Lamurde Local Government V. Engr. Eugene Karka & Anor. (2010)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR DATTI YAHAYA, J.C.A.
A writ of summons was taken out of the High Court of Justice Yola, by the respondent as plaintiff on the 1st of June 2001, against the appellant, as defendant. The statement of claim prayed for the following reliefs against the appellant:-
(a) The sum of two million, two hundred and fifteen thousand naira being money due from the defendant to the plaintiff as cost of hiring the plaintiff’s Block Moulding Machine and Power Generating Set between 10th January, 2000 and 10th of January, 2001, or in the alternative as loss of earning from the machineries for the period the Defendant kept same in its custody.
(b) 10% interest on the sum of N2,215,000.00 (Two Million, Two hundred and fifteen Thousand Naira) from January, 2001 until the date of judgment and thereafter at 10% per annum until the judgment debt is finally liquidated.
The facts as disclosed at the trial High Court, show that the respondent entered into a contractual agreement with the appellant to hire to it, a block-moulding machine and a generator, at the rate of N5,000.00 per day for the block-moulding machine, and N1,000.00k per day for the generator. The respondent, pursuant to the agreement, hired the items to the appellant, on the 10th of January 2000, for one year. On the 28th of December 2000, a letter was written to the respondent to collect his machines and contact the Chairman of the appellant, for his claims. He collected his machines, put up his claim, but was not paid anything. Hence his claim before the trial court.
After trial, the trial court gave judgment in favour of the respondent. Being dissatisfied with that judgment dated the 26/7/2005, the appellant filed a Notice of Appeal with nine grounds of appeal. The appellant thereafter, filed the Appellant’s brief of argument on the 16/2/2006. The respondent filed an Amended Respondent’s brief of Argument on the 14/11/2008, to which the Appellant filed a Reply on the 18/4/2006.
At page 3 of the Appellant’s brief, four issues were identified for determination in this Appeal. They are:
- Whether the trial court was right in the award of pre-judgment and post-judgment interest having regard to the state of pleadings and evidence led (Ground 6).
- Whether the learned trial Judge properly appraised and evaluated the case of parties before him and whether respondent proved his case (Grounds 3, 5, 7 and 9).
- Whether in all circumstances of this case the unilateral order of court for written addresses and court’s reliance on the plaintiffs address alone is lawful and proper. (Grounds 1, 2, and 8).
- Whether the trial court was right in awarding respondent’s claim which are in the alternative. (Ground 4).
The Amended Respondent’s brief of argument, settled by Counsel Maduabuchi Esq, adopted the issues formulated by the Appellant.
ISSUE NO.1
This issue is as to whether the trial court was right in the award of pre and post judgment interest, having regard to the state of pleadings and evidence led.
Counsel for the appellant, Idi Ali Esq, submitted on this, relying on TEXACO OVERSEAS (NIG.) UNITEY VS. PEDMAR (NIG.) LTD. (2002) 13 NWLR (Pt. 785) 526 at 547, that pre-judgment interest must be pleaded and strictly proved before it can be granted, since it is not granted as of right. He then argued that the pleadings of the respondent, did not contain any fact alleging interest as of right, by an agreement between the parties, or by way of any mercantile custom, following HENKEL CHEM LTD. VS. A.G. FERERO & CO. (2003) 4 NWLR (Pt 810) 306 at 320. As there was no pleading to that effect, there was also no evidence to support the claim for the pre-judgment interest. He therefore urged us to set aside the wrongful award of 10% pre-judgment interest.
On the post-judgment interest, counsel submitted that its award was manifestly wrong since it was based on a discretion that is not judicial and judicious. Further, it is excessive without any reason stated, to back it up. On the pre-judgment interest, respondent admitted that it did not make it out and is therefore not entitled to it. This is correct and I commend counsel for being a worthy officer of the court. Although the Writ and the statement of claim prayed for pre-judgment interest, No fact was pleaded, and no evidence could therefore have been led on it. The trial court was clearly in error in awarding it. In the circumstances, the award of 10% pre-judgment interest by the trial court is totally without payment and is hereby set aside.
On the post-judgment interest, counsel for the respondent submitted that the 10% interest on the judgment sum, was discretionary and properly awarded by the trial court. He placed reliance on HIMMA MERCHANTS VS. ALIYU (1994) 18A LRCN 97 at 117 – 118; INTERNATIONAL TRUST BANK PLC VS. KANTAZ HALIRU CO. LTD. (2006) All FWLR. (Pt. 292) 116 at 129; and OLASUNKANMI MUBOLAJI VS. FABSON CO. LTD. (2004) All FWLR (Pt 239) 954 at 969.
It is plain, that the trial judge was well within the legal parameters, in awarding the 10% interest on the judgment sum. Not only was the interest prayed for in the statement of claim, but the rules of court also empower the trial judge to make the award. The relevant portion of Order 40 Rule 7 of the Gongola State High Court (Civil Procedures) rules 1987 provides:-
“The court at the time of making any judgment or order, or at any time afterwards 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 afterwards, as the case may be”.
Even if the post-judgment interest is not specifically claimed, the Judge is still clothed with jurisdiction, to award it, provided he does not exceed the limit set by the rules. See HIMMA MERCHANTS VS. ALIYU (supra) at 117 – 118 and INTERNATIONAL TRUST BANK VS. HALIRU (supra) at page 129.
With the position of the law thus stated, I am unable to appreciate the complaint of the appellant, that the award was not based on a discretion that was exercised judicially and judiciously. Again, when the appellant submitted that the award of the 10% post-judgment interest was excessive, no particulars of the excess were stated. Is it that the award of 10% is excessive in the circumstances of the case, and if so why and how, or is it that the 10% award has exceeded the limit set by the rules? These are vital issues which have not been addressed and it is not for this court to begin to speculate and provide answers. Such a course will amount to shoring the case of a party and would be an unfair Course of event. In the event, I hold that the award of the 10% post-judgment interest by the trial court, was based on a discretion that was properly exercised. I must decline to interfere with it. Issue No. 1 is therefore. resolved partially in favour of the appellant.
ISSUE NO.2
The issue here is whether the learned trial Judge properly evaluated and appraised the case of parties before him and whether the respondent had proved his case. Counsel for the appellant submitted that Exhibit 1, which is the document that spelt out the relationship between the parties in this case, carried different dates, was not signed by the Chairman and Director of the appellant and is different in content, with Exhibit 5, a photocopy of Exhibit 1. He contended that insertions were made into the body of Exhibit 1 after it had been executed, by incorporating the issue of hiring the machinery. He forcefully argued that the incorporation of the hiring of the machinery after Exhibit 1 had been executed by respondent, cannot lawfully confer any right on any beneficiary, especially as Exhibit 5 did not carry the said incorporation, thus establishing a contradiction between the two exhibits which are supposed to be the same document.
On these points, counsel for the respondent in the brief of argument submitted that the trial Judge was placed in a position of deciding which document, Exhibit 1 or Exhibit 5 he was to attach weight to, and since he attached weight to Exhibit 1, the original document over Exhibit 5, a photocopy, he was right, especially as there is evidence, that the Secretary to the appellant, had signed Exhibit 1. Counsel contended that if the appellant was serious in discrediting Exhibit 1 concerning insertions of hiring of machinery, after Exhibit 1 had been executed, then DW1, who was examined by the appellant on various parts of Exhibit 1, should have been led, to say whether the insertions were made after execution, since it was DW1 who identified the signature of the Secretary, on the document. Again, although the position of the appellant is that it had no agreement with the respondent for hiring of the machinery, it should have produced the copy signed by its Secretary to show whether the insertion was before or after execution. They failed to so produce it, he argued, because it would have been fatal to their position in the statement of defence. Counsel argued further, that the allegation of inserting the hiring agreement after execution of Exhibit 1, amounts to an allegation of fraud which should have been specifically pleaded and proved but was not. He cited AKPUNONU VS. BREAKART (2000) 7 SCNJ 105 at 112 and WEST AFRICAN BREWARIES LTD. VS. SAVANNAH VENTURE (2002) FWLR (Pt.112) 53. At any rate, he argued, this is a new issue which cannot be raised in this court without leave, since it was not raised at the lower court.
In the appellant’s reply brief, it was argued that no allegation of fraud was intended and as such, it was not pleaded. The issue of incorporating the hiring of machinery arose under cross-examination in order to counter the assertion of the existence of the contract of hiring the moulding machine, it was argued and as such, the cross-examination produced properly admitted evidence. GAJI VS. IPAYE (2003) 8 NWLR (pt. 823) 583 at 603 and BAMIGBOYE VS. OLARENWAJU (1991) 4 NWLR (Pt. 184) 132 at 155 were relied upon. I have perused the record of proceedings. I have not seen any evidence establishing that the ‘incorporation’ of the hiring of the machinery to the appellant, was made after Exhibit 1 was executed. This is crucial because the appellant has argued that no benefit is accruable in that regard. The trial judge did not make a finding that the agreement on the hiring of the machinery was inserted after Exhibit 1 was executed. On the other hand, the evidence adduced, shows that the agreement of the hiring of the machinery was there from the original. Under cross-examination by counsel to the appellant, the respondent at page 45 of the record of proceedings, referred to Exhibit 1 and stated that it ‘regulates the two claims I have against the Local Government i.e the appellant. He went on to state at page 46 that:
“I did not change the agreement in Exhibit 1 after I filed this case”.
Still yet at page 47, he stated that:
“In Exhibit 1, it contains hire of machinery item
(D)…………………………………
I did not on my own add item ‘D’ on Exhibit 1 it has been there from the original”.
These pieces of evidence were elicited under cross-examination. The respondent was not shaken on it, nor has he been shown to have been contradicted by any admissible evidence on record. On this point therefore, Exhibit 1 had not been successfully impeached or discredited. DW1 who was a witness called by the appellant, never stated or even alluded to the fact that the hiring agreement of the machinery, was inserted after execution, especially after the signature of the Secretary to the appellant was signed. I accept the position of the appellant that the cross-examination of the respondent on the hiring of machinery, was to discredit him and not to raise allegation of fraud. There was therefore, no need to plead fraud. It is understandable though, why the respondent read the issue as raising an allegation of fraud. The appellant had gone on and on about it in the brief of argument and even went further to attack the fact that there were different days in Exhibit I, although he failed to follow it up and make any substantial allegation or comment. Further, he made an issue about the fact that the Chairman and Director of the appellant did not sign Exhibit 1, despite the fact that DW 1 had identified the signature and stamp of the Secretary to the appellant (pages 55 – 56 of the record) and that the Chairman of the appellant had the power to delegate his duties or function to his staff and the Secretary is the accounting officer of the appellant (page 57 of the record). In my view therefore, the trial court was in order, when it attached weight to Exhibit 1 which was tendered to support the facts of this case, and not exhibit 5, which was in respect of another agreement and in another suit.
At page 10 of the appellant’s brief, counsel contended that “it was wrong for the trial Judge not to summarise the facts or evaluate the testimony before the court”. I think there is a misapprehension here. Summarising facts is not the same as evaluating evidence. Summarising evidence, entails a re-statement of the evidence led in court in a shorter and lucid form, to show a grasp of the evidence. On the other hand, evaluation of evidence entails an exercise by the trial court, which saw and heard the witnesses, of appraising and ascribing probative value to the evidence led, utilizing an imaginary scale in weighing the evidence in order to discover which side qualitatively outweighs the other. The court will then make a finding of facts before reaching a conclusion. Thus, a summary of evidence is not the same and is not as ardous and important as evaluation of evidence. See A.G. OYO VS. FAIRLAKES HOTEL LTD. (No.2) (1989) 5 NWLR(Pt. 121) 255.
On evaluation of evidence in this case, page 71 of the record of proceedings is indicative of what the trial Judge did. I find it pertinent to reproduce parts –
“…yet, there is evidence before the court that the machines was (sic) delivered by the Plaintiff to the Defendant and the Defendant received same. The Defendant signed Exhibit 1 which is the contract document and on 28th December 2000 wrote to the Plaintiff to collect his machineries from the Local Government Chairman and that the plaintiff should contact the Local Government Chairman for his claims. The said letter acknowledged delivery of the machines and also acknowledged that the plaintiff has claims to make and should contact the Chairman of the Local Government for his claims”.
The above is an evaluation of the exhibits tendered before the court, after it had correctly held that the evidence led in the case is mainly, documentary and the oral evidence was only ‘to support or otherwise the said documents’. The trial Judge went on at page 73 of the record, to state that:-
“I have carefully gone through the pleadings in this case, the evidence of PW1 and DW1, the documents tendered and I have seen that this is a case which was governed by the contract document Exhibit 1 which I observed dealt with two contracts and the one under consideration is the one of hire of block moulding machine and a generating set. It is in evidence and through PW1 that a contract came into being when the block-moulding machine was conveyed to the Defendant… The defence the Defendants wanted to put up that there was no contract because laid down procedures were not followed was demolished when DW1 was cross-examined. I brought out the said areas in my judgment above”.
After the evaluation above, the trial judge went on to conclude at page 74 of the record, that the standard of proof is on the balance of probabilities and that
“Having read the case, it is my view that the case of the plaintiff is to be believed as against that of the Defendant more so that the defence the Defendant put forward through DW 1 collapsed”
He had thus applied the law of evidence on standard of proof to reach a conclusion on the matter based on the evidence adduced. In my view, the trial Judge had properly appraised and evaluated the material evidence adduced before him, before he concluded that the parties had reached an agreement for the respondent to hire out the block-moulding machine and generator to the appellant vide Exhibit 1 and that the respondent had indeed delivered same to the appellant. The bulk of the material evidence led was documentary. Exhibit 1 shows the contract agreement. Exhibit 2 shows the delivery of the machinery by the respondent, to the appellant on the 10th of January, 2000 and admission that he was entitled to claim. This was the appellant’s document. Exhibit 4 shows that the machinery was collected by the respondent from the appellant, on 9/1/2002. I cannot therefore see how the trial court could be faulted in this respect.
The appellant had also raised the issue of the evidence elicited under cross-examination from the respondent, that he trained 8 of his staff for three months to operate the machine and that he did not send the staff along with the machine to operate. Counsel argued that this failure to send the staff to operate the machine, amounts to failure to hire out the machines at all for valuable use.
Counsel for the respondent on this, submitted that this argument if successful, will entitle the appellant to avoid liability to the respondent. It is a material fact which ought to have been pleaded, but was not. Further, that the evidence elicited on it, is at variance with the pleadings and should be discountenanced. He cited in aid, KODE VS. YUSUF (2001) 2 SCNJ 49 at 74 EMEGOKWUE VS. OKADIGBO (1973) 4 S.C. 113 at 117 and UGO VS. OBIKWE (1989) 1 NWLR (Pt. 99) 566 at 583.
In the Reply brief, counsel for the appellant cited and relied upon the views of Karibi Whyte JSC in BAMIGBOYE VS. OLARENWAJU (supra) at 155 that:
“It seems to the consistent with principle that evidence led during cross-examination on issues joined is not inadmissible merely because such evidence is not supported by the pleading of the party eliciting the evidence”
I am afraid that the above case is not on all fours with this case and is not applicable. This is because the evidence elicited under cross-examination, must be ‘on issues joined’. In this case, there is no pleadings whatsoever by any of the parties, on training of staff, failure to send them along with the machines and failure to pay an advance by the appellant for their training. In fact, it is amazing that the appellant will raise and rely on this defence, when in its statement of defence, it totally denied any hire agreement and receipt of the machines from the respondent. This glaring volte face can not avail them as it does not lie in their mouth to argue that they did not have the machine for value because staff of the respondent were not sent along, to operate the machine. It gives the impression that the appellant is doing and employing all tactics to avoid responsibility.
Again, in BAMIGBOYE VS. OLARENWAJU (supra), the fact that all sections of Okesan family were of the same family, had been pleaded in paragraph 6 of the statement of claim. This entitled the defendants, who did not make such a pleading, to cross-examine on the issue. This is not of the position in this case as issues were not joined on it as none of the parties pleaded the fact of staff of the respondent, not going along with the machines to operate them.
The law is very clear. Once facts are not pleaded and issue joined, no evidence can be led, including under cross-examination, on those non-pleaded aspects. If admitted, they must be discountenanced by the court. In ONUOHA NWOKOROBIA VS. NWOGU & ORS (2009) 5 SCNJ 218 at 236, Mukhtar JSCin the lead judgment held that paragraph (4) of the statement of claim did not specifically state that Nwoko founded the land, part of which is in dispute. Further, that:
“It is a fact that the appellant while being cross-examined, did testify that Nwoko deforested the land. This is however outside his pleadings and the law is settled on the effect of such evidence which does not derive its source from the pleadings. The position of the law is that evidence must support pleadings, as a party is expected to give evidence that is within the periphery of his pleadings and not beyond it. When such evidence are adduced the law says they should be ignored as they are regarded and treated as non-issues. See TENULE VS. AVAMI (2001) 12 NWLR (Pt. 728) 726; MAKWE VS. NWULOR (2001) 14 NWLR (Pt.733) 356 and ORIZE VS. ANYAEGBUNAM (1978) 5 S.C 21.
I also agree with counsel for the respondent, that the evidence led under cross-examination, of the respondent sending his staff together with the machinery to operate it, amounts to parole evidence. It is not allowed to vary, add, alter or contradict written agreements (Exhibit 1) by oral evidence. See section 132 of the Evidence Act and ORJI VS. ANYASO (2000) 2 NWLR (Pt. 643) 1 at 23 D – H and 24 A – H; and FASOGBON VS. LAYADI (1999) 11 NWLR(Pt. 628) 543 at 560 – 561. The evidence elicited under cross-examination on staff of the appellant not operating the machines, is discountenanced.
The findings of the trial court was supported by evidence adduced and was not perverse. When Exhibit 1 was shown to have been signed by the Secretary to the appellant (through the evidence of the respondent and the cross-examination of DW 1), the onus at that point, shifted to the appellant to adduce evidence that it was not so signed by the Secretary, or that the hire agreement was inserted after execution. The appellant failed to so adduce and so failed to discharge the burden on him. The trial Judge had only the evidence of PW1, DW1 and the exhibits. His findings were therefore fully supported and in order. In the result, issue NO.2 is resolved against the appellant.
ISSUE NO.3
The issue here is whether in all the circumstances of this case, the unilateral order of court for written addresses and court’s reliance on Respondent’s address alone is lawful and proper.
The submission of counsel for the appellant on this, is that the trial court unilaterally ordered counsel for the parties, to file and serve written addresses within a time frame, when none of them applied for it and their consent was not sought for. He submitted further, that the rules of the High Court did not make provisions permitting the submissions of written addresses. It was his submission also, that as the written address of the respondent had not been adopted, it was wrong for the trial judge to rely on it especially as the respondent’s written address was filed before the appellant (who has the right to begin his address as the defendant) filed his address and without leave of court. Counsel argued further, that as addresses are very valuable in helping a court to reach a just decision (citing OBODO VS. OLOMO (1987) 18 S.C.C. VOL. 824 page 831) the trial court ought to have countenanced the written address of the appellant on points of law, filed before it. Its failure to utilize it had occasioned a miscarriage of Justice, it was argued, as it ‘raised issues of facts not contained in testimony of the witness but supplied Respondent’s counsel address.”
On his part, counsel for the respondent submitted that issue of address is provided by rules of court which did not state whether the addressez should be written or oral and that a trial court has the discretion to decide the form of the address. At any rate, he argued, if counsel for the appellant did not wish to file a written address because it was not provided for, he should have raised a timeous objection before taking steps. As he did not do so, it is too late to raise it at this level after taking steps. He cited I.B.W. VS. IMANO (2001) SCNJ 160 and IBATOR VS. BARAKURO (2007) 4 SCNJ 27 at 42 – 43.
On non-adoption of address of the respondent, counsel submitted that although a formal application to adopt the address was not made, it had for all intents and purposes being adopted and that at any rate, a non-formal adoption of written address is not crucial and cannot vitiate the proceedings. He placed reliance on BAYO VS. NJIDDA (2004) FWLR (Pt. 192) 10 at 17 – 18 and 56 59.
It is correct that Order 37 rule 22 of the High Court (Civil Procedure) rules applicable in Adamawa State did not make provision for written address. But it did not out law it either. It was therefore well within the powers of the trial judge, to order counsel to file and exchange written addresses, so that time could be saved and the stress of verbatim recording lessened. The consent of counsel is not necessary before the order is made by the court and the fact that they were not consulted prior to the order made, could not be a breach of fair hearing. The important thing is that they were each given the opportunity to address the court, and the order for written address was not irregular. Even if it was irregular, any purported breach, is procedural, not substantive and it behoves the appellant to raise it timeously, before taking any steps, otherwise he will be deemed to have waived the irregularity, and cannot later complain. See AKANDE VS. AJANI (1989) 3 NWLR (Pt.111). 511 at 545 and NASCO LTD. VS. B.N. AMAKU (1999) 1 NWLR (Pt. 588) 576 at 588. The counsel for the appellant had agreed to file written address without any objection, and although he had failed to do so, he had filed a purported reply address. He is complaining on appeal now, because he had lost the case at the trial court. It is too late for him to complain at this forum.
Besides, the attitude of counsel for the appellant at the trial court on the issue of filing written address, leaves a lot to be desired. On the 23rd of March 2005, the counsel for the appellant was given 14 days to file his written address and the respondent given 8 days. On the adjourned date of 26/4/2005, counsel for the appellant had not filed his written address, and although no reason was given for the failure, his application for adjournment was granted to the 17/5/2005 for the address to be filed and adopted. On the 17/5/2005, the written address of the appellant had not been filed and so could not be adopted. On the 5/6/2005, the date adjourned for adoption of addresses, nothing seemed to have happened. On the 9th of June 2005, counsel for the appellant stated that he had not filed the written address and prayed for further adjournment. No reason was given to the court. Counsel for the respondent announced that circumstances had compelled him to file his written address and prayed for adjournment for judgment. Counsel for the appellant said he had been served with the address and prayed for adjournment for 2 weeks to respond to the address of the respondent. The court granted the adjournment to the 14/6/2005 for adoption of address and reply on points of law by counsel for the appellant. On the adjourned date of 14/6/2005, counsel for appellant was absent and sent a letter to the court asking for adjournment to the 16/6/2005 to which the court acceded to. On the returned date of 16/6/2005, counsel for the appellant filed a written address which was not confined to reply on points of law, but which included material issues of fact, to which the respondent would have no right to reply to. The court therefore refused to accept it and adjourned the matter for judgment.
Not only was counsel for the appellant given adequate opportunity to file his written address, the court had bent over backwards to accommodate him. He did not seize the opportunity. He never moved an application for extension of time within which to file the address since he was out of time, and generally adopted a casual manner. The trial court had tolerated him and I cannot see how he can turn round to complain about the fact that his written address which was not restricted to reply on points of law, pursuant to the order of court was discountenanced. Even if the respondent’s address had not been adopted, the complaint cannot come from the appellant as he has not shown how that has adversely affected him.
I am also in agreement with counsel for the respondent, that the ruling of the trial court to the effect that the address purportedly filed by the appellant’s counsel, was filed out of time, has not been appealed against. The finding of fact is to be found at pages 69 – 70 of the record of proceedings. Since there is no appeal against same, this court cannot disturb them- BAMBOYE VS. OLUSAGA (1996) 4 SCNJ 154 and OSHODI VS. EYIFUNMI (2001) 7 SCNJ 295 at 323. Further, the findings are based on the record of proceedings on what transpired during the trial. The findings are not perverse and this court cannot disturb them- GAMBO MUSA VS. THE STATE (2009) 7 SCNJ 329 at 342. The trial Judge had acted correctly and no miscarriage of Justice has been occasioned. Issue No.3 is therefore resolved against the appellant.
ISSUE NO.4
This is as to whether the learned trial judge was right in granting the respondent’s claims which are in the alternative. The submission of counsel on this, is that the trial judge granted the respondent all his reliefs in the statement of claim, which included an alternative claim. Relying on M. V. CAROLINE MEARSK VS. NOKOY LTD (2002) 6 SCNJ 208 at 225, he submitted that this was wrong. He cited U.B.A. VS. MUSTAPHA (2004) 4 NWLR (Pt. 855) 443 at 476 to say it is even fatal to the judgment of the trial court and urged us to resolve it in his favour.
The response of counsel for the respondent on this, is that the amount claimed is the sum of N2,215,000.00k for the cost of hiring the machinery to the appellant between 10th January 2000 and 10th January 2001 or in the alternative loss of earnings of the machinery for the period. There was thus no double compensation in terms of principal claim and alternative claim.
Now, paragraph 8(a) of the statement of claim states:
“Wherefore, the plaintiff claims against the Defendant, the sum of two million two hundred and fifteen thousand naira being money due from the Defendant to the plaintiff as cost of hiring the plaintiff’s Block Moulding Machine and Power Generating Set between 10th January, 2000 and 10th January, 2001, or in the alternative as loss of earning from the machineries for the period the Defendant kept same in its custody”.
A careful reading of this, will disclose that the respondent claimed only one sum – N2,215,000.00k from the appellant, as the cost of hiring the machinery to the appellant as shown in Exhibit 1, OR as the loss of learning from the machinery as disclosed in his viva voce. It is the reason or the ground of the claim that is in the ‘alternative’, and not the amount. There was thus no uncertainty in the claim of the amount of N2,215,000.00k. The uncertainty given rise to alternative claim, is the reason for the claim. Clearly therefore, there was no double compensation in terms of the monetary aspect and not as bad as it had been made out.
Admittedly, the trial court should have identified the reason for the award of the N2,215,000.00, and not leave it at large. Although this is erroneous, it is not at all fatal. This is because the trial judge based his findings on the documentary evidence before him, especially Exhibit 1 which spelt out the contracts and its terms, including the amount agreed. It is not every slip or error that results in a judgment being up turned. An error in law committed by a trial court can only lead to a reversal of the judgment, if it occasioned miscarriage of Justice – HENRY STEPHENS VS. COMPLETE LTD. (1987) 1 NWLR (Pt. 47) 40 and SILAS SULE VS. THE STATE (2009) 6 SCNJ at 89. The grant of the relief without specifically stating for which of the two grounds it was for, is an immaterial error since there is no miscarriage of Justice, having regards to the pleadings, the documentary evidence and the law. I refer to the EDEANINWAVU VS. OKOYE (2008) 18 NWLR (Pt. 1118) 29 at 518 and AGUVS. NNADI (2002) 12 SCNJ 238 at 247. The fortune of the appeal has not been affected by the error. I shall invoke section 15 of Court of Appeal Act 2004 to correct it. Issue No.4 is resolved against the appellant. In the circumstances, this appeal succeeds only partially. I make the following orders-
(1) The sum of N2,215,000.00k being money due from the defendant (appellant) to the plaintiff (respondent) as cost of hiring the respondent’s Block Moulding Machine and Power Generating Set between 10th January 2000, to 10th January 2001, is awarded.
(2) The 10% interest on the sum of N2,215,000.00k from January 2001 until the date of judgment (pre-judgment interest) awarded by the trial court, is hereby set aside.
(3) 10% interest per annum on the judgment sum is awarded from today until the judgment sum is liquidated.
Parties to bear their costs.
Other Citations: (2010)LCN/3532(CA)
