An interim order is an order given by the court
in the course of proceedings to keep matters in status quo pending the hearing
of the substantive application or until a named date. For present purpose, these
are orders applied for pending the outcome of an appeal.
Types of Interim Applications and Orders Pending Appeal
There are three (3) main
types of interim orders pending appeal; viz,
(a)
Stay of execution pending
appeal;
(b)
Stay of proceedings pending
appeal; and
(c)
Injunction pending appeal.
Appropriate Court to Apply to for Interim Applications and Orders
Pending Appeal
The application for an interim order pending
appeal may be made either to the trial court or the Court of Appeal. However,
such applications are required to be first made to the trial court: Order 3 Rule 3(4) of the Court of Appeal Rules;
except where there are special circumstances, which make it impossible or
impracticable to apply to the court below.
Please note that the jurisdiction of the High Court
to entertain an application for interim orders pending appeal is limited to any
time after the Notice of Appeal has been filed at the High Court or leave to
appeal has been granted; but before the Court of Appeal is seised of the case.
Thus, once the records of appeal has been received by the Appellate Court, it
is said that the appeal has been entered and once an appeal has been entered,
all subsequent applications for provisional reliefs should be made to the Court
of Appeal.
Condition Precedent for Interim Applications and Orders Pending
Appeal
For any of these interim orders to be applied
for, the party applying must have appealed against the judgment or order of
court, by filing a Notice of Appeal. Where a Notice of Appeal has not been
filed, an application pending appeal is incompetent.
We will now proceed to examine the various
forms of Interim Applications and Orders Pending Appeal.
A)
Stay of Proceedings
Pending Appeal
An order of stay of proceedings is made to suspend
proceeding in the lower court pending the outcome of an appeal against a ruling or interlocutory decision or a
point made during the proceedings: Order
45 Rule 1 of the Abuja Rules & Order
54 Rule 1 of the Lagos Rules. It is only parties to the action that can
bring the application for stay of proceedings pending appeal.
The application is by way of Motion on Notice supported
by an affidavit and written address, first made to the High Court before the
Court of Appeal; except the record of appeal has been transferred to the Appeal
Court, in which case the appeal is deemed to have been entered. The application
can also be made directly to the Court of Appeal where there are special or exceptional
circumstances. In such cases, the appellate court usually considers the
following:
(a)
The need to protect the
Fundamental Human Right of an applicant by an appellate court; and
(b)
The issue of jurisdiction.
Procedure for
Stay of Proceedings Pending Appeal
1.
It is applied for by a Motion
on Notice supported with an affidavit and a written address to be filed at the
trial Court Registry.
2. To oppose the Motion, the respondent is to file a counter affidavit
and a written address within 7 days of
the receipt of the Motion.
Conditions for
the Grant of an Application for Stay of Proceedings Pending Appeal. (These are the contents of the affidavit in support of the
application).
1.
There must be a valid appeal.
2. That the grounds of appeal are likely to succeed.
3. That the balance of convenience is in the applicant’s favour.
4. It is to preserve the nature of the subject matter.
5. That security or undertaking for its grant has been given or paid
into the Court.
Please note that the grant of this order is discretionary and would depend on the
facts of the case. Such discretion must be exercised based on the existence of
a valid Notice of Appeal and Grounds of Appeal. A person cannot apply for a
stay of proceedings pending appeal in an action which he is not a party. However,
the courts would rarely grant stay of proceedings pending appeal, due to its
likelihood to cause delay. Nevertheless, it will be granted if the order can
dispose of the substantive matter, conclusively.
B)
Stay of Execution Pending
Appeal
An application for stay of execution pending appeal is
an application made by the unsuccessful defendant, who wishes to preserve the
status quo until the determination of a valid appeal. This is applied for after
a final judgment, which is executory
in nature is given. The purpose of the application is to preserve the res (subject matter of the judgment)
pending the outcome of an appeal by the Judgment Debtor. The power to grant
stay of execution pending appeal is inherent and contained in the various
statutes guiding courts: Order 45 Rule 1
of the Abuja Rules and Order 54 Rule
1 of the Lagos Rules & section
15 of the Court of Appeal Act. This application is granted or refused at
the discretion the court.
Generally the courts are not inclined towards granting
an order of stay of execution pending appeal. This is because the courts do not
make it a practice of depriving the successful party of the fruits of his
judgment. However, where there are exceptional and special circumstances
warranting such deprivations the court may grant the order of stay of execution.
Special Circumstances for Order of Stay of
Execution
In granting or refusing an order of stay of execution;
the court has to consider the following:
a)
The chances of the applicant
succeeding on the appeal; if the chances are non-existent, the stay will be
refused.
b)
The nature of the subject
matter in dispute.
c)
Whether the applicant will not
be able to reap the benefit of the judgment on appeal, if the appeal succeeds.
d)
Whether there is a reasonable
possibility of recovering the money or costs from the respondent, if appeal succeeds.
e)
Poverty is not a ground for
granting a stay of execution, except if such poverty will deprive him from means
of prosecuting his appeal.
Please note that a stay of execution pending appeal is
not usually available for declaratory judgments. However, where the declaration
judgment is accompanied by executory reliefs, the order may be granted. An
order granting stay may be conditional, example, payment of the judgment fund
into court or special account under court’s control.
Conditions for
the Grant of Stay of Execution (This will
constitute the contents of the affidavit in support of the application)
1.
That there are special
circumstances warranting the deprivation of the fruits of judgment to the
Respondent.
2. That there is a valid appeal properly filed.
3. That the grounds of appeal are likely to succeed.
4. That the balance of convenience is in the applicant’s favour.
5. That the order is sought to preserve the nature of the subject
matter.
6. That security or undertaking for its grant has been given or paid
into the Court.
Please note that the procedure
for its application is the same with that of Stay of proceedings.
Option Open to Parties upon Refusal of Application for Stay of
Proceedings or Execution at the Trial Court
When an application for stay of proceedings or execution
is refused by the trial Court, another application can be made to the Court of
Appeal within 15 days of the refusal
with the following documents:
1.
Motion on Notice supported with
an affidavit exhibiting the following:
a.
Certified True Copy of the
Order of the trial Court refusing the application;
b.
Certified True Copy of the
judgment of the lower Court to be stayed;
c.
The Notice of Appeal; and
d.
The Record of Proceedings.
2. Written address: section 17 of
the Court of Appeal Act 2010 and Order
7 Rule 3 & 4 of the Court of Appeal Rules 2011.
Please note that the applicant must compile Record of
Appeal within 90 days from the date
the Notice of Appeal is filed or else the respondent will apply that the matter
be struck out. Again, an appeal in itself without more does not operate as to
stay the court’s judgment: section 17 of the Court of Appeal Act.
C)
Injunction Pending Appeal
Injunction pending appeal is aimed at maintaining the
status quo pending the determination of appeal. Where the application for
injunction pending appeal was refused by the trial court, the same application
can be made to the appellate court within 15
days of the lower court's refusal order.
Injunction pending appeal is necessary where;
a.
Plaintiff’s action was either
dismissed or
b. Judgment is declaratory in nature (in which case, it cannot be
executed) or
c.
An interlocutory injunction was
earlier refused by court.
The proper procedure for
Injunction pending appeal is as follows:
a)
Application by way of Motion on
Notice accompanied with Affidavit made first to the Lower Court except there
are specific circumstances that make it impracticable to do so.
b)
Where the lower court refuses, a
similar application can be made to the court of Appeal.
c)
The Affidavit must state
special circumstances warranting the grant of the injunction and must be
accompanied with;
a. A copy of the Notice of Appeal
b. A Certified True Copy of judgment appealed against
c. A Certified True Copy of the order of lower court refusing the injunction
Conditions for the Grant
of Injunction Pending Appeal
1.
The application must show
special circumstance and this could be that the ground of appeal is on a novel
point.
2.
The Notice of Appeal must
disclose a substantial legal issue to be determined.
3.
That it is equitable to
maintain the status quo.
4.
That refusal to grant the
injunction will foist on the court on appeal, a state of helplessness.
5. That
refusal to grant the injunction may render nugatory the order of the Court of
Appeal or the Appellate Court.
© Onyekachi Duru Esq and www.legalemperors.com,
2016 (All Rights Reserved). Unauthorized use and/or duplication of this
material without express and written permission from this site’s author and/or
owner is strictly prohibited. Excepts and links may be used, provided that full
and clear credit is given to Onyekachi
Duru Esq and www.legalemperors.com with appropriate and specific directions to the
original content.