EKO ODUME & ORS V. NNACI II

• Pages: 255-259

EKO ODUME & ORS V. NNACHI

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255

EKO ODUME & ORS V. NNACHI

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EKO ODUME AND ORS

(for themselves and the

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APPELLANTS

10 people of AMORIE OZZIZZA AKPO)

V

UME NNACHI AND ORS

(for themselves and the

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RESPONDENTS

people of AMATA OZZIZZA)

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SUIT NO. FSC 428/1963

SUPREME COURT OF NIGERIA

BRETT,

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Ag. C.J.N.

COKER,

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J.S.C.

IDIGBE,

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J.S.C.

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6th November, 1964

Legislation - Eastern Nigeria - High Court Law, 1955, s.15 (s.16 in 1963 Laws

of Eastern Nigeria, c.61) - High Court Rules, 1955, 0.41 R.3 - English -

Rules of the Supreme Court, 1833 0.27, R.2, R.4 and R.11 - Damages

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Liquidated - Unliquidated - Distinction

Practice and Procedure - Defendants not delivering Defence - Parties in court -

Plaintiffs asking for judgment - Judge, without hearing evidence, granting

judgment for (a) amount of damages claimed for trespass, and (b) injunction.

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ISSUES:

1. What procedure should a High Court Judge follow in granting judgment for the

plaintiff where the defendant though present in court has failed to deliver his

defence within time.

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2. What is the distinction between lic:;uidated and unliquidated damages.

FACTS:

The plaintiffs had delivered their Statement of Claim, but the defendants did not

file any Defence. When the case came up in Court, the defendants did not ask for

more time within which to file their defence saying that a defence would serve no

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purpose as there was an appeal in another suit pending in the Supreme Court be-

tween the parties about the land. The plaintiffs asked for judgment and the Judge

without hearing evidence gave them judgment on their claim for damages, tres-

pass, and an injunction. On appeal the defendants cited s.15 of the High Court

Law (E.N.) and 0.41 R.3 of the High Court Rules (E.N.) and argued that the judge

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ought to have heard evidence. The plaintiffs relied on 0.27 R.2 of the English Su-

preme Court Rules and argued that their claim was for liquidated damages.

HELD:

1. As both parties were present in court when the case was dealt with, 0.41 R.3 of

the Local Rules did not apply.

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2. A claim for damages does not become one for liquiated damages merely

because a specific amount is claimed; in this case they were not liquidated

damages; it was not R.2 but R.4 in 0.27 of the English Supreme Court Rules

which applied, and the judge should have heard evidence before giving