Funduk Engineering Limited V. James Mc Arthur & Ors (1995)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C. 

This is an appeal against the ruling or the Court of Appeal sitting in Ibadan on 28th of November, 1988 granting to the 1st defendant/appellant/respondent a stay or execution or the judgment of Ibidapo -Obe, J. of the High Court of Oyo State holden at Ibadan and delivered on 14th July, 1988, pending the determination of the appeal lodged at the Court of Appeal (hereinafter referred to as the Court below). The appellant which was the, respondent in the court below, was the plaintiff in the trial High Court, where it filed an action against all five respondents then defendants upon a writ of summons for:

“(a) A declaration that the plaintiffs are the rightful owners of the machinery, equipment, vehicles, drilling tools and materials listed in the annexure to the further Amended Statement of Claim which are lying in the premises of Trans-Atlantic Services Ltd, Old Lagos Road, Ibadan and/or otherwise in the wrongful possession of the 1st, 2nd and 6th defendants.

(b) The sum of Five Million, two hundred and forty-one thousand, six hundred naira (N5,241,600.00) only being Special and General damages for trespass, illegal seizure, detinue, and/or conversion of the plaintiff’s machinery, equipment, vehicles, drilling tools and materials listed in the annexure to the Further Amended Statement of Claim.

(i) Special damages of Four Million, seven hundred and forty-one thousand, six hundred naira (N4,741,600.00) only being an aggregate of:

(a) The sum of N2,741, 600.00 being the current market value of the plaintiff’s equipment, vehicles, machinery, drilling tools and materials listed; and

(b) the sum of N2 million for loss of use and loss of business.

(ii) General Damages of N500,000.00 ”

The course charted by this casein its journey to this court on appeal may be briefly stated as follows:-

The appellant’s claim as hereinbefore set out in the High Court, was for a declaration that it was the owner of certain drilling equipment, machinery vehicles and sundry tools wrongfully seized by the 3rd, 4th and 5th respondents and converted to the use of the 1st respondent – James McArthur. The appellant was in addition claiming for a total aggregate sum of N5,241 ,600.00 being special and general damages for trespass, illegal seizure, detinue and/or conversion of the said goods. Pleadings having been ordered, filed and exchanged, the case went to trial.

During the course of trial, the appellant called witnesses and tendered documents in support thereof. The 3rd to 5th respondents who were represented by counsel, called two witnesses in support of their defence. The 1st respondent’s counsel then orally informed the trial court of his client’s desire to give evidence and the court granted two adjournments for the purpose. It is stated that 1st respondent was away in England. However, on the third adjourned date, his counsel again orally applied for a further adjournment on the ground that his client who wished to testify, was indisposed in London after a brief admission in a hospital in Ibadan. No documentary evidence was tendered to back up the assertion. The Court in a ruling dated the 6th of July, 1988, refused this application and consequently closed the case for him and fixed the matter for address on 13th July, 1988. When the date, 13th July, 1988 arrived for the address by learned counsel for him, he applied to court for leave to appeal against the ruling of 6th July, 1988 and for a stay of proceedings. It was on this dated fixed for addresses that learned counsel for 1st respondent produced a Medical certificate and other documents to explain the absence of his client. Both applications were peremptorily refused as the document were deemed to be irrelevant at that stage.

The learned trial Judge (lbidapo-Obe, J.) delivered judgment on the 14th of July 1988 in favour of the appellant for the sum of N3,721,000.00 plus costs assessed at N1,000.00. The respondents subsequently appealed against the judgment to the court below and then applied for a stay of execution pending the final determination of the appeal. However, since the application was brought during the court’s vacation and was therefore heard by the vacation Judge (Akin Apara, J., as he then was), i.e. a Judge other than the trial Judge. He refused it. Hence, a similar application was made to the court below.

The court below having granted the application in a considered ruling, as herein before suited, the appellant has now appealed to this Court premised on five grounds.

The appellant and 3rd to 5th respondents subsequently filed and exchanged briefs of argument in accordance with the rules of court. The appellant submitted three issues as arising for determination. They are:-