First Bank Of Nigeria, Plc V. I.A.S. Cargo Airlines Nigeria Ltd (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

I.M.M. SAULAWA, J.C.A. (Delivering the Leading Judgment)

The notice of appeal for the instant appeal was filed on October 26, 2005 in the registry of the Lagos State High Court, Lagos Judicial Division. The appeal is a fall-out of the ruling of the court below, which was delivered by the Hon. Justice A.A. Phillips on the date in question in Suit No. ID/953/04.By the said ruling, the court below entered a judgment, in limine, against the Appellant in the sum of N7,581,213.94 at 21% interest per annum from 13/12/02 to 26/10/05, and 6% until the judgment is fully liquidated.

FACTS AND CIRCUMSTANCES LEADING TO THE APPEAL:

It’s discernible from the record of appeal, that on April 28, 2004 the Respondent filed in the court below both a writ of summons and a 24 paragraphed statement of claim seeking, against the Appellant, the following reliefs:

1. The sum of N8,435,363.88 representing the outstanding balance due to the Plaintiff vide courier services rendered for the period September to October 2002 respectively.Pursuant to the Courier Service contract of 1st of February, 1991 with interest at the rate of 21% per annum form the 13 December, 2002 until Judgment and thereafter in the rate of 6% per annum until the judgment sum is paid.
2. The sum of N2 Million representing general for breach of contract vide non-payment of the outstanding sum of N8,435,363.88 Pursuant to the Courier Service Contract.
3. An order compelling the defendant in full and unconditional compliance with clause 6 (II) of the Courier Service Contract to pay and or remit to the Plaintiff the outstanding balance of N8,435,363.88 due under the Courier Service Contract forthwith.
4. Cost of this Action.

The Appellant entered an appearance and filed processes, including the statement of defence thereof, in defence of the suit.By virtue of paragraphs 3 & 18 of the said statement of defence, the Appellant admitted the Respondent’s claim of N7, 581,213.94.He also pleaded a set-off for N24,162,543.76 against the Respondent.

On September 13, 2004, the Respondent filed a motion on notice thereby seeking the following orders:

1. An order entering final judgment against the Defendant/Respondent as per the Claimant/Applicant’s claims in this Suit.

ALTERNATIVELY

2. An order entering judgment for, the sum of N7,581,213.94 against the Defendant/Respondent vide admission contained in paragraph 3 and 18 of the Defendant/Respondent’s statement of Defence.
3. And for such other orders etc.

In reaction to the said motion, the Appellant filed a counter affidavit on 12/9/05, deposed to by one Ugo Uzoukwu Esq; a legal practitioner and staff of the Appellant, to the effect, inter alia, that the Respondent had no cause of action against the Appellant. Most particularly, it was deposed to in paragraph 13 of the said counter affidavit thus:

13. That the claimant having not refunded the Defendant’s N24,162,543.67 defrauded the Defendant, the Defendant decided to set off claimant’s N7,581,213.94 being sum owed claimant for courier services rendered to the Defendant for the period of September and October, 2002 in partial defrayal of the N24,162,543.67 loss sustained by the Defendant following the suppression of Lagos International Trade Fair Branch, clearing cheque No.03889 dated 13th March, 2001 forged by claimant’s staff in connivance and collusion with some fraudsters.

The motion in question eventually proceeded to trial. At the conclusion of which, the court below delivered the vexed ruling on October 26, 2005, to the following effect –

In conclusion therefore, I think it is appropriate to grant the alternate prayer of the claims before the court and judgment is accordingly entered in this suit against the Defendant in the sum of N7,581,213.94 (Seven Million, Five Hundred and Eighty One Thousand, Two Hundred and Thirteen Naira and Ninety Four Kobo) interest on the said sum shall be 21% per annum form 13/12/02 until today and hereafter at the rate of 6% per annum until the said judgment debt is fully liquidated.

As alluded to above, the Appellant was dissatisfied with the ruling of the court below in question.Thus, resulting in filing the instant appeal.The record of appeal was deemed to have been compiled and transmitted to this court on 22/02/10.That was the very day on which the Appellant’s application filed on 08/4/09, for an extension of time to compile and transmit the record, was duly granted.

On the said 22/02/10, the Appellant was equally granted leave to amend the original notice of appeal thereof. The Appellant’s amended ground of appeal was filed on 03/3/10. Both counsel filed and served their respective briefs of argument. The Appellant’s brief was filed on 25/3/10, within the 45 days accorded thereto by order 17 Rule 2 of the defunct Court of Appeal Rules, 2007 (which is in pari materia with order 18 Rule 2 of the Court of Appeal Rules, 2011). On the other hand, the Respondent filed the brief thereof on 13/4/10 in compliance with order 17 Rule 4 (1) of the Court of Appeal Rules, 2007 (which is in pari materia with order 18 Rules 4(1) of the Court of Appeal Rules, 2011).

On 18/4/2011, when the appeal last came up for hearing, both learned counsel adopted the submissions contained in their respective briefs of argument. Thus, resulting in reserving the appeal for delivery of judgment.

SUBMISSIONS OF LEARNED COUNSEL: