Lagos State Development And Property Corporation V. Adold Stamm International Nigeria Ltd.& Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

AKINTAN, J.S.C.

This is an appeal from the judgment of the Lagos Division of the Court of Appeal (Coram: Oguntade, Galadima & Aderemi, JJ.CA) delivered on 13th June, 2000 in suit No. CA/L/380/96. The appellant and the respondent had entered into a building contract out of which a dispute arose. The contract agreement between them had provided for reference of disputes arising from the contract to an arbitrator. To that end, the dispute was, by an order of the Lagos State High Court, referred to Late Hon. Justice G.B.A. Coker as sole arbitrator. The arbitrator published his report on 18th October, 1982. In the report, the arbitrator ordered the appellant to pay N5,566,437.21 to the respondent with 5% interest per annum thereon from 11/3/81 to 18/10/82. The respondent later applied to the High Court for the enforcement of the award. The appellant, on the other hand, applied to the same court to set aside the award.

The two applications came before IIori, J. as he then was. In his ruling delivered on 9/5/86, on the two applications, the learned Judge ordered the enforcement of the award and refused the application to set aside the award. The appellant was dissatisfied with the ruling of Ilori, J. An appeal to the Court of Appeal against the ruling was dismissed. On a further appeal to this court, the appeal by the appellant was also dismissed. But the cross-appeal by the respondent was successful in that this court ordered that the case be remitted back to the High Court for the purpose of determining the interest payable. Ilori, J. determined the interest payable as ordered by this court. The appellant was again dissatisfied and appealed to the Court of Appeal.

The First Bank Plc, the 3rd party respondent, came into the matter as a result of the bond it provided under an order by IIori, J. made on an application for stay of execution of the award pending the appeal filed by the appellant. When the appeal was dismissed, the respondent instituted an action at the Lagos High Court for the enforcement of the bond.

The claim came before Desalu, J. as suit No. LD/2185/90. Desalu, J. entered judgment against the First Bank PLC to the extent of the limit of the amount guaranteed by the bank and the interest due thereon. The bank has since fully settled the judgment debt. The bank was brought into the proceedings before Ilori, J. by the appellant issuing a third party notice by motion which the learned trial Judge granted. But the High Court, in its ruling, awarded the interest payable and dismissed the third party notice. The appellant did not appeal against the dismissal of the third party notice to the Court of Appeal. The bank is therefore, strictly speaking not a party in the present appeal. Briefs were filed by the appellant, the respondent as well as the third party in this court. The appellant formulated the following four issues for determination in the appellant’s brief:

“1. Whether the court below was right in holding that there was no conflict in the affidavit of interest filed to warrant the taking of oral evidence by the trial court.

2. Whether the court below was right in affirming the decision of the trial court on the lumping together in the same judgment the determination of interest payable to the respondent and the application for leave to set aside the 3rd party notice filed by the 3rd party/respondent.
3. Whether the court below was right in arriving at the conclusion that there was no denial of fair hearing to the appellant by the failure of the respondent to give the appellant the opportunity to respond or be heard on the document relating to interest payable.
4. Whether the court below was not in error in agreeing with the trial court that the respondent is entitled to further interest on the judgment sum of N6,784,095.34k placed with the 3rd party/respondent in an interest yielding account as directed by this court in its judgment in suit No. SC1282/91 of 5/8/94.”

The respondent adopted the issues formulated by the appellant in its brief. The procedure adopted by IIori, J. in determining the interest payable as directed by this court is contained in the following order made on 10th January, 1995 by the learned Judge:

” (i) The principal sum comprised in the judgment shall be paid to the plaintiff by the defendants and or their guarantor before the adjourned date.

(ii) The plaintiff shall file and serve an affidavit on interest claimed within 14 days from this day.

(iii) The defendants shall file and serve an affidavit on interest offered within 10 days of service of the plaintiff’s affidavit.”

The plaintiff filed its affidavit evidence as directed by the court on 27th January, 1995 and the defendant filed its own affidavit on 7th March, 1995. The plaintiff’s affidavit was deposed to by Adegboyega Adetokunbo Edu, a legal practitioner in Chief Rotimi Williams Chambers. He deposed inter alia, in paragraphs 3, 4, 5, 6, & 7 of the said affidavit as follows:-

“(1). The Afribank Nigeria PLC, is a reputable bank duly licensed to carry on the business of commercial banking in Nigeria.

(2) Chief Rotimi Williams Chambers did make inquiries from the aforementioned bank to ascertain the amount of interest payable on a sum of N6,015,411.21 if such had been placed on fixed deposit with the said bank from 9th May, 1986.

(3) Now shown to me and marked exhibit 1 is the photocopy of amount of interest computed by the said bank from 9/5/86 to 31/10/94.