Nwosu North And South International Limited & Anor V. Nigeria International Trading And Industrial Corporation Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

Nwosu North and South International Limited I shall call (“the appellant”) instituted a suit against Nigeria International Trading and Industrial Corporation Limited I shall call (“the respondent”) before the High Court of Justice, Jos, Plateau State on 28th January, 1975 when I was just entering the University. Twenty Nine years have passed and I am delivering judgment in the dispute. Meanwhile Anthony Nwosu died in the course of the proceedings.

He is not alive to know the outcome of the suit. What kind of judicial system is this? There has to be improvement on the justice delivery system in Nigeria. Upon service of the processes the respondent filed a Statement of Defence and a Counter-claim. The appellants’ claim was eventually struck out for lack of prosecution. A Counter-claim being an independent cause of action, the respondent proceeded to trial.

By the time hearing commenced the appellants’ statement of Defence/Joint Defence to the Counter-claim had undergone series of amendments. The last amendment was titled. “Defendants’ Further Amended Joint Defence to Counter-Claim” filed on 30th June, 2006. The respondent also amended her Counter-claim titled “Amended Statement of Defence and Counter-Claim”. The respondent also filed a “Counter-Claimant’s reply to Defence to Counter-Claim.” The respondent called PW1-PW5 to testify on her behalf. The appellant called DW1 and closed the defence. Learned Counsel submitted written addresses. The learned trial Judge delivered judgment in favour of the respondent.

The decision of the Lower Court is under attack in this appeal. The original Notice of Appeal was filed on 1st January, 2010 and another on 21st December, 2010. With time the appellant sought and was granted leave to amend the Notices of Appeal into one Notice of Appeal. The last amended Notice of Appeal is tagged “Further Amended Notice of Appeal” filed on 7th December, 2012 with a deeming order on 5th December, 2012.

Twenty nine grounds of appeal accompany the Further Amended Notice of Appeal from which the learned Counsel distilled eleven issues for determination on behalf of the appellant on 21st February, 2013. The learned Counsel to the respondent also distilled ten issues for determination. When the appeal came up for hearing on 6th May, 2014 Counsel adopted their respective briefs of argument.

APPELLANTS’ ISSUES:

The appellants couched the issues for determination:

“1. Was the learned trial Court, right in discountenancing the evidence of DW1 and holing that it (evidence) of Dw1 cannot stand? (Ground 3).

2. In view of the agreement (Exhibit “2”) between the 1st Appellant and the respondent, and the evidence before the learned trial Court, was the learned trial court right in finding that the Respondent paid the second (2nd) installment of the purchase price of the properties in dispute in a car and a bus notwithstanding the delivery date of the vehicles? (Grounds 1, 6, 8, 9, 10, 11, 12, 15, 16, and 17).
3. Was the learned trial court right in holding that the respondent paid the 3rd installment of the purchase price of the properties in issue with 366 cartons of whisky and that there is no evidence of the return of the cartons of whisky to the respondent? (Grounds 7 and 18).
4. Was learned trial court right in awarding the sum of N34,832,106.07 to the respondent as total net income and interest capitatized thereto from 21st November, 1970 to 31st December, 1994?

(Grounds 23 and 24).

5. Was the learned trial court right in awarding the respondent the sum of N3,248.87 per day from 1st January, 1995 till the date of judgment, and 10% interest thereon from the date of judgment till the final liquidation? (Ground 25).
6. Was the learned trial court right in awarding the sum of ?1845.10 to the respondent who neither claimed nor proved such amount as due to it?

(Ground 27).

7. Was the learned trial court right in awarding the respondent the sum of N350,000 as damages?

(Ground 28).

8. Was the learned trial Judge right when it held that the 2nd appellant was fraudulent and that the 2nd appellant was bound to render account of the hotel business? (Grounds 23 and 24).
9. Was the learned trial court right in law when it held that the agreement between the patties (Exhibit “2”) was valid and subsisting, having not been terminated by either of the parties and that the only remedy available to the 1st appellant was specific performance? (Grounds 4, 5 and 14).
10. Was the learned trial Court right in making an order of specific performance in favour of respondent in this case? (Ground 13 and 19).
11. Did the failure of the learned trial Judge to deliver his judgment within 3 months after the conclusion of evidence and final addresses as prescribed by Section 294(1) of the 1999 Constitution (as amended), occasion a miscarriage of justice and rendered the said judgment a nullity? (Ground 29).”

RESPONDENT:

The respondent’s learned counsel distilled the following issues for determination: