Nigerian Spannish Eng. Co. Ltd. & Anor. V. Olympic Steel Mill Hong Kong Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

By an order ex parte made on 3-4-96 by Belgore C.J. of the Federal High Court at the Lagos Division of the court, a case of a petition for the winding up of the 1st applicant company instituted by the respondent together with a motion on notice were transferred to the Kaduna Division of the Federal High Court for hearing and determination. However, pending the hearing and determination of the motion on notice for the same reliefs at Kaduna, the Hon. Chief Judge also granted the following reliefs ex parte

“1. That Mr. M.K. Lai and Mr. Masando Susuki are to operate the account of the 1st respondent company and they are to do so under the directive this court may time to time give.

2. That the two persons named are to pay now and continue to pay the salaries and emoluments of the workers of the 1st respondent’s company until the court otherwise orders.
3. That the two orders are to be in force until the motion on notice is heard and determined.”

On receiving the case on transfer to Kaduna in his court Okeke J. re-affirmed the above ex parte orders of Belgore, CJ., of 3-4-96 on 15-4-96 and adjourned the motion on Notice for the same reliefs to 23-4-96 for hearing.

For reasons which are not apparent from the affidavits and counter affidavit in the present application before this court, the motion on notice was not heard on 23-4-96 until after nearly two years when it came up for conclusion of hearing before the court on 25-2-98 Yunus Uztaz Usman for the respondents concluded his address opposing the motion on notice by the following remarks.

“The best option is to order accelerated hearing of the petition instead of granting the motion on notice.”

Mr. Adolor learned counsel to the applicant in the motion on notice agreed with the remarks of the respondents counsel and also urged the court to grant accelerated hearing of the petition. Thus with the consent of the parties and upon their applications, the learned trial Judge granted the request of the parties for accelerated hearing of the petition itself rather than waste more time on the ruling on the motion on notice in the following terms:-

“In view of the recent development in which both counsel have agreed to accelerated hearing of the petition instead of ruling the motion on notice, hearing of the petition is now adjourned to 29th and 30th April, 1998”.

While the petition was still unheard, the appellants/applicants applied at the trial court for the ex parte orders of 3-4-96 and 15-4-96 to be set aside.

That motion was heard on 15-7-99 and in a reserved ruling; the trial court dismissed the application on 28-7-99 and fixed the petition itself for hearing on 30-9-99, 11-10-99 and 12-10-99 respectively. However, by a motion on notice dated 30-7-99, the appellant/applicants filed an application for leave to appeal against the ruling of 28-7-99, stay of further proceedings in the case and the suspension of the operation of the two ex- parte orders of 3-4-96 and 15-4-96 pending the determination of their appeal to this court. In its ruling delivered on 11-8-99, the trial court granted the appellants/applicants first relief for leave to appeal against the ruling of 28-7-99 while ruling in respect of the second and third reliefs for stay of proceedings and suspension of ex parte orders were reserved till 27-8-99.

However, before the trial court could deliver the ruling on the two reliefs on 27-8-99, the respondent in the present application had filed an application at the trial court to arrest the ruling and this application together with other motions filed by the appellants/applicants for the dismissal of the petition itself and the motion were further adjourned to 8-2-2000 for hearing at the trial court in its ruling of 29-11-99.

Meanwhile, by a motion dated 26-10-99 and filed in this court on 27-10-99, the appellants/applicants without waiting for the outcome of the ruling on their application for the suspension of the two ex parte orders of the trial court of 3-4-96 and 15-4-96 pending the determination of their appeal against the ruling of the trial court of 28-7-99 refusing to set aside the same two ex parte orders, again filed another application for the same reliefs before this court, pending the determination of their appeal.

Moving the application Mr. Olatunji for the applicants relying on the affidavit and two further affidavits in support of the application submitted that special circumstances have been disclosed in the facts to justify this court granting the applicants reliefs in spite of the fact that the ruling on similar application is still being awaited at the trial court. Learned counsel maintained that since the trial court had refused to deliver its ruling on the appellants/applicants application for the same reliefs, they were entitled to seek the same reliefs before this court having regard to the decisions in the case of Irukwu and Ors. v. Trinity Mills Insurance Brokers (1997) 6 NWLR (Pt. 507) 100; Global Medical Care U.K. Ltd v. Medicair (West Africa) Ltd. (1998) 2 NWLR (Pt. 536) 86 and Attamah and ors v. Anglican Bishop of Niger and ors (1999) 9 and 10 SCNJ 23 at 28; (1999) 13 NWLR (Pt.633) p. 6. On the operation of Ex parte orders, the learned counsel to the appellants/applicants cited Order 8 Rule 12 of the Federal High Court (Civil Procedure) Rules 1999 and urged this court to grant the application.

On the counter affidavit, learned counsel to the applicants referred to section 97(2) (c) of the Evidence Act and the case of Okeke v. Attomey General Anambra State (1992) 1 NWLR (Pt. 215) 60 at 80 and urged this court to strike out the paragraphs of the counter affidavit exhibiting uncertified public documents comprising court processes filed at the lower court.