Nigerian Universal Bank Ltd. & Ors. V. Samba Petroleum Company Ltd. (2006)

LawGlobal-Hub Lead Judgment Report

RHODES-VIVOUR, J.C.A.

This is an appeal against the ruling of Hon. Justice O. Oyewo of the High Court of Justice, Suleja, Niger State delivered on the 17th of October 2000.

The facts which led to the present proceedings are as follows:

The plaintiff/respondent sued the defendants/appellants on a writ of summons taken out on 9/10/98 claiming:

1. “A declaration that the 3rd defendant in a consolidated suit No: KDH/KAD/314/91 is claiming just money and not the plaintiff’s property and that at the end of that suit (and any appeal thereof) even if the Judgment is entered in favour of the 3rd defendant plaintiff will be ordered to pay money.
2. A declaration that until the suit between the 3rd defendant and the plaintiff which is now pending before the Court of Appeal, Abuja Division is conclusively determined the issue whether the property of the plaintiff can be auctioned cannot arise.
3. N3 Million against the defendants for trespass.
4. An order of perpetual injunction against the defendants and their agents or any person whosoever claiming through them from trespassing into the property of the plaintiff.”

At the time the suit was instituted the address of the 1st appellant was Nigerian Universal Bank, Yakubu Gowon Way, Kaduna, the 2nd appellant, No. 12 Ibrahim Taiwo Road, by Chanchangi Corner, Tundun Wada, Kaduna, while that of the 3rd appellant was Plot 613 Cadestral Zone A5 Off Gana Street, Maitama District, Abuja.

Simultaneously with the filing of the writ of summons the plaintiff filed a motion ex-parte on 9/10/98 seeking:

“An order restraining the defendants their agents or any body who claims through them from further trespass into the property of the plaintiff situate at Kaduna/Abuja Express Way, Suleja until the determination of the motion on notice.”

On 13/10/98 the learned trial Judge heard the application and granted it.

The writ of summons was thereafter served on the defendants without first obtaining leave to issue out of jurisdiction as provided by Order 5 rule 6 of the Niger State High Court Civil Procedure Rules Cap 54 of 1987.

On 21/10/98 learned counsel for the plaintiff moved another ex-parte application. This time he came under Order 12 rule 13 of the of High Court of Niger State Civil Procedure Rules seeking the following reliefs:

“1. Leave to issue and cause to issue and Leave to serve Writ of Summons in this Suit out of Jurisdiction of this Court.

2. An order deeming writ of summons issued on 9/10/98 and all the motions issued pursuant to the writ of summons properly issued.”

The application was granted on the same day and the case adjoined to 18/1/99 for mention.

Thereafter the learned trial Judge heard the following motions:

“1. Motion on notice filed by the plaintiff seeking interlocutory injunction.”

The trial Judge granted the interlocutory injunction on 15/11/99. At the hearing the 2nd defendant was represented by counsel, MR. B.F. Fashanomi, while the 1st and 3rd defendants were absent and unrepresented.

“2. On 14/12/99 learned counsel for the plaintiff asked for judgment in default of pleadings.”

The 1st defendant was absent and unrepresented while the 2nd and 3rd defendants were represented by counsel, MR. M.G.N. Okonkwo.

In a ruling delivered on 26/1/2000, judgment was entered for the plaintiff against the defendants for trespass in the sum of three Million Naira (N3,000,000.00).

In his submissions learned counsel for the plaintiff abandoned claims 1, 2, and 4. He asked only for N3m in his claim 3 and was granted.

After judgment, i.e. on 20/7/2000 six months after judgment, the 1st and 3rd defendants judgment debtors were represented by MR. P.O. Okolo while the 2nd defendant judgment debtor was represented by MR. B.L. Fashanomi.

Mr. Okolo filed a Motion on 4/7/2000 praying for the following orders:

“1. An order granting Leave to the 1st and 3rd defendants to enter appearance out of time in this case.

2. An order setting aside the judgment of this Honourable Court, delivered on 26/1/2000 in default of appearance.
3. An order setting aside the writ of attachment issued in execution of the said Judgment.”

And on 15/8/2000 while arguments on the above motion were still being heard Mr. Okolo, learned counsel for the 1st and 3rd defendants judgment debtors filed another motion wherein he sought the following orders:

“1. An order setting aside the writ of summons issued in the suit on 9/10/98 for lack of compliance with the rules of court.

2. An order declaring that the court has no jurisdiction to entertain this matter.
3. An order declaring all the proceedings in this suit as null and void and of no effect.”

Both motions were consolidated by order of court on 5/9/2000, on an application by Mr. Okolo, which was not opposed by learned counsel for the plaintiff.

In a considered ruling delivered on 17/10/2000 the learned trial Judge refused all the prayers and dismissed the applications.

Dissatisfied with the ruling the defendants filed a notice of appeal on 15/1/2001.

I have taken time to set out the facts of this case in some detail in view of the issues presented for determination.

In the notice of appeal, three grounds were presented. They are without their particulars:

“1. The trial court misdirected itself by not setting aside judgment based on the ground that the defendants have substantial defence to the action.

2. The trial court erred in law by refusing to afford the appellants fair hearing in the matter.
3. That the Honourable trial Judge erred by holding that the application was to set aside the judgment based upon a defective writ was not brought within a reasonable time before the appellants took a step.”

In accordance with Order 6 rules 2 and 4(1) of the Court of Appeal Rules 2002, briefs of argument were duly filed and served.

The appellants’ brief was filed on 18/2/02, while the respondents’ brief was filed on 28/6/05 after learned counsel for the respondent sought and obtained further extension of time to file his brief of argument.

Learned counsel for the appellant formulated two issues for determination of the appeal. They are:

“ISSUE 1

Whether the trial court gave the defendants/appellants a fair hearing in refusing to set aside its judgment given in default of pleading even though defendants/appellants contended that they have substantial defence to the action. ISSUE 2

Whether the trial court could have assumed jurisdiction to try the case, considering that the issuance and service of the writ of summons in the case was defective and not in accordance with the due process of Law.”

Learned counsel for the respondent also formulated two issues for determination of the appeal, and they are: “ISSUE 1

Whether the trial court erred by not setting aside the judgment on the ground that the appellants (as defendants) claim to have a defence to the action.”

ISSUE 2

Was the trial court wrong in holding that the application to set aside the writ of summons was brought after the appellants had taken steps in the case as well as not brought within a reasonable time.”

In my view the issues as formulated do not address the real complaint in this appeal. This court cannot be tied down to the issues as presented. The Court of Appeal in situations such as this is at liberty and has the power to adopt or even formulate issues that would determine the real complaint in the appeal. See:

Aduku v. Adejoh (1994) 5 NWLR Pt. 346 p. 582; Ikegwuoha v. Ohawuchi (1996) 3 NWLR Pt. 435 p. 146.

The issues formulated by me are as follows:

Issue 1

Whether non-compliance with the provisions of Order 5 rule 6 of the High Court of Niger State Civil Procedure Rules 1987 denies the court jurisdiction over the appellants.”

Issue 2

Whether or not the appellant was entitled to an order setting aside the judgment of the trial court given against the appellant in default of his filing pleading/valid defence to the action.

At the oral hearing of this appeal on the 16th day of February 2006, learned counsel for the appellant was present in court. Learned counsel for the respondent made no appearance and in accordance with Order 6 rule 9(5) of the Court of Appeal Rules 2002 the appeal was taken as argued on the brief already filed in court.

Learned counsel for the appellant urged us to strike out the preliminary objection for lack of diligent prosecution.

Preliminary objection filed by the respondent was struck out accordingly.

Learned counsel for the appellant thereafter adopted his brief of argument and urged us to allow the appeal and set aside the judgment of the lower court.

“Issue 1.

Whether non-compliance with the provisions of Order 5 rule 6 of the High Court of Niger State Civil Procedure Rules 1987 denies the court jurisdiction over the appellants.”

Learned counsel for the appellants, MR. P.O. Okolo in his brief of argument observed that the writ of summons was issued on 9/10/98 and served on the appellants outside the jurisdiction of the Niger State High Court without the leave of the court contrary to Order 5 rule 6 of the Niger State High Court Civil Procedure Rules 1987.

He submitted that the writ of summons is invalid since no leave was obtained prior to the issuance and nothing can cure it notwithstanding the motion moved by the respondent’s counsel on 21/10/98 purporting to validate the already issued and served writ of summons.

Reliance was placed on:

Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) p. 387; Nwabueze & Anor. v. Justice Obi Okoye (1988) 4 NWLR (Pt. 91) page 644; NEPA v. P.O. Onah & Ors. (1997) 1 NWLR (Pt.484) 680; (1997) 1 SCNJ 220.

He urged the Court to allow the appeal.

Learned counsel for the respondent MR. A.C. Amaechi in his brief submitted that the writ of summons was regularized by the order of the trial court on 21/10/2000, contending that it will be futile to challenge the already regularized writ of summons as this court lacks the jurisdiction to sit on appeal and pronounce on the order made when such an order was not challenged by way of appeal before it. Relying on:

Aermacchi S.P.A. & Ors. v. A.I.C. Limited (1986) 2 NWLR (Pt. 23) p. 443; Caribbean Trading & Fidelitly Corp. v. Nigerian National Petroleum Corporation (2002) 14 NWLR (Pt. 786) 133, (2002) 10 MJSC. p. 198.

He urged the court to dismiss the appeal.

The following defect was alleged by the appellants.

1. No leave of the lower court was obtained before the writ of summons which was to be served outside the jurisdiction of the court was issued.

Order 5 rule 6 of the Niger State High Court Civil Procedure Rules states the legal position. It states that:

“Subject to the provisions of these rules or of any written Law in force in the State, no writ of summons for service out of the jurisdiction, or of which notice is to be given out of the jurisdiction shall be issued without the leave of court or a Judge in Chambers.”

The well settled position of the law is that once a non-compliance or defect goes to the competence or jurisdiction of the court any subsequent proceeding is a nullity no matter how well the case was decided. See:

Madukolu v. Nkemdilim (1962) 2 SCNLR p. 341; Ezenwosu v. Ngonadi (1988) 3 NWLR (Pt. 81) p. 163 but where the defect does not affect the competence or jurisdiction of the court it is a mere irregularity.

Not obtaining leave before a writ of summons is issued as provided by Order 5 rule 6 supra is a breach of a rule of practice, a procedural irregularity and that omission, renders the proceedings irregular and clearly not a nullity.

A party served with a defective writ of summons or one in breach of statutory requirement should:

(a) enter conditional appearance, and

(b) raise objection timeously before taking any step.

Niger-Benue transport Co. Ltd. v. Narumal & Sons Ltd. (1986) 4 NWLR (Pt. 33) p. 117.

If the party acts timeously the writ of summons would be set aside.

See Nwabueze & Anor. v. Justice Obi Okoye (1988) 4 NWLR (Pt. 91) p.664; NEPA v. MRS. P.O. Onah & Ors. (1997) 1 NWLR (Pt.484) 680, (1997) 1 SCNJ p. 220.

Where the party decides to take part in the proceedings on the irregularity to the conclusion of the case he cannot be heard to complain about the defective writ of summons which in any case is a procedural irregularity.

The party can complain on appeal if he can show that he suffered miscarriage of justice as a result of the procedural irregularity. That appears to be the only exception to this general rule. See: Johnson v. Aderemi (1955) 13 WACA p. 297; Adebayo v. Shonowo (1969) 1 All NLR 176.

Where the party does not raise objection to the defective writ of summons timeously, that is to say he takes part in the proceedings as if all is well he would be deemed to have waived his rights to set aside the irregularity.

At this stage it is important I review cases on this issue.

In N.E.P.A. v. Onah (1997) 3 NWLR (Pt. 484) p. 680

There was non-compliance with Order 2 rule 16 of the Bendel State High Court Civil Procedure Rules. It is similar to Order 5 rule 6 of the Niger State High Court Civil Procedure Rules under consideration.

Order 2 rule 16 supra reads:-

“No writ for service outside the jurisdiction shall be signed and sealed without the leave of the court or a Judge.”

The Supreme Court had no difficulty setting aside both the writ of summons and the service on the defendants as no leave of court or judge was obtained prior to the issuance of the writ of summons. This was so because immediately after the writ of summons was served on N.E.P.A. its counsel applied by motion for an order setting aside the writ of summons on three grounds, the first being that the writ is invalid because of the failure to obtain leave to issue it since it was to be served outside the jurisdiction of the court.

It is clear learned counsel in the N.E.P.A. case acted timeously, he did not take any step before he raised objection to the defective writ of summons.

In Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) p. 664.

As the Anambra State High Court Civil Procedure Rules were silent on whether a plaintiff had to obtain leave first before he could issue the writ of summons, reliance had to be placed on Section 16 of the High Court Law of the State which provides that in such a situation the law and practice of the High Court of Justice of England on the 30th of September 1960 shall be applicable.

Order 2 rule 4 of the rules in force in England state that:

“No writ of summons for service out of jurisdiction or of which notice is to be given out of jurisdiction shall be issued except with the leave of the court or Judge.”

Leave to issue the writ was not obtained before it was served on the defendants outside the jurisdiction of the Anambra High Court. Chief F.R.A. Williams quickly applied to the court to set aside the writ for failure to comply with the mandatory provisions.

The Supreme Court set aside the writ of summons. Again this was because Chief F.R.A. Williams acted timeously. He did not take part in the proceedings before he raised objection.

Now, in Odu’a Investment Co. Ltd. v. Talabi (1991) 1 NWLR (Pt. 170) 761 a decision of the Court of Appeal that was affirmed by the Supreme Court. The suit was filed in Lagos against the defendant in Ibadan. The defendant was served in Ibadan Oyo State, a place outside the territorial jurisdiction of the Lagos State High Court.

Counsel entered appearance and gave an address for service within jurisdiction in Lagos State. When he was showed the statement of claim he sought and obtained plaintiffs counsel’s consent to file the statement of defence out of time. The statement of defence was filed out of time. The defendant received court processes and appeared in court when hearing of the action was fixed.

At no time did the defendant raise any objection to the writ or its service.

Subsequently the defendant filed a motion on notice praying the court to set aside the service of the writ of summons and statement of claim on him among other reliefs.

The trial court dismissed the objection holding that the defendant had waived his right to object by taking a step in the proceeding. The defendant appealed. The Court of Appeal dismissed the appeal, a decision affirmed by the Supreme Court in Odua Investment Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) p. 1.

In Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195 on a similar issue the Supreme Court held that since the objection was not raised preliminarily as was done in the case of National Bank Ltd. v. Shoyoye (1977) 5 SC 181; Sken Consult v. Ukey (1981) 1 SC 6 the appellant is deemed to have waived his rights to set aside the irregularity.

I must observe that quite a number of these cases examined the provisions of sections 97, 98, and 99 of the Sheriffs and Civil Process Act. They read:

“97. Every writ of summons for service under this part out of the State or the Capital Territory in which it is issued shall in addition to any endorsement or notice required by the Law of such State or the Capital Territory, have endorsed thereon a notice to the following effect (that is to say):

This summons (or as the case may be) is to be served out of the ……………. State (or as the case may be) and in the ……………. State (or as the case may be).

98. A writ for service out of the Region or part of the Federation in which it is issued may be issued as a concurrent writ with one for service within such Region or part of the Federation and shall in that case be marked as concurrent.
99. The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the court to the writ of summons shall not be less than thirty days after service of the writ has been effected, or if a longer period is specified by the rules of the court within which the writ of summons is issued, not less than that prescribed longer date,”

These provisions of the Sheriffs and Civil Process Act together with Order 5 rule 6 of the Niger State High Court Civil Procedure Rules 1987 provide for the way and manner a defendant residing outside the territorial jurisdiction of a State High Court (in this case Niger State High Court) can be served court processes.

The provisions are of utmost importance because a court has no jurisdiction over a person who has not been served with the writ of summons except where that person submits to the jurisdiction of the court. See:

Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 664.

These provisions are procedural requirements for service on a party residing outside the territorial jurisdiction of the court where the suit is instituted.

Where there is a breach, or non-compliance with any of the provisions, the writ of summons and service of same on the defendant would be set aside provided the defendant acted timeously and had not waived his right to object by taking a step in the proceedings.

In Ariori v. Elemo (1983) 1 SCNLR 1, (1983) 1 SC 13 waiver was explained thus:

“The concept of waiver is that a person who is under no legal disability and having full knowledge of his rights or interests conferred on him by Law, and who intentionally decides to give them (or some of them) up cannot be heard to complain that he has not been permitted the exercise of these rights or that he has been denied the enjoyment of these interests.”

In Carribbean Trading and Fidelity Corporation v. NNPC (1992) 7 NWLR (Pt. 252) 161, 185 Niki Tobi JCA (as he then was) explained waiver thus:

“Waiver carries some clement of abandonment of a known legal right. By his conduct, the person gives a clear impression that he is not ready to pursue his legal right in the matter. He may not say so in specific words. He may not say so at all. But once his conduct shows that trend, a court of law will hold that he has waived his right.”

I explain “waiver” thus:

“A person who takes part in proceedings, filing applications, moving and defending them, and defending applications filed by the adverse party, in the eyes of the law does so as if all is well. He would not be allowed after taking part in the proceedings to turn round to complain about things left undone that should have been done.

He would be deemed to have abandoned his legal right to object by his conduct: He is now estopped from objecting. The abandonment of his legal right to object to the irregularity amounts to waiver.”

My lords, the appellants were served the writ of summons issued without leave of court on 9/10/98. Instead of objecting to it they accepted service and appeared in court at various times thereafter. On 10/2/99, 10/3/99, 27/7/99 to oppose the respondents application for interlocutory injunction. On 10/8/99 when the ruling on interlocutory injunction was delivered, and on 14/12/99 when counsel for the respondent asked for judgment against the appellants in default of pleadings.

On 4/7/2000 they filed a motion on notice seeking:

1. An order granting leave to the 1st and 3rd defendants (appellants) to enter appearance out of time in this case.
2. An order setting aside the judgment delivered on 26/1/2000.
3. An order setting aside the writ of attachment issued in execution of the said judgment delivered on 26/1/2000.

The appellants did not complain that the writ of summons or the service on them was defective, it was not until 15/8/2000 that they filed a motion on notice seeking inter alia an order setting aside the writ of summons issued in this suit on 9/10/98.

The appellants waived their rights to complain about the defective writ of summons.

The appellants entering appearance on the strength of the writ of summons that was issued without leave of court, and participating in proceedings up, until finality constitutes a waiver of the irregularity. The writ of summons otherwise irregular is now regular as a result of waiver by the appellants and also the fact that the trial court regularized the issuance of the writ of summons by order made after hearing respondents counsel ex-parte on 21/10/98. A power a court has in ensuring that courts do not indulge in technicality at the expense of substantial justice. See: Carribbean Trading & Fidelity Corp. v. Nigerian National Petroleum Corp. (2002) 14 NWLR (Pt.786) 133, 2002 5 SC (Pt. 1) 21; Ogunbi v. Kosoko (1991) 8 NWLR (Pt. 210) 511; Nneji v. Ojukwu (1988) 3 NWLR Pt. 81 p. 184; Ezegbu v. F.A.T.B. (1992) 1 NWLR (Pt. 220) p. 699.

The appellants clearly in my view waived their legal rights in the matter.

ISSUE 2

Whether or not the appellant was entitled to an order setting aside the judgment of the trial court given against the appellant in default of his filing pleadings/valid defence to the action.

Learned counsel for the appellants observed that the refusal of the learned trial Judge to set aside his default judgment despite the fact that the defendants/appellants deposed to facts that they have substantial defence to the plaintiff/respondents claims denied the defendants/appellants the opportunity of being heard as enshrined in the Constitution.

Reliance was placed on:

Olaniyan & Ors. v. University of Lagos & Ors. (1985) 2 NWLR (Pt. 9) 599; Archibong Umo Udo v. Cross River State Newspaper & 1 Other (2001) 14 NWLR (Pt. 732) 116.

He added that the learned trial Judge was wrong to award the sum of N3m as unliquidated damages without assessing the damage. Reference was made to Order 26 rule 4 of the Niger State High Court Civil Procedure Rules of 1987.

Learned counsel for the plaintiff/respondent, on the other hand observed that the trial Judge was right not to set aside the judgment since the appellants did not satisfy the conditions for setting aside a default judgment as stated in African Bank Nigeria Ltd. v. Owoseni (1995) 2 NWLR (Pt. 375) 110.

Concluding he observed that the learned trial Judge was right in rejecting the application to set aside a judgment in default of appearance while no such judgment was delivered by the court.

The judgment of the court below delivered on 26/1/2000 in favour of the respondent against the appellants for trespass for the sum of N3m was a judgment in default of pleadings. See the judgment on page 16 of the record of appeal.

It was this judgment that the learned trial Judge refused to set aside. See the ruling complained of and the subject of this appeal on pages 31 to 38 of the record of appeal. The ruling was delivered on 17/10/2000.

It is thus obvious that the issue for determination here has to do with the refusal of the trial Judge to set aside judgment in default of pleadings and not judgment in default of appearance.

I shall say a thing or two about default judgments before I proceed to examine whether the trial judge was right. This is necessary because learned counsel for the respondent said in his brief of argument that:

“……..Under the Niger State High Court (Civil Procedure) Rules 1987 particularly Order 36 rule 9, any application for setting aside a default judgment must be brought within six days of the delivery of the judgment. The appellants did not comply with this rule as they made their application after over five months of the judgment and showed no good cause why the application was late and did not pray for an extension of time.”

It is only when a case is fixed for trial that the provisions of Order 36 rule 9 of the Niger State High Court Civil Procedure Rules Cap 54 of 1987 are applicable. It reads:

“Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just, upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown.”

Under Order 36 rule 9 of the High Court of Niger State Civil Procedure Rules 1987, a party can apply to set aside a judgment given in his absence:

(a) If the applicant did not appear in court when judgment was delivered;

(b) The applicant must have made his application within six days of the delivery of the judgment;

(c) If the applicant did not make his application within six days he should apply for extension of time to be able to make the application.

The authority for Order 36 rule 9 of the Niger State high Court Civil Procedure Rules is: Sanusi v. Ayoola (1992) 9 NWLR (Pt. 265) p.275.

In the Sanusi case the Supreme Court examined the provisions of Order 32 rule 4 of the Lagos State Civil Procedure Rules 1972. Order 32 rule 4 supra is ipissima verba with Order 36 rule 9 of the Niger State High Court Civil Procedure rules 1987.

It now becomes clear that the provisions of Order 36 rule 9 of the Niger State High Court Civil Procedure Rules is inapplicable. This is judgment in default of pleadings/valid defence and different considerations apply for setting aside such a judgment.

A judgment given after a normal trial, that is to say after evidence is taken, and submissions are made on issues of fact and the law arising from the evidence is a judgment on the merits.

On the other hand default judgments may arise from default of appearance or defence. Such judgments are not judgments on the merits since it was obtained by failure of the defendant to follow certain rules of procedure.

The well laid down principle is that until the court has pronounced a judgment on the merits or by consent, it has the power to revoke the expression of its coercive power when that has only been obtained by failure to follow any of the rules of procedure. See: Evans v. Bartlam (1937) AC 473.

A judgment for default of pleadings may be set aside by any Judge in the judicial division while the judgment was delivered. See Wimpey Ltd. v. Balogun (1986) 3 NWLR (Pt. 28) 324.

Under Order 26 rule 10 of the Niger State High Court (Civil Procedure) Rules the power to set aside a judgment in default of pleadings/defence is entirely at the discretion of the court, and there is no time limit within which the application may be brought to court.

The relevant considerations upon which the court exercises its discretion as to whether or not to grant the application are as follows:

(a) The reason for the default;

(b) Whether there has been undue delay in making the application so as to prejudice the respondent;

(c) Whether the respondent would be prejudiced or embarrassed if a rehearing is ordered;

(d) Whether the applicant’s case is manifestly unsupportable;

(e) Whether the applicants conduct from the service of the Writ of Summons on him is worthy of sympathetic consideration.

(f) That the judgment is tainted with fraud or is irregularly obtained;

(g) That the judgment was given for an amount in excess of what is due and claimed.

See: Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145; Ugwu v. Aba and Ors. (1961) 1 All NLR 438; Afribank (Nig.) Ltd. v. Owoseni (1995) 2 NWLR (Pt. 375) 110.

“My Lords, all these considerations should be resolved in favour of the appellant before a Judge can set aside his judgment given in default of pleadings.

In the instant case the trial Judge quite rightly in my view found that only one or two of the conditions could be resolved in favour of the appellant.

It must be noted that the appellant has not disclosed any valid reason for the failure to file statement of defence within the time stipulated by the rules.

Furthermore the appellants and their counsel were in court a good number of occasions before default judgment was entered and they took part in the proceedings on 14/12/99,the day the application for default judgment was heard and judgment delivered on 26/1/2000. I am of the view that the trial Judge rightly exercised his discretion in refusing to set aside the judgment in default of pleadings after examining the considerations earlier alluded to.

After examining the provisions of Order 26 rule 4 of the Niger State High Court Civil Procedure Rules 1987 under which judgment in default of pleadings was entered on 26/1/2000 one quickly comes to a different conclusion.

Order 26 rule 4 supra states that:

“Where the plaintiffs claim against a defendant is for unliquidated damages only, then, if that defendant makes default in pleading, he plaintiff may, after the expiration of the period fixed as aforesaid, for service of defence, have judgment entered against that defendant for damages to be assessed by the court and costs, and may proceed with the action against the other defendant, if any.”

Learned counsel for the appellant, MR. P.O. Okolo, in his brief observed that the trial Judge was wrong to award the respondent the sum of N3m.

Not a word was said on this point in the respondent’s brief. In the statement of claim the respondent claimed N3m for special and general damages for trespass. Particulars were pleaded as follows:

(a) Special damages

N2,850,000 being income accruing for the leasing agreement.

(b) General damages N150,000 occasioned by loss of business from other numerous customers as a result of the actions of the defendants.

The sum of N3m was thus claimed by the respondent for trespass by the appellants on the respondent’s filling Station situate at No. 12 Kaduna-Lokoja Road, Suleja, Niger State.

The respondent’s claim against the appellants is for unliquidated damages. Liquidated damages is a sum which a party agrees to pay.

That is to say the amount of damages has been ascertained.

Unliquidated damages on the other hand are damages that have not been assessed.

My lords, a claim for unliquidated damages can only succeed if it is assessed and this can be done by the trial Judge making his own assessment after hearing evidence.

In this case the respondent asked for N3m unliquidated damages for trespass and he was given the said amount by the Judge. Nowhere in the judgment or the record of appeal is it shown that the trial Judge assessed the claim for unliquidated damages. It is only after assessment that final judgment may be entered for the amount of the assessment.

The trial Judge ought to have called for evidence to assess the unliquidated damages claimed, or enter interlocutory judgment against the appellants for the damages to be assessed.

Interlocutory judgment in this situation means that such judgment is interlocutory only as to amount and final as to the right of the respondent to recover damages when ascertained. Final judgment can only be entered when the unliquidated damages are assessed.

In this case unliquidated damages were not assessed. The trial Judge was wrong to enter judgment for the respondent in the sum of N3m under Order 26 rule 4 of the Niger State High Court Civil Procedure Rules 1987.

In the light of all that I have been saying judgment in default of pleadings for the sum of N3 Million Naira in favour of the respondent against the appellants is hereby set aside.

Appeal succeeds.

It is hereby ordered that the judgment sum of N3 Million Naira be returned to the appellants forthwith and trial of the suit proceeds with dispatch before the Hon. Justice O. Oyewo of the Niger State High Court situate at Suleja.

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Other Citations: (2006)LCN/1929(CA)