Mr. M. A. Abiara V. Registered Trustees of the Methodist Church of Nigeria (2007)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
This is an appeal against the judgment of the High Court Ado-Ekiti, Ekiti State of Nigeria coram Bamisile J. in which judgment is entered in favour of the plaintiff.
The respondent herein was the plaintiff, who on 13/9/2004 sued the defendant/appellant and claimed as follows:-
“(a) A sum of five million Naira (N5,000.000.00) being damages for trespass committed and still being committed by defendant on plaintiffs landed property at 4, Ifelodun Avenue, Dallimore Area, Ado-Ekiti.
(b) A perpetual injunctive order restraining the defendant, his agents, servants, privies and howsoever, from committing any further or other acts of trespass whatsoever on the land and from going to the land for any purpose whatsoever.”
The claim, in a nutshell, is for general damages for trespass and perpetual injunction. The defendant for one reason or the other was said to have refrained from defending the suit.
Before trial commenced in earnest the plaintiff filed an interlocutory application dated 21/10/2004 praying for an order restraining the defendant/respondent, his agents, servants and privies from harassing, embarrassing or disturbing plaintiff/applicant’s members on the land in dispute and from going or entering into the premises of plaintiff/applicant for any purpose whatever pending the disposition of the substantive case herein.
The said motion was granted and the defendant was restrained.
See p. 12 of the record of proceedings for the drawn order of the trial court. Contempt of court proceedings was conducted and the defendant was then ordered to be arrested and to be committed to prison custody until he purges himself on 20/6/2005. See p. 19 of the record.
Later on 11th of July, 2005 the junior brother of the defendant contemnor filed a motion on notice for the release of the defendant on the ground that he regretted his action and purged himself. The court in another application granted an extension of time for the defendant to file his statement of defence. On the 5/1/2005 the defendant filed his statement of defence in which he totally denied the claim of the plaintiff and averred forcefully that the plaintiff did not have any church building at 4, Ifelodun Avenue, Dallimore-Area, Ado-Ekiti. Finally, the defendant urged this court to hold that the plaintiff’s claims are unmeritorious, frivolous, vexatious and an abuse of court process.
The plaintiff’s counsel then filed an application for the court to enter judgment in their favour. The defendant failed to file a counter affidavit to the application. The motion, to be precise, is dated 15/12/2004 and is praying for an order for judgment consequent upon the default of the defendant to file a defence in this case. Learned counsel for the plaintiff then Akanle, SAN contended that the defendant did not put up appearance. The motion for judgment according to Akanle, SAN was duly served on the defendant since on 21/11/2005. He relied on the cases of Salawa Oke & 3 Ors. v. Musilim Lamidi Aiyedun (1986) 2 NWLR (Pt.23) at 548/565, paras. D – E; and Ogunleye v. Arewa (1960) WNLR page 9 at 11.
On 21/3/2006 learned counsel to the defendant replied on point of law and urged that it is a settled principle of law that in a claim for unliquidated damages evidence must be led to the damages suffered. Where claim has to do with unliquidated damages evidence ought to be led. He quoted the prayers of the plaintiff i.e. the sum of Five Million Naira being damages for trespass committed and perpetual injunction. Learned counsel for the defendant/respondent in the trial court, Mr. Toyin Ajibulu, urged that court to discountenance the application of the plaintiff. According to the learned applicant’s counsel, he concedes that if it is special damages that is prayed then evidence is required to be led and not general damages. He relied on Oke v. Aiyedun (1986) 2 NWLR (Pt.23) 548/550. He cited other authorities and urged the court to enter judgment in favour of the plaintiff as it is only where claim is of special damages that the plaintiff is expected to lead evidence to prove special circumstances. Learned counsel for the plaintiff further in arguing additional legal submission contended that the case of Lambert Sunday Iwueke v. Imo Broadcasting Corporation (2005) 17 NWLR (Pt.955) 417 relied heavily by the defendant was decided on the special rules of the High Court of Imo State which is not clear if it is applicable in Ekiti-State. For that reason, that case is not relevant, and he submitted that the applicable Rules in Ekiti State is that of Ondo State High Court Order 27 rule 8 thereof. In a considered ruling delivered on 29/6/2006 learned trial Judge at pages 41 – 42 found in favour of the plaintiff, as follows:-
“This court therefore held that this court has the power to enter judgment in favour of the plaintiff/applicant, as it is only where a claim of special damages, that the plaintiff is expected to lead evidence to proof (sic) those special circumstances. Similarly the plaintiffs’ application hereby succeeds and the plaintiffs/applicants claim as contained in writ of summons is hereby granted because they are not been disputed by the defence/respondent. Consequently I intend to use my discretion.
I therefore award a sum of one million naira (N1,000.000.00) being committed by defendant on plaintiffs landed property at 4, Ifelodun Avenue Dallimore Are Ado-Ekiti and also granted perpetual injunction as prayed.”
Aggrieved by the above ruling, the defendant appealed to this court and filed a notice of appeal containing four (4) grounds of appeal. They are reproduced thus:-
Grounds of Appeal
“(1) That the lower court erred in law by entering judgment in favour of the respondent in default of defence for unliquidated damages without adducing any credible evidence.
(2) That the lower court erred in law by granting an order of perpetual injunction in favour of the respondent and against the appellant without any credible evidence entitling the respondent thereto.
(3) That the lower court erred in law by closing its eyes to the appellant’s application for an extension of time within which the applicant might file his statement of defence and proceeding to give judgment in favour of the respondent in defaulting of defence, and thereby deprived the appellant his right to fair hearing.
(4) That the decision is against the weight of evidence.”
In compliance with the rules of this court Order 6 rr. 2 & 4 of the Court of Appeal Rules the parties formulated their respective issues. The appellant formulated three issues for determination thus:
Issues for Determination
“(1) Whether the learned trial Judge could properly have entered judgment against the appellant in default of defence as he did in the absence of specific proof of unliquidated damages claimed by the respondent;
(2) Whether the trial Judge could properly have granted an Order of perpetual injunction in favour of the respondent and against the appellant in a land matter without the appellant leading evidence in proof of his claim.
(3) Whether it was propend (sic) for the trial court to have completely ignored the appellant’s application for an extension of time and without hearing determine (sic) same before giving Judgment in default of defence.”
The respondent, in turn, agreed with the issues as formulated by the appellant’s counsel and adopted same.
Arguments in the Issues:
The grudges of the appellant, in the main, under issue 1, are that the trial court awarded the damages not on well settled legal principles but on sentimental or arbitrary grounds which is wrong.
Learned counsel then submitted that the plaintiff/respondent’s claim at the lower court was for unliquidated damages and the trial court awarded the damages without taking evidence from the parties.
Learned counsel argued that it is wrong for the learned trial Judge to grant the respondents’ application for judgment in default of defence without respondent leading evidence in proof of his claim for unliquidated damages. Accepted that the award of general damages is at the discretion of the trial court, but that discretion, to be valid, must be exercised judicially and judiciously. He then submitted that a court does not exercise its discretion in vacuum but on legal evidence placed before it by the parties. He relies on Menakaya v. Menakaya (2001) 16NWLR (Pt.738) 203 at 253; Maja v. Samouris (2002) 7 NWLR (Pt.765) 78 at 102 – 103 paragraphs F – B.
Learned counsel wound up by submitting that, it cannot be over-emphasized that a court is not entitled to enter summary or default judgment on a claim on a relief for payment of unliquidated pecuniary damages without taking evidence for the assessment of the amount of damages that may be proved as such a claim must be established by credible evidence. This is because it is not enough for the court to simply award damages in an unliquidated pecuniary damages claimed without giving any reason as to how it arrived at what in its opinion amounted to reasonable damages. See: (i) Umunna v. Okwuraiwe & 3 Ors. (1978) 6 – 7 SC 1
(ii) Victor Olurotimi v. Felicia Ige (1993) 8 NWLR (Pt.311) 257 at 268 Paras E – F.
He also relied on Imo Broadcasting Corporation v. Lambert Iwueke (1995) 1 NWLR (Pt.372) 488.
He finally argued that it cannot be seriously disputed that the trial court’s assessment and award of the unliquidated pecuniary damages of N1 Million Naira for alleged trespass were not supported by any credible and material evidence in proof of the quantum of damages in issue. There was no basis for the amount of damages awarded to the appellant by the trial court. This is a clear error of law.
Learned counsel finally submitted that the appeal court will interfere with exercise of discretion by trial court if it is shown, as in the instant case, that the trial court applied the wrong principal (sic) of law; considered irrelevant matters or disregarded relevant matters. See Livestock Feeds Plc v. Igbino Farms Ltd. (2002) 5 NWLR (Pt.759) 118 at 132 – 3, paras. H – B.
The respondent, in arguing issue 1, contended that the appellant received the statement of claim in September, 2004 and ought to have entered defence in October, 2004, 30 days by Order 25 rule
2(1) of the Ondo State Rules of the High Court, applicable to Ekiti State. He also referred to Order 27 rule 8(1) and contended that it enjoins the court to give to the plaintiff such judgment to which he is entitled at hearing of his application and that he is not required to take evidence as the evidence the court needs is already embedded in the statement of claim. Learned counsel agreed that the monetary claim is in a form of general damages and submitted that nowadays general damages need no proof, they are rather at the discretion of the judge. He relied on the following cases:-
(i) X.S. Nig. Ltd. v. Taisei (WA.) Ltd. (2006) 15 NWLR (Pt.1003) 533 at 550 – 551, paras. G – B.
(ii) Ijebu Ode Local Government v. Adeniyi Balogun and Company Ltd. (1991) 1 NWLR (Pt.l66) 136 at 158, para. E.
(iii) Momodu v. Uniben (1997) 7 NWLR (Pt.512) 325/350, paras. A-B.
Learned SAN after reviewing the authorities submitted that there is no need for the plaintiff to adduce any evidence before the trial court can award general damages it is the discretion of the learned trial Judge to do so, especially when the defendant at the lower court failed to properly file their statement of defence and they could not attack the exercise of the discretion of the lower court on the damages awarded. He then urged this court to resolve issue one in favour of the respondent.
On issue 2, the appellant is not happy with the learned trial Judge when he granted the respondent’s claim based on the motion for judgment in default of defence without calling on the respondent to prove his title to the land in dispute.
Learned counsel further submitted that it is a well settled principle of law that where an order of perpetual injunction is sought under a claim for possessory title, the claimant must first prove his title to land – Kachia v. Yazid (2001) 17 NWLR (Pt.742) 431 at 466 – 467 F – C.
He further contended that a claim for damages and injunction for trespass is based on infringement of the claimant’s possession.
Consequently, he submitted that the claimant must, inter alia, aver and prove that he is in physical or constructive possession and that the defendant infringed on his possessory right. Kachia v. Yazid (supra) 454 – 455, paras. H – D.
Learned appellant’s counsel further explained that it cannot be disputed that the respondent did not give evidence in proof of his claim at the lower court before the lower court granted an order of perpetual injunction against the appellant.
He finally submitted under issue 2, that in land matters, default judgments should be avoided by the courts. In such case, he continues; it is essential that the plaintiff leads evidence in proof of his claim so that the court may assess its worth even if the defendant fails to file a statement of defence. See O.E.O.L.G. v. Etiti (2001) 2 NWLR (Pt.696) 63 at 71, paras. E – F.
The respondents’ response to issue 2 is contained in their brief pp. 6 – 8. Learned SAN emphatically argued that it is only a declaration for title that cannot be given without oral evidence, and that there is no such need in the case of trespass and injunction.
What is necessary is proof of possession which was clearly pleaded in their statement of claim of which the defendant has no defence whatsoever.
Learned SAN then submitted that there is nothing in our law or rules which forbid the grant of perpetual injunction when giving judgment on default of defendant. He distinguished the case of O.E.O. Local Govt. v. Ekiti supra, and submitted that it is not on all fours with the case at hand as the former case was without the notice of the appellant who did not know that his counsel forgot to take any step in the matter, in the present case both defendant/appellant knew about the case but chose to do nothing.
Learned Senior Advocate of Nigeria cited a case in which he contended that it is in their support. It is the case of:-
Oyedoke v. The Reg. Trustees of C.A. C. (200 1) 3 NWLR (Pt.701) 621 at 632.
Learned counsel also referred to Kachia v. Yazid (2001) 17 NWLR (Pt.742) 431 at 466-467, paras. F – C and said that the case is irrelevant to the matter before us. That case decides that an injunction cannot be granted in favour of a person who bought a piece of land from someone who had no right to sell the land. While in the matter at hand the plaintiff proves possession and acts of trespass against the defendant who does not deny same either by a statement of defence or counter-affidavit. He urged this court to resolve issue 2 in favour of the respondent and to dismiss the appeal.
Issue Three
“Whether it was proper for the trial court to have completely ignored the appellant’s application for an extension of time and without hearing and determining same before giving judgment.”
Learned counsel for the appellant agreed that he was out of time in filing his statement of defence but then he filed an application for extension of time to file statement of defence which the trial court ignored. Counsel argued that the trial Judge cannot hide under the pretext that his attention has not been drawn to the existence of the application particularly when a decision on the application is relevant to the outcome of the judgment. See – Savannah Bank (Nig.) Ltd. v. S.I.O. Corporation (2001) 1NWLR (Pt.693) 194 at 208, paras. F -H; and Mokwe v. Williams (1997) 11 NWLR (Pt.528) 309.
A Judge, counsel further argues on p.6, has the responsibility to consider all the applications pending in his court in respect of any matter before he makes a final pronouncement on the matter. He relies on the decision of this court in the case of Ndika v. Chiejina (2003) 1 NWLR (Pt.802) 451 at 478, paras. G. at Pp.479 – 480, paras. G – D, Per Olagunju, JCA.
He then urged this court to resolve all the issues in favour of the appellant and to allow the appeal and set aside the decision of the lower court delivered on 29/6/2006.
The respondents counsel Akanle, SAN disagreed with his learned friend on the following grounds:-
That they filed their statement of claim since on 21/9/04 and served the defendant almost immediately. The defendant did not file any defence. The plaintiff after 14 months then filed this motion for judgment and the defendant could not file even a counter claim to the motion.
In the course the defendant had to be incarcerated because of disobedience to the court order.
Learned counsel for the respondent insisted that the trial court could not be accused of ignoring the motion for extension of time to file their statement of defence. He said that the defendant waived his right to file a defence. He also condemned the attitude of the defendant and his counsel and described same as non-challant and lackadaisical.
The fact that the defendant waited until the plaintiff filed and moved its motion for judgment before filing their motion for extension of time to file their defence clearly showed that their action is very much belated. After all, Aequitas Vigiantibus Subvenit i.e. Equity helps the vigilant.
Learned, SAN still contended that the court’s attention has not been drawn to the defendant’s application for extension of time to file a defence; that makes the case of Mokwe v. Williams (supra) inapplicable. He also referred to Savannah Bank v. I. O. Corporation Supra and submitted that it cannot be relevant since the court did not know that the defendant’s motion was in existence. Therefore there was no breach of the appellants right to fair hearing. He relied also on the case of Ndika v. Chiejina (supra) and submitted also that the decision therein is not apposite to the defendant/appellant’s case.
Based on the irrelevancy of the above cases supra, learned SAN, urged this court to resolve this issue No.3 in favour of the respondent herein.
Before I go any further I wish to thrash these points out. It is a fact which can never be altered that the defendant in the lower court had duly entered appearance as required by the relevant rules of the court. It could be found on page 14 of the record. That being the case, the respondent’s counsel could not have been stating the correct position when he said that the defendant did not put up appearance at all. Secondly, and this fact can never be altered or denied, that the defendant actually was out of time in filing their statement of defence.
That notwithstanding, they filed a motion for extension of time to file their statement of defence out of time. Incidentally the record does not show that the plaintiff/respondent took any steps to file a counter affidavit in opposition to the defendant’s motion. Moreover there is no denying the fact that the application is still pending in the court’s file. The question to be asked is this. Who has the responsibility of bringing up the matter for hearing? Is it the appellant’s counselor the respondent’s counsel, or both? Or further still is it the duty of the court to see to it that no pending application in the court’s file is unattended to?
Learned counsel kept on passing the buck, none of them agreed to share the blame. The learned trial Judge, in an unconvincing statement, held that he was not aware of the motion, and none of the counsel drew his attention to the existence of that motion. I do not, with tremendous respect to the Judge, agree with his reasons as to why he ignored the motion. The position of the law is quite clear. If any or both counsel reminds the judge of the existence of such document it is well and good. However a prudent judge before he embarks on any important decision or exercise he ought to have asked or looked into his file, if there is any pending application. His Lordship of the lower court did not do so. I therefore hold that the appellant’s application for extension of time to file their statement of defence is pending and the court refused to consider it before it granted the application of the respondent for judgment in their favour on the ground of default of defence. This is wrong without more.
I have read and digested the arguments for and against vis-a-vis issue one of the appellant’s issue. The order admittedly deals with default of defence for “unliquidated damages”. See Order 27 rule 8 of the Ondo State High Court Rules. It is also agreed that the award of general damages is always at the discretion of the lower court. I cannot, out rightly, say that the discretion is unfettered. It must be exercised judicially and judiciously. There must be placed before that court evidence of materials to work on before that court can exercise its discretion. In this case, the learned trial Judge argued that the material was the statement of claim filed. This is because the claim for N5m cannot convert itself to liquidated damages. There must be material placed before the Court to enable it quantify and assess before the claim becomes unliquidated.
I must therefore agree with the submission of the appellant’s counsel that a court is not entitled to enter a default judgment on a claim for payment of unliquidated pecuniary damages without taking evidence for the assessment of the amount of damages that may be proved as such a claim must be established by credible evidence. I must emphasize that the claim before the lower court is unliquidated damages and can the lower court rightly award damages as such without giving any reason as to how it arrived at what amount which could be regarded as reasonable? The two decided Supreme Court cases Umunna v. Okwuraiwe (1978) 6 – 7 SC. 1; and Olurotimi v. Ige (1993) 8 NWLR (Pt.311) 257 decide almost the same principle; namely, on need for the lower court to give reasons for damages awarded. Mohammed, JSC has this to say on p.268 of the report thus:-
“Assuming I accept that the Enrolment Order is based on actual decision made by the learned trial Judge, it is still not enough to simply award damages in trespass to land without giving any reason on how the court arrived at what amounted to reasonable damages.”
On the whole I found that the treatment of issue one by the respondent does not go further. I hold that the decision of the lower court in awarding general damages in an unliquidated claim without
having evidence before it is wrong and perverse. The issue 1 is hereby resolved in favour of the defendant/appellant.
After reading the submissions of the learned Senior Advocate for the respondent on issue 2, I hold that their position is weak. An order of perpetual injunction cannot be granted against the appellant in a land matter without the respondent leading evidence in proof of his claim. The trial court should have allowed evidence to flow, especially when the appellant indicated his desire to put in his defence by filing an application for extension of time to file his statement of defence. Had the learned Judge allowed the defendant to defend itself that court would have been in possession of evidence of both parties and by so doing the court would have been in a better position to decide for itself who among the parties has better claim, and it would have freed itself from insinuation, by any of the parties, of breach of his right. The order dished out by the learned trial Judge, in my view, is uncalled for. The court should allow at least the respondent to adduce evidence to prove their title before it ordered a perpetual injunction against the appellant. This is never done. Is it not better and safer for the court to allow the respondent to prove infringement of their possessory title to the land in dispute? Even if it will be accepted that the respondent averred in their statement of claim that they are in physical or constructive possession and that the defendant infringed on their possessory right, it is a mere averment which is naked. There is need for evidence to cloth and support such averments. There are many decided Supreme Court and this court’s cases to establish that averments without more (evidence) are non issue. In the case at hand, there is clear admission, of those averments in the respondent’s pleading, by the defendant/appellant, since the defence of the defendant was not allowed. The law is that where there is a claim for possessory title, the claimant, as in this matter, must first prove his title to land. In a situation, as in this case, where the respondent failed to prove his title to the land, the trial court should have refused to grant the respondent’s claim for perpetual injunction. Kachia v. Yazid (2001) 17 NWLR (Pt.742) 431) 466 – 467; and Chiroma v. Suwa (1986) 1 NWLR (Pt.19) 751.
I think the learned trial Judge confused this proceedings with that of undefended list procedure. That is why I maintain my position that this is not a liquidated demand, it is rather unliquidated claim which needs the production of credible evidence before the learned trial Judge could enter judgment let alone an order of perpetual injunction. The lower court should be allowed free hand to assess for itself the worth of the evidence to be properly adduced by the respondent in the lower court.
I hold that issue two has a lot of merits, same is resolved in favour of the appellant.
On issue No.3, I do not intend to dissipate much energy on it because I have already held earlier in this judgment that it is the responsibility of the presiding Judge in the lower court to ascertain whether or not all the pending motion or motions are dealt with before it considered the motion to enter judgment in default of defence. I rely on Ndika v. Chiejina (2003) 1 NWLR (Pt.802) 451 at 478 a beautiful decision of this court delivered by my learned brother, Olagunju, JCA at Pp.479 – 480 where he says:-
“Shorn of subterfuge and specious logic the reply to the argument of learned counsel for the appellants left unanswered the crucial point already conceded by learned counsel for the respondent that a court has a paramount duty, to consider all pending applications before making a final pronouncement of any dispute before it. It is a dereliction of sacred judicial duty for either a trial or an appellate court to put aside an application in proceedings before it and proceed to give judgment. The gravity and consequences of such lapse are well spelt out by this court in Ikeazor v. Ikeazor, at page 623, thus:-
‘ … There is a duty on a trial Judge to deal with an application put before him and to reach a decision according to the dictates of the application, that is according to the interest of justice of the case. In such a situation, the Judge should appreciate that he is invited to exercise his discretion and this he must do judicially and judiciously, bearing in mind that the exercise of his discretion is subject to review by the appellate court and therefore he is bound to give reasons for whatever decision he gives. Therefore, failure by the Judge either by deliberate or neglectful conduct on his part to exercise his discretion, is judicial indiscretion and amounts to an error in law.’
Therefore, when the learned trial Judge laid aside the appellants’ motion of 12/6/96 calling on him to set aside his earlier ruling and proceeded to hear evidence in the case and entered judgment for the respondent he was in a serious breach of duty that impacts upon the appellants’ right of fair hearing.”
My Lords, all the issues formulated by the appellant and adopted by the respondent are resolved against the respondents. However the justice of this particular matter demands that a retrial before another Judge is to be ordered. None of the parties is to be blamed for failure to bring the motion for extension of time to enable the defendant file his statement of defence.
My Lords, I hold therefore that appeal is pregnant with some merits, same is allowed. The decision of the lower court is hereby set aside and that the matter is remitted to the Hon. Chief Judge of Ekiti State to be heard de novo by a different Judge. The appellants’ application for it to be allowed to file its statement of defence is granted. It is now properly before that court. The appellant is hereby restrained from entering the land in dispute pending the hearing and determination of the suit by the newly constituted High Court. Costs shall be in the course.
Appeal is allowed. Order for remittal to the High court granted.
Other Citations: (2007)LCN/2254(CA)
