IGBADOO & ANOR v. KEYSTONE BANK LTD (2021)

IGBADOO & ANOR v. KEYSTONE BANK LTD

(2021)LCN/14943(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, January 21, 2021

CA/MK/146/2019

RATIO

JUDGMENT: MEANING OF AN OBITER DICTUM

Where in the course of determining a case or matter a judge expresses an opinion which does not decide the live issues in the case or matter, it is said to be an obiter dictum. See Atiba Iyalamu Savings And Loans Ltd V Suberu (2018) 13 NWLR (Pt. 1637)387, 401. PER JOSEPH EYO EKANEM, J.C.A.

WORDS AND PHRASES: MEANING OF THE WORD “REVIEW”

The word “review” is a simple English word which means:
“An examination of something with the intention of changing it if necessary”-Oxford Advanced Learner’s Dictionary 7th Ed. 1253.” PER JOSEPH EYO EKANEM, J.C.A.
WORDS AND PHRASES: MEANING OF INTERPRET

Again, the word “interpret” means,
“To explain the meaning of something” – See Oxford Advanced Learner’s Dictionary supra page 781.
The lower Court did not set out to explain the meaning of the judgment but to find out its exact terms to ensure that it did not enforce what was not awarded.
The interpretation given to the judgment of the lower Court by appellants’ counsel amounts to stretching it to a breaking point. In the case of Dasuki V FRN (2018)10 NWLR (Pt. 1627) 320, 337, it was held that a party is not permitted to read into an order of Court what the order does not in fact contain. See also Shugaba V UBN Plc (1999) LPELR 3068 (SC). PER JOSEPH EYO EKANEM, J.C.A.

COURTS: DUTY OF COURTS TO PRONOUNCE ON ISSUES BEFORE IT

The law is well established that Courts particularly non-final Courts are required to consider and pronounce on all issues properly placed before them. Failure to do so may result in a miscarriage of justice which renders the judgment of the Court liable to be set aside. See C. N. Okpala & Sons Ltd V N.B. Plc (2017) LPELR-43826 (SC) and Honey Flour Mills Plc V Ecobank (Nig.) Ltd (2019) 2 NWLR (Pt. 1655) 55. PER JOSEPH EYO EKANEM, J.C.A.

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

PHILIP SHAGBA IGBADOO MRS LADI GRACE ACKA APPELANT(S)

And

KEYSTONE BANK LIMITED RESPONDENT(S)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the National Industrial Court holden at Makurdi (the lower Court) delivered on 19th July, 2019 in suit no. NICN/MKD/20M/2018 by S.H. Danjidda, J. In the ruling, the lower Court dismissed the application of the appellants filed before it for the reliefs set out therein which shall be quoted in the course of this judgment. Aggrieved by the decision, the appellants appealed to this Court by means of a notice of appeal filed on 1/8/2019 which bears eight grounds of appeal. By the leave of this Court, the notice of appeal was amended to incorporate fourteen grounds of appeal

The facts of the case leading to this appeal are that the appellants as claimants sued the respondents as defendants at the lower Court for monetary reliefs as follows:
“1. The 1st claimant the total sum of N33,362,014.10 as per paragraph 13 hereof plus interest thereon at the rate of 50% from the date of JUDGMENT until same is finally liquidated
2. The 2nd claimant the total sum of N41,739,022.90 as per paragraph 14 hereof plus interest

thereon at the rate of 50% from the date of judgment until same is liquidated.
3. The plaintiffs each claims the sum of N10,000,000.00 as general damages for breach of contract and financial pains and lost, that is the total of N20,000,000.00
4. The claimant claims such other consequential and or equitable relief as the Court may deem fit to make in the circumstance of this case.”

At the end of the hearing and after taking addresses, the lower Court held that the appellants had “…proved their case and are entitled to their claims…” It then proceeded to enter judgment for the appellants in the following terms:
“1. An order directing the defendant to pay the 1st claimant the sum of N33,362,014.10 as claimed in paragraph 13 of claimants’ statement of claim.
2. An order directing the defendant to pay to the 2nd claimant the sum of N42,729,022.90 as claimed in paragraph 4 of claimants’ statement of claim.
3. An order directing the defendant to pay each of the claimants the sum of N100,000,000 as general damages for breach of contract and financial pain and loss suffer as a result.
Judgment is entered according. (sic)” <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The attempt by the appellants to enforce the judgment by means of a garnishee proceeding met a disastrous end in this Court in appeal No. CA/MK/187/2017 in which the garnishee proceeding including the garnishee order absolute granted by the lower Court was set aside for being a nullity. Subsequently, this Court in Appeal No. CA/MK/54/2015 dismissed the appeal of the respondent against the judgment of the lower Court and affirmed the same. The respondent thereafter paid the sum of N78,091,037.00 in apparent satisfaction of the judgment debt. The appellants were not satisfied with the payment and therefore applied to the lower Court by way of a motion on notice filed on 7/1/2019 for the following reliefs:
“1. An order of the Court granting leave to the Judgment Creditors/Applicants to issue writ of execution attaching/seizing the immovable properties of the judgment Debtor/Respondent herein mention for the purpose of being sold to satisfy the balance of the judgment debt plus accrued interest in the sum of N358,583,314.08 (Three Hundred and Fifty eight Million Naira, Five Hundred and Eighty three

Thousand, Three Hundred and Fourteen Naira, Eight Kobo) except the balance of the judgment debt is paid into the counsel’s client’ account No. 4011064766 with Fidelity Bank Plc in the title OKPALE, S. OJIKPA & ASSOCIATES (CLIENTS ACCOUNT).
2. An order attaching/seizing the immovable properties of the judgment debtor/respondent herein mentioned for the purpose of being sold to satisfy the balance of the judgment debt plus accrued interest in the sum of N358,583,314.08 (Three Hundred and Fifty eight Million, Five Hundred and Eighty three Thousand, Three Hundred and Fourteen Naira, Eight Kobo) except the balance of the judgment debt is paid into the counsel’s client’s account No. 4011064766 with Fidelity Bank Plc in the title OKPALE, S. OJIKPA & ASSOCIATES (CLIENT’S ACCOUNT). The properties are …
3. An order that except the balance of the judgment debt is paid and/or consequent upon any act on the part of the respondent occasioning the further delay, the balance of the judgment debt shall continue to attract interest at the rate of 50% from date of the order until same is fully paid.

ALTERNATIVELY, TO PRAYERS 1 AND 2
4. An order that the 50% post judgment interest claimed by the judgment creditors/applicants in suit No. NICN/MKD/01/2015 which claim along with other claims the Court held the judgment creditors/applicants “… have proved… and are entitled to… and dare to so hold” in the judgment delivered on the 1st day of May, 2015 be calculated and paid on the judgment debt in the suit now amounting to the total sum of N358,583,314.08 … until the whole amount is finally paid.
5. An order that except the above sum now outstanding is paid to the judgment creditors/applicants vide their counsel’s client’s account No. 4011064766 with Fidelity Bank Plc in the title OKPALE, S. OJIKPA & ASSOCIATES (CLIENT’S ACCOUNT) within seven (7) days of the order, the properties in paragraph 2 hereof shall be forthwith attached and be sold to satisfy the debt plus the interest that shall accrue at 50% plus the cost of the execution as shall be fixed by the Court.
6. And for such further order or other orders the Honourable Court may deem fit to make in the circumstances of this case.”

As earlier stated, the lower Court dismissed the application on the ground that post-judgment interest of 50% was excluded or refused by it in the judgment sought to be enforced.

At the hearing of the appeal on 19/11/2020, S.O. Okpale, Esq., for the appellants adopted and relied on appellants’ brief of argument filed on 21/5/2020 but deemed duly filed and served on 14/9/2020 in urging the Court to allow the appeal. M.O. Ozueh, Esq., for the respondent adopted and relied on respondent’s brief of argument filed on 21/5/2020 but deemed filed on 14/9/2020 in urging the Court to dismiss the appeal.

In the appellants’ brief of argument, the following issues have been distilled from the fourteen grounds of appeal for the determination of the appeal:
a. Whether the learned trial judge was right to subject the judgment of his learned brother in suit No. NICN/MKD/02/2013 which judgment was affirmed by this Court and/or the judgments/decisions of this Honourable Court in appeals No. CA/MK/187/2017 and CA/MK/54/2015 to reviews and/or interpretations with respect to the issue of the post judgment interest of 50% rather

than enforcing the judgments with respect to 50% post judgment interest. (GROUNDS 1 and 2).
b. Whether the learned trial Judge erred in law and thereby breached the appellants’ right to fair hearing, when it failed, neglected and/or refused to consider and determine all the issues and cases validly placed before her by the appellants, thereby rendering its decision in the matter liable to be set aside. (GROUNDS 2 and 9).
c. Whether in all the circumstances of the instant appeal, the learned trial judge was right to hold that the lower Court was silent on the issue of the 50% post judgment interest claimed, held proved and entitled to in the judgment sought to be enforced and/or that the post judgment interest of 50% was either excluded and/or refused. (GROUNDS 4, 5, 6, 8, 10, 13 and 14).
d. Whether the learned trial Court was right in its failure, neglect and/or refusal to consider, pronounce and/or determine the alternative prayer of the appellants praying the Court to make the 50% post judgment interest claimed, held proved and entitled to, part of the judgment there been an apparent omission on the part of the Court to specifically

list/enumerate same as part of the judgment subsequently after same was awarded. (GROUND 11).
e. Whether in the light of unchallenged evidence placed before the learned trial judge, same was wrong when it failed, neglected and/or refused to grant the prayers of the appellants attaching the immovable properties of the respondent for the purpose of satisfying/or ensuring the payment of the balance of the judgment debt of N358,583,314.089. (GROUND 7)”

Counsel for the respondent, on the other hand, distilled the following issues for the determination of the appeal:
a. Whether the lower Court was right in refusing to grant leave to the appellants to issue a writ of execution attaching/seizing the immovable properties of the respondent for the purpose of being sold to satisfy the judgment in suit No NICN/MK/02/2013 in view of the fact that the respondent has paid the appellants the judgment sum as ordered by the trial Court in its judgment and indeed whether there is a judgment existing to be enforced by the appellants in suit No NICN/MK/02/2013 as at the time the application was made before the lower Court. (Distilled from grounds 1, 4, 5, 6,

8, 12, 13 and 14 of the amended notice and grounds of appeal)
b. Whether the lower Court was right in refusing to grant the application of the appellants for leave to enforce the judgment of the National Industrial Court in suit No NICN/MK/02/2013 on the grounds that the trial Court did not award any post judgment interest which the appellants could enforce and indeed whether the application of the appellants for leave to enforce a nonexistent judgment amounted to an abuse of Court and judicial process. (Distilled from Grounds 7 and 11 of the amended notice of grounds of appeal).
c. Whether the learned trial judge granted the appellants fair hearing before dismissing their application. (formulated from grounds 2, 3 and 9 of the amended notice and grounds of appeal).

In arguing his issue i, appellants’ counsel stated that in the light of the finding of the lower Court that appellants had proved their case and were entitled to their claims, which included the 50% post-judgment interest as well as the orders granted by the lower Court in the initial failed attempt to enforce the judgment and the statements of this Court in appeals

No. CA/MKD/187/2017 and CA/MK/54/2015, the learned trial judge erred in proceeding to interpret and/or review the judgment of his learned brother and indeed the judgment of this Court. This he said the learned trial judge did by reproducing portions of the appellants’ claims and the judgment and holding that the judgment was silent on the issue of 50% post-judgment interest or that the same was refused or excluded based on the canon of interpretation that the express mention of specific things in any enactment or document means the express exclusion of things not so mentioned. He submitted that it is the law that no Court has the jurisdiction to interpret or review the judgment of a Court of co-ordinate or superior jurisdiction. He posited that in the light of the decisions of this Court, what was to be enforced by the lower Court was not only its judgment but also the judgment that had transmuted to the judgment of this Court, which he said affirmed that 50% post-judgment interest had been awarded. He contended that the lower Court had no business with the judgment other than to enforce the same with respect to the post-judgment interest.

As regards issue ii, counsel submitted that it is trite that all issues validly raised and canvassed by a party to a suit must be considered and determined by the Court and that failure to do so amounts to a violation of the party’s right to fair hearing, rendering any decision arrived at liable to be set aside. Counsel set out the issues canvassed by him before the lower Court which, according to him, were ignored by the lower Court, to wit; incompetence of the counter-affidavit, this Court’s decision and authorities of the Supreme Court as well as this Court together with the alternative prayer to correct the omission of the lower Court in not including the post-judgment interest in the enumeration of reliefs granted by it.

In regard to issue iii, counsel again contended that by holding that “… the claimants have proved their case and are entitled to their claims and I dare to so hold”, the lower Court granted all their reliefs including 50% post-judgment interest. He cited and relied on Ekiti Local Government Area V Aje Printing (Nig) Ltd (2009) 4 NWLR (Pt.229)304 among other cases to support his contention. He also

invoked Owners of M/V Gongola Hope V Smurfit Case Nig. Ltd (2007) All FWLR (Pt 388) 1005 and Nigeria General Superintendence Co. Ltd v NPA (1990) 1 NWLR (PT 129) 741 on the implication of the lower Court’s statement above. He posited that the judgment of a Court must be read harmoniously and that it is not a document that can be the subject of interpretation. He referred to Order 21 Rule 4 of the National Industrial Court Rules 2007 and stated that post-judgment interest is regulated by its provision and as such the Court having awarded same along with other claims, it needed not enumerate same along with other claims before 50% judgment interest accrued. He placed reliance on Berliet Nig. Ltd V Kachalla (1995) LPELR among other cases.

Arguing his issue iv, counsel submitted that the rules allow the Court to award post-judgment interest of not less than 10%, which is the minimum rate and that the failure of the lower Court to specifically mention the award was an accidental slip or omission, and that it could be remedied by an application to correct the omission or for the award of the same irrespective of whether the judgment [debt] has been paid. He therefore

urged the Court to act pursuant to Section 15 of the Court of Appeal Act to consider and determine the alternative prayer with a view to granting the same. He added that post-judgment interest is incidental to the judgment entered.

With respect to issue v, counsel submitted that appellant had satisfied the requirements of the law for the grant of the prayer for attachment of respondent’s immovable properties.

Respondent’s counsel, in arguing his issue 1, submitted that the lower Court was right in refusing to grant the appellants leave to issue a writ of attachment because the respondent had paid the judgment debt as ordered by the Court. He stated that the lower Court awarded the sum of N78,091,037.00 without any post-judgment interest. Counsel further submitted that the lower Court did not interpret or review the judgment but rather made clarification as to the orders made in the judgment. He emphasized that the lower Court did not award 50% post-judgment interest and that this Court did not affirm the alleged interest.

In regard to his issue 2, counsel stated that the claim of the appellants for interest did not indicate whether

the 50% interest claimed was daily, weekly or per annum. He characterized the prayer as being ambiguous and not grantable. He noted that the appellants did not demonstrate how they calculated the alleged interest to arrive at what he described as a “ridiculous sum.” Counsel contended that the appellants are only relying on an erroneous slip or passive comment of this Court to assert that 50% post-judgment interest was awarded. He emphasized that this Court did not award post-judgment interest and therefore the appellants are not permitted to read into the judgment what it does not contain. He placed reliance on Shugaba V UBN (1999) LPELR-3068 (SC) to buttress his position. He posited that the appellants ought to have appealed against the decision of the lower Court which did not accede to their claim for interest and that having not done so, it was now too late for them to start conjuring imaginary figures and approaching the Court to enforce a non-existent judgment after having received the judgment sum. He contended that attempt of the appellants to coerce the lower Court into granting them leave amounted to an abuse of Court process.

Arguing his issue 3, counsel stated that the counter-affidavit of the respondent was in substantial compliance with Section 115 of the Evidence Act and that assuming without conceding that the same was not in compliance with the section, the lower Court had a discretion to rely on it. It was his argument that the lower Court considered all issues canvassed by the parties and that the main prayer and alternative prayers were complimentary to one another, so the argument in favour of the latter was subsumed in the argument for the main reliefs.

Having read the grounds of appeal and the arguments of counsel, it is my view that three issues arise for the determination of the appeal, to wit:
1. Was the lower Court right in refusing to grant appellants leave to issue a writ of execution attaching and selling the immovable properties of the respondent in the circumstances of this case?
2. Were the appellants denied their right to fair hearing by the lower Court?
3. Was the lower Court right in not separately considering and determining the alternative prayers of the appellants?

ISSUE 1
The law is firmly established that a Court cannot subject the judgment of another Court of co-ordinate jurisdiction or that of a superior Court to interpretation or review. See Race Auto Supply Co. Ltd V Akib (2006) 13 NWLR (PT.997) 333, Dingyadi V INEC (2011) FWLR (Pt. 581)426 and Dayson Holding Ltd V BFI Group Corporation (2019) LPELR-46753(CA).

Where a Court is called upon to enforce its judgment or the judgment of another Court, the enforcing Court cannot blindly and sheepishly follow the dictates and interpretation of the judgment creditor or his counsel and enforce the judgment based on such dictates. Rather, it is the duty of the enforcing Court to enforce the terms of the judgment as expressed by the Court in its judgment. In Igbokoyi V Lawal (2013) LPELR-22006, Owoade, JCA, opined that:
“It is trite that an order for the enforcement of a valid judgment of a Court of law must address exactly what the judgment being enforced decided. The exact terms of the judgment cannot be varied and must be enforced in exactly the same terms as was determined.”

I have already set out the claims of the appellants in the lower Court as well as the terms of its judgment. This Court as

evidenced in its judgment (Exhibit 15 attached to the affidavit in support of the motion for attachment) dismissed the appeal of the respondent against the judgment of the lower Court in the following words:
“The appeal fails and is hereby dismissed. The judgment of the National Industrial Court delivered on the 21/5/2015 in Suit No NICN/MKD/02/2013 is hereby affirmed.”
What this Court affirmed was the judgment of the lower Court in its exact terms. Nothing was added or subtracted. The judgment of the lower Court, set out at the beginning of this judgment, does not include 50% post-judgment interest. Appellant’s counsel has latched on to the statement of this Court in Exhibit 13 (the judgment that nullified appellants’ garnishee proceedings) to wit; that,
“Interest of 50% per annum was awarded as post-judgment interest.”
The statement was made in the introductory part of the said judgment in appeal No.CA/MK/187/2017 in which the Central Bank was the garnishee/appellant. In the first place, a statement made in a judgment in an appeal in a garnishee proceeding to enforce a judgment cannot be used to

determine the terms of the judgment sought to be enforced. Furthermore, the statement was an obiter dictum and not binding, and enforceable. Where in the course of determining a case or matter a judge expresses an opinion which does not decide the live issues in the case or matter, it is said to be an obiter dictum. See Atiba Iyalamu Savings And Loans Ltd V Suberu (2018) 13 NWLR (Pt. 1637)387, 401. The live issues in the said appeal were:
1. Whether the lower Court had jurisdiction to entertain the garnishee proceedings against the Central Bank.
2. Was the lower Court right in holding that the consent of the Attorney-General of the Federation is not a condition precedent to the initiation of garnishee proceeding pursuant to Section 84 of the Sheriffs and Civil Process Act?
3. Was the lower Court right not to have considered the issue of abuse of Court process inherent in the garnishee proceeding which was raised before it?
The issue of the award or otherwise of 50% post-judgment interest did not arise in the appeal and the passing comment on its award was an obiter dictum which has no binding force and cannot be the subject of enforcement

by any means. The same consideration applies to the introductory statement of this Court in Appeal No. CA/MK/5/2015 which was an unsuccessful appeal to this Court against the judgment of the lower Court in the substantive case.
What the lower Court did was to look at and apply the exact terms of the judgment that it was called upon to enforce and, I repeat, it does not include 50% interest. It cannot therefore be honestly said that the lower Court was engaged in a review or interpretation of the judgment of Abali, J. This is despite its reference to the canon of interpretation that the express mention of a specific thing in any enactment or document means the exclusion of other things not so mentioned. The word “review” is a simple English word which means:
“An examination of something with the intention of changing it if necessary”-Oxford Advanced Learner’s Dictionary 7th Ed. 1253.”
The lower Court did not by any stretch of imagination examine the judgment with a view to changing its terms. The lower Court rather stood by the terms of the judgment.

Issue 2
The law is well established that Courts particularly non-final Courts are required to consider and pronounce on all issues properly placed before them. Failure to do so may result in a miscarriage of justice which renders the judgment of the Court liable to be set aside. See C. N. Okpala & Sons Ltd V N.B. Plc (2017) LPELR-43826 (SC) and Honey Flour Mills Plc V Ecobank (Nig.) Ltd (2019) 2 NWLR (Pt. 1655) 55.

Appellants’ counsel complained that the lower Court failed to pronounce on three points raised by him, to wit;
1. The submission that the counter-affidavit of the respondent in the lower Court was incompetent
2. Failure to consider the alternative claim for 50% post-judgment interest.
3. Failure to consider several authorities of the Supreme Court and this Court cited to it.
In his reply on points of law before the lower Court, appellants’ counsel contended that the counter-affidavit of the respondent was incompetent and/or defective and was therefore liable to be struck out or discountenanced. The lower Court in its ruling acknowledged the submission but it did not make any pronouncement on it. In the case of NCC V Motophone Ltd (2019) 4 NWLR (Pt. 1691) 1, 37, it was held that where there is a failure to pronounce on all issues submitted before a Court, it would not amount to denial of fair hearing unless it is shown that a miscarriage of justice occurred. The question then is was there a miscarriage of justice in this instance? My answer is “No.” This is because all through its ruling, the lower Court did

not make any iota of reference to the said counter-affidavit. In other words, the lower Court completely ignored the said counter-affidavit in its reasoning process and it had no modicum of influence on the ruling.
In regard to the complaint about ignoring the alternative claim, the lower Court rightly held that 50% interest was not awarded by the lower Court. The finding automatically brought an end to the alternative reliefs which were founded on the wrong assumption that 50% post-judgment interest had been awarded. Thus the issues that arose in the alternative prayers were subsumed in the issues that arose in the substantive prayers. In Adebayo V Attorney-General of Ogun State (2008) LPELR-80(SC) 14, it was stated by the Supreme Court that:
“It is trite law that when a party submits an issue to a Court for determination, that Court must make a pronouncement on the issue except the issue is subsumed in another issue. Where that happens, there shall no longer be the necessity of making a separate pronouncement on the issue subsumed.”
Since the issues inherent in the alternative prayers were subsumed in the main prayers which the

lower Court had dealt with, there was no need for it to separately make a pronouncement on the alternative prayers.
In respect of the complaint that the lower Court did not consider the several authorities of the apex Court and this Court cited to it, at page 366 of the record of appeal, the lower Court stated as follows:
“Though I am mindful of the reasoning explored by the applicants’ counsel that based on a plethora of case law to which he directed the attention of the Court and the rules of Court, interest ought to accrue automatically, even though there is no express mention of same in the judgment of Court. I consider that argument to be hypothetical and academic.”
In short, the lower Court considered the cases cited by appellants’ counsel and the arguments based thereon as irrelevant. The mere fact that it did not elaborately consider the cases is immaterial.
I therefore enter a negative answer to issue 2 and resolve it against the appellants.

Issue 3
Order 21 Rule 4 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2007 (now Order 47 Rule 7 of the 2017 Rules) provides as follows:

“The Court may at the time of delivering the judgment or making the order give direction as to the period within which payment is to be made or other act is to be performed and may order interest at a rate not less than 10% per annum to be paid upon any judgment.”
As rightly submitted by appellants’ counsel, the rule allows the Court to award post-judgment interest of not less than 10%. The word used in the provision is “may” which is a permissive or enabling expression. It conveys that the authority which has the power to do an act has an option either to do it or not to do it. See Edewor V Uwegba (1987) 2 SC49, 102. In respect of the rule under consideration, the trial Court has a discretion to award or not to award post-judgment interest. It does not need to give any reason for making an award of 10% post-judgment interest. However, if it does not make any award or makes an award of more than 10% post-judgment interest, it is desirable for it to give its reasons for doing so. See Gwarzo V Funtua (2018) LPELR 44793 (CA) and Stabillini Visinoni V Metalum Ltd (2008) ALL FWLR (Pt. 409) 503. The norm is to award

post-judgment interest on judgment sum whether or not it is asked for.
In this instance, in the operative part of the judgment the lower Court did not award post-judgment interest. Appellants’ counsel contended that 50% post-judgment interest applied automatically since the lower Court awarded it along with other claims and that setting out the award in the denouement of the judgment would have amounted to pronouncing the obvious or would have been a surplusage. He placed reliance on Berliet Nig. Ltd V Kachalla supra. I do not agree with him. By the wording of Order 21 Rule 4 supra. Post-judgment interest does not apply automatically. It must be pronounced expressly by the Court. This is unlike the rule that was considered by the Supreme Court in the Berliet Nig. Ltd case, namely; Order 27 Rule 8 of the Kano State High Court (Civil Procedure) Rules which provides that:
“Unless otherwise ordered by the Court interest shall be paid on outstanding judgment debt at the rate of 10% from the date of judgment whether or not the judgment debtor is allowed time to pay or pay by instalment.”
By the foregoing provision, post-judgment

interest of 10% applies automatically to outstanding judgment debt unless otherwise expressly ordered by the Court. Thus the Supreme Court stated at pages 27 and 28 of the electronic report of Berliet Nig. Ltd case supra that:
“…based on Order 27 Rule 8 (ibid); to wit: the non-award of 10% interest at the time the judgment was delivered did not amount to an omission, as it statutorily applied automatically.”
At page 45 of the same report, the Court emphasized that:
“…the award of interest on a judgment debt is, by Order 27 Rule 8, automatic and does not necessarily require a specific pronouncement in the judgment. Where this is made, it is only pronouncing the obvious surplusage non nocet.”
Decisions of the Supreme Court are binding on all Courts of the land including this Court. Nevertheless, a decided case furnishes a basis for the determination of a later case only if the facts or issues in the subsequent case are similar to those in the earlier case. Thus a lower Court would not be bound to follow decisions of a superior Court cited before it which were not informed by similar facts or issues the

lower Court subsequently confronts. See Clement V Iwuanyanwu (1989) 3 NWLR (Pt. 109) 39 and Ado V State (2017) 15 NWLR (1587)65. So also the interpretation of the provision of a statute or rules of a Court by a superior Court cannot serve to determine the interpretation by an inferior Court of another statute or rules of Court which are substantially differently worded from the one the inferior Court confronts. Therefore, since the Supreme Court in the Berliet Nig. Ltd case considered a provision that is substantially different from the rule under consideration, that case cannot furnish a basis for me to hold that post-judgment interest of 50% or any other rate automatically applies in this instance. It does not.
I shall pause at this point to address the point made ad nauseam by appellants’ counsel that since the lower Court had stated in its ruling that, “the claimants have proved their case and are entitled to their claims…”, the claim for 50% post-judgment interest was therefore awarded. I am afraid that I find the argument to be disingenuous. This is because it clearly overlooks the fact that the lower Court specifically set

out in detail the terms of its award which I have already set out in this judgment. It bears repeating that it does not include 50% post-judgment interest. The case of Ekiti Local Government Area V Aje Printing Nig Ltd supra. cited by appellants’ counsel to buttress his contention was decided on its peculiar facts including the position that the Court gave judgment “as per the writ of summons” and did not set out, as in this instance, the exact terms of the award. The case of M/V Gongola Hope V Smurfit cases Nig. Ltd supra involved a cross-appeal unlike the instant matter. Again in that case, this Court held that the cross-appellant had proved all their claims but it proceeded to award only two of the five claims which included interest. The Supreme Court awarded all the claims including interest. This is different from the instant case in which the lower Court awarded all the monetary claims set out in the complaint but did not grant interest.
The lower Court as stated above made the monetary awards already set out in this judgment against the respondent in appellants’ favour but did not award post-judgment interest.

In a similar case of Ochuba V Lagos State Agricultural Development Authority (2018) LPELR-45828 (CA) 42-43 Garba, JCA, as he then was, stated that:
“…since judgment was entered by the High Court and damages; special and general, were awarded to the Appellant, the justice of the case required the sums awarded shall attract the post-judgment interest at the rate provided by the Rules of the Court. From the tenor of the judgment by the High Court, it was an omission rather than an error on its part not to have awarded interest to the appellant on the sum awarded…”
His Lordship therefore awarded interest of 10% on the judgment sum from the date of the judgment until full payment was made.
The above case was an appeal but the instant matter is not an appeal.
In the case of Berliet Nig. Ltd supra, the Supreme Court recognized that such an omission can be corrected by an application to that end made to the Court that gave the judgment without the need for an appeal.
In this instance, the appellants sought to enforce the judgment of the lower Court by means of a motion for the attachment of the immovable properties of the

respondent. They claimed in the alternative the reliefs already set out in this judgment including the prayer for post-judgment interest to be calculated and paid on the judgment debt. The procedure contemplated in Section 44 of the Sheriffs and Civil Process Act and Order IV Rule 16 of the judgments (Enforcement) Rules on levying execution upon immovable property of a judgment debtor is a special and distinct procedure on its own and the prayer is specifically for leave of Court to issue a writ of execution against the immovable property of the judgment debtor. The procedure does not contemplate a hybrid of procedures and prayers for levying of execution upon immoveable property and application for an order for award of post-judgment interest even if the latter is prayed in the alternative. The terms of the judgment sought to be enforced must be settled before the judgment creditor proceeds to seek its enforcement. In the cases cited by appellants’ counsel in which there was intervention in respect of post-judgment interest, there was either an appeal against failure to award such interest or there was a separate application for the award and not filed

on 7/9/2019, that is, four years after the judgment. The application for post-judgment interest was not brought timeously. It is on account of the foregoing that I respectfully decline the invitation of the appellants’ counsel for me to exercise the power of this Court in Section 15 of the Court of Appeal Act to consider and grant the alternative prayers.
I therefore resolve issue 3 against the appellants.

On the whole, I come to the conclusion that the appeal lacks merit and I accordingly dismiss the same. I affirm the ruling of the lower Court.
I assess the costs of the appeal at N200,000.00 in favour of the respondent against the appellants.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment of my Learned Brother, Joseph E. Ekanem, JCA, and I adopt as mine the reasoning and conclusion. I abide by the orders made therein.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my Learned brother, Joseph E. Ekanem, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

Appearances:

S.O. Okpale, Esq. with him, D.E. Sara-Ali, J. U. Ezeokafor and V.N. Chiahamber For Appellant(s)

M.O. Ozuch Esq. with him, F.T. Adingi For Respondent(s)