Hydroworks Limited V. Rimi Local Government (2001)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
This is an appeal against the decision of Katsina State High Court of Justice, sitting in Katsina, wherein the appellant applied under Order 46 rule 1 of the Katsina State High Court (Civil Procedure) Rules for the following order:-
(1) An order directing the deputy sheriff of the High Court to levy execution on the assets of the respondent in satisfaction of the judgment of the High Court in the sum of N4,249,109.99 in suit No. KTH/8UL/98.”
A copy of the certificate of judgment was attached to the affidavit in support and marked as exhibit A and B. There is a further and better affidavit with 2 attachments.
The application is opposed by a counter affidavit. I cannot find authority for bringing this application pursuance of Order 46 rule 1 of the Katsina State High Court (Civil Procedure) Rules Cap. 60 of the Laws of Katsina State of Nigeria, 1991. The applicant’s remedy lies in Sheriffs and Civil Process Law Cap. 125 of the Laws of Katsina State of Nigeria 1991. Section 19(2) thereof provides for the procedure for levying execution of judgment or orders for sum of money. It reads as follows:-
“(2) The registrar on the application of the judgment creditor shall cause to be issued a writ of attachment and sale whereby the sheriff shall be empowered to levy or cause to be levied by distress and sale of goods and chattels, wherever they may be found within the division or district of the court, the money payable under the judgment and the costs of the execution.”
The judgment sought to be executed was “in the sum of N459,910.99 and 25% interest from May, 1997 until the judgment sum was fully liquidated” obtained under the undefended list. The judgment delivered by Sanusi, J. (as he then was) was not executed until his elevation to the exalted position of the Justice, Court of Appeal.
He was consequently not available to sign or endorse the writ of execution in respect of the judgment. It is not clear from the record why another Judge of that court was not assigned to endorse the writ of execution.
The respondent did not appeal against the judgment nor apply for a stay of execution of the judgment. It however made some installmental payments at various dates totaling N350,000.0 thereby leaving an outstanding balance of N109,910.00 plus the interest of 25% unpaid. The installmental part payment were made between May and September, 1998. Thereafter the respondent refused or failed to make further payment. In exasperation, the applicant took the present step, seeking execution of the judgment by way of motion on notice which had been struck out by the learned trial Judge. In arriving at its decision the learned trial Judge inter alia reasoned as follows:
“It should be noted that though the date of judgment was 1st April, 1998, the payment of the debt was put at May 1997 however as it had been agreed by both parties that the sum of N350,000.00k was paid in 3 installments any further calculation of interest ought to be done less than amount already paid, including the N109, 910.99 paid on 1/7/2000”.
The applicant was displeased with the order striking out his application to execute the judgment. Being unhappy and dissatisfied had appealed to his court on 3 grounds of appeal including the general ground. Briefs of argument which were adopted and relied upon on the day fixed for hearing, were filed and exchange. They were settled at the appellant’s brief, appellant’s reply and respondent brief of argument. In each brief issues for determination were formulated.
In the appellant’s brief, 3 issues were identified as calling for determination. The issues are setout immediately hereunder:-
(1) Whether the lower court (High Court of Justice No. 5 of Katsina State) ever evaluated the affidavit evidence or was correct in its evaluation of the affidavit evidence placed before it.
(2) Whether the lower court could question, review or sit on appeal over the subsisting judgment of the High Court of justice No. 2. Katsina State which awarded 25% interest on the judgment sum “from May, 1997 until the judgment is fully liquidated”.
(3) Whether the installment payment of the principal sum could preclude the respondent from paying the 25% interest as awarded by the trial court when there was no appeal against same.
The respondent submitted four issues for determination. The 4 issues are recited immediately hereunder:-
(1) Whether the grounds of appeal of appellant are competent, the grounds being grounds of facts and of mixed law and facts for which no leave of court was obtained. The appeal being interlocutory.
(2) Whether High Court No.5 Katsina was right in refusing to enforce an interest of 25% per month was claimed by the appellant.
(3) Whether High Court No.5 was sitting on appeal when it struck out the application of the appellant.
(4) Whether interest to be charged on the balance remaining unpaid or no the whole sum awarded even when part of the judgment debt had been paid”.
Issues must be framed from ground or grounds of appeal and an issue which does not derive from a ground of appeal should be struck out: Effiong v. State (1998) 8 NWLR (Pt. 562) 362, 368. There is only one notice of appeal filed by the appellant before this court and there is no ground or combination of any of them giving rise to respondent’s issue (1).The respondent has not cross-appealed hence he has no memorandum of appeal from which its issue (1) can derive. That issue is, therefore, incompetent. The respondent can only come by way of notice of intention to rely on a preliminary objection against the appeal under Order 3 Rule 15 of the Court of Appeal Rules, Cap. 62 of the Laws of the Federation of Nigeria, 1990, if it were seriously minded to raise a preliminary objection against the appeal.
Having neglected or refuse to come by the procedure prescribed by the rules, Cap 62, the objection by motion on notice is incompetent. Where statute, as in the instant appeal, has laid down a certain procedure and there is no doubt from the language used in the statute that that should be the only procedure available court will not allow any departure from the procedure: Pasmore v. The Oswaldtwistle Urban District Council (1898) AC 387, 394; (1895 – 1899) All ER 191.
The kernel of this appeal is what informed the parameter used by the learned counsel for appellant to arrive at a judgment debt of N4,249,109.99 he wanted enforced. In this connection, according to learned counsel for appellant when the “25% interest” per month on N459,910.99 awarded by the trial court multiplied from “May 1997” to April 2000, when the application was filed one would arrive at N4,249,109.99. On receipt of final installmental payment of N109,910.99, he reduced the indebtedness from N4,249,910.99 by the latest payment to N4,139,199.00.
Learned counsel asserted further that the calculations which I have referred to above is contained in paragraphs 3(e) of the affidavit in support of the application and 4(f) and (g) of the further affidavit.
Paragraph 3(e) reads as follows:-
“(e) That as at today, the principal balance with interest stand at N4,249,109.99.”
Paragraphs 4 (f) and (g) of the further affidavits are set out hereunder:-
“(f) That the respondent having recently paid the sum of N109,910,99k to the applicant (after the filing and service of this application on her) is now left with a debt of N4,139,199.00 to pay.
(g) That the outstanding sum owed the appellant emanated from the 25% interest per month on the sum of N459,910.99 from May 1997 to April 2000 (as awarded by the court) and that this is bound to rise with every passing month.”
The learned counsel throughout his two affidavits failed, neglected or refused to explain how he came by the interest rate of 25% per month. It is however, stated in the certificate of judgment annexed to the application for an order of execution that:-
“Judgment entered for the plaintiff in the sum of N459,910.99 (…) and 25% interest from May 1997 until the judgment sum is fully liquidated.”
The appellant did not exhibit the judgment sought to be executed to its application. The certificate of judgment exhibited hereto is not made by the learned trial Judge. Rather it is made by the registrar, High Court.
Be that as it may, the certificate is silent over the word “per month” which learned counsel has inexplicably interpolated into the judgment. Learned counsel has not explained how he came by the phrase “per month”. I am respectfully of the view that learned counsel cannot, in the absence of any explanation impose his own interpretation on the respondent as well as the court below and this court. One is not sure whether the words “per month” exist in the judgment of Sanusi, J., (as he then was) but the party who has duty to produce but failed to and kept the judgment away from the court cannot complain if the document is construed against him. See S. 149(d) of Evidence Act.
Interest is exaction or compensation for delay in payment. It is usually or customarily stated by the year and not by the month, monthly or daily. I have support of Black’s Law Dictionary 5th Edition by Henry Campbell Black at 730 for this view. It defines words “Interest rate” as:-
“The percentage of an amount of money which is paid for its use for a specified time. Commonly expressed as an annual percentage rate,”
(Italics mine)
It is not the practice to fix interest rate per diem or by the month. It will be usurious especially when the rate is as high as in the present case. The rate of interest used is therefore, in the absence of express words of the court, fixed at the customarily accepted way of expressing it as an annual percentage rate or per annum and not as monthly percentage rate. The words per month imported into the judgment is neither supported by practice, custom nor the judgment and is respectfully expunged and substituted with “per annum”.
I am strengthened in this view by the decision of the Supreme Court in the case of Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478 wherein the Supreme Court effortlessly or unhesitatingly read the words per annum into Order 27 rule 8 of the Kano State High Court (Civil Procedure) Rule now Order 40 rule 12 which otherwise reads as follows:-
“12 Unless otherwise ordered by the court interest shall be paid on outstanding judgment debts at the rate of 10% from the date of judgment whether or not the judgment debtor is allowed time to pay by installment.”
The court was guided in its decision by practice in coming to the conclusion that the 10% interest rate was per annum and not monthly. The court below also has power to correct slips, errors of omissions in its judgment by applying slip rule in rectifying the omission in the interest rate by clarifying whether it is per annum or per month: Berliet v. Kachalla (1995) 12 SCNJ 147, (1995) 9 NWLR (Pt. 420) 478 and Asiyanbi & Others v. Adeniji (1967) 1 All NLR 82.
The extent and scope is that the power to correct clerical error should not be used as a subterfuge or excuse for reviewing or rehearing a case. In the case of Ministry of Lagos Affairs, Mines and Powers v. Akin-Olugbade (1974) 9 NSCC 489, (1974) 11 SC 11, 22 where the applicant under the pre of effecting clerical error attempted the review of Supreme Court judgment. But it was refused on the ground that once a court has signed a judgment and the order drawn up the court is powerless or functus officio in respect of the issues so resolved: Thynne (Marchioness of Bath) v. Thynne (Marcquess of Bath) (1955) 3 All ER 128.
This court when hearing appeal is vested with the jurisdiction of the trial court by virtue of section 16 of the Court of Appeal Act, Cap. 75 of the Laws of the Federation of Nigeria, 1990. It can therefore correct the omission in the judgment of the trial court, even though there was no such application before the trial court ex debito justiciae by inserting the word per annum.
Next to be considered is the method of computation adopted by the learned counsel for the appellant who failed to direct the court to the basis or authority of casting the interest. He claimed to have multiplied the number of months between the month of “May 1997” and April 2000 to arrive at the outstanding interest of N4,139,199.00 notwithstanding the installmental payments already made. Learned counsel for appellant led no evidence, in his affidavits, to establish that this is the method of calculating interest. Neither did he cite any authority be it statutory or otherwise to support the approach he adopted. Since interest is charged on an amount of money taken for use for a period, the same will not be chargeable on the principal already repaid or refunded. The application of the duration of the loan to the total sum owed to arrive at the amount sought to execute when some payments had been made is, to my mind, wrongful. In computing interest upon which partial payments have been made every payment is to be first applied to keep down the interest but the interest is never allowed to form a part of the principal so as to carry interest. The appellant, in the circumstance, failed or neglected to apply the partial payments of N350,000.00 he received between May, 1998 and September, 1998 to keep down the principal before charging the interest. The dates when the payments were made are not ascertainable from the record. What is clear is that there were payments in May and September, 1998 and the final payment, acknowledged in Exhibit ‘C’ was made on 11/7/2000. This court can therefore, not resolve the issue, the matter involving not mere arithmetical calculation but one for scouraging for evidence especially for the second payment in 1998 which is not on the record. The days when the payments were made could be relevant.
On the whole, the interest is chargeable at the rate of 25% per annum. The installmental payments paid is to be taken into account in calculating the res. It does follow that the appellant is entitled to interest on the total principal for the first year, May 1997 to April 1998. In calculating the interest for the second year the respondent should be given credit for the sum of N350,000.00 paid before calculating the interest. Thereafter interest from the time last installment was paid up to liquidation of the judgment debt should be on the balance of N109,910.00 which was tendered and accepted on 11th July, 2000. In other words, from September, 1998 when the last installment was made up to 11th July, 2000 both dates inclusive interest is chargeable only on the balance of N109,910.99.
It should by no means be understood that interest cannot be calculated on daily or monthly basis. The liability of the respondent to interest can be ascertained on monthly or daily basis. But the rate of interest, at all times, shall be 25% per annum.
There is no substance in the submission of the learned counsel for the respondent that the learned trial Judge, Sanusi, J., (as he then was) wrongly ordered payment of interest from a day predating his judgment. Plaintiffs have claimed and courts have made it practice to make order for payment of interest from filing of the suit up to the date of judgment that is pre – judgment interest. The plaintiffs so claimed. This is not an exception. In any case, Sanusi’s judgment is not in issue before this court. The order contained in his judgment subsists until it is set aside. The respondent herein having elected to live with the judgment by not appealing against same cannot by a back door seek to torpedo it.
The learned trial Judge A.M. Yusuf misconstrued and consequently mis-applied the decision of this court in the case of Auto Engineering Sales & Service Limited v. Aina Adeosun (1993) 5 NWLR (Pt. 293) 377, 383, upon which he heavily relied. This case of Adeosun is not on all fours with the instant appeal. The plaintiff in that case claimed N74,835 debt but before judgment was entered the defendant had paid N30,00.00.
The learned trial Judge in entering judgment for the plaintiff did not take into account the partial payment already made. Apart from entering judgment for the sum claimed, he assessed interest on the undue sum of N74,835, rather than on the balance and also entered judgment for the said interest. The question in that case is whether an appeal can succeed against a judgment entered for a sum for more than the debt due.
I disagree with the submission of learned counsel for appellant that the learned trial Judge sat on appeal on the decision of his learned brother, Sanusi, J., (as he then was) a Judge of co-ordinate jurisdiction. The learned trial Judge did not reverse or sit on appeal on the decision of his learned brother. As it can be gathered from his decision he was very conscious and anxious not to do exactly what he is now being wrongly accused of. The concern of the learned trial Judge was to balance the interest of both parties: the anxiety not to deny the appellant the fruit of the judgment he obtained and at the same time the need to avoid giving the appellant what does not belong to it. Learned trial Judge would have clearly been wrong to enforce an order, which was not made by the court. Certainly the High Court did not award an interest of 25% per month to the appellant. To enforce it would tantamount to travesty of justice. Perhaps his desire to do substantial justice to both parties informed his decision not to refuse the application but to simply strike it out to enable the applicant to come properly.
The problem herein is caused by the learned counsel for appellant personalizing the decision of the court below. The decision is that of the Katsina State High Court of Justice and not that of the particular Judge who delivered it. And if such Judge is no longer there, for whatever reason, the decision had to be enforced through the normal process created by the practice and procedure of the court.
Absence of a Judge through death, retirement or elevation does not tag judgment or judgments delivered before his departure with any stigma to deprive it of enforcement through the regular procedure.
The writ of execution of such judgment could be endorsed by any other Judge of the same jurisdiction on confirmation from the records that what is sought to be enforced is infact the judgment of the court.
The attempt of the learned counsel for appellant to make the judgment assume some special status which speciality it does not possess mainly caused the present problem.
The appeal fails and it is dismissed by me. The decision of the trial Judge is hereby affirmed. I shall make order as to costs assessed by me at N3,000.00 in favour of the respondent.
Other Citations: (2001)LCN/1007(CA)
