EMMANUEL OKONKWO v. KANO AGRICULTURAL SUPPLY CO. LTD. & ANOR (2012)

EMMANUEL OKONKWO v. KANO AGRICULTURAL SUPPLY CO. LTD. & ANOR

(2012)LCN/5573(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of July, 2012

CA/B/178/2003

RATIO

EVIDENCE: GENERAL PRINCIPLE OF LAW ON MATTERS OF CONTRADICTION IN EVIDENCE OF PARTIES

A piece of evidence will be said to contradict another when it affirms the opposite of what that evidence has stated and not when there is just a minor discrepancy between the two. This position of law was reaffirmed by the Supreme Court in the case of; Nwachukwu v. Owunwanne (2011) All FWLR (Pt.589) p.1044 at p.1964, paras. B – C as follows:

Now, it is pertinent to reiterate the general principle of the law on matters of contradiction in evidence of parties before a court. That it is not all contradictions that result in the rejection of the evidence of a witness. It is only those that are material and result in a miscarriage of justice that would warrant such a rejection of evidence: Egesimba v. Onuzuruike (2002) FWLR (Pt.128) 1386, (2002) 9 SCNJ 46; Nsirim v. Nsirim (2002) FWLR (Pt.96) 433, (2002) 2 SCNJ 46; Ezembo v. Ibeneme & Anor. (2004) All FWLR (Pt.223) 1786, (2004) 7 SCNJ 135; Nwokoro & Ors, v. Onuma & Ors. (1999) 9 SCNJ 63. PER OYEBISI FOLAYEMI OMOLEYE J.C.A.

INTEREST: NATURE OF INTEREST AT COMMON LAW

Generally, at common law, interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. Thus, interest will be payable where there is an express agreement to that effect, which agreement may be inferred from either a course of dealing between the parties or where there is an obligation to pay interest in a particular business like banking. See the cases of: (1) Alforin Ltd. A.-G., Fed. (1996) 9 NWLR (Pt.475) p.634 at p. 638; (2) Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt.1172) p.67 and (3) G.K.F.I. (Nig.) Ltd. v. NITEL Plc. (2009) 115 NWLR (Pt.1164) p.344. PER OYEBISI FOLAYEMI OMOLEYE J.C.A.

INTEREST: PRINCIPLES OF LAW GUIDING THE AWARD OF INTERESTS

As to the issue on award of interest, it need be stressed that a judgment debt, is a debt or damage or other monetary award, which has been pronounced upon by a court of competent jurisdiction. It begins, when the court has pronounced on its judgment in favour of the plaintiff. Interest on a Judgment debt is therefore, interest after adjudication. It cannot be before that incident. So, to award interest on the judgment debt from the dated of accrual of the cause of action, is a contradiction in terms. So said this court in the case of Ekwunife v. Wayne (West Africa) Ltd. (1989) 5 NWLR (pt. 122) 422; (1989) 12 SCNJ 99 at 118….

In this country, the various High Court Rules of each State, make provision for the power to award interest…. It is not mandatory or obligatory that interest thereunder, must be claimed on the writ pleaded in the statement of claim… But before a court can depart from this power and award interest at the rate different from that provided in the Rules per annum, under a discretion envisaged by the opening clause of the rule, there must be facts and/or circumstances, to justify such a course. See the case of Wayne v. Ekwunife (supra) at 120.

I am aware that in the case of Augustus F. I, Ibama v. Shell Petroleum Development Co. of Nigeria Ltd. (1980) 3 NWLR (Pt.542) 493 at 500 CA. – per Uwaifo, J.C.A. (as he then was), it was held that the general rule, is that monetary Judgment, attracts appropriate interest even when one is claimed, See also the case of Nigeria General Superintendence Ltd. v. The Nigeria Ports Authority (1990) 1 NWLR (Pt.129) 741 at 74 C.A. But in the case of London, Chartham and Dover Railway Co. v. South Eastern Railway Co. (1893) A.C. 429 at 434, it was held that the general rule at common law, is that interest, is not payable on a debt or loan, in the absence of express agreement or some course of dealing or custom to that effect. Interest will however, be payable, where there is an express agreement to that effect and such agreement, may be inferred from a course of dealing between the parties. See the case of Re Duncan & Co. (1905) 1 Ch. 307, or where an obligation to pay interest, arose from the common or usage of a particular trade or business. PER OYEBISI FOLAYEMI OMOLEYE J.C.A.

INTEREST: WAYS A CLAIM FOR INTEREST ON A SUM OF MONEY CLAIMED AS A DEBT CAN ARISE

Firstly, as of right or secondly, where there is power conferred by statute to do so in the exercise of the court’s discretion. His Lordship referred to Ekwunife v. Wayne (West Africa) Ltd. per Nnaemeka-Agu, J,S,C and vice versa citing London Chattam & Dover Railway (supra). That the Statutory interest will only begin to run, from the date of the judgment. That the Statutory interest on a judgment debt, is distinct and separate from the interest which a plaintiff, must include in the Statement of Claim to the writ as being based on a contract or on the statute, as the case may be, before he can hope to recover it. See also the cases of Ogbu & 4 ors. v. Ani & 4 Ors. (1994) 7 NWLR (pt.355) 128; (1994) 7 SCNJ 383 and Jallco Ltd. & Anor. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (Pt.391) 534; (1995) 4 SCNJ 256 at 274. PER OYEBISI FOLAYEMI OMOLEYE J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

Between

EMMANUEL OKONKWO Appellant(s)

AND

1. KANO AGRICULTURAL SUPPLY CO. LTD.
2. ATTORNEY-GENERAL & COMMISSIONER FOR JUSTICE, KANO STATE JUDGMENT Respondent(s)

OYEBISI FOLAYEMI OMOLEYE J.C.A. (Delivering the lead judgment): This is an appeal against the judgment of the High Court of Justice, Edo State, sitting in Auchi in Suit No. HAU/38 /96 delivered on 10th day of June, 1999.
The brief background facts of this appeal are that, on 18th March, 1996, along the Auchi/Benin highway in Ariele, the Appellant’s vehicle, a Mercedes Benz 911 lorry with registration no. AN 459A parked around a restaurant by its driver PW2 was hit and completely shattered into pieces by the 1st Respondent’s Fiat Iveco Trailer with registration No. 2 KNSG 367 driven by the Respondents’ agent Abdulahi Sabo, who later died from injuries sustained in the accident, On the 10th of July, 1996, the Appellant took a writ and claimed damages against the Respondents jointly and severally as follows:
i. The sum of N3,000,000.00 (Three Million Naira) special damages being the current market value/purchase price of the said plaintiff’s Mercedes Benz 911 lorry, damaged beyond repairs through the negligent driving of the 1st and/or 2nd defendants’ servant or agent while in control, operation and management of the said FIAT IVECO Trailer No. 2 KNSG 367 on 18/3/96 along the Auchi/Benin Highway, Aviele.
ii. N210,000. (Two hundred and ten thousand Naira) special damages being the monetary cost/market value of the new 7 (seven) Michelin 11.00 tyres at N30,000 per tyre and tube.
iii, Loss of Use/Earnings of the said Mercedes Benz 911 lorry as a commercial vehicle from 19.3.96 at N10,000 per day (net of all outgoings) till the matter is finally determined.
iv. N150,000 miscellaneous expenses occasioned by the said accident such as cost of towing the Mercedes 911 lorry to the Police station, cost of transportation to and from Auchi etc.
v. Interest at the rate of 21% on the said amount claimed until the final determination of the suit.
In proof of his claim, the Appellant called seven witnesses and tendered while the Respondents called two witnesses in their defence. At the trial, the learned trial Judge found partly in favour of Appellant. The Appellant was not satisfied with the judgment of the trial Court, hence, he filed this appeal against it to this Court vide a notice and grounds of appeal dated 31st of July, 2000 which was filed on the 1st of August, 2000. The notice and grounds of appeal contained four grounds of appeal. The four grounds of appeal, without their particulars are hereunder reproduced as follows:
1. The learned trial Judge erred in law and in fact when he held that the plaintiff did not establish the pre-accident value of his vehicle by positive evidence to his satisfaction.
2. The learned trial Judge erred in law and in fact when he awarded the plaintiff the sum of N200,039.80 as the pre-accident value of his Lorry Reg. No. AN 459 A.
3. The learned trial Judge erred in law and in fact when he held that “I do not accept 310 days as a reasonable period required for procuring another vehicle. In my view 90 days (3 months) is quite adequate and reasonable. I therefore award the plaintiff N540,000.00 for loss of earnings (i.e N6,000 x 90 days)”.
4. The learned trial Judge erred in law when he failed to award interest of 21% claimed by the plaintiff on the successful heads of claims.
In the Appellant’s brief of argument dated 21st of July, 2004 filed on 27th of July, 2004 by his counsel, Mr. Frank O. Ezekwueche, three issues were distilled from the four grounds of appeal for determination, these state thus:
(i) Whether the learned trial Judge was correct to have awarded the sum of N200,036.80 as the pre-accident value of the Appellant’s Mercedes 911 Lorry Registration No. AN 459 A?
(ii) Whether the learned trial Judge was right to have raised the issue of 20% per annum depreciation of the Mercedes lorry suo motu?
(iii) Whether the learned trial Judge was correct in refusing to award interest on the awards made by the court in favour of the Appellant?
On the other side, Mr. Suraj Sa’eda, learned Solicitor-General of Kano State prepared the Respondents’ brief of argument dated 16th of December, 2010 which was filed on 20th of December, 2010. In it, the three issues formulated by the Appellant for determination were adopted by the Respondents, save for issue two which was recouched as follows:
Whether the learned trial Judge was right in awarding 20% depreciation on the Lorry?
In response to the Respondents’ brief of argument, the learned counsel for the Appellant prepared an Appellants’ reply brief which was dated 17th day of January, 2011 and filed on 20th day of January, 2011
When this appeal was heard by this Court on 8th of May, 2012, the learned counsel for both parties identified, adopted and relied on their respective briefs of argument for and against this appeal.
In the resolution of this appeal, I will adopt the three issues formulated by the Appellant and also consider issues one and two together in tune with the submissions of both counsel.
ISSUES ONE & TWO
(i) Whether the learned trial Judge was correct to have awarded the sum of N200,036.80 as the pre-accident value of the Appellant’s Mercedes 911 Lorry registration No. AN 459 A?
(ii) Whether the learned trial Judge was right to have raised the issue of 20% per annum depreciation of the Mercedes lorry suo motu?
The learned counsel for the Appellant reiterated that, the measure of damages to be awarded where a vehicle is a total loss due to the defendant’s negligence is the value of the vehicle at the time of the accident. He relied on this position on the cases of: (1) Kerewi v. Odegbesan (1965) 1 All NLR p.95; (2) Ubani Ukoma v. Nicol (1962) 1 SCNLR p.176; (3) Ibanu v. Ogbeide (1998) 12 NWLR (pt.576) p.1 at p. 12; (4) Armel’s Transport Ltd. v. Madam Tinuke Martins (1970) 1 All NLR p.27 and (5) Duru v. Azie (1992) 7 NWLR (Pt.256) p.688 at p.708 para. B. He argued that the Appellant established with credible evidence the pre-accident value of his Mercedes Lorry registration No. AN 459 A. The Appellant as PW1 said the value of a used lorry such as his own that was lost in the accident was selling for two million five hundred thousand Naira (N2,500,000.00.) PW6 is an automobile Engineer with A.G. Leventis Nig. Plc., (renowned for their expertise in Mercedes Benz brand), he is also a workshop superintendent there and hence an expert. He testified that although there was no price list for second-hand vehicles, the Appellant’s Lorry would at the time of the accident sell for two million eight hundred thousand Naira (N2,800,000.00). This evidence was not challenged by the defence and not having been challenged or contradicted or impeached, remained a piece of credible evidence. He also testified that the price of a new Mercedes Benz 911, lorry at the time was six million fifty five thousand Naira (N6,055,000.00.).
The learned Appellant’s counsel contended that the learned trial Judge abandoned the real issues in the matter and descended into the arena raising all sorts of issues not canvassed or raised by any of the parties. He restated the legal position that issues which are not before the court must not be imported into the parties’ claims either by the parties themselves or even the court. Appellant’s learned counsel submitted that the Appellant and Respondents did not join issues in their respective pleadings on the issue of the depreciation of the Appellant’s vehicle, hence the issue was not before the trial Court. The learned trial Judge wrongly imported into the action, a case that was not made by either the Appellant or the Respondents. For the issue of depreciation is essentially a defence, which ought to be pleaded in the Respondents’ pleadings that is, their statement of defence. On this position, he relied on the case of: Commissioner for Works, Benue State v. Devcon Ltd. (1988) 3 NWLR (Pt.83) p.407 at p.420 paras. A-G. Continuing, the Appellant’s counsel submitted that, it is an elementary and fundamental principle of law that the judgment of a court must be confined to issues raised by the parties in the dispute between them. A Judge cannot suo motu make a case for either or both parties and then proceed to give judgment contrary to the case of the parties before him. He referred to the cases of: (1) N.H.D.S Ltd. v. Mumuni (1977) 2 SC 57; (2) Savannah Ventures v. W.A.B. Ltd. (1997) 10 NWLR (Pt. 5241 p. 254; (3) Bornu Holdings co. Ltd. v. Bogoco (1981) 1 All NLR p.324; (a) Adeleke v. Iyanda (2001) 13 NWLR (Pt.729) p.1 at p.20 paras. B – D and (5) Ojiako v. Ewuru (1995) 9 NWLR (Pt.420) p.450.
On the value or cost of the scrap, that is, the remains of the Appellant’s lorry, exhibit M is the report prepared by PW5, the Vehicle Inspection Officer (VIO) Sunday Nosa Igbinadolor, who stated that the vehicle was damaged beyond repairs, as a result of the accident. The common thread running through the evidence of PW1, PW2, PW4, PW5 and PW6 is that the Appellant’s lorry was damaged beyond repairs, torn into pieces and reduced to a mere scrap. All the components of the Appellant’s lorry were destroyed and the lorry was completely dismembered. Scrap may or may not have value depending on the circumstances and extent of the accident. No value could be ascribed to the Appellant’s lorry scrap, in short the scrap had zero value, that is, no value whatsoever. It should be noted that the Respondents did not plead a contrary value in their statement of defence and they did not adduce evidence to state the value of the lorry scrap either under cross-examination or during their own defence. The findings of the learned trial Judge that the lorry scrap was worth N49,000.00 ought to be set aside as perverse and not flowing from the evidence before the court. The law is well settled that where one of the parties calls no evidence on an issue before the court, the evidence called by his adversary ought normally to be accepted as the truth unless it is of such a nature and quality that no reasonable tribunal will accept it. In other words, the onus of proof in a case or an issue in which one of the parties calls no evidence at all is discharged on a minimal of proof. On this stand, reliance was placed on the cases of: (1) Duru v. Nwosu (1989) 4 NWLR (pt.113) p.24 at p.55, paras. G – H; (2) Buraimoh v. Bamgbose (1980) 3 NWLR (pt.109) p.352; (3) Olujinle v. Bello Adeagbo (1988) 2 NWLR (Pt.75) p. 238 and (4) Nwabuoku v. Ottih (1961) ANLR p.507.

The law is settled that pursuant to Section 15 of the Court of Appeal Act, 2004, where a trial court has failed to advert its mind to the evidence on the record and makes unreasonable and perverse findings, the Court of Appeal is in as good position as the trial court to examine the evidence and make its own assessment provided such exercise does not call for making a decision on the credibility of witnesses based on their demeanor. On this position, he referred to the cases of: (1) Ntiaro v. Akpan 3 N.L.R p.8 at p.10; (2) Akibu v. Opaleye (1974) ii S.C. p.189 at p.203; (3) MISR Nig. Ltd. v. Ibrahim (1975) 5 S.C. p.55 at p.62 and (a) Samuel Obere v. The Board of Management Eku Baptist Hospital (1978) ANLR p.155 at p. 164. Learned counsel urged upon this Court to exercise its power under the said Section 15 and re-assess the damages awardable as the pre-accident value of the Appellant’s lorry.
Learned counsel for the Respondents on the contrary submitted that the crux of the instant matter is that the Appellant’s averments in his pleading were contrary to the oral evidence adduced by him at trial. On one hand there was the evidence of PW1 which put the pre-accident value of the vehicle at N2,5000,000 and on the other was the evidence of PW6 which put the pre-accident value of the vehicle at N2,8000,000, contrary to the sum of three million Naira (N3,000,000.00) Claimed by the Appellant in his pleadings as the pre-accident value of his lorry. In the light of the self-contradictory evidence presented at the trial on behalf of the Appellant, the learned trial Judge was duty bound and justified to reject same. The findings of the trial Judge were therefore not perverse. The Appellant has not been able to point at any error to warrant this Court’s interference with the findings of the trial Judge. The Appellant tendered evidence inconsistent with his pleading, on a key issue.
An appellate court would only interfere with the findings of fact by the trial court when it becomes very clear that the finding is perverse or it is not supported by evidence or is not the result of a proper exercise of judicial discretion. The Appellant’s counsel’s submission that the learned trial Judge should have picked one of the prices quoted by the Appellant’s witnesses would have amounted to use of whims and caprices. However, judicial process is a serious process not a game or multiple choice exercise, where one can simply pick one or choose another. The relief of the Appellant is at large. This is a fundamental defect which is not curable by submissions or assertions in a counsel’s brief of argument.
Furthermore, it was argued in favour of the Respondents that the issue of depreciation is inherent for the fact that the measure of damages to be used for the vehicle is its pre-accident value. The metaphor that the vehicle was in extensive use came first from the Appellant himself and certainly not from the learned trial Judge, it came about as a result of a proper appraisal of evidence. The learned trial Judge having been faced with irreconcilable evidence had to work out the most helpful way to the Appellant, hence the issue of depreciation became inescapable. It was the duty of the Appellant to bring forward evidence to show that the scrap left of his lorry commanded no value, but he woefully failed in this regard. PW1, PW2 and PW6 gave evidence regarding the damages on the lorry but none of them not even in an ambivalent term stated that the scrap had no monetary value.
Before I proceed to consider and make my findings in respect of this head, it is important to advert to the submissions of the learned counsel for the Respondents that, no issue was formulated from ground three of the Appellant’s notice and grounds of appeal. Ground three is the ground that complained about the award on loss of earnings. Indeed, the law is settled beyond peradventure that, in the absence of any issue being formulated from a ground of appeal such ground of appeal is deemed abandoned and liable to be struck out. I do not consider it necessary to refer to any legal authority on this trite legal position. In this event, I hold that ground three of the Appellant’s notice and grounds of appeal has been abandoned by the Appellant and same is hereby struck out.
Regarding the pre-accident value of the Appellant’s vehicle that was ruined as a result of the accident under review, the Appellant in paragraph 28(i) of his statement of claim, pleaded the sum of three million naira (N3,000,000.00) as the market value of the vehicle at the time of the said accident – see page 6 of the record. At trial, the Appellant, PW1 put the value of the vehicle at two million, five hundred thousand naira (N2,500,000.00) while PW6 put it at two million eight hundred thousand naira (N2,800,000.00), see pages 46 and 55 of the record of appeal respectively. In my humble but firm view, the three different figures are still within the same range. What is more, the figure by PW6 who ought to be treated as an expert is within the range of the sum claimed by the Appellant in his statement of claim. I fail to find any grave contradiction in this evidence adduced by the Appellant in proof of his claim for the pre-accident value of his vehicle. PW6, the engineer and workshop superintendent at A.G. Leventis Company who at one time or the other had the vehicle in question under his care could not be more eminent to attest to the value of the vehicle before the fateful accident. This is moreso that the Respondents did not discredit this evidence under cross-examination. Indeed the Respondents did not adduce any evidence to countermand any of the so-called different figures stated by the Appellant. See the cases of: (1) Magaji v. Nigeria Army (2008) 8 NWLR (Pt.1089) p.338; (2),Monkom v. Odili (2010) All FWLR (Pt.536) p.542 and (3) Offorlette v. State (2000) 12 NWLR (Pt.681) p.415. In the case of Monkom v. Odili (supra) at p.565 paras. B – E, Omokiri, JCA (of blessed memory) referred as follows to the legal principle laid down long ago by the Supreme Court on the burden of proof on a defendant on the preponderance of evidence:
In Imana v. Robbinson (1979) 3-4 SC 1, (1979) NSCC Vol. 12 page 1 at 5 the Supreme Court held, inter alia that:
Not having given evidence either in support of her pleadings or in challenge of the evidence of the plaintiff, the defendant must be assumed to have accepted the facts adduced by the plaintiff notwithstanding her general traverse as contained in paragraph 6 of the statement of defence.
Where a defendant rests his case on that of the plaintiff at the trial, the defendant has taken the enormous risk of blowing a muted trumpet. The trial court has little or no choice but to accept the unchallenged and uncontroverted evidence placed before it by the plaintiff since it was not discredited by the defendant during cross-examination:Okolie v. Marinho (2006) 15 NWLR (Pt.1002) 316 at pages 340-341; Otuedon v. Olughor (1997) 9 NWLR (Pt.521) 355.

The effect of a party’s failure to call evidence in defence of the claim against him at the trial is that he is presumed to have accepted the evidence adduced against him by the other party.
A piece of evidence will be said to contradict another when it affirms the opposite of what that evidence has stated and not when there is just a minor discrepancy between the two. This position of law was reaffirmed by the Supreme Court in the case of; Nwachukwu v. Owunwanne (2011) All FWLR (Pt.589) p.1044 at p.1964, paras. B – C as follows:
Now, it is pertinent to reiterate the general principle of the law on matters of contradiction in evidence of parties before a court. That it is not all contradictions that result in the rejection of the evidence of a witness. It is only those that are material and result in a miscarriage of justice that would warrant such a rejection of evidence: Egesimba v. Onuzuruike (2002) FWLR (Pt.128) 1386, (2002) 9 SCNJ 46; Nsirim v. Nsirim (2002) FWLR (Pt.96) 433, (2002) 2 SCNJ 46; Ezembo v. Ibeneme & Anor. (2004) All FWLR (Pt.223) 1786, (2004) 7 SCNJ 135; Nwokoro & Ors, v. Onuma & Ors. (1999) 9 SCNJ 63.
In the instant matter, I do not agree with the conclusion of the learned trial Judge that there are material contradictions in the evidence adduced by the Appellant in respect of this vital point. Under the circumstances I have no choice than to upturn the decision of the trial Court in this regard.
This brings me to the issues of an alleged twenty percent (20%) depreciation in the value of the Appellant’s lorry before and the costs of the scrap of same after the accident. For clarity and easy reference, I refer to pages 95 to 96 of the record of appeal wherein the learned trial Judge made the following pronouncements.
The plaintiff Emmanuel Okonkwo (PW1) told the court that he purchased his vehicle on 1/2/90 for the sum of N950,000.00. I have earlier in this judgment held that the plaintiff did not establish pre-accident value of his vehicle by positive evidence to my satisfaction.
I do however believe and accept the purchase price of the vehicle as given in evidence by the PW1. It has not been shown to the court the age of the vehicle, the number of kilometers it has covered at the time of the accident. The cost of the scrap after the accident was not given by any of the plaintiff’s witnesses. All that this court was told on this point is that the vehicle was purchased on 1/2/90 as a second hand vehicle for N950,000.00. This therefore is all that the plaintiff has proved. The vehicle is in extensive daily use throughout all roads in this country (See Exhibit ‘E’). It shows therefore that it must depreciate at a rather fast rate. It was on the road for 6 (six) years (i.e 1/2/90 to 18/3/96). I estimate the depreciation at the rate of 20% per annum bearing in mind that it was already in used (sic) before 1/2/90. Thus the pre-accident value of the vehicle in my judgment as at 18/3/96 was N249,036.80 (i.e original value less depreciation). See the table below:-
VEHICLE NO. AN 459 A – DEPRECIATION BY 20% PER ANNUM FROM
1/2/90-18/3/96
YEAR     VALUE           20% DEPRECIATION PER ANNUM
1. 1990        N950,000.00          N190,000.00
2. 1991        N760,000.00          N152,000.00
3. 1992        N608,000.00          N121,600.00
4. 1993        N468,400.00          N97,280.00
5. 1994        N389,120.00          N77,824.00
6. 1995        N311,296.00          N62,259.00
7. 1996        N249,036.00          N…
As I said earlier in this judgment, there is no evidence before me from the plaintiff to show what the scrap would cost. Again this court has to do its own estimate of the cost of the scrap which I accordingly put at N49.000.00 this amount I must also deduct from the pre-accident value. I have just found (i.e) N249.036.80 minus N49.000.00 = N200.039.80. So I award the plaintiff N200.035.80 as the pre-accident value of his vehicle. (Underlined mine for emphasis).
With all due respect to the learned trial Judge, it is crystal clear from his above reproduced words that he did not only descend into but more seriously, actually dwelt in the arena of the case. He made a completely different case for the parties which neither of them ever anticipated. On this point, the Supreme Court expressed its displeasure in very strong words, at courts which do not confine themselves to materials brought before them by litigants, in the case of:
Leaders & Co. Ltd. v. Bamaiyi (2010) 18 NWLR (Pt.1225) p.329 at p.340, paras. A-D per Fabiyi, JSC as follows:
Let me start by making the point that the raising of the issue of competence suo motu while writing the judgment equate with what is often referred to as cloistered justice. It is not the duty of a court to embark upon same by making enquiry in to the case outside the court. A Judge is an adjudicator: not an investigator: See Durieminiya v. C.O.P. (1961) NRNLR 70 at 74; Dennis Ivienagbor v. Henry Osato Bazuaye (1999) 6 SCNJ 235 at 243; (1999) 9 NWLR (pt.520) 552.

A Judge should not raise a point suo motu without hearing from the parties. This is to avoid being accused of descending into the arena. He has no business to bridge the yawning gap in the case of a party to the proceedings. See: Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182; Salubi v. Nwariku (1997) 5 NWLR (pt.505) 442; Olorunfemi v. Asho & 2 Ors. (1999) 1 S.C. 55; (1999) 1 NWLR (Pt.585) 1.
It is not correct for a court to give a decision on a point of which opportunity was not afforded counsel to argue at the hearing and particularly a point which throughout the hearing was not raised. See: Victino Fixed Odds Ltd. v. Joseph Ojo & 2 Ors. (2010) 3 SC (pt.1) 1, (2010) 8 NWLR (pt.1197) 486, Hambe v. Heze (2001) 2 SC 26 at 39; (2001) 4 NWLR (Pt.703) 372 at 388. (The underlined is mine for emphasis)
In my view, the learned trial Judge recklessly crossed the boundaries to import and tabulate figures in respect of depreciation in the value of the Appellant’s vehicle pre-accident period and the costs of the scrap left of it after the accident, even after specifically admitting that no such evidence had been placed before him on those issues. This is a typical example of utter and gross miscarriage of justice. I am quite aware of and I have warned myself regarding the settled law that evaluation of evidence and ascription of probative value thereto belong to the province of the trial court that heard witnesses and observed their demeanour and that an appellate court do not make a practice of interfering with the findings of facts made by the trial court – see the cases of: (1) Adebayo v. A. – G., Ogun State (2008) 7 NWLR (Pt.1085) p.201 and (2) Unity Bank Plc. v. Bouari (2008) 7 NWLR (Pt.1086) p. 372. However, the law is also trite that in certain special circumstances including a situation where the findings of facts are demonstrated to be questionably evaluated, wrongly appraised and perverse, as in the instant case, the appellate court will interfere and substitute its own findings for those of the trial court.
It is on this note that I must and hereby resolve issues one and two in favour of the Appellant and against the Respondents.
ISSUE THREE
Whether the learned trial Judge was correct in refusing to award interest on the awards made by the court in favour of the Appellant?
The learned counsel for the Appellant argued that, the Appellant is entitled to an award of interest on the monetary reliefs being claimed by him as that flowing from the accident in which the Appellant’s lorry, his source of livelihood was completely destroyed. The lorry was used for commercial purpose, the Appellant is therefore entitled to interest on the sum claimed by him over three years before the judgment of the trial Court was eventually delivered. This is moreso that the trial Court found as a fact that the accident was wholly due to the Respondents’ negligence. In this regard, he referred to the cases of: (1) Ekwunife v. Wayne (W/A) Ltd. (1989) 5 NWLR (Pt. 122) p.422 at p.445 para. B; (2) Olaogun Ent. Ltd. v. S. J. & M (1992) 4 NWLR (Pt.235) p.36 at pgs. 385 – 386 and (3) Nig. Vict. Ass. Co. Ltd. v. Grains Proc. Co. Ltd. (1995) 3 NWLR (Pt. 386) p. 671. He also referred to the case of: R.E.A.N. Ltd. v. Aswani iles Ind. (1991) 2 NWLR (Pt.176) p. 639 at p.671 para A: where it was held that, interest may be awarded in a case under two distinct circumstances, namely where it is claimed as of right or conferred by statute, to do so in exercise of the court’s discretion. The whole idea of interest is to compensate the successful party who has been kept out of funds to which he legitimately owns. Therefore, where a court gives a judgment for any debt or damages, it shall also have power to grant interest on same from the date of the writ to the date of judgment. This is because it is the right of the judgment creditor to earn interest on the judgment debt even where the judgment debt is to be paid forthwith. The position of the law is clear on this issue of interest namely that where such interest is pleaded and evidence adduced in respect thereof, the court will be wrong to refuse to award it. Hence, in counsel’s view, the Appellant herein is entitled to 21% interest on the sum claimed from the date of the writ and I0% as provided by the High Court rules, from the date of judgment until the judgment debt is fully liquidated. The Appellant is entitled to interest at this commercial rate because his lorry which was being used for commercial transportation was abruptly put out of his source or means or avenue of livelihood and he has been so kept out till now.
Replying on this issue, the learned counsel for the Respondents submitted that the Appellant merely endorsed the issue of interest as a relief. There was the need to also plead it in his pleadings and state the relevant facts justifying it. That having failed to plead the interest, he is barred from and therefore not entitled to it. On this argument, he relied on the cases of: (1) Consolidated Resources Limited v. Abofor Ventures Nigeria Limited (2007) 6 NWLR (Pt.1030)p. 221 at p.223 and (2) Agharaku v. F.B.N. Ltd. (2010) 3 NWLR (Pt.1182) p.465 CA.
Under this issue, the Appellant has claimed twenty-one per centum (21%) interest from the date he filed his writ and ten per centum (10%) interest from the date the trial Court delivered its judgment until the judgment debt is fully liquidated. Generally, at common law, interest is not payable on a debt or loan in the absence of express agreement or some course of dealing or custom to that effect. Thus, interest will be payable where there is an express agreement to that effect, which agreement may be inferred from either a course of dealing between the parties or where there is an obligation to pay interest in a particular business like banking. See the cases of: (1) Alforin Ltd. A.-G., Fed. (1996) 9 NWLR (Pt.475) p.634 at p. 638; (2) Diamond Bank Ltd. v. P.I.C. Ltd. (2009) 18 NWLR (Pt.1172) p.67 and (3) G.K.F.I. (Nig.) Ltd. v. NITEL Plc. (2009) 115 NWLR (Pt.1164) p.344.

In the case of G.K.F.I. (Nig.) Ltd. v. NITEL Plc. Supra at p.379, paras. C – H and p.380, paras. A – F, Ogbudgu, JSC, meticulously spelt out the principles of law guiding the award of interests in the following words:
As to the issue on award of interest, it need be stressed that a judgment debt, is a debt or damage or other monetary award, which has been pronounced upon by a court of competent jurisdiction. It begins, when the court has pronounced on its judgment in favour of the plaintiff. Interest on a Judgment debt is therefore, interest after adjudication. It cannot be before that incident. So, to award interest on the judgment debt from the dated of accrual of the cause of action, is a contradiction in terms. So said this court in the case of Ekwunife v. Wayne (West Africa) Ltd. (1989) 5 NWLR (pt. 122) 422; (1989) 12 SCNJ 99 at 118….
In this country, the various High Court Rules of each State, make provision for the power to award interest…. It is not mandatory or obligatory that interest thereunder, must be claimed on the writ pleaded in the statement of claim… But before a court can depart from this power and award interest at the rate different from that provided in the Rules per annum, under a discretion envisaged by the opening clause of the rule, there must be facts and/or circumstances, to justify such a course. See the case of Wayne v. Ekwunife (supra) at 120.
I am aware that in the case of Augustus F. I, Ibama v. Shell Petroleum Development Co. of Nigeria Ltd. (1980) 3 NWLR (Pt.542) 493 at 500 CA. – per Uwaifo, J.C.A. (as he then was), it was held that the general rule, is that monetary Judgment, attracts appropriate interest even when one is claimed, See also the case of Nigeria General Superintendence Ltd. v. The Nigeria Ports Authority (1990) 1 NWLR (Pt.129) 741 at 74 C.A. But in the case of London, Chartham and Dover Railway Co. v. South Eastern Railway Co. (1893) A.C. 429 at 434, it was held that the general rule at common law, is that interest, is not payable on a debt or loan, in the absence of express agreement or some course of dealing or custom to that effect. Interest will however, be payable, where there is an express agreement to that effect and such agreement, may be inferred from a course of dealing between the parties. See the case of Re Duncan & Co. (1905) 1 Ch. 307, or where an obligation to pay interest, arose from the common or usage of a particular trade or business.

In the case of Himma Merchants Ltd. v. Alhaji Aliyu (1994) 5 NWLR (Pt.347) 667; (1994) 6 SCNJ (Pt.1) 87 at 94 – 95, 97 – per Onu, J.S.C., it was held that there are legally two ways by which a claim for interest on a sum of money claimed as a debt, can arise.
Firstly, as of right or secondly, where there is power conferred by statute to do so in the exercise of the court’s discretion. His Lordship referred to Ekwunife v. Wayne (West Africa) Ltd. per Nnaemeka-Agu, J,S,C and vice versa citing London Chattam & Dover Railway (supra). That the Statutory interest will only begin to run, from the date of the judgment. That the Statutory interest on a judgment debt, is distinct and separate from the interest which a plaintiff, must include in the Statement of Claim to the writ as being based on a contract or on the statute, as the case may be, before he can hope to recover it. See also the cases of Ogbu & 4 ors. v. Ani & 4 Ors. (1994) 7 NWLR (pt.355) 128; (1994) 7 SCNJ 383 and Jallco Ltd. & Anor. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (Pt.391) 534; (1995) 4 SCNJ 256 at 274.
The conclusion of all that I have stated under this issue is that, the Appellant is not entitled to his claim for twenty one per centum (21%) interest on the sum being claimed by him, from the date of filing his writ against the Respondents, to the date of the judgment of the trial Court appealed against. Issue three is therefore partly resolved in favour of the Appellant.
Order 40 rule 7 of the High Court (Civil Procedure) Rules of Bendel State, 1988, as applicable in Edo State provides that:
The Court at the making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten per centum per annum to be paid upon any judgment, commencing from the dated thereof or afterwards, as the case may be.
In view of the above stated rule, it is my view and I hold that the Appellant is entitled to an interest of ten per centum (10%) per annum on the sum being claimed by him from the date of the judgment of the trial Court until it is fully liquidated.
In conclusion, I hold that this appeal is meritorious and it is hereby allowed. The judgment of the trial Court delivered on 10th day of June, 1999 is hereby set aside. Pursuant to the power conferred on this Court by Section 15 of the Court of Appeal Act, 2004, the claims of the Appellant have been established in part.
The Appellant is entitled to and accordingly granted his claims against the Respondents jointly and severally in the following terms:
(i) The sum of two million eight hundred thousand Naira (N2,800,000=) being the market value of the Appellant’s Mercedes Benz 911 lorry with registration No. AN 459 A damaged beyond repairs through the negligent driving of the 1st and/or 2nd Respondents’ servant or agent while in control, operation and management of their Fiat Iveco Trailer with registration No. 2 KNSG 367, on the 18th day of March, 1996, along the Auchi/Benin Highway at Aviele and
(ii) An interest on the judgment sum in paragraph (i) above, at the rate of ten per centum per annum from the date of the judgment of the trial Court, that is, 10th day of June, 1999, until the said judgment sum is fully liquidated.
I further hold that the Appellant is entitled to the costs of this appeal, which I assess at the sum of thirty thousand Naira (N30,000.00).

RAPHAEL CHIKWE AGBO J.C.A.: I agree.

CHIOMA EGONDU NWOSU-IHEME J.C.A.: Having been privileged to read before now the lead judgment rendered by my learned brother OMOLEYE JCA, I agree entirely for the reasons adumbrated in the said judgment that there is merit in this appeal. I also allow this appeal.
The judgment of the trial court delivered on the 10th day of June, 1999 is hereby set aside. The claim of the appellant have been established in part, the appellant is entitled to his claims against the respondents jointly and severally as enumerated in the lead judgment. I also abide by the order as to costs.

Appearances

Frank O. Ezekweche Esq.For Appellant

AND

Suraj Sa’eda S. G. Ministry of Justice, Kano StateFor Respondent