Berliet Nigeria Ltd. V. Alhaji Mustapha Kachalla (1995)

LAWGLOBAL HUB Lead Judgment Report

ONU, J.S.C

On the 29th day of November, 1982 Musdapher, C.J., (as he then was) sitting at the Kano State High Court holden in Kano, awarded judgment in plaintiff/appellant’s favour in the sum of N112.882.72 against the defendant/respondent pursuant to a writ of summons issued under the undefended list.

An application to set aside the judgment was struck out on 7th March, 1983 by the same Chief Judge who had entered judgment for the appellant. The appellant who ostensibly did not ask for interest by its writ of summons aforesaid before or at the time when the judgment was entered in his favour, brought a motion ex parte dated 7th November, 1985 before Minjibir, Ag. C.J. (as he was) praying for an order that 10% interest be paid on the aforesaid judgment debt of 29th November, 1982 until it be wholly paid.

The learned Ag. C.J. on 12th November, 1985 granted the appellant’s application. This ex parte order was however short-lived as on 21st April, 1986, it was set aside on an application brought by the respondent. Matters did not end there as the appellant thereafter by way of a motion on notice dated the 15th day of July, 1986 applied to the trial court under Order 27 rule 8 of the Kano State High Court (Civil Procedure) Rules, 1976, that an order be made that 10% automatic interest be calculated and paid on the judgment debt including costs and the same with effect from 29th November, 1982 until the whole amount had been finally liquidated.

In his ruling dated 8th October, 1986 the learned C.J. dismissed the application held inter alia that –

“According to my own understanding of the provisions of the Rules (Order 27 rule 8) above quoted, the rate of 10% interest per annum is payable on any judgment debt unless a contrary order to that effect has been given by the court that has given that judgment. The judgment in this case was given on the 29/11/82 by my predecessor in office without giving the 10% interest on the outstanding judgment debt and no contrary order to that effect has been given.

This leads me to say that the provisions of the above Order and Rule have not been complied with. Consequently, and in my considered opinion, this position amounted to an omission…….. It is my considered opinion and I so hold that by granting the order prayed for, I will be making addition to the judgment entered into on the 29/11/82.

The question to ask is this: Is this court competent to make the addition to bridge in the gap in the judgment already delivered in the open court If the answer is in the affirmative, the court is therefore empowered to make the deletion in any judgment that has been delivered in the open court, a practice which is manifestly wrong as far as I can see it.

It is indisputably clear that once a judgment is delivered in the open court, the court or Judge delivered the same becomes ‘functus officio’.

(Italics mine for emphasis)

The appellant appealed against the above decision to the Court of Appeal. (coram: Mohammed; Aikawa and Achike, J.J.C.A.) which in a considered judgment proceeded to dismiss it.

Being dissatisfied with the court below, the appellant has further appealed to this court on seven grounds, whereof three issues distilled therefrom are as set out hereunder following the exchange by the parties of their briefs of argument in accordance with the rules of this Court.

(a) Whether the Court of Appeal was right in holding that Order 27 rule 8 of the Kano State High Court (Civil Procedure) Rules, 1976 did not provide a mandatory award of 10% interest on all judgment debts unless otherwise ordered by the trial Chief judge.

(b) If the answer to question No. 1 is in the negative whether the judgment creditor must, in each case, specifically ask for an award of interest.