First Inland Bank (Finbank Plc.) V. Gindiri Oil And Marketing Limited & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Lead Ruling)

The applicant/appellant was sued by the 1st and 2nd Respondent before the Plateau State High Court in suit No.PLD/J/60/90 claiming the sum of Fifty Million Naira (N50,000.000.00 as special and general damages for libel and breach of contract. The trial court in a default judgment delivered on 29/10/09 granted the reliefs sought by the plaintiff/respondents. The applicant was not satisfied by the default judgment, he then sought for an order setting aside the said judgment which the trial court refused in a ruling delivered on 15/4/2010.

With leave of the trial Court the applicant filed an appeal to this Court. There was also an application for stay of the execution of the judgment of the trial Court which was refused in a ruling delivered on 15/4/2010. Not satisfied with the refusal of the stay of execution of the default judgment, the applicant filed an application for stay of the execution of the said judgment before this court. During the pendency of the said application, the Respondents carried out the execution of the judgment, hence the application to this Court seeking the following:…

(a) And order directing the Respondents to pay the sum of N2,028,700.00 being the judgment sum in this case which was executed by the Respondent during the pendency of the Motion on Notice dated and filed on 27/05/2010 pending the determination of the appeal No. CA/J/113/2010 – FIRST INLAND BANK (FINBANK) PLC V. GINDIRI OIL AND MARKETING LTD. & ORS.

(b) An order directing that this appeal No. CA/J/113/10 be heard on the appellant’s Brief of Argument.

(c) And such further Order’ (s) this Honourable Court may deem fit to make in the circumstances.

The application is predicated on five (5) grounds which are as follows:

(i) The High Court delivered a default judgment against the applicant in this case on 29th October, 2009.

(ii) The applicant on 3rd November, 2009 sought for the said judgment to be set aside and the High Court refused to set it aside on 15th April, 2009.

(iii) The applicant, with the leave of the High Court granted on 15th April, 2010, appealed to this Hon. Court. The Applicant applied for stay of execution of the said judgment and the lower Court refused that application on 21st May, 2010.

(iv) The applicant filed an application before this Court for stay of execution of the said judgment of the High Court. The said motion for stay of the judgment of the High court is still pending but the Respondents disregarded the motion before this Court and executed the judgment, hence this motion.

(v) The Appellant’s Brief of Argument had been filed and served on the 1st and 2nd Respondents on 5th July, 2010.

The application is supported by an affidavit. The 1st and 2nd Respondents filed a counter-affidavit and a Further Counter-affidavit. The 3rd to 5th Respondents filed a Counter-affidavit. The applicant filed a Reply to their Counter-affidavit. The applicant also filed a Reply to the further counter-affidavit of the 1st and 2nd Respondents. There is also a Reply to the Counter-affidavit of the 3rd to 5th Respondents. Sangie Esq. of learned counsel to the applicant abandoned prayer (b) and notified the court that the application is supported by an affidavit with 8 Exhibits “HCJ 1 and HCJ 8”. The relevant or material averments in these affidavits would be resorted to in course of this ruling where desirable.

Learned Counsel referred to the averments in these affidavits and submitted that this Court has the power to grant the order being sought. The case of Julius Berger (Nig.) Plc. Vs. T. R. Comm. Bank (2002) 1 NWLR Pt.1016 p.540 was cited to buttress the submission supra. It was his further submission that where a trial court refuses to grant a stay of execution of a judgment pending appeal, the parties have fifteen (15) days before any action can be taken on the execution of the judgment. If within the 15 days period no other application is made to a higher Court, the execution could be carried out. The case of Olaseni Vs. Olaseni (2010) 5 NWLR Pt.1187 p.225 was cited in aid. In this case at hand, it was submitted, the Respondents executed the judgment of 29th October, 2009 before the expiration of the 15 days when an application for an order to stay the execution of the said judgment was still pending before this Court. Learned Counsel further submitted that the act of the Respondents in executing the said judgment knowing fully well that there was a pending motion before this Court tantamount to utter disrespect to the Court. Therefore, the order being sought be granted in the interest of justice.