Cappa & D’alberto (Nig) Plc V. Ndic (2021)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C.

This appeal is against part of the judgment of the Court of Appeal, Lagos Division, delivered on 30/11/2000, wherein the lower Court arbitrarily reduced the rate of interest awarded the Appellant/Plaintiff in the trial Court from 25% per annum to 4% per annum from 27/3/1990, till judgment and 4% per annum thereafter until final liquidation of the judgment as opposed to the rate of 21% per annum awarded by the trial Court, without giving any reasons or stating the law under which it acted. Dissatisfied, the Appellant therefore seeks the reversal of that portion of the lower Court’s judgment relating to interest and restore the judgment of the trial Court in respect of same.

By the amended Statement of Claim dated 5/2/1991 (see pages 93-97), the Appellant/Plaintiff claimed against the Respondent:

​1. The refund of the sum of N3, 121,446.00 (Three Million, One Hundred and Twenty One Thousand, Four Hundred and Forty Six Naira Only) being the total sum of money of the “Crossed Cheques” cleared negligently and fraudulently received and cleared by the Defendant into the fake account.

1

Interest at rate of 26% per annum from the 27th of March, 1990 till the judgment is given and the same rate from the date of judgment until the whole debt is finally liquidated by the Defendant.

3. The sum of N10,000,000.00 (Ten Million Naira) as general damages for negligence in receiving, clearing and keeping the “Crossed Cheques”.
4. Such costs as may be expended by the Plaintiff in instituting this action.

The trial Court gave judgment in favour of the Appellant, which caused the Respondent to appeal while the Appellant cross-appealed. The lower Court delivered its judgment contained at pages 452-466, wherein it reduced the interest rate awarded by the trial Court from 26% to 4% per annum till judgment and final liquidation respectively. In seeking for determination of the appeal before this Honourable Court, the Appellant formulated these 2 issues:

1. Whether having regards to the facts and circumstances of this case, particularly the breach of equitable relationship between parties, the Appellant was right in claiming a prejudgment interest at 25% per annum and the same rate after judgment until final liquidation.

2

Whether the Court of Appeal was right in the exercise of its discretion by arbitrarily reducing the rate of interest awarded the Plaintiff by the trial Court without giving reasons or stating under which provisions of the law it acted.The Respondent on the other hand formulated the issues for determination thus:

1. Whether there existed any evidence or any material upon which the High Court of Lagos State could properly award the Appellant’s claim for interest at the rate of 25% per annum and at the same rate after judgment until final liquidation by the Respondent, and
2. Whether the Court of Appeal judicially and judiciously exercised its discretionary powers by reducing the rate of interest awarded the Appellant by the trial Court.

PRELIMINARY OBJECTION:

The Respondent herein has filed a notice of preliminary objection to the hearing of the Appellant’s appeal on the following bare grounds:

1. That the sole ground of appeal raises issues of mixed law and fact.
2. That the Appellant did not obtain the leave of the Court of Appeal, contrary to Section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999.

3

It is on record that on the day of hearing this appeal, both the Respondent and Appellant’s Counsel were absent. Thus, the preliminary objection stands abated and unused. An issue or a preliminary objection in respect of which no argument is advanced in the brief of argument and therefore not canvassed before the Court must be deemed abandoned. See Per IGUH, JSC in ONAMADE V. A.C.B. LTD (1997) LPELR-2671(SC) (PP. 17-18, PARAS. F-A). See also LEMBOYE V. OGUNSIJI (1990) 6 NWLR (PT. 155) 210 AT 232; AJIBADE V. PEDRO (1992) 5 NWLR (PT. 241) 257; ARE V. IPAYE (1986) 3 NWLR (PT. 29) 416 AT 418.

The preliminary objection is hereby discountenanced and struck out.