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Franchal Ltd v. Nigeria-Arab Bank

FRANCHAL NIGERIA LIMITED & ANOR

CHIEF FRANCIS OKWUCHUKWU NZEKWESI

V.

NIGERIA ARAB BANK LTD.

SUPREME COURT OF NIGERIA

MUHAMMED LAWAL UWAIS, C.J.N.( Presided and Read the Leading Judgment )

ADOLPHUS GODWIN KARIBI-WHYTE, J.S.C.

UTHMAN MOHAMMED, J.S.C.

ALOYSIUS IYORGYER KATSINA-ALU, J.S.C.

AKINTOLA OLUFEMI EJIWUNMI, J.S.C.

SC.186/1994

FRIDAY 2ND JUNE, 2000

APPEAL - Brief - Brief filed by only the appellant - Parties absent at oral hearing

-  How treated - Order 6,  rule 8(7), Supreme Court Rules, 1985 (as amended )

APPEAL - Misdirection - Where established but not occasioning miscarriage of justice - Effect on judgment appealed from.

EVIDENCE - Public document - Affidavit used in the previous proceeding - Reliance on uncertified copy  of same in proceedings at  the High Court  - Court of Appeal relying on a subsequent certified copy in refusing application for stay -Propriety of.

PRACTICE AND PROCEDURE - Where brief filed by the  Appellant only - Parties absent and unrepresented by counsel at oral hearing - How treated - Order 6  rule 8(7) Supreme Court Rules, 1985 (as amended )

PRACTICE AND PROCEDURE - Judgment in undefended list - Judgment based on admissions in an uncertified public document  - Same public document subsequently certified in the course of proceedings for stay in the Court of Appeal - Court of Appeal relying on the subsequently certified copy Propriety of.

PRACTICE AND PROCEDURE - Stay of execution - Judgment based on admissions - Application for stay of execution of  - Need to refuse.

PRACTICE AND PROCEDURE - Stay of execution - Principles governing.

PRACTICE AND PROCEDURE  - Stay of  execution pending appeal - Record of proceedings already in possession of appellate court - Effect on application for stay.

PRACTICE AND PROCEDURE - Stay of execution - Impecuniousity as not a ground  for granting stay of execution.

Issues:

  1. Whether Exhibit “Q” being part of the record of proceedings in an earlier case, namely, suit No. 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.
  2. Whether the appellants controverted the averment of possession of immense wealth in the affidavit of the respondent, and if so whether the refusal of stay by the Court of Appeal was proper.
  3. Whether the Court of Appeal was correct in refusing stay when the record of appeal was already in its possession.

Facts:

The Respondent as plaintiff brought a suit under the undefended list claiming certain sum of money being unpaid principal and interests of over-draft credit facility granted the Appellants. The Appellants as 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. The learned trial judge ruled that the memorandum of appearance filed by the defendants was not appropriate in the circumstance and proceeded to enter judgment for the plaintiff in the sum of N29 million naira, a lesser amount than that claimed on the writ based on the admission contained in Exhibit “Q” (an affidavit sworn to by the 2nd Defendant) used in a previous proceeding (Suit No 0/121M/92 - Chief Francis Nzekwesi vs. Inspector General of Police & 3 ors) involving the 2nd Defendant/Appellant herein.

The appellants appealed against the judgment and filed a motion for stay in the Onitsha High Court. The motion was refused. They filed another motion for stay of execution to the Court of Appeal. The Court of Appeal in a unanimous decision dismissed the motion. This is an interlocutory appeal against the ruling of the Court of Appeal dismissing the Appellants’ motion on notice for stay of execution.