Comex Limited Vs Nigeria Arab Bank Limited (1997)

LAWGLOBAL HUB Lead Judgment Report

OGUNDARE, J.S.C. 

This appeal is against an interlocutory decision of the Court of Appeal granting to the respondent an unconditional stay of execution of the judgment of the High Court of Lagos State delivered on 16th May, 1995.

The plaintiff who is the appellant before us had sued the defendant (now the respondent) claiming various declarations, an order directing the return of the title deed, N12 million damages and interest on the damages claimed. Pleadings were ordered, filed and exchanged. At the trial before Akande, J. the plaintiff led evidence and closed its case. In the course of the evidence of the 1st witness for the defence, defence counsel sought to tender a document. On the objection of plaintiff’s counsel, the document was rejected by the trial court.

At that stage defence counsel intimated that he was appealing against the court’s ruling rejecting the document in evidence and applied that further proceedings be stayed. The trial court rejected the application for stay of further proceedings and the defence counsel refused to continue to lead DW1 in evidence. The trial Court thereupon closed the defendant’s case and called on the plaintiff’s counsel to address it. After the address of plaintiff’s counsel the case was adjourned for judgment. In the judgment delivered on the 16th of May 1995, the learned trial Judge adjudged as follows:

“I hereby hold that the plaintiff, by the unchallenged testimony of PW1 in proof of the facts in the further amended Statement of Claim has established the claims of the plaintiff as contained in paragraph 49(1)(b), (2), (3), (4)(a) and (b) of the further amended Statement of Claim. The claim for general damages hereby succeeds to the extent that the sum of N5,500,000.00 is assessed as claim for same.

In the circumstances, the judgment of this Court shall be as follows:-

1. The relief in paragraph 49(1)(a) of the further amended Statement of Claim hereby fails for the reason stated earlier on in this judgment.
2. The reliefs in paragraph 49(1)(b), (2) and (3) hereby succeed. It is further ordered that the Title Deed dated 28th November, 1977 and registered as No. 43 at page 43 in Vol 1669 at the Land Registry, Lagos being the title deed of the property situate, lying and being at Plot 170, Gbagada Estate which is being wrongfully detained by the defendant shall be returned to the plaintiff immediately as the consideration for which same was deposited has totally failed.
3. The relief in paragraph 49(4)(a) and(b) hereby succeeds and the sum of N5,880,000.00 is hereby awarded as special damages in favour of the plaintiff.
4. The relief in paragraph 49(4)(c) of the further amended Statement of Claim hereby succeeds in that the sum of N5,500,000.00 is hereby awarded as general damages in favour of the plaintiff.”

The total sum of N11,380,000.00 (Eleven Million, Three Hundred and Eighty Thousand Naira) is hereby awarded as damages in favour of the plaintiff against the defendant. Interest shall be at the rate of 6% per annum on the judgment debt until the whole debt shall be liquidated. I have to award substantial costs against the defendant in this case. In so doing, I shall be guided by the principles laid down in the case of Onabanjo v. Ewetuga (1993) 4 NWLR (Pt. 288) 445 and by the fact that costs follow events. The plaintiff and counsel herein deserve to be compensated for the expense, time and energy which they incurred and expended respectively in the litigation from 1990 when the writ of summons was filed and matter was part heard before Balogun J. (rtd.) after which it started de novo before me in 1993 when same was transferred till date. If the Court had not resisted the various ploys employed by the defendant to delay the conclusion of this case, this Court will not be delivering this judgment today. This would have amounted to delayed justice.

Although this amount I shall be awarding cannot in my view repay the whole outlay which the plaintiff and its counsel must have been compelled to make. But all the same, I hereby award costs of N30,000.00 in favour of the plaintiff against the defendant herein.

On 17/5/95, the defendant being dissatisfied with the judgment of the 16th of May, flied an appeal to the Court of Appeal and on 18th May, filed 2 motions, one, on notice, praying for stay of execution of the judgment delivered by the High Court of the 16th of May pending the hearing and determination of the appeal filed against it and the second, ex-parte, staying execution of the judgment delivered by the lower court on the 16th of May pending the hearing and determination of the motion on notice for stay of execution filed contemporaneously with the motion ex-parte. The application on notice came before the Court of Appeal on 26th, June 1995 and after addresses by learned counsel for the parties the court, in a unanimous decision, granted the application as prayed. It is against this decision that the plaintiff has appealed to this Court upon 3 grounds of appeal which read as follows:

The learned Justices of the Court of Appeal erred in law when they proceeded to grant an unconditional stay of execution in favour of the defendant/respondent on the ground that the grant of such unconditional stay would make the status quo more perfect between the parties.

Particulars of Error

a. The decision of the Supreme Court in Union Bank of Nigeria Ltd. v. Odusote Bookstore Limited (1994) 3NWLR (Pt. 331) at 129 which was cited to the Court of Appeal and which was relevant to the question of grant or refusal of unconditional stay was completely ignored.

b. The unreported decision of the Court of Appeal in LSDPC v. City Mark (WA.) Limited was also ignored.

c. There is nothing in law like granting unconditional stay in order to create a perfect status quo between the parties.