NWABUEZE V. NWOSU

• Pages: 480-493

480

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NIGERIAN SUPREME COURT CASES

[19881 2 N.S.C.C.

I abide by the consequential order made in the lead judgment regarding the award

of costs.

Appeal dismissed.

NWABUEZE V. NWOSU

1

JOHN AKUJOBI NWABUEZE

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APPELLANT

V

IBIOMA NWOSU

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RESPONDENT

SUIT NO. SC 11/1988

SUPREME COURT OF NIGERIA

OBASEKI,

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Ag. C.J.N

NNAMANI,

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J.S.C.

UWAIS,

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J.S.C.

WALT,

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J.S.C.

CRAIG,

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J.S.C.

23rd September, 1988

Practice and Procedure - Stay of execution - Application conditions - Judicial discretion of

trial court - Considerations - Special circumstances or collateral circumstances -

Inherent nzatters - How determined.

ISSUES:

1.

Whether an appellate court can interfere with the exercise of judicial discretion

by a lower court.

2.

What must a court take into consideration, when granting an application for a

stay of execution.

FACTS:

The appellant as plaintiff in the Aba High Court in Imo State, instituted an action

against the respondent, for a refund of the sum of N48,125.56, being a loan given to

the defendant at his request. The respondent admitted receiving the said amount

from the appellant, but stated that the money was the appellant's share of a haulage

business. Having held that there was no partnership between the parties, the learned

trial Judge held in favour of the appellant, with N300 costs.

The respondent, dissatisfied with this decision, appealed to the Court of Appeal.

He also filed a motion for stay of execution, stating in his affidavit, that he had no

means of paying the judgment debt and prosecuting the appeal at the same time,

and that his haulage business had almost grounded to a halt, because of lack of pa-

tronage, owing to the economic depression. The appellant Filed a

counter-affidavit

in which he stated that the appellant had more than enough means of paying the

judgment debt. He also included a list of the respondent's assets, to prove that the

respondent was unable to deny ownership of the assets.

When the motion came up for hearing, the learned trial Judge heard the argu-

ments of counsel, which directed his attention to the principles involved in the appli-

cation, and the relevant authorities on the point. The Judge nevertheless ruled,

granting the stay of execution, stating that even if the respondent lost the appeal,

the appellant could levy execution on the assets listed in the counter-affidavit and

recover his judgment debt.

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