Samuel Etuk v Heritage Bank PLC

Areas Of Law:

Appeal, Interest, Judgment And Order, Law Of Contract, Law Of Evidence, Practice And Procedure

Summary Of Facts:

The Appellant, a legal practitioner, instituted proceedings before the High Court of Lagos State, claiming the sum of N681, 274.54, being the balance of his professional fees for services rendered to the Respondent, interest on the said sum at the rate of 21% per annum from 1^st December 2003 until the sum is paid up. At the conclusion of the hearing, the court entered judgment in part for the Appellant, that the sum due and payable to him is N100, 000.00, being fees payable for the obtaining of an order from the Federal High Court. The court in dismissing the other claims of the Appellant ordered the Defendant to pay 21% interest on the said sum and thereafter at 10% per annum until the sum is totally liquidated. Being dissatisfied with the judgment of the trial court, the Appellant appealed to this Court whilst the Respondent filed a cross appeal.

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Held

Appeal Dismissed, Cross Appeal Succeeds in Part

Issues For Deterination

Main Appeal

• Whether or not the learned trial judge was right, in law and on the facts, in holding that the Appellant was not entitled to the sum of N741, 274.62.

Cross Appeal

• Whether the award of the sum of N100, 000 plus interest at 21% per annum from 14/7/2003 till 18/9/2009 and thereafter at 10% per annum until liquidation is justified in law and on the facts having regard to the evidence and issues contested at the trial court.
  

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Rationes

GROUND OF APPEAL – DETERMINATION OF A COMPLAINT IN A GROUND OF APPEAL

“In determining the complaint in a ground of appeal, the ground and its particulars must be read together. It is only by reading them as a whole that what the appellant is complaining about can be determined. The body of the ground is not to be considered in isolation of its particulars. See Orakosim vs. Menkiti (2001) LPELR (2752) 1 at 14”.  PER U.A.OGAKWU,J.C.A

CONTRACT – DUTY OF A COURT IN CONSIDERING A CONTRACT WITH SEVERAL DOCUMENTS

“Now, it is hornbook law that where a contract involves several documents, the court can only determine the issues before it on the basis of the documents including letters relating to the contract and the conduct of the parties. See Leyland (Nig) vs. Dizengoff W. A. (1990) 2 NWLR (PT 134) 610 at 620, CBN vs. Igwillo (2007) LPELR (835) 1 at 39, Udeagu vs. Benue Cement Co. Plc (2005) LPELR (6170) 1 at 34-35 and Orakwe vs. Orakwue (2018) LPELR (44763) 1 at 22”. PER U.A.OGAKWU,J.C.A

EVALUATION OF EVIDENCE – WHAT IS EVALUATION OF EVIDENCE?

“The evaluation of evidence and ascription of probative value thereto is the primary duty of the court of trial. Evaluation of evidence is basically the assessment of facts by the trial court to ascertain which of the parties to a case before it has more preponderant evidence to sustain his claim. See Onwuka vs. Ediala (1989) 1 NWLR (PT 96) 182 at 208-209 and F. H. A. vs. Olayemi (2017) LPELR (43376) 1 at 69-70”. PER U.A.OGAKWU,J.C.A

EVALUATION OF EVIDENCE – WHEN AN APPELLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE BY A TRIAL COURT

“The settled legal position is that where a trial court unquestionably evaluates and justifiably appraises the facts, it is not the business of an appellate court to substitute its views for the view of the trial court except where the findings of facts made by the trial court do not flow from the evidence or where the findings are perverse. See Woluchem vs. Gudi (1981) 5 SC 291 at 320, Edjekpo vs. Osia (2007) LPELR (1014) 1 46-47 and Fasikun II vs. Oluronke II (1999) LPELR (1248) 1 at 47-48. The law is that the conclusion of the trial court on the facts is presumed to be correct, so that presumption must be displaced by the person seeking to upset the judgment on the facts: Balogun vs. Agboola (1974) 1 ALL NLR (PT 2) 66, Ebolor vs. Osayande (1992) LPELR (8053) 1 at 43 and Oni vs. Johnson (2015) LPELR (24545) 1 at 14. PER U.A.OGAKWU,J.C.A

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EVALUATION OF EVIDENCE – BASIS FOR THE EVALUATION OF EVIDENCE BY APPELLATE COURTS

“The evaluation of evidence and the findings of facts made by the lower court were definitely not perverse. Therefore there is absolutely no basis for an appellate court to intervene. Ineluctably, the Appellant has not been able to displace the presumption that the conclusion of the lower court on the facts are correct in order to upset the judgment. See Williams vs. Johnson (1937) 2 WACA 253”. PER U.A.OGAKWU,J.C.A

BRIEF OF ARGUMENT – WHETHER A CROSS APPEAL MUST SUCCEED UPON THE FAILURE OF AN APPELLANT TO FILE A CROSS RESPONDENT BRIEF

“However the fact that the Appellant did not file a Cross Respondents Brief does not mean that the cross appeal must   succeed; this is so because an appellate succeeds or fails on his own brief and must still establish that the judgment appealed against is wrong. See Echere vs. Ezirike (2006) LPELR (1000) 1 at 20, Cameroon Airlines vs. Otutuizu (2011) LPELR (827) 1 at 17 and Stabilini Visinoni (Nig) Ltd vs. Sanderton Ventures Ltd (2011) 8 NWLR (PT 1249) 258”. PER U.A.OGAKWU,J.C.A

AWARD OF INTEREST – INSTANCE WHERE AN APPELLATE COURT WILL INTERFERE WITH AN AWARD OF INTEREST

“In the circumstances, since the lower court failed to properly take the evidence on record into consideration in making the award, an appellate court will interfere. See Woluchem vs. Gudi (supra) Edjekpo vs. Osia (supra) and Fasikun II vs. Oluronke II (supra). PER U.A.OGAKWU,J.C.A

INTEREST – TYPES OF INTEREST

“There are two types of interest usually awarded by a court namely: pre-judgment interest otherwise known as ‘interest as of right’ and post-judgment interest otherwise known as ‘discretionary interest’, which a court is allowed by the Rules of Court to award to a successful party at the end of the trial, at a rate fixed by the Rules”.  PER U.A.OGAKWU,J.C.A

AWARD OF PRE-JUDGMENT INTEREST – REQUIREMENT FOR AN AWARD OF PRE-JUDGMENT INTEREST

“Pre-judgment interest must be claimed by a plaintiff in the writ of summons and statement of claim and evidence subsequently adduced in proof of it, failing which it will not be awarded by a court.  The award of pre-judgment interest can be made where it is contemplated in an agreement between the parties, under a mercantile custom and under the principle of equity such as breach of fiduciary relationship.  See Ekwunife vs. Wayne (WA) Ltd (1989) 5 NWLR (PT 122) 422 at 445, Idakula vs. Richards (2001) 1 NWLR (PT 693) 111 at 122, 124B-D and 124H-125A, Sani Abacha Foundation vs. Uba Plc (2010)1 NACLR 264 at 272, Berende vs. Usman (2005) 14 NWLR (PT 944) 1 and Berliet Nigeria Ltd vs. Kachalla (1999) 9 NWLR (PT 420) 478”. PER U.A.OGAKWU,J.C.A

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CLAIM FOR INTEREST – DUTY OF A CLAIMANT WHO CLAIMS INTEREST

“The law remains firmly established that a claimant who claims interest must not only claim it on the writ of summons and statement of claim, but must also plead the facts and the grounds upon which the claim for interest at the rate claimed is based.  See Azumi vs. Pan African Bank Ltd (1996) 8 NWLR (PT 467) 462 at 472 and Obanta Community Bank Ltd vs. Ajayi (2001) 33 WRN 119 at 128.  The entitlement to interest must also be established by credible evidence: Reo Enterprises vs. Nwosu (2002) 11 WRN 16 at 33 and R.C.C. (Nig) Ltd vs. R.P.C. Ltd (2005) 10 NWLR (PT 934) 615 at 640-641.” PER U.A.OGAKWU,J.C.A

AWARD OF POST-JUDGMENT INTEREST – WHEN CAN A COURT AWARD POST- JUDGMENT INTEREST?

“The power of a court to award post-judgment interest is usually exercised when the Court has pronounced its judgment in any claim. See Ebere vs. Abioye (2005) 41 WRN 1 at 45.” PER U.A.OGAKWU, J.C.A

Statute Referred To:

High Court of Lagos State (Civil Procedure) Rules 2004

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