OKAFOR & ORS. V. NNAIFE

• Pages: 1194-1200

1194

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NIGERIAN SUPREME COURT CASES

[1987] 2 N.S.C.C.

In the final result and for all the reasons given above and also for the fuller rea-

sons given in the lead judgment of my learned brother Aniagolu, J.S.C. which I

now adopt as mine, this appeal is wholly unmeritorious and ought to be dismissed.

I also will abide by the costs and consequential order made in the lead judgment.

Appeal dismissed.

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OKAFOR & ORS. V. NNAIFE

10

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LAWRENCE OKAFOR & ORS.

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APPELLANTS

V

FELIX NNAIFE

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RESPONDENT

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15

SUIT NO. SC 89/1987

SUPREME COURT OF NIGERIA

ESO,

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J.S.C.

ANIAGOLU,

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J.S.C.

NNAMANI,

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J.S.C.

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20

UWAIS,

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J.S.C.

OPUTA,

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J.S.C.

16th October, 1987

Practice and Procedure - Application for stay of execution of a judgment -

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General rules guiding and governing the exercise of discretion to grant it

re-stated comprehensively - Unfair to allow unsuccessfill party in trial to

continue to act in relation to property which was adjudged as not being his

own as if it is still his own because grounds of appeal contain arguable

points of law - Application for stay of execution of a judgment - Not to

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be used as a substitute for obtaining judgment which cowl has denied.

ISSUES:

1.

What are the general rules which guide and govern the exercise of a court's

discretion in granting an application for stay of execution of a judgment?

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2.

Whether it is fair for a court to allow an adjudged trespasser to continue his

trespass by granting him a stay of execution of the judgment against him,

merely because his grounds of appeal disclose an arguable point of law

.

FACTS:

The respondent as plaintiff in the Onitsha High Court sought and obtained

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against the appellant's declarations, damages and an injunction to restrain the ap-

pellants acts of trespass on his land. The appellant appealed to the Court of Ap-

peal, Enugu Division and while the appeal was pending he applied to the trial court

for a stay of execution in respect of the injunction. The trial judge on 4/9/86 granted

the injunction which was to become operative on 1st May, 1987. Being dissatis-

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fied with this ruling, the appellants appealed to the Court of Appeal when they were

again refused an order of perpetual injunction. The appellants then appealed to

the Supreme Court.

HELD:

1a.The courts have an unimpeded discretion to grant or refuse a stay and the court

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is bound to exercise the said discretion judicially and judiciously and not

erratically.

1 b.A discretion to grant or refuse a stay must take into account the competing rights

of the parties to justice, and must not be biased.