By S.O. Giwa Esq.

It is a known fact that the word ‘stay’ in a legal parlance is an act of temporarily stopping a judicial proceeding through the order of a court and the word ‘proceeding’ refers to all methods of invoking the action of a court; and/or any procedural means of seeking redress from a court. Thus, proceeding is the actions that are taken in a court of law.

What then will the phrases ‘stay of proceedings’ and ‘stay of execution’ mean? Will they mean the same thing in a legal parlance?

The phrase ‘stay of proceedings’ is a ruling by a court stopping or suspending a proceeding or trial temporarily or indefinitely pending the determination of an appeal in court on an interlocutory decision taken by the court in one of the proceedings in a suit. It is a suspension of a case or a suspension of a particular proceeding within a case done upon a motion/application filed by an aggrieved party in a case for suspension of further proceedings in the suit pending the determination of the interlocutory appeal filed by the aggrieved party before the higher court for review of the decision appealed against.

The phrase ‘stay of execution’ on the other hand is the postponement of the enforcement of a judgment against a litigant who is being aggrieved by the decision of the court which determines the rights of the parties to the case upon an application predicated on an appeal against the said decision of the court filed by an aggrieved party and the postponement of the enforcement of the said judgment is also for temporary period within which the higher court determines the appeal filed by the aggrieved party on the said judgment.

It is worth saying that though both ‘stay of proceedings’ and ‘stay of execution’ are temporary suspension of the decision of the trial court pending the determination of the appeal filed by an aggrieved party in a suit; the distinctions between the two phrases (stay of proceedings & stay of execution) are as highlighted below:

The parties in an application for stay of proceedings are referred to as ‘Applicant (s)’ and ‘Respondent(s)’ while in an application for stay of execution, apart from describing the parties as applicant(s) and respondent(s), the party in whose favour the decision is given becomes Judgment Creditor(s) and the party against whom the decision is given becomes Judgment Debtor(s). An application for stay of proceedings is against interlocutory decision made in the course of proceedings in a suit while an application for stay of execution is against a final decision made after full trial of the case. An order staying proceedings becomes terminated and vacated after the determination of the appeal regardless of the outcome of the appeal and the proceeding continues while after the determination of appeal upon which a stay of execution is predicated, the judgment may be set aside and thereby put an end to enforcement of the said judgment or the enforcement of the judgment continues upon being affirmed by the Court of Appeal. The prescribed period for filing of an appeal upon which the application for stay of proceedings is to be predicated is fourteen (14) days while the prescribed period for filing of an appeal upon which the application for stay of execution is predicated is three (3) months Leave is required for an appeal upon which an application for stay of proceedings is predicated while the appeal upon which an application for stay of execution is predicated is as of right and no leave is required. In the event of refusal of an application for stay of proceedings, the trial of the case continues while in the event of refusal of an application for stay of execution, the applicant/judgment debtor has right to further apply to the Court of Appeal for stay of execution. The above highlighted differences are not exhaustive

Flowing from the foregoing is the indisputable fact that the two phrases (stay of proceedings and stay of execution) are distinctively different in meanings and purposes in the legal parlance. When then can a grant of stay of execution predicated on an appeal different from appeal on the judgment sought to be stayed operate as a stay of further proceedings in the matter in law?

It is against this background that this piece is written with a view to discussing when a stay of execution predicated on an appeal different from appeal on the judgment sought to be stayed operates as a stay of further proceedings in the matter in law with a full recourse to the principle of law laid down by Justice Ogunwumiju J.C.A. in Nigerian Breweries Plc. vs. Dumuje (2016) 8 NWLR (Part 1515) 536.

In Nigerian Breweries Plc. vs. Dumuje (supra), Chief Worhi Dumuje, the 1st Respondent sued Nigerian Breweries Plc., the Appellant, for the sum of three million naira as damages for alleged ailments claimed to have suffered from drinking a bottle of Maltina Malt drink produced by Nigerian Breweries Plc. which he asserted that it contained a dead slimy cockroach. The trial court on 4/7/2001 entered a default judgment against Nigerian Breweries Plc., the appellant, and awarded the sum of N2,006,006 as damages in favour of Chief Worhi Dumuje, the 1st Respondent. The Nigerian Breweries Plc. did not appeal against the said default judgment made against it but instead, it applied to set aside the said default judgment and its application to set aside the said default judgment was dismissed on 13/03/02. Sequel to the dismissal of the application of Nigerian Breweries Plc. to set aside the said default judgment, an appeal against the decision of the trial court dismissing the application to set aside the said default judgment was filed on 22/3/2002 before the Court of Appeal and an application for a stay of execution of the default judgment made against Nigerian Breweries Plc. predicated on the said appeal against dismissal of its application to set aside the said default judgment was also filed and dismissed on the ground that the application for stay of execution of the default judgment which has not been appealed against cannot be predicated on an appeal against an order refusing to set aside the said default judgment.

Nearly nine (9) years after the default judgment was made, Chief Worhi Dumuje, the 1st Respondent, commenced garnishee proceedings against Nigerian Breweries Plc., the Appellant, and Zenith Bank Plc., the 2nd Respondent, at the trial court, and on 12/3/09, an order nisi was made against the Zenith Bank, the 2nd Respondent, and consequently, on 21/5/09, an order was made absolute.

Before the Court of Appeal among four issues submitted for determination was the issue of whether an application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment.

After full consideration of the arguments and submissions on the issue of ‘whether an application for stay of execution cannot be predicated upon an appeal against an order refusing to set aside a default judgment’ made by the Appellant’s Counsel and Respondents’ Counsel in their respective briefs including the arguments and submissions made by eight (8) different Senior Advocates of Nigeria as amici curie in their respective briefs filed on request of the Court of Appeal, the court held thus:

‘I also agree with the argument of Mr. A.E. Ejelam SAN to the extent and effect that it is wrong to severe garnishee proceedings from the other general modes of executing a judgment. I am also of the view that garnishee proceedings is just one of the ways of executing a judgment and thus, a stay of execution so defined must include stay of garnishee proceedings which is just a specie of execution. The argument that the absence of an appeal against the main judgment vitiates a right to stay execution or stay garnishee proceeding is in my view too narrow a view of the law and I would rather take an expansive rather than a narrow view and to agree with Dr. Ikpeazu’s idea of the justice of the issue to hold that a motion for stay of execution can indeed be predicated upon against an order refusing to set aside a default judgment. In the circumstances, I resolve this issue in favour of the appellant.’

It is deductible from the above reproduced decision of the court that the trial court ought not to have dismissed the application for stay of execution of the default judgment predicated on the appeal filed against the decision of the trial court refusing to set aside the default judgment if the trial court had considered the determination of the said application for stay of execution in an expansive view.

It is crystal clear that it is now settled principle of law that once the court is satisfied that an applicant has a pending appeal against its ruling dismissing the applicant’s application to set aside the default judgment, the condition that there must be a pending appeal against the decision sought to be stayed for the grant of an order staying execution of the said judgment has fully been complied with.

It is equally noteworthy that if the application of Nigerian Breweries Plc. filed in 2002 for stay of execution of default judgment predicated on the appeal filed in the same year against the decision of the trial court refusing to set aside the default judgment made in same 2002 had been granted, the garnishee proceedings initiated by Chief Worhi Dumuje, the 1st Respondent, in 2009, would not have been begun nor having an order nisi been made in 2009.

Finally, from the definition of the word ‘proceeding’ which means an activity that seeks to invoke the power of a court in order to enforce a law, it is the writer’s stand that ‘Garnishment Proceedings’ though sui generis is a judicial proceeding in which a creditor asks the court to order a third party who is indebted to a debtor to turnover to the creditor any of the debtor’s property possession of that third party and the grant of stay of execution predicated on an appeal filed against the decision refusing to set aside the default judgment automatically operates as a stay of garnishment proceedings, one of the methods of enforcing monetary judgment, which is a judicial process of execution or enforcement of monetary judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of judgment debtor’s property available in execution. The need often arises when a judgment creditor finds Augean to recover the debt owed to him by the judgment debtor.

It is the writer’s final recommendation and advice that a lawyer who is desirous of getting himself acquaintance with the settled principle of law with a view to improving his practice and saving himself from any embarrassment in the representation of his client in court needs to intensify his efforts more in broadening his horizon by reading omnivorously and availing himself of any available opportunity around him such as the rare opportunity of a year NBA free law pavilion subscription for young lawyers and NBA subsidized law pavilion subscription for senior lawyers as doing that would earn him a good practice of law in Nigeria.

Watch out for next piece ‘WHEN COURT LACKS JURISDICION TO ENTERTAIN GARNISHEE PROCEEDINGS IN LAW’

Written By S.O. Giwa Esq.