First City Monument Bank Plc V. Barrister Dolly Akanimo (2007)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, J. C. A. OFR
The plaintiff instituted two separate actions against the defendants by, in respect of each suit, taking out a writ of summons and filing a statement of claim dated on the same day, 21st October 1993. The two suits LD/3200/93 and LD/3201/93 were subsequently consolidated in suit LD/3200/93 by an order of the trial court given on 10th October, 1994.
In the consolidated amended statement of claim dated 29th September, 1994 the plaintiff who incidentally is a legal practitioner claimed against the defendants for his professional fees in the trial court as follows-
“WHEREUPON the plaintiff claims:
1(a) The sum of 374, 175.54 (three Hundred and seventy-four thousand one hundred and seventy-five Naira fifty-four kobo in the paragraphs 1 (a) (i) – (v) herein; being the bill of cost for professional services rendered by the plaintiff to the 1st defendant at the 1st defendant’s instructions (in respect of a N=3.6 million (three million six hundred thousand naira) assignment of 2nd floor, Akuro House 24, Campbell Street, Lagos in favour of the defendants with interest at the rate of 43% effective 20/7/93 till 31/12/93 and thereafter interest at the rate of 21 % till the full amount is liquidated.
(i) cost of negotiating the purchase of the N=3.6 million property known as 2nd Floor, Akuro House, 24 Campbell Street, Lagos on behalf of the defendants -N=100,950.54 (One hundred thousand, nine hundred and fifty naira, fifty four kobo.
(ii) cost of preparing a N=3.6 million assignment on the said property – N=270,225.00 (two hundred and seventy thousand two hundred and twenty five naira) as premised on scale I paragraphs 3, Legal Practitioners Remuneration For Legal Documentation add Other Land matters) Order, 1991
(iii) cost of conducting legal search of Lands Registry, Lagos in respect of the property N2,000.00.
(iv) cost of conducting legal search at Corporate Affairs Commission, Abuja in respect of the property – N=5,000.00.
(v) legal opinion – N= I000.00
SUBTOTAL N=374,175.54
(b) A mandatory Order that the fees of N=100, 950.54 as premised under the enabling Law is mandatory on the defendants to settle
(c) A mandatory order that the fees of N=270,225.00 less the N=5000 as premised under the enabling law is mandatory on the defendants to settle.
(d) A mandatory order that the fees in paragraph a – (iii), (iv) and (v) above are fair and reasonable in the circumstance hence the defendants are obliged to pay them OR
(e) IN THE ALTERNATIVE such professional fee as is fair and reasonable in the circumstance.
2(a) The sum of N=1,086,000.00 (One minion and eighty-six thousand naira) being the bill of cost for professional services including the preparation and engrossment of the Loan Sale Agreement rendered by the plaintiff to the 1st defendant at the 1st defendant’s instruction in respect of a N=14.5 million Loan Sale Agreement between the 1st defendanIt and ICON Ltd Merchant
(b) A mandatory order that the said fee of N=1,086, 000.00 as premised under scale I paragraph 3 of the Legal Practitioners Remuneration for Legal Documentation and other Land Matters Order, 1991 is mandatory and binding on the defendants to settle
GRAND TOTAL = N=1,460.175.5
OR
IN THE ALTERNATIVE, such professional fee as is fair and reasonable in the circumstance”
The defendants, with the leave of the trial court, filed a further consolidated amended statement ofdefence. To which the plaintiff filed a consolidated reply.
The matter then proceeded to trial on the plaintiffs amended consolidated statement of claim, amended consolidated statement of defence as well as a consolidated reply to the defendants’ consolidated statement of defence. After taking testimony of two witnesses from either sides and addresses of counsel, learned trial judge in his judgment delivered on 14th May, 2004 held that the plaintiffs claim succeeded but awarded interest on the monetary claims at the rate of 21% per annum from 31st December, 1996 till the date of judgment and thereafter 71/2 % per annum till the liquidation of the judgment debt fully.
The first defendant being dissatisfied with the judgment appealed against it to this court within the time prescribed. Subsequently the defendant (hereinafter referred to as the appellant) applied to the trial court to set aside the judgment for want of jurisdiction. The application was predicated upon the ground that the condition precedent to exercise, by the court below, of its jurisdiction had not been fulfilled, as the plaintiff (hereinafter referred to as the respondent) had failed or neglected or refused to comply with the requirement for the taxation of his Bills of Costs as provided in Order 51 rule 5(1) of the Lagos State High Court (Civil Procedure) Rules 1972. The application was opposed with a counter affidavit of the respondent. In a ruling delivered on 27th September, 2004, learned trial judge refused the application to set aside his judgment on account that it was too late in the day for the appellant to challenge the judgment on the ground of non – compliance with a condition precedent to bringing of the consolidated suits.
Rather than appealing separately against the ruling on a notice of appeal, learned counsel sought and obtained leave to amend its notice of appeal filed in respect of the judgment delivered on 14th May, 2004, more than four months, before the ruling of 24th September 2004 was delivered, incorporating grounds of appeal from the ruling. The court also on the 9th January, 2006 when it granted leave to amend the appellant’s notice of appeal deemed the amended notice of appeal already filed as properly filed and served.
The respondent also on 12th August, 2004 gave a notice of appeal. At the hearing of the appeal, appellant adopted its briefs including appellant’s brief, appellant’s reply brief and cross-respondent’s briefs. The respondents equally, adopted his respondents, cross appellant’s as well as cross appellant’s reply brief.
The appellant in its brief formulated two issues for determination in the appeal which he respectively related to 2 of its two grounds of appeal contained in its amended notice of appeal. The issues formulated by the appellant in its appellant’s brief are recited immediately hereunder-
“3.1 Whether the High Court of Lagos State was competent to assume jurisdiction to entertain suits No. LD/3200/93 ,3201/93, which suits were subsequently consolidated as suit No. LD/3200/93, in view of the failure by the Respondent, a legal practitioner, to comply with the requirement for the Taxation of his Bills of costs as contained in Order 51 Rule 5(1) of the High Court of Lagos State (Civil Procedure) Rules 1912 which were the operative Rules of the court at the time of the institution of the respective suits. This issue arises out of Ground I of the Amended Notice of Appeal dated 9th January, 2006.
3.2 Whether the award of pre – judgment interest to the Respondent by the court below was rightly made in the light of the evidence before that court.
This issue arises out of ground 3 of the Amended Notice of Appeal dated 9th January, 2006.
The respondent, on the other hand, framed three issues in respect of the three grounds of appeal notwithstanding the withdrawal and striking out of the appellant’s ground 2 of the grounds of appeal. When respondent was invited to explain the apparent proliferation of issues he abandoned the issue, identified from ground 2 of the grounds of appeal as well as the argument already canvassed in respect of the issue. In the result, both the issue and the argument raised in its support were struck out.
The respondent’s issues were eventually settled at-
“I Whether a party who voluntarily submitted to the court’s jurisdiction and pleasantly participated at the trial until judgment was delivered can later complain of want of jurisdiction of the court arising from lack of fair hearing on appeal.
2. Whether on the state of the pleadings and evidence before the court, the Respondent discharged the onus of proof on his claim for pre – judgment interest to be validly entitled to the award of same, a fortiori the implied admission lack of specific denial by the appellant?” ,
Clearly, appellant’s issue 1 does not arise from any of the grounds of appeal against the judgment delivered on 14th May, 2004. The issue can only arise from the ruling subsequently delivered on 24th September 2004 more than three months after the decision of 14th May, 2004. The appellant failed to appeal against the said ruling. Instead it sought and obtained leave to amend the notice of appeal in the previous decision to incorporate its grouse in the latter decision apparently outside the time prescribed. The unorthodox step taken by the appellant defiled all known principles for bringing an appeal in the Court of Appeal. It kicked against the provisions of the Court of Appeal Act, Cap C. 36 of the Laws of Federation of Nigeria 2004. Appeal can only be properly and validly brought, in this court, if the notice of appeal is filed timeously within such time as prescribed or within the time extended for so doing where the time prescribed had expired.
Section 24 of the Court of Appeal Act Cap C. 36 states period for bringing an appeal as follows-
24. (1) Where a person desires to appeal to the Court of Appeal, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed be the provision of subsection (2) of this section that is applicable to the case.
(2) The periods for the giving of notice of appeal or notice of application for leave to appeal are –
(a) in an appeal in a civil cause or matter fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision
(b) in an appeal in a criminal cause or matter, ninety days from the date of the decision
(3) xxx
(4) The Court of Appeal may extend the periods prescribed in sub-section (2) and (3) of this section.”
(underlining mine)
The appellant did not appeal against the latter decision within the period prescribed under section 24 sub-section (2). It is equally not on the record that it sought and obtained extension of the time prescribed in subsection (4) thereof. Having failed or neglected to appeal against the latter decision within the stipulated period, it is incumbent, to properly challenge that decision, to seek extension of time to appeal under subsection (4) of section 24. There is nothing on record indicative of such desire on the part of the appellant. What the appellant did, that is, amending the notice of appeal in the earlier decision to accommodate its grouse in the latter decision is certainly not within the contemplation of any of the provisions of section 24 of the Court of Appeal Act, Cap C. 36.
Certainly no appeal can competently be brought after efflusion of time stipulated for bringing such an appeal without seeking and obtaining enlargement of time to appeal.
An appeal cannot be filed against a decision of any court whose appeal lies to this court out of time by merely seeking leave of court or by way of amendment of the notice of appeal in a different decision. The only exception to this rule is where the relevant decision had been appealed against within the period fixed and the appeal thus brought is valid and competent. In such situation, amendment may be sought to correct errors which had not invalidated the said notice of appeal. Additional grounds of appeal may be permitted either with the leave of court simplicitier or by amendment of the notice of appeal. Such additional grounds, however, introduced must arise from the judgment or decision in respect of which the notice of appeal had been filed and not from any extraneous decisions. The appellant having failed to appeal against the ruling delivered on 24th September, 2004 within the time fixed in the Court of Appeal Act, Cap C. 36 cannot surreptitiously achieve the same goal by smuggling ground or grounds of appeal which are not relevant to the ratio descedendi of the judgment appealed against under the pre of amendment of the notice of appeal. In other words, for a ground of appeal to be valid or competent it must assailed a ratio descedendi in the judgment or decision in the relevant notice of appeal.
In the circumstance, ground 1, of the amended notice of appeal not arising from a ratio of the judgment or decision appellant appealed against within the time or period prescribed fourteen or ninety days, which ever is applicable, is respectfully incompetment. It is struck out. Appellants’ issue one culled from it is equally incompetent and also struck out along with the argument canvassed in its support in the appellant’s brief.
Next is the appellant’s second formulation. It is directed against the pre-judgment interest awarded to the respondent by the learned trial judge. In this regard, learned counsel for appellant, in the appellant’s brief, argued that a pre-judgment interest might be awarded in circumstances where it is contemplated by an agreement between the parties or under a mercantile practice or principle of equity. He cited the cases of Ekwunife v Wayne (West Africa) Limited 1989 5 NWLR (Pt. 122) 422, 445 and Anunobi v Obiwloso (2003) 12 NWLR (pt. 835) 617, 641. It was further submitted that the rule of law is that interest must not only be pleaded but strictly proved.
The respondents learned counsel in the respondent’s brief contended that either on the pleadings or evidence he discharged the burden of proof on him in respect of his claim for pre-judgment interest to be validly entitled to the ward, a fortori, the implied admission by the appellant in the absence of specific denial. He went further to state that the rate of interest and commencement date in paragraph 51(1)(a) and 51(2)(a) of his consolidated amended statement of claim was sufficient notice to the appellant. He also refer to the evidence adduced in support of the said claim.
Although I had recited the respondent’s claim earlier in this judgment, it is necessary, if only for convince to recap the portion dealing with claim of interest. In this connection the respondent claimed as follows in paragraph 51(1)(a) and (2)(a) of the amended consolidated statement of claim –
“51(1)(a) The sum 374,175.54… with interest at the rate of 43% effective from 20/7/93 till 31st December 1993 and thereafter interest at the rate of 21% till the full amount is liquidated.”
(2)(a) The sum of N=1,086,000 with interest at the rate of 43% effective 1/12/1992 to 31/12/1993 and thereafter interest at the rate of 21 % until the full sum is liquidated.
In support of this claim, the respondent succinctly testified inter alia as follows –
“…. 1 am praying the court to hold that the sum of N1 , 086,000 being professional fee for preparing and engrossing the loan sale agreement is mandatory on the defendants to settle with interest at the rate of 43% from 1/12/92 to 31/12/93 and thereafter interest at the rate of 21% until final payment.
I claim as per my 1st Amended and consolidated writ of summons dated 17/5/95.”
The learned trial judge in his judgment stated as follows –
“As for the claim for interest, I find that the plaintiff, has been unduly and without any justification, kept away from money due to him I believe the plaintiff is entitled to interest…
“The plaintiff is entitled to interest in respect of the above at the rate of 21% per annum from 31st December, 1996 to this day and thereafter at the rate of 71/2% per annum from this day until the judgment debt is fully liquidated.”
Clearly, the respondent, apart from claiming the two sets of interests in his amended consolidated statement of claim, failed to plead the bases for the two sets of interests. Generally interest is not payable or recoverable at common law on ordinary debt in the absence of an (a) agreement, implied or express; (b) some mercantile usage; (c) statute, such as S17 of Judgment Act of 1838 and sections 9 (3) and 51 of Bills of Exchange Act, Cap B.8 of the Laws of Federation of Nigeria, 2004. Also, a court has power under its equitable jurisdiction to award interest where a person in a fiduciary position has improperly profited from his fiduciary position. See Harsant v Blaine Maconald & Co (1887) 3 TLR 689, Ekwnife v Wayne (W.A) Ltd (1989) 5 NWLR 422, 445 and Himma Merchant Ltd v. Alhaja Aliyu (1996) 6 SCNJ 87.
Consequently the plaintiff, respondent herein is required not only to plead his entitlement to interest but also prove same strictly. It should be noted that the rate of interest is a special damage which must also be established strictly: Union Bank of Nigeria Plc v Sepok Nigeria Limited5 1998 NWLR pt 578 439, 475.
Not only parties are bound by their pleadings the court is also bound and to allow a party to adduce evidence contrary to his pleadings is to allow that party to make a different case to the trial. Such testimony the court is to consider as not belonging to the issues raised otherwise the defendant would be taken by surprise. The purpose or object of pleadings is to avoid taking the other side by surprise. George v Dominion Flour Mills Ltd (1965) 1 All NLR 71, 78 & 79, George v UBA Ltd (1972) 8/9 SC 264 and Emegokwue v Okadigbo (1975) 4 SC 113.
The contention of the respondent that S.3 of the Law Reform (Miscellaneous Provisions) Act 1934 of England and the decision of Uwaifo JCA (as he then was) in National Bank of Nigeria Ltd vs Savol W.A. Ltd (1989) 5 NWLR (Pt. 122) 422, 445 afforded him the relief sought is short on pleadings. It may not be necessary to plead law but before a party can obtain a relief pegged on a statute, adjectival or otherwise, such a party has to plead the facts which bring the matter within the contemplation of the law. In Lever Brother Ltd v Bell (1931) 1 K.B 557, 582 – 3 Scrutton LJ. Observed as follows.
“The practice of the court is to consider and deal with the legal results of pleaded facts, though the particular result alleged is not stated in the pleadings.”
In Shaw v Shaw (1954) 2 All E.R 638, 645 it was held thus-
“It is said that implied warranty is not alleged in the pleadings, but all the material facts are alleged, that is sufficient for the court to proceed to judgment without putting any particular legal label.”
In the instant case, the respondent did not plead the facts which forms the basis of his entitlement to or claim for interest. His contention that failure on the part of the appellant to deny the averments tantamounts to admission which invariably entitled him to judgment is clearly a misapprehension of the law. I agree that it is an elementary principle of our law which no longer requires quoting of authority that, in civil cases, what is admitted needs no further proof. Vide S 75 of the Evidence Act Cap 112 of the Laws of Federation of Nigeria 1990 and the case of T.L Owosho v M.A. Dada (1984) 7 SC 149 at 163 – 164 per Aniagolu JSC stated
“But a plaintiff need not proceed to prove admitted fact.
And a fact is deemed to be admitted if it is neither specifically denied nor admitted by implication, having regard to the other facts averred in the pleadings.”
See also N.B.N v P.B Olatunde Co Nigeria Ltd 1994 3 N.W.L.R Part 334 512,526. There is, however, in the circumstances of the present case, no iota of averment to be denied or admitted. The respondent merely claimed the interest in the statement of claim and the writ of summons. Nowhere on the pleading are facts averred to for the appellant to deny. In the absence of averment to be admitted or denied it is my respectful view that the appellant cannot be accused of failure to deny. Pray what is there to be denied? Nothing.
Finally the date of commencement of the two claims, contrary to the contention of the respondent, is equivocal or ambivalent. He wanted prejudgment at the interest at the rate 0f 43% effective 20/7/93 till 31st December, 1993 and therafter at the rate of 21 % per annum till full amount is liquidate.” On the second claim he claimed pre-judgment interest at the rate of 43% effective from 1/12/1992 to 31/12/1993 and thereafter at the rate of 21% per annum until the full amount is liquidated.”
What accounted for dual rates of pre-judgment interest is not explained. Since no explanation was forth coming it can safely be inferred that the claim is ambiguous and confusing. How does a defendant faced with such shifting claim react to it other than ignoring it. No reasonable tribunal will expect an answer to such a claim in the absence of averment stating how the plaintiff came to be entitled to two rates of pre-judgment interest with different dates of commencement. The cases of Enahoro v Bank of West Africa Ltd (1971) 1 NCLR 180, 201 and Union Bank of Nigeria Ltd v Salami (1998) 3 NWLR (Pt. 543) 546 cited in the respondents brief do not avail him. In either cases the commencement date for the interest was predicated upon the date of the writ. But in the instant case it was placed on some nebulous dates. The cases’ are therefore distinguishable from the facts of the instant appeal.
I do not think respectfully that the authority cited by learned counsel for respondent/cross-appellant to the effect that the court should grant interest where there is no claim for interest is applicable in the circumstances of the instant appeal. The respondent/cross appellant claimed interest in both his writ of summons as well as his statement of claim. But failed to, on both the pleadings and evidence, to establish same. It is doubtful whether the court can descend into the arena to rescue one side to the detriment of the other.
The appellant issue 2 is answered in the negative. Ground 3 of the grounds of appeal from which it is raised succeeds and it is allowed. The prejudgment interest of 21% is set aside.
In view of the conclusion I have first arrived at on appellant’s issue 2, the cross appeal seems to be overtaken by event. It will boil down to academic exercise to delve into it, at this stage, on the merit.
I wish, however, to observe that the introductory argument in the cross-appeal to the effect that court should award pre-judgment interest to begin to run from the date indicated and specified in the particulars of claim is non-sequitur. Award of interest is discretionary and it would be awarded at the discretion of Court. I have support for this In the Law Reform (Miscellaneous) Act, 1934 cited in the cross appellants brief of argument. Section 3 thereof provides inter alia as follows –
“In any proceedings tried in any court of record for the recovery of any debt or damages, the court may, if it thinks fit, order that the re (sic) shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the period between the date when the cause of action arose and the date of judgment.”
Awarding interest is not of course but is in the discretion of the judge, a discretion which is exercisable not arbitrarily but judicially “according to the rule of reason and justice” See Rokes case 77 ER 209 and Sharp v Wakefield (1891) AC 173.
Respondent failed to show where learned trial judge went wrong thereby justifying our interference with his exercise of discretion.
The cross-appeal fails and it is dismissed. The conclusion I have arrived at on the appeal is that it succeeds partially and it is allowed to that extent. All the decisions of the learned trial judge excluding those touching upon pre-judgment interest are affirmed. The pre-judgment interest of 21% from 31st December, 1996 is hereby set aside. There will be no order as to costs.
Other Citations: (2007)LCN/2523(CA)
