SKYMIT MOTORS LIMITED V. UNITED BANK FOR AFRICA PLC.
(2012)LCN/5344(CA)
In The Court of Appeal of Nigeria
On Monday, the 30th day of April, 2012
CA/L/834/09
RATIO
“In Daniel Holdings Ltd. v. United Bank for Africa Plc (2005) FWLR (Pt. 277) 895, the Supreme Court held that though the Plaintiff/Appellant’s claim of interest failed due to a procedural error of pleadings, yet since the transaction arose out of customer-banker relationship in which money paid by the Plaintiff was not credited to its account, the Plaintiff must have lost interest on his money. The court, in the absence of a contractually agreed rate, and the failure of evidence being led on the prevailing commercial rate, awarded it the general rate of interest applicable to Judgment debts. See also Afribank Nig. Plc v. Shanu (1997) 7 N.W.L.R. (Pt.514) 601. ” Per OKORO, J.C.A.
“I wish to state clearly that it is not in every case that evidence has to be adduced in respect of interest claimed before interest can be awarded. In Nigerian General Superintendence Co. Ltd. v. NPA (1990) 1 N.W.L.R. (Pt. 129) 741, this court held that in certain cases, even failure to claim interest in the Writ of Summons or Statement of Claim will not preclude a successful Plaintiff from praying for and being awarded interest after Judgment had been entered for an amount.” Per OKORO, J.C.A.
“It has been held in a plethora of authorities both in this court and the Supreme Court that the test for the determination of the question whether a decision or ruling of the court is final or interlocutory is whether the interlocutory decision finally disposes of the right of the parties. If it did not, then the Ruling remains an interlocutory decision against which appeal must be filed within 14 days of the Ruling as provided for in Section 24(2)(a) of the Court of Appeal Act, 2004. See Akinsanya v. UBA Ltd. (1986) 4 N.W.L.R. (Pt.35) 273; Ogoja Local Government & Anor. v. Dr. Mathias Oko Offoboche (1996) 7 N.W.L.R. (Pt. 458) 48; Ekene Dili Chukwu Nig. Ltd. v. Ifeanyichukwu Osondu Nig. Ltd. (1996) 1 N.W.L.R. (Pt. 424) 316 at 321; amongst others.” Per OKORO, J.C.A.
“The Supreme Court has held in United Bank for Africa Ltd. v. Stahlbau GMBH & CO. KG (1989) 6 S.G. (Pt.1) page 22, relying on an earlier decision of the court in Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt.23) 484 that what is required is to examine thoroughly the Grounds of Appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower court of the law to the facts already proved or admitted in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower court before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure facts is easier to determine.” Per OKORO, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
SKYMIT MOTORS LIMITED Appellant(s)
AND
UNITED BANK FOR AFRICA PLC. Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Lagos State High Court delivered on 25th May, 2009 wherein the court below refused the prayers of the Appellant for both pre and post Judgment interest on the sums admitted by the Respondent during the pre-trial conference on 7th December, 2006.
The facts of this case, as can be gleaned from the Record of Appeal are that the Appellant, as Claimant at the court below commenced this action by way of a Writ of Summons and Statement of Claim which claimed against the Respondent as follows:
“1. A declaration that the arbitrary, unilateral and/or unlawful variation and/or imposition of rates of interest contrary to the agreed rate of interest is null and void and of no effect.
2. A declaration that the arbitrary, unilateral and/or unlawful variation and/or imposition of excess charges on commission on turnover and VAT is null and void and of no effect.
3. A declaration that the arbitrary, unilateral and/or unlawful variation and/or imposition of charges excess charges of commitment management, consultancy and/or arrangement fees contrary to the agreed terms of contract is illegal, null and void and of no effect whatsoever.
4. A declaration that the arbitrary, unilateral and/or unlawful interest charges on excess facility used (if any) is illegal, null and void and of no effect.
5. An order compelling the Defendant to reverse all unlawful, unilateral and arbitrary charges, deductions and debits imposed on the Plaintiff’s account and to credit the Plaintiff’s account to the tune of N38,037,690.19 (thirty eight million, thirty seven thousand, six hundred and ninety naira, nineteen kobo) being total sum unlawfully debited from the Plaintiff’s account, and appropriated by the Defendant as at 31st December, 2002, made out as follows:
i. The sum of N8,464,120.03 (eight million, four hundred and sixty four thousand, one hundred and twenty naira, three kobo) only from the Defendant representing interest charges in excess of agreed interest rate for facility granted by the Defendant to the Plaintiff on account No. 1118117111 from and including the months of January 1998 to July 2000.
ii. The sum of N1,373,918.50 (one million, three hundred and seventy three thousand, nine hundred and eighty naira, fifty one kobo) only from the Defendant representing excess interest charges on the Plaintiff’s account No. LD9929500013 by the Defendant from and including March 1998 to January 2000.
iii. The sum of N1,130,225.42 (one million one hundred and thirty thousand, two hundred and twenty five naira, forty two kobo) only from the Defendant being illegal and unlawful charges and/or excess charges on commission on turnover and VAT by the Defendant from and including March 1998 to January 1999.
iv. N3,907,399.16 (three million, nine hundred and seven thousand, three hundred and ninety nine naira, sixteen kobo) only from the Defendant being the total sum charged and/or imposed in excess by the Defendant on the Plaintiff as management, facilities, processing arrangement and commitment fees per month from and including the February 1998 to September, 1999.
v. N22,921,912.82 (twenty two million, nine hundred and twenty one thousand, nine hundred and twelve naira, eighty two kobo) only being interest accrued on the unlawful excess charges up to 31st December, 2002.
vi. N240,144.25 (two hundred and forty one thousand, one hundred and forty four naira, twenty five kobo) being excess interest charged on reversed entries.
6. An order compelling the Defendant to credit the Plaintiff’s account No. 1118117111 and LD992500013 with the Defendant with all accrued interest on each and every reversed charges, debit and deduction represented in claims 5 from the date each and every such charges, debit and deduction was made.
7. Damages in the sum of N100,000,000.00.
8. Interest at the rate of 21% on reliefs 5, 6, 7, 8, and 9, 10, 11, 12, 13, 14 & 15 from the dates stated herein to when final judgment is delivered and thereafter interest at the rate”.
In response to the Appellant’s Statement of Claim, the Respondent filed Statement of Defence denying the Appellant’s claims. At the close of pleadings, the matter proceeded for pre-trial conference. On 7th December, 2006, during the pre-trial conference, the Respondent through its representative admitted there was excess charge in the sum of N7,209,906.55k (seven million, two hundred and nine thousand, nine hundred and six naira, fifty five kobo). The pre-trial Judge entered Judgment in favour of the Appellant in the above admitted sum.
On 28th April, 2008, the Appellant filed an application via a Motion on Notice praying the court for the following orders:-
“1. An order awarding interest to the Claimant at the rate of 21% per annum from the 18th day of June, 2003 up till and including the current date and until the said interest is finally liquidated by the Defendant in respect of the Judgment of the Court delivered on 7th December, 2006 in the sum of N7,209,906.55 (seven million, two hundred and nine thousand, nine hundred and six naira fifty five naira).
2. Any further or other orders as the court may deem fit to make”
The Respondent filed a 10 paragraph counter affidavit in opposition to the Appellant’s motion. Written addresses in respect of the motion were adopted on 2nd June, 2008 and on 25th of May, 2009, the learned pre-trial Judge delivered his Ruling refusing to grant to prayers of the Appellant as contained the motion paper.
Dissatisfied with the Ruling of the learned pre-trial Judge, the Appellant filed Notice of Appeal on 10th August, 2009 containing four Grounds of Appeal, out of which the Appellant has distilled four issues for determination. The four issues are contained in the Appellant’s brief filed on 11th December, 2009. They are:-
“1. Whether in the light of the provisions of Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004, the court was right to refuse the award of pre and post Judgment interest on the sum admitted by the Respondent as sought by the Appellant in its application of 28th day of April, 2008.
2. Whether the court below was right when it held that there was no proof or legal basis upon which the court can award pre-Judgment interest to the Appellant on sums admitted by the Respondent.
3. Whether the pre-trial conference Judge was right when Her Lordship, she held that the satisfaction of the Judgment had obliterated the Appellant’s right and entitlement to post-Judgment award of interest.
5. Whether in the right of Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004, the court below was right when it construed the Appellant’s application dated 28th day of April 2008 as an application to alter or rectify the Judgment of the court”.
In the brief filed by Matthew Esonanjor Esq. on behalf of the Respondent, only one issue is formulated for the determination of this appeal. The issue states:-
“Whether the Honourable Pre-Trial Conference Judge was right in dismissing the Claimant’s/Applicant’s Motion on Notice dated 28th day of April, 2008 and brought pursuant to the provision of Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004”.
At the hearing of this appeal on 7th February, 2012, the learned counsel for the Respondent drew the attention of the court to Notice of Preliminary Objection filed by the Respondent on 11th July, 2010. Arguments of same are contained on pages two to six of the Respondent’s brief. In answer to the Respondent’s argument on the Preliminary Objection the learned counsel for the Appellant has filed a reply brief wherein Appellant’s reply and arguments are contained. It is trite that whenever a Preliminary Objection is raised to the hearing of an appeal in accordance with Order 10 Rules 1, 2 & 3 of the Court of Appeal Rules 2011, it must first be determined before venturing into determining the main appeal. The reason is that issues raised in the Notice of Preliminary Objection may terminate the appeal in limine. See Nwannata v. Esumi (1998) 1 N.W.L.R. (Pt.563) 650; Tambo Leather Works Ltd. v. Abbey (1998) 12 N.W.L.R. (Pt.579) 548. I shall in accordance with the tradition in this court, determine the Preliminary Objection first. Three grounds are set out by the Appellant for the objection. The grounds are that:-
“(i) There is no valid Notice of Appeal as the Notice of appeal dated the 1st day of August, 2009 and filed on August 10, 2009 being an appeal against an interlocutory decision of the Lagos State High Court delivered by the pre-trial conference Judge on 25th May, 2009 was neither filed within the time limited by the Court of Appeal Act nor was an extension of time sought or granted prior to the filing of the Notice of Appeal.
(ii) There is no valid Notice of Appeal in that the Notice of Appeal dated 1st day of August 2009 and filed on August 10, 2009 purports that the Defendant being dissatisfied with the decision of the Lagos Judicial Division of the High Court of Lagos State contained in the Ruling of Honourable Justice (Mrs.) A. A. Oyebanji dated the 25th day of May, 2009, doeth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4 whereas the Defendant in suit No. LD/1373/2003 now on appeal as Appeal No. CA/L/834/09 neither filed an appeal nor is dissatisfied with the Ruling of the Lagos High court delivered on May 25, 2009 and consequently is not seeking any relief with respect to the Ruling delivered on May 25, 2009.
(iii) There is no ground of law simpliciter in the Grounds of Appeal contained in the Notice of Appeal dated 1st August, 2009 and being an appeal on facts against an interlocutory decision delivered during the pre-trial conference, leave of Court of Appeal on facts was neither sought nor obtained prior to the filing of the Notice of Appeal dated 1st day of August, 2009”.
In his argument, the learned counsel for the Respondent submitted that the decision of the High Court Lagos State delivered by the pre-trial conference Judge on 25th May, 2007 and now appealed against it in an interlocutory decision and by the provision of Section 24(2)(a) of the Court of Appeal Act, 2004, an appeal to the Court of Appeal from an interlocutory decision of the High Court ought to be filed within 14 days from the date of the decision appealed against, referring also to the case of LSJSC v. Katto (2008) 17 NWLR (Pt.1117) 525. On what constitutes a final decision, he cites and relies on the cases of Ogoja Local Government v. Offoboche (1996) 7 N.W.L.R. (Pt.458) 48 at 85 paragraphs A-B; Western Steel Works Ltd. v. Iron & Steel Workers Union (1986) 3 N.W.L.R. (Pt.30) p.617; Ekene Dili Chukwu Nig. Ltd. v. Ifeanyichuwku Osondu Nig. Ltd. (1996) 1 N.W.L.R. (Pt.424) 316 at 321; Akinsanya v. UBA Ltd. (1986) 4 N.W.L.R. (Pt.35) p.273 and Williams Ude & Ors. v. Josiah Agu & Ors. (1961) 1 All NLR (Pt.1) P.65. Learned counsel for the Respondent submitted that issues of interest are still pending on the main claim and it is yet to be dispensed with. Therefore, the Ruling of 25/5/09 is an interlocutory Ruling, he argued.
He submits on the second ground that the Notice of Appeal which purports that the Defendant (now Respondent) is dissatisfied with the Ruling of the Lagos State High Court delivered on 25/5/09 and has therefore lodged an appeal against the said Ruling is misleading as the Defendant is neither dissatisfied with the Ruling nor has it appealed against the Ruling. He urged this court to uphold the Preliminary Objection on this ground relying on the case of Nwoke v. Williams (1997) 11 N.W.L.R. (Pt.528) 309 at 318 paragraph D.
On the third ground, the learned counsel for the Respondent submits that grounds 2, 3 and 4 of the Grounds of Appeal are of mixed law and facts and as such leave ought to have been sought and obtained. Having not done so, he urged this court to hold that the Notice of Appeal is incompetent and should be struck out. He relies on these cases:- CCCTCS Ltd. v. Ekpo (2008) 6 N.W.L.R. (Pt.1083) 362 at 407 – 409 paragraphs G – D; Comex Ltd. v. Nigeria Arab Bank Ltd. (1997) 3 N.W.L.R. (Pt.496) 643; Anyalogu v. Agu (1998) 1 N.W.L.R. (Pt.532) 129 and Ugboaja v. Alutoye-Sowemimo (2008) 16 N.W.L.R. (Pt.1113) 278 at 294 paragraphs E – G; 295 paragraphs D – E.
In his reply brief filed on 25/5/11, the learned counsel for the Appellant submitted that the premises upon which the Respondent raised its objection is frivolous and baseless in the sense that the 1999 Constitution of Nigeria (as amended) in Sections 241(1)(b) gives the Appellant right of appeal relying on the cases of Mohammed Adama v. Amanye Ononye & Anor. (2004) FWLR (Pt.193) 257; Nwadike & Ors. v. Cletus Ibekwe & Ors. (1987) 4 N.W.L.R. (Pt.67) 718; Ogbechie v. Onochi & Ors. (1986) 2 N.W.L.R. (Pt.23) 484 and Ogana II v. Awulor (1997) 9 N.W.L.R. (Pt.522) 668.
Furthermore, that a Ground of Appeal which complains of misunderstanding by the lower court of the law or a misapplication of the law to the facts already proved or admitted is a ground of law which he urged this court to hold fit into his four Grounds of Appeal. He urged this court to dismiss the Preliminary Objection.
It has been held in a plethora of authorities both in this court and the Supreme Court that the test for the determination of the question whether a decision or ruling of the court is final or interlocutory is whether the interlocutory decision finally disposes of the right of the parties. If it did not, then the Ruling remains an interlocutory decision against which appeal must be filed within 14 days of the Ruling as provided for in Section 24(2)(a) of the Court of Appeal Act, 2004. See Akinsanya v. UBA Ltd. (1986) 4 N.W.L.R. (Pt.35) 273; Ogoja Local Government & Anor. v. Dr. Mathias Oko Offoboche (1996) 7 N.W.L.R. (Pt. 458) 48; Ekene Dili Chukwu Nig. Ltd. v. Ifeanyichukwu Osondu Nig. Ltd. (1996) 1 N.W.L.R. (Pt. 424) 316 at 321; amongst others.
The learned counsel for the Respondent argued that the Motion on Notice filed by the Appellant on 28th April, 2008 for an order awarding interest to the Claimant at the rate of 21% per annum from the 18th day of June, 2003 up till and including the current date and until the said interest is finally liquidated by the Defendant (Respondent) in respect of the Judgment of the court delivered on 7th December, 2006 in the sum of N7,209,906.55 (seven million, two hundred and nine thousand, nine hundred and six naira, fifty five kobo) and the Ruling of the court refusing the said motion was an interlocutory decision. With due respect, this is not so. The court below had entered Judgment for the Appellant in the amount stated above which the Respondent admitted. No interest was awarded in the Judgment sum. The Motion on Notice prayed the court to award interest which the court refused to accede to. I am of the view that the Ruling of the court in respect of the Motion on Notice was final as there is nothing left for the court to decide thereafter. The right of the parties as far as that Motion is concerned has been fully determined by that court in respect of the sum of N7,209,906.55 (seven million, two hundred and nine thousand, nine hundred and six naira, fifty five kobo) admitted by the Respondent and entered by the court. It was a final Judgment and the Appellant did not require any leave of court before filing its Notice of Appeal.
On the other ground that the Notice of Appeal is deceptive in that it states that the “defendant’ being dissatisfied, gave Notice of Appeal, instead of the “Plaintiff”. The Respondent (as Defendant) has denied ever being dissatisfied with the Judgment of the lower court. Unfortunately, the learned counsel for the Appellant did not react to this in his reply brief. Counsel has to be aware of the fact that whenever a party entrusts his matter into his hands, he is obliged to conduct the case with all diligence. How does one explain a situation where it is pointed out to counsel that he made a mistake in the Notice of Appeal which is the originating process for this appeal and he simply looks the other way. This attitude of the Appellant’s counsel is hereby condemned in all its ramifications. In the hey-days of technicalities, this could have been a ground to dismiss this appeal. Thank God that the courts have since moved away from the coast of technicalities to that of doing substantial justice. This is clearly a mistake of counsel which has not misled anybody. Where a party makes a mistake in his process which does not mislead the other party or the court, particularly where such mistake does not go to the root of the matter, I think it is in the interest of justice to correct such mistake and move the matter forward. It is my view that the word “Defendant” on the opening paragraph of the Notice of Appeal, which ought to have been rendered ” Plaintiff is a mistake which is not fatal to this appeal particularly as the Notice of Appeal was properly signed by counsel to the Appellant and not that of the Respondent. I so hold.
Finally, the Respondent herein had argued that the Grounds of Appeal in the Notice of Appeal Nos. 2, 3 & 4 are of mixed law and fact for which leave is required. I have to admit that the question whether a complaint on appeal raises questions of law alone or questions of mixed law and fact is a difficult one. The Supreme Court has held in United Bank for Africa Ltd. v. Stahlbau GMBH & CO. KG (1989) 6 S.G. (Pt.1) page 22, relying on an earlier decision of the court in Ogbechie v. Onochie (1986) 2 N.W.L.R. (Pt.23) 484 that what is required is to examine thoroughly the Grounds of Appeal in the case concerned to see whether the grounds reveal a misunderstanding by the lower court of the law to the facts already proved or admitted in which case it would be question of law, or one that would require questioning the evaluation of facts by the lower court before the application of the law in which case it would amount to question of mixed law and fact. The issue of pure facts is easier to determine.
I have carefully examined grounds 2, 3 & 4 of the Grounds of Appeal and I am of the view that those grounds are questioning the understanding of the law by the learned trial Judge and misapplication of same to facts already admitted by the Respondent. There is nothing about issue of facts again in this appeal as facts have been settled by the parties and decided by the lower court. Accordingly, it is my well considered opinion that the three Grounds of Appeal complained of are grounds of law alone for which the Appellant did not need to obtain leave before filing Notice of Appeal.
In the final analysis I hold that this Preliminary Objection lacks merit and is hereby refused and dismissed.
Having overruled the Preliminary Objection, the coast is now clear for the consideration of the issues submitted by the parties for the determination of this appeal. The Appellant has formulated four issues for determination while the Respondent distilled one issue only. The four issues formulated by the Appellant shall be taken together as they are interrelated which is also in line with the Respondents lone issue.
On issue one, the learned counsel for the Appellant submitted the Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004 grants two very clear and definite powers to a Judge to do the following:-
(a) Grant and award interest in respect of the Judgment sum;
(b) Award such interest at a rate which though could be more but should not be less than 10% per annum.
He submits further that this duty can be performed at the time of making the Judgment or order or at any other time, afterwards. That since the Appellant had claimed interest in his Statement of Claim, it was wrong for the learned trial Judge to refuse to award interest on the Judgment sum. He relies on the cases of Nigeria Railway Corporation v. J.E. Emehara & Sons Co. Ltd. (1994) 2 N.W.L.R. (Pt.325) 206; Koiki v. First Bank of Nigeria Plc (1994) 8 N.W.L.R. (Pt.265) 665.
On issue 2, he submitted that apart from claiming interest in the Statement of Claim, the Appellant also stated the basis of this interest in paragraph 6 of its Affidavit in Support of the Motion of 28th April, 2008 for award of interest on Judgment sum on admission. It was therefore wrong, he opined for the court below to hold that there was no legal basis or proof upon which the court can award interest to the Appellant on the sums admitted by the Respondent. To back up his submission, the learned counsel for the Appellant relies on three authorities as follows:- Nigerian General Superintendence Company v. NPA (1990) 1 N.W.L.R (Pt. 129) 741; Daniel Holdings Ltd. v. UBA Plc (2005) FWLR (Pt.277) page 895 and Afribank Nigeria Plc v. Shanu (1997) 7 N.W.L.R. (Pt.574) 601.
On whether the court below was right when it held that the satisfaction of the Judgment had obliterated the Appellant’s right and entitlement to post Judgment award of interest encapsulated in issue No. 3, learned counsel submitted that following the decision in Ethiopian Airlines v. Hon. Justices Sylvester Umaru Onu JSC (2005) All FWLR (Pt. 632) page 639 and Ewulu v. Nwankpa (1987) 2 N.W.L.R. (Pt.93) p. 94, it is shown that the satisfaction of the Judgment sum will not obliterate the right of the Appellant to post Judgment award of interest as same was not awarded by the Judge and when the court did not give reason for not exercising its discretion one way or the other.
On issue 4, as to whether the lower court was right when it construed the Appellant’s application of 28/4/08 as an application to alter or rectify the Judgment of the court below, the learned counsel for the Appellant drew a distinction between a situation where a court is invited to rectify mistakes referred to as the “slip rule” and the Appellant’s motion for award of interest on Judgment sum and submitted that the said motion was not an invitation to amend the Judgment of the court. Learned counsel relies on the cases of Flour Mills of Nigeria Plc v. Okosun (2005) All FWLR (Pt. 255) 1194 and UBA Ltd. v. Taan (1993) 4 N.W.L.R (Pt. 287) 371. The learned counsel for the Appellants urged this court to resolve the four issues in favour of the Appellant.
In his reply, the learned counsel for the Respondent who did not cite even one authority in support of his argument of his lone issue, however submitted that the pre-trial Judge was evidently entitled to dismiss the Appellant’s application of 28/4/08 as there is uncontroverted affidavit evidence that the Judgment had been satisfied prior to the Appellant’s application of 28/4/08. Secondly, that the Appellant never applied at the time of entering of Judgment on 7th December, 2006 that interest be awarded on the admitted sum. Learned counsel further submitted that the Respondent only admitted the sum of N7,209,906.55k (seven million, two hundred and nine thousand, nine hundred and six naira, fifty five kobo) and did not admit interest. Therefore, the court below was right not to order interest on the said sum, he opined.
Furthermore, learned counsel submitted that for there to be a post Judgment award of interest under Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004, there must be the existence of a Judgment debt which has remained unsatisfied for a court to make an award of interest.
Finally, he contended that proof of the Appellant’s claim for interest as made out in its Writ of Summons must be made before a trial Judge and not before a pre-trial Judge as the pre-trial conference Judge is without jurisdiction to entertain or deliver Judgment on substantive issues not admitted in open court. He urged the court to resolve this issue in favour of the Respondent.
The main reason for this appeal is the refusal of the learned pre-trial conference Judge to grant the prayers in the Appellant’s motion of 28th April, 2008 wherein the Appellant prayed the court below to award interest on the Judgment sum admitted and ordered. The Ruling of the court below is found on pages 234 – 238 of the Record of Appeal, part of which states:-
“From the records of the court, the Judgment entered on 7th December, 2006 was Judgment on admission made in open court during pre-trial conference. The records of the court also show that the learned counsel for the Claimant/Applicant did not apply that the interest be awarded on the said sum and none was granted. As stated earlier, the court does not grant to a party an award unsolicited. It therefore seems to me clear that no omission was made by the court in this case and there is nothing to rectify. More importantly, pre-Judgment interest though pleaded had not been proved and post Judgment interest which commences from the date of Judgment until liquidation of the Judgment sum has been overtaken by events, there being uncontroverted affidavit evidence before the court that the Judgment sum has been satisfied by the Defendant/Respondent and applied by the Claimant/Applicant.
For the reasons herein adumbrated, this application is considered unmeritorious and accordingly dismissed”.
The Ruling of the learned pre-trial conference Judge reproduced above clearly show, with due respect that Order 35 Rule 4 of the Lagos State High Court (Civil Procedure) Rules 2004 was either not taken into consideration at all or was misunderstood. Whichever is the case, a clear understanding of the aforesaid Rule of the court below makes the above Ruling unsupportable. Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004 under which the Appellant filed its application before the court below states-
“35(4) 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 exceeding 10% per annum to be paid upon any Judgment”.
The above rule of court empowers the trial Judge to award interest on the Judgment sum at the time of entering the Judgment or at any time afterwards. The fact that post Judgment interest is provided for in the Rules of Court, it was wrong for the court below to hold that the Appellant did not ask the court to award interest at the time the Judgment was entered and that the court does not give what was not asked for. This is much more so when the Appellant as Claimant had clearly asked for both pre and post Judgment interests in its Statement of Claim. In Nigeria Railway Corporation v. J. E. Emeahara & Sons Co. Ltd. (1994) 2 N.W.L.R. (Pt.325) page 206 this court held that in the light of the fact that the Plaintiff had claimed interest in its Statement of Claim, the lower court was in error for failing to consider the issue of interest in its Judgment.
Also, in Koiki v. First Bank of Nig. Plc. (Supra) this court also held that where, as in this case, a Judgment Creditor realizes that the court or Judge in the Judgment or order did not specify the rate of interest payable on the Judgment debt, the Judgment Creditor can apply to the court or Judge by Motion on Notice to determine the rate of interest. It is my view that the Appellant did the right thing when he filed its Motion on Notice on 28th April, 2008 praying the learned pre-trial conference Judge to award interest on the Judgment so admitted by the Respondent.
Finally on this issue, it was at all time before the court below that the Appellant in its Statement of Claim claimed the award of interest at the rate of 21% per annum. It must be noted that the claim of the Appellant was premised on improper deductions from the accounts of the Appellant on a facility which was granted to the Appellant by the Respondent at interest rates of between 21% and 36% per annum with interest calculated monthly. If the Respondent charged exorbitant interest on the facility it granted the Appellants, would it not be equitable that the Respondent also pays interest on the money of the Appellant it unlawfully deducted on which Judgment was entered? I agree with the learned counsel for the Appellant that the learned pre-trial conference Judge erred and misdirected herself when she held otherwise. I resolve the first issue in favour of the Appellant.
On issues two and three which I intend to take together, I wish to state clearly that it is not in every case that evidence has to be adduced in respect of interest claimed before interest can be awarded. In Nigerian General Superintendence Co. Ltd. v. NPA (1990) 1 N.W.L.R. (Pt. 129) 741, this court held that in certain cases, even failure to claim interest in the Writ of Summons or Statement of Claim will not preclude a successful Plaintiff from praying for and being awarded interest after Judgment had been entered for an amount. As was rightly canvassed by the learned counsel for the Appellant, I agree that where a case has been brought to court on commercial matters as in this case, and where in ordinary commercial practice money would, on the facts, have been paid sometime ago, it ought to carry interest. In NGSC Ltd. v. NPA (supra), it was held further that a Judgment for the return of money is usually accompanied by an award of interest for the period for which it is claimed and that in appropriate cases, where interest is awarded, though not claimed in the Writ, it is in the nature of a consequential order. It must be emphasized that the basis of an award of interest is that the Defendant has kept the Plaintiff out of his money and the Defendant has had the use of it to himself for which he ought to compensate the Plaintiff accordingly.
In Daniel Holdings Ltd. v. United Bank for Africa Plc (2005) FWLR (Pt.277) 895, the Supreme Court held that though the Plaintiff/Appellant’s claim of interest failed due to a procedural error of pleadings, yet since the transaction arose out of customer-banker relationship in which money paid by the Plaintiff was not credited to its account, the Plaintiff must have lost interest on his money. The court, in the absence of a contractually agreed rate, and the failure of evidence being led on the prevailing commercial rate, awarded it the general rate of interest applicable to Judgment debts. See also Afribank Nig. Plc v. Shanu (1997) 7 N.W.L.R. (Pt.514) 601.
In the instant case, the Appellant, not only claimed interest in its Statement of Claim but also averred in paragraph 6 of its Affidavit in Support of its Motion on Notice of 28/4/08 that the Respondent claimed interest at the rate of between 21% and 36% per annum on the facility made available to it. Therefore, when the Respondent admitted that it over deducted the Appellant’s account to the tune of N7,209,906.55 (seven million, two hundred and nine thousand, nine hundred and six naira, fifty five kobo) I think it was in the interest of justice to order interest on the Judgment sum. It appears that although the court is at liberty to award post Judgment interest on the Judgment sum without much ado, a Plaintiff seeking pre-Judgment interest must plead and lead evidence to prove same. In Berliet Nig. Ltd. v. Kachalla (1995) 9 N.W.L.R. (Pt.420) 478, the Supreme Court per Ogundare, JSC at page 500 paragraphs G – H held that: “There is clearly a difference between the award of interest pre-Judgment where the Plaintiff must specifically claim such and prove it and the award of interest on a Judgment-debt which is purely statutory and can only be awarded if there are provisions to that effect in the law or rules of the court”.
The fact that the Judgment sum has been paid by the Respondent to the Appellant does not in my humble opinion obliterate the Appellant’s right and entitlement to post Judgment award of interest. There is nothing in any law or rule of court which suggests that post Judgment interest given in Order 35 Rule 4 of the High Court Rules of Lagos State 2004 can be waived merely because the Respondent is willing to pay or has paid the Judgment sum. In Ethiopian Airlines v. Hon. Justice Sylvester Umaru Onu JSC (2005) All FWLR (Pt.632) at 637, it was held that the payment of costs and damages in a Judgment may be satisfaction of the said Judgment but it cannot be a bar to the exercise of the constitutionally guaranteed right of appeal against the Judgment. It was wrong for the court below to hold that because the Judgment sum has been paid, it had obliterated the Appellant’s right and entitlement to post Judgment interest. In view of the decision of the Supreme Court in Berliet Nig. Ltd. v. Kachalla (Supra) that pre-Judgment interest needs to be pleaded and proved by evidence, I resolve issue 2 against the Appellant. I however resolve issue three in favour of the Appellant.
On the last issue, I wish to state that the court has power at any time to correct an error in a Judgment or order arising from a slip or accidental omission whether there is or is not a general order to that effect. There is no doubt that once Judgment has been entered, the court cannot alter its decision except to correct minor errors whether of spelling or that of typographical or in the form of mathematical error wherein correct figures can be entered. See Berliet Nig. Ltd. v. Kachalla (Supra).
The power of the court to amend or correct its records on accidental slip is always inherent in the Jurisdiction of the court if it is brought to the attention of the Judge. Clerical mistakes in Judgments or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the court on Motion on Notice without an appeal. See Flour Mills of Nigeria Plc. v. Okosun (2005) All FWLR (Pt.255) 194 and UBA Ltd. v. Taan (287) 371.
In the instant case, the Appellant’s Motion for award of post Judgment interest clearly does not fall into the “slip Rule”. The prayers of the motion did not invite the court below to rectify or alter its orders made on 7th December, 2006. It was therefore wrong for the court below to hold that the motion was meant to rectify or alter its orders of 7th December, 2006. Issue 4 is thus resolved in favour of the Appellant.
The sum total of all I have endeavoured to say above is that this appeal has merit and is hereby allowed in part. The Ruling of the learned pre-trial conference Judgment made on 25th May, 2009 is hereby set aside. In line with Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004 and as empowered by Section 15 of the Court of Appeal Act 2004, I hereby order that the Respondent shall pay post Judgment interest on the Judgment sum of N7,209,906.55 (seven million, two hundred and nine thousand, nine hundred and six naira, fifty five kobo) at the rate of 10% per annum with effect from 25th May, 2009 when the Judgment sum was entered. The Appellant is entitled to costs and is assessed at N50,000.00 against the Respondent.
K.B. AKAAHS, J.C.A.: I read before now the judgment of my learned brother, Okoro JCA where he dealt with the issue of pre judgment interest and the need to plead and prove same before the trial court can award same. He also dealt with the appellant’s constitutional right of appeal which is not extinguished even where a party has paid damages and costs in satisfaction of the judgment citing the case of Ethiopian Airlines v. Hon. Justice Sylvester Umaru Onu, (2005) All FWLR (Pt. 632) 637. I adopt the said reasoning and conclusion reached in the leading judgment. I have nothing useful to add. The appeal therefore is meritorious and it is hereby allowed. I equally abide by the order made on costs.
RITA NOSAKHARE PEMU, J.C.A.: I have read before now the Judgment just delivered by my brother John Inyang Okoro J.C.A and I agree and fully adopt his reasoning and conclusions.
I also subscribe to the consequential order made in the Judgment inclusive of the one as to costs.
Appearances
P. K. Nwachukwu Esq.
D. Thomas (Miss)For Appellant
AND
M. E. Esonanjor Esq.,
P. O. Ndukwu Esq.,For Respondent
