P.P. MADUS NIGERIA LTD. v. ROADS NIGERIA PLC.
(2010)LCN/3688(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of April, 2010
CA/S/78/2009
RATIO
ACTION: WHAT IS THE OBJECT OF PLEADINGS
The object of pleadings is to compel parties to define accurately and precisely the issue upon which the case between them is to be contested in order to avoid element of surprise by either party. It also guides the parties not to give evidence outside the facts pleaded, as evidence on a fact not pleaded goes to no issue. It makes for economy of time, but the cardinal point is the avoidance of surprise. UKAEGBU V. UGOJI [1991] 6 NWLR (Pt. 196) 127; ONWUKA V. OMOGUI [1992] 3 NWLR (Pt. 230) 393; MOBIL OIL NIG. PLC. V. IAL 36 INC. (2000) 4 SC (Pt. I) 85; OSHODI V. EYIFUNMI (2002) 7 SC (Pt. II) 145; BUNGE V. GOV., RIVERS STATE (2006) 12 NWLR (Pt. 995) 573. PER AHMAD OLAREWAJU BELGORE, J.C.A.
ACTION: WHAT IS THE CARDINAL PRINCIPLE OF PLEADINGS
It is a cardinal principle of pleadings that statement of claim supersedes the writ of summons and amends the endorsement on the writ of summons. AJAYI V. MILITARY ADMINISTRATOR, ONDO STATE [1997] 5 NWLR (Pt. 504) 237; BURAIMOH V. KARIMU [1999] 9 NWLR (Pt. 618) 310; AGBANELO V. UNION BANK OF Nig. PLC. (2000) 4 SC (Pt. I) 233. PER AHMAD OLAREWAJU BELGORE, J.C.A.
ACTION: EFFECT OF ANY CLAIM MADE IN THE WRIT OF SUMMONS NOT CLAIMED IN THE STATEMENT OF CLAIM
It is trite, since a statement of claim supersedes a write of summons, any claim made in the writ of summons which is not claimed in the statement of claim is taken to have been abandoned. See ENIGBOKAN V. A.I.I COMPANY (NIG.) LTD. [1994] (Pt. 348) 1. PER AHMAD OLAREWAJU BELGORE, J.C.A.
Justice
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
Justice
P.P. MADUS NIGERIA LTDAppellant(s)
AND
ROADS NIGERIA PLC.Respondent(s)
AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the Leading Judgment): The Appellant as plaintiff in the High Court of Justice, Sokoto (hereinafter referred to as “The Lower Court”) sued the Respondent, as the defendant. The Appellant’s claim before the lower court was as follows:-
“a) The sum of N13, 474, 685. 32 (Thirteen Million, Four Hundred and Seventy Four Thousand, Six Hundred and Eighty five Naira Thirty Two Kobo) owed to the Plaintiff with interest at 21% from 11th September, 1996 till judgment is given and thereafter at the rate of 28% per annum until the entire sum is liquidated.
b) Cost of the action.”
The Writ of Summons was taken out in the undefended list and it was supported by a 13 – point affidavit. Paragraphs 3, 4, 5, 6, 8, 9, 10 and 11 of this affidavit contain the salient facts upon which the action was premised. These paragraphs are hereunder reproduced:-
“3. That in 1996, the Defendant requested the Plaintiff to be supplying to it, on demand, various motor spare parts and equipment for the repair needs of Defendants numerous construction vehicles and machines.
4. That the contractual relationship was of a continuing nature and usually effected by the Defendant issuing a Local Purchase Order (L.P.O.) with payment terms of “30 days – cheque” clearly indicated.
6. That by the end of 1999, the Defendants total indebtedness stood at N12,975.765:32 (Twelve Million, Nine Hundred and Seventy Five Thousand, Seven Hundred and Sixty Five Naira, Thirty Two Kobo. The copy of the Statement of account as compiled by the Defendants themselves is hereby annexed as Exhibit PM2.
8. That meanwhile the Plaintiff acting on the Defendants demand and promises of payment continued to supply the said motor spare parts to them on credit basis, Between the period 10/08/2001 to 28/11/2001, the Defendant incurred further debt of N698,920:00 (Six Hundred and Ninety Eight Thousand, Nine Hundred and Twenty Naira). The details of the transaction delivered to the Defendant is annexed as Exhibit PM5
9. That the Plaintiff through its solicitors demanded from the Defendant for the liquidation of outstanding sums but the Defendant through its Solicitors requested for time. The copies of the said letters are annexed as Exhibit PM6 and PM7 respectively.
10. That the Defendant thereafter on 28/02/2003 issued to the Plaintiff their cheque in the sum of N200.000.00 as part payment leaving a balance of N13,474,685:32 (Thirteen Million, Four Hundred and Seventy Four Thousand, Six Hundred and Eighty Five Thousand and Thirty Two Kobo) yet unpaid. The copies of the Defendants receipt issued by the Plaintiff are annexed and marked Exhibit PM8 and PM9 respectively.
11. That the Defendants current total outstanding indebtedness to the Plaintiff is N13,474,685:32 (Thirteen Million, Four Hundred and Seventy Four Thousand, Six Hundred and Eighty Five Naira, Thirty – Two Kobo.”
The respondent filed a Notice of Intention to Defend and an affidavit in support. It is a 4 – paragraph affidavit Paragraph 3 (a) – (k) are hereunder reproduced:-
“3. (a) That he has seen the writ of summon filed by the plaintiff together with the affidavit in support.
(b) That it is not true that the defendant owes the plaintiff the sum of N13,474,685,32 or any other amounts at all.
(c) That the plaintiff was one of the defendant’s supplier of motor spare parts and the transaction was initially carried on a cash and carry basis.
(d) That though it is true that as at early 1999 the defendant’s managing director wrote Exhibit “PM4” wherein he put the outstanding amount due to the plaintiff at N12,975,765.32 that figure became a subject of dispute between the defendant and the plaintiff.
(e) That the cause of the dispute between the plaintiff and the defendant was due to the fact that the plaintiff could not properly substantiate some of its claims for motor spare parts purportedly supplied to the defendant.
(f) That Exhibit “PM2” did not originate from the defendant and the same is denied vehemently.
(g) That it is equally not true that the plaintiff obtained any loan from First bank Plc. Sokoto branch to fund the supply of motor spare parts to the defendant.
(h) That the loan granted to the plaintiff by the bank if any has no bearing on the transaction between the plaintiff and defendant.
(i) That in view of the unresolved dispute surrounding the claim of the plaintiff as stated in paragraphs 3 (d) & (e) above, no certain amount can correctly be said to be due to the plaintiff until accounts are reconciled.
(j) That Exhibit “PM9” was never issued to the defendant and that the signature written on the receipt is not known to the defendant.
(k) That the defendant discovered that the plaintiff had duplicated claims on items supplied purported to have been supplied to it in arriving at the amount it was claiming to be outstanding.
After hearing counsel on both sides, the lower court entered judgment for the Appellant in the sum of N12,975,765.32, being the amount of indebtedness admitted by the respondent in paragraph 3 (d) of the affidavit in support of the Notice of Intention to Defend. The balance of N698,920.00 was transferred to the general cause list for proof. A witness, each, testified for the parties herein before the lower court and thereafter the court was addressed by counsel. That court was satisfied that the sum of 498,920.00 had been proved and it entered judgment accordingly with 10% interest.
With regard to pre-judgment interest, the lower court concluded in the terms herein appearing :-
“On the issue of pre-judgment interest I agree with counsel for the defendant that nowhere in the writ of summons or statement of claim that judgment interest is pleaded, there is no prayer to (sic) the judgment interest and the court cannot grant a relief not claimed. The Plaintiff’s counsel has every opportunity of pleading judgment interest even when on 24th of October, 2005 application was made by counsel for the defendant for further and better affidavit but counsel did not deem it fit to include that prayer and therefore the court not being a charitable organization cannot grant a relief not sought and I so hold.”
It is against this particular decision that this appeal has been brought. Two grounds of appeal were filed. Briefs of argument were filed and exchanged. The Respondent’s Brief was filed out of time with leave of the Court sought and obtained on the 6th day of October, 2009.
The Appellant did formulate a sole issue for determination and the Respondent also identified a sole issue for determination. The issue formulated by Appellant reads as follows :-
‘Whether the plaintiff pleaded pre-judgment interest in its writ of summons or affidavit in support as to be entitled to it having led satisfactory evidence in proof of same.”
The issue formulated by the Respondent is :-
Whether given the circumstances of this case and the evidence before the lower court, the learned trial judge was right to have refused the appellants claim for prejudgment interest.”
I find this issue to be apt and this appeal will be determined based on it.
Both parties adopted their respective briefs including the Appellant’s reply brief and there was no oral submission other than the urge by the learned counsel for the Appellant that the appeal be allowed and the urge by the Respondent’s counsel that the same appeal be dismissed.
P.U. Nnoli Esq., learned counsel for the Appellant submits that the Appellant in its writ of summons clearly claimed pre-judgment interest from 11th September, 1996 and pleaded same in paragraphs 5 and 6 of the affidavit in support of the writ of summons by showing that it had taken loan in excess of N12,000.000.00 for the purpose of financing the credit sales transaction with the Respondent. He further submits that the Appellant’s entitlement to pre-judgment interest as of right or in equity and or under mercantile custom was never in dispute. He cites and relies on MUSA V. GM OCHEMBA & BROS LTD (WRN) 2004, Vol. 18, 159; and ADEREMI V. LAN & BAKER NIG. LTD (2000) 19 NWLR (Pt. 663) ratio 6. It is submitted for the Appellant that no evidence was led by the Respondent to contradict the issue of pre-judgment interest as pleaded by the Appellant and that the lower court should have and was bound to accept the issue as proved. Reference is made to UNIBIZ NIG. LTD V. COMMERCIAL BANK CREDIT LYONNAIS LTD (2005) 4 S.C. 70, 76 and NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (Pt. 135) 658.
Learned counsel for the Appellant finally submits that once a plaintiff claims pre-judgment interest on the writ of summons, all he had to do is to plead the facts which show such entitlement and the evidence called at trial will establish the proper rate of interest and the date from which it should begin to run whether from the accrual of the cause of action or otherwise. He cites EKWUNIFE V. WAYNE (1989) 12 S.C. and R.C.C. NIG. LTD V. R.P.C. LTD (2005) 10 NWLR (Pt. 934) 62.
He urged that the appeal be allowed.
E.O. Onamusi Esq., learned counsel for the Respondent submits that the learned trial Judge was right to have refused the Appellant’s claim for pre-judgment interest since no right in law was shown to the grant of same. It is also submitted for the Respondent that such right will exist where it is contemplated by express agreement of parties or where the claim is brought under a mercantile custom or under a principle of equity such as the breach of a fiduciary relationship. It is submitted that none of these applies to the instant case which arose from a simple debt.
Reference is made to EKWUNIFE V. WAYNE (W/A) [1985] 5 NWLR (Pt.122) 422; RCC NIG. LTD. V. RPC LTD [2005] (supra); KADUNA STATE TRANSPORT AUTHORITY V. OFODILE [1999] 16 NWLR (Pt. 622) 259; and ALFOTRIN V. A-G OF FEDERATION [1996] 9 NWLR (Pt. 475) 634, 663. It is submitted that the instant case is strikingly similar to that of KADUNA STATE TRANSPORT AUTHORITY (supra) where the plaintiff had sued for recovery of money due in respect of spare parts supplied to the defendant and payment for which was in arrears.
Learned counsel for the Respondent then distinguishes between the facts of the instant case and the authorities cited by learned counsel for the Appellant. He submits that those authorities are irrelevant to the instant appeal since the claims in those cases were for recovery money paid by the plaintiffs in those cases to the respective defendants. Onamusi Esq. finally urges that the appeal be dismissed.
In its Reply Brief, it is submitted for the Appellant that where affidavits are converted to pleadings, they will necessarily contain both facts and evidence contrary to the rules of pleading. It is also submitted that paragraph 5 of the Appellant’s affidavit as well as Exhibits PM1 (a) – (f) read together becomes not only pleading of pre-judgment interest but also mercantile custom that payment of interest is clearly contemplated by the parties. It is submitted for the Appellant that no two sets of facts are exactly the same but the ratio must remain the same since the doctrine of stare decisisis a cardinal principle of our jurisprudence.
It is urged that the reliefs being prayed be granted.
The issue in this appeal falls within a narrow compass but it has engendered a very refreshing and interesting exposition of the law on the subject of pre-judgment interest.
The Appellant’s case is that since pre-judgment interest was claimed in the writ of summons and the fact was stated in the affidavit that it obtained loan from bank in excess of N12 Million which attracts interest at the rate of 30% in order to finance the transaction leading to this case, it cannot be said that pre-judgment interest was not pleaded. The Respondent’s affidavit in support of the notice of intention to defend has this to say in paragraphs 3 (g) and (h):-
“3-(g) That it is equally not true that the plaintiff obtained any loan from First Bank Plc Sokoto branch to fund the supply of motor parts to the defendant
(h) That the loan granted to the plaintiff by the bank if any has no bearing on the transaction between the plaintiff and the defendant.”
The object of pleadings is to compel parties to define accurately and precisely the issue upon which the case between them is to be contested in order to avoid element of surprise by either party. It also guides the parties not to give evidence outside the facts pleaded, as evidence on a fact not pleaded goes to no issue. It makes for economy of time, but the cardinal point is the avoidance of surprise. UKAEGBU V. UGOJI [1991] 6 NWLR (Pt. 196) 127; ONWUKA V. OMOGUI [1992] 3 NWLR (Pt. 230) 393; MOBIL OIL NIG. PLC. V. IAL 36 INC. (2000) 4 SC (Pt. I) 85; OSHODI V. EYIFUNMI (2002) 7 SC (Pt. II) 145; BUNGE V. GOV., RIVERS STATE (2006) 12 NWLR (Pt. 995) 573.
It should be appreciated that when the claim for the balance of N698,920.00 was transferred to the general cause list, the lower court did not order for pleadings to be filed and the parties did not ask for same.
The respective affidavits of the parties were deemed to be their pleadings.
The case was contested by the parties on the basis of their affidavits which were deemed to be the pleadings. It is a cardinal principle of pleadings that statement of claim supersedes the writ of summons and amends the endorsement on the writ of summons. AJAYI V. MILITARY ADMINISTRATOR, ONDO STATE [1997] 5 NWLR (Pt. 504) 237; BURAIMOH V. KARIMU [1999] 9 NWLR (Pt. 618) 310; AGBANELO V. UNION BANK OF Nig. PLC. (2000) 4 SC (Pt. I) 233. In the instant case, the Appellant specifically claimed a pre-judgment interest at the rate of 21% from 11th September, 1996 but in its statement of claim, (the supporting affidavit) there is a grave silence about this claim. This is exactly what the learned trial Judge was referring to when he stated that pre-judgment interest was not pleaded.
It is trite, since a statement of claim supersedes a write of summons, any claim made in the writ of summons which is not claimed in the statement of claim is taken to have been abandoned. See ENIGBOKAN V. A.I.I COMPANY (NIG.) LTD. [1994] (Pt. 348) 1. It follows then that any evidence given in this case, before the lower court, concerning prejudgment interest went to no issue since it was not pleaded. I agree entirely with the learned trial Judge that the issue of pre-judgment interest was not pleaded and there was no way it could have been awarded by him. The truth of the matter is that the Appellant having not pleaded the pre-judgment interest is deemed to have abandoned the claim.
Another angle to this issue is that the claim would have failed, in any event, even if it was pleaded. The pre-judgment interest claimed in the writ of summons is in respect of a simple debt arising out of a contract of supply of spare parts. It would have been a different matter if the main claim were for money had and received, but it was for recovery of money for spare parts supplied to the Respondent, the payment for which was in arrears. A plaintiff is ex mora entitled to pre-judgment interest in respect of money had and received by the defendant which he had kept to himself for his use and benefit. It is different from a claim for arrears of payment arising out of a contract of supply of goods on credit. See KADUNA STATE TRANSTPORT AUTHORITY V. OFODILE [1999] 16 NWLR (Pt. 622) 259.
The facts of this case are strikingly similar to the instant case, in that the two cases arose out of a contract of supply of spare parts on credit and the payments for which was in arrears. 21% pre-judgment interest was claimed in either of the two cases – In KADUNA STATE TRANSPORT AUTHORITY (supra), this Court held at page 265 of the Report that :-
“On the claim for interest at the rate of 21 % per annum on the said sum of (N331,680.00) … it is a well established principle at common law, that interest is not payable on a debt or loan in the absence of an express agreement by the parties or some course of dealing or custom to that effect… therefore in the absence of express stipulation interest cannot be payable on money due and payable to the plaintiff on a contract for work done by the plaintiff, the payment for which was in arrears … However, interest will be payable where there is an express agreement to that effect … or where an obligation to pay interest arises from the custom or usage of a particular trade or business.
Where there is no evidence whatsoever that the claim of interest is founded upon any rational, e.g. mercantile custom or trade usage known to the parties, the claim of interest which predates the judgment will be without foundation and ought to be disallowed.”
In the instant case no mercantile custom or trade usage known to the parties has been shown to exist, and since the Respondent, in its affidavit, vehemently denied that the bank loan taken by the Appellant has any bearing with the transaction leading to this case, the appellant was under a duty to prove that the loan was taken to fund the transaction and that the Respondent was so aware. The Appellant has failed woefully in discharging this burden.
That in the premise, the sole issue for resolution in this appeal is resolved against the Appellant. This appeal fails and it is accordingly hereby dismissed.
The Respondent shall have the cost of these proceedings which is assessed at N20,000.00
MUSA DATTIJO MUHAMMAD, J.C.A.: I have read in draft the lead judgment of my learned brother Belgore JCA. My Lord has succinctly made the point that the lower court is right in its refusal to award the Appellant the pre-judgment interest that was never claimed. Though the matter was reflected in the writ taken out by the Appellant his statement of claim which on the authorities superseded the writ contained no pleadings on the pre-judgment interest.
Appellant cannot adduce and urge the trial court to rely on such evidence in respect of which no pleadings had been advanced. I endorse the position of the lower court from this specific angle and for the fuller reasons outlined in the lead judgment. I dismiss the appeal and abide by the consequential orders made in the lead judgment.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading an advance copy of the judgment just delivered by my learned brother, Ahmad Olarewaju Belgore, JCA.
I agree with the lucid reasoning, succinct review of counsel’s submissions on the sole issue adopted for resolution and conclusion reached thereon, to the effect that this appeal should be dismissed. I have nothing to add.
I adopt the same as mine and also abide by the consequential orders made therein. The appeal is accordingly dismissed.
>
Appearances
P.U. Nnoli Esq.For Appellant
AND
B.O. Onamusi Esq.For Respondent
