CHIEF B.E.C. OKAFOR & ANOR. V. GEOFFERY EJIOGU (2011)

CHIEF B.E.C. OKAFOR & ANOR. V. GEOFFERY EJIOGU

(2011)LCN/4668(CA)

In The Court of Appeal of Nigeria

On Monday, the 4th day of July, 2011

CA/E/235/2006

RATIO

ISSUES RAISED ON GROUNDS OF APPEAL: WHETHER AN APPELLATE COURT CAN ONLY HEAR AND DECIDE ON ISSUES RAISED ON GROUNDS OF APPEAL BEFORE IT

The law is settled in many respects as it relates to appeals. In this regard there is abundance of decided cases that an appellate court can only hear and decide on issues raised on grounds of appeal before it; and that any issue not covered by any ground of appeal is incompetent and will be struck out. See AGALA V. EGWERE [2010] All FWLR (Pt. 532) 1009; AMIMIKE INVESTMENT LTD V. LADIPO (2008) All FWLR (Pt.426) 1929 at 1943; and IDRIS & ORS V. AUDU (supra) at 1147. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A 

ISSUE FOR DETERMINATION: WHETHER IT IS PERMITTED TO FORMULATE MORE THAN AN ISSUE OUT OF A GROUND OF APPEAL

It is also settled law that though an issue may be formulated out of a ground of appeal or from a combination of grounds of appeal, it is not allowed or permitted to formulate more than an issue out of a ground of appeal. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A 

ISSUE FOR DETERMINATION: WHETHER ISSUE FOR DETERMINATION MUST BE DISTILLED FROM APPELLANT’S GROUNDS OF APPEAL

…the position of the law is that issue for determination in an appeal, must be distilled from the appellant’s grounds of appeal and not that of the respondent. This is because the traditional role of a respondent is to support the judgment the subject matter of the appeal and not otherwise unless he decides to file a cross-appeal. See OGUNSOLA v, NICON (2010) All FWLR (Pt. 536) 423 (SC); AGBOR v. THE POLYTECHNIC, CALABAR (2010) All FWLR (Pt. 533) 1998; and SAMBAKIU V. SANNI (2010) All FWLR (Pt. 505) 1629. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A 

COUNTER-CLAIM: WHETHER A COUNTER-CLAIM IS A SEPARATE AND INDEPENDENT OF THE MAIN CASE

This is in view of the settled position of the law that though a counter-claim is tried in the same action as the main case, a counter-claim is still a separate and independent action. See OGLI OKO MEMORIAL FARMS LTD V. NIGERIAN AGRICULTURAL AND CO. OPERATIVE BANK LTD [2008) 12 NWLR (Pt. 1098) 412; and FIRST BANK OF NIGERIA PLC V. FAIKO NIG, LTD (2008) All FWLR (Pt, 416) 1960.” Per LOKULO-SODIPE, J.C.A (P. 28, p

PERVERSE FINDING: WHEN IS A FINDING REGARDED AS  PERVERSE
…dwelling on what amounts to a perverse finding in LAGGA V. SARHUNA (2009) All FWLR (455) 1617 the Supreme Court per Tobi, JSC; at pages 1654 – 1655 said thus:- “A perverse finding is one which ignores the facts or evidence led before the court and when considered as a whole amounts to a miscarriage of justice………… A finding is perverse if it is not borne out of the evidence before the court. a perverse finding is a finding which is not only against the weight of evidence, but, is altogether against the evidence itself. It is a finding which no reasonable tribunal should have arrived at in the light of the evidence before it. And who says that an appellate Judge has not the competence to deduce or better, abduct such perversity from the record? While demeanour, the way of acting, conduct, or behaviour of a witness in the witness box materially assists the trial Judge in coming to a decision as to the authenticity or veracity of the evidence, the cold record also materially assists the appellate Judge ………………..” PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A 

BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN CIVIL CASES

The position of the law is that in civil cases the burden of proof rests on the party, whether plaintiff or defendant, who asserts the affirmative of an issue in dispute. lt rests on the party who will fail if no evidence at all or no more evidence, as the case may be, were given on either side. See YUSUF V. ADEGOKE [2010] All FWLR (Pt. 385) 384 at 405; and ASUQUO V. ASUQUO (2010) All FWLR (Pt. 458) 952 at 967. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A 

JUSTICES

ABOJI ABOKI (PRESIDED) Justice of The Court of Appeal of Nigeria

AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

1. CHIEF B.E.C. OKAFOR
2. OSCO NIGERIA LIMITED Appellant(s)

AND

GEOFFERY EJIOGU (Trading under the name and style of Ejiogu Brothers and Co. (Nig) Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 28/1/2005 by Hon. Justice P.A.C. Obidigwe of the Onitsha Judicial Division of the Anambra State High Court of Justice (hereafter simply referred to as “the lower court”). The judgment appealed against was given in favour of the plaintiff.
By a “Claim brought under the undefended list: Order 5 Rule 14” of the then Civil Procedure Rules of the lower court, and filed on 25/11/1996, the Respondent as Plaintiff claimed jointly and severally from the Appellants as Defendants, the sum of N385,555.00 being the amount the Appellants owed the Respondent. An affidavit in support of “Claim” was duly filed by the Respondent. After the “Claim” and the affidavit in support of “Claim” were eventually served on the Appellants, they filed a Notice of Intention to defend the suit. It is dated 23/10/1998 and was filed on 28/10/1998. An Affidavit in support of Notice of Intention to Defend was duly filed by the Appellants.
Consequent to the filing of the Notice of Intention to Defend and the affidavit in support of the Notice, the Respondent on 26/5/1999 filed a Statement of Claim equally dated 26/5/1999 in the case. Therein the Respondent who claims to be a businessman who deals in paints and allied materials, alleged that he sold various types of paint worth N385,555.00 to the Appellants. The 1st Appellant is a building contractor and Managing Director of the 2nd Appellant. It is the case of the Respondent that the Appellants used the paints in finishing the house of one Mrs. Maduabum. That the 1st Appellant promised to pay for the paints out of the fees due to him from Mrs. Maduabum who was then in the USA but was due to come home on Christmas vacation when she would take over the building. The Respondent said that all the paints supplied to the Appellants were collected and signed for by one “Jonas” who was at all material times a driver in the employment of the Appellants. That “Jonas” conveyed the consignments of paints in a pick-up van painted in the logo of the 2nd Appellant and which belonged to the Appellants. The Respondent narrated the ordeals he passed through due to the non-payment by the Appellants of the money for the paints supplied to them. The Respondent also alleged that the 1st Appellant issued him with two post dated cheques against 26/6/1995 in the name of an Estate Agent, Emma Ezeh only to request for the cheques before the maturity date, in order to advance cash payment but that the 1st Appellant failed to do this. Having narrated other events that transpired between him and the Appellants, including the report he made to one O.C. lgwealor, the Respondent further said to the effect that he instituted the instant action when it dawned on him that the Appellants did not want to pay for the paints supplied them. Given the case set up in the Statement of Claim, the Respondent claimed the following reliefs from the Appellants jointly and severally: –
(a) The sum of N385,555.00 only being debt owed the Respondent by the Appellants.
(b) 21% interest from 1st January, 1995 until judgment is delivered.
(c) Interest at the rate of 5% from date of judgment until liquidation of the debt.
The Appellants’ Statement of Defence is dated 8/10/1999 and filed on 22/10/1999. Therein the Appellants not only denied ever buying paints from the Respondent in the circumstances narrated in the Statement of Claim but also denied mandating “Jonas” or anybody by whatever name called to negotiate any credit facilities for them. Indeed, the Appellants denied ever having any person that goes by the name “Jonas” in their employment. The Appellants disclosed that the only transactions in connection w1h paints which they had on credit with the Respondent were in the total sum of N23,600.00 and further narrated how the monies owed the Respondent in respect of the transactions were paid. The Appellants alleged that the 1st Appellant paid the Respondent a sum of N26,000.00 because the Respondent approached the 1st Appellant for financial assistance to enable him settle the rent for his shop. The Appellants gave a Notice of Counter-Claim in the Statement of Defence. The Appellants basically relied on the averments in the Statement of Defence in respect of the Counter-Claim and claimed from the Respondent the following reliefs:-
(a) The sum of N2,4000.00 being the sum owed the Defendants (Appellants) by the plaintiff (Respondent).
(b) Interest on the said sum at the rate of 21% per annum until judgment, thereafter interest at the rate of 5% per annum until the entire sum is liquidated.
The Respondent gave evidence in his own behalf and called one other witness (his wife), in the proof of his case; while the 1st Appellant only, gave evidence on behalf of himself and the 2nd Appellant. The learned trial Judge after evaluating the evidence adduced by the parties, and having also had the benefit of the addresses of learned counsel for the parties, found the Respondent to have established his case on the preponderance of evidence and therefore entitled to judgment. Consequently judgment was entered in favour of the Respondent against the Appellants jointly and severally as follows: –
“(a) Three hundred and eighty-five thousand, five hundred and fifty-five naira (N385,555.00) being debt owed to the plaintiff (Respondent) by the defendants (Appellants);
(b) 21%/o pet annum interest on N385,555.00 from the 1st day of January, 1995 until the 28th day (sic) January, 2005;
(c) 5% per annum interest on (a) and (b) above from the 1st day of February, 2005 until the entire amount is fully liquidated;
(d) I assess and fix costs at N10,000.00 in favour of the Plaintiff (Respondent).’
(Words in bracket supplied by me).
The Counter-Claim of the Appellants was found to have failed and was dismissed by the learned trial Judge, The judgment of the lower court was delivered on 28/1/2005.

The Appellants being aggrieved with the judgment lodged an appeal against the same by a Notice of Appeal dated 31/1/2005 and filed on 1/2/2005. The Notice of Appeal contains 4 grounds of appeal. The relief which the Appellants seek in the appeal is one allowing the appeal and for the judgment of the lower court to be set aside and for this Court to substitute therefore judgment dismissing the Respondent’s claims in their entirety.
In accordance with the Rules of this Court parties filed and exchanged Briefs of Argument. Appellants’ Brief of Argument dated 27/10/2009 and filed on 28/10/2009 as well as Appellants’ Reply Brief of Argument dated 20/7/2010 and filed on 23/7/2010 were settled by Chief Chidube Ezebilo (SAN); while Respondent’s Brief of Argument dated 21/11/2009 and filed on 21/1/2010 but deemed as properly filed and served on 14/7/2010 was settled by F.A. Onwuachi Esq. The appeal was entertained on 6/4/2011 and Chief Chidube Ezebilo (SAN) learned senior counsel for the Appellants and F.A. Onwuachi learned lead counsel for the Respondent, adopted and relied on the respective Briefs of Argument of the parties as hereinbefore identified.
Four lssues are formulated for the determination of the appeal in the Appellants’ Brief of Argument. They read thus:-
1. Whether the learned trial judge had made proper evaluation of evidence to justify his findings and conclusions resulting in the judgment against the Defendants (i.e. Appellants) in this case.
2. Whether it was right for the learned trial Judge to hold that the burden of proof is on the Defendants (i.e. Appellants) to disprove that he did not send one ‘Jonas lgwe” to collect paints from the shop of the Plaintiff (Respondent) worth N385,555.00 when the circumstances in this case has not warranted the shifting of burden of proof from Plaintiff (Respondent) to the defendants (Appellants) on the issue.
3. Whether it was right for the learned trial Judge to have awarded 21% interest on the amount claimed as debt by the Plaintiff (Respondent) from 1st January 1995 until the date of judgment in the case when the said 21% interest was not agreed upon by both parties nor was there any evidence adduced by the Plaintiff (Respondent) during the trial to show how he came about the 21% interest claimed by him.
4. Whether the learned trial Judge was right to have awarded in his judgment 5% interest per annum on the judgment debt of N385,555.00 and 5% interest on the amount realised from 21% interest awarded by the Court as pre-judgment interest.
Five issues are formulated for the determination of the appeal in the Brief of Argument of the Respondent. The issue read thus: –
1. Whether the learned trial Judge had properly evaluated the evidence adduced by both parties at the court below to justify his findings and conclusions resulting in the judgment delivered by the court below.
2. Whether the learned trial Judge was right in his findings by shifting the burden of proof to the Defendants (Appellants) as it concerns withholding evidence as regards Defendants’ (Appellants) sending one “Jonas Igwe” to collect paints worth N385,555.00 from the Plaintiffs (Respondent) shop on 23/12/94.
3. Whether the trial Judge was right to have awarded 21% interest on the amount claimed by the Plaintiff (Respondent) from 1st January, 1995 until the date of judgment in the case.
4. Whether the learned trial Judge was right to have awarded 5% interest per annum on the judgment sum.
5. Whether this appeal is competent.
The first exercise I consider pertinent to embark upon is, to determine which of the issue/issues for the determination of the appeal as formulated by the parties, is/are most appropriate for the determination of the appeal; or whether to formulate an issue or issues which I believe will determine the main complaints or grievances in the appeal. See IDRIS & ORS V. AUDU (2008) All FWLR (Pt. 422) 1122 at 1148 – 1149. This is against the backdrop of the obvious fact that the Respondent in his Brief of Argument has engaged in the proliferation of issues for determination in the appeal, as he has formulated more issues than there are grounds of appeal.
The law is settled in many respects as it relates to appeals. In this regard there is abundance of decided cases that an appellate court can only hear and decide on issues raised on grounds of appeal before it; and that any issue not covered by any ground of appeal is incompetent and will be struck out. See AGALA V. EGWERE [2010] All FWLR (Pt. 532) 1009; AMIMIKE INVESTMENT LTD V. LADIPO (2008) All FWLR (Pt.426) 1929 at 1943; and IDRIS & ORS V. AUDU (supra) at 1147.     It is also settled law that though an issue may be formulated out of a ground of appeal or from a combination of grounds of appeal, it is not allowed or permitted to formulate more than an issue out of a ground of appeal.     Likewise the position of the law is that issue for determination in an appeal, must be distilled from the appellant’s grounds of appeal and not that of the respondent. This is because the traditional role of a respondent is to support the judgment the subject matter of the appeal and not otherwise unless he decides to file a cross-appeal. See OGUNSOLA v, NICON (2010) All FWLR (Pt. 536) 423 (SC); AGBOR v. THE POLYTECHNIC, CALABAR (2010) All FWLR (Pt. 533) 1998; and SAMBAKIU V. SANNI (2010) All FWLR (Pt. 505) 1629.
I am of the considered view that issues 1 to 4 of the five issues formulated by the Respondent even though not ipsissima verba with those formulated by the Appellants are at least sufficiently subsumed in the issues formulated by the Appellants. Issue 5 of the five issues is however on a different pedestal. By issue 5 of the five issues the Respondent has formulated for the determination of the appeal, he is challenging the competence of the instant appeal. lt has earlier been stated that the settled position of the law is that issues for determination in an appeal must flow from or be distiled from the grounds of appeal. In other words issues for determination in an appeal are confined to and circumscribed by the grounds of appeal and any issue not related to a ground or grounds of appeal is incompetent and liable to be struck out. See ETA V. ANWAN (2010) All FWLR (Pt. 546) 570 at 577; and ABDULLAHI V, NIGERIAN ARMY (2009) All FWLR (Pt. 500) 643 at 680. In the instant appeal, the Respondent therefore has no option in law, than to formulate the issues for determination, from the grounds of appeal contained in the Notice of Appeal.
The four grounds of appeal contained in the Notice of Appeal filed by the Appellants shorn of their respective particulars read thus:-
“GROUNDS OF APPEAL
1. GROUND ONE – ERROR IN LAW: The learned trial judge erred in law when he held that failure by the plaintiff to call Jonas (Igwe) to testify on his behalf is not fatal to the plaintiff’s case.
2. GROUND TWO – ERROR IN LAW: The learned trial Judge erred in law when he placed valued and weight on irrelevant matters and which irrelevant matters influenced his judgment.
3. GROUND THREE – ERROR IN LAW: The learned trial judge erred in law when he awarded the plaintiff the sum of N385,555.00 which he claimed from the defendants.
4. The judgment is against the weight of evidence.”
I must say that it is rather strange that the Respondent can formulate as an issue for the determination of the instant appeal “the issue as to whether the appeal is competent” from the grounds of appeal reproduced above. This is against the backdrop that issues for determination are to be distilled from the ground or grounds of appeal as contained in the Notice of Appeal. I cannot but say that it is simply ludicrous to argue that issue No. 5 formulated in the Brief of Argument of the Respondent challenging the competence of the instant appeal, flows from or is distillable from any or all of the four grounds of appeal of the Appellants. See ODUNZE V. NWOSU (2007) All FWLR (Pt.370) 1295 at page 1315 where it was held that it is novel to raise an objection by way of issue for determination. See also AGBAREH V. MIMRA (2008) 33 NSGQR 970 at 1017 – 1018 where it was held to the effect that the proper manner to challenge the competence of an appeal or an issue formulated for determination by an appellant is by a respondent raising the objection in his Brief of Argument or by giving a Notice of preliminary Objection thereof. That the respondent having raised the objection in his Brief of Argument or having filed a Notice of Preliminary Objection thereof, must ask the Court for leave to move the same before the oral hearing of the appeal commences, otherwise, it will be deemed to have been waived and therefore abandoned. The Respondent clearly did not attack the competence of Appellants’ appeal by way of objection in his Brief of Argument and neither did he give any Notice of Preliminary Objection attacking the competence of the said appeal. What he has done is to attack the competence of the appeal by formulating same as an issue for determination. This is clearly not permitted. Indeed it is clearly incongruous to formulate as an issue for determination in an appeal, the question as to the competence of the appeal in which the issue is raised. An issue or issues formulated for the determination of an appeal necessarily call for a resolution of the appeal on the merit based on the said issue or issues. On the other hand, or issue challenging the competence of the appeal is designed to short-circuit the hearing or consideration of the appeal on the merit. An issue challenging the competence of an appeal and other issues for determination of the appeal are therefore strange bed fellows. In the circumstances, issue No. 5 formulated by the Respondent in his Brief of Argument is itself incompetent as it has no foundation in any of the four grounds of appeal of the Appellants and is liable to be struck out. The said issue is hereby struck out. Accordingly and having said before now that the issues 1 – 4 formulated in the Respondent’s Brief of Argument are in my considered view subsumed in the four issues formulated for the determination of the appeal in the Appellants’ Brief of Argument, I will now proceed to determine the appeal upon the issues formulated by the Appellants.

APPELLANTS’ ISSUE 1
Dwelling on this issue, the Appellants in the main submitted that the decision of the lower court is perverse as it ignored the facts of the case or evidence, and has occasioned a miscarriage of justice when considered as a whole. The case of Agbomeji v. Bakare (1998) 9 NWLR (Pt.564) 1 was cited in aid. The Appellants referred to Exhibits “A” – A8″ the total monetary value of which is N385,555.00, as well as Exhibits “F” – “H” the total value of which is N23,600,00, all admitted in the case. The Appellants said that they gave oral and documentary evidence to show that they did not purchase paint amounting to the sum of N385,555.00 from the Respondent but only purchased paints amounting to N23,6000.00 as evidenced by Exhibits “F” – “H”. That it was also in evidence that the 1st Appellant later paid on behalf of the Respondent, the sum of N26,600.00 house rent which was receipted for by the Respondent as Exhibit “M”. The Appellants said that the 1st Appellant’s credit of N26,600.00, as a result of the rent loan given to the Respondent was used to offset the indebtedness of N23,600.00 incurred as a result of Exhibits “F” – “H”. That this left a balance of N2,400.00 which was claimed by way of counter-claim on behalf of the Appellants but that the lower court discountenanced this fact, despite the fact that the Respondent did not file any defence to the counter-claim, The Appellants stated the law to be that where a plaintiff fails to join issues by filing a reply to a counter-claim, the court has no option than to accept the pleading and evidence on the counter-claim as true and cited amongst others, the cases of Jeric Nig. Ltd. v. Union Bank Plc (2000) 15 NWLR (Pt.691) 447; and Walter v. Sky II (Nig) Ltd (2001) 3 NWLR (Pt. 701) 438 in aid. The Appellants said that though the Respondent under cross-examination claimed that the N26,600.00 paid by the Appellants and evidenced by Exhibit “M” was part payment of the N385,555.00 owed him by the Appellants, the lower court in spite of the admission, still awarded the Respondent the whole sum he claimed in the action without deducting the sum of N26,600.00 therefrom. The Appellants submitted that the lower court by doing this, did not give probative value to Exhibit “M” in spite of the Respondent’s admission. That the lower court is not to merely review and summarizes evidence led before it, but is also to evaluate and ascribe probative value to the evidence before it and the Walter’s case (supra) was cited in aid.
The Appellants also said that there was no conflict in the pieces of evidence adduced by them relating to the issue of “Jonas” upon a proper examination of the evidence. On the issue as to whether “Jonas Igwe” was the driver of the Appellants, the Appellants said that in their pleading and evidence, the 1st Appellant maintained that no person by the name of “Jonas” (without a surname) had ever been in their employment, but that the 1st Appellant once had a driver by the name “Jonas Igwe” in 1987 whom he sacked in 1988. It is the submission of the Appellants that the 1st Appellant, never contradicted himself on the issue.
It is equally the submission of the Appellants that the issue as to whether a report was made to O.C. Igwelor is not relevant to the facts in issue in the instant case. That if there was any discrepancy on the issue, it was could not have been material in nature, and should not have affected the judgment and the findings and conclusions resulting in the judgment against them.
Dwelling on this issue (i.e. Appellants’ issue 1), the Respondent having made references to the evidence adduced at the hearing and Exhibits admitted, submitted to the effect that the evidence presented at the trial by the Appellants in relation to the issue of N26,000.000 was at variance with their case on the pleading and that the lower court was right in its finding in his favour on the issue. It is also the submission of the Respondent that if the Appellants were paying for the value of paint they claimed to have bought then they would have paid the sum of N23,600.00 and not N26,000.00 that was paid.

The Respondent said that the Appellants’ pleading in paragraph 9 of the Statement of Defence was in direct conflict with paragraphs 15 and 16 of the counter-claim. That the effect of the conflicting evidence of the Appellants, rendered their evidence unreliable as it was materially inconsistent and that the lower court was right to hold the Appellants liable and to have dismissed their counter-claim. The case of Ezemba v. Ibeneme (2004) 7 SCNJ 136 at 152 – 153 was cited on the criteria for believing a witness.
Still on the counter-claim, the Respondent said that the Appellants are not entitled to succeed on the same if they failed to prove their claim. That the success of the counter-claim is not dependent on whether or not he (Respondent) filed a defence to it, but rather on the evidence adduced in support of the same. Reference was made to Section 135(1) of the Evidence Act and the case of Odunze v. Nwosu (2007) 13 NWLR (Pt. 1050) 1, was also cited in aid. lt is also the submission of the Respondent that where the issues raised in a counter-claim were met in the plaintiff’s claim, the counter-claim of a defendant is not entitled to succeed and the case of Onyenge v. Ebere (2004) 6 SCNJ 126 at 128 – 129 was cited in aid. Having referred to other instances of inconsistency in the evidence adduced by the Appellants, the Respondent submitted that the contention of the Appellants that the judgment of the lower court is perverse is unfounded and that the Court should disregard the same.

APPELLANTS’ ISSUE 2
Dwelling on the issue, the Appellants in the main submitted that the lower court was wrong to have held that the burden of proof was on them to disprove that the 1st Appellant did not send one “Jonas” to collect paint from the shop of the Respondent. This is because the state of evidence in the case did not warrant the shifting of the burden of proof to the Appellants. Referring to the pleadings of the parties as they relate to the issue of “Jonas”, the Appellants repeated their earlier submission that the 1st Appellant never contradicted himself on the issue. The Appellants equally referred to the admission made by the Respondent as to not using the receipt booklet containing Exhibits “A” – “A8” since 1994 until 1997 as well as the admission that the aforementioned Exhibits were made for the purpose of this case. The Appellants submitted that these admissions obtained under cross-examination, had watered down the case of the Respondent and affected the shifting of the burden of proof. It is also the submission of the Appellants that one would have expected the Respondent to have called “Jonas” or “Jonas Igwe” to testify as a very vital witness on which his case rested. This is particularly so as the 1st Appellant under cross-examination stated that he would be surprised if “Jonas Igwe” was called as a witness in the case. It is the submission of the Appellants that the burden was on the Respondent to prove his case and that he should succeed or fail in this regard, on the strength of his case and not on the weakness of the defence. It is the contention of the Appellants that the case of Ezemba v. Ibeneme (supra) heavily relied upon by the learned trial Judge is not in pari materia with the instant case and inapplicable upon its peculiar facts and circumstances.
Dwelling on this issue, and having made references to the pleadings of the parties and highlights of the evidence adduced, the Respondent not only submitted that the Appellants gave evidence which was at variance with their pleading in relation to the issue of “Jonas Igwe” but also that the omission on the part of the Appellants to call the said “Jonas Igwe” to testify was fatal to their case as he was the only person that could have given evidence on behalf of the Appellants as to the quantity of paints received on their behalf. The Respondent further submitted that the failure of the Appellants to call “Jonas Igwe” was a deliberate withholding of evidence and that the lower court was right in invoking the provision of Section 149(d) of the Evidence Act against the Appellants and cited the case of Jalico Ltd v. Owoniboys Technical Services Ltd (1995) 4 SCNJ 256 in aid. The book Contentious Issues & Responses in Contemporary Evidence Law in Nigeria by C.C. Nweze, Volume 1 at pages 124 – 125 was also referred to. It is the submission of the Respondent that having established that “Jonas Igwe” existed, the burden shifted to the Appellants to prove that the said “Jonas Igwe” did not collect any paint worth N385,555.00 from him (Respondent) on 23/12/1994 or at any other time on their behalf.

APPELLANTS’ ISSUE 3
Dwelling on this issue, the Appellants submitted that the lower court was wrong to have awarded the Respondent 21% pre-judgment interest on the amount the Respondent claimed as debt from 1/1/1995 until the date of judgment i.e. 28/1/2005 when the said 21% interest was not agreed upon by the parties and as there was no evidence adduced by the Respondent to show how he came about the 21% interest awarded to him, in any event.
Having stated the two ways a claim for interest on a sum of money can legally arise, the Appellants submitted that the lower court was wrong in awarding the interest under consideration as the circumstances of the instant case did not warrant the granting of same. The cases of Himma Merchants Ltd v. Aliyu (1994) 5 NWLR (Pt. 347) 67; and Ekwunife v. Wayne (W.A.) Ltd (1989) 5 NWLR (Pt. 122) 422 amongst others were cited in aid.
Dwelling on this lssue, the Respondent stated to the effect that interest on a sum of money claimed can be awarded in either of the following situations, namely – (i) where interest is claimed as of right, for example where it is contemplated by the agreement between the parties or under mercantile custom; and (ii) where the power is conferred on the court by statute to do so in the exercise of the court’s jurisdiction. The Respondent having set out his claims in the case, further said that the claims are apposite going by the approved interest rates for debts as approved by the Central Bank of Nigeria. The Respondent said that it is a fact that the value of the Nigerian currency continues to depreciate with time and that it is appropriate in the circumstances of the instant case to invoke the Central Bank of Nigeria approved interest rates for debts in determining the amount of interest payable on the debt which the Appellants deliberately owed him (Respondent) in order to frustrate him out of business. That he (i.e. Respondent) told the lower court that the interest of 21% is for loss of income on the principal sum for the period the Appellants refused to pay for the good supplied to them. The Respondent further said that the Appellants never challenged the claim of interest on the principal sum and that for them to now challenge the same, they ought to seek for the leave of court to lead evidence in that direction and the case of Owena Bank (Nig) Plc v. Otatunji (1999) 13 NWLR (Pt. 633) 220 at 223 was cited in aid. The Respondent said that the cases cited by the Appellants on this issue, are not relevant to the instant case and should be discountenanced.

APPELLANTS’ ISSUE 4
Dwelling on this issue, the Appellants submitted that the lower court was legally wrong to have awarded 5% interest on the amount realized from 21% pre-judgment interest awarded to the Respondent. The Appellants submitted that the lower court was wrong to have done this even though they conceded that the court has the power to award 5% post judgment interest per annum on judgment debt from the date of judgment, until the judgment debt is liquidated, as power in that regard is usually conferred by statute on the lower court. The cases of UBA Plc v. SAFPU (2004) 3 NWLR (Pt. 861) 516; and Texaco Overseas Ltd v. Pedmar Ltd (2003) 13 NWLR (Pt.785) 526 amongst others were cited in aid.
Dwelling on this issue, and having again set out the two different situations in which interest is awardable in law, the Respondent further stated the law to be that where interest is claimed as of right, the party must claim his entitlement in that regard on the writ of summons or in the statement of claim. The case of PTF v. WPC Ltd (2007) 14 NWLR (Pt. 1055) 478 at 484 was cited in aid. The Respondent submitted that the claims for 21% interest on the principal sum and 5% on the judgment sum, from the date of judgment until the debt is finally liquidated, were duly pleaded in his statement of claim. That the Appellants neither denied the claim for the interest under consideration in their statement of defence nor did they challenge the same under cross-examination. The Respondent stated to the effect that he was entitled to the interests claimed as it was abundantly clear that he suffered untold hardship which led to the collapse of his business due to the refusal of the Appellants to pay for the goods they have already appropriated to themselves. That the action of the Appellants, in this regard is most reprehensible and ought not to be encouraged.

In this judgment, I will consider issues 1 and 2 together as the arguments proffered by parties in respect of the issues substantially intermingle. Likewise issues 3 and 4 will be considered together for the same reason. I also consider it penitent to say that in the consideration of all the issues for determination, I do not intend to wander into the consideration of the Appellants’ counter-claim which parties freely referred to in their respective Briefs of Argument. This is in view of the settled position of the law that though a counter-claim is tried in the same action as the main case, a counter-claim is still a separate and independent action. See OGLI OKO MEMORIAL FARMS LTD V. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD [2008) 12 NWLR (Pt. 1098) 412; and FIRST BANK OF NIGERIA PLC V. FAIKO NIG, LTD (2008) All FWLR (Pt, 416) 1960.
There is no ground of appeal in relation to the dismissal of the Appellants’ counter-claim in the instant appeal, talk less of an issue for determination being properly formulated from such ground of appeal. In any event the relief claimed by the Appellants in the appeal to wit: “to allow the appeal, set aside the judgment now appealed against and substitute therefore (sic) judgment dismissing the plaintiffs claims” glaringly shows that the Appellants are not aggrieved with the dismissal of their counter-claim.
By their issue 1, the Appellants contend that the judgment of the lower court is perverse and by their issue 2, they complain about the shifting of burden of proof in respect of “Jonas Igwe” on them.
When can a judgment be said to be perverse? Dwelling on when the decision of a court will be held to be perverse, in OSUJI V. EKEOCHA (2009) All FWLR (Pt. 490) 614 the Supreme Court per Adekeye, JSC; said at pages 644 – 645 thus:-
“………A decision will be held to be perverse where:
(a) It is speculative and not based on any evidence; or
(b) The court took into account matters which it ought not to have taken into account; or
(c) The court shut its eyes the obvious………….Where a trial court has carried out satisfactorily its function of proper and dispassionate appraisal of evidence given in support of each party’s case, an appeal court will be left with no option but to affirm such a decision. Where the findings and conclusions have been found to be perverse or where wrong inferences have been raised or drawn from accepted facts or wrong principle have been applied to facts, or as in this case when the consequential orders do not flow from the conclusion of the trial court in the judgment, it was the duty of the lower court to re-evaluate and re-assess the offensive order made by the trial court, unsupported by evidence adduced by both parties ………………….”
Also dwelling on what amounts to a perverse finding in LAGGA V. SARHUNA (2009) All FWLR (455) 1617 the Supreme Court per Tobi, JSC; at pages 1654 – 1655 said thus:-
“A perverse finding is one which ignores the facts or evidence led before the court and when considered as a whole amounts to a miscarriage of justice………… A finding is perverse if it is not borne out of the evidence before the court. a perverse finding is a finding which is not only against the weight of evidence, but, is altogether against the evidence itself. It is a finding which no reasonable tribunal should have arrived at in the light of the evidence before it.
And who says that an appellate Judge has not the competence to deduce or better, abduct such perversity from the record? While demeanour, the way of acting, conduct, or behaviour of a witness in the witness box materially assists the trial Judge in coming to a decision as to the authenticity or veracity of the evidence, the cold record also materially assists the appellate Judge ………………..”
Having regard to the pleadings of the parties in the instant case, the issues for determination would appear to be straightforward and in my considered view, they are (i) whether or not the Appellants bought paints in the sum of N385,555.00 from the Respondent as alleged by him; (ii) whether or not the paints were collected from the shop of the Respondent by one “Jonas” (a driver in the employment of the Appellants) as alleged by the Respondent; and (iii) how much out of the cost of the paints is outstanding.
The respective cases of the parties as set up in their pleadings have earlier been highlighted in this judgment. The Respondent testified as PW1 while his wife testified as PW2. The evidence-in-chief of the Respondent and PW2 is at pages 32 36; and 47- 48 respectively of the record. The Respondent was extensively cross-examined. (See pages 37 – 41; and 42 – 46 of the record). The cross-examination of PW2 is at 48 – 50 of the record. Suffice it to say that the Respondent adduced evidence in support of his case on the pleading that the Appellants bought paints to the tune of N385,555.00 on credit from him and that the paints were collected from his shop by one “Jonas” whose full names were later shown to be “Jonas Igwe”.
The Appellants, as earlier stated adduced evidence through the 1st Appellant in support of the case as set up in their pleading. The evidence-in-chief of the 1st Appellant is at pages 51 – 53 of the record. His cross-examination is at pages 54 – 58 of the record. The Appellants have argued that they adduced evidence that they did not buy paints in the sum of N385,555.00 from the Respondent, and that the credit purchase they had with the Respondent was in respect of paints worth N23,600.00.
The position of the law is that in civil cases the burden of proof rests on the party, whether plaintiff or defendant, who asserts the affirmative of an issue in dispute. lt rests on the party who will fail if no evidence at all or no more evidence, as the case may be, were given on either side. See YUSUF V. ADEGOKE [2010] All FWLR (Pt. 385) 384 at 405; and ASUQUO V. ASUQUO (2010) All FWLR (Pt. 458) 952 at 967.
The Respondent clearly adduced evidence in proof of the purchase of paints in the sum of N385,555.00 by the 1st Appellant in the name of the 2nd Appellant on credit on 23/12/1994. The evidence adduced by the Respondent also fixed the 1st Appellant as being physically present to make the order and that the paints were brought out in his presence and counted by him.
In their pleading, the Appellants set out the days they bought paints on credit in the total sum of N23,600.00 from the Respondent. These are (i) 23/12/1994; (ii) 27/1/95 and (iii) 6/4/95. The 1st Appellant in his evidence-in-chief stated that he was issued Exhibits “F”, “G” and “H” in respect of the credit purchases. The 1st Appellant gave evidence to the effect that he gave the Respondent a loan of N26,000.00 for his house rent and that the Respondent issued him with Exhibit “M” in respect of the loan and that the loan was also reduced into writing. The loan agreement was admitted as Exhibit “N” despite the claim of the Respondent that he did not write or sign the document. Under cross-examination, the 1st Appellant denied being at the Respondent’s shop on 23/12/94. Despite stating that he had the invoices in respect of the paints he purchased on credit from the Respondent and which he duly tendered as Exhibits, the 1st Appellant still said that he would be surprised to learn that he made any purchase from the Respondent on 23/12/94. Under cross-examination the 1st Appellant further stated to the effect that on 1/8/1995 he paid the Respondent the sum of N20.000.00 and retrieved the three cheques he had issued to him. He also said that the N26.000.00 was for the paints he bought on credit and not for the Respondent’s shop. Though the 1st Appellant maintained that the Respondent acknowledged the receipt of the N26,000.00, he however said that Exhibit “M”, was in acknowledgement of the cheques he had issued the Respondent.
The Appellants have accused the lower court of not giving probative value to Exhibit “M”. I do not think that this is right having regard to what is on record in this case. At page 74(c) – (d) of the record the learned trial Judge said thus: –
“………. The defendants also contended that the plaintiff thereby became indebted to them to the tune of N2,600.00 being the difference between N26,000.00 and N23,400.00 value of the exhibits F, G and H. The defendants’ contention cannot stand for the following reasons:-
(a) They pleaded in paragraph 9(b) of their statement of defence the ‘plaintiff’ approached the defendants for financial assistance to enable him settled his rent of N26,000.00 for his shop at No. 74 Upper New Market Road, Onitsha.
(b) The 1st defendant gave evidence that he gave the plaintiff a loan of N26,000.00 when he had problem of house rent.
(c) It was under cross-examination that the 1st defendant said that the N26,000.00 payment was for the paint.
This piece of evidence is, with due respect, in conflict with the defendants’ pleading in paragraph 9(b) of their statement of defence and the evidence in chief of 1st defendant. I shall later come back to the issue of contradictory evidence.”
The learned trial Judge came back to the issue of contradictory evidence at page 74(e) of the record and having catalogued some other instances of contradictory evidence adduced by the Appellants, he stated thus:-
“In this case, the defendants had given material inconsistent evidence on material facts, namely, their knowledge of Jonas Igwe, 1st defendant’s driver, whether the N26,000.00 in Exhibits C & C1, was a loan or for payment of the value of Exhibits, F, G and H, and whether the plaintiff reported them to O.C. Igwealor, Esq., or not, amongst others.
In MSC Ezemba Vs. S.O. Ibeneme & Anor. (2004) 7 SCNJ 136 @ 152 – 153, the Supreme Court held that “No witness who has given an (sic) oath two material inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness.”
The document admitted as Exhibit “M” was apparently pleaded in support of the assertion by the Appellants that the 1st Appellant loaned the Respondent the sum of N26,000.00 for the payment of the rent for his shop. See paragraph 9(b) and (e)(iiii) of the Appellants’ pleading in this regard. I am of the considered view that the accusation that the learned trial Judge did not give probative value to Exhibit “M” is premised on the fact that the Exhibit was not specifically mentioned in the portions of the judgment of the lower court reproduced above. While this might be so, it is however my considered view that the aspect of the instant case, in respect of which Exhibit “M” was tendered was sufficiently considered by the learned trial Judge and that the conclusion of the learned trial Judge that the 1st Appellant gave inconsistent evidence in respect of the aspect of the Appellants’ case relating to the purpose of the N26,000.00 collected by the Respondent, is a good basis for not ascribing any probative value to the said Exhibit “M”.

Indeed, I must confess that I do not see how Exhibit “M” deserved the ascription of any probative value at all, given the testimony of the 1st Appellant concerning the Exhibit as underlined hereinbefore in this judgment. In his evidence-in-chief, and apparently in line with their pleading, the 1st Appellant said that he gave the Respondent a loan of N26,000.00 for his house rent and that Exhibit “M” is the cash receipt the Respondent gave him for the sum of money. The 1st Appellant tied the N26,000.00 to the Respondent’s house rent, despite the fact that immediately before doing this, he said that he knows the shop of the Respondent and gave the address of the said shop. However under cross-examination the 1st Appellant turned around to say that Exhibit “M” is not in acknowledgement of the loan of N26,000.00 for the Respondent’s shop, but for the paints he bought on credit from the Respondent. Yet the 1st Appellant evidence concerning the paints that were purchased on credit from the Respondent, is that the value of the same is N23,600.00 and Exhibits “F”, “G” and “H” were tendered in this regard. If the total value of the paints is N23,600.00 as deducible from the aforementioned Exhibits, how come the 1st Appellant had to over pay for the paints; and if Exhibit “M” was in evidence of a loan for the rent of the Respondent’s shop or house, how come the 1st Appellant under cross-examination, testified that it was in respect of paints that were bought from the Respondent on credit. The inconsistency in the evidence of the 1st Appellant in respect of the purpose of the N26,000.00 clearly robbed Exhibit “M” of any probative value because it cannot be said with certainty the purpose in respect of which it was tendered.
This being the situation, the lower court could not have rightly subtracted the sum of N26,000.00 to which Exhibit “M” relates from the sum of N385,555.00 claimed by the Respondent. However, this is not to say that the sum which the Respondent claimed that the Appellants were owing him cannot be reduced in the sum of N26,000.00 given the admission under cross-examination by the Respondent that the Appellants made a part payment of the debt owed him, in the said sum of N26,000.00.
The Appellants have also argued that the 1st Appellant did not give any contradictory evidence on the issue of “Jonas Igwe”. In the Respondent’s pleading, it was stated to the effect that the paints which the Appellants bought on credit were collected by one “Jonas” who was a driver in the employment of the Appellants at all material times. It was averred that “Jonas” came to collect the paints in a pick-up van with the logo of the 2nd Appellant and which belonged to the Appellants. The response of the Appellants on the issue of “Jonas” is that they did not authorize any person by whatever name called, to negotiate any credit facilities for them. That no person named “Jonas” (without a surname) has ever been in their employment. The Respondent tendered Exhibits “A” – “A8” which all bear the name of Jonas and signature of the said Jonas. In his evidence-in-chief and in apparent support of their case on that issue, the 1st Appellant testified that he does not know the Jonas that signed Exhibits “A” – “A8” as his driver in 1994, and that he was not his driver at any time. It is also the evidence of the 1st Appellant that the Appellants did not authorize the said Jonas or anybody to sign Exhibits “A” “A8” and that they did not authorize anybody to purchase the paints recorded in the Exhibits. Under cross-examination, the 1st Appellant upon being confronted with the name of “Jonas Igwe” as being his driver, now said that “Jonas Igwe” was his driver in 1987 and that he sacked the said “Jonas Igwe” in 1988 because he no longer wanted him.
The learned trial Judge in his judgment found the Appellants to have given inconsistent evidence in relation to “their knowledge of Jonas Igwe”. The Appellants have however submitted that the 1st Appellant never contradicted himself on the issue of “Jonas Igwe”. It would appear that the Appellants are in serious misapprehension of the averment in paragraph 5 of their pleading. Therein they said that no person named Jonas (without a surname according to the plaintiff) has ever been in their employment. It is my considered view that to the extent that the 1st Appellant under cross-examination now admitted that one “Jonas Igwe” was his driver in 1987 and that he sacked the said “Jonas Igwe” in 1988, the 1st Appellant has not only shown that he knew one “Jonas” at a point in time, but also that the Appellants at one time at least had someone by going by the name of “Jonas Igwe” in their employment. This patently shows that the testimony of the Appellants concerning the issue of “Jonas” during his evidence-in-chief and under cross-examination was not consistent. Surely, an inconsistent testimony of a witness on a material issue in a case can never amount to prove of that matter. The Appellants in the knowledge that someone named “Jonas Igwe” had been in their employment at a point in time before the date of transaction upon which the Respondent predicated his claim in debt, ought not to have made the blanket assertion that no person bearing the name of “Jonas” had ever been in their employment. Before it could be said that the evidence of the 1st Appellant on the issue of “Jonas” was not inconsistent with their pleading, the Appellants ought to have pleaded to the effect that the only person they know bearing the name “Jonas” was one “Jonas Igwe” and gone further to assert that the said “Jonas Igwe” did not have their mandate to do what the Respondent has alleged “Jonas” to have done, as the “Jonas Igwe” they knew of was sacked from their employment in 1988.
From all that has been said on the issue of “Jonas” I do not see how the lower court can be faulted that the Appellants gave conflicting evidence regarding the issue of “Jonas Igwe”.
The last area of conflict that the Appellants have argued relates to the report made to the tenant of the 1st Appellant, namely O.C. Igwealor. The Respondent pleaded in paragraph 15 of his pleading that he reported the matter of the indebtedness of the Appellants in respect of the paints, to O.C. Igwealor who is a tenant of the 1st Appellant. The Appellants in paragraph 11 of their pleading admitted the fact of the report, but further said that O.C. Igwealor was displeased with the Respondent and his counsel for trying to blackmail them (i.e. Appellants) and defame the 1st Appellant. There is no doubt having regard to the answer elicited from the 1st Appellant on the issue of the report that he outrightly denied any report having been made to O.C. Igwealor. lt is therefore an attempt by the Appellants to run away from the obvious to have submitted that “even if” there was any discrepancy on the point. There is a glaring discrepancy.
As to whether or not the discrepancy was in respect of a material point that the lower court should have noted, I cannot but say that it was the Appellants themselves that elevated the somehow innocuous averment in paragraph 15 on the issue of the report, to the status of materiality in the case by the manner in which they denied the same and their introduction of the issues of blackmail and defamation in denying the averment. This is because if credible evidence had been adduced in respect of the issues of blackmail and defamation introduced into the case by the Appellants; this would have clearly rendered the case set up by the Respondent as most improbable. Cross-examination is not only employed to demolish the case of an adversary, but also to establish ones case where possible. Against the backdrop of the fact that it was under cross-examination that the 1st Appellant decided to deny what he had pleaded, there was every power in the lower court to have utilized the denial, in the assessment of the evidence adduced in the case.

The Appellants have submitted to the effect that it was wrong of the lower court to have placed on them, the burden of proof to disprove that they did not send one “Jonas” to the shop of the Respondent to collect paints. I have earlier stated the position of the law in respect of burden of proof in civil cases to be that it rests on the party, whether plaintiff or defendant, who asserts the affirmative of an issue in dispute. It rests on the party who will fail if no evidence at all or no more evidence, as the case may be, were given on either side. The case of the Respondent was that the 1st Appellant came to purchase paints on credit in the name of the 2nd Appellant in December, 1994 from his shop. That all the paints bought on credit by the Appellants were collected by one “Jonas” a driver in the employment of the Appellants who came in a pick-up van painted in the logo of the 2nd Appellant. As earlier stated, the Respondent adduced evidence in respect of the purchase on credit of paints by the Appellants and the fact of the collection of the paints by someone who is named “Jonas” and signed as such, for and on behalf of the 2nd Appellant. This they did through Exhibits “A” – “A8”. The Respondent and PW2 were grilled by the Appellants, but just as the lower court apparently saw no reason not to accord the Exhibits probative value, I too, cannot but say, that I have not seen any meaningful aspersion cast on any of the Exhibits in the cross-examination of the Respondent and PW2, that prevents due weight being ascribed to the Exhibits. Given the pleading of the Respondent, he definitely did not have to call “Jonas” who he alleged to be a driver in the employment of the Appellants to prove what Exhibits “A’ – “A8” have loudly said, i.e. that the “Jonas” was an employee of the Appellants and had collected the paints in question. Given the pleading of the Respondent and the evidence adduced in support, the burden was glaringly on the Appellants to disprove the existence of the “Jonas” who signed the Exhibits and that any such “Jonas” was never authorized by them to collect the paints as they had disclosed in their pleading. The Appellants glaringly failed to do this. Because there was no pleading in that regard, the Appellants could not place evidence before the court to show that they did not possess a pick-up painted in the logo of the 2nd Appellant at the material time, or that the signature of the “Jonas” on Exhibits “A” – “A8” was not the same as that of the “Jonas Igwe” that was once in their employment. What the 1st Appellant succeeded in testifying to, was the fact that there was indeed a “Jonas” (i.e. “Jonas Igwe”) once in their employment in 1987 and that he was sacked in 1988. Surely, evidence in this regard required pleaded facts to sustain it. The lower court found the Appellants to have given contradictory evidence on the issue of “Jonas Igwe”. I have earlier stated that a piece of inconsistent or contradictory evidence cannot establish the fact it is meant to prove. In the same vein, as the Respondent during his evidence-in-chief and cross-examination gave the name of the Appellants’ driver that collected the paints as “Jonas Igwe”, and the admission of the 1st Appellant under cross-examination that he once had a “Jonas Igwe” as a driver, it was for the Appellants to have called the said “Jonas Igwe” to disprove the fact of his collection of the paints in Exhibits “A” – “A8” for an on behalf of the 2nd Appellant. The lower court in the light of the above, was eminently correct in its finding that the failure of the Appellants to call “Jonas Igwe” is fatal to the Appellants’ case.

Indeed, the law is that a plaintiff can only succeed in his claims before the court, on the strength of his case. Surely as in the instant case where the Respondent succeeded in adducing evidence that was not successfully challenged by the Appellants in the proof of his case, and also succeeded in demolishing material aspects of the Appellants’ case by eliciting from the 1st Appellant under cross-examination answers that run counter to what the Appellants pleaded and testified to, it would be ludicrous to say that the Respondent was not entitled to succeed given the clear strength of his case and which further found support in the case of the Appellants inasmuch as they failed to establish their defence to the Respondent’s case.
Following from all that has been said in relation to issues 1 and 2, the said issues are resolved against the Appellants. The fact that I have found that the debt claimed by the Respondent ought to have been reduced by the sum of N26,000.00 which the Respondent admitted under cross-examination as being part payment of the debt owed him by the Appellants does not in any way derogate from the resolution of the two issues against the Appellants.
By their issues 3 and 4 the Appellants are questioning the propriety of the claims for interest awarded the Respondent by the lower court. The position of the law as it relates to claims for interest is that interest may be awarded by the court in two distinct circumstances, namely (i) as of right; and (ii) where there is a power conferred by statute to do so, in the exercise of the court’s discretion. Interest may be claimed as of right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of fiduciary relationship. See TEXACO OVERSEAS (NIG) UNLTD V. PEDMAR (2002) 13 NWLR Pt. 785) 526; and I.T.B. PLC V. K.H.C. LTD (2006) 3 NWLR (Pt. 968) 443.   It is also the law that where interest is claimed as a matter of right, the proper practice is to claim entitlement to it on the writ of summons and plead facts which show such an entitlement. However, as the statement of claim in law supersedes the writ of summons, even if interest is not claimed on the writ of summons, but facts are pleaded in the statement of claim and evidence given which show entitlement thereto, the court may, if satisfied with the evidence award interest. See DANIEL HOLDINGS LTD V. U.B.A. PLC (2005) 13 NWLR (Pt. 943) 533.
The second claim of the Respondent as stated in the Statement of Claim is clearly a claim for pre-judgment interest. A claim for pre-judgment interest is one which is calculated on a principal sum in a judgment at the pre-judgment interest rate from the date the cause of action accrued to the judgment date. It smacks of a claim for interest as of right. The Respondent has submitted that he is entitled to the claim of 21% granted him by the lower court; but never referred to any particular paragraph of his pleading where the fact was pleaded and or where the 21%  interest rate is alleged to have been agreed upon by the parties. The Respondent has also submitted that as the claim for 21% interest was not challenged by the Appellants they now required leave of court to lead evidence in that direction.

The Respondent has clearly misunderstood the grouse of the Appellants concerning the reliefs granted him by the lower court. The Appellants are not seeking to adduced or lead evidence in relation to the issue of pre-judgment interest or post-judgment interest. Though there would appear to be good grounds of objection to Issues 3 and 4 formulated by the Appellants, the Respondent again has not challenged the propriety of the Issues in the prescribed manner; like he failed to do, in respect of the challenge to the competence of the instant appeal.
I have hereinbefore cited cases relating to award of interest. Not only did the Respondent not plead facts concerning how the claim for 21% interest arose from the credit sale of paints he made to the Appellants, he also never gave any evidence from which it can be said that any particular interest rate was agreed upon, talk less of the interest rate being 21%. There is glaringly no factual basis for the claim of 21% interest granted the Respondent. The lower court threw overboard all the settled principles of law relating to claim for prejudgment interest, in granting the Respondent the second of the reliefs sought in the instant action. The granting of the claim of 21% pre-judgment interest cannot be allowed to stand. The award of interest in this regard is liable to be set aside.
The Appellants do not dispute the fact that the lower court can grant the claim for 5% interest on the judgment debt from the date of judgment until it is finally liquidated. Their grouse is that it was wrong of the lower court to have awarded 5% interest on the sum claimed by the Respondent as debt and 5% interest on the sum realized from the 21% interest awarded by the court as pre-judgment interest.
There would appear to be much substance in the stance of the Appellants that the lower court was wrong in this regard. This is particularly so, as the claim for 21% interest has been found to have no factual basis and therefore liable to be set aside. Accordingly the claim for 5% interest granted in respect of the Respondent’s second relief also cannot be allowed to stand. The award of interest in this regard is also liable to be set aside.
From all that has been said in relation to issues 3 and 4 it follows that the issues have to be resolved in favour of the Appellants and are so resolved.
The resolution of issues 3 and 4 in favour of the Appellants clearly makes the appeal to succeed in part. However, the partial success of the appeal cannot result in the setting aside of the whole of the judgment of the lower court as sought by the Appellants. Against the backdrop of the findings that the lower court ought to have subtracted from the sum being claimed, the sum of N26,000.00 which the Respondent admitted under cross-examination that the Appellants paid him in part settlement of their indebtedness, and that claims for interest as contained in the Respondent’s reliefs 2 and 3 cannot be allowed to stand and are liable to be set aside, the judgment of lower court necessarily has to be varied.
The settled position of the law is that while a court cannot grant a plaintiff more than he claims, the court can always grant the plaintiff less than he claims. This is particularly so as the evidence adduced by the Respondent in the instant case shows that what he is entitled to is less than what he has claimed as the debt owed him by the Appellants.
The judgment of the lower court dated 28/1/2005 therefore has to be varied by reducing the sum of debt as found by the lower court to be owed the Respondents by the Appellants; and also by setting aside the awards of 21% pre-judgment interest on the sum owed the Respondent by the Appellants and 5% interest on the sum realized from the 21% pre-judgment interest respectively. Accordingly, the judgment of the lower court dated 28/1/2005 is hereby varied to read ‘Judgment is hereby entered for the Plaintiff (i.e. the Respondent in the appeal) against the Defendants (i.e. the Appellants in the appeal) jointly and severally as follows:-
(a) In he sum of three hundred and fifty-nine thousand, five hundred and fifty-five Naira (N359,555.00) only, being the debt owed the Plaintiff by the defendants.
(b) 5% interest per annum on he judgment sum from the date of judgment until the entire amount is fully liquidated.”
I make no order as to costs in the appeal.

ABDU ABOKI J.C.A: I have read in draft the lead judgment delivered by my learned brother Ayobode O. Lokulo Sodipe JCA.
I also wish to make my small contribution in support of the judgment on the issue of award of pre and post judgment interest.
It is a general rule that at common law interest is not recoverable or payable on ordinary debt unless in the following circumstances.
(a) In contract, express or implied.
(b) In some mercantile custom or usage, or
(c) Where interest has been provided by a statute.
The courts generally award interest as of right where it is contemplated by an agreement between the parties or under mercantile custom or under a principle of equity such as where there is a breach of fiduciary relationship. See
M.H. (Nig) Ltd v. Okefiena (2011) 6 NWLR Pt 1244 page 514 at 529-530.
Petgas Res Ltd. v. Mbanefo (2007) 6 NWLR Pt 1031 page 545.
I.T.B. Plc. v. K.H.C. Ltd (2006) 3 NWLR Pt 968 page 443.
Texaco Overseas (Nig) Unlimited v. Redmar (Nig) Ltd. (2002) 13 NWLR Pt 785 page 526.
In the instant case the Appellants in their issues 3 and 4 formulated for determination of this Appeal had questioned the propriety of the award of interest by the lower court on the debt claimed by the Respondent.
It is trite that a party who claims interest on a sum of money has an obligation to support that claim with evidence, as the court has no jurisdiction to award to a claimant what he has not claimed and proved. See Balogun v. E.O.C.B. (Ni) Ltd. (supra). M. H. (Nig) Ltd. v. Okefiena (supra).
Where a litigant claims interest as of right, such a claim must be reflected on his writ of summons and he must plead facts in support of it in his statement of claim.
However where interest claimed has not been stated on the writ of summons but is pleaded in the statement of claim and evidence is led to establish it, the court may exercise its discretion to grant the award if satisfied with the evidence presented. See
M. H. (Nig) Ltd. v. Okefiena (supra) at page 530.
Daniel Holding Ltd. v. UBA Plc (2005) 13 NWLR Pt 943 page 533
R.C.C. (Nig) Ltd. v. R. PC Ltd. (2005) 10 NWLR Pt 934 page 615.
In the instant case in response to the submission of the Appellants that the Respondent was not entitled to a 21% pre judgment interest awarded by the lower court, the Respondent had insisted that he is entitled to the award. However from the printed record of Appeal the Respondent had not supported his entitlement by facts in his statement of claim or led any evidence at the court below to show how he became entitled to the interest claimed. The only argument presented before the court by the Respondent in defence of the award is that at the lower court the Appellants did not contest the award.
I am of the opinion that the Respondent is not entitled to an award of interest which he never pleaded in his statement of claim or led any evidence on at the lower court.
The 5% post judgment interest awarded by the lower court was also contested by the Appellants on appeal.
The debt claimed by the Respondent has arisen from a credit sale of paints.
The lower court had awarded compound interest of 5% on the debt as well as on the interest of 21% pre-judgment interest awarded on the judgment debt.
Having said that the award of 21% pre-judgment interest has not been pleaded or supported by any evidence, it follows therefore that the compound interest on the said 21% interest awarded has no factual bases or any legal backing and ought to be set aside.
It is for these reasons and other reasons advanced in the lead judgment that I partly allow this appeal.
The appeal succeeds in part. I abide by the consequential orders made in the lead judgment.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A:  I have had the advantage of reading in draft the judgment delivered by my learned Brother, LOKULO-SODIPE JCA. All the issues raised in the Appeal were ably considered judicially and intellectually.
I am entirely in agreement with the reasoning and conclusion on this Appeal.
I subscribe to the consequential order made in the lead judgment.

 

Appearances

Chief Chidube Ezebilo SAN;
A.O. Ezebilo-Nnedu (Mrs.)For Appellant

 

AND

F,A. Onwuachi;
T.O. Ezike;For Respondent