In the Aba Judicial Division of Imo State, the appellant 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 appellate, 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 has a benefit from the arrangement it is the defendant. Justice demands that the plaintiff gets back his money and also 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, stating in his affidavit that he had no means of paying the judgment debt and prosecuting the appeal at the same time, and that his haulage business had almost grounded to a halt, because of lack of patronage, owing to the economic depression.

Appellant filed a counter affidavit in which he stated that the appellant had more than enough means of paying the judgment debt. He also included a list of the respondent’s assets, to prove that the respondent was unable to deny ownership of the assets.

The Judge ruled granting the stay of execution, stating that even if the respondent lost the appeal, the appellant could levy execution on the assets listed in the counter affidavit and recover his judgment debt.

Plaintiff appealed to the Supreme Court.