Franchal Nigeria Ltd & Anor v. Nigeria Arab Bank Ltd

I had the privilege of reading in draft the leading judgment of my Lord the Chief Justice. I agree with him. I however, wish to make my own contribution.
On the 22nd June, 1994, the Court of Appeal, Enugu Judicial Division, dismissed the appeal of the appellants against the refusal of an application for a stay of execution of the judgment in undefended list against them by Nwofor J of Court No.4, High Court of Onitsha. This ruling is in respect of the appeal against the judgment of the Court below.

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The respondent Bank filed a suit against the appellants on the 26th October, 1993 under the undefended list claiming as follows:-
“(i) N39,053,312.89 (Thirty-nine Million, fifty-three thousand, Three Hundred and Twelve Naira, Eighty-Nine Kobo) being the balance of the principal sum of the overdraft granted to the first defendant and personally guaranteed by the second defendant.
(ii) N32,575,004.67 (Thirty-two Million, Five hundred and seventy five thousand, four naira, sixty-seven Kobo) being interest, commissions and other bank charges which accrued to the principal sum of N129,780,676.52.
(iii) 40% compound interest on the principal sum and already accrued interest from 1st October, 1993 until the date of judgment.
(iv) 5% simple interest on the judgment debt from the date of judgment until it is finally liquidated.”
Appellants who were the defendants filed their memorandum of appearance with a notice of intention to defend the action. They also filed a motion on notice seeking leave to defend out of time. After hearing the motion, the learned trial judge ruled that the memorandum of appearance filed by the defendants was not appropriate in the circumstances and proceeded to give judgment to the respondents in the sum of twenty-nine million naira. Appellants appealed against the judgment.

Along with the notice of appeal, appellants filed a motion on notice in the Onitsha High Court praying the Court for a stay of execution of the said judgment pending the determination of the appeal. Appellants subsequently filed further affidavit, further and better affidavit in support of the motion for stay of execution. Respondent in opposition to the motion for stay of execution, filed a counter affidavit, as well as a further counter-affidavit. The motion for stay of execution which was fixed for hearing on the 17th February, 1994, was brought forward in a motion for accelerated hearing on the 10th February, 1994. The motion for stay of execution was heard on the 10th February. On the 21st February, the learned trial Judge refused the application.
Appellants appealed against the ruling to the Court of Appeal. The following grounds of appeal were filed:
“Grounds of Appeal
That the learned trial judge erred in law by proceeding to award judgment to the plaintiff on 13/12/93 whereas the case was specifically adjourned to 13/12/93 for ruling on whether the court can let in the defendants to defend.”

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Particulars of Error-
(a) The plaintiff on the 26th day of October, 1993, commenced the suit under the undefended list.
(b) On the 11th day of November, 1993 the defendants filed their memorandum of appearance, notice of intention to defend as well as motion on notice to be let in to defend out of time.
(c) On the 22nd day of November, 1993, the court heard arguments from counsel on both sides as regards whether or not the defendants could be let in to defend and thereafter adjourned the case to 13/12/93 specifically for ruling on whether or not the defendants could defend.
(d) The case was never adjourned to 13/12/93 for judgment on the substantive suit.
(e) That the learned trial judge erred in law by awarding judgment to the plaintiff for’ twenty nine million naira whereas the plaintiff never asked for judgment as required under the rules nor claimed or accepted the twenty nine million naira awarded by the Court.
Particulars of Error
(a) The plaintiffs claim in court were as follows:-
(i) N39,053,312.89(Thirty-nine Million, fifty-three thousand, Three Hundred and Twelve Naira,
Eighty-nine Kobo) being the balance of the principal sum of overdraft granted to the first defendant and personally guaranteed by the second defendant.

(ii) N32,575,004.67 (Thirty-two Million, Five hundred and seventy-five thousand, four naira, sixty-seven Kobo) being interest, commissions and other bank charges which accrued to the principal sum of NI29,780,676.52.
(iii) 40% compound interest on the principal sum and already accrued interest from 1st October, 1993 until the date of judgment.
(iv)5% simple interest on the judgment debt from the date of judgment until it is finally liquidated.”
(b) After the delivery of the court’s ruling on the issue whether or not the defendants could be let in to defend or not, the plaintiff and/or its counsel never asked for judgment as required under the law before the court proceeded to award judgment.
(c) There is nowhere in the plaintiff’s claim wherein it mentioned the sum of N29 million awarded by the court in its judgment.
(d) The plaintiff never gave any indication that it was accepting the reduction of its claim to twenty-nine million naira and the plaintiff’s claim was never

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amended to accord with the amount awarded to it by the trial court.
(e) There was no indication whatsoever as to how the figure (twenty-nine million naira) was arrived at.
(3) That the learned trial judge erred in law by going out of His way to severe the claim of the plaintiff and picking and choosing the ones to award judgment straight away and the ones that will proceed to full hearing and misericodia.
Particulars of Error
Plaintiff’s claim before the court was certain and unambiguous and it never severed its claim in court rather it was the court that severed the claim of the plaintiff suo motu.
4. That the learned judge erred in law to have awarded judgment to the plaintiff whereas there were conflicting affidavits filed in the case that would have required adducing of oral evidence and the defendants in their notice of intention to defend set up a counter-claim that would have made the trial court to exercise its discretion to let in the defendants to defend the entire suit on the merits as required under the laws.
Particulars of Error
(a) Series of conflicting affidavits were filed in the case that would have necessitated resolution thereof via oral evidence before the court could validly proceed to enter judgment.
(b) The defendants challenged the usurous interests charged by the plaintiff and moreover set up a counter-claim that would have put the trial court on notice of the fact that the case is a proper one for viva voce evidence to be adduced before judgment could be given.

The Court of Appeal after hearing argument, in a unanimous decision dismissed the appeal against the ruling of the High Court refusing the motion for stay of execution pending the appeal against the judgment. Costs assessed at N1,500 was awarded against the appellant. The appeal before us is against this decision.
Appellant had in their notice of appeal relied on the following grounds of appeal.
“Grounds of Appeal
1. The learned trial justices erred in law in refusing the motion for stay of Execution pending the determination of the Appeal before it on the bases of Exhibit “Q” (which is a purported affidavit deposed to by the 2nd appellant in the Onitsha High Court) which has no evidential value in law.
Particulars of Error
(a) The said exhibit “Q” is supposed to be a copy of the affidavit deposed to

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by the 2nd appellant, in respect of suit No. 0/121 m/92 and as such a public document.
(b) The said exhibit “Q” was never certified as required by law when the plaintiff exhibited it in the High Court Onitsha and is authenticity was in doubt.
(c) The said exhibit “Q” was allegedly used in suit No. 0/121M/92, an entirely different case, the proceedings of which has nothing to do with Suit No. 0/338/93.
(d) The defendants/appellants did not admit the said exhibit “Q” in all the documents they filed in the High Court Onitsha and in the Court of Appeal Enugu.
2. That the learned trial justices erred in law in holding that the 2nd appellant placed before the High Court Onitsha an affidavit (Exhibit Q) wherein he admitted owing the respondent N29m and consequently refused the motion for stay of execution pending Appeal.
Particulars of Error
(a) The said exhibit “Q” which was an alleged affidavit sworn to by the 2nd appellant was exhibited by the respondent in the affidavit in support of its claim and was not certified. The respondent certified the said exhibit “Q” only on 13/4/94 during the proceedings in the court of Appeal, Enugu.
(b) The said exhibit “Q” was placed before the High Court Onitsha by the respondent and not the appellants.

(c) There was never a time in all the documents filed by the appellants in the High Court Onitsha in Suit No. 0/388/93 wherein they admitted owing the respondent the sum of N29million.
(d) Their learned trial Justices had the mistaken impression that the appellants not only admitted owing the respondent the sum of N29million but also made the document (i.e. exhibit “Q”) available to the High Court.
3. That the learned trial Justices erred in law in refusing the grant of the motion for stay of Execution pending appeal on the ground that the respondent’s averment about the extent of their massive wealth were never controverted and that the appellants did not establish that by making the payment, they would be unable to prosecute their appeal.
Particulars of Error
The respondent in order to show the alleged massive wealth of the appellants exhibited an envelope (exhibit B)  purporting same to be an evidence of ownership of an airline by the appellants. The respondent never exhibited any document to show that the alleged Franchal Trans Air Limited is an Incorporation Company and has nexus with the appellants. The appellants in

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all their affidavits in support of the motion for a stay of execution pending Appeal did not only deny the alleged massive wealth but went ahead to depose to the fact that payment of the judgment debt would cripple them and deny them of the resources of prosecuting the Appeal. That the learned trial justices erred in law in refusing the motion for stay of Execution when the Record of Appeal relating to the case had been forwards to it and parties about to exchange their briefs of argument.
Particulars or Error
As at the time the said Ruling was delivered the record of proceedings relating to what transpired in the High Court Onitsha had been forwarded to the Court of Appeal Enugu and the parties thereto were about to file and exchange their briefs.
In the circumstances, grant of the stay of Execution pending Appeal would not have resulted to any injustice or undue delay”.
Learned counsel to the Appellants filed a brief of argument. Respondents have not filed any brief in accordance with the rules. There has been no application before us by respondent seeking enlargement of time to file his brief of argument, out of time. We shall therefore rely for our determination of this appeal on the brief of argument filed by the appellants. See Order 6 rule 8(7) Rules of the Supreme Court 1985 (as amended 1999).
Learned Counsel to the appellants has formulated the following issues for determination arising from the grounds of Appeal.

“Issues for Determination
Issue No.1
Did the Court of Appeal base its Ruling on exhibit “Q” (which is an uncertified affidavit allegedly deposed to by the 2nd appellant and used in a different suit (1/12/M/92) wherein the appellants allegedly admitted owing the respondent N29million) and if they did was it proper.
Issues No.2
Did the Court of Appeal hold that the 2nd appellant placed before the Onitsha High court an affidavit (exhibit Q) wherein he admitted owing the respondent N29 million which necessitated the refusal of the motion for stay of execution pending appeal and if they did was it proper.
Issues No.3
Did the Court of Appeal in its ruling base the refusal of the motion for stay of execution pending appeal on the ground that the respondent’s massive averment about the extent of the appellant’s wealth were never controverted and that the appellants did not establish that by making the payment, they

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would be unable to prosecute their appeal, and if they did was it proper.
Issues No.4
Was it proper for the Court of Appeal to refuse the said motion for stay of Execution pending an appeal when the Record of Appeal relating to the substantive case had been forwarded to it and parties thereto are about to exchange their briefs of argument”.
The issues 1,2 for determination raised the question of the admissibility of Exhibit Q, wherein the appellant was said to have admitted owing respondent N29,000,000. It also raised in the third issue the respondents averment that appellant never controverted Respondents averments of Appellants massive wealth. And that appellant did not establish that by making the payment they would be unable to prosecute the appeal. The Court of Appeal was said to have refused the Motion for stay of Execution pending appeal when the record of appeal in the substantive case had been forwarded before the parties were about to exchange their brief of argument.
The appeal was considered on the brief of argument filed by learned counsel to the appellants since neither counsel was present to argue the appeal in person. It was argued in the brief filed that the Court of Appeal was wrong to have relied on Exhibit Q, wherein appellant was allegedly said to have admitted owing the sum of N29,000,000 to the respondent. It was submitted that Exhibit Q, was used in an entirely different suit in Suit No. 0/121M/92 not related to the present action. It is a copy of the affidavit deposed to by the 2nd appellant.

It was submitted that Exhibit Q was never certified as required by law and was exhibited by plaintiff/respondent. Exhibit Q heavily relied upon by the trial judge was not admissible evidence in the case. It was submitted appellant never admitted owing the sum of N29million in all the documents filed by appellants in the High Court Onitsha in suit No. 0/388/93.
On the issue of appellant not controverting respondents allegation of appellants “massive” wealth, it was argued in the brief that the Court of trial relied on Exhibit “B”, an envelope purporting to be evidence of ownership of Airline by Appellants. There was no other evidence such as to allege incorporation in the name of the appellants, or flight tickets to show that the Airline was operational. Appellants have consistently denied the allegation of the ownership of massive wealth and have gone further to demonstrate by affidavit deposition how payment of the judgment debt would cripple them and render them incapable of prosecuting their appeal.
Finally, it was argued that in the circumstances of this case, grant of stay of

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execution pending appeal would not have resulted in any injustice to the respondent or undue delay. Learned Counsel relied on Fawehinmi v. Akilu (1990) I NWLR (Pt. 127) 450 for the submission that in the special circumstances of this case where the record of proceedings is before the Court, and parties are to exchange their briefs of argument, these are special circumstances which warrant the grant of motion for stay of execution pending appeal.
It is convenient in my consideration of this appeal to dispose of what I regard as preliminary peripheral issues. These are the arguments contained in the related issues 1 and 2 which complain against the admissibility of Exhibit “Q” being part of the record of proceedings in an earlier case, namely, suit 0/121M/92 was improperly before the Court of Appeal since it was not certified as a true copy of the original affidavit in accordance with the provisions of sections 110,111 and 113
of the Evidence Act. It was submitted that the Court of Appeal should have granted a stay of execution if it adverted to the fact that the trial court acted wrongly. This it was argued was a ground of appeal on which the appeal was likely to succeed. The following decisions were cited and relied upon. – Anyankora v. Obiakor (1990) 2 NWLR (Pt.l30) 52; Hada v. Mafumfashi (1993) 10 KLR 102; (1993) 7 NWLR (Pt.303) 1; Faluade v. Onwoamanam (1990) 2 NWLR (Pt.l32) 322; Oka v. Ntukidem (1993) 2 NWLR (Pt. 274) 124; Obadina & Anor. v. Ambrose (1969) NMLR24.

It was also the contention of appellants that a subsequent certificate of Exhibit Q in this case by the respondent after judgment of the High Court and appellant’s application for a stay of execution did not alter the legal character of the inadmissibility of Exhibit Q. It was pointed out that the Court of Appeal was wrong when it stated in refusing the appellant’s application for stay of execution that Exhibit Q was deposed to by the 2nd appellant. On the contrary, Exhibit Q was deposed to by the respondent in its affidavit in support of its claim in the trial Court. Appellants at no time filed a document admitting the debt of N29million naira. There is no doubt that both learned trial Judge, Nwofor J. and the Court below relied on Exhibit Q. It is correct that when respondent annexed Exhibit Q to his affidavit in support of the claim for judgment on the undefended list, it was not certified as a true copy of the proceedings in Suit No. 0/121M/92 Chief Francis Nzekwe v. Inspector-General of Police & Ors). However, Exhibit Q was exhibited as a certified document to the counter-affidavit opposing the application by appellants in the Court of Appeal for stay of execution pending determination of the appeal to

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that court. It follows therefore that in so far as the Court was concerned, Exhibit Q was a certified document properly before it.
Paragraph 5 of the respondents counter-affidavit deposed as follows:-
“5 That paragraph (8 of the appellant’s affidavit in support of their application in the Court of Appeal for stay of execution) is correct only to the extent that the Court ruled that in matters coming under the undefended list memorandum of appearance was not appropriate and entered judgment based on the admission of the defendants in Exhibit Q a certified copy of same which is annexed and marked Ex. A”
Again on the same issue paragraph 5 of the Further, Further Affidavit of Mr. Cletus Okolo, Manager of 1st Appellant deposed to as follows-
“5. That paragraph of the counter-affidavit of the plaintiff/respondent is false. In further answer to the said paragraph 5, I hereby state that Ex. “A” attached to the counter-affidavit of the defendant was used in suit No. 0/121M/92 during the Enforcement of Fundamental Rights proceedings and the alleged admission therein was never contained in applicant’s notice of intention to defend the relevant suit (i.e. Suit No 0/388/92)”
It is pertinent to observed that the above quoted paragraph of the counter-affidavit of respondent was in respect of the opposition to the appellant’s application for a stay of execution. It was not concerned with the appeal challenging the decision of the trial judge in the judgment under the undefended list. It seems to me therefore that the contention of appellants about the admissibility of Exhibit Q is misconceived.

In the circumstances, the court of Appeal was right to have acted on the admission made by the appellant in Exhibit Q to the effect that he was indebted to the respondent to the sum of N29million naira. There is no merit therefore in issues 1 and 2, which I hereby resolve against the appellants.
Issue 3 is that appellants did not controvert the averment of possession of immense wealth in the affidavit of the respondent, and the finding of the Court of Appeal base on the affidavits that the 2nd appellant was extremely wealthy. It was submitted that appellants having denied in all the affidavit, sworn to by them in support of their application of the possession of immense wealth alleged, and that they would be crippled financially if made to pay the judgment debt, and would be unable to prosecute this appeal, the Court of Appeal was wrong to have dismissed their application. There is no doubt, and learned counsel to the appellants was on firm ground that the Court of Appeal misdirected itself in holding that appellant did not controvert the allegation of its possession of massive wealth. The denial of such allegation is clearly

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averred in paragraphs 21 and 22 of the affidavit in support of the application for stay of execution in the Court of Appeal.
I reproduce the relevant paragraphs-
“21. That before the defendants can satisfy en bloc the said judgment debt of twenty nine million Naira, it will mean disposing off (sic) all their assets and the exercise will not only stiffle (sic) the defendants but will also deprive them of the resources for the prosecution of the said appeal.
22. That there is economic recession in the country and the companies are finding it difficult to put their heads above water and the first defendant is not an exception.”
Again in paragraphs 7 and 8 of the Further Affidavit it was deposed to as follows:-
“7. That paragraph 14 of the counter-affidavit of the plaintiff is false. In further answer to the said paragraph 14, I hereby state that there was never a time the 2nd defendant/applicant floated an airline. Exhibit “B” attached to the counter-affidavit to the defendant/respondents (sic) was fabricated for the purposes of this motion.
8. That paragraphs 15,16,17,18,19 and 20 of the counter-affidavit of the defendant/respondent (sic) are false and untrue. In further answer to the said paragraph 15, I hereby state that the evacuation of all the property of the 2nd defendant/applicant to the High Court, Onitsha has further crippled the 2nd defendant/applicant financially who now lives on charity”.

Appellants application for stay of execution, pending the determination of the appeal to that Court (Court of Appeal) was made under sections 16 and 18 of the Court of Appeal Act.
In considering the application, the Court of Appeal stated the well settled principles governing the grant of Slay of execution pending appeal when it observed.
“The main question to be resolved in the instant case therefore is whether from the facts disclosed in the various affidavits in support of the application, the grounds of appeal filed against the verdict of the court as well as the circumstances of the case, the applicants have made a case warranting the exercise of this Court’s discretion in their favour. It is trite law that the grant of stay of execution involves a consideration of the chances of the applicant’s ability to satisfy the judgment debt if the appeal is unsuccessful and the general rule to maintain the status quo between the parties are also important considerations – See lntercontractors Nig. Ltd. v. UAC. Ltd. (1988) 2 NWLR (Pt.76) 303; Odufuye v. Faroke,(1975) 1 NMLR 222; Shoge v. Musa (1995) 1

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NMLR 133; Wey v. Wey, (1975)1 SC 1 and Balogun v. Balogun (1969) 1 All NLR 349.”.
It is important and pertinent to mention that impecuniosity per se is not a valid ground for the grant of stay of execution of judgment. See Balogun v. Balogun (1969) 1 All NLR 349. The fundamental principle that the judgment creditor is entitled to the fruits of his litigation can only be defeated by circumstances which render it inequitable for him to enjoy the benefit of his victory. An applicant for stay of execution bears the burden of showing that the grant of stay of execution will not result in the determination of the issue subject matter of the appeal, and there will be no injustice to the respondent – See LSDPC v. Citymark (W.A.) Ltd. D (1998) 8 NWLR (Pt.563) 681; Vaswani v. Savalakh (1972) All NLR (Pt.2) 483, UBN v. Fajebe Foods (1994) 5 (pt.344) 325, Obi v. Obi (1998) 4 NWLR 51. The admission by appellants of their indebtedness to the respondent in the sum of N29million naira was critically examined by the Court of Appeal. The Court of Appeal after considering that the amount ordered by the Court was that admitted owing, and was merely the balance from the N139million granted, came to the conclusion that:-
“The question therefore is whether it is equitable for this court to grant a stay of execution of the portion of that judgment ordering the applicants to pay the N29miliion which the applicants admitted owing the respondent while proceeding with the rest of the claim disputed. My answer to that question is definitely in the negative.”

The above conclusion is clearly indicative that the court of Appeal relied on the admission of appellant of the indebtedness and not the fact that the allegation of massive wealth was not controverted. I hold therefore that the alleged misdirection though established did not occasion any miscarriage of justice. Issue No.4 if a compliant that the Court of Appeal wrongly refused to grant the stay of execution when the record of appeal was already in the possession of the court. The decision of Fawehinmi v. Akilu (1990) 1NWLR (pt.127) 450 was relied upon. The submission does not say why the stay of execution should be granted. Possession of record of proceedings per se is not conclusive as to the merits of the appeal. It also does not suggest that it is in the interest of justice necessary to grant the application. The most the possession of record of appeal does is that granting a stay of execution would not occasion undue delay, because the appeal is with the exchange of briefs of argument ripe for hearing.
On the whole the appeal fails and is hereby dismiss. If still pending before the

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Court of Appeal should be given accelerated hearing.
There is no order as to costs.

I have had the preview of the opinion of my Lord the Chief Justice of Nigeria in the judgment which he has written and I agree with him that this interlocutory appeal has failed and ought to be dismissed.
Stay of execution is a discretionary remedy. An appellate court in considering an appeal against the refusal of a court to order for stay of execution should ensure that the successive litigants are not unduly deprived of the fruits of the judgment which they had obtained at the lower court even though that judgment is the subject of a pending appeal- Utilgas v. Pan African Bank (1974) 10 SC 105. The court below in this appeal considered the admission of the 2nd appellant in exhibit “Q” that N29million naira was still outstanding in the transaction between the appellants and the respondent. From the facts, since the High Court, in its judgment, ordered payment of only N29million out of the judgment debt I cannot see how one can fault the decision of the Court of Appeal in refusing to grant the application for a stay of the judgment of the High Court. Turning to the issue questioning the Court of Appeal’s decision when the parties were yet to exchange their briefs of argument, it is pertinent to reproduce what the court below said in its running on the issue. It made the following observation:
“The grounds of appeal filed against the judgment of the court have nothing to do with the issue of the amount which the 2nd applicant admitted as the balance due on the transaction.

While it is not proper, at this stage, to consider the merit or demerit of the appeal filed, since the record of appeal and the parties’ briefs are not yet before this court, one may however say at this stage that from the claim before the court, which was for a total sum of over N29million, it will not be out of place for a court to grant or order for the payment of N29million admitted out of the total sum claimed. That sum is less than the amount claimed and as such it is within the scope of what the court could award in the matter. A ground of appeal alleging that the court awarding not what was claimed cannot therefore be said to raised any substantial issue for determination by this court.”
It is relevant to point out, as this court has done in several decisions, that the guiding principle in applying for a stay of execution of judgment is for the applicant to show substantial reasons to warrant deprivation of the successful party of the fruits of his judgment. Where grounds exist suggesting a

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substantial issue of law to be decided on the appeal in an area in which the law is to some extent recondite either side may have a decision in his favour. See Balogun v. Balogun (1969) 1 All NLR 349. However,where the appeal is against a judgment where the applicant for a stay had admitted liability in the trial court it is my strong view that such application is without any merit and should be refused.
For these reasons, and the fuller reasons, in the lead judgment this appeal has failed. I affirm the ruling of the Court of Appeal dismissing the application of the appellants for stay of execution of the judgment delivered by B. N. Nwofor J of Anambra High Court. I award the respondent N10,000.00 costs against the appellants.

I have had the advantage of reading in draft the judgment of my brother Uwais, CJN. I entirely agree with it. There is nothing that I can usefully add.

 Being privileged to have read in advance the judgment just delivered by my Lord Uwais CJN, I agree for all the reasons given that this appeal lacks merit. I also dismiss the appeal and abide with the other orders made in the leading judgment.

Appeal dismissed.

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