Farasco Nigeria Ltd & Anor. V. Peterson Zochonis Industries Plc (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment)

The Appellants have jointly appealed against the judgment of Othman J., of the High Court of Justice, Kaduna, delivered on the 18th day of March , 2003 wherein the learned trial judge; in an undefended List proceeding supported by an affidavit coupled with documentary exhibits, entered judgment in favour of the Respondent on the ground that the Notice of Intention to defend the suit was filed out of time and moreover, no defence on the merit was disclosed by the Appellants/Defendants.

The learned trial judge held that:

“…The defendants did not file their notice of intention to defend within time. Even assuming the defendant had filed the notice within time. The affidavit annexed did not in any way disclose any defence at all talk less on merit. It will not be proper for the defendant to continue to postpone the date of meeting his obligation he should be prepared to face that Court-are always enjoined to refuse to allow itself to be used as vehicle of running away from meeting obligations on time and as when” due, I therefore hereby refuse to transfer the matter into the General Cause list. I will instead enter judgment in favour of the plaintiff against the defendant in the-balance sum of N356,194.62 plus 21% interest P.A. from 12-03-2001 till today and at 10% P.A. from today until the whole judgment sum is fully and finally liquidated.”

The Appellants filed seven grounds of Appeal on 27th March, 2003 with a brief of argument on 17th day of March, 2005 following leave granted them by this Court on 14th day of March 2005.

On 27th day of March, 2009 the Appellants sought leave to amend their Joint Brief of argument. This was granted on 27-03-2009.

The Appellant’s learned counsel abandoned Grounds 1, 4, 5, 6 and 7 but gave notice to argue original Grounds 2 and 3 only in the Notice of appeal. The said grounds 1, 4, 5, 6 and 7 having been abandoned in the brief are struck out. The Appellants formulated two issues for determination by this court based on Grounds 2 and 3 of the original Grounds of Appeal.

ISSUE ONE:

Whether from the premises of fact the trial Court has basis for awarding prejudgment 21% of interest on the sum claimed.

ISSUE TWO:

Whether the trial Court was right in awarding post judgment 10% interest to the Respondent when there was neither an application for time within which to comply with the judgment or to pay by installments.

On 25-10-2006 the Respondent sought leave for time to be extended to file brief of argument. Time was extended and the Respondent was deemed to have filed brief of argument on 31-10-2006.

RESPONDENT’S ISSUE FOR DETERMINATION:

1. Whether the trial court was right in rejecting the notice of intention to defend filed by Appellants.
2. Whether the trial court was right in awarding post-judgment interests in the circumstance of the case.

FACTS OF THE CASE: