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Home » Nigerian Cases » Supreme Court » Cappa & D’alberto (Nig) Plc V. Ndic (2021) LLJR-SC

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

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.

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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.

  1. The sum of N10,000,000.00 (Ten Million Naira) as general damages for negligence in receiving, clearing and keeping the “Crossed Cheques”.
  2. 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.

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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.

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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.

See also  Bale Adegbaiye & Anor V. Josiah R. Akinrimisi & Anor (1974) LLJR-SC

The preliminary objection is hereby discountenanced and struck out.

ISSUE FOR DETERMINATION:

The two issues formulated by both parties can be harmonized into one thus:

Whether by the facts and circumstances in the instant appeal, the lower Court exercised its discretion judiciously in reducing the interest rate awarded by the trial Court from 25% to 4%.

SUBMISSIONS OF COUNSEL:

The Appellant’s learned Counsel has submitted that the idea of the award of interest is not to compensate for the damage done but for being kept out of funds

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legitimately owned or ought to have been paid as held in NATIONAL BANK OF NIGERIA LTD V. SAVOL WEST AFRICA LIMITED (1994) 3 NWLR (PT.333) AT 463, or when in a business transaction like this, one party is found to have withheld money due to the other party for sometime after being due as decided in ACME BUILDERS LTD V. KADUNA STATE WATER BOARD (1999) 2 SC 1 AT 9.

On the powers of the Court to award interest, it is in general that it is based on contract, some merchantile usage or by statute. Reliance was placed on LORD LONDON CHATHAM & DOVER RAILWAY V. SOUTH EASTERN RAILWAY (1890) AC AT 433. Pre-judgment and post-judgment interests are claimed as of right, where it is conferred by statute or according to the prevailing economic situation. He cited EKWUNIFE V. WAYNE (W/A) LTD (1989) 5 NWLR (PT.122) 422, BERLIET (NIG.) LTD V. KACHALLA (1995) 9 NWLR (PT.420) AT 500, R.E.A.N. LTD V. ASWANI TEXTILE LTD (1991) NWLR (PT.176) AT 671.

It was settled that the trial Court found that there was a breach of equitable relationship which kept the Appellant out of funds to necessitate the award of interest. Thus, the finding of primary facts is the preserve of

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the trial Court as decided in EKWUNIFE V. WAYNE (W/A) LTD (SUPRA) AT 439 PARA F. It is therefore the law that the appellate Court should give reasons for the exercise of its discretion one way or the other as found in WILLIAMS V. VOLUNTARY FUNDS SOCIETY (1982) 1-2-SC AT 162. He urged this issue to be resolved in the favour of the Appellant and to allow the appeal.

The Respondent through his learned Counsel argued that the Appellant failed to establish that it was entitled to the 25% interest as no evidence was led to that respect. Hence, he who asserts must prove. He quoted in support EGBUNIKE V. AFRICAN CONTINENTAL BANK LTD (1995) 2 NWLR (PT. 375) AT 52. AKINTOLA V. STABILINI & CO. LTD (1972) NSCC (VOL.7) AT 125-126.

It was submitted that the Appellant failed to show how the lower Court wrongly or arbitrarily exercised its discretion in reducing the rate of interest awarded by the Federal High Court. The learned Counsel therefore prayed that this issue be resolved against the Appellant and the appeal dismissed.

RESOLUTION OF ISSUE:

Both the Court and the parties are bound by the reliefs claimed as framed and it is not the duty of

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the Court to grant any relief outside what had been claimed.

By the amended Statement of Claim dated 5/2/1991 (see pages 93-97), upon which the Appellant as Plaintiff won his case against the Respondent, the Appellant claimed against the Respondent, apart from 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; “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.”

See also  A.C.B. Ltd Vs A. Ehiemua (1978) LLJR-SC

The above relief of 26% interest rate per annum was predicated on the facts pleaded and the relationship/transaction that existed between the Appellant and the Respondent leading to the loss incurred by virtue of the Respondent’s negligence.

​The trial Court, having the preserve of the primary evidence and facts, considered the case of the Appellant and Respondent and was frank and truthful to hold the

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Respondent Bank negligent for the conversion of the sum of N3,121,446, when at page 165 of the record, it held that “the defendant bank did not follow the normal and usual banking procedure in the payment of the said amount in the account to fictitious person(s). I have held that the defendant bank was negligent in the payment of the said sum”.

The lower Court in affirming the judgment of the trial Court towed the same line in considering the case before it that “the learned trial Judge was right when he held that the Defendant/Bank was negligent…” See page 463 paragraph 4 of the record and sundry affirmations of the trial Court’s decision by the lower Court thus:

The Appellant/Bank had opted to deal with the cheques in a manner which is inconsistent with the right of the Plaintiff/Respondent…and therefore they are liable to the Respondent for the conversion of the sum of N3,121,446 which belongs to the Respondent.

The trial Judge was right when he held that the Defendant/Bank was negligent in opening account No.45-100187 and having the cheques of the Plaintiff/Company paid into the account No. 45100187. The

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Defendant/Bank was therefore negligent in the payment of the said sum of N3,121,446 and was liable to pay same back to Respondent. The Appellant has failed to prove contributory negligence against the Respondent, hence that plea cannot hold.

The lower Court having agreed and being on the same page with the trial Court, however took a u-turn and reduced the interest rate from 26% per annum to 4% per annum.

In fact, the judgment of the lower Court being attacked by the Appellant captured at page 464 of the record states thus:

“…Moreover the Cross/Appellant did not raise any claim for aggravated damages in the statement of claim. Also the learned trial Judge cannot grant more than 4% interest on the judgment sum. That part of the judgment is therefore reduced to 4% interest up till day of judgment and 4% after the judgment until final liquidation…On a final analysis, the appeal fails and the Cross Appeal also fails…”

Although an appellate Court admittedly can disturb an award of damages if such award is excessively high or unreasonably low, it is settled that a Court of Appeal will not disturb an award of damages made by the

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lower Court merely because it would have come to a different figure if it had heard the case itself. See Per NNAMANI, JSC in DUYILE & ANOR V. KELLY OGUNBAYO & SONS LTD (1988) LPELR-975(SC) (P. 17, PARAS. D-G).

​The lower Court having reduced the interest rate from 25% awarded by the trial Court to 4% is on the same page with the trial Court. If the trial Court was wrong or perverse in its assessment or ascertainment of the facts and circumstances of the case at hand, which was the exclusive preserve of the trial Court, the appellate Court notwithstanding, has the power to re-assess and reevaluate the facts and circumstances and to arrive at the correct assessment and evaluation. Otherwise, the appellate Court cannot take over and usurp the primary function of the trial Court to handle primary facts. In essence or the point I am trying to drive home is that if the lower Court disagreed with the trial Court on the award of interest, it was to completely disregard it as having not been proved, and not to reduce same to 4% without stating and proffering superior reasons why it did so. No Court exists in isolation, and the rule of precedence and

See also  The “caroline Maersk” Sister Vessel To Mv “christian Maersk” V. Nokoy Investment Limited (2002) LLJR-SC

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independence must be observed unless where there is perversity and injustice.

By the pleadings of the parties, it is revealed that the transaction was based on normal banking or financial transaction, where interest rates/gains/profits are topmost and uppermost. In fact, where interest is not even claimed on the Writ, but the facts are pleaded as did the Appellant in its amended Statement of Claim and evidence was given which showed entitlement thereto, the Court may award interest as a general rule. See EKWUNIFE V. WAYNE (W/A) LTD (1989) 5 NWLR (PT.122) 428.

​It is revealed by the record and the pleadings filed by the Respondent that the relief sought by the Appellant was not contested at all. Thus, parties are bound by their pleadings. It is elementary that a Court is bound by the reliefs sought. The generosity or charity of a Court of law is confined strictly to the reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The

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Court, as an unbiased umpire, cannot claim to know the reliefs better than the party. See Per Tobi, JSC, in EAGLE SUPER PACK (NIGERIA) LTD V. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 AT 40.

To reduce the interest rate from 26% per annum to 4% per annum without giving any cogent reason by the lower Court is to present to the parties a different case altogether, which the lower Court does not have the power to do. If the Appellant had won his case by the preponderance of evidence to be entitled to the interest rate of 26% per annum, what was the basis the lower Court reduced it to 4%?

A successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See Per RHODES-VIVOUR, JSC inNNPC V. CLIFCO NIG. LTD (2011) LPELR-2022(SC) (P. 23, PARAS. D-A).

Interest may be awarded in a case in two distinct circumstances, namely: (i) As of right: and (ii) Where there is a power conferred by statute to do so, in exercise of the Court’s discretion. Interest may be

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claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim. See Per NNAEMEKA-AGU, JSC in EKWUNIFE V. WAYNE WEST AFRICA LTD (1989) LPELR-1104(SC) (PP. 33-42, PARAS. C-A).

This was the claim of the Appellant at the trial Court; even vide his Cross Appeal before the lower Court. Thus, it does not lie before the lower Court to deny him his entitlement without proper reasons either based on lack of the right or the statute to support it.

This issue is therefore resolved in favour of the Appellant and the appeal hereby succeeds. The judgment of the lower Court dated 30/11/2000 is set aside. Parties are to bear their costs.


SC.147/2006

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