LEGAL PRINCIPLE: CIVIL PROCEDURE – Stay of Execution – Stay of Execution Lies Only Against Executory Judgments
PRINCIPLE STATEMENT
A stay of execution only prevents a plaintiff from putting into motion the machinery of the law. An order for stay pending appeal can only be made in respect of an executory judgment or order.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC, in Yaro v. Arewa Construction Ltd. (1998) NLC-971997(SC) at pp. 15–16; Paras C–D.
"A stay of execution only prevents a plaintiff or beneficiary of the judgment or order from putting into motion the machinery of the law and an order for a stay of execution pending appeal can only be made in respect of executory judgment or order."
EXPLANATION / SCOPE
Stay of execution applies only to executory judgments (those requiring positive action). Declaratory judgments are not executory and cannot be stayed. The principle applies to all civil proceedings. The court cannot stay a declaratory order. The rule ensures that stay applications are properly directed. The applicant must show that the judgment is executory.