Nigerian Bank For Commerce And Industry V. Dauphin Nigeria Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the leading Judgment)

The appellant/applicant (hereinafter referred to as ‘the applicant’) has by a motion on notice dated and filed on the 7th April, 2009 sought for an order varying the conditions imposed by the Federal High Court Lagos (the court below) on stay of execution in respect of its judgment delivered on 4th August 2008, the subject of the pending appeal. The order for conditional stay of execution was granted by the court below in its ruling delivered by Ajakaiye, J. on 24th March, 2009 by depositing the judgment sum of Sixty Six million and Forty Thousand Naira (N66,040,000.00) with the Chief Registrar of the court below to be paid into an interest yielding account with a reputable bank pending the determination of the appeal.

The motion is supported by a seven-paragraph affidavit of even date, a further affidavit and a second further affidavit filed 27th May, 2009 and 25th February, 2010 respectively.

Arguing the motion on 8th March, 2010 the learned senior counsel for the applicant Omotayo Oyetibo. SAN relied on the three affidavits and urged the court to grant an unconditional stay of execution or alternatively order the filing of a bank guarantee in view of the large sum involved that could consequently annihilate the applicant. He also referred to the recondite issue of jurisdiction raised in the notice of appeal. Reliance was placed especially on paragraph 6 of the further affidavit filed 27th May, 2009 and paragraphs 5 and 6 of the second further affidavit filed on the 25th February, 2010. The said paragraph 6 of the further affidavit reads thus:

“6. Further to paragraph 6 of my affidavit of 7th April, 2009, I am informed by Mr. Emmanuel Onoji, the legal adviser of the appellant and I verily believe him that the appellant is seriously aggrieved by the judgment of the court below because:

a) The respondent’s claim in the court below arose out of an export contract executed between the respondent and Messrs Peacock Group Inc of Orlando Florida, U.S.A. whereby the respondent was to export some leather goods to the overseas buyers.

b) The appellant was not a party to the contract but only offered at the instance of the overseas buyers to issue a bank guarantee for the performance of the contract.

c) Despite the clear facts on the record that the appellant was not a party to the contract, the court below nevertheless awarded the sum of USD763000.00 or its Naira equivalent which is N6,040, 000.00 against the appellant for breach of the export contract.

d) The court below also awarded N5,000,000.00 as general damages against the appellant thereby giving the respondent double compensation.

e) The respondent’s claim in the court below was for the tort of negligence simpliciter which claim the Federal High Court has no jurisdiction to entertain.

f) The Court below failed to give the appellant a fair hearing in that the court shut its eyes against the crucial evidence led by the appellant in defence of the heads of claims of the respondent.

g) The appellant is a public institution established to assist, in particular, small and medium enterprises and businesses promoted by women.

h) The appellant is unable to pay the judgment debt because it has been experiencing financial difficulties in the last two years. It is however willing, able and ready to provide a bank guarantee to assure the respondent that the judgment debt would be paid if the appeal is unsuccessful.” (emphasis supplied)

In the second further affidavit the same deponent John Olayemi further averred in paragraphs 5 and 6 as follows: