ULI MICROFINANCE BANK NIGERIA LIMITED v. AGBANU NORBERT (2018)

ULI MICROFINANCE BANK NIGERIA LIMITED v. AGBANU NORBERT

(2018)LCN/11618(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of June, 2018

CA/E/399/2016

RATIO

DEFINITION OF INCIDENTAL ORDER

Now the word incidental is defined as a thing appertaining to or following another . Thus a thing is incidental if it follows naturally, appertaining to or as a matter of course from the primary matter or depends upon the principal matter. For the order made to be incidental to the order sought, such order made should be dependent on the order sought as its primary or principal. per JOSEPH TINE TUR, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

ULI MICROFINANCE BANK (NIG) LTD – Appellant(s)

AND

AGBANU NORBERT – Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment):

Any determination that puts an end to a dispute or a controversy between an appellant and a respondent is a decision or an opinion as defined in Section 294(2)-(4) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. The provisions are couched in the following language:-

(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:

Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.

(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.

(4) For the purpose of delivering its decision under this section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sits for that purpose.

The appellant is a Microfinance Bank, incorporated under the Banks and Other Financial Institutions Act Cap. B3, Laws of the Federation of Nigeria, 2004 to carry on banking business under Section 61 of the Banks and Other Financial Institutions Act No.25 of 1991 and has bankers books which is defined to include ledger, day books, cash books and all other books used in the banking business. See Section 258(1) of the Evidence Act, 2011. The appellant operate the banking business with computers. A computer is defined in Section 258(1) of the Evidence Act, 2011 as any device for storing and processing information, any reference to information being derived from other information is a reference to its being derived from it by calculation, comparing or any other process. This Court can take judicial notice of the fact that the appellant operates or carries on business with the aid of computers as most banks do in this generation. Section 84(1)-(5), 124(1)-(3), 125 and 126(a)-(d) of the Evidence Act, 2011 provides as follows:-

84(1) In any proceedings a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in Subsection (1) of this section are:

(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities or of the kind from which the information so contained is derived;

(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of it contents; and

(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

(3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Subsection (2):

(a) of this section was regularly performed by computers, whether

(b) by a combination of computers operating over that period; or

(d) by different combinations of computers operating in succession over that period; or

(e) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section:

(a) Identifying the document containing the statement and describing the manner in which it was produced;

(b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section:

(a) Information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) Where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.

(c) A document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

124(1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is: –

(a) Common knowledge in the locality in which the proceeding is being held, or generally; or

(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this section refers, and shall take such knowledge into account.

(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of such knowledge, as is necessary to ensure that the party is not unfairly prejudiced.

All facts, except the contents of documents, may be proved by oral evidence.
Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to:-

(a) A fact which could be seen, it must be the evidence of a witness who says he saw that fact.

(b) To a fact which could be heard, it must be the evidence of a witness who says he heard that fact;

(c) To a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner.

(d) If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those ground:-

Provided that the opinion of experts expressed in any treaties commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treaties if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable.

In Mrs. Elizabeth Anyaebosi vs. R.T. Briscoe (Nig.) Ltd. (1987) 6 SC 15 the Supreme Court recognized the essence of computer-generated information which records information supplied by a customer to a supplier which is stored in a computer or computers in the word of Uwais, JSC (as he then was) observed at page 33 lines 5 to 22 as follows:

At the hearing before the trial Judge (Williams, J.), the plaintiff called only one witness Mr. Edward Oladipo Aina, who was its Spare Parts Manager. The witness after testifying that the plaintiffs accounts were kept by computer, tendered a statement of account which the plaintiff kept in respect of its transactions with the deceased. The statement was admitted, without objection by the deceaseds Counsel, as Exhibit P4. This exhibit which is in a computer printed form was certified to be a true copy by one Chief T. Ola Odukoya, employed as Senior Accountant in the plaintiffs Motor Account Department. The exhibit was dated 31st December, 1980 and it showed a balance of N60,535.10 as outstanding against the deceased.

Information from a customer is usually made available to a bank that is stored by officers of the bank in their computer. The information stored in a computer by the officers of the bank becomes a fact that is peculiarly within the knowledge of the bank and in a situation where there is a dispute of a controversy as to the amount in the customer account including the payment of interest to the customer, the usual practice is to reproduce the information in the form of documents supported by oral evidence from the officers of the bank at the trial. The computer contains information peculiarly within the knowledge of the computer which is operated by the officers of the bank. Section 140 of the Evidence Act, 2011provides that:-

When a fact is especially within the knowledge of any person, the burden of proofing that fact is upon him.

The dispute in the Court below is one of facts to be proved or disproved by oral or documentary evidence. Section 258(1) of the Evidence Act, 2011 defines documents; fact; fact in issue and statement in the following manner:-

Documents includes:-

(a) Books, maps; plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter.

(b) Any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and

(c) Any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and

(d) Any device by means of which information, is recorded, stored or retrievable including computer output.

Fact includes:-

(a) Anything, state of things, relation of things, capable of being perceived by the senses; and

(b) Any mental condition of which any person is conscious.

Fact in issue includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows:

Statement includes any representation of fact whether made in words or otherwise.

Any device by means of which information is recorded, stored or retrievable including a computer output is evidenced in a document which is to be verified on the sworn oral evidence of an officer of the bank. The appellant is a bank that operates the account of the respondent in which the respondent deposits money into the custody of the appellant. The relationship between the appellant and the respondent is contractual and is evidenced by oral and documentary evidence. Paragraphs 1-5 of the Statement of Claim in support of the writ of summons filed by the respondent in the Court below on 18th November, 2014 pleaded the grievances of the respondent against the appellant. The respondent claimed reliefs against the appellant in paragraphs 6-7 of the Statement of Claim as follows: –

The defendant would not pay to the plaintiff the said sum N817,428.54 (Eight Hundred and Seventeen Thousand Four Hundred and Twenty-Eight Naira Fifty-Four Kobo) together with the accrued interest unless ordered by the Honourable Court.
WHEREOF the plaintiff claims against the defendant as follows: –

(a) AN ORDER of Court mandating the defendant to pay to the plaintiff the sum of N817,428.54 (Eight Hundred and Seventeen Thousand Four Hundred and Twenty Eight Naira Fifty four Kobo) being the plaintiffs money in the defendants custody which said money the defendant has failed to pay to the plaintiff deposit repeated demands.

(b) 21% interest rate per annum from 18/11/10 till judgment is given.

(d) Cost of this action.

The appellant denied liability in paragraphs 1-10 of the Statement of Defence followed by a Counter-claim at page 31 of the printed record of appeal as follows: –

The defendant denies paragraphs 3, 5, 6 of the statement of claim as they are false.
In further answer to paragraph 3 of the statement of claim, the defendant says as follows:

(a) The plaintiffs account with the defendant is now dormant for non-servicing of the account.

(b) The defendant sometime in 2010 was distressed which culminated in her operational license being withdrawn. The document issued by NDIC to the defendants’ bankers not to honour cheques emanating from the defendant is herein pleaded and shall be relied upon at hearing.

(c) That pursuant to the contract of banker customer relationship existing between the parties, any account holder who fails to operate his account over a period of six months shall have the account declared dormant. The contract agreement between the plaintiff and the defendant is hereby pleaded.

(d) In line with the defendant’s operational policy, when once an account with the defendant becomes dormant such account owner ceases to be a normal bank customer.

(e) The defendant upon the release to her hitherto withdrawn license through the plaintiff’s employer alerted the plaintiff to service his account. The document of the release of the withdrawn license is herein pleaded.

(3) In further answer to paragraph 5 of the statement of claim, the defendant avers as follows:

(a) The defendant is not refusing to pay the plaintiff or allowing him to access his account provided the plaintiff reactivates his dormant account with the defendant.

(b) The defendant also contends that the defendants board of directors meeting in conjunction with the defendant’s debt recovery agents came up with modalities for paying depositors with the defendant.

(c) The fact that the defendant pays with the money she recovers from the defendant’s borrowers, account for the segmented mode of paying the defendants depositors.

(d) The formula as agreed by the defendant and the recovery team of the defendant’s borrowers is that one-quarter of every depositor’s money will be paid over a period of six months.

(e) The defendant adequately informed the plaintiff through the plaintiff’s employer the Anambra State University of the agreed formula for payment of depositors.

(f) The defendant avers that a good number of the plaintiffs’ colleagues have paid based on the board of directors’ mode of paying depositors. The list of the plaintiff’s colleagues paid using the formula the plaintiff refuses to accept amongst other depositors is herein pleaded.

(g) The plaintiffs’ Counsel and the defendant’s counsels once met in the defendant’s counsel’s office upon the wise counsel of senior Magistrate O. Nwankwo Esq; which the plaintiffs’ counsel refused insisting the plaintiff and his other colleagues must be paid off once.

(h) The defendant insists on following the board of directors’ formula of paying depositors so that every depositor will benefit from what has been recovered from the debtors so far, so that the defendant will not run out of cash leading to another withdrawal of her license.

(i) The defendant has no other source of generating funds for payment of depositors except from the money recovered from the defendant’s borrowers. The situation is so bleak that the defendant has no asset of her own but operates from a rented building.

(j) The defendant contends that the situation of the bank is such that even if judgment is granted the plaintiff, the obsolete assets of the defendant cannot even pay ten out of thousands of depositors; which is largely why the bank has not been formerly liquidated.

4a. That the defendants operational license was withdrawn for a period of time within which period all banking services ceased in the bank to the knowledge of the plaintiff. The document for release of the defendants operating license hitherto withdrawn is pleaded and shall be relied upon at the trial.

The defendant till date is run by a consulting firm which works in collaboration with NDIC and EFCC, saddled with the recovery of depositors money trapped by borrowers. The documents showing the management of the defendant by the consulting firm and NDIC/EFCC are hereby pleaded and will be relied upon at the trial.
The defendant avers that she pays the plaintiff 2% interest on his deposit per annum.
The defendant also contends that she has never failed to calculate the plaintiffs interest of 2% per annum to update the plaintiffs deposit
The defendant also asserts that the agreed 2% percentage interest rate is usually inserted in the plaintiff’s statement of account and passbook as the case may be.
The defendant also avers that her operations are regulated by the Central Bank of Nigeria; hence the CBN empowers the defendant to fix interest payable on deposits (where applicable).
The defendant also avers that there is no contract that requires that the depositors fund with the defendant must be paid in bulk; rather payment is made subject to the availability of funds.
The defendant also contends that the interest payable on the plaintiffs account (where applicable) is subject to Government approved deductions like withholding tax (WHT) on interest due to depositor’s service charge, cost of turnover (COT) etc.

COUNTER CLAIM:

Wherefore the defendant counter-claims against the plaintiff as follows:

An order of Court that the contract between the plaintiff and the defendant binds the parties thereto.
An order of Court that the plaintiff reactivates his dormant account with the defendant prior to accessing his deposit pursuant to the agreement of the parties.

An order of Court that the plaintiff like all other customers of the defendant accept the board of directors of the defendant’s policy on mode of payment of depositors.
An order of Court that upon the reactivation of the plaintiffs dormant account interest shall be calculated to exclude the period the defendants license was withdrawn.

The defendant pleads and intends to adopt all the relevant portions of the statement of defence in proving the defendants counter claim.

The defendant pleads and will rely on all equitable rules and law in her favour in defence of this suit.

The respondent filed a Reply to the Statement of Defence and a defence to the Counter-claim as follows: –

Save and except as hereinafter expressly admitted the plaintiff joins issue with the defendant on all the averments contained in the defendant’s statement of defence and puts the defendant to their strictest proof.
The plaintiff denies paragraphs 2, 3, and 4 of the statement of defence, the plaintiff avers that the plaintiffs account with the defendant is not dormant at all.
In reaction to paragraph 2 and 4 of the statement

of defence, the plaintiff avers that the plaintiffs account with the defendant is not dormant at all.

In further answer, the plaintiff avers that assuming but not conceding that the account of the plaintiff, the defendant is the person that contributed to the account being dormant. In 2010, the plaintiff went to the defendant on several occasions to access plaintiff’s money in the custody of the defendant, the defendant refused to allow the plaintiff access into the plaintiffs account.
The defendant was not distressed at all. The statement of account issued by the defendant to the plaintiff shows that the time the defendant claimed to be distressed; the defendant was operating the plaintiffs account. Up till this moment the defendant is still transacting normal business. The issue of distress, NDIC and EFCC introduced by the defendant is a ploy to deceive the Honourable Court. The plaintiff presently is giving out loans to other customers. The defendant is urged to present before this Honourable Court its book of account.
In further answer the plaintiff avers that the defendant is responsible for all the assets and liabilities of the defendant and that the plaintiff did not contribute in any way towards the misfortune of the defendant, if any.
In further answer the plaintiff avers that the defendant is not run by any consulting firm at all. The purported consulting firm of LUKMAN CONSULTING FIRM is not a person known to the law and as such cannot collaborate with NDIC and EFCC or with any person at all.
In reaction to paragraph 3 of the statement of defence, the plaintiff vehemently denies the facts contained in paragraph3 (b), (c), (d), (e), (f), (g), (h), (i), (j) of the statement of defence. Those facts are not within the knowledge of the plaintiff. In further answer, the plaintiff avers that the defendanat has no intention to pay the plaintiff. The defendant had recovered all the loans. The defendant is urged to present before this Honourable Court its book of account to enable the Court to know the true position of the defendant.
The plaintiff denies paragraphs 7, 8, 9 and 10 of the statement of defence, and shall at the trial require the defendant to prove the allegations therein contained. In answer thereto, the plaintiff avers that the 21% interest claimed by the plaintiff has to do with breach of contract by the defendant and as such is not governed by the CBN guideline.
In further answer, the plaintiff avers that the defendant is under an obligation and duty to pay the plaintiff his deposit upon demand. The defendant has failed woefully on this onerous duty.
The plaintiff urges the Court to grant the prayers of the plaintiff as contained in the statement of claim.

DEFENCE TO COUNTER CLAIM

Save and except as hereinafter specifically admitted, the plaintiff denies each and every allegation of fact contained in the counter claim and puts the defendant/Counter claimant to the strictest proof of the averment therein contained.
The plaintiff shall rely on paragraphs 1-6 of the statement of the claim and paragraphs 1-11 of the reply to the statement of defence.
The plaintiff denies paragraphs 1-4 of the counter claim and put the defendant/counter claimant to their strictest proof.
WHEREOF the plaintiff says that the defendants counter claim is an afterthought, incompetent, speculative and urges the Court to dismiss same with heavy cost.

The dispute proceeded to hearing on the pleadings supported by oral and documentary evidence. At the close of the evidence the learned trial Judge held at page 116 lines 19 to page 117 lines 1-12 of the printed record as follows:-

“The real issue in this case is not whether the plaintiff is entitled to the sum of N817,428.54 (Eight hundred and Seventeen thousand, four hundred and Twenty-Eight naira, fifty-four kobo) standing to his credit in his account with the defendant. That is a fact admitted by the defendant. The issues for the Court decide is whether the defendant is entitled to insist that it will only pay the money in installments Secondly whether the plaintiff is entitled to interest on the money and at what rate

On the 1st issue, the defendant has not referred the Court to any law that entitled it to insist on paying the plaintiff in instalments. It is an admitted fact that the plaintiff is entitled to be paid his money on demand. The fact that the defendant does not have the money to pay does not absolve plaintiff is “dormant”, that is not a defence to a claim for the repayment of his money in this Court.”

On the issue of the interest claimed by the respondent against the appellant the learned trial Judge held at page 117 lines 13 to page 118 lines 1-3 of the printed record in the following manner: –

“On the issue of interest, the defendant has referred the Court to the case of Ohochukwu vs. A-G Rivers (2012) 49 (Pt.2) NSCQR 864 at 914. It submits that the Court does not grant litigants reliefs not asked for: I do not understand the relevance of that submission since the plaintiff specifically claimed for interest. The only issue is the rate of interest he is entitled to It is true that the plaintiff has not led evidence on how he arrived at the rate of 21% interest he claims. Equally he did not lead evidence as to the prevailing rate of interest charged by commercial banks. He is however entitled to request the Court to award him interest pursuant to Order 35 Rule 4 of the Rules of this Court. By the said rule of Court, this Court is empowered to award interest at the rate of 10% per annum upon any judgment.”

On the whole the learned trial Judge gave reasons why the claims of the respondent succeeded against the appellant at page 118 lines 4 to lines 15 of the printed record as follows: –

In the light of the foregoing, the plaintiffs case succeeds. Judgment is hereby entered in favour of the plaintiff in the sum of N817,428.54 (Eight Hundred and Seventeen Thousand, Four Hundred and Twenty-Eight Naira, Fifty-Four Kobo) being the plaintiff’s money in the custody of the defendant which said money the defendant has failed to pay the plaintiff despite repeated demands. There shall be interest on the judgment debt of N817,428.54 (Eight Hundred and Seventeen Thousand, Four Hundred and Twenty-Eight Naira, Fifty-Four Kobo) at the rate of 10% per annum from the 18th of November, 2014 until the final liquidation of the judgment debt.

Five (5) grounds of appeal accompany the Notice of Appeal filed by the appellant on 22nd June, 2016 followed by a brief of argument filed on 29th November, 2017 out of time but was on application deemed proper on 3rd October, 2017. This is in consonance with the provisions of Order 19 Rule 3(1)-5 of the Court of Appeal Rules, 2016 to wit: –

3(1) The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the Appellants view, the issues arising in the appeal as well as amended or additional grounds of appeal.

(2) Where possible or necessary, the reasons in the brief shall also be supported by particulars of the titles, dates and pages of cases reported in the Law Reports or elsewhere including the summary of the decisions in such cases, which the parties propose to rely upon. Where it is necessary, reference shall also be made to relevant statutory instruments, law books, and other legal journals.

(3) The parties shall assume that briefs will be read and considered in conjunction with the documents admitted in evidence as exhibits during the proceedings in the Court below, and, wherever necessary, reference shall also be made to all relevant documents or exhibits on which they propose to rely in argument.

(4) All briefs shall be concluded with a numbered summary of the points raise and the reasons upon which the argument is founded.

(5) Except to such extent as may be necessary to the development of the argument, briefs need not set out or summarize judgments of the lower Court, nor set out statutory provisions, nor contain an account of the proceedings below nor of the facts of the case.

The respondent filed a brief on 19th October, 2017. The learned Counsel representing the appellant and the respondent adopted their respective briefs of argument when the appeal was heard on 6th March, 2018. Order 19 Rule 4(1)-(2) of the Court of Appeal Rules, 2016 provides thus: –

4(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.

(2) The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis mutandis; also conform to Rule 3 (1), (2), (3), (4), (5) and (6) of this Order.

Where a respondent has not cross-appealed nor filed a respondent Notice my candid opinion is that it is the appellant who appealed that should distill issues for determination by the appellate Court. The duty of the respondent ought to be restricted in showing why the appeal, lacking in merit, ought to have been dismissed by the Court of Appeal. The appellant formulated the following issues for determination in the brief: –

Whether the trial Court had jurisdiction to order payment of 10% interest or any interest at all on the judgment debt of N746,061.86 in favour of the respondent, when the respondent has not proved at the trial, the interest he is allegedly entitled to nor prove any rate of the interest/percentage/prevailing rate of interest chargeable by the Commercial Banks.
Whether the Court below was right when he ordered that interest of 10% be paid/charged on the judgment sum of N746,061.86 from 18th November, 2014 when the respondent had not proved, challenged, debunked or contradicted the appellants evidence at the trial that his account with the appellant, is dormant during the periods in question and neither did the respondent at the trial proved that the appellant has money but it failed to pay the respondent.
Whether the learned trial Court below was right when he admitted and acted on Exhibit P1 ledger being a computer printout (e-document) without strictly complying with the mandatory conditions set out in Section 84 of the Evidence Act, 2011 (as amended) or is the Court below right in not considering such e-document in accordance with Section 84 of the Evidence Act, 2011 as amended.
Whether the judgment of the Court below is supportable by law and the totality of evidence adduced at the trial.

Not having cross-appealed or in the absence of a Respondents Notice that decision of the Court below should be verified on other grounds the respondent still formulated issues for determination in the brief at page 3 of the brief as follows: –

Whether the trial Court had jurisdiction to order payment of 10% interest or any interest at all on the judgment debt of N817,428.54 in favour of the respondent, when the respondent has not proved at the trial, the interest he is legally entitled to nor prove any rate of the interest/percentage/prevailing rate of interest chargeable by the commercial banks.
Whether the Court below was right when he ordered that interest of 10% be paid/charged on the judgment sum of N817,428.54 from 18th November, 2014 when the respondent had not proved, challenged, debunked or contradicted the appellants evidence at the trial that his account with the appellant is dormant during the periods in question and neither did the respondent at the trial prove that the appellant has money but it failed to pay the respondent.

I have examined the pleadings, the oral and documentary evidence and the argument of learned Counsel in their respective briefs in support of why this Court should interfere with the verdict of the lower Court or to dismiss the appeal. It is trite law that grounds of appeal or the issues formulated for determination, where they overlap, can be merged and considered together for brevity. See Apampa vs. The State (1982) 8 NWLR (Pt.309) 1 at 16.

The issues formulated by the appellant in the brief must arise from the grounds of appeal. Seeking vs. Oshobaja (2006) 12 NWLR (Pt.993) 60 at page 80 paragraphs D-E.

I do not need to embark on a detailed summary of the arguments of the learned counsel representing the parties. I shall be guided by the dictum of Lord UpJohn in Abudu Gbadamosi Ijale Vs. B.A. Shonibare Privy Council Judgments (1841-1973) by Olisa Chukura SAN, 1980 edition at page 947 where the Law Lord held at page 948 as follows:

There were many issues of fact before the trial Judge but only one relevant to this appeal, namely, an important issue as to the existence of a ledger or produce book alleged to belong to the appellant which the respondent said, would contain entries relating to the transaction and would establish his case. The appellant denied the existence of any such book and the trial Judge decided this issue in his favour. The Federal Supreme Court differed from the trial Judge fundamentally in holding that this ledger or produce book must be in existence. Therefore it followed, as the appellant had not produced it, that the inference must be drawn that its production would prove unfavourable to him. On this ground they allowed the appeal.

In these circumstances some review of the evidence by their Lordships is necessary but they propose only to review the pleadings and evidence relating to this question and in no wise to cover the many other matters which were in controversy before the trial Judge, but did not arise on the appeal before the Federal Supreme Court or JUSTICES .

The same posture was rekindled by Ejiwunmi JSC in Odutola Holdings Ltd. & Ors. Vs. Mr. Kunle Ladejobi & Ors. (2006) 5 SCNJ 63 at 79-80 to wit:

Against the reversal of this decision, the appellants have raised several issues which I have reiterated above already. But in my humble view, not all the issues raised are necessary for the determination of the appeal. This is because several of the issues raised by the appellants and which the Court below made pronouncements upon did not flow from the ruling given by the trial Court in respect of the application brought before it by the respondents.

After a careful perusal of the judgment of the Court below, the grounds of appeal filed against that decision and the subject matter of the application that led to the ruling of the trial Court, it is my respectful view that the only issue that are germane to this appeal are the 1st and 5th issues filed by the appellants. As the issues raised by the respondents are not dissimilar, they will be considered in the light of the arguments advanced in the consideration of the merits of the appeal.

I have decided to consider the issues that are relevant to the determination of this appeal which have arisen from the decision of the learned trial Judge that are capable of allowing or dismissing the appeal. This is because not every error, mistake or blunder committed by a learned trial Judge is capable of influencing the Court of Appeal to interfere with the decision of a learned trial Judge. See Adeogun Vs. Fashogbon (2011) 2 & 3 MJSC (pt. 2) 103 at 129-130; Ezeoke Vs. Nwagbo (1988) 1 NWLR (pt. 72) 616; Nwora Vs. Nwalusi (1962) 1 ALL NLR 681 and Udeze Vs. Chidebe (1990) NWLR (pt. 125) 141. An appeal is to be allowed on the issues raised by the appellant and successfully canvassed at the hearing of the appeal. See Chime Vs. Chime (1995) 6 NWLR (pt. 404) 734.

A perusal of the grounds of appeal will show that none has challenged the findings of fact by the learned trial Judge to the effect that there is no dispute as to the sums of money belonging to the respondent in his account with the appellant. The stamping, dating and signing of documentary evidence by the officers of the appellant showing the amount of money in the accounts of the appellant as a banker to the respondent is prima facie evidence that the appellant is in the custody of the moneys being demanded by the respondents, failure to honour the obligation being the cause of the dispute between the parties. See Aerofloat Vs. UBA (1986) 3 NWLR (pt. 27) 188; Ishola Vs. S.G. (Nig) Ltd. (1997) 2 SCNJ 1 at 23; Angyu Vs. Malami (1992) 9 NWLR (pt. 264) 242 at 252. The payment of interest and how much nor the circumstances that may arise before a customer or a bank demands or deducts interest and at what per centum per annum are questions of agreement between the customer and the bank, provable by documentary evidence. SeeJ.S.R. Co. Ltd. Vs. Bernestieli (Nig) Ltd. (1995) 8 NWLR (pt. 412) 201 at 208; Ekwunife Vs. Wayne (W.A.) Ltd. (1989) 5 NWLR (pt. 112) 422; UBN Ltd. Vs. Sax(1994) 8 NWLR (pt. 361) 150; UBN Ltd. Vs. Ozigi (1994) 3 NWLR (pt. 333) 385; Idakula Vs. Richards (2000) ALL FWLR (pt. 14) 2439 at 2450-2451 and UBN Vs. Sax (Nig) Ltd. (1994) 8 NWLR (pt. 361) 150. The fact that the appellants are a commercial outfit is not in dispute. The fact that payment of interest by the appellant to the respondent founded on the relationship of a banking business transaction to the respondent who is their customer is not a matter in dispute. The dispute is a commercial cause, which is a branch of commercial law as defined in Osborns Concise Law Dictionary, 9th edition pages 86 and 87 as follows:

Commercial Cause:- Causes arising out of the ordinary transactions of merchants and traders. See Commercial Law.

Commercial Law:- The law of business contracts, bankruptcy, patents, trade marks, designs, companies, partnership, export and import of merchandise, affreightment, insurance, banking, mercantile agency and usages.

There is no evidence that the respondents activities led to the mismanagement of the finances of the appellant, neither is the respondent a director or an officer of the appellant to be saddled with unreasonable hurdles placed in his way so as to delay or to hinder him from recovering the deposit in his account with the appellant. The issue is whether the respondent is entitled to the interests the learned trial Judge awarded the respondent in the circumstances of this appeal. Order 35 Rule 4 of the High Court (Civil Procedure) Rules 2006 of Anambra confers discretionary powers on a learned trial Judge, hearing a dispute of this nature, to, in his will, award interest to the successful party in the form of a penalty for failing or refusing to release a customer’s moneys or deposits in the custody of a customer as pleased by the respondent in paragraphs 1-6 of the statement of claim. The provision is couched as follows:

35(4) The Judge 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 Judge deems fit and may order interest at a rate not less than 10% per annum or at the prevailing interest rate for the time being chargeable by Commercial Banks on loans and overdrafts (whichever is higher) to be paid upon any judgment until the judgment debt is fully liquidated or settled.

The learned trial Judge had the unfettered discretion to stipulate the time for the appellant to comply with the decision of the learned trial Judge hence the provision of Order 35 Rule 5 of the Rules which provides as follows:

Every judgment or order made in any cause or matter requiring any person to do an act shall state the time or the time after service of the judgment or order, within which the act is to be done, there shall be indorsed on the judgment or order a memorandum by the Registrar in the following words, viz:

If you, the within-named A.B., neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the said judgment (or order) and same shall be served upon the person required to obey the judgment or order.

Let me consider the purpose of Order 35 Rules 4 and 5 of the Anambra State High Court (Civil Procedure) Rules, 2006 where the learned trial Judge ordered that a customers deposit should be repaid by the same appellant with interest. Order 35 Rules 4-7 of the High Court Civil Procedure Rules of Anambra State, 2006 were in operation when the respondent took out the writ of summons in the lower Court on 18th November, 2014. The final decision of the Court below was rendered on 4th May, 2016. What the learned trial Judge upon the hearing and conclusion of evidence and adoption of addresses was to advert to the provisions of Order 35 Rule 4-5 of the Rules (supra) provides as follows:

The Judge 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 Judge deems fit and may order interest at a rate not less than 10% per annum or at the prevailing interest rate for the time being chargeable by Commercial banks on loans and overdrafts (which ever is higher) to be paid upon any judgment until the judgment debt is fully liquidated or settled.
Every judgment or order made in any cause or matter requiring any person to do an act shall state the time or the time after service of the judgment or order, within which the act is to be done; there shall be indorsed on the judgment or order a memorandum by the Registrar in the following words, viz:

Judicial discretion is conferred or vested on the learned trial Judge that heard the dispute in determining the controversy to award interest to a party at a rate not less than 10% per annum to be paid upon any judgment at the time of making or rendering the decision or the learned trial Judge may make an order or at any time or afterwards and 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 point of time as the Judge deems fit See Order 35 Rule 4 of the Rules. The learned trial Judge exercised his judicial discretion to direct payment of the judgment sum or debt without specifying the date the payment was to commence. That is within his discretion to do, or a learned trial Judge may refrain from doing so.

The learned trial Judge again awarded interest at 10% per annum from the 18th November, 2014 until the final liquidation of the judgment debt. That is also permissible under the provisions of Order 35 Rule 4 of the Rules. Order 4 Rule 9(4)(a)-(b) of the Court of Appeal Rules, 2016 provides as follows:-

(4) In any case where the Court has power to order a new trial on the ground that damages awarded by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial:-

(a) Substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;

(b) Reduce or increase the sum awarded by the Court below by such amount as appears in the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded.

But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.

The provision for awarding interest under the High Court Rules of Enugu State, 2006 is Order 35 Rule 4 is a guide to a trial Judge to exercise his judicial discretion to award or deny a successful litigant. The appellant has not shown that the award made by the learned trial Judge in the form of interest are excessive or there is a miscarriage of justice. The Court of Appeal Rules, 2016 are made by the President of the Court of Appeal pursuant to Section 248 of the Constitution of the Federal Republic of Nigeria, 1999 as amended to wit:-

Subject to the provisions of any Act of the National Assembly, the president of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.

Section 122(1), (2)(a)-(b) and (m) of the Evidence Act, 2011 is couched as follows:-

(1) No fact of which the Court shall take judicial notice under this section needs to be proved.

(2) The Court shall take judicial notice of:-

(a) All laws or enactments and any subsidiary legislation made under them having the force of law now or previously in force in any part of Nigeria;

(b) All public Acts or Laws passed or to be passed by the National Assembly or a State House of Assembly, as, the case may be, and all subsidiary legislation made under them and all local and personal Acts or Laws directed by the National Assembly or a State House of Assembly to be judicially notice;

(m) The course of proceeding and all rules of practice in force in any Court established by or under the Constitution.

In Finnih vs. Imade (1992) 1 SCNJ 87, Babalakin, JSC held at page 102-103 as follows:-

The Court of Appeal in its judgment alluded to the provisions of the Boundary Dispute (Determination) Notice No. N.S.L.N. 72 of 1974 later re-enacted as Edict No.6 of 1977 Section 2(1) of which provides as follows:

(m) In the interest of peace and order, all allotment of plots erroneously made by the plot Allotment Committees for Wards 18H, 17H, and A1 before the date of commencement of this Edict and which have received the approval of his Highness, the Oba of Benin shall be deemed to have been validly made to those concerned.

This is inter-alia to show that the plaintiff/respondent was not throwing away his money when he re-bought the land in dispute for N2,400.00k from one Omoruyi who claimed the land and asserted that he derived his title from the Oba of Benin through Ward A because at one time the plot Allotment Committee Ward A asserted their right over the area where the land in dispute is situated. The other purpose of the Edict was to clear once and for all the confusion that has arisen about grants relating to Ward A and Ward 17.

The Court of Appeal referred to this edict after making a finding of fact that the plaintiff/respondent was in actual possession of the land in dispute at the material time of trespass complained of and was not a trespasser.

By this reference it cannot be construed to mean that the Court of Appeal was setting up for the plaintiff/respondent a case he did not make as submitted by Counsel for the defendant/appellant. It must be understood that the Court of Appeal is entitled to take judicial notice of this edict by virtue of Section 73 of the Evidence Act, and there was no need for Court of Appeal to call on both Counsel to address it before doing so. The answer to issue No.4 formulated by the defendant/appellant is YES.

Section 73(1)(a) of Evidence Act provides:

73(1) The Court shall take judicial notice of the following facts:

(a) All laws or enactments and any subsidiary legislation made thereunder having the force of law now or heretofore in force, or hereafter to be in force, in any part of Nigeria.

It is not necessary according to the Supreme Court to plead the Constitution, Acts of the National Assembly, Laws of State Houses of Assembly, Rules of Practice and Procedure of Courts of Justice nor call on the parties or learned Counsel to address the Court as the parties and the Judges are presumed to be aware of their provisions and are bound to take judicial notice of them in the determination of the civil rights and obligations of litigants in the course of dispensing justice and putting an end to disputes. See Benson vs. Ashiru (1967) NMLR 363 at 366 and Adetipe vs. Amodu (1969) 1 NMLR 62 at 67.

The appellant pleaded 2% interest she pays customers annually but which she admits has not been paid to the respondent. Generally speaking, the onus was on the respondent to prove the interest claimed and pleaded in paragraph 7(b) and (c) of the statement of claim as provided in Section 131 to 133 of the Evidence Act, 2011 to wit: –

131(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

133(1) In civil cases, the burden of first proving existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.

(2) If the party referred to, in Subsection (1) of this section adduces evidence which ought reasonably to satisfy the Court that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.

(3) Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.

But as expected, the appellant denied the interests claimed in paragraph 7(b) and (c) of the statement of claim in the statement of defence.

The learned trial Judge considered the respondents claims as proved and this entitled him to render a decision in his favour.

Learned Counsel cited a number of decisions of the Supreme Court and the Court of Appeal in support of the argument to buttress the case of the appellant. I shall allude to them in the course of this decision if they are relevant. Where the claimant seeks, pleads and proves that an opposing party is owing him some money and that assertion or claim or counter-claim is admitted or denied but a learned trial Judge finds from the evidence that the claim has been proved, the Court usually directs payment of the sum due but unpaid from the date the decision was rendered, or afterwards, or to direct the time for payment to be reckoned from the date of the decision or from some other point in time as the Judge may deem fit. See Order 35 Rule 4-5 of the Rules (supra).

Judicial power or discretion is conferred on the Judge to direct the payment of not less than 10% per annum to be paid upon any judgment under Order 35 Rule 4 of the Anambra State High Court Civil Procedure Rules, 2006 notwithstanding that the time for the payment of interest nor the interest rate were not pleaded or proved at the trial. Order 35 Rule 4-7 of the High Court Rules of Anambra State, 2006 is an exception to the general rule that no person is entitled to any remedy or relief not claimed in the statement of claim or a counter-claim as held in a plethora of decisions of the Supreme Court and the Court of Appeal such as Ekpenyong vs. Nyong (1975) 2 SC 71; Mangibo vs. Oguide (2009) 4 NMLR 357 at 362; Nigerian Housing Development Society vs Mumuni (1977) 2 SC 57 at 81 and Egri vs. Ukperi (1974) 1 NMLR 22.

The general rule has always been that no Court is a Father Christmas hence a person is not entitled to any remedy or relief not pleaded and proved at the hearing of the dispute. But in my humble opinion the general rule has an exception in Order 35 Rule 4 of the Anambra State High Court Rules, 2006.

The general prohibition against awarding what was not claimed by a party does not apply when a claimant seeks that the trial Court should order a party to pay a successful party at the trial some ascertained sums of his money in the custody of that other party which claim has been proved by oral or documentary evidence, for unduly or unnecessarily detaining, refusing or delaying to release or pay the claimants money for a period of time upon demand. Justice demands that the claimant should be entitled, not only to the judgment debt or sums proved, but in addition, to additional interest not less than 10% per annum to be paid upon any judgment as provided in Order 35 Rule 4 of the High Court Rules of Anambra State, 2006.

The learned authors of Black’s Law Dictionary (supra) defines payment as 1. Performance of an obligation by the delivery of money or some other valuable thing accepted in partial or full discharge of the obligation 2. The money or other valuable thing so delivered in satisfaction of an obligation. The phrase valuable consideration or value is defined by the learned authors of Black’s Law Dictionary (supra) at page 349 and 1690 as follows: –

Valuable Consideration ; Consideration that is valid under the law; consideration that either confers a pecuniarily measurable detriment on the other. Also termed good and valuable consideration; legal consideration. By a valuable consideration is meant something of value given or promised by one party in exchange for the promise of the other the thing thus given by way of consideration must be of some value. That is to say, it must be material to the interests of one or the other or both of the parties. It must either involve some gain or benefit to the promisor by way of recompense for the burden of his promise, or it must involve some loss or disadvantage to the promisee for which the benefit of the promise is a recompense. John Salmond, Jurisprudence, 360 (Glanville L. Williams, ed., 10th ed. 1947).

Value means 1. The significance, desirability, or utility of something. Social value the significance, desirability, or utility of something to the general public… This includes 2. The monetary worth or price of something; the amount of goods, services, or money that something commands in an exchange. In paragraph 459 page 335 to 336 of McGregor On Damages, 14th edition appears the following passage by the learned author on payment of interest on money misappropriated or without good reason is withheld by the other party as in this case. This may also include the detention of valuable property: –

Misappropriation: – Section 29 of the Civil Procedure Act, 1833, now replaced by the broader provisions of the 1934 Act, gave power to the jury to award interest in cases of trover and of trespass de bonis asportatis. This implies that interest could not be awarded at common law for the misappropriation of chattels, and there do not appear to be any cases of such a recovery at law. Therefore, interest would be awardable, in the Courts discretion, under the 1934 Act. However, it should be clear that if the plaintiffs were claiming as special damage the value of the use of the goods from the time of the conversion, he ought not to be given interest as well.

Whether such special damage could be successfully claimed has not been adjudicated upon, but where the claim was formerly in detinue, Strand Electric Co. vs. Brisford Entertainments (1952) 2 Q.B. 246 (C.A.) made it clear that the value of the use of the goods is recoverable. To such a head of recovery interest must surely be only alternative. On the other hand, where the misappropriation consisted of the infringement by the defendants of the plaintiffs patent and damages were awarded based on the royalties which the defendants would have had to pay had they taken a licence, interest was given under the 1934 Act on these damages in General Tire and Rubber Co. vs. Firestone Tyre and Rubber Co., because the plaintiffs were receiving the royalties later than they would have done had the defendants acted properly.

Paragraph 462 page 338 of McGregor On Damages (supra) has the following passage: –

Damage: – The cases in Admiralty also allow interest in the case of damage to ships. The Norseman is a modern illustration; the appropriateness of such an award was not even questioned. Much earlier, in The Hebe, Dr. Lushington held that in order to carry out restitutio in integrum interest must be awarded upon the cost of repairs from the date at which the bill for repairs had been paid by the plaintiff. From that date the plaintiff will have lost the use of the money paid for the repairs. Upon damages for loss of profits or upon demurrage there would only seem to be good reason to award interest from the date, before trial, at which those profits would have been paid to the plaintiff; not till that date has he lost the use of the money concerned.

Again, at common law no authority appears, and in its absence, it may be that the 1934 Act must be resorted to for the award of interest.

The passage at page 715 to 717 paragraphs 1042-1043 of McGregor On Damages (ante) also covers the situation of this appeal to wit:

Detinue took a plaintiff beyond the confines of conversion in two respects: it gives him a marginally larger right, and a substantially larger remedy. The right made its appearance wherever goods bailed were lost or destroyed through the negligence of the bailee: this was detinue but not conversion. The remedial difference, on the other hand, applied across the whole gamut of the overlap between conversion and detinue: conversion was no more than an action for damages, detinue was primary an action for the return of the goods. In General & Finance Facilities vs. Cooks Cars (Romford) Diplock, L.J. pointed out that an action in detinue today may result in a judgment in one of three different forms: (1) for the value of the chattel as assessed and damages for its detention; or (2) for return of the chattel or recovery of its value as assessed and damages for its detention; or (3) for return of the chattel and damages for its detention. The judgment was generally in the second form which gave the plaintiff the opportunity of deciding between enforcing specific restitution of the goods and claiming their value, and the third form of judgment was in fact unusual, depending upon the plaintiffs showing the importance to him of restoration in specie; the first form gave the same result as did conversion, and was appropriate where the chattel was an ordinary article of commerce. Where a defendant was required to redeliver the goods, the Court had a discretionary power to compel him to do so, a power which did not exist at common law despite the fact that detinue was brought primarily for the return of the goods, but was originally given by Section 78 of the Common Law Procedure Act of 1854 and continued by Order 45, Rule 4, of the present Rules of the Supreme Court. The fact that the action was primarily for the return of goods made for basic differences from the measure of damages in conversion even where the goods were not ordered to be returned. Thus, normal measure and consequential losses were different because damages for the detention of the goods were included within the former and not the latter, the time of assessing the value of the goods was different, and the effect of redelivery or proffered redelivery was different.

The Torts (Interference with Goods) Act, 1977, in abolishing detinue, is careful to ensure that what was formerly available to a plaintiff only in detinue shall now be available to him in conversion itself. In the first place, an action in conversion is to lie for loss or destruction of goods which a bailee has allowed to happen in breach of his duty to his bailor. In the second place, in proceedings for wrongful interference which includes both conversion of goods and trespass to goods against a person in possession or control of goods, relief, so far as appropriate, may be given in accordance with Section 3 of the Act. That section, by Subsection (2), provides that:-

The relief is:-

(a) An order for delivery of the goods, and for payment of any consequential damages; or

(b) An order for delivery of the goods, but giving the defendant the alternative of paying damages by reference to the value of the goods, together in either alternative with payment of any consequential damages, or

and further, by Subsection (3 ), that:-

Subject to rules of Court:-

(a) Relief shall be given under only one of the paragraphs (a), (b) and (c) of Subsection 2,

(b) Relief under Paragraph (a) of Subsection (2) is at the discretion of the Court, and the claimant may choose between the others.

The same range of possible judgments, which had applied formerly only to detinue, is thus opened up for conversion, and the power to order redelivery will come to be invoked in conversion rather than in detinue.

The damages, however, will now always fall to be assessed according to the methods appropriate to conversion and not, where different, to those appropriate to detinue.

The provisions of Order 35 Rule 4 of the High Court Civil Procedure Rules of Anambra State, 2006 is not restricted to a banker and customer relationship or to commercial transactions. The provision comes into play and may be invoked by a learned trial Judge as the justice of the case demands in any other transaction. This could be where money or property is involved. A claimant and the phrase claim of ownership, etc, are defined in Blacks Law Dictionary (supra) pages 282 and 283 as follows:-

Claimant:- One who asserts a right or demand, especially formally, especially, one who asserts a property interest in land, chattels, or tangible things.

Claim of Ownership 1. The possession of a piece of property with the intention of claiming it in hostility to the true owner 2. A party’s manifest intention to take over land, regardless of title or right. Also termed claim of right; claim of title.

A plaintiff and a defendant is defined in Order 1 Rule 2 of the High Court Civil Procedure Rules of Anambra State, 2006 as follows:-

Plaintiff shall include a claimant in a counter-claim.

Defendant shall include a defendant to a counter-claim.

The Court has to examine the reliefs or remedies being claimed and proved in order to decide whether to order interest under Order 35 Rule 4 of the High Court Rules of Anambra State, 2006 to the successful party or not. The learned trial Judge will have to take into consideration the conduct of the parties from the time they entered into the legal relationship and consider the factors that caused the breach to the institution of the suit and throughout the time of hearing and delivery of the decision of the Court, etc, to award interest or deny the successful party interest as the case may be. Paragraphs 471-475 pages 343-347 of McGregor On Damages appears the following passage:-

Section 3(1) of the 1934 Act, both in its initial form and as now extended by Subsection (1A), allows the Court to award interest as damages for any part of the period between the date when the cause of action arose and the date of judgment. That this is the maximum period for which interest awarded as damages may be given is consonant with general principle, and this period should also govern in any case in which interest might be awarded as damages apart from the Act.

(a) Time to which interest runs:- There can be no objection to awarding interest down to the date of judgment, since not only do damages for loss arising from a single cause of action cover all past loss but even in the exceptional case of a continuing cause of action damages are assessable by virtue of R.S.C., Order 37, Rule 6, as far as the date of judgment. On the other hand, in so far as interest awarded as damages represents compensation for being out of pocket in relation to losses already accrued there is no reason for it to continue after judgment, for the damages will have given the plaintiff the money value of those losses. This of course is on the assumption that the defendant pays the judgment debt forthwith, an assumption which the Court must make when awarding damages. If he does not, the plaintiffs recovery cannot be by way of damages. Instead he must rely on the provision of Section 17 of the Judgments Act, 1838 that every judgment debt shall carry interest from the time of entering up the judgment. This suffices to make the award of interest to a plaintiff continuous till the moment he is paid the compensation: the post-judgment part of the award is however not damages and is included here only for the sake of completeness.

(b) Time from which interest runs:- It is incontrovertible, in the first place, that interest cannot run for any period of time which is anterior to the accrual of the plaintiffs cause of action. In the second place, it would seem that in principle interest should commence to run from the moment the cause of action does accrue in respect of loss which also then accrues, and, in respect of loss which accrues at a later date falling before the date of judgment, then from such later date. Thus a plaintiff, suing for personal injury, should be entitled to interest on salary lost before judgment and medical expenses paid before judgment viz. his special damages as from the dates when the salary would have been paid to him and the medical expenses have been paid by him, and this was fully recognized by the Court of Appeal in Jefford vs. Gee. However, the Court there laid down in respect of the non-pecuniary loss of a plaintiff in a personal injury claim and of the pecuniary loss of a deceaseds dependents in a Fatal Accidents Act claim that, as a general rule, interest should be given on the award only from the date of service of the writ until the date of judgment, a solution which has now been undercut in Fatal Accidents Act claims by the decision in Cookson vs. Knowles to follow the pattern adopted for pecuniary loss in personal injury claims by giving interest from the death on the pre-trial loss and no interest at all on the post-trial loss but which, for the time being, still stands for non-pecuniary loss in personal injury claims. This solution of the Court stemmed from the principle, culled by Lord Denning, M.R. from his survey of the various strands of authority, that interest should only be awarded to a plaintiff for being kept out of money which ought to have been paid to him and that the defendant ought to have paid once the writ had been served. This however seems a very dubious principle since, if the defendant, as will frequently happen, considers that the claim against him should be contested, he cannot be blamed for not paying before the time that judgment is eventually entered against him. It is true that his obligation to pay then relates back, not however to the time that the writ was issued but to the time that the cause of action accrued. Lord Denning, M.R. pointed to Sir Robert Phillimores statement in The Northumbria that the Admiralty Courts held that interest was due when payment was not made ex mora as showing that there must have been a wrongful withholding by the defendant, but the fact remains that the Admiralty Courts allowed interest to run not from the date of the writ but from the date of the loss. The Court of Appeals solution would indeed appear to be an uneasy and unsatisfactory compromise between awarding no interest and awarding too much interest, a compromise dictated by the fact that awards for non-pecuniary loss in personal injury claims do not, and awards for loss of dependency in Fatal Accidents Act claims did not then, provide a breakdown between the past loss to judgment and the prospective loss thereafter. Indeed it was the decision that in future a breakdown in Fatal Accidents Act awards should be made that gave the opportunity to amend the rules on the awarding of interest in Fatal Accidents Act claims, and it was to be hoped, after what was said in the Court of Appeal in Cookson vs. Knowles (1977) Q.B. 913 (C.A.), that the solution of awarding no interest at all would be adopted for non-pecuniary loss in personal injury claims, in which event the present issue would disappear entirely from the scene. However, this hope has been scotched by the House of Lords refusal, in Pickett vs. British Rail Engineering (1978) 3 WLR 955 (H.L.) to adopt the no interest solution.

It should not however be forgotten that the period between cause of action and judgment for which interest is awarded lies in the discretion of the Court, and the Court may choose to award interest from a date later than that at which the plaintiffs loss accrued. This happened in General Tire and Rubber Co. vs. Firestone Tyre and Rubber Co. (1975) 1 WLR 819 (H.L.).

The complete specification for a patent was published in 1951 but the patent was not finally granted until 1963. Upon grant the plaintiff patentees became entitled to claim in respect of infringing use at any time after the publication of the specification and brought an action for damages against the defendants for infringing use over the period from 1958 onwards. The trial Judge awarded interest on the damages from the commencement of infringing use in 1958, was upheld by the Court of Appeal, but the House of Lords only allowed interest to run from the grant in 1963. Lord Wilberforce, in the leading speech, started by recognizing that justice, in principle, required that a wrongdoer who has failed to pay money he ought to have paid should pay interest over the period for which he has withheld the money, and continued:-

But other considerations may enter into it. In a commercial setting, it would be proper to take account of the manner in which and the time at which persons acting honestly and reasonably would pa. Correspondingly, account ought to be taken of any unreasonable or delaying or obstructive conduct of the debtor, for example, in a patent con, any delaying or factious opposition to a patent grant.

In the instant case he found no such conduct imputable to the defendants, while, on the other hand, he was satisfied that there was independent evidence that in normal commercial practice royalties in respect of use before grant were not expected to be paid until grant and that there was no evidence of interest being expected or paid for the period until grant.

There remains the question of the date from which interest will be awarded where for part or all of the time between the date when the cause of action arose and the date of judgment the defendant could not lawfully have paid money to the plaintiff because, for instance, the plaintiff was an alien enemy. In the Berwickshire, a case of tort which involved the sinking of a ship owned and manned by then alien enemies, it was held that the usual award of interest as damages from date of accrual of cause of action to date of judgment was not to be cut down because payment could not have been lawfully made until the plaintiffs ceased, almost four years after the commission of the tort, to be alien enemies. The true principle underlying the award of interest in Admiralty, said Lord Merriman P., is that in every pound’s worth of damages in respect of which interest is ultimately awarded, the interest has accrued potentially from the moment when the damage was suffered until the liability has been adjudged and the amount finally ascertained. It is submitted that this is not restricted to cases in Admiralty, and also that it applies to breach of contract as much as to tort. A doubt has been introduced in the case of contract because interest as damages for failure to pay a bill of exchange has been refused in two cases, Biedermann vs. Allhausen and Ledeboter vs. Hibbert, where at the time payment of the bill fell due it could not have been made because the rightful payee was then an alien enemy. These cases are fully considered later in connection with bills and notes, where it is submitted that, although correct, they are exceptional in that the act which would have constituted the breach of duty was the very thing which the defendant could not lawfully do, and that therefore no question of default or of damages could arise at all until payment once again became lawful.

A learned trial Judge that desires to invoke the provisions of Order 35 Rule 4 of the High Court Civil Procedure Rules of Anambra State, 2006 may take into consideration the spiraling inflation of the Naira and Kobo or the value of the property that is to be restituted to the successful claimant to determine what to be in the interest of justice under Order 35 Rule 4 of the Rules. This may be contrasted with the position in England at page 352 paragraph 480 of McGregor On Damages (ante) to wit:-

Rate on judgment:- For the sake of completeness the rate of interest to be awarded on judgment debts may be briefly dealt with. This was fixed at 4 per cent by Section 17 of the Judgments Act, 1838. In the late 1960s this could no longer be regarded as a realistic rate, and the Courts very rightly rejected any argument that it should be taken as an appropriate yardstick for determining the rate of interest to be awarded on damages themselves. However, Section 17 was finally amended so as to substitute for the 4 per cent rate a 7 and half per cent rate to be awarded on judgment debts entered up on or after April 20, 1971, and has now been further amended to substitute for the 7 and half per cent rate a 10 per cent rate to be awarded on judgment debts entered up on or after March 1, 1977, bringing it into line with the rate on short term investment account used for interest on damages in cases of personal injury and wrongful death.

The word and is sandwiched between ordering payment of the judgment debt and awarding not less than 10 per cent interest per annum to be paid upon any judgment in Order 35 Rule 4 of the Rules. In Maxwell on the Interpretation of Statutes by P. St. J. Langan, 12th edition, page 232-233 the learned author wrote that:-

Two instances of substitution are particularly important; they concern the conjunctions and and or, and the verbs may and must. And and or.

In ordinary usage, and is conjunctive and or disjunctive. But to carry out the intention of the legislature it may be necessary to read and in place of the conjunction or, and vice versa.

The reliefs claimed by a successful party may be the restitution of money or any other valuable thing or property to be delivered to the claimant by the defendant to the judgment debtor in satisfaction of an obligation. The delivery of the money or whatever valuable property once proved, the learned Judge has the discretion to direct payment of interest in accordance with the provisions of Order 35 Rule 4 of the High Court Civil Procedure Rules of Anambra State, 2006 even where the interest pleaded and claimed were not proved by the claimant or counter-claimant.

A Micro Finance Bank such as the appellant is a profit and loss sharing bank. This terminology is defined in Section 61 of the Banks and Other Financial Institutions Act, No.25 of 1991to mean a bank which transacts investment or commercial banking business and maintains profit and loss sharing account. The fact that the appellant has held tenaciously to the respondents deposit and would not release same on demand unless directed by the Court below, and which the learned trial Judge did after a hearing entitled the respondent to interest ex debit justitiae by virtue of the provisions of Order 35 Rules 4-7 of the High Court Civil Procedure Rules of Anambra State, 2006. I hold that a learned trial Judge may direct the release of a definite sum of money, namely, a judgment-debt and valuable property and further direct the party that lost to pay not less than 10% interest per annum to be paid upon any judgment as provided under Order 35 Rule 4 of the High Court Rules of Anambra State, 2006. Writes the learned author of Maxwell On the Interpretation of Statutes (supra) at pages 31-32:

the term payment in Section 7 of the Exchange Control Act, 1947 is not limited to payments made in pursuance of an obligation. Similarly, a reference in the Matrimonial Causes Act, 1950 to the Court being satisfied was held by the House of Lords in Blyth vs. Blyth to mean precisely what it said, and not to require the Court to be satisfied beyond reasonable doubt.

By Article 2 of Schedule 2 to the Hire-Purchase and Credit-Sale Agreements (Control) Order, 1960, dealing with the actual payment to be made before an agreement was entered into, in computing for the purposes of this paragraph the total amount to be paid before any agreement is entered into account may be taken of any allowance for any goods taken in part exchange for any goods comprised in that agreement. In Northgran Finance vs. Ashley, the Court of Appeal held that these words covered goods of which the hirer was in possession under an existing hire-purchase agreement, and which were exchanged in part payment for the goods under the new agreement: it would be too narrow a construction to restrict it to goods actually owned by the hirer.

See Shaw vs. Shaw (1965) 1 WLR 537 and Northgran Finance vs. Ashley (1963) 1 Q.B. 476.

Indigenes of Ebonyi, Enugu and Anambra States are commerce-oriented workers, businessmen and women or in short, traders in various kinds of goods. They deposit their hard earnings with commercial or non-commercial banks including Micro Finance Institutions such as the appellant. The people participate in all manner of commercial ventures for profit making. Time is money. Money and property are essential to sustain the economy and improve the livelihood of the indigenes of these three States. The moneys or valuable properties of any indigene that transacts business with a bank or other citizens should not be held in ransom to deprive a customer or supplier of goods and services from carrying on business for profit. Doing so will bring indigenes or citizens and commercial or financial institutions to a stand still. Business will collapse; relationships will be bitter and soar. Bitterness will take over society. Economic comatose will engulf these States and indeed Nigeria in general. This geographical region will become an abattoir as business may cease or ground to a halt. That will not auger well for the well-being of society.

In commercial or non-commercial relations or transactions one of the parties may be in the custody of various sums of money that ought to have been paid or released timeously to its rightful holders, claimant or owner. That may notwithstanding demand or series of demands, the party in custody of the money may refuse, neglect or delay in doing so to the annoyance or detriment of the owner, in this case, the customer until directed by a Court of Justice. In that case, I am of the opinion that the learned trial Judge, seised with the jurisdiction to determine the dispute or controversy, was right to have invoked the provisions of Order 35 Rule 4 of the High Court Civil Procedure Rules of Anambra State, 2006 to order the appellant to refund the respondents deposit in his account followed by payment of interest as provided in Order 35 Rule 4 of the Rules (supra) and also under the phrase Any further order or orders as the Court may deem fit to make in the circumstances usually inserted by an applicant in a motion or Notice and Grounds of Appeal. In Laibru Ltd. vs. Building & Civil Engineering Contractors (1962) 1 All NLR (Pt.1) 385 the appellants Notice of Appeal complained that the learned trial Judge erred to have refused an oral application to join Mr. Ibru as co-plaintiff and later, that he be substituted as a plaintiff under Order 16 Rule 2 of the English Supreme Court Rules and Section 12 of the Lagos High Court Ordinance when it was discovered in the course of hearing, that not all the proper parties were before the Court. The defence Counsel objected on the grounds that the Local order on joinder of parties in an on-going proceeding had no such provision hence could not be supplemented from the English Rules. The learned trial Judge left the issue that he will decide same afterwards. The learned trial Judge proceeded with the trial and eventually dismissed the plaintiffs claim only because he did not substitute Mr. Ibru as the plaintiff. One of the reliefs claimed in the Notice of Appeal was founded on the phrase, Any further order or other orders as the Court may deem fit to make in the circumstances. The respondent did not give notice they would be supporting the decision on any other ground. Bairamian, F.J., having listened to the argument of learned Counsel representing the parties held at pages 391 to 392 as follows:-

It is true that the applicants there argued, in part, that it was a case of mere misnomer; the learned Judge thought not; his reason for declining to amend was that it would divest the respondents of a right in favour of which time had run. Misnomer is one instance; there are others; the rule, namely Rule 2 in Order 16 of the English Rules is not confined to misnomers. What is more, if a case comes within the rule, there is no difference in principle between adding and substituting a plaintiff, for it mentions both.

In regard to addition, it is objected that it is not asked for in the notice of appeal; also that it is not known whether Laibrus assets and liabilities had been properly transferred to the company. The transfer was proved by Mr. Ibru in his evidence. The notice of appeal could be amended, but addition can be made under paragraph 3 of the notice, which prays for further or other orders which the Court may deem fit. Adding Ibru does not harm: the only legitimate interest of the defendants is to ensure that they shall not be asked to pay twice.

But for their objection to Ibru being substituted, he would presumably have been substituted as the plaintiff in the course of his evidence, and consequential orders on pleadings could then have been made with ease, which implies me to observe that applications to change the parties should be decided forthwith. Now it is rather late for amending the pleadings, if amendment should be necessary. Whether it is, and what it should be, has not been discussed.

On the other hand, the addition of Michael Ibru as a co-plaintiff does not involve any amendment of pleadings, but only that he should have an opportunity of saying whether he would like to have an indemnity against costs from the company, and anything else he might wish to say. He should have been given notice of the appeal, as the company was asking for him to be substituted as the plaintiff or for any other order which might seem fit. We thought that, as there was no ground of substance for sending the case back for a fresh trial merely because of the mistake of not making him plaintiff in the course of the companys evidence at the hearing in the Court below, this was a proper case for making use of the provision which enables our Courts to direct notice to be given to a person who should have been given notice of the appeal.

In El-Khalil vs. Oredein (1985) 3 NWLR (Pt.12) 371 Ogundare, JCA (as he then was) set out the facts at page 374 paragraphs B-G as follows:-

The applicants now before us are 1st and 2nd defendants in the suit instituted by the present respondent in the High Court of Ibadan Judicial Division wherein the plaintiff claimed various reliefs, one of which was a declaration that by reason of the failure of the 2nd defendants company to perform or observe certain clauses of the contract of lease existing between him and the said company, the respondent had become entitled to re-enter forthwith upon the demised premises. Evidence was led on both sides and in a reserved judgment, the learned trial Judge found that there was a lease granted in favour of the company by the respondent and that the company breached a clause in the lease to the effect that it could not sub-let without the consent of the lessor, that is, the present respondent. In consequence of this finding, the learned trial Judge determined the lease and granted the respondent who was plaintiff before him, a right of immediate re-entry upon the demised premises. The learned trial Judge also found and this was not disputed by the 1st and 2nd defendants that the 2nd defendant was in arrears of rent to the tune of N13,000.00. After deducting the amount said to have been paid into Court by the two defendants the arrears of rent outstanding at the time of this application, stood, according to the applicants at N7,800 but according to the respondent, at N19,100. A sum of N1,300 was in dispute between the parties.

The two defendants against whom judgment was entered, appealed to this Court and brought an application in the High Court for a stay pending appeal of the order of that Court granting the respondent the right of immediate re-entry. They also prayed the High Court for leave to pay the judgment debt, that is, the arrears of rent by monthly instalments. The High Court refused both applications and in consequence the two defendants have now applied to this Court for an order of stay of execution and instalmental payment of the judgment of the High Court, Ibadan delivered on 7th day of June, 1985, pending the final determination of this appeal.

His Lordship held at pages 379 to 380 as follows:

This notwithstanding, I am satisfied on the facts deposed to in the affidavits and the judgment that the applicants would suffer greater hardship than the respondent if stay was refused. If stay were granted the respondent would suffer nothing as he will continue to receive from the applicants the rent stipulated in the lease.

According to one of the conditions of the lease the applicants had improved the premises at great cost to themselves. The lease still has over twenty years to run. Judging from the speed with which the respondent had started moving into the premises it is not unlikely that if stay is refused, he might let it (or part of it) out to a third party before the appeal is determined thus complicating issues more were the appeal to succeed. Mr. Sobayo had argued that if the appeal to succeed, the respondent could be damnified in damages. This would mean putting the burden on the applicants to take another action which might be protracted for years to come. I think that it is not fair and just to saddle them with such a burden in the event of their appeal succeeding.

For the reasons, therefore, that:-

(a) The grounds of appeal raise substantial points of law and

(b) That the applicants would suffer greater hardship than the respondent.

I am satisfied that the applicants have shown special circumstances and that stay ought to be granted in this case. Consequently, I hereby order:-

(1) That the right of re-entry upon the demised premises granted by the High Court of Ibadan Judicial Division on 7th June, 1985 in favour of the respondent be stayed pending the determination of the appeal lodged by the applicants to this Court against the judgment of the said High Court.

That the writ of execution, if any, issued to enforce the said right of re-entry is hereby set aside.

(3) That the present applicants be restored into possession of the demised premises forthwith and this order is to be carried out by the respondent or anybody either in actual possession of the said premises or who is in control of such possession.

For the avoidance of doubt the applicants shall continue to pay to the respondent the rent reserved and in the manner so stated in the lease. Orders (2) and (3) have not been specifically asked for but are made by me ex debito justitiae in the light of the facts before us and under the general prayer AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.

In Akapo vs. Hakeem-Habeeb (1992) 7 SCNJ (Pt.1) 119, Karibi-Whyte, JSC held a contrary opinion based on the peculiar facts of that case at pages 145-148 as follows:-

I now turn to the Order of the learned Judge that the rents collected be paid into the High Court of Lagos State. Learned Counsel to the appellant has submitted that this order was not one of the claims made by the plaintiff neither could it be brought within its scope.

He submitted, relying on the authority of Ekpenyong vs. Nyong (1975) 2 SC 71 that Courts should not grant reliefs not sought by the parties. Learned Counsel to the appellants argued that respondents did not seek an order legalizing or approving what they had done. Appellant had been collecting the rents and disbursing it in accordance with the provisions of the Family Constitution; this is no longer possible. Neither of the parties sought for this Order which should never have been made. The Court below ought not have upheld it. The respondents supporting the order made contended that the Court has an inherent power to make the order even if not sought as long as it was incidental to the prayers sought. Respondents relied on the provisions of Section 14 of the High Court Law, Cap.52, Laws of Lagos State, 1973, and Iyaji vs. Eyigebe (1987) 3 NWLR (Pt.61) 523; Atolagbe vs. Shorun (1985) 1 NWLR (Pt.2) 360 and Mustafa vs. Monguno Local Government (1987) 3 NWLR (Pt.62) 671.

The decisions of this Court on the proposition that the Court can only grant reliefs sought or incidental thereto is well-established. Ochonma vs. Ashirim Unosi (1965) NMLR 321.

The Court has no jurisdiction to consider a relief not claimed by either parties and therefore cannot make any valid order in respect of such relief. Any order so made will infringe the basic and fundamental principles of our administration of justice, namely, notice to the other party and hearing the party to be affected.

The relief claimed by the appellant in this action was for the respondents to accounts fro all rents collected from the Ojora Chieftaincy Family properties from April 7, 1985, to date and payment over to the plaintiff family Council. In the application for interlocutory injunction, appellant/applicant sought for an order restraining the respondents, their agents and servants from continuing to collect rents from and in other manner interfering with the control and management of any of the Ojora Chieftaincy properties by running the Ojora Offices situate at 14 Bale Street, Ajegunle, 101, Ojo Road, Amukoko, Gaskiya and Alafia, pending the final determination of the substantive action, and for such order or orders as the Honourable Court may deem fit to make in the circumstances.

The learned Judge refused the application. He however, went on to hold that justice of the present application demands that rents collected from the properties of the Ojora Chieftaincy Family should be preserved pending the final determination of the substantive action.

He then went on to make the order appealed against as follows:-

Accordingly, it is ordered that rents, premiums and any other money collected by the defendants from the properties of the Ojora Chieftaincy family, after deducting administrative costs, rates and other levies, shall be paid and deposited at the High Court Registry in Lagos with effect from the month of August, 1986 pending the final determination of the substantive action in this suit

This is the order said to be incidental to the application refused.

Learned Counsel to the 1st set of respondents submitted and I agree entirely with him that the High Court has inherent powers to make order even if not sought, where such orders are incidental to the prayers sought. This follows upon the construction of the expression and any such other order or orders, as this honourable Court may deem fit to make.

Now the word incidental is defined as a thing appertaining to or following another See Osborn The Concise Law Dictionary, 4th edition, page 170. Again, Blacks Law Dictionary, 6th edition, page 762 defines incidental as Depending upon or appertaining to something else as primary. The word was also similarly defined in Bell Houses vs. City Wall Properties Ltd. (1985) 3 All E.R. 427, with respect to the objects clauses of a companys memorandum of association.

Thus a thing is incidental if it follows naturally, appertaining to or as a matter of course from the primary matter or depends upon the principal matter. For the order made to be incidental to the order sought, such order made should be dependent on the order sought as its primary or principal. This is not the situation in the order before us. The order sought having been refused, there is no primary or principal order to which the order made would be incidental to. The order made can, in my considered opinion, only come within the general powers of the Court to make any such other order or orders as the Court may deem fit. The phrase contemplates that the ancillary order is predicated upon the granting of the principal order sought. Hence where the principal order sought is refused, the order made cannot come within the scope of the exercise of the power of the Court.

The order sought by the appellant was to restrain the respondents, their agents and servants from continuing to collect rent from and in any other manner interfering with the control and management of any of the Ojora Chieftaincy properties. The effect of the order made was a complete negation of the order sought. The respondents were not restrained as sought. The order can therefore not come within the general powers to make any other orders as the Court may deem fit.

The Court of Appeal at page 98 affirmed the order because in its opinion, The order for the respondent to account for what was in their hands is in my view a proper order that follows in the circumstances of this case. This is clearly not the order of the learned Judge. The order was, as I have already said, an enabling one allowing the respondents to continue to collect the rents, instead of restraining them, and a positive order directing them to pay the rents so collected to the High Court. Neither of these orders is incidental to any of the prayers sought, and neither of the parties sought for the order. It can therefore not be allowed to stand. The Court of Appeal was wrong to have affirmed it.

I have come to the conclusion for the reasons I have given in this judgment that the appeal must be allowed. The judgment of the Court of Appeal delivered on the 13th February, 1989 affirming the judgment of Agoro, J., is hereby set aside.

The respondents, their agents and servants are hereby restrained from continuing to collect rents from and in any other manner interfering with the control and management of any of the Ojora Chieftaincy properties by running the Ojora Offices situate at 14 Bale Street, Ajegunle, 101 Ojo Road, Amukoko, Gaskiya and Alafia pending the determination of the substantive suit.

Respondents shall give an account to the plaintiffs of the rents so collected and all dealing and transactions with respect to the Ojora Chieftaincy Family Property from the 7th April, 1985 till the date of this judgment.

See also First African Trust Bank Ltd. vs. Ezegbu (1993) 6 SCNJ (Pt.1) 122 where the Supreme Court granted relief under the omnibus ground and gave reasons at page 126.

Order 1 Rule 1(3)-(4) of the 2006 Rules (supra) further provides thus:

(3) These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such causes and matters.

(4) Application of these Rules shall be directed towards the achievement of a just efficient and speedy dispensation of justice.

Justice may be defined as: 1. Treatment of people that is fair and morally right The fact that something is reasonable and fair A fair result or punishment from a law Court See Macmillan English Dictionary for Advanced Learners, 2nd edition, page 820.

Justice also means, fairness in the way people are treated the quality of being right and deserving fair treatment. See Longman Dictionary of Contemporary English, 2007 edition, page 879. What is just is right or acceptable according to particular moral principles, such as respect for all human beings. See Collins CoBuild Advanced Learners English Dictionary, 2006 edition, page 784.

Order 35 Rule 4 of the High Court Civil Procedure Rules of Anambra State, 2006 is needful in the relationship between a bank and her customer where the bank withholds the customers deposits and interest on demand contrary to their agreement and is among the system of laws in a country which Judges punishes people who detains or without just cause, withholds or delays in repaying or returning valuable property in their custody to a successful claimant until directed by a Court of justice. The respondent pleaded in paragraph 3 of the statement of claim when he started as a customer of the appellant by opening an account on 30th June, 2011. The respondent further pleaded correspondences between him and the appellants officials beginning from 22nd May, 2013 yet the appellant would not honour its obligations until unavoidable circumstances compelled the respondent to institute this suit on 18th November, 2014 but got a decision in his favour only on 4th May, 2016. Meanwhile the respondents deposits have been in the custody of the appellant till the day the learned trial Judge rendered his decision. Paragraph 3(i) of the appellants statement of Defence is to the effect that (i) The defendant contends that the situation of the bank is such that even if judgment is granted the plaintiff, the obsolete assets of the defendant cannot even pay ten out of thousands of depositors; which is largely why the bank has not been formally liquidated. This is evidence of outright defiance by the appellant not to honour the decision of the learned trial Judge and perhaps that of the Court of Appeal if this appeal is dismissed.

Section 5(1)-(2) and 34-37 and 45-47 and 50 and 52 of the Banks and Other Financial Institutions Act No.25 of 1991 provides as follows:-

5(1) The Bank may vary or revoke any condition subject to which a licence was granted or may impose fresh or additional conditions to the grant of a licence.

(2) Where the grant of a licence is subject to conditions, the bank shall comply with those conditions to the satisfaction of the Bank within such period as the Bank may deem appropriate in the circumstances.

34(1) Notwithstanding the powers of the Bank specified in this Act, as amended, the Bank shall have power, from time to time, to examine the books and affairs of:-

(a) The Nigerian Industrial Development Bank;

(b) The Nigerian Agricultural and Co-operative Bank;

(d) The Nigerian Bank for Commerce and Industry;

(e) The Urban Development Bank;

(f) The Federal Mortgage Bank of Nigeria and all primary mortgage institutions;

(g) Community Bank;

(h) Peoples Bank of Nigeria;

(i) Bureaux de Change;

(j) Discount houses;

and such other financial institutions and specialized banks as may be specified, from time to time, by the Bank.

(2) The period reports and findings of the Bank in relation to the other financial institutions and specialized banks together with the recommendations of the Bank shall, in specific cases, be forwarded to the appropriate Minister for necessary action.

(3) For the purposes of implementation of this section of this Act, the other financial institutions and specialized banks shall be treated in the same manner as other banks with respect to the requirements of Section 24 of this Act.

35(1) Where a bank informs the Bank that:-

(a) It is likely to become unable to meet its obligations under this Act; or

(b) It is about to suspend payment to any extent; or

(d) Where, after an examination under Section 33 of this Act or otherwise however, the Bank is satisfied that the bank is in a grave situation as regards the matters referred to in Section 33(1) of this Act,

the Governor may by order in writing exercise any one or more of the powers specified in Subsection (2) of this section.

(2) The Governor may by order in writing under subsection (1) of this section:-

(a) Prohibit the bank from extending any further Credit facility for such period as may be set out in the order, and make the prohibition subject to such exceptions, and impose such conditions in relation to the exceptions as may be set out in the order, and from time to time, by further order similarly made, extend the aforesaid period.

(b) Require the bank to take any steps or any action or to do or not to do any act or thing whatsoever, in relation to the bank or its business or its directors or officers which the Bank may consider necessary and which is set out in the order, within such times as may be stipulated therein;

(c) Remove for reasons to be recorded in writing with effect from such date as may be set out in the order, any manager or officer of the bank, notwithstanding anything in any written law, or any limitations contained in the memorandum and articles of association of the bank;

(d) In respect of a bank, notwithstanding anything in any written law or any limitations contained in the memorandum and articles of association of the bank, and in particular, notwithstanding any limitation therein as to the minimum or maximum number of directors, for reasons to be recorded in writing:-

(i) Remove from office, with effect from such date as may be set out in the order, any director of the bank; or

(ii) Appoint any person or persons as a director or directors of the bank, and provide in the order for the person or persons so appointed to be paid by the bank such remuneration as may be set out in the order;

(e) Appoint any person to advise the bank in relation to the proper conduct of its business, and provide in the order for the person so appointed to be paid by the bank such remuneration as may be set out in the order.

If after taking such of the steps stipulated in Section 35 of this Act or such other measures as in the opinion of the Bank may be appropriate in the circumstance, the state of affairs of the bank concerned does not improve, the Bank may turn over the control and management of such bank to the Nigeria Deposit Insurance Corporation (hereinafter in this Act referred to as the Corporation) on such terms and conditions as the Bank may stipulate from time to time.
Where the Corporation has assumed control over a bank as provided under Section 36 of this Act and such bank is significantly under-capitalized to the extent that its risk weighted assets ratio is below five per cent but above two per cent, the Corporation may:-

(a) Require the bank to submit a recapitalization plan acceptable to the Corporation within a stipulated period; or

(b) Prohibit the bank from extending any further credit and incurring any additional capital expenditure without the approval of the Corporation; or

(c) Notwithstanding the provisions of Section 7 of this Act, require the bank to take such steps or to do or not to do any act or thing whatsoever in relation to the business of the bank or its directors or officers, which the Corporation may consider necessary within such time as the Corporation may stipulate; or

(d) With the approval of the Bank remove, for reasons to be recorded in writing and with effect from any date as may be specified, any director, manager, officer or employee of the bank; or

(e) Appoint, with the approval of the Bank, any person or persons as a director or directors of the bank and cause their remuneration to be provided by the Bank.

45(1) If the President is satisfied that any trade union, the members of which are employed in a bank, has been engaged in acts calculated to disrupt the economy of Nigeria, he may by order published in the Gazette proscribe that union (hereafter in this section referred to as a proscribed union) which shall, as from the date of the order, cease to exist.

(2) A proscribed union shall, not later than fourteen days from the date of the order under Subsection (1) of this section, surrender its certificate of registration to the Registrar who shall take such steps in relation to the distribution of the assets of the union as he deems necessary or in accordance with the registered rules of the union.

(3) No person who immediately before the date of an order under this section was an officer of a proscribed union shall at any time after that date be an officer of any trade union, any of the members of which are employed by a bank.

(4) If the certificate of registration of a proscribed union is not delivered to the Registrar as required under Subsection (2) of this section, every person who immediately before the proscription of the union was an officer thereof is guilty of an offence and liable on conviction to a fine of N5,000 or to imprisonment for six months or to both such fine and imprisonment.

(5) Any person who contravenes Subsection (3) of this section is guilty of an offence and liable on conviction to imprisonment for a term of five years without an option of a fine.

(6) In this section officer in relation to a union, means any person holding official position in that trade union and, accordingly, includes in particular, any president, secretary or treasurer thereof and every member of the committee of management however described;

Registrar means the Registrar of Trade Unions appointed under Section 46 of the Trade Unions Act.

46(1) No bank shall incur any liability to any of its customers by reason only of failure on the part of the bank to open for business during a strike.

(2) If as a result of a strike, a bank fails to open for business, the bank shall, within 24 hours of the beginning of the closure, obtain the approval of the Bank for any continued closure of the ban.

47(1) Any director, manager, officer or employee of a bank or any other person receiving remuneration from the bank, who ask for, receives, consents or agrees to receive any gift, commission, employment, service, gratuity, money, property or thing of value for his own personal benefit or advantage or for that of any of his relations, from any person:-

(a) For procuring or endeavouring to procure for any person any advances, loans or credit facility from the bank;

(b) For the purpose or discount of any draft, note, cheque, bill of exchange or other obligation by that bank; or

(c) For permitting any person to overdraw any account with that bank without proper authority or compliance with rules and guidelines for that purpose,

is guilty of an offence and liable on conviction to pay to the Bank a fine of N50,000 or imprisonment for a term of five years or to both such fine and imprisonment and in addition any such gift or any other commission shall be forfeited to the Federal Government.

(2) The provisions ofSubsection (1) of this section shall not in any manner derogate from, and shall be without prejudice to any other written law relating to corruption or illegal gratification.

Any person, being a director or manager of a bank, who fails to:-

(a) Take all reasonable steps to secure compliance by the bank with the requirements of this Act; or

(b) Take all reasonable steps to secure the correctness of any statement submitted under the provisions of this Act, is guilty of an offence and liable on conviction to a fine not exceeding N50,000 or to imprisonment for a term of three years or to both such fine and imprisonment.

Any bank which contravenes or fails to comply with any of the provisions of this Act or any regulations made thereunder for which an offence or penalty is not expressly provided is guilty of an offence and liable on conviction to a fine not exceeding N50,000.00.

Section 287(1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides as follows:-

287(1) The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Supreme Court.

(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by Courts with subordinate jurisdiction to that of the Court of Appeal.

(3) The decisions of the Federal High Court, a High Court and of all other Courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other Courts of law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other Courts, respectively.

The decision I am rendering in this appeal shall replace the decision of the learned trial Judge and may be enforced by the provisions of Order 20 Rule 5-9 of the Court of Appeal Rules, 2016 to wit:-

Any judgment given by the Court may be enforced by the Court or by the Court below or by any other Court, which has been seised of the matter, as the Court may direct.
When the Court directs any judgment to be enforced by another Court, a certificate under the seal of the Court and the hand of the Presiding Justice setting forth the judgment shall be transmitted by the Registrar to such other Court, and the latter shall enforce such judgment in terms of the certificate.
Where the costs of an appeal are allowed, they may either be fixed by the Court at the time when the judgment is given or may be ordered to be taxed.

8(1) The Registrar at the final determination of an appeal shall notify in such manner as he thinks most convenient to the registrar of the Court below, the decision of the Court in relation thereto, and also any orders or directions made or given by the Court in relation to such appeal or any matter connected therewith.

(2) The Registrar of the Court below shall on receiving the notification referred to in this Rule, enter the particulars thereof on the records of such Court.

Upon the final determination of an appeal for the purposes of which the Registrar has obtained, from the Registrar of the Court below any original depositions, exhibits, information, inquisition, plea or other documents usually kept by the said Registrar, or forming part of the record of the Court below, the Registrar, shall, where practicable, cause the same to be returned to the Registrar of the Court below.

InChief Bola Ige vs. Dr. Victor Olunloyo (1984) 1 SCNLR 158, Aniagolu, JSC held at page 178 as follows:

I agree with the view expressed that the judgment of an Appeal Court, allowing an appeal, has the effect of substituting the Appeal Court judgment for the judgment of the Court below set aside, making the decision appealed against disappear altogether.

See also Oyefeso vs. Tola (1968) NMLR 317 and Nwikele vs. Osele of Onicha (1956) WRNLR 87 at 91.

Section 251(1)-(2) of the Evidence Act, 2011 provides as follows:-

251(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

(2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the Court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same.

The powers of the Court of Appeal before which a controversy or a dispute for hearing and determination to interfere with the decision of a learned trial

Judge is circumscribed under Order 4 Rule 9(1)-(4) of the Court of Appeal Rules, 2016 in the following manner:

9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such Order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.

(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.

(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question, and it if appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.

(4) In any case where the Court has power to order a new trial on the ground that damages awarded

100

by the Court below are excessive or inadequate, the Court may in lieu of ordering a new trial

a) substitute for the sum awarded by the Court below such sum as appears to the Court to be proper;
b) reduce or increase the sum awarded by the Court below by such amount as appears to the Court to be proper in respect of any distinct head of damages erroneously included or excluded from the sum so awarded. But except as aforesaid, the Court shall not have power to reduce or increase the damages awarded by the Court below.

The onus of proof is on the appellant to show what substantial wrong has been occasioned by the learned trial Judge and which led to a miscarriage of justice and has necessitated this Court to interfere with the decision of the Court below. The learned trial Judge evaluated the oral and documentary evidence to see if they support the pleadings of the parties. The Court found in favour of the respondent. See Mogaji Vs. Odofin (1978) 4 SC 91 at 93-94; Olubode Vs. Salami (1985) 2 NWLR (pt. 7) 282 at 294-298; Fatoyinbo Vs. William (1956) 1 FSC 87 and Adeyemo VS Popoola (1987) 4 NWLR (pt. 66) 578. Findings of fact by trial Judges who saw and heard the witnesses and observed their demeanor ought not to be lightly interfered with by the Court of Appeal. See Ebba Vs. Ogodo (1984) 4 SC 84; Obisanya VS. Nwoko (1994) 4 SC 153 and Woluchem Vs. Gudi (1981) 5 SC 319. The appellant has not shown that the decision of the learned trial Judge is perverse or unsound for this Court to interfere with the decision of the learned trial Judge. See Balogun Vs. Akanji (1988) 2 SCNJ 104 at 122 and Ishola Vs. Okuoja (1982) 7 SC 314 at 350. In Lion Buildings Ltd. Vs. Shadipe (1976) 2 FWLR 282, Udoma JSC held at page 289 as follows:

The question then is: What order ought the learned trial Judge to have made in the light of the evidence before him at the trial According to the learned Counsel for the defendant, the claims of the plaintiffs ought to have been dismissed, but according to the learned Counsel for the plaintiffs, Chief Rotimi Williams, judgment ought to have been entered for the plaintiffs. That brings us to a consideration of the last ground of appeal argued by both Counsel, namely, that judgment is against the weight of evidence.

We think on this question of weight of evidence, we should predicate our examination of the evidence, which was before the learned trial Judge with a quotation from an old judgment of the Full Court of Nigeria as to the principle to which a Court of Appeal should act when a judgment is appealed against as being against the weight of evidence. It is a principle which we believe has been rendered sacrosanct by age and from which we venture to suggest not Court should depart. The principle was enunciated in Macaulay Vs Tukuru (1881 1911) I N.L.R. 35, in these words:

When a judgment is appealed from as being against the weight of evidence, the Appeal Court must make up its own mind on the evidence, not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over-ruling it, if, on full consideration, it comes to the conclusion that the judgment is wrong .

If, however, the appeal Court is in doubt, the appeal must be dismissed since the burden of proof is on the appellant.

In Barau vs. Board of Customs & Excise (1982) 2 NCR 1 Fatayi-Williams CJN held at pages 21-23 to wit:

In view of the above, I am not surprised that the learned Chief Judge disbelieved the belated testimony of the respondent that he had no knowledge of the prohibition order or that he had no fraudulent intent to evade the prohibition order or be concerned in the said evasion. Having made his finding, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness-box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondents testimony for that of the learned Chief Judge. The Federal Court of Appeal is certainly in error in so doing.

In Akinloye vs. Eyiyola (2) this Court held (1968 NMLR at 95) that:-

Where a Court of trial unquestionably evaluates the evidence and appraises the facts, it is not the business of a Court of appeal to substitute its own views for the views of the trial Court.

Again, in Fabumiyi vs. Obaji (14) this Court dealt with the evaluation of evidence by an appeal Court in more detail as follows (1968 NMLR at 247):

A Court of Appeal should not easily disturb the findings of fact of a trial Judge who had the singular opportunity of listening to the witnesses and watching their performances. It is settled law, however, that such findings of facts or the inferences from them may be questioned in certain circumstances. See Benmax vs. Austin Motor Co. Ltd. [(1955) A.C. 370]; Akinola vs. Fatoyinbo Oluwo & Ors. [(1962) All NLR 224]; Lawal Braimob Fatoyinbo & Ors. vs. Selistu Abike Williams (1 FSC 67). The result of the authorities is simply this, that where the facts found by the Court of trial are wrongly applied to the circumstance of the case or where the inferences drawn from those facts are erroneous or indeed where the findings of fact are not reasonably justified, or supported by the credible evidence given in the case, a Court of Appeal, is in as much a good position to deal with the facts and findings as the Court of trial. [These words do not appear in the report of the case at (1967) 1 All NLR 241). It only remains for me to add that, having regard to my own observation on the evidence made earlier, none of the reasons which could justify re-evaluation of the evidence by an appeal Court are present in the case in hand.

In 1974, this Court again considered the limitations placed on a Court of Appeal in re-evaluating evidence accepted by a trial Court in Balogun vs. Agboola (6). We observed in our judgment in that case as follows ([1974] 1 All NLR at 73; (1974) 10 SC at 118-119):

The ascription of probative values to evidence is a matter primarily for the Court of trial and it is not the business of a Court of Appeal to substitute its own views of undisputed facts for the views of the trial Court. Interference by a Court of Appeal with respect to issues of fact is by law confined within very narrow and limited dimensions and we are clearly of the view in this case that the Western State Court of Appeal took a mistaken view of the law when it embarked, as it did, on a fresh appraisal of the evidence of witnesses to whom the learned trial Judge had himself listened and whom he had seen face to face when they (the Court of Appeal) were dealing only with the cold sullen print of the records before them.

That, if I may say so, is precisely what has happened in the present case.

The learned Chief Judge who saw and heard the respondent, watched his demeanour in the witness-box, assessed the honesty or otherwise of his performance on the day he brought the carpets into the country, and made certain findings of fact having regard to all these circumstances. The Justices of the Federal Court of Appeal, without the benefit of this trial atmosphere, when dealing only with the cold sullen print of the records before them decided to set aside the Chief Judges findings of fact. Like this Court in Balogun vs. Agboola (ibid.), I – have no hesitation in restoring the findings of fact of the learned trial Judge.

Having thus restored the findings of the learned Chief Judge, it follows that the question of assessing the evidence adduced by the respondent on a balance of probabilities would not, and did not, arise. This is because there would be nothing to balance against the evidence adduced by the prosecution, which the Chief Judge accepted. It must be remembered that the defence of the respondent was, for good and sufficient reasons, if I may say so, totally rejected by the learned Chief Judge.

In case the significance is overlooked, all the grounds of appeal filed and argued before the Federal Court of Appeal were grounds of law. Even the misdirections complained of in some of the grounds of appeal related either to the standard of proof required for the two offences, or to the ingredients to be proved, or to the mens rea required for the commission of the offences. Therefore, to contend, as my brother Bello, JSC has done in his judgment, which he has been kind enough to allow me to see in draft, that the Federal Court of Appeal could and did make findings of fact (which this Court ought to have accepted as binding) is, with respect, to demonstrate a misconception of one of the points canvassed before this Court, which is that it is not the business of the Court of Appeal, particularly in the case in hand, to substitute its own findings of fact for those of the trial Chief Judge who saw and heard the witnesses.

My humble opinion is that the decision of the learned trial Judge is amply supported by the weight of evidence. See Atuyeye Vs. Ashamu (1987) 1 NWLR (pt. 49) 267 at 275 and Anyaoke Vs. Adi (1986) 3 NWLR (pt. 31) 731 at 742.

The appeal lacks merit and is dismissed with N100,000.00 cost to the respondent.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, JOSEPH TINE TUR, JCA. I am in agreement with his reasoning and conclusion that the appeal lacks merit and should be dismissed.

There is no doubt from the record that the claim for interests on the amount due to the claimant/judgment creditor was rightly awarded in the circumstances. By Order 35 Rule 4 of the Anambra State High Court Civil Procedure Rules, 2006, not less than 10% per annum to be paid upon any judgment can be awarded notwithstanding that the time for the payment of interest or the interest rate were not pleaded or proved at the trial. The principle of awarding post judgment interest on a liquidated judgment sum has been accepted as an exception that no person is entitled to any remedy or relief not claimed.

In the circumstances, the relief sought and obtained by the respondent at trial was properly granted. I abide by the order as to costs.

Appeal dismissed.

TOM SHAIBU YAKUBU, J.C.A.: I had a preview of the decision rendered by my learned brother, JOSEPH TINE TUR, JCA, with whom I agree that this appeal has no merits. I, too dismiss it, accordingly.

I endorse the award of N100,000.00 against the appellant and in favour of the respondent.

Appearances

E.Q. Okolie, Esq.For Appellant

AND

Dr. C. J. Ubanyionwu, Esq.For Respondent