DUTY OF COURT TO PRESERVE THE “RES”
Res is a thing (as a property, interest, or status) as opposed to a person that is the object of rights and especially that is the subject matter of litigation a court with jurisdiction over the res of the suit — compare in personam, in rem, quasi in rem.
Res is latin for “thing” or “matter.” In the common law, it can refer to an object, interest, or status, as opposed to a person.
Black’s Law Dictionary (ninth edition) defines Res as an object, interest, or status, as opposed to a person. The subject matter of a trust.
In view of the above, the court has a duty to preserve the Res for the purpose of ensuring where an application is brought to preserve same and also where there is application to determine jurisdiction fail, the substantial matter will not be nugatory.
Also, an action in rem has been define by the dictionary as an action determining the title to property and the rights of the parties, not merely among themselves, but also against all persons at any time claiming an interest in that property. It is usually an action brought for the protection of possession, ownership or other real rights in immovable property.
The power of the Court to preserve the Res, this power has always been inherent though in certain cases, it is statutory. From time immoral, all Courts of record be they trial or appellate possess power of preservation of the Res in their custody. ANDLER VS. DUKE (1932) 3 D. L. R. 210 Pg 220. In ZAMORA (1916) A. C. 77 Lord Parker of Waddington put it thus “The primary duty of a Court is to preserve Res for delivery to the persons who ultimately established their title.
The apex court of the land in OLATUNJI VS. OWENA BANK PLC (2002) 5 NWLR (760) 325 Per ONNOGHEN, J.C.A. at page 339, paras. B-C:
“It is equitable that the res be preserved pending the determination of the substantive appeal so that whoever wins will collect the judgment debt plus interest. The appellant/applicant is the judgment creditor who would, under normal circumstances, have insisted on the money being paid over to him but is not doing that. It is my view that it will be inequitable to allow the respondent/judgment debtor to continue to keep the judgment debt and use same to trade for profit during the pendency of the appeal at the expense of the judgment creditor.”
All courts of record possess the power of preservation of the Res in their custody. The reason for this is to ensure that any final order the court may make in relation to the Res does not expose the court to a state of helplessness, leaving the victorious party to enjoy a mere empty victory.
The penultimate court of the land has the power under the provisions of sections 16 and 18 of the Court of Appeal Act and Order 4 rule 6 of the Court of Appeal Rules, 2016 to entertain the application for preservation of the Res. The Rules is that where an application is made or where none is even made at all, the court has the power to make an order for the preservation of the Res. See the case of Kigo Nig. Ltd. v. Holman Bros Nig. Ltd. (1980) 5- 7 SC 60.
A court of law which is a court of justice for all times has an abiding duty to ensure the preservation of the Res. Where for instance a matter is before the lower court and a ruling was delivered against a party who appeals against same, the appealing party has the right to bring an application for stay of proceedings and where the lower court refuse same, same application can be brought before the appellate court and it is my submission that both the trial court and the appellate court have the jurisdiction which is inherent to ensure that the Res in dispute is preserved so that the judgment that may be given by the appellate court is not rendered nugatory.
Where a party fails in the trial court, but is about bonafide, to prosecute an appeal to the appellate court, it is the duty of the appellate court to preserve the Res if it is the fact that unless such an order is made the success of the appeal will be useless. The principle that the court ought to possess that jurisdiction stems from the fact that the ultimately successful party is to reap the fruits of the litigation and not obtain merely a barren success. See the case of Kigo Nig. Ltd. v. Holman Bros Nig. Ltd. (supra)
The Court has duty to hear the application of a party no matter how the prayers is couched. It does not matter how the prayer in an application for preservation of res is couched or framed-whether it is for stay of execution or stay of proceedings or injunction. The important thing is that argument be directed to the court along the true situation on the ground so that the court may be placed to appreciate what is to be done in the interest of justice. See the case of STAR PAINTS IND. LTD & ANR Vs. OGUNLELA & ORS. (2000) 2 NWLR (PART 643) 103.
The aim of preservation of the Res is that both the order of preservation of the Res and order of stay of proceedings are designed to protect the subject matter of litigation. However, an order made for the preservation of the Res is not meant to be draconian in nature, whenever it appears that if such order is granted considerable damage will be done to the defendant by the stoppage of his business which cannot be compensated, the order of injunction would be refused. Shell Petroleum Dev. Co. (Nig.) Ltd. v. Omu (1998) 9 NWLR (PT.567) 672.
PRINCE ADEDAYO SAMUEL ADESHEILA, ESQ, ACArb.
Principal Partner of Ilustris Law Firm
