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:

1. 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).
2. 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).
3. 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).
4. 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:-