HON. (DR.) GABRIEL O. ADAH v. FIRST CITY MONUMENT BANK PLC
(2018)LCN/11799(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/C/253/2015
RATIO
VICARIOUS LIABILITY AS A MATTER OF LAW MUST BE GROUNDED BY FACTS
Vicarious liability is a matter of law. Facts must be adduced to ground same and the relief must be specifically sought. It cannot be a consequential order. per STEPHEN JONAH ADAH, J.C.A
AN ISSUE FOR DETERMINATION MUST BE RELEVANT
The law is settled that an issue for determination should be a crucial, critical issue that has the capacity to affect the destiny of the appeal. per STEPHEN JONAH ADAH, J.C.A
JUSTICES:
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
HON. (DR.) GABRIEL O. ADAH – Appellant(s)
AND
FIRST CITY MONUMENT BANK PLC – Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Cross River State, Calabar Judicial Division in Suit No. HC/362/2014 delivered on 1st December, 2014 by Adie Attoe-Onyebueke, J.
The Appellant was the Claimant at the Court below while the Respondent to this appeal was the Defendant. The claim was commenced vide a writ of summons filed concurrently with a Statement of Claim. The writ of summons is not part of the documents compiled into the record of appeal transmitted on 24th November, 2015. The Supplementary Record of appeal transmitted on 10th June, 2016 but deemed properly transmitted and served on 24th October, 2016 also did not contain the writ and the statement of claim of the Appellant. The Supplementary Record of appeal only carried the Statement of Defence and Counter-claim, Reply to the Defendants Statement of Defence and Defence to the Counter-claim, Amended Statement of claim and written depositions of the Appellant and the DW1.
The amended statement of claim is at pages 284 to 293. The reliefs claimed by the Appellant as per the amended statement of claim are as follows:-
1. AN ORDER of injunction restraining the Defendants by itself, the agents, staff, Representatives-in-action, privies, cohorts and any relations whatsoever, from alienating, selling, disposing of, mortgaging or attempting to mortgage and/or alienate sublet and/or trespass unto the Plaintiffs property lying and situate at the KARU CHIEF’S PALACE LAYOUT CADASTRAL ZONE 09-07 ABUJA MUNICIPAL AREA COUNCIL, KARU, ABUJA, Federal Capital Territory Mortgaged to the Defendant as collateral for a loan facility of N28,000,000.00 obtained from the Defendant in August 2000 AD.
2. A DECLARATION that all the moneys recovered from the fraudsters who duped the Plaintiff in the persons of Femi, Abdulsalam and Patrick totaling N24,700,000.00 (Twenty Four Million, Seven Hundred Thousand Naira) Only are recoveries made in respect of the failed transactions between the Plaintiff and the said fraudsters who duped the said Plaintiff of the said sum of N28,000,000.00 obtained as loan by the Plaintiff from the Defendant.
3. A DECLARATION that the Defendant having recovered the said sum of N24,700,000.00 (Twenty Four Million, Seven Hundred Thousand Naira) Only through the Economic and Financial Crimes Commission should accept the said sum of N24,700,000.00 in addition to the sum of N2,800,000.00 (Two Million, Eight Hundred Thousand Naira) Only as full and final settlement of the said loan of N28,000.000.00 obtained by the Plaintiff from the Defendant, the business transaction which loan was obtained for having been frustrated by the actions of the fraudsters.
4. A DECLARATION that the entire sum of N24,700,000.00 recovered through the Economic and Financial Crime Commission, Lagos, was recovered through the assistance and concerted effort of the Plaintiff, who made the said recoveries possible.
5. AN ORDER directing the Defendant to release to the Plaintiff through a clean deed of release the Plaintiffs title documents in respect of the Plaintiffs property lying and situate at Chief Palace Layout Cadastral, Zone 09-07 Abuja Municipal Area Council, Karu, Abuja deposited with the said Defendant as collateral for the said loan facility having been fully recovered through the instrumentality of the Economic and Financial Crime Commission, a Federal Government establishment, established to recover moneys lost in this manner for and on behalf of the victims and the Government itself.
6. AN ORDER of perpetual injunction restraining the Defendant by herself, her agents, staff, privies, cohorts and or representative in action from attempting to arrest, arresting, detaining and/or further interfering with the fundamental rights of the said Plaintiff and/or prosecuting the Plaintiff in any other tribunal, panel or in the nature of Court, the loan facility having been fully recovered from the said Plaintiff by the said Defendant through Economic and Financial Crimes Commission.
7. A DECLARATION that the Plaintiff cannot suffer double jeopardy.
8. A CLAIM of N100,000,000.00 (One Hundred Million Naira) Only as general damages or the arrest, detention and torture, humiliation, and abuse of the fundamental rights of the person of the Plaintiff who was then the Speaker of Cross River State House of Assembly for 9 days at Calabar River State Police Headquarters, Diamond Hill, Calabar and 3 days at Alagbon Close, Police Command, Lagos, Lagos State all at the instance of the Defendant.
Issues were joined by the parties. The Respondent counter-claimed in her pleading and counter claimed as follows:-
(a) Judgment for the outstanding sum of N104,742,260.04 as at January 30, 2005 and with interest at 26% per annum from January 30, 2005 until the entire liquidation of the sum outstanding.
(b) AN ORDER for the Defendant to sell any property of the Plaintiff to pay the indebtedness.
The Court below heard the case of the parties and dismissed the claim of the Appellant while awarding the Respondent her counter claim. The Court awarded a sum of N35.5 million with 21% interest from the year 2000 and 10% post judgment interest against the Appellant.
Aggrieved by this decision the Appellant filed a notice of appeal on 4th December, 2014. This was later amended by an amended notice of appeal filed on 30th November, 2015 but deemed properly filed and served on 16th February, 2016. The record of appeal was transmitted on 24th November, 2015 and a Supplementary Record of appeal was thereafter transmitted on 16th June, 2016 but deemed on 24th October, 2016.
The Appellants brief of argument settled by Chief Ogar Ndoma Egodo, Esq. was filed on 16th March, 2017. The Respondents brief settled by Effiom Ayi, Esq. was filed on 22nd January, 2018 but deemed properly filed and served on 20th February, 2018.
The facts of this case from the record before the Court are straight forward.
The Appellant a Medical Doctor who later became the Speaker of the Cross River State House of Assembly secured an overdraft from the Respondent a Bank/Financial Institution. The Appellant was a customer of the Respondents Bank. The initial overdraft was N3m and was granted on 12th August, 2000. The Respondent further advanced additional money to the Appellant. The money with the interest was not repaid and the Respondent Bank started taking steps to recover the money with the interest. This was the dispute laid before the Court below.
Four issues were distilled for determination by the Appellant. These four issues were also adopted by the Respondent for determination. These four issues are worded as follows:
(1) Whether the learned trial Judge was right in holding that the Appellants arrest and detention was not unlawful and or that the Respondent was not responsible for the same. (Grounds 1, 2 and 3).
(2) Whether the learned trial Judge was right in declining to credit the money recovered through the EFCC to the Appellant.
(3) Whether the learned trial Judge was right in adding the money lost to the fraudsters through Miss R. Edet to the Appellants indebtedness to the Respondent.
(4) Whether the learned trial Judge was right in holding that the Respondent proved and or was entitled to its counter claim.
ISSUE ONE
This issue is whether the Court below was right in holding that the Appellants arrest and detention was not unlawful and that the Respondent was not responsible for the arrest and detention.
The Appellant in his brief argued that his arrest by the police was instigated by the Respondent and that there was no crime committed by him. That there were no reasonable grounds of suspecting he committed an offence. He relied on the cases of SAMUEL ISHENO VS. JULIUS BERGER NIG. LTD. (2008) 2 SC (PT. 11) PAGE 78; MANDILLAS & ANOR. VS. APENA (1969) ALL NLR 390; and BASSEY VS. AFIA (2010) ALL FWLR (PT. 531) 1477. He also referred to the testimony of DW1 where it was alleged that the Appellants transaction with the Defendant was fraught with criminality which necessitated the intervention of the police. He contended that there was no evidence on record to link the Appellant with any crime. That the finding of the Court below indicating him of fraud was perverse. He relied on the cases of FAYOSE VS. I.C.N. (2014) ALL FWLR (PT. 730) 1347, and GBEMISOLA VS. BOLARINWA (2014) ALL FWLR (PT. 731) 1477. He submitted that the report needlessly jeopardized the liberty of the Appellant. He urged the Court to resolve Issue One in his favour.
The Respondent canvassed that the lower Courts decision was unimpeachable because the Appellant did not demonstrate with evidence that his arrest and detention was instigated by the Respondent. He relied on the cases of HAJIA BUBA & 2 ORS. VS. HAJIA BUKAR (2003) FWLR (PT. 183) 38; and JACK VS. WHYTE (2001) FWLR (PT. 43) 247. The Respondent further canvassed that the Appellant tendered Exhibit 15 which in paragraph 2 stated as follows:
The case was reported to the Inspector General of Police Force Headquarters, Garki, Abuja through a petition dated 21st November, 2001 written by Barrister Orok Ironbar and Associate, No. 11 King Street, Calabar on behalf of Miss Rosario Effiong Edet F of No. 100 Old Odukpani Road, Ikot Ansa, Calabar against the former Speaker, Cross River State House of Assembly, Hon. (Dr.) Gabriel ogbudu Adah
That there was no reference to the fact that it was the Respondent who reported the Appellant to the police. The learned Counsel for the Respondent therefore urged the Court to resolve Issue One in favour of the Respondent.
On this issue the Appellants contention is that Miss R. Edet, the Manager of the Respondents Bank in Calabar who was admitted by all to be the one who reported the Appellant to the police was a staff of the Respondent. In the instant case, the said R. Edet was not a party. The police which the Appellant is blaming for his arrest were not made parties to this claim. The evidence before the Court is clear and certain that the report to the police was not made by any other person but by Miss R. Edet who the Appellant transacted with. There was evidence that the Appellant applied for an overdraft of N3m. The Appellant pleaded the application he made for the overdraft of N3m at paragraph 13 of his amended statement of claim. The overdraft of N3m was approved by the Respondent. That was in August 2000. The Appellant pleaded further at paragraphs 16 to 19 as follows:-
16. When the initial funds would not meet the Plaintiffs business need, the Plaintiff requested for additional funds from the Defendant through her Manager, Miss R. Edet which the said Defendant willingly gave to the Plaintiff without cohesion or force.
17. As at October, 2000 the Plaintiff had borrowed from the Defendant the sum of N28,000,000.00 and N32,000,000.;00 if interest were to be included.
18. The said business was frustrated by some fraudsters who purported to be assisting the Plaintiff at the Lagos end.
19. The business failed since the people who were to assist the Plaintiff ended up duping the Plaintiff aforesaid, as a result the Plaintiff could not commenced the repayment as scheduled and agreed upon by the parties.
The Appellant from his own pleading shows clearly that he did not apply for further overdraft. He said he requested for additional funds through Miss R. Edet and by October, 2000 he had borrowed a sum of N28,000,000.00 which with interest was N32,000,000.00. There is no evidence that this was formally done as in the initial application in August, 2000. The evidence before the Court indicates that it was the said Miss R. Edet that used her counsel to write against the Appellant to the police. Issue of vicarious liability is usually specifically pleaded. It cannot be conjured or subjected to conjecture.
Vicarious liability is a matter of law. Facts must be adduced to ground same and the relief must be specifically sought. It cannot be a consequential order. See SPDC (NIG.) LTD. VS. ADDICO & ANOR. (2015) LPELR-25785 (CA). There is nothing to show that the complaint lodged against the Appellant by the counsel working for Miss R. Edet was at the instance of the Respondent. The trial Court therefore cannot be blamed for holding that the Respondent was not liable or responsible for the report to the police.
Even then if the Respondent had wanted to complain against its staff, Miss R. Edet and the Appellant would the Respondent from the facts before the Court not be justified to do so? The situation here is different. The Respondent is a corporate personality that can sue and be sued. Miss R. Edet and her counsel Orok Ironbar and Associate never indicated the report was at the instance of the Respondent. It follows therefore that the finding of the Court below not indicting the Respondent is not perverse. Issue One is resolved in favour of the Respondent.
ISSUES TWO AND THREE
These issues are whether the Court below was right in declining to credit the money recovered through the EFCC to the Appellant and whether the Court was right in adding the money lost to the fraudsters through Miss R. Edet to the Appellants indebtedness to the Respondent.
The learned counsel for the Appellant in his brief captured his testimony on oath at paragraphs 21-22 at page 11 of his brief. These two paragraphs read:
21. That the matter was reported to the Economic and Financial Crime Commission, Lagos. The Commission invited me as a victim defrauded to assist in the investigation by identifying the fraudsters, who were then in EFCC custody. I and my counsel traveled several times to Lagos incurring huge flight fares and hotel bills to identify the residence and offices of the fraudsters and the fraudsters themselves.
22. That as a result of identification of the fraudsters, the EFCC recovered substantial part of the loan from the fraudsters in the following stages:
i) 1st recovery – N17,500,000.00
ii) 2nd recovery N7,200,000.00
Making a total sum of N24,700,000.00
(See page 303 of the Supplementary Record).
It is incontrovertible that the Appellant himself said on oath that:- the EFCC recovered substantial part of the loan from the fraudsters in the following stages:
i) 1st recovery N17,500,000.00
ii) 2nd recovery N7,200,000.00
If the money recovered by the EFCC is part of the loan, and the loan is from the Respondent one wonders how the Appellant would expect the Court to still credit the Appellant with the money that they admitted was part of the loan given by the Respondent. This issue therefore is nothing to engage anybodys attention. It is an academic exercise to be arguing about the money admittedly recovered for the Respondent being paid to the Respondent. This issue without any much ado is resolved in favour of the Respondent. The law is settled that an issue for determination should be a crucial, critical issue that has the capacity to affect the destiny of the appeal. In the case ofG. CHITEX INDUSTRIES LTD. VS. OCEANIC BANK INT. (NIG.) LTD.(2005) 14 NWLR (PT. 945) 792 Musdapher, JSC (as he then was) held that:-
An issue for determination in a brief is a point which is so crucial that if it is decided one way or the other it affects the fate of the appeal, it is a point which is so critical that if it is decided in favour of a party, he is entitled to win the appeal. See ONIFADE VS. OLAYIWOLA (1990) 7 NWLR (PT. 161) 130; OKOYE VS. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. (1991) 6 NWLR (PT. 199) 501.
Furthermore, in the case of EZUKWU VS. UKACHUKWU & ANOR. (2004) LPELR-1217 (SC), Edozie, JSC held that it needs to be stressed that every point in controversy between the parties in an appeal is in a loose sense, an issue. But for purposes of a brief, an issue is one, which is so crucial that if it is decided in favour of a party, he is entitled to win the appeal. Any question which does not adequately raise a substantial issue which if resolved one way or the other will affect the result of the appeal is not a proper issue for a brief. See OKOYE VS. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD. (1991) 6 NWLR (PT. 99) 501 @ 542.
In the instant case this issue two as framed has no utilitarian value in this appeal. It is accordingly discountenanced.
The other issue framed is issue three. The Appellant as earlier pointed out that said the money recovered from the fraudsters was part of the loan from the Respondent. The Appellant in his brief contended that the trial Court acknowledged that from the evidence of both parties it was agreed that the fraudsters duped both the Claimant and the Bank. The Appellant had in his statement on oath averred in paragraphs 8, 9, 10, 11 and 12 as follows:-
8. That the initial fund could not meet my business, therefore I requested for additional funds from the Defendant through its Branch Manager, Miss R. Edet. As at October, 2000, I had borrowed from the Defendant the sum of N28,000,000.00 and N32,000,000.00 if interest was to be included.
9. That the business was frustrated by some fraudsters who purported to assist me in the business in Lagos, but duped me as a result of which I could not commence the repayment scheduled and agreed upon.
10. That I assured the Defendant of my willingness to repay the aforesaid loan. On 9th September, 2000, I wrote to Miss R. Edet forwarding my Title Document in respect of my property situate at Chief Palace Layout, Cadastral Zone 09-07, Abuja Municipal Area Council, Karu, Abuja, to the Defendant as collateral for the loan which was N28,000,000.00 excluding interest.
11. That I never connived with the then Manager, Miss R. Edet to siphon the Defendants money. It was Miss R. Edet who abused her office by not guiding me very properly. I do not know the limit of Miss R. Edet.
12. That when I could not meet my obligations to the Defendant, the Defendant reported me to the Police alleging that I defrauded her of the money I obtained through loan and mortgaged my property therefore.
The Appellant from his testimony did not hold back anything about the fact that fraudsters purported to assist him in the business in Lagos but duped him. The fraudsters were known to the Appellants and the claim that the Appellant introduced them to the Respondents Manager in Calabar through which the Manager directly disbursed money to was not rebutted. The underlining fact however is whether the Manager of the Respondent was right to do direct disbursement of the money to the fraudsters. The Respondent who is claiming that the Appellant introduced and caused its Manager to be duped is the one making the allegation. The law is that he who alleges must prove his allegations as required. The Respondent did not in any of its showing prove to the Court below that the staff Miss R. Edet had specific instruction from the Appellant that she should directly disburse any amount to the fraudsters. If the said Manager, Miss R. Edet therefore disbursed any amount directly without any specific and direct instruction from the Appellant the bank customer, the Appellant definitely should not in all probabilities be the one pay for the error or stupidity of the staff of the Respondent. The Respondent however pleaded in paragraphs 28 and 36 of the statement of defence and counter-claim. These two paragraphs state as follows:-
28. The contents of paragraph 37 is false as the bank has made recovery of N15.5million so far through Economic and Financial Crime Commission, the recoveries which go towards mitigating the direct disbursements of N30million by Miss R. Edet which Plaintiff denied being a party to and the bank communicated this position to Plaintiff. Defendant shall at trial rely on the letter informing Plaintiff of the position.
36. The contents of paragraph 45 is false as the recovery of the money was at the instance of the Defendant and Miss R. Edet who actually complained to Economic and Financial Crime Commission.
The fact before the Court below is that the money recovered was at the instance of the Respondent and her staff, Miss R. Edet and that the money was the direct disbursement made by the staff, Miss R. Edet to the fraudsters. That it was the staff Miss R. Edet that reported the matter to the police and the EFCC. This therefore show clearly that the Respondent recovered part of the direct disbursement made to the fraudsters.
Since this clearly is the position, the Respondent had pursued the fraudsters to retrieve the N30 million direct disbursement and a sum of N24,700,000.00 in aggregate was recovered by the Respondent from the fraudsters through the EFCC. From the facts before us, it is in all sense not open to the Court below to add N30 million disbursed to the fraudsters to the indebtedness of the Appellants. The addition of the balance of N5.3m from the N30m disbursed directly to the fraudsters to the indebtedness of the Appellant is wrong, unjustifiable and irreconcilable. I agree therefore with the Appellant that the addition of the balance to the Appellants indebtedness is not supported by the evidence before the Court. Issue Three is partially resolved in favour of the Appellant which is as relates to the added N5.3m to the indebtedness of the Appellant. That added N5.3m shall therefore be discounted from the indebtedness of the Appellant.
ISSUE FOUR
This issue is whether the Court was right in holding that the Respondent proved and/or was entitled therefore to its counter claim.
The learned Counsel for the Appellant canvassed that a counter claim is an independent claim. That the assertion in the counter claim must therefore be independently proved or established. And that the proof must be such as would be sufficient to predicate the award of the reliefs claimed on prayers sought. Learned Counsel described it as a weapon of defence which enables a Defendant to enforce a claim against the Plaintiff as effectively as in an independent claim. That a counter Claimant has the burden to establish his counter claim and that failure to do so will render the counter claim liable to be dismissed. He relied on the cases of NSEFIK VS. MUNA (2014) ALL FWLR PART 718 P. 845 @ P. 852 HELD 5; AJANAKU VS. OSUMA (2014) ALL FWLR PART 727 P. 695 @ P. 704 HELD 14.
He submitted that the onus of proving the assertion that the Appellant is indebted in that sum belonged to the Respondent because he who asserts carries the responsibility of proving the assertion. That the Appellant did not owe any duty to disprove that assertion. He relied on Section 136 and 137 of the Evidence Act 2011 and the case of NSEFIK VS. MUNA (supra) @ P. 852 held 6.
He contended however, that apart from the mention of that figure in paragraph 39 of the Respondents DW1s Written Statement on Oath (page 299 of the Supplementary Record), there is no evidence whatsoever before the trial Court as to how the Respondent arrived at that figure. How much of that amount represents the principal loan/overdraft? How much of it represents the interest elements?
He further submitted that the learned trial Judge went on to award 21% interest on that sumfrom the year 2000 and 10% post judgment interest. That even though the Respondent claimed interest at 26% rate, it failed, refused and or neglected to lead any evidence that interest was agreed upon as a term of the contract between it and the Appellant, but more importantly, the rate of interest agreed upon. The Appellant vehemently denied that interest was agreed upon by the parties. That since the Respondent was the one claiming interest at a fixed rate, the onus was on it to lead evidence in support of that claim i.e. that interest was agreed upon and at what rate or at least, how it arrived at the rate claimed. The law he said is that a party cannot unilaterally impose a term of contract on the other. That the parties must be ad idem on a term and condition of the contract before it becomes enforceable. That having not led evidence to establish or show the basis of its claim for N104,742,260.04 the Respondents case ought to have been dismissed by the Court below.
The learned Counsel for the Appellant thereafter referred to the case of ACTION CONGRESS OF NIGERIA VS. LAMIDO (2012) 8 NWLR PART 1303 P. 560 @ P. 584, 585,the Supreme Court per Mohammed JSC held as follows:-
It is not the duty of a Court or tribunal to embark upon cloistered justice by making enquiry into the case outside the open Court not even by examination of documents which were in evidence but not examined in the open Court. A Judge is an adjudicator, not an investigator.
Counsel contended that having not led evidence to establish or show the basis of its claim for N104,742,260.04, the Respondents case ought to have been dismissed by the learned trial Judge as unproved. Rather, the learned trial Judge he said resolved the matter thus:
The next issue is from the evidence before the Court what is the total amount involved in the loan? From the totality of the evidence from both sides, the sum of 32 million loan is not in dispute, though the sum of N2.8 million should be minus from same which is the sum of N31.2 million. In respect of the sum N30m directly collected by Rose Ekanem, while the Claimant in his evidence gave the sum of N24.7 million as money recovered from the fraudsters by EFCC, the Defendant gave hers as N15.5 million. The Claimant specifically mentioned the amount recovered in two stages. See paragraph 22 of the Statement on Oath agreed with the sum of N17,500,000.00 was also recovered and the said N17,500,000.00 was mentioned as the 1st recovery by EFCC. On that point I agree with the Claimant that the amount recovered by EFCC was the sum of N24.7 million. If the above amount is subtracted from the 30 million naira directly disbursed by Rose Ekanem to the fraudsters, it remains N5.3m and same be added to N30.2m, the total debt accruing to the Defendant from the Claimant is the sum of N35.5 million and it is my view that 21% on the same should be calculated from the year 2000 and 10% post judgment interest.
The Respondent on this Issue Four submitted that the learned trial Judge was right in holding that the Respondent made out its case to be entitled to judgment on its counter-claim. He said the Appellant made copious, unambiguous and believable admission to the effect that he obtained a loan of N32 million from the Respondent although he claimed that the total amount he borrowed was N28 million and that it was the interest elements which brought the sum to N32 million. In demonstration of the Appellants admission of his indebtedness to the Respondent, he relied on the Appellants statement on oath paragraphs 8, 10, 23, 26 and 34. That facts admitted need not be proved and a Court is entitled to predicate its judgment exclusively on such admitted facts. That facts admitted need not be proved and a Court is entitled to predicate its judgment exclusively on such admitted facts. For this he relied on the cases of IKARE COMMUNITY BANK (NIG.) LTD. VS. ADEMUWAGUN (2005) ALL FWLR (PT. 265) I.F.A. INT. LTD. VS. LIBERTY MERCHANT BANK PLC (2005) ALL FWLR (PT. 265) 1141; AGBANELO VS. UBN (NIG.) (2000) FWLR (PT. 13) 2197; BIEZAN EXCLUSIVE GUEST HOUSE LTD. VS. UHS & L. LTD. (2012) ALL FWLR (PT. 634) 136. In R.C.C. (NIG.) VS. RPC LTD. (2005) ALL FWLR (PT. 265) 1120.
In the instant case, the Appellant never admitted to any range of interest. It is very much known a practice of the Banks and financial institutions that any credit facility being loans or overdrafts attract interest. Interest however is not a general thing. It is a key and important element of the contract of the parties. The parties must be ad idem on what the terms of their contracts are. One expects that when the Appellant applied for an overdraft facility of N3m, the Respondent would have given the facility specifying the terms including the tenure and the interest payable. This aspect of the relationship of the parties was not exhibited before the lower Court. Since this was not in black and white before the Court the parties would have made effort to place before the Court, the interest rate applicable. Since this was not specified, it is not open to the trial Court to speculate or engage in sentimental and arbitrary dispensation of interest rate to govern the contract of the parties. Furthermore, the Respondent counter-claimed for outstanding sum of N104,742,260.04 as at January 30, 2005 and with interest at 26% per annum from January 30, 2005 until liquidation of the sum outstanding. The Court below found for the Respondent the sum of N35.5 million with interest of 21% from 2000 and 10% post judgment interest. It is very certain that the interest of 10% post judgment is under the Rules of the Court discretionary and the Court below exercised that discretion judicially and judiciously having regard to the circumstances of the case.
The sum of 21% pre-judgment interest, however, has no basis because the parties did not agree to that rate and there is no specific evidence to show that the rate was the reigning Central Bank interest rates at the time of the overdraft. Moreover, the Court cannot make contract for the parties. No Court also can speculate on issue of interest rate. It must be in the contract or agreement of parties. The claim for pre-judgment interest therefore has failed but the 10% post judgment interest which was awarded is within the powers of the Court below. From this therefore this issue is resolved partially in favour of the Appellant.
From the foregoing, this appeal succeeds in part and from the resolution of issues especially issues three and four,the appropriate order is for judgment to be entered for the Respondent in the sum of N30.2m with interest of 10% from the date of judgment which is 1st of December, 2014.
This appeal from the foregoing succeeds in parts and the order is that the judgment is entered for the Respondent in the sum of N30.2m with 10% interest from 1 December, 2014 until it is finally liquidated.
The judgment of the Court below delivered on December, 2014 in Suit No. HC/362/2004 of the High Court of Cross River State, Calabar per Adie Attoe-Onyebueke, J is accordingly adjusted in line with this decision.
Parties are to bear their respective costs.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My learned brother, S. J. ADAH, JCA, afforded me the opportunity of reading in advance the judgment just delivered. I adopt the facts of this case as ably narrated by my learned brother in the lead judgment. I agree with his reasoning and conclusion and have no reason to further dwell on this appeal.
I also abide by the order as to costs made by Adah, JCA in the lead judgment.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege to read the draft of the lead judgment just delivered herein by my learned brother STEPHEN JONAH ADAH, JCA and I totally endorse the reasoning and conclusions therein.
I equally allow this appeal In part and I adopt the consequential orders in the lead judgment.
Appearances:
Chief O. N. Egodo, Esq., with O. J. Horsfall, Esq., and O. S. Owaihe, Esq. For Appellant(s)
Effiom Ayi, Esq. For Respondent(s)
Appearances
Chief O. N. Egodo, Esq., with O. J. Horsfall, Esq., and O. S. Owaihe, Esq. For Appellant
AND
Effiom Ayi, Esq. For Respondent
