LEGAL PRINCIPLE: CIVIL PROCEDURE — Preservation of Res — Duty of Court to Preserve Subject Matter of Litigation
PRINCIPLE STATEMENT
Every court has the duty to preserve the subject matter of litigation, especially where the appellant cannot repay the respondent if the appeal succeeds.
RATIO DECIDENDI (SOURCE)
Per Kutigi, JSC, in Abubakar & Ors v. Unipetrol Nigeria Plc (2002) NLC-1121997(SC) at p. 5; Paras A–B.
"Every court of law has the duty to see that the res, the subject matter of litigation, is preserved especially in this case where it was shown that the appellant cannot be in a position to repay the respondent the sum awarded if the appeal succeeds."
EXPLANATION / SCOPE
Courts have an inherent duty to preserve the res (subject matter) of litigation pending appeal. The duty is particularly important where the appellant cannot repay the judgment sum if the appeal succeeds. The court may order a stay of execution or require deposit of funds in court. The principle ensures that appeals are not rendered nugatory. The court balances the parties’ interests. The judgment creditor’s right to enjoy the fruits of judgment is weighed against the need to preserve the res. The rule applies to both monetary and property claims. The court will consider the applicant’s ability to refund. The duty is rooted in the court’s jurisdiction to protect its processes.
