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Oyebamiji v. Ewesumi

CHIEF KASALI OYEBAMIJI

OBA OLATUNDE ORISATOLA III

( Akire of Ikire )

V

CHIEF SALIU AJAO EWESUMI

SAFIRIYU RAJI

RAUFU AKINTOPE

BASIRU HASSAN

RAUFU ODELADE

AKINBOADE LATEEF

RAUFU OMONIYI

( For themselves and on behalf of Oke-Ada Community Quarters Ikire)

COURT OF APPEAL

( IBADAN DIVISION )

MURITALA AREMU OKUNOLA JCA ( Presided )

SAKA ADEYEMI IBIYEYE JCA

OLUFUNLOLA OYELOLA ADEKEYE JCA ( Read the Lead Ruling )

CA/I/M.250/02

TUESDAY, 21ST OCTOBER, 2003

APPEAL - Interlocutory applications pending appeal - Duty on court while considering - Need to ensure questions determinable in the main appeal are not prejudiced

APPEAL - Stay of execution - Appeal operating as - Impropriety of

JUDGMENT AND ORDERS - Declaratory judgment - Nature of - When will be granted by court

JUDGMENT AND ORDERS - Declaratory judgment - Stay of execution of -  Impropriety of

PRACTICE AND PROCEDURE - Declaratory reliefs - When and how same could be granted


PRACTICE AND PROCEDURE - Interlocutory applications - Duty on appeal court while considering

PRACTICE AND PROCEDURE - Stay of execution - Appeal operating as - Impropriety of

PRACTICE AND PROCEDURE - Stay of execution - Effect of

PRACTICE AND PROCEDURE - Stay of execution - Grant or refusal of - Principles guiding same

PRACTICE AND PROCEDURE - Stay of execution - Whether appeal can operate as

PRACTICE AND PROCEDURE - Stay of execution - Whether can be used as substitute for obtaining judgment trial court denied a party

STAY OF EXECUTION - Discretionary power of court to grant - Considerations of court in exercising discretion

STAY OF EXECUTION - Effect of on judgment of court

STAY OF EXECUTION - Grant of giving party what judgment of court denied - Impropriety of

STAY OF EXECUTION - Grant of - Principles guiding WORDS AND PHRASES - ‘Intangible res’ - Definition of

Issues:

1.              Whether there are special or exceptional circumstances for the grant of a stay of execution of the judgment of Osun State High Court sitting at Ikire delivered on 28th of September 2001.

2.              Whether there are enough facts in the supporting affidavit to enable the Court of Appeal exercise its discretion in favour of the applicants.

3.              Whether the balance of convenience is in favour of the applicants.

Facts:

In a suit centered on the validity of the appointment of the 1st appellant as the Baale of Bamgbola Market, the Osun State High Court, holden at Ikire gave judgment in favour of the plaintiffs/respondents, granting all the reliefs sought. Dissatisfied, the defendants/appellants appealed to the Court of Appeal. On the refusal by the trial court to grant their application for an order of stay of execution of the judgment of court, the appellants made the same application to the Court of Appeal. Inter alia they sought the following orders:-

(1)           An enlargement of time within which the appellants/applicants may file their motion on notice staying the execution of the judgment of Osun State High Court sitting at Ikire and delivered on the 28th of September 2001 pending the determination of the appeal lodged by the appellants/ applicants before this court.

(2)           An order of this honourable court staying the execution of the said judgment pending the determination of the appeal lodged in this Court of Appeal.

(3)           An order of this honourable court restraining the 2nd appellant from filling the vacant position of Baale of Bamgbola Market via Ikire pending the determination of this appeal.