Bank Of Baroda & Anor. V. Mercantile Bank (Nig.) Ltd. (1987)

LawGlobal-Hub Lead Judgment Report

ESO, J.S.C. 

On 31st March, 1987, when this matter came before this Court, we took arguments from learned counsel and allowed the appeal. I reserved my reasons for the action we took. I now give my reasons for allowing the appeal.

Let me state the facts. only as they affect this appeal. The claim was for –

“(1) the sum of $1,254,977 being the value of shipping documents relating to consignments of milk and white crystal sugar released to the Defendants by the Plaintiffs’ agents on the written undertaking of the said Defendants to pay the sum aforesaid thirty days from the 2nd of August, 1978.

(2) Interest on the said sum of U.S. $1.254.977 at the rate of interest allowable by the Central Bank during the relevant period.”

What happened before judgment was delivered by the trial Court is irrelevant to this appeal. Judgment was however delivered in favour of the Plaintiffs on the two items of their claim. That was on 13th December 1982.

Nothing happened until 26th May 1983, that is, five months later. Time within which to appeal had, by this time, lapsed. On that day, the defendants filed an application to the Court of Appeal seeking enlargement of time within which to appeal from the judgment of the High Court. The Court of Appeal granted this application on 27th July, 1983.The following Order was made –

“Order as prayed. Time within which to appeal extended by 15 days from today. It is further ordered that a stay of execution of the judgment debt and Costs be granted on the conditions agreed upon by both parties……..”

(Italics mine)

What were these agreed conditions Chief Williams S.A.N., Counsel for the Respondents stated them in his own submission in the Court of Appeal. He said –

“I have agreed with Counsel for applicants (that is the defendants) that a stay be granted (on condition that the total amount of judgment debt & costs are paid into Court within one month from today. The defendants are to be at liberty to withdraw the amount on providing the guarantee of a licensed bank that it will refund the whole or any portion of the sum deposited, if this Court so directs.)”

(again italics mine)

These were the conditions to which Mr. Okwusogu, learned Counsel for the Applicants. in the Court of Appeal that is, the defendants. agreed.

Now, what followed this is of the utmost importance to this appeal. The Appellants did nothing for 1 year and 8 months after they had obtained this Order for extension of time and for stay on agreed terms. They waited till 2nd April 1985, before they brought another application for a further enlargement of time. I think I should state herein what transpired at this second application –