Filing of appeal

• Pages: 639-644

639

He did not ask for extension of time within which to seek leave to appeal. The

proposed notice of appeal can only competently be filed when leave to appeal and

extension of time to appeal have been properly sought and obtained. In the

circumstance of the application, the same is respectfully incompetent and it is struck

out.” - Per Salami, J.C.A., in The Reg. Trustees CACCFUVIEM Suit No. CA/E/

64M/97; (1998) 10 N.W.L.R. (Pt. 569) 312 at 321.

(75) FILING OF APPEAL

1183. Does filing of notice of appeal operate as stay of execution?

“It is trite law that under Section 18 Court of Appeal Act, 1976, the filing of a notice

of appeal, does not operate as a stay of execution since the Courts would not normally

deprive a successful party of the fruits of his successful litigation. The Annot Lyle

(1886) 11 P.D. 114, 116.” - Per Ogundare, J.C.A., in Enabulele v. Agbonlahor

(1994) 5 N.W.L.R. (Pt. 112) 112 at 125.

1184. Duty of the registrar of the High Court when an appeal is filed.

“Primarily it is the responsibility of the registrar of the Court below, when an appeal

is brought and after the expiration of the time prescribed for filing notice of address

for service to summon the parties before him to do following:- (a) settle the documents

to be included in the record of appeal; (b) fix the amount to be deposited by the

appellant to cover the estimated cost of making up and forwarding the record of

appeal; (c) fix the amount to be deposited by the appellant or secured by bond for the

due prosecution of the appeal and the payment of any costs” See Order 3 rule 8.”

– Per Akanbi, J.C.A., in Effiong v. Ironbar Suit No. CA/E/14M/97; (1998) 13

N.W.L.R. (Pt. 582) 367 at 372.

1185. Filing of appeal does not operate as a stay of execution.

“Therefore, the Court below held that the principle enshrined in the case of Vaswani

Trading Co. v. Savalakh & Company (1972) 1 All N.L.R. (Pt. 2) 483 is not of

assistance to the appellants. Having regard to the argument on whether the Court

below was right in so holding, the relevant portion of the judgment of this Court in

that case would be reproduced. At page 490, the Supreme Court, held, inter alia:

“We are satisfied that in this case the respondents were aware that a motion was

pending before this Court for a stay of execution duly filed in accordance with law at

a time when the respondents might not proceed to execution ……………………Thus,

although section 24 of the Supreme Court Act states that an appeal shall not operate

as a stay of execution it does not interfere with proceedings or an application for a

stay of execution and by the same token whilst an application for a stay of execution

is pending in this Court, for the obvious or subtle purpose of stultifying the exercise

by this Court of its jurisdiction, anti indeed its duty to consider the application on its

merits, must not be countenanced.” A careful reading of the above extract from the

635 Filing of appeal Paras. 1182-1185