Vincent Standard Trading Co. Ltd Vs Xtodeus Trading Co. (Nig) Ltd (1993)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

The plaintiff company (who is now the appellant before us) sued the defendants (who are now respondents) jointly and severally claiming the sum of N588,353.70 being the sum left unpaid (together with interest) in respect of goods allegedly sold by the plaintiff to the defendants. The defendants denied the claim and in turn counterclaimed against the plaintiff for the sum of N456,430.00 being the sum allegedly due to them from various transactions between them and the plaintiff. Pleadings having been ordered, filed and exchanged the case proceeded to trial at which 2 witnesses testified in support of plaintiff’s claim while one witness testified in favour of the defense and counterclaim.

At the close of the defence, learned counsel for the plaintiff sought leave of court to recall his 1st witness to testify in defense of the counter-claim. The application was resisted by learned counsel for the defense, but the learned trial Judge, in a ruling, allowed it. Defense counsel promptly appealed against the ruling and moved the trial court for a stay of further proceedings in the action pending the determination by the Court of Appeal of the said appeal. The learned trial Judge in a reserved ruling granted the application for a stay of further proceedings but ordered the defendants to deposit with the High Court Registrar the sum of N500,000.00 “as an undertaking against compensation and to prosecute the appeal timeously.” The defendants again appealed to the Court of Appeal against the order that they deposit N500,000.00 with the registrar of the High Court. This was on 1/6/90. By a motion dated 8/6/90 they prayed the trial court to stay the execution of that order pending the determination of the appeal against it. Needless to say that plaintiff’s counsel opposed the application. On 2/10/90, in a reserved ruling, the application to stay the order was refused. The substantive case was then adjourned to 12/10/90. At this stage, counsel for the defendants informed the trial court that the defense was withdrawing from taking further part in the proceedings. Learned counsel for the plaintiff after having previously led his witness in evidence on the counter claim, later addressed the court and judgment was reserved. On 20/2/90, the learned trial Judge found for the plaintiff on its claim and entered judgment in its favour in the total sum of N588,243.70 as claimed; defendants’ counterclaim was struck out.

The defendants appealed against this final judgment on the following grounds of appeal, to wit:

1. ERROR IN LAW

The learned trial Judge erred in law by proceeding to re-open trial and then give judgment in a cause he had granted an order of stay of proceedings pending the determination of an interlocutory appeal at the Court of Appeal when there was no application for a review of the said order of stay of proceedings already granted.

PARTICULARS OF ERROR

(a) On 21/5/90 the Honorable trial Judge granted an application by the appellants for stay of proceedings pending the determination of an interlocutory appeal at the Court of Appeal over procedural irregularity on proof of counterclaim.

(b) The learned trial Judge further ordered the appellants to deposit the sum of N500,000.00 with the Registrar of Onitsha High Court as an undertaking against compensation and to prosecute the appeal which order the appellants appealed against and med a motion for stay of its execution pending the determination of the appeal.

(c) It was on 2/10/90 that in the course of delivering his ruling on the application for stay of execution that the learned trial Judge Suo motu re-opened the substantive suit already adjourned sine die and proceeded to deliver judgment in the absence of the appellants and their counsel who refused to further participate in the proceedings.

2. ERROR IN LAW

The learned trial Judge erred in law by proceeding to deliver judgment in the above suit when he was served with an application filed by the appellants in the Court of Appeal praying for a stay of proceedings of the main suit pending the determination of the interlocutory appeals already pending at the Court of Appeal.

PARTICULARS OF ERROR

(a) On 6/12/90 the appellants filed an application at the Court of Appeal praying for a stay of proceedings in the suit pending the determination of the interlocutory appeals already lodged in the Court of Appeal.

(b) The said order was served on the Onitsha High Court Registry on the same 6/12/90 who endorsed it for service on the learned trial Judge the same day. It was served the same day on the learned trial Judge to the knowledge of the appellants’ counsel

(c) The learned trial Judge did not advert to the said application pending at the Court of Appeal which in law serves as enough stay and proceeded to deliver the said judgment.