National Insurance Corporation of Nigeria V. Power & Industrial Engineering Company Limited (1989)

LawGlobal-Hub Lead Judgment Report

AKPATA, J.C.A.

The main issue, which is intriguing, raised by this appeal is whether a person interested in a judgment by a Court may apply by originating summons to another Court of coordinate jurisdiction to resolve any question of construction arising in the judgment.

As far back as 1978 the first respondent as plaintiff instituted an action at the Federal High Court (then Federal Revenue Court) against the appellant as defendant upon a contract of Marine Insurance for the sum of N1,231,359.00 being the cost of the cargo of rice insured with the defendant. Judgment was entered for the plaintiff by Belgore, J. (as he then was) on 19th November, 1981 for the entire sum claimed with interest at the rate of 10% from 23/5/78.

The defendant appealed against the judgment and then filed an application for a stay of execution. The application was taken by Anyaegbunam, C. J., of the same Court on 27th January 1982 and ordered with the consent of parties, “that there shall be a stay of execution of the judgment given in this action on the 19th day of November, 1981 pending the determination of the appeal lodged against the said judgment on the following conditions namely:

(i) “that the defendant/applicant do within 30 days from today pay the judgment debt of N1,231,359.00 (one million, two hundred and thirty-one thousand, three hundred and fifty-nine naira) with interest thereon at the rate of 10% per annum from the 23rd May, 1978 to 19th November, 1981 and the same put on a FIXED DEPOSIT ACCOUNT for a minimum period of 12 months in the Union Bank of Nigeria Ltd. 40 Marina, Lagos.

(ii) That the said deposit shall be in the name of the Chief Registrar, Federal High Court, Lagos.

(iii) ……

(iv) That whichever side wins the appeal should be at liberty to withdraw the monetary deposit with the accruing interest.

(v) ….”

The defendant carried out the order by paying into Court the Principal amount plus interest at 10% up to 19th November, 1981, the date of judgment in the substantive action. The Chief Registrar accordingly deposited the amount in the Bank as ordered.

The defendant lost its appeal in the Court of Appeal on 31/1/84. A further appeal to the Supreme Court was also unsuccessful on 3/1/86. The plaintiff, through its Solicitors, by letter dated 21/1/86 wrote to the defendant demanding the payment of the judgment debt with interest at 10% up to the date of the letter. The defendant, through its solicitors, replied on 28/1/86 reminding the plaintiff that the total judgment debt with interest at 10% had been paid into court and put in a deposit account for the winner to collect after the final determination of the appeal. The solicitors observed that what was paid into court represented the damages and interest up to the date of its payment.

In their reply to the defendant’s letter the plaintiff’s solicitors by letter dated 31/1/86 argued that the order “with interest at 10% from 23rd May 1978” in the judgment of Belgore J., imposed a 10% interest rate on the judgment debt from 23rd May, 1978 to payment. The solicitors drew attention to the fact that when the judgment debt was paid into the bank the bank interest rate was 6.7/8% which later increased to 8%. The plaintiff’s solicitors concluded that the difference between the bank interest rate and the 10% awarded by the court remained outstanding from the defendant.

As the parties disagreed as to the construction to be placed on the judgment of Belgore, J., of the Federal High Court, that the “special damages on N1,231,359.00 is awarded with interest at 10% from 23/5/78” the defendant, as plaintiff, now to be referred to as the appellant, by an originating summons filed on 11/2/86, initiated proceedings in the High Court of Lagos State for the determination of the construction of the judgment of Belgore, J., and whether the appellant had not satisfied the judgment debt on payment into court of the principal amount plus interest at 10% as ordered by Anyaegbunam, C. J., pursuant to the defendant’s application for a stay of execution pending the determination of its appeal.

The plaintiff that will now be referred as the respondent, the 2nd respondent being a dormant respondent, filed a preliminary objection against the originating summons questioning the jurisdiction of the High Court of Lagos to hear and determine the suit on the ground that “no Judge is competent to review a decision of another Judge of co-ordinate powers. Such powers being exercisable by an appellate court.”