Assad Sabbagh & Naman Sabbagh (Trading As Sabbagh Bros.) V Bank Of West Africa Ltd (1966)

LawGlobal-Hub Lead Judgment Report

BAIRAMIAN, J.S.C.

In the Lagos High Court Suit No. 301/62 the Bank obtained judgment for (a) £3,932-11s-3d as the sum due on the defendants’ overdraft account (b) interest at 10 per cent from 30th May, 1962 to 26th March, 1963 (the date of the judgment) and (c) interest at 5 per cent from 27th March, 1963 until the judgment debt is satisfied. In their appeal the defendants objected to Items (a) and (c) only: on (a) they submit that certain transfers from their account were made by the Bank without authority, and on (c) that interest could not have been allowed in law.

Apart from permutations which may arise, there are three simple cases of interest on the judgment debt: First, where the High Court gives judgment for a sum and does not grant time for payment, with the result that the sum is a present debt; Second, where the High Court, when giving judgment or afterwards, grants time for payment; and Third, where the High Court, when giving judgment or afterwards, orders payment by instalments.

For the court’s power to allow interest in the second case and the third reference was made to rules 7 and 8 in Order 46 of the Supreme Court (Civil Procedure) Rules of 1945 (at p.75 in vol. 10 of the 1948 Laws of Nigeria). In these two cases the judgment debt ceases to be payable as a present debt when the judgment is given; we are concerned with the first case.

In Barclays Bank D.C.O. v. Adigun, 1962 N.N.L.R. 40, the Bank claimed a sum as due on the overdraft and-

“Interest thereon at 5 per cent from the date of judgment pursuant to 0.46, r.7 of our Civil Procedure Rules.”

Smith, S.P.J. decided that the above local rule 7 applied only where the court granted time for payment, and that view was not disputed before us. Counsel for the Bank there also prayed in aid the English rule 16 in Order 42 of the Supreme Court Rules, which provides as follows:-

“16. Every writ of execution for the recovery of money shall be indorsed with a direction to the sheriff, or other officer or person to whom the writ is directed, to levy the money really due and payable and sought to be recovered under the judgment or order, stating the amount, and also to levy interest thereon, if sought to be recovered, at the rate of £4 per cent per annum from the time when the judgment or order was entered or made, provided that in cases where there is an agreement between the parties that more than £4 per cent interest shall be secured by the judgment or order, then the indorsement may be accordingly to levy the amount of interest so agreed. (Rule 17,

The notes in the White Book below rule 16 state that-

“Every judgment debt bears interest at 4 per cent from the date of judgment if pronounced in court; otherwise from the date of entry (Re Claget. infra; the judgments Act, 1838, s.17)” etc. Section 17 of this Act (as printed in Halsbury’s Statutes, vol. 13 p. 369) provides that-

“Every judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment until the same shall be satisfied and such interest may be levied under a writ of execution, on such judgment.”

Smith, S.P.J. was of opinion that, as there was no local provision similar to the above English rule 16, the Bank could not recover interest on the judgment debt as a present debt payable upon judgment being given.

Assuming for the moment that a judgment debt which is payable forthwith carries interest, we are inclined to think that it would be wrong to deprive the judgment creditor of interest merely on the ground that there was no local rule similar to the above English rule: the maxim ubi jus ibi re medium might be invoked to entertain an application for interest. But in a Lagos case that point does not arise, for section 12 of the High Court of Lagos Act provides that-

“12. The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other Ordinance, or by such rules and orders of court as may be made pursuant to this or any other Ordinance, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of Her Majesty’s High Court of Justice in England.”