OMOWOOD INDUSTRIES LIMITED v. THE REGISTERED TRUSTEES OF BIBLE BELIEVERS FELLOWSHIP CHURCH & ORS (2014)

OMOWOOD INDUSTRIES LIMITED v. THE REGISTERED TRUSTEES OF BIBLE BELIEVERS FELLOWSHIP CHURCH & ORS

(2014)LCN/7342(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/I/5/2014

RATIO

COURT: RULES OF COURT; WHETHER RULES OF COURT MUST BE OBEYED AND THE CALLING OF EVIDENCE IN AWARDING GENERAL DAMAGES

The pertinent question agitating the mind is the provision of Order 27 Rule 4 relied upon by the court and the various authorities relied upon which state as essential, the calling of evidence in awarding general damages.
Rules of court are not made for the fun of it but must be followed and adhered to.
In Chief Onwuka Kalu v. Chief Victor Odili & Ors. (1992) LPELR 1653 SC: per Nnaemeka Agu JSC (p. 36:-
“Rules of court must prima facie be obeyed, if there has been a noncompliance with the rules and it is not explained, then unless it is of minimal kind, no indulgence of the court can be granted”.

The rule relied upon by the trial court is Order 27 Rule 4 Ogun State (Civil Procedure) Rules 1987.

This rule gives the court the power to assess the cost of damages in default of pleading.
The case of United Parcel Service Ltd v. Ufot (2006) ALL FWLR (pt. 314) 337 at 361. Omokri JCA (of blessed memory) held that assessment on unliquidated claim as regards damage warrants the calling of evidence.

The case of OKANBAH LTD V. SULE (1990) SC considered the purport of summary judgment vis a vis Order 10 R 1(a) of the High Court of Lagos State (Civil Procedure) Rules, Cap 52.
My lord KAWU JSC held that:-
“Now the purpose of the procedure under this order is to enable the plaintiff to obtain summary judgment without trial where his case is patently clear and unreasonable. It is not designed to shut out a defendant who can show that there is a triable issue. In determining whether a defendant has good defence to the action or has disclosed such facts as may be deemed sufficient to entitle him to defend. It is not necessary for the trial judge to decide at that stage whether the defence has been established. “What is required is simply to look at the facts deposed to in the counter or indeed the facts averred in the statement of defence where applicable and see if they can prima facie afford a defence to the action”.
The procedure in view in the above-quoted dictum is no doubt the undefended suit.

The relevance here is the point of “assess” by the learned trial Judge.
The power of the court in this circumstance is discretionary and which the trial court applied rightly, as it was clear from the record that the motion for summary judgment was adjourned on the application of the Appellant for report of settlement or hearing of motion to 24th January, 2008.On the said date, the Appellant was absent with no explanation, and had filed no counter affidavit in challenge of the motion. The court obliged the application for summary judgment. His lordship however is said to have erred in failing to take the evidence of the applicant on the pleadings filed before proceeding to judgment. It is also the indignant argument of the Appellant that a hearing notice should have been served on them again before the hearing of the motion. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE PERVERSE

It is not the practice of the court to interfere with the exercise of discretion by the trial court. (Refers Oshe v. Okin Biscuits Ltd & Anor. (2010) LPELR – 2798 (SC) P. 20, Agbakoba v. INEC & Ors (2008) LPELR – 232 (SC) Pp. 77-78). The caveat to this general rule however is that where the exercise of discretion is not judicial and judicious and thereby occasioning injustice to a party, this court must step into to right the wrong. My lord Onu JSC fortifies this point in the case of Ideozu & Ors v. Ochoma & Ors (2006) LPELR – 1419 (SC) P. 19 which held as follows:-
“It is the law that except under some stated conditions a court of Appeal will not interfere with a discretion of finding of fact by a trial court. But where the discretion of the trial court was not judicially exercised or where the finding of fact was perverse, a Court of Appeal will definitely interfere”. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

PRACTICE AND PROCEDURE: COUNTER-AFFIDAVIT; WHETHER THE ABSENCE OF THE COUNTER-AFFIDAVIT IS NOT A FREE PASS TO JUDGMENT
The absence of the counter-affidavit is not a free pass to judgment. First and foremost, it is conceded that not in all cases that a counter-affidavit is necessary to controvert facts in an affidavit especially where the depositions are self-contradictory. Further, certain issues raised can be completely determined by affidavit evidence, especially so when the suit was or are taken out on originating summons indicating a contest on documents alone. However where there are no clear-cut documents evidencing the claim, oral evidence is imperative. Pleadings must however precede oral evidence. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

COURT: COURT;S DISCRETION; THE MEANING OF THE WORD ASSESSED, WHETHER THE COURT SHOULD EXERCISE IT’S DISCRETION JUDICIALLY AND JUDICIOUSLY AND WHETHER AN APPELLATE COURT CAN INTERFERE THE COURT HAS NOT EXERCISED ITS DISCRETION JUDICIALLY AND JUDICIOUSLY

The key word in Order 27 Rule 4 seems to be “assessed by the court…”
The ordinary dictionary meaning of the word assess is to examine something or evaluate. There is no such evaluation exhibited in the judgment of the learned trial Judge. His lordship however could not have blindly awarded cost without some mental evaluation. A discretion to decide must be based upon the availability of competing material and evidence from which a choice can be made, such choice must then be guided by a judicious discretion clothed with an explanation for the choice.
That way, a discretion can be seen to have been exercised judicially and judiciously and not capriciously. See the case of Chief Nicholas Banna v. Telepower (Nig). Ltd. (2006) LPELR-1352 (SC) P. 23 where the Apex Court held that:-
“A trial court as a court of law and equity has the power to exercise some discretion in the judicial process. As long as the discretionary power is exercised judicially and judiciously, an appellate court cannot interfere by show of appellate power. It is good law that an appellate cannot substitute its discretion in the administration of justice for that of the trial court. And because discretionary power is exercised within the confines of the facts of the case, the trial Judge, the judge of facts, is in the best position to exercise the discretion. Where it is clear on the record that the power was not exercised judicially and judiciously, an appellate court may interfere.” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

PRACTICE AND PROCEDURE: SUMMARY TRIAL; THE PURPOSE OF THE SUMMARY JUDGMENT

PRACTICE AND PROCEDURE: PLEADINGS; THE GENERAL PRINCIPLE OF PLEADINGS

The general principle of pleadings is that pleadings which are not effectively controverted are deemed admitted. Pleadings are positive assertion of the existence of facts which formed the claim or denial of the claim of a party. Pleadings are binding on the parties and also on the court. When a litigant feels aggrieved and approaches the court with a set of facts called “complaint” with facts termed “pleadings”, these facts are now served on the Defendant who is the alleged aggressor/agitator. The Defendant reacts by stating his own set of facts in a statement of defence and may also claim some reliefs from the Plaintiff in a counter-claim. The matter is then set down for hearing and the parties tender their testimonies, witnesses and documents in support of their respective assertions and defence. That is a contested case and judgment is entered on a balance of probability. The evidence which has more weight on the imaginary judicial scale carries the day. Where no such response is filed within the period allowed by law, the plaintiff is entitled to approach the court by a motion for summary judgment, which is the situation in the case under review. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

JUSTICES

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

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

MUDASHIRU N. ONIYANGI Justice of The Court of Appeal of Nigeria

Between

OMOWOOD INDUSTRIES LIMITED Appellant(s)

AND

1. THE REGISTERED TRUSTEES OF BIBLE BELIEVERS FELLOWSHIP CHURCH
2. ELDER SOLOMON ADEMOLA ADEBOBUYI
3. PASTOR HEZEKIAH ADEBAYO
4. PASTOR J. O. OMOJESU Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State delivered by, Hon. Justice E. O. Osinuga (J) of Abeokuta Judicial Division.
The Respondents’ claim, against the Appellant the sum of N5, 000,000.00 (Five Million Naira) each for the unlawful demolition and displacement of the Respondents from their properties situate at and known as Magboro-Akeran Village, Obafemi Owode Local Government, Ogun State by the Appellant.

Due to the failure of the Appellant to file a statement of defence in accordance with the Rules of court, a motion dated 23rd July, 2007 for summary Judgment was taken out by the Respondents as Claimants. The learned trial Judge granted the application and entered a summary Judgment against the Appellant, on their claim for general damages.
It is the contention of the Appellant that before the summary judgment was delivered, there were moves by the parties to resolve the matter amicably and which fact was brought to the attention of the court and the learned trial Judge acknowledged this fact by granting adjournments to that effect.

Appellant argues that the learned trial judge erred by not ordering for service of hearing notice and without taking evidence on the assessment of the Respondents’ claim for general damages before entertaining the said application.

Appellant submits 3 issues for determination and these are:-
1. Whether the lower court was right to have granted summary judgment on claims for general damages in favour of the Respondents without any evidence led of such claims.
2. Whether the provisions of Order 27 Rule 4 of the Ogun State High Court (Civil Procedure) Rules 1987, on which the learned trial judge relied upon in granting the judgment did confer on the lower court power to grant summary/or default judgment in a claim for general damages without taking evidence from plaintiffs/Respondents.
3. Whether the learned trial judge possesses jurisdiction when he proceeded to deliver judgment against the Appellant without first ordering for the issuance and service of hearing notice on the Appellant for the hearing of the application for the summary judgment.

The learned counsel for the Respondent is of the opinion that this appeal can be determined on the following two issues:-
1. Whether or not the Appellant has established sufficient grounds on basis of which this Honourable court will interfere with the trial court judge’s discretion.
2. Whether or not the Appellant has established sufficient grounds on basis of which the judgment of the lower court may be set aside.
These two issues are just the two sides of the same coin.

After a careful perusal and pensive consideration of the decision of the learned trial Judge, grounds of appeal and the respective arguments of the learned counsel, I am of the humble opinion that this appeal can be determined on a sole issue.
The grounds of appeal without their particulars are as follows:-
GROUND ONE
The learned trial judge erred in law when he held that “Although the plaintiffs did not give evidence, however, considering that the Defendants have taken no step to defend the claim for general damages, I am convinced that the plaintiffs are entitled to some damages. However whether they are entitled to the sum of N5m is another issue. The plaintiffs led no evidence as to guide the court in assessing the general damages, thus I am entitled to exercise my discretion.”
GROUND TWO
The learned trial judge erred in law when he held that “Going by the provision of Rules of court in Order 27 Rule 4, I uphold the submission of the learned counsel. That the plaintiff is entitled to judgment, The Defendant having failed to file any statement of defence in spite of their entering application of the Applicant for judgment therefore succeeds.”
GROUND THREE
The learned trial judge erred in law when he held that “Judgment is hereby entered for the plaintiffs against the Defendant in the sum of N2,000,000.00 (Two Million Naira) being award of general damages in favour of each of the plaintiffs in consequence of the unlawful demolition and displacement of the plaintiffs from their landed properties situate at Magboro Akeran Village, Obafemi Owode Local Government of Ogun State.”
GROUND FOUR
The Learned Trial judge lacked jurisdiction to have delivered the judgment dated the 1st February, 2008 in Suit No. AB/94/07 against the Appellant when he did not order the issuance and service of hearing notice on the Appellant as well as when he proceeded to grant award for general damages without evidence being led in support.

The main grouse of the Appellant is that the learned trial Judge adopted a wrong procedure by which a summary judgment was entered for the Respondents and against the Appellant. The procedure was wrong because the provisions of Order 27 Rule 4 of the Ogun State High Court (Civil Procedure) Rules 1987 by which the summary judgment was pronounced did not confer on the court, the power it purports to possess. That in a claim for general damages, the court is without jurisdiction to grant a summary judgment without taking evidence from the Plaintiffs.
It is further the contention of the Appellant that the court should not have proceeded to enter judgment without first inviting the Appellant by way of a service of hearing Notice for the Motion.

On the 1st issue raised, the Appellant cited paragraph 17 of the statement of claim (pg. 5 of the records) which relates to the award of general damages claimed. Appellant submits that there is no evidence as to the worth of the landed property allegedly demolished by the Appellant and nor was there any evidence as to proof of title or ownership of the landed properties held demolished.

That there was also no proof by the Respondent that there was unlawful demolition and displacement of the Respondent from their land.

Appellant asserts that the court does not give default or summary judgment on a claim of this nature except evidence is led in that direction – (Refers UNITED PARCEL SERVICE LTD V. UFOT (2000) ALL FWLR (pt. 314) 337 at 361 paras A-B, OMOKRI JCA).

The learned Counsel for the Appellant cites- ODUDU EKENG INYANG V. NNAEMEKA CHUKWUOGOR (2007) ALL FWLR (pt. 344) 165 at 183-184 paras H-B. per ADAMU JCA to the effect that default judgment should be avoided even if there is default of appearance and pleadings as evidence must be led in proof of title or claim. See also MOBIL OIL NIG. LTD. V. AKINFOSILE (1969) NWLR 217.

The Appellant equally faults the exercise of the discretion of the trial judge as to the award of the general damages which the Appellant claims was done mala fide – cites: WEMA BANK PLC V. DIVERSE ASSETS MANAGEMENT LTD. (2008) ALL FWLR (pt 421) 922 at 999 where it was held that the exercise of discretion must conform with the tenet of natural justice, common justice and fair play.

Appellant emphasized the need for the trial judge to give an ordinary interpretation of Order 27 Rule 4 of the Ogun State High Court (Civil Procedure) Rule 1987 – cites: Alhaji Atiku Abubakar v. A.G. Federation (2008) ALL FWLR (pt. 441) 870 at 901 para E-F, per Abdullahi PCA (as he then was).

Appellant maintains that where the words are clear and unambiguous, the words should be applied by their ordinary meaning. (Refers Balogun v. Agbara Estate Ltd. (2007) ALL FWLR (pt. 438) 388 at 405).

That the purport of order 27 Rule 4 of the Rules is to the effect that evidence must be led before assessment of damages in a claim for general damages. Cites UNITED PARCEL SERVICE LTD v. UFOT (supra) where Order 27 Rule 4 Civil Procedure Rules Akwa Ibom State was considered and which provision is similar with Order 27 Rule 4 of the Ogun State Civil Procedure Rules, wherein the taking of evidence in a claim of this nature was held to be paramount. (Cites: ODUDU EKENG INYANG V. NNAEMEKA CHUKWU OGOR (Supra)), to the effect that judgment given in breach of fundamental human right is a nullity which is capable of being set aside.

The Respondent canvassed 2 issues and the 2 issues canvassed are synonymous with issue 1 and 2 of the Appellant.

Taking the provisions of the Rules in contention as a foundation, the learned Counsel for the Respondent reproduced Order 27 Rule 4 of the Ogun State High Court (Civil Procedure) Rules 1987 which provides as follows:-
“Where the plaintiffs claim against a defendant is for unliquidated damages only, then if that defendant makes default in pleading the plaintiff may after the expiration of the period fixed as aforesaid for service of defence, have judgment entered against the Defendant for damages to be assessed by the court and costs, and may proceed with the action against the other Defendants if any”

Maintains that the discretionary power of the trial judge was exercised in line with the rule of law. Argues that the issues in the instant appeal relate to the assessment of damages which is dependent on the individual judge’s perception being purely discretionary.

Respondent asserts that Order 27 Rule 4 gives the trial judge the power to enter default judgment and damages assessed by the court.

It is the opinion of the learned counsel that when it comes to issue of discretion, no precedent can be followed as no case can be an authority for another. (Cites:- ANGYU V. MALAMI (1992) 9 NWLR pt. 264 at 242). Respondent submits further that the appellate court only interferes with court’s discretion when there is good cause. (Cites NATIONAL BANK OF NIGERIA LTD V. P. B. OLATUNDE & CO. NIG. (LTD) 1994 3 NWLR (pt. 334) 512 at 526, IMONIKHE V. AG BENDEL STATE (1992) 6 NWLR (PT. 248) 396 at 408, UNIVERSITY OF LAGOS V. OLANIYAN (No. 1) (1985) 1 NWLR (pt. 1) 156, SALIU V. EGEIBON (1994) 6 NWLR (PT. 348) 23, UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR (pt. 1) 143, AIYAH V. ANN LTD (1992) 6 NWLR (PT. 247) 319, ENEKEBE V. ENEKEBE (1964) 1 ALL NLR 102).
Asserts that the discretion exercised was not wrongly done nor was it tainted with irregularity as the Judge was cautious in the exercise.

The learned counsel for the Respondent reiterates the fact that the Appellant and his counsel were absent without explanation. That before the motion for summary judgment was taken it was served on the Appellant, that there was no counter affidavit to the motion. The date of the argument of the said motion was fixed in the open court and in the presence of the Appellant.

Counsel maintains that the assessment of two million naira (N2, 000,000.00) to each of the respondent falls within the power of the trial judge, and therefore urges the court to resolve issue 1 in favour of the Respondent.

Respondent’s issue 2 is similar to his first issue as it bothers on whether the judgment delivered can be set aside.
In the course of the argument on this, the Respondents point to the Appellant’s failure to file his own pleadings on time till the expiration of time to do such an act and argue that such indolence and delay cannot avail him in the instant appeal.
Cites several authorities to support the claim that the judgment delivered conforms with the principle of law and rules of court and cannot be set aside.

The rule relied upon by the trial court is Order 27 Rule 4 Ogun State (Civil Procedure) Rules 1987.
This rule gives the court the power to assess the cost of damages in default of pleading.
The case of United Parcel Service Ltd v. Ufot (2006) ALL FWLR (pt. 314) 337 at 361. Omokri JCA (of blessed memory) held that assessment on unliquidated claim as regards damage warrants the calling of evidence.

In this appeal, the Appellant alleges that the exercise of discretion by the trial court has wounded his right to fair hearing. That the learned trial Judge erred and thereby miscarried justice by entering a summary Judgment against him without hearing and evaluating the evidence of the Respondent as Claimant before the trial court.

The Appellant neither filed a defence to the suit of the Respondents nor a counter-affidavit to the motion for summary Judgment.
The absence of the counter-affidavit is not a free pass to judgment. First and foremost, it is conceded that not in all cases that a counter-affidavit is necessary to controvert facts in an affidavit especially where the depositions are self-contradictory. Further, certain issues raised can be completely determined by affidavit evidence, especially so when the suit was or are taken out on originating summons indicating a contest on documents alone. However where there are no clear-cut documents evidencing the claim, oral evidence is imperative. Pleadings must however precede oral evidence.

The purport of the provision of Order 27 Rule 4 is to ensure that a reluctant Respondent (as Defendant at the trial court) does not delay the quick determination of the suit of the plaintiff/claimant. An aggrieved Plaintiff is therefore presented with an opportunity to approach the court for a summary Judgment in the default of a timeous response by the Defendant. In the case Chief Nicholas Banna v. Telepower (Nig). Ltd. (supra) p.22 my lord Tobi JSC held that:-
“A trial Judge can indulge a party in the judicial process for sometime but not for all times. A trial judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial Judge, cannot complain that he was denied fair hearing. Such is the situation I see in this appeal.”

However, being an unliquidated money demand, the case of the plaintiff must be established by evidence. A summary trial does not change the character of a civil matter which principle is proof by preponderance of evidence. Each party stands or falls on the quality of his own case and not the poor quality of the other party’s.
Where the Appellant as Defendant fails to file a defence, then the plaintiff is entitled to judgment upon a minimal evidence in support of his case. The critical issue is that the Applicant for a summary judgment must place some evidence before the court. The case of Chief D. B. Ajibulu v. Major General D.O. Ajayi (Rtd) (2014) 2 NWLR (pt. 1392) 483 @ 497 answers this question where the Apex Court my lord Ogunbiyi JSC declared that:-
“Pleadings serve as a foundational nucleus of a case; contested facts on pleadings give rise to issues which are to be proved by evidence. The absence of issues signify admission and thus call for no evidence.” See also Olufosoye v. Olorunfemi (1989) 1 NWLR (pt.95) 26; Bunge v. Gov., Rivers State (2006) 12 NWLR (Pt. 995) 573.

An analogy could be drawn here between a summary judgment under Order 27 Rule 4 as against one under Order 23 Rule 4 both of the Ogun State, High Court (Civil Procedure) Rules as a summary judgment in a suit marked the “undefended suit”. Where a suit is so marked, the contention of the Applicant, which must be in a liquidated money demand, is that the Defendant has no defence. (See Macaulay v. NAL Merchant Bank Ltd (1990) 4 NWLR (Pt.44) 283; (1990) 6 SCNJ 117). In so doing, all the relevant evidence must be annexed and exhibited with the affidavit filed in support of the application. In most cases, the facts are such as speak for themselves as can be deciphered from the documents. The procedure is also encast in a specific time line. When the Defendant fails to file a Notice of an intention to defend with good compelling materials to justify being given a hearing, the court can proceed. Even in this, both parties are heard via their respective documents and the court has materials upon which to exercise the discretion to enter a summary judgment or to send the matter to the general cause list for a full trial.
Thus, whereas the Plaintiff commences his suit upfront as an undefended suit, a summary trial for the failure of the Defendant to file a reply is activated by a motion on notice in addition to the writ and statement of claim which initiates the proceedings. In the later, there is a clear cut procedure and the suit must be marked “undefended”. In the former, which is the state of the instant appeal, the motion comes after the suit has been commenced.

In the instant appeal, there was no such application of no good defence and no evidence was called to add flesh to the pleadings of the Respondents. For the general damages to be awarded without proof in a land matter, trespass must be established either by the adduction of evidence or by evidence of admission by the trespasser.

No doubt, the conduct of the Appellant before the trial court is not commendable but two wrongs do not make a right.
The contention of the Appellant as regards his 1st and 2nd issue revolves around the fact that there was no evidence led as to the worth of the landed properties allegedly demolished by the Appellant to unravel the proof of unlawful demolition and displacement of the Respondent at Magboro Akeran Village. The Court of Appeal is not the forum to raise such argument which should have adorned the paragraphs in the statement of defence at the trial court.

His lordship reasoned that there was no evidence upon which to premise the order of the court and therefore had to fall back on its discretion, as stated at page 21 of the records as follows:-
“…Although the plaintiffs did not give evidence, however, considering that the Defendants have taken no steps to defend the claim for general damages, I am convinced that the plaintiffs are entitled to some damages. However, whether they are entitled to the sum of =5=m is another issue. The plaintiffs led no evidence as to guide the Court in assessing the general damages, thus, I am entitled to exercise my discretion…”

The purpose of the summary trial is not to shut the Defendant out but to ensure that valuable judicial time is not expended on a suit which should not be contested being totally bereft of justification. The instant appeal is one of such a case. The Appellant was a reluctant litigant but he failed to act timeously to resolve the issues out of court, if he was mindful of such Appellant cites the case of ODUDU EKONG INYANG V. NNAEMEKA CHUKWUOGOR (2007) ALL FWLR (pt. 344) 165 at 183-184 in support of the argument that default judgment should be avoided even if there is default of pleading or appearance once it pertains to proof of title. See CHIKAMADU V. THE STATE (2011) LPELR 3973 (CA) where this court held that:-
“Again, it must be further be conceded to learned appellant counsel that the lower court, by appellant’s application, required to exercise its discretion and that by law, that must be done judicially and judiciously. Where it fails to do so and its discretion is shown to be perverse, the court’s decision must be interfered with on appeal. Per Muhammad JCA (pp. 13-14) (AHTW).
The situation is however different in this case. The principles of pleadings must be considered. (Refers Chief D.B. Ajibulu v. Major General D. O. Ajayi (Rtd) (supra).

ISSUE TWO
Issue 3 of the Appellant covers ground 4 as contained in the notice of appeal page 33-34 of the records of appeal.
“Whether the learned trial judge possess jurisdiction when he proceeded to deliver judgment against the Defendant/Appellant without first ordering for the issuance and service of hearing notice in the Defendant/Appellant for the hearing of the application for summary judgment”.

The Appellant’s learned counsel dwelt at length on the issuance and service of hearing notice on parties by the trial court before motion for default judgment can be heard. The learned Counsel argues further that such omission is fundamental and erodes the court of its jurisdiction and that any order made against a party not served should be set aside.
Appellant cites the case of Prince Collins Eselemo v. Solomon Funke Keme (2004) ALL FWLR (pt. 224) 2092 at 2102 – 2103 per Muhammed JCA (AHTW) to the effect that:-
“Service of a process on a party e.g. a hearing notice is one of the fundamental conditions precedents to the exercise of the jurisdiction by a court. It therefore follows that where a service of a process is necessary and there is no proof of such a service, any judgment emanating from such a proceeding is a nullity. Before a court can have jurisdiction to adjudicate on a matter, it is a fundamental condition that the parties are served with the process”
The illustration vide this authority is simple, clear and unambiguous. It says where service of a process is necessary and there is no proof, then judgment emanating therefrom is a nullity.Was service necessary or absent in the instant appeal?

Going by the records; page 13, 14, 15 and 16, it was shown that it was only a memorandum of appearance that was filed by the Defendant and nothing more. Subsequently after the expiration of 42 days required by the Rules of Court for filling pleadings and defense, and after 75 days, Plaintiff the filed an application for summary judgment on 23rd July, 2007 and it was served accordingly on the Appellant as Defendant on 25th July, 2007.
This said motion was adjourned at the instance of the Appellant’s learned counsel on two occasions. The first adjournment granted at the instance of the Appellant was on 1st November, 2007 when the matter was adjourned to January 24th, 2008 for either report of settlement or hearing of the motion for default judgment. On the said date of adjournment, both the Appellant and its counsel were absent with no explanation to the court, and the court having been satisfied that there is no defense or counter to the said motion heard the motion. Granting the motion should have resulted in the taking of evidence of the Applicant before judgment is entered.

The question whether the cited authority of Prince Collins Eselomo v. Solomon Funke Keme (supra) can avail the Appellant despite the fact that he was aware of the date the motion was adjourned to as he was in court is answered in the negative and the deliberate absence without reason rightly enable the court to proceed with the motion. The alleged error now lies with the alleged absence of evidence by the Respondent.

The general principle of pleadings is that pleadings which are not effectively controverted are deemed admitted.

Pleadings are positive assertion of the existence of facts which formed the claim or denial of the claim of a party. Pleadings are binding on the parties and also on the court.

When a litigant feels aggrieved and approaches the court with a set of facts called “complaint” with facts termed “pleadings”, these facts are now served on the Defendant who is the alleged aggressor/agitator. The Defendant reacts by stating his own set of facts in a statement of defence and may also claim some reliefs from the Plaintiff in a counter-claim. The matter is then set down for hearing and the parties tender their testimonies, witnesses and documents in support of their respective assertions and defence. That is a contested case and judgment is entered on a balance of probability. The evidence which has more weight on the imaginary judicial scale carries the day.
Where no such response is filed within the period allowed by law, the plaintiff is entitled to approach the court by a motion for summary judgment, which is the situation in the case under review. The core issue in this appeal is whether the Plaintiff needs to give evidence and call witnesses before the Judge proceeds to judgment. The Appellant is of the opinion that oral evidence is vital and that the Respondent should also be further put on notice before the court proceeds. The Respondent is of the contrary view and maintains that the Respondent had sufficient notice and was in court when the notice for summary judgment was adjourned twice at the instant of the Appellant who dangled a settlement pie to secure the adjournments.

Upon the failure of the Appellant to propose the terms of settlement, the Respondent urged the court to enter judgment in accordance with Order 27 Rule 3 of the Ogun State Civil Procedure Rules. The learned trial Judge obliged. Judgment was accordingly entered for the Respondents and against the Appellant. Was the learned trial Judge imbued with the jurisdiction to proceed as his lordship did?

A reference to the claim of the Respondents before the trial court is imperative to determine the jurisdiction of the court at pages 1-3 of the record, they averred, inter alia are as follows:-
“…..
6. The Plaintiffs further aver that they had since acquiring their land peacefully co-existed with one another and other neigbours without let or hindrance from any quarter to their holding until December, 2005 when the Defendant with the aid of the armed men and without prior warning, suddenly stormed the Plaintiffs’, neighbourhood with threats to demolish the Plaintiffs’ and their neigbours’ properties.
7. “although the Defendant claimed to have bought the large expanse of land in the area from the government for commercial use, no notice of acquisition by the government or document of purchase, was ever produced by the Defendant neither was one ever served on any of the Plaintiffs.
8. Upon the stiff opposition shown by the property owners in the area, some through litigation, to the disruptive activities of the Defendant, the Defendant through its official approached the owners of property in the area including the Plaintiffs and offered to pay for the value of the properties to be destroyed to pave way for the intended commercial activities of the Defendant in the area.
10. Based on this understanding between the Defendant and all the property owners in the area, including the Plaintiffs, the Defendant commenced payment of compensation to the property-owners and has since paid off everyone in the neighborhood with the exception of the Plaintiffs. The Defendant had also once it commenced payment of compensation to the other properties-owners, moved its equipment onto the site and completely demolished every property in the area including the Plaintiffs’. The Plaintiffs who have been so displaced from their properties, in respect of which they had expended substantial sums of money, are yet to receive any form of payment from the Defendant.
11. When the Plaintiffs who left quite disturbed that they were the only once left to be instructed their Solicitor, Messrs. Abraham & Co. to enter into peaceful discussions with the Defendant and its Solicitors with a view to the amicable resolution of the matter, the Defendant and its Solicitors Messrs. Tayo Douglas & Co. informed the Plaintiffs’ solicitors that the monies meant to be paid to the 1st Plaintiff had been erroneously paid to some individuals whose identities were never disclosed, who purportedly acted as representatives of the Church. The Defendant said nothing at all about the 2nd-4th Defendants, but at any rate re-affirmed its commitment to settle all the Plaintiffs’ claims peacefully.
13. When again after waiting for a few months following the Defendant’s re-affirmation of its commitment to amicably resolve the matter, nothing was forthcoming, the Plaintiffs’ said Solicitors wrote a reminder dated 12th December, 2006 to the Defendant’s solicitors, forwarding along with the said letter, the particulars of the individual claims of the Plaintiffs. The Defendant’s solicitors wrote back, merely asking for more time to deal with the matter. The two letters are hereby pleaded and the Defendant is herewith given notice to produce the original copy of the Plaintiffs, Solicitors, letter dated 12th December, 2006 at the trial of this action.
14. Several subsequent telephone discussions between solicitors on both sides have yielded no positive results and it is plain to the Plaintiffs that the Defendant unless compelled by Court to do so, has no intention of abiding by its undertaking to pay for the Plaintiffs’ properties demolished and taken over by the Defendant.
15. The Plaintiffs aver that their displacement from their properties in the deceitful manner done by the Defendant has worked tremendous hardship on each one of them. The Plaintiffs, especially the 2nd – 4th Plaintiffs, had expended practically all their savings on the properties now destroyed by the Defendant and the Plaintiffs now have no means of providing alternative accommodation for themselves and their displaced dependants.
17. Wherefor the Plaintiffs claim as follows:
AN ORDER of this Honourable Court awarding general damages in the sum of N5,000,000.00 (Five Million Naira) in favour of each of the Plaintiffs in consequence of the unlawful demolishing of, and displacement of the Plaintiffs from their landed properties situate at Magboro-Akeran Village, Obafemi-Owode Local Government, Ogun State, by the Defendant.”

These are some of the facts placed before the learned trial court before the motion for a summary judgment was filed in terms of the provisions of Order 27 Rule 3.

In the brief judgment of the learned trial Judge, his lordship declared that “the plaintiff led no evidence as to guide the court in asserting the general damages…”. In so holding, his lordship totally discountenced the principle of pleadings which states that facts pleaded and not controverted are deemed admitted and need not to be proved. (See Salawu v. Yusuf (2007) 5 SC p. 35; (2007) 12 NWLR (pt. 1049) p. 70 & Agidigbe v. Agidigbi (1992) 2 NWLR (Pt.221) page 98).

The Appellant did not controvert the assertions made by the Respondents; they filed no statements of defence and rather halfheartedly dangled a pie of settlement. In the affidavit in support of the motion for summary judgment, it is deposed therein that the Appellants took no steps whatsoever towards settlement despite two adjournments.

In the Statement of Claim, facts were clearly pleaded to the effect that the Respondents were among a group whose land had been trespassed on to by the Appellant. Clearly, the issue of trespass is involved and where trespass to land is raised, general damages as raised in this appeal is actionable per se. no much ado. Some people among the group had been paid compensation while the Respondents were not so compensated. Not an iota of denial or challenge of the claim of the Respondents was placed before the trial court. Rather, the Appellant proposed settlement which turned out to be a ploy for delay. The Appellants can rightly be assumed to have admitted the claim of the Respondents. The Apex Court per Aniagolu JSC (of blessed memory) in the case of Owosho & Ors v. Dada (1984) NSCC 568 put it instructive in these terms:-
“…. a fact is deemed to be admitted if it is neither specifically denied nor denied by implication, having regard to other facts averred in the pleadings. A plaintiffs averments of facts must be met by the defendant frontally and categorically. The rules of pleadings do not allow a defendant to be hedgy or evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly- either by admitting or by denying them, except, of course, where he is not in a position to admit or deny by reason of the matter, for example, being peculiarly within the knowledge of the plaintiff he is taken to have admitted them…”
What further evidence did the learned trial Judge require? Even if there were some form of denial, the failure of the Appellant to effectively defend the claim of the Respondents would entitle them to summary judgment upon a minimal evidence. In this appeal, there was no denial, no challenge. Not even the motion for summary judgment elicited a denial from the Appellant.

Failure to enter a summary judgment for the Respondents would have negated the purport of the provisions of Order 27 Rule 3 of the Ogun State Civil Procedure Rules. The attempt to smuggle in the issue of jurisdiction and the allegation of denial of fair hearing are mere desperate acts of the drowning Appellant. The learned trial Judge acted within the jurisdictional circumference imbued on his lordship by the claim of the Respondents which were clearly within the competence of the trial court to hear and determine.

In the circumstance, I am of the humble opinion that the learned trial Judge had ample evidence upon which to proceed as his lordship did. The learned trial Judge according rightly invoked the discretionary powers inherent in the court to enter judgment for the Respondents.

This appeal lacks merit and is hereby dismissed. The judgment of the Ogun State High Court coram Hon. Justice E. O. Osinuga (J) is hereby affirmed. The Appellant shall pay to each of the Respondents, the sum of N2, 000,000.00 along with all the consequential orders made by the learned trial Judge.

A cost of N30, 000.00 is hereby awarded to the Respondents and against the Appellant.
It is hereby so ordered.

HARUNA SIMON TSAMMANI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Monica B. Dongban-Mensem, JCA.

It is the law that a court should not simply award damages in a claim for unliquidated pecuniary damages without taking evidence which will form the basis of the amount of damages to be awarded. Since the court cannot award damages without giving reasons as to how he arrived at the amount he has awarded, such award should be reasonably supported and established by credible evidence. See Umunna v. Okwuraiwe (1978) 6-7 S.C. p.1.
In the instant case however, the Respondents’ claim is predicated on trespass to land. It is the law that trespass to land is actionable per se. It means therefore that, once the act of trespass is proved, the plaintiff need not prove damages, as the damages is generally presumed. The Appellant having failed to file a defence to the Respondents’ claim, which the learned trial Judge considered as having been admitted, the law allows the trial court to enter judgment in default. Since trespass to land is actionable per se, the learned trial Judge was entitled to presume damages and to award same. The Appellant’s complainant is not that the award is excessive, but that it was awarded without evidence, but as can be seen the learned trial Judge was entitled to presume the damages, as trespass to land is actionable per se.

It is for the above reason and the detailed reasons in the lead judgment that I agreed that this appeal has no merit.

It is hereby dismissed.

I abide by the order on costs.

MUDASHIRU N. ONIYANGI, J.C.A.: This appeal is against the judgment of the High Court of Ogun State delivered by Hon. Justice E.O. Osinuga (J) of Abeokuta Judicial Division which found for the plaintiff/respondent. Notice of Appeal containing four grounds of Appeal was filed. Briefs were filed and exchanged. Therein Issues were formulated and argued. My learned brother Monica Bolna’an Dongban-Mensem, JCA allowed me to read in draft the judgment just delivered. The assessment of the damages and awards articulated by the learned trial judge and affirmed by my learned brother in the lead judgment is faultless and unassailable. Having taken into consideration the principle enunciated by the following authority, made me entirely agree with his Lordship that the position taken by the lower court cannot be faulted. See Edward Okwaziminor v. G. Gbakeji and Nigeria Bottling Co. Plc (2008) LPELR pg. 2537.

For the reasons rendered by my learned brother in this lead judgment, I entirely agree with him that the court below was right. The appeal before us therefore fails. Same is dismissed. I endorse the order as to cost.

Appearances

Tayo Douglas Esq.For Appellant

AND

Adekunle AjayiFor Respondent