Nigerian Cases on Extension of Time (court holdings)

Nigerian Cases on Extension of Time

Below are Court holdings on Extension of Time from Nigerian cases. The granting of an extension of time is at the discretion of the court.

When Extension of Time can arise

NDP v. INEC (2012) 14 NWLR (Pt. 1319) 176

An extension of time can only arise where there is a time to be extended. In the instant case, the first time table had no legal effect to warrant an extension of time. In the instant case, the first time table published by the respondent had no legal effect to warrant extension of time.

Delay and Extension of Time

Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161

A few days out of time for the doing of an act cannot amount to inordinate delay to preclude the granting of an extension of time by the court. In this case, the appellants were entitled to an extension of time as they were only five days out of time before seeking extension of time to file their brief and this did not amount to inordinate delay.

Extension of Time to Appeal

MR. VICTOR ADELEKAN V ECU-LINE NV (2006) Legalpedia (SC) 91710

“It is settled law that where an appeal requires leave of court and time within which to lodge the appeal has also expired as in the instant appeal, the intending appellant must, in seeking leave to appeal also pray for extension of time within which to appeal in addition to seeking extension of time within which to apply for leave and leave to appeal”. (Onnoghen JSC)


TOMPOLO v. FRN (2019) LPELR-47435(SC)

“In an application for extension of time to appeal, the applicant must explain the cause of the delay in appealing timeously and he must also show arguable and not frivolous grounds of appeal even though he is not required to show that his appeal will succeed. Mere showing of reasonable and good grounds of appeal is not sufficient. See Onyebuchi lroegbu & Anor v. Richard Okwordu & Anor (1990)NWLR (pt.159)643.

“By the provisions of Order 2 Rule 32 of Supreme Court Rules, where in an appeal to this Court from the Court of Appeal in which the Court below affirmed the findings of fact of the trial Court, an application to this Court in pursuance of the jurisdiction conferred to this Court under Section 233 (3) of the 1999 Constitution, leave to appeal must first be sought and obtained.

“It is instructive to note that this Court in a plethora or decided authorities, settled that any application for extension of time to seek leave to appeal and leave to appeal and for extension of time to file notice of appeal such as this instant application, the applicant must show substantial reasons for the delay and also show good cause why the appeal should be heard. In other words, besides showing the reasons for the delay, the applicant must also show that there is substance in the proposed grounds of appeal. These two conditions or requirements must be established simultaneously and must co-exist. SeeAparaku & Ors vs Idowu Alabi (1985)2 SC 329 at 330; Solanke v Somefun (1974)1 SC 141.

“Even at the risk of being repetitive, the two conditions to be satisfied are set out below: – (1) Good and substantial reasons for the applicant’s failure to appeal within the time or period stipulated by law, and (2) The grounds of appeal must prima facie show good cause why the appeal should be heard and determined. See Ukpe lbodo & Ors V Enarofia & Ors (1980) 5-7 SC 42; University of Lagos v Olaniyan (1985) 1 SC 295;

“Both conditions stated above must co-exist before Court can exercise its discretion to grant such application and where one condition is met or satisfied and the other is not, the application must be refused and dismissed. See Abubakar & Ors V Yar Adua & 5 Ors (2008)1 SCNJ 549.” – Per AMIRU SANUSI, JSC


ENYIBROS FOODS PROCESSING COMPANY LTD & ANOR V NIGERIAN DEPOSIT INSURANCE CORPORATION (2007) LCN/3819(SC)

In addition to the above principles of law relevant to a determination of an application for extension of time for leave to appeal etc, there is another very important principle that guides an appellate court when called upon to review, by way of appeal, the discretion exercised by the lower court in granting or refusing to grant an application of that nature.

The principle is that the attitude of appellate courts to the exercise of discretion by lower courts is not dissimilar to that adopted over the issue of findings of fact, which is that unless the exercise of discretion by a court of first instance or by a lower court is manifestly wrong, arbitrary, reckless or injudicious, an appellate court would not interfere merely because faced with similar circumstances it would have reacted differently. See University of Lagos v. Olaniyan supra at 163; Williams v.Mokwe (2005) 14 NWLR (Pt. 945) 249 at 269. – PER W. S. N. ONNOGHEN. J.S.C.

Court Discretion and Extension of Time

ENYIBROS FOODS PROCESSING COMPANY LTD & ANOR V NIGERIAN DEPOSIT INSURANCE CORPORATION (Ibid)

It is settled law that a grant or refusal of an application for extension of time within which to appeal involves the exercise of the discretion of the court before which the application depends and that the said application must be supported by an affidavit which must state sufficient reasons to explain the delay; it must contain the judgment or ruling of the court against which the applicant is seeking to appeal and the proposed grounds of appeal against such judgment or ruling.

It should, however, be noted that two instances of delay may be involved in an application for extension of time for leave to appeal which must be explained. These are: (a) the reason why the applicant could not appeal within the time statutorily allowed to appeal, and (b) the reason why the application was not filed earlier than the time it was filed after the time statutorily allowed for the applicant to appeal. – PER W. S. N. ONNOGHEN. J.S.C.


TUNJI BOWAJE V. MOSES ADEDIWURA 3PLR/1976/38 (SC)

“This court would readily exercise its discretion to extend the periods prescribed for doing an act if it is shown to the satisfaction of the court that the failure by a party to do the act within the period prescribed was caused by the negligence or inadvertence of his counsel.” Per Bello, JSC


See also:

Nigerian Cases on Assault and Battery (holdings)

Nigerian Cases on Assault and Battery

Below are Court holdings on Assault and Battery from Nigerian Cases. Assault is unlawfully putting a person in fear of imminent harm. Battery is inflicting force on a person wrongfully. Assault is not the same as Battery, although they are very connected.

Meaning and Elements of Assault

KLM Royal Dutch Airlines v. Taher (2014) 3 NWLR (Pt. 1393) 137

Assault is the tort of acting intentionally, that is, with either general or specific intent, causing the reasonable apprehension of an immediate harmful or offensive contact. It is considered an intentional tort because Assault requires intent, as opposed to a tort of negligence. Actual ability to carry out the apprehended contact is not necessary. It need not involve actual contact. It only needs intent and the resulting apprehension.

Furthermore, a battery can occur without a preceding Assault, such as if a person is struck in the back of the head.

Three elements must be established in order to prove tortious Assault and these are: the plaintiff apprehended immediate (a) physical contact; the plaintiff had reasonable apprehension (b) (the requisite state of mind); and the defendant’s act of interference was intentional (the defendant intended the (c) resulting apprehensions).

Specific intent means that when the defendant acted, he or she intended to cause apprehension of a harmful or unwanted contact. General intent means that the defendant knew with substantial certainty that the action would put someone in apprehension of a harmful or unwanted contact. Assault can be justified in situations of self-defence or defence of a third party where the act was deemed reasonable. The focus for the purpose of determining whether a particular act is an Assault must be upon the reasonableness of the plaintiff’s reaction.

Meaning and Ingredient of Battery

Ndibe v. Ndibe (1998) 5 NWLR (Pt. 551) 632

The word “battery” in common law is a crime or a tort involving the actual (or negligent) use of unlawful physical force on a person without his consent. It includes even the slightest force; no actual harm need result. Consent, self defence, lawful and reasonable chastisement may be defences. In common usage “Assault” is often a synonym for battery, in law they are distinct.


Okekearu v. Tanko (2002) 15 NWLR (Pt. 791) 657

An act does not amount to a battery, unless it is done either intentionally or negligently. In this case, the amputation of the respondent’s finger was an intentional act done without the consent of either the respondent and or his guarantor. The appellant was thus liable in battery.

Assault and battery as a civil and criminal acts

FRSC & ORS v. AKPOS (2021)LCN/15014(CA)

“It is trite that assault and battery qualify as both criminal and tortuous acts. So it can arise in a criminal trial or civil claim in tort.” – Per YARGATA BYENCHIT NIMPAR, JCA


ESI v. CNPC/BGP INTERNATIONAL & ANOR (2014) LPELR-22807(CA)

“I am amazed that the learned trial judge has allowed the argument of learned Respondent’s counsel to becloud him to forget that assault can be both a civil and criminal wrong. Assault is a civil tort for which the aggrieved person is entitled to damages. Proof in civil matters is on a balance of probabilities.

“Assault or battery in civil matters involves inflicting some degree of force on a person negligently or intentionally. In this case, the Appellants claim that the 2nd Respondent pushed him out of his office and ordered mobile policemen to push him out of the camp. There is no evidence on record to contradict that statement of the Appellant.

“He claimed that by the act of the Respondents, he felt degraded, dehumanized and insulted in the presence of the other contractors. In this case, since none of the Respondents’ witnesses denied what occurred, the Appellant need only adduce minimal evidence which must be accepted by this court. See Egbunike & Anor. V. African Continental Bank Ltd. (1993) 2 NWLR Pt. 375 Pg. 34; Buraimoh v. Bamgbose (1989) 3 NWLR Pt. 109 Pg. 352.” – Per HELEN MORONKEJI OGUNWUMIJU, JCA

Proof of Assault and Battery

ADAMU v. IGP & ORS (2013) LPELR-22812(CA)

“For the Appellant to succeed in his claim for damages, it must be specifically pleaded and strictly proved. There is no doubt that the Appellant was assaulted, but for the Appellant to succeed in his claim for damages, he must have properly identified those who committed the tortuous act of assault and battery on him. He must identify the tortfeasors and the role each of them played in the alleged assault and damage to his property. See RANSOME – KUTI v. A. G. OF THE FEDERATION (1985) 2 NWLR (PT. 6) 211 at 221.” Per CHIOMA EGONDU NWOSU-IHEME, JCA


See also:

Nigerian Cases on Abuse of Court/Judicial Process (holdings)

Nigerian Cases on Abuse of Court/Judicial Process

Abuse of Court Process is the improper or malicious use of the judicial process by one party to intimidate or harass the other and interfere with the administration of justice. It is the same thing as Abuse of Judicial Process. Below are some Court holdings on Abuse of Court Process in Nigerian Cases.

Meaning of Abuse of Court Process

CUSTOMARY COURT OF APPEAL BENUE STATE v. TSEGBA & ORS (2017) LPELR-44027(CA)

“Abuse of judicial process is an imprecise concept as it involves circumstances and situations of infinite variety and conditions. Its one common feature is the improper use of the judicial process by a party in litigation to harass, irritate and annoy the adversary and interfere with the administration of justice such as instituting different actions between the same parties simultaneously in different Courts even though on different grounds.

“The abuse consists in the intention, purpose and aim of irritation of the opponent and interference with administration of justice. The concept applies only to proceedings that are wanting in good faith. See Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 and Federal Republic of Nigeria v. Dairo (2015) 6 NWLR (Pt. 454) 141.” – Per JOSEPH EYO EKANEM, JCA


C.A. BANJO & ORS VS ETERNAL SACRED ORDER OF CHERUBIM AND SERAPHIM (1975) Legalpedia (SC) 01111

The term “abuse of the process of the court” connotes that the process of the court must be used only bona fide and not improperly as a means of vexation and oppression.-Per George B. A. Coker, JSC

What constitute an Abuse of Court Process

Sheriff v. PDP (2017) 14 NWLR (Pt. 1585) 212

Abuse of court process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process is only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice.

The terms “abuse of court process” and “abuse of judicial process” are one and the same thing. Abuse of court process simply means that the process of the court has not been used bona fide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a multiplicity of same action in same court or even before another court of courts being pursued simultaneously by the plaintiff as the case may be.

The claim(s) reliefs(s) may be worded differently but it still amounts to an abuse of process where the substance or the end result of the two or more actions is the same. Thus, where by the grant of one relief or claim in favour of the plaintiff the aim of the plaintiff would have been achieved, it will amount to an abuse of process if same question is placed before the same or another court. Therefore, where two courts are faced with substantially the same question, it is always desirable to be sure that the question is litigated before only one of the courts.


AJAOKUTA STEEL COMPANY LIMITED v GREENBAY INVESTMENT & SECURITIES LIMITED & ORS (2019) Legalpedia (SC) 11661

The common feature of abuse of Court process is the improper use of judicial process by a party in litigation the most common one being multiplicity of actions on the same issues between the same parties and instituting different actions between the same parties in different Courts.

Abuse of the process of the Court may also occur where two similar processes are deployed in the exercise of the same right as in the instant case. Abuse of the process of the Court, where it occurs, constitutes a fundamental defect the effect of which results in the dismissal of the abusive process. See Adesanoye V. Adewole (2000) 9 NWLR (PT 127) 671 and Umeh & Anor V. Iwu & Ors (2008) LPELR-3363 (SC).

Effect of Abuse of Court/Judicial Process

Nwosu v. P.D.P. (2018) 14 NWLR (Pt. 1640) 532

An abuse of court process constitutes a fundamental defect, the effect of which will lead to a dismissal of the process, which is abusive. In other words, once the court is satisfied that a proceeding before it amounts to an abuse of court process, it has the right to invoke its coercive powers to punish the party in abuse of its process, and quite often, that power is exercised by a dismissal of the action, which constitutes the abuse.

The court reserves the prerogative and the inherent jurisdiction to protect itself from an abuse of its process and any case which is an abuse must go under the hammer so as to halt the drift created by the abuse.


CENTRAL BANK OF NIGERIA v. SAIDU H. AHMED & ORS (2001) JELR 44242 (SC) or C.B.N. v. Ahmed (2001) 11 NWLR (Pt. 724) 369

Bearing in mind that a Court has a duty to intervene to stop an abuse of its process, it is in my humble view pertinent to refer to the observation of Nnaemeka-Agu, JSC in Arubo v. Aiyeleru (1993) 3 NWLR(Pt. 280) 126 at 142, where his Lordship said:

“Now inherent jurisdiction or power is a necessary adjunct of the powers conferred by the rules and is invoked by a Court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused.

“One most important head of such inherent powers is abuse of process, which simply means that the process of the courts must be used bona fide and properly and must not be abused. Once a court is satisfied that any proceeding before it is an abuse of process it has the power, indeed the duty, to dismiss it.

“See on this, Willis v. Earl of Beauchamp (1886) 11 probate 59. p. 63. It has been held in numerous cases that it is an abuse of process of the Court for a suitor to litigate again over an identical question which has already been decided against him even if the matter is not strictly res judicata. See Stephenson v. Gamett (1898) 1 QB 67, CA; also Spring Grove Services Limited v. Deane (1972) 116 S.J. 844.” – PER. EJIWUNMI, J.S.C


See also:

Nigerian Cases on Misrepresentation (Court holdings)

Nigerian cases on Misrepresentation

Below are Court holdings on Misrepresentation from Nigerian Cases. Misrepresentation is the act of making a false or misleading statement about something, usually with the intent to deceive.

Meaning of Misrepresentation

ABBA v. ABBA AJI & ORS (2022) LPELR-56592(SC)

“The Court below had alluded to a misrepresentation of facts and the definition of misrepresentation would be of assistance here that is from Black’s Law Dictionary 9th Edition at page 1091 thus: “The act of making a false or misleading assertion about something usually with the intent to deceive, the words denotes not just written or spoken words but also any other conducts that amounts to a false assertion. (2) The assertion so made; an assertion that does not accord with the facts – also termed false representation …”

“Going by the above definition, a person is said to make a misrepresentation, if he makes an assertion which is false or misleading about something. In the case of AFEGBAI V. A.G. EDO STATE (2001) 7 SCNJ PAGE 438 AT 447, this Court held that whether there is misrepresentation, it is a question of fact and that misrepresentation can be proved in the following manner:- “First, the representation must be a statement of existing fact.

“Secondly, the representation must be material and unambiguous. Thirdly, the representee must show that he has acted in reliance on the misrepresentation.” – Per MARY UKAEGO PETER-ODILI, JSC


Durowaiye v. U.B.N. Plc (2015) 16 NWLR (Pt. 1484) 19

misrepresentation is the act of making a false or misleading statement about something, with the intent to deceive. The statement so made is an assertion which does not accord with facts.


ALHAJI FATAI ADEKUNLE TERIBA v. WALE ADEYEMO (2010) LCN/3803(SC)

“To constitute a misrepresentation, the misrepresentor and the misrepresentee must be distinct from one another. Thus, where a person who claims to have been deceived by a misrepresentation is in effect the same as the person who is alleged to have made it, then there is no misrepresentation in law. On this point see the English Case of ESSO PETROLEUM CO. LTD vs MAROON (1976) 2 ALL E.R.5. and Halsbury’s Laws of England Fourth Edition Vol. 31 Paragraph 703 at Page 443.” – Per FRANCIS FEDODE TABAI, JSC

Types of Misrepresentation

Mohammed v. Mohammed (2012) 11 NWLR (Pt. 1310) 1

There are various species of misrepresentation. Each type gives rise to different remedies. Fraudulent misrepresentation can entitle the representee to rescind the contract while other types of misrepresentation merely give rise to an action for damages. In the instant case, the 1 st respondent relied on fraudulent misrepresentation to rescind the whole agreement in exhibit “MM2”. (P. 36, paras. E-F)8.On Nature of agreement which formalises intention to convey title to land.

An agreement which merely formalises a proposed intention of the parties to devise title in respect of landed property has no more legal significance than an agreement to purchase land which is different from a conveyance or a deed of assignment.

Such an agreement is a registrable instrument which can be tendered to prove the terms of the oral agreement between the parties or as a receipt to prove payment and equitable interest. In the instantcase, exhibit “MM2” was not an instrument of land transfer or an instrument intended to convey title to land.

Burden of Prove in Misrepresentation

OLAOGUN & ORS v. BENSON (2021) LPELR-56210(CA)

“In law, to prove misrepresentation, the party so alleging must plead and prove the following elements constituting fraudulent misrepresentation, namely the representation must be a statement of existing facts, the representation must be material and unambiguous, and the representee must show that he has acted in reliance on the misrepresentation.

“The burden of alleging and proving that degree of falsity which is required for the representation to be a misrepresentation rests, in every case, on the party who sets it up. See Afegbai vs. AG., Edo State (2001) LPELR – 193 (SC). – Per MUHAMMAD IBRAHIM SIRAJO, JCA

Effect of Misrepresentation on a Transaction

Udogwu v. Oki (1990) 5 NWLR (Pt. 153) 721

The effect of misrepresentation on a transaction is that it entitles the injured person to avoid the transaction induced by the misrepresentation for example, in the case of a contract, to have it rescinded or to recover damages for the injury. It also gives rise to a defence to any action brought by the fraudulent party to enforce the contract or other transaction, but it does not make it void ab initio.

Misrepresentation being of no effect

FHOMO NIGERIA LIMITED v. ZENITH BANK PLC (2016)LCN/9238(CA)

Misrepresentation is simply the act of making a misleading assertion about something, it is therefore a false assertion. In an action alleging misrepresentation, the law requires the Appellant to prove that the Respondent made a false statement knowing it to be false, or reckless. In the absence of required evidence in proof of fraud or misrepresentation, parties are bound by the terms of the contract, see ATTORNEY-GENERAL OF NASARAWA STATE v. ATTORNEY GENERAL OF PLATEAU STATE (2012) LPELR-9730 (SC) where the Court held thus:

“Parties are bound by their contracts and it is not the duty of the Court to rewrite contracts for the parties. In the absence of fraud or misrepresentation the parties are bound by its terms.”

See also EGBASE v. ORIARGHAN (1985) NWLR (Pt. 10) 884 where the apex Court held:

“Whenever a man of full age and understanding who can read and write signs a legal document which is put before him for signature by which I mean a document which, it is apparent on the face of it, is intended to have legal consequences – then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as its character or content or effect, he cannot be heard to say that it is not his document.

By his conduct in signing it he has represented to all those whose hands it may come, that it is his document; once they act upon it as being his documents he cannot go back on it, and say it was a nullity from the beginning.” – PER YARGATA BYENCHIT NIMPAR, J.C.A.


See also:

Nigerian Cases on Interlocutory Injunction (holdings)

Nigerian Cases on Interlocutory Injunction

Below are court holdings on Interlocutory Injunction from Nigerian Cases. An interlocutory injunction is a court order preventing a party in a suit from doing certain acts pending the determination of the suit.

Meaning of Interlocutory Injunction

Sabru (Nig.) Ltd. v. Jezco (Nig.) Ltd. (2001) 2 NWLR (Pt. 697) 364

interlocutory injunction means an injunction granted after due contest inter partes. It is an injunction not only ordered after a full contest between the parties but also ordered to last until the determination of the main suit. Applications for interlocutory injunction are properly made on notice to theother side to keep matters in status quo until the determination of the suit.

Purpose of Interlocutory Injunction

FIRST BANK OF NIG. PLC & ANOR VS NDARAKE & SONS (NIG) LTD (2008) Legalpedia (CA) 57117

“The main purpose of an interlocutory injunction is to preserve the res or subject matter of the litigation from destruction pending the determination of the matter, so, where an action sought to be restrained has already been completed, the equitable remedy of interlocutory injunction will no longer be available to an applicant.” – PER THERESA NGOLIKA ORJI-ABADUA JCA


FRANCIS EDET EKPENYONG & ANOR HON. OROK OTU DUKE & 5 ORS. CA (2008) Legalpedia (CA) 10881

“The purpose of an interlocutory injunction is to maintain the status quo pending the determination of the substantive suit. Status quo is the state of affairs existing during the period immediately preceding the issuance of the writ.” – PER JEAN OMOKRI JCA

Application for an Interlocutory Injunction

Ezebilo v. Chinwuba (1997) 7 NWLR (Pt. 511) 108

An applicant for interlocutory injunction must show that his legal right is threatened or abused. This may arise by a threat to or brutalisation of the res which may result in damage, destruction, or abuse of it.

A threatened trespass, for instance, in the case of land is enough to sustain an application for interlocutory injunction. Once the applicant shows an actionable wrong against the res, an order of interlocutory injunction will follow.

Where, however, an applicant is unable to show an actionable wrong or an infringement of a legally enforceable right, the fact that the act of the respondent is injurious to him is not sufficient for the grant of an interlocutory injunction.


ACHEBE v. MBANEFO & ANOR (2017) LPELR-41884(CA)

“The learned trial Judge has to consider whether the action of the party that applied for an interlocutory injunction is frivolous, or there are triable issues in granting or refusing an application for an interlocutory injunction. In Adenuga vs. Odumeru (2003) FWLR (Pt.158) 1288 at page 1304 paragraph “H” to page 1305 paragraphs “A”-“G” to wit: “In an application for an interlocutory injunction, the plaintiff must show an existence of his right which needs to be protected in the interim. He must at the same time satisfy the Court that there is a real question to be tried in the substantive suit: Egbe vs. Onogun (1972) 1 All NLR 95 at 98. This does not require the Court to determine the merit of the plaintiff’s entitlement to the claim.

“But it places on the plaintiff an initial burden. It is the burden of showing that there is a serious question to be tried upon the affidavit evidence (as well with averments in the statement of claim, if any has been filed): See Obeya Memorial Hospital vs. Attorney-General of the Federation (1987) 3 NWLR (Pt.60) 325. It is necessary to emphasize that it is of vital importance for a plaintiff seeking an interlocutory injunction to adduce sufficiently precise factual affidavit evidence to satisfy the Court that his claim for a permanent injunction at the trial is not frivolous; or at any rate, based on the substantive claim, to produce affidavit evidence to satisfy the Court in justification of his application for an interlocutory injunction to maintain the status quo.

“It is only when this has been done that it will become necessary for the Court to proceed further with the application to consider the balance of convenience. Otherwise the application ought to be refused at the point the Court is not so satisfied. This is clear from the observation made by Lord Diplock in American Cyanamid Co. vs. Ethicon Ltd. (1975) 1 All E.R. 504 at 510 as to what should be the approach in considering an application for an interlocutory injunction. He said inter alia: “It is no part of the Court’s function at this stage of the litigation to try to resolve conflicts of evidence of affidavit as to facts on which the claims of either party may ultimately depend not to decide difficult questions of law which call for detailed argument and mature considerations.

“These are matters to be dealt with at the trial… so unless the material available to the Court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the Court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought.”

“It seems to me that even if there had been no cause for me to comment adversely on the complaints laid in the grounds of appeal and the issues set down for determination, this appeal stood no chance of succeeding. The likelihood that a plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the Judge in weighing the risks that injustice may result from his deciding the application for an interlocutory injunction one way rather than the other: See NWL Ltd. vs. Woods (1979) 3 All ER 614 at 626.”

“Economic benefits a party has been deriving from the property before the alleged interference or invasion may be considered in granting or refusing an application for interlocutory injunction pending the determination of the rights of the parties. See Adesina vs. Arowolo (2005) FWLR (Pt.245) 1123 at pages 1140 to 1141.” – Per JOSEPH TINE TUR, JCA


CHIEF DANIEL OGBONNAYA & ORS VS ADAPALM NIGERIA LIMITED (1993) Legalpedia (SC) 71537

“In an application for an interlocutory injunction, an applicant should interalia satisfy the court that there is a serious question to be tried at the hearing of the suit and that the facts disclose a reasonable probability that the applicant will be entitled to the relief sought.” PER KUTIGI, J.S.C

Differences among interlocutory, Interim, and ex-parte injunctions

Sabru (Nig.) Ltd. v. Jezco (Nig.) Ltd. (2001) 2 NWLR (Pt. 697) 365

Applications for interlocutory injunction are properly made on notice to the other side to keep matters in status quo until the determination of the suit. Interim injunction, on the other hand, while always showing the tramels of order of injunction made ex-parte are not necessarily coterminous with them. Their main feature which distinguishes them from interlocutory injunction is that they are made to preserve the status quo until a named date or until further order or until an application on notice can be heard.

They are also for cases of real urgency. But unlike ex-parte orders of injunction, they can be made during the hearing of a motion on notice for interlocutory injunction, when, because of the length of the hearing, it is shown that an irretrievable mischief or damage may be occasioned before completion of hearing.

Also, it can be made to avoid such an irretrievable mischief or damage when due to the pressure of the business of the court or through no fault of the applicant it was impossible to hear and determine the application on notice for interlocutory function.

However, what the court does in such a case is not to hear the application for interlocutory injunction ex-parte, behind the back of the respondent, but to make an order which has the effect of preserving the status quo until the application for interlocutory injunction can be heard and determined.


POLARIS BANK LTD v. BELLVIEW AIRLINES LTD & ANOR (2021) LPELR-56258(CA)

“In the seminal case of Kotoye v CBN (supra) at page 78 – 79, Karibi-Whyte, JSC explained: “It is useful to examine the meaning and scope of the words “interlocutory” and “interim” which have been used very freely and often times regarded as interchangeable in applications for injunctions. See Kufeji v. Kogbe (1961) 1 All N.L.R. 113; Iroegbu v. Ugbo (1970-71) 1 E.C.S.L.R. 162.

“An interlocutory application is an application which can be made in the course of a proceeding, and at any stage of a cause or matter, for the purpose of keeping the parties in status quo till the determination of the action – See Obeya Memorial Specialist Hospital v. Attorney-General for the Federation (1987) 3 N.W.L.R. (Pt.60) 325. Ojukwu v. Governor of Lagos State (1986) 3 N. W. L. R. (Pt.26) 39. The word “interim” used also in applications and orders of injunction for maintaining the status quo of parties to a suit means “temporary”, “in the mean time.”

“However, an injunction described as interim falls within the above definition and is an interlocutory injunction because it is an application made in the course of the proceedings. But unlike an interlocutory injunction properly so called, an interim injunction is not. It is an injunction made until a named date or until further order or until an application on notice can be heard. Thus, they bear all the features and trappings of an interlocutory injunction and granted upon the same consideration of equity.” – Per ONYEKACHI AJA OTISI, JCA


See also:

Nigerian Cases about Alibi (court holdings)

Nigerian Cases about Alibi

Below are some court holdings about Alibi in Nigerian cases. Alibi is a claim of being somewhere else at the time a crime was committed.

Meaning of Alibi

ALHAJI MUSA SANI V. THE STATE (2015) Legalpedia (SC) 51133

“Alibi is a Latin word meaning “Elsewhere”. Where an accused person claims he was somewhere else and could not have been at the scene of crime and could therefore not have committed the crime with which he is charged and gives particulars of his whereabouts at the material time to the Police at the earliest opportunity, the Police has a duty to investigate that claim no matter how unreasonable or stupid the claim or plea may seem.” PER N. S. NGWUTA, J.S.C

How to disprove Alibi

DAVID OMOTOLA V THE STATE (2009) Legalpedia (SC) 19416

One of the ways by which the prosecution may disprove an alibi is to call evidence against it which is cogent, substantial and credible. The fact that an accused has raised an alibi by his evidence or that of his witnesses does not imply that the alibi must be accepted by a court. If the evidence called by the prosecution is credible, strong and compelling, the court may reject the defence of alibi. – Per Oguntade, JSC

When the Defence of Alibi should be raised

Rabiu v. State (2010) 10 NWLR (Pt. 1201) 127

A defence of alibi must be unequivocal and must be raised by an accused at the earliest opportunity during investigation of the allegation against the accused person and not during trial. This will enable the prosecution investigate the truth of the alibi. However, failure of a defence of alibi does not mean the guilt of the accused. In the present case, the defence of alibi was raised during trial by the appellant. The prosecution whose duty it is to disprove the alibi where properly raised, did not have the time or opportunity to investigate the alibi or to adduce evidence in rebuttal of the defence.


Kareem v. State (2021) 17 NWLR (Pt. 1806) 503

An accused person must raise his alibi at the earliest opportunity, preferably in his extra-judicial statement. He must not be allowed to use alibi as trump card to scuttle prosecution. This is to offer the Police an opportunity either to confirm or confute its availability to the accused person. The accused seeking to benefit from such defence of alibi must open up and provide substantial details as to particulars. The defence of alibi would be unavailing where the accused person raised it during the trial.

When Alibi should or should not be investigated

AYUBA v. STATE (2021) LPELR-55745(CA)

“Similarly, in Adebiyi vs State (2016) 1-2 S.C (pt iv) 95, the Supreme Court held: “Alibi means elsewhere. The accused person is saying that at the time the offence for which he is charged was committed, he was somewhere else so he could not have committed the offence. It is a matter within the personal knowledge of the accused. After an accused person is arrested he should raise the defence of alibi (if that is his defence) at the earliest opportunity, usually in his statement to the Police.

An alibi must be very detailed on the exact whereabouts of the accused person. He could refer to persons that the Police can contact to show that his alibi is true. The onus is thus on the accused person to rely on evidence to support his alibi, and the standard of proof required to establish an alibi is on balance of probabilities. Once an accused person raises the defence of alibi, it is the duty of the Police to investigate it to see if it is true. There would be no need to investigate an alibi if there is overwhelming evidence against the accused person. See Osu v. State (2013) 1-2 SC p.37 Ajayi v. State (2013) 2-3 SC (Pt. 1) p.143 Aliyu v. State (2013) 6-7 SC (Pt. iv) p.1 Ozaki v. State (1990) 1 SC p. 109.” Per EBIOWEI TOBI, JCA

Duty of the Police to Investigate Alibi

OROBOSA EYONAOWA v. COMMISSIONER OF POLICE (2014)LCN/7662(CA)

It is trite law that once an accused person raises the defence of alibi at the earliest opportunity as in this case, the onus rests on the Police to investigate the said alibi. The learned trial judge at pg. 60 of the record conceded that the appellant raised the defence of alibi timeously and at the earliest opportunity. per. TOM SHAIBU YAKUBU, J.C.A.

Effect of a successful plea of Alibi

Kareem v. State (2021) 17 NWLR (Pt. 1806) 503 – Supreme Court

A successful plea of alibi results in the acquittal of the defendant. Alibi is a radical, sweeping and far-reaching defence which, where proved, serves to completely exculpate the defendant from the offence charged.


See also:

Nigerian cases on Trespass to Land (court holdings)

Nigerian cases on Trespass to Land

Below are holdings from Nigerian cases on or about Trespass to Land. Trespass to Land is intentionally entering into land, remaining on land, placing or projecting any object upon land in possession of another, without lawful justification.

What is trespass to land?

Oriorio v. Osain (2012) 16 NWLR (Pt. 1327) 560

trespass to land is the wrongful and unauthorized invasion of the private property of another. It is trespass to land provided the entry into the land of another by a person is not authorized. trespass to land is rooted in a right to exclusive possession of the land allegedly trespassed. trespass to land is therefore actionable at the instance of a person in possession of the land. Only a person in possession of land at the material time can maintain an action for damages for trespass.

Who can bring an action for Trespass of Land?

EDIO EKRETSU & ANOR VS MILLAR OYOBEBERE & ORS (1992-12) Legalpedia 05059 (SC)

‘It is trite law that trespass to land is actionable at the suit of the person in possession of the land.’ Per Ogwuegbu J.S.C


AJERO & ANOR v. UGORJI & ORS (1999) LPELR-295(SC)

“In Okolo v. Uzoka (supra) this Court stated:- “It is the law and this Court has so held times without number that trespass to the land is actionable at the suit of the person in possession of the land. The slightest possession in the plaintiff enables him to maintain trespass if the defendant cannot show a better title: And as regards a claim for damages for trespass the West African Court of Appeal, Awoonor Renner v. Anan (1934-1935) 2 WACA had this to say:-

“A trespass to land is an entry upon land or any direct and immediate interference with the possession of land. The comprehensive way of describing a trespass is to say that the Defendant broke and entered the plaintiffs’ close and did damage, and it follows that in order to maintain an action for trespass the plaintiff must have a present possessory title – an owner of land who is legally entitled to possession not being competent to maintain an action for trespass before entry.”

I am therefore in entire agreement with the Appellants that having established possession and acts of trespass on the land in dispute, the court below ought to have found in their favour damages for trespass and injunction because the fact that they failed on a claim for title does not mean that their claim for damages and trespass to the same land must necessarily fail, since possession and trespass have already been established in their favour. See Oluwi v. Eniola (supra) and Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296.” – Per SYLVESTER UMARU ONU, JSC

Difference between a claim of title to land and trespass to land

Oyadare v. Keji (2005) 7 NWLR (Pt. 925) 571

There is a clear dichotomy between a claim for declaration of title to land and a claim for trespass to land. In the case of declaration of title, the plaintiff must prove ownership of the land. On the other hand, a claim for trespass to land is predicated or based on exclusive possession of the land to which the claim relates.

Burden of prove in a claim of trespass to land

KACHALLA v. HAMMAN & ANOR (2021) LPELR-54599(CA)

“The burden is on the party who will lose if no evidence is adduced or the person that alleges the existence of a fact. See Fajemirokun vs Commercial Bank (Nig) Ltd & Anor (2009) S.C. (pt 1) 26. The 1st Respondent is the one alleging that the Appellant trespassed into his land. The burden therefore is on the 1st Respondent to show that the Appellant trespassed into BOFG/122; Plot 11 which clearly by evidence what was sold to him.” Per EBIOWEI TOBI, JCA

Damages for trespass to land

BORNO STATE URBAN PLANNING AND DEVELOPMENT BOARD, MINISTRY OF LAND AND SURVEY, BORNO STATE & ANOR v. BAMS INVESTMENT NIGERIA LIMITED (2017)LCN/9515(CA)

“On the issue of arbitrariness in making the award, it is trite law that every unlawful and unauthonzed entry into land in possession of another is actionable and for which damages would be awarded. Such damages are awarded as monetary compensation for the legal injury which a defendant has committed on the property of the claimant. The compensation in such a case is imposed by law – Attorney General, Bendel State Vs Aideyan (1989) 4 NWLR (PT. 118) 646, Ibrahim Vs Mohammed (1996) 3 NWLR (PT. 437) 453, Ajayi Vs Jolaosho (2004) 2 NWLR (PT. 356) 89.

Thus, a successful action in invasion of land per se attracts damages and even where no damage or loss is caused, the claimant is entitled to nominal or minimal damages ? Umunna Vs Okwuraiwe (1978) 6-7 SC 1, Osuji Vs Isiocha (1989) 3 NWLR (PT. 111) 623, Jija Vs Shande (2005) 9 NWLR (PT. 931) 543, Chukwuma Vs Ifeloye (2008) 18 NWLR (PT. 1118) 204, Anyanwu Vs Uzowuaka (2009) 13 NWLR PT. 1159) 445, Asuquo Vs Asuquo (2009) 16 NWLR (PT. 1167) 225, Spring Bank Plc Vs Adekunle (2011) 1 NWLR (PT. 1229)” – Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA


See also:

Nigerian cases on Defamation (court holdings)

Nigerian cases on Defamation

Below are some Nigerian cases with holdings on defamation. Defamation is the lowering of a person in the estimation of right-thinking members of the society.

Nature and Types of Defamation

SALAUDEEN v. OKUNLOYE (2019) LPELR-48469(CA)

Defamation as a tort, whether libel or slander consists of the publication to a third person or persons of any words or matter which tends to lower the person defamed in the estimation of right thinking members of society generally, or to cut him off from the society or to expose him to hatred, contempt, opprobrium or ridicule or to injure his reputation in his office, trade or profession or to injure his financial credit.

The tort of defamation is either libel or slander. Libel is in written form while slander is spoken words published to another person, other than the person defamed. It is the publication of the libelous matter that gives the plaintiff his right of action, but it must also be re-iterated that libel is all about the estimation in which others hold the plaintiff and not what he thinks of himself. See Black’s Law Dictionary, Ninth Edition page 479 to 480, and the cases of C.S.S.& D.F. Ltd V. Schlumberger (Nig.) Ltd (2018) 15 NWLR (pt. 1642) 238, (SC), Onah V. Schlumberger (Nig.) Ltd (2018) 17 NWLR (pt. 1647) 84, (SC), Oboh V. Guardian Newspaper (2018) LPELR-46511 (CA) and Ubochi V. Ekpo & Ors. (2014) LPELR- 23523(CA) and Ekong V. Otop (supra).” – Per BALKISU BELLO ALIYU, JCA

Proof to succeed in an action for defamation

SKYE BANK PLC V CHIEF MOSES BOLANLE AKINPELU (2010) Legalpedia (SC) 29121

To succeed in an action of libel the plaintiff must prove 3 fundamental elements of defamation constructively:

1. that there is the publication of the material complained of by the defendant;

2. That the publication refers to no other person but the plaintiff conclusively;

3. That the publication is defamatory of the plaintiff. – Per OGEBE JSC


ISIKWENU & ANOR v. IROH (2012) LPELR-19796(CA)

“The Plaintiff in an action for defamation must not only prove that Defendant published the defamatory words he must identify himself as person defamed. See OGBOMOR v. THE STATE (1985) 5 SC 242.” Per TUNDE OYEBANJI AWOTOYE, JCA

Who can bring an action for defamation?

Omega Bank Plc v. Govt., Ekiti State (2007) 16 NWLR (Pt. 1061) 445

Any natural or juristic person (except a government entity) may sue for defamation. An action for defamation is a purely personal action, and the proper person to sue as the plaintiff is the person defamed, and the proper person to be sued as defendant is the person who published the defamatory words or caused them to be published.

Whether or not the words are defamatory

S.B. DALUMO VS THE SKETCH PUBLISHING CO. LTD (1972) Legalpedia (SC) 51111

“As the law stands, the test of whether words that do not specifically name a plaintiff refer to him or not is this. Are the words used such as, reasonably in the circumstance, would lead persons who know the plaintiff to believe that he was the person referred to?” FATAYI-WILLIAMS, JSC.

When is defamation actionable per se

CHIEF TONY OKOROJI v. ONYEKA ONWENU (2016)LCN/9036(CA)

“Defamation/libel is actionable per se and once there is credible evidence and the Court is satisfied as in the case of the Appellant, that the defamation was established or proved as required by law, it can find for the Claimant and award damages, as may be appropriate.

There is no need for proof of actual damages in monetary or material terms by the claimant before an award of damages is made by the Court. The damages are presumed by law to have flowed naturally and automatically from the proved defamation/libel of the Claimant.

See Asheik v. M. T. Nig. Ltd (2010) 15 NWLR (1215) 114; Odueole v. West (2010) 10 NWLR (1203) 598: Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (1256) 574. Because the assessment of damages for libel is in the realm of general damages that are presumed by law, factors to be considered would be the peculiar facts and circumstances of the defamation as shown in the evidence placed before the Court.” – Per MOHAMMED LAWAL GARBA, JCA


See also:

Nigerian cases on Necessary and Proper Parties (holdings)

Nigerian cases on Necessary & Proper Parties

Below are some Nigerian court holdings on or about Necessary and Proper parties. A necessary party, in law, is different from a proper party.

Classification of parties

Dapialong v. Lalong (2007) 5 NWLR (Pt. 1026) 199

Parties to an action have been classified into three namely: (a)proper parties; (b)desirable parties; and (c)necessary parties. Proper parties are those who, though not interested in the plaintiff’s claims are made parties for somegood reasons, and desirable parties are those who have an interest or who may be a affected by the result, while necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with.

Who is a Necessary party?

N.B.A. v. Kehinde (2017) 11 NWLR (Pt. 1576) 225

A necessary party is one who should be bound by the result and the question to be settled. Therefore, there must be a question in the action which cannot be effectually and completely settled unless he is a party. Thus, the only parties that must be present ina matter are necessary parties. In the instant case, the person who was doing the act complained of is the Nigerian Bar Association. If the court decided in favour of the respondent, the party that would be bound is the Nigerian Bar Association. Every other body or persons involved were at best, desirable parties or necessary witnesses.


OHWAVBORUA & ORS v. PDP & ORS (2013) LPELR-20872(CA)

“For the applicant to be a necessary party, he must show that the subject matter or cause of action between the existing parties is such that cannot be properly settled unless he is made a party. In Okoli v. Ejiakor supra, this Court was enjoined to ask the following questions: 1. Is the suit likely to be defeated by the non-joinder of the party? 2. Is it not possible for the Court to determine the live issues in the litigation without joining the party? 3. Will the party seeking to be joined suffer injustice if he is not joined?” – Per HELEN MORONKEJI OGUNWUMIJU, JCA

Who is a Proper Party?

PEOPLES DEMOCRATIC PARTY v. ALH. IBRAHIM ALI AMIN & ANOR (2019)LCN/13140(CA)

The Apex Court in Green v. Green (1987) NWLR (Pt. 61) 481 drew the distinction between persons who are proper parties, desirable parties. The Court went on to hold that:
Proper parties are those who, though not interested in the plaintiffs claim, are made parties for some good reasons e.g where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable those who have an interest or who may be affected by the result.

Necessary parties are those who are not interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff.
Words underlined for emphasis.

I want to believe that a resort to claim or reliefs sought by the plaintiff or claimant becomes inevitable if only to determine whether or not a person is necessary party to the suit. I have earlier alluded to some of the reliefs sought by the 1st respondent in the action. There is no question, looking at relief Nos 1, 2, 4, 5, 6, 7, 8, 10 including the 2 (two) reliefs sought in the alternative, all have bearing on the person whose name was submitted to the 2nd respondent as the candidate of the PDP. That is to say if the reliefs or claim will affect him in one way or the other the candidature of Abba K. Yusuf, the person whose name was submitted to INEC as the candidate of the PDP in the Governorship election, he is a necessary party and I submit affirmatively, that given the reliefs aforementioned, which do not only have bearing on the person of Abba K. Yusuf but affect his candidature, as the nominee of the party, no decision can fairly and effectively be taken behind his back, who is affected by the result.” – Per SAIDU TANKO HUSSAINI, JCA

Effect of a judgment given without joining necessary/proper parties

AZUBUIKE v. PDP & ORS (2014) LPELR-22258(SC)

“a necessary party should be allowed to have his fate in his own hands. He should not be shut out to watch through the window. Judgment made with an order against a person who was not a party to a suit is to no avail. It cannot be allowed to stand. See: Uku v. Okumagba (supra).” Per JOHN AFOLABI FABIYI, JSC


Dapialong v. Lalong (2007) (Ibid)

An action cannot be rendered incompetent simply because all the necessary parties have not been joined in the suit. It suffices if the parties before the court are competent parties and the cause of action, if substantiated by the plaintiff, entitles him to a remedy against the defendant. In the instant case, the reliefs sought by the respondents could be determined between the parties to the suit without joinder of other parties. In the circumstance, the trial court was right when it held that the parties to the suit were the necessary parties, and assumed jurisdiction to determine the suit.

Importance of Identifying Proper Parties

TRANSMISSION COMPANY OF NIGERIA P.H.C.N V ADAMAWA STATE BOARD OF INTERNAL REVENUE (2020) Legalpedia (CA) 01819

“For a suit to succeed the proper parties against whom rights and obligations arising from the cause of action must be properly identified. In Ehidimhen v. Musa (2000) FWLR (Pt. 21) 930 at 962 Para E-H the Apex Court held:-
It is imperative that for an action to succeed, the parties must be shown to be the proper parties to whom rights and obligations arising from the cause of action attach…..”

“As I earlier stated in this Judgment NELMCO was specifically created to assume the assets and liabilities of the defunct PHCN with a view to ensuring that all rights and claims against PHCN are settled by NELMCO. The case as constituted and determined by the lower Court without NELMCO was improperly constituted and thus incompetent. In the case of Alhaji Lawan Sarkin Tsaha v. Union Bank of Nigeria Plc. (2002) FWLR (Pt. 97) 765 at 771 Para E-F the Supreme Court Held that:-

There can be no argument that the action was improperly constituted. The parties ought to have been the Respondent Bank and the Board. Not having been properly constituted, the suit was incompetent. I therefore allow this appeal on that issue alone and set aside the Judgment of the lower Court.”


See also:

Nigerian cases on Stay of Execution (court holdings)

Nigerian cases on Stay of Execution

Below are some court holdings from cases about or relating to the stay of execution in Nigeria. A stay of Execution is an order by a court to temporarily suspend another court order or judgement.

Presupposition of Stay of Execution

University of Agric., Makurdi v. Ogwuche (2000) 12 NWLR (Pt. 681) 360

A stay of execution in its connotation presupposes that there is a subsisting competent judgment which execution has to be stayed. But the court cannot stay execution of a judgment that is yet to be given. The grounding of stay of execution is coterminous with the pendency of an appeal and the appellant has to apply for it, as it is not as a matter of right. Besides, it underscores the presence of a valid notice of appeal containing competent grounds in the matter.

Effect of a stay of Execution

SPDC (NIG) LTD v. AMADI & ORS (2011) LPELR-3204(SC)

“Executory judgments on the other hand are stayed. In considering an application for stay of execution or injunction the grounds of appeal should not be taken in isolation, rather it is the effect of refusal of the application on the appellant if he subsequently wins the appeal that is of utmost importance. A stay of execution stops temporarily the beneficiary of the judgment from enjoying the fruits of the judgment while the appeal is being heard. It is usually granted before the hearing of the appeal and stays in force right through the hearing of the appeal. The aim being to protect the RES from destruction, thereby avoiding a situation where the court hearing the appeal is presented with a fait accompli. A stay of execution would be granted if the applicant is able to show special and exceptional reasons.” Per OLABODE RHODES-VIVOUR, JSC

Principle guiding the grant of a Stay of Execution

NNAMANI BE NNAJI NWOBODO v. OKIDA AKKAH (2016)LCN/8172(CA)

The application before this Court is for an Order staying the execution of the judgment of the Court below. A stay of execution is an equitable remedy. An Order for stay of execution is a discretionary matter and as with all exercise of discretion, it must be done judiciously and judicially. By virtue of S. 18 of the Court of Appeal Act 2004, the Court of Appeal has jurisdiction to grant or refuse stay of execution of a judgment appealed against, and such grant may be made unconditionally or upon conditions imposed with the judicial discretion of the Court. See also, Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124.

The Court should be mindful when faced with an application for stay of execution to ascertain that such an application is not merely a ploy to stall the proceedings but that the applicant has germane reasons for bringing such an application. This Court per Onalaja J.C.A. has formulated a comprehensive list of principles to serve as beacons to guide the Courts, be it of first instance or an appellate Court in considering the issue of stay of execution. See P.H.M.B v. Utomi (1999) 13 NWLR (Pt. 636) P. 572 at 574-575,

The locus classicus in Nigeria is Vaswani Trading Co. Ltd v. Savalakh & Co (1972) All NLR 922; (1972) 12 SC 50. See also Ajomale v. Yaduat (2) 1991 5 NWLR (Pt.191) Pg.266; Akilu v. Oduntan & Ors (1991) 2 NWLR (Pt.171) Pg.1. The following principles have been established in the long line of cases.

“1. The Courts have the unimpeded discretion to grant or refuse a stay. In this and in all other instances of discretion, the Court is bound to exercise the discretion both judicially and judiciously and not erratically

2. A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for stay but does not adequately take into account the respondent’s equal right to justice is a discretion that is not judicially exercised.

3. A winning plaintiff or party has a right to the fruits of his judgment and the Court will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is entertained.

4. An unsuccessful litigant applying for a stay of execution must show special or exceptional circumstances eloquently pleading that the balance of justice is obviously weighed in favour of a stay.

5. What will constitute these special or exceptional circumstances vary from case to case. However, such circumstances involve a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject matter of the proceedings or judgment or foist helplessness or render nugatory any order or orders of the Appellate Court or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally produce a situation in which whatever happens to the case and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo.

6. The onus is on the party applying for a stay pending appeal to satisfy the Court that on the peculiar circumstances of his case, a refusal of a stay would be unjust and inequitable.

7. The Court will grant a stay where its refusal will deprive the appellant of the means of prosecuting the appeal.

8. The chances of the applicant on appeal are important. If the chances are virtually nill, a stay may be refused.

9. The nature of the subject matter in dispute, whether maintaining the status quo until a final determination of the appeal in the case will meet the justice of the case.

10. Whether if the appeal succeeds the appellant will not be able to reap the benefits of the judgment on appeal.

11. Whether the judgment is in money and costs and whether there is a remarkable probability of recovering these back from the respondent if the appeal succeeds.

12. Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting the appeal. See also Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Martins v. Nicanner Foods Co. Ltd (1988) 2 NWLR (Pt. 74) 75

In this case, the prayer for stay of execution pending appeal is made to prevent the successful party in this case, the Respondent from reaping the fruits of his success at the trial. It is a serious interruption of the interest of the Respondent and for the Appellant to successfully deny even temporarily, the Respondent of the benefits of this success, the Appellant must have strong reasons- exceptional reasons. There is nothing to show that the Respondent intends to destroy or alienate the res of the substantive suit. In fact, Paragraphs 3 and 11 of the Respondent’s counter affidavit show that the Respondent does not intend to alienate, destroy or restructure the res pending the determination of the appeal, even though the judgment was given in his favour. See Jadesimi v. Aleke (1998) 11 NWLR (Pt.572) 133; A.U Deduwa & Ors v. Emmanuel Amoma Okorodudu & Ors (1974) LPELR-936 (SC).

The onus is on the Applicant to satisfy this Court that in the circumstances, a refusal of stay would be unjust and inequitable. He must show cogent reasons to deny the Respondent enjoyment of his success at the Court below. See Olatunji v. Owena Bank PLC (2008) LPELR-2578 (SC); (2008) 8 NWLR (Pt.1090) 668. There is the necessity of an applicant applying for a stay of execution to demonstrate that his appeal has merit. See T.S.A Industries Ltd v. Kema Investments Ltd (2006) LPELR-3129 (SC). – Per HELEN MORONKEJI OGUNWUMIJU, JCA

What an applicant for stay of execution must prove

FRANCHAL NIGERIA LTD. V NIGERIA ARAB BANK LTD. (2000) Legalpedia (SC) 51311

An applicant for stay of execution bears the burden of showing that the grant of stay of execution will not result in the determination of the issue subject matter of the appeal, and there will be no injustice to the Respondent -Per Adolphus Godwin Karibi-Whyte, JSC

Can an appeal operate as a stay of execution?

Zenith Intl Bank Ltd. v. Alobu (2017) 4 NWLR (Pt. 1554) 135 – (court of Appeal)

An appeal, where lodged does not operate as a stay of execution. Until a prayer for stay of execution is made and obtained the judgment creditor is entitled to enforce the judgment.

When a stay of execution will not be granted

ZENITH BANK PLC v. JOHN & ORS (2015) LPELR-24315(SC)

“It is settled law that once an execution is completed you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment. Put another way, closing the stable after the horse had bolted. Such a request is not grantable by a Court of law which does nothing in vain. In a situation where execution had been levied, the proper application is for an order of Court setting aside the writ of attachment or execution if actual execution had not been carried out. The same principle applies to an order of injunction, either interim, interlocutory or perpetual. It cannot be granted to restrain the carrying out of an already completed act.” – Per WALTER SAMUEL NKANU ONNOGHEN, JSC

Granting a stay of execution

ONWOCHEI ODOGWU VS OTEMEOKU ODOGWU (1992) Legalpedia (SC) 81461

“The grant of stay of execution is entirely within the discretion of the court making the order. For an applicant to be entitled to the exercise of the discretion he must bring his conduct within the legitimate scope of the exercise of discretion. -See Leavis v. Leavis (1921) P.299. Hence, where he is in continuing disobedience of the Order of the Court, I do not conceive it legitimate to consider the exercise of discretion in his favour. – See Gower v. Gower (1938) P. 106. The contumacious behaviour is more egregious and censorious where the Applicant seeks the discretion of the court to endorse such a behaviour.

The Court guards its powers and image jealously. It should therefore be extremely wary in the manner it exposes such image, the diminution of its powers and the enforcement of its authority to public ridicule. In my respectful opinion as no court has an inherent jurisdiction to set aside the exercise of discretion of another except where such exercise has been capricious, or based on extraneous factors, and not following the accepted principles so will the valid exercise of discretion to stay execution not be interfered with.”


See also: