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Recalculate! Disputed claims do not qualify for the undefended list procedure

A contract by a company will not be invalid merely because the company seal was not affixed.

ADEKUNLE & ANOR V. S.K AJAYI (NIG) LTD & ANOR

AKPAN V. AKWA IBOM PROPERTY & INVESTMENT CO. LTD

SUPREME COURT OF NIGERIA

(ONNOGHEN; MUNTAKA-COOMASSIE; GALADIMA; ARIWOOLA; MUHAMMAD, J J SC.)

The Appellant, a surveyor entered into a land survey contract with the Respondent. The terms of contract between him and the Respondent provided that his fees will be based on the Government’s Approved Scale of Fees for Consultants/Surveyors in the Construction Industry 1996.

A dispute later arose between the parties and the Appellant sued the Respondent at the High Court of Uyo under the Undefended List procedure and claimed the sum of N13,169, 847.71 (Thirteen Million One Hundred and Sixty Nine Thousand Eight Hundred and Forty Seven Naira, Seventy One Kobo) being the balance due and payable to him by the Respondent as his professional fees on the land survey contract.

The Respondent did not file a notice of intention to defend the action and the trial court entered judgment in favour of the Appellant.

The Respondent was unhappy with the judgment and appealed to the Court of Appeal. The Court of Appeal allowed the appeal on the ground that the Appellant’s claim is not a liquidated money demand and ought not to be entertained under the Undefended List procedure.

Dissatisfied, the Appellant appealed.

One of the issues considered by the Supreme Court and as distilled by counsel to the Appellant was:

“Whether the Court of Appeal was right in holding that “the order to place the Suit on the undefended list is itself defective, because the facts and annexure to the affidavit show that the sum claimed is not liquidated money demand”, in view of the fact that the Fee Advice of the defendant/respondent was not based on any Scale of Fees.”

In arguing this issue, the Appellant contended that his claim against the Respondent was a liquidated money demand especially having regard to the terms of the contract which he stated that his services “shall be based on government’s approved scale of fees”. He argued that this instrument governed the contract between himself and the Respondent and that in the absence of a contrary scale of fees from the Respondent, he was entitled to judgment. The Appellant further contended that the documents placed before the court were sufficient to obtain judgment in his favour.

On the other hand, the Respondent argued that the Court of Appeal was right in holding that the claim of the Appellant before the trial court was not for a liquidated money. He further argued that irrespective of the Respondent’s failure to file a Notice of Intention to Defend, the court can validly look at the claim in order to determine whether or not the it is a liquidated money demand.

Counsel to the Respondent stated that there are three areas of disagreement between the parties namely: the amount of mobilisation given to the Appellant, the stage of the execution of the contract and absence of express interest on the amount claimed.

The Supreme Court unanimously dismissed the appeal and held among other things that:

“There was yet another subject of disagreement between the parties, that is, the amount of mobilization given to the appellant by the respondent. Appellant, put the amount in his bill Exhibit D’ at N300,000, which the respondent company in their computation as per Exhibit `F’ put the amount at N500,000.00. Other areas of disagreement between the parties were over the stage at which the execution of the contract had reached. There were four stages as contended by the respondent and that the appellant had only done stages 1 and 2 which is 70%. Appellant on the other hand had claimed that he completed all the stages hence he submitted a bill of N13,169,847,71, via Exhibit D’, whilst the respondent accepted to pay only N6,411,345,84 in Exhibit ‘E’. Clearly the parties have not agreed on the stage at which the execution of the contract was.

On the question of interest; of 21% on the amount claimed by the appellant, respondent has contended that there was no evidence on record that the parties had agreed that the fee for

survey shall be subject to interest payment. Generally, a claim for interest under the undefended list bears the same principles as in a claim under the general cause list. Any plaintiff claiming interest under the undefended list must disclose in his affidavit how his right to interest accrues and how the rate thereof was arrived at. The respondent is disputing the claim for interest made by the appellant without further particulars.

In the light of the foregoing, I am of the view that the court below was right in holding that the sum of N13,169,847.71 claimed by the appellant as well as interest of 21% was not a liquidated money demand. Accordingly, issue (1) one is resolved in favour of the respondent and against the appellant.”

Counsel:

M. D. Uyoh for the Appellant.

This summary is fully reported at (2013) 12 CLRN

info@clrnltd.com

www.clrnltd.com 

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