SAMUEL ETUK v. HERITAGE BANK PLC
(2018)LCN/12100(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2018
CA/L/05/2010
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“The evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial. 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. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209 and F. H. A. vs. OLAYEMI (2017) LPELR (43376) 1 at 69-70. The settled legal position is that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its views for the view of the trial Court except where the findings of facts made by the trial Court do not flow from the evidence or where the findings are perverse. See WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320, EDJEKPO vs. OSIA (2007) LPELR (1014) 1 46-47 and FASIKUN II vs. OLURONKE II (1999) LPELR (1248) 1 at 47-48. The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts: BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66, EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 14.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT AND PROCEDURE: AWARD OF PRE – JUDGMENT INTEREST
“The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (1989) 5 NWLR (PT 122) 422 at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT 693) 111 at 122, 124B-D and 124H-125A, SANI ABACHA FOUNDATION vs. UBA PLC (2010)1 NACLR 264 at 272, BERENDE vs. USMAN (2005) 14 NWLR (PT 944) 1 and BERLIET NIGERIA LTD vs. KACHALLA (1999) 9 NWLR (PT 420) 478.
The Cross Respondent claimed interest on the amount he claimed as balance of his professional fees at the rate of 21% per annum from 1st December 2003 until judgment is delivered. The law remains firmly established that a claimant who claims interest must not only claim it on the writ of summons and statement of claim, but must also plead the facts and the grounds upon which the claim for interest at the rate claimed is based. See AZUMI vs. PAN AFRICAN BANK LTD (1996) 8 NWLR (PT 467) 462 at 472 and OBANTA COMMUNITY BANK LTD vs. AJAYI (2001) 33 WRN 119 at 128.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
Before Their Lordships
TOM SHAIBU YAKUBUJustice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLEJustice of The Court of Appeal of Nigeria
Between
SAMUEL ETUK
(Carrying on Law Practice under the name and style of Messrs ETUK & URUA)Appellant(s)
AND
HERITAGE BANK PLCRespondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
The Appellant herein, a legal practitioner, instituted proceedings before the High Court of Lagos State in SUIT NO. LD/575/2005: SAMUEL ETUK (Carrying on Law Practice under the name and style of Messrs ETUK & URUA) vs. CITIZENS INTERNATIONAL BANK LTD, claiming the balance of his professional fees for services rendered to the Respondent. The Appellant claimed the following reliefs:
(a) The sum of N 681, 274.54 being the balance remaining to be paid on professional fees for services rendered.
(b) Interest on the said sum at the rate of 21% per annum from 1st December 2003 until the sum is paid up.?
The parties filed and exchanged pleadings and the matter proceeded to a full dressed hearing at which testimonial and documentary evidence was adduced. At the end of the inter partes hearing, the lower Court, Coram Judice: A. A. Phillips, J. (as he then was) entered judgment in part for the Appellant in the following terms:
“… the only sum due and payable to the Claimant is the sum of N 100,000.00 being fees payable for the obtaining of an order from the Federal High Court. The Defendant is also ordered to pay 21% interest on this sum from 14/07/03 till today and thereafter at 10% per annum until this sum is totally liquidated.
All the other claims before the Court fail and are dismissed. I make no order as to costs.”
The judgment of the lower Court which was delivered on 18th September 2009 is at pages 142-151 of the Records. The Appellant was dissatisfied with the judgment and appealed against the same. The Respondent being equally dissatisfied cross appealed against the judgment. The Notice of Appeal is at pages 152-155 of the Records, while the Notice of Cross-Appeal is at pages 156-157 of the Records.
The Records of Appeal having been compiled and transmitted, the parties filed and exchanged briefs of argument. The extant briefs of argument which learned counsel adopted and relied upon at the hearing of the appeal are the Amended Appellant?s Brief of Argument filed on 25th April 2013 and the Respondent’s/Cross Appellant’s Brief filed on 6th May 2013. The Appellant did not file any Cross Respondents Brief.
The Appellant crafted three issues for determination as follows:
1. Whether the claimant/appellant is entitled to the payment of the sum of N741,274.62 being the agreed fees payable to the claimant by the respondent upon completion of the brief.
2. Whether the trial judge was right in holding that the letter of instructions dated 1/11/02 (EXHIBIT C1) did not state the terms of the contract.
3. Whether the defendant/respondent proved the facts raised in its pleadings in the defence of the claimant?s claims.?
On its part, the Respondent distilled a sole issue for determination in the main appeal, namely:
Whether or not the learned trial judge was right, in law and on the facts, in holding that the Appellant was not entitled to the sum of N741, 274.62?
A sole issue was equally identified as arising for determination in the cross appeal, thus:
“Whether the award of the sum of N100, 000 plus interest at 21% per annum from 14/7/2003 till 18/9/2009 and thereafter at 10% per annum until liquidation is justified in law and on the facts having regard to the evidence and issues contested at the trial Court.”
I will start with the consideration and resolution of the main appeal and then segue to the cross appeal.
THE MAIN APPEAL
The Appellant formulated three issues from the four grounds of appeal contained in his Notice of Appeal. Having considered the judgment of the lower Court and the grounds of appeal, it is translucent that the complaint in the grounds of appeal centre round the evaluation of evidence and ascription of probative value thereto by the lower Court. Accordingly, I find the sole issue as distilled by the Respondent succinct, concise and apt and it would therefore be the lodestar for the consideration of the submissions of learned counsel and resolution of the appeal.
ISSUE FOR DETERMINATION
Whether or not the learned trial judge was right, in law and on the facts, in holding that the Appellant was not entitled to the sum of N741, 274.62.
SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits in his issue numbers one and two, that the letter of instruction from the Respondent, Exhibit C1/D2 was a complete and valid contract between the parties and that the lower Court did not need to look at other correspondences between the parties to infer or determine the terms of the contract. It was stated that in evaluating the evidence and making findings of facts, the lower Court failed to show what terms it discovered or derived from other correspondences other than the terms in Exhibit C1/D2.
It was maintained that the parties were not mistaken on the brief given to the Appellant, neither were they confused as to the terms of the contract. It was opined that the lower Court having held that the wordings of Exhibit C1/D2 were clear and unambiguous, had no business looking for the terms of the contract in other correspondences between the parties. It was stated that all the ingredients of a valid contract were present in Exhibit C1/D2 and that the Appellant made an unqualified acceptance of the offer in Exhibit C2. The case of OMEGA BANK NIG PLC vs. O. B. C. LTD (2005) 7 NWLR (PT 547) 583 was referred to.
It is the further contention of the Appellant that there was no evidence to substantiate the pleadings of the Respondent that there was a mistake in Exhibit C1/D2 and that the scale of fees which the Respondent sought to rely on was not proved in evidence and therefore goes to no issue. The cases of CHEMICAL AND ALLIED PRODUCTS PLC vs. VITAL INVESTMENTS LTD (2006) 6 NWLR (PT 976) 220 at 241, GAGARAU vs. PASHIRI (2006) 1 NWLR (PT 962) 521 at 540, UTB vs. AJAGBULE (2006) 2 NWLR (PT 965) 447 at 475-476 among other cases were cited in support. It was asserted that it is not for a Court to speculate but to interpret the contract to give effect to the wishes of the parties as expressed in the document, vide ADETOUN OLADEJI NIG LTD vs. NIGERIA BREWERIES PLC (2007) ALL FWLR (PT 357) 837 at 851, OVERSEAS CONSTRUCTION COMPANY LTD vs. CREEK ENTERPRISES LTD (1985) 3 NWLR (PT 13) 406 and LARMIE vs. DATA PROCESSING MAINTENANCE & SERVICES LTD (2005) 18 NWLR (PT 958) 438 at 459.
The Appellant further submits that where there is a conflict between the heading of a letter and its body, the body should prevail. The case of NIMANTEKS ASSOCIATES LTD vs. MARCO CONSTRUCTION CO. LTD (1991) 2 NWLR (PT 174) 411 at 428 was called in aid. It was stated that the Respondent having pleaded a scale of fees but failed to tender it, shows that the Respondent withheld the said evidence, which if it had tendered would not be favourable to it. The Court was urged to invoke the provisions of Section 149(d) [sic] (Section 167 (d)) of the Evidence Act against the Respondent. The case of UDEAGU vs. BENUE CEMENT CO. PLC (2006) 2 NWLR (PT 956) 600 at 616 and 622-623 was referred to.
Arguing his issue number three, the Appellant submits that the deposition in the statement on oath of the Respondent’s witness does not establish any of the facts pleaded in the Statement of Defence. It was further stated that the deposition of the said Respondent’s witness, being that of an additional witness was irregularly filed as leave of the lower Court was not sought pursuant to Order 30 Rule 10 of the High Court of Lagos State (Civil Procedure) Rules, 2004 to file depositions for additional witness, and that the lower Court had no duty to look at the document. The case of UDOFIA vs. CHRIST APOSTOLIC CHURCH (1992) 5 NWLR (PT 242) 437 at 445 was relied upon. It was conclusively submitted that the pleadings of the Respondent is deemed abandoned and goes to no issue, since the deposition of the Respondent’s witness did not substantiate the averments in the statement of defence. The cases of GAGARAU vs. PASHIRI (supra) and CHEMICAL AND ALLIED PRODUCT PLC vs. VITAL INVESTMENTS LTD (supra) were cited in support.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the finding of fact made by the lower Court was derived from a proper and calm evaluation of the evidence adduced at the trial, the Appellant having admitted that the perfection he carried out was for N10 Million and not N65 Million. It was stated that Exhibit C1/D2 instructed the Appellant to perfect a N65 Million fixed and floating debenture for a fee of N741, 274.64, but that the Appellant did not perfect a N65 Million fixed and floating debenture and was not paid a fee of N741, 274.64, showing that the Appellant did not carry out the brief contained in Exhibit C1/D2 and is not entitled to the fee therein stated for perfecting a N65 Million fixed and floating debenture.
It was asserted that the parties were never ad idem on Exhibit C1/D2 and that the same did not form the basis of any relationship between the parties. The cases of OKUBULE vs. OYAGBOLA (1990) 4 NWLR (PT 147) 723 at 741, SPARKLING BREWERIES LTD vs. UBN LTD (2001) 15 NWLR (PT 737) 539 at 565 and NORWICH UNION FIRE INSURANCE SOCIETY vs. PRICE (1943) AC 455 were referred to. The Respondent conclusively submitted that the Appellant had failed to show how the findings of fact by the lower Court was inconsistent with the evidence led and that an appellate Court will not interfere where the findings of a trial Court is based on the evidence adduced. The cases of BALOGUN vs. AKANJI (1988) 1 NWLR (PT 70) 301, EBBA vs. OGODO (1984) 1 SCNLR 72 and ALAWIYE vs. OGUNSANYA (2004) 4 NWLR (PT 864) 486 at 513 were relied upon.
RESOLUTION
The facts of this matter are not convoluted. The Respondent by letter of instruction tendered by the Appellant as Exhibit C1 and the Respondent as Exhibit D2, instructed the Appellant to perfect a N65 million fixed and floating debenture for the professional fee of N741, 274.64. The fixed and floating debenture which the Appellant was instructed to perfect by Exhibit C1/D2 was attached to the letter. However the debenture was not a N65 million fixed and floating debenture, but a N10 million fixed and floating debenture. The Appellant proceeded and perfected the said N10 million fixed and floating debenture. It is not confuted that the Appellant did not perfect any N65 Million fixed and floating debenture. It is also pertinent to state that the professional fees stated in Exhibit C1/D2 by the Respondent was unilaterally fixed by the Respondent.
It was not the product of any negotiations with the Appellant on the fees to be paid. The Appellant having successfully perfected the registration of the N10 Million fixed and floating debenture, the Respondent by Exhibit D4, paid the Appellant the sum of N114, 699.82 which it stated was the fee payable for the perfection of a fixed and floating debenture for a consideration of N10 Million. The Respondent equally paid the Appellant a further sum of N50, 000.00 which it assessed as reasonable recompense for the order for extension of time to register the debenture which the Appellant obtained from the Federal High Court. The Appellant maintaining that he must be paid the fees stated on Exhibit C1/D2 instituted the action claiming for payment of the balance of the fees.
Before I proceed further, let me state that the Appellant’s contention on the competence of the witness statement on oath of the Respondent’s sole witness on grounds of non-compliance with the provisions of Order 30 Rule 10 of the High Court of Lagos State (Civil Procedure) Rules 2004 does not flow from grounds C and D of the grounds of appeal from which the Appellant’s issue number three has been distilled. In determining the complaint in a ground of appeal, the ground and its particulars must be read together. It is only by reading them as a whole that what the appellant is complaining about can be determined. The body of the ground is not to be considered in isolation of its particulars. See ORAKOSIM vs. MENKITI (2001) LPELR (2752) 1 at 14. Grounds C and D of the grounds of appeal read as follows:
C. The learned trial Judge erred in law when she relied on the Defendant’s pleading and the written address of Defendant’s Counsel to hold that the Defendant was right in paying the Claimant the sum of N164,699.82 for the services rendered by the Claimant to the Defendant on the brief.
PARTICULARS OF ERROR
The learned trial Judge, with due respect appeared to equate the pleading and written address of Counsel, with evidence required to prove a material fact.
The witness statement on oath filed on behalf on [sic] Mr. Uzo Aghaegbuna did not verify the facts pleaded in the Statement of defence and by law those facts in the Statement of Defence are deemed abandoned.
(iii) The Defendant solely relied on a ‘scale of fees’ as their basis for the payment of the Claimant the sum of money they paid as professional fees and the said ‘scale of fees’ was at no time tendered in evidence or sited [sic] by the Claimant or the learned trial Judge.
D. The Judgment of the learned trial judge is against the weight of evidence. (See page 154 of the Records)
An integral construction of the above grounds with the particulars makes it limpid that the grounds raise the question of evaluation of evidence and ascription of probative value thereto. There is nothing therein which even obliquely makes reference to the procedural requirement of Order 30 Rule 10 of the High Court of Lagos State (Civil Procedure) Rules, 2004, of obtaining leave of Court to file the witness statement on oath of an additional witness. In the circumstances, the Appellant’s contention on the irregularity vel non of the witness statement on oath of the Respondent’s sole witness are non-sequitur and are accordingly discountenanced.
From the Records of Appeal, the following facts are not disputed:
The fee stated in Exhibit C1/D2 was unilaterally fixed by the Respondent.
The debenture which was forwarded to the Appellant to perfect and attached to Exhibit C1/D2 was a N10Million fixed and floating debenture.
3. Though Exhibit C1/D2 instructed for perfection of N65Million fixed and floating debenture at the fee stated therein, what the Appellant perfected was a N10Million fixed and floating debenture for which the Respondent paid it the fee it unilaterally fixed as the professional fees for perfection of N10Million debenture.
4. The Appellant did not perfect any N65 Million fixed and floating debenture for which the Respondent had stated it would pay the Appellant the amount stated on Exhibit C1/D2 for perfecting.
Now, it is hornbook law that where a contract involves several documents, the Court can only determine the issues before it on the basis of the documents including letters relating to the contract and the conduct of the parties. See LEYLAND (NIG) vs. DIZENGOFF W. A. (1990) 2 NWLR (PT 134) 610 at 620, CBN vs. IGWILLO (2007) LPELR (835) 1 at 39, UDEAGU vs. BENUE CEMENT CO. PLC (2005) LPELR (6170) 1 at 34-35 and ORAKWE vs. ORAKWUE (2018) LPELR (44763) 1 at 22.
In this wise, in construing Exhibit C1/D2, it has to be construed alongside the debenture attached thereto, Exhibit D3, as well as the conduct of the parties. The of Exhibit C1/D2 is not to be considered in isolation. It has to be considered with Exhibit D3, which by virtue of being attached to Exhibit C1/D2 forms part of the said Exhibit C1/D2. An integral construction of the said documents alongside the conduct of the Appellant in proceeding to perfect the N10Million fixed and floating debenture as opposed to the N65Million fixed and floating debenture stated in Exhibit C1/D2 make it lucent that the contract between the parties was for perfection of a N10Million fixed and floating debenture and not N65Million fixed and floating debenture.
In determining that the Appellant is not entitled to the amount stated on Exhibit C1/D2 since he did not perfect the registration of N65Million fixed and floating debenture, the lower Court reasoned and held as follows at pages 149-150 of the Records:
“In this instant case, the wordings of Exhibit D2 are clear and unambiguous. The Defendant herein made an offer of N741,274.64 as professional fees for the perfection of a N65m Debenture and this offer was accepted by the Claimant having gone ahead to carry out the instruction, albeit for the perfection of a N10M deed of Debenture. In my view the Claimant, having read Exhibit D2 and then finding Exhibits D attached for a lesser value, ought to have called for further clarification and having failed to do so, he cannot be heard seeking to enforce payment for the professional fee stipulated in that offer as that was not the job he carried out.
However, it is my view that Exhibits D2 & D3, if read in isolation, do not constitute a contract capable of being performed and so the Claimant cannot enforce his claim based on these alone. These Exhibits constitute contract capable of performance which should be read together with all the other correspondence in respect of the transaction between the parties. For instance Exhibit D5 shows that the Claimant has collected N164, 699.82 in cash on 23/3/04 and that is what he is entitled to as fees for the job done.
Looking dispassionately at this matter therefore I am of the view that when the Claimant saw that the consideration of the debentures was N10M as opposed to N65M as stated in his letter of instruction he ought to have requested for further clarification from the Defendant before continuing with the brief. If he had done so then he would have spared himself a lot of pain and agony associated with the filing of this action. My conclusion therefore, is that the Claimant herein cannot succeed with his claim in this suit, and the Defendant is not liable to make further payments to him in respect of the transaction.”
The lower Court made the following definitive findings of facts at pages 148-149 of the Records:
“As earlier stated, save for the letter of instruction (Exhibits C1/D2) and other correspondences, there exists no formal written Agreement regulating the transaction between the parties in the instant case. Hence for this Court to determine the terms of the contract between the parties herein, it has to look at all the correspondences that have passed between the parties as a whole.
I have examined all the Exhibits listed above which are correspondence between the parties hereto during the course of the transaction giving rise to this dispute and I find that at every material time the Claimant was aware that the assignment he was carrying out was the perfection of a N10M fixed and floating Debenture and not the perfection of a N65M fixed and floating Debenture. Exhibits C2 & C3 are letters the Claimant wrote to the Defendant to update them as well as demand for the Statutory fees required to be paid in furtherance of the process of registering the Debenture, which is the fee payable in respect of a N10M debenture.
Thus if the Claimant is asserting that he took up the assignment based on the consideration stated in Exhibit C1 then it is logical for one to conclude that he has not completed the assignment for which that consideration was meant. He ought to have requested to be furnished with the document(s) in respect of the remaining N55M having regard to the fact that the he was instructed in respect of N65M fixed and floating debenture whereas the document attached to his letter of instruction bore only N10M. However, since he has only performed to the extent of carrying out a N10M perfection, then this Court will once again have to look at the other documents in respect of the transaction and hold that the consideration due to the Claimant is N114, 699. 82 as assessed by the Defendant in Exhibit D4.”
The lower Court then conclusively held at page 150 that:
“The pivot of this case revolves round the question whether or not the Claimant is entitled to fees for processing a N65 Million floating Debenture when all he did was process debenture worth N10 Million. I am of the view that he is not…”
The evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial. 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. See ONWUKA vs. EDIALA (1989) 1 NWLR (PT 96) 182 at 208-209 and F. H. A. vs. OLAYEMI (2017) LPELR (43376) 1 at 69-70. The settled legal position is that where a trial Court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate Court to substitute its views for the view of the trial Court except where the findings of facts made by the trial Court do not flow from the evidence or where the findings are perverse. See WOLUCHEM vs. GUDI (1981) 5 SC 291 at 320, EDJEKPO vs. OSIA (2007) LPELR (1014) 1 46-47 and FASIKUN II vs. OLURONKE II (1999) LPELR (1248) 1 at 47-48. The law is that the conclusion of the trial Court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts: BALOGUN vs. AGBOOLA (1974) 1 ALL NLR (PT 2) 66, EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43 and ONI vs. JOHNSON (2015) LPELR (24545) 1 at 14.
The evaluation of evidence and the findings of facts made by the lower Court were definitely not perverse. Therefore there is absolutely no basis for an appellate Court to intervene. Ineluctably, the Appellant has not been able to displace the presumption that the conclusion of the lower Court on the facts are correct in order to upset the judgment. See WILLIAMS vs. JOHNSON (1937) 2 WACA 253.
Indubitably, this appeal is totally devoid of merit, it therefore fails and it is hereby dismissed.
THE CROSS APPEAL
As previously stated, the Appellant did not file any Cross Respondents Brief so it is only the submissions of the Cross Appellant that is before the Court in this cross appeal. However the fact that the Appellant did not file a Cross Respondents Brief does not mean that the cross appeal must willy-nilly succeed; this is so because an appellant succeeds or fails on his own brief and must still establish that the judgment appealed against is wrong. See ECHERE vs. EZIRIKE (2006) LPELR (1000) 1 at 20, CAMEROON AIRLINES vs. OTUTUIZU (2011) LPELR (827) 1 at 17 and STABILINI VISINONI (NIG) LTD vs. SANDERTON VENTURES LTD (2011) 8 NWLR (PT 1249) 258. Accordingly, it still behoves the Court to consider the submission in the Cross Appellants Brief to see if they are convincing enough to entitle the Cross Appellant to Judgment.
I have already set out the issue framed for determination in the cross appeal. The said issue flows from the grounds of appeal in the Notice of Cross Appeal and I would resolve the cross appeal on the basis of the said issue.
ISSUE FOR DETERMINATION
Whether the award of the sum of N100, 000 plus interest at 21% per annum from 14/7/2003 till 18/9/2009 and thereafter at 10% per annum until liquidation is justified in law and on the facts having regard to the evidence and issues contested at the trial Court.
The contention of the Cross Appellant is that the decision of the lower Court to enter judgment for the Cross Respondent for fees for obtaining an order from the Federal High Court was inconsistent and not supported by the evidence at the trial. It was posited that there was no agreement between the parties to obtain a Court order from the Federal High Court as the instructions given to the Cross Respondent was time bound and did not contemplate any agreement to secure a Court order from the Federal High Court. The cases of ADIMORA vs. AJUFO (1989) 3 NWLR (PT 80) 1 and NJIKONYE vs. MTN NIG. COMMUNICATIONS LTD (2008) 9 NWLR (PT 1092) 339 were referred to.
It was further submitted that the interest awarded by the lower Court was unjustified as no evidence was led on the rate of interest or entitlement to interest and that the award was perverse and ought to be set aside. The case of EKWUNIFE vs. WAYNE (W. A.) LTD (1989) 5 NWLR (PT 122) 422 at 445 was relied upon.
RESOLUTION
The Cross Appellant has rightly submitted that it did not have any agreement with the Cross Respondent to obtain any Court order from the Federal High Court. However from the evidence on record, obtaining the Court order from the Federal High Court was reasonably incidental to the instruction given to the Cross Respondent to perfect the debenture. Indeed, the Cross Respondent in Exhibits C4 and C5 informed the Cross Appellant of the need to secure an order from the Federal High Court for extension of time to register the debenture. Upon the order having been obtained and the perfection of the debenture effected, the Cross Respondent wrote Exhibit C6 to the Cross Appellant demanding payment of the sum of N100, 000.00 as fees for obtaining the Court order. The Cross Appellant in its Exhibit D4 accepted the services rendered by the Cross Respondent in obtaining the Court order and assessed and paid the sum of N50, 000.00 to the Cross Respondent for the services rendered in respect thereof. Consequently, from the correspondence exchanged between the parties and the conduct of the Cross Appellant in paying the sum of N50, 000.00 for obtaining the Court order, the Cross Appellant cannot be heard to contend that there was no agreement between the parties for a Court order to be obtained: CBN vs. IGWILLO (supra).
The matter does not end there. The Cross Respondent demanded the sum of N100, 000.00 as fees for obtaining the Court order. As evident from Exhibit D4 and as found and held by the lower Court at page 150 of the Records, the Cross Appellant had paid the sum of N50, 000.00 to the Cross Respondent and there remained the balance of N50, 000.00. Notwithstanding this finding, the lower Court still entered judgment for the Cross Respondent for the sum of N100,000.00 as fees for obtaining the order from the Federal High Court.
The award made by the lower Court in this regard files in the face of the evidence on record of payment of the sum of N50,000.00 as part of the said fees. In the circumstances, since the lower Court failed to properly take the evidence on record into consideration in making the award, an appellate Court will interfere. See WOLUCHEM vs. GUDI (supra) EDJEKPO vs. OSIA (supra) and FASIKUN II vs. OLURONKE II (supra). The award of the sum of N100, 000.00 is therefore set aside and in its stead, the sum of N50, 000.00 is awarded to the Cross Respondent as balance of fees for obtaining the order from the Federal High Court.
The Cross Appellant further hankers after the setting aside of the pre-judgment and post-judgment interest awarded to the Cross Respondent. There are two types of interest usually awarded by a Court namely: pre-judgment interest otherwise known as ‘interest as of right’ and post-judgment interest otherwise known as ‘discretionary interest’, which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules. Pre-judgment interest must be claimed by a plaintiff in the writ of summons and statement of claim and evidence subsequently adduced in proof of it, failing which it will not be awarded by a Court.
The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship. See EKWUNIFE vs. WAYNE (WA) LTD (1989) 5 NWLR (PT 122) 422 at 445, IDAKULA vs. RICHARDS (2001) 1 NWLR (PT 693) 111 at 122, 124B-D and 124H-125A, SANI ABACHA FOUNDATION vs. UBA PLC (2010)1 NACLR 264 at 272, BERENDE vs. USMAN (2005) 14 NWLR (PT 944) 1 and BERLIET NIGERIA LTD vs. KACHALLA (1999) 9 NWLR (PT 420) 478.
The Cross Respondent claimed interest on the amount he claimed as balance of his professional fees at the rate of 21% per annum from 1st December 2003 until judgment is delivered. The law remains firmly established that a claimant who claims interest must not only claim it on the writ of summons and statement of claim, but must also plead the facts and the grounds upon which the claim for interest at the rate claimed is based. See AZUMI vs. PAN AFRICAN BANK LTD (1996) 8 NWLR (PT 467) 462 at 472 and OBANTA COMMUNITY BANK LTD vs. AJAYI (2001) 33 WRN 119 at 128.
The entitlement to interest must also be established by credible evidence: REO ENTERPRISES vs. NWOSU (2002) 11 WRN 16 at 33 and R.C.C. (NIG) LTD vs. R.P.C. LTD (2005) 10 NWLR (PT 934) 615 at 640-641. Not only did the Cross Respondent not plead the facts and grounds upon which the claim for pre-judgment interest at the rate claimed is predicated, there is also no iota, whit or scintilla of evidence in proof of pre-judgment interest at the rate claimed. As a consequence, the lower Court was in error when it awarded pre-judgment interest to the Cross Respondent from 14th July 2003 until the date of the judgment.
Even though the Cross Respondent did not claim post-judgment interest until the liquidation of the judgment sum, I have already stated that post-judgment interest or discretionary interest is that interest which a Court is allowed by the Rules of Court to award to a successful party at the end of the trial at a rate fixed by the Rules. In the course of this judgment I have found that the Cross Respondent is entitled to the sum of N50, 000.00, being the outstanding amount due as professional fees for obtaining the order from the Federal High Court. The power of a Court to award post-judgment interest is usually exercised when the Court has pronounced its judgment in any claim. See EBERE vs. ABIOYE (2005) 41 WRN 1 at 45. In exercise of discretion pursuant to Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004 [the applicable Rules at the date of the Judgment], the lower Court rightly exercised its discretion by awarding post-judgment interest at the rate of 10% per annum from the date of the judgment until final liquidation of the judgment sum. The post-judgment interest is to run from 18th September, 2009, the date of the judgment of the lower Court, since the Cross Respondent was entitled to judgment being entered in his favour for the sum of N50, 000.00 as at that date.
The concatenation of the foregoing is that the cross appeal succeeds in part, to the extent that the judgment sum of N100,000.00 is reduced to N50,000.00 and the award of pre-judgment interest is set aside, while the post-judgment interest is on the sum of N50, 000.00.
Conclusively, the main appeal being devoid of merit is dismissed while the cross appeal succeeds in part as hereinbefore set out. The parties are to bear their respective costs of this appeal.
TOM SHAIBU YAKUBU, J.C.A.: I had the advantage of reading the draft of the judgment, rendered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I am in complete agreement with the resolution of the sole issue in the appeal and also the sole issue in the cross ? appeal, by his Lordship.
I, too dismiss the appeal in its entirety whilst the cross-appeal, having succeeded in part, is so allowed, only to the extent, ordered in the lead judgment.
Each side shall bear own costs.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the Judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA.
I agree with the decision he has reached that the appeal lacks merit and its accordingly dismissed.
I abide with the consequential order he has made.
Appearances:
K. I. Josephneke, Esq.For Appellant(s)
Mrs. Zainab Aruwajoye with her, Miss Ramatu ArumeFor Respondent(s)
