Practice and Procedure

• Pages: 6-836

(13) APPEAL AGAINST A DECLARATORY JUDGMENT.

Can application for stay of execution be appropriate in an appeal against a declaratory

judgment.

“In the case of a declaratory judgment an application for stay of execution would be

inappropriate.” – PerAkaahs, J.S.C., in Iragbiji v. OyewinleSuit No. S.C. 345/2012; (2013)

13 N.W.L.R. (Pt. 1372) 566 at 585.

Can stay of execution of declaratory judgment be granted pending appeal.

“Where a Court delivers a declaratory judgment, the party appealing may be granted an

injunction if he deserves it but never a stay of execution pending the determination of the

appeal. See Okoya v. Santilli (1990) 2 N.W.L.R. (Pt. 131) p. 173; Shodeinde v. The Registered

Trustees of Ahmadiyya Movement - In - Islam (1980) 1-2 S.C. p. 163.” – Per Rhodes-Vivour,

J.S.C., in Iragbiji v. OyewinleSuit No. S.C. 345/2012; (2013) 13 N.W.L.R. (Pt. 1372) 566 at

580.

Duty of Court to pronounce on all material issues raised before it; nature of consequential

order and circumstance under which it should be granted.

“It has become a general rule that a Court has a duty to pronounce on all material issues raised

before it. See Olowolagba & Ors v. Bakare & Ors(1998) 3 N.W.L.R. (Pt. 543) 528 at 534;

State v. Ajie(2000) 11 N.W.L.R. (Pt. 678) 439 at 447. I hold the view that the Court below

ought to have Considered the Cross - appeal of this Appellant by pronouncing on the injunctive

relief sought thereof. The law is trite that judgments of Courts are not made in vain. Judgments

must beenforced unless same is set aside bya superior Court. Where a declaratory relief has

been granted, a consequential order flows necessarily to give efficacy to the declaratory order

granted.? In the instant appeal, the injunctive relief sought by the Appellant at the trial Court

was necessary as a consequential order to give force to the declaratory relief in paragraph 19

(a) of the 2nd Further Amended Statement of claim. A consequential order denotes an order

following naturally in terms of consistency and giving effect to the main judgment.It is usually

granted to give effect to the main relief or reliefs sought by a party. See Inakoiu v. Adeleke

(2007) 4 N.W.L.R. (Pt. 1025) 423; Unity Bank Plc v. Denclay Limited(2012) 18 N.W.L.R. (Pt.

1332) 293. In the case of Awoniyi v. Registered Trustees of the Rosicrucian Order, AMORC

(Nigeria)(2000) 10 N.W.L.R. (Pt. 676) 522 545, this Court perIguh, J.S.C. observed as

follows: “The purpose of a Consequential order is to give effect to the decision or judgment of

the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was

not contested by the parties at the trial and neither did it fall in alignment with the original

reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would

be the subject-matter of a formal executory judgment or order against either side to the dispute.”

It follows therefore that a consequential order flows necessarily from the grant of the principal

claim by the Court. See Hon. Chigozie Eze & Ors. v. Governor of Abia State & Ors (2014) 14

N.W.L.R. (Pt. 1426) 196; Dr. Chigbo Sam Eligwe v. Okpokiri(2015) 2 N.W.L.R. (Pt. 1443)

348. I hold the view that the Court below was in error when it failed to consider the cross -

appeal of the Appellant. The injunctive relief sought in the said cross - appeal was expedient

to bolster the declaratory order already granted. I so hold.” – PerOkoro, J.S.C., in Karaye v.

Wike & Ors (2019) L.P.E.L.R. - 49382 at 21 – 23.

Duty or role of a Respondent at the trial Court and on appeal.

“The traditional duty or role of a Respondent at the trial Court is to defend the action and on

appeal to defend the judgment appealed against. It is for a Respondent/Defendant at the trial

Court to seek declaratory reliefs except through a counter-claim and on appeal, it is not for a

Respondent who has not Cross-Appealed or filed a Notice of Contention, to criticize or attack

judgment of the lower Court. His duty is to defend the judgment. See Bakari v. Ogundipe

(2021) 5 N.W.L.R. (Pt. 1768) 1 at 34 - 35.” – PerWambai, J.C.A., Ize-iyamu v. ADP & Ors

Suit No. CA/B/EPT/GOV/01B/2021; (2021) L.P.E.L.R. - 54292 at 63 – 64.

Nature of declaratory judgment and whether appellant can apply for execution of such

judgment.

“In Yaro v. Arewa Construction Ltd.(supra) the Supreme Court at page 381 paragraphs G - H

stated thus - “It may thus be said that a defendant who has filed an appeal against a declaratory

judgment or order or a judgment or order which is not executory or involves enforcement

against a party, cannot apply for a stay of execution of such judgment or order which by its

very nature has no coercive effect and threatens no one.” – Per Mshelia, J.C.A., in “The MT

Makhambet” v. I.T.I.S.A.N. SuitNo. CA/L/780/09; (2012) 2 N.W.L.R. (Pt. 1283) 184 at 196 -

197.

Nature of judgments that can/cannot be stayed.

“A stay of execution is not granted against a declaratory judgment or against a judgment on

admission. The declaratory judgment merely declares the rights of the parties, or the legal

position of the parties inthe action; while ajudgment on admission is given after a party admits

a claim. In both cases, there is nothing to stay. On the other hand, a stay would be granted to

prevent the beneficiary of an executory judgment from putting into operation the machinery of

the law, such as by commencing the legal process of warrants of execution. Therefore, an order

for stay pending appeal can only be granted in respect of an executory judgment or order; SPDC

(Nig.) Ltd. v. Amadi & Ors(supra); Okoya & Ors v. S. Santilli & Ors(1990) L.P.E.L.R. - 2504

(S.C.).” – PerOtisi, J.C.A., in Odutola v. Togonu-Bickersteth & OrsSuit No.

CA/L/CV/499A/2012; (2022) L.P.E.L.R. – 57574 at 32 – 34.

Position of the law regarding declaratory judgment and the mode of its enforcement when

infringed; whether it is enforceable by a consequential order not sought but applied for

after its delivery.

“A declaratory judgment is complete in itself since the relief is the declaration. A declaratory

order merely proclaims or declares the existence of a legal relationship or of a legal right,

subsisting or in the future, which relationship or right is contested, but it does not contain any

enforceable order; Manomi & Anor v. Dakat & Ors(2022) L.P.E.L.R. - 57834 (S.C.); Olabomi

& Anor v. Oyewinle & Ors(2013) L.P.E.L.R. - 20969 (S.C.); Okoya & Ors v. Santilli & Ors

(1990) L.P.E.L.R. - 2504 (S.C.); Dantata & Anor v. Mohammed(2000) L.P.E.L.R. - 925 (S.C.);

Carrena & Ors v. Akinlase & Ors (2008) L.P.E.L.R. - 833 (S.C.). If rights declared in a

declaratory judgment are infringed, fresh proceedings are needed for enforcement, as

declaratory judgments cannot be enforced by execution. The declaratory judgment of the lower

Court made at the pre-trial conference on 18/1/2010, therefore, had no teeth. An order of

possession may be made in the same proceedings as the one in which the declaration of title to

land is made. However, an order for possession was not soughtby the Respondent in the

Amended Statement of Claim. The question now is whether the order for possession could have

been made, as the lower Court did on 21/9/2010, upon an application filed by the Respondent

about nine months after the declaratory judgment, as a consequential order. A consequential

order is one which is not merely incidental to a decision properly made, but one which is made

to give effect to that decision. Further explaining the purpose of a consequential order, Iguh,

J.S.C., in Awoniyi & Ors v. The Reg. Trustees of Amorc (Nig.)(2000) L.P.E.L.R. - 655 (S.C.)

at pages 33-34, said: “The purpose of a consequential order is to give effect to the decision or

judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief

which was not contested by the parties at the trial and neither did it fall in alignment with the

original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief

would be the subject matter of a formal executory judgment or order against either side to the

dispute. A consequential order may also not be properly madeto give to a party, an entitlement

to a relief he has not established in his favour. See; Akinbobola v. Plisson Fisko Nigeria Ltd.

and ors.(1991) 1 N.W.L.R. (Pt. l67) 270 at 288; Obayagbona v. Obazee1972) 5 S.C. 247;

Liman v. Alhaji Mohammed(1999) 9 N.M.L.R. (Pt. 617) 116 etc.” The Respondent had not

asked for an order for possession in his Amended Statement of Claim. Indeed he had pleaded

in paragraph 13 thereof, page 9 of the Record of Appeal, that he was put in immediate

possession of the land in dispute by the vendor. The judgment of 18/1/2010 declared his title

to the land in issue. If his right as declared in a declaratory judgment was infringed, I am of the

view that fresh proceedings were needed for enforcement of the said declaratory judgment. The

further order made by the lower Court on 21/9/2010, for possession of the disputed land, upon

the motion filed by the Respondent, was not therefore consequential to the declaratory

judgment of 18/1/2010 and, ought not to have been made.” – PerOtisi, J.C.A., in Ogidan &

Anor v. Adigwe Suit No. (2023) L.P.E.L.R. - 60165 at 35 – 38.

Whether a declaratory order that is not mandatory is enforceable.

“Obviously, the judgment of the trial Court was declaratory and not enforceable as it was not

mandatory. In Olabomi & Anor v. Oyewinle & Or(2013) L.P.E.L.R. – 20969 (S.C.) P. 10,

paras. A-E this Court Per Rhodes-vivour, J.S.C. held thus: “A Declaratory judgment or order

is one that proclaims or declares the existence of a legal relationship, but does not contain any

order which may be enforced against the defendant. Once rights declared in a declaratory

judgment are infringed fresh proceedings are needed for enforcement. Declaratory judgments

cannot be enforced by execution, as there is nothing to enforce. So where a Court delivers a

declaratory judgment, the party appealing may be granted an injunction if he deserves it but

never a stay of execution pendingthe determination of the appeal. See Okoya v. Santilli (1990)

2 N.W.L.R. (Pt. 131) Pg.172. Shodeinde v. The Registered Trustees of Ahmadiyya Movement-

In-Islam1980 1-2 S.C. p.163.” In Ogunlade v. Adeleye(1992) L.P.E.L.R. - 2340 (S.C.) Pp. 12-

13, paras. G-B this Court perOmo, J.S.C. further distinguished between executory and

declaratory judgment and held thus: “...whilst an executory judgment is capable of immediate

execution, a declaratory judgment gives no such right. It merely declares the rights of the

parties. The rights which it confers on the plaintiff can only become enforceable if another and

subsequent judgment, albeit relying on the rights it declared, so decrees. Such a subsequent

judgment conferring the power of executionis executory. The date of enforceability must be

the date of the subsequent (executory) judgment and not the earlier judgment, which is merely

declaratory...” In Noekoer v. Executive Governor of Plateau State & Ors(2018) L.P.E.L.R. -

44350 (S.C.) P. 37, paras. A-C this Court perPeter-odili, J.S.C., held thus:... The Court below

took that slant since the judgment was executory and this Court had shed light on what an

executory judgment is in the case of Oba Rasheed Ayotunde Olubumi & Anor. v Olabode

Oyewinle & 2 Ors. (2013) 7 S.C.N.J. 919 at 929 as follows: “An executory judgment or order

is one that states the respective rights of the parties and goes the extra mile to order the

defendant to act in a particular way or refrain from interfering with the plaintiff’s rights, e.g to

pay damages or as in this case stop parading himself as the Easu of Iragbiji.? It is obvious that

the declaratory orders sought and granted by the trial Court cannot metamorphous into

executory orders that can be enforced by this Court. Thus, the rights declared by the trial Court

as set out above which was affirmed by this Court being merely declaratory, this Court cannot

grant a mandatory executory order on the 3rd and 4th Respondents.” PerOgunwumiju, J.S.C.

in Manomi & Anor v. Dakat & OrsSuit No. S.C. 883/2015(R); (2022) L.P.E.L.R. - 57834 at

43 – 44.