BARCLAYS BANK D.C.O. (PLAINTIFFS)
YESUFU ALABI ADIGUN (DEFENDANT)
(1962) N.N.L.R.40 (1961) All N.L.R. 557
Division: High Court (North)
Date of Judgment: 1st July, 1961
Case Number: No. JD/15/1961
Before: Smith, S.P. J.
The plaintiffs brought this action for (1) £3,989-9s-8d money due from the defendant to the plaintiffs (2) Interest thereon at 5 per cent per annum from date of Judgment, pursuant to Order XLVI, rule 7 of the Supreme Court (Civil Procedure) Rules and (3) An order requiring the defendant to execute a legal mortgage pursuant to an undertaking he had given to the plaintiffs.
It appeared on the undefended list. The defendant admitted liability on item (1) of the claim and Judgment was entered for the full amount claimed in that item. He was given leave to defend items (2) and (3).
Item (3) was withdrawn by the plaintiffs and struck out and the only issue tried was item (2); the claim for interest on the Judgment.
The defendant contended that the plaintiffs were not entitled to interest after Judgment under Order XLVI, rule 7.
The plaintiffs argued that Order XLVI, rule 7 gave the court two distinct independent powers, to wit, (1) the power to direct the time within which the Judgment should be paid and (2) the power to order payment of interest on the Judgment debt. Their application, they said, was under the second power so conferred by the rule.
Under Order XLVI, rule 7 of the Supreme Court (Civil Procedure) Rules, the High Court cannot order the payment of interest on a Judgment debt, except when it directs the time within which the Judgment is to be paid.
Judgment for the Defendant on the claim for interest on Judgment debt.
Act referred to:-
Judgments Act, 1838, (1 and 2 Vict. C. 110) section 17.
Orders and rules referred to:-
Supreme Court (Civil Procedure) Rules, Order LXVI, rule 7.
Rules of the Supreme Court of Judicature (England), Order 42, rule16.
Grant for the Plaintiffs.
Agbakoba for the Defendant.
Smith, S.P.J.:-In this action the plaintiff claimed from the defendant:-
(1) The sum of £3,989-9s-8d as money due from defendant on a bank overdraft.
(2) Interest thereon at 5 per cent per annum from date of Judgment pursuant to Order XLVI, rule 7 of our Civil Procedure Rules.
(3) An order requiring the defendant to execute a legal mortgage pursuant to his undertaking, to do so in a Memorandum of Deposit of Deed dated 30th October, 1956
Initially, the action appeared in the undefended list. On 10th March, 1961, the defendant admitted liability on item (1) of the claim and Judgment was entered against him for the sum of £3,989-9s-8d. He was given leave to defend items (2) and (3) of the claim; and pleadings were filed in due course.
Item (3) of the claim has been withdrawn and struck out at the instance of the plaintiff.
There remains item (2) of claim. The defendant has averred that the plaintiff is not entitled to interest after Judgment under Order XLVI, rule 7.
Mr Grant for the plaintiffs has submitted that by Order XLVI rule 7, the court has a discretion to order interest to be paid and in support has cited authorities on the practice in England and in particular Order 42, rule 16 of the English Rules at 1010 of Annual Practice, 1961.
In England a Judgment ordering payment of a sum of money carries interest by virtue of section 17 of the Judgments Act, 1838, Order 42, rule 16 provides for the procedure of indorsing the writ of execution for recovery of the Judgment debt and interest thereon from the date of Judgment, if sought to be recovered.
In the matter now before me Counsel has not shown any similar statutory authority in Nigeria for the recovery of interest on a Judgment debt. I have been referred to Order XLVI, rule 7 of our Civil Procedure Rules. The rule reads:-
The court at the time of making any Judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done, reckoned from the date of the Judgment or order, or from some other point of time, as the court thinks fit, and may order interest at a rate not exceeding five pounds per centum per annum to be paid upon any Judgment, commencing from the date thereof afterwards.
Mr Agbakoba for the defendant has submitted that this rule only gives the court a discretion to order interest to be paid on a Judgment debt when the court grants time within which to pay a Judgment debt.
Mr Grant has argued that the rule gives the court two distinct powers each independent of the other: (1) the power to direct the time within which a Judgment debt is to be paid: (2) the power to order interest to be paid upon any Judgment debt.
If each of these powers were set out in a separate rule I would be inclined to agree with Mr Grant's submission. But they are not. It is one rule not two. And it will be observed that rule 7 consists of a single sentence. By the normal canons of construction that sentence must be read as a whole, each part of it being dependent upon the other. When so read, it means that the court may grant time within which to pay a Judgment debt and may when making such an order also order interest to be paid thereon from date of Judgment or afterwards, but not otherwise. I therefore enter Judgment for the defendant on item (2) of the claim.
Judgment for Defendant on claim for interest on Judgment debt.