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In The Supreme Court of Nigeria

On Friday, the 8th day of December 1989

SC 200/1986

 

Before Their Lordships

 

 

Andrews   Otutu Obaseki

......

Justice, Supreme Court

Muhammadu Lawal Uwais

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

 

 

Between

 

Reuben N. A. Ekwunife

(Trading under the name and style of Gonglobe Associates and Company)

......

Appellant

 

And

 

Wayne (West Africa) Limited

.......

Respondent

 

Judgement of the Court

Delivered by

Philip Nnaemeka-Agu . J.S.C.

This is an appeal by the plaintiff against the reversal by the court of appeal Kaduna Division of the judgement given in favour by L.D. Abdullahi, J., in a Jos high court. The claim before the court is as follows:

 

The defendant by Local Purchase Order No. 17142 and 17143 all dated 31st October, 1977 and by letter Reference No WJ/ ADM 069/7/78 awarded the work of laying of underground cables for its petrol pumping stations in the following towns Mangu (5 pumps) Barkin Ladi (5 pumps) Nassarawa, (5 pumps) Bassa (5 pumps) Pankshin (5 pumps)Wase and Kanam (5 pump)

 

The plaintiff in accordance with the Local Purchase order and the letter Reference No. WAJ/ADM 069/7/78 did carryout the projects in the specified areas and make a demand for payment of work done which the defendant refused, or neglected to pay.

 

Wherefore the plaintiff claims from the defendant the sum G of N16,000 (sixteen thousand Naira) as payment for the work done

.

The said two Local Purchase Orders (to be henceforth called L.P.Os) run as follows:

 

Supplier’s copy

Wayne (West Africa) Ltd

Subsidiary of Dresses Industries Inc.

Agents for Tecalemit & C.L.Equipment.

7354, 45950

38-40 Burma Road, P.O. Box 103, Apapa

Branches.

 

Enugu Tel: 3503

Ibadan Tel: 23639

Kano Tel: 4419

Jos Tel: 2541

P.H. Tel: 8276

Benin Tel: 21

 

Local Purchase Order

NO. 17442

 

Conglobe Associates & Co.,

E.5 Abdul Salami Street

Jos.

 3/10/1977

 

Please Supply/Repair the following

 

 

 

Item No.

Description

Amount

 

Carryout flame proof Electrification

 

 

At M.O. Trade Yards in the following

 

 

Area to Wayne pumps-

 

1

Bassa-5 pumps

 

2

Pankshin- 5 pumps

 

3

Langtan – 5 pumps

 

4

Wase and Kanam- 10 pumps

 

 

Wayne will supply Cables and glands

 

 

Gear

10,000

 

Switches by you

10,000

 

Subject To …………………… % Discount

 

The duplicate copy of this purchase order must be attached to your invoice. The Company cannot accept responsibility for delays in payment arising from non-compliance with this condition.

 

Ten Thousand Naira Only.

(Sgd.)????????????

Approved Signature

 

Conditions on Reverse Side

 

 

Supplier’s copy

Wayne (West Africa) Ltd

Subsidiary of Dresses Industries Inc.

Agents for Tecalemit & C.L.Equipment.

7354, 45950

38-40 Burma Road, P.O. Box 103, Apapa

Branches.

 

Enugu Tel: 3503

Ibadan Tel: 23639

Kano Tel: 4419

Jos Tel: 2541

P.H. Tel: 8276

Benin Tel: 21

 

Local Purchase Order

No. 17443

Conglobe Associates & Co

 

 

E.5 Abdul Salami Street

 

31/10/1977

Jos.

 

Account Code…………………..

 

Please supply/repair the following:

 

 

Item No.

Description

Amount

 

Carry out flame proof Electrification At M. O. Trades Yard in the following Area

(1) Mangu 5 pumps

(2) Baraki Ladi 5 pumps

(3) Nassarawa 5 pumps

Wayne will supply cables and glands. Gear switches to be supplied by you

6,000.00

 

 

 

Subject To

……………

%  Discount 6,000.00

 

The duplicate copy of this Purchase Order must be attached to your invoice. The company cannot accept responsibility for delays in payment arising from non-compliance with this condition.

Six thousand Naira only.

 

Conditions on Reverse Side

 

It is to be observed that each L.P.O. referred to the conditions on the reverse side. But because of the materiality and bearing of these conditions to the result of this case, I shall set them out at a more appropriate time.

 

The suit was initially commenced under "Undefended List" but, on the application of the defendant, pleadings were ordered, filed and duly exchanged. I shall set out only portions of the pleadings, which I consider relevant to the issues that have arisen for determination in this appeal, later in this judgment.

 

I should mention, too, that after the contract was awarded on the 31st of October, 1977, without any limitation as to time of completion, the defendant, by a letter dated 1st February, 1978, (Exh. 2) unilaterally gave to the plaintiff two weeks to complete the work and imposed a penalty of N5 .00 for any day the plaintiff failed to complete work. It is, however, noted, as pointed out by the Court of Appeal, rightly in my view, that the parties did not rely on Exh. 2, even though the two bills of completion for total sum of N16,00.00 submitted by the plaintiff which were tendered as Exh. 3 and 3A. were dated 1/3/78 and 11/3/78.1 may observe also that the Manager of the defendant company duly signed the bills as submitted.

 

After pleadings, the parties made some futile attempts at settlement out of court. During the negotiations the defendant made an offer - "without prejudice" - to pay N9,000 in full and final settlement of the claim. But as the negotiations broke down, the case went to trial. Plaintiff testified on his own behalf and one Peter Adenola who took over from the signatory of Exh. I. lA. 3 and 3A. testified on behalf of the defendant. In his judgment the learned trial Judge made the following findings, inter alia:

 

(i)    That the contract between the parties was one in writing, contained in Exhs. 1 and lA. which must be relied upon exclusivelv for ascertainment of the terms of the contract;

 

(ii)    That the contract was a divisible contract, which the plaintiff had substantially performed and so was entitled to payment, subject to any counter-claim by the defendant for any defects or omissions towards the diminution of the contract price;

 

(iii)   That as there was no counter-claim the plaintiff had proved his case beyond a balance of probability and so was entitled to payment.

 

He therefore entered judgment to the plaintiff on his claim for N 16,000.00 with interest at 10% with effect from 1st March 1978.

 

The defendant appealed to the Court of Appeal. Jos Division. In the lead judgment of Karibi-Whyte, J.C.A. (as he then was) to which Wali. J.C.A. (as he then was) and Maidama J.C.A. concurred, he reversed some of the findings and then the judgment of the leaned trial Judge. The court held as follows:

 

(i)    That the contract between the parties was on the basis of the L.P.Os Exhs. 1 and 1A and that these and no more were the contract documents;

 

(ii)    That the contract was not a divisible one so that the plaintiff ought to have completed performing his own side of the bargain before demanding payment:

 

(iii)    That on plaintiffs admission the contract was for electrification not for laying cables:

 

(iv)    That uncontradicted evidence of D.W. 1 shows that even the amount of job done was poorly executed:

 

(v)    That as on his own admission he did not complete electrification he did not substantially perform and so was not entitled to payment; and

 

(vi)    That the learned trial Judge had no jurisdiction to have awarded interest to the plaintiff from a date ante-dating the judgment

 

The plaintiff (hereinafter called the appellant) has appealed to this court upon four grounds of appeal. Counsel on both sides formulated the issues for determination similarly

 

They are:

 

Issues Presented

 

The questions or issues for determination in this appeal are:

 

(1)    Whether the Honourable Court of Appeal was right in the interpretation placed on Exhibit I & 1A to include the supply of Electricity or whether "Flame proof electrification" includes supply of electricity by the contractor.

 

(2)    If the answer to questions in the affirmative then the further question is whether an employer can make a contractor to contract to perform what amounts to illegality and what is the effect of that aspect of the contract that is tainted with illegality.

 

(3)    Whether a party can rely on the illegal aspect of the contract to avoid liability more especially where he has derived some benefits therefrom.

 

(4)    Whether a Court can order interest to be paid on a judgment debt from a date before the date of the judgment.

 

Each counsel has also addressed us orally. The defendant shall hereinafter be referred to as the respondent. I shall now proceed to consider these issues in the light of the written and oral submissions made on them.

 

Now the issue of illegality of the contract is being raised in this court for the first time. It derives from the controversy over the precise scope and intendment of the contract between the parties as evidenced by Exhs. "1" and "lA" The appellant's reasoning is this: If the expression 'flame proof electrification" includes the requirement that the appellant must supply electricity, even though the evidence shows that there were not yet electricity supplies at the different locations of the contract - at Bassa, Pankshin, Langtang, Wase, Mangu, Barakin Ladi and Nassarawa - then the contract is illegal. This is because it is in breach of section 1(i)(a) and 7(2) of the National Electric Power Authority Act No.24 of 1972 which gave monopoly to generate, transmit, transform, distribute, sell, and supply electricity to the National Electric Power Authority. It was contended, therefore, that to construe the contract, as the court below did, to include supply of electricity was wrong. In any case, the respondent cannot use its own wrong, i.e., illegality, to avoid liability. The cases of Chief Harold Sodipo V. Lemminkainen OY (1986) 1 N.W.L.R. (Pt.15) 222; and Ayo Solanke V. Abed & 2 Ors. (1962) N.N.L.R. 92 at 94 were cited in support.

 

In his reply. the learned counsel for the respondent submitted that the contract contained in Exhs. "1" and "1 A" was not illegal. This is because the statute envisages that the National Electric Power Authority (hereinafter called N.E.P.A.) could license persons to assist it in executing its statutory functions. Furthermore, he submitted that as the contract, as modified did not contravene the statutory functions of N.E.P.A., it is therefore not ex facie illegal. Illegality ought, therefore, to have been raised on the pleadings, but was not. So it ought not be considered at all.

 

It is necessary to begin by restating the position of this court with respect to questions of illegality as a vitiating element in contracts. It is that when a contract is ex facie illegal, whether such an illegality has been pleaded or not, the court will not close its eyes against it. For it takes the view that it G is the duty of every court to refuse to lend its stamp of authority on any illegal transaction. See on this Sodipo V. Lemminkainen OY(supra) at pp.232-235. Where, on the other hand, the contract is not ex facie illegal and the question of illegality depends on a number of facts - probabilities, or possibilities, or contingencies - to be hammered out by evidence and forensic logic, the general rule is that the illegality must be raised on the pleadings. See Okagbue & H Ors. V. Romaine (1982) 5 S.C. 133 at p.156. See also - George & Ors. V. Dominion Flour Mills (1963)1 All N.L.R. 71, at p.74.1 see nothing in the contract evidenced by Exhs. 1 and lA to suggest that it, exfacie, intends any invasion of any statutory functions reserved for N.E.P.A. I must also take notice of the common practice whereby electrical contractors apply to N.E.P.A. for connection and supply of electricity after wiring their premises or other structures requiring electricity. So, as the contract is not ex facie illegal and the circumstances upon which the alleged illegality depends have not been pleaded and, indeed, the appellants and respondents have advanced widely divergent views on the point, it is imperative that I should not decide this case on the appellants' conjecture of the supposed illegality.

 

A lot of argument went into the actual scope of the contract - whether, as the appellant contends, it was just for laying of underground cables for the petrol pumping stations, or, as the respondent argues, for laying of cables and electrification. It is necessary to examine the facts. In paragraphs 3 and 9 of the statement of claim, the appellant pleaded as follows:

 

3.     The defendant by its local purchase order No.17442 and 17443 both dated 11/10177 awarded the work of laying of the underground cable for its petrol pumping stations in the following towns Mangu (5 pumps) Barkin Ladi (5 pumps) Nassarawa (5 pumps) Basa (5 pumps) Pankshin (5 pumps) Wase and Kanam (5 pumps) each. The plaintiff is also to supply Gear switches all at a cost of N16,000 (sixteen thousand naira). The plaintiff will rely on the L.P.O. at the trial.

 

9.     That plaintiff was not given the contract of electrification but that of laying of the cable only. A different contractor was awarded the contract for electrification.

 

This was also the claim on the writ of summons. Clearly these put it across from the beginning that the contract awarded to him was for the laying of underground cables - for the petrol pumping stations. In answer to this the respondent pleaded in paragraph 2 of its statement of defence that:

 

Contract was awarded to the plaintiff for laying and electrification of underground cables.

 

The issue that emerged from this state of the pleadings is clear: was the contract for only the laying of underground cables or was it for laying and electrification of the cables.

 

I should pause here to observe that neither of these contentions is precisely in terms of Exhs. "1" and "lA" which describe the contract as being for:

 

Carrying out flame proof electrification.

 

As I see it if either case, as pleaded, was established, it appears to me to follow that there has been a variation or modification of the contract as described in Exhs. "1" and "lA." For, it is clear that the purpose of pleading in a statement of claim is to give to the defendant notice of the ground of claim, so as - in keeping with the audi alteram patem rule - prevent surprise and enable him prepare his defence. Pleading has long ceased to be technical in form: facts are only required to be stated in a summary and concise manner in order to reflect a party's case. See - Philipps V. Philipps (1878) 4 Q.B.D.127 at p.132. And only material facts need be pleaded. Even so, the courts are concerned with the legal result of the pleaded facts: Lever Brothers V. Bell (1931) 1 K.B 357. It is pretty clear that "electrification" as in the contract documents cannot without more simply mean either laying of underground cables or laying of cables and electrification. This point is of material significance because the court below, relying on the case of Crusader insurance Co. Ltd. V. Anunike (1975)3 S.C. 71, at pp.79 and 81 held that no 'variation in the contract was pleaded and so evidence of the appellant on non-availability of electricity affecting performance and agreement only to lay the cable went to no issue. It appears to me that putting paragraph 3 of the statement of claim against Exhs. "1" and "1A" a plea of variation is implicit from the pleading.

 

As for which of the cases on the variation of agreement, appellant's or respondent’s. was established by evidence, I should refer to the evidence adduced. Appellant himself testified in chief as follows:

 

The contract was to lay covers (sic) from the house to the pump island - five pumps at each station

 

Later he continued:

 

I was asked to lay cables from the bay to the pump island underground and when plaintiffs (sic) were ready they would connect the pump island with the electric cables themselves. 1 was issued with cables and glands and the rest of the materials were supplied by me - these include soil pipes, gear switches, clips.

 

Under cross-examination he testified as follows:

 

I sent a total bill of N6,000.00. I did not complete the contract with reasons. because there was an agreement after I received Exh. 2 that after laying the cables to pumps island that I should leave the connection to pumps pending when defendants connected the pumps on the islands, they would connect it themselves.

 

He also explained that at the time he laid the cables there was no electricity at those places where the cables were laid. Taking the above pleadings and having regard to the essence of pleading, it cannot be doubted that it was pleaded that. inspite of Exhs. 1 and IA, what he was asked to do was to lay the cables. After all, it has been stated, rightly I hold, that a variation merely involves a definite alteration, as a matter of contract, of contractual obligations by the mutual agreement of both parties: see - Plevins V. Downing (1876) 1 C.P.D. 220 at p.225. And it cannot be doubted that the above evidence standing by itself sufficiently proved and explained the point, subject, of course to what the respondent had to offer in contradiction. Surprisingly. no credible evidence was offered on its behalf. Respondent's Manager who awarded the contract and made Exhs. "l" and "lA" and signed Exhs. "3" and "3A" did not testify. He was in the best position to have confirmed or denied appellant's assertions on the point. The only defence witness, Peter Adenola, who testified as D.W.l, admitted that he was not present when Exhs. "l". "1 A" "3" and "3A" were made. All that he could testify to was based on the file copies of these documents and speculation as to what his company should usually do. As a matter of law, when we talk about putting evidence called by either side on a balance, what ought to be compared is credible evidence usually of the same quality. Direct evidence cannot be compared with hearsay and speculative guesswork. I am bound to hold therefore. that on the state of the facts before the court, the evidence called by the appellants went one way. as uncontradicted. It was therefore, clearly established that what the appellant was asked to do was to lay the under-ground cables; that the respondents would connect electricity by themselves, when available. Facts which emerged subsequently confirmed this. It was pleaded in paragraph 5 of the statement of claim as follows:

 

The plaintiff completed the work on schedule and was inspected and approved by the defendant who later signified its acceptance when the plaintiff forwarded his bills Nos. 026 and 027 both dated 1/3/78. The plaintiff will rely on these at the trial.

 

Appellant testified that when he completed the work, it was inspected and approved by the Manager of the respondent who also signified his approval by signing his bills, Exhs. "3" and "3A." It has not been disputed that what appears as the Manager's signatures on Exhs. "3" and "3A" were his. On the above facts, the remark of the learned trial Judge that it was D.W. 1 who, for reasons best known to him, kicked up the whole controversy in this case be-comes eminently palpable.

 

The court below also accepted respondent's evidence that the appellant performed the job poorly. His Lordship held:

 

The learned trial Judge ignored the uncontradicted evidence of D.W.1 that the jobs were not properly done and that the cables were laid in different direction to where pumps were cited, and that the cables were not connected to the pumps.

 

The last reason has not taken into account the variation of the contract. On the question of the evidence being uncontradicted, the court appeared not to have adverted its mind to the evidence of the appellant that the work done by him was inspected and approved by the representative of the respondent before he signed his bills, Exhs. "3" and "3A." This would appear to have cast serious doubts on the respondent's allegation of poor performance which only arose long after D.W.1 took over in July, 1978. It is not, therefore, quite right to say it was uncontradicted. Moreover, it was never suggested to him under cross examination, nor was it pleaded, that he laid the pipes in different directions from the positions of the pumps. The allegations first emerged in the evidence of D.W. 1 after appellant had closed his case. This court has said several times that findings on primary facts are essentially the preserve of courts of first instance. Although an appellate court may interfere in a limited number of cases, yet, where the reason for such interference turns out to be wrong or unfounded, this court has a duty to set it aside. I may add that the testimony of a defence witness on a fact that was not pleaded and which was not put to the appropriate witness for the plaintiff under cross-examination so that he could affirm, deny, or otherwise explain it, has little, if any, cogency in law.

 

On the above facts, I should further consider whether ,pleadings apart, the court below was right to have ignored the evidence of the variation of the contract as a result of non-availability of electricity and held, as it did, that:

 

It is obvious on the face of Exhibits "1" and "1A" that the contract therein can only be performed completely by carrying out the jobs described in the different stations therein stated.

 

In other words it ignored oral agreement or variation pleaded by the appellant as well as his case that the respondent inspected the completed work, approved it and signed Exhs. "3" and "3A."

 

Now it has not been disputed that parties to a contract may effect a variation of the contract by modifying or altering its terms by mutual agreement. If authorities are required for this, I may mention the cases of –

 

Goss V. Lord Nugent (1835) 5 B. & Ad. 58 at p.65

Dodd V. Churton (1897)1 Q.B. 562. See also Chitty on contracts (24th Edn.) para. 1376, 1377 and 1378.

 

The contention of the learned counsel for the respondent is, however that as the contract was one in writing, it could only be varied by writing. In my opinion this contention was valid at common law (see West V. (1841)2 Man. & G. 729). But courts of equity took a contrary view and held that a contract in writing which by law is not of a class that must be evidenced in writing under the Statute of Frauds could be varied or rescinded by mutual agreement, whether oral or written: see Nash V Armstrong (1861) 10 ( (N.S.) 259. The only requirement was that there must be sufficient consideration to support the variation. Since the merger of law and equity by section 25(ii) of the Judicature Act, 1873, this position in equity has become position at common law. See Steeds & Anor V. Steeds & Anor. (1889)22 Q.I 537 and many subsequent cases. I shall apply the principle in this case, subject to there being sufficient consideration (see Chitty on Contract (24th Edn.), General Part, para. 1378 at p.650). In such cases, mutual abandonment of the existing rights of the parties under the agreement, as from forbearance to suit, is sufficient consideration: see Re William Potter & Co. Ltd. (1937) 2 All E.R. 361. The uncontradicted and unchallenged evidence of P.W.1 and the signature on the bills, Exhs. "3" & 3A after inspection and approval (on the evidence of P.W. 1) are clear evidence that both parties agreed that the appellant need not electrify the pumps after laying the pipes. This is sufficient consideration. As explained by Privy Council in Morris V. Baron & Company (1918) A.C. 1 at p.31, what is involved in such cases is strictly not a variation but an agreed change in the mode and manner of performance. I must therefore reject the that as Exhibits "1,' and "1 A" are in writing, it could not be contradicted altered, added to or varied orally: that any variation thereto must also be in writing. Learned counsel probably had an eye on the provisions of section 131 of the Evidence Act. It is useful to note that there is an analogous rule under the common law. But it has been recognised that the whittled down by a number of exceptions. See - Walker Property Investment (Brighton) Ltd. V. Walker (1947) L.T. 204; Couchman V. E.R. 103. Hence in SS. Ardennes (Cargo Owners) V. Ardennes (1951)1 K.B. 55' it was held that evidence of an oral representation by an agent of the ship owner that the ship was to proceed direct to London was admissible to contradict the contents of the bill of lading which stated that the ship could proceed "by any route and whether directly or in directly" London.

 

In our own law, section 131 itself provides for seven classes of exceptions, of which subsection (1)(d) of that section is relevant. That paragraph of the proviso specifically provides as follows:

 

Provided that any of the following matters may be proved:

 

(d)    the existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property;

 

This proviso clearly provides, inter alia, that evidence of a subsequent oral agreement between the parties to modify a contract is admissible. In other words, in the instant case, oral evidence of the appellant that as a result of the non-availability of electricity at the locations of all the pumps, he and the representative of the respondent agreed that he should only lay the pipes and that the respondents would connect electricity afterwards, was rightly admitted. See also Gillespie Brothers v. Cheney Eggar & Co. (1896)2 Q.B. 59 at 62. From this state of the law and on the above facts, including the conduct of the respondent in signing the appellant's bills (Exhs. "3" and "3A") after inspection of the works and approving them, which act is clearly inconsistent with the suggestion that it was intended that the appellants should electrify the pumps, I cannot but come to the conclusion that it was not intended that Exhs. "1" and "lA" should continue in full force to the effect that if the appellant did not electrify the pumps he should he held not to have fulfilled his own side of the bargain. I therefore agree with the learned trial D Judge, though for slightly different reasons, that the appellant proved that he substantially performed his own part of the contract, and so was entitled to payment.

 

On this conclusion, it becomes scarcely necessary to consider whether the contract was divisible or entire. As counsel on both sides devoted so much time and efforts in arguing it, I should also consider it, even if it is in the alternative.

 

I shall, therefore, now examine whether the court below was right to have held, contrary to the opinion of the trial Judge, that the contract was not a divisible one. The significance of deciding whether the contract was divisible or entire (indivisible) is that, as a general rule, if it was indivisible or entire, the appellant's entitlement to any payment will depend upon his showing that he had executed what he had covenanted to perform. In such entire contracts, complete performance by one party was a condition precedent to the liability of the other, and usually a lump sum payment by one party was the consideration for complete performance by the other. See. Sumpter V. Hedges (1898)1 Q.B. 673, Bolton V. Mahadeva (1972)2 All E.R. 1322. However, as a rigid application of this principle invariably led to unjust enrichment of the defendant who enjoyed some benefit from the contract without paying for it, the courts, in their desire to do justice between contracting parties, in particular to mitigate the harsh results of the rigid application of the principle - of indivisible contracts - on plaintiffs who often spent huge sums of money to perform some part of their own side of the bargain, developed the doctrine of substantial performance. The sum total of this doctrine of substantial performance is that, though the contract is indivisible, so long as the promisor has performed a substantial part of his own side of the bargain, though he may not have performed precisely or fully what he had promised to perform, he is entitled to sue a promisee who has accepted what he performed on the contract, though the promisee can counter-claim or bring a cross-action for damages for the partial performance, omissions, or defects in execution. See Hoeing V. Isaacs (1952)2 All E.R. 176.

 

On the other hand. a divisible contract is separable into parts, so that separate parts of the agreed consideration may be assigned to severable parts of the performance. Such divisible agreements admit of pro rata payments for each portion that is performed, and is independent of the performance of other parts of the contract: See –

 

Roberts V. Haverlock (1832) 3 B. Ad. 404; Taylor V. Laird (1856) 1 H & N. 266.

 

It would, therefore, have been of great consequence whether the contract under litigation was a divisible or an indivisible contract particularly if I had not found substantial performance. It is always a matter of construction, in the circumstances of every particular case, whether the contract is divisible or entire. In the task of construction on which the two lower courts (as well as counsel on both sides in this appeal) have expressed divergent views, I must advise myself that my duty is to pursue what has been described as the objective theory of the contract. In this process, and bearing in mind the arguments of the parties, I shall address my mind to the following questions.

 

i.     What documents are relevant and admissible for the ascertainment of the terms of the contract?

 

ii.     Can I look beyond these documents to ascertain the nature of the terms?

 

iii.    On the true construction of the agreement, was the contract divisible or indivisible?

 

iv.    On what basis, if at all, is the appellant entitled to payment?

 

On the first question, the court below, as well as the High Court, held that Exhs. "1" and "IA" are the only contract documents. But, though each of the documents referred to the conditions on the reverse side of the L.P.O., no reference was made to these conditions by either court or counsel. There are six conditions dealing with one each of Material, inspections, Destination, Packing, Invoices, and Part Supplies. The Conditions numbered 1, 2, 3, 4, 5 and 6. run thus:

 

1.    Material - All goods are to be supplied strictly in accordance with specifications given. No departure from specifications is permitted without our prior agreement in writing.

 

2.    Inspections - We reserve the right to inspect the goods on this order, but such inspection does not relieve the supplier of his responsibility for defects in material and/or workmanship and for delivery of the goods in accordance with specifications given. Goods rejected will be returned to supplier at his own expense.

 

3.    Destination - The supplier will note the destination of the material. Demurrage or other expenses incurred owing to the supplier not complying with our instructions will be for the supplier's account and deducted from his invoices before payment.

 

4.    Packing - Prices to include all packing and boxing It is assumed that cases are non-chargeable and non-returnable unless we are otherwise informed in writing. Chargeable packing cases will be returned for full credit.

 

5.    Invoices - Invoices for goods supplied on this Purchase Order should be sent to Wayne (West Africa) Ltd. 38140 Burma Road, P.O. Box 103, Apapa, and must be accompanied by the blue copy of this order. The company cannot accept responsibility for delays in payment arising from non-compliance with this condition.

 

6.     Where part of an order is supplied, the items not supplied should be treated as cancelled unless there is a written undertaking to accept supply by instalments.

 

It appears to me that the Condition numbered 6 envisages part performance of the contract and proceeds to show what will happen in such cases. I consider this material in my consideration as to whether or not the contract is divisible. Conditions 1 and 2 envisage that the performance by the appellant had been inspected by the respondent and that as on presentation of the bills (Exhs. 3 and 3A) in accordance with clause 5, the respondent's Manager signed them, I feel entitled, moreso on the uncontradicted evidence of the appellant, to hold that he was satisfied with the performance. Taking these conditions together with other contents of Fxhs. "I" and "1A" and the signature of the bills in Exhs. "3" and "3A". I agree with the conclusion of the learned trial Judge that the contract was divisible. I must note, however. that he reached that conclusion solely on the ground that Awe was deleted from Exh. "1" and the contract sum accordingly reduced without considering the conditions at the back of Exhs. "l" and "IA" and the implications of the respondent's Manager signing Exhs. "3" and "3A" as well as the oral evidence of P.W. 1. The argument of the learned counsel for the respondent is, however, that the contract could be divisible in the sense that separate contract sums have been allocated to each pumping station but the contract for each station indivisible per Se. He submitted that the true test of divisibility is whether or not a lump sum is payable only upon complete performance. It was so in this case, he submitted. A divisible contract on the other hand imposes severable obligation - (Chitty on Contract (25th Edn.) para. 1399). Relying on Cutter v. Powell (1795) 6 Term Rep. 320; Bates v. Hudson (1825)6 Dow, Ry. K.B. 3; Sinclair v. Bowles (1929) 9 B & C 92; he submitted that the contract was indivisible, and so, the appellant can recover nothing for part performance.

 

On my above conclusion that the mode and manner of performance was modified or varied and that the appellant performed what the parties agreed he should do, these submissions become merely academic in that no question of divisibility is any longer relevant. But, even if I did not so find, I would have agreed with the appellant that the contract was divisible. This is because the issue of divisibility or not would have been decided on the manifest intention of both parties, and not from the actual intention of either party or the way one of the parties appears to have understood the terms of the contract. See on this the decision of this court in Jackie Phillips V. Arch Ltd. (Parmaco-Bio1ogical Institute (1971)1 All N.L.R. 299 at p.310. On this principle, I am of the clear view that if, on the facts, divisibility and substantial performance were still in issue, taking Condition No.6 in Exhs. "1" and lA" together with Exhs. "3" and "3A" signed by the respondent's agent as well as the only available and uncontradicted evidence of the appellant, the only conclusion I can reach is that the contract was intended by the parties as a divisible one. But I do not think this question still arises in view of my conclusion that the appellant performed his own part of the contract, as modified.

 

Finally, I shall consider the question of award of interest. After hearing, the learned trial Judge. relying on the provisions of Order 27 rule 8 of the High Court of Plateau State (Civil Procedure) Rules, 1976, awarded interest to the plaintiff at the rate of 10% with effect from 11th of March, 1978, "when bills were due for payment", and, so, the cause of action accrued. His award was attacked in the appeal to the Court of Appeal. It was contended that the award was wrong because the court had no power to award interest, under the rule other than with effect from the date of judgment; and that in any event as the claim for interest was not endorsed on the writ of summons, no interest was recoverable.

 

In the lead Judgment of Karibi-Whyte, J.C.A. (as he then was), to which Wali. J.C.A. (as he then was) and Maidama, J.C.A., concurred; he stated:

 

At common law, interest on an unpaid debt is recoverable where it was provided by the agreement of the parties, express or implied. or that the custom of the transaction, implies the payment of interest in such cases - see London Chatham & Dover Rly, v South Eastern Rly (1893) A.C. 429. The power to award interest is therefore both statutory and at common law. Order 27 r.8, represents the statutory position and empowers the court on giving judgment in relation to an action for contract or damages for tort. to award interest at the rate of 10% from the date of the judgment.

 

Although the expression "unless otherwise ordered by the court", in Order 27 r. 8, enables the court to award interest to commence from a date ante-dating the judgment, the trial Judge cannot exercise that power unless there is such a claim before him. The claim for interest must be endorsed on the writ, although it is not necessary, also to include it in the pleadings - see Riches v. Westminister Bank Ltd. (1943)2 All E.R. 725. The case of Etim Ekpenyong & 3 ors v. Inyang Effiong Nyong & 6 ors. 6 (1975) 2 S.C. 71. cited by Mr. Idowu for the appellant is most appropriate.

 

The question, therefore, is whether the learned Justices were right in these conclusions. While it has not been disputed by either side that as held by the learned Justice of the Court of Appeal. Order 27 rule 8 of the Plateau State (Civil Procedure) Rules. 1976, has given power to the court to award interest at 10% with effect from the date of judgment, the questions which have arisen from the arguments of counsel on both sides are:

 

(i)    When can the award of 10% interest under the rule begin?

 

(ii)    What are the implications of the words: "unless otherwise ordered by the Court?

 

(iii)   What averments, if at all, must be made in the endorsement on the writ to enable the court exercise the power?

 

The rule in question states:

 

Unless otherwise ordered by the Court, interest shall be paid on outstanding judgment debt at the rate of 10% from the date of judgment whether or riot the judgment debtor is allowed time to pay or to pay by instalments.

 

It appears to me that for a meaningful construction of the rule, it is important to note that 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. See: London, Chatham & Dover Railway v. S. E. Railway (I893) A.C. 429 at p.434. 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. In Nigeria. as the law is that a statement of claim supercedes the writ. (for which see Udechukwu v . Okwuka (1956)1 F.S.C. 70, at p.71: [1956] SCNLR 189; Ekpan & Anor v Uyo (1086)3 N.W.L.R. (Pt. 26) 63, if even it was not claimed on the writ but facts are pleaded in the statement of claim and evidence given which show entitlement thereto, the court may, if satisfied with the evidence. award interest. Adjudication on the plaintiff's right to interest in such a case is. like on any other issue in the case, based on the evidence placed before the court. The evidence called at the trial in such a case will also establish the proper rate of interest and the date from which it should begin to run - whether from the accrual of the cause of action or otherwise. As far as I am aware, there is no law in Plateau State. or indeed in any other State of the Federation, which regulates the award of this class of interest. In England. it has now been dealt with by the Law Reform (Miscellaneous Provisions) Act of 1934. That Act provides in section 3(1) as follows:

 

(1)    In any proceedings tried in any court of record for the recovery of any debt or damages, the court may if it thinks fit. Order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment. Provided that nothing in this section…………

 

(b)    shall apply in relation to any debt upon which interest is payable as of right whether by virtue of any agreement or otherwise.

 

It was this statute that came in for construction in the case of Riches v Westminister Bank, Ltd. (1943) 2 All F.R. 725 at pages 725 -726 which was relied upon by the Court of Appeal. In my respectful opinion that decision was wrongly applied by the court below for the consideration of the rate of interest in this case, for four main reasons. First, what is in issue in this case is the rate of interest on the judgment debt. A judgment debt is a debt or A damage or other monetary award which has been pronounced upon by a court of competent jurisdiction. It begins when the court has pronounced its judgment in favour of the plaintiff. Interest on a judgment debt is therefore interest after adjudication. It cannot be before that incident. So, to award interest on the judgment debt from the date of accrual of the cause of action, as the learned trial Judge had done, and as the Court of Appeal impliedly B thought, is a contradiction in terms; Secondly: The Act of 1934 on which Riches Case (supra) was decided deals with interest on "any debt or damages", that is interest on the chose in action - as a right - not interest on the judgment debt. Thirdly, contrary to the construction of Riches' Case by the court below, that case decided that, for the first time in England, power has been given by the statute to a court to award interest on a chose in action, as distinct from interest on a judgment debt, on a claim for debt or damage, even though such has not been claimed in the statement of claim. Fourthly: The Act of 1934, being a post-1900 English Statute, does not apply in Nigeria, unless of course it has been expressly or by necessary implication adopted by our local legislation. I believe, therefore, that the law in Nigeria with respect to this category of practice for award of interest is the common law principle and practice, as adumbrated in the case of London, Catham & Dover Railway v. S. E. Railway (supra): it is still a matter of pleading and evidence whether a plaintiff is so entitled. See on this Sheba Gold Mining Co. v Trubshawe(1892) 1 Q.B. 682, Robinson v. Bland (1760)2 Burr. l(i77 at p.1985. This principle and practice are part of the principles and practices of the common law which have been received in Nigeria since 1900. The power to apply the practice has been reinforced by section 35 of the High Court Law of the former Northern Region, applicable in Plateau State, which empowers the High Court to apply such a practice and procedure in substantial conformity, mutatis mutandis, with those for the time being of the High Court of Justice in England. I do not think that the mere use of the words "for the time being" in section 35 of the Law is sufficient warrant for F adopting the provisions of the English Statute.

 

The power to award interest on a judgement debt rests on a different principle. It is at the discretion of the court to award it, or not. on pronouncing the judgment and with effect from that date. Before 1900, that power derived from the Judgments Act of 1838, in England. Section 17 provides as follows:

 

17.    Every judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment ……… until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment debt.

 

This was a statutory authority to award interest on judgment debt, in England. This being a statute of general application in force on the 1st of January, 1900. it was, subject to any local legislation, applicable in Nigeria. In exercise of its power under that statute, a court could, whether or not interest was claimed on the writ and/or the statement of claim, award interest on the judgment debt at the rate of 4% per annum, with effect from the date of the judgment.

 

It is from this principle that I shall now attempt to construe the provisions of Order 27 rule 8 of the Plateau State, (Civil Procedure) Rules, 1976 I shall quote the rule again.

It provides:

 

8.      Unless otherwise ordered by the court, interest shall be paid on outstanding judgment debts at the rate of 10 per cent from the date of judgment whether or not the judgment debtor is allowed time to pay or pay by instalments. (Italics mine).

 

Clearly this rule, like the Judgment Act of 1838, and unlike the Act of 1934, deals with payment of "outstanding judgment debts." It has nothing to do with a claim of interest as a right either under a contract or mercantile custom or a principle of equity. Like the judgment Acts of 1838 order 27 rule 8 of the Plateau State (Civil Procedure) Rules, 1976, is a statutory authority for a court to award interest at 10% per annum on the outstanding judgment debt. I do not therefore agree with the learned Justices of the Court of Appeal that it is an authority for the court to award interest from a date antedating the judgment, for the simple reason that there cannot, for what I have said, be a judgment debt as at that date. There can only be a claim for interest, not a judgment debt. The bare pleading in paragraph 7 of the statement of claim that the plaintiff claims interest is not enough.

 

It is left for me to consider the implication of the words unless otherwise ordered by the court." Effect must of course be given to those words. But, for the simple reason that there can be no judgment debt until the date of judgment, it cannot, as I have stated be an authority for the court to award interest from the accrual of the cause of action or from any other date antedating the judgment. It appears to me therefore that the discretion given to the court to order otherwise, is limited to the rate of interest. So, where the court sees good reasons for so doing, it can order a rate of interest other than 10%. In other words, even though the substantive part of the enactment says "interest shall be paid on outstanding judgment debts at the rate of 10% per cent" - a provision which would have been construed as mandatory – that provision is influenced by the opening phrase - "unless otherwise ordered by the court," which gives the court a discretion to order otherwise. So this is a classic case of where the word shall must be interpreted as being directory only, and not mandatory.

 

In my view, as the power to award interest under the rule is one which derives from the rule itself, it is not obligatory that interest there under must be claimed on the writ or pleaded in the statement of claim. So, it is different from when it is claimed as a right. But before a court can depart from this power and award interest at the rate different from 10% per annum, under a discretion envisaged by the opening clause of the rule, there must be facts and/or circumstances to justify such a course. To take one example, if the prevailing rate of bank interest is shown to be, say, 30%, I do not think that a court will meet the ends of justice by awarding interest at 10%. But, having said so, I cannot over-emphasize the need for a court, particularly one whose decision is subject to appeal, to always give reasons why it exercises its discretion in a particular way if only because every such exercise of its discretion is subject to review. See on this N.A. Williams V. Voluntary Funds Society (1982) 1-2 S.C. 145 at p.162. It must be borne in mind that the essential difference between an arbitrary or wrongful exercise of discretion, on the one hand, and a judicial cum judicious exercise of it on the other is that whereas the former is the exercise of it with either no reason at all or with wrong or insufficient reason, the latter is the exercise of it with sufficient, correct and convincing reason. Judicial and judicious exercise of discretion is acceptable in law, an arbitrary exercise of it is not.

 

In the instant case, it appears to me that for what I have said, the learned trial Judge bad no jurisdiction or power under the rule to award interest from the date of accrual of the cause of action, that is from a date antedating the judgment. No question of a claim of interest as a right arose in the proceedings.

 

So, the judgment of the Court of Appeal, Kaduna Division, dismissing the appellant's case with costs is hereby set aside, and the judgment of the High Court, as amended, is restored. For the avoidance of doubt, judgment is hereby entered for the plaintiff/appellant in the sum of N16,000.00 (sixteen thousand Naira) with interest on the same amount at the rate of 10% per annum with effect from the 8th day of December, 1980 - the date of the High Court judgment.

 

I must commend the learned counsel for the respondent for the industry and expertise he demonstrated in getting up an excellent brief, much as I cannot agree with him.

 

The appellant shall have costs of this appeal and in the Court of Appeal which I assess at N500.00 and N300.00 respectively.

 

 

Judgement delivered by

Obaseki . J.S.C.

 

The appellant was plaintiff and the respondent, defendant in an action filed in the High Court for N16.,000.00 for work done and material supplied in execution of a contract of electrification set out in two LPO's Exhibits 1 and 1A'. More expressly, the claim endorsed on the writ of summons and set out in the statement of claim reads:

 

The defendant by Local Purchase Order No.17142 and 17143 and dated 31st October, 1977 and by letter Reference No. WAJ/ADM 069/7/78 awarded the work of laying of underground cables for petrol pumping stations in the following towns –

 

Mangu (5 pumps); Barkin Ladi (5 pumps); Nassarawa (5 pumps); Bassa (5 pumps); Pankshin (5 pumps); Wuse and Kanam (5 pumps).

 

The plaintiff in accordance with the Local Purchase Order and the letter reference No. WAJ/ADM 069/7/78 did carry out the projects in the specified areas and make a demand for payment of work done which the defendant refused or neglected to pay.

 

Wherefore, the plaintiff claims from the defendant the sum of N16,000 (sixteen thousand Naira) as payment for work done.

 

After pleadings were filed and served, there was an unsuccessful move for settlement out of court. Thereafter, the case went to trial. Two witnesses (the plaintiff and one other) testified at the instance of the plaintiff and one Peter Ademola testified at the instance of the defendant.

 

In a considered judgment, the learned trial Judge found for the plaintiff and entered judgment for the plaintiff for N16,000.00 with interest at the rate of 10% with effect from 1st March, 1978.

 

The defendant was dissatisfied with the judgment and filed a notice of appeal to the Court of Appeal. He succeeded in persuading the Justices of the Court of Appeal that the contract was indivisible and that the plaintiff did not complete the contract to entitle him to any payment. The Court of Appeal found merit in the appeal reversed the judgment of the learned trial Judge and dismissed the claim. This is a further appeal by the plaintiff. The grounds of appeal raised 4 issues. These are:

 

1.      whether the Honourable Court of Appeal was right in the interpretation placed on Exhibits '1' to include the supply of electricity or whether "flame proof electrification" includes supply of electricity by the contractor;

 

2.      if the answer to question 1 is in the affirmative, then the further question is whether an employer can make a contractor to contract to perform what amounts to illegality and what is the effect of that aspect of the contract that is tainted with illegality;

 

3.      whether a party can rely on the illegal aspect of the contract to avoid liability more especially where he has derived some benefits therefrom;

 

4.    whether a court can order interest to be paid on a judgment debt from a date before the date of the judgment.

 

These issues have been exhaustively treated or dealt with in the judgment of my learned brother, Nnaemeka-Agu, J.S.C.,which I had the advantage of a preview of and which he delivered in this court a short while ago. I agree with his opinions on all the issues and I adopt them as my own.

 

Learned counsel who appeared for the parties addressed us at length at the oral hearing on the issues raised. Learned counsel for the appellant attacked the interpretation put on the LPO Exhibit .1' and Exhibit 'lA' and submitted that it was erroneous. He submitted that it is clear from the contents of the two Exhibits that the contract is divisible and not illegal. The term "Flame Proof Electrification" used in the contract Exhibits '1' and lA', counsel submitted, does not include generation of and supply of electricity by the plaintiff/appellant. Such generation and supply of electricity could not have been in the contemplation of the parties, having regard to the qualification and occupation of the appellant known to the respondent. The description of the jobs to be carried out by the appellant is shown and expressed in Exhibits '1' and '1A' is to

 

1.     Carry out flame proof electrification at M.O. Trade Yards in the Following area to Wayne pumps –

 

1.    Bassa - 5 pumps

 

2.    Pan kshin - 5 pumps

 

3.    Langtang - 5 pumps

 

4.    Wuse and Kanam - 10 pumps

 

Wayne will supply cables and glands, gear switches by you.

 

2.    Secondly, it is in addition to 1 above to carry out flame proof electrification at M.O. Trade Yards in the following area

 

1.    Mangu - 5 pumps

 

2.    Barakin Ladi - 5 pumps

 

3.    Nassarawa - 5 pumps

 

Wayne will supply cables and glands' gear switches to be supplied by you.

 

According to the dictionary definition (see Oxford Concise Dictionary) to electrify means to charge with electricity and electrification is the act of electrifying. This cannot be the intention of the parties. The appellant in his testimony said he was to lay the electric cables to the pumps at the different stations. This must be the intention of the parties as appears from the LPO Exhibit 1 and Exhibit lA when respondent expressly undertook to supply the cables and glands and the appellant to supply the gear switches. Without extrinsic evidence to explain the term "flame proof electrification" the term is meaningless and since the explanation given by the appellant was accepted by the learned trial Judge, the Court of Appeal should not have interfered.

 

The circumstances warranting such interference did not arise. Those circumstances were fully set out in Chief Frank Ebba v. Chief Ogodo (1984)I SCNLR372: Okafor v. Idigo(1984) I SCNLR48I. It is obvious that the intention of the parties was that the appellant should lay the cables and fix the switches in readiness for connection to Nepa supply of electricity. It cannot be the intention of the respondent to purchase electricity from the appellant as the literal interpretation of the Exhibits 1' and '1A' would lead to.

 

I agree with and accept the submission of learned counsel for the appellant that supply of electricity is not included in the contract. I will therefore answer the question posed in issue No.1 in the negative.

 

Since it was not the intention of the parties to purchase electricity from the appellant and since the appellant does not generate and sell electricity contrary to Nepa Decree or Act, the contract is not illegal. The contract would still not be illegal if the appellant was required to seek connection of the cables laid to Nepa electric supply.

 

If the contract had been illegal and it was brought to the notice of the court, the learned trial Judge would have been in error to enforce it. No court of law or Judge has the jurisdiction to enforce an Illegal contract. The duty of a court of law or a Judge is to administer justice according to law. Therefore, it will be a breach of that duty and the oath of office to enforce an illegal contract. None of the parties to an illegal contract is entitled to any remedy or relief from a court of law and once a court or Judge becomes aware of the illegality, it is the duty of the court or Judge to stop the case and dismiss the claim for being void and unenforceable. See Sodipo V. Lemminkainen Oy&Anor. (1985) 2N.S.C.C. 1102 at 1114, 1115; Phillips V. Coping H (1935)1 KB. 15 at 21.

 

That disposes of issues Nos. 2 and 3.

 

The question raised in issue No.4 –

 

whether a court can order interest to be paid on a judgment debt from a date before the date of judgment has been dealt with exhaustively by my learned brother, Nnaemeka-Agu, J.S.C., and I have the following comments to add.

 

A debt does not become a judgment debt until the court or Judge adjudges the defendant liable to pay the debt and therefore from the nature of judgment debt a court or Judge has no jurisdiction or power to order payment of interest not included in the claim from a date before the date of judgment - The judgment of the High Court in this regard must be amended as ordered by my learned brother.

 

It is settled law that a Judge cannot award an amount in excess of what is claimed. Under the Rules of Court, a court or Judge can order the amount adjudged due to attract interest from the date of judgment till payment. See- Egonu V. Egonu (1978) 11-12 S.C. 111 at 133; Etim Ekpenyong & 3 Ors. v. Inyang Effiong Nyong& 6 Ors. (1975)2 S.C. 71 at 80.

 

The appeal succeeds and I hereby allow it. The judgment of the Court of Appeal, Jos Division dismissing the appellant's claim with the order as to costs is hereby set aside and the judgment of the High Court as amended is hereby restored. More expressly, judgment is hereby entered for the plaintiff/appellant in the sum of N16,000.00 (sixteen thousand Naira with interest) on the same amount at the rate of 10% per annum with effect from the 8th day of December, 1980, the date of the judgment of the High Court.

 

The appellant shall have costs in this appeal fixed at N500.00 in this court and N300.00 in the Court of Appeal

 

 

Judgement delivered by

Uwais. J.S.C.

 

I have had the opportunity of reading in draft the judgment read by my learned brother, Nnaemeka-Agu, J.S.C. I entirely agree with the judgment and I too will allow the appeal.

 

On the interpretation of Order 27 rule 8 of the High Court (Civil Procedure) Rules, 1976 of Plateau State, which reads –

 

8.      Unless otherwise ordered by the court, interest shall be paid on outstanding judgment debts at the rate of 10 per cent from the date of judgment whether or not the judgment debtor is allowed to pay or to pay by installments.

 

I am of the opinion that the words 'Unless otherwise ordered by the court" qualify the rest of the words that follow thereafter in the rule. So that a trial Judge has the discretion to award the 10 per cent interest mentioned therein. In the alternative, he also has the discretion to award more or less interest than the 10 per cent stipulated in the rule. I must, however, stress that in awarding more or less than the 10 per cent interest the trial Judge must, in the exercise of the discretion, take into consideration all the circumstances of the case in order that his award may not be arbitrary or outrageous and thereby being subject to the query whether the discretion has been accurately and judiciously exercised.

 

As already indicated, I am in complete agreement with the judgment of my learned brother, Nnaemeka-Agu, J.S.C. Accordingly, the appeal is hereby allowed and I adopt the orders as contained in the said judgment.

 

 

Judgement delivered by

Kawu . J.S.C.

 

I have had the advantage of reading in draft the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. I am in complete agreement with him, and for the reasons stated in the said judgment, I too will allow the appeal. I abide by the consequential order made in the lead judgment.

 

 

Judgement delivered by

Agbaje. J.S.C.

 

I have had the opportunity of reading in draft the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. I agree entirely with him that the appellant's appeal must succeed. I will only contribute to those aspects of his judgment dealing with claims for interest and with the construction of Order 27 rule 8 of the High Court (Civil Procedure) Rules of Plateau State 1976.

 

The plaintiff, Reuben N.A. Ekwunife, trading under the name and style of Gonglobe Associates and Company sued the defendant/company in a Jos High Court, Plateau State claiming as follows as per the endorsements to its writ of summons:-

 

The defendant by local purchase Order No.17142 and 17143 all dated 31st October, 1977 and by letter Reference No. WJ/ADM.069/7/78 awarded the work of laying of underground cables for its petrol plumbing stations in the following towns Mangu (5 pumps), Barkin Ladi (5 pumps), Nassarawa (5 pumps), Bassa (5 pumps), Pankshin (5 pumps) Wuse and Kanam (5 pumps each) all at a cost of N16,000 (Sixteen thousand naira only).

 

The plaintiff in accordance with the Local Purchase Order and the letter reference No. WAJ/ADM.069/7/78 did carry outthe projects in the specified areas and make a demand for payment of work done which the defendant refused or neglected to pay.

 

Wherefore the plaintiff claims from the defendant the sum of N16,000 (sixteen thousand Naira) as payment for work done.

 

So, evidently there is no claim on the writ of summons by the plaintiff for the sum claimed by him from the defendant for interest up to the date of judgment or for interest on the judgment debt, if he succeeds in his claim. However, paragraph 7 of the plaintiff's statement of claim pleads as follows: -

 

7.    Wherefore the plaintiff claims the sum of N16,000 plus interest and the cost of this action.

 

It is trite to say statement of claim supercedes the writ. So it may be said that there is a hare statement in the pleading of the plaintiff as to a claim for interest by him without saying any further whether the claim was based on contract or statute.

 

In notes 6/2/7 and 6/2/7A to Order 6 rule 2 of the Rules of the Supreme Court 1965 (England) in the Supreme Court Practice 1976 (England), we have the following passage under the sub-title "interest claimed: -

 

Interest is not payable or recoverable at common law on ordinary debts in the absence of some contract, express or implied, or mercantile usage (see London, Chatham and Dover Ry., (1893) A.C. 429 at pp.434 et seq.). It may be made payable by some contract, express or implied (Re Anglesey. (1901) 2 Ch/548), or by statute, e.g. the Bills of Exchange Act 1882, Ss. 9(3), 57, the Judgments Act 1838, S.17 (at 5 per cent in relation to judgments entered before April 20, 1971, and thereafter at 7 1/2 per cent.:

 

Judgment Debts (Rate of Interest) Order 1971 (5.1. 1971 No. 491) made under A.J.A. 1970, 5.44) and under clause 5 of the Solicitors' Remuneration Order 1972 (S.1.1972 No.1139). See Blair V. Cordner (1887)19 W.B.D. 516 C.A., where it was held that delivery of a bill of costs was a "demand" within this clause, and carried a right to interest at 4 per cent, from the expiration of one month from delivery.

 

It must be stated in the indorsement of the claim or the statement of claim on the writ whether the claim for interest is based on contract or statute.

 

The indorsement on the writ should show the grounds of the claim for interest: but the above section does not require a claim for interest to be pleaded (Riches V. Westminister Bank Ltd.(1943) 2 All E.L.R. 725)

 

Order 27 rule 8 of the Plateau State (Civil Procedure) Rules 1976 provides thus:

 

8.      Unless otherwise ordered by the court, interest shall be paid on outstanding judgment debts at the rate of 10 percent from the date of judgment whether or not the judgment debtor is allowed time to pay or to pay by installments.

 

Section 35 of the High Court of the former Northern Region applicable to Plateau State says:

 

35.    Subject to the other provisions of this law the jurisdiction vested in the High Court shall be exercised, so far as regards practice and procedure, in the manner provided by this Law, by the Criminal Procedure Code or by any other written law including such rules and orders of court as may be made pursuant to this Law or any other written law, in civil causes and matters, in so far as any such provisions shall not extend, in conformity mutatis mutandis with the practice and procedure for the time being of the High Court of Justice in England.

 

The Plateau State High Court (Civil Procedure) Rules 1976 contain no provision as to the practice and procedure on a claim for and award of interest. So, the practice and procedure in this regard in the High Court of Justice in England will obtain in the High Court of Plateau State, having regard to section 35 of the Law I have just reproduced.

 

So, in my judgment for a claim for interest to properly exist for determination in the High Court of Plateau State, it must be stated in the endorsement of the claims to the writ of summons or in the Statement of Claim whether the claim for interest is based on contract or statute and the grounds upon which the claim is based.

 

A defect in this regard in the endorsement to the writ can be cured in the Statement of Claim since the latter supercedes the writ.

 

I have copied above para. 7 of the plaintiff's Statement of Claim where there is only a bare Statement as to a claim for interest on the sum of N16,000 claimed by the plaintiff. It is not stated whether the claim for interest is based on contract or statute. Nor are the grounds of the claim for interest shown on the Statement of Claim. Because of what I have just said, my conclusion would be that the plaintiff has not properly raised his claim for interest in this case, at least, up to the date of judgment. So, the trial court, in my judgment, was wrong to have awarded interest at all on the amount claimed by the plaintiff up to the date of judgment.

 

What I have just said is in line with a long list of the authorities of this court to the effect that the court should never award that which was never claimed or pleaded by either party. See for instance, Ekpenyong V. Inyang(1975) 2 S.C. 71 at 80-88).

 

This, however, is not the end of the matter because of the provisions of Order 27 rule 8 of the High Court (Civil Procedure) Rules of Plateau State to which I have referred earlier on in this judgment which for ease of reference, I reproduce below:

"8. Unless otherwise ordered by the court, interest shall be paid on outstanding judgment debts at the rate of 10 per cent from the date of judgment whether or not the judgment debtor is allowed time to pay or to pay by instalments."

 

The High Court (Civil Procedure) Rules of Plateau State, is evidently a statutory instrument having been made by the Chief Justice of Plateau State with the approval of the Military Governor of that State in exercise of the powers conferred upon the Chief Justice in that behalf by Section 116(1) of the High Court Law of Northern Nigeria applicable in Plateau State. To that extent, the rules have statutory force. So, it can be rightly said that in Order 27 rule 8 of the High Court (Civil Procedure) Rules of Plateau State, we have statutory provisions as to payment of interest, as the rule says, on judgment debt or any part thereof outstanding. In other words, Order 27 rule 8 provides for statutory interest on judgment debt. The said provisions are mandatory. It follows inevitably, in my judgment that the statutory interest will only begin to run from the date of judgment. This statutory interest on judgment debt is distinct and separate from the interest which a plaintiff must include in the statement of his claim to the writ as being based on contract or on statute as the case may be, before he can hope to recover it.

 

As I have just said, the statutory interest can only run from the date of judgments. In my judgment therefore, there is no jurisdiction in the High Court of Plateau State to award interest on a judgment debt from a date antecedent to the date of the judgment debt, under Order 27 rule 8.

 

The expression "unless otherwise ordered by the court" which opens the provisions of Order 27 rule 8 in question does not, in my judgment, confer any discretion on the High Court as to when the interest will begin to run, that is to say, either before or from the date of judgment. On the other hand, the expression, in my judgment, governs the word immediately following it in the enactment. that is to say "interest" and its rate. So in my judgment the statutory interest will apply unless the court orders otherwise, that is to say unless the court orders that the interest of more or less than 10% shall be paid having regard to the circumstances brought to its notice.

 

Because of what I have said earlier on in this judgment that Order 27 rule 8 of the Plateau State High Court Rules provides for what is in essence statutory interest on judgment debt, it is not necessary, in my judgment, for a beneficiary of the statutory provision to state in the endorsement of his claim on the writ or to plead in his Statement of Claim, that fact or the grounds of his entitlement thereto. The latter requirements will obtain, in my judgment where there is a claim for interest on the amount claimed up to the date of judgment and, after judgment there is a claim for interest on the judgment debt based otherwise than on the provisions of Order 27 rule 8

 

What I have hitherto said about Order 27 rule 8 of the High Court of Plateau State Rules is in the line with the opinion of the learned authors of Halsbury's Statutes of England on the Judgments Act 1838 U.K., which, is as I will show presently, essentially in pan materia with the provisions of the Order 27 rule 8 of the Plateau State High Court Rules. Section 17 of the Judgments Act 1838 U.K. says:

 

17.    Every judgment debt shall carry interest at the rate of four pounds per centum per annum from the time of entering up the judgment .... until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment debt.

 

So section 17 of the U.K. Act provides in England for statutory interest on judgment debt. On the other hand section 3(1) of the Law Reform (Miscellaneous (Provisions) Act 1934 gives power to a court of record in England to include in the sum for which judgment is given interest on the debt or damages for the period between the date when the cause of action arose and judgment in the case is given. Notes 6/2/7A in The Supreme Court Practice 1976 Volume 1 at page 40 says, inter alia, the following on section 3 of the Law Reform (Miscellaneous Provisions) Act 1934:-

 

The indorsement on the writ should show the grounds of the claim for interest: but the above section does not require a claim for interest to be pleaded (Riches t. Westminster Batik Ltd (1943) 2 All F.R. 725)."

 

Except for the opening words "unless otherwise ordered by the court" in Order 27 rule 8 which are missing from Section 17 of the Judgments Act 1838, (U.K.) the latter statute is in pari materia in its main provision with the main provision of Order 27 rule 8, without the opening words, which is, "interest shall be paid on outstanding judgments at the rate of 10 per cent from the date of judgment."

 

Halsbury's Statutes of England 3rd Edition Volume 18 has inter alia the following notes on Section 17 of the Judgments Act (U.K.):

 

The effect of a judgment or order is to merge the original contractual right in the judgment (Re European Central Rail. Co., Ex parte Oriental Financial Corporation (1876), 4 Ch.D. 33, C.A.). Consequently, despite an original agreement for the payment of 6 per cent. (Re Sneyd. Ex parte Fewings (1883), 25 Ch. D. 338). interest subsequent to the judgment is payable only at the statutory rate of 4 per cent. Where. However, there were ancillary and independent covenants in a mortgage deed, the mortgages were, despite the merger, allowed to retain their security pending payment of the principal sum and interest at 5 per cent. Economic Life Assurance Society V. Osborne. (1902) A.C. 147). Similarly, 6 per cent interest was allowed where there was agreement that the original debt should run on, judgment being signed by way of collateral security (Re Agriculturist Cattle Insurance Co. Ex parte Hughes (1872),4Ch.D 34, n.).

 

Interest runs from the date of entry of the judgment (Re Clagett. Exparte Lewis (1887) 36 W/R 653, C.A..

 

I am not aware that in any of the Statutes or Statutory instruments applicable in Plateau State there are any provisions like those in section 3(1) of the Law Reform (Miscellaneous Provisions) Act, 1934 (U.K.). The decision in Riches V. Westminster Bank Ltd. (1943) 2 All E.R. 725, is on section C 3 of the latter statute and not on the judgments Act, 1838, which, as I have just said, is essentially in pan materia with the provisions of Order 27 rule 8 of Plateau State High Court Rules. So, in my view, the case of Riches V. Westminster Bank Ltd. (supra) is not a guide as to the interpretation of the latter provision.

 

However, in my view, the notes on Halsbury Statutes of England to the Judgments Act (U.K.) are in line with what I have been saying in this judgment about order 27 rule 8 of the High Court of Plateau State (Civil Procedure) Rules. I have already'; said that both provisions are, in the main, in pari materia.

 

Because of what I have just said. I do not agree to the following passage in the lead judgment of Karibi-Whyte. J.C.A. (as he then was) in the Court of Appeal:-

 

Although the expression "unless otherwise ordered by the court. In Order 27 r.8. Enables the court to award interest to commence from a date antedating the judgment, the trial Judge cannot exercise that power unless there is such a claim before him. The claim for interest must be endorsed on the writ, although it is not necessary also to include it in the pleadings - see Riches v. Westminster Bank Ltd. (1943) 2 All F.. R. 725.

 

The conclusion I reach on the issue I am considering is that the appellant is entitled to the statutory interest on the judgment debt at the rate of 10 per cent from the date of judgment. The trial High Court has not ordered otherwise.

 

For the reasons given in the lead judgment of Nnaemeka-Agu, J.S.C., which I have had the benefit of reading in draft, I agree that the plaintiff is entitled to his claim for N16,000.00 against the defendant. So, in my judgment. the trial court was right in giving judgment for the plaintiff in that amount and that the Court of Appeal. Kaduna Division was wrong in overturning that judgment.

 

Accordingly, 1 too, allow the plaintiff/appellant's appeal. I abide by all the consequential orders in the lead judgment of my learned brother Nnaemeka-Agu, J.S.C.

 

 

 

Counsel

 

R. O. Yusuf

........

For the Appellant

H. O. Ajumogobia

With  K.O.K. Ayo-Kasunmu

........

For the Respondent