17/04/2015
QUESTION:
What do you need to show to sustain a stay of proceedings?
ANSWER:
In the case of NIKA FISHING CO. LTD. V. LAVINA CORP. (2008) 16 NWLR (PT.1114) 509
Stay of proceedings is a serious, grave and fundamental interruption in the right that a party has to conduct his litigation in the trial on the basis of the merits of his case, Consequently, the court's general practice is that a stay of proceedings should not be imposed unless the proceedings beyond all reasonable doubt ought not to be allowed to continue.
In an application for stay of proceedings the court must take into consideration the following factors or principles:
(a) Valid cause or right of action:
The first consideration for the court to determine in an application for stay of proceedings is whether the applicant has a valid cause or right of action, He should establish that he has a prima facie claim in law. Normally, this issue ought to be raised and settled before an application for stay of proceedings as it directly affects the jurisdiction of the court, In the event of an oversight on the part of counsel however, the issue could be raised at the stage of an application, for stay of proceedings and indeed at any other stage, even on appeal.
Accordingly, where the applicant has no valid cause or right of action, there is in law no basis for an application for stay of proceedings as there is nothing in law to stay.
(b) Pending appeal:
In order to consider an application for stay of proceedings, there should be a pending appeal and the pending appeal must be valid. For instance, where an appeal is filed out of time, it is incompetent and therefore invalid. A court of law will not consider an application for stay in respect of such an incompetent or invalid appeal.
(c) Pending appeal arguable:
In order to grant an application for stay of proceedings, the pending appeal must be arguable and this should be borne out by the ground or grounds of appeal. In other words, the grounds of appeal must clearly donate the legal strength of the appeal but only in terms of it being arguable. An applicant has no duty to prove at that stage that the appeal will succeed. Once he shows that the appeal is arguable and there are chances of success, an' application for stay could be granted. However, where the pending appeal is frivolous, unmeritorious, oppressive and not in law arguable, an application will be refused. In order to come to the conclusion as to the frivolity of the appeal, an appellate court is bound to expose itself to an inquiry into the record of appeal before it, in particular, the grounds of appeal as they relate to the proceedings before the lower court. The court will also find the ruling of the lower court useful.
(d) Competing rights of the parties:
In application for stay of proceedings, the court will consider the competing rights of both the applicant and the respondent to justice. In other words, the court will take into consideration, the equity and justice of the application.
(e) Hardship:
One important factor in an application for stay of proceedings is hardship. A court of law will be most reluctant to grant an application for stay of proceedings if it will cause greater hardship than if the application is refused. The question of hardship is a matter of fact which can be deduced from the competing affidavit evidence. The moment the court comes to the conclusion that the grant of the application will do more harm than good, it will be refused.
(f) Preservation of the res:
One of the most important factors in an application for stay of proceedings is the preservation of the res or the subject matter of the suit. Courts of law have a duty to preserve the res for the purpose of ensuring that the appeal, if successful, is not rendered nugatory. Where there is evidence that the res will not be destroyed in the course of the litigation, an application may be refused.
(g) Special and exceptional circumstances:
An application for stay of proceedings can only be granted where special and exceptional circumstances exist. A special or exceptional circumstance is a peculiar or unique circumstance which is additional to the ordinary state of affairs. The application is not granted as a matter of routine as it is not a mechanical relief slavishly following the filing of an appeal. It is a matter of law and facts, and a very hard one in their combined content.
