BIEZAN EXCLUSIVE GUEST HOUSE LTD. & ORS V. UNION HOMMES SAVINGS & LOANS LTD.
(2010)LCN/4098(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 8th day of December, 2010
CA/PH/409/2007
RATIO
GROUND OF APPEAL: POSITION OF THE LAW ON THE CONTENT OF A GROUND OF APPEAL
A ground of appeal should contain reasons for considering a decision of court wrong. It must be couched in such a way as to attack the judgment of the court on the issue decided by it. It must isolate the reasons for attacking the basis of the reasoning of the judgment appealed against. See METAL CONSTRUCTION (W.A) LTD. V. MIGLIARE (1990) 1 NWLR (pt. 126) 299; KALU V. UZOR (2006) 8 NWLR (Pt. 981) 66; BHOJSONS Plc. V. DASUEL – KALIA (2006) 5 NWLR (Pt. 973) 330. ORDER 6 Rule 2 (2 & 3) and Rules 3 of the court of Appeal Rules 2007 states: “2) Where a ground of appeal alleges misdirection or error in law the Particulars and the nature of the misdirection or error shall be clearly stated. 3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.” Rule 3 “Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the court of its own motion or an application by the respondent.” PER TUNDE OYEBANJI AWOTOYE, J.C.A.
ERROR IN JUDGMENT: WHETHER IT IS EVERY ERROR IN A JUDGMENT THAT WILL RESULT IN AN APPEAL AGAINST IT BEING ALLOWED, AND WHETHER THE COURT OF APPEAL HAS A DUTY TO DECIDE WHETHER THE REASON FOR THE DECISION OF THE LOWER COURT WAS RIGHT OR WRONG
It is not every error in a judgment that will result in an appeal against it being allowed. The court of Appeal has to decide whether the decision of the trial court was right rather than whether its reason for the decision was right or wrong. See NBC PLC V. OLANREWAJU (2007) 5 NWLR (PT.1027) page 255; M.M. ALL CO. LTD. V. GONI (2006) 10 NWLR (PT.987) page 88. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
FINDINGS OF FACT: EFFECT OF AN UNCHALLENGED FINDINGS OF FACT AND WHEN SHOULD AN APPELLATE COURT DISTURB THE FINDINGS OF FACTS OF A TRIAL COURT; DUTY OF THE APPELLATE COURT WHEN A COURT OF TRIAL FAILS TO MAKE FINDINGS ON MATERIAL ISSUES OF FACTS OR WRONGLY APPROACHES THE EVIDENCE CALLED BY PARTIES
Findings of fact against which there is no appeal remains binding and conclusive – see ALAHIJA V. ABDULALI (1998) 6 NWLR (PT. 55) 1 at 24; ODIASE V. AGHO (1972) ALL NLR (PT. 175); YESUFU V. KOPPER INTERNATIONAL (1996) 5 NWLR (PT. 446) 17; NWABUEZE V. OKOYE (2002) 10 WRN 123, TSOWA NIG. LTD V. UBN (1996) 9 NWLR (PT. 471) at 129. Again, an appellate court should be loathed to disturb the finding of facts made by a trial court except in a situation where there is obvious error in the appraisal of the evidence and ascription of probative value to it. See OSHIBAKORO OTUEDAN V. IGBAKPAN OLUGHA (1997) 9 NWLR (PT. 521) 355. However where a court of trial fails to make findings on material issues of facts or wrongly approaches the evidence called by parties the appellate court will allow the appeal. See KARIBO V. GREND (1992) NWLR (Pt. 270) 426. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
BURDEN OF PROOF: ON WHAT BASIS MUST AN APPELLANT PROVE HIS CASE IN A CIVIL SUIT WHERE CRIME IS DIRECTLY AN ISSUE
It is the duty of an appellant to prove his case beyond reasonable doubt in civil suits where crime is directly an issue. See AJIBI V. OLAEWE (2003) 2 WRN 54 and UMEOJIAHO V. EZENAMUO (1990) 1 NWLR (PT. 126) Page 253. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN A CIVIL CASE AND WHEN DOES THE BURDEN OF PROOF SHIFT TO THE DEFENDANT IN A CIVIL CASE
The burden of proof is on the party who asserts a fact to prove it on the preponderance of evidence in civil cases. Once the plaintiff has proved his claim on balance of probabilities and preponderance of evidence the burden shifts on the defendant to prove any fact he relies on to establish his case. See (i) DAODU V. NNPC (1998) 2 NWLR (PT. 538) 355 (ii) ITAUME V. AKPE-IME (2000) 7 SC (PT. 55) 24 (iii) BRAIMOH V. ABASI (1998) 13 NWLR (PT.581) 167 (iv) ELIAS V. OMO-BARE (1982) 5 SC 25 AND (V)AGBI V. OGBEH (2006 11 NWLR (Pt. 990) 65. The onus of proof of a fact in issue is on the party that will lose if such a fact is not proved. See IBADAN L.G.P.C. LTD V. OKUNADE (2005) 3 NWLR (PT. 911) 45. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. BIEZAN EXCLUSIVE GUEST HOUSE LTD.
2. MR. BILLY ANYANWU
3. MADAM FLORENCE PEPPLE Appellant(s)
AND
UNION HOMMES SAVINGS & LOANS LTD. Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the Defendants/Appellants against the decision of the Port Harcourt High court of Rivers state delivered on 2/5/2007. The Appellants filed notice of appeal containing 12 grounds of appeal on 23/05/07.
The Grounds of Appeal as per the Notice of Appeal are:-
1. The learned trial judge erred in law when she held thus “I hold therefore that the claimants claim as per its writ of summons and statement of claim is valid and competent.”
Particulars
a. The suit was filed on 27/2/2004.
b. CLAIMANT/RESPONDENT witness claimed the sum of N140,052,872.98 in evidence.
c. The said sum arose on 30th, April, 2004 a date subsequent to the filing of the suit.
d. The said sum claimed in evidence was not pleaded.
e. There was no amendment to plead the said sum
f. The amount claimed in evidence was not in existence as at the time of filing of the suit.
g. There was no cause of action
h. Claimant did not lead any evidence as to the said amount in the pleadings.
i. The learned trial judge observed that the amount of N140,052,872.98 led in evidence by PW1 as being of ‘No moment’.
2. The learned trial judge erred in law in adjudging the Defendants to be indebted to the claimant when he held thus “I hold therefore that the outstanding sum should be N121,890,001.00 taking into account the sum paid in after 30th September, 2003.”
Particulars
a. The said sum claimed is not a liquidated sum.
b. Sum proved in evidence to have been granted to Appellant was N46,000,000.00
c. Court found that Appellant had paid N31,400,000.00 of the said loan.
d. There was no evidence before the court by the Claimant/Respondent on how it is entitled to that sum of N121, 890,001.00 arrived at by the trial court.
e. The Court failed to consider the uncontroverted evidence of DW1 in arriving at its decision.
f. Claimant’s witness testified that he did not know how much was charged for the various entries including insurance, perfection, interest; etc.
g. There was no evidence as to who the interests making the said sum arose.
h. The Court did find that interest was not static.
i. The Court did find that at sometime the interest was 20.5% as against 27% and 30% which claimant said it charged.
j. The said sum was based on a mere print out/statement of account, which lacked explanation.
k. There was no evidence that the said sum claimed was in conformity with official tariffs, guidelines and fiscal policies.
l. There is no evidence of cheques/instruments with which the withdrawals and sundry drawing were made.
3. The learned trial judge misdirected herself in law on the incidence of burden of proof thereby placing the wrong onus on the Appellant when she held thus “The Defendants have not shown to the court that the interest charged is outside the agreed interest rate of 30% & 27%”.
Particulars
a. The Claimant/Respondent failed to discharge the burden of proving that the interests and charges were lawful and in conformity with the agreement of the parties.
b. It was in evidence that interest agreed can change without prior consent.
c. The onus of proof was on the Claimant/Respondent to prove that the interest charged was in accordance with the agreement and that the interest was also lawful.
d. The burden of eliciting any evidence by the Defendant/Appellant in further proof did not arise in the proceedings.
4. The learned trial judge failed to consider the point of illegality and its effect on the transaction and thus misdirected herself in law.
Particulars
a. The court found that, monthly statements were not sent to the 1st defendant.
b. The court found that the print out/statement of account tendered in court as exhibit P9, P10 and P20 did not specify the rate of interest charged.
c. The court agreed that the requirements of the Central Bank Monetary Policy Guidelines as contained in Exhibits D2 D3 and D4 were not observed.
d. The non-compliance of the CBN guidelines constitutes an offence attracting imprisonment as contained in section 60 sub-section 2 (a) and 3.
e. The court based its findings/award on 30% or 27% after observing that the rate of interest is not static and that the rate charged was not represented on the Statement of account Exhibits D9, D10 and D20.
f. The interest charged as reflected on exhibits D9, D10 and D20 are compound interest.
g. The reducing balance method prescribed for loans by the CBN guidelines was not followed.
h. The court in her judgment clearly over looked the effect of non representation of C.O.T. rate charge on the statement of account as required by CBN Monetary Policy Guideline which is in evidence.
i. The effect/implication of the fore going was not contained in the judgment.
j. The court only dwelt on the issue of fraud after adopting the issues raised by the Defendants as what is called for determination.
5. The learned trial judge misdirected herself in law in the consideration of the issue whether by the conduct of Claimant/Respondent the operation of the transaction was tainted with fraud.
Particulars
a. It was in evidence and was found by the court that monthly statements of account were not sent to the Defendant/Appellants by the Claimant/Respondent.
b. The court also found that Exhibits P9, P10, P20 contained interest charges without an indication of the rate of interest used.
c. The court found that the withholding of information is not fraudulent unless there is a duty to disclose it.
d. The court found that Claimant/Respondent had a duty to render monthly statement of account with specified rate of interest and it failed to do so.
6. The learned trial judge erred in law in holding thus” I do not agree that the claimant breached the terms and conditions of the Loan Agreement.”
Particulars
a. There was evidence that 1st Defendant/Appellant applied for a mortgage Loan for Specific Sum from Claimant/Respondent.
b. That in between the period of transaction, the said 1st Defendant/Appellant also took a temporary overdraft of N1, 000,000.00 pending the approval of additional loan.
c. There was evidence element/charges differed from each other.
d. By the agreement of the parties Loans was to attract simple interest rate whereas overdraft were to attract compound interest.
e. That the Claimant unilaterally treated the two facilities in the same manner as overdraft.
f. The Claimant/Respondent made it impossible for the manner of draw down to be followed as agreed by the parties by not crediting the account in accordance with the draw down plan.
g. The trial, judge drew the wrong inference from the evidence before the court.
h. The account was overdrawn on the very first day of draw down of the sum of N300,000.00 and remained so throughout.
i. That the trial court failed to consider the various oral and written protests by the first Defendant which is in evidence, exhibits and written address as regards the handling of the account by the claimant/respondent.
7. The learned trial judge erred in law in holding to the following effect “I find that there is no law saying that a loan account must be created whenever a loan is granted.”
a. The learned judge misapplied the law as enunciated in Halsbury’s laws of England 4th Edition of paragraph 157 at page 116.
b. The court fails to find that by the offer letter and evidence that the transaction was a mortgage loan.
c. The need to create a separate loan account has been enunciated in the case of I.O.M. NWOYE & SONS CO. LTD. V. CO-OPERATIVE & COMMERCE BANK (NIG.) PLC (1993) 8 NWLR (Pr. 310) 210.
d. A mortgage loan transaction is separate, distinct and or distinguishable form an overdraft transaction contrary to the finding of the court on page 32 of the judgment.
e. All up stamped amount/sums are covered by the same legal mortgage which sums altogether constitute the definite amount of the mortgage.
8. The learned trial judge misdirected herself in law in the consideration of whether a breach of the terms; of the loan transaction and irregular handling of the mortgage loan affected Claimants rights over the legal mortgage by holding thus,’ I also do not find that the treatment of the account as an overdraft has robbed the Claimant of its right over the mortgage, property.”
Particulars
a. The legal mortgage was based on a mortgage loan granted by the Claimant to the 1st Defendant/Appellant.
b. The Claimant/Respondent unilaterally turned round to treat the mortgage loan as overdraft.
c. The treatment of the mortgage loan as an overdraft is a complete departure from the mortgage loan guarantee.
d. The conversion was done without the knowledge and or consent of the sureties.
e. The Claimant did not lead any evidence on the said legal mortgage.
f. The Claimant/Respondent did not tender any legal mortgage.
g. The Claimant did not seek any relief in respect of the legal mortgage.
h. The trial court made pronouncement based on a document not before it.
9. The learned trial judge misdirected herself in law by finding that the 2nd and 3rd Defendant/Appellant are still obligated in respect of the Loan granted to the 1st Defendant/Appellant and thus held “that the guarantors cannot be discharged.”
Particulars
a. The demand Letter addressed to the managing director of the 1st Defendant Company is not a letter addressed to the person of the 2nd Defendant.
b. The court found that there was a conversion from loan to overdraft.
c. The offer letters did not state that the mortgage loan could be converted to overdraft in case of any default whatsoever.
d. The trial court proceeded on this findings based on the issue of illegality which he did not consider in the judgment.
10. The learned trial judge lacked jurisdiction in law to award the sum of N121, 890,001.00 against the 1st, 2nd and 3rd Defendants.
Particulars
a. There was no valid claim before the court.
b. There was no demand letter to 1st, 2nd and 3rd Defendants/Appellant from the Respondent for the sum claimed in evidence.
c. There was no demand letter whatsoever to the person of 2nd Defendant/Appellant.
e. The conditions precedent for the court to assume jurisdiction did not arise.
11. The learned trial judge misdirected herself in law in holding that the claimant defended the said suit in PHC/147/2004 through the evidence of PW1.
Particulars
a. The evidence of PW1 for the Claimant/Respondent stated and ended with the pleadings in PHC/357/2004.
b. No evidence was led in respect of the pleadings in PHC/147/2004.
12. The judgment is against the weight of evidence.”
The Appellants’ brief of argument was deemed filed on 11/10/2010. The Appellants formulated 9 issues for determination. The issues formulated are:-
ISSUE NO. 1: WHETHER THE CLAIMANT/RESPONDENT ESTABLISHED THE CLAIM TO A VALID AND COMPETENT VIS-‘A-VIS THE EVIDENCE BEFORE THE TRIAL COURT. (Arising from Ground 1 of the Grounds of Appeal),
ISSUE NO. 2: WHETHER THE CLAIMANT/RESPONDENT PROVED BEING ENTITLED TO THE SUM OF N121,890,001 AS AWARDED BY THE TRIAL COURT. (Arising from Grounds 2 and 3 of the Notice and Grounds of Appeal).
ISSUE NO. 3: WHETHER THE RESPONDENT’S HANDLING OF THE APPELLANTS’ ACCOUNT WAS TAINTED WITH ILLEGALITY AS TO MAKE THE RESPONDENT’S CLAIM UNENFORCEABLE IN LAW FOR BEING AGAINST PUBLIC POLICY. (Arising from ground 4 of the Grounds of Appeal).
ISSUE NO. 4: WHETHER THE CONDUCT OF THE RESPONDENT IN THE OPERATION OF 1ST APPELLANT’S ACCOUNT WAS FRAUDULENT. (Formulated from Ground 5 of the Grounds of Appeal).
ISSUE NO. 5: WHETHER THE RESPONDENT BREACHED THE TERMS OF THE LOAN AGREEMENT IN THE WAY AND MANNER IT HANDLED/OPERATED THE 1ST APPELLANT’S ACCOUNT (Formulated from Grounds 6 and 7 of the Grounds of Appeal).
ISSUE NO. 6: WHETHER THE 2ND & 3RD APPELLANTS BEING THE SURETIES/GUARANTORS ARE DISCHARGED FROM LIABILITY IN RESPECT OF THE SUM GRANTED TO THE 1ST APPELLANT. (Formulated from grounds 9 and 10 of the Grounds of Appeal).
ISSUE NO. 7: WHETHER THE RESPONDENT CAN EXERCISE RIGHTS OVER THE MORTGAGED PROPERTY. (Formulated from Ground 8 of Grounds of Appeal).
ISSUE NO. 8: WHETHER THE APPELLANTS ARE ENTITLED TO THE RELIEFS SOUGHT IN SUIT NO. PHC/147/2004 HAVING REGARD, TO THE EVIDENCE BEFORE THE TRIAL COURT. (Formulated from Ground 11 of the Grounds of Appeal).
ISSUE NO. 9: WHETHER THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE.
The Respondent/cross Appellant also filed a cross-appeal vide Notice of Appeal filed on 18/7/2007 against the judgment of 2/5/07. The Notice of Appeal contained 3 grounds of Cross-Appeal. They are:
GROUNDS OF APPEAL
3.1 ERROR OF LAW
The learned trial judge erred in law in refusing to grant 27% per annum interest on the judgment sum on the basis that there was no evidence before the court that 27% per annum is the prevailing rate.
PARTICULARS
1. It is not in dispute and the record of proceedings will show that the parties agreed on 27% per annum as interest on the facilities in issue.
2. The claimant’s witness (PW1) led evidence that the agreed interest rate is 27% per annum.
3. The 2nd Defendant led evidence that the agreed rate is 27% per annum.
4. Parties are bound by their agreement;
3.2 ERROR OF LAW
The learned trial judge erred in law when he fails to neither pronounce judgment nor award post judgment interest at the rate of 10% per annum on the judgment sum till full liquidation in contravention of Order 35, Rule 4 of the High Court of Rivers State (Civil Procedure) Rules 2006.
PARTICULARS:
1. Post judgment interest is statutory. It is neither necessary nor required of its beneficiary to endorse his claim or ground of his entitlement thereto.
3.3 ERROR OF LAW
The court below erred in Law in refusing to award interest at all on the judgment sum when it already held that the parties agreed on interest on the sums granted and that the interest rate was not static.
PARTICULARS OF ERROR
(a) The contract between the parties is that of Banker/Customer relationship.
(b) In the premises, it is the established custom that a bank is entitled to charge interest on loan.
(c) Interest rates varies from time to time as stipulated by Central Bank.”
In its brief the Cross-Appellant adopted all the issues for determination raised by the Appellants in their brief of argument. The Appellants by their reply brief dated 25/3/2009 and filed on the same date replied the cross-appellants’ brief. The respective briefs were adopted and appeal was argued on 11/10/2010.
The Cross-Appellant on 25/1/2010 filed Notice of Intention to rely upon preliminary objection. The grounds of the preliminary objection are:-
“1. that the grounds of the cross appeal are Incompetent and disclosed no reasonable grounds of appeal.
2. The said grounds do not relate/refer to any portion of the judgment below.
3. The grounds failed to disclose the error complained of but are mere narratives and subjective interpretation of the Cross Appellant.
4. The particulars in support of the grounds are mere arguments.
5. The grounds of the Cross Appeal are vague and offend Order 6 Rule 2(2), (3) and Rule 3 of the Court of Appeal Rules 2007.”
In arguing the appeal, Mr. Anosike for Appellants referred to the 9 issues formulated in his brief of argument and the Reply Brief/Cross-Respondent’s brief. He urged the court to allow the appeal.
He referred further to the notice of preliminary objection which he brought under order 10 Rule 1 and order 7 Rule 1 of the Court of Appeal Rules. He submitted that the grounds of the Notice of Appeal did not arise from the judgment of the court. He submitted, that the particulars of cross-appeal were not particulars of errors but pieces of evidence which offended against order 6 Rule 3 of the Court of Appeal Rules.
He submitted further that Grounds 2 and 3 of the Notice of Appeal of cross-appeal were vague. He said they were not misdirection or errors. He cited LUCAS PHARMACY LTD. V. ROCHE NIG LTD (1895) NWLR (pt.369) page 28 at 35 – 36; SILENCER & EXHAUST PIPES CO. LTD. V. FARAH (1998) 12 NWLR (Pt. 579) 624 at 638. He finally urged the court to allow the appeal.
Mr. Olopade for Cross-Appellants on the other hand urged the court to dismiss the appeal. He urged the court to disregard the reply to Appellants brief dated 25/3/2009 because it was a re-argument of Appellants’ brief and not reply to points of law raised in Respondent’s brief.
On the preliminary objection he referred to 7 paragraph counter-affidavit. He submitted that the grounds of appeal arose from the judgment of the lower court. He cited ADEROHUNMO V. OLEME (2009) 4 NWLR (pt. 652) at 253; NJOKANME V. UYANNE (2006) 13 NWLR (pt. 997) page 443 at 439 & 440 and Civil Practice in the court of Appeal by IBE IKWECHEGH at 194 – 202.
He urged the court to dismiss the preliminary objection, allow the cross- appeal and dismiss the appeal.
I have carefully considered all the argument canvassed before me as well as the processes filed.
The complaint of the Appellant against the cross-appeal will first be examined. In summary it is that the grounds of the cross-appeal are incompetent.
A ground of appeal should contain reasons for considering a decision of court wrong. It must be couched in such a way as to attack the judgment of the court on the issue decided by it. It must isolate the reasons for attacking the basis of the reasoning of the judgment appealed against. See METAL CONSTRUCTION (W.A) LTD. V. MIGLIARE (1990) 1 NWLR (pt. 126) 299; KALU V. UZOR (2006) 8 NWLR (Pt. 981) 66; BHOJSONS Plc. V. DASUEL – KALIA (2006) 5 NWLR (Pt. 973) 330.
ORDER 6 Rule 2 (2 & 3) and Rules 3 of the court of Appeal Rules 2007 states:
“2) Where a ground of appeal alleges misdirection or error in law the Particulars and the nature of the misdirection or error shall be clearly stated.
3) The notice of appeal shall set forth concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.”
Rule 3 “Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of evidence and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the court of its own motion or an application by the respondent.”
Are the grounds of appeal in the respondent’s notice of appeal in compliance with the above?
I have earlier in this judgment quoted in extension the grounds of appeal of the cross-appellant as per his Notice of Appeal filed on 18/7/2007. The grounds complained against “the decision of the court refusing to grant pre-judgment interest per annum on the judgment sum and refusal of the court to pronounce on post judgment interest at the rate of 10%per annum. The cross-appellant followed it up by couching 3 grounds of appeal which he described as errors in law and stated the Particulars of the errors.
From the judgment of the lower court at page 340 of the record of appeal the trial judge refused the claim of 27% interest on the outstanding sum from the 1st of October 2003 until full payment and did not award any post judgment interest.
I am unable to see any incompetence in the grounds of appeal of the cross-appellant. They are concise and under distinct grounds. They relate to the judgment appealed against. I therefore hold that the preliminary objection lacks merit and dismiss it accordingly.
In their brief of argument as aforestated the appellants formulated 9 issues for determination.
ON ISSUE ONE
The Appellants contended that there was no valid or competent claim to any sum of money or any relief capable of being awarded by the trial court. He submitted that the respondent’s claim was for a sum which arose outside and subsequent to the filing of the action. He said it was incompetent. He cited BELLO V. A.G. OF OYO STATE (1986) 5 NWLR 825 AT 876; MOHAMMED V. UBA (1976) 2 FNR 21; ESIN V. METZA & TIMA NIG. LTD (1996) ANLR 227.
He added that as the claim for the sum of N140, 052,872.98 as at 30th April 2004 was not contained in the statement of claim it should have been ignored and disregarded. He cited OKHUAROBO V. AIGBE (2002) FWLR (Pt. 116) 869. He urged the court to resolve the issue in favour of the Appellants.
ON ISSUE TWO
He submitted that the nature of the claim of the respondent being a claim for sums of money based on calculations of interest, charges and commissions the Respondent had the legal burden of proof to show by credible evidence the following facts.
(1) The particular amount claimed
(2) How the amount was arrived at
(3) How much is the principal sum
(4) How much are the interests, how much are the charges and commissions
(5) That the calculations of the interests and charges are correct/accurate
(6) That the calculations/charges/interests are lawful.
The Appellants stated that throughout the evidence of the claimant/respondent, through its witness, it was never stated how it arrived at the amount that was being claimed. He cited E.I.B. BUILDING SOCIETY LTD V. ADEBAYO (2004) FWLR (pt. 193) 223 at 247; UBA PLC V. GBADEBO (2003) FNLR (pt. 186) 644 at 653; FIRST BANK OF NIGERIA PLC V. AMEMMAN (NIGERIA) LTD (2001) (PT. 31) 2890 at 2908 and other cases.
He submitted it was wrong in law for the court to go out to consider the evidence of the defendant when the Respondent had not discharged the burden of proving that it was entitled to the claim before the court he relied on ANUFOLO V. OBUOR (1997) 11 NWLR (PT. 530) 66; OKPOKO V. UKE (1997) 11 NWLR (pt. 527) 94.
He further submitted that the Respondent was not entitled to charge any interest/charges beyond the year 2002 (i.e. 24 months thereafter) He cited INTEGRATED DIMENSIONAL SYSTEMS LTD V. AIB LTD. (2002) FWLR (PT. 68) 953.
The appellants urged the court to hold that the Respondent failed to prove that it was entitled to the sum of N121, 890,001.00 awarded by the trial court.
ON ISSUE THREE
He submitted the respondents’ handling of the 1st appellant’s account was tainted with illegality as to make the respondent’s claim unenforceable in law for being against public policy. He stated that there was flagrant contravention of the provision of the monetary policy guidelines by the Respondent in the course of performing/handling of the transaction between it and the Appellants.
He referred to section 60 of the Banks and other Financial Institutions Act No. 25 of 1991 and submitted that any act or conduct which constituted a crime punishable by imprisonment was an illegal act and therefore by the totality of the provision of the Banks and other Financial Institutions Act the contravention of the policy guidelines was a criminal offence. He cited ALAO V. ACB (1998) 2 SCNJ 17 at 28; ANDERSON V. DANIEL (1924) IKB 138 at 149; ST JOHN SHIPPING v. JOSEPH RANK (1957) QB 267 at 257; PAN BISBILDER LTD V. FIRST BANK LTD (2000) FWLR (pt. 2) 177 at 188 -189 and other cases.
He finally urged the court to hold that the loan contract was tainted with illegality and against public policy and therefore unenforceable.
ON ISSUE FOUR
Learned counsel for appellant contended that the Respondent was charging interests different from what it represented on the statement of account. He argued that it was deceitful for the Respondent’s to charge a higher interest and indicate a lower rate of interest on the statement of account. He cited ONWUDIWE V. FRN (2006) ALL FWLR (PT. 319) 774 at 811 and a host of other cases.
ON ISSUE FIVE
The Appellant submitted that the respondent breached the terms of the loan agreement in the way and manner it handled/operated the 1st appellants account. He submitted that the charge by the loan to an overdraft was a unilateral imposition on the appellant’s by the respondent. He added that there was no place it was contained in all the documents constituting the agreement that where the loan was not serviced it would be turned into overdraft. He contended further that the respondent was not entitled to charge compound interest except where the parties agreed that it should be charged. He cited INTERGRATED DIMENSIONAL SYSTEMS LTD V. AIB LTD (2002) FWLR (PT. 98) at 953 and other cases.
ON ISSUE NO SIX
The learned counsel submitted that the deviation from the initial agreement substantially altered the terms of the original guarantee and became prejudicial to the interest of the guarantors/surety and for this reason discharged the guarantors from liability arising from the said guarantee. He cited AWOLASI V. NATIONAL BANK OF NIGERIA LTD (1962) ANLR (PT. 1) at 179. He further contended that since demand notice was not served on BILLY ANYANWU the guarantor but on Managing Director of the Biezan Exclusive Guest House Ltd when there was no evidence before the court that the managing Director of 1st Appellants was BILLY Anyanwu. Learned counsel argued that this stripped the court of jurisdiction. He cited INTEGRATED DIMENSIONAL SYSTEMS LTD V. AIB OF NIGERIA LTD (1999) 11 NWLR (pt. 627) 459.
ON ISSUE NO. SEVEN
Learned counsel submitted that any right obligation which arises out of any transaction tainted with illegality could not stand. He relied on the case of NWAIGWE V. TRANS POJEC NIG. LTD. (2000) NWLR (PT. 669) 304. He stated that the mortgage had collapsed and that the Respondent could not exercise any right over the said mortgage.
ON ISSUE NO. EIGHT
Learned counsel submitted that the appellants were entitled to judgment in suit NO. PHC/147/2004 having regard to the fact that they only required in law to show normal proof to be so entitled to the reliefs. He stated that the Respondent failed to give evidence in support of its pleadings; in suit NO. PHC/147/2004 and so the pleadings should be deemed abandoned. He relied on NIGERIA ADVERTISING SERVICES LTD V. UBA PLC (2005) ALL FWLR (PT. 284) page 275 at 286.
ON ISSUE NO. 9
He submitted that trial Court made wrong inference from facts before it and that the judgment could not be sustained by the evidence adduced. He urged the Court to correct the injustice. He relied on NEPA V. AROBIEKE (2006) A FWLR (PT. 316) 284 at 306 and other cases.
He finally urged the court to set aside the judgment of the lower court and order entered by the court below on 2/5/2007.
The Respondent in his brief of argument adopted the issues formulated by the appellant.
ON ISSUE 1
The Respondent argued that it was wrong of the Appellant to submit that the Respondents’ claim was incompetent because the claimant did not amend its statement of claim when the claimant had already pinned down its claim to Exhibit PW9 which was the 1st Appellant’s statement of account and also when the 1st defendant had already admitted paying down part of its indebtedness. He cited COOPERATIVE DEVELOPMENT BANK PLC V. JOE GOLDY CO. LTD. (2000) 14 NWLR (PT. 688) page 508 at 546; FIRST BANK OF NIGERIA PLC. V. OBANDE OBEYA (1998) 2 NWLR (PT. 537), page 207 at 217.
ON ISSUE 2
The Respondents, counsel submitted that there were several pieces of evidence before the lower Court on the grant of, N121,890,001 to the Respondent. He referred to several exhibits and submitted that the Appellants having respectively admitted N46 million as loan granted and 27% and 30% as interest chargeable on the loan that same may be unilaterally reviewed in paragraphs 9, 10, 12, 13 and 14 of the statement of defence the Respondent/claimant was discharged from adducing further evidence to prove the aforestated facts. He relied on COBRO LTD V. OMOLE ESTATES & INVESTMENTS LTD (2000) 5 NWLR (PT.655) at 13. He further submitted that it was not mandatory in law for the claimant/respondent to present in evidence copies of account ledger of the 1st defendant. He added that where a statement was tendered to prove indebtedness and it was supplemented by oral evidence the indebtedness would be deemed proved. He cited TRADE BANK PLC. V. CHEMI (2003) 13 NWLR (PT. 836) at 216. He stated further that since parties were bound by their agreements the lower court was right to give effect to the agreement of the parties in the absence of any contrary evidence. He cited OMEGA BANK (NIG.) PLC V. OBC LTD (2005) 8 NWLR (PT. 928) at 547 -586.
ON ISSUE NO. 3
He submitted that the 1st Appellant agreed during cross-examination that the commission on turnover chargeable on the 1st defendant’s account was N5 per mille and that it was normal to charge same there was nothing illegal in the transaction.
He submitted that penalty for failure to comply with the directive of indicating COT rate or interest rate is not avoidance of obligation to repay loan collected as contended by the defendants/appellants but the customer was advised to report to central Bank of Nigeria for the loss incurred by the customer for failure of the Bank to indicate same.
He contended further that the cases cited were on illegal contract simpliciter and not genuine banker/customer relationship. He relied ON OGWURU V. COOPERATIVE BANK OF EASTERN NIG. LTD. (1994) 8 NWLR (PT. 365) at 704.
He finally urged the court to resolve issue No. 3 against the appellants.
ON ISSUE NO. 4
Learned counsel cited the case of A.G. FEDERATION V. IJEWERE (1995) 8 NWLR (PT. 415) at 626 and section 138 (1) of the Evidence Act and submitted that the Appellants did not adduce sufficient facts to prove the allegation of fraud beyond reasonable doubt. He said the appellants were complaining 3 years after knowledge of the entire transaction and after drawing the facility down.
ON ISSUE NO. 5
He submitted that a party in breach could not take advantage of its own breach. He further submitted that in as much as the parties were not in dispute as to the fact that the 1st appellant had breached the terms of the agreement between the parties in terms of repayment the 1st Appellant could not be protected by the terms of the agreement between the parties in relation to the alleged conversion of account to over draft account and non – opening of a loan account. He added that the 1st defendant never challenged the conversion to over draft until after it had drawn down the entire facilities and was therefore estopped from raising an objection on this. He relied on AUTO IMPORT EXPORT V. ADEBAYO (2005) 19 NWLR (PT. 959) pages 44-129 at 122. He therefore urged the court to resolve issue No. 5 against the Appellants.
ON ISSUE NO. 6
He submitted that the Respondent never deviated from the terms of the agreement between the parties. He added also that it was not mandatory on a creditor to serve a letter of demand on a debtor when a debt is due and becomes repayable. He cited ANGYO V. MALAMI (1992) 9 NWLR (PT.264) at 242.
ON ISSUE 7
Learned counsel for respondent submitted that the hands of the appellants were soiled with the non-payment of the principal loan and were estopped from to seek the aid of this court to prevent the claimant from realizing other depositor’s funds from 1st Appellant.
ON ISSUE NO. 8
He submitted that the learned trial judge properly directed himself and came to the right decision. He stated that the Appellants failed to prove their claim in suit No. PHC/147/2004.
ON ISSUE NO. 9
He submitted that the judgment was not against the weight of evidence in that the Appellants did not prove most of their averments in the pleadings while the Respondent was able to establish that the 1st Defendant/Appellant never paid back fully the loan granted it. He cited BODI V. AGYO (2003) 16 NWLR (PT. 846) page 305 at 308.
He finally urged the court to uphold the decision of the trial court and dismiss the appeal.
On the Cross-Appeal, the respondent cross-appellant formulated 3 issues for determination. They are:-
(i) Whether the claimant/Respondent cross-appellant in view of the reliefs contained in the statement of claim in the lower court on interest and the evidence on same before the lower court is entitled to interest on their judgment sum at the rate of 12% per annum from October 2003 till judgment.
(ii) Whether the claimant respondent/cross-appellants based on the statement of claim and evidence before the lower court was entitled to any rate of interest at all on the judgment sum or not.
(iii) whether the claimant/respondent/cross appellant was entitled to post judgment interest or not.
ON Issue No.1 of the cross-appeal he submitted that from the letters of offer the agreed rate of interest was to last until the loans were repaid and this covered the period of 2003 till judgment date. He relied on TEXACO OVERSEAS UNITED V. PEDMER NIG. LTD (2002) 13 NWLR 547.
ON ISSUE NO. 2
He submitted that banks including the cross-appellant were empowered to charge interest on loans or other advances granted to a customer even when there was no express agreement on the rate of interest to be charged. He cited UBN LTD V. AYOOLA (1998) 11 NWLR (PT.573) pages 338 – 345; EKPEYANG V. YOUNG (1975) NSCC 28.
ON ISSUE 3
Relying on order 35 Rule 4 of the High Court of Rivers State (Civil Procedure) Rules 2006 and the Supreme Court case of TEXACO OVERSEAS NIG. UNLIMITED V. PEDMAR NIG. LTD (2002) 13 NWLR 547, learned counsel submitted that post judgment interest was statutory and that it was not compulsory or necessary for its beneficiary to enforce his claim in that respect before he could be entitled to it. He submitted further that the lower court was wrong not to have awarded post judgment interest. He cited ALHAJI IBRAHIM UMARU WURO HAVSA V. FIRST BANK OF NIG. PLC (2000) 9 NWLR Part 671 Page 64.
He urged the court to resolve the issue in favour of the cross-appellant.
The appellant filed cross-respondents’ brief and reply to the respondent’s brief.
In cross-respondent’s brief he adopted the issue formulated by the cross-appellant.
On Issue No.1 of the cross-appeal he submitted that for a party to be entitled to a pre-judgment interest the party must plead facts relating to the claim of such interest in its statement of claim. I must also go ahead to plead the basis of such a claim whether it is by agreement or status or custom. In the absence of such pleading such a party could not claim such an interest. He cited INKE V. BANK OF THE NORTH LTD (2003) FWLR (PT. 176) page 648 at 659. The cross-appellant did not do according to the cross-appellant.
ON ISSUE NO. 2
He submitted that the law required strict proof of a claim of pre-judgment interest and not based on speculations. He relied on GARBI V. SHEDA INTERNATIONAL NIG. LTD (2002) FWLR (PT. 113) 245.
ON ISSUE NO. 3
He submitted that the award of post judgment interest was purely discretionary. He cited M & B ELECTRIAL COMPANY LTD. V. GOVERNMENT OF CROSS-RIVERS STATE (2005) ALL FWLR (PT. 284) 250 at 385.
He submitted that the trial judge was not under a compulsion to impose post judgment interest. He urged the court to dismiss the Cross-appeal.
In the Appellants reply brief they urged the court to discountenance the agreement canvassed on all the issues on behalf of the claimant/respondent and allow the appeal.
It is not every error in a judgment that will result in an appeal against it being allowed. The court of Appeal has to decide whether the decision of the trial court was right rather than whether its reason for the decision was right or wrong. See NBC PLC V. OLANREWAJU (2007) 5 NWLR (PT.1027) page 255; M.M. ALL CO. LTD. V. GONI (2006) 10 NWLR (PT.987) page 88.
Findings of fact against which there is no appeal remains binding and conclusive – see ALAHIJA V. ABDULALI (1998) 6 NWLR (PT. 55) 1 at 24; ODIASE V. AGHO (1972) ALL NLR (PT. 175); YESUFU V. KOPPER INTERNATIONAL (1996) 5 NWLR (PT. 446) 17; NWABUEZE V. OKOYE (2002) 10 WRN 123, TSOWA NIG. LTD V. UBN (1996) 9 NWLR (PT. 471) at 129. Again, an appellate court should be loathed to disturb the finding of facts made by a trial court except in a situation where there is obvious error in the appraisal of the evidence and ascription of probative value to it. See OSHIBAKORO OTUEDAN V. IGBAKPAN OLUGHA (1997) 9 NWLR (PT. 521) 355.
However where a court of trial fails to make findings on material issues of facts or wrongly approaches the evidence called by parties the appellate court will allow the appeal. See KARIBO V. GREND (1992) NWLR (Pt. 270) 426.
It is the duty of an appellant to prove his case beyond reasonable doubt in civil suits where crime is directly an issue. See AJIBI V. OLAEWE (2003) 2 WRN 54 and UMEOJIAHO V. EZENAMUO (1990) 1 NWLR (PT. 126 Page 253.
I shall consider this appeal in the light of the above.
ISSUE ONE.
The plaintiffs claim as per paragraph 15 of its statement of claim reads:-
“WHERE OF the plaintiffs claims against the defendants jointly and severally as follows:
(a) The sum of N148,890,001 being the sum outstanding on the banking facilities granted to the 1st defendant as at 30th September 2003 and granted by the 2nd and 3rd defendants which the defendants have refused to pay despite repeated demands.
(b) Interest on the said sum at 27% per annum from 1st October 2003 until payment.
(c) Cost of this action.”
The statement of claim was filed on 27/2/2004. The judgment of the trial court was on a smaller amount than what the plaintiff claim the judgment reads.
‘In all I enter judgment in part for the Claimant in the consolidated suit and make the following Orders:
(i) The Claimant is entitled to the sum of N121,890,001.00 being outstanding sums on banking facilities granted to the 1st Defendant and guaranteed by the 2nd and 3rd Defendants.
(ii) The claim for 27% interest on the outstanding sum from the 1st of October 2003 until full payment is refused.
(iii) The claim for the cost of this action is refused.
(iv) Suit NO. PHC/147/2004 is dismissed.
(v) N10,000.00 costs to the Claimant.”
Mr. Anosike for the appellants in his brief submitted that the sum claimed in evidence by the claimant/respondent came into existence after the filing of the action and was therefore incompetent and invalid. I respectfully disagree.
The basis of the action now on appeal was a loan granted to the 1st defendant as at 30/9/2003. In his resolution of the issues learned trial judge found the evidence of the PW1 which the appellants made a lot of fuss about to be of no moment and discountenanced it as not being part of the reliefs before the court. The trial court however considered all the documentary exhibits admitted in evidence and the oral evidence adduced and made a finding of fact that led to the judgment.
I agree with learned counsel for the respondents when he replied in his brief of argument.
“The amount claimed in evidence borders on the same transaction in dispute which the claimant claimed the defendants had now paid part of its debt. It is therefore not a new cause of action but a constituent of the existing action'”
I shall now proceed to consider issues 2, 5, 8 and 9 together (as formulated by the appellants). The burden of proof is on the party who asserts a fact to prove it on the preponderance of evidence civil cases. Once the plaintiff has proved his claim on balance of probabilities and preponderance of evidence the burden shifts on the defendant to prove any fact he relies on to establish his case. See
(i) DAODU V. NNPC (1998) 2 NWLR (PT. 538) 355
(ii) ITAUME V. AKPE-IME (2000) 7 SC (PT. 55) 24
(iii) BRAIMOH V. ABASI (1998) 13 NWLR (PT.581) 167
(iv) ELIAS V. OMO-BARE (1982) 5 SC 25 AND (V)AGBI V. OGBEH (2006 11 NWLR (Pt. 990) 65.
The onus of proof of a fact in issue is on the party that will lose if such a fact is not proved. See IBADAN L.G.P.C. LTD V. OKUNADE (2005) 3 NWLR (PT. 911) 45.
The question, what did the plaintiff/respondent assert that he must prove to establish its case?
1) Was there a loan transaction between the parties? The answer is yes. The 1st – 3rd defendants, now appellants, in their joint statement of defence admitted that a sum of N46 million loans was granted them by the plaintiff/respondent and asserted that about N31.4 million had been paid back by them. (Sere paragraph 32 of their statement of defence on page 91 of record of appeal. What is admitted does not need further proof see AGBANELI V. UNION BANK OF NIGERIA LTD (2000) 4SC (PT. 1) 233; AKPAN V. UMOH (1999) 11 NWLR (PT. 627).
2) Was any interest to be paid on the loan? In his evidence on page 169 of the record of appeal the Billy Anyanwu, DW1, stated.
“The 1st defendant agreed on the rate of interest which were stated in the offer letters for N25 million the interest was 30% with a proviso that it wilt be subject to change or review with prima notice and on the N15,million and 6 million naira it was supposed to attract interest of 27% with the same proviso.”
The above is of the defendants’ own showing in their defence on oath.
3) Did the defendants draw down the entire amount? The answer again is yes. This much was admitted by DW1. The DW1 on page 182 of record under cross-examination admitted follows.
“I drew down the entire 25 million naira before I applied for the 15 million naira. I also drew down the 15 million naira before I applied for N6 million.”
4) Did the plaintiff prove the amount claimed? The plaintiff tendered in court several statements of account which were admitted as Exhibit P9 and a statement of account dated 15th May 2005 with sheet number 1 which was admitted as Exhibit P10.
The plaintiff witness gave evidence of reducing balance system processing fee, management fee, and commission on turn over, insurance charge, different interest rates.
(5) Were the correct interest rates applied at the various turns and were they in line with central Bank guidelines?
The evidence adduced by the Plaintiff on these is not sufficient without the court having to do private investigation to ascertain whether or not the correct interests were charged on the account. This tantamount to dumping of the documents on the court. See HABIB NIG. BANK LTD V. GIFTS UNIQUE NIGERIA LTD (2005) ALL FWLR (Pt. 241) 234; OWE V. OSHIBANJO (1965) 1 ALL NLR 72 and ISHOLA V. SOCIETE GENERALE BANK (NIG.) LTD. TRADE BANK NIG. PLC V. CHIAMI (2004) ALL FWLR (PT.235) page 118; FIRST BANK NIG. LTD. V. AMMAN (NIG.) (2001) FWLR (PT. 31 2890.
A statement of account is not sufficient explanation of debts and lodgments – see YESUFU V. ACB (1981) 1 SC 74. Evidence needs to be adduced on its contents. It needs be noted that the interest charges and other charges are not liquidated. There should be a break down, an analysis of how much of the debt is interest to enable the court appreciate what is before it without having to do private calculation. I therefore agree with learned counsel for the appellant that the plaintiff did not prove the interest charged on the account. I am of the respectful view that the learned trial judge made an error when he said on page 334 of record thus.
“I have gone through the bank statements tendered as exhibits P9, P10 and P20 and do not find any charges outside those agreed in Exhibits P1, P2, P3, P16, P18 and P19.”
I am of the view that what the learned trial judge did was a private investigation which has been disapproved by the Supreme Court in several cases.
Did the plaintiff breach the terms of the agreement or was the operation of the 1st defendants account tainted with illegality?
He who asserts must prove. See NINAINTECS ASSOCIATES V. MARCO CONSTRUCTION CO. LTD. (1991) 2 NMLR 411 (PT.174). The 1st defendant who asserted that the plaintiff breached the terms of the agreement ought to prove same. This could not have been done without the mortgage agreement itself being admitted as exhibit and its specific provisions flouted brought to the notice of the court. This 1st defendant failed to do. See section 132 of the Evidence Act.
Was the operation of the agreement tainted with illegality? It is the 1st defendant who has the duty of proving the illegality or fraud in the operation of the agreement. See section 138 of the Evidence Act. The counsel for the appellant had referred to section 50 (2) a, b 3, 4 of Banks and other Financial Institutions Act No. 25 of 1991 and submitted that the operation of the account by the plaintiff flouted its operation which thereby made the contract illegal.
If the submission of learned counsel for the appellant were true it would render the contract unenforceable and the benefits that accrued therefrom would be irrecoverable. See ALAO V. ACB LTD. (1998) 3 NWLR (Pt. 542) 339; RIVWAY LINES LTD V. RHEIN MES UNDSEE (1993) 7 NWLR (PT. 308) 692; PAS BISBILDER (NIG.) LTD. V. FIRST BANK OF NIGERIA LTD (200) 1 SC 71 at 76.
However, from the evidence adduced before the trial court the Appellant failed to prove non-compliance with the provisions of the said Act. It is evident from the proceedings in the lower court that the respondent substantially complied with the requirements of the law. He who asserts an illegality or fraud must prove it beyond reasonable doubt. See section 137 of the Evidence Act.
The trial court rightly considered this issue. I agree with him that the Act has specifically provided for the consequences of non-compliance with its provisions. The Act does not discharge the obligations under the contract.
Are the 2nd and 3rd appellants discharged from liability in respect of the sum granted the 1st defendant? The answer is no in view of my earlier findings in the case. The appellant’s contention was that a deviation or departure from the contract with the surety without his consent rendered the contract unenforceable. See AWOLESI V. NATIONAL BANK OF NIG LTD (1962) ANLR (PT. 1) and Halsbury’s Laws of England (3rd Edition) Vol. 18 at page 929. Based on this it was submitted that the guarantors were discharged from liability I see no merit in this submission having regard to my earlier finding and the evidence adduced before the trial court as per the record of appeal.
I also hold that the existence of mortgage not being in dispute and in view of my earlier findings in this judgment the respondent can exercise right over the mortgage properly. Illegality not having been proved by the appellants.
This court had been urged to consider the failure of the respondent to lead evidence in respect of suit No. PHC/147/2004 filed by the appellants and consolidated. The appellants had submitted that though the suits had been consolidated they remained actions requiring their own separate evidence. They cited UME V. IFEDIORAH (2001) FNLR (PT. 61) 176 at 1770.
I am with due respect unable to agree with the appellants on this issue. The Plaintiffs claim in PHC/147/04 was as follows:
“1. A declaration that the Defendant failure to create a separate loan Account as different from a current account for the loan.
2. A declaration that the various charges, interest with periodical rates including compound interest charged in respect of the mortgage loan are excessive, unusual, unlawful and illegal.
3. A declaration that in disbursing the funds of the loan granted to the plaintiff, the Defendant was in breach or the terms of loan Agreement as contained in the offer letter.
4. A declaration that the way and manner the Defendant handled, operated and disbursed the said loan was arbitrary to the terms of the loan Agreement leading to cost over-runs, project failure, losses and damages.
5. The sum of N300,000,000.00 (Three Hundred million Naira) being special and general damages for breach of loan Agreement contract.
6. A declaration that the Defendant by reason of fraudulent operation/handling of the supposed loan excessive interests on the terms of the mortgage and bad faith is not entitled to sell the property known as and called No. 16/18 Tombia Street, GRA Phase 1, and Port Harcourt, registered as No. 39 page 30 in volume 207 of the land Registry, Port Harcourt, property of the and Plaintiff of the subject mortgage.
7. An order of perpetual injunction retraining the Defendant by itself, its servants and/or privies from selling or purporting to sell the aforesaid property.”
The facts in issue in suit NO. PHC/147/04 and suit NC. 357/2005 was the same. The plaintiff’s evidence in PHC/147/2004 amounted to the defence to 357/2005.
It is clear from the proceedings that both parties were not deceived as to which of the issues they dealt with in the course of the proceedings even though it was not specifically but unnecessarily stated which of the evidence related to which proceeding. I do not see any merit in this contention at all. Unnecessary technicalities have no place where justice is in issue.
In summary, from the evidence adduced before the trial court it is clear that the appellants collected a total sum of 46 million naira as loan from the respondents. It is clear that the appellant had paid N31,400,000 out of the said sum. The respondents failed to prove the interest rates charged on the said loan.
It is clear that without the inclusion of the interest charged what is outstanding is 46 million naira minus 31.4 million naira 14.6 million naira. I resolve issues 1, 2, 8 and 9 formulated by the appellants in favour of the Appellants. This appeal therefore succeeds in part.
Now to the cross-appeal.
(i) In the cross-appeal, the appellant formulated 3 issues for determination. I shall out-rightly deal with the issue of entitlement to 27% interest on the judgment sum. This issue falls flat in the face of my earlier findings. I resolve this issue in favour of the cross – respondent.
I shall consider the remaining two issues together. They are
(ii) Whether the claimant/respondent/cross-appellants based on the statement of claim and evidence before the lower court was entitled to any rate of interest at all on the judgment sum or not.
(iii) Whether the claimant/respondent/cross appellant was entitled to post judgment interest or not.
The learned trial judge had rightly held that a claim for prejudgment interest not having been pleaded could not be granted. See BALOGUN V. E.O. CB NIG. LTD (2007) 5 NWLR (pt.1028); TEXACO OVERSEAS (NIG.) LTD UNLIMITED V. PEDMAR (2002) 13 NWLR (PT. 785) 526; R.C.C. (NIG LTD) V. R.P.C. LTD (2005) 10 NWLR (Pt. 934) page 615.
But are the claimant /respondent/cross appellant entitled to post judgment interest? A post judgment interest needs not be specifically claimed. The award is regulated by the rules.
Order 35 Rules 4 of the High Court of Rivers State (Civil Procedure) Rules 2006 states:
“The judge at the time of making any judgment or order or at any time afterwards may direct the time within which the payment is to be made or other act is to be done reckoned from the date of the judgment or order, or from some other point of time, as the judge deems fit and may order interest at a rate not less than 10% per annum to be paid upon any judgment.”
The cross-appellant in his submission had submitted that the lower court was wrong not to have awarded post judgment interest for the claimant. He cited HAUSA V. FIRST BANK OF NIG. PLC (2000) NWLR (PT.671) at 64.
Counsel for the cross-respondent citing M & B ELECTRICAL COMPANY V. GOVT. OF CROSS RIVER STATE (2005) ALL FWLR (PT. 284) 250 contended that the provision of the Rules was not mandatory but optional.
While I agree with counsel for the cross-respondent that the provision of the Rules on post-judgment interest is not mandatory, I am of the considered opinion that this is the right time for the trial court to exercise its discretion in awarding the post-judgment interest in favour of the claimant. Depositor’s fund had been released to the defendants for years. It is in the interest of the public and the depositors that such fund should attract interest moreso in view of the inflationary trend in the country.
A Court of Appeal will not interfere with a proper exercise of discretion of a lower court but where the exercise tends to do injustice to one of the parties the appeal court must do so. See IMANI & SONS LTD V. BIL CONST. CO. LTD (1999) 12 NWLR (Pt. 630) 254.
GUDA V. KITTA (1999) 12 NWLR (PT.629) 21 ODUBA V. HOVTMANGMCT (1997) 6 NWLR (Pt. 508) 185.
I hold that it is the interest of justice to award post-judgment interest in this case which I fix at 27% from the date of judgment at the lower court until final liquidation of the judgment debt. I resolve this issue in favour of the cross-appellant. I resolve issues 1 and 3 of the cross-appellant’s brief in favour of the cross-appellant. This cross appeal also succeeds in part.
In sum the judgment and order of the trial court are set aside to enter judgment, in its place in favour of the claimant who is now the Respondent/cross-appellant in the sum of 14.6 million naira only being the balance outstanding from the loan of 46 million naira taken by the defendant/appellant/cross-respondent and guaranteed by 2nd and 3rd defendants/appellants/cross – respondent. I award 27% per annum post judgment interest on the judgment sum of 14.6 million naira from the date of judgment at the trial court until its final liquidation.
Parties are to bear their respective costs.
ISTIFANUS THOMAS, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, AWOTOYE JCA, just delivered. It is not in doubt that the appeal is against the decision of the trial judge in which he entered judgment sum of N121,890,001.00 (One hundred and twenty one Million, eight hundred and ninety thousand one Naira) in favour of the respondent. The valid evidence adduced at the trial court by the appellants, which could not be denied or disproved by the claimants was the grant loan of N46,000,000.00 (Forty-Six million) out of which the appellant had paid back the sum of N31.4 million. My learned brother had painstakingly considered the 9 issues distilled from the appellant’s 11 grounds of appeal. I am in total agreement with the lead judgment that the trial judge, made serious error in not considering the probative value of the evidence of DW1, which was uncontroverted. I therefore, set aside the decision of the trial court in which it gave a wrong judgment sum of N121,890,001.00 to the respondent. In its place, I enter the judgment sum of N14.6 million in favour of the respondent being unpaid balance of N46 million loans granted to the appellant. I therefore, allow part appeal in favour of the appellant.
As to cross appeal, it is to be noted that, the rules of court of record, is to be obeyed, In order 40 Rule 7 of the High court of Rivers State (Civil Procedure) Rules 1987, which is in pari material with order 35 Rule 4 of the same Rivers State High court Rules, 2006, the judge at the time of making any judgment or order at any time, may as it deems fit order interest at a rate not less than 10% per annum to be paid upon any judgment sum. In the instant cross appeal, I enter interest judgment at the rate of 27% per annum as post judgment interest at the trial court until its final liquidation.
I abide with consequential orders including costs in the, lead judgment.
EJEMBI EKO, J.C.A.: I read in advance the judgment just delivered by my learned brother, T.O. AWOTOYE, JCA. I have nothing to further add to it and I agree with the analyses of and conclusions on, the issues in the appeals.
It is settled that in the court of law, and also of justice, that a party gets what he has proved, and is not entitled to what he has not proved. There is no sentiment or emotion about this. A party who has failed to establish his prayer is not entitled to the prayer as the court is not a charitable house.
It is in the light of the above that I adopt the lead judgment and the consequential orders therein.
Appearances
AbsentFor Appellant
AND
M. N. O. OlopadeFor Respondent
