Petgas Resources LTD. V. Louis N. Mbanefo (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON WEST, J.C.A. (Delivering the Leading Judgment)

The Plaintiff sued the Defendant in the High Court of Lagos State by a Writ of Summons and Statement of Claim filed on May 28th, 1999 wherein it claimed against the defendant mesne profit of one million five hundred thousand naira (N1,500,000:00k) with interest of 21% per annum for the period between October 13th, 1995 and July 28th, 1998 which was calculated as; two million, nine hundred thousand, two hundred naira (N2,900,200.00k).

The plaintiff also filed an application with the same prayers in the writ of summons and statement of claim by a summons on notice brought pursuant to Order 11 rules 1 and 2 of the High Court of Lagos State (Civil procedure) Rules 1994 on August 23rd, 1999. The defendant filed an affidavit showing cause and subsequently filed an amended statement of defence.

Trial commenced on December 15th, 1999 and the learned trial Judge entered final judgment summarily on the strength of the summons on notice, affidavit and exhibits M1-M9. In his Judgment Rhodes Vivour, J. of the High Court of Lagos State as he then was held:

“Accordingly, judgment is entered for the plaintiff against the defendant in the sum of N1,375,000.00k plus interest at 21% from 13/10/95 until judgment and thereafter at 5% until the judgment is paid.”

The Defendant being dissatisfied with the judgment of the High Court filed an appeal against the judgment of the trial Court. In its notice of appeal the appellant canvassed two grounds of appeal;

(a) That the defendant/appellant ought to have been allowed to defend the action on the merit in view of the genuine conflict in the affidavits of the parties before the court.

(b) That there was no evidence before the court to sustain the interest awarded by the court on the sum claim at the rate of 21% per annum from 30th October, 1995 to the date of the judgment being 23rd December, 1999.

Notwithstanding the first ground of appeal canvassed by the appellant, only one issue was raised in its brief of argument filed on July 1st 2002;

“Whether the learned trial Judge was right to award interest on the sum claimed by the plaintiff at the rate of 21% per annum from 30th October, 1995 till the date of judgment being 23rd December 1999.”

I therefore affirm the submission of learned counsel for the respondent in paragraph 3.2 of his brief of argument, that the appellant has abandoned its first Ground of Appeal.

The respondent in his brief of argument filed on 11/11/02 did not raise any issue for determination. The single issue for determination in the present appeal is raised in paragraph 4 of the appellant’s brief.

In the very comprehensive judgment of the learned judgment of the trial court, two kinds of interest was awarded; pre-judgment and post judgment interest. A pre-judgment interest of 21% per annum on the amount claimed being one million five hundred thousand naira (N1,500,000.00k) and a post judgment interest of 5% per annum of the judgment debt.

In this appeal the post-judgment interest awarded by the learned trial judge is not challenged by the appellant. I refer to paragraph 5.10 of the appellant’s brief of argument where the appellant confirmed that the post-judgment interest awarded is pursuant to Order 38 Rule 7 of the High Court of Lagos of Lagos (Civil Procedure) Rules 1994.