Nigerian Postal Services V. Insight Engineering Company Limited (2006)
LawGlobal-Hub Lead Judgment Report
IKONGBEH, J.C.A.
This is an appeal by the defendant against the judgment of the Federal High Court given at Ilorin on the undefended list. The respondent, as plaintiff before the lower court, had applied for a writ of summons on the undefended list in terms of its particulars of claim, which read:
“(a) A sum of N1,470,000.00 (One million, four hundred and seventy thousand naira) only being the outstanding indebtedness owed to the plaintiff by the defendant when sometime in 1993 the plaintiff executed various jobs for the defendant at the defendant’s request which said sum the defendant has failed, refused and neglected to pay inspite of repeated demands.
(b) Interest at the rate of 21% per annum from June, 1993 till the date of judgment and 10% post judgment interest until the total indebtedness of the defendant is finally and totally liquidated.”
In support of the application for the placement of the writ of summons, it filed a 35-paragraphed affidavit sworn by its Chairman. Paragraphs 1 – 8 of the affidavit were devoted to describing the parties as to their businesses and addresses. The crux of the plaintiff’s case was contained in paragraphs 9 – 34 in which the deponent swore:
“9. That vide letter dated 10/6/931 the defendant award (sic) a contract for the printing and supply of 1,000 copies of Form P9 to the plaintiff at a unit price of a N75.00 for a total sum of N77,000.00. Copy of the letter dated 10/6/93 is attached herein and marked as exhibit 1.
10. That vide a local purchase order (hereinafter referred to as LPO No. A00077 dated 22/7/93, the defendant requested the plaintiff to supply 1000 copies of P 12) at N75.00 each for a total sum of N75,000.00. Copy of LPO No. A00077 dated 22/7/93 is hereby attached and marked as exhibit 2.
11. That in a letter dated 26/7/93, the defendant also requested the plaintiff to supply various Law books to the defendant’s central stores at Malu Road Apapa totalling N250,000.00. Copy of letter dated 26/7/93 from the defendant to the plaintiff is hereby attached and marked as exhibit 3.
12. That on 22/7/93, the defendant also requested the plaintiff for the printing and supply of form P127 worth N75,000.00.
13. Similarly, vide LPO No. A00187 dated 18/8/93, the defendant awarded to the plaintiff the printing and supply of 1,000 copies of P3 at N75.00 each for a total sum of N75,000.00. Copy of the LPG dated 18/8/93 is attached herein and marked as exhibit 4.
14. In addition to the foregoing on 10/9/93 the plaintiff at the defendant’s request vide defendant’s letter of the said date furnished the office of the Secretary/Legal Adviser of the defendant with executive chair and table wherein the contract sum was N180,000.00. Copy of the defendant’s letter of 10/9/93 is attached herein and marked as exhibit 5.
15. Vide another letter dated 10/12/93, the defendant requested the plaintiff to supply Law library cabinet and other accessories worth N177,000.00. Copy of the letter dated 10/12/93 is attached herein and marked as exhibit 6.
16. The defendant, in addition to the above issued LPO No. 016710 dated 2/12/93, to the plaintiff for the general repairs and servicing of vehicles attached to corporate planning department of the defendant amounting to N209,690.00. Copy of LPO No. 016710 dated 2/12/93 is attached herein and marked as exhibit 7.
In another LPG No. A02030 dated 7/12/93, the defendant also requested the plaintiff to print and supply of letter headed papers, stickers, etc, at a total sum of N190,000.00. Copy of the LPG is attached herewith and marked as exhibit 8.
18. The defendant also awarded to the plaintiff contract for the supply of Law books worth N77,500 vide defendant’s letter of 15/12/93. Copy of letter of 15/12/93 is attached herein and marked as exhibit 9.
19. Also defendants letter reference No. NIP/42/9/1/Vol. X120 dated 15/12/93, the plaintiff was also awarded another contract for the supply of various Law books worth N86,500.00. Copy of the said letter dated 15/12/93 is attached herewith and marked as exhibit. 10.
20. That the plaintiff duly performed the above named contracts in line with the defendant’s directives.
21. The plaintiff made several attempts to the defendant for the payment of the total sum of N1,470,000.00 since 1993 but to no avail.
22. That one time post master General- Mr. Nathaniel Zone assured the plaintiff of payments, but same did not come to fruition before Mr. Zone left the defendant organisation.
23. That vouchers were raised for part payment of the above sum of N1,470,000.00 but same was not effected.
Copies of payment vouchers dated 31/12/93 and 6/10/94 are attached herein and marked as exhibit 11 and 12 respectively.
24. That the plaintiff vide letter dated 19/3/96 wrote to the defendant for payment of the above sum of N1,470,000.00. Copy of letter dated 19/3/96 is attached herewith and marked as exhibit 13.
25. That inspite of exhibit 13 (supra), the defendant failed, refused and neglected to pay the indebtedness owed to the plaintiff.
26. That subsequent post master Generals who succeeded Mr. Zome promised to pay the defendant’s debts to the plaintiff but up till now nothing has been paid to the plaintiff.
27. That the plaintiff expended well over N480,000.00 as transport, accommodation and feeding expenses for travelling down to Lagos on various occasions for her to be paid, but the plaintiffs pleas and remonstration fell on deaf ears.
28. That the plaintiff took a loan from Afribank to finance the above contracts and upon which the plaintiff is still paying whooping interest rates.
29. The plaintiff has also lost her distributorship or dealer status to Rank Xerox as a result of the lack lustre attitude of the defendant to pay the plaintiff’s indebtedness since 1993.
30. The plaintiff vide another letter dated 26/2/97 wrote to the (sic) demanding for the sum of N1,470,000.00 owed her by defendant. Copy of letter dated 26/2/97 is attached herein and marked as exhibit 14.
31. That the indebtedness owed to the plaintiff by the defendant has made the plaintiff’s business to collapse irretrievably.
32. That the plaintiff has lost her goodwill amongst her teeming customers.
33. That I know as a fact that the defendant has no defence to the plaintiff’s claims or action.
34. That the defendant has never disputed the said sum of N1,470,000.00 being the outstanding indebted owed to the plaintiff.”
Exhibited with the affidavit were fourteen documents. The first ten consisted of letters and local purchase orders by which the defendant/appellant had allegedly ordered some items from the plaintiff/respondent and job orders by which the defendant/appellant contracted the plaintiff/respondent to render some services. The documents show ex -facie that they came from the defendant/appellant. Some of them bear its logo and name and were signed by persons described as Head of its relevant Division/Department. They set out the total number of items ordered by the defendant/appellant and the cost price of each item or the services rendered and their value. The next two documents contained notification from the defendant/appellant to the plaintiff/respondent that payment vouchers had been issued in its favour for part-payment of the debt. The last two documents were demand letters from the plaintiff/respondent to the defendant/appellant.
Counsel on behalf of the plaintiff sought and obtained leave ex-parte to place the writ of summons on the undefended list. Upon seeing proof that all the relevant processes had been duly served on the defendant and seeing that the latter had filed no notice of intention to defend, counsel for the plaintiff moved the court on 28/10/97 for judgment in terms of the plaintiff’s endorsement on the writ. On 17/12/97 the learned trial Judge, A. Bello, J., delivered a ruling in which he entered judgment for the plaintiff in terms of its endorsement on the writ of summons. It is not a very long ruling so I shall set out the entirety of it:
“Ruling
This suit like its sister case FHC/IL/M28/97 was filed under the undefended list on the 7th day of July, 1997. It is supported by a 35-paragraph affidavit deposed to by one Mr. J. A. Adewale of No. 62, Amilegbe Street, Ilorin, Kwara State. Attached to this affidavit are exhibits 1 – 14.
As if this is not enough, the plaintiff/applicant on the same 7th day of July, 1997 filed an ex-parte application in order to have a formal order of the court to issue and serve the writ of summons under the undefended list which was granted and the case was then adjourned to 28th day of October, 1997 for hearing.
On the hearing date the defendant was absent and was not also represented by any counsel and this is notwithstanding the fact that the defendant has been served with all the processes of the court. It is for this reason that the learned counsel for the plaintiff asked for judgment in favour of the plaintiff in accordance with the Rules of this court particularly Order III rules 9 – 13 and in line with the decision of the Supreme Court in the case of Ben Thomas Hotels Ltd. v. Sebi Furniture Ltd. (1989) 12 SCNJ p. 171 at 178, (1989) 5 NWLR (Pt. 123) 523.
I have found as a fact that the plaintiff’s application was for a writ of summons under the undefended list and it was supported by an affidavit deposing to the fact that the defendant has no defence to the action and the court went the extra mile to make a formal order for the suit to be placed on the undefended list and same processes were served on the defendant.
What the defendant was expected to do under Order III rule 11, after it was served with the writ of summons and affidavit, was to deliver to the Registrar, not less then five days before the date of hearing, a notice in writing that it intends to defend the suit. The notice should be accompanied by an affidavit setting out the grounds of its defence.
But this, the defendant has not done by its failure to react in any way to the plaintiff’s action and its subsequent absence in court on the date of hearing. Once there is failure on the defendant to react in the manner prescribed by rule 11 aforesaid, then rule 13 will come into play. It is provided under this rule as follows: ‘Where any defendant neglects to deliver the notice of defence and affidavit, as prescribed in rule 11 of these rules, within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of rule 12 of these rules, then and in such a case, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.’
Now the Supreme Court has already interpreted a similar provision in the Kwara State High Court’s Civil Procedure to which I referred in my earlier ruling in the sister case which I also mentioned earlier – that is the Ben Thomas case. It is their Lordships view that when a case entered on the undefended list comes to court on the return date, the court has only one duty namely to see whether the defendant has filed a notice of intention to defend and an affidavit, if no such notice and affidavit has been filed within 5 days before the return date, the court has no choice in the matter but to proceed to judgment.
It is for the above reason, that I hold that, the plaintiff has done all that was required of it under the Rules of the Federal High Court to have the judgment of the court entered in its favour. And since I have no choice in the matter, I hereby enter judgment in the sum of N1,470,000.00 (One million, four hundred and seventy thousand Naira) only in favour of the plaintiff.
I also grant the 2nd claim on interest at the rates claimed by the plaintiff.”
By order of this court, time was extended for the defendant to seek leave to appeal and leave to appeal was also granted. The appeal was duly filed. The hearing of this appeal is based on the amended notice and grounds of appeal deemed filed by the order of this court made on 10/05/04. Briefs of argument were later filed and exchanged.
Mr. S. M. Tenku, for the appellant, has formulated the following two issues for determination:
“1. Whether having regard to the provisions of Order III rule 9 of the Federal High Court (Civil procedure) Rules Cap. 134 of the Laws of the Federation of Nigeria 1990, the respondent complied with the undefended list procedure to justify or sustain the judgment of the trial court.
2. Whether in the particular circumstances of this case, the learned trial Judge properly exercised his discretion in accordance with principles of law and practice governing procedure under the undefended list.”
For the respondent Mr. R. Otaru has formulated the following one issue:
“Whether the learned trial Judge was right in giving judgment in favour of the respondent under the undefended list having regard to the liquidated claim of the respondent and for failure on the part of the appellant to file notice of intention to defend the suit.” I think the issue as formulated on behalf of the respondent more accurately highlights the main controversy that needs to be resolved in this appeal. The second issue formulated on behalf of the appellant is an unnecessary replication of the first. The two boil down to the same single question posed in the respondent’s brief. I only need to point out, however, that the respondent’s issue needs to be slightly recast. As framed, it assumes a fact that is still being hotly contested. As framed, it assumes that the fact has been established that the plaintiff’s claim was for a liquidated money demand. From the arguments advanced in support of the issues formulated on behalf of the appellant it is clear that the appellant is challenging the fact that the respondent’s claim was for liquidated money demand. I shall, for the reason I have given, consider the issue not on the footing that the claim was for liquidated money demand. Whether or not it was so is one of the questions that must be answered in the course of the appeal. I shall, therefore, replace the word “liquidated” with the words “nature of the”. The respondent’s issue will thus be reframed to read:
“Whether the learned trial Judge was right in giving judgment in favour of the respondent under the undefended list having regard to the nature of the claim of the respondent and for failure on part of the appellant to file notice of intention to defend the suit.”
Another matter that I must dispose of quickly is the preliminary objection taken on behalf of the respondent. Learned counsel gave notice of objection, which he argued in the brief. The objection relates to grounds 1, 4, 5, 6, & 7 of the grounds of appeal. Counsel has urged us to strike them out because they have been abandoned, no issues for determination having been distilled from them. With all due respect to learned counsel, I think the objection is so much waste of materials and time. If the appellant chooses to abandon any grounds of appeal, by refusing or failing to formulate any issues based on them, I do not see how that becomes a matter for objection by the respondent. An objection is called for only when the appellant seeks to take advantage of grounds of appeal that are incurably defective or are not, for any other reason, properly before the court. Where, as in this case, an appellant chooses not to pursue an otherwise valid ground, there is no occasion for objection by the respondent. Such objection will only unnecessarily give rise to the time-consuming process of taking arguments and writing a ruling.
In case of abandonment of grounds of appeal, the abandoned grounds are simply ignored and the appeal is decided only on the basis of the grounds in respect of which issues have been distilled and arguments canvassed. At the highest, the court would merely observe in passing that such grounds have been abandoned, and then move on with the more serious business of deciding the appeal without the unnecessary distraction of having to listen to or read lengthy and, alas, sometimes, convoluted arguments and writing a ruling thereon. The Supreme Court made much the same point in Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684, at 699, where Katsina-Alu, JSC, said:
“An appellant is at liberty to withdraw or abandon any of his grounds of appeal. He may withdraw a ground of appeal by applying to the court to do so. In that case the court will then strike out the ground in question.
However where an appellant does not formulate an issue in his brief of argument to cover a ground of appeal, that ground will be deemed abandoned … ”
This objection is frivolous in the extreme. I say no more on it. In the main, learned counsel for the appellant has contended that of the three conditions required by Order III, rule 9 of the Federal High Court (Civil Procedure) Rules, to be fulfilled before a matter could be placed on the undefended list, only the first one, namely, that the plaintiff must come by way of ex-parte application, was complied with in the present case. The other two, which are mandatory in terms, namely, that the affidavit in support of the application for placement of the writ must set forth good grounds on which his claim is based and that the plaintiff’s claim must be for the recovery of a debt or liquidated money demand, were not. On the second condition learned counsel, relying on Kaduna State Transport Authority v. Ofodile (1999) 10 NWLR (Pt. 622) 259; Kabiru v. Ibrahim (2004) 2 NWLR (Pt. 857) 326; Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737, at 744; S & T.M.P.C.S. Ltd. v. Emenue (2002) 10 NWLR (Pt. 776) 509, at 520, argued in paragraphs 4.08 and 4.09 of the appellant’s brief:
“4.08. The second condition we submit, was that the affidavit in support of the motion must set forth grounds upon which the claim was based and must state that in the deponent’s belief there was no defence to the action or claim. This fact must be specifically declared or deposed to in the affidavit.
4.09. In instant case, the affidavit in support of the respondent’s motion ex-parte quite aside from merely stating that the action arose as a result of various contracts which the respondent executed for the appellant, did not set forth the terms of the contracts nor were the documents constituting the contracts exhibited with the affidavit. Again, the affidavit did not set forth ground for the claim of interest. The respondent’s affidavit we submit, did not show prima facie ground which could enable the learned trial Judge to come to the conclusion that the claim was liquidated nor stated the premises upon which the claim for interest at the rate claimed was based.” (Italics mine).
On the third condition it was learned counsel’s submission that, from the affidavit evidence before the learned trial Judge, the case was not one that, under Order III, rule 9 of the Rules, could go on the undefended list. In paragraphs 4.12 and 4.13 of the appellant’s brief of argument counsel argued thus:
“4.12. The third condition or requirement of rule 9 of Order III of the Federal High Court Rules, is that the application for writ of summons on the undefended list procedure must be to recover a debt or liquidated money demand. A claim under the undefended list procedure is by its very nature, an action for liquidated sum which is an amount previously agreed by the parties or which can be precisely determined or ascertained from the terms of agreement.
4.13. In the instant case, learned counsel to the respondent while moving the motion ex-parte for leave to issue writ of summons under the undefended list specifically intimated the trial court that he was relying on the 8 paragraph affidavit in support of the motion. There was nothing on the face of the motion paper or on the affidavit in support of it that the claim was for liquidated sum which was an amount previously agreed by the parties or which could be precisely determined from the terms of any agreement.” (Italics mine).
As a general conclusion learned counsel submitted that:
“4.16 The learned trial Judge, with due respect, erred in his finding and conclusion that the respondent complied fully with the undefended list procedure provided for under Order III rule 9 of the Federal High Court Rules and which finding and conclusion led him into placing the action on the undefended list and thereby occasioned a miscarriage of justice to the appellant.”
For the respondent Mr. Otaru submitted that order III, rule 9 was fully complied with and the action was, therefore, properly placed on the undefended list. The plaintiff’s/respondent’s claim was for a debt or liquidated money demand and the deponent swore in the affidavit in support of the application for placing the writ on the undefended list that the defendant/appellant had no defence to the claim. As to the propriety or otherwise of entering judgment for the respondent as the court did, counsel pointed out that, although the defendant was served with all the necessary papers it did not see fit to enter appearance or file a notice of intention to defend or be present in court. In the circumstances, the learned trial Judge was right in entering judgment for the plaintiff/respondent as he did.
Now, from the arguments for and against the appeal just reviewed, it is clear that the first question that needs to be answered is whether or not the appellant is justified in its contention that the affidavit in support of the application for the placing the writ on the undefended list “did not set forth the terms of the contracts nor were the documents constituting the contract exhibited with the affidavit”.
We also need to find out whether or not the affidavit did not set forth grounds for the claim of interest.
We have seen the affidavit and taken note of the attachments to it. With all due respect to the appellant’s counsel, I cannot share his view that the terms of the contract between the parties were not set out. The averments in paragraphs 9 – 19 of the affidavit and exhs. 1 – 10 thereto, i.e., the letters, the L.P.O.s and the job orders, show clearly that the terms of the contract were clearly spelled out. The defendant/appellant, by the documents, promised to pay to the plaintiff/respondent for each of the items if the latter would supply them or the services if rendered. By taking the documents from the defendant/appellant the plaintiff/respondent tacitly undertook to make the supplies and render the services. It is my view, therefore, that the plaintiff/respondent placed enough materials before the court to show that the parties to the contract perfectly understand what their obligations and duties to the each other were.
The next question is whether or not the plaintiff’s/respondent’s action against the defendant/appellant was for the recovery of a debt or liquidated money demand within the contemplation of Order III rule 9, to make the plaintiff’s claim suitable for placement on the undefended list. This question is relevant because of the requirements of Order III rule 9, which specifies the type of claims that qualify for placement on the undefended list, the rule provides:
“9. Whenever application is made to the court for the issue of a writ of summons in respect of a claim to recover a debt or liquidated money demand and such application is supported by an affidavit setting forth the grounds upon which the claim is based and stating that in the deponent’s belief there is no defence thereto, the court shall, if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the ‘Undefended List’, and mark the writ of summons accordingly, and enter thereon a date for hearing suitable to the circumstances of the particular case.” (Italics mine).
It can be seen from the italicised words that it is only in respect of claims to recover “a debt or liquidated money demand” that the court is permitted and empowered to entertain applications for writ of summons meant for placement on the undefended list. If the action is not for the recovery of a debt or liquidated money demand then no application for placement of the matter on the undefended list can be entertained by the court.
I think a useful guide may be found in Jowitt’s Dictionary of English Law where the following definition and explanation as to the nature of the “debt” are given. A debt is said to be-
“… a sum of money due from one person to another. .. An action of debt lay where a person claimed the recovery of a liquidated or certain sum of money affirmed to be due to him; it was generally founded on some contract alleged to have taken place between the parties, or on some matter of fact from which the law would imply a contract between them. This was debt in the debet, which was the principal and only common form. There is another species mentioned in the books, called debt in the detinet, which lay for the specific recovery of goods, under a contract to deliver them…..
A debt exists when a certain sum of money is owing from one person (the debtor) to another (the creditor). Hence ‘debt’ is properly opposed to unliquidated damages …; to liability, when used in the sense of an inchoate or contingent debt; and to certain obligations not enforceable by ordinary process … ‘Debt’ denotes not only the obligation of the debtor to pay, but also the right of the creditor to receive and enforce payment.
Debts are of various kinds, according to their origin …
Debts may be created under the provisions of various statutes …”
As we saw a short while ago, the defendant/appellant initiated an arrangement, by issuing exhs. 1 – 10 to the plaintiff/respondent, whereby the latter was to supply to it certain items at specified unit prices and undertook to pay the cost price to the latter if and when the latter made the supplies. It also undertook to pay specified sums for services it requested the plaintiff/respondent to render to it. As we also saw, the plaintiff/respondent went to court claiming that it made the supplies and rendered the services and expected to be paid the total amounts specified and agreed upon but with which sum, unfortunately and unjustifiably, the defendant/appellant was not forthcoming. From the definition and explanation we just saw of and concerning “debt” I have no doubt at all in my mind that the first relief sought by the plaintiff/respondent was a claim to recover a debt created in its favour against the defendant/appellant by contract, exhs. 1 – 10. The plaintiff/respondent was, therefore, justified in its application to the court below for the placement of that claim on the undefended list and the learned trial Judge was justified in entertaining the application and concluding it in favour of the plaintiff/respondent by placing it on the undefended list.
What of the second relief, which was for an order enjoining the defendant/appellant to pay a pre-judgment interest at the rate of 21% per annum from June 1993 to the date of the judgment and a post-judgment interest at 10% per annum till the judgment debt was liquidated?
There is nothing in the supporting affidavit or anywhere on record to indicate by what authority the plaintiff/respondent claimed itself to be entitled to the pre-judgment interest and how its rate was arrived at. That claim was clearly, therefore, not one to recover a debt.
Was it then a claim for the recovery of a liquidated money demand?
Of the term “liquidated demand” and the distinction between it and the term “unliquidated demand” Iguh, J.S.C. had this to say in Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78, at 102:
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ 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 in the nature of a 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. The term is also applied to sums expressly made payable as liquidated damages under a statute. In Eko Odume and Others v. Ume Nnachi and Others (1964) 1 All NLR 329 at 333 this court stated per Idigbe, JSC, as follows:
“We think, however, that the description by learned counsel of a claim for ?300 damages for trespass, as one for “liquidated damages” is erroneous.
A claim for damages does not become one for “liquidated damages” merely because a specific amount of money is claimed’.
But in every other case, where the court has to quantify or assess the damages or loss, whether pecuniary or non-pecuniary, the damages are unliquidated. So, too, 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 or what may be judged reasonable, the damages are said to be ‘unliquidated’. See Eko Odume and others v. Ume Nnachi and others (supra). Accordingly, the amount ultimately recoverable in a claim for unliquidated damages is incapable of prior ascertainment and may only be known at the end of the trial as the same is based on the estimate or opinion of the trial court. It is also right to say that because of the subjective nature of the assessment of unliquidated damages, two different courts can hardly award the same amount in the same claim.”
In the appeal before us there is no doubt in my mind that the plaintiff’s/respondent’s claim for pre-judgment interest is for the recovery of an unliquidated money demand. It is, therefore, outside the preview of Order III rule 9. The Judge was, therefore, wrong to have placed it on the undefended list. He should have transferred it to the general cause list for hearing in the normal way.
Finally, there was the claim for post-judgment interests. Should this have been placed on the undefended list?
I think the Judge proceeded correctly by so placing it. From its very nature and the authority for its payment I think it can be classified as a debt, or liquidated money demand. The obligation for its payment and the rate thereof are imposed and authorised by statute. See Order XLV rule 7, of the Federal High Court Rules, which provides:
“7. 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 per centum per annum to be paid upon any judgment, commencing from the date thereof or afterwards. ”
The amount of a judgment debt is known once the judgment is delivered. It is only a matter of arithmetical calculation to work out 5% of it. A claim for it is, therefore, in my view, one for the recovery of a debt or liquidated money demand that can be pursued by the undefended list procedure.
Now, was the learned trial Judge right in adopting the short-hand method he adopted of entering judgment against the defendant/appellant?
Considering the provisions of the rules, I think he was. See Order III, rules 11 – 13, which provide:
“11. If the party served with the writ of summons and affidavit delivers to the registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence, then and in such case the suit shall be entered in the general list for hearing.
12. Where any defendant neglects to deliver the notice of defence and affidavit, as described in rule 11 of these Rules, within the time fixed by the said rule, the court may at any time before judgment is entered, on an affidavit disclosing a defence on the merits and satisfactorily explaining his neglect, let in the defendant to defend upon such terms as the court may think just.
13. Where any defendant neglects to deliver the notice of defence and affidavit, prescribed by rule 11 of these Rules, within the time fixed by the said rule, and is not let in to defend in accordance with the provisions of rule 12 of these Rules, then and in such case, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally. ”
An obligation is clearly cast by these provisions on the defendant, if he intends to defend the action, to deliver to the Registrar of the court within the stipulated time his notice of intention to defend along with sufficient materials introduced, affidavit, to convince the court that he does indeed have a defence to the action. In the present case the plaintiff/respondent alleged, as has been seen, that he made the supplies and rendered the services as requested and has not been paid for the supplies and services. The defendant/appellant was served with all the necessary papers but failed to deliver the notice and other materials required of it to entitle it to contest the action. Exhs. 11 and 12, i.e., the notification of the issuance of the payment vouchers, are evidence that the defendant/appellant did acknowledge indebtedness to the plaintiff/respondent. The Judge was, therefore, justified in the circumstances in acceding to the request by the plaintiff’s counsel to proceed to judgment.
For all the reasons that I have given, I find that there is, subject to the comment I propose to make hereunder, no merit in the appeal as it relates to the decision of the trial court on the plaintiff’s/respondent’s main claim and same is accordingly dismissed.
The only thing that requires to be done now is to modify the judgment of the court below to conform to the law and to the justice of the matter, having regard to what the affidavit evidence before the court shows the plaintiff/respondent to be entitled to. Accordingly, I make the following consequential orders:
1. The judgment of the lower court granting the plaintiff’s/respondent’s first relief against the defendant/appellant is affirmed, subject to the modifications specified here. Obviously, the total amount of N1,470,000.00 awarded to the plaintiff/respondent included the sum of N77,000.00 alleged in paragraph 9 of the supporting affidavit to be the total value of the supplies ordered on exh. 1. Obviously there was an arithmetical miscalculation there. The same paragraph 9 stated the total number of items ordered to be 1,000 and the unit price to be N75.00. 1,000 items at N75.00 a piece gives N75,000.00 not N77,000.00. Paragraph 9 of the affidavit thus credited the plaintiff/respondent with N2,000.00 in excess of its actual entitlement. This excess should, therefore, be discounted from the total amount awarded to it.
Another amount that was awarded to the plaintiff/respondent to which it did not show itself by evidence to be entitled is the sum of N75,000.00 referred to in paragraph 12 of the affidavit. As regards all the other amounts claimed there was a backup document exhibited.
There was no back-up document in respect of this particular amount.
The failure by the defendant/appellant to defend did not relieve the plaintiff/respondent of the obligation to show, beyond its mere ipse dixit, that it was indeed entitled to every amount claimed. It still had the obligation of showing by evidence, albeit only prima facie, that it is entitled to the claim alleged. This is where I express complete agreement with my learned brother, Olagunju, JCA, in Enye v. Ogbu (2003) 10 NWLR (Pt. 828) 403, at 425 – 426, where he made the following observations:
“That leads me to the question of whether failure of the appellant as the defendant to file notice of intention to defend concludes the action in favour of the plaintiff which was agitated by learned counsel on both sides.
The answer depends on whether the primary duty to scrutinise whether the case is a proper one to be placed on the undefended list was discharged by the learned trial Judge. An affirmative answer to that inquiry predicates the conclusion that the plaintiff’s claim disclosed a prima facie case which the defendant is called upon to answer. In that case, failure of the defendant to file notice of intention to defend is deemed to be a tacit admission by the defendant of the plaintiff’s case and that entitles the plaintiff to judgment as of right.
Conversely, where the court failed or neglected to discharge the primary duty of ascertaining whether the plaintiff’s action disclosed a prima facie case to warrant its being placed on the undefended list the remiss in duty is fraught with the consequence that the Judge lacks the competence to hear the action and if the Judge tried the action based on failure of the defendant to file the statutory notice the trial would be a nullity as by so doing he would have shifted the burden of proof to the defendant to defend an action that has not been shown to disclose a prima facie case to warrant the defendant being called upon to defend. The corollary of failure to discharge the primary duty and proceeding in spite of the failure to hear the case may be a breach of fundamental right of the defendant as calling upon the defendant to defend a shadowy action is a denial of the right of fair hearing. To that extent learned counsel for the appellant is right that failure of the appellant to file notice of intention to defend does not relieve the learned trial Judge of the judicial duty to consider whether the action is one that should be placed on the undefended list. In the result the learned trial Judge having goofed about his primary duty issue one is resolved against the respondent.”
Since the plaintiff/respondent has not shown, as it did with respect to the other amounts claimed, that the defendant/appellant did in fact place the order alleged in paragraph 9 the amount involved ought not to have been awarded to it. There was no evidence in support of it.
The total amount to which the plaintiff/respondent showed, not just alleged, itself to be entitled, therefore, came down to N1,470,000.00, less N2,000.00 + N75,000.00 (=N77,000.00). The net result is, therefore, N1,395,000.00. That is what the learned trial Judge should have awarded. That is what I award.
2. Affirmed also is the judgment awarding interests on this sum from the date of the judgment till the judgment debt is fully liquidated. The rate is, however, in accordance with the provision of Order XLV, rule 7, of the Federal High Court Rules, reduced from 10% to 5%.
3. The judgment awarding pre-judgment interests in favour of the plaintiff/respondent is set aside. Subject to the plaintiff’s/respondent’s right of appeal against this particular order, the plaintiff/respondent shall, if it still desires to pursue the matter, within 90 days from the date of this judgment, move the lower court to transfer the issue of the pre-judgment interest to the general cause list for hearing and determination. Should it fail to so move the court that claim shall be deemed abandoned and shall accordingly stand struck out.
4. There shall be no orders as to costs.
Other Citations: (2006)LCN/1866(CA)
