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  • Pavex Co. (Nig.) Ltd v. I.B.W.A. Ltd
  • 26
  • 2000-11-27
  • ₦ 200
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Pavex Co. (Nig.) Ltd v. I.B.W.A. Ltd

PAVEX INT. COM. (NIG.) LTD.

V

  1. INTERNATIONAL BANK FOR WEST AFRICA

LTD. (now  known as AFRIBANK LTD.)

  1. H. U EZEMA. S.A.G.M. IBWA (Lagos & West)

SUPREME COURT OF NIGERIA

ADOLPHUS GODWIN KARIBI-WHYTE,  JSC ( Presided )

MICHAEL EKUNDAYO OGUNDARE,  JSC

ANTHONY IKECHUKWU IGUH,  JSC

AKINTOLA OLUFEMI EJIWUNMI,  JSC ( Read the Lead Judgment )

EMMANUEL OLAYINKA AYOOLA,  JSC

SC. 78/1994

FRIDAY, 7TH APRIL, 2000

APPEAL - Appeal to Court of Appeal - When deemed to be brought - Order 3  rule 5, Court of Appeal Rules, 1981 (as amended )

APPEAL - Appeal to the Supreme Court - Whether operates as a stay of execution - Powers of Supreme Court in respect thereof - Section 24 , Supreme Court Act

APPEAL - Court of Appeal - Powers of - How exercised - Section 16, Court of Appeal Act and Order 3 rule 23, Court of Appeal Rules

APPEAL - Court of Appeal - Powers of regarding orders of trial court Where trial court lacks jurisdiction to make orders - Whether can be varied by Court of Appeal

APPEAL - Evaluation of evidence by appellate court - Duty of - How discharged

COURT - Court of Appeal - Powers of regarding orders of trial court Where trial court lacks jurisdiction to make orders - Whether can be varied by Court of Appeal

COURT - Jurisdiction of court - Jurisdiction invoked to undo what has been done - Jurisdiction invoked to grant stay of execution Difference between - Respective  considerations therefor

EVIDENCE - Evaluation of evidence by appellate court - Duty of - How discharged

JUDGMENT AND ORDER - Judgment given without jurisdiction - How treated

JUDGMENT AND ORDER - Judgment of trial court - Where given without jurisdiction - Whether Court of Appeal empowered to vary

JURISDICTION - Jurisdiction of court - Jurisdiction invoked to undo what has been done - Jurisdiction invoked to grant stay of execution Difference between - Respective  considerations therefor

PRACTICE AND PROCEDURE - Application - Application to the Supreme Court or Court of Appeal - Where made first - Procedure thereafter -  Order 7, rule 37, Supreme Court Rules considered

PRACTICE AND PROCEDURE - Application - Where refused by lower court - Course available to applicant - Order 3 rule 3, Court of Appeal Rules, 1981 (as amended)

PRACTICE AND PROCEDURE - Applications - Bindingness of

PRACTICE AND PROCEDURE - Error of court - Whether every error will result in appeal being allowed

PRACTICE AND PROCEDURE - Proceedings - Requirement that proceedings be heard and disposed of by single Judge under section 60 , High Court Law of Lagos State - Limit thereto

PRACTICE AND PROCEDURE - Writ of summons - Bindingness of

PRACTICE AND PROCEDURE - Issues need for judgment to be confined thereto - Whether competent for court to suo motu raise

PRACTICE AND PROCEDURE -Service of court process - Statutory agent therefor - Who is

Issues:

  1. Whether it was proper for the Court of Appeal to hold that Balogun, Ag. CJ., contravened section 60 of the High Court Law of Lagos State.
  2. Whether the Court of Appeal had jurisdiction to make the orders made by it in its decision after hearing the appeal before it.

Facts:

In the High Court of Lagos State, Adeniji, J., awarded monetary judgment against the appellants.  Soon, after judgment was delivered, the appellant filed an appeal to the Court of Appeal.  It also applied to Adeniji J., for a stay of execution of the judgment pending the determination of the appeal.  The application was refused, and a writ of execution was thereafter signed by the trial Judge.

Following the refusal of the application for stay of execution by Adeniji, J., the appellant filed motions on notice and ex-parte before the Lagos High Court seeking inter alia that the writ of execution be set aside.

The motion ex-parte came up for hearing before Balogun Ag. CJ., as he had assigned it to himself for hearing.  He then suspended the writ of execution.

The respondent, who was the plaintiff, filed a notice of preliminary objection to the Acting Chief Judge’s order.  The Acting Chief Judge dismissed the application, whereupon the respondent appealed to the Court of Appeal contending that Balogun, Ag. C.J., lacked jurisdiction to pronounce on the writ issued by Adeniji, J.

The Court of Appeal allowed the appeal and declared the ex parte order made by Balogun Ag. CJ., null and void.  It consequently set the exparte order aside and ordered that the execution should stand.

The appellants appealed to the Supreme Court, which, in resolving the appeal, considered section 60 of the High Court Law of Lagos State, which provides:

“60. Subject to the provisions of this or any other enactment and subject to any rules of court, all civil and criminal causes or matters and all proceedings in the High Court and all business arising thereat shall so far as is practicable and convenient be tried, heard and disposed by a single Judge, and all proceedings in an action subsequent to the hearing or trial, down to and including the final judgment or order shall so far as is practicable and convenient be taken before the Judge before

whom the trial or hearing took place.”