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CaseLaw

IBWA Ltd V. Pavex Int’l Co (2000) CLR 6(m) (CA)

Brief

  • - Concurrent finding of fact
  • - S.16 Court of appeal act

Facts

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 parties against the appellants in the following terms: -

  • "i.
    An order of mandatory injunction to compel the Defendants to transfer to the Plaintiffs suppliers, MALT ERIESFRANCO SUISSE OF FRANCE, though B.T.A.O. Paris, the sum of DM. 113,348.00 (One hundred and thirteen thousand, three hundred and forty either Dutch Marks), being the equivalent of N248, 028.72, (Two hundred and forty eight thousand, and twenty eight Naira, Seventy five kobo) on the SEEM/FEM Exchange rate as at 19th August, 1987 lodged with the Defendants on account of Bill B/002/00005/87 for payment for 250 tons Pilson Barley Marley 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, which the said Naira equivalent was lodged till date 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 of 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 thereafter 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 two applications (one exparte, the other, motion on notice) before the Lagos High Court praying for the following reliefs in the motion of notice:

  • "1.
    An order that all the Writs of 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;
  • 2.
    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 of the aforesaid be returned to the applicants or alternatively that the first defendant/applicant be at liberty not to give credit therefor.

In the motion Ex parte they sought for the following reliefs:

  • 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.
  • 2.
    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 the 25th day of July 1991 Balogun Ag. C. J. of Lagos State assigned the exparte application to himself, heard and granted it, though the Registrar had minuted to him that Adeniyi J. heard and determined the substantive matter. After receiving service of the ex parte order and the motion of notice, the respondents filed a preliminary objection contending, inter alia, that the Ag. Chief Judge lacked competence and jurisdiction to have entertained the exparte motion in so far as it sought to review, set aside or vary the order, the execution thereof of a competent court with concurrent and co-ordinate jurisdiction.

Arguments on the motion on notice and the preliminary objection were taken together. In his ruling the Acting Chief Judge held that he lacks jurisdiction to pronounce on whether or not the writ of attachment signed and issued by Adeniji, J. was null and void or set it aside but has jurisdiction and competence to pronounce on whether or not the writ of attachment was irregularly executed by the judgment creditor i.e. the respondent herein.

Respondent, dissatisfied appealed to the Court of Appeal which allowed the appeal and upheld the objection to jurisdiction of Balogun, Ag. C.J. The Court set aside his ruling, went on to hold that the interference with the execution carried out on 24th July 1991 was unlawful and ordered that the executive should stand and that credit should be given in full by the 1st appellant to the two bank drafts.

An appeal went to the Supreme Court.

Issues

  • (i)
    Whether the Court of Appeal had jurisdiction to decide that the...
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