NIGERIA GERMAN CHEMICAL COMPANY PLC v. KRISORAL AND COMPANY LIMITED (2019)

NIGERIA GERMAN CHEMICAL COMPANY PLC v. KRISORAL AND COMPANY LIMITED

(2019)LCN/13617(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of July, 2019

CA/E/289/2016

RATIO

FAIR HEARING: LIMITATIONS

On whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing, the Supreme Court in the case of A.G RIVERS STATE V UDE & ORS (2006) LPELR-626 (SC) held thus:
“… But a party to a legal dispute cannot claim breach of fair hearing where he has willfully absented himself from the hearing or failed to give evidence when called upon to do so. That once a trial has commenced after the issues have been joined at the pleadings, there is fair hearing when a party refuses or neglects to take part in the proceedings. The duty of the Court is to provide a level ground and give everybody an environment within which to ventilate its claims and defences.” (Underlining mine)PER ABUBAKAR SADIQ UMAR, J.C.A.

PRE JUDGMENT INTEREST: HOW IT IS RAISED

The Court below therefore could not have granted the said relief in the absence of any material evidence placed before it. The Supreme Court in the case of A.G. FERRERO & CO LTD V. HENKEL CHEMICALS (NIG.) LTD (2011) LPELR-12(SC) held thus:
“The principle relevant to the issue under consideration has been laid down in a number of cases thereby becoming settled law that a claim for pre-judgment interest may be made by a plaintiff as a right where it is either expressly provided for in or is contemplated by the agreement between the parties or under a mercantile custom, or under a principle of equity such as breach of fiduciary relationship. PER ABUBAKAR SADIQ UMAR, J.C.A.

CLAIM FOR INTEREST: TREATED AS BEING IN THE REAL OF SPECIAL DAMAGES

Thus, the Courts treat a claim for a particular rate of interest as being in the realm of special damages that must be specifically pleaded and strictly proved. See UNION BANK OF NIGERIA PLC V SEPOK NIGERIA LTD (1998) NWLR (PT. 578) 439; AFRICAN CONTINENTAL BANK PLC VS NDOMA-EGBA (2000) 8 NWLR (PT 669) 389.PER ABUBAKAR SADIQ UMAR, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

NIGERIA GERMAN CHEMICAL COMPANY PLC Appellant(s)

AND

KRISORAL AND COMPANY LTD Respondent(s)

ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Anambra State, Onitsha Judicial Division, delivered by M.N.O Okonkwo J., on the 8th day of June, 2016 wherein learned trial judge pursuant to Order 10 Rules 2&3 and Order 20 Rule 1 of the High Court of Anambra (Civil Procedure) Rules, 2006, granted the Respondent?s prayer for judgment in default of appearance.

BRIEF FACTS OF THE CASE
The brief statement of facts that led to the institution of the instant appeal as gleaned from the record before this Honourable Court are that by a Writ of Summons dated 29th January, 2016, the Respondent as Plaintiff in the Court below claimed against the Appellant as defendant for the following:
a. ?The sum of N1,550,000.00 (One Million, Five Hundred and Fifty Thousand Naira only) being the total value of the 1,000,000 white 28mm caps supplied to the Defendant at a unit price of N1.55k.
b. The sum of N4,739,700.00 (Four Million, Seven Hundred and Thirty-Nine Thousand, Seven Hundred Naira) being the total balance owed the Plaintiff for the supply of Drug

Dispensing Cups it has supplied to the Defendant for the period commencing from the 28th of October 2010 to the 12th of August, 2013.
c. 27% annual interest on the total sum of N6,289,700 (Six Million, Two Hundred and Eighty Thousand, Seven Hundred Naira) payable from the date of the institution of this case until the date of delivery of judgment.
d. 20% interest on the cumulative judgment debt (as enumerated under paragraphs 1-3 above) from the date of delivery of judgment until the debt is fully liquidated.
e. The sum of N2, 000,000 (Two Million Naira) being legal cost of this action.
f. The sum of N10, 000,000 (Ten Million Naira) being general damages.?

Upon the fact that the Appellant was resident outside the jurisdiction of the Court below, the Respondent via a motion ex-parte dated 15th January 2016 and filed on the 29th January, 2016, applied to the Court below praying for leave to issue and serve the Writ of Summons together with the accompanying processes on the Appellant. The said application was taken and granted on the 9th February, 2016. Despite the service of the processes on the Appellant, the Appellant for a

couple of times, had no legal representation but subsequently filed its Statement of Defence dated 25th April 2016 and filed on 27th April, 2016 and was duly represented for the first and only time before the Court below on the same 27th April, 2016.

On the 8th June, 2016, the Counsel to the Appellant was absent but that of the Respondent was duly represented. The Court after being satisfied that the hearing notice and the Pretrial Conference Forms were duly served on the Appellant, set down the suit before it for trial since there was no application before it. However, before counsel to the Respondent went ahead to prove the case of the Respondent, he prayed the Court to discountenance the statement of defence and the motion for extension of time both dated the 27th April, 2016 on the ground that both processes were incompetent and not proper before the Court. The Respondent?s prayers were hinged on the fact that the Appellant was out of time, did not as a matter of fact pay the default fees and that counsel to Appellant had failed to file the memorandum of appearance despite the Court?s instruction on the 27th April, 2016 to the contrary.

The Court below granted the prayer as prayed and struck out the Appellant?s statement of defence and motion for extension of time.

Still on the said 8th June, 2016, counsel to the Respondent informed the Court his pending motion, which is the subject matter of the instant appeal. The Court after being satisfied that the said motion was served on the Appellant allowed the Respondent to move same.

The said motion was brought pursuant to Order 10 Rules 2 & 3 and Order 20 Rule 1 of the High Court of Anambra State Civil Procedure Rules, 2006. The motion on the face of it prayed the Court to enter judgment in default of appearance. After moving the said motion, the learned trial judge delivered its ruling at pages 81-82 of the records held thus:
?In the light of the above, I hold the view that this application having satisfied the requirements of our High Court Civil Procedure Rules 2006, has merit. Same is hereby granted. For clarity purposes, I hereby enter final judgment in favour of the Plaintiff as per paragraphs 1, 2, 3, 4. With respect to paragraphs 5 and 6, I award the sum of N500, 000.00 (Five Hundred Naira) and N2, 000,000.00

(Two Million naira) as legal costs of this action and general damages respectively in favour of the Plaintiff.
I award N50, 000.00 (Fifty Thousand naira) cost against the Defendant in favour of the Plaintiff.?

Dissatisfied with the decision of the Court below, the Appellant appealed against same vide his Original Notice of Appeal dated the 23rd June, 2016 and filed on the same date. The said Notice of Appeal was later amended by a subsequent Notice of Appeal dated the 20th September, 2017 and filed on the 13th October, 2017. The said Amended Notice of Appeal contains 5 grounds of appeal. The grounds without their particulars are:
?GROUND ONE
The lower Court erred in law when it was considering the merits of the Defendant?s Motion for Extension of Time and Statement of Defence, held that ?I agree with the learned counsel for the Plaintiff that the statement of defence and motion for extension of time filed by learned counsel for the Defendant are incompetent. Accordingly, both are struck out? even though the suit had been set down for hearing of the Plaintiff?s case.

?GROUND 2?
The Lower Court misdirected itself when it held that ?I have considered all the paragraphs of the affidavit in support and annexures. I have also considered the written address of the learned counsel for the Plaintiff. This motion was brought under the appropriate provisions of the High Court Civil Procedure Rules of Anambra State 2006?, as the Plaintiff?s Motion for final judgment in default of defence was already overtaken by the action of the Plaintiff in filing Pre-Trail Form, the Statement of Defence filed by the Defendant was not fixed for hearing at the Pre-trial conference held on the 8th June 2016.
?GROUND 3?
The Lower Court failed to consider that when it set the suit down for hearing of the Plaintiff?s claim against the Defendant, the Statement of Defence filed by the Defendant even though irregularly filed was the Defendant?s answer to the Claim, which the Court would have to consider before determining the propriety of the motion for judgment and therefore erred in law when it held that ?It is necessary to observe that all the process in this case were duly served on the Defendant yet it

refused and/or neglected to appear in Court and defend the suit except on the 27/4/2016 when one T.C Ezeike, Esq., of Counsel appeared for the Defendant without even filing a notice of memorandum of appearance. The statement of defence with the motion for extension of time which he filed though defective was not moved and since it was struck out, there is no iota of defence pending before the Court in challenge of this suit.”
?GROUND 4?
The Lower Court erred in law when it without calling the Plaintiff to give evidence in support of its claims, then held that ?in the light of the above, I hold the view that this application having satisfied the requirements of our High Court Civil Procedure Rules, 2006 has merit. Same is hereby granted. For clarity purposes, I hereby enter final judgment in favour of the Plaintiff as per paragraphs 1, 2, 3, 4. With respect to paragraphs 5 and 6, I award the sum of N500, 000.00 (Five Hundred Naira) and N2,000,000.00 (Two Million naira) as legal costs of this action and general damages respectively in favour of the Plaintiff.
I award N50, 000.00 (Fifty Thousand naira) cost against the

Defendant in favour of the Plaintiff?, even though the Plaintiff?s Application was for final judgment of unliquidated sums and damages.
?GROUND FIVE?
There was no competent and proper Writ of Summons, Statement of Claim and Motion for Final Judgment before the Lower Court on which it could found its default judgment delivered on 8th June, 2016 as the Writ of Summons, Statement of Claim and Motion for Final Judgment relied on by the Respondent and the Lower Court were improperly signed and filed and not regularized prior to the delivery of judgment on 8th June, 2016.

The appeal was taken on 8th May, 2019 wherein counsel to both parties adopted their briefs of argument and made submissions in respect to their postures in this appeal.

The Appellant?s brief dated 20th September, 2017 and filed on 13th October, 2017 was deemed being properly filed and served by an Order of this Honourable Court granted on 8th May, 2019. The said Brief was settled by SAMUEL UGOCHUKWU NNAMANI ESQ., who distilled four issues for determination to wit:
a. ?Whether it is not a denial of the Appellant?s right to fair hearing

for the lower Court to strike out the Appellant?s Statement of Defence and Motion for Extension of time to regularize its processes for being incompetent without considering that the Statement of Defence represented the Appellant?s defence to the claim? (GROUND ONE)
b. Whether from the facts contained in the Affidavit in support of the Respondent?s Motion on Notice for judgment in default of defence/appearance, it is not a miscarriage of justice for the lower Court to have granted the reliefs sought by the Respondent in its Motion for judgment in default of defence/appearance when in fact the Motion on Notice was overtaken by the Appellant?s representation in Court by counsel and Statement of Defence filed in the case? (GROUND TWO & THREE)
c. Whether the default judgment delivered by the Lower Court granting the Respondent?s claims, even though they are for unliquidated damages and interests, without taking evidence in proof of the claims is not an irregularity enough for this Court to set aside the judgment? (GROUND FOUR)
d. Whether the Lower Court had jurisdiction to entertain the action considering the

defective nature of the Originating and other processes filed by the Respondents? (GROUND FIVE)
?
The Respondent?s brief dated 24th August, 2017 and filed on the 13th September, 2017 was deemed being properly filed and served by an Order of this Honourable Court granted on 8th May, 2019. The Respondent?s Brief was settled by A.G.N. ESEAGWU ESQ., who distilled two issues for the determination of this appeal to wit:
a. ?Whether the striking out of the Appellant?s Statement of Defence dated the 25th day of April, 2016 (filed on the 27th day of April, 2016), Motion on Notice for Extension of Time dated the 25th day of April, 2016 (filed on the 27th day of April, 2016) and the subsequent delivered of a Default Judgment against the Appellant by the trial Court on the 8th day of June, 2016 can be said to have constituted a breach of the Appellant?s right to fair hearing.
b. Whether the trial Court was right to enter default judgment for the Respondent having regards to the provisions of Order 10 Rules 2 & 3 and Order 20 Rule 1 of the High Court of Anambra State (Civil Procedure) Rules, 2006.<br< p=””</br<

RESOLUTION OF ISSUES
I have painstakingly read through the pages of the record of appeal before this Honourable Court and the adopted briefs of argument of counsel in support of their various contentions and postures in this appeal. The issues for determination canvassed respectively by the parties are well examined and considered. In the resolution of this appeal, I consider the following issues as apt and germane for the determination of this appeal:
a. ?Whether the striking out of the Appellant?s Statement of Defence and Motion on Notice for Extension of Time can be said to have constituted a breach of the Appellant?s right to fair hearing.
b. Whether the trial Court was right to enter default judgment for the Respondent having regard to the provisions of Order 10 Rules 2 & 3 and Order 20 Rule 1 of the High Court of Anambra State (Civil Procedure) Rules, 2006.
c. Whether the Lower Court had jurisdiction to entertain the action considering the defective nature of the Originating and other processes filed by the Respondents?

ARGUMENT & RESOLUTION OF ISSUE 1
On whether the striking out of the Appellant?s Statement of

Defence and Motion on Notice for Extension of Time and the subsequent delivery of a Default Judgment against the Appellant by the trial Court on the 8th day of June, 2016 can be said to have constituted a breach of the Appellant?s right to fair hearing, learned counsel to the Appellant submitted that from the records before this Honourable Court, it is no doubt that the Appellant had filed and served its statement of defence and motion for extension of time and that same were in the Court?s file forming part of the Court?s record as the Appellant?s defence. Counsel submitted that however, due to the absence of the Appellant in Court, the Respondent prayed the Court to allow it prove his case but that rather than prove its case, the Respondent proceeded to address the Lower Court on the competence of the Appellant?s processes.

Counsel submitted further that the Statement of Defence filed by the Appellant represented a vital process in the justiciable determination of the case and even though it was filed out of time, the Appellant had competently before the Court a Motion for Extension of Time to regularize its processes. It

is the contention of counsel that the failure of the Court to consider the statement of defence, although irregularly filed to see if it contained any material ground of defence was tantamount to shutting the Appellant?s out and a denial of his fair hearing. Counsel referred this Court to the case of GUINNESS NIG LIMITED V UFOT (2007) LPELR-8098, PG 37, PARA. D-G.

In response to the submissions of counsel to the Appellant, counsel to the Respondent referred this Honourable Court to the proceedings of the Court below at pages 75-82 of the Records and submitted that the Appellant failed, neglected and/or refused to take any further step to defend the substantive suit nor was it represented by a counsel. Counsel submitted further that he failed to even send a letter of adjournment or briefing another counsel for the purpose of holding his brief. Counsel referred this Honourable Court to Order 15 Rule 1 (2) of the High Court of Anambra (Civil Procedure) Rules, 2006.

Counsel argued that the fair hearing should not be argued in isolation of the facts and that a party should not be allowed to rely on fair hearing to engage in dilatory tactics

designed to make nonsense of the essence of the judicial process. Counsel referred this Honourable Court to the case of A.G RIVERS STATE V UDE & ORS SC. 423/2001, JULY 14TH 2006. Counsel submitted further that the Appellant failed to pay the prescribed default fees in flagrant violation of Order 44 Rule 5 of the High Court of Anambra (Civil Procedure) Rules, 2006. He submitted further that the only remedy to the none payment of the said penalty fees would have been an application by the Appellant to the trial Court to allow it pay the said default fees but that the Appellant?s predicament was further compounded by his absence in Court on the said date thus his inability to take that opportunity to save its case.

There is no doubt that the Appellant has made a heavy weather on the infringement of its right to fair hearing flowing from the fact that the Court below erroneously struck out its Statement of Defence together with the Application to regularize same. The law is trite that the issue of fair hearing, although a legal issue, cannot be determined outside the facts upon which such allegations are made. In essence, what amounts to denial of

fair hearing depends on the circumstance of each case. Bearing this mind, I am of the opinion that the only way that this Court can come to a conclusion as to whether the right to fair hearing of the Appellant was breached or not is an issue to be determined after revising the records compiled and transmitted before this Honourable Court.

From the records of the Court below at page 75, the matter came up for hearing on the 16th March, 2016 with the proof of service of the Writ of Summons and other accompanying documents by substituted means on the Appellant. On the said date, although the time for filing of the Appellant?s memorandum of appearance had expired, the Court took cognizance of the fact that the Appellant was still within time prescribed by the rules of Court to file his statement of defence. The Court thereafter ordered that hearing notice be issued and served on the Appellant and the case was adjourned to the 13th April, 2016 for Pretrial Conference.

On the date scheduled for Pretrial Conference which was the 13th April, 2016, neither the parties nor their respective counsel were present in Court and the matter was further adjourned

to the 18th April, 2016 for the Pretrial conference.

When the matter came up again on the 18th April, 2016, the Respondent?s counsel was in Court while the Appellant had no legal representation. However, counsel to the Respondent intimated the Court that he received a call from counsel to the Appellant to the effect that he (counsel to the Appellant) would be in Court on the said date to file his papers but all to no avail. It was on the premise of this that the matter was subsequently adjourned to 27th April, 2016 for Pretrial conference/hearing.

On the 27th April, 2016, the Respondent was present while the Appellant was for the first time represented by one T.C. Ezeike, Esq., holding the brief of one Obi Anabere Esq. On the said date, counsel to the Appellant verily informed the Court of his Application in Motion No. O/685M/2016, the purport of which was to extend the time within which the Appellant could file its statement of defence. The Respondent counsel however informed the Court below that he was just served with the said motion and that he needed time to respond to same. Premised on this reasonable excuse not to go on with the

Application, the Court below was inclined to granting an adjournment at the instance of the Respondent. The matter was then adjourned to the 23rd May, 2016 for hearing of the pending motion/Pretrial conference.

On the date scheduled for hearing the pending motion/Pretrial conference which was 23rd May, 2016, the Respondent?s counsel was in Court while that of the Appellant was not available for the business of the day. The Respondent counsel however informed the Court that matter was Pretrial Conference but that he only filed the Pretrial Conference Forms on the morning of the said day. The Court in the circumstance, adjourned the matter to 8th June, 2016 for Pretrial conference and ordered that hearing notice be served on the Appellant.

On the 8th June, 2016, the Counsel to the Appellant was absent but that of the Respondent?s counsel was present in Court. The Court after being satisfied that the hearing notice and the Pretrial Conference Forms were duly served on the Appellant, set down the suit before it for trial since there was no application before it. However, before counsel to the Respondent went ahead to prove the case of the

Respondent, he prayed the Court to discountenance the statement of defence and the motion for extension of time both dated the 27th April, 2016 on the ground that both processes were incompetent and not proper before the Court. The Respondent?s prayers were hinged on the fact that the Appellant was out of time, did not as a matter of fact pay the default fees and that counsel to Appellant had failed to file the memorandum of appearance despite the Court?s instruction on the 27th April, 2016 to the contrary. The Court below granted the prayer as prayed and struck out the Appellant?s statement of defence and motion for extension of time.

The question I ask myself is that considering the surrounding circumstances of the case, can it be said that the Appellant?s right to fair hearing has been trampled upon?
?I answer the above question in the negative. Flowing from the heels of the aforestated facts, it is apparent that the Appellant was afforded enough opportunity to defend the suit and so many indulgences granted to him to defend the action but these opportunities, the Appellant failed to utilize. On whether a party who had an

opportunity of being heard but did not utilize it can bring an action for breach of fair hearing, the Supreme Court in the case of A.G RIVERS STATE V UDE & ORS (2006) LPELR-626 (SC) held thus:
“… But a party to a legal dispute cannot claim breach of fair hearing where he has willfully absented himself from the hearing or failed to give evidence when called upon to do so. That once a trial has commenced after the issues have been joined at the pleadings, there is fair hearing when a party refuses or neglects to take part in the proceedings. The duty of the Court is to provide a level ground and give everybody an environment within which to ventilate its claims and defences.” (Underlining mine)
It is important to state that the Appellant never filed its defence and a motion praying for extension until he was served with the Respondent?s Application for judgment in default dated 18th April, 2019 and filed on the 19th April 2016. (See pages 46-54 of the record). Upon the knowledge of the state of affairs, the Appellant was undoubtedly put under pressure to file its statement of defence accompanying same with a motion for extension of time both

dated 25th April, 2016 and filed on 25th April, 2016 (see pages 55-69 of the record). After a couple adjournments at the instance of the Appellant, the Appellant was finally represented by a counsel on the 27th April, 2016.
On the said date, counsel to the Appellant informed the Court below that he filed a statement of defence and a motion for extension of time which were served on the Respondent?s counsel in Court. In order to allow the Respondent respond to this application, the matter was then adjourned to the 23rd May, 2016 for hearing of the pending motion/Pretrial conference. It is rather surprising that on the said date slated for hearing of the Appellant?s Application, the Appellant was not in Court and did not deem it fit to send a letter to the Court praying for an adjournment.
While it was evident that the time within which the Appellant was expected to file its statement of defence had expired, the Appellant failed to pay the mandatory default/penalty fees as provided under Order 44 Rule 5 of the High Court of Anambra (Civil Procedure) Rules, 2006.
As gleaned from the records, the sole reason why the Court held that

the Appellant?s statement of defence and the motion for extension of time was incompetent and liable to be struck out was because the Appellant failed to pay the penalty fee as provided under Order 44 Rule 5 of the High Court of Anambra (Civil Procedure) Rules 2006. The said Order provides thus:
?Any party who defaults in performing an act within the time authorized or limited under these rules shall pay the Court an additional filing fee of N200.00 (Two Hundred Naira) for each day of such default at the time of the compliance.”
From the records, it was crystal clear that the statement of defence and the motion for extension of time were indeed incompetent and the trial Court was right to have struck same out. I agree with the learned counsel to the Appellant that this predicament could have been cured upon an oral application by counsel to the Appellant praying the Court to allow the Appellant pay the said penalty fee but the Appellant counsel was not in Court and thus failed to avail the Appellant of this opportunity.
For this reason I do not agree with learned counsel that the trial Court in order to meet justice was duty

bound to consider the statement of defence filed to see if it contained any material ground of defence when the said statement of was filed out of time and notwithstanding the filing of a motion for regularization, the absence of the payment of the default fees makes the processes irregular. Although the effect of failure to pay default fees on a process merely renders same irregular since it can be rectified if brought to the attention of the Court at the appropriate time. But where was the Appellant in this suit to bring this to attention of the Court when he was not represented in Court despite the service of hearing notice on him?
The Statement of defence was not regularized by an order of Court pursuant to an application to the Court by the Appellant and the Respondent objected to same timeously by praying the Court below to invoke Order 44 Rules 5 of the High Court of Anambra (Civil Procedure) Rules in striking out the statement of defence together with the motion for regularization. The law is trite that an irregular application can be set aside by a timeous application when the party objecting to the irregularity had not taken fresh steps

amounting to a waiver, as was done by the Respondent in the Court below.
On the strength of the foregoing, I hold that the striking out of the Appellant?s Statement of Defence and Motion on Notice for Extension of Time by the trial Court has not occasioned any breach of the Appellant?s right to fair hearing. This issue is hereby resolved against the Appellant and in favour of the Respondent.

ARGUMENT & RESOLUTION OF ISSUE 2
On whether the trial Court was right to enter default judgment for the Respondent having regards to the provisions of Order 10 Rules 2 & 3 and Order 20 Rule 1 of the High Court of Anambra State (Civil Procedure) Rules, 2006, learned counsel to the Appellant submitted that the Respondent?s claims before the lower Court were for unliquidated damages or interests, however, despite the nature of the claims, the lower Court without taking oral evidence from the Respondent in support of its claims delivered a judgment in default of defence and appearance in favour of the Respondent. Counsel reproduced the claims of the Respondent as per its Writ of Summons and Statement of claims at trial Court and

submitted that the decision of the trial Court granting some of the claims of the Respondent was reached without taking evidence from the Respondent in proof of its claims in order for the Court to assess the amount of damages due to it and that it is this reasoning of the lower Court that affected its judgment, as a claim for liquidated damages does not become such merely because a specific amount is claimed. He referred this Court to the case of VANGUARD MEDIA LTD. V AJOKU (2003) 11 NWLR (PT. 831) PG 437 @441.

Counsel submitted further that assuming but without conceding that the Respondent?s application for judgment in default of appearance or defence was properly before the lower Court, the trial Court should have been prudent in considering the Respondent?s pleadings to determine if the claims could be granted summarily without taking evidence. Counsel made reference to paragraphs 8, 9, 10, 11, 12, 13 and 20 of the Statement of claim and submitted that upon a careful perusal of the said paragraphs would reveal that the trial Court could not have validly delivered judgment in favour of the Respondent without taking evidence. Further on

this, counsel submitted that the decision of the Court below was irregular and cannot be supported in law on the ground that the Respondent?s claims in paragraphs 1, 2, 3, 4, 5, and 6 of its claims represent unliquidated money demands and claims in interest.

Learned counsel to the Respondent seems not to have made any submissions or argument contrary to the above in his brief. Notwithstanding, I shall proceed to examine the said averments vis–vis the claims of the Respondent as per its Statement of Claim with a view to ascertaining if truly the claims of the Respondent was for unliquidated money demand or otherwise.

The law is trite that once a claim is for liquidated money demand, a Court of law would be competent to enter a judgment in default of such claims. In the case of DR. OLADIPO MAJA V MR. COSTA SAMOURIS (2002) LPELR (1824), an authority massively relied on by the Appellant in his brief, the Supreme Court made a distinction between a liquidated money demand and an unliquidated money demand as follows:
“A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already

ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear. Again, where the parties to a contract, as part of the agreement between them, fix the amount payable on the default of one of them or in the event of breach by way of damages, such sum is classified as liquidated damages where it is in the nature of a genuine pre-estimate of the damage which would arise from breach of the contract so long as the agreement is not obnoxious as to constitute a ‘penalty’ and it is payable by the party in default. The term is also applied to sums expressly made payable as liquidated damages under a statute.” Per IGUH, J.S.C ( Pp. 21-22, paras. F-C ) (Underlining mine)
?…But in every other case, where the Court has to quantify or assess the damages or loss, whether pecuniary or non-pecuniary, the damages are unliquidated. So, too, when the amount to be recovered depends on all the circumstances of the

case and on the conduct of the parties and is fixed by opinion or by an estimate or what may be judged reasonable, the damages are said to be “unliquidated”. See Eko Odume and Ors v. Ume Nnachi and Ors (supra). Accordingly, the amount ultimately recoverable in a claim for unliquidated damages is incapable of prior ascertainment and may only be known at the end of the trial as the same is based on the estimate or opinion of the trial Court. It is also right to say that because of the subjective nature of the assessment of unliquidated damages, two different Courts can hardly award the same amount in the same claim.” Per IGUH, J.S.C (Pp. 22-23, paras. E-B).

Flowing from the heels of the above, permit me to reproduce the paragraphs challenged by the Appellant on the ground that are claims for unliquidated money demand if thoroughly examined.:
8. ?Prior to the refusal and failure of the defendant to pay for the products supplied, the Plaintiff received a Purchase Order (?LPO?) from the Defendant dated the 4th of June 2013 wherein the Plaintiff was mandated to deliver 1, 000,000 (One Million) caps to the Defendant. The total

market value of the caps to be delivered was quoted as N1,500,000 (One Million Five Hundred Thousand Naira Only) calculated at a unit rate of N1.50k (One Million Five Hundred Thousand Naira Only) calculated at a unit rate of N1.50k (One Naira Fifty Kobo Only). At the trial, the Plaintiff shall rely on the LPO dated 5th June 2013 with the document Number 4500000729 for the supply of 1, 000,000 caps for the total value of N1,500, 000.00 (One Million Five Hundred Thousand Naira Only) at a unit price of N1.50
9. The terms of the LPO are that the 1, 000,000 caps be delivered on the 6th day of June 2013 to the Defendant?s Factor in Otta, Ogun State and that payment for same would be effected 30 days after delivery. The LPO further provided that in the event that the said supply failed to ?meet quality specifications, same would be rejected and returned to the supplier at his/her own expense?. Furthermore the LPO provided that ?good must be supplied within the specific date as shown on the PO?.
10. The Plaintiff upon receiving the LPO in paragraph 8 above, raised certain queries as to cost, immediately got in touch with the

Defendant?s management and requested that in line with market realities, the stated terms as per unit price of N1.50 (One Naira Fifty Kobo Only) on the LPO be amended and changed to N1.55k (One Naira Fifty Five Kobo only) which was the regular price the Plaintiff had earlier supplied to the Defendant on other occasions such as previous supply vide an LPO dated July 2012 for 3, 000,000 (Three Million pieces only) caps to the Defendant. The total market value of the caps to be delivered was quoted at N4,650,000.00 (Four Million Six Hundred Fifty Thousand Naira Only) calculated at a unit rate of N1.55k (One Naira Fifty Five Kobo Only). This order took four trips to complete. At the trial, the Plaintiff shall rely on an LPO dated the 24th July 2012 with Order Number BA16972 for the supply of 3,000,000 caps for the total value of N4, 650,000.00 (Four Million Six Hundred Fifty Thousand Naira Only) at a unit price of N1.55k.
11. The negotiations took some time before the Defendant agreed to the variations and the Plaintiff duly supplied the 1, 000,000 caps to the Defendant?s premises as earlier agreed but at a later date of 19th June 2013. At the

trial, the Plaintiff shall rely on copies of Krisoral and Company Ltd sales invoice date 19th June, 2013 with Number 14765 and Waybill/Delivery Note dated 19th June, 2013 with Number 4582. The Defendant is put on Notice to produce the original copies of both documents.
12. The total amount of money due to the Plaintiff from the Defendant for the supply of 28mm HDPE caps for the above stated transaction (paragraphs 8-11 above) of 19th June, 2013 is N1, 550,000.0 (One Million Five Hundred and Fifty Thousand Naira Only).
13. Before the plaintiff supplied the Defendant on 19th June, 2013, the Defendant already owed the Plaintiff the sum of N4, 739,700.00 (Four Million Seven Hundred and Thirty Nine Thousand Seven Hundred Naira only) being the balance amount for its products that had already been supplied by the Plaintiff to the Defendant, which was yet to be paid for.
20. The Plaintiff took loans (at prevailing rates of not less than 24% which is the lending rate to cooperate organizations available to the Plaintiff from its bankers) to purchase the state of the art of machinery used in producing the HDPE caps and DDC supplied to the Defendant and the

interest thereon, since June 2013, outweighs both the profit and capital invested in the supply contract due to the Defendant?s refusal and neglect to pay the Plaintiff promptly.?

I have read paragraphs 8, 9, 10, 11, 12 and 13 of the Respondent?s statement of claim diligently, I am of the view that the claims contained therein are for liquidated money demands which can be granted in default by a Court without the need to take oral evidence. The claim of N1,550,000 (One Million Five Hundred and Fifty Thousand Naira Only) in my opinion arose from the contractual agreement between the parties for the supply of 28mm HDPE caps as stated in paragraphs 8-11 of the statement of claim) at a unit price of N1.55. As gleaned from the paragraphs above, the Respondent supplied the said goods to the Appellant but the Appellant refused to fulfill his part of the contractual obligation. The Respondent stated in paragraph 13 of the statement of claim that the Appellant was also indebted to it in an amount in tune of N4, 739,700.00 (Four Million Seven Hundred and Thirty Nine Thousand Seven Hundred Naira only) being the balance for its products that had

already been supplied to the Appellant. I do not agree with learned counsel to the Appellant that the Respondent was required to lead oral evidence before the trial Court could grant claims 1 and 2 sought by the Appellant in its statement of claim.

However, the Respondent in Paragraph 20 of its Statement of claim averred that it took loan at prevailing rates of not less than 24% (which is the lending rate to cooperate organizations available to the Plaintiff from its bankers) to purchase the state of the art of machinery used in producing the HDPE caps and DDC supplied to the Defendant and that the interest thereon, since June 2013, outweighs both the profit and capital invested in the supply contract due to the Defendant?s refusal and neglect to pay the Plaintiff promptly. This averment no doubt led to the claim 3 contained therein in the Respondent?s statement of claim. In the said claim 3, the Respondent claimed 27% annual interest on the total sum of N6,289,700 (Six Million, Two Hundred and Eighty Thousand, Seven Hundred Naira) payable from the date of the institution of this case until the date of delivery of judgment. The Appellant no

doubt prayed the trial Court for a prejudgment interest. Going by the record before this Honourable Court, there was no material evidence placed before the Court justifying the granting of claim 3 sought by the Respondent. The Court below therefore could not have granted the said relief in the absence of any material evidence placed before it. The Supreme Court in the case of A.G. FERRERO & CO LTD V. HENKEL CHEMICALS (NIG.) LTD (2011) LPELR-12(SC) held thus:
“The principle relevant to the issue under consideration has been laid down in a number of cases thereby becoming settled law that a claim for pre-judgment interest may be made by a plaintiff as a right where it is either expressly provided for in or is contemplated by the agreement between the parties or under a mercantile custom, or under a principle of equity such as breach of fiduciary relationship. It follows that before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest but the basis of the entitlement either by statute or contract/agreement between the parties, or mercantile custom or principle of equity such as breach of fiduciary

relationship. It is not for the Court to speculate or conjecture or assume the facts relevant to the claim. The relevant facts must be pleaded, as facts not pleaded goes to no issue. In addition to the requirement of pleading the relevant facts, the plaintiff must adduce evidence at the trial in proof of the relevant facts. Where there is no evidence in proof of the facts then the pleadings are deemed abandoned.” Per ONNOGHEN, J.S.C (Pp. 20-21, paras. C-A) (Underlining mine)
In other words, a claim for a particular rate of interest cannot be treated with levity of uncertainty and speculation will not help in establishing that rate of interest. Any claim on a rate of interest, except where concrete agreement between the parties is owned up by them or where there is positive and unequivocal admission by a party, that rate of interest has to be proved by admissible evidence. Thus, the Courts treat a claim for a particular rate of interest as being in the realm of special damages that must be specifically pleaded and strictly proved. See UNION BANK OF NIGERIA PLC V SEPOK NIGERIA LTD (1998) NWLR (PT. 578) 439; AFRICAN CONTINENTAL BANK PLC VS NDOMA-EGBA (2000) 8

NWLR (PT 669) 389.

In the light of the above, this Court sets aside the relief 3 granted by the Court below in favour of the Respondent.

The next issue that I shall consider is the propriety of the grant of claim 4 by the Court below. Counsel to the Appellant submitted that the claim in paragraph 4 also represent unliquidated demands and claims for interest. Claim 4 to me is undoubtedly a relief seeking post judgment interest. In my view, this issue is nothing but a storm in a tiny tea cup. Post Judgment interest is one, which is awardable, after the delivery of Judgment by the Court. It is at times provided by Rules of Court and the lower Court by its order fixed an interest rate of 20% on the cumulative judgment debt from the date of delivery of the judgment until same is finally liquidated. The Rules of the Court below in its Order 35 Rule 4 provides thus:
The Judge at the time of making any judgment or order or at any time afterwards, may direct the time within which the payment is to be made or other act is to be done, reckoned from the date of the judgment or order, or from some other point of time as the Judge deems fit and may order

interest at a rate not less than 10% per annum or at the prevailing interest rate for the time being chargeable by Commercial banks on loans and overdrafts (whichever is higher) to be paid upon any judgment until the judgment debt is fully liquidated or settled. (Underlining mine)
Flowing from the above, the granting of relief 4 by the Court below is in line with Order 35 Rule 4 of the Anambra State High Court Civil Procedure Rules 2006, so therefore the decision of the trial Court in this regard stands.

The next point of consideration is whether the Court was right to have granted claim 5 of the Respondent?s Statement of Claim. In the said claim 5, the Respondent prayed the Court below for the sum of N2, 000, 0000 (Two Million Naira) being legal costs of the action. The Court below however granted the sum of N500,000 (Five Hundred Naira) as cost of legal fees in favour of the Respondent. I have gone through the records and I am of the view that there was no averment in this regard neither was the claim supported by any credible evidence to warrant the grant of same. I agree with the learned counsel to the Appellant that claim 5 although a

specific amount cannot be regarded as a liquidated sum that could be granted by the Lower Court without taking evidence in proof of the claims. On this premise, I hereby set aside the relief of the Court below awarding the sum of N500,000.00 (Five Hundred Naira) as cost of legal fees in favour of the Respondent.

I am left with considering whether the Court below was right or wrong to have granted relief 6 in favour of the Respondent. In claim 6, the Respondent claimed the sum of N10,000, 000.00 (Ten Million Naira) as general damages. However, the Court below awarded the sum of N2,000, 000 (Two Million Naira) as general damages against the Appellant and in favour of the Respondent. The law is well defined that general damages can be inferred, as it normally flows from the wrongs committed by the defendant, and needs not be pleaded and proved by any empirical method. After holding in the subsequent paragraphs that the Court below was right to have granted claims 1 and 2 of the Respondent, it would only accord with the dictates of common sense to hold that the Court below was also right to have granted the sum of N2,000,000 (Two Million Naira) as

general damages against the Appellant and in favour of the Respondent. I do not agree with counsel to the Appellant that oral evidence was required of the Respondent before an award of general damages could be granted by the Court below. On the strength of the above, the order of the Court below in this regard stands.

ARGUMENT & RESOLUTION OF ISSUE 3
The Appellant submitted that for the Court to be clothed with jurisdiction to entertain an action, such action must have been commenced by due process of law. He argued that the question of jurisdiction strikes at the root of any matter and once raised ought to be properly considered before the proceeding. He referred this Court to the case of JOSIAH AYODELE ADETAYO & ORS V. KUNLE ADEMOLA & ORS (2010) LPELR ? SC 229/2004.

Flowing from the above submission, counsel submitted that the originating process by which the Respondent commenced this action at the lower Court and other accompanying processes are defective, same not having been properly endorsed as prescribed by the provisions of Rule 10 (1), (2) & 3 of the Rules of Professional conduct, 2007. Counsel submitted that a

look at the writ of summons will reveal that while the Name of the legal practitioner who issued the writ is stated as A.G.N ESEAGWU ESQ., the Nigerian Bar Association (NBA) seal attached to the face of the writ carries the name AWADIMUYA PRECIOUS NDIDI, rather than that of the counsel that issued the writ.

Once more, the Respondent counsel did not make any submissions or arguments in this regard.

I have taken a critical look at the Originating processes before this Honourable Court and it is evident that the name of the legal practitioner who issued the writ is not the same as the name of the legal practitioner whose seal was attached to the said processes. I must be quick to point out that the provisions of the Rules of Professional Conduct, 2007 is directed at the Legal Practitioner to provide evidence of his qualification to practice law in Nigeria in addition to his name being in the Roll at the Supreme Court of Nigeria. There is no doubt that AWADIMUYA PRECIOUS NDIDI whose name appears on the Writ of Summons is a legal practitioner qualified to practice law in Nigeria. The question I ask myself is that is A.G.N ESEAGWU, the person who issued

the writ a legal practitioner qualified to practice law in Nigeria. In answering this question, I discovered that it is rather fortunate that the same A.G.N ESEAGWU was the person who settled the Respondent?s brief before this Honourable Court. The Respondent?s brief carries the seal of A.G.N ESEAGWU ESQ. Therefore in my mind, I have no doubt that A.G.N ESEAGWU ESQ., is a legal practitioner qualified to practice law in Nigeria.
In the event that I am wrong but I doubt, I am of the opinion that the issue raised by the Appellant is a matter of procedural irregularity that would not render the said originating processes incompetent. The Apex Court and this Court have stressed in a plethora of judicial pronouncements that a Court of law should be more concerned with doing substantial justice rather than allow itself to be tied by mere technicalities. The Appellant appeared in the Court below on one occasion and did not raise an objection in this regard. I am of the opinion that it is rather too late in the day for the Appellant to make heavy weather on this issue with the aim to compel this Honourable Court to lean toward doing technical justice

rather than substantial justice.

Flowing from the heels of the above, I resolve this third issue in favour of the Respondent and against the Appellant.

On the whole, I hold that this appeal succeeds in part. Part of the decision of the Court below granting reliefs 1, 2, 4 and 6 is hereby affirmed while the part granting relief 3 and 5 is hereby set aside.

The decision of the Court awarding of the sum of N50,000.00 (Fifty Thousand Naira) as cost against the Appellant is also affirmed. As for the instant appeal, I make no order as to cost.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I agree with the lead Judgment prepared by my learned brother ABUBAKAR SADIQ UMAR JCA allowing this appeal in part only.

The argument of the Appellant that the failure of the learned trial Court to consider the statement of the defence although irregularly filed, to see if it contained any material ground of defence was tantamount to shutting the Appellant out and a denial of his fair hearing is not sustenable.
The facts which led to this appeal are similar to those in the case of JOEL OKUNRINBOYE EXPORT CO. LTD V. SKYE BANK PLC ?

(2009) 6 NWLR Pt. 1139 p 518. The Apex Court held as follows on a similar argument put forward by the learned Counsel for the Appellant.
?In the instant case, the Appellants contended that their purported notice of intention to defend the action together with an affidavit filed more than a year after date fixed for the hearing of the Writ of Summons under the undefended list and without the leave of the Court granting extension of time to do so, is valid and ought to have been considered in deciding whether to enter judgment for the Respondent or not, I hold the firm view that they are wrong. To agree with their interpretation is to make complete nonsense of the provisions of Order 23 and the purpose it was designed to serve – that of speedy hearing of actions based on liquidated money demand or simple debt claims. It would amount to holding that a Defendant would be granted licence to employ whatever delay tactic he can muster to frustrate the action of the Plaintiff under the undefended list only to be allowed at the end of the day to stroll in and defend the action when intention is obviously to frustrate the Plaintiff. In the

circumstance, I resolve the issue against the Appellant.?
As rightly stated in the lead Judgment, the principle of fair hearing although a fundamental one, cannot be determined outside the facts upon which such allegations are made. With this addition, I adopt as mine the reasoning and conclusions made in the lead Judgment including the order as to cost.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ABUBAKAR SADIQ UMAR, JCA and I totally endorse the reasoning and conclusion therein.

?For the more detailed reasoning in the lead judgment of my learned brother, I equally allow the appeal in part and I adopt the consequential orders in the lead judgment as mine.

Appearances:

Samuel Ugochukwu Nnamani, Esq.For Appellant(s)

A.G.N. Eseagwu, Esq.For Respondent(s)

Appearances

Samuel Ugochukwu Nnamani, Esq.For Appellant

AND

A.G.N. Eseagwu, Esq.For Respondent