First Bank Of Nigeria Plc. V. T.S.A. Industries Limited (2010)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.

The appellant in this appeal, the First Bank of Nigeria Plc, was the defendant in Suit No. ID/9/98 while the respondent, T.S.A. Industries Limited, was the plaintiff. On the 23rd day of January, 2001, the High Court of Lagos State, Ikeja Division delivered judgment in favour of the plaintiff/respondent as follows: –

(1) Relief No. 1 which is a declaration for fraud is disallowed.

(2) The refund of N422, 372,367 00 to the plaintiff by the defendant is given.

(3) On proper checking of the facts and plaintiff’s counsel admission during his address, the sum equivalent to 1% interest rate from 31/12/92 – December 1996 and 21% interest rate on the amount to be refunded is granted from January 1997 – 5/1/98 and 6% interest rate from 23/1/2001 till the amount is liquidated.

(4) The sum of N3,320 Million is given to the plaintiff being claims for special damages for loss of profit.

(5) Claiming for exemplary damages for torture, stress and so on is refused

(6) Loss claiming for loss of goodwill is refused

(7) Order that judgment be paid within two weeks is refused.

(8) Order that Defence Account with Central Bank be attached is refused.

Vide page 94 of the Vol. 1 Record of appeal.

Dissatisfied with the foregoing judgment, the defendant/appellant filed a Notice of Appeal against the judgment. The appellant, by way of Departure from the Rules, applied to compile the Records of Appeal, while the respondent filed the supplementary record.

On the 11th of April,2001, the appellant having been refused an unconditional stay of the judgment of the High Court of Lagos State brought an application to the Court of Appeal by way of motion on Notice, praying the Court of Appeal for an unconditional stay of execution. The Court of Appeal refused the application on 25th June, 2001. The plaintiff/respondent being dissatisfied with the Ruling of the Court of Appeal for unconditional stay of execution of the judgment of the trial court, appealed to this court on an interlocutory appeal. The court on the 3rd of May, 2004, further varied the conditional stay in the interlocutory appeal, SC/289/2001 to the effect that the judgment sum and the deemed interests be placed in an interest-yielding Account with the Union Bank of Nigeria Plc as against United Bank for Africa Plc as ordered by the Court of Appeal. The interlocutory appeal was dismissed by this court on the 28th of March, 2006. The defendant/appellant however filed an application for extension of time to file brief on the 5th of June 2003; the Court of Appeal struck out the application on the 14th of June, 2005. The Court of Appeal however on the 26th of September, 2005, acting on the application of the respondent, struck out the appeal for failure of the appellant to file its brief of argument under Order 6 Rule 10 of the Court of Appeal Rules 2002. The appellant filed an application on the 1st of June, 2006 urging the Court of Appeal to set aside the order of dismissal made pursuant to Order 6 Rule 10 of the Court of Appeal Rules 2002. Vide pages 54-70 Vol.1 of the Record of Appeal. It is the stand of the appellant that the Record compiled was for the purpose of the interlocutory appeal – the stay of execution with suit No. CA/L/250/2006. The argument of the appellant is that appeal No.CA/L/200/2001 is not the substantive appeal and the Record of proceedings filed by the appellant cannot be relied upon by the Court of Appeal to dismiss the appeal on 26/9/2005. The appellant filed an application against the Ruling of the 26/9/05. In the considered Ruling delivered by the Court on the 11th of December, 2006, the application of the appellant urging the court to set aside its Ruling of the 26/9/05 was refused. The court held that it had no appeal before it as between the parties numbered as CA/L/250/2006. It has become functus officio to re-list, re-enter or revive the appeal. The instant appeal is against the decision of the Court of Appeal delivered on the 11th of December, 2006.

When the appeal was heard on 22nd of April,2010, the appellant relied on the appellant’s brief filed 23/7/07 and the appellant’s Response to preliminary objection and Reply to Respondent’s Brief filed on 11/12/07. The learned counsel for the appellant submitted that this court granted some prayers in its application before it on the 10th of April, 2007. The appellant raised fresh issues and proposed new grounds of appeal – these issues cover grounds 4, 5 and 6 of the grounds of appeal while other grounds raised in the appeal are grounds of law. I intend to come back to this when considering the preliminary objection raised by the respondent in its brief.