African Reinsurance Corporation V. Jdp Construction Nigeria Limited (2003)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

This ruling arises from an application made by the defendant/appellant dated 27th November, 2002 and filed on 29th November, 2002. In the application the defendant/appellant is praying this Court for –

“an Order setting aside the judgment of Rhodes-Vivour, J. of the Lagos High Court delivered on the 28th of March, 2002.”

Upon the ground that:-

“notwithstanding the fact that the learned trial Judge in Suit No. LD/2342/2000 was made aware of the fact that there was pending before the Supreme Court an application in which prayer sought by the applicant was for stay of proceedings of the said suit pending an appeal to the Supreme Court, the learned trial Judge proceeded nevertheless to hear and determine the said suit and thereafter entered judgment against the appellant on the 28th of March, 2002.”

In the affidavit in support of the application one Olasumbo Adejumo a legal practitioner deposed, inter alia, as follows:-

“4. That on 8th march, 2002 I appeared with Rasaq Ayinde Sanni Esq., my Principal on behalf of the applicant herein suit No. LD/2342/2002 at the High Court of Lagos State.

5. That Rasaq Ayinde Sanni Esq., my Principal informed Honourable Justice Bode Rhodes-Vivour, the learned trial Judge of a pending appeal at the Court of Appeal and a pending appeal for stay of proceedings at the Supreme Court.
6. That Honourable Justice Bode Rhodes-Vivour, the learned trial Judge still proceeded with the trial of the cases and fixed a date for judgment.
7. When it became apparent to our chambers that the learned trial Judge might want to proceed with the matter notwithstanding the application before the Court of Appeal and Supreme Court, our chambers wrote a letter to the Supreme Court Registry to confirm the existence of an appeal pending on the above matter.
8. That consequent upon our said letter the Supreme Court Registry dispatched its letter Ref. SC/66/2002/266 to the Honourable Judge which was received by the court on 27-3-02 but the learned trial Judge went ahead to deliver judgment even though he acknowledged receipt of the letter. Hereby attached is a copy of the said letter marked exhibit 001.”

A short history of this case leading to the application runs as follows: In suit No. LD/2342/2000 the plaintiff who is now respondent issued a writ of summons against the defendant on the 29th of August, 2000 claiming as per paragraph 18 of her statement of claim:-

“Whereof the plaintiff claims the sum of US Dollars 2,755,618.85 made up as follows:-

US Dollars

(i) Variations 1,747,493.36

(ii) For loss and expenses arising from Extension of Time

On Head Office 539,530.02

On preliminaries 228,000.00