LEGAL PRINCIPLE: CIVIL PROCEDURE – Stay of execution – Power of appellate court to impose fresh terms
PRINCIPLE STATEMENT
While the Court of Appeal has jurisdiction to make a stay order on terms different from those imposed by the trial High Court, this jurisdiction may only be exercised at the instance of the party who sought the stay in the court below.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Lagos State Development & Property Corporation v. Citymark (West Africa) Limited (1998) NLC-271992(SC) at p. 12; Paras D–E.
"While, however, the Court of Appeal has the necessary jurisdiction to make an order for a stay of execution on terms or conditions which may differ from those imposed by the trial High Court in granting a similar prayer, the jurisdiction may only be exercised at the instance of the party who had sought the order for stay in the court below."
EXPLANATION / SCOPE
The appellate court may impose different stay terms, but only on application by the original applicant. The principle applies to stay applications. The respondent cannot seek variation without cross-appeal. The rule ensures procedural order. The court will not vary terms suo motu. The principle protects the respondent’s rights.