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A declaratory order, also called a declaration, is the legal determination of a court that resolves legal uncertainty for the litigants either in the interim, interlocutory or perpetually.
It is a form of legally binding preventive adjudication by which a party involved in an actual or possible legal matter can ask a court to rule on and affirm the rights, duties, or obligations of one or more parties in a civil dispute (subject to Appeal).
The declaratory order is generally considered a remedy in Law and not in Equity and is therefore not subject to equitable requirements.
It is therefore an error and placing the law on its head to argue that a declaratory order cannot be restrained.
To restrain or stop such an order granted by the Court of first instance (High Court)or even the Court of Appeal, an application must be filed praying the upper court to stop the execution of the declaratory order pending appeal, i.e. An injunction pending hearing of the appeal against the declaratory order.
It should however also be noted that where the order granted is executory in nature, the right motion to file to stop the executory should be an order for stay of execution.
It is trite that, where an application for stay or injunction pending appeal is filed; parties must maintain status quo.
Status quo generally refers to the existing state of affairs or circumstances. A person upon whom an executory order is ordinarily binding does not have to receive a formal status quo order before he binds himself to maintain the res of the action in dispute between the parties. He is automatically bound by the universally accepted law, practice, procedure, protocol and ethos of the common law doctrine of lis pendens.
A clear picture of the meaning of the doctrine was given by Niki Tobi, JSC (Rtd.) in Enekwe v International Merchant Bank Nigeria Limited where he stated that:
..the expression is made up of two latin words. The first is lis. The second is pendens. The word lis means a piece of litigation, a controversy. The word pendens conveys the connotation of pending. The two words put and read together mean a pending lawsuit. The expression is a useful Latinism that has given its name to a notice required in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit must be subject to the outcome of the litigation..
It is interesting to note that the doctrine was traditionally referred to as the notice of lis pendens but the 20th century American Lawyers have shortened the phrase to lis pendens. The doctrine, from all indications, means a pending law suit, used to give a notice required to warn all parties that certain property is the subject matter of the litigation and operates to prevent the effective transfer of any property in dispute during the pendency of the dispute.
The status quo to be maintained is the position before the commencement of the legal processes.
Using the extant state of affairs in Ondo State PDP candidature, status quo is Eyitayo Jegede, SAN as PDP candidate.
It is expected that INEC being a creation of the law will toe the path of reason, decorum and indeed the path of law by maintaining the name of the candidate until all appeals are exhausted. The two contestants are both of the PDP and if the res is to be properly maintained to the advantage of all, status quo must be maintained.
Good enough, the two combatants are learned gentlemen and one of them has reached the pinnacle of that exalted profession, it is therefore expected that they would maintain their composure and ensure that peace reigns in the land.
-Bamofin Olukayode AJULO, LLD, BL
Castle of Law, Abuja.
