Sen. Abiru’s Bill On Pre – Judgment Interest In Commercial Transaction Regulation Scales Second Reading

Wale Jagun

Sen. Tokunbo Abiru presenting his bill on the floor of the Senate Chamber.

The Federal High Court Act (Amendment) Bill, 2021, sponsored by the Chairman, Senate Committee on Industries, Senator Mukhail Adetokunbo Abiru, FCA, on Wednesday (yesterday), scaled second reading.

Abiru led a debate on the bill he sponsored which seeks to regulate the award of Pre – judgment interest in commercial transactions which was read for the first time yesterday. 

The bill titled, ‘Federal High Court Act (Amendment) Bill, 2021, was sponsored by Senator Abiru and co-sponsored by Senator Michael Opeyemi Bamidele (Ekiti Central).

According to a statement released on Thursday, by Mr Enitan Olukotun, Special Adviser to Senator Tokunbo Abiru (Media and Publicity), the bill seeks to amend the Federal High Court Act to cure the shortcomings inherent in the Principal Act to make provisions for the regulation of the award of prejudgment interest to ensure the attainment of substantial justice, particularly in relation to claims bothering on commercial transactions.

In his lead debate, Senator Abiru argued that it is time the law regulating pre-judgment interest is amended.

He highlighted the shortcomings of the existing law saying, “No doubt, real economic value would have been lost on those judgment sums by the time of judgment, given the high inflationary trend that permeates our economy”.

“Take for instance, the 2019 decision of the Supreme Court in Julius Berger (Nig.) Plc vs. T.R.C.B. Ltd (2019) 5 NWLR (Pt. 1665) p. 291 where, though, the claim on the principal sum succeeded, the Supreme Court held that the claimant was not entitled to pre-judgment interest because the claimant had failed to show any custom, agreement or statute under which it founded its claim of interest”, Abiru argued.

“Mr. President, distinguished colleagues, in commercial claims, particularly the ones for recovery of debts, the claimant should ordinarily be entitled to pre-judgment interest on the principal debt sum should he succeed in his claim”, the former bank chief added.

“However, entitlement to such a pre-judgment interest is not as easy as it seems, at least, as far as the numerous decisions of our appellate courts are concerned.

“Presently in Nigeria, there is no statutory law which regulates the award of pre-judgment interest. Nigerian courts, up till date, still have recourse to the English common law practice as a guide in their award of pre-judgment interest.

“The common law practice is to the effect that such interest can only be claimed as of right where it is contemplated by the agreement of the parties, or under a mercantile custom or under a principle of equity. This is no doubt, a very herculean task for the claimants to overcome, as a great number of decided cases in Nigeria have shown’’.

The Co-sponsor of the bill, Senator Bamidele, while supporting the bill, emphasised that:

“The very essence of this bill is to fill an obvious lacuna in our laws. Our courts, including the Federal High Courts, have continued to hold that there is no legal basis for them to take decisions that will help preserve the real economic value of judgement debts because there is no legal position that empowers them to avoid prejudgment interests”, Sen. Bamidele said.

“Nigeria is not a strange peculiarity, that had been the case in several common law countries around the world, including the United Kingdom. But by virtue of 1934 legislation, the United Kingdom took care of this situation by conceding to judges the discretion of being able to avoid pre-judgment interest. That is what the law is seeking to do for Nigeria.

“So that we are not left behind in the developed and developing common law countries and provide impetus to our judges to be able to exercise unfettered discretion based on very clear legal decisions.  I want to strengthen the hands of judges and our courts to avoid and preserve pre-judgment interest which is what will speak to the real economic value”.

Senator Ibrahim Hadejia (Jigawa North East) also supported the bill.

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