HADEJIA JAMA'ARE RIVER BASIN DEVELOPMENTAUTHORITY v. CHIMANDE (NIG) LTD

CITATION: (2016) LPELR-40202(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON THURSDAY, 21ST JANUARY, 2016Suit No: CA/K/433/2013

Before Their Lordships:

UWANI MUSA ABBA-AJI Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealAMINA AUDI WAMBAI Justice, Court of Appeal

BetweenHADEJIA JAMA'ARE RIVER BASIN DEVELOPMENT AUTHORITY - Appellant(s)

AndCHIMANDE NIGERIA LIMITED - Respondent(s)

RATIO DECIDENDI

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1 PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Essence ofUndefended List Procedure"Speaking on the essence of the Undefended List procedure, this Court in itsunreported judgment in Appeal No.CA/K/131/2010 - Samabey InternationalCommunications Ltd Vs Celtel Nigeria Ltd (Trading as Zain) delivered on the 26th ofApril, 2013 stated thus:"It is pertinent to state that the provisions on undefended listin the High Court of Kano State (Civil Procedure) Rules are adjunct to the course ofjustice. They are rules of Court touching on the administration of justice and theprocedure is simply designed to ensure speedier attainment of justice with ease,certainty and dispatch, when it is abundantly clear that the defendant hasabsolutely no defence to the plaintiffs case. The undefended list procedure is aspecie of summary judgment evolved by the rules of Court for the speedy disposalof otherwise uncontested cases and where there is no reasonable doubt as to theefficacy of the plaintiffs claims and it would be most unconscionable to oblige anotherwise liable defendant the opportunity to employ mere subterfuge to dribble hisopponent and the Court just for the purpose of stalling proceedings and cheating theplaintiff out of reliefs to which he ordinarily would have been entitled - ImoniyameHoldings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O.Nworah &Sons Co Ltd Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443, Babale VsEze (2011) 11 NWLR (Pt.1257) 48, David Vs Jolayemi (2011) 11 NWLR (Pt.1258) 320."Also in Okoli Vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1057) 37 at page 70paragraph C, the Supreme Court stated: "…the rules as regards matters placedunder the undefended list is designed to enable a plaintiff to obtain summaryjudgment without trial in those cases where the plaintiffs case is unassailable (as inthe instant case) see Cow Vs Casey (1949) 1 KB 474 and the defendant cannot showa defence which will lead to a trial on its merits."Per ABIRU, J.C.A. (Pp. 13-14, Paras.A-A) - read in context

2 JUDGMENT AND ORDER - AWARD OF COST: Duty of a party making request forcosts"And the party making the request for costs must itemize his realistic or necessaryexpenses arising from the suit in its request for costs and the Court will assess theappropriate quantum to award as costs based on the itemized expenses -Akinbobola Vs Plisson Fisco Nigeria Ltd (1991) 1 NWLR (Pt.167) 270, Layinka VsMakinde (2002) 5-6 SCNJ 77."Per ABIRU, J.C.A. (P. 22, Paras. D-F) - read in context

3 APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Effect of issuesfor determination not flowing from any ground of appeal"Now, it is elementary in an appeal that issues for determination must be distilledfrom, related to and be founded on the grounds of appeal contained in the notice ofappeal and must deal with matters which are direct challenge to the decision of thelower Court. Any issue for determination formulated outside the grounds of appealand which does not deal with matters directly challenging the decision of the lowerCourt is of no use in an appeal and it will irrelevant and be struck out - ShipcareNigeria Limited, Owners of the "M/T African Hyacinth" Vs The Owners of the "M/VFortunato" (2011) 7 NWLR (Pt.1246) 205, Ebute Vs Union Bank of Nigeria Plc (2012)2 NWLR (Pt.1284) 254, Odusote Vs Odusote (2012) 3 NWLR (Pt.1288) 478, andOkechukwu Vs Independent National Electoral Commission (2014) 17 NWLR(Pt.1436) 255."Per ABIRU, J.C.A. (Pp. 3-4, Paras. F-D) - read in context

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4 PRACTICE AND PROCEDURE - SUMMARY JUDGMENT PROCEDURE: Purpose ofa summary judgment procedure" The whole purpose of a summary judgment procedure is to ensure justice to aplaintiff and minimize delay where there is obviously no defence to his claim andthus prevent the grave injustice that might occur through a protracted andimmensely frivolous litigation. It is to prevent sham defence from defeating the rightof a plaintiff by delay and thus causing great loss to a plaintiff. In other words, thesummary judgment rules are specially made to help the Court achieve their primaryobjective, i.e. to do justice to the parties by hearing their cases on the merit withutmost dispatch and prevent the frequent outcry that justice delayed is justicedenied - United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247,University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt.1055)441, Wem a Securities and Finance Plc Vs Nigerian Agricultural InsuranceCorporation (2015) 16 NWLR (Pt.1484) 93"Per ABIRU, J.C.A. (Pp. 12-13, Paras. B-A) -read in context

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5 JUDGMENT AND ORDER - AWARD OF INTEREST: Position of the law as regards aclaim for pre judgment interest"The interest at bank rate of 23% on the contract sum of N7,952,589.27 from 1st ofMay, 2008 till date of judgment was pre judgment interest and the general rule atcommon law is that pre judgment interest is not payable on a debt or loan in theabsence of express agreement or some course of dealing or custom to that effect.Thus, pre judgment interest will, be payable where there is an express agreement tothat effect and such agreement may be inferred from a course of dealing betweenthe parties or where an obligation to pay interest arises from the common practiceor usage of a particular trade or business or under a principle of equity such asbreach of a fiduciary duty - Alfontrin Ltd Vs Attorney General, Federation (1996) 9NWLR (Pt 475) 634, Veepee Industries Ltd Vs Cocoa Industries Ltd (2008) NWLR(Pt.1105) 486, Diamond Bank Ltd Vs Partnership Investment Co Ltd (2009) 18 NWLR(Pt.1172) 67. Consequentially, a plaintiff, in order to succeed in a claim for prejudgment interest, must show how the entitlement to such interest arose, that iswhether by law, by contract or agreement or he must plead facts showing that theclaim is part of the loss or special damages which the defendant's wrong imposedon him. It is not enough to merely say that the plaintiff is claiming interest. Thebasis of the claim of interest must be made manifest on the pleadings - Ekwunife VsWayne (W.A.) Ltd (1939) 2 NWLR (Pt.122) 422, Himma Merchants Ltd Vs Aliyu(1994) 5 NWLR (Pt.347) 667, Sani Abacha Foundation for Peace & Unity Vs UnitedBank for Africa Plc (2010) 17 NWLR (Pt.1221) 192, Wema Securities and Finance PlcVs Nigerian Agricultural Insurance Corporation (2015) 16 NWLR (Pt.1484) 93.Additionally, where a particular rate of interest is claimed, the law is that the rate ofinterest is dependent on the agreement between the parties or established bycustom or consent of the parties and it is the duty of the person claiming aparticular rate of interest to prove it - Ishola Vs Societe Generale Bank of Nigeria Ltd(1997) 2 NWLR (Pt.488) 405, Suberu Vs Atiba Iyalamu Savings and Loans Ltd (2007)10 NWLR (Pt.1043). In other words, a claim for a particular rate of interest cannot betreated with levity of uncertainty and speculation will not help in establishing thatrate of interest. Any claim on a rate of interest, except where concrete agreementbetween the parties is owned up by them or where there is positive and unequivocaladmission by a party, that rate of interest has to be proved by admissible evidence –Veepee Industries Ltd Vs Cocoa Industries Ltd supra. Thus, the Courts treat a claimfor a particular rate of interest as being in the realm of special damages that mustbe specifically pleaded and strictly proved - Union Bank of Nigeria Plc Vs SepokNigeria Ltd (1998) NWLR (Pt 578) 439, African Continental Bank Plc Vs Ndoma-Egba(2000) 8 NWLR (Pt 669) 389, First City Monument Bank Plc Vs. Akanimo (2007)LPELR-CA/L/440/2004. It is for these reasons that some Courts maintain that a claimfor pre-judgment interest should not be entertained under the Undefended ListProcedure - Ekerete Vs United Bank for Africa Plc (2005) 9 NWLR (Pt.930) 401, AdejoVs Ubesie (2012) LPELR-CA/J/288/2007."Per ABIRU, J.C.A. (Pp. 16-19, Paras. D-B) -read in context

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6 JUDGMENT AND ORDER - AWARD OF COST: Whether a successful party in anaction is entitled to costs as of right"On the award of N200,000.00 as cost of instituting and prosecuting the suit, thegeneral position of the law is that a successful party in an action, unless hemisconducts himself, is entitled to costs as of right - Haco Ltd Vs Brown (1973) 4 SC(Reprint) 103, Chijioke Vs Soetan (2006) 10 NWLR (Pt.990) 179."Per ABIRU, J.C.A. (P.20, Paras. B-C) - read in context

7 JUDGMENT AND ORDER - AWARD OF COST: Objective of awarding costs"The objective of awarding costs is not to punish an unsuccessful litigant but it is toserve as an indemnity to compensate a successful party for the expenses to whichhe has been put by having to come to Court, such as expenses incurred for filing theaction, attending Court for the prosecution of the matter, etc - Ladega Vs Akinyuli(1975) 2 SC 91, Olasipe Vs National Bank of Nigeria Ltd (1935) 3 NWLR (Pt 1i) 147,Mbanugo Vs Nzefili (1998) 2 NWLR (Pt.537)."Per ABIRU, J.C.A. (P. 20, Paras. C-E) -read in context

8 JUDGMENT AND ORDER - AWARD OF COST: Ways in which cost can be claimed"Now, cost can be claimed in either of two ways - (i) as a specific relief on the writ ofsummons; or (ii) orally in open Court, as a consequential relief, after the conclusionof the case and entry of judgment. Where cost is claimed as a specific relief on thewrit of summons and in a particular sum, it is in the nature of specific damages thatmust be specifically pleaded and proved - Divine Ideas Ltd Vs Umoru (2007) AllFWLR (Pt.380) 1468, Fortune International Bank Plc Vs City Express Bank Ltd (2012)14 NWLR (Pt.1319) 86. Where it is claimed orally in open Court as a consequentialrelief, at the conclusion of a matter, its award is entirely at the discretion of theCourt."Per ABIRU, J.C.A. (Pp. 20-21, Paras. F-B) - read in context

9 APPEAL - INTERFERENCE WITH THE EXERCISE OF DISCRETION: Circumstancewhich an appellate Court will interfere with the exercise of the discretion of the trialCourt"Going forward and assuming that the specific claim of the Respondent fell withinthe embrace of the discretion of the lower Court to grant, it is a discretion, like anyother discretion, that must be exercised judicially and judiciously based on thecorrect principles of law and where the exercise of the discretion is not judicial orjudicious, and is based on no cause or on flimsy, capricious and unfounded grounds,an appellate Court will interfere - Wurno Vs UAC Ltd (1956) SCNLR 99, Ogundulu VsPhillips (1973) NMLR 267, Shell BP Petroleum Development Company Nigeria Ltd VsCole (1978) 3 SC 183."Per ABIRU, J.C.A. (Pp. 21-22, Paras. E-B) - read in context

10 JUDGMENT AND ORDER - AWARD OF COST: Factors a Court should consider inawarding costs"In awarding costs, a Court is entitled to consider among other factors, the following(a) the summons fee; (b) the duration of the case; (c) legal representation; (d)expenses incurred by the successful party in the ordinary course of prosecuting thecase; (e) the value or purchasing power of the Naira at the time of the award -Onabanjo Vs Ewetuga (1993) 4 NWLR (Pt.288) 443 and Delta Steel Co Ltd VsAmerican Computer Tech Ltd (1999) 4 NWLR (Pt.597) 53."Per ABIRU, J.C.A. (P. 22,Paras. B-D) - read in context

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11 JUDGMENT AND ORDER - AWARD OF COST: Whether the Court must givereasons for its award of cost"Now, since costs should not be punitive, arbitrary and unreasonable, it follows thatwhere a trial Court decides to award cost which is on the high side or which appearpunitive, it must state the reason for doing so African Continental Bank Plc VsNdoma-Egba supra. A Court must give correct and convincing reasons for its awardof costs Nigerian National Petroleum Corporation Vs Klifco Nigeria Ltd (2011) 10NWLR (Pt.1255) 209, Citibank Nigeria Ltd Vs Ikediashi (2014) LPELR-CA/L/556/2008."Per ABIRU, J.C.A. (Pp. 22-23, Paras. F-B) - read in context

12 APPEAL - INTERFERENCE WITH AWARD OF COST: Circumstance when anappellate Court will interfere with an award of cost"The award of the sum of N200,000.00 was outrageously excessive in thecircumstances of this case and the law is that this Court is enjoined to set aside suchan award of costs and order in its place that which is reasonable - Macaulay Vs NALMerchant Bank Ltd (1990) 4 NWLR (Pt.144) 283, Chijioke Vs Soetan supra."PerABIRU, J.C.A. (P. 24, Paras. A-C) - read in context

13 PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Steps to theapplicability of the undefended list procedure"These mean that there are two steps to the applicability of the Undefended Listprocedure and these are (i) there must be no reasonable doubt as to the efficacy ofthe claims of a plaintiff; and (ii) the defendant must not have a plausible defence tothe claim of the plaintiff. The first step must be present before the second step canbe inquired into and where either of them is not present, then the undefended listprocedure cannot be used. In other words, before the defendant can be called uponto depose to an affidavit which must condescend upon particulars and dealspecifically with the plaintiffs claim, the plaintiff has a concomitant duty to first of allsatisfy the Court with an affidavit disclosing credible and reliable facts backed upwith authentic and credible documents which would warrant the Court to give himjudgment where the defendant's affidavit does not disclose facts which would atleast throw some doubt on the plaintiffs case. This is in keeping with the principle ofburden of proof that says that in civil suits, a plaintiff ought to succeed on thestrength of his case and not on the weakness of the defendant's case - AubergineCollections Ltd Vs Habib Nigeria Bank Ltd (2002) 4 NWLR (Pt.757), S.P.D (Nig) Ltd VsArho-Joe (Nig) Ltd (2006) 3 NWLR (Pt.966) 173 and David Vs Jolayemi (2011) 11NWLR (Pt.1258) 320. Where the case of a plaintiff under the undefended list is notunassailable, the question of whether or not the defendant disclosed a defence onthe merits does not arise - Alhaii Muktari Uba & Sons Ltd Vs Lion Bank of Nigeria Plc(2006) 2 NWLR (Pt.964) 288, Nigedan Postal Services Vs Insight EngineeringCompany Ltd (2006) 8 NWLR (Pt.983) 435, Intercontinental Bank Ltd Vs Brifina Ltd(2012) 13 NWLR (Pt.1316) 1."Per ABIRU, J.C.A. (Pp. 14-16, Paras. E-A) - read incontext

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HABEEB ADEWALE OLUMUYIWA ABIRU,J.C.A.(Delivering the Leading Judgment): TheRespondent, as plaintiff, commenced the action in thelower Court against the Appellant, as defendant, and itsclaims were for:i. The sum of N7,952,589.27 being the exact amount whichthe Appellant admitted owing the Respondent as perExhibits MIE and MIH attached to the affidavit in supportof the writ of summons.ii. Interest on the said sum at bank rate of 23% from the 1stof May 2008 to the date of judgment and thereafter at theCourt rate of 10% until final liquidation of the wholeamount.iii. The cost of instituting and prosecuting this suit the itslogical conclusion, which is N200,000.00.

The suit was placed under the Undefended List by an orderof Court made on the 18th of April, 2012 by HonorableJustice Abdullahi Mahmoud Bayero and it was listed as SuitNo K/141/2012 and the matter was listed for hearing on the15th of May, 2012.

The records show that the Appellant filed a notice ofintention to defend dated the 7th of May, 2012 and this wasaccompanied by an affidavit of facts. The lower Court tookarguments on the

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matter and in a considered judgment delivered on the 18th

of June, 2012, it found in favour of the Respondent and it

entered judgment in the following term:

i. The Appellant is hereby ordered to pay to the Respondent

the sum of N7,952,589.27 being the amount owed by the

Appellant from the contract of drilling One No motorized

borehole at Unguwar Gari, Kibiya Local Government, Kano

State which amount remains unpaid till date despite

repeated demands.

ii. Interest at 23% bank rate is here imposed on the

judgment sum of N7,952,589.27 from 1st of May, 2008 till

today 18th of June, 2012 and thereafter at 10% Court rate

until final liquidation of the whole judgment sum.

iii. The Appellant shall pay to the Respondent N200,000.00

as cost of instituting and prosecuting this suit.

The Appellant was dissatisfied with the judgment and it

caused its Counsel to file a notice of appeal dated the 28th

of August, 2012 and the notice of appeal contained two

grounds of appeal. In arguing the appeal before this Court,

Counsel to the Appellant filed a brief of arguments dated

the 21st of October, 2013 on the 1st of November, 2013

while the brief of

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arguments of the Respondent dated the 5th of May, 2015

was filed on the 27th of May, 2015 and the brief of

arguments was deemed properly filed by this Court on the

1st of June, 2015. At the hearing of the appeal, Counsel to

the parties relied on and adopted the arguments contained

in their respective brief of arguments.

Counsel to the Appellant formulated two issues for

determination in this appeal and these were:

i. Whether or not the learned trial Judge rightly entered

judgment on the undefended list which included claims for

interest at bank rate in favour of the Respondent and

against the Appellant.

ii. Whether or not the learned trial Judge rightly awarded

the sum of N200,000.00 as cost in favour of the

Respondent.

Counsel to the Respondent agreed that there were indeed

two issues for determination in the appeal, but he

reformulated the issues thus:

i. Whether the lower Court was right in entering judgment

under the Undefended List Procedure.

ii. Whether the lower Court was right in awarding interest

and cost as claimed by the Respondent.

Now, it is elementary in an appeal that issues for

determination must be

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distilled from, related to and be founded on the grounds of

appeal contained in the notice of appeal and must deal with

matters which are direct challenge to the decision of the

lower Court. Any issue for determination formulated

outside the grounds of appeal and which does not deal with

matters directly challenging the decision of the lower Court

is of no use in an appeal and it will irrelevant and be struck

out - Shipcare Nigeria Limited, Owners of the "M/T

African Hyacinth" Vs The Owners of the "M/V

Fortunato" (2011) 7 NWLR (Pt.1246) 205, Ebute Vs

Union Bank of Nigeria Plc (2012) 2 NWLR (Pt.1284)

254, Odusote Vs Odusote (2012) 3 NWLR (Pt.1288)

478, and Okechukwu Vs Independent National

Electoral Commission (2014) 17 NWLR (Pt.1436) 255.

A read through the two grounds of appeal contained in the

Appellant's notice of appeal shows that they were not

directed at the entire judgment of the lower Court, but at

the part of the judgment. They complained against the

award of interest on the sum of N7,952,589.27 at bank rate

of 23% from the 1st of May 2008 to the date of judgment

and also against the award of the sum of N200,000.00 as

cost for the institution and

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prosecution of the suit. The two grounds of appeal did not

question the judgment entered in favour of the Respondent

in the sum of N7,952,589.27 and neither did they contest

the award of interest of 10% on the sum from date of

judgment until final liquidation.

Thus, the two issues for determination in this appeal are:

i. Whether the lower Court was correct when it granted the

claim of the Respondent for interest on the sum of

N7,952,589.27 at bank rate of 23% from the 1st of May

2008 to the date of judgment.

ii. Whether the lower Court was correct when it granted

the claim of the Respondent for the sum of N200,000.00 as

cost for instituting and prosecuting the action.

This appeal will be resolved on these two issues for

determination and the two issues will be considered

together.

In arguing the first issue for determination, Counsel to the

Appellant referred to the provisions of Sections 137 of

the Evidence Act on burden of proof and stated that the

Respondent had the burden of first proving his case by

credible evidence before the burden would shift to the

Appellant and that the same principle applies in a case

under the undefended

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list and he referred to the cases of Odu Vs Agbor-

Hemesor (2004) FWLR (Pt.188) 935 and Chrisdon

Industrial Ltd Vs AIB Ltd (2002) FWLR (Pt 128) 1355.

Counsel stated that for a claim of interest to properly exist

for determination in a Court of law, the grounds upon

which the claim is based must be clearly stated and the

claimant must plead facts which show that he is entitled to

such interest and the affidavit, in a case under the

undefended list, must disclose proof of entitlement to

interest and he referred to the cases of International

Trust Bank Plc Vs Kantal Hairu Co Ltd (2006) All

NWLR (Pt .292) 116 and NSC Ltd Vs Mojec

International Ltd (2005) AII FWLR (Pt.262) 476.

Counsel stated that the Appellant did not aver any fact

entitling it to the claim of interest at 23% bank rate on the

contract sum and did not prove any such entitlement by

way of affidavit or documentary evidence and the lower

Court was thus in error when it awarded the interest as

claimed. Counsel reproduced the claims of the Appellant

and reiterated that no single paragraph in the affidavit in

support of the claims talked about a claim for interest and

that none of the exhibits provided

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the right to such claim of interest and he stated that the

case was on all fours with the case of Himma Merchants

Ltd Vs Aliyu (1994) 6 SCNC 87 and he quoted

extensively from the case and referred to several other

cases. Counsel stated that the lower Court ought not to

have entered judgment on the claim for interest under the

undefended list and he urged this Court to resolve the issue

for determination in favour of the Appellant.

On the second issue for determination, Counsel stated that

the Respondent did not plead or prove any fact entitling it

to the claim for N200,000.00 as cost of the action and that

nowhere in the affidavit in support of the claim did the

Respondent make any averment or adduce any evidence in

support of the claim and that a claim for costs is in the

nature of special damages that must specifically pleaded

and strictly proved and he referred to the case of Divine

Ideas Ltd Vs Umoru (2007) All FWLR (Pt 380) 1468.

Counsel stated that if we were to follow the path that says

that a Court of law always has an unfettered discretion to

award cost to a successful party, it is a discretion that must

be exercised judicially and judiciously

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and cost follows event and is not awarded as a punitive

measure against the losing party nor as a bonus for the

successful party and he referred to the case of Nigerian

Bank for Commerce and Industry Vs Alfijir (Mining)

Nigeria Ltd (1999) 11-12 SCNJ 294. Counsel stated that

it is on record that the entire cost expended by the

Respondent in commencing the action was N5,074.00 and

that no other evidence was placed before the lower Court

on the expenses incurred, and that though an appellate

Court does not interfere with the way a trial Court

exercised its discretion, where it is shown, as in the instant

case, that the discretion was wrongly exercised, the

appellate Court will not hesitate to interfere in such

exercise of discretion and he referred to the case of NNPC

Vs Clifco Nig Ltd (2011) All FWLR (Pt.583) 1875.

Counsel urged this Court to also resolve this issue in favour

of the Appellant.

In his response, Counsel to the Respondent stated that the

claims for interest and costs were as a result of the attitude

of the Appellant in holding the Respondent's money without

justification and that in one of the correspondences

exchanged between the

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parties, Exhibit MIF, the Respondent complained to the

Appellant that it took a bank loan and indicated that it was

going to Court to claim the contract sum together with

interest and it put the amount due as N14,309,644.00 and

that the letter was neither replied nor its contents

challenged and that documents attached to an affidavit

form part of the affidavit and he referred to the case of

Gbehe vs Ali-One (2000) 11 NWLR (Pt.578) 294.

Counsel stated that in the affidavit in support of the notice

of intention to defend, the Appellant did not contest the

paragraph of the affidavit in support of the claim wherein

Exhibit MIF was referred to and that this meant that

Appellant admitted that the Respondent was going to claim

interest. Counsel stated that it was incumbent on a

defendant in an action under the undefended list procedure

to file in affidavit condescending upon particulars

contesting the claim of a plaintiff and that a mere general

denial of a plaintiff�s claim was not sufficient and he

referred to the case of Aso Motel Ltd Vs Deyemo (2006)

4 JNSC (Pt.13) 218. Counsel stated that the

circumstances entitling the Respondent to the award of

interest

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were explicitly narrated in paragraph 4, 5 and 6 of the

affidavit in support of the claims and he referred to the

cases of Petgas Resources Ltd Vs Mbanefo (2006) All

FWLR (Pt.337) 471 and GFK Investments (Nig) Ltd vs.

Nigeria Telecommunications Plc (2009) 45 STRN 36

on the instances that a claim for interest can be made as of

right and stated that there was a contract between the

parties and there was a mercantile usage on the

contractual project and that the Appellant kept the

Respondent out of its money for long and had the use of it

to itself and so the Respondent ought to be compensated by

damages. Counsel stated that the lower Court was right

with the award of interest and that the issue should be

resolved in favour of the Respondent.

On the second issue for determination, Counsel stated that,

by our law, cost follows events and that a successful party

is entitled to costs and that the award of costs is at the

discretion of the Court and the exercise of which discretion

is based on settled principles. Counsel stated that in the

instant case the Appellant breached the terms of the

express contract between the parties when it refused to pay

the

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Respondent the agreed contract sum and that, in instances

of such breach of contract, a trial Court has a duty to

restore the injured party, as far as monetarily possible, to

the position he would have been put but for the breach.

Counsel stated that a successful party should not be denied

costs unless for good reasons and that in awarding costs, a

trial Court should look at the verdict and the conduct of the

parties to see if either of them had in any way involved the

other unnecessarily in the expense of litigation and that in

the instant case, the Appellant refused to pay the

Respondent the contract sum until after compelling it to

embark on an unnecessary litigation. Counsel referred to

the provisions of Order 53 Rules 3, 6 and 7 of the Kano

State High Court Rules on costs and stated that part of the

facts that the Court will look at in awarding costs is the

cost of hiring a legal practitioner and having failed to do

equity by paying the Respondent the contractual sum as

and when due, the Appellant's hands were not clean and it

cannot thus enjoy the exercise of the equitable discretion in

its favour. Counsel urged this Court to resolve the second

issue for

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determination also in favour of the Respondent.

This action was listed under the Undefended List

Procedure. The provisions of the High Court of Kano State

Rules relating to the Undefended List provide a summary

judgment procedure. The whole purpose of a summary

judgment procedure is to ensure justice to a plaintiff and

minimize delay where there is obviously no defence to his

claim and thus prevent the grave injustice that might occur

through a protracted and immensely frivolous litigation. It

is to prevent sham defence from defeating the right of a

plaintiff by delay and thus causing great loss to a plaintiff.

In other words, the summary judgment rules are specially

made to help the Court achieve their primary objective, i.e.

to do justice to the parties by hearing their cases on the

merit with utmost dispatch and prevent the frequent outcry

that justice delayed is justice denied - United Bank for

Africa Plc Vs Jargaba (2007) 11 NWLR (Pt 1045) 247,

University of Benin Vs Kraus Thompson Organisation

Ltd (2007) 14 NWLR (Pt.1055) 441, Wem a Securities

and Finance Plc Vs Nigerian Agricultural Insurance

Corporation (2015) 16 NWLR (Pt.1484)

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93.

Speaking on the essence of the Undefended List procedure,

this Court in its unreported judgment in Appeal

No.CA/K/131/2010 - Samabey International

Communications Ltd Vs Celtel Nigeria Ltd (Trading as

Zain) delivered on the 26th of April, 2013 stated thus:

"It is pertinent to state that the provisions on undefended

list in the High Court of Kano State (Civil Procedure) Rules

are adjunct to the course of justice. They are rules of Court

touching on the administration of justice and the procedure

is simply designed to ensure speedier attainment of justice

with ease, certainty and dispatch, when it is abundantly

clear that the defendant has absolutely no defence to the

plaintiffs case. The undefended list procedure is a specie of

summary judgment evolved by the rules of Court for the

speedy disposal of otherwise uncontested cases and where

there is no reasonable doubt as to the efficacy of the

plaintiffs claims and it would be most unconscionable to

oblige an otherwise liable defendant the opportunity to

employ mere subterfuge to dribble his opponent and the

Court just for the purpose of stalling proceedings and

cheating the plaintiff out of reliefs to

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which he ordinarily would have been entitled - Imoniyame

Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4

NWLR (Pt 1185) 561, G. M. O. Nworah &Sons Co Ltd

Vs Afam Akputa Esq (2010) 9 NWLR (Pt 1200) 443,

Babale Vs Eze (2011) 11 NWLR (Pt.1257) 48, David Vs

Jolayemi (2011) 11 NWLR (Pt.1258) 320."

Also in Okoli Vs Morecab Finance (Nig) Ltd (2007) 14

NWLR (Pt 1057) 37 at page 70 paragraph C, the

Supreme Court stated:

"…the rules as regards matters placed under the

undefended list is designed to enable a plaintiff to obtain

summary judgment without trial in those cases where the

plaintiffs case is unassailable (as in the instant case) see

Cow Vs Casey (1949) 1 KB 474 and the defendant cannot

show a defence which will lead to a trial on its merits."

These mean that there are two steps to the applicability of

the Undefended List procedure and these are (i) there must

be no reasonable doubt as to the efficacy of the claims of a

plaintiff; and (ii) the defendant must not have a plausible

defence to the claim of the plaintiff. The first step must be

present before the second step can be inquired into and

where either of them is not present, then

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the undefended list procedure cannot be used. In otherwords, before the defendant can be called upon todepose to an affidavit which must condescend uponparticulars and deal specifically with the plaintiffs claim,the plaintiff has a concomitant duty to first of all satisfythe Court with an affidavit disclosing credible andreliable facts backed up with authentic and credibledocuments which would warrant the Court to give himjudgment where the defendant's affidavit does notdisclose facts which would at least throw some doubt onthe plaintiffs case. This is in keeping with the principleof burden of proof that says that in civil suits, a plaintiffought to succeed on the strength of his case and not onthe weakness of the defendant's case - AubergineCollections Ltd Vs Habib Nigeria Bank Ltd (2002) 4NWLR (Pt.757), S.P.D (Nig) Ltd Vs Arho-Joe (Nig)Ltd (2006) 3 NWLR (Pt.966) 173 and David VsJolayemi (2011) 11 NWLR (Pt.1258) 320. Where thecase of a plaintiff under the undefended list is notunassailable, the question of whether or not thedefendant disclosed a defence on the merits does notarise - Alhaji Muktari Uba & Sons Ltd Vs Lion Bankof

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Nigeria Plc (2006) 2 NWLR (Pt.964) 288, NigedanPostal Services Vs Insight Engineering CompanyLtd (2006) 8 NWLR (Pt.983) 435, IntercontinentalBank Ltd Vs Brifina Ltd (2012) 13 NWLR (Pt.1316)1.

The question begging for answer in this appeal iswhether the claims of the Respondent for interest atbank rate of 23% on the contract sum of N7,952,589.27from 1st of May, 2008 till 18th of June, 2012, date ofjudgment and for the sum of N200,000.00 as cost ofinstituting and prosecuting this suit were unassailable,in the circumstances of this case, as to entitle theRespondent to them under the undefended listprocedure.

The interest at bank rate of 23% on the contract sum ofN7,952,589.27 from 1st of May, 2008 till date ofjudgment was pre judgment interest and the generalrule at common law is that pre judgment interest is notpayable on a debt or loan in the absence of expressagreement or some course of dealing or custom to thateffect. Thus, pre judgment interest will, be payablewhere there is an express agreement to that effect andsuch agreement may be inferred from a course ofdealing between the parties or where an obligation topay interest

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arises from the common practice or usage of a particular

trade or business or under a principle of equity such as

breach of a fiduciary duty - Alfontrin Ltd Vs Attorney

General, Federation (1996) 9 NWLR (Pt 475) 634,

Veepee Industries Ltd Vs Cocoa Industries Ltd (2008)

NWLR (Pt.1105) 486, Diamond Bank Ltd Vs

Partnership Investment Co Ltd (2009) 18 NWLR

(Pt.1172) 67. Consequentially, a plaintiff, in order to

succeed in a claim for pre judgment interest, must show

how the entitlement to such interest arose, that is whether

by law, by contract or agreement or he must plead facts

showing that the claim is part of the loss or special

damages which the defendant's wrong imposed on him. It is

not enough to merely say that the plaintiff is claiming

interest. The basis of the claim of interest must be made

manifest on the pleadings - Ekwunife Vs Wayne (W.A.)

Ltd (1989) 2 NWLR (Pt.122) 422, Himma Merchants

Ltd Vs Aliyu (1994) 5 NWLR (Pt.347) 667, Sani

Abacha Foundation for Peace & Unity Vs United Bank

for Africa Plc (2010) 17 NWLR (Pt.1221) 192, Wema

Securities and Finance Plc Vs Nigerian Agricultural

Insurance Corporation (2015) 16 NWLR (Pt.1484) 93.

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Additionally, where a particular rate of interest is claimed,

the law is that the rate of interest is dependent on the

agreement between the parties or established by custom or

consent of the parties and it is the duty of the person

claiming a particular rate of interest to prove it - Ishola Vs

Societe Generale Bank of Nigeria Ltd (1997) 2 NWLR

(Pt.488) 405, Suberu Vs Atiba Iyalamu Savings and

Loans Ltd (2007) 10 NWLR (Pt.1043). In other words, a

claim for a particular rate of interest cannot be treated

with levity of uncertainty and speculation will not help in

establishing that rate of interest. Any claim on a rate of

interest, except where concrete agreement between the

parties is owned up by them or where there is positive and

unequivocal admission by a party, that rate of interest has

to be proved by admissible evidence – Veepee Industries

Ltd Vs Cocoa Industries Ltd supra. Thus, the Courts

treat a claim for a particular rate of interest as being in the

realm of special damages that must be specifically pleaded

and strictly proved - Union Bank of Nigeria Plc Vs

Sepok Nigeria Ltd (1998) NWLR (Pt 578) 439, African

Continental Bank Plc Vs Ndoma-Egba

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(2000) 8 NWLR (Pt 669) 389, First City Monument

Bank Plc Vs. Akanimo (2007) LPELR-CA/L/440/2004.

It is for these reasons that some Courts maintain that a

claim for pre-judgment interest should not be entertained

under the Undefended List Procedure - Ekerete Vs United

Bank for Africa Plc (2005) 9 NWLR (Pt.930) 401,

Adejo Vs Ubesie (2012) LPELR-CA/J/288/2007.

In the instant case, reading through the entire affidavit of

facts filed by the Respondent in support of its claims and

the counter affidavit it filed in response to the Appellant's

notice of intention to defend, nowhere therein was any fact

deposed to on entitlement of the Respondent to pre

judgment interest on the contract sum and neither did the

Respondent aver any fact as the basis for its claim for 23%

banker rate, not being a bank, as the applicable rate of

interest. There was no basis in the case made out by the

Respondents before the lower Court justifying the award of

interest at bank rate of 23% on the contract sum of

N7,952,589.27 from 1st of May, 2008 till date of judgment.

The award is baseless and it is liable to be set aside. This is

similar to what happened in the case of Wema

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Securities and Finance Plc Vs Nigerian Agricultural

Insurance Corporation (2015) 16 NWLR (Pt.1484) 93.

The first issue for determination is resolved in favour of the

Appellant.

On the award of N200,000.00 as cost of instituting and

prosecuting the suit, the general position of the law is that

a successful party in an action, unless he misconducts

himself, is entitled to costs as of right - Haco Ltd Vs

Brown (1973) 4 SC (Reprint) 103, Chijioke Vs Soetan

(2006) 10 NWLR (Pt.990) 179.

The objective of awarding costs is not to punish an

unsuccessful litigant but it is to serve as an indemnity to

compensate a successful party for the expenses to which he

has been put by having to come to Court, such as expenses

incurred for filing the action, attending Court for the

prosecution of the matter, etc - Ladega Vs Akinyuli

(1975) 2 SC 91, Olasipe Vs National Bank of Nigeria

Ltd (1935) 3 NWLR (Pt 1i) 147, Mbanugo Vs Nzefili

(1998) 2 NWLR (Pt.537).

Now, cost can be claimed in either of two ways - (i) as a

specific relief on the writ of summons; or (ii) orally in open

Court, as a consequential relief, after the conclusion of the

case and entry of judgment. Where cost is

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claimed as a specific relief on the writ of summons and in a

particular sum, it is in the nature of specific damages that

must be specifically pleaded and proved - Divine Ideas Ltd

Vs Umoru (2007) All FWLR (Pt.380) 1468, Fortune

International Bank Plc Vs City Express Bank Ltd

(2012) 14 NWLR (Pt.1319) 86. Where it is claimed orally

in open Court as a consequential relief, at the conclusion of

a matter, its award is entirely at the discretion of the Court.

In the instant case, the Respondent claimed cost in the

specific sum of N200,000.00 as an item of claim on the writ

of summons and its claim was thus in the nature of special

damages. The Respondent did not state any fact in either

its affidavit of facts filed in support of its claims or in its

counter affidavit filed in response to the Appellant's notice

of intention to defend upon which the claim was predicated.

Going forward and assuming that the specific claim of the

Respondent fell within the embrace of the discretion of the

lower Court to grant, it is a discretion, like any other

discretion, that must be exercised judicially and judiciously

based on the correct principles of law and where the

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exercise of the discretion is not judicial or judicious, and is

based on no cause or on flimsy, capricious and unfounded

grounds, an appellate Court will interfere - Wurno Vs UAC

Ltd (1956) SCNLR 99, Ogundulu Vs Phillips (1973)

NMLR 267, Shell BP Petroleum Development

Company Nigeria Ltd Vs Cole (1978) 3 SC 183.

In awarding costs, a Court is entitled to consider among

other factors, the following (a) the summons fee; (b) the

duration of the case; (c) legal representation; (d) expenses

incurred by the successful party in the ordinary course of

prosecuting the case; (e) the value or purchasing power of

the Naira at the time of the award - Onabanjo Vs Ewetuga

(1993) 4 NWLR (Pt.288) 443 and Delta Steel Co Ltd

Vs American Computer Tech Ltd (1999) 4 NWLR

(Pt.597) 53.

And the party making the request for costs must itemize his

realistic or necessary expenses arising from the suit in its

request for costs and the Court will assess the appropriate

quantum to award as costs based on the itemized expenses

- Akinbobola Vs Plisson Fisco Nigeria Ltd (1991) 1

NWLR (Pt.167) 270, Layinka Vs Makinde (2002) 5-6

SCNJ 77.

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Now, since costs should not be punitive, arbitrary and

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unreasonable, it follows that where a trial Court decides to

award cost which is on the high side or which appear

punitive, it must state the reason for doing so African

Continental Bank Plc Vs Ndoma-Egba supra. A Court

must give correct and convincing reasons for its award of

costs Nigerian National Petroleum Corporation Vs

Klifco Nigeria Ltd (2011) 10 NWLR (Pt.1255) 209,

Citibank Nigeria Ltd Vs Ikediashi (2014) LPELR-

CA/L/556/2008.

In the instant case, apart from the fact that neither in its

affidavit of facts nor in its counter affidavit filed in response

to the Appellant's notice of intention to defend did the

Respondent depose to any fact in support of his claim for

costs, the records also show that at no time did the Counsel

to the Respondent itemize the expenses incurred in

instituting and prosecuting the suit. The Respondent did

not thus provide any basis for the lower Court to assess the

quantum of costs to be awarded. The records show that the

lower Court did not state the basis for the award of

N200,000.00 as costs and neither did it give any reason for

awarding that sum as costs. The records show that the

summons fee paid by the

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Respondent was N5,074.00 and that the duration of the

matter was barely two months spanning over three

adjournments. Thus, there was nothing on the records

justifying the award of N200,000.00 as costs. The award of

the sum of N200,000.00 was outrageously excessive in the

circumstances of this case and the law is that this Court is

enjoined to set aside such an award of costs and order in its

place that which is reasonable - Macaulay Vs NAL

Merchant Bank Ltd (1990) 4 NWLR (Pt.144) 283,

Chijioke Vs Soetan supra. The award of N200,000.00 as

cost of instituting and prosecuting the suit will thus be set

aside. In its place, this Court, taking into consideration the

summons fee and the duration of the matter, will award the

sum of N10,000.00 as costs to the Respondent. The second

issue for determination is resolved in favour of the

Appellant.

In conclusion, this Court finds merits in this appeal and it

hereby succeeds. The awards of interest at 23% bank rate

on the judgment sum of N7,952,589.27 from 1st of May,

2008 till 18th of June, 2012 and of the sum of N200,000.00

as cost of instituting and prosecuting the suit made by the

High Court of Kano State in favour

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of the Respondent in its judgment in Suit No K/141/2012

delivered by Honorable Justice Abdullahi Mahmoud Bayero

on the 18th of June, 2012 are hereby set aside. The

Respondent is, instead, awarded the sum of N10,000.00 as

its cost for instituting and prosecuting the suit in the lower

Court. These shall be the orders of this Court and the

parties shall bear their respective costs of this appeal.

UWANI MUSA ABBA AJI, J.C.A.: I have had the privilege

of reading in draft the leading judgment of my learned

brother, H. A. O. Abiru, JCA, just delivered.

I agree with the reasoning and conclusion of my learned

brother that the appeal has merit and it is hereby allowed.

Accordingly, the judgment of the lower Court delivered on

the 18/6/2012 is hereby set aside. I abide by the

consequential order as to costs.

AMINA AUDI WAMBAI, J.C.A.: I have had the privilege

of reading in draft the judgment just delivered by my

learned brother Habeeb Adewale Olumuyiwa Abiru,

JCA, I agree with the reasoning and conclusion reached

that the appeal succeeds and is to be allowed. I also abide

by the cost

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awarded in the leading Judgment.

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