Henkel Chemicals (Nigeria.) Ltd. V. A.g. Ferrero & Company. Ltd. (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A. 

The plaintiff’s claim before the trial court against the defendant was as follows: –

“(a) N449,474.45 (Four Hundred and Forty Nine Thousand Four Hundred and Seventy Four Naira Forty-Five kobo) only being the sum outstanding against the defendant in favour of the plaintiff on valuation certificate No. 18 issued by the defendant’s Architects on 7th December, 1989.

(b) Interest on the outstanding sum herein above at the minimum rate of 25% per annum from the date of the default by the defendant to effect payment according to contract i.e. from 29th day of December, 1989, till judgment in this suit.

Interest at the rate of 10% per annum on the judgment debt from the date of judgment until the judgment debt is fully and finally settled by the defendant.”

The action was brought under the undefended procedure at the Kaduna State High Court of Justice. Upon the defendant filing a notice of intention to defend supported by affidavit disclosing a defence on the merit, the learned trial Judge, Yahaya, J, transferred the suit from undefended to general cause list. Whereupon pleadings were ordered, filed, exchanged and settled at the amended statement of claim and a statement of defence. The suit which had a chequered history was then transferred to Akaahs, J., (as he then was) before it was eventually assigned to Inuwa, J, who concluded the trial.

The plaintiff called his only one witness and closed its case and eventually delivered its speech owing to dilatory tactics of the defendant, it neither adduced evidence nor addressed the court on the case. Learned trial Judge, Inuwa, J., in a reserved and considered judgment, acceded to the plaintiff’s three reliefs with costs assessed at N4,000.00. The defendant was unhappy, and being dissatisfied with the judgment, appealed to this court on three grounds of appeal.

Pursuance of the notice of appeal filed, particularly the grounds of appeal contained therein, issues were framed in the briefs of argument filed and exchanged in accordance with the provisions of Order 6 rules (1) and (2) of the Court of Appeal Rules, Cap.62 of the Laws of the Federation of Nigeria, 1990. In the appellant’s brief these 2 issues were identified as calling for determination:-

“(1) Whether having regard to the pleadings and evidence before the lower court, the trial lower court was justified in awarding the respondent 25% per annum interest on the claimed sum of N449,474.45 from December 29, 1989, to 16/6/2000. This issue derives from ground 1 of the grounds of appeal.

(2) Whether the learned trial Judge exercised his discretion both judicially and judiciously in awarding interest on the outstanding claimed sum of N449,474.45 at the rate of 25% per annum from December 29, 1989 to 16/6/2000. This issue derives from ground 3 of the grounds.”

The respondent’s brief carried only one issue which issue reads as follows:

“Whether having regard to the unchallenged evidence led by PW.1 on behalf of the respondent, coupled with the fact that the appellant did not lead evidence at the trial, the trial court was light to have awarded interest of25% per annum on the claimed sum of N449,474.45k from 29th December, 1989 to 16th June, 2000.”

This identification substantially adopts the appellant’s first issue as the only issue calling for determination in this appeal.

But the learned Counsel for respondent, on the question of formulating issues, took exceptions to some aspects of appellant’s formulations. Firstly, he contended rightly, in my view, that appellant’s issue 2 cannot competently derive from ground 3 of the grounds of appeal to which the appellant related it. Ground 3 is the omnibus ground and reads as follows:-