Industrial & Commercial Service. Nigeria. Ltd. Anor. V. Balton B. V. Ors. (2002)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A.

In suit No. LD/1044/91 before the Lagos High Court, the 1st respondent as plaintiff claimed against three defendants, the 1st and 2nd of whom are now the appellants and the 3rd now the 2nd respondent claiming in these words:

“The plaintiff’s claim is for:

(i) The 1st defendant as principal and against the 2nd and 3rd defendants as sureties for the sum of US$186,084 or the Naira equivalent at the autonomous rate of exchange at the time of payment being the price of three hundred and six (306) units of model No. AC1225H and two hundred and twenty-five (225) units of model AC185G room air conditioners sold and delivered by the plaintiff to the 1st defendant on the guarantee by the 2nd and 3rd defendants for payment thereof.

(ii) Interest on the said sum of US$186.084 or the Naira equivalent at the autonomous rate of exchange at the time of payment at the rate of 19% per annum from the 31st day of January, 1991 until payment.”

The parties filed and exchanged pleadings. The case was heard by Rhodes Vivour, J. Judgment was delivered on 22nd October, 1996. Judgment was given in favour of the plaintiff for the sum of US$56,415 or the Naira equivalent at the autonomous rate of exchange at the time of payment. The judgment sum was to attract interest at the rate of 19% per annum from the 16th day of May, 1991 until payment. Dissatisfied with the said judgment, the 1st and 2nd defendants before the lower court have brought this appeal. The 3rd defendant before the lower court did not appeal. In the appellants’ brief filed, the issues for determination in the appeal were formulated as follows:

“1. Whether the plaintiff was entitled to judgment against the 2nd defendant when the plaintiff did not plead or give evidence of a written guarantee signed by the 2nd defendant.

2. Whether the plaintiff was entitled to an award of interest in the absence of an express or implied contract by the 1st defendant to pay interest.
3. Whether there was any evidence which would found the liability of the 2nd defendant as guarantor.”

The plaintiff/respondent’s issues are these:

“i. Whether on the law and the evidence, the lower court was

right in giving judgment against the 2nd defendant.

ii. Whether the leaned trial Judge was right in awarding interest against the defendants having regard to the averments in the statement of claim and the evidence proffered.”

This appeal came before us for hearing on 4/2/02. It was part argued and adjourned to 5/2/02. On 5/2/02, this court suo motu raised an issue to counsel in these words:

“Court: In the course of hearing this appeal yesterday 4/2/02, this court suo motu called on appellant’s counsel who was concluding his address to address it on the impact of section 308 of the 1999 Constitution on this appeal and appeal No. CA/L/12M/97 arising from the fact that the 2nd appellant in each of the two appeals is now the Governor of Cross-River State. Are counsel ready for the address?

Both counsel having indicated a readiness to address us, we proceeded to take arguments. Mr. Duro Oluwa, of counsel for the appellants opened his address by referring to Tinubu v. I.M.B. Securities Plc. & Ors. (2001) 16NWLR (Pt. 740) 670, (2001) FWLR (Pt. 77) 1003. He said that the decision in the Tinubu case arose from an interlocutory appeal whereas in the instant case the appeal arose from a final judgment of the lower court. He stated that the proviso under section 308 of the 1999 Constitution did not protect