➥ CASE SUMMARY OF:
Cappa & D’Alberto (NIG) Plc v. NDIC (2021) – SC
by Branham Chima (SAL).
Supreme Court – SC.147/2006
➥ JUDGEMENT DELIVERED ON:
Friday, January 22, 2021
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ PRELIMINARY OBJECTION NOT ARGUED IS DEEMED ABANDONED
It is on record that on the day of hearing this appeal, both the Respondent and Appellant’s Counsel were absent. Thus, the preliminary objection stands abated and unused. An issue or a preliminary objection in respect of which no argument is advanced in the brief of argument and therefore not canvassed before the Court must be deemed abandoned. See Per IGUH, JSC in ONAMADE V. A.C.B. LTD (1997) LPELR-2671(SC) (PP. 17-18, PARAS. F-A). See also LEMBOYE V. OGUNSIJI (1990) 6 NWLR (PT. 155) 210 AT 232; AJIBADE V. PEDRO (1992) 5 NWLR (PT. 241) 257; ARE V. IPAYE (1986) 3 NWLR (PT. 29) 416 AT 418. The preliminary objection is hereby discountenanced and struck out. — U.M. Abba Aji, JSC.
⦿ APPELLATE COURT WILL NOT DISTURB DAMAGES OF LOWER COURT SIMPLY BECAUSE IT WOULD HAVE AWARDED A DIFFERENT FIGURE
Although an appellate Court admittedly can disturb an award of damages if such award is excessively high or unreasonably low, it is settled that a Court of Appeal will not disturb an award of damages made by the lower Court merely because it would have come to a different figure if it had heard the case itself. See Per NNAMANI, JSC in DUYILE & ANOR V. KELLY OGUNBAYO & SONS LTD (1988) LPELR-975(SC) (P. 17, PARAS. D-G). — U.M. Abba Aji, JSC.
⦿ INTEREST WILL BE AWARDED WHERE PROVED EVEN IF NOT CLAIMED
In fact, where interest is not even claimed on the Writ, but the facts are pleaded as did the Appellant in its amended Statement of Claim and evidence was given which showed entitlement thereto, the Court may award interest as a general rule. See EKWUNIFE V. WAYNE (W/A) LTD (1989) 5 NWLR (PT.122) 428. — U.M. Abba Aji, JSC.
⦿ COURT CANNOT GRANT MORE THAN A PARTY SEEKS FOR
It is revealed by the record and the pleadings filed by the Respondent that the relief sought by the Appellant was not contested at all. Thus, parties are bound by their pleadings. It is elementary that a Court is bound by the reliefs sought. The generosity or charity of a Court of law is confined strictly to the reliefs sought to the extent that a Court of law cannot give a party what he did not claim. That is completely outside our procedural law. The rationale behind this is that a party who comes to Court knows where the shoe pinches him and therefore knows the limits of what he wants. The Court, as an unbiased umpire, cannot claim to know the reliefs better than the party. See Per Tobi, JSC, in EAGLE SUPER PACK (NIGERIA) LTD V. ACB PLC (2006) 19 NWLR (PT 1013) 20 or (2006) LPELR (980) 1 AT 40. — U.M. Abba Aji, JSC.
⦿ SUCCESSFUL PARTY IS ENTITLED TO COST EXCEPT WHERE SPECIAL REASON IS SHOWN
A successful party is entitled to costs unless there are special reasons why he should be deprived of his entitlement. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons. See Per RHODES-VIVOUR, JSC in NNPC V. CLIFCO NIG. LTD (2011) LPELR-2022(SC) (P. 23, PARAS. D-A). — U.M. Abba Aji, JSC.
⦿ TWO CIRCUMSTANCES WHERE INTEREST MAY BE AWARDED
Interest may be awarded in a case in two distinct circumstances, namely: (i) As of right: and (ii) Where there is a power conferred by statute to do so, in exercise of the Court’s discretion. Interest may be claimed as a right where it is contemplated by the agreement between the parties, or under a mercantile custom, or under a principle of equity such as breach of a fiduciary relationship. Where interest is being claimed as a matter of right, the proper practice is to claim entitlement to it on the writ and plead facts which show such an entitlement in the statement of claim. See Per NNAEMEKA-AGU, JSC in EKWUNIFE V. WAYNE WEST AFRICA LTD (1989) LPELR-1104(SC) (PP. 33-42, PARAS. C-A). — U.M. Abba Aji, JSC.
⦿ PARTY WITHHELD MONEY DUE, INTEREST WILL FLOW
It is also trite in law that when in a business transaction like the one under discourse a party is found to have withheld money due to the other party for sometime after being due, it is a natural consequence that flows from the default that interest be paid for the period of default until liquidation. I rely on ACME Builders Ltd v Kaduna State Water Board (1999} 2 SC 1 at 9. — M. Peter-Odili, JSC.
⦿ THERE MUST BE REASON FOR A JUDGEMENT
It is trite that there must be reason for every judgment. — Ejembi Eko, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba Aji, J.S.C.
⦿ FOR THE APPELLANT
Lanre Ojetunji, Esq.
⦿ FOR THE RESPONDENT
Victor Udo, Esq.
➥ CASE FACT/HISTORY
This appeal is against part of the judgment of the Court of Appeal, Lagos Division, delivered on 30/11/2000, wherein the lower Court arbitrarily reduced the rate of interest awarded the Appellant/Plaintiff in the trial Court from 25% per annum to 4% per annum from 27/3/1990, till judgment and 4% per annum thereafter until final liquidation of the judgment as opposed to the rate of 21% per annum awarded by the trial Court, without giving any reasons or stating the law under which it acted. Dissatisfied, the Appellant therefore seeks the reversal of that portion of the lower Court’s judgment relating to interest and restore the judgment of the trial Court in respect of same.
➥ ISSUE(S) & RESOLUTION(S)
Whether by the facts and circumstances in the instant appeal, the lower Court exercised its discretion judiciously in reducing the interest rate awarded by the trial Court from 25% to 4%?
RULING: IN APPELLANT’S FAVOUR.
A. LOWER COURT OUGHT NOT TO REDUCE THE PERCENTAGE AWARDED BY THE TRIAL COURT
“The lower Court having reduced the interest rate from 25% awarded by the trial Court to 4% is on the same page with the trial Court. If the trial Court was wrong or perverse in its assessment or ascertainment of the facts and circumstances of the case at hand, which was the exclusive preserve of the trial Court, the appellate Court notwithstanding, has the power to re-assess and reevaluate the facts and circumstances and to arrive at the correct assessment and evaluation. Otherwise, the appellate Court cannot take over and usurp the primary function of the trial Court to handle primary facts. In essence or the point I am trying to drive home is that if the lower Court disagreed with the trial Court on the award of interest, it was to completely disregard it as having not been proved, and not to reduce same to 4% without stating and proffering superior reasons why it did so. No Court exists in isolation, and the rule of precedence and 10 independence must be observed unless where there is perversity and injustice … Thus, it does not lie before the lower Court to deny him his entitlement without proper reasons either based on lack of the right or the statute to support it.”
“This issue is therefore resolved in favour of the Appellant and the appeal hereby succeeds. The judgment of the lower Court dated 30/11/2000 is set aside. Parties are to bear their costs.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)