Torno Internazionale Nigeria Limited & Anor V. Fsb International Bank Plc (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/644/03 delivered by Honorable Justice A. D. Yahaya (as he then was) on the 26th of March, 2004. The Respondent, as plaintiff, commenced an action against the Appellants, as defendants, under the Undefended List Procedure, with leave of Court, and it prayed for:

i. Payment of the sum of N160,602,564.08 (One Hundred and Sixty Million Six Hundred and Two Thousand Five Hundred and Sixty Four Naira Eight Kobo).

ii. Payment of interest at the rate of 29% per annum on the said sum of N160,602,564.08 from the 31st of August, 2003 up to and including the date of judgment in this suit.

iii. Payment of interest on the judgment debt at the Court rate of 10% per annum until the judgment debt is fully liquidated.

iv. The cost of this action.

The writ and particulars of claim was supported by an affidavit of facts deposed to on the 26th of September, 2003 with exhibits attached. The processes were served on the Appellants and they responded by filing a motion on notice dated the 3rd of November, 2003 praying for an order striking out the suit as an abuse of process of court or alternatively, for an order staying further proceedings in the suit pending the determination of Suit No FHC/L/CS/860/2003 – Torno Internazionale Nigeria Ltd V. FSB International Bank Plc. The motion was supported by an affidavit with exhibits attached. The Appellants also filed a notice of intention to defend dated the 3rd of November 2003 and it was supported by an affidavit of facts with exhibits attached.

The trial Court heard arguments on the Appellants’ motion for striking out the suit or stay of proceedings along with the arguments on the substantive matter. In a considered judgment delivered on the 26th of March, 2004, the lower Court refused the motion of the Appellants and it found in favour of the Respondent in the substantive matter and it entered judgment awarding the Respondent the sum of N160,602,564.08 with interest at the rate of 21% per annum from 31st of August, 2003 until date of judgment and thereafter at the rate of 10% per annum until the judgment debt is liquidated.

The Appellants were dissatisfied with the judgment of the lower Court and they caused a notice of appeal dated the 29th of March, 2004 to be filed against it. The notice of appeal contained four grounds of appeal. The Respondent was also dissatisfied with the portion of the judgment awarding 21% per annum as interest as against the 29% per annum claimed and it caused a notice of cross appeal dated the 21st of June, 2004 to be filed and it contained one ground of appeal.

In arguing the appeal before this Court, the Appellants filed a brief of arguments dated the 20th of February, 2006 consisting of eleven pages. The brief was settled by Mr. T. E. Williams SAN of Chief Rotimi Williams Chambers and it was deemed properly filed by this Court on the 17th of May, 2006. The Respondent filed a brief of arguments comprising both the arguments on the main appeal of the Appellants and on its cross appeal and it consisted of fifteen pages and was dated the 2nd of August, 2006.

The brief was settled by Mr. Emmanuel J. J. Toto SAN of Emmanuel Toro & Co and it was deemed properly filed on the 2nd of November, 2006. At the hearing of the appeal on the 11th of April, 2013, Counsel to the parties were absent from Court despite service of hearing notice on them and their respective briefs of arguments were deemed argued under the provisions of Order 18 Rule 9(4) of the Court of Appeal Rules 2011.

This Court will commence the consideration of this matter from the appeal of the Appellants. Counsel to the Appellants distilled four issues for determination in the Appellants’ brief of arguments. These were:

i. Whether there was credible evidence before the court to show that an earlier suit on the same subject matter was pending at the Federal High Court, Lagos.

ii. Whether the court below was right in holding that the suit before the Federal High Court in Lagos was not properly issued in accordance with Order 6 Rule 8 of the Federal High Court Rules.