J.O. Elumeze V. Pat Onegbedan (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the leading Judgment)

The Respondent in this appeal as the Plaintiff at the lower court had commenced proceedings by Writ of Summons at the said court against the Appellant as Defendant claiming the sum of N2, 000,000.00 (Two Million naira) in damages for assault and battery as borne out by page 2 of the Record of Appeal. The Respondent filed his Statement of Claim. Both the Writ of Summons and the Statement of Claim were duly served on the Appellant but he did not file any defence thereto as a result of which, after several adjournments and service of hearing notices, the Respondent commenced and closed his case.

However, before the Respondent’s counsel addressed the court on the case as presented by the Respondent, the Appellant brought an application for extension of time to enter appearance in the Suit and filed his Statement of Defence which was exhibited thereto. That application was supported by an affidavit. The Respondent filed a counter-affidavit in opposition. The trial Judge took arguments from counsel for the parties on that application at the conclusion of which, that court refused the application for extension of time. The case then proceeded on the basis of the case presented by the Respondent at the end of which the lower court in a considered Judgment found for the Respondent and awarded the sum of N 1.5 million in exemplary damages in favour of the Respondent.

Dissatisfied with the Judgment, the Appellant has now appealed to this court on three Grounds which devoid of their particulars, are herein set out. They read:

GROUND ONE

The learned trial Judge erred in law when he granted exemplary damages to the respondent though same was neither pleaded nor proved by the Respondent.

GROUND TWO

The trial Judge erred in law when he held that he did not deny the Appellant fair hearing by refusing to extend time within which he was to file his Statement of Defence.

GROUND THREE

The learned trial Judge erred in law when he awarded the Respondent damages and/or the Excessive quantum thereof whereas (sic) entitlement to same was not established at the hearing as required by law.”

Three issues as set out by the Appellant at page 3 of his brief were accepted by the Respondent as arising for the determination of this court. Those issues are:

(1) Whether the learned trial Judge was right to hold that he did not deny the Appellant fair hearing.

(2) Whether the learned trial Judge was right to have granted exemplary damages when same was not pleaded, nor claimed by the Respondent.

(3) Whether the award of exemplary damages was not excessive.”