Alhaji Abdullahi Ibrahim V. Mallam Zangina Abubakar Bakori & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
JOHN INYANG OKORO, J.C.A.
The Appellant had sometime in 2002 approached the 2nd Respondent for financial assistance to the tune of N2,500,000.00 to resuscitate his ailing business having earlier collected from him the sum of N242,000.00. Not being able to help him personally again, the 2nd Respondent introduced the Appellant to the 1st Respondent who agreed to assist the Appellant with the sum of N2,200,000.00 instead of the N2,500,000.00 requested. Also, the parties agreed at a monthly interest of 10%. This agreement was thereafter reduced into writing in Exhibit A dated 3rd July, 2002 which was executed by both parties. After the execution of Exhibit A, the sum of N2,200,000.00 was released to the Appellant, who in turn issued a post dated cheque for the sum of N2,200,000.00 to the Respondents payable on the 3rd day of August, 2003. The said cheque was tendered as Exhibit D. The Appellant was able to pay the 10% monthly interest for the months of July, August, September and October, 2002, and half the amount for the month of November, 2002 all totaling the sum of N990,000,00 (Nine Hundred and Ninety Thousand Naira). Due to the failure of the Appellant to continue to pay the interest as agreed, the Respondent wrote Exhibit B to the appellant requesting for the interest due and the principal. On receipt of Exhibit B, the Appellant wrote Exhibit E to the respondents pleading for the reduction of the monthly interest. In addition the appellant instituted an action at the Sharia Court, Ungwan Rimi Kaduna for the interpretation of Exhibit A and review of same, for according to the appellant, he thought the 10% monthly payment to the Respondents was a repayment of the principal sum and not interest which is the language of Exhibit A. The Appellant having failed to abide by the terms in Exhibit A, the Respondents filed the action giving birth to this appeal seeking the following reliefs as contained in paragraph 22 of the statement of claim:-
“1. The sum of N2,200,000.00 (Two Million, Two Hundred Thousand Naira) being the amount collected by the Defendant from the plaintiffs as financial assistance in order to revive his collapsing business
- The sum of N220, 000.00 (Two Hundred and Twenty Thousand Naira) being monthly penalty for withholding the said amount as agreed from the month of December, 2002 till judgment and payment.
- A DECLARATION that the Defendant is in breach of the Financial Assistance Agreement dated 2nd July, 2002 till judgment and payment.
- The sum of N242,000.00 (Two Hundred and Forty Two Thousand Naira) being money owed the 2nd plaintiff by the Defendant with 21% interest per annum from the 2nd December, 2002 till judgment and 10% thereafter till Payment.
At the trial, both parties gave evidence and after addresses by both Counsel, the learned trial judge held, amongst others that –
“the transaction between the parties is the case of a simple transaction; Having failed to prove that the Plaintiffs are money lenders, Exhibit A cannot therefore be said to fall under the scrutiny of the Money Lenders Law.”
He then ordered the Appellant to pay to the first Respondent the sum of N2,200,000.00 with interest at the rate of 2% from the date of the judgment, 23rd June, 2006. Judgment was also entered for the 2nd Respondent in the sum of N242,000.00 which he assisted the Appellant.
Aggrieved with the decision of the Court below, the Appellant appealed to this Court with a notice of appeal dated 21st September, 2006 containing seven grounds of appeal. Briefs were filed and exchanged in line with Rules of this Court. In the brief prepared by A.A. Owolabi Esq, Counsel for the Appellants, four issues have been distilled for the determination of this appeal. The issues are:-
“1. whether the 1st Respondent who lent money on interest is not to be bound by provision of Money Lenders Law of Kaduna State (Distilled from grounds 1 and 2).
- whether an action instituted prior to the maturity date on a post – dated cheque was not pre – mature (Distilled from grounds 3)
- whether the trial Court was right to suo motu have awarded 2% interest on the judgment sum in contravention of Order 39 Rule 8 of the High Court (Civil Procedure) Rules 1987 when no such relief was claimed or justified by evidence (Distilled from ground 4)
- whether the judgment of the trial Court was not pervasive in the circumstance of the case (Distilled from grounds 5, 6 and 7).
The Respondents, through their Counsel, E.A. Aremo Esq also formulated four issues. In the brief settled by the said Learned Counsel, the following issues are formulated:-
“1. Whether the provision of the Money Lenders Law chapter 100 of Kaduna State are applicable to the Respondents in respect of whom the appellant in paragraphs 8 and 16 (a) of his Amended statement of defence, had pleaded are not Money Lenders, which same was confirmed by the evidence of PW1 and PW2 (Grounds 1 and 2)
- Whether the respondents were right to have initiated this action and claimed for their interests as contained in Exhibit A when the appellant had breached its provisions and further declared hostility by instituting an action against them at the Sharia Court (Ground 3)
- was the trial Court right in awarding interest On the amount claimed in the respondent’s Statement of claim as done in this case (Ground 4)
- In view of the evidence adduced before the Court, was the trial Court right in granting the respondent’s claims in Grounds 5, 6 and 7.
On the 22nd April, 2009 when this appeal came up for hearing, and just before the briefs were adopted, the learned Counsel for the Respondents prayed for and obtained leave of Court to argue the notice of preliminary objection dated 16th April, 2009 and filed on 17th April, 2009 by the Respondents. Arguments in respect of the said notice of preliminary objection are contained in pages 4 – 5 of the brief of the Respondents. The learned counsel for the Appellant filed a reply brief in response to the argument on the preliminary objection. I shall consider this preliminary objection before taking further steps in this appeal.
Basically, it is the contention of the learned counsel for the respondents that Grounds of appeal Nos 3 and 5 in the Notice of appeal and issues 3 and 4 formulated therefrom by the Appellant are incompetent.
On ground 3, learned counsel for the Respondents submitted that the issue as to whether or not the claim of the Respondents at the court below was mature or immature was never canvassed and decided upon by the court below. That it is a new issue and that in order to have it raised in this court, leave must be sought and obtained. That although the learned counsel for the Appellant raised this issue in his address at the Lower Court, he was overruled as it did not form part of the case of the parties and no appeal has been entered against that decision. Learned Counsel cites and relies on the case of Bello Vs. Fayose (1999) 7 S.C.N.J. 286, Leventis Technical Ltd Vs. Petrojessica Enterprise Ltd (2001) 4 S.C.N.J. 121, Biariko Vs. Edeh – Owude (2001) 4 S.C.N.J. 332. The same argument was made in respect of ground 5.
Finally, that issues 3 and 4 predicated on grounds of appeal Nos. 3 and 5 should be held to be incompetent having been formulated from incompetent grounds relying on the cases of Akibu Vs. Oduntan (2000) 7 S.C.N.J. 189 and INCAR Nigeria Plc Vs. Olaogun Enterprise Ltd (1999) 12 S.C.N.J. 171. He urged the Court to strike out issues 3 and 4 also.
In a reply brief filed by the learned counsel for the Appellant, it was contended that the Respondents had adequately pleaded the fact relating to the maturity date in the post dated cheque Exhibit P1 as contained in paragraph 15 and 20 of the statement of claim. Also that the PW2 gave evidence in respect of the post dated cheque. Learned Counsel submitted further that even if the issue of maturity date in the cheque was not raised by the appellant, the Appellant can rely on the pleading and evidence of the Respondents wherein he cited the cases of Awuzie Vs. Nkpariama (2002) 1 N.W.L.R. (Pt. 747) 1, Akinola & Anor Vs. Oluwo & Ors (1962) 2 N.S.C.C. 157. He urged this court to hold that grounds 3 formed part of the decision of the trial court when it held at pages 101 lines 23 – 24 to 102 lines 1 – 2 that the issue of maturity of the date in the cheque was not pleaded.
On ground of appeal No 5, he submitted that the fact that PW1 did not submit himself for further Cross – examination is apparent on the record of proceedings and is an issue of law and whether it was raised or not, it was for the court to consider same.
The two grounds of Appeal complained against state, (without their particulars) as follows:-
“3. The Learned trial judge of Kaduna State High Court erred in law when he refused to strike out the 2nd Respondent’s suit whereas the suit was filed before the maturity date i.e. 3rd August, 2003 in the post dated cheque (Exhibit D)
- The learned trial judge erred in law when he relied on evidence of PW1 to give judgment in his favors (sic) when he failed to submit himself for continuation of cross examination..”
It is elementary at this stage to define what a ground of appeal is. Be that as it may, a ground of appeal is the complaint of the appellant against the judgment or decision of a court. Such a complaint must be anchored or based on the live issues in controversy in the suit. See Iwuoha & Anor Vs. NIPOST Ltd (2003) 8 N.W.L.R. (Pt. 822) 308 at 332. Any ground of appeal, no matter how elegantly couched, which does not attack or which is not based on the decision or judgment of the court is incompetent and would be liable to be struck out.
Now bringing the above position of the law to bear on the two grounds of appeal complained of, will reveal that they are far from the issues that were ventilated at the court below and as such were not pronounced upon by the learned trial judge. For instance, ground three raises the complaint that the suit at the court below, was immature and ought to have been struck out by the trial judge. This is an issue which ought to have been raised in the pleadings and issues joined to enable the trial court to make a decision one way or the other which could have formed the basis for a ground of appeal to arise. And in any case, the learned trial judge had on page 101 -102 of the record dismissed this issue as having not been pleaded. This is what he said:-
“On the 1st issue which is whether the suit was not premature, it was submitted by defendant’s Counsel that the cheque issued by the defendant as admitted by the 2nd plaintiff in respect of the sum of N2.2Million Naira given to the defendant by the 1st plaintiff was to be cashed on 30th August, 2003 but that the plaintiff instituted this case on the 30th January, 2003 claiming the amount in the said cheque before the date on the allegedly presented to the Bank on the 22nd January, 2003. The Court is urged to dismiss the suit for being premature for according to the defendant’s Counsel, that at the time of filing this suit before the court that the claim was incompetent and not actionable.
This issue of fact as rightly observed and submitted by the plaintiff’s Counsel was not pleaded and same having not been pleaded it is trite it therefore goes to no issue and same is discountenanced with. ” (Italics mine for emphasis).
There is no appeal against the above finding and decision of the Lower Court. Therefore, it is subsisting and binding. See Leventis Technical Ltd Vs. Petrojessica Enterprise Ltd (2001) 4 S.C.N.J. 121, Biariko Vs. Edeh-Owuche (2001) 4 S.C.N.J. 332.
Invariably, what the court below held is that the issue was new to the suit and it remains so. For the appellant to raise it in this court, he must seek for and obtain leave before raising it. Having not obtained the leave of this court, ground 3 of the grounds of appeal is hereby struck out.
- See Ukong Vs. Commissioner, Finance (2006) 19 N.W.L.R. (Pt. 1013) 187.
- Dagaci of Dere Vs. Dagaci of Ebwa (2006) 7 N.W.L.R. (Pt. 979) 382.
On ground 5, the issue that the PW1 failed to submit himself for continuation of cross examination was not part of the suit before the trial Court and it was not raised before that Court for a decision to be taken. Therefore, it is a new issue. There is no decision on it by the Lower Court and as such it cannot be a ground of appeal in this case. If the appellant intends to make it part of this appeal, leave of court must be sought and obtained. All the cases cited by the Appellant’s Counsel in their reply brief have no bearing in this case whatsoever. Accordingly ground 5 is also discountenanced and struck out being incompetent.
Now, what is the legal position of issues 2 and 4 distilled from grounds 3 and 5 respectively, which grounds have been declared incompetent? It is trite that issues must be formulated from grounds of appeal. They must be based on, related to or arise from the grounds of appeal. Where issues are not formulated from grounds of appeal, they will either be deemed abandoned or discountenanced by the Court. See Mobil Producing Nigeria Unlimited Vs. Monokpo (2003) 18 N.W.L.R. (Pt. 582) 346 at 423, Dada Vs. Dosunmu (2006) 18 N.W.L.R. (Pt. 1010) 134, C.S.S. Bookshops Ltd Vs. R.T.M.C.R.S (2006) 11 N.W.L.R. (Pt. 992)530.
However, for an issue to be competent, it must not only flow from a ground of appeal, it must be based on a competent ground of appeal. Any issue formulated from an incompetent ground of appeal, is, to say the least, incompetent also and is liable to fall with the ground of appeal which gave birth to it. See Nasiru Vs. Bindawa (2006) 1 N.W.L.R. (Pt. 961) 355, ISC Services Ltd Vs. G.C. Ltd. (2006) 6 N.W.L.R. (Pt. 977) 481. It follows that issues 2 in the Appellant’s brief and 2 from the Respondent’s brief formulated from ground 3 and issues 4 in the appellant’s brief and issue 4 in the Respondent’s brief formulated partly from ground 5 are hereby held to be incompetent having been formulated from incompetent grounds already struck out by this court.
I am left with issues 1 and 3 in both briefs which are identical and I shall determine this appeal on the two issues.
The first issue here is to determine whether the 1st Respondent who lent money on interest to the Appellant is not to be bound by the provisions of the Money Lenders Law of Kaduna State.
Learned Counsel for the Appellant submits that by the act of the 1st Respondent who admitted that he had given a financial assistance to the Appellant with 10% penalty/interest monthly, he is presumed a money lender under the Money Lenders’ Law of Kaduna State. He cites and relies on sections 2 and 3 of the Money Lenders Law, Chapter 100, Law of Kaduna State. The rest of the submissions of Counsel on this issue is on the effect which the Law aforesaid has on the transaction between the parties. This later submission would be considered if this Court holds that the 1st Respondent is a Money Lender under that law.
It was, as would be expected the submission of the learned Counsel for the Respondents that the arguments of the appellant in support of this issue formulated by him was contrary to the position of his pleadings referring to paragraphs 8 and 16 of the statement of defence wherein the Appellant as defendant averred that the Respondents (as plaintiffs) were not money lenders. That having pleaded that the respondents are not money lenders, it was wrong for him to now summersault and contend that they should be deemed to be money lenders relying on the case of Ajide Vs. Kilani (1985) 3 N.W.L.R. (Pt.12) 240, Lipede Vs. Sonekan (1995) 1 S.C.N.J. 184.
Learned Counsel submitted further that the appellant in this case failed to address the crucial issue of whether the Respondents are money lenders under the Money Lenders Law but embarked on academic exercise of restating almost all the provisions of the Money Lenders Law without proving that the Respondents are money lenders.
Citing the cases of Lintch field Vs. Dreyful. (1906) 1 K.B. 554 at 559, Nnadi Vs. Akanni & Anor (1962) (Pt. 2) All N.L.R. 1100 at 1103, Iwinkunle Vs. Matanmi (1975) N.C.L.R. 133 at 139 – 140 and Sogbesan Vs. Dosunmu (1970) A.L.R. Com 225 and urging this court to rely on them though they are of persuasive authority, learned counsel then urged this court to hold that they represent the true position of the law. And finally, that following the principles adumbrated in the above – cited cases, the issue of illegality or otherwise of Exhibit A under the Money Lenders Law can only arise if the plaintiffs have been proved to be Money Lenders under the Money Lenders Law. He urged the court to resolve this issue against the Appellants.
The question posed for this court to profer an answer is whether the 18th Respondent is a Money Lender regulated by the Money Lenders Law of Kaduna State and if the answer is in the affirmative whether Exhibit A, the financial assistance agreement between the Appellant and the Respondents can be enforced in view of the clear provisions of the said law. I think the first port of call for enquiry as to who is a Money Lender under the said Law should be the Law itself. Thus, sections 2 and 3 of the Moneylenders Law, Chapter 100, Laws of Kaduna State defines a Money Lender as follows:-
“Section 2- In this Law-
“Money Lender” includes every person whose business is that of Money Lending or who carries on or advertises or announces himself or holds himself out in any way as carrying on that business, whether or not he also possesses or owns property or money derived from sources other than the lending of money and whether or not he carries on the business as a principal or as an agent … ”
“3. Save as excepted in paragraphs (a),(b),(c), (d) and (e) of the definition of “Money lender” in section 2 any person who lends money in consideration of a larger sum being repaid shall be presumed to be a Money lender until the contrary is proved.”
The definition given by that law itself is clear and unambiguous. I do not intend to subtract or add to the wordings of sections 2 and 3 of the Money Lenders Law in trying to say whether the 1st Respondent is a money lender or not except to state that the word “business” as contained in section 2 thereof means:
“A commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.” (Italics mine for emphasis)
See Black’s Law Dictionary (8th Edition) at page 211. It follows that any person who habitually engages in an enterprise of lending money as a means of livelihood, profit or gain or who advertises that he engages in that business or announces it or holds himself out to be so understood, is said to be a money lender under the law. Section 3 of the law presumes a person who lends money at interest or in consideration of a large sum being repaid to be a money lender “until the contrary is proved”. These are the clear wordings in the law.
In interpreting statutes, courts must as a cardinal principle, give the words used therein their ordinary grammatical meaning and not to read into an enactment words which, when read would deprive any person any protection or right accruable thereto. See Mbonu Vs. Nwoti (1991) 7 N.W.L.R. (Pt. 206) 737, Egbe Vs. Yusuf (1992) 6 S.C.N.J. (Pt. 2) 263, Kalu Vs. Odili (1992) 6 S.C.N.J. (Pt. 1) 76, Idikaa Vs. Uzoukwu (2008) 9 N.W.L.R. (Pt. 1091) 34. I shall, in the circumstance limit the meaning of the term “Money lender” to the definition given in the law itself.
Ordinarily, the 1st Respondent would have been taken to be a money lender or presumed a money lender under section 3 of the said law excepting that the law says he “shall be presumed to be a money lender until the contrary is proved. ” The words “until the contrary is proved” mean no other thing than “until evidence is led to prove otherwise”. Thus, it is in the pleadings and evidence adduced before the court that it can be ascertained whether the presumption contained in the law is rebutted or not.
There is no doubt that the 1st Respondent lent the sum of N2,200,000.00 to the Appellant at 10% interest as encapsulated in Exhibit A, the financial assistance agreement. Now, in view of the pleadings and evidence led at the trial, as well as the provisions of sections 2 and 3 of the Money Lenders Law (Supra) can be said that the 1st Respondent is a money lender under the law? The plaintiff has stated in his evidence on page 49 of the record that-
“I am an illiterate that was why I asked lawyer to document the agreement and explained everything before we signed. On my part I did not advertise myself as a money lender. It was the defendant that came through the 2nd plaintiff and sought for financial assistance/help.”
Clearly, the 1st Respondent has stated that he is not a money lender and that evidence was never challenged at the court below. Rather, the Appellant (as defendant) corroborated this evidence in his statement of defence when he stated in paragraphs 8 and 16 thus-
“8. In further answer to paragraph 11, the defendant avers that the plaintiffs are not known money lenders and not licenced money lenders as at the time of the agreement and can’t give out loans at such obnoxious interest rate claimed in the statement of claim without licence.”
- The defendant will contend at the trial that the transaction between the plaintiffs and the defendant was illegal. Particulars of illegality
(a) The plaintiffs were not known money lenders nor licenced money lenders when the agreement was entered into.”
The learned counsel for the Appellant had contended in his brief that the 1st Respondent ought to be deemed to be a money lender by virtue of section 3 of the Money Lenders Law (Supra). I think he is dead wrong here. As was rightly submitted by the learned counsel for the Appellant, having pleaded in his pleading that the Respondents are not money lenders, it is wrong for him to now summersault and contend that they should be deemed to be money lenders. The Supreme Court in Ajide Vs. Kilani (1985) 3 N.W.L.R. (Pt. 12) 240 at 260 per Oputa, JSC had cautioned that
“A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stand on his pleadings then turn summersault during trial, then assume nonchalant in the Court of Appeal, only to revert to his case as pleaded in the Supreme Court. Justice is much more than a game of hide and seeks.”
By his pleadings and submission before this court, the appellant is approbating and reprobating, blowing hot and cold at the same time. This is unacceptable. The learned trial judge held on page 105 of the record as follows:-
“From the totality of evidence adduced before the court vis-a-vis the tendered documents, it has not been shown that the plaintiff in this case is money lenders.”
I agree. Both the pleadings and the evidence led at the trial point to an irresistible conclusion that the 1st Respondent or all the Respondents are not money lenders under the Kaduna State Money Lenders Law (Supra). A person engaged in other businesses who out of sympathy or pressure as in this case, lends money to his friend to resuscitate his ailing business should not by any stretch of imagination be termed Money lender under the law aforesaid. I seem to agree with the view expressed by Farewell, J in Lintch field Vs. Dreyful (1906) 1 K.B. 554 at 559 that-
“The Act was intended to apply only to persons who are really carrying on the business, not to persons who lend money as incident business or to a few old friends.”
Though not a binding authority, I agree that the view so expressed represents the correct position of the law in this matter. I am piqued at the practice where a party after seeking and obtaining money from a friend for resuscitation of his ailing or dwindling business will turn around to rely on technicalities or loopholes in the law as a cover to absolve himself from contractual obligations by putting up a defence under Money Lenders Law as done by the appellant in this case. This is pessimi exempli of business relations and this Court would not lend its support for such a party to bite the finger that fed him and deprive him of his hard earned money. A man who, with his two eyes open, and without the other party committing any fraud against him, enters into an agreement with another, should be prepared to abide by the terms of the agreement unless he can show that the agreement is illegal or otherwise unenforceable in law. I cannot allow the Appellant, after collecting money from the Respondent to do business, to now turn around to plead the Moneylenders Law in order to escape the refund of the said money as governed by Exhibit A between them. It is on this note that I agree with the learned trial judge that based on the pleadings’ and the evidence before the Court, the Respondents are not Moneylenders under the Moneylenders Law of Kaduna State (Supra). Accordingly, Exhibit A is not governed by that Law. This issue is, in the circumstance resolved against the Appellant.
The next issue is whether the learned trial judge was right to award 2% interest on the judgment sum. On page 109 of the record, the learned trial judge, in conclusion held as follows:-
“It was the PW1’s evidence in chief that he had bent backwards to reduced (sic) the proposed 20% offered by the defendant as interest on the N2.2Million to 10% as contained in Exhibit “A” hence the payment in Exhibit F1 – F4 by the defendant. In line with that I want to believe that it would not be out of place or be asking for too much if it is held that the said N990, 000.00 which has been established has been paid as interest so far be said to be the total interest payable as having been paid. The sum of N2.2Million having proved has not been, (sic) it is hereby ordered that the defendant pays the said sum to the 1st plaintiff with 2% interest from the said sum from today until the entire judgment sum is liquidated.”
It is the contention of the learned Counsel for the Appellant that the award of post judgment interest by the trial judge was granted without any application for instalmental payment or extension of time within which to pay the judgment sum citing Order 39, Rule 7 of the Kaduna State High Court (Civil Procedure) Rules 1987. That under this rule, the award of post judgment interest is not automatic and that the condition precedent to the award of post judgment interest under Order 39 Rule 7 of Kaduna State High Court Rules is subject to only when the Court extends time for the compliance with the terms of the judgment or order for instalmental payment. He relies on the cases of Himma Merchants Ltd Vs. Aliyu (1994) 5 N.W.L.R. (Pt. 347) 667, Barclays Bank DCO Vs. Yusuf Alabi Adigun (1962) N.W.L.R. 40 or (1961) All N.L.R. 557, KSTA Vs. Ofodile (1999) 10 N.W.L.R. (Pt. 622) 259.
Learned Counsel then urged this Court to allow this appeal by setting aside the award of 2% interest on the judgment sum and answer this issue in favour of the appellant.
It was however the submission of the Learned Counsel for the respondents that the respondents having pleaded and claimed interests in paragraphs 22 (2) and (4) of their statement of claim, and having given adequate evidence in prove of these claims, they were entitled to interests as pronounced by the learned trial judge though drastically reduced from what was claimed. That the judgment / order made by the Court below was based on the case presented and claimed and not an exercise of discretion under the provisions of Order 39 Rule 7 of the Kaduna State High Court (Civil Procedure) Rules 1987. Finally on this, he submitted that the interest envisaged by Order 39 Rule 7 of the said Court rules is not envisaged to be claimed in the statement of claim or the writ relying on the cases of Himma. Merchants Ltd Vs. Aliyu (Supra) and Ekwunife Vs. Wayne (W.A.) Ltd (1989) 5 N.W.L.R. (Pt. 122) 445.
The question that needs an answer here is whether the 2% interest awarded by the learned trial judge was an exercise of discretion by the Court under Order 39 Rule 7 of the Kaduna State High Court (Civil Procedure) Rules 1987 or based on the claim and the case presented by the Respondents before the trial Court. I say this because there is a world of difference between statutory interest on judgment debt, which is covered by Order 39 Rule 7 of the Kaduna State High Court (Civil Procedure) Rules 1987 and interest which a plaintiff includes in his statement of claim based on the contract between him and the defendant. If I hold the 2% interest to be statutory interest envisaged in Order 39 Rule 7 of the Rules, the conclusion in this issue would be different from where it is interest legitimately claimed by the plaintiff in the statement of claim. The Supreme Court has since recognized this difference when it stated in Ekwunife Vs. Wayne (Supra) per Nnaemeka Agu, JSC while interpreting Order 27 Rule 8 of Plateau State High Court (Civil Procedure) Rules at page 404 as follows:
“In other words, Order 27 Rule 8 provides for statutory interest on judgment debt. The said provision is mandatory, it follows inevitably in my judgment, that statutory interest will only begin to run from the date of the judgment. This statutory interest on judgment is distinct and separate from the interest which a plaintiff must include in the statement of his claim to the writ as being based on contract or on statute, as the case may be, before he can hope to recover it. ” (Italic mine for emphasis).
There is no doubt that the Respondents claimed interest based on Exhibit A, the agreement they made with the Appellant as evidenced in paragraphs 22(2) and (4) of their statement of claim. Based on this and the evidence at the trial, the learned trial judge did not leave anybody in doubt as to which of the interests he was referring to. He started by saying that the Appellant had offered to pay 20% interest but that the 1st Respondent magnanimously reduced it to 10% but that since the Appellant has paid up to N990,000.00, it should be reduced to 2%. Although this reduction was unilateral and against the tenor of the agreement between the parties, I am very willing to pitch my tent with him especially as the Respondents have not complained against the reduction. I think the Court below did this out of sympathy for the appellant who has already paid the sum of N990, 000.00 as interest. It is my view that the 2% interest granted by the learned trial judge was interest claimed by the Respondents in their statement of claim and not statutory interest governed by Order 39 Rule 7 of the Rules. Thus, the submissions of learned Counsel for the Appellant on the issue and the authorities cited in respect thereof do not apply. Accordingly, I resolve this issue against the appellant in the circumstance.
In sum, this appeal is, in my opinion devoid of any merit at all and is accordingly dismissed by me. I uphold the judgment of the Lower Court delivered in this case on 23rd June 2006. The Respondents are entitled to costs and is assessed at N30,000.00.
Other Citations: (2009)LCN/3352(CA)
