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In
The
Supreme
Court of
Nigeria On
Friday,
the 20th
day of
January
1989 S.C.
61/1986
Before
Their
Lordships
Between
And
Judgement
of the
Court Delivered
by Ebenezer
Babasanya
Craig. J.S.C
This
appeal is
an
off-shoot
of a
previous
case which
came
before the
Supreme
Court
sitting as
a full
Court.
That case
SC.110/82
- Wema
Bank Ltd.
V. Bronik
Motors
Ltd. and
A. 0.
Obikoya, was
later to
become the
leading
authority
on the
limits of
the
jurisdiction
of the
Federal
High
Court.
The
appeal
herein
arises
from an
interlocutory
application
brought
after
judgment
in the
principal
case
referred
to above
and
relates to
the proper
construction
to be
placed on
a portion
of the
judgment
of this
Court as
it affects
the
liability
of the
appellant
who was
the 2nd
Defendant
in the
original
suit.
The
relevant
facts as
they
relate to
this
appeal are
as follows
and the
parties
will
hereafter
be
referred
to simply
as
plaintiffs
and
defendants.
On
the 25th
of March
1980, the
plaintiff,
Wema Bank
Limited
took out C
a
Writ of
Summons
against
the
defendants
in the
High Court
of Lagos
for:
1.
Specific
performance
of an
agreement
between
the
parties
and
evidenced
in letters
dated
10/W76, 28/1/76
and 2/2/76
whereby
the
defendants
promised
to execute
legal
mortgage
of the
defendant's
properties
lying and
situate at
(a) 400
Herbert
Macaulay
Street,
Yaba
(Lagos)
(b)
Adekunle
Fajuyi
Street,
Ibadan (c)
D
ljebu-Bye
Pass, Oke-Ado,
Ibadan (d)
21
Barracks
Road,
Calabar
and (e)
Mile 3 Aba/Port-Harcourt
Road, Aba;
in favour
of the
plaintiffs
to secure
various
overdrafts
amounting
to over
2.
The
sum of
It
would
appear
that the
2nd
Defendant
was sued
as a
guarantor
of the 1st
Defendant,
for in the
following
paragraphs
of the
amended
Statement
of Claim
(amongst
others),
the
plaintiff
pleaded
that:
7.
By
letter
dated
2/2/76,
the
plaintiffs
approved
overdraft
facility
of
8.
By
an
endorsement
on the
copy of
letter
dated
2/2/76,
referred
to in
paragraph
7 above,
Bronik
Motors
unincorporated
and the 2nd
Defendant
signified
acceptance
of all the
terms and
conditions
stipulated
therein.
9.
By
Deed of
Guarantee
dated
21/6/76,
the 2nd
Defendantguaran
teed
payment to
the
plaintiffs
of all
monies and
liabilities
owing or
incurred
to the
plaintiffs
by Bronik
Motors
unincorporated
and the
1st
Defendants
up to the
limit of
The
case
proceeded
to trial
and in his
judgment,
the
learned
trial
Judge,
Onalaja,
J. found
inter-alia,
as
follows:
The
liability
of the 2nd
Defendant
arises
when the
principal
debtor
has made a
default in
the
payment to
the
plaintiff,
which was
demanded
by
Exhibits
8, 10, 16
and 18.
The
liability
of the 2nd
Defendant
cannot be
unduly
extended
beyond the
strict
provisions
of Exhibit
2. The
liability
of the 2nd
Defendant
is limited
to the
loan of
half a
million
Naira
chargeable
with
interest,
only that
Exhibit 2
is silent
as to the
rate of
interest.
Section
75 of the
Evidence
Act says
that all
facts
except the
contents
of
documents,
may be
proved by
oral
evidence.
Since
Exhibit 2
is silent
as to the
rate of
interest,
I accept
the oral
evidence
and the
documentary
evidence
before me
that by
mutual
agreement,
the rate
of
interest
was
reduced to
8% from
9%. I hold
that the
rate of
interest
chargeable
on both
the loan
guaranteed
by the 2nd
Defendant
and all
transactions
in this
case is
chargeable
with 8%
interest.
I
therefore
enter
judgment
for the
plaintiff
on the
personal
liability
of the 2nd
Defendant
as a
guarantor
of the 1st
Defendant
to the
tune of
half a
million
Naira (
After
dealing
with other
aspects of
the case,
judgment
was
entered
against
the
defendants
in the
following
terms:
In
the final
result,
judgment
is hereby
entered
for the
plaintiff
against
the
defendant
for:
(1)
an
order of
specific
performance
against
the
defendants
to execute
legal
mortgage
of their
properties
situate,
lying
designated,
described
as (a) 400
Herbert
Macaulay
Street,
Yaba,
Lagos and
(b) 21
Barracks
Road,
Calabar in
favour of
the
plaintiffs.
(2)
the
total sum
of
(3)
the
sum of
The
defendants
were
dissatisfied
with that
judgment
and
appealed
to the
Federal
Court of
Appeal (as
it then
was) on a
number of
grounds,
one of
which
alleged
that:
5.
The
learned
trial
Judge
erred in
law in
giving
judgment
againsi
the 2nd
defendant.
PARTICULARS
OF ERROR
(a)
The
2nd
defendant
did not
guarantee
the debt
of the 1st
defendant.
(b)
Even
if (which
is not
admitted)
there was
a valid
substitution
of Bronik
Motors
Ltd. for
A.O.
Obikoya
& Sons
Ltd. (or
Bronik
Motors) as
debtors of
plaintiff
Bank, such
substitution
must
operate
as a
discharge
of the 2nd
defendant
as a
guarantor.
The
arguments
on the
appeal
took four
days and
in a well
considered
judgment,
the lower
court
dismissed
the appeal
on all
grounds
except
one.
Ademola,
J.C.A.,
who read
the lead
judgment,
(Nnaemeka-Agu,
J.C.A. (as
he then
was)
and Uthman
Mohammed,
J.C.A.,
concurring)
made an
exhaustive
review of
the full
facts of
the case
and stated
at pages
175/176 of
the
Record:
Let
me
summarise
the issues
that have
arisen out
of this
appeal
thus:
(a)
Specific
Performance
(b)
Illegality
of the
contract
under
5.13(1),
S.13(5) of
the
Banking
Act, 1969.
(c)
The
question
of unjust
enrichment
if the
issue of
illegality
raised
succeeds.
(d)
Assignment
of the
debt of
Bronik
Motors to
Bronik
Motors
Limited as
it is
contended
for by the
Respondent.
(e)
Novation
as what
should
have been
done
instead of
assignment
as
contended
for by the
Appellant.
(f)
Pleadings
and the
causes of
action.
(g)
Liability
of the 2nd
Appellant
on the
guarantee
in Exhibit
2.
Those
are
matters in
my view
which I
shall
dwell upon
as having
arisen
from the
argument
of
counsel;
the facts
proved in
this case
and the
exhibits
tendered.
The
learned
Judge then
proceeded
to deal
with each
of those
issues in
turn.
In
regard to
item (g),
which
forms the
subject-matter
of this
appeal,
Ademola,
J.C.A.,
held as
follows:
It
is
convenient
at this
stage to
deal with
the
liability
of the 2nd
Appellant
on the
guarantee
given by
Exhibit 2
………………………………
The
document
Exhibit 2
is the
only one
that must
determine
this
matter
however
much the
knowledge
of the 2nd
Appellant
may be in
respect of
Exhibits
4,5, 5A
and 5B
…………..
Clause
3 of
Exhibit 2
would in
my opinion
take care
of the
situation
of a
change
from
Bronik
Motors to
Bronik
Motors
Ltd.
effected
by
Exhibits
4, 5, 5A,
5B and 6.
It was up
to the 2nd
Appellant
if he does
not wish
to
continue
the
guarantee
to give
notice to
the
respondent's
bank as so
stipulated
in that
clause.
Assuming
that there
was no
change in
the name
style or
constitution
of Bronik
Motors, it
is my view
that 2nd
Appellant
would
still be
liable
under
Clause 4
of Exh. 2.
I
am also of
the view
that on
the proved
facts of
this case,
Clause 18
is also
relevant
as to the
liability
of the 2nd
Appellant.
The
conclusion
then is
that the
change
that took
place in
respect of
Bronik
Motors had
not
affected
the
liability
of the 2nd
Appellant.
The
grounds of
appeal as
to his
non-liability
in respect
of the
account at
the Mushin
Bank of
the
respondent
fail.
The
learned
Justice
then went
on to
consider
other
aspects of
the appeal
and
eventually,
he gave
judgment
in these
terms:
Having
thus
disposed
of all the
submissions,
I have no
hesitation
in coming
to the
conclusion
that this
appeal
will have
to be
dismissed
save in
respect of
the order
for
specific
performance
made by
the
learned
trial
Judge.
Therefore
the
judgment
of the
Lagos High
Court
presided
over by
Onalaja,
J. is
hereby
confirmed
in part;
the order
for
specific
performance
on
properties
at 400
Herbert
Macaulay
Street,
Yaba,
Lagos and
21
Barracks
Road,
Calabar is
hereby set
aside as
null and
void. The
appeals of
the
Appellants
on other
grounds
are
accordingly
dismissed.
As
previously
stated,
Nnaemeka~Agu,
J.C.A. (as
he then
was) and
Mohammed,
J.C.A.
concurred
in that
judgment
and in the
decision
to dismiss
the
appeal,
particularly
in regard
to the
liability
of the 2nd
Defendant.
The
two
defendants
were not
satisfied
with that
judgment
and they
appealed
to the
Supreme
Court. The
appeal
took a new
turn in
this
Court,
because
in
addition
to the 12
original
grounds of
appeal
filed, the
appellants
in a
further
ground of
appeal
called
upon the
Supreme
Court:
1
To
hold that
the State
High Court
had no
jurisdiction
to
adjudicate
on the
claim
before it
as the
subject-matter
of the
suit -
banking
- was a
matter on
the
exclusive
Legislative
list, and
that under
the 1979
Constitution,
it was a
matter
which was
cognisable
before
the
Federal
High Court
only and
2.
To
overrule
its
previous
decision
of 9 years
standing
on the
point as
contained
in the
case of
Jammal
Steel
Structures
Ltd. V.
A.C.B.
Ltd. (1973)1
All N.L.R.
Part 11
208.
In
consequence
of the 2nd
prayer
above, a
full Court
was
empanelled
to take
the
appeal. In
a
unanimous
decision,
the Court
held that
the State
High Court
did have
jurisdiction
and
declined
the
invitation
to
overrule
the
decision
in Jammal's
case supra.
The
judgment
of this
Court is
reported
as Bronik
Motors
Limited
and anor.
V Wema
Bank Ltd. (1983)
6 5 C. 158.
It
is
necessary
to mention
here that
because of
the
importance
of the
case, a
good
portion of
the
judgment
of all the
seven
Justices
who sat on
the appeal
was
devoted to
the
constitutional
points
raised in
the
appeal.
However,
Nnamani,
J.S.C.,
who read
the lead
judgment,
after
dealing
exhaustively
with the
Constitutional
issues
went on to
touch on
other
aspects of
the
appeal. In
particular,
His
Lordship
considered
the limit
of the
liability
of the 2nd
Defendant
(Appellant
herein)
and held
as
follows:
As
regards
the other
matters in
this
appeal, Ademola,
J. C.A. in
his lead
judgment
had set
them down
at page
176. I had
earlier on
in this
judgment
indicated
the
matters I
propose to
deal with
and set
down
appellant's
ground of
appeal
relating
to those
matters. I
would only
wish to
deal with
the
guarantee,
admitted
in the
proceedings
as exhibit
2, given
by the 2nd
appellant
to the
respondent.
The Court
of Appeal
affirmed
the
decision
of the
learned
trial
Justice on
that
point. As
regards
the
liability
of the 2nd
Appellant,
Chief
Williams
had
submitted
that even
if he was
liable,
the
liability
cannot
exceed
(3)
the
sum of
I
agree that
the terms
of the
order
should be
varied
such that
the
judgment
is against
the 2nd
defendant
(i.e. 2nd
appellant
herein)
for
As
for the
merits of
the
appellants'
case on
the
guarantee,
the
argument
on Exhibit
2 had been
that the
guarantee
given by
the 2nd
appellant
was on
behalf of
Bronik
Motors (a
division
of A.
Obikoya
and Sons
Limited)
and not on
behalf of Broniks
Motors
Limited
(1st
Appellant)
which had
not been
incorporated
at the
time the
guarantee
was given.
I
agree with
the Court
of Appeal
that
paragraph
3 of
exhibit 2
which
reads as
follows:~
(3)
The
guarantee
shall be
continuing
security
binding on
the
Guarantor
or on each
of the
Guarantors
and
his/their
executors
administrators
and legal
representatives
until the
expiry
three
calendar
months
after the
receipt by
the Bank
of notice
in writing
to
discontinue
same from
Guarantor
to any of
the
guarantors
or from
his/their
executors
administrators
or legal
representatives
and
notwithstanding
any change
in the
name style
or
constitution
of the
Principal
certainly
disposed
of that
contention.
Paragraph
4 of the
guarantee
was also
in these
terms:
(4)
If
the
Principal
be a
Committee
or other
unincorporated
body which
has no
legal
existence
or which
is under
no legal
liability
to
discharge
obligations
undertaken
or
purported
to be
undertaken
by it or
on its
behalf
this
guarantee
shall be
valid and
binding G upon
the
Guarantor
or
Guarantors
notwithstanding
that fact
and as
though the
Guarantor
was the
principal
debtor or
if there
be more
than one
Guarantor
as though
the
Guarantors
were joint
and
several
principal
debtors.
The
terms of
paragraphs
5, 13 and
18 of
exhibit 2
also leave
me in no
doubt as
to the
liability
of the
guarantor
to the
limit
agreed by
the
parties in
exhibit 2.
For
all the
foregoing
reasons
this
appeal
must fail
and it
does fail.
It is
accordingly
dismissed.
I affirm
the
judgment
of the
Federal
Court of
Appeal
dated 6th
July.
1982.1
also award
It
is this
portion of
the
judgment
that has
given rise
to the
present
appeal.
The 2nd
Defendant
contends
that his
liability
on the
amount due
to the
plaintiff
is limited
to the sum
of
The
plaintiff
on the
other
hand,
claims
that the
mere
payment of
the sum
guaranteed
does not
wholly
discharge
the 2nd
Defendant.
He asserts
that under
Clause 11
of the
guarantee
(Exhibit
2), the
liability
of the 2nd
Defendant
is
continuous
until the
debt of
over
That
knotty
point as
to the
real
extent of
the
liability
of the 2nd
Defendant
is now the
subject of
an appeal
before the
lower
court and,
in my
view, it
would not
be right
to express
any
opinion on
it in this
appeal so
as not to
prejudge
the issues
which
might be
canvassed
before the
lower
Court.
Because
of this,
it will be
necessary
to
determine
at this
stage, the
exact
limits of
the scope
of the
appeal in
this
court. In
this
respect, I
bear in
mind that
this
appeal
arose Out
of
a Motion
filed
before the
Court of
Appeal
for:
(a)
extension
of time
within
which to
appeal
(b)
leave
to appeal,
and
(c)
stay
of
execution
pending
the
appeal.
The
lower
Court
refused
those
prayers
and gave
as its
reasons
the fact
that the
proposed
grounds of
appeal
were not
prima
facie substantial
grounds.
In other
words, the
lower
Court was
of the
opinion
that the
proposed
grounds
did not
contain
any
arguable
points.
See Ukpe
Ibodo
& ors.
V.
Enarofia (1980)
5-7 S.C.
42 at
p.53; University
of Lagos
V.
Olaniyan
(1985) 1 NWLR
(Pt.1) l56
at 166.
In
those
circumstances,
this
appeal
will be
limited to
a
consideration
of the
reasons
given for
dismissing
the
Motion,
and to
ascertaining
whether
the Court
of Appeal
was right
for
holding
that the
proposed
grounds
were not
substantial.
In my
view, it
would be
premature
at this
stage, to
make a
decision
on the
actual
merits of
the
proposed
grounds of
appeal. I
shall now
give a
short
resume of
the
relevant
facts
which gave
rise to
this
appeal.
Whilst
the
principal
case (S.C.
110/182)
was
pending in
the
Supreme
Court, and
following
an
application
made by
the
defendants,
this Court
on
15/11182
granted a
stay of
the
execution
of the
trial
Court's
judgment,
on the
following
conditions
(amongst
others):
(a)
That
the
defendants
should pay
the sum of
(b)
That
the
defendants
should
thereafter,
pay
(c)
That
in default
of any of
the
conditions
stipulated
by the
court, the
stay
thereby
granted
would
automatically
abate and
be
discharged.
(italics
ours).
It
will be
seen from
the 2nd
condition
above,
that the
stay was
granted
pending
the
determination
of the
appeal.
The appeal
was in
fact
disposed
of on the
10th
of June
1983, and
the 2nd
Defendant
claimed
that by
that time,
he had
personally
paid the
sum of
On
the 14th
day of
June,
1983(i.e.
4 days
after the
Supreme
Court
judgment),
the
plaintiffs
made the
following
offer to
the
Defendants:
14th
June, 1983
Chief
F.R.A.
Williams,
S.A.N. Palm
Grove
House, I
Shagamu
Avenue, Ikorodu
Road,
Iupeju Lagos
State.
Dear
Sir,
RE:
SUIT NO.
SC.110/82 Bronik
Motors
Ltd. &
anor. vs.
Wema Bank
Ltd.
Following
the
judgment
of the
Supreme
Court
delivered
in favour
of our
client on
the lOth
June, 1983
it would
appear
that the
order for
stay of
execution,
subject to
the
payment of
2.
We
would be
obliged if
your
clients
would
confirm
within 7
DAYS their
willingness
to
continue
the
instalmental
payment of
3.
Unless
this
confirmation
is
received
as
requested,
we have
instruction
to revive
execution
of the
Writ of
Fifa
suspended
since l981
and to
proceed
with
public
auction of
landed
properties
of the
judgment-debtors.
We would
not wish
to
embarrass
your
clients
further in
this
matter if
only they
would now
co-operate
with us to
settle the
debt.
Yours
faithfully, (Signed) Ladosu
Ladapo
& Co Solicitors
The
defendants
were quick
to accept
that offer
by letter
dated
2016/83
which
states:
20th
June 1983
Ladosu
Ladapo
& Co. 52/54
Murtala
Muhammed
Way, Ebute-Metta Lagos.
Dear
Sir,
RE:
SUIT NO.
SC.110/82 Bronik
Motors
Ltd. &
anor. vs.
Wema Bank
Ltd.
I
refer to
your
letter
dated 14th
June, 1983
and do
hereby
confess
the
willingness
of my
clients to
continue
the
instalmental
payment on
the terms
and in the
manner
stated in
your
letter.
Yours
faithfully, (Signed) F.R.A.
Williams,
Esq. S.A.N.
But
a few days
later, the
plaintiffs
withdrew
their
original
offer and
made a new
offer to
the
defendants
in these
terms:
15th
July 1983
F.R.A.
Williams
Esq.,
S.A.N., Chief
Rotimi
Williams
Chambers, Palm
Grove
House, 1
Shagamu
Road, Lagos.
Dear
Sir,
RE:
SUIT NO.
SC.110/82 Bronik
Motors
Lid. &
anor. V.
Wema Bank
LImited
Further
to our
letter of
14/6/83
and your
reply of
20/6/83,
we regret
to say
that your
client's
proposal
to pay the
judgment
debt of
2.
In
view of
the
contravention
by our
clients of
S.13(1) of
the
Banking
Act, 1969
and the
penalty
being paid
to the
Central
Bank under
S.13(5)
(which
contravention
formed the
basis of
ground 11
of your
grounds of
appeal at
the
Supreme
Court),
the Board
of
Directors
of the
Bank have
directed
that your
clients be
advised to
pay a lump
sum of
3.
The
Board of
Directors
of the
Bank note
that it
will take
over 4
(four)
years to
liquidate
the
judgment-debt
on the
basis of
your
clients
proposal;
whereas
the loan
overdraft
was
granted on
a short
term
basis.
4.
In
the light
of the
above, we
shall be
pleased if
you would
confirm
which of
the
alternatives
your
clients
would
prefer. In
the
meantime
we shall
suspend
further
action
until we
hear from
you.
Yours
faithfully, (Signed) Ladosu
Ladapo
& Co Solicitors
In
his reply
to the
above,
Chief
Williams
took care
to set out
what he
considered
to be the
legal
position
of the two
defendants.
This is
what he
said:
24th
September
1983
Wema
Bank
Limited, 52154
Murtala
Muhammed
Way, Ebute~Metta, Lagos. RE:
SUIT NO.
S.
C.I10/82
Bronik
Motors
Ltd. &
anor. V
Wema Bank
Limited
We
write on
behalf of
Mr. A.O.
Obikoya
who was
the second
defendant
in the
above
matter. As
you are
aware, one
of the
results of
the appeal
to the
Supreme
Court was
to limit
the
liability
of that
defendant
to the sum
of
You
may have
observed
(as the
fact is)
that all
payments
made
pursuant
to the
order of
the
Supreme
Court up
to date
were made
personally
by Mr.
Obikoya
from his
personal
resources
and not by
the 1st
defendant.
At the
same time
the 1st
defendant
are taking
urgent
steps to
see that
they play
their part
fully in
the
repayment
programme.
It
is
observed
that by
making the
aforementioned
payments,
our client
has fully
repaid the
sum of
You
will no
doubt
agree that
in
computing
Mr.
Obikoya's
liability
for
interest
you have
to work on
the amount
of
interest
attributable
to his
total
liability
only. Mr.
Obikoya
has
computed
this
amount in
the sum of
We
look
forward to
having
your
confirmation
that the
sum due
from Mr.
Obikoya is
Thanking
you in
advance
for your
co-operation.
Yours
faithfully, (Signed) F.R.A.
Williams.
cc:
Ladosu
Ladapo,
Esq., Ladosu
Ladapo
& Co., 52/54
Murtala
Muhammed
Way, Ebute~Metta."
There
was no
response
to the
above
letter and
so Chief
Williams
sent
another.
It reads
as
follows:-
20th
October
1983.
Wema
Bank
Limited, 52/54
Murtala
Muhammed
Way, Ebute-Metta,
Lagos.
Dear
Sir, SUIT
NO.
SC.II0/82 Bronik
Motors
Ltd. &
an or. V.
Wema Bank
Ltd.
We
refer to
our letter
dated 24th
September
1993
addressed
to you on
behalf of
Mr. A.O
Obikoya in
respect of
the above
matter.
You have,
up to date
failed to
accord to
us the
courtesy
of an
acknowledgment
or reply
to that
letter.
2.
In
the
circumstances
we have
advised
our client
to make
his own
calculations
of the sum
due and
payable by
him with
interest
attributable
to the
amount of
3.
Our
client,
Mr. A.O.
Obikoya
has now
completely
discharged
all his
liabilities
to the
Bank as
Guarantor
for Bronik
Motors. As
you know,
the
Company is
pursuing
in Court
an
application
to pay the
balance by
instalments.
Yours
faithfully, (Signed) R.
A.
Williams.
cc.
Ladosu
Ladapo,
Esq.
Still
there was
no reply
to this
letter,
and so
Counsel
filed a
Motion
before the
trial
Court for:
(a)
Stay
of
execution
of the
judgment
debt and
(b)
Instalmental
payments (
Although
the
application
was
brought
"on
behalf of
the
defendants"
i.e. the
two
defendants,
yet it was
quite
apparent
from the
accompanying
affidavit
that it
was the
1st
Defendant
who was
asking for
the stay
and it was
he who was
offering
to make
the
instalmental
payments.
The
relevant
paragraphs
read:
8.
That
the 2nd
Defendant
has paid
the sum of
9.
That
the first
Defendant
is now hit
with the
recession
which is
now
plaguing
the
country
and as a
result,
trade is
practically
nil.
10.
That
the first
Defendant
has to
retrench
its staff
because of
the
recession.
14.
That
the 1st
Defendant
is willing
to
liquidate
same by
monthly
instalment
of
15.
That
the 2nd
Defendant
intends to
file
further
affidavit
in support
of this
application
immediately
he is
available.
16.
That
the
Plaintiff
has issued
a writ of
fifa
against
the 1st
Defendant's
assets but
this was
stayed by
the
Supreme
Court
pending
the
hearing of
the
substantive
appeal
which has
been
disposed
of.
The
Bank's
reaction
to the
above
paragraphs
was short
and sharp:
it opposed
the
instalmental
payment
and filed
two
counter-affidavits
in which
it averred
that:
12.
Exhibits
B & C
(i.e.
Chief
Williams'
letters of
24/9/83
and
20/10/83
supra) are
attempts
to
exonerate
2nd
Defendant
from his
liability
to the
plaintiff,
when the
1st
Defendant
is still
indebted
to the
plaintiff
by almost
After
hearing
the
parties,
the trial
Court, per
Onalaja,
J. on
17/6/85,
granted a
stay of
its
judgment
on the
following
terms:
(a)
That
the
defendants/applicants
pay the
arrears of
(b)
Thereafter
from 1st
day of
August,
1985 the
defendants/applicants
shall
liquidate
the
balance by
monthly
instalment
of
(c)
Any
default in
monthly
instalment
shall make
the
balance on
the
judgment
debt to be
due and
payable.
The
defendants
were
dissatisfied
with that
Ruling and
they
appealed
to the
Court of
Appeal on
the
following
grounds:
3.
GROUNDS
OF APPEAL:
1.
The
learned
trial
Judge
erred in
law in
granting a
stay of
execution
on the
conditions
stated in
his order
of 17/6/85
to wit:
(i)
That
the
defendants
should pay
before
31/7/85
the
arrears of
(ii)
That
the
defendants
pay
When
from the
affidavit
evidence
before the
Court is
conclusive
evidence
that the
2nd
Defendant
is no
longer a
judgment
debtor in
that he
has fully
discharged
the sum
guaranteed
by him
having
regard to
the
judgment
of the
Supreme
Court in Bronik
Motors
Limited
and anor.
V. Wema
Bank
Limited
S.C,110/82
and that
the
conditions
for stay
above
stated
should not
have been
applicable
to him.
2.
The
learned
trial
Judge
erred in
law in
ordering
the
Defendants
to pay the
sum of
It
will be
seen that
the main
point in
the appeal
was that
he had
fully
discharged
his
obligations
to the
plaintiffs
and was no
longer a
judgement-debtor Consequent
upon
filing the
appeal the
2nd
Defendant
filed
another
Motion
before the
trial
Court, in
which he
asked for
a stay of
the Ruling
of the
High Court
(dated
17/6/85)
pending
the appeal
lodged
against
that
ruling. In
the
accompanying
affidavit
the
applicant's
wife
deposed to
the fact
that the
2nd
Defendant
was under
State
detention
and that
she was
acting for
him. She
also swore
that:
5.
I
am
informed
by Counsel
for the
2nd
Defendant
that the 2nd
Defendant
is no
longer a
judgment-debtor
under the
said
judgment.
6.
Unless
stay is
granted,
the
Plaintiff
will levy
execution
on the
properties
of the 2nd
Defendant
and will
not be
able to
return
these
properties
to the 2nd
Defendant
if
judgment
should go
against
them on
appeal.
At
the
hearing of
this
application,
the
plaintiff/respondent
raised
objection
to the
Motion on
the ground
that the
grounds of
appeal
were
incompetent
since
those
grounds
were of
mixed law
and facts,
and no
leave of
the trial
Court had
been
sought and
obtained
as
required
by 5.221
of the
1979
Constitution.
Although
the
learned
trial
Judge
upheld the
objection
of the
Respondent's
Counsel he
nonetheless
went on to
grant the
stay on
some
conditions,
one of
which was
that the
2nd
Defendant
should pay
the
judgment
debt by
monthly
instalments
of
(a)
An
extension
of time
within
which to
file an
application
for leave
to appeal.
(b)
Leave
to appeal
against
the Ruling
of the
trial
Court
dated
17/6/85
(c)
Stay
of
execution
of the
said trial
Court's
order
pending
the
determination
of this
appeal.
In
the
supporting
affidavit,
the 2nd
Defendant
attached a
copy of
the
proposed
grounds of
appeal,
the trial
Court's
Ruling and
other
relevant
documents.
In
his oral
argument,
the
appellant's
Counsel
relied on
that
portion of
the
judgment
of Nnamani,
J.S.C. in Bronik
Motors
Ltd. &
anor's case
(supra)
which
declared
that the
limit of
the
liability
of the 2nd
Defendant
was
In
his reply,
Mr. Ladosu,
S.A.N. for
the
Respondent
made a
three-pronged
attack on
the
application.
He
submitted:
Firstly,
that the
present
application
was an
attempt to
re-open
the issues
which had
been
conclusively
settled by
the
Supreme
Court in Bronik
Motors
Ltd. &
anor's case
and the
Motion was
therefore
an abuse
of the
process of
the Court.
Secondly,
Counsel
argued
that the
order of
the
Supreme
Court for
instalmental
payment
was made jointly
against
the two
defendants,
and until
the whole
debt was
repaid,
there
could not
be a
discharge
of either
of the
defendants.
Thirdly,
Mr. Ladosu
submitted
that the
proposed
grounds of
appeal
were not
substantial.
It
will be
seen that
both
counsel
had
presented
their
arguments
on the
Motion as
if they
were
making
submissions,
on the
appeal
itself. In
this
respect,
one can
easily
understand
the
anxiety of
counsel.
In an
effort to
persuade
the court
to accept
his
arguments,
it is not
unusual
for a
counsel to
present
his
arguments
on a much
wider area
than the
subject-matter
of the
case calls
for.
But
a Judge
does not
have such
latitude.
He must
confine
himself
within
respectable
limits of
the scope
of the
enquiry
before the
Court. A
motion
should be
dealt with
as a
Motion,
whilst an
appeal
should be
treated in
all
respects
as an
appeal.
The Judge
should not
be seen to
have
prejudged
a legal
point
which is
yet to
come
before him
in related
proceedings
otherwise
he would
disqualify
himself
from
sitting on
the latter
aspect of
the case.
In
the
instant
Motion
therefore,
it would
be wrong
for the
Court to
make a
definite
decision
on the
merits of
the
proposed
grounds of
appeal
when the
appeal
itself was
not before
the Court.
In my
view, such
a course
of action
would
eventually
prejudice
the fair
hearing of
the
appeal, if
it is
heard by
the same
panel of
Justices.
The
lower
Court
seemed to
have
appreciated
the need
for this
cautious
approach
for in his
Ruling on
the
Motion,
Nnaemeka-Agu,
J.C.A. (as
he then
was), who
read the
lead
judgment
stated as
follows:
It
must be
noted
however
that upon
consideration
of these
two
grounds
what the
Court must
be
satisfied
about is
that they
are prima
facie good
grounds of
appeal;
the Court
is not yet
hearing
the appeal
and so
need not
consider
whether or
not they
must
succeed.
This
is well
said and
it accords
with the
provisions
of Order 3
rule 4(2)
of the
Court of
Appeal
Rules
1981. But
in another
portion of
his
judgment,
the
learned
Justice
said:
I
must
observe
that on a
proper
view of
the above
judgment
(i.e. Judgment
of the
trial
Court),
the
financial
liability
of the 2nd
Appellant
does not
appear to
be limited
to the
award
under
paragraph
(c) above
(i.e.
However,
the
learned
Justice
had more
to say on
that
aspect of
the case
when he
came to
construe
the
judgment
of Nnamani,
J S.C.
This is
what he
said:
I
have my
doubts as
to whether
my Lord,
Justice
Nnamani,
in the
above
judgment
decided to
limit the
liability
of the
second
appellant
to that
under the
guarantee
covered by
paragraphs
(c) and
(d) of the
above
judgment
of Onalaja,
J., in the
High
Court. I
do not
think his
Lordship
considered
it
necessary
to deal
with
paragraphs
(b)(i) and
(ii) of
the above
judgment.
The
Supreme
Court
dismissed
the appeal
without
qualification.
My
understanding
of the
judgment
is that
apart from
what it
said about
the
liability
of the 2nd
appellant
under the
guarantee
every
other item
in the
judgment
of this
Court
stands.
For
example
the judgment
in
paragraph
(b)(i) was
clearly
against
both
defendants.
Eventually,
the
learned
Justice
went on to
consider
the
proposed
grounds of
appeal and
held:
1.
That
payment of
the sum of
2.
That
since the
Supreme
Court
order for
instalmental
payment
was made
jointly
against
the two
defendants,
he did
"not
see how a
question
of
separate
discharge
of the 2nd
appellant's
liability
has
arisen."
3.
That
because of
his
decision
on items 1
and 2
above, he
was of the
opinion
that the
proposed
grounds of
appeal
were not
substantial.
He
therefore
dismissed
the three
prayers of
the
applicant.
The other
two
justices (Ademola
and Kutigi,
JJ.C.A.)
concurred
with the
order
made. The
2nd
Defendant
was
dissatisfied
and he has
appealed
to this
Court on
three
grounds:
(1)
The
Court of
Appeal
erred in
law in
misconstruing
the
judgment
of the
Supreme
Court in
regard to
the
liability
of the
appellant
herein as
guarantor.
Particulars
It
cannot
reasonably
be doubted
that the
judgment
of the
Supreme
Court in
so far as
this
Appellant
was
concerned
was
limited to
(2)
The
Court of
Appeal
erred in
law in
failing to
observe
that where
two
parties
are
jointly
liable for
the
payment of
a debt it
is
permissible
for either
party to
pay such
debt and
further
that where
the
liability
of the
party
making
such
payment is
limited to
(3)
The
Court of
Appeal
erred in
law in
holding
that the
evidence
before it
did not
disclose
that all
the
various
payments
made
pursuant
to the
order of
the
Supreme
Court and
thereafter
were made
by this
Appellant
alone.
(4)
For
the
reasons
stated in
grounds 1
to 3
above, the
Court of
Appeal
ought to
have made
the orders
sought for
by the
Appellant
in his
application
before the
Court of
Appeal."
In
his brief,
Prof.
Kasunmu,
S.A.N.,
for the
Appellant
has
formulated
four
issues for
determination
and these
are:
1.
Was
there any
basis for
the doubt
expressed
by the
Court of
Appeal and
also for
re-opening
the issue
of the
limit of
the
liability
of the
present
Appellant
as
contained
in the
judgment
of the
Supreme
Court as
read by
Nnamani,
J.S.C. in
Suit No.S.C.110/82.
2.
Was
the Court
of Appeal
right in
holding
that the
evidence
on record
did not
disclose
that all
payments
made
pursuant
to the
order of
the
Supreme
Court was
made by
the
present
Appellant?
Is
it also
proper to
allow the
Respondent
to raise
the issue
of who actually
made these
payments
at the
Court of
Appeal
when the
affidavit
evidence
of the
Appellant
on this
was
uncontradicted
and the
affidavit
evidence
of the
Respondent
impliedly
admit the
fact that
these
payments
were made
by the
present
Appellant
for the
case made
by the
Respondent
at the
hearing
before the
High Court
was that
notwithstanding
those
payments
the
appellant
was still
not
discharged
from his
obligations
under the
guarantee
having
regard to
Clause II
of the
guarantee
document.
3.
Could
payment
made by A
to C in
discharge
of debt
jointly
owed by
himself
and B to C
not lead
to a
separate
discharge
of A from
liability
if there
is a limit
to the
liability
of A in
respect of
the total
indebtedness
of B to C?
4.
Must
it be
expressly
stated at
the time
of payment
by A to C
that the
payments
being made
were by
him and
will
failure so
to do be a
bar to A
being
discharged
even when
there is
evidence
to show
that the
payments
were in
fact made
by A.
Mr.
Ladosu has
not set
out any
questions
for
determination
and I take
this to
mean that
he agrees
with those
formulated
by the
Appellant's
Counsel.
I
have gone
over those
issues and
I find
that they
all
revolve
round the
question
as to
whether or
not the 2nd
Defendant's
liability
on the
guarantee
was
limited to
half a
million
Naira. In
my view,
that is
the
principal
question
which
would have
to be
determined
on the
proposed
grounds of
appeal
when that
appeal
comes up
for
hearing.
As
stated
before. I
do not
think that
this court
should, as
at now, be
called
upon to
express
any
opinion on
that
question.
Unfortunately,
the lower
Court
allowed
itself to
be drawn
into the
vortex of
the
conflict
and was
persuaded
to decide
at the
hearing of
a Motion
for leave
to appeal,
points of
law which
would
necessarily
need to be
decided at
the
hearing of
the appeal
itself.
This is
not right.
See Igboho
Local
Government
V. Boundary
Settlement
Commissioner
(1988)1
NWLR
(Pt.69)189.
In
my view,
the real
question
which this
Court has
to decide
is whether
the
proposed
grounds of
appeal
were good
and
substantial
grounds.
In short,
are they
grounds
which
raise
serious
arguable
points of
law or are
they
frivolous?
The
answer to
that
question
is not
difficult
to
resolve. I
have taken
pains to
set out
all the
various
documents,
letters,
affidavits,
judgments
etc. which
form the
background
of the
proposed
appeal and
which were
made
available
to the
lower
court. It
was on
those
voluminous
papers
that the
appellant
proposes
to call on
the lower
Court to
construe
the
judgment
of the
Supreme
Court. In
order to
come to a
decision,
it would
be
necessary
for the
appellate
Court to
peruse
carefully
the
Supreme
Court
judgment,
as well as
the
judgments
of the
High Court
and the
Court of
Appeal. It
would also
be
necessary
to examine
closely
the
clauses of
the
guarantee
Exhibit 2,
and to
compare
and
contrast
those
clauses
with the
Courts'
order.
Now
I ask: can
it be said
that a
ground of
appeal
which
calls for
such legal
exercise
is
frivolous?
I think
not. I am
of the
clear view
that the
proposed
grounds of
appeal
raise
serious
points of
law for
determination;
and the
prayers
sought
should
have been
granted.
Indeed,
the
learned
Justice in
his lead
judgment,
stated
that he
had some
"doubts"
as to
whether
Nnamanj, J.S.C.
intended
to limit
the
liability
of the
appellant
under
clauses
(c) and
(d) or
under
clause (b)
of the
guarantee;
in my
view, that
lingering
doubt
should
have been
taken as a
clear
indication
that the
appellant
had
arguable
grounds
which
raise
substantial
points of
law.
For
the
several
reasons
given
above, I
would
allow the
appeal and
set aside
the Ruling
of the
lower
Court. In
its place,
it is
ordered
that the
appellant
shall be
granted;
(1)
30
days
extension
from today
within
which to
file an
application
for leave
to appeal
(2)
Leave
to appeal
and
(3)
Stay
of
execution
of the
trial
Court's
order
pending
the
determination
of the
appeal.
In
the
result,
the appeal
succeeds
and it is
allowed.
The Ruling
of the
Court of
Appeal is
hereby set
aside and
it is
ordered
that the
appellant's
Motion be
granted as
prayed.
In
view of my
observation
that the
lower
Court
appeared
to have
decided
the main
issue
which
would be
raised in
the
proposed
appeal,
and in
order that
the
parties
may be
given a
fair
hearing,
it is
further
ordered
that the
proposed
appeal
shall be
heard by a
different
panel
other than
that which
sat on the
Motion.
There
shall be
costs in
favour of
the
Appellants
assessed
at
Judgement
delivered
by Obaseki
J.S.C.
I
have had
the
advantage
of reading
in advance
in draft
the
judgment
just
delivered
by my
learned
brother,
Craig,
J.S.C. and
I agree
with it.
The
opinions
on all the
issues for
determination
in this
appeal
expressed
therein
are in
accordance
with mine
and I
hereby
adopt them
as my own.
I will,
for those
reasons,
also allow
the
appeal.
For
purposes
of
emphasis,
however, I
add the
following
comments.
The
facts of
the case
relevant
to this
appeal
have been
set out in
admirable
detail by
my learned
brother,
Craig,
J.S.C. It
is
therefore
unnecessary
to repeat
them here.
This
appeal is
against
the
decision
of the
Court of
Appeal
given in
an
application
by notice
of motion
for an
order
(a)
granting
an
extension
of time
within
which to
appeal;
(b)
granting
leave to
appeal
against
the Ruling
of the
trial
Court
dated
17/6/85;
(c)
granting
a stay of
execution
of the
said trial
Court's
order
pending
the
determination
of this
appeal.
The
application
was
supported
by
affidavit
evidence
in which
the
proposed
grounds of
appeal,
the trial
court's
Ruling and
other
relevant
documents
were
exhibited.
The
application
was heard
by the
Court of
Appeal
(Coram:
Nnaemeka-Agu,
J.C.A. (as
he then
was),
Ademola,
and Kutigi,
JJ.C.A.)
and after
due
consideration
of the
submissions
of counsel
and the
affidavit
evidence,
the
learned
Justices
unanimously
dismissed
all the
three
prayers.
The
application
for
extension
was
brought
under
Order 3
rule 4(1)
and (2)
which
read:
(I)
The
court may
enlarge
the time
provided
by these
Rules for
the doing
of any
thing to
which
these
Rules
apply;
(2)
Every
application
for an enlargement
of time in
which to
appeal shall
be
supported
by an
affidavit
setting
forth good
and
substantial
reasons
for
failure to
appeal
within the
prescribed
period, and
by grounds
of appeal
which
prima
facie show
good cause
why the
appeal should
be heard.
When time
is so
enlarged,
a copy of
the order
granting
such
enlargement
shall be
annexed to
the notice
of appeal.
With
regard to
application
for leave
to appeal,
Order 3
Rules
3(1), (2),
(3), (4),
(5) of the
Court of
Appeal
Rules,
1981
govern and
contain
the
relevant
provisions.
The
sub-rules
(1), (2),
(3), (4)
and (5) of
Rule 3
read:
(1)
Every
application
to the
court
shall be
by notice
of motion
supported
by
affidavit.
It shall
state the
rule under
which it
is brought
and the
ground for
the relief
sought.
(2)
An
application
to the
court for
leave to
appeal
(other
than an
application
made after
the
expiration
of the time
for
appealing)
shall be
by notice
of motion
which
shall be
served on
the party
or parties
affected;
(3)
Where
an
application
has been
refused by
the court
below, an
application
for a
similar
purpose
may be
made to
the court
within
fifteen
days after
the date
of
refusal;
(4)
Wherever
under
these
Rules an
application
may be
made to
the court
below or
to the
Court, it
shall not
be made in
the first
instance
to the
Court
except
where
there are
special
circumstances
which make
it
impossible
or
impracticable
to apply
to the
court
below;
(5)
If
leave to
appeal is
granted by
the court
or by the
court
below, the
appellant
shall file
a notice
of appeal.
It
in the
discretion
of the
Court of
Appeal to
grant or
refuse any
such application
but the
discretion
has to be
exercised
judicially
having
regard to
he
requirements
set out by
the Rules.
The
grounds of
appeal
required
to be
exhibited
are only
to show
good cause
why the
appeal
should be
heard. The
Rule does
not
require
the
grounds to
show good
cause why
the appeal
should be
allowed. Although
in both
cases, the
grounds of
appeal
should be
substantial,
the
certainty
required
in the
latter
case does
not
necessarily
need
to be
present in
the former
case. A
ground
showing
good cause
why an
appeal
should be
heard is a
ground
which
raises
substantial
issues of
fact or
law for
the
consideration
of the
court. It
is a
ground
which
cannot be
dismissed
with a
wave of
the hand
or totally
lacking in
substance.
It is a
ground
which
evokes a
serious
debate as
to the
correctness
of the
decision
of the
court
below. It
is a
ground
which
taxes the
intellect
and
reasoning faculties
of the
appeal
judges. It
is a
ground
which is
not
frivolous.
See Ukpe
Ibodo V.
Enarofia (1980)
5-7 S.C.
42 at 53.
See also Holman
Brothers
(Nigeria)
Ltd. V.
Kigo
(Nigeria)
and anor. (1980)
8-11 S.C.
43 at
62-63.
In
Holman
Bros.
(Nigeria)
Ltd. V.
Kigo
(Nigeria)
and anor. (supra)
Sir Udo
Udoma, J.S.C.
said
(in his
lead
judgment
at pages
62 and 63
while
considering
the
governing
principles
when
considering
application
for
leave
to
appeal):
In
principle
when
dealing
with an
application
for leave
to appeal,
an
applicant
is not
required
to show
that the
appeal
would
succeed if
leave is
granted.
It is
sufficient
to show
that there
is an
arguable
appeal.
Or, to put
it in
another
way, it is
enough to
show a
prima
facie case
that the
court from
whose
decision
leave to
appeal is
sought
committed
an error
of law or
has failed
to
exercise
its
discretion
judicially;
or has
based the
exercise
of such
discretion
on wrong
principles.
Having
regard to
the
grounds of
appeal
exhibited
and the
facts
disclosed
in the
affidavit
evidence,
I am of
the firm
view that
the Court
of Appeal
was in
error to
refuse the
application
and
prevent a
hearing of
the
appeal.
On
such a
motion,
the court
is not
required
to strain
itself to
decide the
appeal.
The Court
of Appeal
has in the
instant
matter
strained
itself to
decide the
appeal
that was
never
before it.
The strain
is the
most
eloquent
evidence
that the
grounds
raised
serious
questions
of law and
facts and
that
the
appeal
should be
heard.
I
too hereby
allow the
appeal
with
Judgement
delivered
by Uwais
J.S.C.
I
have had
the
opportunity
of reading
in draft
the
judgment
read by my
learned
brother
Craig,
J.S.C. I
entirely
agree that
the appeal
should be
allowed. I
adopt the
judgment
as mine
and do not
wish to
add
anything.
Judgement
delivered
by Oputa,
J.S.C
I
have
had a
preview in
draft of
the lead
judgment
just
delivered
by my
learned
brother
Craig,
J.S.C. and
I am in
entire
agreement
with him
that this
appeal
should be
allowed.
The
bone of
contention
is the
extent of
the
liability
of the 2nd
Defendant.
That also
is the
substance
of the
proposed
appeal for
which a
motion for
I
extension
of time
within
which to
appeal,
2.
leave
to appeal
and
3
stay
of
execution
pending
the appeal
was
filed and
argued in
the court
below. The
Court of
Appeal
refused
the 2nd
Defendant
an
extension
of time
within
which to
appeal and
leave to
appeal.
The
present
appeal to
this Court
is not on
the merits
of the
case but
simply
against
the
refusal of
the court
below to
grant the
leave to
appeal
sought by
the
present
appellant.
A
right to
appeal is
a very
important
constitutional
right and
its
exercise
ought not
to be
unduly
fettered.
In
this case,
it will be
of utmost
importance
to the 2nd
Defendant
to know
the limits
of his
liability.
When the
case came
before the
Supreme
Court, a
full court
for that
matter,
the point
taken was
principally
the
constitutional
issue of
jurisdiction.
Nnamani,
J.S.C. who
read the
lead
judgment
however
also
touched on
the
liability
of the 2nd
Defendant.
The
contention
of the
present
Appellant
in this
Court is
that the
Court of
Appeal in
its Ruling
on the
motion for
extension
of time
within
which to
appeal and
leave to
appeal
appeared
to have
extended
the
liability
of the 2nd
Defendant
more than
what the
Supreme
Court per
Nnamam,
J.S.C.
found.
There is
therefore
an
arguable
issue
namely the
proper
interpretation
to be put
on the
Supreme
Court
Judgment
as well as
the proper
construction
of the
Guarantee
signed by
the 2nd
Defendant.
To resolve
these
issues it
is just
right and
fair to
allow the
Appellant
to
exercise
his right
of appeal
to this
Court. His
delay in
appealing
to this
Court has
been
successfully
explained.
For
the above
reason and
for the
fuller
reasons in
the lead
judgment
which I
now adopt
as mine, I
too will
allow the
appeal.
The order
of the
court
below
refusing
him
extension
of time
within
which to
appeal and
leave to
appeal
will in
the
interest
of justice
have to be
reversed.
I
hereby
reverse
it. I
abide by
all the
consequential
Orders in
the lead
judgment.
Judgement
delivered
by Wali,,
J.S.C
I
have had
the
privilege
of reading
in advance
a copy of
the lead
judgment
of my
learned
brother,
Craig,
J.S.C. I
agree with
his
reasoning
and his
conclusions
on the
judgment.
As
rightly
pointed
out by my
learned
brother
Craig,
].S.C.,
the
substantive
issue that
has arisen
in this
appeal is
the
refusal by
the Court
of Appeal
to grant
leave to
appeal,
and order
of a stay
of
execution
against
the Ruling
of Onalaja
J., of
17th June,
1985 in
suit No. LD/404/80,
but
not the
liability
of the 2nd
appellant.
In
considering
whether or
not to
grant an
application
brought
pursuant
to Order
3 Rule 4
of the
Court of
Appeal
Rules,
1981 and
Section
221(1) of
the 1979
Constitution,
the
Court must
be
satisfied
that the
proposed
grounds of
appeal on
which the
applicant
is relying
to
prosecute
the appeal
show good
cause why
the appeal
should be
heard. In
addition
to this,
good and
substantial
reasons
for
failure to
appeal
within
time
allowed
must also
be shown
See Ukpe
Ibodo and
ors. V.
Iguasi
Enarofia (1980)
5-7 S.C.
42.
The
proposed
grounds of
appeal
annexed to
the
application
for leave
to appeal
are
1.
The
learned
trial
Judge
erred in
law in
granting a
stay of
execution
on the
conditions
stated in
his order
of 17/6/85
to wit:
(i)
That
the
Defendants
should pay
before
31/7/85
the
arrears of
(ii)
That
the
Defendants
pay
When
from the
affidavit
evidence
before the
Court
there is
conclusive
evidence
that the
2nd
Defendant
is no
longer a
judgment
debtor in
that he
has fully
discharged
the sum
guaranteed
by him
having
regard to
the
judgment
of the
Supreme
Court in Bronik
Motors
Limited
and anor. V.
Wema
Bank
Limited S.C.
110/82 and
that the
conditions
for Stay
above
stated
should not
have been
applicable
to him.
2.
The
learned
trial
Judge
erred in
law in
ordering
the
Defendants
to pay the
sum of
The
issue
raised in
the
proposed
grounds
supra is
the
continued
liability
of the 2nd
appellant
vis-a-vis
the whole
judgment.
It is both
substantial
and
fundamental
particularly
when it
will lead
to the
construction
of the
Court's
judgment
in the
principal
case of Bronik
Motors
Limited
& anor.
V. Wema
Bank Ltd. (1983)
6 S.C. 158.
The
affidavits
sworn to
also have
given good
and
substantial
reasons
for
failure to
appeal
within the
time
prescribed.
It
is for
these and
other more
detailed
reasons
contained
in the
lead
judgment
that I too
will allow
the appeal
and grant
the orders
as prayed
and as set
out in the
lead
judgment.
I award
Counsel
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