Nitel Trustees Limited & Anor V. Syndicated Investment Holdings Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering The Leading Judgment)

This is a sister appeal to CA/L/349/2007 just now delivered. The Appellants who were the defendants in the lower court and in whose favour judgment was delivered aside from the interest awarded the Respondent has appealed against that part of the decision of Dada J awarding the Respondent 21% interest on the 10% deposit held by the Appellants for over 10 months.

The 2nd Appellant is the Court appointed liquidator of the 1st Appellant and on behalf of the 1st Appellant placed an advert in This Day Newspaper of Wednesday, May 2nd, 2007 for the sale of the 1st Appellant’s non-core properties all over Nigeria including the subject matter of this suit No 44 Gerald Road, Ikoyi, Lagos (hereinafter referred to as the property).

The Respondent herein bided for the property and paid the sum of N36.1 Million being 10% of the total bid sum of N361,000,000.00 (Three Hundred and Sixty One Million Naira). A letter of offer dated 20th June, 2007 was issued to it by the Defendants. The Respondent accepted the offer.

The Appellant claiming that the Respondent failed to fulfil the conditions stipulated in the advertisement and letter of offer dated 20th June, 2007 sold the property to another company even before the time allowed the Respondent to pay the balance had expired.

The said 10% deposit was refunded to the Respondent vide a Sterling Bank Cheque dated 19th May, 2008 and same was received by the Respondent’s representative.

The Lower Court in its judgment held that there was no binding contract between the parties as the Respondent failed to comply with the terms of offer and failed to pay the balance of the purchase price. It awarded 21% per annum pre judgment interest from 6 July, 2007 to 19 May, 2008 on the N36.1 Million and 10% post judgment interest from 22 November, 2012 until the judgment debt is paid.

The Respondent dissatisfied with the judgment filed a Notice of Appeal dated 18 February, 2013 (Appeal No: CA/L/349/2013) against the decision of the lower court rejecting its claim for damages for breach of contract to sell and transfer the property to the Respondent. (Judgment already delivered in favour of the Respondent.) The Appellant also by a notice of appeal dated 18/2/13 filed this appeal on 19th of February, 2013 against the award of 21% pre judgment interest. Out of the two grounds of appeal in the notice, the appellant in their brief of argument formulated a sole issue for determination viz:

Whether the learned trial judge was right in awarding 21% interest to the respondent.

The Respondent’s counsel on 17/2/14 filed a notice of preliminary objection which was argued in his brief as issue 1 and he adopted the appellant’s sole issue as his issue 2.

PRELIMINARY OBJECTION:

The contention of learned senior counsel for the Respondent in the preliminary objection is that the Appellants’ appeal is incompetent and constitutes a flagrant abuse of the process of this court. He argued that instead of filing a cross appeal, the Appellants filed a second appeal against the lower court’s decision on 19th February, 2013, when as at that date the Respondent’s appeal (Appeal No: CA/L/349/2013) was already pending. He further submitted that it is settled law that where a Respondent to a pending appeal seeks an order setting aside a part of the decision of the lower court which does not favour him, he should do so by way of a cross appeal because it is on those findings that any decision in the appeal one way or another can correctly be made. Learned senior counsel cited the cases of Eliochim (Nig) Ltd v. Mbadiwe (1986) 1 NWLR (Pt.14) 47 at 72F; Smithkline Beecham Plc v Farmex Ltd (2010) 1 NWLR (Pt.1175) 285 at 304G.

It was further submitted that a cross-appeal presupposes that there is an error in the judgment given in favour of a Respondent which prevents him from fully enjoying the benefit of the victory and in order properly to challenge the aspect of the decision that he is unhappy with, the Respondent must file a cross-appeal: Obasanjo v Buhari [2003] 17 NWLR (Pt 850) 510 at 554 E-F.

The learned SAN argued that there can be no “second Appeal” by a party in whose favour a judgment was given in the lower court. Where the supposed cross-appellant (i.e. the Appellants in this appeal) fails to file a cross-appeal, he would be precluded from playing the role of an appellant in another appeal as the Appellants have done in this appeal or to raise any issue outside of the notice of appeal filed by the Respondent (as Appellant in Appeal No: CA/L/349/2013): Shodeinde v Lawal [2012] 9 NWLR (Pt.1304) 38 at 43F; Obasanjo v Buhari [supra] 554G.