Stabilini Visinoni Limited V. Metalum Limited (2007)

LawGlobal-Hub Lead Judgment Report

MSHELIA, J.C.A.

The respondent filed suit No. LD/1430/2001 at Lagos State High Court and claimed against the appellant as per paragraph 13 of the statement of claim as follows:

“The sum of N686,414,89 being the sum owing to the plaintiff on the defendant’s admission in respect of several sub-contracts executed by the plaintiff on behalf of and for the benefit of the defendant with interest thereupon at the rate aforesaid. Cost of prosecuting this action assessed at N50,000.00 only.”

Briefly, the facts are that between 1993-1997, the plaintiff executed sub-contracts for the benefit of the defendant. Defendant by then was indebted to plaintiff in the sum of N1,486,414.89 (One Million Four hundred and Eight-Six Thousand, Four Hundred and Fourteen Naira, Eighty Nine Kobo). Defendant admitted owing the amount but prepared a schedule that same would be settled instalmentally. Defendant defaulted since 1997and remained indebted to plaintiff to the tune ofN686,414.89 (Six Hundred and Eighty-Six Thousand, Four Hundred and Fourteen Naira Eighty-Nine Kobo). Despite repeated demands defendant failed to pay the money hence this action.

Upon an application for judgment by the plaintiff, the defendant admitted the sum claimed, but challenged the plaintiff entitlement to interest on the sum owed. Defendant paid plaintiff the principal indebtedness in the sum of N686,414.89K at the plenary stage by cheque delivered to plaintiff’s counsel in court on 22/11/2001. The contest on interest was then set down for trial. Plaintiff called one witness but, defendant did not call witness. Both counsel addressed the court. The learned trial Judge Alogba J, in a considered judgment, at page 33 of the record had this to say:

“Accordingly, I hereby enter judgment in favour of the plaintiff against the defendant in the sum equivalent to 10% of the principal sum in issue (N686,414.89K) from 6th November, 1997 to 22nd November, 2001 and up to 30th October, 2002 and thereafter interest at the rate of 71/2% per annum thereon until fully liquidated. I award N5,000.00 cost to this suit to plaintiff.”

Aggrieved with the decision of the trial court, defendant now appellant appealed to this court by filing its notice and grounds of appeal on 4/11/02. The notice of appeal contained two grounds of appeal.

In compliance with Order 6 of the Court of Appeal Rules, patties exchanged briefs of argument. Appellant filed its brief on 31/05/06.

Appellants reply brief was also filed on 9/08/06.

Respondents brief of argument was filed on 31/05/06.

From the two grounds of appeal filed appellant distilled two issues for determination. The issues are:

(1) Whether the lower court was justified in awarding interest to the respondent when same was not proved.

Whether having regard to the pleadings and evidence before the lower court the lower court was justified in awarding the respondent 10% per annum interest from 6th November 1997 to 30th October, 2002 and thereafter at the rate of 71/2% per annum until judgment is fully liquidated.

Respondent on the other hand, formulated two issues for determination. The issues are:-.

3.1 Whether the lower court was justified in awarding interest to the respondent when there was evidence that payment became due in September/October 1997 but was made on 22nd November, 2001.

3.2 Whether the lower court in the circumstances was justified in awarding interest to the respondent at the rate of 10% per annum from 6th November, 1997 to 30th October, 2002 and thereafter at the rate of 71/2% of per annum until judgment is fully liquidated.

On 19/03/09, when this appeal came up for hearing both counsel adopted their respective briefs of argument.

Appellant’s issues are in my view a suitable basis which to consider this appeal.

On issue No. 1, appellant’s counsel contended that interest is not payable or recoverable at common law on ordinary debt in the absence of some contract express or implied, some mercantile usage, or by statute. See London Chatham and Dover Railway v. South-Eastern Railway Co. (1893) AC 429. Counsel submitted that interest may be awarded as of right where it is contemplated by the agreement between the parties, or under mercantile custom or under a principle of equity such as breach of fiduciary relationship; where partnership money is retained by the defendant beyond an agreed period and where such a compensatory award of interest is within the contemplation of both parties under the rules for assessment of damages in contract cases. See Odua Investment Co. Ltd. v. Akinyemi (2002) FWLR (Pt. 84) Pg. 193 paras B-C. Learned counsel submitted that PW1 testified on page 27 of the record of appeal that although the appellant had defaulted with payment in the past, he eventually paid and there was no issue of interest. Appellant’s counsel contended in his brief that interest was not within the contemplation of both parties as such the court ought not to have granted it.

Where a party claims interest, the proper practice, according to the courts, is to endorse the claim on the writ of summons and plead facts which support such entitlement in the statement of claim. See Henkel Chemicals (Nig.) Ltd. v. A.-G., Ferrero & Co. Ltd. (2004) FWLR (Pt.188)p.1088 Para G.; (2003) 4 NWLR (Pt.810) 306 See also Himma Merchants Ltd. v. Aliyu (1994) 5 NWLR (pt. 347) 667 at 677 Paras E.

Counsel contended that the respondent neither pleaded facts nor led evidence on the grounds entitling it to the award of interest. A claim for per judgment interest, being one of right must be pleaded and proved. See Himma Merchants Ltd. v. Aliyu (supra) at 676, Para E-F.

The respondent failed to lead evidence to the fact that he was entitled to any form of interest whatsoever. See Idakula v. Richards (2000) FWLR (Pt. 14) P. 2429 at 2451. Paras C-D; (2001) 1NWLR (Pt.693) 111, where interest was denied because there was no evidence before the court to support it. Counsel also contended that there was no evidence on the record in this case that supports the grant of interest. Respondent having failed to lead evidence on its claim for interest is deemed to have abandoned same. Learned counsel urged us to hold that the said averment has been abandoned and same should be struck out. It was also the contention of appellants’ counsel that parties never agreed that in default of payment interest would be paid. It is trite law that the court will not re-write the contract before it. See D.P.M.S. Ltd. v. Larmie (2006) FWLR (Pt.296) P.775; (2000) 5 NWLR (Pt.655) 138 and Ali v. Hussaini (2004) FWLR (Pt. 194) P.49. He submitted that the law in Nigeria is that in commercial contracts, except by express agreement no interest is payable on delayed payment. See Alfotrin Ltd. v. A.- G., Federation (1996) 9 NWLR (Pt. 475) p.634 at 663 paras is A-B, and Odu’a Investment Co. Ltd. v. Akinyemi (supra) at Pg 192.Counsel contended that the issue was given judicial nod by the Supreme Court in Alfotrin Ltd. v. A.-G., Federation (supra) at page 663 that at common law and as a general rule.

” … interest is not payable on a debt or loan in the absence of express agreement or some cause of dealing or custom to that effect.”

Learned counsel further submitted that the award of interest, on the principal sum, which was already paid before judgment was delivered, cannot therefore be sustained. See Akpabuyo L.G. v. Duke (2001) 20 WRN P.98 lines 10-25; (2001)7 NWLR (Pt.713) 557.

Counsel urged the court to hold that the award of interest against the appellant by the lower court was not legally justifiable and therefore wrong in law and resolve issue NO.1 in favour of the appellant.

Respondent’s counsel in reply submitted that the award of interest, pre or post judgment in any cause is an exercise of judicial discretion which is never exercised as a matter of course. Such discretion may not be dictated by the whims and caprice of any individual Judge. There are guidelines to be followed. See Odu’a Inv. Co. Ltd. v. Akinyemi (2002) FWLR (Pt. 84) Page 172 at 193.

Counsel submitted that in a situation arising from commercial matters, a party holding on to the funds of another for so long without justification ought to pay him compensation for doing so. See Adeyemi v. Lan & Baker (Nig.) Ltd. (2000) 7 NWLR (Pt. 663) 33 at page 48, 50-51 and N.G.S.C. Ltd. v. N.PA. (1990) 1 NWLR (Pt.129) Page 741 at 748. Counsel contended that applying the principles annunciated in the cases cited above, the learned trial Judge was right in awarding interest to the respondent in respect of money that ought to have been paid by the appellant in September/October, 1997 but was paid in November 2001. Learned counsel also referred to paragraph 13 of the statement of claim dated 8th May, 2001 where interest was clearly and specifically pleaded and claimed. Counsel contended that the fact of with-holding of the respondent’s money by the appellant from the date when it ought to have been paid until it was actually paid is the very basis for entitlement of respondent to interest as compensation for that denial of access to and use of its money for that period. Counsel urged the coul1 to resolve issue No. 1 in favour of the respondent.

On issue No.2, appellant’s counsel stated the position of the law to the effect that where interest is charged on an amount of money taken for use for a period, interest will not be chargeable on the principal already repaid or refunded. See Hydroworks Ltd. v. Rimi Local Government (2002) FWLR (Pt. 110) Page 1899- 890 Paras H-A; (2002) 1 NWLR (Pt.749) 564.

Counsel contended that in the instant case, the appellant had not made partial but full payment in the open court on 22nd November 2001 and yet the court calculated interest based on the principal sum that had been paid, till the date judgment was delivered i.e. 1st November, 2002. It was the contention of appellant’s counsel that the lower court erred when in its judgment it charged interest on a principal sum that had already been paid and urged this court to so hold.

Learned counsel further submitted that the lower court awarded prejudgment interest to the respondent at the rate of ten percent (10%) from 5th November 1997 to 1st November, 2002, even though there was no evidence to support the award as the record of proceedings clearly indicates. He said in the case of Idakula v. Richards (supra) F at 2451, Para C, the pre-judgment interest of 15% was set aside, as there was no evidence to support it. In the light of this decision he urged this court to set aside the award of 10% to the respondent.

The law is settled that the award of interest in any case is never a matter of course. He said Order 38 rule 7 of the High Court of Lagos State (Civil Procedure) Rules 1994 sets a maximum of post-judgment interest at 71/2% per annum. Counsel contended that although the award of post-judgment interest is discretionary, the exercise of such discretion may not however be dictated by the whims and caprice of any individual Judge. There are guidelines to be followed. See Ekwunife v. Wayne (WA) Ltd. (1989) 5 NWLR (Pt.122) PA22 at 488, Para A. See also N.M.B. Plc. v. Aiyedun Invest. Ltd. (1998) 2 NWLR (Pt.537) P.221 at 232. Counsel contended that there was no sufficient or convincing reason before the lower court, as evidenced in the record of appeal, to justify the 71/2% post judgment interest awarded to the respondent. Learned counsel urged this court to resolve issue No.2 in favour of the appellant.

In response, respondent’s counsel submitted that the appellant paid only the principal sum in court on 22nd November, 2001 without any interest even though the principal sum ought to have been paid in September/October, 1997. It was his contention that since the appellant failed to pay the interest claimed along with the principal sum the respondent continued to be entitled to interest on the principal sum even after the date of payment of the principal until the date of judgment. Learned counsel contended that since appellant had held onto the respondent’s money since 1997, the award of 10% interest per annum by the learned trial Judge was reasonable in the circumstances. He placed reliance on the cases of Adeyemi v. Lan Baker (Nig.) Ltd. (2000)7 NWLR (Pt. 663) Page 33 at48, 50-51 and N.G.S.C. Ltd v. N.P.A (1990) 1 NWLR (Pt. 129) Page 741 at 748.

Counsel further contended that Order 38 rule 7 of the High Court of Lagos State (Civil Procedure) Rules 1994 provides a maximum for post judgment interest at 71/2% per annum. The learned trial Judge judicially and judiciously exercised his discretion to award the post judgment interest at the rate of 71/2% per annum. Respondent’s counsel contended that the learned trial Judge gave sufficient, correct and convincing reason for exercising the discretion when he stated in his judgment (at page 33 of the record) that “the fact of withholding of the plaintiff’s money by defendant from the date when it ought to be have been paid until it was actually paid is the very basis for entitlement of plaintiff to interest as compensation for that denial of access to and use of its money for that period.”

Learned counsel submitted that in the case of Ekwunife v. Wayne WA Ltd. supra the trial Judge relying on the High Court Rules, awarded interest from the date of accrual of action when he could only award interest under the rules with effect from the date of judgment.

The Supreme Court held that the learned trial Judge had no jurisdiction or power under the rule to award interest from the date of accrual of the cause of action. Counsel contended that the facts in Ekwunife’s case are not on all fours with the facts in the case at hand. He urged that issue No.2 be resolved in favour of the respondent. Both issues No.1 and No.2 are related as such I find it more convenient to resolve them together to avoid repetition. There are two types of interest awarded by the courts namely:

a) Pre-judgment interest and

b) Post-judgment interest.

Where interest is being claimed, the practice is to endorse the claim or the writ of summons and plead facts which support such entitlement in the statement of claim. Even if it is not endorsed on the writ of summons but the facts are pleaded in the statement of claim and requisite fees paid the court may, if proved on the preponderance of evidence, grant the award of interest. See Henkel Chemicals Ltd. v. A. G., Ferrero & Co. (2003) 4 NWLR (Pt. 810) 306 at 322 Paras C.D; Consolidated Res. Ltd. v. Abofar Ven. (Nig.) Ltd. (2007) 6 NWLR (Pt. 1030) 221 at 233; Hausa v. FBN Plc (2000) 9 NWLR (Pt. 671) 64 and Ishola v. S.G.B (Nig.) Ltd. (1997) 2 NWLR (Pt. 488) 405 at 433 Paras D.F.

In a further related authority of Saeby Jernstoberi M.F A/S v. Olaogun Ent. (1999) 14 NWLR (Pt.637) 128 at 144 Ayoola, JSC had this to say:

“It may well be observed that pleading requirement in regard to a claim of interest has been stated in several cases. In Jos Steel Rolling Co. Ltd. v. Bernestieli (Nig.) Ltd. (1995) 8 NWLR (Pt. 412) 201 at P. 209 it was stated thus by the Court of Appeal:

‘For a claim of interest to properly exist for determination in a court of law, it must be stated in the endorsement of the claims to the writ of summons or in the statement of claim whether the claim of interest is based on contract or statute and the grounds upon which the claim is based.’

Also, the law is now clear that a claim for interest must be specifically pleaded. Some of the pleading requirements may be summarized as follows: If the claim for interest is under a contract express or implied or under mercantile usage, the relevant contractual term or any other relevant facts and matters relied upon for the entitlement must be specifically pleaded. If the plaintiff claims interest under the equitable jurisdiction of the court, he must plead all the relevant facts and matters relied upon to support such claim (See Bullen and leake and Jacobs (13th Ed) pp.567- 8.”

In the instant case, appellant’s counsel strenuously argued in his brief of argument that respondent neither pleaded the claim for interest nor proved same. Contrary to the submission of appellant’s counsel, respondent did endorsed the claim of interest in his writ of summons and pleaded same in his statement of claim. The endorsement on the writ of summons is at page 2 of the record of appeal. It reads thus:

“The plaintiff’s claim is for-

1. The sum of N686,414.89 being the sum owing to the plaintiff on the defendant’s admission in respect of several sub-contracts executed by the plaintiff on behalf of and for the benefit of the defendant with interest thereon at the rate aforesaid.

Cost of prosecuting this action assessed at N50,000.00 only.”

Paragraph 13 of the statement of claim is also relevant. It is reproduced hereunder as follows:

“13. The plaintiff avers that despite the defendant’s admission of its liability and the several representations and visits made to the defendant’s officer, the defendant has failed and or neglected to honour due obligations law-fully owed to the plaintiff herein whereby the defendant is indebted to the plaintiff in the sum of N686,414.89 which sum the plaintiff now claims with interest at the rate of 10% per annum from the 5th of November 1997 (being the effective date of default after the last payment on instalment which even came (late) until judgment is entered and thereafter at the rate of 71/2 percent per annum until the judgment is fully satisfied.

Whereof the plaintiff claims against the defendant as follows:

1. The sum of N686,414.89 being the sum owing to the plaintiff on the defendants admission in respect of several sub-contracts executed by the plaintiff on behalf of and for the benefit of the defendant with interest thereon at the rate aforesaid.
2. Cost of prosecuting this action, assessed at N50,000.00 only.

Whereupon the plaintiff claims as per its writ of summons:”

From the endorsements on the writ of summons and the statement of claim reproduced supra I am of the considered view that the argument of appellant’s counsel on this issue cannot hold water.

Having established that the claim for interest was pleaded the next question to consider is whether the respondent adduced credible, sufficient or satisfactory evidence to support the claim. A claim for pre-judgment interest, being one of right must be pleaded and proved. In Hausa v. F.B.N. Plc supra the court stated that pre-judgment interest must be claimed by the plaintiff in his writ of summons and evidence subsequently adduced in proof of it failing which the court will not award it. The evidence of the respondent’s witness appeared at page 26 of the record of appeal. It is worthy to note portion of the testimony of PW1. PW1 testified and stated as follows:

“……In the course of going through the records of our debtors: I discovered defendant was indebted to our company as claimed in the case. We contacted them, and they wrote a letter dated 8th July, 1997 proposing how to settle the debt. … I see exhibit ‘P1’, three out of the instalments stated there were paid, 3rd was paid late and on 5th November, 1997. The 4th and 5th instalments were paid in November 2001 instead of August 1997. I urge the court to award interest from 5th November, 1997 to 22nd November, 2001 on N686,414.89K.”

Under cross-examination, PW1 maintained that plaintiff had been doing a lot of work for defendant. Defendant had defaulted in payment many times on other transactions, but eventually paid without interest because they did not go to court. PW1 maintained that defendant is owning them interest. From the testimony of PW1, it is evident that the respondent only claimed pre-judgment interest on the balance of N686,414.89K which was outstanding and same did not include the previous instalments already settled as contended by appellant’s counsel.

I acknowledge the position of the law as stated in the case of Alfrotrin v. A.-G., Federation cited supra by appellant’s counsel but the law also recognizes the right to interest of a plaintiff in a claim for the return of money arising from commercial transaction patiicularly where the defendant has held the money of the plaintiff for some time. See Nigerian General Superintendent Co. (NGSC) Ltd. v. Nigerian Ports Authority (1990) 1 NWLR (Pt. 129) 741.

In a situation arising from commercial matters, I should think that a party holding on to the funds of another for so long without justification, ought to pay him compensation for so doing. Akpata, JCA in the N G.S.C. Ltd. case (supra) put the matter of the right to interest thus:

“A judgment for the return of money is usually accompanied by an award of interest for the period for which it is claimed. In appropriate cases when interest is awarded, though not claimed in the writ, it is in the nature of a consequential order.”

The court of appeal in Adeyemi v. Lan & Baker (Nig.) Ltd. (2000) 7 NWLR (Pt. 663) 33 at 48 similarly, endorsed the decision in N.G.S.C. Ltd. v. N.P.A. supra that interest can be awarded in cases of return of money.

In his reply brief, appellant’s counsel contended that these two Court of Appeal authorities cited supra are inapplicable because the case at hand is not a case of refund of money. It is in respect of

several contracts executed on behalf of appellant. It has to be borne in mind that it is in consequence of the execution of the sub-contracts that appellant became indebted to the respondent. I think it would be of importance to note some relevant paragraphs of the pleadings.

Paragraphs 3, 4 and 5 of the statement of claim are reproduced hereunder for purposes of emphasis:

“3. The plaintiff avers that in all the course of the defendant’s business as building contractors, the defendant usually sub-contracts to the plaintiff the finishing in structures built by the defendant in those aspects which relate to the plaintiff’s business as aforesaid.

4. The plaintiff avers that there had been a long-standing relationship between the plaintiff and the defendant so that it was usual for the plaintiff to move to the defendant’s site and begin work sometimes, without payment of mobilization.
5. The plaintiff avers that it was also usual for the plaintiff to execute such aforesaid sub-contracts on the defendant’s instructions and debit the account of the defendant for the invoice covering such jobs. The plaintiff at the trial of this action, shall found on the invoices issued in respect of each and every contract executed on behalf of the defendant.”

By paragraph 2 of the statement of defence, defendant admitted paragraphs 1,2,3,4 and 5 of the statement of claim. Appellant never denied his indebtedness to respondent. Infact, the outstanding balance was paid to the respondent. Having regard to the nature of the transaction, I think the claim of the respondent can equally be regarded as a claim for return of money because it is not the execution of the contract per se that is in issue but the outstanding balance that was not paid. I do not therefore agree with the submission of appellant’s counsel that the case at hand is not a claim for return of money. In my humble view, appellant unjustifiably retained the outstanding balance from 4th November, 1997 to 22nd November, 2001. Appellant despite repeated demands neglected or refused to pay the balance until when the respondent brought the matter to court. Appellant admitted the claim and did not offer cogent reason why the money was not paid. Similarly, appellant did not adduce evidence during the trial relating to the award of interest to justify the delayed payment. In commercial matters, as earlier stated, interest o is awarded on the basis that defendant has kept the plaintiff out of his money and so ought to be compensated. I am of the humble view that in deserving cases as in the instant case, interest can be awarded.

I wish to note the statement made by the learned trial Judge which appeared at page 33 of the record as follows:

“To my mind and the law itself recognizes that position, that once a claim in a business transaction between parties got to litigation it is customary and logical that any award made as proved would carry interest as claimed or as the law allows in the circumstances. This is a simple contractual indebtedness claim. If settled before getting to court, the defendant might well be justified in challenging a claim for and refusing to pay interest.

Since however, the matter had to be taken to court and more especially here as the defendant had to pay the principal not only after this case was instituted against it but more importantly after a summons for judgment was taken out against it, there cannot be any doubt in law that plaintiff is entitled to interest on its principal sum.”

This finding is in line with the decision of the Court of Appeal in N.G.S.C. Ltd. v. N.P.A (supra) as such same cannot be faulted. I entirely agree with the submission of respondent’s counsel that respondent is entitled to pre-judgment interest on the outstanding balance of N686,414.89K. However, it is my considered view that the trial Judge was in error when he awarded the pre-judgment interest to commence from 6th November 1997 to 30 October, 2002.

The 10% pre-judgment interest should commence from 6th November, 1997 to 22nd November 2001 the date appellant paid the outstanding balance of N686,414.89K in court. This is so because as at the date judgment was delivered being 1st day of November, 2002 there was no outstanding balance of the money owed to the respondent before the court, apart from the claim for interest.

Therefore the 10% interest awarded from 23rd November, 2001 to 30th October, 2002 was not based on any claim before the court.

There was no evidence to support that award. PW1 in his testimony which appeared at page 27 of the record urged the court to award interest from 5th November, 1997 to 22nd November, 2001 on the principal sum of N686,414.89K. This piece of evidence clearly shows that even respondent did not ask for it. It is trite that a court is without power to award to a claimant what he did not claim and/or prove. See Balogun v. E.O.C.B Nig. Ltd. (2007) 5 NWLR (Pt. 1028) 584 at 605, paras B-C; Ajayi v. Texaco (Nig.) (1987) 3 NWLR (Pt. 62) 577 at 593 and Owena Bank (Nig.) Plc v. Nigerian Slack Exchange Ltd. (1997) 8 NWLR (Pt. 515) 1; (1997) 7 SCNJ 160 at 174. In the circumstances, I hold that respondent is only entitled to pre-judgment interest from 6th November, 1997 to 22nd November, 2001.

I now consider the propriety of the award of the post-judgment interest. Post-judgment interest is awarded where there is power conferred by statute on the court to do so in exercise of the courts’ discretion. Order 38 rule 7 of the High Court Lagos State (Civil Procedure) Rules 1994 confers power to the court to award interest in the exercise of its discretion. Order 38 rule 7 provides:

“The court at the time of making any judgment or order, or at anytime afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the judgment or order, or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding seven and a half per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards”.

By this provision, the trial judge is only empowered to award interest under the rules with effect from the date of judgment. The learned trial Judge at page 33 of the record had this to say:

“Accordingly, I hereby enter judgment in favour of the plaintiff against the defendant in the sum equivalent to 10% of the principal sum in issue (N686,414.89K) from 6th November, 1997 to 22nd November, 2001 and up to 30th October, 2002 and thereafter interest at the rate of 71/2% per annum thereon until fully liquidated”.

Post judgment interest is usually granted at the discretion of the trial Judge. As earlier stated, it is meant to commence from the date of judgment until whole liquidation. At page 33 of the record, the learned trial Judge noted that the appellant had paid the principal sum in court on 22nd November, 2001. However, the learned trial Judge proceeded to give judgment in favour of the respondent in the sum equivalent to 10% of the principal sum in issue (N686,414.89K) which I earlier said should commence from 6th November, 1997 to 22nd November, 2001. The trial Judge further awarded interest at rate of 71/2% on that sum equivalent to 10% of the principal sum in issue until fully liquidated. It is evident that the learned trial Judge exercised its discretion in accordance with Order 38 rule 7 of the High Court Lagos State (Civil Procedure) Rules 1994.

My understanding of the lower court’s judgment is that if the appellant failed to pay the judgment sum being the amount calculated as 10% percent of the principal sum from the period refel1″ed to supra it would attract 71/2% percent interest per annum. The court rate interest is within the discretion of the trial Judge to award. Where a trial Judge refuses to award the court rate interest he is expected to advance reason for such refusal particularly where it has been asked for by a party. See Nigerian Railway Corporation v. J.C Emeahara & Sons Co. Ltd. (1994) 2 NWLR (Pt.325) 206. Appellant’s counsel was of the view that the post-judgment interest awarded was based on wrongful exercise of discretion. He relied on the case of Ekwunife v. Wayne WA Ltd. (1989) 5 NWLR (Pt. 122) 422 at 448 para A-B to support his contention. In that case, the trial Judge relying on High Court Rules awarded post-judgment interest to take effect from the date of accrual of the cause of action. The Supreme Court held that the trial Judge had no power or jurisdiction to award post-judgment interest to commence from date of accrual of cause of action. As rightly observed by respondent’s counsel the facts in the case of Ekwunife v. Wayne WA Ltd supra are distinguishable from the facts in the case at hand. In the instant case, the award took effect from date of judgment which is in line with Order 38 rule 7 of the Lagos State High Court (Civil Procedure) Rules 1994. Having regard to the circumstances of this case, I am of the considered opinion that the learned trial Judge exercised his discretionary power judicially and judiciously. The award of the post-judgment in my humble view is justifiable. Therefore, there is no cause for this court to interfere.

On the whole, I would resolve issue No.1 against the appellant.

While issue No.2 is partially resolved in favour of the appellant.

Accordingly, this appeal succeeds in part.

In the result, I will allow the appeal in part. The appeal is allowed in part to the extent that the award of 10% interest made on the principal sum of N686,414.89K by Alogba, J. of the Lagos State High Court in his judgment delivered on the 1st day of November, 2002 is varied to commence from 6th November, 1997 to 22nd November, 2001. While the 71/2% interest per annum is affirmed.

Appeal allowed in part.

Parties to bear own costs of the appeal.

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Other Citations: (2007)LCN/2435(CA)