Rules Guiding Application For Stay of Execution


Okafor V Nnaife (Exerpts)

(1987) 9-10 SCNJ 63, 1 LC 86



Lawrence Okafor And Ors   – Appellant


Felix Nnaife    –        Respondent



Supreme Court of Nigeria

Kayode Eso                           JSC

Anthony Nnaemezie  Anialogu  JSC

Augustine Nnamani               JSC

Muhammed  Lawal  Uwais       JSC

Chukwudifu Akunne Oputa       JSC

(Delivered Lead Judgment)




Whether the Court of Appeal  did or did not exercise its discretion properly on the materials before it in refusing the appellants a stay of execution of the Judgement of the High Court?




The Respondent in this sought against the Appellants at the Anambra High Court, Onitsha, a declaration that the appellants as customary tenants of the respondent have no right to put tenants on the Respondent’s land or cut economic trees on the land without the permission of the Respondent on their vacating the land, damages and an injunction.

At the conclusion of hearing, the judge granted the declarations as well as the injunction sought. He also awarded damages in favour of the plaintiff. The defendant appealed against the judgment to the Court of Appeal, Enugu Division. During the pendency of the appeal, the defendants brought a motion before the Onitsha High Court for stay in respect of the injunction. After hearing the parties who relied on their affidavit and counter affidavit, the learned trial judge on 4-9-86 varied his order on injunction by ordering that the order in relation to the injunction will become operative with effect from May 1, 1987 such that the Appellants could reap their crops on the land before vacating it.

Dissatisfied with the ruling of the High Court, the appellant appealed to the Court of Appeal which also refused the appellants a stay of the order of perpetual injunction pending the determination of the appeal on the ground that no special ground had been shown to warrant disturbing of the order  of the trial court. The Court of Appeal further held that the best approach would have been to apply for accelerated hearing of the appeal.

The appellants then appealed to the Supreme Court against the refusal of the Court of Appeal to grant them a stay.


(Unanimously dismissing the appeal)

Applying those principles enunciated in Vaswan’s Case (1972) 12 SC 77 at 82 the present appellants to succeed have to show “special and / or “exceptional” circumstances. No paragragh in their affidavit in support can remotely be considered to be one of those special or exceptional circumstances which will predispose any court to grant a stay of execution. The refusal to grant a stay in this case will not destroy the land in dispute nor will it render any judgment of the Court of Appeal nugatory.

The defendants seem to be very rich and well to do, for they have already paid the damages and costs of N1,600.00 awarded to the respondent. There is therefore no suggestion that the refusal of a stay will, for lack of funds or impecuniosity, interfere with or else paralyse their constitutional right of appeal.

I would like to add however, that a stay of execution is never to be used as a substitute for obtaining  the judgment which the trial court has denied a party. A party who has succeeded in a litigation is fully entitled to the fruit of the litigation and to these, he would be entitled until the judgment in his favour has been set aside.

When a stay is granted, therefore, the main principle must be fairness and equity having to such circumstance. And that is if the successful party is not restrained temporarily from taking the full value of the judgment there would be serious detriment not only to the applicant but the ultimate result which he would get were he to succeed later in the appeal he had lodged against the decision of the lower court. It may be that the property would have been destroyed thus rendering the success of the appeal hollow and nugatory, or that the applicant would suffer untold hardship which could be justly avoided without damage to the successful party in the interim.

What the appellants who have been found not to be owners of the land in dispute want to this court, in effect, is for  the court to lend its authority to the Appellants, for them to continue devastating the land in dispute by being allowed to continue cutting down and selling the economic trees on the land while the owner of the land-the respondent- sits back and watches, helplessly, the fruits of his judgment being denied and deprived him. That will be justice inverted. I will not be party to such an inversion.


Mercy Oke –Chinda