Alhaji Baba Berende V. Alhaja Sahara Abdulkadir Usman & Anor (2004)
LawGlobal-Hub Lead Judgment Report
ONNOGHEN, J.C.A.
This is an appeal against the judgment of the Kwara State High Court of Justice sitting at Ilorin in suit No. KWS/55/99 delivered by Hon. Justice M. A. Folayan on 11/11/2002 in favour of the respondents who instituted the action under the undefended list procedure for the recovery of a debt of N525,300.00 together with 10% interest thereon from 15/3/98 till final liquidation. The appellant is dissatisfied with the said judgment and has appealed to this court on five grounds of appeal, out of which learned counsel for the appellant has formulated four issues for determination.
The facts of the case are that the appellant had a business relationship with the late Alhaji Abdulkadir Usman, who is said to have been the husband of the 1st respondent, by virtue of which the appellant bought cows on credit from the late businessman who later died on 10/3/98 in a road motor accident. At the time of his death, the appellant is said to be owing the sum of N565,300.00 for the purchase of 38 cows from the said Alhaji Usman.
In acknowledgment of the debt, the appellant wrote exhibit “B” and followed same up by paying the sum of N40,000.00 part payment of the debt. Later on, the appellant failed to pay the balance of the debt as a result of which the family of the late Alhaji Usman by exhibit A, authorized the 1st and 2nd respondents who are described therein as the widow and business partner of the late Alhaji Usman to, inter alia, institute an action to recover the balance of the debt, which was then N525,300.00. The respondents carried out the instructions by instituting the action resulting in this appeal under the undefended list. Those who issued exhibit A, the letter of authority, are the father, brothers and 1st son of the late Alhaji Usman.
In reaction to the action of the respondents, the appellant filed a notice of intention to defend the action together with an affidavit disclosing a defence, in which he contended that:
(1) That the respondents have no locus standi to maintain the action, and
(2) That the amount claimed had been manipulated to his detriment.
The issues which the learned trial court had to determine are therefore:
(a) Whether the respondents have locus standi to institute the action?, and
(b) Whether the affidavit of defence discloses any defence to the action?.
The court resolved the issues against the appellant, hence the appeal.
The issues identified by learned counsel for the appellant, Salman Jawanda, Esq. in the appellant’s brief of argument filed on 6/2/04 and adopted in argument of this appeal, are as follows:
“(1) Whether or not having regard to the position of the affidavit evidence and exhibits before the court, the learned trial Judge was right in holding that the respondents have and disclosed locus standi (sic) to maintain this suit?.
(2) Having regard to the affidavit evidence before the court, was the learned trial Judge right in holding that the appellant did not disclose a defence on the merit to the respondents’ claims?.
(3) Whether or not the learned trial Judge was right in awarding the interest claimed by the respondent as per the respondents’ writ of summons when there was no evidence in support of the claim?.
(4) Was the learned trial Judge light in giving judgment to the respondents without considering the arguments of and counsit (sic) on the issue of competence of the suit brought in representative capacity by the respondents?.”
From the above reproduced issues, it is very clear that issues 1 and 4 can be conveniently taken together since they basically question the locus standi of the respondents in instituting the action. That is the way learned counsel for the respondents, A. O. Mohammed, Esq. looks at the matter in the issues formulated in the respondents’ brief of argument filed on 18/3/04 and adopted in argument of the appeal.
The issues are:
“1. Whether the respondents have the locus standi to bring this action and whether the suit is competent?.
- Whether the averments contained in affidavit in support of notice of intention to defend disclose a defence on the merit?.
- Whether having regard to the nature of transaction, the respondents are entitled to interest on the N525,300.00 debts?.”
I am of the view that having regards to the grounds of appeal and the observations made supra, the issues as formulated by A. O. Mohammed, Esq., for the respondents best represent the issues calling for determination in this appeal and should be preferred to those formulated by learned counsel for the appellant. It should however be noted that my preference of the issues formulated by counsel for respondents does not arise from their being different from those by appellant’s counsel, but result from their being more compact. Whereas the appellant’s counsel split the issue of locus standi and competence of the action into two, learned counsel for the respondents maintained them as one issue. The issues as formulated by both counsel are therefore otherwise the same. It must be noted here that both counsel are agreed that during the pendency of this appeal, the appellant has paid the total sum of N150,000.00 in two installments out of the total judgment debt of N743,496.00 inclusive of interest between 5/7/2003 and 6/1/2004.
In arguing issue No.1, learned counsel for the appellant submitted that since the action was commenced after the death of Alhaji Abdulkadir Usman, the creditor, the claim of the 1st respondent to be his widow does not clothe her with locus standi to institute the action as found by the trial court. That “to be competent to maintain this action, the 1st plaintiff must, by cogent evidence, prove conclusively that she was a wife and now a widow, of the deceased and the deceased’s executor or administrator or one of such.” That there is no evidence that the 1st respondent was married to the deceased. Referring to the case of Lawal v. Younan & Sons (1961) 1 SCNLR 323, (1961) All NLR (Pt.2) 245 at 251. Learned counsel submitted that the issue of marriage is a serious one which must be strictly proved. That the appellant, by paragraph 4(iv) of the affidavit in support of notice of intention to defend, denied the deposition that 1st respondent is the widow of the deceased. That the 1st respondent has the duty to prove the system of marriage contracted with the deceased. That failure of the respondents to prove the marriage is fatal to the claim “for debts owed the deceased by the appellant,” relying on Adeyemi v. Bamidele (1968) 1 All NLR 31 at 35; Igbokwe v. VCR (1961) WNLR 173 at 175.
As regards the 2nd respondent, learned counsel submitted that the 2nd respondent is neither the heir nor assignee of the deceased and has no interest in the subject matter of the suit. That the facts show that the 2nd respondent is neither a relation nor a business partner of the deceased and as such has no interest in the debt. That exhibit A cannot confer locus standi on the respondents contrary to what the lower court held. That there is no evidence that the signatories to exhibit A are the legal representatives of the deceased since exhibit A was made after his death. Referring to the case of Bank of West Africa Ltd. v. Rickett (1959) NRNLR 125 at 133 learned counsel submitted that only administrators of the estate of the deceased can maintain an action to recover debt due to the deceased. That the trial court therefore had no jurisdiction to entertain the action relying on Oba Ajagungbade III v. Oba Adeyelu II (2001) 16NWLR (Pt. 738) 126, (2002) 9 WRN 92 at 125 128; Yesufu v. Gov. of Edo State (2001) 13 NWLR (Pt. 731) 517, (2001) 6 SC 56 at 66; Owodunni v. Reg. Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315, (2000) 6 S.C. (Pt. 111) 60 at 73; Adenuga v. Odumeru (2003) 8 NWLR (Pt. 821) 163, (2003) 4 S.C. (Pt.1) 1 at 10, 11.
That in view of the denial of the appellant of the locus standi of the respondents, the lower court ought to have transferred the matter from the undefended list to the general cause list.
That the lower court failed to pronounce on the competence of the action nor did it consider the submission of counsel on the issue in its judgment. That for representative suit to lie, the plaintiffs and the persons sought to be represented must have joint or community of interest in the subject matter of the suit relying on Adediran v. Interland Transport Ltd. (1991) 9 NWLR (Pt. 214) 155, (1991) 12 SCNJ 27 at 46; Ukatta v. Ndinaeze (1997) 4 NWLR (Pt. 499) 251, (1997) 4 SCNJ 117 at 138. That since the 2nd respondent is not related to the deceased, he has no interest in his estate. That there is no evidence of common interest of the 1st respondent and the signatories to exhibit A in the subject matter of the suit. That the respondents also do not have common grievance. He then urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondents A. O. Mohammed Esq., in the respondents’ brief of argument submitted that exhibit A signed by the father and brother of the deceased state that the 1st respondent is the widow of the deceased. That the appellant has not denied the relationship between the signatories to exhibit A and the deceased. That the signatories to exhibit A are the proper person to say who 1st respondent is, in relation to the deceased, not the appellant.
That paragraph 4(iv) of the affidavit of the appellant offends against sections 86 and 87 of the Evidence Act and should be struck out. In the alternative, learned counsel submitted that the said paragraph failed to tell the court who the alleged widows of the deceased are.
That the appellant is estopped by conduct from denying that the 2nd respondent has locus standi to institute the action particularly as the 2nd respondent signed exhibit B as witness to the appellant.
That with the death of the deceased only members of his family or persons authorized by them can institute proceedings to recover the debt. That exhibit A sought to achieve the same purpose and therefore, counsel further submitted the 2nd respondent has locus standi. He then urged the court to resolve the issue against the appellant.
I have carefully gone through the record of proceedings, grounds of appeal and briefs of argument filed in this appeal with particular reference to the issue under consideration. The contention of the appellant is that 1st respondent has not proved by cogent evidence that she was the wife, and now widow of the deceased creditor etc. so as to have locus standi to institute the action.
The lower court in resolving the issue of the locus standi of the 1st respondent stated thus in the judgment:
“The 1st plaintiff is said to be the widow of the deceased. If true she is a widow of the deceased, then by right, she has a vested interest in the subject matter of the suit. The defendant says she was not a wife of the deceased and that he didn’t know the 1st plaintiff during the life time of the deceased. But he has not denied the identity and status of the signatories of exhibit “A” who claimed they are (1) father, 1st son and brothers of the deceased. These are close and immediate family members of the deceased and if they say the 1st plaintiff is the widow of the deceased, I don’t think the defendant has a better authority to hold any other person out as the widow of the deceased. So I hold that the 1st plaintiff by right has interest in the subject matter of this suit and without exhibit “A”, can be a proper party in this suit. I therefore hold that the 1st plaintiff has locus standi to institute this action.” (Emphasis supplied by me)
From the above, it is clear that the lower court did resolve the issue as to whether the 1st respondent was a wife and now a widow to the deceased by holding in the affirmative. I am in agreement with the learned trial Judge on this point. The people who are best qualified to tell the court the wife or wives of the deceased are the signatories to exhibit “A” and they had spoken through the document. The appellant who alleges the contrary has not mentioned the name or address of any of the alleged wives of the deceased known to him, if any existed, neither has he questioned the authenticity of the claim of the signatories to the said exhibit A as to their true identity as rightly found by the lower court. I am of the view that in view of the facts of this case, it was not necessary for the respondents to prove the nature of the marriage between 1st respondent and the deceased because the issue does not arise. As to her being married to the deceased, there is no doubt about it in view of the contents of exhibit “A” as found by the lower court.
I will go further to state that as a widow, she is a beneficiary to the estate of the deceased together with the signatories to exhibit “A” and others they represent. She therefore has interest in the debt as found by the lower court.
From the affidavit evidence, there is no need for further evidence to establish the fact that 1st respondent was the wife and now widow of the deceased as argued by the learned counsel for the appellant. The issue was therefore properly resolved under the undefended list procedure.
Learned counsel for the appellant has argued that the 1st respondent is not an administrator or executor of the estate of the deceased. That is true, but by learned counsel’s argument, if she is proved to be the widow of the deceased, she would have interest in the subject matter of the litigation, which fact has been proved in evidence before the lower court. It should be noted that learned counsel is not afraid that what he pays to the respondents may be lost to him. He has paid and continues to pay even after judgment and in any event, his interest is protected by the fact that he is paying under a judgment of the court.
Even though upon death the debt becomes part of the estate of the deceased, it exists for the benefit of the 1st respondent and members of the deceased’s family including those who signed exhibit “A”. To that extent it is erroneous to argue, as did the learned counsel for the appellant that there is no common interest between the respondents and the family that appointed them vide exhibit “A”.
As regards the 2nd respondent, the lower court held that there is no evidence that the 2nd respondent has a pecuniary interest in the cow business of the deceased or any personal interest on the debt claimed in the suit but that the members of the family of the deceased who signed exhibit A can and did confer their right to sue on the 2nd respondent, a third party and thereby clothing him with locus standi. The court based its decision on the fact that the-appellant has not challenged the right of the signatories to exhibit A to sue to recover the debt in issue.
The learned trial Judge therefore held that the 2nd respondent is an attorney of the family members mentioned in exhibit “A” and therefore has locus standi relying on the case of Vulcan Gases Ltd. v. Gessellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (2001) 9 NWLR (Pt. 719) 610, (2001) 5 SC (Pt. 1) at 46 – 47.
I am of the view that the lower court is right in so holding. It should be noted that the appellant has not challenged the specific finding of the lower court that the 2nd respondent is an attorney of the members of the deceased family by virtue of exhibit A, and therefore has the locus standi to sue the appellant. Rather, learned counsel went on and on to argue the fact that the 2nd respondent admitted that the cow business is a family business and therefore not in partnership, despite the specific holding by the lower court confirming the position being belabored by learned counsel for the appellant. That being the case, I hold the view that the finding by the lower court to the effect that 2nd respondent is an attorney of the members of the family as per exhibit A not having been challenged on appeal, it remains finding and uncontroverted and this court has no alternative than to confirm same.
Locus standi is basically the legal capacity to institute proceedings in a court of law or tribunal or the right of a party to appear and be heard on the question for determination before the court or tribunal. See: Alh. Gombe v. P.W (Nig) Ltd. (1995) 6 NWLR (Pt. 402) 402.
I have to note that the days of technical justice are over and the courts now strive to achieve substantial justice between the parties.
I therefore hold that the respondents have locus standi in presenting the suit and that the action is properly constituted and competent. That being the case issue No.1 is hereby resolved against the appellant.
On issue No.2, learned counsel for the appellant conceded that exhibit B and paragraphs 8 and 9 of exhibit C constitute admission or acknowledgment of debt but submits that the admission was made at a time when full facts and circumstances were not known and clear to the appellant. Citing and relying on the case of Narindex Trust Ltd. v. Nigerian Intercontinental Merchant Bank Ltd. (2001) 10 NWLR (Pt. 721) 321, (2001) 4 S.C. (Pt.11) 25 at 32 learned counsel submitted that an admission must be clear and unequivocal and not based on misrepresentation. That the admission in exhibits B and C are based on misrepresentation from the 2nd respondent and one Jimoh Eti and that the issue having been raised in the appellant’s affidavit, the case ought to have been transferred to the general cause list for trial relying on Mohammed v. Allied Bank of Nig. Plc. (1996) 7 M.A.C. 205 at 215.
That paragraphs 5 of the appellant’s affidavit are not denied and are therefore deemed admitted and established relying on Job Charles (Nig.) Ltd. v. Okonkwo (2002) 20 WRN 25 at 39. That the appellant had therefore raised a triable issue justifying the transfer of the case from the undefended list to the general cause list since conflict has arisen regarding the amount owed the deceased, learned counsel further submitted. He then urged the court to resolve the issue in favour of the appellant.
On his part, learned counsel for the respondents submitted that the affidavit of the appellant disclosed no defence to the action. That the appellant admitted making exhibit “B” in his own handwriting in which he admitted owing N565,300.00 to the deceased out of which he later paid N40,000.00 to the 2nd respondent as part payment.
Learned counsel further submitted that paragraphs 4 and 5 of the affidavit in support of notice of intention to defend offend against sections 86 and 87 of the Evidence Act and should be struck out. That in view of the admissions of the appellant, he has no defence to the action and the court should not allow him to frustrate the respondents relying on Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 5 NWLR (Pt. 123) 523, (1989) 12 SCNJ 171 at 175; Okeke v. Nicon Hotels Ltd. (1999) 1 NWLR (Pt.586) 216 at 222; Pan Atlantic v. Rhein Mass GMBH (1997) 3 NWLR (Pt. 493) 248, (1997) 3 SCNJ 88 at 96; Nishizawa Ltd. v. N. Jethwani (1984) 12 SC 234 at 278-280; Agwunedu v. Onwumere (1994) 1 NWLR (Pt. 321) 375, (1994) 1 SCNJ 106 at 136; Allied Bank of Nig. Ltd. v. Akubueze (1997) 6 NWLR (Pt. 509) 374, (1997) 6 SCNJ 116 at 140; R.E.A.N. Ltd. v. Aswani iles Ltd. (1991) 2 NWLR (Pt.176) 639 at 663; Planwell Ltd. v. Ogala (2003) 18 NWLR (Pt. 852) 478, (2003) 12 SCNJ 58 at 63. Learned counsel then urged the court to resolve the issue in favour of the respondents.
Learned counsel for the appellant in his reply brief submitted that the issue of paragraphs 4 and 5 of the said affidavit being in contravention of sections 86-87 of the Evidence Act was never raised at the lower court and therefore incompetent, being new issues raised for the first time in this court and without leave. That there is also no cross-appeal or respondents notices relying on NIDB Ltd. v. Adrance Beverages Ltd. (2002) 6 WRN 51 at 61; Kosile v. Folarin (1989) 3 NWLR (Pt. 107) 1, (1989) 4 Sc. (Pt.1) 150 at 155; Ejuetami v. Olaiya (2001) 18 NWLR (Pt. 746) 573.
I agree with learned counsel for the appellant that the issue as to whether paragraphs 4 and 5 of the affidavit of the appellant offend against sections 86 and 87 of the Evidence Act was never raised at the lower court and as such that court was denied the opportunity to pronounce on it. It must always be kept in mind that this is a Court of Appeal which has jurisdiction primarily to review, by way of rehearing the decision or decisions of the lower court. It follows therefore that appeals coming before us are based on grounds of appeal attacking the ratio in the decision of the lower court. However, in certain circumstances, an issue not raised in the lower court and decided therein may be raised for the first time in the Court of Appeal but upon leave first had and obtained. This is trite law. In the present case, the issue now raised is raised without leave of court and as such it is incompetent. I therefore discountenance same in this judgment.
The issue under consideration is simply whether from the facts of this case, the appellant has made a defence on the merit of the case.
Order 23 of the High Court (Civil Procedure) Rules, 1989 provides thus:
“1. Whenever application is made to a court for the issue of a writ of summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief, there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘undefended list’ and mark the writ of summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
- There shall be delivered by the plaintiff to the registrar upon the issue of the writ of summons as aforesaid, as many copies of the above mentioned affidavit as there are parties against whom relief is sought, and the registrar shall annex one such copy to each copy of the writ of summons for service.
3(1) If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.
(2) Where leave to defend is given under this rule, the action shall be removed from the undefended list and placed on the ordinary cause list; and the court may order pleadings or proceed to hearing without further pleadings.”
In reviewing the facts of the case as contained in the affidavits, the lower court came to the conclusion that the affidavit of the appellant disclosed no defence on the merit so the court refused to transfer the matter from the undefended list to the general cause list but rather proceeded to enter judgment for the respondents in accordance with Order 23 rule (4) of the aforesaid rules of court. The issue is whether the lower court is right in so holding.
Learned counsel for the appellant has referred the court to paragraphs 5 and 6 of the affidavit in support of notice of intention to defend and submitted that these had not been denied and as such are deemed admitted. The question then is: What do these paragraphs state?
“5. That in response to paragraphs 4, 5, 6, 7, 8, 9 and 10 of the affidavit in support of the writ of summons I depose as follows:
(i) That while it is true that I make exhibit ‘A’ in honest belief that the amount which the 2nd plaintiff and one Jimoh Laaro Danmairomo (Alias Jimoh-Eti) a staff of the Kwara State Judiciary (High Court of Justice, Ilorin) alleged that the records of the deceased showed that I owed the deceased for the supply of 38 cows, I later discovered that the amount of N565,300.00 was a deliberate tendentious fabrications arising from manipulation of the deceased’s records to the detriment of the deceased’s customers including myself, by the 2nd plaintiff and the said Jimoh Laaro Danmairomo, who though a civil servant, had on oaths claimed to be in the employment of the 2nd plaintiff.
(ii) That the criminally manipulated figure of N565,300.00 claimed by the 2nd plaintiff and Jimoh Laaro Danmairomo also excluded the payments I made to the deceased before his death and that one of the (live) cows was yet to be taken from the deceased poll before the deceased went on the ill fated journey.
(iii) That with the honest belief I paid N40,000.00 and when I raised the issue of manipulation of the deceased’s record to my detriment by the 2nd plaintiff and his fellow conspirator, Jimoh Laaro Danmairomo (sic) and demand to see the deceased’s record myself, the 2nd plaintiff and Jimoh L. Danmairomo promised to make copies of the deceased’s records available to me as requested.
(iv) That rather than make copies of the deceased’s record available to me, the 2nd plaintiff and Jimoh Eti resorted to the use of soldiers from Sobi, and later from Lagos to harass and arrest and detain me and members of my family, acts which resulted in suit No. KWS/7m/98 now pending before Honourable Justice Ojo.
(v) That while the suit No. KWS/7m/98 was still pending the 2nd plaintiff and Jimoh Danmairomo also maliciously caused my arrest and detention by the Police men from the office of the Assistant Inspector General of Police, Zone 7, Abuja, acts which also resorted in suit No. FHC/IL/m12/99 between myself and the 2nd plaintiff and 6 Ors. now still pending before the Federal High Court, Ilorin.
(vi) The copies of the processes filed in the aforementioned suit are hereto attached and marked as exhibits ‘B’ and ‘C’.
- That in response to paragraphs 11, 12, 14, 15, 16, 17, 18, 19 and 20 of the affidavit in support of writ of summons, I depose as follows:
(i) That in order for the 2nd plaintiff and his cohort, alias Jimoh Eti to prevent me from seeing the deceased’s alleged record of the debt, they resulted to the use of soldiers and police men to harass, arrest and detain me and members of my family as averred above and on realizing the grave consequences of their uncivilized conduct they approached the Emir of Ilorin to intervene, but when the Emir stood by the truth, the 2nd plaintiff and his cohort abandoned the Emir’s palace and resulted to the use of the policemen from Abuja and it was the failure of this and the crude method that necessitated this suit which is a calculated cover up to the 2nd plaintiff.
(ii) That due to the incessant harassments, arrests and detentions of myself and members of my family by the soldiers and policemen at the instance of the 2nd plaintiff and Jimoh Eti, my business has completely been paralysed.
(iii) That up till the present, the 2nd plaintiff and Jimoh Eti have refused, failed, and or neglected to furnish me with the copy or copies of the alleged record of the debt I allegedly owed the deceased and neither have they given me the details as demanded.
(iv) That I have very good defence to the plaintiff’s suit and it is only on open and full trial that can enable the court know the full and true facts of the case.
(v) That to give judgment to the plaintiffs will amount to the plaintiffs using the court to perfect fraud.”
It should be noted that the appellant conceded that he is indebted to the deceased and that he made exhibit B in his own hand writing in which he admitted the debt. That he also admitted the debt in exhibit C. He however subsequently contended that at the time, he made the admissions there was a misrepresentation of facts by the 2nd respondent and another person as to the true state of relevant facts. He is in effect saying that the misrepresentation alleged constituted his defence on the merit of the case. However, that cannot be a complete defence, if a defence under the circumstances, because it does not dispute the fact that the appellant is indebted to the deceased. The alleged misrepresentation relates to the quantum of debt owed but unfortunately, the appellant provided no clue as to the true state of affairs regarding the actual amount owed. He has also not disputed the number of cows allegedly bought by him which the respondents put at 38 cows. This clearly means that he accepts that he bought 38 cows on credit from the deceased. If he disputes the total amount being claimed as the cost for the said 38 cows, it is his duty to depose to how much each cow costs and how much he had paid by way of installments and what was now due and payable. This would have demonstrated in practical terms whether the figure claimed by the respondents is in fact fabricated, as alleged or based on misrepresentation.
Without these facts, the question of misrepresentation becomes an after thought particularly in view of the clear and unambiguous admission in exhibits Band C, which admission is conceded by the appellant.
It is trite law that oral evidence is inadmissible either to add to or subtract from the contents of a document – in this case exhibits B and C. Therefore, in view of the facts, it is clear that paragraphs 5 and 6 of the appellant’s affidavit constitute no defence on the merit. To that extent, I am of the view that the lower court is correct in holding that the appellant has not, on the facts produced, shown that he has any defence on the merit to the action and proceeded to enter judgment against the appellant under the undefended list. That there being no defence made out, there was nothing to be transferred from the undefended list to the general cause list to be dealt with according to law. I therefore resolve the issue against the appellant.
On the third and final issue, learned counsel for the appellant submitted that the learned trial Judge erred in awarding 10% interest per annum from 15 day of March, 1990 until final liquidation, in view of the fact that what was owed was a simple debt which is interest free except there are contractual obligations expressed or implied or business usage or some statutory provisions relying on R.E.O. Ents. Nig. Ltd. v. Nwosu (2002) 11 WRN 28 at 33; Nigerian Victory Assurance Co. Ltd. v. Grains Proc. Co. Ltd. (1995) 3 NWLR (Pt.386) 671.
That there is no evidence in support of the claim for interest, which claim ought therefore to be refused, learned counsel further submitted.
On his part, learned counsel for the respondents submitted that the claim of 10% interest is based both on business usage and statute and that it is supported by facts deposed to in the affidavit. Learned counsel then referred the court to paragraphs 16 and 17 of the said affidavit. That the sum claimed arose from sale of cows on credit which is within the Sale of Goods Law. Learned counsel further submitted that the failure of the appellant to pay the debt deprived the respondents of the money to purchase more cows for sale. Learned counsel then cited and relied on Benjamin’s Sale of Goods, 3rd Ed., Pages 748-751; Kemp v. Tolland (1956) 2 Lloyds Report 681 at 691; R.E.A.N. Ltd. v. Aswani iles Ind. (1991) 2 NWLR (Pt. 176) 639.
That it is both logical and in consonance with business transaction that the appellant who delayed payment for the 38 cows bought on credit pays interest on the debt. That the facts backing the claim for interest are sufficiently stated in paragraphs 14, 15, 16, 17 and 18 of the affidavit in support of the claim. Counsel finally submitted that since the interest awarded the respondents is justified by commercial usage and custom, the court should resolve the issue in favour of the respondents and dismiss the appeal.
Reacting to the submission of his learned friend on the issue of interest, learned counsel for the appellant submitted that the Sale of Goods Law cannot ground a claim for interest on a debt arising from sale of live cows because by the definition of goods in section 2(1) of the Sale of Goods Law, Cap. 143, Laws of Kwara State, 1994, cows are not included. That in any event, the respondents have produced no evidence in support of the claim for interest. He then urged the court to allow the appeal.
It is not disputed that the appellant had a long standing business relationship with the deceased from whom the appellant bought cows on credit. This clearly shows that both the appellant and the deceased traded on cows. Also not disputed is the fact that the appellant bought a total of 38 cows from the deceased on credit. In short, the appellant is indebted to the deceased and did admit the indebtedness vide exhibit “B” attached to the affidavit in support of the claim. What is being contended is whether in view of the facts of this case, the respondents are entitled to an award of interest on the debt arising from the credit sale of 38 cows to the appellant.
It is trite law that the lower court has the power or jurisdiction to award interest in appropriate cases before it. The interest can be pre-action and post action. By pre-action interest, I mean interest on a sum claimed which predates the institution of the action while by post action interest, I mean interest awarded by the court on judgment debt or after judgment sum had been awarded.
Whereas, the jurisdiction of the court to award pre-action interest is rooted in common law or statute, that of post action or judgment is grounded in the rules of court. In Kwara State, the jurisdiction of the High Court to award post action or judgment interest is regulated by Order 40 rule 7 of the Kwara State High Court (Civil Procedure) Rules, which provides that the court, at the time of making any judgment or order, or at any time within which the payment or other act is to be made or done, reckoned from the date of judgment or order, or from some other point or time as the court may think fit, “and may order interest at a rate not exceeding ten naira per-centum per annum to be paid upon any judgment commencing from the date thereof or afterward as the case may be.”
From the facts of this case, it is clear that Order 40, rule 7 of the Rules of the said High Court does not apply since the interest claimed pre-dates the judgment. It is a pre-action interest.
Now for the court to have the jurisdiction to award pre-action interest, the facts of the claim for interest must be pleaded by the plaintiff and evidence produced at the trial in support of the claim for award of such interest. In the present case, the respondents pleaded 10% interest on the debt owed from 15/3/98 till liquidation. The claim for interest thus pre-dates the action – See paragraph 17 of the supporting affidavit.
The general rule is that interest is not recoverable at common law on ordinary debt unless there are some contractual obligation, expressed or implied, business usage or statutory provision. The appellant bought the cows on credit and trades with them for profit. Meanwhile, he refused or neglected to pay the debt to enable his creditor re-stock and carryon with his own business at a profit.
Learned counsel for the appellant has argued that cows do not constitute goods under the Sale of Goods Law. This is misconceived. It is also funny when one realizes that the appellant makes his living by buying and selling cows at a profit but says that such a transaction does not come within the purview of the Sale of Goods Law.
Now section 2(1) of the Sale of Goods Law, Cap. 143, Laws of Kwara State defines goods to “include all chattels personal other than things in action and money, and include emblements, industrial growing crops and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.”
On the other hand, Blacks Law Dictionary, 7th Ed. at 229 defines ‘chattel’, inter alia, as follows:
“Chattels are either personal or real. Personal, may be so called in two respects; one, because they belong immediately to the person of man, as a bow, horse, etc. The other, for that being any way injuriously withheld from us, we have no means to recover them, but personal actions…” (Emphasis supplied)
From the above definitions, it is clear that goods or chattels in our con include animate and inanimate personal property which will, of necessity include horse, goats, sheep, cows, cars, tables, patents etc.
By section 64 of Cap. 143 supra, a buyer or seller of goods can recover interest. The issue however is whether there is evidence in support of the award of interest. I have carefully gone through the affidavit in support of the undefended list action and I agree with the submission of learned counsel for the respondents that the claim for interest is based on statute – that is the Sale of Goods Law, section 64 thereof – and as deposed to in paragraph 17 of the supporting affidavit. That being the case, the claim for interest is statutory and therefore recoverable. I therefore resolve the issue against the appellant.
In conclusion, I find no merit in the appeal which is accordingly dismissed with N5,000.00 cost in favour of the respondents.
Appeal dismissed.
Other Citations: (2004)LCN/1600(CA)
