FARASCO NIGERIA LTD & ANOR. V. PETERSON ZOCHONIS INDUSTRIES PLC (2010)

FARASCO NIGERIA LTD & ANOR. V. PETERSON ZOCHONIS INDUSTRIES PLC

(2010)LCN/4173(CA)

In The Court of Appeal of Nigeria

On Monday, the 6th day of December, 2010

CA/K/157/2003

RATIO

DOCUMENTARY EVIDENCE: USE OF DOCUMENTARY EXHIBITS WITH RESPECT TO AN UNCHALLENGED ORAL EVIDENCE DEPOSED TO BY A PARTY

The documentary exhibits are to be used as acid test in unchallenged oral evidence deposed to by the Plaintiff/Respondent. See Kimdey vs Military Governor of Gongola State (1999) 2 NWLR (Pt.77) 445; at 473; Lion Buildings Ltd vs Shodipe (1976) 6 S.C 135 at 153 and Olujinle vs Adeagbo (1988) 2 NWLR (Pt.77) 238 at 253. PER JOSEPH TINE TUR, J.C.A.

RELIEF: WHETHER WHERE A RELIEF IS SOUGHT BY A PARTY IT MUST BE SUPPORTED BY PLEADED FACTS; CONSEQUENCE OF NOT CLAIMING FOR A RELIEF IN THE STATEMENT OF CLAIM

Generally, it is settled that any relief sought by a party should be supported by pleaded facts. See Ishola vs UBN Ltd (2005) All FWLR (Pt.258) 1202 at 1213 paragraphs “A” – “D”. If no relief is claimed in the statement of claim then no issue has been joined between the parties. See Otanioku vs Mustafa (1977) 11 – 12 sc 9; Alhaji Onibudo & Ors vs Alhaji Akibu & Or (1982) 7 SC 60 at 7. PER JOSEPH TINE TUR, J.C.A.

AFFIDAVIT EVIDENCE: WHETHER WHERE A SUIT IS FOUGHT ON AN AFFIDAVIT EVIDENCE, THE AFFIDAVIT TAKES THE PLACE OF PLEADINGS

Where a suit is fought on affidavit evidence, the affidavits take the place of pleadings. An affidavit meant for use in a Court of law stands as evidence, and as near as possible, should conform with oral admissible evidence. The affidavit must conform to facts and circumstances of the case and establishing the relationship of the parties. See Bamaiyi vs The State (2001) FWLR (Pt.46) 956 at 978 and 981 lines “B” – “F” and N.L.G Ltd vs A.D.I.C Ltd (1995) 8 NWLR (Pt.416) 677 at 698-699. PER JOSEPH TINE TUR, J.C.A.

PAYMENT OF DAMAGES: WHERE PARTIES HAVE ENTERED INTO A COMMERCIAL RELATIONSHIP AND IT IS INTENDED THAT UPON A BREACH, THE DEFAULTING PARTY SHALL BE INDEMNIFIED BY PAYMENT OF DAMAGES AND INTEREST, WHETHER SUCH FACT MUST BE ARRIVED AT BY PRIOR AGREEMENT

Where parties have entered into a commercial relationship and it is intended that upon a breach, the defaulting party shall be damnified by payment of damages and interest, that is a material fact that should be arrived at by prior agreement. See Rickett vs IBWA Ltd (1960) 5 FSC 113 and Barclays Bank Ltd vs Abubakar (1977) 10 SC 13 at 23. PER JOSEPH TINE TUR, J.C.A.

PLEADINGS: WHETHER INTEREST IS A MATTER OF PLEADING
Interest is a matter of pleading and evidence. See Edilco Nig. Ltd vs UBA Plc (2000) FWLR (Pt.21) 729. PER JOSEPH TINE TUR, J.C.A.

JUSTICES

M.P ODILI Justice of The Court of Appeal of Nigeria

T.O ORJI-ABADUA Justice of The Court of Appeal of Nigeria

J. TINE TUR Justice of The Court of Appeal of Nigeria

Between

1. FARASCO NIGERIA LTD

2. ABDULRAZAQ ADELEKE – Appellant(s)

AND

PETERSON ZOCHONIS INDUSTRIES PLC – Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The Appellants have jointly appealed against the judgment of Othman J., of the High Court of Justice, Kaduna, delivered on the 18th day of March , 2003 wherein the learned trial judge; in an undefended List proceeding supported by an affidavit coupled with documentary exhibits, entered judgment in favour of the Respondent on the ground that the Notice of Intention to defend the suit was filed out of time and moreover, no defence on the merit was disclosed by the Appellants/Defendants.

The learned trial judge held that:

“…The defendants did not file their notice of intention to defend within time. Even assuming the defendant had filed the notice within time. The affidavit annexed did not in any way disclose any defence at all talk less on merit. It will not be proper for the defendant to continue to postpone the date of meeting his obligation he should be prepared to face that Court-are always enjoined to refuse to allow itself to be used as vehicle of running away from meeting obligations on time and as when” due, I therefore hereby refuse to transfer the matter into the General Cause list. I will instead enter judgment in favour of the plaintiff against the defendant in the-balance sum of N356,194.62 plus 21% interest P.A. from 12-03-2001 till today and at 10% P.A. from today until the whole judgment sum is fully and finally liquidated.”

The Appellants filed seven grounds of Appeal on 27th March, 2003 with a brief of argument on 17th day of March, 2005 following leave granted them by this Court on 14th day of March 2005.

On 27th day of March, 2009 the Appellants sought leave to amend their Joint Brief of argument. This was granted on 27-03-2009.

The Appellant’s learned counsel abandoned Grounds 1, 4, 5, 6 and 7 but gave notice to argue original Grounds 2 and 3 only in the Notice of appeal. The said grounds 1, 4, 5, 6 and 7 having been abandoned in the brief are struck out. The Appellants formulated two issues for determination by this court based on Grounds 2 and 3 of the original Grounds of Appeal.

ISSUE ONE:

Whether from the premises of fact the trial Court has basis for awarding prejudgment 21% of interest on the sum claimed.

ISSUE TWO:

Whether the trial Court was right in awarding post judgment 10% interest to the Respondent when there was neither an application for time within which to comply with the judgment or to pay by installments.

On 25-10-2006 the Respondent sought leave for time to be extended to file brief of argument. Time was extended and the Respondent was deemed to have filed brief of argument on 31-10-2006.

RESPONDENT’S ISSUE FOR DETERMINATION:

1. Whether the trial court was right in rejecting the notice of intention to defend filed by Appellants.

2. Whether the trial court was right in awarding post-judgment interests in the circumstance of the case.

FACTS OF THE CASE:

Before considering the issues for determination I want to narrate the facts that led to the dispute between the Appellants and the Respondent which resulted into the law suit leading to judgment by the trial Court.

The Plaintiff/Respondent is a Public Limited Liability Company engaged in the manufacture of Pharmaceutical, Medicaments, toiletries, hair care, soap and detergents with head office at Ilupeju Industrial Estate, Ikeja, Lagos with branches all over the Federation. She has a depot at Nnamdi Azikiwe Express Way Kaduna. The 1st defendant/Appellant is a Private Limited Liability Company with main shop at Bayajida Street; Central Market Extension, Kaduna. The 2nd defendant is the Managing Director of the 1st Defendant. The 2nd defendant applied on behalf of the 1st defendant and was appointed a distributor of the Company’s products.

The Defendants/Appellants at sundry times and occasions purchased from the Plaintiff/Respondent various brands of product without paying their total value. Since 12-03-2001 the Defendants/Appellants made payment of only ten thousand (N10,000) leaving a balance of N446,194.62 kobo (Four hundred and forty six thousand one hundred and ninety four naira sixty-two kobo. The Plaintiff/Respondent terminated the distributorship and made efforts to recover the outstanding debt to no avail. The Defendant re-applied pleading for settlement and issued a Cheque for two hundred and fifty thousand naira (250,000) which was dishonoured by Societe General Bank Nigeria, Ltd. After all attempts to resolve the dispute failed the plaintiff/respondent’s solicitors wrote the defendants/appellants on 06-02-2002 demanding for payment. The Defendants/Appellants responded on 12-02-2002 requesting for installment payment of N10,000.00 per month which request was turned down by the Plaintiff/Respondent.

On 27-08-2002 the Plaintiff/Respondent instituted this action before the High Court of Justice Kaduna in Kaduna State under undefended list procedure supported by an eighteen paragraph affidavit deposed to by Azubike Okpara, Litigation Secretary in the Chambers of Fabian Nwoke & Co. to which is annexed Exhibits “A” to “F”.

Exhibit “A” of 17-02-2000 is the Defendants/Appellants application for further credit facilities which the Plaintiff/Respondent refused. Exhibit “B” is the joint letter by the Defendants/Appellants pleading for settlement. In Exhibit “C” of 13-12-2001 the Plaintiff/Respondent expressed disappointment with the Defendants/Appellants’ inability to abide by previous agreements reached with the Defendant/Appellants. Exhibit “D” is a copy of the dishonoured Cheque issued by the Defendants/Appellants while Exhibit “E1” and “E2” are copies of the Defendant’s pass books of 12-03-2001 and October 1999 respectively. Exhibit “F” is the letter from the Plaintiff/Respondent’s Solicitor to the Defendants/Appellants dated 06-02-2002. Paragraph 1 and 2 of the writ of summons claimed as follows:

“1. The sum of N446,194.62 (Four hundred and Forty Six Thousand, One Hundred and Ninety Four Naira Sixty two Kobo) being unpaid balance of the Plaintiff’s products the Defendants purchased on credit while still a distributor of the plaintiff.

2. 21% interest on the N446,194.62 per annum from the 12-03-2001,to the date of judgment and thereafter 10% interest there of until final liquidation of the judgment sum.”

The suit was fixed for hearing on the 25th day of February, 2003. On 13th day of February, 2003 the Defendants/Appellants applied to the Court that they wanted to defend the suit intending to raise a preliminary objection. The application was supported by a four paragraph counter-affidavit deposed to by Abdulrazaq Adeleke of AB6 Bayajida Street, Kaduna who is the 2nd Defendant/Appellant, admitting that at the time of this action he was the Director of the 1st Defendant. That the 1st Defendant was not a legal entity hence he was not her alter ego as claimed by the Plaintiff/Respondent. The Defendants/Appellants denied ever applying for nor being granted distributorship on credit by the Plaintiff/Respondent. That even if they did it was not totally honoured. They denied being indebted to the Plaintiff/Respondent.

The Defendants/Appellants deposed that they always paid cash for all their purchases. They deny the amounts stated in Exhibits “B” – “F” neither were they parties to any settlement arrangement with the Plaintiff/Respondent.

Paragraph 4(xiv) to (xx) of the affidavit of Abdulrazaq Adeleke is to the effect the Defendants/Appellants never agreed to pay interest or rate to the Plaintiff, and that the interest being charged was never brought to their notice and attention. There were no credit facilities/overdraft nor loan granted them by the Plaintiff/Respondent. That the ledger cards exhibited to the writ of Summons were incomplete, inflated and inaccurate regarding the actual amount of purchases made by the Defendant/Appellants. Neither were they ever served with the letters referred to in the supporting affidavit nor was their attention drawn to the fact that the cheque issued by them to the Plaintiff/Respondent was dishonoured hence they sought leave to be allowed to defend the suit.

Azubuike Okpara then deposed to a further affidavit of 4 paragraphs with Exhibits “H”, “I”, “J”, “K” and “L” showing the payments made by the Defendants/Appellants receipts issued, and correspondences between the Defendants/Appellants and her Solicitor with the Plaintiff/Respondents Solicitors

The learned trial Judge, on the application of the defense Counsel struck out the further and Better affidavit on 25-02-2003 hence judgment and subsequent appeal.

LEGAL ARGUMENT BY THE APPELLANTS LEARNED COUNSEI, ISSUE ONE:

Learned Counsel to the Appellants’ argument on issue one is that no where in the supporting affidavit of the Plaintiff/Respondent was the issue of interest in any way referred to except in the writ of Summons. The Plaintiff did not establish or prove that there was a contractual agreement or custom of the business that interest of any rate should be charged or claimed hence it was not intended that interest shall be claimed or awarded by the Court citing Himma Merchants Ltd vs Aliyu (1994) 5 NWLR (pt.347) 67 or (1994) 6 SCNJ 87 at 94 Lines 5-9, 33-34; Reuben Ekwunife vs Wayne West Africa Ltd (1989) 5 NLWR (Pt.220) 422. The Court was therefore wrong to have awarded 21% interest on the sum claimed until the judgment date as if there was such an agreement or custom in the trade; Counsel referred to Union Bank of Nigeria vs Ozigi (1994) 3 SCNJ 42 at 56-57 and urged the Court to answer issue one in favour of the Appellants/Defendants and allow this appeal.

ISSUE TWO:

Counsel argued that the trial Court should not have awarded 10% interest by relying on the endorsement on the writ of summons from the date of judgment until final liquidation of the balance of N356,194,62 kobo since the Appellants/Defendants never applied for installmental payment as envisaged by Orders 39 rule 7 of the Kaduna State High Court (Civil Procedure) Rules 1987 which is in pari material with Order 27 rule 8 of the Kano State High Court (Civil Procedure) Rules 1976 applied in Berliet vs. Kachala (1995) 12 SCNJ 147.

Counsel referred also to Order 40 rule 7 of the Bauchi State High (Civil Procedure) Rules 1987 which is also in pari material with Order 39 rule 7 of the Kaduna State High Court (Civil Procedure) Rules 1987, interpreted in Himma Merchants vs. Aliyu (1994) 5 NWLR (Pt.347) 667 at 678-679 and 682 or (1994) 6 SCNJ 87 at 103 and Barclays Bank D.C.O. vs. Yusuf Alabi Adigun (1962) NWLR 41 or (1961) All NLR 557 at 558 and KSTA vs. Ofodile (1999) 10 NWLR (Pt.622) 259 at 267. Learned Counsel urged that this appeal should be allowed.

RESPONDENT’S LEARNED COUNSEL’S ARGUMENT:

ISSUE ONE:

Learned Counsel submitted that the trial Court was right for holding that the Notice of Intention to defend was filed out of time. This did not comply with the Rules of the Court. The Plaintiff/Respondent was therefore entitled to judgment under Order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules 1987. The Appellants/Defendants did not seek leave to have time extended to file notice of Intention to defend the suit hence this Court should not allow this appeal.

ISSUE TWO

Learned Counsel submitted that in the absence of a notice to defend the suit there was no challenge to the facts before the Court thereby leaving the learned trial judge no option than to rely on the unchallenged affidavit evidence of the Plaintiff/Respondent to award pre and post judgment interest in the circumstances of this case. The Defendants/Appellants never challenged these claims before the trial Court hence where an issue is not raised before the trial Court an Appellant cannot raise it before eth Appeal Court when there is no basis for such a grievance. Reference was made to Buhari vs. Yusuf (2003) FWLR (Pt.174) 329; Rockonoh Property Co. Ltd. vs. Nigerian Telecommunication Plc. (2001) 7 SCNJ 225; Inke vs. Bank of the North Ltd. (2003) FWLR (Pt.176) 648.

Learned Counsel further argued that even if the Appellants/Defendants could raise the issue it is a fact that the relationship giving rise to this appeal is one of distributorship whereby, apart from the profit being made by the distributors, they pay commission to the Appellant/Defendants based on the volume of purchase. In other words, distributors of the Plaintiff/Respondent earn certain percentage from certain quantities of goods purchased from the Plaintiff/Respondent who credit them with the same, and either pays them periodly in cash or goods. Since the transaction between the Appellants/Defendants and the Plaintiff/Respondent is a special type in which a distributor is paid for buying and in the same was the seller charges interest in default of payment, the custom of the trade or business allows pre and post judgment interest. Learned Counsel submitted that the Court was right in awarding pre and post interest on the judgment, citing Himma Merchants Ltd. v. Aliyu (1994) 5 NWLR (Pt.347) 667 and Order 39 rule 7 of the Kaduna State High Court (Civil Procedure) Rules 1987.

Counsel submitted that the provisions of Order 39 rule 7 of the Rules supra is very clear. This Court should not interfere with the discretion of the learned trial Judge, citing Unilag vs. Aigoro (1985) 1 NWLR (Pt.1) 143 and Unipetrol Nigeria Plc vs. Adireje (W/A) Ltd. (2004) All FWLR (Pt.231) 1238. It was further argued that the Court can suo motu order interest under Order 39 rule 7 of the 1987 Rules supra. Nevertheless the Plaintif/Respondent asked for only 10% post judgment interest till final liquidation which was granted. There was no counter-affidavit in this case to challenge the facts in the supporting affidavit citing Tata vs. Attorney-General of Bauchi State (1993) 9 NWLR (Pt.317) 358. The Court was urged to dismiss the appeal and affirm the judgment of the trial Court.

ISSUE ONE

I shall do a kind of merging or marrying issue one in the Appellants/Defendants’ issues for determination together with issue one in the Respondents/Plaintiffs brief in determining the issues in controversy.

There is no denying the fact that Order 22 rule 3(1) of the Kaduna State High Court (Civil Procedure) Rules 1987 provides that a defendant sued under the Undefended List procedure has time within which to file a Notice of Intention to defend the suit supported by an affidavit disclosing a defence on the merit. The Order and rule reads as follows:

“If the party served with the writ of Summons and affidavit as provided in Rules 1 and 2 hereof delivers to the Registrar not less than 5 days before the date fixed for hearing a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the Court may think just.”

There is no challenge by the Defendants/Appellants that the notice of Intention to defend tire suit was filed twenty-three days out of time. That finding is upheld by this Court. There was no application to have time extended hence the learned trial judge acted correctly to have entered judgment in favour of the Plaintiff/Respondent. The reasons for holding that no defence on the merit was disclosed is also borne by the facts in the affidavit supported by documentary exhibits which clearly showed the Defendants/Appellants to be indebted to the Plaintiff/Respondent in the sum of N356, 194.62 kobo (three hundred and fifty six thousand, one hundred and ninety four thousand, sixty two Kobo) as at the time of trial. The documentary exhibits are to be used as acid test in unchallenged oral evidence deposed to by the Plaintiff/Respondent. See Kimdey vs Military Governor of Gongola State (1999) 2 NWLR (Pt.77) 445; at 473; Lion Buildings Ltd vs Shodipe (1976) 6 S.C 135 at 153 and Olujinle vs Adeagbo (1988) 2 NWLR (Pt.77) 238 at 253.

No one proves what has not been denied. See Olale vs Ekwelendu (1989) 7 SCNJ 181 and Akintola vs Solana (1986) 2 NWLR (pt.24) 598. However the real question- in controversy centres on the 21% interest per annum ordered to be paid from 12-03-2001 till 18-03-2003 when the judgment was delivered.

At common law interest was payable by express agreement or by business or trade custom, See Alfotrin vs Attorney-General of the Federation (1996) 12 SCNJ 236 at 264; Wayne (W.A) Ltd v Reuben Ekwunife (1989) 12 SCNJ 130; Himma Merchants Ltd vs Aliyu (1994) 5 NWLR (Pt.347) 667; Ogbur vs Ani (1994) 7 NWLR (Pt.355) 128 and Acme Builders vs Water Board (1999) 2 SCNJ 25 at 49-50.

In this case, learned Counsel that filed the suit on behalf of the Plaintiff/Respondent did not aver in the affidavit nor support same with any express agreement to show that in case of breach of the contract of distributorship his clients are entitled to the award of 21% interest from 12- 03-2001 till date of judgment on 18-03-2003. Neither was it deposed that is a custom in the trade. Rather, the learned Counsel to the Plaintiff/Respondent has sought to justify the award in his brief of argument. That is what Counsel should have done in an affidavit. Interest is a matter of pleading and evidence. See Edilco Nig. Ltd vs UBA Plc (2000) FWLR (Pt.21) 729.

I am of the humble opinion that learned Counsel’s brief of argument cannot take the place of what should have been pleaded or deposed to in an affidavit. I resolve this issue in favour of the Appellants/Defendants and set aside the 21%o interest awarded from 12-03-2001 till 18-03-2003. ISSUE TWO:

Issue two complains about the 10oZ interest per annum from 18-03-2003 till the whole judgment sum is fully and finally liquidated.

Older 39 rule 7 and B of the Kaduna State High Court (Civil procedure) Rules 1987, reads as follows:

“7. The Court at a time of making any judgment or order, or at any time afterwards, may direct the time within which the payments or order act is to be made or done, reckoned from the date of the judgment orders, or front some other point of time’, as the Court thinks fit, and may order interest at a rate not exceeding ten naira per centum per annum to be paid upon any judgment; commencing from the date thereof or afterwards as the case may be.

8. When any judgment or order directs the payment of money, the Court may, for any sufficient reason, order that the amount shall be paid by installments, with or without interest, such order may be made at the time of giving judgment, or at any time afterwards, and may be rescinded upon sufficient cause at any time, ”

The power of the trial judge to order payment of interest at a rate not exceeding ten naira per centum per annum to be paid upon any judgment commencing from the date thereof, or afterwards as the case may be, involves the exercise of a judicial discretion by the learned judge.

The learned trial judge did not order installmental payment of the judgment sum since there was no application to that effect under Order 8 of the Kaduna State High Court (Civil Procedure) Rules 1987. The judgment of the Court was not based on that provision.

The learned judge seems to have relied on Order 39 rule 7 of the Rules. But the Court did not grant time to pay the judgment debt or by installment because no application was made by the Defendants/Appellants for that purpose. The condition precedent for ordering 10% interest per annum until the whole judgment sum is fully paid or liquidated did not therefore arise. See KSTA vs Ofodile (1999) 10 NWLR (Pt.622) 259 at 267 and, the plethora of cases already cited by the Appellants/Defendants’ learned Counsel.

The governing principle is that interest should have been awarded to the Plaintiff/Respondent, not as compensation for the damage caused by the Defendants/Appellants not paying the debt, but for being kept out of money which ought to have been paid to him all this while. See London, Chattam and Dover Railway Co. vs. South Eastern Railway Co. (1893) A.C. 429 at 437 per Lord Herschell, Lord Chancellor. That is why, where interest is claimed under any statute or Rule of Court, that fact may be set out in the claim with relevant particulars, especially in contractual interest claims. See also Himma Merchants vs. Aliyu (1994) 5 NWLR (347) 667.

The fact that there was no counter-affidavit by the Defendants/Appellant challenging the claims of the Plaintiff/Respondent is not a license for the learned trial judge to ignore a condition precedent stipulated under Order 39 rule 7 of the Kaduna State High Court (Civil Procedure) Rules 1987 for awarding interest at the rate not exceeding ten naira per centum per annum commencing from the date of the judgment or afterwards as the case may be.

The discretion bestowed on the learned judge to order interest is statutory and has to be strictly acted upon in accordance with those provisions. This is one of the situation where the discretion of the learned trial judge may be interfered with by the Court of Appeal. See Maxwell vs. Keun (1927) All E.R. 335; University of Lagos vs. Aigoro (1985) 1 SC 265; Ugboma vs. Olise (1971) 1 All NLR 8; Demuren vs. Asuni (1967) 1 All NLR 94 and Mobil Oil vs. FBIR (1977) 3 SC 97 at 141. Issue two is also resolved in favour of the Defendants/Appellants.

On the whole this appeal succeeds on issue one and two. The appeal is allowed. The 21% interest per annum from 12-03-2001 till 18-03-2003 and 10% interest per annum from 18-03-2003 till the whole judgment is fully and finally liquidated is set aside and is dismissed. N20,000.00 cost to the Appellant.

MARY U. PETER-ODILI, J.C.A: I agree with the judgment of my learned brother, JOSEPH TINE TUR JCA, just delivered, I am in accord with the decision and the reasonings thereof. There is nothing more to add.

THERESA NGOLIKA ORJI-AGBADUA, J.C.A: I have had the benefit of reading the judgment of my learned brother J. Tine Tur, J.C.A., and I am in complete agreement with his view and conclusion in this appeal. My learned brother has dealt with every aspect of this case with care. I have nothing more to add except to say that by order 39 Rule 7 of the Kaduna State High Court (Civil Procedure) Rules, 1987 which is in pari materia with Order 40 Rule 7 of the Universal Rules, it was provided that the Court at a time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoning from the date of the judgment or order or from some other point of time, as the Court thinks fit, and may order interest at a rate not exceeding ten per cent per annum to be paid upon any judgment commencing from the date thereof or afterwards as the case may be.

It is instructive to note that the word “may” was used in the said Order 39 Rule 7, and, not the mandatory word “shall”. It is also clear from the con in” which it was used that Courts are not under compulsion to direct the time within which the payment is to be made or that is automatic.”

The second limb of the Rule says that the Court “may order interest at a rate not exceeding ten percent per annum to be paid upon any judgment, commencing from the date thereof or afterwards.

What this postulates is that award of post judgment interest is not automatic unless, the, trial court delivering the judgment so orders.

It is also, pertinent, to note that conjunctive word used in the said Order 39 Rule 7 is; ‘And’. The word, “And” expresses the idea that the latter is to be added to or taken along with the first. It expresses general relation or connection, participation or accompaniment sequence, having no inherent meaning standing alone, but, deriving force from what, comes before and after. In its conjunctive sense the word is used to conjoin words, clauses, or sentences, expressing the relation of addition or connection, and signifying that something is to follow in addition to that which proceeds and its use implies that the connected elements must be grammatically co-ordinate, as where the elements preceding and succeeding the use of the words refer to the same subject matter. See Black’s Law Dictionary, 6th Edition p.86.

This explains the reason why in decided authorities such as Barclays Bank D.C.O. vs. Adigun (1961) All NLR p.536, the court in declining to award interest said that the Rule consisted of a single sentence which by the normal canons of constructions must be read as a whole, each part being dependent on the other. When so read, it meant that the court might grant time within which to pay a judgment debt and might when making such an order also order interest to be paid thereon from the date of judgment or afterwards, but not otherwise.

I must note that since the conjunctive word ‘and’, was used to join the former statement in order 39 Rule 7 and the latter one concerning award of post judgment interest, it seems clear that an award of a post judgment statutorily authorized interest rate of 10% can only be made where the Court had directed the time within which the payment of the judgment sum would be made. In the absence of such a directive as to the time of payment of the judgment debt, I am in doubt as to whether the trial Court could have disjunctively ordered the payment of a post judgment interest. As my learned brother verbously explained in the leading judgment, the pre-requisite for the award of the statutorily provided interest rate of 10% per annum on judgment debt was lacking in the instant appeal, thereby rendering the award made by the trial court futile. In Barclays Bank D.C.O. vs. Yesufu Alabi Adigun (supra) it was further held that “the court could not order the payment of interest on a judgment except when it directs the time within which the judgment debt is to be paid. It went on to state that the power to direct the time within which the judgment debt is to be paid, and the power to order the payment of interest on the judgment debt go together; the court cannot exercise the second in the absence of the first. The power to order the payment of interest on the judgment debt may exist in another Act of Parliament or under another rule of procedure”.

Now, regarding the pre-judgment interest at the rate of 21% awarded by the trial court, it is pertinent to note that pre-judgment interest must not only be pleaded but must be strictly proved. The Respondent failed to prove the 21% interest per annum pleaded in its particulars of claim. It is worthy to note that pleadings are mere averments and evidence is required to substantiate the facts pleaded. Any pleaded fact that is not proved or supported by evidence is deemed abandoned. In the instant appeal, the Respondent claimed for 21% rate of interest from the date of the contract until the judgment is given, but, there was no scintilla of evidence adduced in support of the rate claimed. See UBA Plc vs. Sani Abacha Foundation for peace and Unity (2004) 3 NWLR Part 861 p. 510. See also FBN Ltd vs. Moba Farms Ltd (2005) 8 NWLR Part 928 p. 92. See also Berende vs. Usman (2005) 14 NWLR Part 944 p. 1.

It is clear from the foregoing that no foundation was laid for the award of the statutorily prescribed 10% interest rate before it was made and, too, there was no credible evidence led before the trial Court that there was an agreement between the parties that such a pre-judgment interest rate be charged on the sum owed from the date of accrual of the cause of action to the date of judgment.

For the reasons articulated herein and the ones the lead judgment, I too, allow the appeal, and I abide by all the consequential orders made therein.

Appearances

Prince Lanke Odogiyon;

J.K. Nuhu (Mrs.)For Appellant

AND

For Respondent