Alhaji Abubakar Jali Gambo V. Jerry Ikechukwu (2003)
LawGlobal-Hub Lead Judgment Report
ZAINAB A. BULKACHUWA J.C.A.
By a Writ of Summons drawn up on the undefended list the respondent as one of three plaintiffs claimed against the appellant as defendant before the High Court of the Federal Capital Territory Abuja, the following reliefs;
1. The sum of N600,000.00 (Six hundred thousand Naira) only being money to be collected by the plaintiffs as commission in the transaction of a house on Plot No, 2850 at Maitama A6, Federal Capital Territory Abuja belonging to the Defendant, out of the sum demanded N200,000.00 (Two hundred thousand Naira) only has been collected vide a cheque No. PA/3003859 On the 18th October, 1995 paid to the 2nd Defendant.
2. (Ten Per cent) 10% interest on the sum of N400,000.00 (four hundred thousand naira) only from the date of judgment to liquidation.
3. N1,000,000.00 (One Million Naira) only as general damages for breach of contract.
An order for substituted service on the defendant/appellant was made by the court on the 6th day of May 1996. On the 2nd day of July 1997 the trial court entered judgment for the plaintiff in the sum of N400,000.00 and 21% interest thereon from the 18/9/95 till the liquidation of the judgment sum. He also awarded N10,000.00 to the plaintiff as general damages.
The defendant/appellant being dissatisfied has appealed and with the leave of this court was allowed to amend and file additional grounds of appeal as well as to amend his brief in line with the new Notice of Appeal.
The grounds of appeal are now;
GROUNDS OF APPEAL:
The Respondents misled the trial Judge to grant the order of substituted service of 16th day of May 1996 which was the bedrock of the Judgment of 2nd July 1997.
PARTICULARS:
a) the respondents applied for an order of substituted service without making an attempt to serve the appellant in his permanent home address at DUTSIMMA KATSINA STATE and current address at Suleja Niger State.
b) The Respondent misled the court by stating that appellant had a branch office at Gwagwalada in Abuja.
c) The Respondent knew that Plot 580 A8 Wuse 2 Abuja was not the last known place of abode or business of the appellant by the time material to the suit before the lower court.
2. The learned trial Judge erred in law in placing the matter undefendant list and gave judgment (sis) under Order 23 of the High Court Civil Procedure Rules of Federal Capital Territory Abuja, without calling upon the Plaintiff to prove their case.
PARTICULARS:
a) Exhibit ‘A’ and ‘B’ attached to the affidavit in support of the application under the undefended list do not show that appellant was owing the four respondents N4,000.00 at the time material to this suit.
b) The claim of 21% interest and N1,000,000.00 general damages include (sis) in the writ are not liquidated or/and undisputed claim.
3. The learned trial judge erred in law when he awarded 21% interest on the judgment sum from October 1995 to judgment day and thereafter till the liquidation of the judgment.
PARTICULARS:
a) There was no evidence before the trial judge or/and anything in Exhibit ‘B’ making the interest of 21% payable on the commission in case same has not paid (sis) as and when due.
b) The provision of Order 40 Rule 7 of the Federal Capital Civil Procedure Rules 1991 only allows 10% interest to be awarded from the date of judgment on the judgment sum.
4. The 1st respondent has no locus standi to institute the action against the appellant.
PARTICULARS;
a) 1st respondent was merely a witness to exhibit ‘B’.
5. The award of N40,000.00 as general damages against the appellant was based on unknown principles of law.
PARTICULARS;
a) The trial Judge gave no base for award of N40,000.00 as general damages in his judgment.
b) The award amounts to double compensation, having awarded N40,000.00 allegedly owed with 21% interest.
6. The 2nd – 4th Defendants were joined as plaintiffs at the trial court by the 1st respondent without their knowledge or consent.
PARTICULARS:
(a) Leave of court will be obtained to adduce additional evidence on Appeal on this point.
In an amended brief filed with the leave of court granted on the 26/4/2001 the appellant identified the following issues for the determination of the appeal;
1. Whether there were enough facts and materials before the trial judge to justify his placing the matter under the undefended list and to deliver judgment under Order 23 of the High Court Civil Procedure Rules of the FCT. (relates to ground 2.)
2. Whether the award of 21% interest and judgment sum from October 1995 to judgment day and thereafter till liquidation of the judgment is correct in point of law (relates to ground 3.)
3. Whether a person who merely signs as a witness to an agreement can claim it right under the agreement. (relates to ground 4.)
4. Whether the award of general damages of N40,000 after awarding to respondent the full sum of
N400,000.00 as claimed in the Writ amounts to double compensation.
The respondent in his brief which was amended with the leave of the court granted on the 21/11/2001 adopted the issues as formulated by the appellant and replied on the argument. The appeal will therefore be determined on the issues formulated by the appellant.
On issue one it is the contention of the appellant that the trial judge in endorsing the Writ of Summons as undefended did not consider the relevant factors before an action can be placed under the undefended list as provided for under Order 23 of the High Court Civil Procedure Rules of the FCT 1991, and the principles as laid down in the case of G.C. & OIL MILLS LTD. VS. AS-HEL ENT. MARKETING & PRO LTD 2000 4 NWLR Part 552, 310 at 313.
That in entering judgment for the respondent the trial court did not judicially exercise its discretion for Exhibit ‘B’ the contract document clearly showed that the respondent was a witness to the transaction and therefore not entitled to the judgment of the court.
The respondent submitted on the issue that there were indeed sufficient facts and materials before the lower court to justify the placing of the matter under the undefended list and delivering judgment under Order 23 of the FCT High Court Civil Procedure Rules.
Order 23 of the High Court of the Federal Capital Territory Civil Procedure rules provides;
1. “Whenever application is made to a court for the issue of a Writ of Summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an affidavit setting forth the ground 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 particulars case.
2. ……………..
3(1) If the party served with the Writ of Summons and affidavit delivers to the registrar, not less than five days before the dace fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just”.
From the above provisions all that a trial court is required to do before endorsing a Writ and putting it on the undefended list is to be satisfied of the following factors;
1. That the claim is for a debt, liquidated money demand or for any other claim.
2. The application is supported by an affidavit setting forth the grounds on which the claim was based.
3. Stating that in the deponents belief the defendant has no defence to the claim.
In the instant case the affidavit in support of the Writ of Summons has averred to the following.
“5(a) That the Defendant/Respondent entered into contract agreement between him and the rest of the plaintiffs/applicants namely Jerry Ikechukwu, Alhaji Mohammed J, Girabti, Alhaji Sule and Alhaji Abdullahi on the 22nd day of September, 1995.
6. That the contract agreement was for a sale of a semidetach duplex No. 2850 at Maitama A6 Federal Capital Territory Abuja within the jurisdiction of this honourable court.
b) That it was agreed by the parties, that the house shall be sold for N12,000,000.00 (twelve Million Naira) only with 5% commission to the plaintiffs/applicants herein which is N600,000.00 of the sale.
d) That payment of the commission shall be effected immediately payment in respect of the purchase is made on the house.
e) That since the agreement was entered, the house has been bought and paid for but the principal – Alhaji Abubakar Jali Gambo/Defendant respondent only made a part payment of N200,000.00 only in the name of the 2nd Plaintiff/applicant by a cheque of Bank of the North Ltd No. PA/3/003859, dated 8th October, 1995 leaving a balance of N400,000.00 only unpaid uptill date.
A photocopy of the said Cheque is hereby attached and marked as Exhibit ‘A’.
f) That it was after their efforts to get the Defendant/Respondent to pay the balance of the money failed that they engaged the service of SODANGI A. DANSO & CO. Garki, Abuja to recover for them.
6. That Hauwa Kulu Inuwa Esq. of Counsel handling this matter informed me in our Chambers on the said 22nd day of February 1996 at about 3.15 p.m. of the fact which I verily believe her to be true that the Defendant/Respondent has no defence at all in this case.
These were the averred facts the trial court was faced with. The two vital requirements (is laid down in the case of G.C. & OIL MILLS LTD VS ASAHEL INT MARKETING AND PROCUREMENT LTD 2000 4 NWLR Part 552 310 which are – (1) “the claim is for liquidated money demand based on contract containing the amount being demanded” and
(2) sufficient particulars of the transaction constituting the contract which gave rise to the liquidated money demand.” – have been met with, the trial judge was therefore right to have placed the matter under the undefended list. Where a case has been entered on the ‘undefended list” on the return date by virtue of Order 23 rule 4 of the Rules of the High Court the defendant has, as in the instant case, failed or neglects to deliver a notice of intention to defend with an affidavit disclosing a defence on the merit, the suit shall be heard as an undefended suit, and judgment given thereon without calling upon the Plaintiff to adduce evidence before the court – See W.A.C. TECHNICAL VS ANGLO-CANADIAN CEMENT COY. LTD 1966 NMLR 349; BANK OF THE NORTH LTD VS INTRA BANK S.A. 1969 1 ALL NLR 91.The case was properly placed and the judgment entered for the Plaintiff was in line with the provisions of the rules of court. I determine issue one in favour of the respondent.
I am upholding the alternative submission of the appellant in its entirety on issue 2.
For the record had shown that the respondent’s application to amend the affidavit in support of the Writ of Summons was refused and dismissed by the trial court on the 18/8/97.
The only claim on interest therefore was the one on the endorsed writ which is for 10% from the date of judgment to the liquidation of judgment debt.
In any case the rules allow for the award of 10% interest on a judgment date, commencing from the date thereof or afterwards as the case may be – See Order 40 Rule 7 of the FCT High Court Civil Procedure Rules.
The judgment of the court must be on the averred facts contained in the affidavit in support of the Writ of Summons and on the claim thereof. The trial court was therefore wrong to have awarded 21% interest from a date before judgment.
Issue No. 3 sought to point out that the respondent was only a witness to the contract that gave rise to this appeal.
With all due respect to the learned counsel to the appellant, the locus standi of the respondent in the appeal was not an issue that was raised before the trial court. This appeal stemmed from a trial that was initiated and determined as undefended. The appellant was served with the endorsed writ, he did not enter appearance before the trial court, nor did he put in any defence. It is too late in the day to raise a defence now.
The trial court in the circumstances of the case used its discretion and entered judgment as provided for by the rules of court. In any case the issue of locus standi is new and fresh and before the appellant can raise and argue it he must obtain the leave of this court. That the respondent was a witness to the transaction was not raised before the trial court, it did not form part of the decision of the lower court, even though it is none the less a fresh issue for which leave of this court is required to file and argue same – KATE ENTERPRISES LTD VS DAEWOO (NIG) LTD 1985 2 NWLR Part 5 116; ATAU VS AHMED 2003 4 NWLR Part 811 498. Ground four and issue 3 raised from it are incompetent and therefore struck out with all arguments based on issue no three.
The last issue is on the award of N40,000.00 to the respondent as general damages.
Award of damages particularly general damages is an exercise of the trial courts discretion. And before an appellate court can interfere with the decision of a trial court on the award of damages it must be satisfied of the following;
1. that the trial court acted on a wrong principle;
2. that the amount awarded was so high or so small as to make it an erroneous estimate of the damages the plaintiff is entitled to;
3. that the award is arbitrary;
4. that there was a wrong exercise of judicial discretion; or
5. that injustice will result if the appellate court does not interfere. – BALA VS. BANKOLE 1986 3 NWLR Part 27 141; NZERIBE VS DAVE ENGINEERING CO. LTD 1994 8 NWLR Part 361 124; ONWU VS NKA 1996 7 NWLR Part 458 1; EBE VS NNAMANI 1997 7 NWLR Part 513 479.
In the instant case the trial court had entered judgment for the respondent on the amount claimed, has awarded interest on the amount claimed, to have awarded general damages in the circumstances of this case is to my mind awarding double claims to the respondent on the same transaction. It is also trite that in cases of breach of contract as in the instant case, an aggrieved party cannot claim general and special damages at the same time and for a court to award the two at the same time will amount to awarding double compensation. – AFRICA INDUSTRIES NIG. LTD VS NIGERIA BANK OF COMMERCE & INDUSTRY 1998 3 SCNJ 97.
The award of N40,000.00 as general damages to the respondent amounts to double compensation in the circumstances of this case and I hereby set it aside. The trial judge had wrongly exercised his discretion, I find for the appellant on this issue.
On the whole, this appeal succeeds partly and I hereby substitute the orders made by the trial court on the 2nd July, 1997 with the following orders.
Judgment is hereby entered in favour of the Plaintiff/respondent in the sum of N400,000.00 (four hundred thousand Naira) only and 10% interest per annum thereon from the 2nd day of July, 1997 to the liquidation of judgment sum.
Award of N40,000.00 general damages is hereby set aside.
Each party to bear the cost of this action.
Other Citations: (2003)LCN/1384(CA)