United Parcel Service Ltd. V. Prince Obot Ufot (2005)
LawGlobal-Hub Lead Judgment Report
OMOKRI, J.C.A.
This is an appeal from the decision of Okpo E. Okpo, J., of the High Court of Akwa Ibom State, sitting at Ikot Abasi in suit No. HAB/41/2000, delivered on the 14/7/2000.
The facts, which led this case on appeal, as disclosed in the record of proceedings are that on or about the 24/3/98, the respondent entrusted a parcel containing a motion for judgment and supporting affidavit to the appellant for transportation from Ikot Abasi to Lagos and for delivery at Guinness Nigeria Plc., No. 24 Oba Akran Avenue, Ikeja, for valuable consideration. The respondent paid the sum of N840.00 on Receipt No. R/N 0148590. The appellant failed or neglected to deliver the said parcel to Guinness Nigeria Plc. at Ikeja. Despite repeated demands by the respondent the appellant refused to furnish the respondent with proof of delivery of the said parcel.
Aggrieved by the conduct of the appellant, the respondent instituted proceedings in the High Court of Akwa Ibom State at Ikot Abasi claiming as follows:
“Whereof the plaintiff claims from the defendant for non-delivery of the said parcel by the defendant as a common carrier and bailee for reward as follows:
(i) General damages … N12 million
(ii) Interest at 21% per centum per annum from the date of the writ until judgment and thereafter at 21% per centum per annum until the judgment debt is finally liquidated.
And the plaintiff claims against the defendant N12 Million.”
The appellant was served with the respondent’s writ of summons together with the statement of claim indorsed on the writ. Subsequently, the respondent filed a motion on notice dated 23/5/2000 for an order entering final judgment in suit No. HAB/41/2000 for the amount indorsed on the writ and the statement of claim together with interest at the rate of ten naira per centum per annum until the judgment debt has been wholly satisfied. The respondent alleged that the appellant was served with the motion. The allegation was denied totally by the appellant.
On the 30/5/2000, the appellant filed a memorandum of appearance dated 19/5/2000. Again on the 22/6/2000, the appellant filed a motion dated 22/6/2000 praying for:
“(i) an order extending the time within which to file a statement of defence in this suit.
(ii) an order deeming the statement of defence already filed and served as having been properly filed and served.”
The motion is supported with a 6-paragraph affidavit and an annexture marked exhibit ‘A’ which is the proposed statement of defence dated 22/6/2000. See pages 7-13 of the record. The said memorandum of appearance, motion on notice praying for extension of time and statement of defence were served on the respondent, but he refused service. See pages 13 – 14 of the record. It is important to note that the above incidence took place before the court heard the motion for judgment.
Subsequently, the respondent moved his application for final judgment. The appellant was absent. See pages 15-16 of the record. The learned trial Judge delivered his ruling and gave judgment in favour of the respondent in the sum of N12 million as representing general damages with interest at 21 per cent per annum from the date of the writ until Judgment debt is finally liquidated.
Dissatisfied with the judgment of the lower court, the appellant filed a notice of appeal dated 31/7/2000. The notice was amended on 23/8/2000. Finally, on the 25/4/01, the appellant filed a motion on notice for:
“(1) An order extending time within which the appellant/defendant/applicant may file a notice of appeal against the judgment of the Hon. Justice Okpo E. Okpo in suit No. HAB/41/2000 dated the 14th July, 2000.
(2) An order granting leave to the appellant/defendant/applicant to file notice of appeal at the Registry of the Court of Appeal, Calabar.
(3) An order deeming the notice of appeal filed at the Registry of the Court of Appeal, Calabar, with the same date herein as having been properly filed and served.
(4) An order that the bundle of documents and records of appeal in suit No. HAB/41/2000 already compiled and transmitted to this Honourable Court in Appeal No. CA/106M/2000 be used as the records of the new appeal.”
The foregoing prayers were granted by this court on the 10/5/01. In the notice of appeal, the appellant filed 2 grounds of appeal.
The appellant also filed a brief dated 21/9/01, and filed the same day wherein four issues were distilled for determination from the two grounds of appeal filed. The issues are as follows:
“(1) Whether the court below is right in disregarding the memorandum of appearance, motion of notice (sic) and statement of defence of the defendant because the documents filed referred to the plaintiffs as ‘Obot Ufot’ and not ‘Prince Obot Ufot’?
(2) Whether there is any evidence in the record that the defendant was served with the motion for judgment?
(3) If the answer to the second question is in the negative, whether the court was right in proceeding to hear the application?
(4) Whether in a claim for general damages, the court was right to go ahead and enter judgment in the sum claimed without the damages proved?”
The respondent filed his brief of argument pursuant to an application for an extension of time, which was granted and the brief was deemed properly filed and served on 7/1/04. The respondent at page 2 of his brief raised a preliminary objection under Order 3 Rule 15(1) of the Court of Appeal Rules, seeking for an order to strike out the appeal on the ground that it is fundamentally defective. The ground of objection is that the notice of appeal is defective and also that the issues for determination are so prolix and so proliferate as to be more in number than the grounds on which they are based.
In the alternative, the respondent at page 6 of his brief also formulated two issues for determination and they are:
“(1) Did the appellant comply with the provisions of Order 13 rule 1 of the High Court of Akwa Ibom State (Civil Procedure) Rules 1989?
(2) What is the consequence of failure to comply with the said statutory provision?”
Where an objection is raised as to the competence of an appeal, the jurisdiction of the court to entertain it becomes an issue. In such a situation, it becomes fundamental for the court to deal with it first before deciding on the next course of action. See State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33; Onyekwuluje v. Animashaun & Ors. (1996) 3 NWLR (Pt. 439) 637; Goji v. Ewete (2001) 15 NWLR (Pt. 736) 273. I am therefore obliged to consider the preliminary objection presently.
After a careful perusal and appraisal of the record of proceedings presented before this court, I observed that the respondent did not file a notice of preliminary objection in accordance with the provisions of Order 3 rule 15(1) of the Court of Appeal Rules, 2002. Rather, the respondent incorporated the notice of objection in his brief of argument. Since the brief was deemed filed and served from 7/1/04 and the appellant filed a reply brief in response to it, I presumed that the appellant has been given more than the statutory three clear days notice before the appeal was heard on 23/2/05.
The respondent did not set out the grounds of objection clearly and specifically in his brief of argument. More fundamentally, as the respondent incorporated his preliminary objection in his brief, he was obliged to move it in the court at the hearing of the appeal. In Abuulu v. Bensu (2003) 16 NWLR (Pt. 845) 59 at 86, this court held that:
“While notice of objection may be given in the brief, it does not dispense with the need for the respondent to move the court at the hearing for the relief prayed for.”
See Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285.
In Oforkwe v. Maduike (2003) 5 NWLR (Pt. 812) 166 at 171, the Supreme Court held that:
“Filing a process in court is different from arguing it in court. This is merely saying the obvious, but the obvious is relevant to the live issue. If a notice of preliminary objection is filed, counsel has a duty to move it to enable the court rule on it one way or the other. A court process which is not moved in court is as good as not filed, unless the process is not opposed by the respondent.
On which case the court will deem the motion as moved. In the instant case, the appellants failed to adduce any argument on their preliminary objection in the Court of Appeal. The objection was therefore deemed abandoned.”
Per Niki Tobi, JSC.
In this appeal, the respondent did not move this court on any preliminary objection. At the hearing of the appeal on the 23/2/05 the proceedings of court duly recorded was as follows:
“UPS Ltd. – Appellant
Vs.
Prince Obot Ufot – Respondent
- O. Akpoyoware for the Appellant.
Respondent Obong Ufot appears in person.
Akpoyoware: We filed the appellant’s brief dated 21/9/01. We also filed a reply brief dated on 14/10/03 and filed the same day. We adopt and rely on our brief and reply brief and urge the court to allow the appeal.
Obong Ufot: We filed our brief by leave of this court on 7/1/04.
I adopt and rely on the brief. I urge the court to dismiss the appeal.
Court: Judgment adjourned to 21/4/05.”
From the above proceedings of 23/2/05, it is clear and undeniable that the respondent, Obong Ufot made no submission on the notice of preliminary objection, which he raised in the respondent’s brief. The notice of preliminary objection incorporated in the brief of argument is a mere expression of intent by the respondent. Though the law permits a party to raise a preliminary objection in his brief, he must ask for leave to move the objection before the oral hearing of the appeal commences. Otherwise, it will be deemed to have been waived and therefore abandoned. See Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 270; Ariori v. Elemo & Ors. (1983) 1 SCNLR 11 and Obijuru v. Anokwuru (2001) 17 NWLR (Pt. 743) 685.
In the circumstances, it was imperative for the respondent to move his preliminary objection before the hearing of the appeal proper, particularly so when the appellant in its reply brief responded to and attacked the preliminary objection with all vehemence. Not having moved his preliminary objection the respondent must be taken to have abandoned it. See Oforkwe v. Maduike (supra).
Thus, the respondent having abandoned his preliminary objection, I have no option left than to strike it out. The preliminary objection is accordingly struck out.
On the main appeal, I must point out that the valid and current notice of appeal filed by the appellant is the one filed on 25/4/01, and deemed properly filed and served by this court on 10/5/01 pursuant to the motion on notice reproduced earlier on in this judgment. Because of the number of issues formulated by the appellant in this appeal, it is necessary that I reproduce the 2 grounds of appeal fully herein below:
“Grounds of Appeal:
(1) The learned trial Judge misdirected himself on the facts and in law and thereby erred in law, in entering final judgment on the 14th of July, 2000, in favour of the plaintiff in default of appearance and/or defence.
Particulars of Misdirection
(a) The appellant/defendant filed a memorandum of appearance dated the 9th of May, 2000, at the lower court on the 30th of May, 2000, which was at least six weeks before the said default judgment was entered;
(b) The appellant/defendant filed a statement of defence together with a motion for extension of time within which to file the statement of defence on the 22nd of June, 2000, at the lower court. The said motion was fixed for hearing on the 24th of July, 2000;
(c) The learned trial Judge did not consider the processes aforementioned before entering judgment for the plaintiff on the 14th of July, 2000, in default of appearance or defence;
(d) In consequence of the foregoing, the appellant/defendant was denied an opportunity to defend itself at the lower court.
(2) The learned trial Judge erred in law, when he entered judgment in the sum of N12 million as general damages in favour of the plaintiff/respondent.
Particulars of Error
(a) The sum of N12 million claimed as general damages in the plaintiff/respondent’s writ of summons was an unliquidated sum;
(b) The learned trial Judge is enjoined by Order 27 rule 4 and Order 14 rule 5 of the High Court (Civil Procedure) Rules of Akwa Ibom State to enter judgment only as to liability;
(c) The learned trial Judge should have ordered the plaintiff/respondent to lead evidence on the general damages claimed.”
From the 2 grounds of appeal, the appellant formulated 4 issues.
Apparently, the issues are so prolix and so proliferate as to be more in number than the grounds on which they are based. The issues formulated by the appellant ought to correlate with the grounds of appeal. See Consolidated Breweries Plc. v. Aisonueran (2001) 15 NWLR (Pt. 736) 424 at 448. The issues formulated by the appellant gallivant in the brief, therefore they will be discountenanced, as they go to no issue. It is bad and deplorable for the appellant to formulate more issues than the grounds of appeal because issues must be married to the grounds of appeal. This court has condemned the proliferation of issues in a plethora of cases. See Mechanic v. Onisesin (1998) 2 NWLR (Pt. 538) 446; Sale v. Yahaya (1998) 4 NWLR (Pt. 546) 462 and Igboidu v. Igboidu (1999) 1 NWLR (Pt. 585) 27.
In Onwo v. Oko (1996) 6 NWLR (Pt. 456) 584 at page 601, it was held that:
“An issue for determination ordinarily may be formulated from one ground of appeal or an issue subsumed from more than one ground of appeal. However, it is stupendous for seven issues to be postulated as arising from two grounds of appeal. In the instant appeal, there was no effort by counsel to identify the issues as arising from which particular ground of appeal. In other words, the court is assigned the responsibility to speculate on the matching of the issues with the grounds of appeal…”
However, in Consolidated Breweries Plc. v. Aisonueran (supra) page 424 at 448, this court held as follows:
“Where on appeal there is proliferation or prolixity of issues in a brief, the court merely rebukes, reprimands or cautions counsel. The party does not suffer any serious sanction or penalty. Such issues will only be discountenanced, as they go to no issue. The court will regard them as merely an excess load. In the instant case, the Court of Appeal rebuked the appellant’s counsel for the proliferation of issues but did not nullify the brief of argument.”
Although, it is counsel’s duty to formulate the parties’ set of issues for determination and not that of court, it is imperative that in order to put the parties’ case properly before it, the court should not hesitate to identify the issues that ought to be addressed in such circumstances. See also Bankole v. Pelu (1991) 8 NWLR (Pt. 211) 523 and Adediran v. Inter Land Transport Ltd. (1991) 9 NWLR (Pt. 214) 155.
Taking a cue from the above cases, it appears that the court is obliged to perform a surgical operation on the issues for determination formulated by the appellant in its brief of argument in the interest of justice. A careful examination of the grounds of appeal reveal that Issue numbers 1 and 4 are derivable therefrom and they deal with issues fairly arising from the grounds, though they ought to have been better framed.
Issue Nos. 2 and 3 are not derivable from the either of the two grounds of appeal filed by the appellant. They are issues at large gallivanting in the appellant’s brief. They are therefore incompetent and must be discountenanced and I hereby strike them out.
The respondent apart from raising preliminary objection in his brief also formulated 2 issues for determination in the alternative. Having examined the 2 issues formulated by the respondent, it is my view that they are subsumed in Issue No. 1 formulated by the appellant and can be fairly considered together. Indeed, the 2 issues formulated by the appellant appear more concise, succinct and therefore more acceptable and preferable. I shall therefore rely on the 2 issues formulated by the appellant in this appeal.
On Issue No.1, learned Counsel for the appellant, Miss Akpoyoware submitted that a court of law should be slow to enter judgment against a party that has not been heard. She referred to the case of Dike Nwora v. UBA Ltd. (1978) 2 LRN 149 – 155, where the Supreme Court held that even without an application for extension of time, so long as there is a statement of defence in the court’s record disclosing substantial grounds of defence no court of law should ignore it. Counsel pointed out that a statement of defence was filed before the lower court in suit No. HAB/41/2000 and it should not have been disregarded and that similarly, a memorandum of appearance was filed in the suit and they are part of the court’s records.
Miss Akpoyoware submitted that by the combined effect of Order 14 rule 5 and Order 27 rule 4 of the High Court (Civil Procedure) Rules, the respondent ought to call evidence to prove the general damages but the trial court failed to do so. She also pointed out that the lower court was wrong to have ignored the provision of its own rules in entering judgment in the sum claimed without any iota of evidence on the issue of damages.
The respondent, who is a legal practitioner, appeared for himself and argued that the appeal rests on the proper construction of the provisions of Order 13 rule 1 of the High Court (Civil Procedure) Rules of Akwa Ibom State. He submitted that the appellant did not enter an appearance within the eight days stipulated by the rules, therefore; the memorandum of appearance entered is a nullity. He relied on the case of Katto v. Central Bank (1991) 9 NWLR (Pt.214) 126; (1991) 12 SCNJ page 1 at p. 3; Sanusi v. Ayoola & Ors. (1992) 9 NWLR (Pt.265) 275, (1993) 10 LRCN at page 273 and submitted that where the exercise of power is statutory, such power can only be exercised within the limits prescribed by the statute. The respondent proffered no argument or submission in his brief on Issue No.2 formulated by the appellant.
From the submissions of the parties in this appeal, it is clear and undisputed that the appellant filed a memorandum of appearance. The argument of the respondent is that the memorandum of appearance was not filed in compliance with the provisions of Order 13 rule 1 of the High Court (Civil Procedure) Rules of Akwa Ibom State, in that, the appellant did not enter an appearance within 8 days after the writ was served on it. At pages 7 and 8 of the record of proceedings of the lower court, it is recorded that the appellant (defendant before the lower court) filed a memorandum of appearance dated 19/5/2000 and filed on 30/5/2000. The memorandum of appearance was in the record of the court below and the trial Judge cannot deny this fact. No matter the defect on the memorandum of appearance, the court was obliged to consider it and rule one way or the other. To pretend that it did not exist in the file or to discountenance same after becoming aware of it leaves much to be desired. The attitude of the trial Judge is not compatible with the interest of justice.
Quite apart from the memorandum of appearance, the appellant also filed a motion on notice dated the 22/6/2000 and filed the same day before the lower court praying for an order extending the time within which to file a statement of defence in suit No. HAB/41/2000 and for an order deeming the statement of defence already filed and served as having been properly filed and served. The motion, the supporting affidavit and the proposed statement of defence are at pages 8, 9, 10, 11 and 12 of the record.
The court bailiff tried to serve the respondent (plaintiff) with the court processes filed by the appellant. The respondent refused service because the processes were titled “Obot Ufot” and not “Prince Obot Ufot” notwithstanding that they were marked for service on Prince Obot Ufot.
At page 13 under the heading “Return of Unserved Motion” the Chief Bailiff, one Elder I. I. Obot on the 26/06/2000 notified the Assistant Chief Registrar of the court, of the refusal of the respondent to accept service of the said court processes.
At page 14 of the record, the Chief Bailiff, Elder I. I. Obot on the 5/7/2000, wrote another letter to the Assistant Chief Registrar reporting the refusal of the respondent to sign and collect the memorandum of appearance and statement of defence filed by the appellant. At the foot of the letter, the Assistant Chief Registrar endorsed the letter to the clerk of court asking him to show the Judge the report of refusal to collect the court processes.
Despite the above, the respondent at page 15 of the record proceeded to move his motion for final judgment on the ground that the appellant had no defence to the action. The Judge entered final judgment for the respondent in the sum of N12,000,000.00 claimed.
I observed that the trial Judge in his ruling at pages 16-17 of the record did not refer to either the memorandum of appearance or the motion for extension of time or the statement of defence, which were in the record of the court. It was as if the court processes never existed. It is the bounding duty of a court to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. This is so even where a statement of defence was irregularly filed. The court in the interest of justice is bound to examine it to see if it discloses a defence on the merit. See A.-G., Federation v. Ajayi (2000) 12 NWLR (Pt. 682) 509 at 533.
In Mohammed v. Musawa (1985) 3 NWLR (Pt. 11) 89 at 95, this court held that:
“As rightly pointed out by the learned Counsel for the appellants the fact that the application is brought after the time allowed to perform the act for which permission to perform is now being sought, or that the respondent’s counsel was about to move his application for leave to enter judgment in default of defence when an application for extension of time within which to file such a defence was served on him in court, is no sufficient reason for the learned Chief Judge to refuse audience to the appellants, thus, ignoring the contents of the proposed statement of defence and the counter claim.”
In this case on appeal, the trial Judge gave no reason in his ruling why he refused or discountenanced the memorandum of appearance, the motion for extension of time within which to file statement of defence and the proposed statement of defence filed. Rather, the trial Judge in his ruling at page 17 lines 17-23 held as follows:
“In the instant case, the defendant had been served and there is proof of service before me. No appearance has been filed. Defendant is not within time. There is no motion before the court for extension of time to enter appearance and none for extension of time to file statement of defence.
From the foregoing the application of the applicant is readily granted as prayed.”
It is significant to note that the memorandum of appearance was filed on 30/5/2000, whereas the ruling was delivered on 14/7/2000 about 45 days after the memorandum of appearance was filed in the registry of the court. Similarly, the motion on notice for extension of time within which to file statement of defence of the appellant dated 22/6/2000 was filed 22/6/2000, that is to say, 22 days before the ruling of the court was delivered. To say that the appellant did not file a memorandum of appearance or motion for extension of time within which to file a statement of defence is incorrect even on the face of the record.
The mere fact that the trial Judge ignored or pretended not to be aware of the court processes or that the respondent refused service because the processes were titled “Obot Ufot” and not “Prince Obot Ufot”, notwithstanding that they were marked for service on Prince Obot Ufot, would not amount to “not filing what had already been filed. A document is deemed to have been filed in court when same is deposited in a court office with the proper court officer assigned with the responsibility. See Commercial Union Assurance Co. Ltd. (1899) 18 NLR 585; Mohammed v. Musawa (supra).
There is the evidence of the endorsement of the Chief Bailiff indicating that the said processes were indeed filed. The processes are in the court’s records as stated earlier on in this judgment. There is clear evidence that the Assistant Chief Registrar endorsed the processes and directed the Court Clerk to let the Judge see same.
See page 14 lines 28 – 32 of the record. This court is bound by the record. It is therefore undeniable that the trial Judge was very much aware of the said court processes. Where an application is brought before the court, it is the duty of the court to consider the application before it and make a specific ruling on it. The fact that the trial Judge ignored the court processes before it amounted to a serious miscarriage of justice. See Ikono L.G. v. De Beacon Fin. & Sec. Ltd. (2002) 4 NWLR (Pt. 756) 128 at 138.
Where there are two motions before a court, one seeking an extension of time to file a statement of defence out of time and the other seeking judgment in default of defence, the motion for extension of time to file the statement of defence should be taken first before the motion for judgment as it would save the case and allow it to be heard on the merit. In the instant case, the trial Judge rather than ignore the appellant’s motion for extension of time ought to have taken it instead of the respondent’s motion for final judgment in order to hear the case on merits. See Ojikutu v. Odeh (1954) 14 WACA 640. In Sparkling Brew Ltd. v. B.C.C.I. (Nig.) Ltd. (2003) 3 NWLR (Pt. 806) 1 at 9, this Court held that:
“Where a defendant had filed his statement of defence before the plaintiff’s application to enter judgment in default was taken, it would be wrong for the trial court to ignore such defence even if it was filed out of time.”
In this case, the trial Judge did nothing about the motion for extension of time to file the statement of defence and thereby committed a fundamental procedural error. So long as there is a statement of defence in the court’s record, which discloses substantial defence, no court of law should ignore it. Unless, there is an unreasonable delay in making the application or deliberate neglect on the part of an applicant to prosecute his defence, or that the proposed statement of defence does not reveal a defence on the merit (which is not the case here), the attitude of the court is always to lean towards the applicant to put in his defence so as to have the case decided on merit in order to avoid miscarriage of justice. The court has the unfettered discretion instead of proceeding to judgment to give leave to the defendant to perfect the default if justice demands that the court should take that course. See Wallersteiner v. Mar (1974) 3 All ER 217.
In conclusion, it is my finding that the trial Judge was palpably wrong to ignore the memorandum of appearance, the motion for extension of time within which to file statement of defence and the proposed statement of defence filed. I, therefore, resolve Issue No.1 in favour of the appellant.
On Issue No.2, I observed that the respondent in his brief of argument did not proffer any arguments relating to the issue of whether the learned trial Judge was right to enter judgment in the sum of N12,000,000.00 claimed as general damages without any iota of evidence. He must therefore be taken to have admitted the arguments of the appellant in respect of Issue No.2 in the brief. Ordinarily, I would be perfectly in order to resolve the uncontroverted and uncontested issue in favour of the appellant without much ado but in my view, it is important that I deal with the issue raised thereat in some detail to see if it is meritorious or not.
The portion of the judgment complained by the appellant is at page 17 lines 25-29 of the record and it reads:
“Judgment is hereby entered for the plaintiff in the sum of N12 million Naira as representing general damages with interest at 21 per centum per annum from the date of the writ until judgment debt is finally liquidated.”
The motion for judgment in default of appearance on defence was brought pursuant to the provisions of section 272(1) of the 1999 Constitution, Order 14 rule 1, Order 27 rule 2(1) and Order 40 rule 7 of the High Court (Civil Procedure) Rules (1989) of Akwa Ibom State. However, by virtue of Order 27 rule 4 of the same rules, it is provided that:
“Where the plaintiff’s claim against a defendant is for unliquidated damages only, then if that defendant makes default in pleading, the 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 defendants if any.”
To begin with, damages are pecuniary compensation, obtainable by success in an action for a wrong, which is either a tort or a breach of contract, the compensation being in the form of a lump sum awarded at the time, unconditionally and generally. See Agbanelo v. Union Bank (2000) 7 NWLR (Pt.666) 534; (2000) 2 NSCQR 415 at 432 per Ayoola, JSC.
Now, in view of the fact that the respondent claimed a specific sum of N12,000,000.00., it is absolutely necessary to determine whether his claim was a liquidated damage or unliquidated damage.
In Maja v. Samouris (2002) 7 NWLR (Pt. 765) 78 at 102, (2002) 9 NSCQR 546 at 563, Iguh JSC; held that:
“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…”
See also Eko Odume & Ors. v. Ume Nnachi (1964) 1 All NLR 329 at 333.
In the case of unliquidated damages, it is settled that 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 Maja v. Samouris (supra) and Odume & Ors. v. Nnachi & Ors. (supra).
In Vanguard Media Ltd. v. Ajoku (2003) 11 NWLR (Pt. 831) 437, the provisions of Order 27 rule 4 of the High Court of Rivers State (Civil Procedure) Rules, 1987, which are identical with Order 27 rule 4 of the High Court of Akwa Ibom State, were examined, considered and interpreted. It was held at page 441 of the report that:
“A claim for liquidated damages does not become such merely because a specific amount of money is claimed.
Whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data, it is said to be liquidated or made clear. But when the amount to be received depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to be unliquidated. In the instant case, the description by the respondent’s counsel of the claim of N20,000,000 damages for libel as liquidated damages is erroneous.”
See also, Faladu v. Kwoi (2003) 9 NWLR (Pt. 826) 643 at 653 and AIB Ltd. v. Packoplast (Nig.) Ltd. (2003) 1 NWLR (Pt.802) 502.
In this case on appeal, the claim of the respondent is not a debt, nor an already ascertained or precise amount fixed by any positive data, which the respondent is entitled to, from the appellant as a result of a breach of contract. It is therefore not a claim for liquidated pecuniary damages. Rather, the respondent’s claim is of a category where the court has to quantify or assess the damages claimed. The claim is therefore an unliquidated pecuniary damage. A claim for damages does not become one for “liquidated damages” merely because a specific sum of money is claimed. Similarly, it will be wrong for the respondent to claim that the sum of N12,000,000.00 is a liquidated damage. It is my firm and well considered view that his claim is for unliquidated damages.
Now, by the clear, simple and unambiguous provisions of Order 27 rule 4 of the High Court (Civil Procedure) Rules of Akwa Ibom State, it was necessary for the trial court before entering judgment for the respondent to have heard evidence in order to assess the damages to be awarded. A court should not enter summary or default judgment on a claim for unliquidated damages without taking evidence for the assessment of the amount of damages that may be proved as such claim must be established by credible evidence.
In Umunna v. Okwuraiwe (1978) 6-7 SC 1, it was held that 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 also, Olurotimi v. Felicia Ige (1993) 8 NWLR (Pt. 311) 257 at 266.
In Oke v. Aiyedun (1986) 2 NWLR (Pt. 23) 548; Aniogolu, JSC, said at page 565 that:
“It is a principle of pleading that that which is not denied is deemed to have been admitted and if a plaintiff filed a statement of claim and the defendant failed or refused to file a statement of defence in answer thereto, he clearly, will be deemed to have admitted the statement of claim, leaving the trial Court with the authority to peremptorily enter judgment for the plaintiff without hearing evidence.
An exception to that would obviously be in respect of a claim for damages, for damages are always said to be in issue, requiring the plaintiff to prove them.”
Not having heard evidence on the general damages claimed by the respondent, the judgment of the trial court cannot stand. I, therefore, resolve Issue No.2 in favour of the appellant. The appeal is meritorious and I hereby, allow it.
Accordingly, the default judgment entered at the court below presided by Okpo E. Okpo, J., and delivered on 14/7/2000 in suit No. HAB/41/2000 be and is hereby set aside. The suit is remitted to the Chief Judge of Akwa Ibom State for reassignment to another Judge of the High Court of Akwa Ibom State other than Okpo E. Okpo, J. I award costs of N10,000.00 in favour of the appellant and against the respondent.
Appeal allowed.
Other Citations: (2005)LCN/1734(CA)
