P. O. P. Martins V. Nicannar Food Co. Ltd. & Anor (1988)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

On 13th January, 1988, the appeal to this Court in this Suit was argued. After hearing learned counsel, and having read all the papers, I allowed the appeal and granted a conditional stay of execution of the judgment of the Federal High Court dated 4th March, 1985 pending the determination of the appeal in the Court of Appeal. I indicated that I would give my reasons for this judgment today. I now give my reasons.

In Suit No. FHC/L/27/81, the Plaintiff/Respondent sued the 1st defendant/appellant/applicant and 4 others claiming the following reliefs:-

“(1) An order for the refund of the sum of N700,000.00 (Seven hundred thousand Naira) paid by the plaintiff to the 1st defendant by two separate cheques No. 0028199 of the 3rd October, 1977 and No. 0018218 of the 24th October, 1977 being the full purchase price of 223,000 bags of cement sold to the plaintiff by the 1st defendant. The cement was said to have been shipped by the 3rd Defendant in the “M.V. Eurosailor” owned by the 4th Defendant.

(2) A further order for the payment of interest on the said sum of N700,000 calculated on the current commercial rate of interest from the 24th day of October, 1977 to the date of the order of this Honourable Court.

(3) A declaration that the whole transaction between the Plaintiff and the 1st Defendant in relation to the supply of the said cement is a calculated fraud as between all the Defendants as a clever means of transferring the purchase money illegally out of Nigeria.

(4) A further declaration against the 2nd Defendant that in the transfer of the said money abroad they have ignored Central Bank of Nigeria regulations directions and guidelines and their action has greatly contributed to the illegal transfer of the said money to Western Germany.

(5) An order for the arrest and seizure of the vessel “M.V. Eurosailor” anytime it appears on Nigeria territorial waters.

In the course of the trial the 1st Plaintiff/Respondent felt obliged to withdraw her claims against the 3rd, 4th and 5th defendants “as it became clear that these defendants were fictitious persons” as per the 1st Respondent’s counsel’s brief of argument. After hearing evidence etc., Anyaegbunam, C.J. gave judgment in favour of the Plaintiff/Respondent against the 1st defendant/appellant. The case against the 2nd defendant, 2nd defendant/respondent herein, was dismissed.

The 1st Defendant/Appellant appealed to the Court of Appeal against this judgment on 5th March, 1986.An application to the Federal High Court for stay of execution of the judgment was refused. A similar application to the Court of Appeal also failed. In a ruling in which Uthman Mohammed and Kutigi, JJCA concurred, Ademola JCA. ruled quite summarily-

“reading through the affidavit of applicant, no special circumstances are disclosed in the affidavit as to why a stay should be granted. Application dismissed N50 costs each to the Respondents”

With leave of this Court, the appellant filed 2 grounds of appeal which I do not propose to set down. Suffice it to say that they complained of error of law in that the learned Justices of the Court of Appeal refused to grant stay of execution when the issue of jurisdiction of the trial Court had been raised on appeal and also when, in appellant’s view, recondite points of law triable on appeal are contained in the grounds of appeal to the Court of Appeal.

The appellant’s counsel identified 4 issues for determination in his brief of argument and I think I ought to set them down. These were as follows:-

“1. Whether a party who has shown that there is a substantial issue of law to be decided on appeal is entitled to a stay of Execution following the decision of this Honourable Court in Balogun v. Balogun (1969) 1 All NLR 349-351.