MR. OLUDAYO OROJO v. L.R. AVIONICS TECHNOLOGIES LIMITED
(2018)LCN/10965(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of March, 2018
CA/L/451/2015
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
MR. OLUDAYO OROJO
(Sued as Personoal representative of the Estate of Late Hon. Justice (Dr.) Olakunle Orojo (Rtd.) Appellant(s)
AND
L. R. AVIONICS TECHNOLOGIES LIMITED Respondent(s)
RATIO
WHETHER OR NOT POST-JUDGEMENT INTEREST IS AWARDED FROM THE DATE OF THE JUDGMENT NOT BEFORE
In any event, it seems to be settled law that post-judgment interest (also known as discretionary interest) is awarded from the date of the judgment not before. See LAMURDE LOCAL GOVT vs. KAKA (2010) 10 NWLR (PT 1203) 574 at 583, ASSAM vs. D.E.F.S. LTD (2007) 16 NWLR (PT 1060) 234 at 242 and ASHAKA vs. NWACHUKWU (2013) LPELR (20272) 1 at 66-68. In PETROLEUM (SPECIAL) TRUST FUND vs. WESTERN PROJECT CONSORTIUM LTD (2006) LPELR (7719) 1 at 29-30, Rhodes-Vivour, JCA (as he then was) stated as follows:
“Post Judgment interest, is with effect from the date of the judgment or from any time afterwards. The judge has no jurisdiction to order payment of interest not included in the claim from a date before Judgment was delivered.
In Ekwunife v. Wayne (W/A) Ltd. (supra) interest at 10% of the judgment sum (as provided by Order 27 Rule 8 of Plateau State High Court (Civil Procedure) Rules 1976 was awarded with effect from the date of accrual of the cause of action. This was wrong, it ought to have been awarded after Judgment since it was post judgment interest. The Supreme Court amended the Judgment to read Judgment at the rate of 10% p.a. with effect from 8/12/80, the date of the Judgment of the High Court.” The Respondent argued that the award of post judgment interest was a consequential order. This is not correct. The Respondent claimed the specific relief for the award of post-judgment interest. The award of the same cannot therefore be a consequential order which from the authorities need not be specifically claimed, but is an order made to give effect to the judgment, an appurtenant to the main or principal order. An order directly traceable or flowing from the judgment or order duly prayed for and made. See FUNDUK ENGINEERING LTD vs. MC ARTHUR (1996) LPELR (1291) 1 at 19, EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 at 57 and AMAECHI vs. INEC (2008) LPELR (446) 1 (SC). PER OGAKWU, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE BEFORE IT
Now, a Court of trial has the duty of perception and evaluation of evidence. By perception of evidence is the reception of available evidence by the trial judge; the weighing of evidence in the con of the peculiar circumstances of the case is evaluation of evidence. See GUARDIAN NEWSPAPERS LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50 -51. PER OGAKWU, J.C.A.
WHETHER OR NOT A COURT IS BOUND TO ACCEPT THE EVIDENCE OF ANY EXPERT WITNESS AS THE DECISION ON THE CASE
A Court is at all times fully in control of the evidence before it and does not abdicate its primary duty of assessing the evidence, including expert evidence, and ascribing probative value thereto. A Court is not bound to accept the evidence of any expert witness as the decision on the case is that of the Court and not that of the expert. See UTB vs. AWANZIGANA ENTERPRISES LTD (1994) LPELR (14599) 1 at 28-29 and FAYEMI vs. ONI (2009) LPELR (4146) 1 at 58-59. PER OGAKWU, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE BY THE TRIAL COURT
The disceptation in this issue is on the evaluation of evidence and the ascription of probative value thereto. It is settled law that the evaluation of evidence is the primary function of the Court of trial. Where the Court of trial has unquestionably evaluated and appraised the evidence, it is not the business of the appellate Court to interfere unless the findings are perverse: UWAJE vs. MADUEMEZIA (2015) LPELR (24543) 1 at 13. Evaluation of evidence is basically the assessment of facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. The evaluation involves the reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. See IKHINMWIN vs. ELEMA (2014) LPELR (23322) 1 at 32. PER OGAKWU, J.C.A.
PRESUMPTION THAT THE CONCLUSIONS OF THE TRIAL COURT ON FACTS ARE CORRECT
The law is that the conclusions of the trial Court on the facts are presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):There was a contract between the Respondent and the Federal Government of Nigeria. Consequent upon an alleged breach of the said contract, the late Hon. Justice (Dr.) Olakunle Orojo (Rtd.) was appointed as the Sole Arbitrator in respect of the dispute. He accepted the appointment, convened two preliminary meetings held on 30th June 2005 and 12th October 2005 at which he gave order for directions and the fees to be paid to the Arbitrator were agreed upon. Thereafter there was an intermission for about four years as the Respondent was not able to raise its part of the Arbitrator’s fees and the Federal Government of Nigeria did not participate or take part in the proceedings. In 2009 the Respondent made part payment of the Arbitrator’s fees and administrative expenses for the arbitration. Shortly after this payment was made and before any further proceedings could be taken, the Sole Arbitrator died. The Respondent later filed an action against the Appellant as personal representative of the Estate of the Late Arbitrator before the High Court of Lagos State in SUIT NO.
1
lD/690/2010: L. R. AVIONICS TECHNOLOGIES LIMITED vs. MR. OLUDAYO OROJO claiming the following reliefs:
?1. The sum of N3,400,000.00 (Three Million Four Hundred Thousand Naira) being deposit of Arbitrator’s fees and Administrative expense paid to the Late Honourable Justice (Dr.) Olakunle Orojo (Rtd) on 5th May, 2009 by the Claimant in respect of the Arbitration proceedings aforesaid.
2. Interest on the said sum at the rate of 16% per annum from 6th May, 2009 till judgment is given and thereafter at the rate of 10% per annum until the entire sum is liquidated.
3. The cost of this action.”
The Appellant as Defendant at the lower Court counterclaimed for the following reliefs:
”1. The sum of N3,000,000 (Three Million Naira) being balance of Arbitrator’s fees due to Late Honourable Justice (Dr.) Olakunle Orojo (Rtd) for work already done before his demise.
2. Interest on the said sum at the rate of 21% per annum from the 3rd day of July, 2009 till judgment is given and thereafter at the rate of 10% per annum until the entire sum is liquidated.
3. The cost of this action.”
?Pleadings were filed and exchanged. Issues
2
having been joined, the matter was subjected to a plenary trial at which testimonial and documentary evidence were adduced. In its judgment delivered on 6th March 2015, the lower Court entered judgment in favour of the Respondent and dismissed the Appellant’s counterclaim. The Appellant being dissatisfied appealed against the said judgment. The judgment of the lower Court is at pages 486-498 of the Records while the Notice of Appeal is at pages 499-504 of the Records.
Allegiant to the Rules of Court, the Records were compiled and transmitted and briefs of argument were filed and exchanged by the parties. The Appellant’s Brief was filed on 9th June 2015 while the Respondent’s Brief was filed on 22nd September 2015. The Appellant filed a Reply Brief on 2nd February 2015. At the hearing, the learned counsel for the parties urged the Court to uphold their submissions in the determination of the appeal. The Respondent filed a Notice of Preliminary Objection on 2nd March 2016 wherein it challenged some of the grounds of appeal. The said Notice of Preliminary Objection was however abandoned at the hearing of the appeal and it is hereby struck out.
?The
3
Appellant distilled three issues for determination as follows:
?1. Whether the trial Court came to a correct decision in awarding post judgment interest which pre-dated the judgment.
2. Whether the Appellant was given fair hearing by the lower Court.
3. Whether the lower Court properly evaluated the case of the Appellant in coming to its decision on the issue of fees and expenses payable by Respondent.”
The Respondent adopted the issues distilled by the Appellant. I will therefore consider the submissions of learned counsel and resolve this appeal based on the said issues.
ISSUE NUMBER ONE
Whether the trial Court came to a correct decision in awarding post judgment interest which pre-dated the judgment.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant argues that the lower Court was wrong in ordering post-judgment interest to run from 30th April 2010 when the judgment was delivered on 6th March 2015. It was submitted that the lower Court was wrong in holding that Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012 empowered the Court to order post-judgment interest
4
to commence at some other point in time as the judge deems fit. It was stated that there was a difference between pre-judgment interest and post-judgment interest and that the Respondent’s claim for pre-judgment interest having been dismissed, the lower Court could not grant post-judgment interest to commence on a date preceding the judgment which was not claimed. The cases of BERENDE vs. USMAN (2005) 14 NWLR (no part) 1 at 23-24, VEEPEE IND. LTD vs. COCOA INDUSTRIES LTD (2008) 13 NWLR (PT 1105) 486 at 512 and AFRIBANK vs. AKWARA (2006) 5 NWLR (PT 974) 619 at 656 were referred to.
It was asserted that the discretion given to the Court to determine when payment or an act is to be done relates to the judgment sum only and not the consequential post-judgment interest, the object of which is to dissuade the judgment debtor from delaying in paying the judgment sum and compensating the judgment creditor where payment is delayed. The case of GKF INV. NlG. LTD vs. NITEL (2009) 15 NWLR (PT 1164) 344 at 379 was relied upon. It was maintained that the interpretation placed on Order 35 Rule 4 of the Rules by the lower Court was absurd and should be rejected. The
5
case of PDP vs. INEC (2001) 1 WRN 1 at 41 was cited in support.
The Appellant stated that applying the literal or golden rule of interpretation and giving the words used their ordinary and grammatical meaning, it is clear that the phrase “or from some other point in time, as the judge deems fit” can only be applicable to the time when the judgment sum is to be paid, since it will be absurd for the judgment sum to be made payable before the date of the judgment. The operating and controlling word in the said Order 35 Rule 4, it was submitted is for interest to be ordered to be paid upon the judgment. The cases of NDIC vs. OKEM ENTERPRISES (2004) 10 NWLR (PT 880) 107 at 184-185, OJOKOLOBO vs. ALAMU (1987) 2 NSCC 991 at 1000 and OGBORU vs. IBORI (2005) 13 NWLR (PT 942) 319 at 391 were called in aid.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower Court was right to award interest on the judgment sum from when the suit was instituted since Order 35 Rule 4 of the Rules gave the Court power to award interest on the judgment sum from some other point in time as the Judge deems fit. The cases of KANO ILE PRINTERS
6
PLC vs. TUKUR (1999) 2 NWLR (PT 589) 78 at 85 and KSTA vs. OFODILE (1999) 10 NWLR (PT 622) 259 at 265 were referred to.
It was contended that the claim before the lower Court was for return of the money paid to the Late Arbitrator as deposit for arbitration proceedings before his death and therefore the lower Court rightly awarded the interest irrespective of whether specifically claimed or not, as it was in the nature of a consequential order.
APPELLANT’S REPLY ON LAW
In the Reply Brief, the Appellant submits that even if the post-judgment interest awarded on a date preceding the judgment is deemed to be consequential, the award must be guided by the Rules for award of post-judgment interest.
RESOLUTION OF ISSUE NUMBER ONE
I have already set out the reliefs claimed by the Respondent. It claimed both pre-judgment interest till the date of judgment and thereafter post-judgment interest until the judgment sum is liquidated. The lower Court dismissed the claim for pre-judgment interest on the ground that it was not proved; but in awarding post-judgment the lower Court awarded the same from the date the action was instituted
7
on 30th April 2010. Taking into account the fact that the judgment was delivered on 6th March 2015, it does appear that the lower Court indirectly awarded the Respondent the pre-judgment interest which it did not prove.
Howbeit, in making the award, the lower Court relied on Order 35 Rule 4 of the Rules of Court as giving the Court power to direct that at the time of delivery of judgment, the Judge can direct that interest be paid from a point in time as he deems fit. Therefore central to the resolution of this issue is the interpretation of the said Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2012. It reads:
“4. The Judge at the time of making any Judgment or Order or at any time afterwards, may direct the time within which payment is to be made or other act is to be done, reckoned from the date of the Judgment or Order, or from some other point of time as the Judge deems fit and may order interest at rate not less than 10% to be paid upon judgment.”
It seems to me that there are two limbs to the above provision of the Rules. The first limb deals with the Court directing when payment is to be made on the
8
judgment or order, reckoned from the date of the judgment or order or from some other point as the Judge may deem fit; while the second limb deals with the Court ordering interest to be paid upon the judgment. This is evident by the use of the conjunctive word AND linking the stipulation for time within to make order for payment on the judgment and order and the stipulation for ordering interest upon judgment.
It is my informed and deferential view that the phrase ”from some other point of time as the Judge deems fit” relates to the time within which payment is to be made on the judgment or order and not to the second limb which comes thereafter on the lower Court ordering post-judgment interest upon the judgment. The provision of Order 35 Rule 4 is for interest to be ordered upon the judgment which can only arise on or after the date of the judgment, but definitely not before. The lower Court was therefore wrong in its interpretation of Order 35 Rule 4 as empowering it to order payment of post-judgment interest from the date the action was instituted.
?In any event, it seems to be settled law that post-judgment interest (also known as
9
discretionary interest) is awarded from the date of the judgment not before. See LAMURDE LOCAL GOVT vs. KAKA (2010) 10 NWLR (PT 1203) 574 at 583, ASSAM vs. D.E.F.S. LTD (2007) 16 NWLR (PT 1060) 234 at 242 and ASHAKA vs. NWACHUKWU (2013) LPELR (20272) 1 at 66-68. In PETROLEUM (SPECIAL) TRUST FUND vs. WESTERN PROJECT CONSORTIUM LTD (2006) LPELR (7719) 1 at 29-30, Rhodes-Vivour, JCA (as he then was) stated as follows:
“Post Judgment interest, is with effect from the date of the judgment or from any time afterwards. The judge has no jurisdiction to order payment of interest not included in the claim from a date before Judgment was delivered.
In Ekwunife v. Wayne (W/A) Ltd. (supra) interest at 10% of the judgment sum (as provided by Order 27 Rule 8 of Plateau State High Court (Civil Procedure) Rules 1976 was awarded with effect from the date of accrual of the cause of action. This was wrong, it ought to have been awarded after Judgment since it was post judgment interest. The Supreme Court amended the Judgment to read Judgment at the rate of 10% p.a. with effect from 8/12/80, the date of the Judgment of the High Court.” The Respondent argued that
10
the award of post judgment interest was a consequential order. This is not correct. The Respondent claimed the specific relief for the award of post-judgment interest. The award of the same cannot therefore be a consequential order which from the authorities need not be specifically claimed, but is an order made to give effect to the judgment, an appurtenant to the main or principal order. An order directly traceable or flowing from the judgment or order duly prayed for and made. See FUNDUK ENGINEERING LTD vs. MC ARTHUR (1996) LPELR (1291) 1 at 19, EAGLE SUPER PACK (NIGERIA) LTD vs. ACB PLC (2006) 19 NWLR (PT 1013) 20 at 57 and AMAECHI vs. INEC (2008) LPELR (446) 1 (SC).
The Respondent did not claim post-judgment interest from the date of institution of the action, the Rules of Court did not empower the lower Court to award post-judgment interest from the date of institution of the action. A Court cannot adjudicate between parties on the basis of a claim not formulated by them. See OSUJI vs. EKEOCHA (2009) LPELR (2816) 1 at 44, the lower Court was therefore wrong to award post-judgment interest to run from the date of institution of the suit. This
11
issue is resolved against the Respondent and the decision of the lower Court is amended to read “interest on the judgment sum at the rate of 10% per annum from 5th March 2015 till the judgment debt is liquidated.”
ISSUE NUMBER TWO
Whether the Appellant was given fair hearing by the lower Court.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant argues that the lower Court denied him fair hearing before arriving at the quantum of fees due to the late Arbitrator because it did not consider the evidence of the DW3, the Appellant’s expert witness, when it considered the opinion in books and other experts referred to by the Respondent. It was stated that a reasonable man privy to the hearing would in consequence not see the process as fair. The cases of KOTOYE vs. CBN (1989) 1 NWLR (PT 98) 419 at 448, SALU vs. EGEIBON (1994) 6 NWLR (PT 348) 23 at 44 and OGLI OKO MEMORIAL FARMS LTD vs. NACB (2008) 12 NWLR (PT 1098) 412 at 434 were referred to.
The Appellant maintained that the lower Court was in grave error for rejecting the opinion evidence of DW3 as being superior hearsay when expert evidence which is founded on training
12
and experience entails hearsay and is admissible pursuant to Sections 68, 1 and 2 of the Evidence Act. The cases of GOYOL vs. INEC (2012) 11 NWLR (PT 1311) 218 at 233 and NGIGE vs. OBI (2006) 14 NWLR (PT 999) 1 at 191 were relied upon. It was posited that the rejection of the testimony of DW3 as hearsay while taking the opinion of other experts in book form was a travesty of justice which occasioned a miscarriage of justice. It was finally submitted that a decision reached in breach of the fair hearing provisions is a nullity and should be set aside. The case of OMINIYI vs. ALABI (2015) 6 NWLR (PT 1456) 574 at 594 was cited in support.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the rule of fair hearing enjoins that a person be heard before a decision affecting his right is reached. The case of TAFIDA vs. BAFARAWA (1999) 7 NWLR (PT 597) 70 was referred to. It was stated that the lower Court duly considered the evidence of the DW3 in reaching its decision. It was further stated that a Court is not bound to accept the evidence of an expert and it was maintained that the lower Court gave the Appellant a fair hearing by
13
considering the evidence of DW3 and attaching the requisite weight thereto. The cases of NGIGE vs. OBI (supra) at 143 and GOYOL vs. INEC (supra) were referred to.
The Respondent submitted in the aIternative that even if the lower Court did not consider the testimony of the DW3, which fact it did not concede; that the DW3 did not qualify as an expert as his testimony was not in an area outside the knowledge and experience of the Court, since the testimony was in respect of matters provided in the Arbitration and Conciliation Act. The case of KAYDEE VENTURES LTD vs. HON.MINISTER OF FCT (2010) 7 NWLR (PT 1192) 171 at 216-217 was relied upon. It was therefore asserted that since DW3 is not an expert, his evidence was not direct and therefore hearsay. Sections 128 and 68 of the Evidence Act and the case of TUAH vs. MICHAEL (2010) 10 NWLR (PT 1203) 519 at 533 were cited in support.
APPELLANT’S REPLY ON LAW
The Appellant submits that the Respondent objected before the lower Court that the DW3 was not an expert but the lower Court dismissed the objection. That the Respondent did not appeal against the Ruling and therefore could not be heard to
14
raise the issue on appeal. The case of APGA vs. UMEH (2011) 1 NWLR (PT 1250) 544 at 562 was called in aid. It was maintained that the lower Court having held that the testimony of DW3 was superior hearsay did not consider his evidence. It was posited that consideration of evidence was not the same thing as being bound by the evidence and that the failure to consider the evidence of DW3 is a denial of fair hearing.
RESOLUTION OF ISSUE NUMBER TWO
The Appellant’s complaint in this issue is that the lower Court did not take into consideration the testimony of the DW3, whom he called as an expert witness, in arriving at its decision. It was posited that the lower Court regarded the testimony as hearsay. Now, a Court of trial has the duty of perception and evaluation of evidence. By perception of evidence is the reception of available evidence by the trial judge; the weighing of evidence in the con of the peculiar circumstances of the case is evaluation of evidence. See GUARDIAN NEWSPAPERS LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592 and WACHUKU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50 -51. In perception of evidence, the lower Court received
15
the testimony of the DW3 after overruling the objection of the Respondent that DW3 was not an expert witness (see pages 474-476) of the Records. The Respondent did not appeal against the Ruling that the DW3 is an expert witness, it cannot therefore raise the issue again as a justification for the lower Court treating the testimony of DW3 as hearsay, if in fact the lower Court so did. We will find out in a trice if the Appellant’s contention in that regard is correct.
It has to be remembered that having received the expert testimony of the DW3, the lower Court still had the duty of evaluating the same and other evidence as the decision on the issue before a Court is the duty of the judex. A Court is at all times fully in control of the evidence before it and does not abdicate its primary duty of assessing the evidence, including expert evidence, and ascribing probative value thereto. A Court is not bound to accept the evidence of any expert witness as the decision on the case is that of the Court and not that of the expert. See UTB vs. AWANZIGANA ENTERPRISES LTD (1994) LPELR (14599) 1 at 28-29 and FAYEMI vs. ONI (2009) LPELR (4146) 1 at 58-59. The
16
lower Court in discharging its primary duty of evaluating the evidence and according probative value thereto considered and accepted the testimony of the DW3 on how arbitration is conducted. Hear the lower Court at page 494 of the Records:
“The defendant called a professor of law at the Nigerian Institute of Advanced Legal Studies as his third witness to give expert opinion on arbitration. He stated that the he belongs to six professional bodies four which relate particularly to arbitration. He also related his experience. He related what the defendant counsel told him and stated categorically that:
‘In July 2009, the sole Arbitrator died after conducting two meetings, drawing up two orders for direction and exchanging several letters.’
He also testified that:
‘Generally the full fees are paid on the completion of the mandate of the Arbitrator. However, in exceptional cases as where the assignment is not completed, the quantum meruit principle will apply.’
?I am able to accept the general comments made by DW3 as his opinion on how arbitration is conducted. There is force in the contention of the defence
17
that the Arbitrator is entitled to quantum meruit for the work he did.”
Without a doubt, the lower Court referred to part of the testimony of the DW3 as “superior hearsay”. However, it is not an instance of refusal to consider the testimony as contended by the Appellant, but rather a product of the discharge of the duty of the lower Court to evaluate the evidence and accord probative value thereto. Having found in the pericope of the judgment above that the late Arbitrator is entitled to payment on quantum meruit for the work he did , the lower Court in considering the evidence on the quantum of work done by the Late Arbitrator considered the testimony of the DW1 and rightly refused to act on the same for being “superior hearsay’. In the words of the lower Court at page 495 of the Records:
“The parties agree that there was no hearing in arbitration. The crux of this matter then is what is quantum of the work the late Arbitrator did?
DW3 stated in paragraph 4 of his deposition that the counsel to the defendant provided the facts to him. The hearsay in this instance is what I would call superior hearsay because learned counsel for the
18
defence who narrated the facts did not even know them personally himself. The defence counsel only passed the instructions he received from his client to DW3. The defence counsel received instructions from the defendant who was not part of the arbitration so the testimony of DW3 is turning out to be a game of Chinese whispers in which the last person in line gets the wrong end of the stick because he gets told what is totally different from the initial phrase.
The ‘superior hearsay’ accounts for the misstatement of DW3 in paragraph 7 (f)(v) of his deposition that a pre-hearing meeting was held; when both CW1 and DW1 stated under cross-examination that two preliminary meetings were held and that the last preliminary meeting was held on 12/10/05.”
The reasoning of the lower Court on why the testimony of the DW3 on the actual work done by the Late Arbitrator is hearsay cannot be fauIted. From the Records the Appellant’s contention that the testimony of the DW3 was not considered is not correct. The lower Court duly considered the testimony, evaluated the same and accorded probative value where it was deserving to the said testimony. There is therefore
19
no denial of fair hearing. This issue is resolved against the Appellant.
ISSUE NUMBER THREE
Whether the lower Court properly evaluated the case of the Appellant in coming to its decision on the issue of fees and expenses payable by Respondent.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that Arbitrator’s charges are payable by the parties jointly and severally and that where a party fails to pay, the other party would pay the outstanding share which would be added to the costs of the party in default before the awarded is released. It was posited that the Late Arbitrator is entitled to the whole fees from the Respondent. Section 50 (4) of the Arbitration and Conciliation Act, the case of CARTER (T/A MICHAEL CARTER PARTNERSHIP) vs. HAROLD SIMPSON ASSOCIATES (2004) 2 LLOYD’S REPORT 512 at 516 and the INTERNATIONAL COMMERCIAL ARBITRATION AND THE ARBITRATOR’S CONTRACT by E. ONYEMA were referred to.
It was contended that no law provides for when an arbitrator can demand for his fees and that the holding of the lower Court that it was only at the point of hearing is perverse. The case of UDENGWU vs.
20
UZUEGBU (2003) 13 NWLR (PT 836) at 152 was relied upon. It was stated that deposit of arbitrator’s fees is not security for performance but rather an advance payment of the arbitrator’s fees and expenses. Sections 49 and 50 of the Arbitration and Conciliation Act and the LAW and PRACTICE of INTERNATIONAL COMMERCIAL ARBITRATION, 3rd Edition by ALAN REDFERN and MARTIN HUNTER were cited in support.
It was further submitted that the lower Court did not properly evaluate the evidence before apportioning 100/0 as the work done by the late Arbitrator when the lower Court found the outstanding work to be 60% meaning that the Late Arbitrator was entitled to at least 400/0 as the arbitration fees. It was asserted that the lower Court failed to correctly evaluate the quantum of work done and the weight or rating to be applied to each stage of the arbitral proceedings. The testimony of the DW3, which it was contended the lower Court rejected was referred to, on the nature of arbitral proceedings and the work each stage entailed. The s LAW & PRACTICE OF ARBITRATION AND CONCILIATION IN NIGERIA by J. OLAKUNLE OROJO and M. A. AJOMO pages 189 -192
21
and 196-197 and LAW AND PRACTICE OF INTERNATIONAL COMMERCIAL ARBITRATION (op. cit.) were called in aid. It was further argued that the lower Court failed to take into consideration the expenses incurred for the arbitration including the services of a Registrar, costs of writing and despatching letters as well as telephone calls and cost of hire of hall. This Court was urged to invoke Section 15 of the Court of Appeal Act and Order 4 Rule 4 and Order 9 Rule 11 of the Court of Appeal Rules to evaluate the evidence of the DW2 and DW3 and hold that the Appellant established the counterclaim. The case of ANPP vs. USMAN (2008) 12 NWLR (PT 1100) 1 at 88 was relied upon.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower Court correctly evaluated the evidence. It was stated that the Appellant did not have any additional or independent deposition in support of his counterclaim which is an independent action, in consequence of which the counterclaim is deemed as abandoned since no independent evidence was adduced to support it. The cases of TIAMIYU vs. OLAOGUN (2008) 17 NWLR (PT 1115) 66 at 93-94, SUSAINAH (TRAINING VESSEL)
22
vs. ABOGUN (2007) 1 NWLR (PT 1016) 456 at 487-488, NIKA FISHING CO LTD vs. LAVINA CORPORATION (2008) 16 NWLR (PT 1114) 509 at 536, DINGYADI vs. WAMMAKO (2008) 17 NWLR (PT 1116) 395 at 422-433 and ABUBAKAR vs. JOSEPH (2008) 13 NWLR (PT 1104) 307 at 357 were referred to.
It was stated that the Records do not bear out any demand by the late Arbitrator in line with Section 50 (4) of the Arbitration and Conciliation Act and that there was never any demand for payment of fees for work done. It was stated that there was no evidence of the work done by the Late Arbitrator outside of the two preliminary meetings and the five letters he wrote. It was posited that the Court is not to fish for evidence or speculate. The cases of A.B.C. PLC vs. N.T.S. (NlG) LTD (2007) 1 NWLR (PT 1016) 596 at 626 and EZEDIGWE vs. NDICHIE (2001) 12 NWLR (PT 726) 37 at 67 were cited in support. It was opined that the lower Court found on the evidence that the Late Arbitrator only accepted the appointment and held preliminary meetings and that the Appellant failed to produce any evidence that the deposit paid by the Respondent was utilized on cost of venue, food, drinks and Registrar’s
23
fees; the lower Court having rightly held that the initial amount paid by the Respondent as administrative fees covered the two preliminary meetings.
APPELLANT’S REPLY ON LAW
The Appellant submitted in the Reply Brief that the High Court of Lagos State (Civil Procedure) Rules does not require for a new set of witness statements on oath to be filed where there is a counterclaim and that the witness statement on oath filed supported the defence and counterclaim. Order 32 Rule 1 (1) of the Rules and the cases of IHEANACHO vs. CHIGERE (2004) 17 NWLR (PT 901) 130 at 147 and AJAGUNGBADE III vs. LANIYI (1999) 13 NWLR (PT 633) 92 at 114 were referred to.
RESOLUTION OF ISSUE NUMBER THREE
The disceptation in this issue is on the evaluation of evidence and the ascription of probative value thereto. It is settled law that the evaluation of evidence is the primary function of the Court of trial. Where the Court of trial has unquestionably evaluated and appraised the evidence, it is not the business of the appellate Court to interfere unless the findings are perverse: UWAJE vs. MADUEMEZIA (2015) LPELR (24543) 1 at 13.
Evaluation of evidence
24
is basically the assessment of facts by the trial Court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. The evaluation involves the reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. See IKHINMWIN vs. ELEMA (2014) LPELR (23322) 1 at 32.
The law is that the conclusions of the trial Court on the facts are presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253, BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66 and EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43. Therefore the Appellant has a duty to displace or dislodge the presumption that the findings of facts made by the lower Court are correct.
There was a claim and counterclaim before the lower Court. While the Respondent claimed the deposit it paid for the Arbitrator’s fees and expenses, the Appellant counterclaimed for the balance of the fee on the work done by the Late Arbitrator before his demise. The lower Court after evaluating the evidence
25
held that the Respondent was entitled to a partial refund on the deposit he paid and then proceeded to ascertain on the evidence the quantum of work done on the basis of which it entered judgment for the Respondent and dismissed the counterclaim. The dismissal of the counterclaim did not turn on the fact that the Appellant did not file a separate witness statement on oath in support of the counterclaim. It could not have been so because there is nothing in the law requiring that where there is a Statement of Defence and Counterclaim, a separate witness statement on oath has to be filed for the defence and another one for the counterclaim.
While it is correct that a counterclaim is a separate and independent action which the defendant as the counterclaimant has to lead evidence to prove:
BELOXXI & COMPANY LTD vs. SOUTH TRUST BANK (2012) LPELR (8021) 1, the practice is that the counterclaimant presents his evidence in defence and in support of the counterclaim at the same time. He does not defend the claim and prove the counterclaim at different times. By the provisions of Order 17 Rules 6 and 7 of the High Court of Lagos State (Civil Procedure)
26
Rules, 2012, a counterclaim is to be incorporated in the Statement of Defence and by Order 32 Rule 1 (1) of the said Rules, facts are to be proved at the trial by the written deposition and oral examination of witnesses in open Court. The integral construction of Order 17 Rules 6 and 7 and Order 32 Rule 1 (1) clearly shows that a separate written deposition need not be filed in respect of a counterclaim incorporated in a Statement of Defence.
From the evidence on record, there is no dispute that the Late Arbitrator did not conclude the arbitral proceedings before his demise. Indeed the evidence is that there were no further proceedings on the arbitration after the Respondent paid the deposit demanded by the Late Arbitrator due to the ill-heaIth of the Late Arbitrator. Therefore, the lower Court relying on the evidence of the DW3 that where the assignment of the arbitrator is not completed, the quantum meruit principle would be applied to determine the fees due to the arbitrator, proceeded to ascertain the quantum of work done by the Late Arbitrator.
In evaluating the evidence the lower Court found and held as follows at pages 493- 494 of the
27
Records:
“From the evidence led in this suit, the Arbitrator was appointed by a Court order made on 09/05/05-Exhibit C4.
He accepted the appointment with a letter dated 10/06/05- Exhibit C5.Thereafter he convened the preliminary meeting that was held on 30/06/05. The claimant attended the meeting but the respondent in the arbitral proceedings did not. Exhibit C6 is the minutes of the meeting. In it, the Arbitrator mentioned the letter dated 6/10/05, that he wrote to all counsel to set out the purpose of the meeting. Preliminary issues were considered and the arbitrator made some orders and directions; the registrar was also appointed. It was noted that the claimant had paid N100,000 towards administrative costs. The meeting was adjourned to 12/10/05. The second meeting held was also presided over by the arbitrator and he made further orders and directions. Exhibit C7 is the minutes of the meeting. The respondent did not attend this meeting as well. At this second meeting, upon the application of the claimant that the fees for the arbitration be reduced, directions were made by the Arbitrator for the payment of fees in the sum of N12,000,000.00.The
28
claimant also brought an application to amend its pleadings and the order was granted. The amended pleadings were filed after the second meeting. No further meetings were held after this.
This encapsulates all the Arbitrator did.
The claimant paid the first installment of N3 million in 2009. Between the second meeting of 12/10/05 and 2009 when the claimant paid, there was no proceeding. The arbitration was not at pre-hearing stage so the Arbitrator would not have been entitled to a cancellation fee.
Can the claimant be right in its contention that the arbitrator did not do any work when he convened and presided over these meetings and works several letters?
DW2 deposed that though it is true that the Arbitrator did not make any pronouncement on the dispute between the parties before him in the way of an award, it will be incorrect to say the Arbitrator did not do anything. I agree with him. Learned Counsel for the claimant’s submission is that the Arbitrator did not carry out any work recognized by the Arbitration and Conciliation Act. But Section 17 of the Act provides that the arbitral proceedings in a dispute commences on the date the
29
request to transfer the dispute to arbitration is received by the other party. I therefore agree with the submission of learned defence counsel that once a valid notice of arbitration is served and an arbitrator appointed, arbitration proceedings commences. But the Act does not set out the process to be followed.”
The lower Court after evaluating the evidence on the stages of arbitral proceedings and the work done at pages 494-497 of the Records conclusively held as follows at page 497 of the Records:
“The arbitration subject matter of this suit had not advanced to consideration of pleadings and settlement of issues. It abated at the stage of preliminary meetings when the Arbitrator only did 10% of the works to be done. In the premise, I find that the claimant is entitled to a refund of its deposit less the 10% of its share of the Arbitrator?s fees, for the work he had done.
?By the finding above the question for determination in the counterclaim has been decided. I find and hold that the defendant did not establish his counter-claim that the quantum of work done by the Arbitrator is 50% and that the Arbitrator is entitled to the sum
30
of N 6, 000, 000. 000 (sic) for work done.
I agree with the claimant’s counsel that the assertion by DW3 that the sum of N400,000 that the claimant paid for administrative expenses was expended and that about N500, 000.00 was actually spent, is bogus. It?s unsubstantiated by any evidence. The claimant made the payment after the two preliminary meetings had been held and DW3 himself admitted that the cost of the first meeting was paid. I do believe the sum of N100,000 the claimant paid initially as administrative fees covered the expenses of the two preliminary meetings that were held.
It is worthy of note that there was no demand made to the claimant for any outstanding sum.
l do agree with learned defence counsel that nothing was paid to the Arbitrator’s [sic] as his fee until the claimant paid the deposit. But the contention that the deposit made by the claimant was part payment for Arbitrator’s fees, that had become due, is misconceived. The deposit was made against the Arbitrator’s fee for work he had carried out as well as work that was to be done. The Arbitrator was entitled to payment for the work he had done while the claimant is
31
entitled to a return of its deposit for the work the Arbitrator did not do.
I therefore find and hold that the claimant is entitled to
N3, 400,000-N600, 000.00 (which is 10% of N6,000,000.00 that the claimant was to pay as Arbitrator’s fees) = N2, 800, 000. 00.”
I have given due consideration to the evidence on record and it cannot be confuted that the lower Court duly appraised the evidence. The findings and conclusion arrived at by the lower Court accord with common sense and reason based on the available evidence. They are in no way perverse. An appellate Court will not substitute its own views for those of the trial Court, when as in the instant appeal, the trial Court has unquestionably evaluated the evidence and justifiably appraised the facts: NGILLARI vs. NICON (1998) 8 NWLR (PT 560) 1 and AGBABIAKA vs. SAIBU (1998) LPELR (222) 1 at 19 -20. There is absolutely no basis on which an appellate Court can interfere. The Appellant has failed to displace the presumption that the conclusion of the lower Court on the facts is correct in order to upset the judgment on the facts: EHOLOR vs. OSAYANDE (supra). This issue number three is resolved in favour
32
of the Respondent.
It only remains to state in a coda that the appeal succeeds in part to the extent that the post-judgment interest awarded by the lower Court has been modified to be from the date of the judgment, the decision of the lower Court on the other aspects of the case as it relates to the claim and counterclaim are affirmed. The parties are to bear their respective costs of this appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the privilege of reading in draft the well reasoned judgment prepared by my learned brother Ugochukwu Anthony Ogakwu, J.C.A., with which I agree and adopt as my judgment.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered and I am in complete agreement with the reasoning and conclusion arrived at in the lead judgment.
My learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA has adequately treated the issues raised. I see no need to disturb the evaluation of evidence properly exercised by the trial Court. Based on the totality of the facts and evidence adduced, I am also of the opinion that the trial
33
Court made proper findings and reached the correct judgment save for the order of post judgment interest that was to start counting on a date before judgment was delivered. As the word ‘post judgment interest’ implies, it means interest after judgment and not before, see ASHAKA V NWACHUKWU (2013) LPELR – 20272 (CA). The lower Court therefore erred in awarding post judgment interest to run from 30th April, 2010 when judgment was delivered on the 6th March, 2015.
?For this and the other well considered reasoning in the lead judgment, I too allow the appeal in part and abide by any consequential orders made in the lead judgment.
34
Appearances:
O.E. Olawore, Esq. with him, O. Abimbola, Esq.For Appellant(s)
B. J. Akinsete, Esq. with him, D.S. Sosanya, Esq.For Respondent(s)
Appearances
O.E. Olawore, Esq. with him, O. Abimbola, Esq.For Appellant
AND
B. J. Akinsete, Esq. with him, D.S. Sosanya, Esq.For Respondent
