G.m.o. Nworah & Sons Co. Ltd V. Afam Akputa (2010)

LAWGLOBAL HUB Lead Judgment Report

J.A. FABIYI, J.S.C.

This is an appeal against the judgment delivered by the court of Appeal, Enugu Division (court below for short) on 19th June, 2006 in respect of an appeal and cross appeal by the parties against the judgment of Ozoemena, J. of the High Court of Justice, Enugu delivered on 19th April, 2004.

The case at the trial court was a suit filed in the undefended list by the respondent as plaintiff thereat. He claimed the sum of =N=7, 555,000:00 against the appellant as professional fees for services allegedly rendered for the benefit of the defendant – appellant herein.

Upon being served with the writ of summons, the defendant filed a notice of preliminary objection challenging the locus standi of the plaintiff to institute and maintain the action. The trial judge was addressed by counsel on the preliminary objection and application for judgment under the undefended list. In his judgment handed out on 19th April, 2004, he dismissed the preliminary objection. As a follow up, he granted in part the plaintiffs’ application under the undefended list by awarding him =N=800,000.00 with 2% interest out of the =N=7,555,000:00 as he felt that ‘the fees to be paid must be reasonable in the circumstances’.

Both parties felt unhappy with the stance posed by the trial judge. The defendant appealed and the plaintiff, as well, cross-appealed to the court below. On 19th June, 2006, the court below dismissed the appellant’s appeal and allowed the respondent’s cross-appeal. The court below dismissed the appellant’s appeal and allowed the respondent’s cross-appeal. The court below awarded the respondent the sum of =N= 6,750.000:00 with 3% interest being the remainder or part of the cross-appellant’s claim at the trial court which was not granted thereat.

The appellant felt irked with the decision of the court below and has appealed to this court. He sought the leave of this court to raise new issues and filed four (4) additional grounds of appeal in respect of same.

On 7th December, 2009 when this appeal was heard, briefs of argument were adopted by both sides of the divide. The three (3) issues couched for determination of the appeal by the appellant read as follows:-“ISSUE NO. 1

Whether the respondent has the locus standi to institute the action at the High Court of Enugu State so as to confer the court with the jurisdiction to hear and determine the claim.

ISUE NO. 2

Whether, in all the circumstances of this case the suit filed by the respondent at the trial court satisfied necessary conditions of a suit that can be placed and determined under the undefended list.

ISSUE NO.3

Whether the court below was right in an undefended list claim for =N=7,555,000.00 to set aside the award of =N=800,000.00 with 2% interest granted respondent by the trial court and substitute same with an award of =N=6,750,000.00 with 3% interest as remainder of the sum not granted by the trial court.”

The respondent also distilled three issues for determination of the appeal. They read as follows:-

“1. Must respondent comply with Order 34 Rule 5 of High Court of Anambra State (Civil Procedure) Rule 1988, applicable in Enugu State in Order to establish the requisite locus standi necessary to sustain the claim herein

2. Whether the claim at the trial court satisfied the necessary conditions for a suit that ought to be placed and determined under the undefended list.
3. Whether the court below was right to have awarded =N=6,750,000.00 (six Million Seven Hundred and Fifty Thousand Naira) with 3% interest to the respondent.”

At this point, it is apt to start with the consideration of issue 2 as decoded by both parties. They both agree that this issue is whether the claim at the trial court satisfied the necessary conditions for a suit that ought to be placed under the undefended list.

On behalf of the appellant, learned counsel submitted that if the respondent has the requisite locus standi to initiate the suit at the trial court, the suit, as constituted, ought not to have been heard and determined under the undefended list. Learned counsel contended that the respondent’s claim as contained in Exhibit F, his ‘Bill of charge’ was not for liquidated debt, money demand or damages. He cited the case of U.T.C. (Nig) Limited v. Pamotie (1989) 2 NWLR (Pt.103) 244 at 299.

The respondent felt that since he worked for the appellant, the sum claimed by him was for a ‘debt’ and such liability need not be arithmetically ascertained. He maintained that he was entitled to apply to the court for recovery of the ‘debt’ under the undefended list procedure. He cited the case of Akinnuli v. Odugbesan (1992) 8 NWLR (Pt.258) 172 at 188.

Let me say it here pointedly that the undefended list proceeding is meant to shorten the hearing of a suit where the claim is for a liquidated sum. It is designed to avoid the intricacies of pleadings in a normal hearing in our trial courts. In recent times, its employment has been subject of abuse. Such should not be the case.

What then is a liquidated ‘sum’ or ‘damages’. Blacks Law Dictionary (6th Edition) at page 391 says that ‘damages’ is said to be liquidated when a specific sum of money has been expressly stipulated by the parties to a bond or other contract as the amount of damages to be recovered by either party for a breach of the agreement by the other side. Stein v. Bruce 366 S.W. 2d 732, 735. The term is applicable when the amount of the damages has been ascertained by the judgment in the action.

In Maja v. Samouris (2002) 7 NWLR (Pt.765) 78 at page 102, this court by Iguh, JSC pronounce thus:-

“A liquidated demand is a debt or specific sum of money usually due or payable and its amount must be already ascertained or capable of being ascertained as a matter of arithmetic without any other or further investigation. Whenever therefore the amount to which plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be liquidate or made clear. Again, where the parties to a contract as part of the agreement between them fix the amount payable on the default of one of them or in the event of breach by way of damages such sum is classified as liquidated damages where it is classified as liquidated damages where it is the nature of genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a penalty and it is payable by the party in default.”

Earlier on, in the case of Eko Odume v. Ume Nnachi (1964) 1 All NLR 324 at page 328, this court per Idigbe, JSC pronounced thus:-

“whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data it is said to be liquidated or made clear. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate the damages are said to be unliquidated.”

It is clear and beyond tenable argument that the factors for determination a liquidated sum are as follows:-

(a) The sum must be arithmetically ascertainable without further investigation.

(b) If it is in references to a contract, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach.

(c) The agreed and fixed amount must be know prior to the breach

I have taken a careful look at the affidavit in support of the respondent’s claim under the undefended list. I cannot see any averment therein which shows that there was an agreement, written or otherwise between him and the appellant, at any material point in time pointing to the direction that the appellant would pay the respondent the sum of =N=7,555,000.00 contained in the writ of summons or any other particular sum of money for that matter.

To say the least, the various heads of amount in Exhibit F, the ‘Bill of Charges’ relied upon by the respondent, were estimates arrived at by the unilateral opinion of the respondent which were not based on any mutually agreed ascertainable standard. There was no fixed amount to the parties prior to the alleged breach of the oral agreement which the respondent said he had with the appellant. The claim of the respondent, in the circumstance can only be categorized as unliquidated damages. It ought not to have been placed and determined under the undefended list in the first instance.

Further, learned counsel for the appellant submitted that the case was not qualified to be place and determined under the undefended list because the respondent’s suit, as formulated and presented before the trial court, was not only contentious but also raised a number of triable issues.

What then amounts to a triable issue in the con of an undefended list proceeding If a defendant’s affidavit in support of the notice of intention to defend, where one is filed, or an affidavit to prop a preliminary objection as in this case raises an issue where the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff’s claim, such brings the parties within the concept of ‘joining issues’ as explained in Graham v. Esumai (1984) 15 NSCC 733, 743 and Ehimare v. Emhonyon (1985) 1 NWLR (pt.2) 177; (1985) 16 NSCC (pt.1) 163, 169. In such a situation, a triable issue comes into existence. Whenever a bona fide issue or a triable issue comes into existence, the case ought to be entered in the general cause list. The court has a duty to ensure fair hearing even in cases under the undefended list procedure.

Let me point it out that although the procedure under the undefended list has the advantages of speedy and quick dispensation of justice, it has it’s limitation in that it is not an appropriate procedure in complex cases with controversial triable issues. It is the duty of a trial court to first certify that the case is a proper one to be placed on the undefended list. For guidance on the procedure for summary judgment on the undefended list action, See: UAC (Tech) Ltd. v. Anglo Canadian Cement Ltd. (1966) NWLR 349; Olubusola Stores v. Standard Bank Nig Ltd. (1975) 4 SC 51 at 55-56; Okambah Ltd. v. Sule (1990) 7 NWLR (Pt.160) 1; (1990) 11 SCNJ 1; Adebisi Macgregor Associates Ltd. v. Nigerian Merchant Bank Ltd. (1996) 2 NWLR (pt.431) 378; (1996) 2 SCNJ 72.

I note that the appellant herein, as defendant at the trial court filed a preliminary objection challenging the locus standi of the respondent as plaintiff instead of the usual notice of intention to defend as dictated by the Rules of the trial court. There appears to be no big deal in this point. The action could validly be challenged other than by filling a notice of intention to defend and an affidavit disclosing a defence on the merit. See: the case of Sodipo v. Lemminkainen OY (1986) 1 NWLR (pt.15) 220 at 231 ; Nishzawa Limited v. Jethwani (1984) 12 SC 234 at 257; UTC Nig. Ltd v. Pamotei (supra) at page 284.

In short, the trial court and the court below had a duty to consider the preliminary objection and the affidavit in support of same. The respondent maintained that he had an oral agreement to ‘work’ for the appellant. On the other hand, the appellant said it had no contract, oral or written with the respondent. The appellant said it had dealings with one Joe Akputa and attached an agreement between them marked Exhibits ‘A’ to its affidavit. It is the said Joe Akputa that the respondent said introduced him to the appellant. There is no doubt in my mind that a triable issue has arisen in respect of the standing of the respondent. The two courts below appeared to have brushed the issue aside. But it has refused to be swept under the carpet. It requires to be cleared in a full blow trial.

Again, to justify the sum of =N=2,000,000.00 in Exhibit F as the fee for representing the appellant at the Supreme Court, the respondent averred in paragraph 4 of the affidavit in support of his application under the undefended list that he filed a brief of argument on behalf of the appellant at the Supreme Court. But in paragraph 15, the respondent averred that he drafted the brief of argument and when he asked the appellant for money to file same, the appellant debriefed him by directing him to hand over the brief of argument to one Chief Ifeanyichukwu Okonkwo. There is nothing to show that a Notice of Appeal was filed at the Supreme Court as contained in paragraph 14 of his affidavit. As well, there is no evidence that the respondent filed a brief of argument on behalf of the appellant; at least for now.

To my mind, there exists a material conflict or contradiction in the affidavit of the respondent which requires explanation. In this regard, the respondent himself on page 11 of his brief of argument states as follows:-

“In the unlikely event of your Lordships agreeing with the appellant that there exists a material conflict or contradiction in the affidavit evidence of the respondent as contended in the appellant’s brief argument, I must however point out that the effect thereof will only be restricted to the sum of =N=2 million claimed in regard to the Supreme Court proceedings and thus only that aspect of the claim may by affected, whilst the remainder thereof should be upheld by this Honourable Court.”

From the above, the respondent appears to have thrown in the towel in respect of the =N=2 million claimed for ‘work done’ for the appellant in respect of the alleged Supreme Court proceedings. Howbeit, for now, I take it that a serious triable issue has been raised and same should be investigated at a full blown trial of this mater at the High Court.

At this point, the provision of Order 24 Rule 9 (5) of the trial court’s Rules to wit: Anambra State High Court (Civil Procedure) Rules, 1988, as applicable to Enugu State, is of moment. It provides as follows:-

“R.9 (5). Nothing herein shall preclude the court from making an order, should it so think fit at any stage of the proceedings for the suit to be transferred to the general list on the ground that the suit is not suitable for placement in the undefended list.”

I am of the considered view that this is a case that ought not to be placed in undefended list in the first instance. It does not relate to a claim for liquidated sum agreed to at the material time by the parties. There are contentious issues that should be investigated through viva voce evidence.

Since an order transferring the matter to the trial court for hearing in the general cause list is warranted, I wish to keep my peace in respect of other issues. The appeal is hereby allowed. The judgment of the court below is hereby set aside. The case is remitted to the trial court to be heard on the general cause list by another Judge other than Ozoemena, J. Pleadings shall be ordered accordingly. No costs awarded.

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SC.153/2006