International Bank For West Africa Ltd. & Anor V. Pavex International Company (Nigeria) Limited (2000)

LAWGLOBAL HUB Lead Judgment Report

EJIWUNMI, J.S.C.

This appeal is against the judgment of the Court of Appeal declaring as null and void, the ex-parte Order made by Balogun Ag. CJ on the 25th of July, 1991. The said Order was accordingly set aside. The respondent has also cross-appealed against that part of the judgment where it was held that the facts disclosed did not go far enough to established the likelihood of bias against the respondent/cross-appellant by the learned Acting Chief Judge. The other aspect of the complaint of the cross-appellant against the judgment is the failure of the court below to order the 1st respondent to give credit for the drafts issued in satisfaction of the judgment debt at the current rate of exchange.

I think it is convenient at this stage to set as briefly as possible, what led to the present proceedings. It is an acknowledged fact between the parties that on the 7th day of June 1991, Adeniji J. gave judgment in the dispute between the partied against the appellants in the following terms:-

“(i) An order of mandatory injunction to compel the Defendants to transfer to the Plaintiffs suppliers. MALTERIED FRANCO SUISSE OF FRANCE, through B.T.A.O. Paris, the sum of DM.113,348.00 (One hundred and thirteen thousand, three hundred and forty eight Dutch marks), being the equivalent of N248,028.75, (Two hundred and forty eight thousand, and twenty eight Naira, Seventy five kobo) on the SFEM/FEM Exchange rate as at 19th August, 1987 lodged with the Defendants on account of Bill B/00 2/00005/87 for payment for 250 tons Pilson Barley Malt, within 30 (thirty) days.

(ii) Defendant to accept full liability or responsibility for any interest, charges and shortfalls accruing due to fluctuations in the FEM Exchange Rate between August, 1987, when the said Naira equivalent was lodged till elate of remittance to the suppliers.

(iii) N300,000.00 General Damages

(iv) N5,000.00 as Costs

As the appellants (then defendants) were not satisfied with the judgment, an appeal was filed against it, soon after the judgment was delivered. They also applied to the High Court Lagos, coram Adeniji J. for a stay or execution of the judgment pending the determination of the appeal. That application was refused by Adeniji J. on the 23rd of July 1991 and a Writ of Execution was therefore signed by the learned trial judge.

Following the refusal of the application for the stay of execution of the judgment by Adeniji J. the appellants then took the decisive step that led to this appeal. On the 24th of July, 1991, the next day after their application was refused, the appellants filed a Motion on Notice before the High Court of Lagos State seeking for the following orders:-

“1. An order that all the Writs or Execution issued in the matter herein be set aside, pending the determination of the application made to the Court (by the Defendants/applicants) for the stay of execution of the final judgment of this Honourable Court dated the 7th day of June, 1991, pending the determination of the Defendants’ appeal:

2. An order that the Bank Drafts of the first Defendant/applicant (which it) issued to the solicitor of the Plaintiff K. O. Tinubu Esq. in satisfaction of the Writ of Execution aforesaid be returned to the applicants, or alternatively that the first Defendant/Applicant be at liberty not to give credit therefor.

And for such further Order or Orders as this Honourable Court shall deem fit to make in the circumstances.

AND FURTHER TAKE NOTICE that the Defendants/Applicants shall rely in support of this Application all the Affidavit filed in support of the Motion Ex-Parte herein.”

And as stated above, the Appellants duly filed a Motion Ex-Parte on the same day i.e. 24/7/91. The Motion Ex-Parte vas brought pursuant to Order 2, Rule 10, Judgment (Enforcement) Rules, Order 40 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 1972, and the inherent jurisdiction of the Court; seeking for the following interim orders; namely:-

“1. An order that, all the Writ of Execution issued in the matter herein be suspended, pending the determination of the application on notice for setting same aside, filed herewith.