Alhaji (Dr.) Bawa Garba & Anor V. Sheba International (Nigeria) Ltd (2001)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

By a writ of summons dated 8/7/98, the plaintiff which is now the respondent before this court filed an action at the Kaduna State High Court holden at Kaduna, under the undefended list of that court pursuant to Order 22 rules 1 – 5 of the Kaduna State High Court (Civil Procedure) Rules 1987 against the defendants, who are now the appellants claiming the following reliefs:

1. The sum of ?15,000.00 (Fifteen thousand pounds sterling) or the equivalent of N2,175,000.00 (Two Million, One Hundred and Seventy Five Thousand Naira) at the exchange rate of N145.00 to a pound sterling being the balance of $40,000.00 (Forty Thousand US Dollars) and ?35,000 (Thirty Five Thousand Pounds Sterling) paid by the plaintiff to the defendants on investment of Jos Satellite Joint Venture.
2. Interest at the rate of 21 percent per annum on the said principals of $40,000.00 and ?35,000.00 as follows.

(a) On $40,000.00 from 3/6/93 – 26/7/96 i.e $ 25,200.00.

(b) on $10,000.00 from 26/10/96 i.e $ 525.00.

(i) Sub-total $25,725.00 or at N85.00 to a US dollar N2,186,625.00.

(c) On ?35,000.00 from 5/8/93 ’97 2412/96 i.e ? 22,050.00.

(d) On ?25,000.00 from 24/12/96 ’97 0/5/97 i.e ? 2,187.00.

(e) On ?20,000.00 from 30/5/97 ’97 8/9/97 i.e ? 1,050.00.

(ii) Subtotal ? 25.287.00 Or (at N145.00 to a pound sterling) N 3,666,687.50.

Total (i) & (ii) N5,853,312.50.

(f) On ?15,000.00 from 8/9/97 until the entire debt is liquidated.”

Upon the service of the writ of summons and the accompanying affidavit in support of the respondent’s claims on the appellants, their learned counsel in response not only filed a notice of intention to defend the action as required under Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987, but also a preliminary objection to the jurisdiction of the trial High Court to entertain the respondent’s action. The notice of intention to defend the action and the notice of preliminary objection challenging the jurisdiction of the trial High Court were supported by the same affidavit deposed to on 17/7/98 on receipt of which the respondent filed a counter affidavit deposed to on 27/7/98. A further and better affidavit in support of notice of intention to defend the action and notice of preliminary objection was filed by the appellants on 28/7/98 before the undefended suit and the preliminary objection came up together before Makeri J. for hearing the same day, 28/7/98. After suffering a number of adjournments, the matter was ultimately heard on 9/11/98. In his ruling/judgment delivered on. 11/6/99, the learned trial Judge dismissed the preliminary objection raised by the appellants and held that the lower court has jurisdiction to hear the suit. On the affidavits in support of the appellants’ notice of intention to defend the suit, the lower court found that no defence on the merit had been disclosed therein to warrant granting the appellants as the defendants in the action leave to defend the suit and consequently proceeded and entered judgment for the respondent as plaintiff against the appellants as defendants as per the sum indicated in the writ of summons. The relevant part of this judgment at pages 106 to 107 of the record reads:

“A careful consideration of all the facts surrounding this matter reveals clearly that the transaction here has nothing to do with the internal management of an incorporated company as submitted by Alh. Sani Aminu Esq. This being the case the submission that it is only the Federal High Court that has jurisdiction in this case can not stand as such the submission is discountenanced. On the issue of notice of intention to defend the suit it is very clear that the defendant was by his admission and making part-payment of the amounts in question vested this court with power to adjudicate on this matter.

The relevant question is whether there is a defence on the merit disclosed by the defendants? The answer is in the negative in the sense that the defendant having admitted the amount and has paid a substantial part of the amount of it, cannot now back out from paying the balance. He even made an undertaking as to whom he would pay the said balance. It is therefore too late at this stage to hear him to say that both the demand made by the plaintiff and the part payment already made by the defendants are all illegal as submitted by Alh. Sani Aminu. There is no iota of any illegality in the whole transaction at all.

In the final analysis, I have come to the conclusion that having regards to the whole buts of this case the preliminary objection lacks merit and as such must be dismissed.

The notice of intention to defend this suit also has not disclosed any defence on the merit and same is discountenanced. To this end, I uphold the submission of Aneme Esq and enter judgment in favour of the plaintiff as against the defendants under Order 22 rule 4 of the rules of this court 1987 per the sum indicated in the writ of summons dated 21/7/98. Interest payable on the said amount shall be 10% from date of judgment until the whole or entire debt is liquidated.”

Dissatisfied with the ruling and judgment, appellants have appealed to this court. The amended notice of appeal of the appellants contains 4 grounds of appeal from which 4 issues for the determination of the appeal were distilled. The issues are:

“1. Whether the facts and the circumstances of this matter reveal clearly that the transaction between the appellants and the respondent is concerned with the internal management of a limited liability company incorporated under the provisions of the companies and Allied Matters Act 1990 (hereinafter referred to as “CAMA).

(2) Whether from the facts and circumstances of this matter the respondent’s claim could be taken as a debt or liquidated money demand, within the meaning and contemplation of Order 22(1) of the High Court (Civil Procedure) Rules 1987.

(3) Whether the trial court was right when it dismissed the appellant’s case herein having regard to its failure to call or order for oral evidence to resolve the glaring conflicts in the affidavit evidence before it.

(4) Whether by awarding interest to the respondent the appellants were denied fair hearing.”

Although in the respondent’s brief of argument, 4 issues were also formulated from the 4 grounds of appeal filed by the appellants, the issues which are not the same as those in the appellant’s brief or argument are as follows:

“1. Whether from the facts and circumstances of this case, it was the Federal High Court that had exclusive jurisdiction to entertain this matter.

2. Whether from the facts and circumstances of this case the matter was not the type contemplated by Order 22 of the Kaduna State High Court (Civil Procedure) Rules, 1987.
3. Whether the trial court did not properly consider the merits of the appellants’ notice of intention to defend along with the argument on the preliminary objection over jurisdiction before coming to a decision.
4. Whether the issue of interest was not conceded by the appellants.”

A careful perusal of the 4 issues each in the appellants’ and the respondent’s briefs of argument respectively shows that each of the issues 1,2,3, and 4 arose from grounds 1,2,3, and 4 respectively of the appellants’ grounds of appeal. However, although the appellants are complaining in their ground one of the grounds of appeal that the lower court had no jurisdiction to entertain the case, the appellants’ issue No. 1 arising from that ground was merely framed at large without raising anything on jurisdiction. The issue is not an issue at all in this appeal as its resolution one way or the other would have no bearing at all in allowing the appeal. Similarly, the respondent’s issue No. 3 which is supposed to have arisen from the appellants’ ground 3 complaining of failure of the trial court to call oral evidence to resolve conflicts in the affidavits of the parties, has no bearing whatsoever with that ground of appeal or any of the remaining 3 grounds of appeal for that matter. The issue simply does not arise from any of the grounds of appeal. Thus, not being proper issues for determination in this appeal, the appellants’ issue No. 1

and the respondent’s issue No. 3 shall be ignored in the determination of this appeal. See Onyesoh v. Nnebedun (1992) 3 NWLR (Pt. 229) 315 at 343. The remaining issues for determination therefore in this appeal are the appellants’ issues 2,3 and 4 and the respondent’s issues 1,2 and 4 respectively.

Since the respondent has properly framed an issue from the appellants’ ground one of the grounds of appeal, I shall proceed to resolve that issue on jurisdiction. However before proceeding to do so, I shall state though briefly, the facts of the case. By an agreement in 1993, the appellants and the respondent agreed to form a joint venture to be known as Jos Cable Satellite Limited. Pursuant to that agreement in Kaduna, the respondent paid the sum of $40,000.00 and ?35,000.00 respectively to the appellants as the respondent’91s contributions or shares in the proposed joint venture which ultimately resulted in the incorporation of the company, Jos Cable Satellite Limited. Not long after the incorporation of the company, the respondent became dissatisfied with the venture and therefore decided to withdraw from it by a letter dated 14/3/95 addressed to the 1st appellant asking for the repayment of the sums paid towards the venture together with interest. In their reply dated 4/10/95, the appellants agreed to the withdrawal of the respondent from the joint venture and also agreed to refund the sums of $40,000.00 and ?35,000.00 respectively paid by the respondent towards the joint venture but did no say anything on interest on the amount. Pursuant to their agreeing to pay back the sums invested, the appellants had between 26/9/96 and 8/9/97, paid a total sum of $40,000.00 and ?20, 000.00 to the respondent thereby leaving a balance of ?15,000.00. It was when this balance could not be paid by the appellants inspite of undertaking to do so, that the respondent instituted this action to recover the balance of ?15,000.00 together with 21% interest on the total amount paid to the appellants. The lower court granted the reliefs sought by the respondent with 10% interest under the undefended list of that court, hence the present appeal.

The first issue for determination therefore is whether having regard to the claims of the respondent, the lower court has jurisdiction to hear the case. It was argued for the appellants that having regard to the transaction between the parties in this appeal which relates to the management of internal affairs of a company, Jos Cable Satellite Limited registered under the provisions of the Companies and Allied Matters Act 1990, the lower court has no jurisdiction to hear the case which, by virtue of section 230 of the 1979 Constitution as amended by Decree 107 of 1993 is under the exclusive jurisdiction of the Federal High Court. The cases of 7UP Bottling Company Ltd v. Abiola & Sons (1996) 7 NWLR (Pt. 463) 743 – 744 and Nwaubani v. Golden Guinea Breweries Plc (1995) 6 NWLR (Pt. 400) 184 at 200. That having regard to the complaint of the respondent in paragraph 4(1) of the affidavit in support of the writ of summons which touches on the internal affairs of a company, only the Federal High Court that has jurisdiction in the case. Appellants’ learned counsel therefore urged this court to allow the appeal on this issue.

The respondent however contended that its claim at the trial court is within the courts jurisdiction as it only involves a claim for the refund of money paid to the appellants which the appellants agreed to pay and infact started paying leaving only a balance of ?15,000.00. That the claim being money paid to the appellants as promoters of company, it is the appellants that are liable to refund relying on the case of Transbridge Co. Ltd v. Survey International Ltd. (1986) 4 NWLR (Pt.37) 516 at 605. Learned counsel to the respondent concluded that the respondent’91s case at the lower court does not fall within the jurisdiction of the Federal High Court under section 230(1) (e) of the 1979 Constitution as amended by Decree 107 of 1993.

Jurisdiction is the very basis on which any court of law tries a case as it is the life line of all trials. This is because a trial without jurisdiction is a nullity.

The current statute in force at the time the respondent’s action was filed at the court below with regard to the relevant part of the jurisdiction of the Federal High Court is the provision of section 230 (1) (e) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 which states:

“230(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred up on it by an Act of the National Assembly or Decree, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters arising from:

(a) _____________________

(b) _____________________

(c) _____________________

(d) _____________________

(e) The operation of any Act or Decree relating to Companies & Allied Matter and any other common law regulating the operation of companies.”

There is no doubt therefore that any dispute between parties over the operation of the Companies and Allied Matters Act 1990 regulating the operation of companies, comes exclusively under the jurisdiction of the Federal High Court, as submitted by the appellants relying on the case of 7up Bottling Co. Ltd v. Abiola & Sons Ltd (1996) 7 NWLR (Pt.463) 714 at 744 cited and relied upon in support of the argument.

However, the law is also well settled that it is the claim of the plaintiff that determines the jurisdiction of the trial court. In other words ordinarily, it is the claim of the plaintiff and not the defendant’s defence that would be looked into or examined to determine jurisdiction. See Adeyemi v. Opeyori (1976) 910 SC 31 at 49 and Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539; Opiti v. Ogbeiwi (1992) 4 NWLR (Pt.234) 184; Anya v. Iyayi (1993) 7 NWLR (Pt.306) 290 and Akinfolarin v. Akinnola (1994) 3 NWLR (Pt. 335) 659 at 674 where Iguh JSC stated the position of the law when he said:

“In the first place, it is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same. See Ajaka Izenkwe & Ors v. Nnadozie (1952) 14 WACA 361 at 363 and Adeyemi v. Opeyori (Supra) at P.51.”

In the instant case, the claim of the respondent against the appellants as endorsed on the writ of summons filed under the undefended list of the lower court is for the sum of ?15,000.00 or its Naira equivalent of N2,175,000.00 being the balance of $40,000.00 and ?35,000.00 paid by the respondent to the appellants on investment of Jos Satellite Joint Venture and interest at the rate of 21 % per annum on the said amounts paid to the appellants. On the face of this claim, there is no relief therein which relates the claim on the operation of the Companies and Allied Matters Act 1990 regulating the operation of companies. Although the amount being claimed is a balance of the amount paid by the respondent in a joint venture company registered under the Companies and Allied Matters Act, the joint venture having been terminated by mutual agreement of the parties to the joint venture when the respondent was allowed to withdraw and be paid back the amount it had invested in the joint venture, the balance of that amount now being claimed by the respondent is a simple debt or liquidated money demand within the contemplation of Order 22 Rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987, and therefore to my view falls squarely within the jurisdiction of the lower court. In other words, right from the 4th day of October, 1995, when the appellants clearly accepted in writing by their letter at page 11 of the record of the proposal by the respondent to withdraw from the venture as contained at page 10 of the record and also agreeing in writing to refund to the respondent the sums of $40,000.00 and ?35,000.00 respectively paid to the appellants by the respondent towards the sustenance of the joint venture project, the amounts became a debt or liquidated money demand payable by the appellants to the respondent. The dispute between the parties over the management of the Jos Cable Satellite Limited which was incorporated as the result of the joint venture established between the parties and which has not been made the subject of the claim of the respondent in the present suit, is totally irrelevant and therefore can not play any role in the determination of the jurisdiction of the lower court to entertain the respondent’91s claim. Learned trial Judge was indeed right in holding that he had jurisdiction to hear and determine the respondent’91s claim.

The second issue is whether from the facts and circumstances of this case, the respondent’s claim could be taken as a debt or liquidated money demand within the meaning and contemplation of Order 22 Rule 1 of the High Court (Civil Procedure) Rules 1987. Learned counsel to the appellants referred to the definitions of words ‘debt’ and ‘liquidated demand’ in Blacks Law Dictionary Sixth Edition and submitted that the claim of the respondent in the present case does not fall within the contemplate support of the writ of summons and paragraphs 3(a)-(g) of the appellants affidavit in support of notice of intention to defend the suit, had revealed some disputes over the management of the joint venture project, the Jos Cable Satellite Limited which necessitated the transfer of the case to the ordinary cause list for hearing on pleading in line with the decision of this court in Agwuneme v. Eze (1990) 3 NWLR (Pt. 137) 242 at 253 – 257.

For the respondent it was argued that since the claim of the respondent was the balance of ?15,000.00 or its Naira equivalent including interest on the same which brought the total amount at the time of filing the suit to N5,853,312.20, the amount is a debt and infact liquidated money certain in sum within the requirement of Order 22 of the Kaduna State High Court (Civil Procedure) Rules 1987 and therefore rightly heard and determined by the lower court under the undefended list.

The claim of the respondent in the present case as endorsed in the writ of summons is for a sum of money due by certain and express agreement as the amount of $40,000.00 and ?35,000.00 which the respondent asked the appellants to refund to it and which the appellants agreed to refund, had been ascertained and settled by agreement of the parties. The respondent’91s claim for the balance of the amount still outstanding from the total amount the parties agreed to be refunded to the respondent, is therefore debt or liquidated money demand within the contemplation of Order 22 rule 1 of the Kaduna State High Court (Civil Procedure) Rules 1987.

The third issue is whether the trial court was right when it dismissed the appellants’ case having regard to its failure to call or order for oral evidence to resolve the glaring conflicts in the affidavit evidence before it. The appellants have argued in their brief of argument that although conflicts exist in the affidavits of the parties on whether board meetings were held in the operation of the joint venture company, or whether the payments made to the appellants were loan, or whether general meetings of the joint venture company were held, the lower court all the same dismissed the defence of appellants and refused to call oral evidence to resolve the conflicts as required by law. Several cases were cited in support of this argument, one of which is the case of Shugaba v. Union Bank Of Nigeria Plc (1997) 4 NWLR (Pt. 00) 481 at 490.

As far as the claim of the respondent in this case is concerned, learned counsel to the respondent had maintained that there is no conflict at all in the affidavit of the parties warranting the calling of oral evidence to resolve. That as the appellants’ affidavit in support of their notice of intention to defend the suit had disclosed no defence on the merit to the claim, the lower court was right in refusing to transfer the case to the general cause list for hearing.

It is indeed the law as correctly stated in the appellant’s brief of argument that where there is conflict in the affidavits filed by parties in support of their respective cases in a dispute before a court, it is the duty of the court trying the case to resolve such conflicts in the evidence by calling oral evidence or otherwise. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 35) 688 at 718 where Nnaemeka-Agu JSC (as he then was) stated the law as follows:

“Evidence by affidavit is, it must be noted, a form of evidence. It is entitled to be given weight where there is no conflict, after the conflict has been resolved from appropriate oral or documentary evidence. For true, it is the law that where there is conflict of affidavit evidence called by both sides, it is necessary to call oral evidence to resolve the conflict. See Falobi v. Falobi (1976) 9 & 10 SC 1 P.15; Akinsete v. Akinduture (1966) 1 All NLR 147. But I believe that it is not only by calling oral evidence that such a conflict could be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another. In a trial by affidavit evidence such as this, that document is capable of tilting the balance in favour of the affidavit which agrees with it.”

In the present case where the claim of the respondent against the appellants is for the payment of the balance of the sum of ?15,000.00 then due from the appellants out of the sums of $40,000.00 and ?35,000.00 respectively which the appellants had agreed to pay the respondent, there was no conflict at all in the parties affidavit on that claim filed under the undefended list. The alleged conflicts in the affidavit listed by the appellants in their argument as to whether there had ever been a board meeting of the board of Jos Cable Satellite Limited, are totally irrelevant to the claim of the respondent which had already withdrawn from the joint venture with the agreement of the appellants who had almost completed refunding the respondent’91s investment in the joint venture before the present action was filed. In other words, whether there ever had been a board meeting or not of the board of the joint venture company is a matter which is no longer an issue between the parties as far as the claim of the respondent in this case is concerned. The result of this situation of course is that having regard to the present issue for determination in this appeal, I say there was no conflicts in the affidavit of the parties requiring any resolution by any evidence, not to talk of oral evidence.

The last issue for determination in this appeal is whether the lower court was right in awarding the respondent’s claim on interest. This issue is based or derived from the appellants’ ground 4 of the grounds of appeal which is complaining of the absence of an agreement between the parties on interest. It was argued for the appellants in support of this issue that from the papers filed and the affidavit evidence led at the trial court, there is no where the parties had expressly agreed on the issue of interest. That only paragraph 4(r) of the respondent’s affidavit in support of its claim Exhibit ‘E’ to the affidavit being a letter written by the respondent to the appellants that mentioned interest and that these do not constitute agreement between the parties. It was therefore further argued that in the absence of documentary evidence, a court can only adjudicate on the issue of interest after hearing the parties on the matter to avoid denial of fair hearing as was stated in Clay Industries (Nigeria) Ltd v. Aina (1997) 8 NWLR (Pt. 516) 208 at 227 – 228.

The respondent however pointed out that the issue of interest was raised by the respondent and conceded by the appellants. That the issue was raised by the respondent in paragraphs (q) and (r) at pages 5 and 6 of the records. The matter was also raised in the last paragraph of page 10 of the records. Learned counsel to the respondent therefore concluded that the appellants not having said anything in their affidavit and further affidavit in support of their notice of intention to defend the suit, are deemed to have admitted the claim.

The respondent’91s claim for interest at the rate of 21% per annum on the amounts of $40,000.00 and ?35,000.00 respectively it had paid to the appellants as investment in the joint venture with the appellants from which it had voluntarily withdrawn with the agreement of the appellants, is the second relief contained in the respondent’91s writ of summons filed under the undefended list of the lower court. In support of this claim, the respondent averred in paragraph 4(q) and (r) of the affidavit in support of its claim as follows:

“(q) If the said $40,000.00 and ?35,000.00 paid to the defendants by the plaintiff since 3/6/93 and 3/8/93 respectively were left in the plaintiff account it would have yielded colossal interest.

(r) The defendants are aware that deposits for shares attract interest at the prevailing bank rate”

The respondent also mentioned about interest in the last paragraph of its letter of 14/3/95 Exhibit to its affidavit withdrawing from the joint venture addressed to the appellants at page 10 of the record where it said:

“You may also be aware that any deposit for shares attracts interest payable at prevailing bank rate. We shall therefore expect a repayment of the principal amount and the interest accrued on 30th April, 1995.”

However, it is observed that the letter Exhibit ’91E’91 was only exhibited in support of the respondent’91s demand for the refund of only the sums $40,000.00 and ?35,000.00 respectively without averring anything on interest on the amounts as shown in paragraph 4(k) of the respondent’91s affidavit where it is stated:

“(k) The above irregularities discouraged the plaintiff who in March, 1995 demanded the refund of the said contributions of $40,000.00 and ?35.000.00. (A copy of the said letter is exhibited hereto as Exhibit ’91E’91).”

However, it is observed that the appellants’91 reply to the respondents letter Exhibit ’91E’91at page 10 of the record dated 4/3/95 which appellant’91s letter is dated 4/10/95 at page 11 of the record, the appellants merely accepted the respondent’91s proposal to withdraw from the joint venture and agreeing to refund to the respondent the sums of $40,000.00 and ?35,000.00 respectively without saying anything on interest. In an apparent agreement with that silence of the appellants on the issue of interest, even the respondent’91s subsequent demand for the payment of the principal amounts it had paid the appellants through its counsel Yahaya Mahmood Esq, when in the letter of demand dated 5/2/96, only the payment of the principal amounts was demanded to be made within 14 days while the demand of the respondent for interest was made only conditional and in the alternative if the amounts had to be recovered by filing a suit in court. Paragraph 3 of the learned counsel’91s letter at page 13 of the record an this issue is quite clear when it said:

“3. Our instruction is to demand for the payment of the sums of $40,000.00( Forty Thousand US Dollars) and ?35,000.00 (Thirty Five Thousand Pounds Sterling) or the Naira equivalent within 14 days from the date of this letter. Thus, if the payment is not made by noon of the 21st of February, 1996 we have alternative instructions to file a suit in court to recover the said amount with interests.”

Thus, as no action was filed against the appellants to recover the principal sums until the appellants had paid a greater part of this sum leaving the balance of only ?15,000.00 which constituted the subject of the respondent’91s claim at the lower court filed in July, 98 to recover the same, the subject of or the basis of the respondent’91s claim for interest as reflected specifically on the writ of summons filed under the undefended list of the lower court, had been further beclouded thereby requiring proof on the affidavit evidence in support of the respondent’91s case, in the same way its claim for the principal sums was proved on the same affidavit evidence of exhibits A,B,C,D,E, and F made up of receipts for the payment of the principal, respondents letters authorising its bank to effect the payment, the respondent’91s letter of demand for the refund of its investment and the appellants’91 letter agreeing to the respondents withdrawal and the repayment of the sums demanded, as contained in the respondent’91s affidavit in support of the claim. The only evidence contained in paragraphs 4(q) and (r) earlier quoted in this judgment of the respondent’91s affidavit in support of the respondent’91s specific claim for interest, is not enough in my view to support that claim as the evidence in those two paragraphs, is purely speculative and does not give any basis in support of the claim. In other words in the absence of any agreement between the parties as to the amount of interest that an investment withdrawn from the joint venture would attract at the time of the withdrawal and thereafter until the amount is withdrawn is fully paid up, it is not possible to regard the respondent’91s claim for interest at 21% per annum as proved. The lower court was therefore wrong in entering judgment for the respondent in respect of that item of its claim at a reduced rate 10% interest per annum without any evidence on the basis of such reduction of the rates specifically claimed by the respondent which the respondent could not prove. In the circumstances of this case, the proper course the lower court could have taken was to have dismissed that item of the claim in the absence of any required proof. This is because the fact that the claim was filed under undefended list of the lower court, that does not absolve the respondent of the burden of proving its claim on the evidence averred in the affidavit in support of its claim as required by law.

For the foregoing reasons, this appeal succeeds in part. The appeal against the judgment of the lower court of 11/6/99 granting the respondent’91s claim in the sum of ?15,000.00 or its Naira equivalent being the balance of $40,000.00 (Forty Thousand US Dollars) and ?35,000.00 (Thirty Five Thousand Pounds Sterling) paid by the respondent to the appellants on investment of Jos Satellite Joint Venture having failed is hereby dismissed and the judgment of the lower court in this respect is hereby affirmed. However, the appeal against the award of interest having succeeded is hereby allowed. Accordingly, the order of the lower court awarding 10% interest per annum to the respondent in place of interest of 21% per annum claimed by the respondent which was not proved is hereby set aside and replaced with an order dismissing the respondent’91s claim in that respect.

I am not making any order on costs.

Other Citations: (2001)LCN/1006(CA)