LEGAL PRINCIPLE: CIVIL PROCEDURE – Scope of Court’s Order and Preservation of Res – Inherent Power to Preserve Res to Prevent Nugatory Appeal
PRINCIPLE STATEMENT
A court from which an appeal lies, as well as the court to which an appeal lies, has a duty to preserve the res to ensure that the appeal, if successful, is not nugatory. The res may be tangible or intangible.
RATIO DECIDENDI (SOURCE)
Per Adio, JSC, Makinde & Ors v. Akinwale & Ors (1995) NLC-2231994(SC) at pp. 5–6; Paras B–D.
"A court from which an appeal lies as well as the court to which an appeal lies have a duty to preserve the res for the purpose of ensuring that the appeal, if successful, is not nugatory... The res, in the present circumstance, which a court of record has an inherent power to preserve, may be tangible or intangible but whichever it is, it is the thing that was in dispute or in controversy between the parties in the substantive suit."
EXPLANATION / SCOPE
Courts have inherent power to preserve the res pending appeal. The power applies to both trial and appellate courts. The res can be tangible property or intangible rights. The principle prevents appeals from being rendered nugatory. The court may make interim orders to protect the subject matter. The rule applies to all appeals. The court must balance the parties’ interests. The power is discretionary and exercisable judicially. The principle ensures that successful appellants are not left without remedy. The court will consider whether the res is at risk of destruction or dissipation.
