HYDROWORKS LIMITED V. RIMI LOCAL GOVERNMENT(2001)

HYDROWORKS LIMITED V. RIMI LOCAL GOVERNMENT

(2001)LCN/1007(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of June, 2001

CA/K/248/2000

JUSTICES

ISA AYO SALAMI Justice of The Court of Appeal of Nigeria

MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria

VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria

Between

HYDROWORKS LIMITED Appellant(s)

AND

RIMI LOCAL GOVERNMENT Respondent(s)

RATIO

THE POSITION OF THE LAW ON THE POWER OF THE COURT TO CORRECT CLERICAL ERROS

The court below also has power to correct slips, errors of omissions in its judgment by applying slip rule in rectifying the omission in the interest rate by clarifying whether it is per annum or per month: Berliet v. Kachalla (1995) 12 SCNJ 147, (1995) 9 NWLR (Pt. 420) 478 and Asiyanbi & Others v. Adeniji (1967) 1 All NLR 82.

SALAMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Katsina State High Court of Justice, sitting in Katsina, wherein the appellant applied under Order 46 rule 1 of the Katsina State High Court (Civil Procedure) Rules for the following order:-
(1) An order directing the deputy sheriff of the High Court to levy execution on the assets of the respondent in satisfaction of the judgment of the High Court in the sum of N4,249,109.99 in suit No. KTH/8UL/98.”
A copy of the certificate of judgment was attached to the affidavit in support and marked as exhibit A and B. There is a further and better affidavit with 2 attachments.
The application is opposed by a counter affidavit. I cannot find authority for bringing this application pursuance of Order 46 rule 1 of the Katsina State High Court (Civil Procedure) Rules Cap. 60 of the Laws of Katsina State of Nigeria, 1991. The applicant’s remedy lies in Sheriffs and Civil Process Law Cap. 125 of the Laws of Katsina State of Nigeria 1991. Section 19(2) thereof provides for the procedure for levying execution of judgment or orders for sum of money. It reads as follows:-
“(2) The registrar on the application of the judgment creditor shall cause to be issued a writ of attachment and sale whereby the sheriff shall be empowered to levy or cause to be levied by distress and sale of goods and chattels, wherever they may be found within the division or district of the court, the money payable under the judgment and the costs of the execution.”
The judgment sought to be executed was “in the sum of N459,910.99 and 25% interest from May, 1997 until the judgment sum was fully liquidated” obtained under the undefended list. The judgment delivered by Sanusi, J. (as he then was) was not executed  until his elevation to the exalted position of the Justice, Court of Appeal.
He was consequently not available to sign or endorse the writ of execution in respect of the judgment. It is not clear from the record why another Judge of that court was not assigned to endorse the writ of execution.
The respondent did not appeal against the judgment nor apply for a stay of execution of the judgment. It however made some installmental payments at various dates totaling N350,000.0 thereby leaving an outstanding balance of N109,910.00 plus the interest of 25% unpaid. The installmental part payment were made between May and September, 1998. Thereafter the respondent refused or failed to make further payment. In exasperation, the applicant took the present step, seeking execution of the judgment by way of motion on notice  which had been struck out by the learned trial Judge. In arriving at its decision the learned trial Judge inter alia reasoned as follows:
“It should be noted that though the date of judgment was 1st April, 1998, the payment of the debt was put at May 1997 however as it had been agreed by both parties that the sum of N350,000.00k was paid in 3 installments any further calculation of interest ought to be done less than amount already paid, including the N109, 910.99 paid on 1/7/2000”.
The applicant was displeased with the order striking out his application to execute the judgment. Being unhappy and dissatisfied had appealed to his court on 3 grounds of appeal including the general ground. Briefs of argument which were adopted and relied upon on the day fixed for hearing, were filed and exchange. They  were settled at the appellant’s brief, appellant’s reply and respondent brief of argument. In each brief issues for determination were formulated.
In the appellant’s brief, 3 issues were identified as calling for determination. The issues are setout immediately hereunder:-
(1) Whether the lower court (High Court of Justice No. 5 of Katsina State) ever evaluated the affidavit evidence or was correct in its evaluation of the affidavit evidence placed before it.
(2) Whether the lower court could question, review or sit on appeal over the subsisting judgment of the High Court of justice No. 2. Katsina State which awarded 25% interest on the judgment sum “from May, 1997 until the judgment is fully liquidated”.
(3) Whether the installment payment of the principal sum could preclude the respondent from paying the 25% interest as awarded by the trial court when there was no appeal against same.
The respondent submitted four issues for determination. The 4 issues are recited immediately hereunder:-
(1) Whether the grounds of appeal of appellant are competent, the grounds being grounds of facts and of mixed law and facts for which no leave of court was obtained. The appeal being interlocutory.
(2) Whether High Court No.5 Katsina was right in refusing to enforce an interest of 25% per month was claimed by the appellant.
(3) Whether High Court No.5 was sitting on appeal when it struck out the application of the appellant.
(4) Whether interest to be charged on the balance remaining unpaid or no the whole sum awarded even when part of the judgment debt had been paid”.
Issues must be framed from ground or grounds of appeal and an issue which does not derive from a ground of appeal should be struck out: Effiong v. State (1998) 8 NWLR (Pt. 562) 362, 368. There is only one notice of appeal filed by the appellant before this court and there is no ground or combination of any of them giving rise to respondent’s issue (1).The respondent has not cross-appealed hence he has no memorandum of appeal from which its issue (1) can derive. That issue is, therefore, incompetent. The respondent can only come by way of notice of intention to rely on a preliminary objection against the appeal under Order 3 Rule 15 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990, if it were seriously minded to raise a preliminary objection against the appeal.
Having neglected or refuse to come by the procedure prescribed by the rules, Cap 62, the objection by motion on notice is incompetent. Where statute, as in the instant appeal, has laid down a certain procedure and there is no doubt from the language used in the statute that that should be the only procedure available court will not allow any departure from the procedure: Pasmore v. The Oswaldtwistle Urban District Council (1898) AC 387, 394; (1895 – 1899) All ER 191.
The kernel of this appeal is what informed the parameter used by the learned counsel for appellant to arrive at a judgment debt of N4,249,109.99 he wanted enforced. In this connection, according to learned counsel for appellant when the “25% interest” per month on N459,910.99 awarded by the trial court multiplied from “May 1997” to April 2000, when the application was filed one would arrive at N4,249,109.99. On receipt of final installmental payment of N109,910.99, he reduced the indebtedness from N4,249,910.99 by the latest payment to N4,139,199.00.
Learned counsel asserted further that the calculations which I have referred to above is contained in paragraphs 3(e) of the affidavit in support of the application and 4(f) and (g) of the further affidavit.
Paragraph 3(e) reads as follows:-
“(e) That as at today, the principal balance with interest stand at N4,249,109.99.”
Paragraphs 4 (f) and (g) of the further affidavits are set out hereunder:-
“(f) That the respondent having recently paid the sum of N109,910,99k to the applicant (after the filing and service of this application on her) is now left with a debt of N4,139,199.00 to pay.
(g) That the outstanding sum owed the appellant emanated from the 25% interest per month on the sum of N459,910.99 from May 1997 to April 2000 (as awarded by the court) and that this is bound to rise with every passing month.”
The learned counsel throughout his two affidavits failed, neglected or refused to explain how he came by the interest rate of 25% per month. It is however, stated in the certificate of judgment annexed to the application for an order of execution that:-
“Judgment entered for the plaintiff in the sum of N459,910.99 (…) and 25% interest from May 1997 until the judgment sum is fully liquidated.”
The appellant did not exhibit the judgment sought to be executed to its application. The certificate of judgment exhibited hereto is not made by the learned trial Judge. Rather it is made by the registrar, High Court.
Be that as it may, the certificate is silent over the word “per month” which learned counsel has inexplicably interpolated into the judgment. Learned counsel has not explained how he came by the phrase “per month”. I am respectfully of the view that learned counsel cannot, in the absence of any explanation impose his own interpretation on the respondent as well as the court below and this court. One is not sure whether the words “per month” exist in the judgment of Sanusi, J., (as he then was) but the party who has duty to produce but failed to and kept the judgment away from the court cannot complain if the document is construed against him. See S. 149(d) of Evidence Act.

Interest is exaction or compensation for delay in payment. It is usually or customarily stated by the year and not by the month, monthly or daily. I have support of Black’s Law Dictionary 5th Edition by Henry Campbell Black at 730 for this view. It defines words “Interest rate” as:-
“The percentage of an amount of money which is paid for its use for a specified time. Commonly expressed as an annual percentage rate,”
(Italics mine)

It is not the practice to fix interest rate per diem or by the month. It will be usurious especially when the rate is as high as in the present case. The rate of interest used is therefore, in the absence of express words of the court, fixed at the customarily accepted way of expressing it as an annual percentage rate or per annum and not as monthly percentage rate. The words per month imported into the judgment is neither supported by practice, custom nor the judgment and is respectfully expunged and substituted with “per annum”.
I am strengthened in this view by the decision of the Supreme Court in the case of Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478 wherein the Supreme Court effortlessly or unhesitatingly read the words per annum into Order 27 rule 8 of the Kano State High Court (Civil Procedure) Rule now Order 40 rule 12 which otherwise reads as follows:-
“12 Unless otherwise ordered by the court interest shall be paid on outstanding judgment debts at the rate of 10% from the date of judgment whether or not the judgment debtor is allowed time to pay by installment.”
The court was guided in its decision by practice in coming to the conclusion that the 10% interest rate was per annum and not monthly. The court below also has power to correct slips, errors of omissions in its judgment by applying slip rule in rectifying the omission in the interest rate by clarifying whether it is per annum or per month: Berliet v. Kachalla (1995) 12 SCNJ 147, (1995) 9 NWLR (Pt. 420) 478 and Asiyanbi & Others v. Adeniji (1967) 1 All NLR 82.

The extent and scope is that the power to correct clerical error should not be used as a subterfuge or excuse for reviewing or rehearing a case. In the case of Ministry of Lagos Affairs, Mines and Powers v. Akin-Olugbade (1974) 9 NSCC 489, (1974) 11 SC 11, 22 where the applicant under the pre of effecting clerical error attempted the review of Supreme Court judgment. But it was refused on the ground that once a court has signed a judgment and the order drawn up the court is powerless or functus officio in respect of the issues so resolved: Thynne (Marchioness of Bath) v. Thynne (Marcquess of Bath) (1955) 3 All ER 128.
This court when hearing appeal is vested with the jurisdiction of the trial court by virtue of section 16 of the Court of Appeal Act, Cap. 75 of the Laws of the Federation of Nigeria, 1990. It can therefore correct the omission in the judgment of the trial court, even though there was no such application before the trial court ex debito justiciae by inserting the word per annum.

Next to be considered is the method of computation adopted by the learned counsel for the appellant who failed to direct the court to the basis or authority of casting the interest. He claimed to have multiplied the number of months between the month of “May 1997” and April 2000 to arrive at the outstanding interest of N4,139,199.00 notwithstanding the installmental payments already made. Learned counsel for appellant led no evidence, in his affidavits, to establish that this is the method of calculating interest. Neither did he cite any authority be it statutory or otherwise to support the approach he adopted. Since interest is charged on an amount of money taken for use for a period, the same will not be chargeable on the principal already repaid or refunded. The application of the duration of the loan to the total sum owed to arrive at the amount sought to execute when some payments had been made is, to my mind, wrongful. In computing interest upon which partial payments have been made every payment is to be first applied to keep down the interest but the interest is never allowed to form a part of the principal so as to carry interest. The appellant, in the circumstance, failed or neglected  to apply the partial payments of N350,000.00 he received between May, 1998 and September, 1998 to keep down the principal before charging the interest. The dates when the payments were made are not ascertainable from the record. What is clear is that there were payments in May and September, 1998 and the final payment, acknowledged in Exhibit ‘C’ was made on 11/7/2000. This court can therefore, not resolve the issue, the matter involving not mere arithmetical calculation but one for scouraging for evidence especially for the second payment in 1998 which is not on the record. The days when the payments were made could be relevant.
On the whole, the interest is chargeable at the rate of 25% per annum. The installmental payments paid is to be taken into account in calculating the res. It does follow that the appellant is entitled to interest on the total principal for the first year, May 1997 to April 1998. In calculating the interest for the second year the respondent should be given credit for the sum of N350,000.00 paid before calculating the interest. Thereafter interest from the time last installment was paid up to liquidation of the judgment debt should be on the balance of N109,910.00 which was tendered and accepted on 11th July, 2000. In other words, from September, 1998 when the last installment was made up to 11th July, 2000 both dates inclusive interest is chargeable only on the balance of N109,910.99.
It should by no means be understood that interest cannot be calculated on daily or monthly basis. The liability of the respondent to interest can be ascertained on monthly or daily basis. But the rate of interest, at all times, shall be 25% per annum.
There is no substance in the submission of the learned counsel for the respondent that the learned trial Judge, Sanusi, J., (as he then was) wrongly ordered payment of interest from a day predating his judgment. Plaintiffs have claimed and courts have made it practice to make order for payment of interest from filing of the suit up to the date of judgment that is pre – judgment interest. The plaintiffs so claimed. This is not an exception. In any case, Sanusi’s judgment is not in issue before this court. The order contained in his judgment subsists until it is set aside. The respondent herein having elected to live with the judgment by not appealing against same cannot by a back door seek to torpedo it.
The learned trial Judge A.M. Yusuf misconstrued and consequently mis-applied the decision of this court in the case of Auto Engineering Sales & Service Limited v. Aina Adeosun (1993) 5 NWLR (Pt. 293) 377, 383, upon which he heavily relied. This case of Adeosun is not on all fours with the instant appeal. The plaintiff in that case claimed N74,835 debt but before judgment was entered the defendant had paid N30,00.00.
The learned trial Judge in entering judgment for the plaintiff did not take into account the  partial payment already made. Apart from entering judgment for the sum claimed, he assessed interest on the undue sum of N74,835, rather than on the balance and also entered judgment for the said interest. The question in that case is whether an appeal can succeed against a judgment entered for a sum for more than the debt due.
I disagree with the submission of learned counsel for appellant that the learned trial Judge sat on appeal on the decision of his learned brother, Sanusi, J., (as he then was) a Judge of co-ordinate jurisdiction. The learned trial Judge did not reverse or sit on appeal  on the decision of his learned brother. As it can be gathered from his decision he was very conscious and anxious not to do exactly what he is now being wrongly accused of. The concern of the learned trial Judge was to balance the interest of both parties: the anxiety not to deny the appellant the fruit of the judgment he obtained and at the same time the need to avoid giving the appellant what does not belong to it. Learned trial Judge would have clearly been wrong to enforce an order, which was not made by the court. Certainly the High Court did not award an interest of 25% per month to the appellant. To enforce it would tantamount to travesty of justice. Perhaps his desire to do substantial justice to both parties informed  his decision not to refuse the application but to simply strike it out to enable the applicant to come properly.
The problem herein is caused by the learned counsel for appellant personalizing the decision of the court below. The decision is that of the Katsina State High Court of Justice and not that of the particular Judge who delivered it. And if such Judge is no longer there, for whatever reason, the decision had to be enforced through the normal process created by the practice and procedure of the court.
Absence of a Judge through death, retirement or elevation does not tag judgment or judgments delivered before his departure with any stigma to deprive it of enforcement through the regular procedure.
The writ of execution of such judgment could be endorsed by any other Judge of the same jurisdiction on confirmation from the records that what is sought to be enforced is infact the judgment of the court.

The attempt of the learned counsel for appellant to make the judgment assume some special status which speciality it does not possess mainly caused the present problem.
The appeal fails and it is dismissed by me. The decision of the trial Judge is hereby affirmed. I shall make order as to costs assessed by me at N3,000.00 in favour of the respondent.

MOHAMMED, J.C.A.: Having had the opportunity to read before now, the judgment of my learned brother Salami, JCA which has just been delivered, I entirely share his reasoning and conclusion that this appeal has no merit at all and as such it ought to be dismissed.
The appellant’s application filed at the court below under Order 46 rule 1 of the Katsina State High Court (Civil Procedure) Rules for an order:-
“Directing the deputy sheriff of the High Court to levy execution on the assets of the respondent in satisfaction of the High Court in the sum of N4,249,109.99 in suit No. KTH/8UL/98” is clearly incompetent as it was not brought in accordance with the rules of the lower court relevant with regard to the execution of any valid judgment of the Katsina State High Court. Thus, not having come properly before it as required by the rules of court, the lower court was right in striking out the application.
Accordingly, I also hereby dismiss this appeal with N3000.00 costs to the respondent.

OMAGE, J.C.A. (Dissenting): In the court below in the Katsina Judicial Division, the appellant obtained judgment under the undefended list procedure against the respondent for the sum of N459,910.99k, and 25% interest from May, 1997 until the judgment is fully liquidated. The judgment was delivered in court number 2 Katsina in Suit No. KT/8/98 on 1st day of April, 1998. Subsequently, the learned trial Judge Hon. Justice Aminu Sanusi was elevated to the Court of Appeal.
It is the appellant’s complaint that the respondent did not appeal against the judgment of the court, and had paid the sum of  N350,000.00. and some of the due interests due, but refused to make further payments, whereupon the appellant filed a motion before his Lordship Justice Abdullahi M. Yusuf seeking “an order of this court directing the deputy Sheriff of the High Court of Justice Katsina State, (being the officer responsible for the execution of judgments)  to levy execution on the judgment in the High Court of Justice Katsina State in the sum of N4,249,109.99k, in suit No. KTH/Bal/98.”
After taking argument, from both counsel and considering the affidavit and counter-affidavit of both parties, the trial Judge in the court below rules on 9/8/2000 as follows:
“This court will not allow the applicant claim interest on sum over and above what has already been paid by the respondent judgment debtor and by so doing it is not interfering or reviewing the judgment of the court which entered the judgment in favour of the judgment creditor/applicant but is advocating that the interest payable should be on the amount remaining “repaid” after the initial payment of N350,000.00k and subsequently interest on the remaining amount unpaid after the payment of N109,000.00k.In view of the foregoing this application lacks merit …The applicant did not prove how he arrived at the amount he is claiming. The application, is struck out for lack of merit.”
The applicant in the court below was dissatisfied with the ruling of the court below, he filed three grounds of appeal and seeks from this court, reliefs as stated in the printed record, to allow the appeal and (2) to direct the deputy sheriff of the High Court of Justice Katsina to levy execution on the assets of the respondent in satisfaction of the judgment of the High Court of Justice No.2 in the sum of N4,139,199.00k. From the three grounds of appeal, the appellant  formulated issue for determination. Here they are:
(1) “Whether the lower court i.e. the High Court of Justice No.5 Katsina State ever evaluated the affidavit evidence or was correct in its evaluation of the affidavit evidence placed before it.
(2) Whether the lower court could question review or sit on appeal over subsisting judgment of the High Court No.2, Katsina State presided over by the Honourable Justice Aminu Sanusi, (now Justice of the Court of Appeal) which awarded 25% interest on the judgment sum from May, 1997 until judgment sum is fully liquidated.
(3) Whether the installmental payment of the principal judgment sum could preclude the respondent from paying the 25% interest as awarded by the trial court when there was no appeal against same.”
It is pertinent to record that the printed record shows on page 1 of the said record, that the judgment of the court No.2 delivered on 1st April, 98, was certified by the registrar of the High Court on writ Form 17. In his respondents brief deemed filed by order of court, the respondent formulated four issues from the three grounds of appeal filed by the appellant. They are:
(1) Whether the grounds of appeal of appellant are competent, the grounds being grounds of facts and of mixed law and facts for which no leave of court was obtained. The appeal being interlocutory.
(2)Whether High Court No.5 Katsina was right in refusing to enforce an interest of 25% per month as claimed by the appellant.
(3)  Whether the High Court No.5 Katsina was sitting on appeal when it struck out the application of the appellant.
(4) Whether interest to be charged even at 25% should be charged on the balance of remaining unpaid or on the whole sum awarded even when part of the judgment debt has been paid.
The appellant filed a reply to the respondents brief dated 20th March, 2001. In it, the appellant denied the averment of the respondent that he required the leave of the court to file the grounds of appeal, even if, which is denied, the grounds are of fact, mixed  fact and law.
He denied in the appellants reply brief that the grounds of appeal are of interlocutory nature. Appellant said the ruling of court No.5 of 9/8/2000 is a final ruling of that court and there is no further step to be taken by the trial court. Being a final decision of the court, albeit a ruling. The grounds of appeal against the ruling of the court do not require any leave of court, and that appellant had acted legitimately to have filed the grounds of appeal as of right.
I am in agreement with the appellant that the ruling of court No.5 Katsina High Court is a final ruling not interlocutory. The  decision of court No.5 Katsina is a final order, and there can be no further recourse of the parties to that court. There is therefore no requirements of the appellant to obtain the leave of court in order to file the grounds of appeal, even if the grounds are of facts mixed law and fact, see Ajibade & Anor v. Pedro & Anor. (1992) 5 NWLR (Pt. 241) at 257 where the Supreme Court indexed the occasions where leave of court is required where the grounds of appeal are of mixed facts and law. The grounds of appeal filed by the appellant are not of mixed fact and law. They are in my judgment grounds of error of law, on a final order of the court, in which event no leave of  court is required. The appellants’ grounds of appeal are therefore valid. I now wish to consider the issue formulated for determination.
The issues formulated by the appellant described as 2, and issue 3 of the respondent on the issue, namely whether the High Court No.5 below can seat as an appellate court over the decision of court  Katsina with which it has a concurrent jurisdiction. The appellant issue 2, and respondent issue 3 will be considered in this judgment together. Appellants’ issue one can conveniently be argued with the respondent’s issue 2 and will be so treated in this judgment. I have read repeatedly issue 4 of the respondents which asked the question as follows:
“Whether interest to be charged even at 25% should be charged on the balance remaining unpaid or on the whole sum awarded even when part of judgment debt  had been paid.”
The respondent did not state in his brief, the appellant’s ground of appeal from which issue 4 derived, and I am unable to see that issue 4 derived from any of the grounds of appeal filed by the appellant.
It is settled rule of practice on an appeal in this court that the issue formulated by either the appellant or the respondent must derive, or flow from the ground of appeal filed. In this appeal, the respondent did not seek the leave of court to file issue 4, which is not founded on any ground of appeal, and he will not be allowed to proffer arguments on the said issue 4. See Emeghora v. Health Management Board of Imo State & 2 Ors. (1987) 2 NWLR (Pt.56) page 330. Issue 4 contains part of the issue which the trial court No. 5, suo motu took up at the hearing of the application for enforcement of judgment delivered by court No.2.
Issue 4 goes further and asks the court to determine whether or not a certain interest should be paid on the balance of debt owing. Apart from the fact that the issue was not before the court below for determination, the grounds of appeal filed by the appellant do not envisage or include such a question for determination. It seems to me that issue 4 raises in essence a new issue, the determination of which will legitimize the wrongful adventure of High Court No.5 into a matter not placed before it by the parties. I therefore strike out issue 4 of the respondent as incompetent.
In his issue one, the appellant asked whether the court below evaluated the affidavit evidence, or whether the said court was correct in evaluation of the affidavit evidence placed before it. Because in my view the main issue for determination is whether or not the evidence contained in the affidavit prays for the enforcement by the court of the sum due with interest of 25% due to the applicant/appellant, I have deemed it convenient to treat together with issue one. The respondent issue 2 which asked:
“Whether the High Court No.5 was right in refusing to enforce an interest of 25% per month claimed by the appellant.”
In the two sets of affidavit before the court there are averments by the appellant that the total sum due on the interest over the judgment debt is N4,139,199.00, and that the overall interest so accumulated because the trial court No.2 ordered on the judgment debt, the sum of 25% interest “from May, 1997 until the judgment sum is fully liquidated.” It so happened that he did not pay the balance of interest due, and the appellant went to court No.5 Katsina in April, 2000, to enforce the payment by the respondent of the interest balance of N4,139,199.00. In his counter-affidavit thereto, the respondent urged the court to wave the payment of the balance on interest due, having paid the principal judgment debt. My understanding of the appellants’ issue one is that if the court below, High Court number 5 had read and evaluated properly the averment and contents of the affidavit and counter-affidavit, he would not have ruled as he did, which is the cause of this appeal. I am in agreement with the submission of the appellant in issue one, and will answer respondent issue two by  saying the High Court No.5, Katsina was wrong in refusing to enforce an interest of 25%, per month as claimed by the appellant. The issue which immediately arises from the question posed by the respondent is this:
(1) What is the interpretation of the phrase in the judgment of court, until the judgment sum is fully liquidated?” And
(2) Is the court No.5 competent to interpret the phrase in the judgment where he is a functus officio?
The third indeed salient issue to be there an application by the  respondent to the court to waive the payment of the interest. In other words, can you seek prayers from the court in a counter-affidavit? A proper understanding of the averment in the affidavit and counter affidavit by the Katsina High Court No.5 would have ensured a proper evaluation of the affidavit evidence. To begin with, the only  application before the court No.5 is the appellants’ application to  enforce the judgment of High Court No.2. In enforcing the judgment of court No.5, is a functus officio. The court has co-ordinate jurisdiction with High Court No.2 Indeed, it may have been its own judgment. Therefore once the judgment has been delivered, it ceases  to be a subject of review by the same court. Court No.2, and court No.5 are the same, the numbers given are simply for administrative convenience. There was no application before the court to waive the payment of interest although the respondent made such a request in his counter-affidavit.
It is established practice that prayers made in the Court of law are made in a motion, not counter-affidavit and reliefs requested are made in a writ or summons.The application of the appellant is for prayers to the court to compel the enforcement of a judgment and  the order made by the court below in the instant appeal is a final order. It is for the above reason that I rule in favour of the appellant on the issue 2 of the respondent as to whether the said court No.5 Katsina was right for refusing to enforce an interest of 25% per month, as claimed by the appellant. In the judgment of court No.2, did not specifically pronounce that the interest of 25% be separated from the capital sum to make the interest payable separately. It is not within the jurisdiction of a court of co-ordinate jurisdiction to interpret the judgment. A proper order of the court No.5 below is to have refused the application, but not for the reasons canvassed and ruled upon by the said Katsina High Court No.5. It is evident in the event that the said court failed to evaluate the evidence and averments contained in the affidavit and counter-affidavit and in my judgment, the two issues should be resolved, and I resolve the two issues in favour of the appellant in this manner, for the learned lower court failed to properly evaluate the evidence in the affidavit in answer to appellants issue and the court is thereby in error. To respondents issue one, I resolve the issue in the negative, when respondent asked if the court was right in refusing the appellants prayer on interest of 25% per month as claimed by the appellant, and the reason for the error is because the said court has no jurisdiction to review the judgment and decide whether or not the 25% interest is rated monthly. In other words, Katsina Court No.5 was right to refuse the prayers, but wrong for the reason for the refusal. The court simply had no jurisdiction to entertain the prayers and the issue of interest was taken by the court suo motu, and in the process the court below granted prayers to the respondent which the respondent did not ask for. The High Court No.5 was wrong in law to have so granted see: George Ita v. Nyong (11); Ekpeyong v. Nyong (1975) 2 SC 74.

I now treat appellants issue 2, and respondents issue 3, which asked whether the Katsina High Court No.5 can review the decision of Katsina High Court No.2, or sit on appeal over the judgment of Katsina High Court No.2, when court No.5 reviewed and concluded that the judgment of High Court No.2 was wrong when the court No.2 ordered payment of 25% interest until the final liquidation of the debt or decided that the court No.2 never so ruled, the respondent issue 3, asked whether in doing the above High Court No.5 was sitting on appeal when it (the court) struck out the application of the appellant.” I find in respondents issue 3, inaccuracy of the facts.
With respect, the inaccuracy in the issue appears to me to be deliberate. The respondent must be deemed to know that it is not so much the striking out of the appellants application to enforce the judgment of the court that is in issue it is the review by the court No. 5 in Katsina of the judgment of court No.2 that is the issue.
In regard to the judgment delivered in court No.2 properly constituted, the court No.5 is a functus officio. High Court No.5, Katsina does not have any jurisdiction whatsoever to interfere with the judgment, besides enforcing its compliance. If for any reason the court find itself unable to make an order to enforce the judgment, the court does not have the jurisdiction to correct it, he can only direct the parties to seek its interpretation. That function belongs to an appellate court. Therefore in presuming to correct the uncertain phrase in the judgment of court No.2 Kastina Court No.5, was presuming to seat in appeal over its own judgment, which is wrong in law, and any such order made thereon is a nullity. In the event I rule, and resolve the two issues against the respondent in favour of the appellant.
I have already disposed of issue 4 formulated by the respondent as not deriving from the ground of appeal filed, and no valid issue on installmental payment can subsist. I have already struck out the alleged issue as it sought without leave to introduce a fresh issue in the appeal. In my view, the issues in the appeal should be resolved in favour of the appellant and I so do. The appeal succeeds the presumed amendments to the judgment made in court No.2, by court No.5, is a nullity, it is vacated. The judgment of court is restored as pronounced, the appellants application should go before another court within the judicial division of Katsina State. I make no order as to costs.
Appeal dismissed.

Appearances

O.B.M. Odeh, Esq.For Appellant

AND

A.O. Umar, Esq.For Respondent