John Akujobi Nwabueze V. Obioma Nwosu (1988)

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B. CRAIG, J.S.C. 

On the 28th of June, 1988, the court allowed this appeal, and adjourned till today to give reasons for doing so. I now give my reasons for agreeing that the appeal be allowed.

The whole appeal is concerned with the order for a stay of execution granted to the Respondent by the High Court, Aba which order was confirmed by the Court of Appeal, Enugu.

It is not in dispute that the trial Court had a discretion to grant a stay, but the main point in this appeal is whether that court had exercised its discretion judiciously having regard to all the circumstances of the case.

In this respect, I should like to refer to the principles laid down by this court in several decided cases to the effect that it will not interfere in the exercise of the discretion of a lower court unless the exercise of such discretion is “manifestly wrong, arbitrary, reckless or injudicious” –

See per Nnamani, J.S.C. in University of Lagos v. Olaniyan (1985) 1 NWLR 156 at p.163.

In another case on the same point, Bello, J.S.C. (as he then was) stated the principle in these words:-

“Thus an appeal court may interfere with the exercise of judicial discretion if it is shown that there has been a wrongful exercise of the discretion such as where the tribunal had acted under a misconception of law, or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases where it is in the interest of justice to interfere.”

See the case of University of Lagos v. M. I. Aigoro (1985) 1 NWLR 143 at 148. Other cases on the same principle are Demuren v. Asuni (1967) All N.L.R. 94 at 101 Solanke v. Ajibola (1968) 1 All NLR 46 at 52 Sonekan v. Smith (1967) All NLR 329 and Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR 787.

In the instant case, it will be necessary to give a brief background of the circumstances leading to the making of the order.

In the Aba Judicial Division of Imo State, the appellant had sued the Respondent for a refund of the sum of N48, 125.56 being “a friendly loan given to the defendant at his request between 8th June, 1982 and 1st September, 1982.” The Respondent, in his statement of defence, admitted receiving the said amount from the appellant, but stated that it was “not a friendly loan, but the Appellant’s share of a haulage business.” On that sole issue, the trial Court (per Mbachu, J.) found as follows:

“There was no partnership agreement between the parties nor were they in partnership for the business. The plaintiff has not derived any benefit whatsoever from the transaction into which he put his money; if any person had a benefit from the arrangement it is the defendant. Justice demands that the plaintiff gets back his money and so I give him judgment in terms of his claim for N45,125.56 with N300 costs inclusive of out of pocket expenses.

That judgment was given on the 7th of August, 1986 and on the following day, the Defendant/Respondent appealed against the judgment. On that same day, he filed a motion for a stay of execution, and in the accompanying

Affidavit, he stated inter alia, that: