LEGAL PRINCIPLE: CIVIL PROCEDURE – Stay of Execution and Inherent Powers of Court – Limitation of Stay of Execution to Executory Judgments or Orders
PRINCIPLE STATEMENT
A stay of execution only prevents the beneficiary from putting into operation the machinery for execution of a judgment or order. It can only be granted in respect of an executory judgment or order.
RATIO DECIDENDI (SOURCE)
Per Adio, JSC, in Makinde & Ors v. Akinwale & Ors (1995) NLC-2231994(SC) at pp. 4–5; Paras D–A.
"A stay of execution only prevents the plaintiff or beneficiary of the judgment or order from putting into operation the machinery provided by the law for the execution of a judgment or order, as the case may be. An order for stay of execution pending an appeal, therefore, can only be granted in respect of an executory judgment or order. There is nothing, in the case of a judgment or order, which is not executory, to execute in favour of the respondent for which an order for stay can properly issue."
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 prevents the misuse of stay applications. The court will not stay a declaratory order because there is nothing to execute. The rule applies to all judgments. The applicant must show that the judgment is executory. The court has inherent power to preserve the res, but not to stay a declaratory order. The principle promotes clarity in appellate practice. The court will examine the nature of the judgment.