Cotecna Destination Inspection Limited V. Boyson Nigeria Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the Ruling of O. A. Ipaye J (Mrs.) in Suit No.LD/45/95 delivered on the 19th of January 2006.

The learned trial Judge, after hearing the application for stay of further proceedings filed on the 31st of March 2005 dismissed same.

FACTS

The Appellant was the 1st Defendant in the lower Court in Suit No LD/45/05, while the Respondent was the Claimant. The Appellant had by Motion on Notice filed on the 31st of March 2005 prayed the Court below for an order, staying further proceedings in the suit, pending reference to, and determination of the dispute between the Claimant and the Defendant by Arbitration, in accordance with the arbitration agreement between the parties.

At the Court below, the Respondent had claimed against the Appellant the following:

(a) “The sum of N28,662,750.00 being outstanding balance of the contract sum at N4,800,000 monthly from Dec. 29, 2004 – 31st Oct. 2004, N10,031962.50 being interest at the rate of 35% on the outstanding

balance of N28,662,750.00 as at 37/10/04 and the sum of N4,800,000.00 compensation for loss earning and or one month sum for termination of contract”

(b) “A declaration that any money in account of the 1st Defendant in custody of the 1st Defendant up to the sum of N43,494,772.50 belongs to the Claimant and such should not be withdrawn by the 1st Defendant except for the settlement of the Claimants claim”

“An interest at rate of 35% on the sum of N3,494,712.50 from the 1st Nov. 2004 till final determination of this suit and thereafter at the rate of 75% till final liquidation of the Judgment sum”

(d) “The sum of N5,000,000.00 as general damages”

(e) “An order of the Court restraining the 2nd Defendant from releasing any money and/or transferring any money in her custody to any account foreign or domestic for and on behalf of the 1st Defendant forthwith until Judgment and final liquidation of the Judgment sum in this suit” – pages 1-2 of the Record of Appeal.

The claim was based on a contract between the parties, for provision by the Respondent of physical security of two (2) X-ray Scanners in Lagos ports, which belong to the Appellant. The Respondent, in conjunction with documents filed, also filed an Agreement dated 29th December 2003 which evidenced the contract. The Appellant’s Motion on Notice to stay further proceedings was in respect of the suit filed by the Respondent pending reference to and determination of the dispute between the parties by arbitration. He relied on the provisions of clause 21 of the Formal Service Agreement dated 29th December 2003 pleaded and filed by the Respondent and annexed as Exhibit 1to the Appellant’s application.

The learned trial Judge, after hearing submissions of learned counsel for the respective parties, dismissed the motion on the 19th day of January 2006.