Mr. Olumide Braithwaite V Alhaji Bashir Dalhatu (2016)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the ruling of Court of Appeal, Lagos Division, delivered on 18/11/2002 which granted the respondent’s application for extension of time to seek leave to appeal, leave to appeal and extension of time to appeal against the ruling of the High Court of Lagos State sitting at Lagos, delivered on 15/9/2000, commonly referred to as the trinity prayers. The application included a prayer for stay of execution. The 1st Appellant (then 1st respondent) had filed a notice of preliminary objection to the application on the following grounds:

1. That the application for stay of execution is incompetent not having been first made and determined by the trial Court.
2. That the application is an abuse of process because:

a) The Court had considered and struck out a similar application.

b) The proposed grounds of appeal are as incompetent as those struck out on 11/6/2001.

3. The proposed grounds of appeal are incompetent because:

a) Grounds 1 and 3 complain of misdirection in law without giving particulars of the misdirection in law.

b) Ground 2 is vague and did not arise from

the decision sought to be appealed (sic).

4. The Appellant has overreached himself by the issues raised in the further affidavit of Jimmy Ufor sworn to on 18/6/2001 which are totally false.”

He urged the Court to dismiss the application.

In its ruling delivered on 18/11/2002, the Court below held that the applicant (now respondent) had satisfied the twin requirements of Order 3 Rule 4 (2) of the Court of Appeal Rules 2002 by satisfactorily explaining the reason for the delay in bringing the application and that the proposed grounds of appeal show good cause why the appeal should be heard. The Court also held that the complaints concerning the competence or otherwise of the proposed grounds of appeal were not relevant at that stage. The preliminary objection was accordingly overruled and the application granted, hence the instant appeal.

The background facts to this appeal are as follows: Sometime in 1988, the 2nd, 3rd and 4th Third parties/Appellants (hereinafter referred to as the Third Parties) instructed the 1st appellant to make a claim on their behalf against the Federal Government of Nigeria for the unlawful seizure and subsequent vandalisation of their

40,000 ton vessel, MT Izara. In compliance with the instructions the 1st appellant wrote several letters to the then Military Head of State and the Minister of External Affairs and also met with other agents of the Government to press his clients’ claims. While pursuing the claim, it came to the 1st appellant’s attention through a letter addressed to the respondent but copied to him, that the respondent had also been briefed to pursue the same claim and had indeed collected the sum of $15 million US Dollars on the Third Parties’ behalf as compensation for the seizure and vandalisation of their vessel. At the instance of Dr. Tunji Braithwaite (the 1st appellant), a meeting was held between him and the respondent. The respondent informed him that there was an outstanding balance still due from the Federal Government to the Third Parties arising from the difference in the rate of exchange. According to the 1st appellant, the respondent promised to pay him the sum of $125, 000.00 US Dollars out of the said balance, but did not keep his promise. The 1st appellant instituted an action at the High Court of Lagos State (the trial Court) to recover the sum being

“money had and withheld” by the respondent.

The respondent applied for the Third Parties to be joined in the suit, which application was duly granted. Chief Adegboyega Awomolo, SAN represented both the original defendant and the Third parties. The 1st appellant raised an objection. Consequently, the Third parties had to brief another counsel to represent them in the person of Chief Mike Okoye. He filed a statement of defence on their behalf, which included a counter claim.

In the course of proceedings, pursuant to an application filed by the Third Parties, the trial Court ordered the respondent to render an account of the money received from the Federal Government on their behalf. The respondent accordingly rendered accounts vide an affidavit deposed to by one Kunle Uthman, a legal practitioner, on 7th February, 2000 to which were attached Exhibits KU1 and KU2 in support of his averment that the respondent had remitted the entire compensation sum to the Third Partiers and as such was not in possession of monies belonging to any of the parties to the suit.