Guardian Law ReportIn The Court Of AppealLagos Judicial DivisionHolden At LagosOn Monday The 30th Day April, 2012Before Their Lordships: -Kumai Bayang AkaahsJustice, Court OfappealJohn Inyang OjoroJustice, Court Of AppealRita Nosakhare PemuJustice, Court Of AppealBetween:Skymit Motors Limited ' AppellantAnd United Bank For Africa ' RespondentI AGREE that where a case has been brought to court on commercial matters as in this case, and where in ordinarily commercial practice money would, on the facts have been paid sometime ago, it ought to carry interest. It was held further that a judgment for return of money is usually accompanied by an award of interest for the period for which it is claimed. So held the Court of Appeal, holden at Lagos in a unanimous leading judgment by his Lordship John Inyang (JCA) with his learned brothers Kumai Bayang Akaahs and Rita Nosakhare Pemu (JJCA) concurring while upholding the appellant's appeal. The parties were represented by P.K. Nwachukwu Esq with D.Thomas (Miss) for the appellant and M.E. Esonanjor Esq with P.O Ndukwu Esq for the respondent.The facts are as contained in the body of the judgment.This is an appeal against the decision of the State High Court on 25th May, 2009, wherein the court below refused the prayers of the Appellant for both pre and post judgment interest on the sums admitted by the Respondent during the pre-trial conference on 7th December, 2006.The facts of this case, as can be gleaned from the Record of Appeal are that the Appellant, as Claimant at the court below commenced this action by way of writ of summons and statement of claim, which claimed against the Respondent as follows:'1. A declaration that the arbitrary, unilateral and/or unlawful variation and/or imposition of rates of interest contrary to the agreed rate of interest is null and void of no effect.2. A declaration that the arbitrary, unilateral and/or unlawfulvariation and/or imposition of excess charges on commission onturnover and VAT is null and void and of no effect.3. A declaration that the arbitrary, unilateral and/or unlawfulvariation and/or imposition of charges excess charges ofcommitment management, consultancy and/or arrangement feescontrary to the agreed terms of contract is illegal, null and voidand of no effect'.In response to the Appellant's Statement of Claim, the Respondent filed a Statement of Defence denying the Appellant's claims. At the close of pleadings, the matter proceeded for pre-trial conference. On 7th December, 2006, during the pre-trial conference, the Respondent through its representative admitted that there was excess charge in the sum of N7,209,906.55k (Seven million, two hundred and nine thousand, nine hundred and six naira, fifty-five kobo). The pre-trial Judge entered judgment in favour of the Appellant in the above admitted sum.On 28th April, 2008, the Appellant filed an application via a Motion on Notice praying the court for the following orders:'1. An order awarding interest to the Claimant at the rate of 21 per cent per annum from the 18th day of June, 2003 up tilland including the current date and until the said interestis finally liquidated by the Defendant in respect of the judgment of the Court delivered on 7th December, 2006 inthe sum of N7,209,906,55 (Seven million, two hundred and nine thousand, nine hundred and six naira).2. Any further or other orders as the court may deem fit tomake'.The Respondent filed a 10-paragraph counter affidavit in opposition to the Appellant's motion. On the 25th May 2009 the learned pre-trial Judge delivered his ruling refusing to grant the prayers of the Appellant.Dissatisfied with the ruling of the learned pre-trial Judge, the Appellant filed Notice of Appeal on 10th August 2009 containing four grounds of Appeal, out of which the Appellant has distilled four issues for determination.In the brief filed by Mathew Esonanjor. Esq. on behalf of the Respondent, only one issue is formulated for the determination of his appeal.At the hearing of this appeal on 7th February 2012, the learned counsel for the Respondent drew the attention of the court to Notice of Preliminary Objection filed by the Respondent on 11th July, 2010.In his argument, the learned counsel for the Respondent submitted that the decision of the High Court State delivered by the pre-trial conference Judge on 25th May, 2007 and now appeal against is an interlocutory decision.In his reply brief on 25th May, 2011, the learned counsel for the Appellant submitted that the premises upon which the Respondent raised its objection is frivolous and baseless in the sense that the 1999 Constitution of Nigeria (as amended in Sections 241(1)(b) gives the Appellant right of appeal.It has been held in plethora of authorities both in this court and the Supreme Court that the test for the determination of the question whether a decision or ruling of the court is final or interlocutory is whether the interlocutory decision finally dispose the right of the parties.The Motion on Notice prayed the court to award interest, which the court refused to accede to. I am of the view that the Ruling of the court in respect of the Motion on Notice was final as there is nothing left for the court to decide thereafter. The right of the parties as far as that motion is concerned has been fully determined by that court in respect of the sum of N7,209, 906.55k (Seven million, two hundred and nine thousand, nine hundred and six naira, fifty-five kobo) admitted by the Respondent and entered by the court. It was a final judgment and the Appellant did not require any leave of court before filing its Notice of Appeal.In the final analysis, I hold that this Preliminary Objection lacks merit and is hereby refused and dismissed.Having overruled the Preliminary Objection, the coast is now clear for the issues submitted by the parties for the determination of this appeal. The Appellant has formulated four issues for determination while the Respondent distilled one issue only. The four issues formulated by the Appellant shall be taken together as they are interrelated, which is also in line with the Respondent lone issue.He submits further that this duty can be performed at the time of making the judgment or order or at any time, afterwards. That since the Appellant had claimed interest in his statement of Claim, it was wrong for the learned trial Judge to refuse to award interest on the Judgment sum. He relies on the cases of Nigeria Railway Corporation v. J.E. Emehara & Sons Co. Ltd. (1994) 2 N.W.L.R. (pt.325) 206.In his reply, the learned counsel for the Respondent who did not cite even one authority in support of his argument of his lone issue, however that the pre-trial Judge was evidently entitled to dismiss the Appellant's application of 28th April, 2008 as there is uncontroverted affidavit evidence that the Judgment had been satisfied prior to the Appellant' application of 28th April, 2008.The main reason for this appeal is the refusal of the learned pre-trial conference Judge to grant the prayers in the Appellant's motion of 28th April, 2008 wherein the Appellant prayed the court below to award interest on the Judgment sum admitted and ordered.The above rule of court empowers the trial judge to award interest on the Judgment sum at the time of entering the Judgment or at any time afterwards. The facts that post Judgment interest provided for in the Rules of Court, it was wrong for the court below to hold that the Appellant did not ask the court to award interest at the time the Judgment was entered and that the court does not give what was not asked for. This is much more so when the Appellant as Claimant had clearly asked for both pre and post Judgment interests in its Statement of Claim.On issues two and three, which I intend to take together, I wish to state clearly that it is not in every case that evidence has to be adduced in respect of interest claimed before interest can be awarded. I agree that where a case has been brought to court on commercial matters as in this case, and where in ordinary commercial practice money would, on the facts, have been paid sometime ago, it ought to carry interest. It was held further that a Judgment for the return of money is usually accompanied by an award of interest for the period for which it is claimed and that in appropriate case, where interest is awarded, though not claimed in the Writ, it is in the nature of a consequential order.In the instant case, the Appellant, not only claimed interest in its Statement of Claim but also averred in paragraph 6 of its Affidavit in Support of Motion on Notice of 28th April, 2008 that the Respondent claimed interest at the rate of between 21 per cent and 36 per cent per annum on the facility made available to it.The sum total of all I have endeavoured to say is that this appeal has merit and is hereby allowed in part. The Ruling of the learned pre-trial conference Judge Judgment made on 25th May, 2009 is hereby set aside. In line with Order 35 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004 and as empowered by Section 15 of the court of Appeal Act 2004, I hereby Order that the Respondent shall pay post Judgment interest on the Judgment sum of N7,209,906.55k (Seven million, two hundred and nine thousand, nine hundred and six naira, fifty-five kobo) at the rate of 10 per cent per annum with effect from 25th May, 2009 when Judgment sum entered. The Appellant is entitled to costs and is assessed at N50.000.00 against the Respondent.
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