Eko Odume & Ors V. Ume Nnachi & Ors (1964)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C. 

The point in this appeal is whether the High Court, Eastern Nigeria can give judgement on a statement of claim filed in an action without receiving any evidence on the claim set out in the relief paragraph thereon. The claim of the respondents was for £300 damages for trespass on a parcel of land and injunction. Pursuant to an order for pleadings made in July, 1961, respondents filed a statement of claim,but appellants failed to file a statement of defence. When on the 18th of February, 1963, the case was mentioned; Counsel for respondents referred to the failure by appellants to file a statement of defence and further observed that no application for extension of time to file a statement of defence had been made by them. Counsel for appellants acknowledged their failure to file a statement of defence, and after observing that an appeal against a judgment of the High Court in another case relating to the same land, and between the same parties, was then pending in the Federal Supreme Court, contended that in those circumstances, a statement of defence would serve no useful purpose. As defence Counsel neither applied for an adjournment, nor for extension of time within which to file a statement of defence, Counsel for respondents asked for judgment. Whereupon the learned Judge (Phil-Ebosie J.) entered judgment for respondents in terms of their writ but without receiving evidence on the claim.

The only ground of appeal argued before us by Counsel for appellants reads as follows:

‘The learned trial Judge erred in law by entering judgment for plaintiffs without hearing them.”

This ground of appeal has not been happily worded, but it was clear from the argument of counsel that the gravamen of appellants’ complaint was that the learned Judge erred in law in proceeding to give judgment for the respondents without first receiving any evidence onthe claims for £300 damages for trespass and injunction. In further support of his contention, learned Counsel for appellants referred us to the provisions of Order 41, rule 3, High Court Rules (Eastern Nigeria) 1955 (hereafter referred to as H.C.R.), and Section 15 High Court Law (Eastern Nigeria) 1955 (hereafter referred to as H.C.L). Section 15 H.C.L reads:-

‘The jurisdiction vested in the Court shall be exercised (as far as regards practice and procedure) in the manner provided by this Law and in any other written law or by such rules and ordersof Court as may be made pursuant to this Law or any other written law, and, in default thereof in substantial conformity with the law and practice for the time being observed in England in the High Court of Justice.”

Rule 3 of Order 41 H.C.R. reads:

“If the plaintiff appears (i.e., at the trial ) and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the Court may, upon proof of service of the summons, proceed to hear the cause and give judgment on the  evidence adduced by plaintiff…:’ (bracket is by this Court).

In the case in hand, parties were present in the Court below, when the learned Judge dealt with the case, and that being so, it is clear that the provisions of the rule 3 of Order 41 H.C.R.are inapplicable.

The High Court Rules (Eastern Nigeria) 1955 do not contain any specific provisions for a situation where, as In the instant case, following a defendant’s default on a previous order for pleadings, a plaintiff proceeds to ask for judgment; and it is our view that in those circumstances the relevant provisions of the Rules of the Supreme Court,England (hereafter referred to as R.S.C. (England) will, by virtue of section15 H.C.L., apply. In a similar situation arising in the High Court of Western Nigeria, the Federal Supreme Court held that relevant provisions of the R.S.C.(England), applied-see Aderlde Ogunleye v. Gabriel Arewa decided on 3rdSeptember, 1959, and reported in [19601 W.R.N.L.R. p. 9. In that case, the Federal Supreme Court upheld a judgment given by the High Court, without receiving any evidence on a claim for declaration of title, following an application for judgment made on notice of a motion filed by plaintiff who had previously delievered a statement of claim; and Quashie-Idun Ag. F.J. (as he then was), in delivering the Judgment of the Court, made the following observation:

“As the defendant failed to deny these allegations of the plaintiff, we think that the provisions of the Western Region High Court Rules would be rendered ineffective if order 27, rule 11 ofthe Rules of the Supreme Court, England were not applied, for it would mean that even though no defence has been filed in answer to material averments by the plaintiff, the Court would still be bound to hear evidence as if no statement of claim has been filed. This would also reduce the Rules and practice of pleadings to absurdity….”-see (1960] W.R.N.L.R. at p. 11.

With the above observations we are incomplete agreement, and we would again remind Counsel of their duty, In the conduct of cases for their clients, to adhere strictly to the provisions of the Rules of Court. The claim in Ogunleye v. Arewa was, however, for a declaration of tithe merely and the claim in the case in hand is for £300 damages for trespass and injunction; and we think it proper to draw a distinction between the two cases; since in our view different considerations apply to the case now under appeal.

Learned Counsel for respondents, in his endeavour to support the procedure by which the award of £300 damages for trespass was made, referred us to rule 2 of the former Order 27 R.S.C.(England) and contended that as the claim for £300 for damages for trespass was a claim for ‘liquidated damages’ the respondents (i.e., plaintiffs) were entitled to final judgment for the amount claimed on a summary application. We think, however, that the description by learned Counsel of a claim for £300damages 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. ‘Whenever the amount to which the plaintiff is entitled can be ascertained by calculation or fixed by any scale or other positive data it is said to be LIQUIDATED or ’made clear’. But when the amount to be recovered depends on all the circumstances of the case and on the conduct of the parties and is fixed by opinion or by an estimate, the damages are said to be UNLIQUIDATED.”-See Odgers on The Common Law (1927) 3rd Ed. Vol. 2, p. 654.In our view, the provisions of rule 2, of the former Order 27 R.S.C. (England),do not apply in the present claim.

As already observed, the claims before the lower Court are for damages for trespass and injunction and not as in the case of Ogunleye (above cited), merely for a declaration of title.