Nnamani Be Nnaji Nwobodo V. Okida Akkah (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Lead Ruling)

This is a motion for stay of execution of the Judgment of the Enugu State High Court delivered on 2/2/14 by the Chief Judge, Hon. Justice I.A. Umezulike in Suit No E/718/96 pending the determination of the appeal lodged by the Appellant/Applicant in this Court. The undisputed facts that led to this application are as follows:-

In October 1986, the Appellant/Applicant agreed to sell the property known as 3B Mount Close Awkunanaw, Enugu to offset the Applicant?s indebtedness to Cooperative and Commerce Bank Ltd. The Respondent paid the sum of N93,000 into the account of the Applicant at the Cooperative Commerce Bank Ltd. The Applicant claims that the N93,000 was deposit with the balance left to be paid.

The Respondent contends that the property was offered to him at the price of N93,000. On 17th December, 1986, Applicant signed a Deed of Assignment of the property over to the Respondent. Applicant claims that he did not know the purport of the document and he only signed it because the Respondent, knowing the Applicant was illiterate misled him to believe that

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the document was an instrument to enable the Respondent get a loan from First Bank PLC to pay the balance of the agreed purchase price to the Applicant.

The Applicant who was Plaintiff at the trial Court had sought for a declaration that the Deed of Assignment dated 17/11/86 he made in favour of the Respondent should be set aside as null and void and an Order that the Respondent be compelled to receive the refund of N93,000 to be made by the Applicant/Appellant, return of the Deed of Lease in respect of the property etc. The Respondent counter-claimed for arrears of rent and accounts from Nov 1st 1990 to date of judgment.

The trial Court in a considered judgment dismissed the case of the Applicant and denied all the reliefs sought by him, the counter claim of the Respondent however succeeded.

Dissatisfied with the judgment of the trial Court, the Appellant/Applicant appealed against the decision by a Notice of Appeal dated and filed on 05/02/14, containing 4 grounds of appeal. An application for stay of execution of the judgment to the trial Court was dismissed by the trial Court.

The Applicant being dissatisfied with the ruling of the

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trial Court has by a motion on notice filed on 21/04/15 brought an application for an Order staying the execution of the judgment of the Enugu State High Court delivered on 02/02/14 by Hon. Justice I.A. Umezulike. The motion is supported by a 20 Paragraph affidavit and a further affidavit filed on 02/09/2015. The only relevant depositions in the affidavit in support of the application are Paragraphs 17-19 which read as follows:

”17. That the Respondent is very keen on selling or alienating the property forming the subject matter of this suit.

18. That my counsel Dr. G.C. Oguagha informs me, and I verily believe him, that my grounds of appeal contain substantial issues of law to be argued on appeal.
19. That my said counsel informs me, and I verily believe him, that my appeal is likely to succeed.”

The pertinent depositions in the further affidavit are in Paragraph 2 as reproduced below: