➥ CASE SUMMARY OF:
Unity Bank Plc v. Denclag Limited & Anor. (SC.185/2004, Friday the 30th day of March 2012)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Post-judgement interest;
Signature on court process.
➥ CASE FACT/HISTORY
This appeal is against the judgment of the court of Appeal, Jos Division delivered on the 13th day of April, 2004 in a leading judgment delivered by Amiru Sanusi JCA, the appeal was dismissed except for the amendment of the award of 616,019.36 pounds with an option to pay a sum of N80,082,516 being the Naira equivalent as claimed.
Being dissatisfied with the judgment aforesaid, the defendant herein Appellant appealed to the Supreme Court on eleven grounds.
➥ ISSUE(S)
I. Whether or not the court of trial was correct to have awarded 10% interest on the judgment six months and 5 days after delivering judgment precisely on the 26th May 1999?
II. Whether a Notice of Appeal filed as in this matter must be signed by the appellant himself or by a legal practitioner on his behalf?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[POST-JUDGEMENT INTEREST CAN BE AWARDED
‘For guide, it is necessary to refer to some judgments of this apex court where even the provisions of order 40 Rule 7 in Bauchi State just as in the case at hand were interpreted with clarity. I first refer to Berliet (Nig.) Ltd v Kachalla (1995) 9 NWLR (Pt. 420) 478 this court held that a court cannot be said to be functus officio when it grants an application for post judgment interest after the delivery of its judgment as the effect is that the rule of court places on the judgment debtor a statutory duty to pay interest at the rate of 10% from the date of judgment.
In a situation on all fours with the present, Onu JSC in Himma Merchant Ltd v Aliyu (1994) 5 NWLR (Pt. 347) 667 at 679 stated as follows:
“Order 40 Rule 7 of the Bauchi State High Court (Civil Procedure) Rules deals with interest on outstanding judgment debt. It has nothing to do with a claim of interest as a right either under a contract, a mercantile custom or a principle of equity. It is a statutory authority for a court to award interest at 10% per annum on outstanding judgment debt and for the interest to apply or commence from the date of judgment.”
Belgore JSC had even said in Berliet Nig. Ltd v Kachalla (supra) at 495 – 496, thus:
“In matter of claim for debt, it is presumed that interest will be paid and once application is made for this, even after the judgment has been delivered to award interest is omitted in the judgment.”The appellant’s counsel had particularly taken exception to the award because of the passage of over 5 months but he seems to have over sighted the fact that the only time frame in the Order 40 Rule 7 is after judgment and nothing else. Therefore interpreting that Rule as provided is that there is no limit to time at which it can be said the application for the interest has been over taken by effluxion of time. In the English case of Wilson v Carter (1893) AC 638 at 39 – 640 it was held that where an error arising from an accidental omission was corrected after the lapse of forty years by the court, there was no impropriety thereby.
The conclusion from the above is that the trial court was well empowered to make the award which it is, the passage of time notwithstanding. ’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THE NOTICE OF APPEAL IS DEFECTIVE HAVING NOT BEEN SIGNED BY A LEGAL PRACTITIONER
‘It is upon this requirement that the said Notice of Appeal dated 23/10/1998 and filed in this matter and. purportedly signed by “Ibrahim Hamman and Co” not being a registered practitioner under the law i.e. Legal Practitioners Act being incurably defective is in competent and consequently there is no valid appeal to sustain the instant appeal. The lower court without any equivocation has reached the conclusion as the law stands today that is, the said notice of appeal of 23/10/1998 being incurably defective is incompetent and liable to be struck out.’
‘Applying to this appeal the law as it stands today that is, as decided and expounded in Okafor v. Nweke (supra) which is binding on this court as the facts and circumstances on the point in issue here and those in Okafor v. Nweke are similar that is to say, for failing to sign the notice of appeal as in this matter in the manner prescribed by the Legal Practitioners Act which necessarily has to be construed in strict application of the provisions of Section 2(1) and 24 of the Legal Practioners Act as decided in Okafor v. Nweke (supra). In this regard what has happened here is completely at variance with the requirement as decided in Okafor v. Nweke (supra) and cannot be discountenance in any circumstances upon the bindingness of the cited case.’]
.
.
.
✓ DECISION:
‘Clearly this appeal is lacking in merit and therefore dismissed.
I award the sum of N50,000.00 to the respondents to be paid by the appellant.’
➥ FURTHER DICTA:
⦿ A COURT IS NOT FUNCTUS OFFICIO TO GRANT POST-JUDGEMENT INTEREST
For guide, it is necessary to refer to some judgments of this apex court where even the provisions of order 40 Rule 7 in Bauchi State just as in the case at hand were interpreted with clarity. I first refer to Berliet (Nig.) Ltd v Kachalla (1995) 9 NWLR (Pt. 420) 478 this court held that a court cannot be said to be functus officio when it grants an application for post judgment interest after the delivery of its judgment as the effect is that the rule of court places on the judgment debtor a statutory duty to pay interest at the rate of 10% from the date of judgment.
In a situation on all fours with the present, Onu JSC in Himma Merchant Ltd v Aliyu (1994) 5 NWLR (Pt. 347) 667 at 679 stated as follows: “Order 40 Rule 7 of the Bauchi State High Court (Civil Procedure) Rules deals with interest on outstanding judgment debt. It has nothing to do with a claim of interest as a right either under a contract, a mercantile custom or a principle of equity. It is a statutory authority for a court to award interest at 10% per annum on outstanding judgment debt and for the interest to apply or commence from the date of judgment.”
Belgore JSC had even said in Berliet Nig. Ltd v Kachalla (supra) at 495 – 496, thus: “In matter of claim for debt, it is presumed that interest will be paid and once application is made for this, even after the judgment has been delivered to award interest is omitted in the judgment.” — M. U. Peter-Odili JSC.
⦿ POST-JUDGEMENT INTEREST IS ENTIRELY AT THE DISCRETION OF THE JUDGE
Post judgment interest is granted entirely at the discretion of the judge. So where it was not given on the date judgment was delivered all that the judgment creditor needs to do is to file an application with an affidavit explaining in detail the reasons for the delay. The length of the delay, be it years are irrelevant if and only if the judge is satisfied with the explanation for the delay. There is no limit to the time such an application can be brought. The court at first instance was correct to award interest on the judgment sum six months after judgment was delivered. — B. Rhodes-Vivour JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Mary Ukaego Peter-Odili, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
G. O. Ofodile Okafor SAN.
⦿ FOR THE RESPONDENT(S)
Dr. J. O. Olatoke.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
