JOSIAH CORNELIUS LTD V. EZENWA (1996) 4 NWLR (PT 443) 391.”

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*18. OWO & ORS v. ADETILOYE & ORS (1998) LPELR-6388(CA)*

_ – Instance when courts will not grant an application for a stay of proceedings_

“Therefore I must say right away that there are at least five cogent reasons as follows why this application for “stay of proceedings” should fail.
In the first place, since the application was for
“Stay of proceedings in this appeal, pending the hearing and determination of the appeal lodged by the applicants to the Supreme Court of Nigeria ….” It must first be established that there was an appeal actually filed or lodged with a higher Court, i.e. either the Court of Appeal or the Supreme Court. In the instant case, there was no sufficient evidence to show that the appeal to the Supreme Court was actually pending, because only the notice of appeal filed on the same day as this application was exhibited as Exbt. ‘A’. The receipt for payment of the prescribed filing fee, and for compilation of records were not exhibited. However, since such receipt might have been left out by inadvertence, I shall resolve the doubt in my mind in favour of the applicant, and I shall proceed to consider the other factors. It is a cardinal principle of our law on Stay of proceeding or stay of execution for the applicant to satisfy the Court that a valid and credible appeal was actually pending in an appeal Court. I now go to the question whether the decision of this Court sought to be appealed against was a final decision or interlocutory. Applicants’ counsel said it was a final decision, while the respondents’ counsel said it was interlocutory. What does this Court say? I say with due respect to the learned senior counsel for the applicants that our decision was certainly an interlocutory decision, and not final. The respondents herein had appealed to this Court against an order of injunction, imposed on them ex-parte by the trial Court. He then brought an application for stay of proceedings at the trial Court pending the determination of the appeal then before us. We had not yet given a decision on that before the applicant herein rushed in with his own application, that the notice of appeal filed by the respondent was incompetent, invalid and void for contravening S.15(1) of the Court of Appeal Act, 1976 and should be struck out. This Court gave a ruling on 18/6/97, that the respondents’ notice of appeal was not incompetent, premature or void, as the provision of the Court of Appeal Act, 1976 was superceded by S. 220(1)(g)(ii) of the Nigeria Constitution. 1979. But just as this Court was getting ready to hear the application for stay of proceedings at the trial Court, the applicant rushed in with his own application for another stay of proceedings in this Court and now said that our decision of 18/6/97 was a final decision. I agree with the case of Akisanya v. U.B.A. Ltd (1986) 4 NWLR (Pt. 35) 273, cited by learned counsel for the respondent that the most important factor to consider, whether a decision was final or interlocutory, was to see whether the decision finally determined the rights of the parties in the suit. If the parties had to go home for good, then the decision was final, but if they had to return to the trial Court to resume their trial or appeal, then the decision would be interlocutory. In the instant case, the fact that the applicant had to rush to this Court soon after filing his appeal to ask for a stay of proceedings, clearly shows that our decision was interlocutory. Even after we have given our decision in the main appeal about the validity of ex-parte injunctions the parties will still have to go back to the trial Court to resume their case about creation of a new Diocese for Oji River. So there was nothing final about our decision of 18/6/97. That being the case the appeal against the said decision should have been filed within 14days as provided by the Court of Appeal law and not within three months. That not having been done, this application is incompetent and must be refused. The appeal if already lodged should be struck out for the same reason, but since the appeal is pending at the Supreme Court, and no longer before us, it will be struck out there. The third point to note is that it is not every and any judgment or ruling of a Court that could be stayed, either by stay of execution or stay of proceedings only executory judgments or rulings can be stayed and not executed or purely declaratory judgments and ruling (see Akibu v. Oduntan (1991) 2 NWLR (Pt. 171) 1. In the instant case, the ruling sought to be stayed was purely declaratory, in that the Court never ordered the applicant to do anything such as paying damages to respondent or vacating a house. All that was said was that the appeal of respondent against an ex parte injunction was not incompetent as Section 15(1) of Court of Appeal Act, 1976 had been overriden by S. 220(1)(g) (ii) of the Constitution of the Federal Republic of Nigeria, 1979. How did the applicant want the Court to stay such a declaration? With respect, such a declaratory ruling can only be reversed, and not stayed. Any attempt to stay it would only mean that we were reversing ourselves. Only the Supreme Court can reverse us, and the applicant is already there. Finally, I must observe that an application for “stay of proceedings” as opposed to “stay of execution” is more appropriate in a trial Court than in an appellate Court where no evidence was being taken. The object of stay of proceedings, be it in a civil or criminal case is always to keep things “in status quo” at the trial Court pending the determination of appeal at a higher Court. See the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 et seq where Ogundare. J.S.C. G at p.202, said inter alia as follows:-
“There may be cases where a wrongly rejected evidence may be all that a party relies on in support of its case and without which it would be futile for him to continue to contest his opponents’ case. In such a case, I cannot see why he must be prevented from proceeding to test the correctness of the decision to exclude such evidence before proceeding with the trial ” In the same case at p.205 Ogwucgbu, J.S.C. put the same principle succinctly as follows:-
“A vital piece of evidence which is crucial to the case of a party if wrongfully rejected would incapacitate such a party in proving or disproving his case.”
See also the case of State v. Ajayi (1996) 1 NWLR (Pi. 423) 169, where at p.182 paras. E – H, the Court of Appeal held inter alia as follows:-
“The principles to he considered whether to grant stay of proceedings or not have been laid down in so many decided cases starting from whether there is a case pending in the trial Court to whether the decision in the appeal Court will affect the pending case. But by far, the most important considerations are the following:-
(a) whether the complaint of the appellant in his interlocutory appeal can be conveniently taken together in an appeal against the final judgment if the case is determined in favour of respondent;
(b) the Court has a discretion to grant a stay of proceeding when the applicant has reasonable grounds of appeal or if a refusal will render any success in the appeal nugatory: and
(c) where further hearing at the Court below will work injustice, the Court should grant a stay of proceedings.
Sodeinde v. The Registered Trustees, Ahmadiya Movement-in-Islam (1980) 1-2 S.C. 163; I.A.I.L Nig. Ltd. v. Chika Bros. Ltd.(l990) 1 NWLR (Pt.124) 70 at 80; Akilu v. Fawehinmi (No,2) (1989) 2 NWLR (Pt. 120) 122 at 165; Kigo (Nig.) Ltd v. Holman Bros. (Nig.) Ltd. (1980) 5-7 S.C. 60; Shekoni v. Ojoko (1954) 14 W.A.C.A 504 referred to) (P.182 paras. E-H)” In view of all that have been said above, it is my form view that this appeal has been a colossal waste of judicial time. The applicant had no reason whatsoever to have brought this application to this Court, or even to have gone to the Supreme Court to lest a purely declaratory ruling on law. He could have waited till the end of the appeal, and if lost, he could then appeal to the Supreme Court, where he could raise his point of jurisdiction afresh. Jurisdiction can be raised at any stage of the proceedings even up to the Supreme Court. This application therefore lacked merit and is hereby dismissed.”

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19. OWO & ORS v. ADETILOYE & ORS (1998) LPELR-6388(CA)

_ – Instance when courts will not grant an application for a stay of proceedings_

“Therefore I must say right away that there are at least five cogent reasons as follows why this application for “stay of proceedings” should fail.
In the first place, since the application was for
“Stay of proceedings in this appeal, pending the hearing and determination of the appeal lodged by the applicants to the Supreme Court of Nigeria ….” It must first be established that there was an appeal actually filed or lodged with a higher Court, i.e. either the Court of Appeal or the Supreme Court. In the instant case, there was no sufficient evidence to show that the appeal to the Supreme Court was actually pending, because only the notice of appeal filed on the same day as this application was exhibited as Exbt. ‘A’. The receipt for payment of the prescribed filing fee, and for compilation of records were not exhibited. However, since such receipt might have been left out by inadvertence, I shall resolve the doubt in my mind in favour of the applicant, and I shall proceed to consider the other factors. It is a cardinal principle of our law on Stay of proceeding or stay of execution for the applicant to satisfy the Court that a valid and credible appeal was actually pending in an appeal Court. I now go to the question whether the decision of this Court sought to be appealed against was a final decision or interlocutory. Applicants’ counsel said it was a final decision, while the respondents’ counsel said it was interlocutory. What does this Court say? I say with due respect to the learned senior counsel for the applicants that our decision was certainly an interlocutory decision, and not final. The respondents herein had appealed to this Court against an order of injunction, imposed on them ex-parte by the trial Court. He then brought an application for stay of proceedings at the trial Court pending the determination of the appeal then before us. We had not yet given a decision on that before the applicant herein rushed in with his own application, that the notice of appeal filed by the respondent was incompetent, invalid and void for contravening S.15(1) of the Court of Appeal Act, 1976 and should be struck out. This Court gave a ruling on 18/6/97, that the respondents’ notice of appeal was not incompetent, premature or void, as the provision of the Court of Appeal Act, 1976 was superceded by S. 220(1)(g)(ii) of the Nigeria Constitution. 1979. But just as this Court was getting ready to hear the application for stay of proceedings at the trial Court, the applicant rushed in with his own application for another stay of proceedings in this Court and now said that our decision of 18/6/97 was a final decision. I agree with the case of Akisanya v. U.B.A. Ltd (1986) 4 NWLR (Pt. 35) 273, cited by learned counsel for the respondent that the most important factor to consider, whether a decision was final or interlocutory, was to see whether the decision finally determined the rights of the parties in the suit. If the parties had to go home for good, then the decision was final, but if they had to return to the trial Court to resume their trial or appeal, then the decision would be interlocutory. In the instant case, the fact that the applicant had to rush to this Court soon after filing his appeal to ask for a stay of proceedings, clearly shows that our decision was interlocutory. Even after we have given our decision in the main appeal about the validity of ex-parte injunctions the parties will still have to go back to the trial Court to resume their case about creation of a new Diocese for Oji River. So there was nothing final about our decision of 18/6/97. That being the case the appeal against the said decision should have been filed within 14days as provided by the Court of Appeal law and not within three months. That not having been done, this application is incompetent and must be refused. The appeal if already lodged should be struck out for the same reason, but since the appeal is pending at the Supreme Court, and no longer before us, it will be struck out there. The third point to note is that it is not every and any judgment or ruling of a Court that could be stayed, either by stay of execution or stay of proceedings only executory judgments or rulings can be stayed and not executed or purely declaratory judgments and ruling (see Akibu v. Oduntan (1991) 2 NWLR (Pt. 171) 1. In the instant case, the ruling sought to be stayed was purely declaratory, in that the Court never ordered the applicant to do anything such as paying damages to respondent or vacating a house. All that was said was that the appeal of respondent against an ex parte injunction was not incompetent as Section 15(1) of Court of Appeal Act, 1976 had been overriden by S. 220(1)(g) (ii) of the Constitution of the Federal Republic of Nigeria, 1979. How did the applicant want the Court to stay such a declaration? With respect, such a declaratory ruling can only be reversed, and not stayed. Any attempt to stay it would only mean that we were reversing ourselves. Only the Supreme Court can reverse us, and the applicant is already there. Finally, I must observe that an application for “stay of proceedings” as opposed to “stay of execution” is more appropriate in a trial Court than in an appellate Court where no evidence was being taken. The object of stay of proceedings, be it in a civil or criminal case is always to keep things “in status quo” at the trial Court pending the determination of appeal at a higher Court. See the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 et seq where Ogundare. J.S.C. G at p.202, said inter alia as follows:-
“There may be cases where a wrongly rejected evidence may be all that a party relies on in support of its case and without which it would be futile for him to continue to contest his opponents’ case. In such a case, I cannot see why he must be prevented from proceeding to test the correctness of the decision to exclude such evidence before proceeding with the trial ” In the same case at p.205 Ogwucgbu, J.S.C. put the same principle succinctly as follows:-
“A vital piece of evidence which is crucial to the case of a party if wrongfully rejected would incapacitate such a party in proving or disproving his case.”
See also the case of State v. Ajayi (1996) 1 NWLR (Pi. 423) 169, where at p.182 paras. E – H, the Court of Appeal held inter alia as follows:-
“The principles to he considered whether to grant stay of proceedings or not have been laid down in so many decided cases starting from whether there is a case pending in the trial Court to whether the decision in the appeal Court will affect the pending case. But by far, the most important considerations are the following:-
(a) whether the complaint of the appellant in his interlocutory appeal can be conveniently taken together in an appeal against the final judgment if the case is determined in favour of respondent;
(b) the Court has a discretion to grant a stay of proceeding when the applicant has reasonable grounds of appeal or if a refusal will render any success in the appeal nugatory: and
(c) where further hearing at the Court below will work injustice, the Court should grant a stay of proceedings.
Sodeinde v. The Registered Trustees, Ahmadiya Movement-in-Islam (1980) 1-2 S.C. 163; I.A.I.L Nig. Ltd. v. Chika Bros. Ltd.(l990) 1 NWLR (Pt.124) 70 at 80; Akilu v. Fawehinmi (No,2) (1989) 2 NWLR (Pt. 120) 122 at 165; Kigo (Nig.) Ltd v. Holman Bros. (Nig.) Ltd. (1980) 5-7 S.C. 60; Shekoni v. Ojoko (1954) 14 W.A.C.A 504 referred to) (P.182 paras. E-H)” In view of all that have been said above, it is my form view that this appeal has been a colossal waste of judicial time. The applicant had no reason whatsoever to have brought this application to this Court, or even to have gone to the Supreme Court to lest a purely declaratory ruling on law. He could have waited till the end of the appeal, and if lost, he could then appeal to the Supreme Court, where he could raise his point of jurisdiction afresh. Jurisdiction can be raised at any stage of the proceedings even up to the Supreme Court. This application therefore lacked merit and is hereby dismissed.”

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20. OWO & ORS v. ADETILOYE & ORS (1998) LPELR-6388(CA)

_ – Instance when courts will not grant an application for a stay of proceedings_

“Therefore I must say right away that there are at least five cogent reasons as follows why this application for “stay of proceedings” should fail.
In the first place, since the application was for
“Stay of proceedings in this appeal, pending the hearing and determination of the appeal lodged by the applicants to the Supreme Court of Nigeria ….” It must first be established that there was an appeal actually filed or lodged with a higher Court, i.e. either the Court of Appeal or the Supreme Court. In the instant case, there was no sufficient evidence to show that the appeal to the Supreme Court was actually pending, because only the notice of appeal filed on the same day as this application was exhibited as Exbt. ‘A’. The receipt for payment of the prescribed filing fee, and for compilation of records were not exhibited. However, since such receipt might have been left out by inadvertence, I shall resolve the doubt in my mind in favour of the applicant, and I shall proceed to consider the other factors. It is a cardinal principle of our law on Stay of proceeding or stay of execution for the applicant to satisfy the Court that a valid and credible appeal was actually pending in an appeal Court. I now go to the question whether the decision of this Court sought to be appealed against was a final decision or interlocutory. Applicants’ counsel said it was a final decision, while the respondents’ counsel said it was interlocutory. What does this Court say? I say with due respect to the learned senior counsel for the applicants that our decision was certainly an interlocutory decision, and not final. The respondents herein had appealed to this Court against an order of injunction, imposed on them ex-parte by the trial Court. He then brought an application for stay of proceedings at the trial Court pending the determination of the appeal then before us. We had not yet given a decision on that before the applicant herein rushed in with his own application, that the notice of appeal filed by the respondent was incompetent, invalid and void for contravening S.15(1) of the Court of Appeal Act, 1976 and should be struck out. This Court gave a ruling on 18/6/97, that the respondents’ notice of appeal was not incompetent, premature or void, as the provision of the Court of Appeal Act, 1976 was superceded by S. 220(1)(g)(ii) of the Nigeria Constitution. 1979. But just as this Court was getting ready to hear the application for stay of proceedings at the trial Court, the applicant rushed in with his own application for another stay of proceedings in this Court and now said that our decision of 18/6/97 was a final decision. I agree with the case of Akisanya v. U.B.A. Ltd (1986) 4 NWLR (Pt. 35) 273, cited by learned counsel for the respondent that the most important factor to consider, whether a decision was final or interlocutory, was to see whether the decision finally determined the rights of the parties in the suit. If the parties had to go home for good, then the decision was final, but if they had to return to the trial Court to resume their trial or appeal, then the decision would be interlocutory. In the instant case, the fact that the applicant had to rush to this Court soon after filing his appeal to ask for a stay of proceedings, clearly shows that our decision was interlocutory. Even after we have given our decision in the main appeal about the validity of ex-parte injunctions the parties will still have to go back to the trial Court to resume their case about creation of a new Diocese for Oji River. So there was nothing final about our decision of 18/6/97. That being the case the appeal against the said decision should have been filed within 14days as provided by the Court of Appeal law and not within three months. That not having been done, this application is incompetent and must be refused. The appeal if already lodged should be struck out for the same reason, but since the appeal is pending at the Supreme Court, and no longer before us, it will be struck out there. The third point to note is that it is not every and any judgment or ruling of a Court that could be stayed, either by stay of execution or stay of proceedings only executory judgments or rulings can be stayed and not executed or purely declaratory judgments and ruling (see Akibu v. Oduntan (1991) 2 NWLR (Pt. 171) 1. In the instant case, the ruling sought to be stayed was purely declaratory, in that the Court never ordered the applicant to do anything such as paying damages to respondent or vacating a house. All that was said was that the appeal of respondent against an ex parte injunction was not incompetent as Section 15(1) of Court of Appeal Act, 1976 had been overriden by S. 220(1)(g) (ii) of the Constitution of the Federal Republic of Nigeria, 1979. How did the applicant want the Court to stay such a declaration? With respect, such a declaratory ruling can only be reversed, and not stayed. Any attempt to stay it would only mean that we were reversing ourselves. Only the Supreme Court can reverse us, and the applicant is already there. Finally, I must observe that an application for “stay of proceedings” as opposed to “stay of execution” is more appropriate in a trial Court than in an appellate Court where no evidence was being taken. The object of stay of proceedings, be it in a civil or criminal case is always to keep things “in status quo” at the trial Court pending the determination of appeal at a higher Court. See the case of Saraki v. Kotoye (1992) 9 NWLR (Pt.264) 156 et seq where Ogundare. J.S.C. G at p.202, said inter alia as follows:-
“There may be cases where a wrongly rejected evidence may be all that a party relies on in support of its case and without which it would be futile for him to continue to contest his opponents’ case. In such a case, I cannot see why he must be prevented from proceeding to test the correctness of the decision to exclude such evidence before proceeding with the trial ” In the same case at p.205 Ogwucgbu, J.S.C. put the same principle succinctly as follows:-
“A vital piece of evidence which is crucial to the case of a party if wrongfully rejected would incapacitate such a party in proving or disproving his case.”
See also the case of State v. Ajayi (1996) 1 NWLR (Pi. 423) 169, where at p.182 paras. E – H, the Court of Appeal held inter alia as follows:-
“The principles to he considered whether to grant stay of proceedings or not have been laid down in so many decided cases starting from whether there is a case pending in the trial Court to whether the decision in the appeal Court will affect the pending case. But by far, the most important considerations are the following:-
(a) whether the complaint of the appellant in his interlocutory appeal can be conveniently taken together in an appeal against the final judgment if the case is determined in favour of respondent;
(b) the Court has a discretion to grant a stay of proceeding when the applicant has reasonable grounds of appeal or if a refusal will render any success in the appeal nugatory: and
(c) where further hearing at the Court below will work injustice, the Court should grant a stay of proceedings.
Sodeinde v. The Registered Trustees, Ahmadiya Movement-in-Islam (1980) 1-2 S.C. 163; I.A.I.L Nig. Ltd. v. Chika Bros. Ltd.(l990) 1 NWLR (Pt.124) 70 at 80; Akilu v. Fawehinmi (No,2) (1989) 2 NWLR (Pt. 120) 122 at 165; Kigo (Nig.) Ltd v. Holman Bros. (Nig.) Ltd. (1980) 5-7 S.C. 60; Shekoni v. Ojoko (1954) 14 W.A.C.A 504 referred to) (P.182 paras. E-H)” In view of all that have been said above, it is my form view that this appeal has been a colossal waste of judicial time. The applicant had no reason whatsoever to have brought this application to this Court, or even to have gone to the Supreme Court to lest a purely declaratory ruling on law. He could have waited till the end of the appeal, and if lost, he could then appeal to the Supreme Court, where he could raise his point of jurisdiction afresh. Jurisdiction can be raised at any stage of the proceedings even up to the Supreme Court. This application therefore lacked merit and is hereby dismissed.”

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