International Bank For West Africa Ltd. & Anor V. Pavex International Company (Nigeria) Limited (2000)
LAWGLOBAL HUB Lead Judgment Report
EJIWUNMI, J.S.C.
This appeal is against the judgment of the Court of Appeal declaring as null and void, the ex-parte Order made by Balogun Ag. CJ on the 25th of July, 1991. The said Order was accordingly set aside. The respondent has also cross-appealed against that part of the judgment where it was held that the facts disclosed did not go far enough to established the likelihood of bias against the respondent/cross-appellant by the learned Acting Chief Judge. The other aspect of the complaint of the cross-appellant against the judgment is the failure of the court below to order the 1st respondent to give credit for the drafts issued in satisfaction of the judgment debt at the current rate of exchange.
I think it is convenient at this stage to set as briefly as possible, what led to the present proceedings. It is an acknowledged fact between the parties that on the 7th day of June 1991, Adeniji J. gave judgment in the dispute between the partied against the appellants in the following terms:-
“(i) An order of mandatory injunction to compel the Defendants to transfer to the Plaintiffs suppliers. MALTERIED FRANCO SUISSE OF FRANCE, through B.T.A.O. Paris, the sum of DM.113,348.00 (One hundred and thirteen thousand, three hundred and forty eight Dutch marks), being the equivalent of N248,028.75, (Two hundred and forty eight thousand, and twenty eight Naira, Seventy five kobo) on the SFEM/FEM Exchange rate as at 19th August, 1987 lodged with the Defendants on account of Bill B/00 2/00005/87 for payment for 250 tons Pilson Barley Malt, within 30 (thirty) days.
(ii) Defendant to accept full liability or responsibility for any interest, charges and shortfalls accruing due to fluctuations in the FEM Exchange Rate between August, 1987, when the said Naira equivalent was lodged till elate of remittance to the suppliers.
(iii) N300,000.00 General Damages
(iv) N5,000.00 as Costs
As the appellants (then defendants) were not satisfied with the judgment, an appeal was filed against it, soon after the judgment was delivered. They also applied to the High Court Lagos, coram Adeniji J. for a stay or execution of the judgment pending the determination of the appeal. That application was refused by Adeniji J. on the 23rd of July 1991 and a Writ of Execution was therefore signed by the learned trial judge.
Following the refusal of the application for the stay of execution of the judgment by Adeniji J. the appellants then took the decisive step that led to this appeal. On the 24th of July, 1991, the next day after their application was refused, the appellants filed a Motion on Notice before the High Court of Lagos State seeking for the following orders:-
“1. An order that all the Writs or Execution issued in the matter herein be set aside, pending the determination of the application made to the Court (by the Defendants/applicants) for the stay of execution of the final judgment of this Honourable Court dated the 7th day of June, 1991, pending the determination of the Defendants’ appeal:
- An order that the Bank Drafts of the first Defendant/applicant (which it) issued to the solicitor of the Plaintiff K. O. Tinubu Esq. in satisfaction of the Writ of Execution aforesaid be returned to the applicants, or alternatively that the first Defendant/Applicant be at liberty not to give credit therefor.
And for such further Order or Orders as this Honourable Court shall deem fit to make in the circumstances.
AND FURTHER TAKE NOTICE that the Defendants/Applicants shall rely in support of this Application all the Affidavit filed in support of the Motion Ex-Parte herein.”
And as stated above, the Appellants duly filed a Motion Ex-Parte on the same day i.e. 24/7/91. The Motion Ex-Parte vas brought pursuant to Order 2, Rule 10, Judgment (Enforcement) Rules, Order 40 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 1972, and the inherent jurisdiction of the Court; seeking for the following interim orders; namely:-
“1. An order that, all the Writ of Execution issued in the matter herein be suspended, pending the determination of the application on notice for setting same aside, filed herewith.
- That the first Defendant/Applicant be at liberty not to give credit to the Plaintiff for their Bank Drafts given to counsel to the Plaintiff/Respondent, K. O. Tinubu Esq. in satisfaction of the Writ of Execution of the aforesaid, pending the determination of the application on notice filed along herewith,”
On Thursday the 25th day of July, 1991, the Motion Ex-Parte came for hearing before Balogun Ag. CJ, as he had assigned it to himself for hearing. I will later in this judgment consider that aspect of the appeal, as it was raised as one of the questions in this appeal.
Now, having heard submission of O. Ayanlaja, Esq, learned counsel for the Defendants/Applicants on the Ex-Parte Motion, Balogun Ag. CJ., ordered as follows per the Enrolment Order made in that behalf, it reads:-
- All the Writ of Execution issued in this matter be and is hereby suspended
- The first Defendant/Applicant be at liberty not to give credit to the Plaintiff for their two Bank Draft No. HO/1015381 dated 24th July, 1991 for N500,000.00 and No. HO/1015381 dated 24th July, 1991 for N281,322.50.
- The hearing of the Motion on Notice be and is hereby fixed for Wednesday the 31st day of July, 1991
- A Certified True Copy of this Order shall be served on the Plaintiff’s Counsel and on the Deputy Sheriff of this Court.
- The Deputy Sheriff shall suspend any further steps in the execution of the final judgment herein, pending the hearing and determination of the Motion on Notice.”
Upon being served with the above order and the Motion on Notice that was filed on the same day, 24th July, 1991, the respondent/cross-appellant filed a Notice of Preliminary Objection against the application on the 29th of July, 1991, it must also be noted that hearing of the Motion on Notice had also been fixed by Balogun Ag. C.J. for the 1st day of August, 1991.
As aforesaid, the respondent/cross-appellant had filed a Notice of Preliminary Objection, upon the following grounds as set out in the said Notice:
“(ii) The Hon. Justice A.L.A. BALOGUN, O.F.R. Ag. Chief Judge, Lagos State lacked competence and jurisdiction to have entertained the Ex-Parte Motion dated 25/7/91 by the Defendants/Applicants herein so far as it sought to review, set aside or vary the order, the execution thereof, (as well as the consequential result of such order) of a Judge of competent, concurrent and co-ordinate jurisdiction. Such assumption of jurisdiction is tantamount to sitting over the judgment/orders of a superior Court of Record with co-ordinate jurisdiction and therefore a nullity.
1(1) The orders made on the Ex-Parte application are illegal in that they are intended to, and have frustrated the order of a Court of competent and co-ordinate jurisdiction to wit: Levy execution on the goods and chattels of the judgment/debtor in satisfaction of the judgment debt. The orders to suspend the execution and that no credit be given for the drafts already issued by the judgment/debtor this encourage a litigant to flout the orders of a competent Court a Superior Court of Record.
(2) By the same token the said Hon. Justice A.L.A. Balogun O.F.R. Ag. Chief Judge lacks competence and jurisdiction to entertain the Motion on Notice filed on 25/7/91 and fixed for hearing on Wednesday 31/7/91.
No fair hearing; The Plaintiff/Respondent the judgment/creditor herein, has not been afforded a fair hearing before the Court made orders on the Ex-Parte application, “Audi alterem partem” is one of the hallowed and immutable pillars of the Rules of Law.
3(i) The admonition of the Supreme Court in dealing with such an application has not been heeded – See Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) Page 419 at p.423.
“Held 6 – Main attributes of an Ex-Parte injunction:-
(a) It can be made when there is a real urgency, but not a self-induced or self imposed urgency.
(g) Although it is made without notice to the other party, there must be real impossibility of bringing the application for such injunction on notice and serving the other party.
3(ii) The admonition of the Supreme Court in Bakare v. Apena (1986) 4 NWLR (Pt.33) P. 1 at P.20 has not been heeded to wit: Per Aniagolu, JSC. That a Judge should not “adopt a method of adjudication alien to procedural rules of justice holding as it were, as a justifying machiavellian principle, that the end, justified the means et seq. in Alhaji Raimi Edun v. Odan Community (1980) 8-11 SC 103 at 123, quoted with approval in Bakare v. Apena (supra).
(4) The Hon. Ag. Chief Judge further failed to extract an undertaking in damages from the Defendants/Applications, as enjoined in Kotoye v. C.B.N. (supra) and other like authorities.
AND TAKE FURTHER NOTICE that at the hearing of the Motion on Notice, if the Court insists on assuming jurisdiction, the Respondent will rely on the affidavit filed herein and dated 29th July, 1991.
The Court is urged to revoke its orders made on 25/7/91 pursuant to the Ex-Parte application as made without competence or jurisdiction.
AND to decline jurisdiction on the Motion on Notice dated 25/7/91.”
An Affidavit deposed to by K. O. Tinubu Esq. learned counsel for the Respondent/Cross-Appellant was filed in support or the Notice or Preliminary Objection. I do not consider it necessary to relate them in this judgment. But where necessary reference will be made to relevant parts of the affidavit. The affidavit filed in support of the Ex-Parte Motion and the Motion on Notice will also be similarly treated.
The preliminary objection was apparently taken together with the application made by the Appellants. And after hearing the submissions of learned counsel, he delivered his ruling on the 9th day of August, 1991.
In the course of that ruling the learned trial judge, Balogun Ag. C.J, formed the view that his failure to order all undertaking at the hearing or the motion exparte cannot nullify the proceeding at that stage of the interim orders made by him on 25th July, 1991. He reinforced his view on that point by stating that an embarking for payment of damages can still be extracted from the appellants/cross-respondents by this Court, or by the Court of Appeal.
Be that as it may, the learned Ag. Chief Judge, concluded his ruling thus, and I quoted:-
“In the end therefore, and for all the reasons I have endeavoured to give the preliminary objection as to lack or jurisdiction and competence of Balogun J. Acting: Chief Judge to hear and adjudicate in the matter succeeds in part and fails in part thus:-
(a) Balogun J. Acting Chief Judge has jurisdiction and competence pronounce on whether or not the writ of attachment (Exh. A) was irregularly executed by the judgment creditor and/or the bailiff.
(b) Balogun J. Acting Chief Judge lacks jurisdiction and competence to pronounce on whether or not the writ of attachment (Exh. A) signed and issued by Adeniji J.. (a judge of co-ordinate jurisdiction) is null and void; or to set it aside ….”
The Plaintiff in the trial court being dissatisfied with that ruling, and who is now the respondent/cross-appellant, filed its appeal against the ruling. Its complaint being that Balogun, Acting Chief Judge, was wrong to have assumed jurisdiction to entertain the motion ex-parte by first re-assigning the matter to himself. It was also alleged that he was wrong to have heard it during the court’ s long vacation against procedural rules in that regard, and without pulling the other party on notice. The appellant/cross-respondents, as defendants in the court of first instance, by their cross-appeal raised the question as to whether Balogun, Ag. C.J was right when he held that e had no jurisdiction to pronounce on the issue that the writ of execution was irregularly issued or was a nullity. The Court below, per Uwaifo JCA, (as he then was) concurring, held that Balogun Ag. CJ., had no competence and jurisdiction to do what he did and was completely out of tract in his use of “irregular issue” and “irregular execution” of the Writ of attachment. The cross-appeal was therefore dismissed.
However, the Court below allowed the Plaintiff’s appeal. The Court declared as null and void, the ex-parte order made by Balogun Ag. C.J., on the 25th July 1991 and set it aside. The Court below went on to hold that the interference with the execution should stand and that in satisfaction thereof credit should be given in full by the 1st defendant for the two Bank Drafts.
Again, the parties being dissatisfied with the judgment of the Court below have further appealed to this Court. I will deal first with the main appeal filed by the appellants. Pursuant thereto, the appellants in support of their appeal filed and exchanged their brief of argument. In that brief the following are the questions for determination:-
(i) Whether the Court of Appeal had jurisdiction to decide that the Plaintiff’s counsel were not aware of the tendency of the application of the defendants for stay of execution at the time when the writ of Fifa was to be executed and if it had jurisdiction whether such decision was correct.
(ii) Whether there is any admissible evidence whatsoever to support the conclusion of the Court below (per Uwaifo JCA) that Adeniji J. was available to deal with the matter which Balogun Ag. CJ dealt with.
(iii) Whether it was open (or if it was so open whether it was proper) for the Court of Appeal to hold that Balogun Ag. C.J. contravened section 60 of the High Court of Law of Lagos State.
(iv) Whether the Court of Appeal was correct in coming to the conclusion that the defendant’s motion “to suspend or set aside the writ of execution and to prevent the bank draft issued to the plaintiff’s Solicitor from being honoured” is simply a variant of the prayer for stay of execution which they had earlier brought in the same Court but was refused.”
(v) Whether the Court of Appeal was correct in saying that Balogun Ag. C.J. “improperly reformulated the prayers on the Defendant’s motion on notice dated 24/7/91”
(vi) Whether Balogun Ag. C.J. had jurisdiction and competence to:-
(a) Suspend the writ of attachment signed by Adeniji on the ex-parte application of the defendants;
(b) Pronounce on whether or not the issue of the said writ of attachment by Adeniji J is null and void or to set it aside or
(c) Pronounce on whether or not the said writ of attachment was irregularly executed.
The respondent/cross-appellant upon being served with the appellant’s brief also filed its brief. Though several issues were set down in the said Brief for the determination of the appeal. I do not consider it necessary to reproduce them in this judgment, this is because I am satisfied from a careful reading of those issues that they are similar with the questions identified in the appellants/cross-respondents’ brief. I will therefore consider this appeal upon the questions raised in the appellants/cross-respondents’ brief.
The questions raised in the appellants’ brief, though set down serially were not argued in that order. However, as questions (i), (ii), (iii), (iv), (v) and (vi)(a) deal with the competence of Balogun Ag. C.J. to hear and determine the ex-parte Motion, and the Motion on Notice filed by the appellants in the High Court of Lagos State. I will set down arguments concerning them together. Thereafter the arguments proffered by the respondents will next be set down. I will now start with the issues as argued in the appellant’s brief.
This means that question (iv) will be first considered, under this, the issue is whether the Court of Appeal was correct in coming to the conclusion that the defendant ‘s motion “to suspend or set aside the writ of execution and to prevent the bank drafts issued to the plaintiffs from being honoured” is simply a variant of the prayer for stay of execution which they had earlier brought in the same Court but was refused.
It seems clear from the argument offered in support of this issue that the premise of the contention being made for the appellants is a desire to maintain the status quo ante.
This is evident from the argument of learned counsel for the appellants at page 5 of the appellants’ brief. On that page, after reference has been made to the prayers of the appellants in the motion on notice, he then submitted that:-
“The prayers seek orders to undo or nullify what the judgment Creditor had done pursuant to the Writ of Fifa issued within 24 hours of the refusal of the defendant’s application for stay pending appeal.”
It is therefore argued for the appellants that the jurisdiction sought by the appellants to undo or nullify what was done by the judgment creditor, is founded upon the judgment of this Court in Governor of Lagos State v. Ojukwu & Anor (1986) 1 NWLR (Pt.18) 621, where Obaseki JSC cited with approval a passage from the judgment of the Supreme Court of the United States of America in Jones v. Securities and Exchange Commission 80 L.ED 1015. And also First African Trust Bank Ltd. v. Ezegbu (1993) 6 NWLR (Pt.297) Page 1.
It is next argued for the appellants that the Motion on Notice dated 24/7/91 filed by the appellants as defendants in the Court of first instance, did not raise any questions relating to the issues which have to be considered before a decision is made whether or not to grant a stay of execution pending appeal. It is also the contention of learned counsel for the appellants that the Court of Appeal may, in the exercise or its concurrent jurisdiction reconsider those same questions that were considered and decided by Adeniji J. Hence, it is the submission of counsel for the appellants in their brief of Argument that the Court of Appeal per Uwaifo JCA. (as he then was) in his lead Judgment fell into serious error when he held Inter alia that the lower Court ceased to have jurisdiction to entertain the Motions filed on 25th July, 1991. It is also further submitted for the appellants that the Court below failed to recognize the true nature and object of their motion dated 24/7/91 Their true object, according to what is stated in the appellants’ brief; “Was to ensure that a” fait accompli” is not foisted on the Court of Appeal when it comes to hearing the defendants’ motion on notice for stay pending appeal, it was not to obtain from the High Court, the very order they were seeking to obtain from the Court of Appeal as the learned Justice of Appeal seems to think.” It is therefore submitted for the appellants that Question IV, be answered in the negative.
It is next argued for the appellants in their brief that Balogun Ag. CJ had jurisdiction and competence to suspend the writ of attachment signed by Adeniji J. on the ex-parte application of the appellants. This is in relation to question vi(a). The first observation made for the appellants is that there has been no appeal against the interim orders made by Balogun Ag. CJ. by the respondent. While it is conceded that the grounds in support of the Preliminary Objection attack the ex-parte order for want of jurisdiction in the judge whom made it, the Notice shows that the objections set out were to be raised at the hearing of the motion on notice. Hence when the motion on Notice was argued, both sides only presented elaborate arguments on the jurisdiction and competence of Balogun Ag. CJ to entertain the Motion on Notice or to have granted the ex-parte order. It must be added that following the arguments, the learned trial judge decided that whilst he had no jurisdiction and competence to decide whether the writ of execution issued by the court was null and void, he did have jurisdiction and competence to decide whether the said writ was irregularly executed by the judgment creditor. It would appear then that the contention being made for the appellants is that the respondent was well aware that their application for stay was pending before the Court of Appeal. This fact, it is claimed, was brought to the knowledge of the respondent by the appellants through the Court Bailiff. Upon that premise, counsel for the appellants submits that ex-parte applications are permissible. In support of that submission, he cited Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) 419 at 442. And it is the further submission of appellants’ counsel that this Court should hold that this is a case where there has been no controversy over the fact that it was necessary to hear the appellants’ application ex-parte. Question VI (a) should therefore be answered in the affirmative. It is next argued for the appellants in their brief of argument that the signing of the Writ of Execution was a ministerial act, Balogun Ag. C.J. had the competence and jurisdiction to set aside the Writ of Execution signed by Adeniji J. In support of this proposition, the following authorities are cited: Administrative Tribunals and the Court, by Dr. D.M.Gordon, Vol. 49, LAW QUARTERLY REVIEW, 1933 at pages 98 and 100. Bakare v. Apena (1986) 4 NWLR (Pt.33) 1 at P.24. it is therefore urged that question V be answered in the negative.
Question (ii) and (iii) of the questions identified in the appellants’ brief of arguments were next argued together. The Question (ii) deals first with whether there is any admissible evidence whatsoever to support the conclusion of the Court below, that Adeniji J. was available to deal with the matter. Question (iii) is concerned with whether it was open (or if it was so open, whether it was proper) for the Court of Appeal to hold that Balogun Ag. C.J. contravened Section 60 of the High Court Law of Lagos State. It if the view of counsel for the appellants that those two questions be answered in the negative. The reasons advanced for coming to that conclusion are as follows; first, there was no evidence before the Court of lead the lower court to hold that Adeniji J. was available to take the two motions at the material time.
The contention made for the appellants that all that was on record before the Court below was that the Long Vacation of the Court commenced on 22nd July, 1991. And that the only vacation Judge at the material time was Justice Akinsanya (Mrs.) It is further submitted for the appellants that official minutes which passed between the Judge or the Chief Judge on the one hand and the Chief Registrar or other officers of the Court on the other, and which did not form part of the documentary evidence tendered in open Court in the course of the trial are not material which the Court of Appeal can look at. To hold otherwise, it is argued would lead to the introduction of fresh evidence by such a party without having to go through the relevant rules of procedure. See The Queen v. Wileox (1961) All NLW (Old Series) or (New serried) 658.
The fist line of argument made for the appellants in their brief of argument was to the effect that the service on the respondent or its counsel did not arise before Balogun Ag. CJ. What happened before Balogun Ag. CJ, it is argued was the pure question of law relating to his jurisdiction. The appellants, it is argued, made no admissions concerning the case made by the respondents in regard to the service of the motion. Upon that premise, and the transcript of the proceedings when the preliminary objection and motion on Notice were argued. Balogun Ag. CJ did not and could not have made or given any decision on the question, whether the appellants’ motion dated 23/7/91 was served. As there was no such decision by Balogun Ag. CJ the Court of Appeal cannot pronounce on it. Moreso, where the respondent did not appeal against it to the Court below. It is therefore the contention of learned counsel for the appellants that the Court below had no jurisdiction to have decided that the respondent’s counsel were not aware of the pendency of the application of the appellants for stay of extention at the time when the Writ was executed or caused to be executed.
The alternative argument canvassed for the appellants on this issue may be put thus – it is contended for the appellants that the Court below in placing reliance on Vaswani v. Sawalakh (1972) 1 All NLR (Pt.2) 483 over looked the portion of that judgment which recognized that the Deputy Sheriff as an agent for service of process in the circumstances. Vide Order II Rule 29 of the Judgment (Enforcement) Rules Cap 189 of the Laws of Nigeria. As the Deputy Sheriff was served the process by the appellants, it is the submission of counsel for the appellants, that it was idle for the respondent to argue that he was not aware of the pendency of the application for stay at the material time.
Another argument raised on behalf of the appellants is that the question in issue in this case is not one which requires personal service. Vide Order 1 sub-Rules (2) and (6). Therefore, it is urged that these rules be not departed from.
It is the further submission of counsel for the appellants which do not require personal service, must not be deemed to have been served on or given to a legal practitioner the moment such document is left at the address where he has his office or Chambers, would create a good deal of mischief. It would open the flood-gate for unmeritorious difficulties being placed in the path of those who have to prove such service.
I will now review the arguments proffered for the respondent in the Brief of Argument filed on its behalf by its learned counsel, K.O.Tinubu Esq. it must be noted that as there was no appearance by counsel at the hearing of the appeal, the appeal was deemed as argued for the respondent on its Brief of Argument. In order to make for clarity, the arguments so proffered for the respondent would be set down and considered in the light of the relevant question raised and argued in the appellants’ brief.
I will therefore begin with the consideration of questions (ii) and (iii) in the appellants brief. The contention of the appellants in respect of those issues is that it should be held that there was no admissible evidence whatsoever to support the conclusion of the Court below that Adeniji J. was available to deal with the matter. And that Balogun Ag.CJ. did not contravene Section 60 of the High Court Law of Lagos State.
It is however the contention of learned contest for the respondent that the Court below was right to have held that there was nothing whatsoever to show that Adeniji J. was not available to deal with this particular business arising out of the said suit. Furthermore, it is argued for the respondent that there was enough material before the Court below to arrive at its conclusion on the availability of Adeniji J. to hear and determine the motions. In this regard, reference was made to the affidavit filed in support of the Notice of Preliminary Objection. It is also the submission of learned counsel for the respondents that the Court below did rely only on matters in the Records to conclude that Adeniji J. was available at the material time to hear and determine the motions. In any event, argued learned counsel for the respondent, Balogun Ag. CJ. acted in breach of S. 60 of the High Court Law of Lagos State, by assigning the motions to himself. In support of the above arguments, reference was made to the following authorities:- Buraimoh v. Bamgbose (1989) 3 NWLR (Part 109) 352 at 363a. Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252 al 262; Onibudo v. Akibu (1982) All NLR 207 at 219; Attorney General of Bendel State v. Aideyan (1989) 4 NWLR (Pt. I 18) 646 at 673 (F-G); Alashe v. Olori-Ilu (1964) All NLR (NS) 383 at 390; Minister of Lands Western Nigeria v. Ambrose Family (1969) All NLR (NS) 49 at 58; Bakare v. Apena (1986) 4 NWLR (Pt.33) I at 24; Rex v. Northumberland Compensation Appeal Tribunal Ex-Parte Shaw (1952)IKB 338; Smalley v. Robey & Co. Ltd (1962) 1 All ER 133.
It is not in dispute that the action that led to the instant appeal was heard and determined by Adeniji J. of the High Court of Lagos State. It is not also in dispute that following the judgment delivered in the matter against the appellants, they sought for an order to stay the execution of the Judgment. That prayer was not granted. Thereupon, the appellants brought two applications before the High Court of Lagos Stale, namely; An Ex-Parte Motion and a Motion on Notice. The simple question that has to be determined is whether it was proper for Balogun Ag. CJ. to take the motions, rather than Adeniji J, who had dealt with the matters that led to the motions aforesaid. I have earlier in this judgment set down the arguments relied upon by the appellants to sustain their view that Balogun Ag. CJ was right to have assigned the case to himself. Their principal reason being that there was no evid