LIBRA IMPORTS NIGERIA LIMITED v. ACCESS BANK PLC
(2018)LCN/12190(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/L/450/2010
RATIO
COURT AND PROCEDURE: WHERE A PARTY CLAIMS RELIEF
“There is also no doubt that a party claiming a relief from the Court must give adequate grounds for the grant of such relief by the pleading of facts and adducing of evidence that would enable the Court grant such claims. This duty placed on the Claimant extends to and subsists in a claim brought under the summary judgment procedure, as the procedure is not meant to grant claims without proof, but to reduce time spent in Court when a Claimant believes and can show that the Defendant has no defence to his claim. See: LEWIS v. UBA (2016) LPELR-40661(SC); UZAKAH v. OKEKE (2017) LPELR-43445(CA); and ADEBOYE v. BAJE (2016) LPELR-40578(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
COURT AND PROCEDURE: WHERE COUNTER-CLAIM IS MADE
“This principle of law has been reiterated time and again, and in the case of ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR(2018) LPELR-44069(SC)(P. 34, Paras. B-F) Per KEKERE-EKUN, J.S.C., the Supreme Court held thus: ‘As rightly submitted by learned counsel for the 1st respondent, a counter claim, though filed within an existing suit, is an independent action. The counter claimant becomes the plaintiff while the original plaintiff becomes the defendant. The counter claimant has the onus of establishing his case just as he would if he were the original plaintiff. A counterclaim is subject to the same rules of pleading and standard of proof as the main action. See: Ogbonna vs. A.G Imo State & Ors (1992) LPELR-2287 (SC) @ 33 B – G; Gowon vs. Ikeokongwu (2003) FWLR (Pt. 147) 1027; Jeric (Nig) Ltd vs. Union Bank (2000) 15 NWLR (Pt. 691) 147; MAOBISON Interlink Assoc. Ltd vs. U.T.C (Nig) Plc (2013) 9 NWLR (Pt. 1359) 197; (2013) LPELR-20335 (SC) @ 12 B – D.'” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
LIBRA IMPORTS NIG LTDAppellant(s)
AND
ACCESS BANK PLCRespondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos State in SUIT NO: LD/1575/2006 delivered by Honourable Justice Doris Okwuobi on the 23rd day of September, 2009, wherein the Court gave judgment in favour of the Respondent.
The material facts leading to this appeal, are that the Respondent instituted this suit against the Appellant via a Writ of Summons dated 5th October, 2006 and claimed the following:
i. The sum of N29,912,717.76 (Twenty-Nine Million, Nine Hundred and Twelve Thousand, Seven Hundred and Seventeen Naira, Seventy Six Kobo only) and interest to be calculated at the rate of 20% per annum from 1st September, 2006 until judgment and thereafter at the rate of 6% per annum until final liquidation of the judgment debt.
ii. An order for the sale of the properties known and located at Cobham Avenue/Akinsanya Street, Ajao Estate, Isolo, Lagos State, covered by Certificate of Occupancy No. 77/77/2001D of the Lands Registry, Ikeja and No. 28, Niger Bridge Approach Road Layout, Onitsha, Anambra State, registered as No. 28/28/922 in the lands Registry Enugu, now Awka and covered by Power of Attorney registered as No. 56/56/146 Awka as the Defendants have authorised the Claimant to sell the properties in order to recover its outstandings.
iii. Costs of the action to be accessed at N500,000.00(Five Hundred Thousand Naira only) (sic)
In addition to the above, the Respondent filed other requisite processes including an application for summary judgment pursuant to Order 11 Rule 1, dated 5th October, 2006, with respect to the claims stated above.
The Appellant filed its requisite processes, including a Counter claim dated 6th February, 2006, wherein it claimed the following:
i. The sum of N30, 000,000.00 (Thirty Million Naira) being special damages incurred by the 1st Defendant in clearing of their goods at Lagos port, penalty paid to foreign supplier and additional demurrage paid on the 1st Defendants electronic items and loss suffered on its mercury soap and cosmetics products as a result of the delay in releasing the multiple credit/overdraft facilities.
ii. Cost upon a full indemnity basis.
The trial Court gave summary judgment upon the said application of the Respondent and held that the Respondent was entitled to the sum of N29,912,717.76 (Twenty-Nine Million, Nine Hundred and Twelve Thousand, Seven Hundred and Seventeen Naira, Seventy Six Kobo only) and interest to be calculated at the rate of 19% per annum from 1st September, 2006 until judgment. He also struck out the Appellants counter claim.
Dissatisfied with the above, the Appellant appealed to this Court vide a 2nd Amended Notice of Appeal dated 22nd May, 2017, and filed on 24th May, 2017, but deemed properly filed on 3rd October, 2017, with three grounds of appeal.
The Appellants Amended Brief settled by Lamid Taofik Ajisola is dated 22nd May, 2017, and filed on 24th May, 2017, but deemed properly filed on 30th October, 2017
Appellants counsel formulated three issues for determination to wit:
1. Whether the learned trial Judge was right when he delivered judgment summarily and without evidence in the sum of N29,912,717.76 (Twenty-Nine Million, Nine Hundred and Twelve Thousand, Seven Hundred and Seventeen Naira, Seventy Six Kobo only) in favour of the Respondent.
2. Whether the learned trial Judge was right when he awarded 19% interest in favour of the Respondent on the sum of N20,000,000.00 (Twenty Million Naira) facilities granted to the Appellant when the Respondents Amended Statement of claim did not contain reliefs for interest and did not plead facts in support of its claim for interest.
3. Whether the learned trial Judge has the jurisdiction to suo motu strike out the Appellants Counter claim without trial or hearing evidence and when none of the parties in the suit applied for striking out of the Appellants Counter claim (Ground 2).
Respondent did not file any brief of argument and I will proceed to determine this appeal on the issues raised by the Appellants counsel, treating issues one and two together.
Learned counsel submitted that the trial Judge was wrong to have awarded the sum of N29,912,717.76 (Twenty-Nine Million, Nine Hundred and Twelve Thousand, Seven Hundred and Seventeen Naira, seventy-six kobo) without any evidence or proof of how the sum was arrived at. He further submitted that from paragraphs 10, 11 and 17 of the Amended Statement of claim, it is clear that the facility granted to the Appellant was the sum of N20,000,000 (Twenty Million Naira only) and that the additional sum of N9,912,717.76 (Nine Million, Nine Hundred and Twelve Thousand, Seven Hundred and Seventeen Naira, Seventy Six kobo) was the alleged interest calculated by the Respondent.
Learned counsel for the Appellant further argued that it was wrong for the trial Court to have granted the Respondent interest, as interest was not claimed nor even referred to in the Amended Statement of Claim filed on 15th May, 2007 (CHECK), which supersedes the claim in the Writ of Summons and Statement of Claim filed on 5th October, 2006, as amendment relates back to the beginning of the action.
He relied on Vulcan Gases Ltd v. G.I.G (2001) 5 SC (Pt.1) 15 par 10; Fatunbi v. Olanloye (2004) 6-7 SC P. 68 at 86; and Kayode v. Odutola (2001) 5 SC (11) 126.
Learned counsel also argued that the Respondents Motion dated 5th October, 2006, for Summary Judgement could not constitute the basis for the grant of interest, as such an application must relate to the claim before the Court as contained in paragraph 26 of the Amended Statement of Claim and confine itself to the reliefs sought therein. He cited Okoya v. Santilli (1991) 7 NWLR (Pt. 206) p.765 pars B-C.
Counsel submitted that the trial Judge could not rely on paragraph 9 of the original statement of claim to justify the grant of interest, because the statement of claim had been superseded by the latter one and if not, said paragraph 9 would still not ground the grant of interest via reliance on Exhibit A2 and A4 as held by the Judge, because there is no averment in the Respondents on whether there was any interest agreed and the rate thereof, thus falling foul of the rule of pleadings.
RESOLUTION
It is trite position of the law that a Court is bound by the reliefs claimed by the parties, and it does not have the vires to grant more than a party has asked for.
See: EDILCON (NIG) LTD v. UBA PLC (2017) LPELR-42342(SC); UNITED MICRO-FINANCE BANK, EKPAN & ANOR v. EKUWEM (2018) LPELR-44159(CA); and NDIC v. GATEWAY PAPER PRODUCTS LTD & ANOR (2018) LPELR-43795(CA).
There is also no doubt that a party claiming a relief from the Court must give adequate grounds for the grant of such relief by the pleading of facts and adducing of evidence that would enable the Court grant such claims. This duty placed on the Claimant extends to and subsists in a claim brought under the summary judgment procedure, as the procedure is not meant to grant claims without proof, but to reduce time spent in Court when a Claimant believes and can show that the Defendant has no defence to his claim.
See: LEWIS v. UBA (2016) LPELR-40661(SC); UZAKAH v. OKEKE (2017) LPELR-43445(CA); and ADEBOYE v. BAJE (2016) LPELR-40578(CA).
One major ground for the attack on the judgment of the lower Court by the Appellant is that the sum awarded by the trial Court was not the amount owed and was not an amount that the Respondent established at trial. It is indeed correct to argue that money claimed under a summary judgment proceeding is one which must be certain or liquidated or readily ascertainable. This Court gave an wholesome analysis of what constitutes a liquidated money demand in the case of DIGITAL SECURITY TECHNOLOGY LTD & ANOR v. ANDI (2017) LPELR-43446 (CA). (Pp. 23-24, Paras. A-B) Per OGUNWUMIJU, J.C.A.,thus:
“There is no doubt that several Supreme Court authorities have held that the summary judgment procedure is for liquidated money demands.
The term liquidated money demand has been held to be a sum of money previously agreed upon by the parties to a contract, if the action is based on a breach of contract. See Akpan v. Akwa Ibom Property & Inv. Co. Ltd (2013) 6 SCNJ 400. It has also been defined as a definite settled sum which the defendant cannot deny. Liquidated money demand was interpreted by the Supreme Court in Maja v. Samouris (2002) 7 NWLR Pt. 765 Pg. 78 as an ascertained claim or specific amount; which means there is nothing more that needs to be done to determine the quantum of extent of the defendant’s liability. When the amount to be recovered is not agreed upon but depends on circumstances and is fixed by opinion or estimate, it is said not to be liquidated. In essence, the amount claimed must be ascertainable, and if based on a contract, it must have been accepted upon by the parties thereto. According to Black’s Law Dictionary, 8th Edition at page 246, Liquidated money demand means an amount previously agreed on by the parties or that can be precisely determined by operation of law. At the same page it defines unliquidated claims a claim in which the amount owed has not been determined.”
See: General Tyres W.A. Ltd. v. Spring Bank Plc. (2010) LPELR-9067(CA).
A calm look at the amended statement of claim dated 16th May, 2007, especially paragraphs 12, 17, 18 and 19, reveals the basis for the claim of N29,912,717.76 (Twenty-Nine Million, Nine Hundred and Twelve Thousand, Seven Hundred and Seventeen Naira, seventy-six kobo). The implication of this is that the trial Court was right to have granted the amount, as it was based on the pleadings of the Respondent.
Another ground upon which the Appellant challenged the judgment of the trial Court is that the interest awarded was not specifically pleaded by the Respondent. The law on award of pre-judgment interest is clear and to the effect that interest must be specifically pleaded or be such that arises from the transaction as a matter of mercantile custom.
The Supreme Court in the case of NPA v. AMINU IBRAHIM & CO. & ANOR(2018) LPELR-44464(SC)(Pp. 66-68, Paras. D-E) Per PETER-ODILI, J.S.C., gave an exposition on the above thus:
“On the matter of pre-judgment interest, the law is clear that such interest is awarded where there is an agreement for payment of interest, in which case a claim as such must be pleaded and proved as it would not do to just state a claim for pre-proof of same. However a Court can grant pre-judgment interest on a monetary or liquidated sum awarded to a successful party even where such a party did not plead or adduce evidence to prove it as such interests naturally accrue from the failure to pay the sum involved over a period of time thereby depriving a party from the use and enjoyment of the sum involved. That in my humble view is substantial Justice. I make reference to the case of Adeyemi v Lan and Baker (Nig) Ltd (2000) 7 NWLR (pt.663) 33 pg 48, paras D-E, it was held thus:- “…The law on pre-judgment interest is that the award must be based on either statute, contract or mercantile custom or equity and the plaintiff must plead the basis and lead satisfactory evidence. That is so but the law recognizes the right to interest of plaintiff in claim for the return of money from commercial transactions particularly where the defendants has held the money of the plaintiff for some time. In a situation arising from commercial matters I should think that a party holding on to the funds of another for so long without justification ought to pay him compensation for so doing.” See also Petgas Res. Ltd v Mbanefo (2007) 6 NWLR (Pt. 1031) 545.
A trial Court can award judgment interest. The authority to award judgment interest is enshrined in the Rules of Court. Please see the case of B.E.G.H Ltd v. U.H.S & L. Ltd (2011) 7 NWLR (Pt.1246) 246. The relevant position contained in the Federal High Court (Civil procedure) Rules 2000 is found in Order 42 Rule 7 this states as follows:- “The Court 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 Court deems fit and may order interest at a rate not exceeding 10% per annum to be paid upon any judgment, commencing from the date thereof or after wards, as the case may be.” On the final point is that it is too late in the day for the appellant to complain about the report and that delay in complaint has constituted a waiver which needs not be pleaded to apply. See Ekundayo v F.C.D.A (2015) LPELR – 24512, Auto Import Export v Adebayo (2005) 19 NWLR (Pt.959) 44.” See: DAVE EGBEJULE (T/A DEVKON VENTURES) & ANOR v. FORTHRIGHT SECURITES & INVESTMENT LTD (2017) LPELR-43540(CA); DASOFUNJO v. AJIBOYE (2017) LPELR-42354(CA); and L. O. YEMOS (NIG) LTD & ANOR v. UNITY BANK (2016) LPELR-41211(CA).
The pertinent question therefore is on what basis did the trial Court award said interest? The rationale behind the decision of the trial Court to award interest can be gleaned from page 230 of the records which is herein reproduced thus:
In paragraph 9 of the statement of claim the claimant averred that the terms and conditions attached to the offer letter of 13th October, 2003, were accepted by the Defendant. This fact is evident by Exhibit A2. This is therefore an express agreement on the interest rate of 19% per annum on the facility. Exhibit A7 the offer letter of the loan facility dated 27th November, 2003, placed the interest rate of the same 19% per annum. So also the offer made to the 1st Defendant on 28th April, 2005. I am therefore guided by these documentary evidence and can only give the Claimant on the agreed rate.
I have no evidence of interest at the rate of 20% per annum. If indeed this had been varied it was not proven. I will in the circumstance make an award on interest in this suit on the principal sum for which judgment has been entered at the rate of 19% percent per annum from 1st September, 2006 until today being judgment day.
The Appellant has not adduced enough reasons to depart from the above finding by the trial Court and I find that there is nothing wrong with the award of interest at the rate of 19% per annum, as it arose from the agreement of the parties.
These issues are resolved against the Appellant.
ISSUE THREE:
WHETHER THE LEARNED TRIAL JUDGE HAS THE JURISDICTION TO SUO MOTU STRIKE OUT THE APPELLANTS COUNTER CLAIM WITHOUT TRIAL OR HEARING EVIDENCE AND WHEN NONE OF THE PARTIES IN THE SUIT APPLIED FOR STRIKING OUT OF THE APPELLANTS COUNTER CLAIM (GROUND 2)
Learned counsel for the Appellant argued that the trial Judge was wrong to have summarily dismissed the Appellants Counterclaim at the time of delivery of the said summary judgment, instead of setting down the counterclaim for trial, due to the fact that a counterclaim is a distinct action with a life of its own.
He relied on Narindex Trust Ltd v. N.I.M.B. Ltd 2001 4 SC (Pt.11) P. 25 at 39.
Learned counsel submitted that the act of the Judge constitutes a breach of the Appellants fundamental right to fair hearing, especially in light of the fact that neither of the parties asked for the relief of striking out the Appellants Counterclaim, thus robbing the Court of jurisdiction to grant same.
He relied on the cases of Fatunbi v. Olanloye (supra) 86; Ogundoyin v. Adeyemi (2001) 7 SC (Pt. II) P.98 at 107-109; and Kenon v. Tekam (2001) 7 SC (Pt.III) 49 at 56.
RESOLUTION
There is no doubt that a counterclaim is a distinct action, which though placed at the end of a Defendants Statement of Claim, is separate from the main action and has a life of its own. This principle of law has been reiterated time and again, and in the case of ATIBA IYALAMU SAVINGS & LOANS LTD v. SUBERU & ANOR(2018) LPELR-44069(SC)(P. 34, Paras. B-F) Per KEKERE-EKUN, J.S.C., the Supreme Court held thus:
“As rightly submitted by learned counsel for the 1st respondent, a counter claim, though filed within an existing suit, is an independent action. The counter claimant becomes the plaintiff while the original plaintiff becomes the defendant. The counter claimant has the onus of establishing his case just as he would if he were the original plaintiff. A counterclaim is subject to the same rules of pleading and standard of proof as the main action. See: Ogbonna vs. A.G Imo State & Ors (1992) LPELR-2287 (SC) @ 33 B – G; Gowon vs. Ikeokongwu (2003) FWLR (Pt. 147) 1027; Jeric (Nig) Ltd vs. Union Bank (2000) 15 NWLR (Pt. 691) 147; MAOBISON Interlink Assoc. Ltd vs. U.T.C (Nig) Plc (2013) 9 NWLR (Pt. 1359) 197; (2013) LPELR-20335 (SC) @ 12 B – D.”
See: OKECHUKWU & ANOR v. NWOSU & ANOR(2018) LPELR-44893(CA); OPIONACHIE v. FAYEMI(2018) LPELR-44134(CA); and OKAM & ORS v. IGWE & ANOR(2018) LPELR-43685(CA).
It must however be noted that where findings or evidence in the main action apply to the counterclaim, the trial Court is not bound to go through the whole gamut of re-hearing issues that has been determined.
In summary judgment proceedings, the counter claim can only be ripe for hearing after the Defendant has been granted leave to defend the action. This is the import of the decision of this Court in the case of OBI v. AKUBUEZE & ORS (2017) LPELR-42750 (CA) (P.27, Para. A), where OGUNWUMIJU, J.C.A. held thus:
The point here is that the filing of a counter claim by the Appellant is irrelevant in the circumstances of this case. Until the Appellant as defendant to a claim for summary judgment had been given leave to defend the claim and the suit had been put on the general cause list, the issue of filing a counter claim did not arise. Afortiori the issue that the learned trial judge did not consider the counter claim cannot be cause for complaint.
This issue is consequently resolved against the Appellant.
The end result of this discourse is that the appeal has no merit and is hereby dismissed. The decision of the lower Court delivered on 23rd September, 2009 in Suit No: LD/1575/06 is affirmed.
There shall be costs of Two Hundred Thousand Naira (N200, 000.00) in favour of the Respondent against the Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A.
Appearances:
Shola Lamid with him, Jadesola KoyaFor Appellant(s)
For Respondent(s)
