Determining the Res in Chieftaincy Appeals: A Case Study
By the rules of the legal profession, every lawyer is duty-bound to show a considerable degree of devotion and dedication to the cause of his/her client. From a personal perspective, it is observed that most lawyers in Nigeria have made it a habit to abide by this rule and sometimes go beyond the vision of the lawmaker.
It is not uncommon to encounter legal practitioners who use their expertise to delay the timeous hearing of a suit or engage in other shenanigans, where they stand little chance of succeeding.
The trend of impassioned dedication by lawyers has brought about a scenario in our jurisprudence where the first step taken by a defeated litigant is, by default, the filing of an application for stay of execution or injunction pending appeal.
Ideally, lawyers ought to weigh the merits of their case, use their knowledge of the law to make a calculated projection, that is, whether there is a good chance of the case succeeding, and advise the client accordingly.
Unfortunately, it is not uncommon for the applications for stay of execution or injunction pending appeal to be used chaotically to further impose hardship on a successful litigant and deny him the rewards of his victory.
Guiding Principles on Stay of Execution and Injunction pending Appeal
The factors which the courts will consider in any such application are:
- The judgment must be appealed against.
- Notice of appeal must contain substantial grounds of appeal to warrant the evaluation that there is a prima facie likelihood for the appeal to succeed.
- The nature of the subject matter or res.
- Probability of reaping the fruit of judgment if the application is refused but appeal succeeds.
- In money judgments, ability to pay back.
It is important to emphasize at this point that the only condition that determines which application would be proper is the nature of the judgment appealed.
If it relates to an executory judgment, a stay of execution is proper, while injunction pending appeal is used to arrest the effect of a declaratory order.
The focus of this paper is the res since it is often the factor relied upon by applicants appealing against judgments containing declaratory orders. This is so because, depending on perspective, it can be argued that the res in such instances cannot diminish.
A Case Study
The following hypothetical scenario is put up for consideration and examined vis-à-vis the desire to protect the res when granting or refusing an application for stay or injunction pending appeal – X is installed to a chieftaincy stool by the prescribed authority for that chieftaincy.
Y is aggrieved and institutes a suit challenging the installation of X. At the conclusion of trial, the court rules in favor of Y having found a patent anomaly in the events or process building up to X’s installation.
Y is therefore declared as the rightful owner of the chieftaincy stool and the court orders that he be installed in the place of X. X appeals and applies for stay of execution to retain his status as the holder of the chieftaincy pending the determination of the appeal.
Case Study Examined
The first consideration is the reason why an application for stay of execution may be sufficient in this scenario. By nature, declaratory orders are abstract but are capable of grounding substantive claims.
In other words, a declaratory judgment is an embodiment of the recognition of a particular right which may be the basis for subsequent proceedings to enforce such right, where such right is threatened or is being violated. As earlier stated, a stay would only apply to a judgment that is executory and inapplicable to declaratory ones.
It is not the attitude of the courts, however, to dismiss an application for stay of execution on the basis that the judgment appealed against contains declaratory orders.
As it may be deduced from the case study, most declaratory orders are accompanied by injunctive orders calculated to bring the declaratory order into concrete existence (as opposed to its otherwise abstract existence).
Hence, more often than not, the judgment appealed is executory and is capable of being stayed. As noted in Aondoakaa v Obot, the Court of Appeal on the premise of the Supreme Court decision in Okoya v Santili held as follows:
An executory judgment or order has coercive force and declares the respective rights of the parties and proceeds to order the defendant to act in a particular way, namely to pay damages, or refrain from interfering with plaintiff’s rights and such order being enforceable by execution if disobeyed.
The Court of Appeal streamlined the reasoning of the apex court by concluding that judgment is executory, where even the declaration contained therein is a complete and binding order.
What then is the res?
The res is that thing, whether property, interest, or status that is the object of rights especially that is the subject matter of litigation. It is an indisputable fact that the res at the beginning of the suit at the trial court is, per se, the chieftaincy stool itself.
Thus, the court would encourage, and sometimes order the parties to maintain the status quo. That is, the court may restrain the plaintiff Y from touting himself as the holder of the chieftaincy stool during the pendency of the suit. However, once judgment has been entered in favour of plaintiff Y, the rights of the parties have certainly been determined and any appeal is then based on the assertion that plaintiff Y is the rightful holder of the chieftaincy stool.
It is hereby maintained that while the appeal may visit and vary the verdict regarding the chieftaincy stool, the parties ought not to be viewed as though they are on equal standing as it was the case at the trial court.
Therefore, it is proposed that the res in such appeals ought not to be the chieftaincy itself. Rather, the time within which the successful litigant may enjoy the fruit of his victory is the res.
It is trite that the court will not make an order in vain. Further, as it is most often stressed by the courts, it is not the practice of the court to take with one hand that the court has given a successful litigant with the other hand. Bearing these principles in mind, there ought to exist an advantage, a metaphoric pedestal, which accrues to Y before the determination of X’s appeal.
Does this mean that X’s application should be rejected? No. Every case is determined by the court based on its peculiarities and this dissertation only focuses on the facts as portrayed in the case study above. Nonetheless, if the court concurs with such reasoning that the res of the appeal is the time afforded the successful litigant to enjoy the fruit of victory, the application for stay may not be granted as often as is currently by the court.
Indeed, it is on the foundation that the res is the chieftaincy stool itself that the court has held on multiple occasions that order of stay of execution should be granted while the dismissed occupier is desirous of exercising his right of appeal. In the often cited Oyeyemi v Irewole Local Government, it was held that:
Once installed, the occupier of a chieftaincy office must be preserved until he exhausts his right of appeal (to the Supreme Court) before he can be removed, except he refused to appeal.
The premise of what the res is, which this paper argues is flawed, i.e. the chieftaincy plays a major role in the birth of this principle.
Put simply, while the chieftaincy position is viewed as the subject matter, there is a presumption that the res is indestructible, prompting the court to assume the cautious position that the status quo should be maintained since the res cannot be extinguished.
To hold a contrary view that the subject matter of the appeal is no longer the position itself but that the time to be used in the position is suddenly, but surely, defeats the ruse that the res cannot be extinguished. Human life is finite and the right to hold a chieftaincy is a personal right enjoyed by a person under his genealogy or other conditions regulating that chieftaincy.
In the event of the death of Y (now respondent) to the appeal of X, could it not be said that the order of the trial court was made in vain? How could the justice of the case be met when a successful litigant is denied the fruit of his labour? Is it fair in law to hold a person’s right in abeyance even when there is a presumption of that party having a superior right?
Ultimately, the decision lies with the court to determine when such a situation arises. The nature of chieftaincy as a personal right accruing to a litigant differentiates the declaratory order thereby obtained from other transactions such as land disputes.
Death will not exhaust the res in a land matter as the suit can survive the death of the litigant and be taken over by the deceased litigant’s estate or person(s) claiming through him. Yet, this is not the same in a chieftaincy dispute as the suit cannot survive the death of either litigant. Hence it is submitted that the res is time.
Legal practitioners are urged not to discountenance the basis of the argument canvassed in this article merely because it is a departure from the known and established principles. As stated by foremost Professor of Jurisprudence Festus Emiri:
“While it is true that disagreements between lawyers on the content of law, whether a legal decision is right or wrong on objective terms may turn on their preferences, it would certainly be preposterous to suggest that all such disagreements are and they cannot be located on distinctive legal grounds.”
The arguments canvassed in this paper have not been put forth to the courts for adjudication. Hence, it is unknown what the courts will decide when such arguments are made.
The position is clear, that the court loathes an academic suit and will not entertain an academic question. Therefore, until such time as the court will determine a case based on this argument or a similar one, its validity rests on the opinion of the jurists, legal practitioners, and other stakeholders in the legal profession.
Finally, it is submitted that the time afforded the successful litigant to reap the fruit of litigation is the res in a chieftaincy appeal.
Moses Olunlade, LL.B, Afe Babalola University. He is currently an Associate Legal Practitioner at Babafemi Akande & Co., Osogbo, Nigeria. He has a particular interest in proprietary rights and its relationship with other aspects of law. He has conducted several cases bordering on assets & debt recovery, land and chieftaincy disputes.