Nigerian National Supply Company Ltd. V. Alhaji Hamajoda Sabana And Company Limited & Ors. (1988)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

In the main Suit, LD/521/86, pending in the High Court of Lagos, Alhaji Hamajoda Sabana and Company Limited, 1st Respondent herein sued, as Plaintiff, Stratel Ltd., Nigerian National Supply Company Limited (Appellant herein) and Attorney-General of the Federation as defendants claiming the following reliefs:-

”(1) Against all the defendants, a declaration that the entire cargo of 23,000 metric tons of Thailand Rice which is the subject matter of a letter Ref.No.CC/1/S.9/C.T/2 dated 14th November, 1985 and addressed to the Chairman of the Nigerian National Supply Company Limited is the property of the Plaintiff.

(2) Against the 2nd defendants and the Federal Government the return of the said cargo of rice or such portion thereof as have not been disposed of by them or either of them.

(3) Against the 2nd defendant and the Federal Government, an order for inquiry into damages suffered by the plaintiff as a result of the conversion of the cargo of rice or any portion thereof and payment of such damages (including interest thereon) to the Plaintiff.”

The Suit was filed on 6th May, 1986. The second defendant i.e. the appellant herein, entered appearance to that Suit on 5th June, 1986. In May, 1986, the 1st Respondent brought a Motion Ex-parte under Order 39, Rule 3 of the Civil Procedure Rules of the High Court of Lagos claiming the following reliefs:-

(1) that the cargo of rice the subject matter of this action be released forthwith by the second Defendant to the Nigerian Merchant Bank Ltd. for ultimate disposal to the persons from whom money has been received for the purchase of the said rice;

(2) that the sum of N20,700,000, presently held by the said Nigerian Merchant Bank Limited upon the instruction of Plaintiff be lodged in Court or deposited with such reputable Bank as the Court may direct pending the trial of this action or until further order;

(3) an order of injunction restraining the second and third defendants whether by their officers, agents, employers, or otherwise howsoever, selling, disposing of or arranging for the sale or disposal of or taking any steps for the sale or disposal of or taking steps or further steps for the sale or disposal of the cargo of rice (or any portion thereof which is the subject matter of a letter Ref. No. ECC/1/S.9/C./T/2 dated 14th November, 1985 and addressed to the Chairman of the Second defendant company by B.M. Balogun Esq. who signed the same for the Permanent Secretary, Federal Ministry of Trade, Trade Promotion and Supply Division, Ikoyi Lagos until after the hearing and determination of this action.

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Relevant to the matters I shall discuss later in this judgment is paragraph 6 of the affidavit attached to the motion which was sworn by one Jeff Ike on 6th May, 1986. It stated-

“6. The second Defendant has despite frequent representations by myself on behalf of the Plaintiff, refused to release the said cargo to the Plaintiff, and the said cargo remains in the possession of the second Defendant.”

On 8th May, 1986, Oguntade, J. as he then was, granted the third relief in the motion set down above and made an order accordingly.

From the ruling of Oguntade, J. of 23rd June, 1986, it would appear that after making the order of 8th May, 1986, the 1st Respondents were ordered to serve the appellant with the motion papers. This was the motion which was first taken on 19th May and later on 22nd May, 1986. Actually, from page 55 of the bundle of papers. the terms of the motion on notice were the same as the ex-parte motion to which I had made reference. On the 21st May. 1986, learned counsel to the appellant had filed a notice of preliminary objection in these terms:-