Oceanic Bank International Plc V. Aweto Guest Quarters Hotels Ltd (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

On 4th June, 2007 Hon. P. E. Ebeku, J of the Rivers State High Court in a judgment delivered upon an application for final judgment in the suit No. PHC/430/2006 on the ground that the defendant, the present Appellant, had failed, neglected or refused to deliver his defence to the suit of the respondent, who was the claimant. The learned trial judge, in the said default judgment, make the following orders directing the defendant/Appellant.

1. To deliver, immediately, vacant possession of the property and Premises with appurtenances situate, lying and being at plot 333 Trans-Amadi Industrial Layout, Port Harcourt to the Claimant/Respondent, and
2. To pay mesne profits at the rate of N15,000.000.00 per annum from 1s June, 2005 until vacant

possession of the property is given to the Claimant/Respondent.

The Appellant, as the defendant, being aggrieved by the said judgment and/or orders has appealed on two grounds of appeal, namely:

GROUND 1

The learned trial Judge erred in law when he proceeded to enter final Judgment for the Respondent in default of pleadings by the Appellant without calling upon the Respondent to lead evidence in proof of its case.

PARTICULARS OF ERROR

(a) The Respondent’s claim before the court below is for vacant possession and the sum of N15,000,000.00 Per annum as mesne profit

(b) Mesne Profit is unliquidated damages which requires the person claiming it to lead evidence in Proof of its entitlement to it to enable the court assess the quantum of damages to award as mesne profit

(c) The Trial Judge did not call evidence (sic) from the Respondent to support its claim for mesne profit before proceeding to enter final judgment on the claim for mesne profit

GROUND 2.

The learned trial Judge erred in law when he proceeded to enter final Judgment against the Appellant in default on (sic) pleadings based on the Respondent’s motion on Notice dated and filed 22.09.2006.

PARTICULARS OF ERROR

(a) The Respondent’s motion on Notice was dated and filed on 22.09.2006 before the matter was even assigned to the trial Judge and the facts in support of the motion occurred on or before 22.09.2006.