HENKEL CHEMICALS (NIGERIA.) LTD. v. A.G. FERRERO & COMPANY. LTD.(2002)

HENKEL CHEMICALS (NIGERIA.) LTD. v. A.G. FERRERO & COMPANY. LTD.

2002)LCN/1241(CA)

In The Court of Appeal of Nigeria

On Thursday, the 20th day of June, 2002

CA/K/277/2000

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

HENKEL CHEMICALS (NIG.) LTD. Appellant(s)

AND

A.G. FERRERO & CO. LTD. Respondent(s)

RATIO

A court also, under its equitable jurisdiction, has power to award interest where a person in a fiduciary position has improperly enriched himself from his fiduciary position: Harsant v. Blaine Macdonald & Co. (1887) 3 TLR 689; Wallersteiner v. Moir (No.2) (1975) QBD 373. In Spartali v. Constantinidi (1872) 20 WR 823 interest was awarded on partnership money retained by the defendant beyond an agreed period. See Burdick v. Garrick (1870) 5 Ch. App. 233, 242 where compound interest was awarded.
It is established that all agents owe their principals certain fiduciary duties which may atimes arise from contract, express or implied. But quite often they are independent of contract and are imposed by equity on the agent by the mere fact of their peculiar relationship. Vide Diab Nasr & Another v. Anthione Rossek (1973) 1 All NLR (Pt.1) 629; (1973) 6 SC 121. Such a compensatory award of interest should be in the contemplation of both parties under the rules for assessment of damages in contract cases laid down in Hadley v. Baxendale (1854) Exchequer 341. PER SALAMI, J.C.A.

WHETHER OR NOT A PARTY CAN UNILATERALLY IMPOSE A TERM OF CONTRACT ON THE OTHER

In the absence of evidence to the effect that, in event of a breach or default on the payment of a valuation certificate the defaulting party would be liable to interest on the outstanding sum, in my respectful view, the claim is not made out. As a party cannot unilaterally impose a term of contract on the other, the parties to the agreement must be ad idem on a term and condition of the contract before it becomes enforceable. The right to interest is equally not established without reference to a fiduciary relation, trade practice or custom or mercantile usage or statute providing for such interest. There is, therefore, no justification for the award of interest on the judgment debt from 29th December, 1989, to the date of judgment on 16th June, 2000. Indeed, the sole witness in the suit, Mr. Ugbabe, expressly admitted that “That matter of interest has nothing to do with the contract” under cross-examination. What then is raisin d’eter for the award of pre-judgment interest in this appeal? None. PER SALAMI, J.C.A.

SALAMI, J.C.A. (Delivering the Leading Judgment): The plaintiff’s claim before the trial court against the defendant was as follows: –
“(a) N449,474.45 (Four Hundred and Forty Nine Thousand Four Hundred and Seventy Four Naira Forty-Five kobo) only being the sum outstanding against the defendant in favour of the plaintiff on valuation certificate No. 18 issued by the defendant’s Architects on 7th December, 1989.
(b) Interest on the outstanding sum herein above at the minimum rate of 25% per annum from the date of the default by the defendant to effect payment according to contract i.e. from 29th day of December, 1989, till judgment in this suit.
Interest at the rate of 10% per annum on the judgment debt from the date of judgment until the judgment debt is fully and finally settled by the defendant.”
The action was brought under the undefended procedure at the Kaduna State High Court of Justice. Upon the defendant filing a notice of intention to defend supported by affidavit disclosing a defence on the merit, the learned trial Judge, Yahaya, J, transferred the suit from undefended to general cause list. Whereupon pleadings were ordered, filed, exchanged and settled at the amended statement of claim and a statement of defence. The suit which had a chequered history was then transferred to Akaahs, J., (as he then was) before it was eventually assigned to Inuwa, J, who concluded the trial.
The plaintiff called his only one witness and closed its case and eventually delivered its speech owing to dilatory tactics of the defendant, it neither adduced evidence nor addressed the court on the case. Learned trial Judge, Inuwa, J., in a reserved and considered judgment, acceded to the plaintiff’s three reliefs with costs assessed at N4,000.00. The defendant was unhappy, and being dissatisfied with the judgment, appealed to this court on three grounds of appeal.
Pursuance of the notice of appeal filed, particularly the grounds of appeal contained therein, issues were framed in the briefs of argument filed and exchanged in accordance with the provisions of Order 6 rules (1) and (2) of the Court of Appeal Rules, Cap.62 of the Laws of the Federation of Nigeria, 1990. In the appellant’s brief these 2 issues were identified as calling for determination:-
“(1) Whether having regard to the pleadings and evidence before the lower court, the trial lower court was justified in awarding the respondent 25% per annum interest on the claimed sum of N449,474.45 from December 29, 1989, to 16/6/2000. This issue derives from ground 1 of the grounds of appeal.
(2) Whether the learned trial Judge exercised his discretion both judicially and judiciously in awarding interest on the outstanding claimed sum of N449,474.45 at the rate of 25% per annum from December 29, 1989 to 16/6/2000. This issue derives from ground 3 of the grounds.”
The respondent’s brief carried only one issue which issue reads as follows:
“Whether having regard to the unchallenged evidence led by PW.1 on behalf of the respondent, coupled with the fact that the appellant did not lead evidence at the trial, the trial court was light to have awarded interest of25% per annum on the claimed sum of N449,474.45k from 29th December, 1989 to 16th June, 2000.”
This identification substantially adopts the appellant’s first issue as the only issue calling for determination in this appeal.
But the learned Counsel for respondent, on the question of formulating issues, took exceptions to some aspects of appellant’s formulations. Firstly, he contended rightly, in my view, that appellant’s issue 2 cannot competently derive from ground 3 of the grounds of appeal to which the appellant related it. Ground 3 is the omnibus ground and reads as follows:-
“The judgment is against the weight of evidence.”
This ground of appeal is usually directed at the summary and evaluation or appraisal of evidence by the trial Judge as well as his ascription of probative value to the evidence adduced before him. It postulates that there was no evidence which, if accepted, would support the findings of the trial Judge or the inference which he had drawn thereon. I do not think that the ground of appeal can be extended to cover principle or principles relating to right or liability to interest which to my mind is an issue of law. It is settled that the omnibus ground cannot sustain or give rise to a specific point of law. See Calabar East Co-op v. Ikot (1999) 14 NWLR (Pt. 638) 225, a Supreme Court decision and I therefore, agree with the submission of the learned Counsel for the respondent that appellant’s issue 2 cannot derive from an omnibus ground of appeal, that is ground 3 of the grounds of appeal. Consequently, the issue raised as well as the argument proffered thereof are incompetent. The ground is deemed abandoned as impliedly no viable or competent issue is framed from it. The ground of appeal, the issue purportedly framed there from and the argument canvassed thereon, having been ruled incompetent are hereby struck out.
I agree also with the learned Counsel for respondent’s observation that an examination of the two issues formulated in the appellant’s brief and the ground of appeal from which the respective issues had been derived, no issue had been related or derived from ground 2. It is settled that a ground of appeal from which no issue had been identified is deemed abandoned and liable to striking out. See Ojegbe & Another v. Kent Omatsone & Others (1999) 6 NWLR (Pt.608) 591, 597 – 598 cited in the respondent brief. The resultant affect of this is to strike out ground 2 of the grounds of appeal. The appellant is now left with only one issue which is substantially similar to the respondent’s sole issue which is derived from ground 1 of the grounds of appeal. In canvassing the issue learned counsel for appellant, in the appellant’s brief, reiterated the award of interest of 25% on the sum claimed against the defendant.
He also read the plaintiff’s claim contained on paragraph 13 of the amended statement of claim. Learned Counsel contended that throughout the testimony of the only plaintiff witness, one Godwin Ugbabe, nowhere was evidence adduced regarding the basis of the pre-judgment interest of 25% per annum. Learned Counsel further contended that parties are bound by their contract which cannot be varied unilaterally.
In this regard, learned Counsel for respondent referred to paragraph 8 of the amended statement of claim wherein the respondent pleaded that the appellant failed to pay the sum stated in the certificate No. 18 within 21 days of the date of the issue of the certificate and contended that there is nowhere throughout the amended statement of defence where appellant denied the respondent’s entitlement to pre-judgment interest.
Learned Counsel then submitted that the appellant having defaulted in settling the amount of N449,474.45 shown on certificate No. 18 within the 21 days of the date of issue of the certificate the respondent’s claim for interest at the rate of 25% is well founded owing to the value of the money which the appellant has for no just cause withheld. He relied on the cases of Adeyemi v. Lan & Baker (Nig.) Ltd. (2000) 7 NWLR (Pt.663) 33, 48 and Koloko v. Joseph Nasr (2001) 11 NWLR (Pt. 725) 573, 582.
In the instant case, the respondent claimed as follows in paragraph 13(b) of his amended statement of claim: –
“13(a) ……………………….
(b) interest on the outstanding sum at the minimum rate of 25% per annum from the date of the default by the defendant to effect payment according to contract i.e. from 29th day of December, 1989, till judgment in this suit; and
(c) ……………………………
And the only piece of evidence adduced in support thereof is-
“we ask the court to recover the sum stated on certificate No. 18 and pay 25% interest from 29/12/98, till judgment is given in this case.”
The same witness Mr. Ugbabe while testifying under cross examination stated as follows:-
“The basis for our claim of 25% interest is the value of the money. That matter of interest has nothing to do with the contract.” (italicizing mine)
And finally on evidence first plaintiff witness also testified as follows:-
“By the term of agreement, the contract sum was supposed to be paid by monthly basis based on Henkel’s Quantity Surveyor’s assessment of actual work done on site with full value of material on site. The Henkel’s Architect will then be handed over the valuation by the Henkel’s Quantity Surveyor who will then formally issue a certificate of certification that the work was also done in accordance with the terms of the contract, the certificate will then be given to the plaintiff… the said certificate to the defendant, payment is supposed to be within 21 days thereafter.”
(italicizing mine)
There is substance in the submission of the learned Counsel for appellant that parties to a contract are bound by the terms and conditions of the agreement entered into and it is not permissible for either party unilaterally to vary the terms of the contract. The evidence just set out in this judgment are the pieces of evidence proffered in respect of appellant’s liability to pay and the respondent’s entitlement to interest in respect of the default of payment on the outstanding valuation certificate No. 18 before judgment. It contains no evidence of consensus ad idem on payment of interest before the judgment is delivered. The provision requiring payment of interest which was lacking could easily have been inserted into the term of the agreement, if parties were so mindful, to the effect that valuation certificate be settled within 21 days after it is served on the employer otherwise interest would be payable. A rate of interest on default of payment of outstanding sum on a valuation certificate could have been agreed upon. There is no evidence of such an agreement between the parties. Neither was evidence led of a trade practice or mercantile practice nor existence of fiduciary relation between the parties. Learned trial Judge was equally not referred to a statute providing for payment of interest on outstanding bill before judgment is given in respect of the indebtedness.
There is no merit in the contention of the learned Counsel for appellant that the appellant having defaulted on the valuation certificate the respondent’s claim for interest at the rate of 25% is justified considering the value of the money which the applicant has for no just cause withheld on the strength of the cases of Adeyemi vs. Lan & Baker (Nig.) Ltd. (supra), Koloko v. Joseph Nasr (supra).
The mere fact that the sum of money is substantial is not enough to justify award of interest on debt. The general principle is that interest is not payable or recoverable, at common law, on ordinary debt in the absence of some-
(a) contract express or implied; or
(b) some mercantile usage;
(c) by statute, such as the Judgment Act of 1838 and Ss. 9(3) and 57 of the Bills of Exchange Act, Cap. 35 of the Laws of the Federation of Nigeria, 1990. See Lord Tenderron’s Act – Civil Procedure, 1833; London, Catham and Dover Railways v. South-Eastern Railway (1893) AC 429, 434; Page v. Newman (1829) 109 E.R. 140, 141 and Re Anglesey (1901) 2 Ch. 548.
A court also, under its equitable jurisdiction, has power to award interest where a person in a fiduciary position has improperly enriched himself from his fiduciary position: Harsant v. Blaine Macdonald & Co. (1887) 3 TLR 689; Wallersteiner v. Moir (No.2) (1975) QBD 373. In Spartali v. Constantinidi (1872) 20 WR 823 interest was awarded on partnership money retained by the defendant beyond an agreed period. See Burdick v. Garrick (1870) 5 Ch. App. 233, 242 where compound interest was awarded.
It is established that all agents owe their principals certain fiduciary duties which may atimes arise from contract, express or implied. But quite often they are independent of contract and are imposed by equity on the agent by the mere fact of their peculiar relationship. Vide Diab Nasr & Another v. Anthione Rossek (1973) 1 All NLR (Pt.1) 629; (1973) 6 SC 121. Such a compensatory award of interest should be in the contemplation of both parties under the rules for assessment of damages in contract cases laid down in Hadley v. Baxendale (1854) Exchequer 341.
The postulation of learned Counsel for respondent that equity should intervene cannot be seriously pursued. It seems to me respectfully that equity does not intervene unless there is fiduciary relationship between the parties. There is nothing before the court establishing that the appellant is in a fiduciary position and has improperly profited from his fiduciary position. Neither is it proved that the appellant is an agent of the respondent. There is equally no material before the court to infer that compensatory award of interest on claim outstanding beyond 21 days of receipt of valuation certificate was within the contemplation of the parties. In the absence of evidence to the effect that, in event of a breach or default on the payment of a valuation certificate the defaulting party would be liable to interest on the outstanding sum, in my respectful view, the claim is not made out. As a party cannot unilaterally impose a term of contract on the other, the parties to the agreement must be ad idem on a term and condition of the contract before it becomes enforceable. The right to interest is equally not established without reference to a fiduciary relation, trade practice or custom or mercantile usage or statute providing for such interest. There is, therefore, no justification for the award of interest on the judgment debt from 29th December, 1989, to the date of judgment on 16th June, 2000. Indeed, the sole witness in the suit, Mr. Ugbabe, expressly admitted that “That matter of interest has nothing to do with the contract” under cross-examination. What then is raisin d’eter for the award of pre-judgment interest in this appeal? None.
In the circumstance of this appeal, learned trial Judge wrongly awarded pre-judgment interest. I am encouraged in this view by the Supreme Court decision in the case of Reuben N.A. Ekwunife v. Wayne (West Africa) Limited (1989) 5 NWLR (Pt.122) 422, 455 cited in the respondent’s brief that;
“Interest may be claimed as of right where it is contemplated by the agreement between the parties, or under a mercantile custom or under a principle of equity such as breach of fiduciary relationship.”
(Italicizing mine)
See the case of Kaduna State Transport Authority v. Samuel Ofodile (1999) 10 NWLR (Pt.622) 259, 265, Alfotrin Ltd. v. A.-G., Federation (1996) 9 NWLR (Pt.475) 634, 663; Menakaya v. Menakaya (2001) 9 SCNJ 1, (2001) 16 NWLR (Pt. 738) 203 and Edem v. Canon Ball Ltd. (1998) 6 NWLR (Pt. 553) 298, 315.
Finally, as a matter of practice and procedure, where interest is being claimed, the practice is to endorse the claim on the writ of summons and plead facts which support such entitlement in the statement of claim. Even, if it is not endorsed on the writ of summons, but the facts are pleaded on the statement of claim and requisite fees paid the court may, if proved on the preponderance of evidence, grant, the award of interest. In the instant case, the appellant failed to indorse award of interest in the writ of summons it took out. It is doubtful, if filing fees was paid in respect of the award of interest pleaded and claimed in the pleadings. Since payment of filing fees is condition precedent to vesting of the jurisdiction of the court and the same seems not have been paid the claim is incompetent. See Fada & Others v. Maman Naomi (2002) 4 NWLR (Pt.757) 318, 337.
The appeal therefore, succeeds and it is allowed. The award of pre-judgment interest of 25% on the judgment debt of N449,474.45 from 29th December, 1989, to the date of judgment which is 16th June, 2000, is without merit and is set aside. There shall be no order as to costs.

MOHAMMED, J.C.A.: I had the privilege of preview of the leading judgment of my learned brother, Salami, JCA, which has just been delivered. I am in entire agreement with that judgment that the appeal has merit and therefore, ought to be allowed.
It is significant to observe that having regard to the case made out by the respondent before the trial court on the question of the interest claimed, the only witness who testified in support of the case of the plaintiff/respondent said:-
“That the matter of interest has nothing to do with the contract.”
With this glaring statement which is on record, it is difficult to find any justification for the findings of the learned trial Judge in his judgment at page 149 of the record with regard to the claim on interest when he said:-
“The 4th consideration is as it relates to consequential damages. It is my considered opinion that the non-payment of the amounts due since 1989, has resulted in the loss of savings and profits that might have flowed there from. This fact I believe is reason enough for the plaintiff to seek for interest on the said debt in default as consequential damages.”
This sounds like the learned trial Judge trying to make a different case for the respondent to justify granting the claim on interest which in law he is not supposed to do.
Thus, for the foregoing reasons and the fuller reasons in the leading judgment, I also, allow this appeal, set aside the interest awarded on the judgment with no order on costs.

OMAGE, J.C.A.: In his claim in the court below, the plaintiff now respondent claimed against the defendant, who is now appellant, the sum of N449,474.45k as the sum then outstanding against the defendant in favour of the plaintiff on valuation certificate No. 18 issued by the Architects on 7th December, 1989.
The claim was placed on the undefended list by the order of the High Court Kaduna State. The respondent as the plaintiff in the court below also claimed interest on the stated sum at 10% per annum from the date of judgment, until the judgment debt is finally liquidated. The High Court Kaduna considered the appellant’s, as defendant’s intention to defend and placed the plaintiff’s claim on a general cause list, upon which Inuwa, J., of the said High Court ruled as follows:
(1) The defendant shall pay the plaintiff the sum of N449,474.45k, being the sum outstanding against the defendant in favour of the plaintiff on valuation certificate number 18, issued by the defendant’s architects on 7/12/89.
(2) Interest is awarded by the plaintiff against the defendant on the outstanding sum here above at the rate of 25% per annum from December 29th, 1989 to today 16/6/2000.
(3) I shall however, reserve ruling on prayer 3 on 10% interest claimed on the judgment debt from the date of this judgment, until the mode of payment of the said judgment debt is determined by the parties.
The defendant in the court below filed three grounds of appeal against the judgment. Because of its materiality, I state here the grounds of appeal without the particulars of each ground. The ground of appeal are from the notice of appeal after time was extended dated 16/10/01. Under the provision in the format of the notice of appeal for part of the judgment complained of, the appellant wrote. The whole judgment. In ground one it reads:
“(1) The learned trial Judge erred in law, when she proceeded to award the respondent 25% interest per annum on the outstanding sum of 25% interest per annum on the outstanding sum of N449,474.45K duly from December 29th, up till 16/6/2000.
(2) The learned trial Judge misdirected himself on the fact by awarding the respondent interest at the rate of 25% per annum from December 29th, 1989 to 16/6/00.
(3) The judgment is against the weight of evidence.”
From these grounds with the particulars supplied, the appellant proposed the issue below for determination of the appeal. They are;
“(1) Whether having regard to the pleading and evidence before the lower court the trial lower court was justified in awarding the respondent 25% per annum interest on the claimed sum of N449,474.45K from December 29th, 1989 to 16/6/00. This issue derives from ground 1 of the appeal.
(2) Whether the learned trial Judge exercised his discretion both judicially and judiciously in awarding interest on the outstanding claimed sum of N449,474.45K from December 29th, 1989 to 16/6/00 at the rate of 25% per annum. This issue derives from ground, 3 of the appeal.
(3) The respondent in his brief has submitted subject to his preliminary objection to Issue 2 formulated by appellant he associated with and adopt the issue one of the appellant as the only issue competent for determination in this appeal.”
I want here to state the facts leading to the appeal before judgment in the court below, before I consider for determination the respondent’s preliminary objection to certain aspects of the appeal and to alleged incompetence of issue of the appellant. Here are the facts:- The respondent in this appeal contracted with the appellant for the latter as a building contractor to build for the respondent a soap and detergent factory, which was completed after the written agreement was signed in 1987. The detergent and soap factory together with the office building having been completed in Kudenda Industry Estate, Kaduna, was so certified by the architect of the respondent. The issue in disagreement between the parties was the balance of payment due to the respondent/plaintiff. The court below per Inuwa, J. delivered judgment in favour of the plaintiff, now respondent. In his writ, the plaintiff had claimed interest of 10% on the sum claimed to be due. The suit of the plaintiff was placed on the undefended list, but Yahaya, J., placed the suit on the general cause list before judgment was finally delivered by Inuwa, J., awarding in addition to the sum claimed and awarded to the plaintiff interest at the rate of 25% per annum, on the said sum of N449,474.45k per annum before the date of judgment and before the writ of summons was filed that is from 29/12/89 until the date of judgment on 16/6/00. The writ was taken out on 12th August, 1991. It is evident from the above that the plaintiff did not in his writ claim the said interest and there is no information in the printed record that the plaintiff amended his writ to include a claim for 25% interest. The respondent has raised in his brief a preliminary objection to the appeal, in which he urged the court1to strike out the appeal for two main reasons;
“(i) That the appeal is incompetent because though the object of the appeal averred that the appeal is against the whole judgment whereas the appeal is only on part of the judgment that is only the interest of 25% awarded on the judgment not the entire judgment which the objection said is against Order 3 rule 2 of Court of Appeal.
(ii) That issue two formulated by the appellant is not correctly formulated from grounds 3 of the ground of appeal as proposed and presented by the appellant since as the respondent submitted ground three is an omnibus grounds of appeal.”
On objection one above, it is relevant to quote the provision of the Court of Appeal Rules said to be breached, Order 3 rule 2, in order to see whether a breach of the provision of the rule vitiates the appeal. Order 3 rule 2 of the Court of Appeal Rules, 1981, as amended and up dated in the Laws of the Federation of Nigeria, 1990, reads:
“(2)(1)All appeals shall be by way of rehearing and shall be brought by notice (herewith called, The notice of appeal.) to be filed in the Registry of the court below which shall set forth the grounds of appeal and shall state whether the whole or part only of the decision of the court below is complained of in the later case specifying such part” … and shall state also the exact nature of the relief sought and the names and addresses of all the parties affected by the appeal.” etc etc
The underlines are supplies by me to indicate the nature of the provisions in the rules, now an act of law. The word ‘shall’ employed in the rules are directive. The directive nature of the provision allows for no alternative method. I have observed however, that compulsory as each of the provision is, they do not appear to be cumulative. Thus, once the procedure for issuing the notice of appeal has been complied with, and it is filed in the court below (even in this, the court of appeal has a discretion, which it frequently exercises when it orders as deemed filed an application for extension of time to file a notice and grounds of appeal;. It seems to me that a failure to comply with one or two of the directives in Order 3 rule 2, should not necessarily vitiate the entire appeal since the error in this case is not in my view entirely fundamental to the entering of an appeal. In the circumstance where the word shall used in the rule is directory, as the direction that the notice and grounds of appeal must be filed, clearly any alternative method by an appellant will not avail. See Ishola v. Ajiboye (1994) 6 NWLR (Pt.352) 506, (1994) 7-8 SCNJ 1, per A. I. Iguh, JSC. However, when it is a directive on the method as to the contents of the notice of appeal it may be on the surface directive, but in essence it is permissive. Such direction when contained in the rules of court Oputa, JSC as he then was has viewed are made in aid of justice. See Oloba v. Akereja (1988) NWLR (Pt.84) p. 508 at 528. In my view the failure of the appellant to declare that the appeal is only against part of, not the whole judgment though is permissive, though the rules direct that the nature or type of the appeal be stated.
The failure to so state cannot and should not be allowed to render the appeal incompetent. The pertinent question to be asked is whether a breach of the rules of court will defeat the end of justice if it is not observed. My view is that the failure of the appellant to state in the notice of appeal that the appeal is against part of the judgment will not render the entire appeal incompetent to cause it to be struck out when the grounds of appeal filed are clear to show that the appeal is not against the whole judgment. Will the end of justice by met if the appeal is heard despite the breach? My answer will be yes, See Katto v. Central Bank of Nigeria (1991) 2 SCNJ … , (1991) 9 NWLR (Pt.214) 126, and so I hold and I overrule the preliminary objection. The appellant formulated two issues for determination.
In this appeal, I am in agreement with the respondent that only issue one of the appellant, issue which the respondent adopted is competent to be considered for determination of the appeal. Issue two to my mind is only a repetition of issue one and certainly cannot derive from ground three of the ground of appeal, which is an omnibus ground, and cannot be a ground on which the exercise of discretion by the court as framed here, can be challenged. Issue two is therefore struck out. The appellant has filed a reply brief to the respondent’s brief on the latter’s preliminary objection, which I did not find useful.
Issue one formulated is:
“Whether having regard to the pleadings and evidence, before the lower court the trial lower court was justified in awarding the respondent 25% per annum interest on the claimed sum of N449,474.45k from December 29th, 1989, to 16/6/00.”
I have considered the submission of both the appellant and of the respondent in both briefs. I have read the pleadings of both parties. I have not found in the prayers of the plaintiff in the court below, any claim for interest on the sum claimed at 25%. The plaintiff did claim interest on the sum claimed at 10% in his writ of summons. I did not see therein, or in the proceedings any claim for 25% on the sum claimed, or for the period stated in the judgment of the court. The respondent has submitted that a party whose money has been withheld to pre-judgment interest but should the interest be awarded even if he is entitled, without a request or prayers for the award?
The testimony of PW1 for 25% interest before the court does not constitute a prayer to the court as the respondent did not amend his claim before the court. It is settled law, that a court of law does not have jurisdiction to grant to the parties what he did not claim. On the issue of whether a pre-judgment interest can be awarded by the court. In Kaduna State Transport Authority v. Samuel Ofodile (1999) 10 NWLR (Pt.622) 259 C.A. This court decided that the right to order a pre-judgment interest as even a right to order interest per se does not arise, if the custom of the parties’ trade does not provide for it and if there is no specific demand for it in a prior agreement between the parties Afribank Nigerian Plc v. A.I. Invest Ltd. (2002) 7 NWLR (Pt.765) p. 40. Neither of these conditions apply here.
For the reasons advanced here, and more reasons contained in the lead judgment of my learned brother, I.A. Salami, JCA, with which I agree, the appeal should succeed. The judgment of the Kaduna High Court delivered on 16/6/00, relating only to the award of interest of 25% from 29th December, 1989 to 12/6/00, is hereby set aside. The appeal is allowed by me. I abide by any consequential order made in the lead judgment of Salami, JCA.