TRANSMISSION COMPANY OF (NIG.) PLC v. MOBANK SERVICES LTD
(2021)LCN/15672(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, September 24, 2021
CA/ABJ/CV/780/2020
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
TRANSMISSION COMPANY OF NIGERIA PLC APPELANT(S)
And
MOBANK SERVICES LIMITED RESPONDENT(S)
RATIO
WHETHER OR NOT A NOTICE OF APPEAL FILED OUT OF TIME IS VOID AND INCOMPETENT
It is trite law that a notice of appeal filed out of time, without an order of Court granting an extension of time to file same, is void and incompetent. See Union Bank of Nig. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558 at 576; Lasisi Akanni Buraimoh v. Rebecca Ayinke Bamgbose (1989) 3 NWLR (Pt. 109) 352 and Ladejo Onifade v. Alhaji Alimi Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 166, where it was held as follows:
“In my judgment, when a process has been filed out of time, the consequence is that such process must be deemed not to have been properly filed”. PER ADUMEIN, J.C.A.
THE POSITION OF LAW ON A NOTICE OF APPEAL
The law is settled that a notice of appeal or a notice of cross-appeal is a fundamental process akin to an originating process such as a writ of summons. See Dr. John Olukayode Fayemi & Anor. v. Olusegun Adebayo Oni & Ors. (2010) 17 NWLR (Pt. 1222) 326.
Being the foundation of an appeal, where the notice of appeal is fundamentally defective, and incompetent, as in this case, this Court has the inherent jurisdiction to strike out the appeal for itself being incompetent. See Anadi v. Okoli (1977) 7 SC 57 and Nwanwata v. Esumei (1998) 8 NWLR (Pt. 563) 650. PER ADUMEIN, J.C.A.
WHETHER OR NOT THE ISSUE OF A FUNDAMENTALLY INCOMPETENT NOTICE OF APPEAL GOES TO THE QUESTION OF JURISDICTION OF THE COURT TO ENTERTAIN THE APPEAL
The issue of a fundamentally incompetent notice of appeal goes to the foundational question of the jurisdiction of the Court to entertain the appeal. This is because, there are pre-conditions, which must exist, before a Court is competent to exercise its jurisdiction to entertain and determine any cause or matter.
In the celebrated case, which is the locus classicus, of Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) NSCC (Vol. 2) 374 at 379, the apex Court held that
“…a Court is competent when —
1. It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case come before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.” PER ADUMEIN, J.C.A.
WHETHER OR NOT AN INTERMEDIATE APPELLATE COURT MUST RESOLVE ALL ISSUES BEFORE IT
The law, generally, is that an intermediate appellate Court should endeavour to resolve all issues before it. SeeIfeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR (Pt. 656) 322 at 351, per Ogundare, JSC and Bello v. Diocesan Synod of Lagos(1973) 3 SC 102; (1973) 1 All NLR 247.
In Dr. Okey Ikechukwu v. Federal Republic of Nigeria (2015) 7 NWLR (Pt. 1457) 1 at 21, per Nweze, JSC; the Supreme Court relied on the cases of F.C.D.A. v. Sule (1994) 3 NWLR (Pt. 332) 257; Oro v. Falade (1995) 5 NWLR (Pt. 396) 385 andIfeanyi Chukwu Ltd. v. Soleh Boneh Ltd. (2000) FWLR (Pt. 27) 2046, (2000) 5 NWLR (Pt. 656) 322 and held:
“It cannot be gainsaid that as a general rule, an intermediate Court, like the lower Court (Court of Appeal), has a duty to pronounce on all the issues before it…
However, there are some exceptions to the above broad rule that applies to the lower Court as an intermediate Court. Thus, for example, where the said Court as an intermediate Court, decides that it lacks jurisdiction in appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction”.
See also Mr. Ire Mathew Owuru & Anor. v. Hon. Agi Michael Adigwu & Anor. (2018) 1 NWLR (Pt. 1599) 1 at 19. PER ADUMEIN, J.C.A.
THE MEANING OF THE TERMS “PER ANNUM” AND “YEAR”
In plain English language, “per annum” means: “in or for every year” — Encarta World English Dictionary, page 1399. In legal parlance, “per annum” means: “By, for or in each year” — Black’s Law Dictionary, Deluxe Ninth Edition, page 1250.
What is the meaning of “year”? The learned authors of Black’s Law Dictionary, Deluxe Ninth Edition, page 1754, define “year” as:
“1. Twelve calendar months beginning January 1st and ending December 31st.
2. A consecutive 365-days period beginning at any point; a span of twelve months”.
And “month” has been explained to mean:
“1. One of the twelve periods of time in which the calendar is divided.
2. Any time period approximating 30 days”.
– Black’s Law Dictionary, Deluxe Ninth Edition, page 1099. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent, as the claimant in the trial Court, commenced Suit No. FCT/HC/CV/675/2018 by way of a writ of summons under the undefended list procedure in the High Court of the Federal Capital Territory, Abuja. The writ of summons was, by an order of the trial Court-in-chambers made on 18/04/2019, transferred to the Ordinary Cause List and the respondent subsequently filed its statement of claim wherein it sought the following relief:
“a. A DECLARATION that the claimant is entitled to the sum of N176,767,500.00 (One Hundred and Seventy Six Million, Seven Hundred and Sixty Seven Thousand and Five Hundred Naira) from the Defendant, being the due outstanding contract sum in respect of the contract for Supply of 14 units of 33KV (1250A) SF6 Gas Circuit Breaker to the defendant as evidenced by the works order dated 16th January, 2017.
b. A DECLARATION that the claimant is entitled to the sum of N126,262,500.00 (One Hundred and Twenty Six Million, Two Hundred and Sixty Two Thousand and Five Hundred Naira) from the defendant being the due outstanding contract sum in respect of the contract for Emergency Supply of 10 Units of 33KV (2000A) SF6 Gas Circuit Breaker to the Defendant as evidenced by the works order dated 2nd February, 2017.
c. AN ORDER OF THIS HONOURABLE COURT directing the defendant to immediately pay to the Claimant the sum of N176,767,500.00 (One Hundred and Seventy Six Million, Seven Hundred and Sixty Seven Thousand and Five Hundred Naira), being the due outstanding contract sum in respect of the contract for Supply of 14 units of 33KV (1250A) SF6 Gas Circuit Breaker to the defendant as evidenced by the works order dated 16th January, 2017.
d. AN ORDER OF THIS HONOURABLE COURT directing the defendant to pay to the Claimant the sum of N126,262,500.00 (One Hundred and Twenty Six Million, Two Hundred and Sixty Two Thousand and Five Hundred Naira) being the due outstanding contract sum in respect of the contract for Emergency Supply of 10 Units of 33KV (2000A) Gas Circuit Breaker to the Defendant as evidenced by the works order dated 2nd February, 2017.
e. N10,000,000.00 (Ten Million Naira) as general damages.
f. N10,000,000.00 (Ten Million Naira) as exemplary damages
g. Pre-judgment interest of 10% per month on the outstanding due contract sum of N176,767,500.00 (One Hundred and Seventy Six Million, Seven Hundred and Sixty Seven Thousand and Five Hundred Naira), against the defendant in respect of the contract for Supply of 14 units of 33KV (1250A) SF6 Gas Circuit Breaker as evidenced by the works order dated 16th January, 2017, from 24th June, 2017, being 60 days after confirmation of execution of the contract by the defendant, till date of delivery of judgment.
h. Pre-judgment interest of 10% per month on the outstanding due contract sum of N126,262,500.00 (One Hundred and Twenty Six Million, Two Hundred and Sixty Two Thousand and Five Hundred Naira) against the defendant in respect of the contract for Emergency Supply of 10 Units of 33KV (2000A) SF6 Gas Circuit Breaker as evidenced by the works order dated 2nd February, 2017 from 15th April, 2017 being 60 days after confirmation of execution of the contract by the Defendant, till date of delivery of judgment.
i. Post judgment interest of 10% per month on the due contract sums from date of delivery of judgment until final liquidation of the judgment sum by the defendant.
j. AN ORDER OF THIS HONOURABLE COURT awarding the sum of N10,000,000.00 (Ten Million Naira) only against the Defendant as cost of this suit”.
Upon service of the Court processes on the appellant, which was the defendant in the trial Court, it (the appellant) entered an appearance on 03/06/2019 but did not file a statement of defence. By a motion on notice filed on 24/06/2019, the respondent prayed for judgment to be entered in its favour in default of defence. In reaction, the appellant filed a counter-affidavit and also a motion on notice on 01/07/2019, wherein it sought an order for enlargement of time to file its defence. After hearing the two motions on notice — the one by the respondent for judgment and the other by the appellant for enlargement of time, the trial Court, in a judgment delivered on 25/02/2020, refused the appellant’s application for enlargement of time to file its defence and granted the respondent’s motion for judgment in default of defence. This appeal is against part of the said decision and it is anchored on the following sole ground:
“The trial Court erred in law and acted without jurisdiction when it held that the appellant was liable to pay a post judgment interest of 10% per month contrary to the statutory prescription of 10% per annum.
PARTICULARS OF ERROR
1. In paragraph (i) of its claim before the lower Court, the claimant prayed the Court for post-judgment interest of 10% per month on the due contract sums from the date of delivery of the judgment until the final liquidation of the judgment sums by the defendant.
2. The learned trial Judge granted as prayed when it held that “this is therefore a proper case for the Court to enter judgment for the claimant in default of defence in terms of the reliefs set out in the statement of claim dated 24/05/19, save for reliefs (f), (g), (h) and (j) which are declined”.
3. The learned Trial Judge ought not to have granted post judgment interest of 10% per month on the contract sum; but rather, 10% post judgment interest per annum on the contract sum.”
In the appellant’s brief settled by T.S. Shankyula, Esq. and filed on 27/10/2020, a lone issue was distilled for determination as follows:
“Whether the learned trial Judge acted ultra vires its jurisdiction when he awarded post judgment interest of 10% per month on the contract sum; when the Rules of the Court provides for award of interest per annum”.
The respondent’s brief was settled by Akinlabi Akingbade, Esq. In the respondent’s brief, filed on 27/11/2020, a sole issue was identified as follows:
“Whether the trial Court had the discretion to award 10% post judgment interest per month in favour of the respondent”.
RESPONDENT’S PRELIMINARY OBJECTION
The learned counsel for the respondent raised and argued a preliminary objection in his brief. Learned counsel stated as follows:
“Imperative to note is that the Notice of Appeal in the instant appeal against the trial Court’s judgment delivered on 25th February, 2020, was only filed on 29th June, 2020 (more than four months after the judgment) without an order for extension of time first had and obtained and it is the respondent’s contention herein that as a result thereof, this appeal is fundamentally defective and incurably bad as the Notice of Appeal being an originating process cannot even be deemed as properly filed”.
It was contended, inter alia, that:
“As can be gleaned from the Record of Appeal, the Notice of Appeal was filed out of the three months’ timeframe stipulated in Section 24 of the Court of Appeal Act without order for extension of time first had and obtained which renders same incompetent ab initio.
On the fundamental nature of a notice of appeal, learned counsel referred the Court to the case of Umezinne v. F.R.N. (2019) 3 NWLR (Pt. 1660) 532 and argued that, on the authority of Asuquo v. William (2018) LPELR – 44045, a notice of appeal filed out of time and without an order of Court extending time to file it, is incompetent.
Relying on the cases of Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Rossek v. ACB Ltd. (1993) 8 NWLR (Pt. 312) 382; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224; Okolo v. Union Bank of Nig. Ltd. (2004) 3 NWLR (Pt. 859) 87 and FGN v. Oshiomhole (2004) 3 NWLR (Pt. 860) 305; learned counsel for the respondent submitted that:
“No doubt, the appellant’s notice of appeal, being incompetent, is not capable of vesting any jurisdiction on this Honourable Court to hear this appeal.”
In response, learned counsel for the appellant urged the Court to take judicial notice of “the fact that the COVID-19 led to the imposition of lock down, closure of offices, Courts, restriction of movement within Abuja and across the country”. Counsel specifically supplied the High Court of the Federal Capital Territory (FCT), Abuja Practice Direction 2020 as additional authority.
Learned counsel for the appellant argued that the period of lock down should not be used in computing the time for filing the appellant’s notice of appeal and that the notice of appeal filed on the 29th day of June, 2020 was filed within time.
The Court was urged to overrule the preliminary objection.
It is a matter of common knowledge that COVID-19 is a global disease which was an epidemic in 2019 but became a global pandemic in 2020 and it is still a pandemic, with its effects felt throughout the world, including the Federal Capital Territory of the Republic of Nigeria. It is also a matter of common knowledge that, at various times, there were impositions of restriction of movement in various parts of Nigeria, including the Federal Capital Territory, Abuja as a result of the devastation caused by COVID-19.
With specific reference to this case, I have read the High Court of the Federal Capital Territory, Abuja Practice Direction, 2020 issued on the 8th day of May, 2020 by the Honourable Chief Judge of the High Court of the Federal Capital Territory, Abuja and which took effect from 11th day of May, 2020. Paragraph 5 of the said Practice Directions provides thus:
“5. The period beginning from Monday, 23rd March 2020 to Monday, 4th May, 2020 (six weeks), being the period of the sit-at-home/lockdown declared by the Federal Government of Nigeria by reason of the COVID-19 pandemic shall be excluded for the purposes of COMPUTATION OF TIME for doing any act under the Rules of Court.”
The judgment of the trial Court was delivered on the 25th day of February, 2020. Being a final decision, by Section 24 (2)(a) of the Court of Appeal Act (as amended) the appellant’s notice of appeal ought to have been filed within “three months” from the date of the decision of the trial Court. By ordinary arithmetical calculation, the appellant’s notice of appeal ought to have been filed before or on the 25th day of May, 2020.
Learned counsel for the appellant argued that the notice of appeal filed on the 29th day of June, 2020 in this case was within time in view of the provisions of paragraph 5 of the High Court of the Federal Capital Territory, Abuja Practice Direction 2020.
The provisions of paragraph 5 of the said Practice Directions, earlier reproduced in this judgment, are worded in ordinary and plain English language and the words used therein should be attached or given their ordinary grammatical meanings. The golden rule for the interpretation of statutes or legal instruments is that “where the words of a statute are clear and unambiguous, the ordinary meaning of the words are to be adopted” – per Karibi-Whyte, JSC in the case of Wahabi Aigbotosho Sijuola Olanrewaju v. The Governor of Oyo State (1992) 9 NWLR (Pt. 265) 335 at 362. See also Yerokun v. Adeleke (1960) 5 FSC 126, (1960) SCNLR 267; Ahmed v. Kassim (1958) 3 FSC 51, (1958) SCNLR 28; Nafiu Rabiu v. The State (No. 2) (1992) 6 NWLR (Pt. 245) 1, (1992) All NLR 62 and A-G; Federation v. A.-G; Lagos State (2013) 16 NWLR (Pt. 1380) 249.
In Josiah Ayodele Adetayo & Ors. v. Kunle Ademola & Ors. (2010) 15 NWLR (Pt. 1215) 169 at 205, per Adekeye, JSC; the Supreme Court held that:
“In the interpretation of a statute, where the words of a document, legislation or constitution are clear, plain and unambiguous, there is no need to give them any other meaning than their ordinary, natural and grammatical meaning would permit unless that would lead to absurdity.”
See also Victor Manyo Ndoma-Egba v. Nnameke Chukwukeluo Chukwuogor & Ors. (2004) 6 NWLR (Pt. 869) 382 at 409, per Uwaifo, JCA (as he then was).
In this case, the provisions of paragraph 5 of the Practice Directions, 2020 heavily relied upon by the appellant, are clear, plain and unambiguous. Giving the words used in the said paragraph of the Practice Directions of their ordinary grammatical meanings will not lead to any absurdity, as it will clearly bring out the open intention of the learned Chief Judge of the lower Court.
To discover the obvious intention of the maker of the said Practice Directions, paragraph 5 should be read together with paragraphs 3and 4 preceding thereto which provide that:
“3. The purpose of this Practice Direction is to regulate the sitting of the Courts of the Federal Capital Territory, Abuja in the wake of the relaxation of the Stay-at-Home/Lockdown by the Federal Government of Nigeria and to ensure the effective conduct of Court business without compromising the health and safety of Honourable Judges, Learned Magistrates, Court Staff, Counsel, Litigants and other Court users in conformity with extant directives and advisories issued by the Federal Government of Nigeria and/or other relevant agencies on containing the COVID-19 pandemic.
4. All Courts in the Federal Capital Territory, Abuja shall resume regular sitting with effect from Monday, the 11th day of May, 2020.”
In the reply brief, learned counsel for the appellant contended, amongst other things, as follows:
“2. My Lords, we submit that in view of certain facts characterising or surrounding the circumstances under which the appellant’s appeal was filed, which we contend are of common knowledge and therefore ought to be taken judicial notice of by this Honourable Court, can the appellant really be said to have been out of time when the appeal was filed?
3. My Lords are invited to note the currently ravaging Corona Virus Disease (COVID-19), which has hit the whole world, including Nigeria. The fact that the COVID-19 led to the imposition of lock down, closure of offices, Courts, restriction of movement within Abuja and across the country remains a common knowledge, which this Honourable Court is enjoined to take judicial notice of.
4. Consequent upon the foregoing, the Chief Justice of Nigeria (CJN) Hon. Justice I.T. Muhammad, CFR issued various circulars to all Heads of Court, both Federal and State Judiciaries titled “RE: PREVENTIVE MEASURES ON THE SPREAD OF CORONA VIRUS (COVID-19) AND THE PROTECTION OF JUSTICES, JUDGES AND STAFF OF COURTS” The circulars were as follows:
a. Circular dated 20th March, 2020 with Ref. No. NJC/CIR.HOC/H/629;
b. Circular dated 23rd March, 2020 with Ref. No. NJC/CIR/HOC/H/631 and
c. Circular dated 6th April, 2020 with Ref. No. NJC/CIR/HOC/H/656
5. The effect of these circulars and the directives of the Centre for Disease Control (NCDC) as well as that of the Presidential Task Force (PTF) on COVID-19 brought a halt to a lot of movement and activities in the country, including Court activities. We respectfully and most humbly submit that the fact of the effects of these circulars as well as the directives of the PTF on COVID-19 on all activities in the country including Court sittings and other ancillary activities are fundamentally of common knowledge, which this Court is enjoined to take judicial notice of”.
By the provisions of paragraphs 3, 4 and 5 of the Practice Directions, 2020, of the trial Court, the learned Honourable Chief Judge of the Court — I. U. Bello, CJ; the maker of the Practice Directions, had taken into consideration all the circumstances surrounding Covid-19, including the circulars referred by the appellant’s counsel, before specifying that “the period beginning from Monday, 23rd March, 2020 to Monday, 4th May, 2020 (six weeks)… shall be excluded for the purposes of COMPUTATION OF TIME…”
The provisions of paragraph 5 of the Practice Directions of the lower Court, 2020 specify the period “excluded for the purposes of computation of time for doing any act…” By the express and plain provisions of paragraph 5 of the Practice Directions, 2020 the period excluded for the purposes of computation of time is “from Monday, 23rd March, 2020 to Monday, 4th May, 2020” — a period of six weeks. It means that a period of six weeks is “excluded” from the time provided for doing any act and under the Rules of the lower Court.
By Section 24(2)(a) of the Court of Appeal Act (as amended) a notice of appeal against a final decision, as in this case, shall be filed within three (3) months from the date of the decision appealed against. Under Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 a notice of appeal shall “be filed in the registry of the Court below”, which in this case is the registry of the High Court of the Federal Capital Territory, Abuja and not in the registry of the Court of Appeal. See Chief Okuwa Kalu v. Chief Kalu Igwe (1991) 3 NWLR (Pt. 178) 168.
Therefore, by Section 24(2)(a) of the Court of Appeal Act (as amended) and Order 7 Rule 2(1) of the Court of Appeal Rules, 2016 an appellant should file his notice of appeal in the registry of the Court below within 3 (three) months from the date of the decision appealed against.
The learned counsel for the appellant argued that “the lock down period and suspension of Court operations lasted for more than 35 days” and that “upon the resumption of full operation of activities as well as the Courts, the appellant filed the notice of appeal on the 29th of June, 2020”. With respect, the provisions of the Practice Directions, 2020 are in plain and simple English language. The provisions mean that the period of six weeks, from the 23rd day of March, 2020 to the 4th day of May, 2020, is “excluded for the purposes of computation of time for doing any act under the Rules of Court”. The practice directions, therefore, apply “for the purposes of computation of time for doing any act under the Rules of Court” and, by paragraph 2 of the said Practice Directions, “Court” for the purposes of this case means “the High Court of Federal Capital Territory, Abuja”.
I have taken judicial notice of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 and I have also read same carefully and no where therein is the time for filing a notice of appeal to this Court stated or specified. Therefore, the exclusion of six weeks for computation of time under paragraph 5 of the Practice Directions of the lower Court, 2020 does not apply to this case, where the decision appealed against was delivered before the Covid-19 lock down and even the time for filing the notice of appeal expired more than two weeks after the lifting of the lock-down. The time for filing a notice of appeal is statutory and has not been amended by the Practice Directions, heavily relied upon by the appellant or at all.
Under the circumstances of this case, the appellant which knew or ought to know that the time for filing its notice of appeal had expired, more than one month before it purportedly filed its notice of appeal, should have sought and obtained an order of enlargement or extension of time to file same.
It is trite law that a notice of appeal filed out of time, without an order of Court granting an extension of time to file same, is void and incompetent. See Union Bank of Nig. Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (Pt. 421) 558 at 576; Lasisi Akanni Buraimoh v. Rebecca Ayinke Bamgbose (1989) 3 NWLR (Pt. 109) 352 and Ladejo Onifade v. Alhaji Alimi Olayiwola (1990) 7 NWLR (Pt. 161) 130 at 166, where it was held as follows:
“In my judgment, when a process has been filed out of time, the consequence is that such process must be deemed not to have been properly filed”.
The law is settled that a notice of appeal or a notice of cross-appeal is a fundamental process akin to an originating process such as a writ of summons. See Dr. John Olukayode Fayemi & Anor. v. Olusegun Adebayo Oni & Ors. (2010) 17 NWLR (Pt. 1222) 326.
Being the foundation of an appeal, where the notice of appeal is fundamentally defective, and incompetent, as in this case, this Court has the inherent jurisdiction to strike out the appeal for itself being incompetent. See Anadi v. Okoli (1977) 7 SC 57 and Nwanwata v. Esumei (1998) 8 NWLR (Pt. 563) 650.
The issue of a fundamentally incompetent notice of appeal goes to the foundational question of the jurisdiction of the Court to entertain the appeal. This is because, there are pre-conditions, which must exist, before a Court is competent to exercise its jurisdiction to entertain and determine any cause or matter.
In the celebrated case, which is the locus classicus, of Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) NSCC (Vol. 2) 374 at 379, the apex Court held that: <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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“…a Court is competent when —
1. It is properly constituted as regards numbers and qualification of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
3. The case come before the Court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.”
In this case, the appellant did not file its notice of appeal within 3 (three months) or 90 (ninety) days from the date of the decision or judgment appealed against, which is a condition precedent to competence of the Court to exercise its jurisdiction.
In view of all my reasoning and conclusions, the respondent’s preliminary objection is meritorious and it is hereby upheld.
This appeal is incompetent and it is liable to be struck out for want of jurisdiction by this Court to entertain same.
The appeal is hereby, accordingly, struck out for lack of jurisdiction.
SUBSTANTIVE APPEAL
As stated earlier in this judgment, each of the parties identified a sole issue for determination of the substantive appeal.
I have just upheld the respondent’s preliminary objection. However, I am aware that this Court is an intermediate appellate Court, being the penultimate appellate Court in the Federal Republic of Nigeria.
The law, generally, is that an intermediate appellate Court should endeavour to resolve all issues before it. SeeIfeanyi Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 5 NWLR (Pt. 656) 322 at 351, per Ogundare, JSC and Bello v. Diocesan Synod of Lagos(1973) 3 SC 102; (1973) 1 All NLR 247.
In Dr. Okey Ikechukwu v. Federal Republic of Nigeria (2015) 7 NWLR (Pt. 1457) 1 at 21, per Nweze, JSC; the Supreme Court relied on the cases of F.C.D.A. v. Sule (1994) 3 NWLR (Pt. 332) 257; Oro v. Falade (1995) 5 NWLR (Pt. 396) 385 andIfeanyi Chukwu Ltd. v. Soleh Boneh Ltd. (2000) FWLR (Pt. 27) 2046, (2000) 5 NWLR (Pt. 656) 322 and held:
“It cannot be gainsaid that as a general rule, an intermediate Court, like the lower Court (Court of Appeal), has a duty to pronounce on all the issues before it…
However, there are some exceptions to the above broad rule that applies to the lower Court as an intermediate Court. Thus, for example, where the said Court as an intermediate Court, decides that it lacks jurisdiction in appeal before it, it then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction”.
See also Mr. Ire Mathew Owuru & Anor. v. Hon. Agi Michael Adigwu & Anor. (2018) 1 NWLR (Pt. 1599) 1 at 19.
In this appeal, I have already taken a decision on the issue of jurisdiction. However, since abundant caution does no harm — abundans cautela non nocet, in view of the novelty of the applicability or otherwise of the period of time specified in paragraph 5 of the Practice Directions, 2020 of the lower Court to the statutory period limited for filing a notice of appeal pursuant to Section 24 of the Court of Appeal Act, 1976 (as amended) I have decided to decide the appeal on its merits.
The live issue in the substantive appeal is:
Whether or not the lower Court has the jurisdiction to award post judgment interest of 10% per month.
The learned counsel for the appellant relied on the case of Edilcon (Nig.) Ltd. v. U.B.A. (2017) 70 NSCQR (Pt. 1) 29 at 59 – 60 and submitted as follows:
“We concede that in a monetary claim, the Court has a discretion to order interest at a rate not less than 10%. The issue however is whether such interest should be per month or per annum. We submit that the circumstance surrounding the award of interest in a case arises in two distinct ways. First, it arises as of right as agreed by the parties or under a mercantile custom or under a principle of equity much as a breach of a Fiduciary relationship.
Second, it arises where there is a power conferred by a statute to do so”.
Learned counsel contended that “in the instant case, it is the second scenario that applies” because “the award of interest here is governed by the provisions of the Rules of the Federal Capital Territory High Court, Abuja”, especially Order 39 Rule 4, thereof.
In urging the Court to resolve the issue in favour of the appellant, learned counsel argued that “the trial Court erred in law and acted without jurisdiction when it held that the appellant was liable to pay post-judgment interest of 10% per month on the contract sum, contrary to the statutory provision of 10% per annum”.
Whilst urging the Court to resolve the issue in favour of the respondent, learned counsel contended, inter alia, as follows:
“As 10% interest per month awarded by the trial Court is clearly not less than the minimum threshold of 10% per annum provided in Order 39 Rule 4 of the FCT High Court Rules, 2018, we submit that the trial Court did not err and was on strong footing when it exercised its discretion in favour of the respondent in awarding post judgment interest “.
Order 39 Rule 4 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2018 provides thus:
“The Court at the time of making any judgment or order or at any time afterwards, may direct the time within which the 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 Court may deem fit and may order interest at a rate not less than 10% per annum to be paid upon any judgment”.
(Underling and emphasis supplied by me.)
The provisions of Order 39 Rule 4 of the applicable Rules of the lower Court, reproduced above, are clear, plain, simple and unambiguous. The said rule of Court gives the trial Court discretion to award post-judgment interest, on a judgment debt or sum, at “a rate not less 10% per annum”.
In this case, the trial Court granted post-judgment interest claimed by the respondent in paragraph 38(i) of its statement of claim, where the respondent claimed as follows:
“(i) Post judgment interest of 10% per month on the due contract sums from date of delivery of judgment until final liquidation of the judgment sum by the defendant.”
The appellant’s grouse is that the post-judgment interest awarded is at the rate of “10% per month”. The appellant opines that the interest rate ought to be “10% per annum” and not 10% per month.
In plain English language, “per annum” means: “in or for every year” — Encarta World English Dictionary, page 1399. In legal parlance, “per annum” means: “By, for or in each year” — Black’s Law Dictionary, Deluxe Ninth Edition, page 1250.
What is the meaning of “year”? The learned authors of Black’s Law Dictionary, Deluxe Ninth Edition, page 1754, define “year” as:
“1. Twelve calendar months beginning January 1st and ending December 31st.
2. A consecutive 365-days period beginning at any point; a span of twelve months”.
And “month” has been explained to mean:
“1. One of the twelve periods of time in which the calendar is divided.
2. Any time period approximating 30 days”.
– Black’s Law Dictionary, Deluxe Ninth Edition, page 1099.
Order 39 Rule 4 of the Rules of the lower Court provides for post-judgment interest at a rate “not less than 10% per annum”, which means that the interest rate should not be less than 10% per a period of twelve calendar months. By the use of the phrase “not less than 10%” per annum, by the framers of the Rules, a learned Judge of the lower Court has been given the discretion to award post-judgement interest on a judgment debt or sum at a rate more than 10% per annum. This is so because the said Rule of the lower Court places the lowest or minimum at which a post-judgment interest can be awarded without specifying the highest or maximum post-judgment interest rate that can be awarded.
Put differently, while by Order 39 Rule 4 of the Rules of the lower Court the minimum post-judgment interest rate which can be awarded is 10% per annum, there is no corresponding provision for the maximum post-judgment interest rate which the Court can award.
In this case, the award by the trial Court of a post-judgment interest at the rate of 10% per month was within its undoubted discretion so to award.
In any case, in paragraph 38(i) of its statement of claim, reproduced earlier in this judgment, the respondent specifically claimed for “post judgment interest of 10% per month” and the appellant did not contest or oppose this claim by way of a statement of defence or at all. The appellant, which did not oppose the post judgment interest at the rate claimed by the respondent, should be consistent in the pursuit of its legal rights.
The appellant, as a party which did not oppose the post judgment interest rate claimed by the respondent in the trial Court, cannot be heard in this Court opposing the said post judgment interest rate awarded by the Court. A party to a lawsuit cannot be heard to blow cold and hot in one and the same breath; such a party must be consistent in his claim or defence and cannot approbate and reprobate at the same time. See Iliyasu Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494 and Intercontinental Bank Ltd. v. Brifina Ltd (2012) 3 NWLR (Pt. 1316) 1 at 22, per Mukhtar, JSC (as he then was).
To be specific, litigation is not to be treated as a “hide and seek game” — Emmanuel Olamide Larmie v. Data Processing Maintenance & Services Ltd. (2005) 18 NWLR (Pt. 958) 438 at 471—472, per Niki Tobi, JSC and Hon. Muyiwa Inakoju v. Hon. Abraham Adeolu Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 627, per Niki Tobi, JSC.
Having regard to the facts and circumstances of this case, the trial Court did not err in awarding post judgment interest rate at 10% per month.
In view of all that I have stated above, the lone issue in this appeal ought to be, and it is hereby resolved against the appellant and in favour of the respondent.
Having resolved the live issue against the appellant, I find the appeal to be devoid of any merit and it is hereby dismissed.
The judgment of the trial Court, per Hon. Justice Peter O. Affen, J; (as he then was, now JCA) is hereby affirmed.
The sum of N300,000.00 (Three Hundred Thousand Naira only) is hereby awarded as costs in favour of the respondent and against the appellant.
UCHECHUKWU ONYEMENAM, J.C.A.: I have perused before now, the lead judgment just delivered by my learned brother, MOORE ASEIMO ABRAHIM ADUMEIN, JCA.
I agree with the conclusion of my learned brother in the lead judgment. I also hold that the appeal lacks merit and the same is accordingly dismissed. I affirm the judgment of the High Court of the Federal Capital Territory in suit No: FCT/HC/CV/675/2018 delivered on 25th February, 2020 by Peter O. Affen, J; (as he then was, now JCA).
I abide by the Order made as to cost.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege to read in advance, the lead judgment just delivered by my learned brother, Moore Aseimo Abraham Adumein, JCA.
I am in complete agreement with the reasoning and conclusion contained therein and I also dismiss the appeal for lacking in merit. I therefore affirm the judgment of the Court below.
I make no order as to costs.
Appearances:
T. S. Shankyula, Esq. with Rotimi Olujide, Esq; O. F. Audu, Esq; I. D. Bobmanuel, Esq. and O. A. Egwuenu, Esq. For Appellant(s)
Mohammed Monguno, Esq. with Opeyemi Origunloye, Esq. and Maryan Suleiman, Esq. For Respondents