Assad Sabbagh & Naman Sabbagh (Trading As Sabbagh Bros.) v. Bank Of West Africa Ltd. (1966) – SC

⦿ CASE SUMMARY OF:

Assad Sabbagh & Naman Sabbagh (Trading As Sabbagh Bros.) v. Bank Of West Africa Ltd. (1966) – SC

by PipAr Chima

⦿ COURT:

Supreme Court

⦿ AREA(S) OF LAW

Interest.
Judgement debt.

⦿ NOTABLE DICTA

*

⦿ PARTIES

PLAINTIFF
Assad Sabbagh & Naman Sabbagh (Trading As Sabbagh Bros.)

v.

DEFENDANT
Bank Of West Africa Ltd

⦿ LEAD JUDGEMENT DELIVERED BY:

Bairamian, J.S.C

⦿ APPEARANCES

* FOR THE APPELLANT

* FOR THE RESPONDENT

⦿ CASE HISTORY

In the Lagos High Court Suit No. 301/62 the Bank obtained judgment for (a) £3,932-11s-3d as the sum due on the defendants’ overdraft account (b) interest at 10 per cent from 30th May, 1962 to 26th March, 1963 (the date of the judgment) and (c) interest at 5 per cent from 27th March, 1963 until the judgment debt is satisfied. In their appeal the defendants objected to Items (a) and (c) only: on (a) they submit that certain transfers from their account were made by the Bank without authority, and on (c) that interest could not have been allowed in law.

⦿ ISSUE(S) & RESOLUTION

[APPEAL: DISALLOWED]

i. Assuming for the moment that a judgment debt which is payable forthwith carries interest, we are inclined to think that it would be wrong to deprive the judgment creditor of interest merely on the ground that there was no local rule similar to the above English rule: the maxim ubi jus ibi re medium might be invoked to entertain an application for interest. But in a Lagos case that point does not arise, for section 12 of the High Court of Lagos Act provides that- “12. The jurisdiction vested in the High Court shall, so far as practice and procedure are concerned, be exercised in the manner provided by this or any other Ordinance, or by such rules and orders of court as may be made pursuant to this or any other Ordinance, and in the absence of any such provisions in substantial conformity with the practice and procedure for the time being of Her Majesty’s High Court of Justice in England.”
Thus the absence of a local rule does not matter, and the question of substance is whether the Judgments Act, 1838 applies as being a statute of general application in accordance with section 45 of our Interpretation Act (cap. 89 in the 1958 Laws of the Federation of Nigeria and Lagos) which provides in subsections (1) and (2) as follows:- “45.(1) Subject to the provisions of this section and except in so far as other provision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day of January, 1900, shall be in force in Lagos and, in so far as they relate to any matter within the exclusive legislative competence of the Federal Legislature, shall be in force elsewhere in the Federation. (2) Such Imperial laws shall be in force so far only as the limits of the local jurisdiction and local circumstances shall permit and subject to any Federal law.”

ii. We do not think that there is a truly analogous situation in the case of the Sheriffs and Civil Process Ordinance (as entitled in cap. 189 of the 1958 Laws of the Federation etc.). This Ordinance or Act does not relate to the judgments which the courts have power to give or to interest as an incident in law on a judgment debt: the Ordinance is concerned with the recovery of the money payable under the judgment and provides modes of execution and enforcement of judgments, and we cannot see why the silence of the Ordinance on interest should affect the judgment creditor’s right to interest by virtue of section 17 of the Judgments Act, 1838.

iii. The English rule 16 in Order 42 provides machinery for recovery by execution of what in law is due and payable under the judgment, and some such machinery ought to have been provided in the local legislation on execution; but we cannot agree that the omission to provide this machinery can have the effect of depriving the judgment creditor of a right he has in law as the fruit of his judgment: we cannot agree that such an omission can have the effect of absolving the judgment debtor from paying interest which, in the words of the Court of Appeal, is “a debt due from him.” It having been conceded by Mr Lardner that the Judgments Act, 1838 applies, nothing in the local legislation has been referred to for not applying section 17 to a judgment debt that is payable forthwith; but the High Court could not have ordered interest at five per cent, and the judgment under appeal will be varied to make it four per cent.

⦿ ENDING NOTE BY LEAD JUSTICE – Per Bairamian JSC

The Court orders as follows:- The decision of 26th March, 1963 given by the High Court of Lagos in Suit No. 301/62 shall be varied to read “interest at four per cent per annum from 27th March, 1963 until the judgment debt is satisfied,” but otherwise shall stand; and the defendants shall also pay thirty-three guineas as costs of appeal.

⦿ REFERENCED (STATUTE)

section 45 of our Interpretation Act;
section 12 of the High Court of Lagos Act;

⦿ REFERENCED (CASE)

In the case of In re Claget: ex parte Lewis (Weekly Notes for May 5, 1888, p.100) the Court of Appeal said as follows: “The effect of section 17 was to impose on a judgment debtor a statutory duty to pay interest on the judgment debt, and the interest became a debt due from him. It could be recovered by execution on the judgment, but it could also be recovered by any other legal process. The interest was a debt necessarily attached to the judgment debt” etc.

⦿ REFERENCED (OTHERS)