AMOS BEZ IDAKULA (Des’d) v. DORCAS RICHARDS & ANOR
In The Court of Appeal of Nigeria
On Wednesday, the 12th day of July, 2000
JUSTIN THOMPSON AKPABIO Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
CHRISTOPHER MITCHELL CHUKWUMA-ENEH Justice of The Court of Appeal of Nigeria
AMOS BEZ IDAKULA (Des’d)
Substituted by Mrs. Rhoda Idakula Appellant(s)
(1) DORCAS RICHARDS
(2) SAVANNAH BANK LTD Respondent(s)
AKPABIO, J.C.A. (Delivering the Leading Judgment): ‘This is a composite appeal against three decisions of Momoh J. (as she then was) of the Plateau State High Court, sitting at Jos in suit No. PLD/J/334/89 delivered on three different dates as follows:
(i) “Judgment delivered on 22/4/91 for plaintiff against 1st defendant for the admitted sum of N30,000.00 with 15% interest effective from July, 1987 till amount is fully paid up. The unadmitted balance and case against 2nd defendant is to proceed to trial on 8/5/91.
(ii) Judgment delivered on 16/5/91 as follows at p.56 of records:-
The plaintiff now claims the balance of N28, 200 with 15% interest from July, 1987. Defendant Pleads liable to the said balance claimed. The defendant liable to pay the balance of N28,200.00 with 15% interest from July, 1987. Defendant ordered to pay the said amount.
I apply to be allowed to pay N15,000.00 per quarter.
The defendant to pay the judgment debt when due by quarterly instalments in advance beginning from the month of June, 1991 until amount is fully liquidated. The 1st defendant’s vehicle Reg.No. PL 16 JE seized in execution is to be released. The case against the Bank, 2nd defendant adjourned to 10/7/91. The notice and grounds of appeal was filed on 27/6/96.
(iii) A ruling of the learned trial Judge delivered on 12/12/91 dismissing an application of the judgment debtor applicant to set aside its ruling of 13/11/91 granting leave for the judgment-creditor to levy execution on the immovable property of the judgment debtor at 15 Mangu Road, Jos on the ground that the motion papers were served on the judgment debtor on 12/11/91 and argued and granted on 13/11/91, when two clear days had not yet expired as required by Order 8 rule (4)(17) and (21) of the High Court Civil Procedure Rules of Plateau State.”
The notice and grounds of appeal against this last ruling was dated 12th December, 1991.
The facts of the case leading to these multiple appeals were as follows: Sometime in April, 1987, the 1st respondent, Dorcas Richards, was awarded a contract by the Directorate for Rural Development to supply ten INDIA MARK II hand pumps at the rate of N6,500.00 (Six thousand five hundred Naira only) per pump totaling N65,000.00. On finding difficulty in obtaining INDIA MARK II hand pumps locally, the plaintiff wrote to the said Ministry of Rural Development pleading that she should be allowed to supply Nigerian Hand pumps instead of the INDIAN at the same price, and she was duly granted permission to do so.
In due course, the hand pump were duly delivered, and vouchers for the sum of N58,200.00 (i.e. N65,000.00 less Government Tax) duly prepared and made payable to the plaintiff. However, for a reason that was not clearly explained in her pleadings, plaintiff directed that the cheque for N58,200.00 should be delivered to the 1st defendant for onward payment to her. That was done, but instead of the 1st defendant taking the cheque to the plaintiff, he paid the cheque into his personal account at the Savannah Bank in Jos. Not only that, he also began to take out of the money and converted to his personal use. When plaintiff came to know about these, she wasted no time in instituting an action against the 1st defendant alone for the recovery of her money-N58,200.00 only. Furthermore, for a reason that was also not stated, the plaintiff changed her counsel and brought in a new counsel O. B. James Esq., who now filed amended papers joining Savannah Bank Ltd. as 2nd defendant. He further increased the amount claimed from N58,200.00 to N208,200.00 whereof N58,200 was the plaintiff’s money fraudulently converted by the 1st defendant, while N150,000.00 was damages for negligence apparently against the 2nd defendant, for allowing or colluding with 1st defendant to allow him cash a cheque that was not endorsed to him.
An amended statement of claim was also filed to bring in the 2nd defendant, the additional cause of action and the increased amount claimed. In response to the amended statement of claim the 1st defendant filed a statement of defence in which he admitted collecting a cheque for N58,200.00 from the Ministry of Rural Development on behalf of the plaintiff, but stated further that he was authorized by the plaintiff to deduct the sum of N11,100.00 from the money as his commission for intervening on behalf of the plaintiff with the officials of Ministry of Rural Development to influence them to vary the terms of the contract with plaintiff, by allowing her supply to them TEN NIGER HAND PUMPS instead of TEN INDIA MARK II HAND PUMPS originally contained in the specification given to plaintiff. It was in accordance with the plaintiff’s instruction that he paid the Lion Bank’s cheque given to him by the Ministry of Rural Development into his account at Savannah Bank Ltd. Apart from deducting N11,100.00 for himself as instructed by plaintiff, he also invested N30,000.00 in Idakula Mining Company also as directed by plaintiff. Finally, that he was also directed by the plaintiff to pay over the balance of N17,100.00 to her in the name of NDUDIM IKELUA, who resided at No. 7 Enugu-Agidi Street, which was plaintiff’s business Head Office, and he did so by a Savannah Bank Cheque No. 142/c 112537 issued on 16/7/87.
After some protracted delay, the 2nd defendant also filed its statement of defence in which he denied all the allegations of fraud, collusions and negligence made against it by the plaintiff. He stated further that the 1st defendant had pleaded passionately with them to allow him pay the cheque for N58,200.00 issued in the name of “CASOBIC (NIGERIA) ENTERPRISES” into his account as he was the Managing Director of the said company and they allowed him to do so.
In due course, the case came before Momoh J. (as she then was) for trial at High Court No. 4 Jos on 22/4/91.
On that day Mr. Moses Gwadana who appeared as counsel for the 1st defendant informed the court that the 1st defendant was liable to the plaintiff in the sum of N30,000.00 as against N58,200 claimed. Mr. O. B. James who was the learned counsel for plaintiff then applied for judgment in the said sum of N30,000.00 with 15% interest admitted by the 1st defendant for the balance to proceed to trial.
The learned trial Judge then entered judgment in favour of plaintiff as follows:-
“(1) Judgment for the plaintiff against the 1st defendant for the admitted sum of N30,000.00 with 15% interest effective from July, 1987 till amount is fully paid up.
(2) The unadmitted balance and case against 2nd defendant to proceed to trial on 8/5/91.
Sgd. C. A. R. Momoh
Against this judgment, the 1st defendant, did not appeal immediately, but waited till 27th June, 1996 when he had to obtain leave and extension of time from the Court of Appeal, Jos, before doing so. On that same date the 1st defendant through his counsel filed a notice of appeal with only one ground of appeal that read as follows:
The learned trial Judge erred in law when she ordered the appellant to pay 15% interest per annum on the sum admitted on 22/4/91 from July, 1987 when she lacked the jurisdiction to so order and this has occasioned a substantial miscarriage of justice.
Eight “Particulars of error” were thereafter set down, which is not necessary to reproduce here, as they were later subsumed in the issues for determination.
As mentioned in the introductory paragraphs of this judgment there were two other appeals in this case making three altogether. The next appeal was against the decision of the same Judge against the 1st defendant on 16/5/91, when the case went to court again for the hearing of in respect of the unadmitted balance of N28,200.00. However, on that day, instead of the plaintiff commencing to give evidence on her case, or calling other witnesses, the following notes then appeared in the record at p. 56 lines 19-28:
“The plaintiff now claims the balance of N28,200 with 15% interest from July, 1987. Defendant pleads liable to the said balance claimed. The defendant liable to pay the balance of N28,200.00 with 15% interest from July, 1987. Defendant ordered to pay the said amount. I apply to be allowed to pay N15,000.00 per quarter. The defendant to pay the judgment debt when due by quarterly instalments in advance beginning from the month of June, 1991 until amount is fully liquidated. The 1st defendant’s vehicle registration No. PL 16 JE seized in execution is to be released. The case against the Bank, 2nd defendant adjourned to 10/7/91.”
Against the above judgment, the 1st defendant also appealed on 27th June, 1996, after obtaining leave and extension of time from the Court of Appeal, Jos, to do so. Two grounds of appeal were filed, which without their particulars read as follows:
The learned trial Court erred in law when it entered judgment for the respondent in the sum of twenty-eight thousand, two hundred Naira when there was neither admission by the appellant nor evidence adduced in proof and this has occasioned a substantial miscarriage of justice.
The learned trial Judge erred in law when she ordered the appellant to pay 15% interest per annum the sum on 16/5/91 from July, 1987 when she lacked the jurisdiction to so order and this has occasioned a substantial miscarriage of justice.”
A separate brief of argument dated 12th September, 1996 was later filed in which two issues for determination were raised as follows:
“(a) Whether the judgment of the lower court given on the 16/5/91 for the balance of N28,200 is justified.
(b) Whether the claim for interest awarded by the trial court has any valid basis.
Issues A & B formulated above relates to grounds 1 & 2 respectively.
Finally, a 3rd notice of appeal dated 12 December, 1991 was filed complaining against a decision of the learned trial Judge, Momoh, J. (as she then was) when she dismissed the application brought by the appellant to set aside the order of court on 13th November, 1991 which granted leave for execution to be levied against 1st defendant’s immovable property at No.15 Mangu Road, Jos. However, I have looked through the whole of our courts record and can find no indication that a brief of argument was subsequently filed in this appeal as required by our rules. In such a situation, it is our law that:
“Where no argument was offered in a brief in support of a ground of appeal, such a ground of appeal, is deemed to have been abandoned, and should be struck out. Ukariwo Obasi & Anor v. Eke-Onwuka & Ors. (1987) 7 SCNJ 84, (1987) 3 NWLR (Pt. 61) 364.”
I should also mention that on the oral hearing of this appeal (ex parte) on 15/5/2000, Mr. Oguadinma who appeared as learned counsel for appellant informed the court that they had consolidated their two appeals together, i.e. appeals No.CA/J/104/96 and CA/J/104A/96, for which two briefs were dated and filed on same date 12/9/96. He was therefore arguing them. In the absence of respondent, the two appeals were deemed consolidated and therefore argued together. Also, in view of the authorities mentioned above, it is deemed that the notice and grounds of appeal filed on 12/12/91 against the learned trial Judge’s ruling of 12/12/91 was inferentially abandoned. It is hereby struck out. I should also mention that there is in this appeal file, a motion paper dated 8th December, 1997 and filed on 11/12/97 which indicated that the original appellant Amos Bez Idakula died on the 7th November, 1997, as a result of a road traffic accident along Suleja-Minna road. As a result of that application which was supported by a Death Certificate dated 8/11/97 from General Hospital, Minna, the name of the original appellant (Amos Bez Idakula) was struck out, and that of his wife Mrs. Rhoda Idakula substituted as the new appellant to enable the appeal heard to the end.
The said application was duly granted on 7/11/99. All the processes of court in this appeal ought therefore to have been amended to show that the new appellant was Mrs. Rhoda Idakula. It appears that only the name on the file jacket was amended. It is accordingly hereby ordered that all the documents in this appeal records be amended to show Mrs. Rhoda Idakula (Administratrix of Amos Idakula (deceased) – Appellant.
With the death of the original appellant comes the question as to whether the cause of action survived the deceased or not, based on the maxim that ‘action personalis moritur cumpersona’. This is a question of law (not fact) which was not raised nor argued by any of the parties or their counsel. It is our rule of practice that where a point of law is raised by the court, suo motu, learned counsel on both sides should be given opportunity to address on it. However, since the respondent had lost interest in this appeal, and filed no brief at all, in consequence of which the appeal was heard ex parte on 15/5/2000, we do not think that any useful purpose will be served in stopping the judgment at this late stage, to write counsel for any further addresses. The question whether the cause of action survived the deceased 1st defendant/appellant or not, was a question that should have been considered by our learned predecessors in this court, when the motion for substitution was moved and granted. Since we cannot sit on appeal over the judgment or ruling of our learned brothers, we assume their decision was right. See the case of Mbadinuju v. Ezuka (1994) 8 NWLR (Pt.364) 535 and Ajakaiyi v. Idehai (1994) 8 NWLR (pt. 364) 504; Adebisi v. Saka (1995) 8 NWLR (pt. 414) 475 and Ebonga v. Uwemedimo (1995) 8 NWLR (pt.411) 22 C.A.
I shall therefore continue to consider this appeal, based on the issues formulated in the two briefs of arguments in appeal No. CA/J/104A/96
The only issue formulated in appeal No. CA/J/104/96 reads as follows:
“Whether the trial Judge was right in awarding to the respondent interest at the rate of 15% from the time of the transaction till payment”
The simple answer to this in the submission of the learned counsel for the appellant was that the court had no right to have awarded both a pre-judgment interest, which must usually be based on the agreement of the parties, as well as a post judgment interest which is governed by the rules of court under which the court cannot award more than 10% interest on any judgment debt. The Supreme Court case of Ekwunife v. Wayne (WA) Ltd. (I989) 5 NWLR (Pt. 122) 422 was cited in support as well as several others.
“I have carefully considered the lone issue for determination formulated in this case and must say that this is a case in which the appellant tried to kill a fly with a sledge hammer. He cited as many as 20 decided cases just to show that the learned trial Judge was not right in awarding to respondent interest at the rate of 15% from time of the transaction till payment. It should be noted that the appellant did not appeal against the award of the principal sum of N30,000.00 which appellant himself admitted. The only quarrel was against the award of 15% interest which the learned trial Judge was misled by the plaintiff’s counsel to award on the erroneous assumption that it was part of the admission made by the 1st defendant, whereas it was not. The admission concerned only the sum of N30,000.00 being part of the principal amount claimed, and did not cover the amount of interest and the rate claimed. In the recent unreported case of Alh. Ibrahim Umaru Wuro Hausa v. First Bank of Nigeria Plc decided by this court in appeal No.CA/J/295/98 on 12th April, 2000, (Coram Akpabio, Chukwuma-Eneh and Mangaji, JJ.C.A.) in which the facts were similar, I had the following to say in the lead judgment:
“I have carefully considered all the arguments canvassed above by learned counsel on both sides, and must agree with learned counsel for respondent that there are two types of interest charges usually awarded by the courts in this country, namely (a) pre-judgment interest and (b) post-judgment interest. As submitted by the learned counsel for the respondent, pre-judgment interest must be claimed by the plaintiff in his writ of summons, and evidence subsequently adduced in proof of it, failing which the court will not award it. I should also mention the fact that the award of pre-judgment interest is usually dependent on the agreement of the parties and the custom of the trade concerned. The court will readily award a pre-judgment interest where the plaintiff is a Commercial Bank, and the rate of interest fixed at the inception of the loan or overdraft transaction; whereas if the plaintiff was a private person; or the loan stated to be a “friendly loan” and nothing said about interest charges at the time of entering into the loan agreement, the court will not award interest in such circumstances. (See the cases of U.B.N v. Sax (Nig) Ltd. (1994) 8 NWLR (Pt. 361) 150; U.B.N Ltd. v. Salami (1994) 3 NWLR (Pt. 333) 385. See also the recent case of U.B.N. Ltd. v. Salami (1998) 3 NWLR (Pt.543) 538″.From the foregoing, I have no difficulty in holding that the learned trial Judge was in error in awarding 15% pre-judgment interest on the admitted sum of N30,000.00 “effective from July, 1987 till amount is fully paid up”. Although this item of claim appeared on both the writ of summons and the amended statement of claim, there was no evidence whatsoever to show whether payment of interests was agreed upon by the parties, and if so, at what rate. Also none of the parties was a licensed Commercial Bank so as to make any trade custom applicable. The award of interest charges must therefore be disallowed and set aside as was done by the Supreme Court in the case of Himma Merchants Ltd. v. Aliyu (1994) 5 NWLR (Pt.347) 667.
Furthermore, as pointed out by the learned counsel for the appellant the trial court had discretion under Order 40 Rule 7 of the High Court (Civil Procedure) Rules 1987 of Plateau State to award a post-judgment interest at the rate of not more than 10% per annum from the date of judgment till final liquidation. This is a discretion given by the Rules to the learned trial Judge to be exercised on the date of delivering judgment. She did not do so nor did so wrongly. Can this court now do so?
The answer in my respectful view is in the affirmative because under S.16 of the Court of Appeal Act, 1976, the Court of Appeal is given wide powers to do anything which the court below could have done. In other words, we have “full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance”.
Pursuant to S. 16 of our Court of Appeal Act, therefore, while the award of pre-judgment interest at 15% from July, 1987 to date of judgment is hereby set aside, post-judgment interest at the rate of 10% per annum is hereby granted to the respondent on the admitted sum of N30,000.00 from 22/4/91, being the date of judgment, till the amount is fully paid up.
In effect therefore, the appeal No.CA/J/104/96 succeeds partially and is hereby allowed as such. For avoidance of doubt, the pre-judgment interest of 15% per annum awarded from July, 1987 to date of judgment on the admitted sum of N30,000.00 is hereby set aside, as there was no evidence to support it. However, the post-judgment interest, which is discretionary, is hereby awarded to the plaintiff/respondent at the rate of 10% per annum on the same amount from date of judgment (22/4/91) till final liquidation, instead of at the rate of 15% per annum earlier awarded by the learned trial Judge.
I now turn to appeal No.CA/J/104A/96 in which two issues were formulated as follows:
(a) Whether the judgment of the lower court given on the 16/5/91 for the balance of N28,200 is justified and
(b) Whether the claim for interest awarded by the trial court has any valid basis.
As in the sister-appeal, only the appellant filed his brief of argument, while the respondent filed no brief. I shall therefore proceed to dispose of this appeal based on the only brief filed by the appellant.
Re: issue “(a) whether the judgment of the lower court given on the 16/5/91 for the balance of N28,200.00 was justified.
The main complaint under this issue was that the learned trial court erred in law when it entered judgment for the respondent in the sum of twenty-eight thousand two hundred Naira when there was neither admission by the appellant nor evidence adduced in proof thereof. It was pointed out that the main business before the court that day was a motion for stay of execution and installmental payment which counsel moved on that 16/5/91. It was then submitted that there was no evidence on record showing that the appellant either in person or through his counsel admitted liability in the sum of twenty-eight thousand, two hundred Naira. It was conceded however that on the said 16/5/91, apart from entertaining the application for installmental payment, the learned trial Judge went further to enter judgment for the balance of N28,200 without any application made in that regard, and also awarded interest at 15% retroactively. It was against that judgment that the appellant has now appealed. It was then submitted that the said judgment was unjustified and a breach of the appellant’s constitutional right, and that a substantial miscarriage of justice has been occasioned. The court was then urged to allow this appeal on that ground. No respondent’s brief was filed to counter the above argument.
I have already reproduced in the introductory paragraphs of this judgment, the full of the judgment now appealed against, dated 16/5/91, which appears at p. 56 of the records. For convenience of exposition I shall reproduce it again hereunder as follows:
“The plaintiff now claims the balance of N28,200 with 15% interest from July, 1987. Defendant pleads liable to the said balance claimed. The defendant liable to pay balance of N28,200.00 with 15% interest from July, 1987. Defendant ordered to pay the said amount. I apply to be allowed to pay N15,000.00 per quarters. The defendant to pay the judgment debt due by quarterly instalments in advance beginning from the month of June, 1991, until amount is fully liquidated. The 1st defendant’s vehicle reg. No. PL 16 JE seized in execution is to be released. The case against the Bank, 2nd defendant adjourned to 10/7/91.
(Sgd) C.A.R. Momoh J.
From the above extract, I regret to say that I do not see anything unusual about it. It simply shows that the 1st defendant/appellant, who had earlier on 22/4/91 pleaded liable to only the sum of N30,000.00, and chose to contest the balance of N28,200.00 later came to court on 16/5/91, when the contest was billed to commence, and decided to change his plea, and ask for installmental payment instead, and he was duly given both the change of plea and the installmental payment. I should also state that under our jurisprudence a record of appeal is presumed to be correct and accurate, unless shown by affidavit to be otherwise. An appeal should be fought on the basis that the record is correct. Where record of appeal does not correctly represent what took place at the court below, steps should be taken to make it so. See the cases of Ehikioya v. C.O.P. (1992) 4 NWLR (pt. 233) 57 at 74; Djeme v. Momodu (1994) 1 NWLR (Pt. 323) 685 at 697.
In the instant case, no affidavit has been filed by either the appellant or his counsel to say that the record was incorrect in any material respect. It was not sufficient for the appellant’s counsel to come to the court for the first time, to say that the record was not accurate as no trial took place on that date. The law is that “what is admitted needs no proof.” (See 75 of Evidence Act, 1990). Therefore, where a defendant, as in this case admitted the balance of plaintiff’s claim, there was nothing more left to be contested. The record is deemed to be correct. Issue No.1 is therefore hereby resolved in favour of the respondent, namely that judgment of the lower court given on 16/5/91 for balance of N28,200 was justified.
“Whether the claim for interest awarded by the trial court has any valid basis.”
This issue is the same as the only issue for determination in the sister appeal No.CA/J/104/96, just decided. In that case I held that there are two types of interests usually awarded by our courts of law viz:-
(i) Pre-judgment interests otherwise known as “interests as of right” and
(ii) Post-judgment interest, otherwise known as “Discretionary interests”, which a court is allowed by the Rules of Courts to award to a successful litigant at the end of the trial, at a rate fixed by the rules, which is usually between 5% and 10%.
In respect of pre-judgment interest, (or interest as of right), a plaintiff must claim it in his pleadings, and also call evidence at the trial to establish it. Usually, it is founded on the agreements of both parties or on any mercantile or trade custom. The courts will usually award a pre-judgment interest where one of the parties is a licensed Commercial Bank, and not where the plaintiff is a private person. In the instant case since the appellant was a private person and did not also testify to give the basis of his pre-judgment interest of 15% per annum, awarded from July, 1987 to date of judgment, it was wrongly awarded and must be set aside. The post judgment interest of 15% per annum awarded from date of judgment until final liquidation, should have been allowed to stand if it had not exceeded the statutory limit of 10% per annum given under Order 40 rule 7 of the Plateau State High Court (Civil Procedure Rules, 1987). The said interest award is hereby set aside, but in its place shall be instituted a new award at the rate of 10% per annum from date of judgment 16/5/91) until final liquidation, by virtue of powers conferred on this court by S. 16 of Court of Appeal Act, 1976.
This appeal therefore succeeds partially as in the sister case, and is therefore allowed as such. The pre-judgment interest at the rate of 15% per annum from July, 1987 to date of judgment on the balance sum of N28,200.00 is hereby set aside. However, the post-judgment interest on the same amount from date of judgment till final liquidation is hereby reduced from 15% to 10% per annum.
On the totality of the foregoing the appeals in appeal Nos.CA/J/104/96 and CA/J/104A/96 succeeds partially in that pre-judgment interests of 15% per annum from July, 1987 to date of judgment are hereby set aside as there was no evidence given as to the basis of such an award. However, the post-judgment interest awarded from date of judgment till final liquidation is hereby reduced from 15% per annum to 10% per annum in accordance with Order 40 Rule 7 of the High Court Civil Procedure Rules, 1987 of Plateau State. There shall be costs of N3,000.00 in favour of the appellant in the consolidated appeal.
UMOREN, J.C.A.: I agree.
CHUKWUMA-ENEH, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Akpabio, J.C.A. I agree with his reasoning and conclusion therein. I abide by the consequential orders made in the leading judgment.
Appeals allowed in part.
Davitz I. Oguadinma Esq.For Appellant
Respondent absent and unrepresented.For Respondent