Mr. M. A. Abiara V. Registered Trustees of the Methodist Church of Nigeria (2007)

LawGlobal-Hub Lead Judgment Report

MUNTAKA-COOMASSIE, J.C.A.

This is an appeal against the judgment of the High Court Ado-Ekiti, Ekiti State of Nigeria coram Bamisile J. in which judgment is entered in favour of the plaintiff.

The respondent herein was the plaintiff, who on 13/9/2004 sued the defendant/appellant and claimed as follows:-

“(a) A sum of five million Naira (N5,000.000.00) being damages for trespass committed and still being committed by defendant on plaintiffs landed property at 4, Ifelodun Avenue, Dallimore Area, Ado-Ekiti.

(b) A perpetual injunctive order restraining the defendant, his agents, servants, privies and howsoever, from committing any further or other acts of trespass whatsoever on the land and from going to the land for any purpose whatsoever.”

The claim, in a nutshell, is for general damages for trespass and perpetual injunction. The defendant for one reason or the other was said to have refrained from defending the suit.

Before trial commenced in earnest the plaintiff filed an interlocutory application dated 21/10/2004 praying for an order restraining the defendant/respondent, his agents, servants and privies from harassing, embarrassing or disturbing plaintiff/applicant’s members on the land in dispute and from going or entering into the premises of plaintiff/applicant for any purpose whatever pending the disposition of the substantive case herein.

The said motion was granted and the defendant was restrained.

See p. 12 of the record of proceedings for the drawn order of the trial court. Contempt of court proceedings was conducted and the defendant was then ordered to be arrested and to be committed to prison custody until he purges himself on 20/6/2005. See p. 19 of the record.

Later on 11th of July, 2005 the junior brother of the defendant contemnor filed a motion on notice for the release of the defendant on the ground that he regretted his action and purged himself. The court in another application granted an extension of time for the defendant to file his statement of defence. On the 5/1/2005 the defendant filed his statement of defence in which he totally denied the claim of the plaintiff and averred forcefully that the plaintiff did not have any church building at 4, Ifelodun Avenue, Dallimore-Area, Ado-Ekiti. Finally, the defendant urged this court to hold that the plaintiff’s claims are unmeritorious, frivolous, vexatious and an abuse of court process.

The plaintiff’s counsel then filed an application for the court to enter judgment in their favour. The defendant failed to file a counter affidavit to the application. The motion, to be precise, is dated 15/12/2004 and is praying for an order for judgment consequent upon the default of the defendant to file a defence in this case. Learned counsel for the plaintiff then Akanle, SAN contended that the defendant did not put up appearance. The motion for judgment according to Akanle, SAN was duly served on the defendant since on 21/11/2005. He relied on the cases of Salawa Oke & 3 Ors. v. Musilim Lamidi Aiyedun (1986) 2 NWLR (Pt.23) at 548/565, paras. D – E; and Ogunleye v. Arewa (1960) WNLR page 9 at 11.

On 21/3/2006 learned counsel to the defendant replied on point of law and urged that it is a settled principle of law that in a claim for unliquidated damages evidence must be led to the damages suffered. Where claim has to do with unliquidated damages evidence ought to be led. He quoted the prayers of the plaintiff i.e. the sum of Five Million Naira being damages for trespass committed and perpetual injunction. Learned counsel for the defendant/respondent in the trial court, Mr. Toyin Ajibulu, urged that court to discountenance the application of the plaintiff. According to the learned applicant’s counsel, he concedes that if it is special damages that is prayed then evidence is required to be led and not general damages. He relied on Oke v. Aiyedun (1986) 2 NWLR (Pt.23) 548/550. He cited other authorities and urged the court to enter judgment in favour of the plaintiff as it is only where claim is of special damages that the plaintiff is expected to lead evidence to prove special circumstances. Learned counsel for the plaintiff further in arguing additional legal submission contended that the case of Lambert Sunday Iwueke v. Imo Broadcasting Corporation (2005) 17 NWLR (Pt.955) 417 relied heavily by the defendant was decided on the special rules of the High Court of Imo State which is not clear if it is applicable in Ekiti-State. For that reason, that case is not relevant, and he submitted that the applicable Rules in Ekiti State is that of Ondo State High Court Order 27 rule 8 thereof. In a considered ruling delivered on 29/6/2006 learned trial Judge at pages 41 – 42 found in favour of the plaintiff, as follows:-

“This court therefore held that this court has the power to enter judgment in favour of the plaintiff/applicant, as it is only where a claim of special damages, that the plaintiff is expected to lead evidence to proof (sic) those special circumstances. Similarly the plaintiffs’ application hereby succeeds and the plaintiffs/applicants claim as contained in writ of summons is hereby granted because they are not been disputed by the defence/respondent. Consequently I intend to use my discretion.

I therefore award a sum of one million naira (N1,000.000.00) being committed by defendant on plaintiffs landed property at 4, Ifelodun Avenue Dallimore Are Ado-Ekiti and also granted perpetual injunction as prayed.”