UKA v. OKAFOR
(2022)LCN/16571(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, January 31, 2022
CA/K/24/2019
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
ENGR. CHARLES UKA APPELANT(S)
And
ALEX OKAFOR RESPONDENT(S)
RATIO
THE POSITION OF LAW ON SUMMARY JUDGEMENT
Now, a summary judgment is one given in favour of a claimant without plenary trial of the action. Although not preceded by a trial, it is nevertheless a judgment rendered on the merit: it flows inexorably from want of defence on the part of a defendant whose situation cannot be altered or improved upon even by the rigour of a full-dressed trial. Summary judgment is for the plain and straightforward, not for the devious and crafty. Not being a judgment based on some procedural slips such as failure to enter appearance or file pleadings, it can only be set aside or interfered with on appeal but not by the Court that granted it. See F. Nwadialo, Civil Procedure in Nigeria, 2nd ed., pp 515 – 516, NASCO TOWN PLC v. MR. FESTUS UDE NWABUEZE (2014) LPELR-22526(CA) and MR BENSON UGOCHUKWU v. SIR ISRAEL CHUKWUDOZIE OKONKWO (2017) LPELR-50018(CA).
As is the case with undefended list, the summary judgment procedure is a truncated form of civil hearing that saves the Court the tedium of hearing sham defences mounted by a defendant with no genuine defence to an action, who is merely determined to dribble and cheat a legitimate claimant out of reliefs to which he is eminently entitled. See generally WEMASEC v. NAIC supra at 140-141 –per Nweze JSC, UBA PLC v. JARGABA [2007] 11 NWLR (PT 1045) 247 at 272, AGWUNEME v. EZE [1990] 3 NWLR (PT 137) 242, PLANWELL WATERSHED LTD v. OGALA (2003) 12 S.C. (PT II) 39 at 43-44 and BANK OF THE NORTH LTD v. INTRABANK SA (1969) 1 ALL NLR 91.
Although the scope of summary judgment procedure is much wider than undefended list, both are often deployed towards the expeditious disposal of cases for the recovery of debt or claims for liquidated sums that are straightforward, uncontested and incontestable, with a view to checkmating defendants with no plausible defences from frustrating claimants whose cases are unassailable. See LEWIS v. U.B.A. PLC [2006] 1 NWLR (PT.962) 546 at 565, THOR LTD v. FCMB LTD [2005] 14 NWLR (PT. 946) 696 at 710 – 711, OBASANJO FARMS NIG LTD v. MUHAMMAD (2016) LPELR – 40199 (CA) and MOSHOOD v. AKUBI (2014) LPELR – 24005 (CA). The Supreme Court stated in UBA PLC v. JARGABA supra that summary judgments are used for disposing with dispatch cases “where there is no reasonable doubt that a plaintiff is entitled to judgment”. See also CARLING INTERNATIONAL NIGERIA LIMITED v. KEYSTONE BANK LIMITED (2017) LPELR-50689(CA) 1 at 7 – 9. PER AFFEN, J.C.A.
WHETHER OR NOT A CLAIM FOR SOLICITOR’S FEES CAN BE GRANTED BY THE COURT
A claim for solicitor’s fee is not one that is ordinarily granted by a Court. See IHEKWOABA v. ACB [1998] 10 NWLR (PT. 571) 590 at 610 – 611 (CA) and NWANJI v. COASTAL SERVICES (NIG) LTD [2004] 11 NWLR (PT. 885) 552. Whereas the Appellant relied on the decision of this Court in GUINNESS NIGERIA PLC v. NWOKE supra at 150 to the effect that a claim for solicitors fee is unethical, outlandish and unknown to law as it does not constitute damage suffered in the course of any transaction between the parties, the Respondent called in aid the case of INT’L OFFSHORE CONSTRUCTION LTD & 3 ORS v. SHORELINE LIFTBOATS NIGERIA LTD supra, insisting that expenses incurred on services of counsel are reasonably compensated under our law.
It would seem however that a claim for solicitor’s fee can properly lie in a case and be granted by the Court insofar as it is specifically pleaded as special damages and proved by adducing credible evidence thereon. See ECOBANK NIGERIA PLC v. SALEH (2020) LPELR-52024(CA), AGBALUGO & ANOR v. IZUAKOR (2017) LPELR-43289(CA), LONESTAR DRILLING NIG LTD V NEW GENESIS EXCECUTIVE SECURIY LTD (2011) LPELR-4437(CA) and NAUDE & ORS v. SIMON (2013) LPELR-20491 and AJIBOLA v. ANISERE [2019] LPELR- 48204(CA) which underscored the dynamism of more recent decisions on the point. The case of REWANE v OKOTIE-EBOH (1960) SCNLR 461 donates the proposition that “costs will be awarded on the principles of genuine and reasonable out of pocket expenses and normal counsel costs usually awarded for a leader and one or two juniors”. PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): The High Court of Kaduna State (coram: S. S. Daka, J.) entered summary judgment in Suit No: KDH/KAD/1345/2017: Alex Okafor v Engr Charles Uka pursuant to Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007 (“CPR”) in favour of the Respondent against the Appellant on 12/2/18. Being dissatisfied with the judgment (which lies at p. 78 of the records), the Appellant lodged the present appeal vide an original Notice of Appeal filed on 30/3/18, which was subsequently amended with the leave of this Court. The Amended Notice of Appeal was filed on 12/4/19 but deemed properly filed on 28/1/20. Briefs of arguments were duly exchanged and the appeal was heard on 3/11/21.
Whereas the Respondent formulated a sole issue for determination, namely: “Whether the Appellant is entitled to all the reliefs claimed in this appeal”, the Appellant nominated the following two (2) issues:
(i) Whether or not the learned trial Court was right in entertaining the respondent’s claim under its Summary Judgment Procedure in Order 11 of the Kaduna State High Court (Civil Procedure) Rules 2007, when the said claims contained contentious and non-liquidated claims or for sums upon which there was no prior agreement between the parties.
OR IN THE ALTERNATIVE
Whether the Respondent’s claims before the trial Court contained contentious claims against the appellant that were never agreed upon between the parties which were not liquidated claims as to constitute a claim that could come under the Summary Judgment proceedings of the trial Court?
ii. Whether in the face of Respondent’s exhibits AO1 – AO11, attached to Respondent’s affidavit seeking summary judgment, which were neither issued against the appellant nor acknowledged or agreed upon by him, in contradiction of the respondent’s claims before the trial Court, the said Court ought not to have transferred the respondent’s suit before it to the General Cause List.
The issues distilled by the parties (as reproduced above) show that this appeal condescends on the legal propriety of the summary judgment by the lower Court in light of the fact pattern disclosed in the affidavit evidence before it. I propose therefore to determine this appeal on the basis of the issues nominated by the Appellant, which issues can conveniently be taken together.
The facts that undergird the present appeal seem to me straightforward and by no means complex or convoluted, and it is needful to set them out, albeit briefly. Ex facto oritur jus. Facts are the fountainhead of the law. The Appellant’s Toyota Camry Sedan (2007/2008 model) with Registration Number RSH 620 AQ broke down in the premises of a church in Kaduna on 10th June 2016, whereupon the Appellant engaged the services of the Respondent to fix same by doing “everything possible to get the motor vehicle to fully work”. Upon a diagnosis of complete breakdown of the vehicle’s electrical mechanism, it was towed from the church premises to the Respondent’s auto-mechanic workshop. When the problem could not be fixed, the vehicle was again towed to the workshop of one Alhaji Maruf at Mechanical Garage Kurmi-Mashi, Kaduna. Alhaji Maruf is said to be an experienced automobile electrician. The vehicle’s brain box was replaced but the problem persisted, and the vehicle was taken back to the Respondent’s workshop, where one Emeka eventually succeeded in fixing the problem to the satisfaction of the Appellant sometime in May 2017. The Respondent claimed that he carried the Appellant along all the way and duly informed him of every step taken, and the understanding was that full payment would be made only when the problem was solved. The parties “did not know in truth how much the works on the motor vehicle would eventually cost”, which is quite understandable. The Respondent incurred various expenses on behalf of the Appellant in the course of the extended process of the repairs from 10th June 2016 to May 2017, during which period the Appellant made an advance of N80,000 (in two instalments of N50,000 and N30,000 respectively). In a frantic bid to recover expenses incurred, the Respondent (as plaintiff) initiated these proceedings vide a writ of summons issued out of the Registry of the lower Court on 19/12/17, claiming against the Appellant (as defendant) the following reliefs:
“a. THE TOTAL SUM OF N661,000.00k (Six Hundred and Sixty One Thousand Naira) against the Defendant, comprising the cost for repair of the Defendant’s 2007/2008 Model Toyota Camry Sedan, with Registration Number: RSH 620 AQ and for providing security for the motor-vehicle from August 2016 to June 2017 at the Plaintiff’s automobile mechanic workshop at Rainoil , Algeria Road, Barnawa Kaduna.
b. THE SUM of N300,000.00K (Three Hundred Thousand Naira) against the Defendant, being professional fee paid by the Plaintiff to his lawyer, Ehizogie Fidelis Imajodemu, albeit to C. Osadebey Uzor & Co., to prosecute this cause.
c. THE COST of this suit as shall eventually be assessed by the Honourable Court.
d. THE SUM equivalent to 10% (ten percent) interest per annum on any judgment sum until final liquidation of debt.”
The Respondent (qua plaintiff) filed along with the writ of summons and statement of claim a motion on notice brought pursuant to Orders 11 and 15 CPR praying for: “AN ORDER of the Honourable Court entering judgment in favour of the Plaintiff/Applicant as endorsed on the writ and as also contained in his Statement of Claim, the originating processes of which are now accompanied by this application”, supported by a 36-paragraphed affidavit deposed by the Respondent himself with Exhibits AO1 – AO11 annexed thereto. The Appellant did not file any defence or otherwise resist the application for summary judgment. In a rather terse judgment (that is indeed ‘summary’), the lower Court held thus (at p. 78 of the records):
“Having carefully studied the affidavit evidence before me and the written address just adopted by the Applicant and the statutory and judicial authorities cited in support coupled with the fact that the Defendant/Respondent was served with the process herein on 18/1/2018 and up to (sic) this moment did not file notice of intention to defend and did not put up any defence in this suit leaving the processes filed unchallenged, this Court is left with no option than to believe the averments as contained in the affidavit in support as I am bound so to do.
This suit being a claim for an amount certain and the fact that the defendant did not dispute it, I hereby enter judgement in favour of the Plaintiff/Applicant as per the writ of summons and statement of claim against the Defendant and I also I award N10,000.00 cost against the Defendant.” It is contended that notwithstanding that the Appellant did not put up any defence to the claim as enjoined by Order 11 Rule 4 CPR, the learned trial judge erred in entering summary judgment for the Respondent in the total sum of N961,000.00 claimed, which comprises cost of repair of the vehicle, provision of security as well as solicitor’s fee. The Appellant maintained that the claim was not for liquidated sums agreed upon by the parties and the lower Court ought not to have entertained the Respondent’s application and/or entered summary judgment under Order 11 CPR, citing GRAND SYSTEMS PETROLEUM LTD & ANOR v. ACCESS BANK PLC (2015) 3 NWLR (PT. 1446) 317 at 352, para G-H –per Orji-Abadua JCA, FORTUNE INT’L. BANK PLC v. CITY EXPRESS BANK (2012) 14 NWLR (PT. 1319) 86, CA and ALHAJI KABIRU v. ALHAJI IBRAHIM (2005) ALL FWLR (PT. 240) 94 at 114-115-118.
The Appellant argued that the particulars of the Respondent’s claim as shown in Exhibits AO1 – AO11 annexed to the application for summary judgment are not only self-defeating and contradictory, but also not referable to or addressed to him; and that the Respondent failed to substantiate the grounds for believing that there was no defence to his claim. It is forcefully submitted that a plaintiff’s belief under Order 11 Rule 1 CPR and the grounds for such belief should and must be evinced by the nature of the claim, the affidavit in support of application for summary judgment and exhibits annexed thereto in order to satisfy the Court that there is indeed no defence whatsoever to the suit and the plaintiff is thus entitled to judgment under the said rule of Court. The Court was urged to allow the appeal, set aside the summary judgment and transfer the suit to the general cause list for trial.
The Respondent’s reaction is that the phrase “liquidated claims or sums” or “liquidated money demand” is not mentioned in relation to claims recoverable under Order 11 of the Rules of the lower Court, insisting that what is expected of a claimant is simply ‘a belief that there is no defence to the claim’ insofar as there are verifiable grounds for the plaintiff’s belief. The Respondent maintained that whilst a claim under Order 11 could be for a “liquidated sum or debt” or “liquidated money demand”, other monetary claims are not excluded; and to suggest otherwise is to overreach the clear provisions of the rules, insisting that none of the cases cited by the Appellant limits the summary judgment procedure in Order 11 to claims for debt or liquidated money demand only. Reliance is placed on JOLABON INVESTMENT (NIG.) LTD. & 2 ORS v. OYUS INTERNATIONAL COMPANY (NIG.) LTD [2015] 18 NWLR (PT. 1490) 30 at 42, ECO INTERNATIONAL BANK PLC v. NIGERIA UNION OF LOCAL GOVERNMENT EMPLOYEES, JALINGO LOCAL GOVERNMENT COUNCIL & ANOR [2015] 10 NWLR (PT. 1466) 49 at 79-80, WEMASEC v. NAIC [2015] 16 NWLR (PT. 1454) 93 amongst a host of other cases.
The Respondent maintained that the parties knew from the outset that no precise cost could be fixed for the repair of the Appellant’s vehicle since the fault was not detected immediately at the point of retaining his services and it was understood that necessary assessment would be carried out prior to commencement of work. On the claim for N300,000 as solicitor’s fee, the Respondent submitted that the only reason he approached the lower Court was to recover cost incurred in fixing the Appellant’s 2007/2008 Model Toyota Camry Sedan with Registration Number RSH 620 AQ from 10th June 2016 to May 2017, which he had variously demanded from the Appellant before filing the suit, citing OFFSHORE CONSTRUCTION LTD & 3 ORS v. SHORELINE LIFTBOATS NIGERIA LTD [2003] 16 NWLR (PT. 845) 157 at 179 –per Jega JCA on the imperative of awarding solicitor’s fee by way of costs to a successful party. The Court was urged to dismiss the appeal with costs.
Now, a summary judgment is one given in favour of a claimant without plenary trial of the action. Although not preceded by a trial, it is nevertheless a judgment rendered on the merit: it flows inexorably from want of defence on the part of a defendant whose situation cannot be altered or improved upon even by the rigour of a full-dressed trial. Summary judgment is for the plain and straightforward, not for the devious and crafty. Not being a judgment based on some procedural slips such as failure to enter appearance or file pleadings, it can only be set aside or interfered with on appeal but not by the Court that granted it. See F. Nwadialo, Civil Procedure in Nigeria, 2nd ed., pp 515 – 516, NASCO TOWN PLC v. MR. FESTUS UDE NWABUEZE (2014) LPELR-22526(CA) and MR BENSON UGOCHUKWU v. SIR ISRAEL CHUKWUDOZIE OKONKWO (2017) LPELR-50018(CA).
As is the case with undefended list, the summary judgment procedure is a truncated form of civil hearing that saves the Court the tedium of hearing sham defences mounted by a defendant with no genuine defence to an action, who is merely determined to dribble and cheat a legitimate claimant out of reliefs to which he is eminently entitled. See generally WEMASEC v. NAIC supra at 140-141 –per Nweze JSC, UBA PLC v. JARGABA [2007] 11 NWLR (PT 1045) 247 at 272, AGWUNEME v. EZE [1990] 3 NWLR (PT 137) 242, PLANWELL WATERSHED LTD v. OGALA (2003) 12 S.C. (PT II) 39 at 43-44 and BANK OF THE NORTH LTD v. INTRABANK SA (1969) 1 ALL NLR 91.
Although the scope of summary judgment procedure is much wider than undefended list, both are often deployed towards the expeditious disposal of cases for the recovery of debt or claims for liquidated sums that are straightforward, uncontested and incontestable, with a view to checkmating defendants with no plausible defences from frustrating claimants whose cases are unassailable. See LEWIS v. U.B.A. PLC [2006] 1 NWLR (PT.962) 546 at 565, THOR LTD v. FCMB LTD [2005] 14 NWLR (PT. 946) 696 at 710 – 711, OBASANJO FARMS NIG LTD v. MUHAMMAD (2016) LPELR – 40199 (CA) and MOSHOOD v. AKUBI (2014) LPELR – 24005 (CA). The Supreme Court stated in UBA PLC v. JARGABA supra that summary judgments are used for disposing with dispatch cases “where there is no reasonable doubt that a plaintiff is entitled to judgment”. See also CARLING INTERNATIONAL NIGERIA LIMITED v. KEYSTONE BANK LIMITED (2017) LPELR-50689(CA) 1 at 7 – 9.
Order 11 CPR (which regulates the procedure for summary judgment) provides as follows:
“ORDER 11
SUMMARY JUDGMENT
1. Where a Plaintiff believes that there is no defence to the claim, the Plaintiff shall file with the originating process the statement of claim, the exhibits, the depositions of the Plaintiff’s witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for the Plaintiff’s belief and a written address in respect thereof.
2. A Plaintiff shall deliver to the Registrar as many copies of all the processes and documents referred to in Rule 1 of this Order as there are defendants.
3. Service of all the processes and documents referred to in Rule 1 of this Order shall be effected in the manner provided under Order 7 of these Rules.
4. Where any defendant served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit, such defendant shall, not later than the time prescribed by these Rules for filing a defence, file:
(a) a statement of defence;
(b) depositions of witnesses;
(c) the exhibits to be used in the defence; and
(d) written address in reply to the application for summary judgement
5. (1) Where it appears to a Judge that a defendant has a good defence and ought to be permitted to defend the claim, the Judge may grant the defendant leave to defend the claim.
(2) Where any defendant fails or neglects to comply with the provisions of Rule 4 of this Order, or it appears to the Judge that the defendant has no good defence to the claim, the Judge may enter judgment for the Plaintiff.
(3) Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.
6. Where there are several defendants and it appears to a Judge that any of the defendants has a good defence and ought to be permitted to defend the claim and other defendants have no good defence and ought not to be permitted to defend, the former may be permitted to defend and the Judge shall enter judgment against the latter.
7. Under this Order the parties shall be at liberty to advance before a Judge oral submissions to expatiate their respective written addresses.”
The foregoing provision clearly sets out the respective roles of the claimant, the defendant and the Court in the scheme of summary judgment. See EMERALD GARLAND BEVERAGES LTD & ANOR v. MADUBCHESI (2010) LPELR-4104(CA)1 at 18 -21. The three conditions to be satisfied by a claimant applying for summary judgment under Order 11 Rule 1 are: (i) existence of a belief that there is no defence to the claim; (ii) filing an originating process, exhibits and deposition of witnesses; (iii) filing an application for summary judgment supported by an affidavit setting forth the grounds for his belief that the defendant has no defence to the claim, and a written address in support. By Subrule 4 of Order 11, a defendant who intends to defend the suit is enjoined to file within the prescribed period a statement of defence, depositions of witnesses, the exhibits to be relied upon in his defence, and a written address in reply to the application for summary judgment.
The Court’s role (as prescribed in Subrule 5) is to: (i) grant the defendant leave to defend the claim where it appears to him that a defendant has a good defence and ought to be permitted to defend the claim; or (ii) enter judgment for the Plaintiff where any defendant fails or neglects to comply with the provisions of Rule 4 of this Order, or it appears to him that the defendant has no good defence to the claim. As stated hereinbefore, the Appellant herein (qua defendant) did not file any statement of defence or otherwise resist the Respondent’s application for summary judgment. Nevertheless, that did not relieve the claimant and the Court of their respective obligations under the summary judgment procedure. The claimant’s affidavit must still substantiate his grounds for believing that there is no defence to the claim, just as the Judge is not bound to enter judgment merely because the defendant failed to comply with the requirement of the rules (as in the instant case). A trial Judge is obligated to look at the claim before the Court the affidavit evidence and supporting documentation offered by the claimant and proceed to enter summary judgment if, and only if, satisfied that there is no good defence to the claim.
In different words, the Judge is required to examine the basis for the claimant’s belief that there is no defence to the claim in the light of the claim and facts placed before the Court. See INTERCONTINENTAL BANK LTD v. BRIFINA LTD [2012] 13 NWLR (PT. 1316) 1 at 21. Indeed, the admonition in the concurring judgment of Ariwoola JSC at p. 27 of the Law Report is classic: Even though it is the claimant’s prerogative to assert that the defendant has no defence to his claim, “the Court owes a duty to scrutinise the claims and verifying affidavit with the attached documents, if any, to ensure that the claim is indeed suitable to be heard under [summary judgment] procedure”, otherwise it should be transferred to the general cause list.
In the instant case, the Respondent’s deposition in paragraph 24 of the affidavit in support of application for summary judgment (at p. 47 of the record) to the effect that he “did not know in truth how much the works on the motor vehicle would eventually cost” clearly shows that the total cost of repairs of the Appellant’s vehicle was neither ascertained between the parties nor agreed upon, and could not have amounted to a “liquidated claim” that would constitute a ground for believing that the Appellant had no defence to the suit as required under Sub rule 1 of Order 11 CPR. The Respondent’s said deposition betrays his alleged belief as to the Appellant’s lack of defence. Quite clearly, since the Respondent did not know what the eventual cost of repairs would be, there could not have been agreement between parties on the sum claimed in the suit, and the Respondent had no valid basis for believing that the Appellant would accept whatever figure unilaterally put forward by him as cost of repairs. The absence of agreement on cost of repairs is palpable from the statement of claim and affidavit in support of application for summary judgment.
There are yawning gaps that ought to put the lower Court on enquiry. For instance, it was averred in paragraphs 26 of the affidavit in support of summary judgment that the Defendant failed to pay for the repairs effected by the Respondent despite several demands, but no such demand notice is annexed such that Appellant’s silence or failure to respond could be construed as admission of the amount claimed. The Respondent ought also to explain the basis for the claim on “security charge” in respect of a vehicle being repaired by him in his own workshop. In the absence of agreement, it is difficult to appreciate how security charge can be said to be implicit in a contract for repair of a vehicle.
What appears in rather bold relief is that the trial Court treated the matter as if it was confronted with an application for default judgment. The Court took the easy way out by simply highlighting the fact that the case was unchallenged and held that it was “left with no choice than to believe the averments as contained in the affidavit in support as I am bound so to do” without examining the reliefs claimed to ascertain whether they are straightforward, uncontested and incontestable, and therefore suitable for summary judgment.
I do not agree that the lower Court was bound to believe the Respondent’s averments and proceed to enter summary judgment for the Respondent in the manner it did. The point to underscore is that an application for summary judgment under Order 11 is distinct and distinguishable from a judgment entered in default of appearance or defence. Whilst the latter is founded on the mere fact of the defendant’s failure to enter appearance or file defence within the period stipulated in the rules of Court, the former is predicated on the claimant’s belief that the defendant has no defence to the action, and the claimant is enjoined to set out in the supporting affidavit the grounds or factual basis for his belief. A bland unsubstantiated belief will not suffice. The point has already been made that whereas a Court may set aside its default judgment, a summary judgment under Order 11 is a judgment on the merit that can only be interfered with on appeal. See MADUIKE v. TETELIS NIGERIA LTD (2015) LPELR-24288(CA). What is more, the second relief claimed by the Respondent which the lower Court granted summarily without further assurance included a claim for N300,000 “being professional fee paid by the Plaintiff to his Lawyer”. A claim for solicitor’s fee is not one that is ordinarily granted by a Court. See IHEKWOABA v. ACB [1998] 10 NWLR (PT. 571) 590 at 610 – 611 (CA) and NWANJI v. COASTAL SERVICES (NIG) LTD [2004] 11 NWLR (PT. 885) 552. Whereas the Appellant relied on the decision of this Court in GUINNESS NIGERIA PLC v. NWOKE supra at 150 to the effect that a claim for solicitors fee is unethical, outlandish and unknown to law as it does not constitute damage suffered in the course of any transaction between the parties, the Respondent called in aid the case of INT’L OFFSHORE CONSTRUCTION LTD & 3 ORS v. SHORELINE LIFTBOATS NIGERIA LTD supra, insisting that expenses incurred on services of counsel are reasonably compensated under our law.
It would seem however that a claim for solicitor’s fee can properly lie in a case and be granted by the Court insofar as it is specifically pleaded as special damages and proved by adducing credible evidence thereon. See ECOBANK NIGERIA PLC v. SALEH (2020) LPELR-52024(CA), AGBALUGO & ANOR v. IZUAKOR (2017) LPELR-43289(CA), LONESTAR DRILLING NIG LTD V NEW GENESIS EXCECUTIVE SECURIY LTD (2011) LPELR-4437(CA) and NAUDE & ORS v. SIMON (2013) LPELR-20491 and AJIBOLA v. ANISERE [2019] LPELR- 48204(CA) which underscored the dynamism of more recent decisions on the point. The case of REWANE v OKOTIE-EBOH (1960) SCNLR 461 donates the proposition that “costs will be awarded on the principles of genuine and reasonable out of pocket expenses and normal counsel costs usually awarded for a leader and one or two juniors”.
In the case at hand, the Respondent claimed solicitor’s fee and costs as distinct heads of claim. As such, it does not seem that the sum of N300,000 claimed as solicitor’s fee can be categorised as “normal costs” under the rule in REWANE v OKOTIE- EBOH supra.
In the absence of any prior agreement on payment of solicitor’s fee, it remains an unliquidated claim which ought not be readily granted under the summary judgment procedure. A claim for unliquidated damages does not become a liquidated claim merely because the claimant has put a figure to it: ABUJA CAPITAL MOTORS LTD v. ALHAJI ABDULAZEEZ BELLO ALIYU (2017) LPELR-42865(CA). A claim is said to be liquidated (or made clear) whenever the amount to which a claimant is entitled can be ascertained by calculation or fixed by any scale or other positive data; but 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, the damages are said to be unliquidated. See Odgers on the Common Law (1927) 3rd ed., Vol. 2, p. 654, NWORAH v. AFAM AKPUTA (2010) 42 (PT. 1) NSCQR 322 – 323 and MAJA v. SAMOURIS [2002] 7 NWLR (PT 765) 78, (2002) LPELR (1824) 1 wherein the Supreme Court (per Iguh JSC) sounded a note of caution at pp. 25 – 26 thus: “It cannot be over-emphasised that a Court is not entitled to enter summary or default judgment on a claim based on a relief for payment of unliquidated pecuniary damages without taking evidence for the assessment of the amount of damages that may be proved, as such a claim must be established by credible evidence. This is so because it is not enough for the Court to simply award damages in an unliquidated pecuniary damages claim without giving any reasons as to how it arrived at what in its opinion amounted to reasonable damages.” See also UMUNNA v. OKWURAIWE (1978) 6-7 SC 1 at 8 and OLUROTIMI v. IGE [1993] 8 NWLR (PT 311) 257 at 266.
The rationale for this is not farfetched. The law, as I have always understood it, is that any allegation that a party has suffered damage, or as to the amount of damages, is deemed to be traversed unless specifically admitted, such that no denial of damage is necessary. This applies whether the damage is alleged general or special, and even where the alleged damage is not part of the cause of action. See OKE v. AIYEDUN [1986] 2 NWLR (PT. 23) 548 at 563 –per Aniagolu JSC, Atkins Court Forms, 2nd edn. (1985), Vol. 32 quoted with approval in R. C. C. (NIG) LTD v. ROCKONOH PROPERTIES CO. LTD (2005) LPELR-2947(SC) 1 at pp. 30-31 –per Oguntade JSC, U.P.S. LTD v. UFOT [2006] 2 NWLR (PT. 963) 1 at 28 – 29 (CA) and EMUEZE & ORS v. GOVERNOR OF DELTA STATE (2014) LPELR-23201(CA) at pp. 42 – 43–per Ogakwu JCA.
It therefore seems to me that the lower Court ought not to have entered summary judgment in favour of the Respondent under Order 11 CPR merely because the Appellant “did not file notice of intention to defend and did not put up any defence in this suit leaving the processes filed unchallenged”. The lower Court thereby abdicated its bounden duty under the summary judgment procedure in Order 11 of its own Rules. The summary judgment entered on 12/2/18 without examining the claim before the Court, the affidavit evidence in support of application for summary judgment and the exhibits annexed thereto cannot stand. It is liable to be set aside, and I so order. In its stead, I record an order transferring Suit No. KDH/KAD/1345 to the general cause list of the lower Court for plenary trial. The case is accordingly remitted back for reassignment to another Judge of the High Court of Kaduna State. There shall be no order as to costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in draft the lead judgment of my learned brother, Peter Oyinkenimiemi Affen JCA, where the facts and issues in contention have been set out. I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.
Appearances:
G. O. Akpovwa, Esq. For Appellant(s)
E. F. Imadojemu, Esq. For Respondent(s)
