LEGAL PRINCIPLE: CIVIL PROCEDURE – Stay of Execution – Arguable Jurisdictional Grounds Constitute Special Circumstances
PRINCIPLE STATEMENT
An arguable issue of jurisdiction raised in a notice of appeal constitutes a special circumstance that may justify a stay of execution, because if the trial court lacked jurisdiction, the entire judgment is a nullity.
RATIO DECIDENDI (SOURCE)
Per Onu, JSC, in Funduk Engineering Ltd v. McArthur (1995) NLC-2901988(SC) at pp. 10–11; Paras E–B.
"Prima facie, the Notice of Appeal filed by the respondent would validly, in my view, raise the issue of jurisdiction which could weigh on the minds of the justices of the court below in the exercise of their discretion to grant or refuse a stay of execution… The issue of jurisdiction, it must be pointed out, is so fundamental that if the court below eventually comes to consider it… and it is found that the trial court after all lacked jurisdiction, then the whole judgment… becomes a nullity…"
EXPLANATION / SCOPE
Jurisdictional issues are fundamental. An arguable jurisdictional ground in an appeal may justify a stay. The principle applies because a judgment from a court without jurisdiction is a nullity. The court will balance the competing rights of the parties. The rule promotes judicial efficiency. The appellant need not show irreparable harm if jurisdiction is genuinely in doubt. The court may grant a stay to prevent a miscarriage of justice. The principle is an exception to the general rule that stays are not granted as of course. The court will examine the strength of the jurisdictional argument.
