LEGAL PRINCIPLE: CIVIL PROCEDURE – Stay of Execution – Discretion Must Be Exercised Judicially and Judiciously
PRINCIPLE STATEMENT
The grant or refusal of a stay of execution is at the discretion of the court, and such discretion must be exercised judicially, taking into consideration the competing rights of the parties to justice.
RATIO DECIDENDI (SOURCE)
Per Onu, JSC, in Funduk Engineering Ltd v. McArthur (1995) NLC-2901988(SC) at p. 10; Paras D–E.
"The grant or refusal of a stay of execution is at the discretion of the court and such discretion must be exercised judicially taking into consideration the competing rights of the parties to justice."
EXPLANATION / SCOPE
Stay of execution is discretionary, not automatic. The court must balance the judgment creditor’s right to enforce and the judgment debtor’s right to appeal. The principle applies to all stay applications. The court must act judicially and judiciously. The discretion must be exercised based on the facts of the case. The appellate court will not interfere unless the discretion was exercised on wrong principles. The court must consider special circumstances. The rule promotes fairness. The applicant bears the burden of showing grounds for a stay. The court will not grant a stay to frustrate the judgment creditor.