Surveyor B. J. Akpan V Akwa Ibom Property & Investments Company Ltd (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA JSC

This is an appeal against the Judgment of the Court of Appeal (now referred to as the Court below) in Suit No. CA/C/141/2004 delivered on 28th June, 2007. The Appellant herein, as Plaintiff had instituted through an undefended list procedure against the Respondent as Defendant at the Uyo High Court (Akwa Ibom) in Suit No. HV/UND.3/2/2004 claiming N13,169, 847.71 (thirteen Million, One Hundred and Sixty Nine Thousand, Eight Hundred and Forty Seven Naira, Seventy one Kobo) being the balance due and payable to the Plaintiff by the Defendant as his professional fees on a Survey Contract awarded to the Plaintiff and 21% interest on the said amount claimed, until it is finally liquidated.

The learned trial Judge entered Judgment in an undefended list action in favour of the Appellant. The Respondent company which could not file notice of intention to defend the cause was not satisfied with the Judgment and so appealed to the court below, which in a unanimous Judgment upheld the appeal on the sole ground that the amount claimed by the Plaintiff is not a liquidated money demand and accordingly ordered a retrial of the cause under the General Cause List. It is against this Judgment of the court below that plaintiff has appealed to this Court on the following two grounds with the particulars:

‘(1) ERROR IN LAW The Court erred in law in allowing the appeal on the ground that the proceedings in the Court below was a nullity as the matter on which the trial Court ruled is not a liquidated money demand.

PARTICULARS

a) The appellate Court did not take into consideration the terms of contract between the parties to wit, ‘the fees for your services shall be based on the Governments approved scale of fees’. (Exhibit ‘A’).

(b) The bill submitted by the Plaintiff/Respondent/Appellant was based on the Government approved fees for consultants in the construction Industry 1996 (Exhibit ‘D’).

(c) The pay advice from the Defendant/Appellant/Respondent was not based on any government approved scale of fees or any scale of fees at all (Exhibit ‘E’).

(d) The reaction by the Plaintiff/Respondent/Appellant to the pay advice suggesting meeting with the Defendant/Appellant/Respondent or an arbitration was not admission that the money was not liquidated in view of the fundamental flaws highlighted by Plaintiff/Respondent/Appellant (‘Exhibit ‘F’).

(2) ERROR IN LAW: The Court erred in law in setting aside the Judgment of the trial Court on the ground that the affidavit in support of the application to place the suit on undefended list did not disclose facts which render the Defendant/Appellant/Respondent liable to the claim of the Plaintiff/Respondent/Appellant.

PARTICULARS:

(a) The submission of the Defendant/Appellant/Respondent that the annexure to the Applicant request to place the Suit on the undefended list should have made the trial Judge refuse the application was overruled by the Appellate Court.

(b) The same annexure were served on the Defendant/Appellant/Respondent that refused or neglected to file any notice of intention to defend under Order 23 Rule.

(c) The bill submitted by the Plaintiff/Respondent/Appellant based on Government Approved Scale of fees was one of the annexures which objection was refused by the Appellate Court.