⦿ CASE SUMMARY OF:
Dr Oladipo Maja v. Mr. Costa Samouris (2002) – SC
⦿ LITE HOLDING
⦿AREA OF LAW
Dr Oladipo Maja
Mr. Costa Samouris
 NGSC 22
⦿ LEAD JUDGEMENT DELIVERED BY:
Anthony Ikechukwu Iguh. JSC
* FOR THE APPELLANT
Chief R. A. O. Oriade.
* FOR THE RESPONDENT
N. I. Quakers Esq.
⦿ FACT (as relating to the issues)
The plaintiff claimed against the defendant the sum of N2,000,000.00 (Two million Naira) being special and general damages for trespass and nuisance allegedly committed by the defendant on the plaintiff’s Tomaro Island Jetty at Marine Road, Apapa, Lagos.
The particulars of the damages claimed are averred in the plaintiff’s statement of claim as follows:- (i) Special Damages for loss of earnings – 200,000.00 (ii) General Damages for Trespass – 1,000,000.00 (iii) General Damages for Nuisance – 800,000.00 Total – 2,000,000.00.
The defendant duly entered appearance as prescribed by the rules of court but failed to file his statement of defence in the suit.
Consequently, the plaintiff, by a motion on notice filed on the 28th day of January, 1994, prayed the court for an order pursuant to the provisions of Order 24 Rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 entering final judgment for the plaintiff in terms of his writ and statement of claim in default of filing any statement of defence by the defendant.
On the 25th April, 1994, neither the defendant nor his learned counsel was in court for the hearing of the motion although served. The plaintiff duly moved his application and the learned trial Judge, Sahid, J. entered default judgment against the defendant in the suit in the sum of N1,000,000.00 (One million Naira) being general damages for trespass and nuisance. The plaintiff’s claim of N200,000.00 for alleged special damages was dismissed for want of proof.
The defendant being aggrieved appealed to the Court of Appeal raising the issue whether the learned trial Judge could properly have entered final judgment against the appellant in default of defence as he did, in the absence of specific proof of the unliquidated pecuniary damage claimed by the respondent.
The Court of Appeal in a unanimous judgment at the conclusion of hearing on the 10th day of July, 1996 allowed the appeal of the defendant, set aside the judgment of the trial court and the writ of execution thereupon and ordered the refund to the defendant of the sum of N245,160.00 realised from the sale of his goods pursuant to the abortive judgment of the trial court.
1. Whether the Court of Appeal was right in setting aside the default judgment of the trial court in respect of a claim for unliquidated pecuniary damages in which no evidence whatsoever in proof of such damages was neither tendered nor received by the trial court.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Such jurisdiction must also be exercised in accordance with the terms, stipulations and conditions for its invocation. In the present case, the court’s exercise of jurisdiction over the appellant’s application for summary judgment in default of defence is unquestionably governed by the provisions of Order 24 rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972. The appellant, nonetheless, founded his application under Order 24 rule 11 of the same High Court of Lagos (Civil Procedure) Rules, the provisions of which do not apply to unliquidated debt or monetary demand and are therefore totally irrelevant to the application in issue. More significantly, the express stipulations and conditions enshrined under the provisions of Order 24 rule 4, ibid, for the exercise of the court’s jurisdiction in respect of the appellant’s application for summary judgment were neither complied with nor observed. In my view the issue that has arisen in the present case is not one of invoking the power of the court under a wrong rule of court or law but that of failure to comply with the stipulated necessary terms and conditions for the exercise of jurisdiction over the appellant’s application. It seems to me that under such circumstances the court below was perfectly right to set aside the default judgment of the trial court over a claim for unliquidated pecuniary damages without receiving any evidence on the issue. I must state that I am in complete agreement with the court below that the trial court was clearly in error by so doing.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In Eko Odume & Ors v. Ume Nnachi & Ors (1964) 1 All NLR 329 at 333 this court stated per Idigbe, J.S.C. as follows: We think, however, that the description by learned counsel of a claim for £300 damages for trespass, as one for liquidated damages is erroneous. A claim for damages does not become one for liquidated damages merely because a specific amount of money is claimed. But in every other case, where the court has to quantify or assess the damages or loss 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.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
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. – Iguh, JSC. Maja v. Samouris (2002)
It ought to be stressed that deponents in affidavit evidence must, where the facts deposed to are from their information and belief state their source of such information and belief. Such evidence ought not to be acted upon unless the court can ascertain the source of the information and belief and unless the facts deposed to are corroborated by some one who speaks from his own personal knowledge. See: Re J. L. Young Manufacturing Co. Ltd. (1900) 2 Ch. 753 at 754. The depositions of the said Litigation Manager which were not from his personal knowledge, although irrelevant on the question of the unliquidated pecuniary damages claimed, were not corroborated by anyone who testified from his own personal knowledge and is to that extent irrelevant and weightless. – Iguh, JSC. Maja v. Samouris (2002)