MOSHESHE GENERAL MERCHANT LTD V. NIGERIA STEEL PRODUCTS LTD
On Friday, 10 APR 1987
SC.152/1984Before Their Lordships
MOHAMMED BELLO Justice of The Supreme Court of Nigeria
KAYODE ESOJustice of The Supreme Court of Nigeria
ANTHONY NNAEMEZIE ANIAGOLUJustice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
DAHUNSI OLUGBEMI COKER Justice of The Supreme Court of Nigeria
Between
Before Their Lordships
MOHAMMED BELLO Justice of The Supreme Court of Nigeria
KAYODE ESOJustice of The Supreme Court of Nigeria
ANTHONY NNAEMEZIE ANIAGOLUJustice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
DAHUNSI OLUGBEMI COKER Justice of The Supreme Court of Nigeria
Between
MOSHESHE GENERAL MERCHANT LTD
V.
NIGERIA STEEL PRODUCTS LTD
…………………….A…………………….
Aniagolu, JSC. The narrow issue in this appeal is as to the binding nature of a solemn admission made before pleadings were served, by Counsel, on behalf of his client.
The facts are clear and simple. The Respondent was the plaintiff in the High Court while the Appellant was the defendant. In the Warri High Court of the Bendel State Judiciary, the plaintiff took out a writ of summons against the defendant claiming as follows:
“The Plaintiffs claim is for the sum N304,574.00 of being the balance of payment in respect of goods sold and delivered by the plaintiff to the Defendant in Warri, Bendel State between February 1976 and June, 1977, on account at the
Defendant’s request. The plaintiff also claims interest at the rate of 6% per annum to the date of judgment, and thereafter, at 5% until total debt and costs is liquidated. Dated at Warri this 3rd day of January, 1979.”
On 5th February 1979, the case came before Akpata, J. (as he was then) who ordered pleadings in these words: Court:
Pleadings ordered: Plaintiffs to file their statement of claim within twenty-four hours. The Defendants are to file their statement of Defence 30 days on being served with the statement of claim.
Case adjourned to 28/3/79 for hearing.
(Sgd. (E.I. Akpata
JUDGE, 5/2/79.”
…………………….B…………………….
On 28 April 1979 to which date the case was adjourned, the parties and their Counsel were present. It was on this day that admission was made by the defendants through their Counsel. For its importance, I reproduce the proceedings of that day as recorded in the record of proceedings:
“BEFORE THE HONOURABLE JUSTICE E.I. AKPATA,
JUDGE: AT WARRI.
ON TUESDAY THE 24TH DAY OF APRIL, 1979.
SUIT NO. W/5/79:
Parties Present: Chief A.O. Yesufu for Plaintiff:
B.A. Jessa for Defendant.
Jessa:
Plaintiff and Defendant met to reconcile their positions. This was on 11/4/79. There were disagreements in respect of certain items. We have admitted the sum of N208,174. We have paid N8,000 in cheque. There is disagreement in respect of N96,400. We arranged to meet yesterday by 4.00 p.m. My learned friend did not turn up.
Yesufu:
Their Accountant failed to meet our Accountant. They promised to make certain documents available which they did not do.
Court:
Case is adjourned to 11/6/79 for hearing or settlement.
(Sgd.) E.I. Akpata,
JUDGE, 24/4/79.”
Be it noted that the Statement of Claim had not been served on the defendant when the above admission was made and part payment of N8,000.00 paid.
On 11th June 1979, the case again came before Akpata, J., whose record of proceedings for that day reads:
…………………….C…………………….
“BEFORE THE HONOURABLE JUSTICE E.I. AKPATA,
JUDGE, AT WARRI.
ON MONDAY THE 11TH DAY OF JUNE, 1979.
SUIT NO. W/5/79:
Parties Present:
J.J.O. Okpoko for Defendant.
Court:
At the request of Mr Okpoko case is adjourned to 2/10/79 for mention.
At this stage, Chief Yesufu comes in. Prays that the case be reopened. The Defendants have admitted owing N 208,174 leaving a balance of N96, 400. They gave us a debit note on 23/4/79 for N96,400 with no document to check up their claim.
Okpoko:
I shall take it upon myself to present the necessary documents. I must admit that there are certain items in respect of which documents may not be available. I have to look into that.
Court:
Before the next adjourned date parties are to sort out points of disagreement in respect of the debit note. Unresolved matters will be determined by evidence adduced in Court. Case is adjourned to 13/9/79 for hearing.
(Sgd.) E.I. Akpata,
JUDGE, 11/6/79″
(Italics are mine).
As matters, therefore, stood after the hearing of 11th June 1979, the defendant had admitted owing N208,174 out of the N304,574.000 claimed, leaving a balance of N96,400.00. It was in respect of that N96,400.00 which the defendant was contesting and for which the defendant had raised a debit note dated 24th April 1979. The Court’s order at the end of the hearing on 11th June 1979 made it clear
(i) that evidence was to be heard in respect of the remaining “unresolved matters“, that is to say, matters relative to the N96,400.00 being the balance after the deduction of N208,174 admitted,
(ii) that the sorting out of points of disagreement by the parties was to be in respect of the debit note. This debit note concerned only N96,400.00.
In the meantime the Statement of claim had been filed and served. The statement of claim which, as has shown earlier, was ordered to be served within twenty-four hours on 5th February 1979 did not contain, and could not have contained, the admission made than two months, after, on 24th April 1979, by Jessa, of Counsel, for the defence that:
“We have admitted the sum of N208.174. We have paid N8.000 in cheque. There is disagreement in respect of N96,400.”
The High Court (Akpata, J.), on 13th September 1979 heard evidence in the case. Only the plaintiffs’ witness gave evidence after which the plaintiffs closed their case. The defendants had not filed their statement of defence. Judgment was entered for the plaintiffs in the sum of N296.409.00.
…………………….D…………………….
The defendants moved the Court to set aside the judgment and relist the case for hearing and to extend the time within which to field their statement of defence. The application was granted whereupon the defendants filed their statement of defence. The statement of defence reads:
“SAVE as herein after expressly admitted, the Defendant denies each and every allegation of fact contained in the Statement of Claim as if same were set out seriatim and specifically traversed.
1. The Defendant admits paragraphs 1 and 2 of the Statement of Claim.
2. The Defendant admits paragraph 3 of the Statement of Claim to the extent that it is a credit customer of the plaintiff but denies that as at 6th of June, 1977, it owed the Plaintiff the sum of N304.574.00 (three hundred and four thousand, five hundred and seventy-four Naira) as claimed.
3. In further answer to the said paragraph 3 of the Statement of Claim, the Defendant avers that the Statement of Account referred to by the Plaintiff are in general in respect of:
(a) Jobs which the plaintiff did not carry out and goods which it did not supply as agreed and or jobs which were improperly carried out or not completed and for which the Defendant is not liable to make payments;
(b) Some Accounts which have already been settled by cash payment made to plaintiff through his representatives and in particular one Mr Otaru and for which Defendant is no longer liable AND
(c) Some of the accounts for some materials which the Defendant at its own cost supplied to the plaintiff in execution of some of the jobs which the plaintiff did not carry out or did not complete and for which said materials and or jobs the plaintiff is not entitled to payments.
“At the trial of this action, the Defendant will rely on the necessary documents including
(a) Correspondence between the parties in respect of the jobs entrusted to the plaintiff particularly Defendant’s letters dated 21st February, 1977, plaintiff’s reply dated 22nd February, 1977, plaintiff’s letters dated 1st March, 1977 and 28th March 1977 and Defendant’s reply dated 30th March, 1977; plaintiff’s letters dated 12th April, 1977, 2nd May, 1977 and 6th October, 1977 and defendant’s letters dated 16th May 1977 and 5th October 1977 and relevant invoices.
(b) the Petty Cash Vouchers for payments made to plaintiff’s representatives at plaintiff’s request and
(c) all the necessary documents of protests to the plaintiff about the way it was carrying out some of the jobs.
4. The Defendant denies paragraph 4 of the Statement of Claim and states that it has always made its position known to the plaintiff, namely, that the plaintiff was in breach of its contract in not carrying out the jobs as agreed and for which it sent these bills and that the material for which the plaintiff was claiming was not supplied by the plaintiff. The Defendant will insist on strict proof of every item of the plaintiff’s claim in its various Statement of Accounts and Invoices.
Dated at Warri this 6th day of November, 1979.”
…………………….E…………………….
As can be seen, this statement of defence did not contain the admission made by the defendant and the tenor of the statement of defence was as if the entire sum claimed was now being denied. This tenor went against the order of the Court of 11th June, 1979.
It is, in my view, appropriate, at this stage, to comment that it was the duty of plaintiff’s Counsel to point out to Court the failure of the defendant to limit his statement of defence to the amount still in dispute, namely, N96,400.00 and also that it was the duty of the trial Judge to limit the remainder of trial only to that amount still in contest and for which he made the 11th June 1979 Order. Indeed, he should have entered judgment for the amount already admitted before continuing the trial.
As it turned out, the trial went on as if no admission has been made, based obviously, on the nature of the statement of defence allowed to be filed. In fairness to plaintiff’s Counsel (Chief A.O. Yesufu) he cross examined Chief Mosheshe the Chairman and Managing Director of defendant-company on the admission made on 24th April 1979. The record shows that the Chief gave the following answers:
“On 24/4/79 my Company did not agree owing the sum of N208,174. It is true I issued a cheque for N8,174. There was no balance of N208,000 to be paid.
I sent a debit note dated 20/4/79 to the Plaintiff for the sum of N96,400. If N96,400 is deducted from N304,574 there will be a balance of N208,174. In the debit note some of the items I have mentioned which were not supplied or badly done are contained therein.”
At the conclusion of trial the trial Court, dismissed the plaintiffs’ case in its entirety. The plaintiffs appealed to the Court of Appeal which reversed the High Court judgment and entered judgment for the plaintiffs in the total sum of
N304,574 claimed, with costs.
The trial Judge reasoned expansively before dismissing the action. He argued that on the state of the pleadings and evidence adduced it could not be said that the plaintiffs had established that the defendant was indebted to the plaintiffs in the amount claimed or any amount. He said that on the evidence adduced the plaintiffs had not “adduced a scintilla of evidence of liability against the defendant.” The learned trial Judge held the statement of Account prepared by the plaintiffs as not reflecting a true statement of the Account between the parties and discountenanced it.
On the issue of the admission made by defendant’s Counsel on 24th April 1979, the learned trial Judge said he gave much thought to it and had come to the conclusion that he could not give judgment on it because:
(i) the plaintiff did not apply for judgment by summons and the defendant did not make any admission by filing an affidavit to that effect;
(ii) the plaintiff or its Counsel did not make even oral application for judgment before the defendant joined issues with the plaintiff by filing of the statement of defence joining issues with the plaintiff.
…………………….F…………………….
The learned trial Judge, on the issue of the admission of 24/4/79 rounded off his argument with the following passage of his judgment:
“In my view, Mr Jessa could only be regarded as an agent of the Defendant if there had been written terms of settlement or a written admission filed in Court with Mr Jessa signing for and on behalf of the Defendant. Where, however, a counsel or a defendant informs the Court, as in this case, of the stage the negotiation for settlement had reached and asks for adjournment to enable the parties have an opportunity to look further into the area of disagreement, and the defendant subsequently files a statement of Defence in which he fails to make any admission, the Court is bound to decide the matter on the state of the pleadings and the evidence adduced in support.”
He, therefore, held that:
“The Court of Appeal in its judgment held that the trial Judge ought to have given due weight to the admission of Mr Jessa, Counsel for the defendant and that on the strength of that admission, the plaintiff should have been entitled to judgment against the defendant for the sum of N208,174.00 as urged by Chief Yesufu.”
The Court of Appeal in its judgment held that the trial Judge ought to have given due weight to the admission of Mr Jessa, Counsel for the defendant and that on the strength of that admission, the plaintiff should have been entitled to judgment against the defendant for the sum of N208,174.00 at least.
The starting point, in the resolution of the issue posed by this appeal must necessarily be an appreciation of the legal position of Counsel conducting a civil case, in relation to his client, and the binding effect of the acts of such Counsel, in the course of the conduct of such a civil case, upon his client.
This Court had lately to decide upon the binding nature, on the client, of the decision of Counsel to close his case when the only witness he had called, at the stage, had messed up his land case, by giving evidence at variance with his pleadings. It was the case of Nwafor Elik v. Elike v. Ihemereme Nwankwoala and Others (1984) 12 S.C.301 in which the powers and responsibilities of Counsel conducting a civil case, in relation to his client, were exhaustively dealt with.
It was a land case in which the plaintiffs had closed their case. Defendants’ Counsel called his first witness-one of the defendants. His evidence was very unsatisfactory to defence counsel as it contradicted his pleadings. He decided to close his case; indeed closed the case, and stated he would not address the court. Plaintiffs’ counsel submitted that plaintiffs’ case had been proved. The case was adjourned for judgment. On the judgment day, the learned trial Judge entered judgment for the plaintiffs. The defendants appealed to the Court of Appeal which, after castigating defence counsel, allowed the appeal on the ground that the defendants were not given a fair trial by reason of the conduct of defence counsel.
On appeal to the Supreme Court, this Court held that defence Counsel was completely in control of his case and there was no question of unfairness of trial since the trial Judge, in his position as an umpire, could not go beyond Counsel and conduct the case of either party. It was for counsel to decide on what move to make in the conduct of his case; it was his duty to know when to close his case, and the number of witnesses he had to call.
…………………….G…………………….
As far back as 1866, it was decided in Strauss v. Strauss (1866) L.R.1 Q.B.379 that counsel retained to conduct a case had general authority to decide, in his discretion, on how to conduct the case. Having retained Counsel, the client is bound by his conduct of his case subject to this that the client can repudiate his Counsel and withdraw brief from him, if he does not approve of Counsel’s conduct of the case.
It was argued by Appellants’ Counsel, in his Brief, that it was within the power of the trial court to give judgment on the admission of a party by reason of the provisions of the English Order 27, rule 3 made applicable to Bendel State by virtue of Order 35, rule 10 of the High Court (Civil Procedure) Rules Cap. 65 Vol. 111 Laws of Bendel State of Nigeria, 1976, provided, he submitted, that there was a proper application before the court. What Counsel considers “a proper application” was not stated.
Order 27, rule 3 of the English R.S.C. Rules 1965 states:
“3. Where admissions of fact are made by a party to a cause or matter either by his pleading or otherwise, any other party to the cause or matter may apply to the court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties, and the court may give such judgment, or make such order, on the application as it thinks just.”
What the above says is that the other party
“may apply to the courts.”
The rule did not prescribe that the mode by which the application was to be made should be by motion and affidavit. It simply states that the party may apply to the court.
On 31st January 1980, plaintiffs’ Counsel in this case on appeal, Mr Yesufu, made an oral application to court for judgment to be entered for the plaintiffs in the admitted sum of N208,174.00 but the court ruled as follows:
“COURT: This Court will not give judgment by instalment in the absence of a formal application.”
It is difficult to understand why the court had taken the view that a formal application (which I take to mean by motion and affidavit) should be made before an oral admission made in the court of the proceedings, during the progress of trial and recorded by court, is made the subject of a judgment on the admission. It all depends on the nature of the case on trial and what the admission entails. For example, a case for personal injuries for damages to be assessed was refused notwithstanding an admission of negligence: Blundell v. Rimmer (1971) 1 W.L.R. 123.
…………………….H…………………….
Where, as in the instant appeal, the claim is for a definite sum alleged owed by the defendant, and the defendant, admits owing part of this sum, no difficulty will, or should, arise in the court entering judgment for the sum admitted leaving the balance to be contested. In such a case, the judgment could be entered upon an oral application to the court provided that the court, in its own discretion, may, having regard to the circumstances of the case, grant the application and enter judgment there and then, or order the applicant to formally move the Court. Yet, the admission in such a case is a solemn declaration of indebtedness of the defendant to the plaintiff, in the sum admitted, for the purpose of the remainder of the trial of that action. As has been said in Fox v. Luke (1925) 43 R.P.C.37–a case of passing off-there is no hard and fast rule on the procedure to be followed.
The learned trial Judge, in the instant case on appeal, relied on Order 16 Rule 5 of the Bendel State High Court Rules, which states that
“If any defendant shall in like manner as in the preceding rule mentioned sign a statement admitting the claim, or any part thereof, the Court may receive such statement in evidence as an admission without further proof,” to disregard the admission of the defendant on the ground, as he held, that “Neither of the Defendant nor its Counsel signed any statement of admission”
But the learned trial Judge appeared to have overlooked Rule 1 of the same Order which provides that:
“Any party to a suit may give notice, by his own statement or otherwise, that he admits the truth of the whole or any part of the case stated or referred to in the summons, statement of claim, defence or other statement of any party.” (The Italics are mine).
By that Rule 1, a party is required to notify the other party
“by his own statement or otherwise.”
He does not have necessarily to file a motion for the admission. He need only have to make a statement in open Court in the course of trial. The words “or otherwise” in the Rule immediately after the word “statement” give the party the leeway of making the admission by some other mode than by a statement, which appears to tally with the decision in Fox v. Luke (supra) that there is no hard and fast rule on it. The obvious reason for this is to save time and expense.
I am clearly of the view, upon the foregoing reasons, that the Court of Appeal, Benin City, was right in entering judgment for the plaintiff.
But the Court of Appeal did not have to give judgment for the total sum of N304,574.00 claimed, in the face of the amount already paid by the defendant namely, N8,000.00. This was part of the admission made by the defendant, undenied by the plaintiff. Accordingly, that amount must be reduced by the said sum of N8,000.00. In the result, the amount due to the plaintiff must be N304,574.00 minus N8,000.00 leaving a balance of N296,574.00.
The judgment of the Court of Appeal is, therefore, hereby affirmed but with the amendment that the amount adjudged to the plaintiff must be N296,574.00 and not N304,574.00 as granted by the Court of Appeal. Subject to this, this appeal of the defendant is hereby dismissed with N300.00 costs to the plaintiff/Respondent.
…………………….I…………………….
Bello, C.J.N. I have had the opportunity of reading in draft the judgment just delivered by my learned brother Aniagolu, J.S.C. I agree the appeal should be, and is hereby dismissed. Judgment shall be entered for the plaintiff in the sum of N296,574.00 and N300.00 costs.
Eso, J.S.C. In this appeal, what was in issue was the effect of an admission made by a counsel in a case on behalf of his client before pleadings were served.
The facts have been well stated in the lead judgment which has just been delivered by my learned brother Aniagolu J.S.C. Indeed, I am in complete agreement with this reasoning and conclusion. I do not intend to repeat herein the details of the admission which have been fully set out in the lead judgment. All I intend to add is the nature of the general authority of counsel in the conduct of a case.
A counsel who has been briefed and has accepted the brief and also has indicated to the court that he has instructions to conduct a case has full control of the case. He is to conduct a case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes, he could filibuster. If he considers it necessary for the conduct of his case, but subject to caution by the Court.
The only thing open to the client is to withdraw instructions from the counsel or if the counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks.
Subject to the above statement I adopt the reasoning of my learned brother Aniagolu J.S.C. and would dismiss the appeal with N300.00 Costs with the sum adjudged being amended to read N296,574 and not N304,574.00.
Uwais, JSC. I have had the opportunity of reading in draft the judgment read by my learned brother Aniagolu, J.S.C. For the reasons contained therein I too would dismiss the appeal with the variation of the decision of the Court of Appeal as contained in the said judgment. N300.00 costs are hereby awarded in favour of the respondent.
Coker, J.S.C. I agree that this appeal fails and should be dismissed and the judgment of the court below affirmed.
The facts and issues have been well and fully stated in the lead judgment of my learned brother Aniagolu, J.S.C., the draft of which I have had the advantage of reading.
…………………….J…………………….
Counsel for the appellant in his brief stated that the two issues in this appeal are:
“1. Whether the Court of Appeal was correct in reversing the findings of the Court to the effect that the plaintiff has failed to prove that the defendant is indebted to the plaintiff in the sum claimed or in any other sum.
2. Whether the Court of Appeal was correct in upholding the plaintiffs contention that he was entitled to judgment for N208,714.”
But it seems to me however that the real question is: what was the amount in dispute which went for trial at the hearing? Was it the whole amount claimed by the plaintiff or the sum of N96,400.00 (less the sum of N8,000.00) over which the parties disagreed.
The first question is concerned with the weight of the evidence adduced by the parties. It is my view that this question must be considered in the light of the entire record of the proceedings including the statements of counsel and of the trial Judge.
If, when a case comes up for hearing, in the presence of the parties, counsel informs the court that he admits liability of either the entire sum or part of the amount claimed by the plaintiff, the court is competent to enter judgment of the amount admitted, even if on the pleadings, the admitted amount was denied.
On the 11th June 1979, the unresolved matters were for N96,400 (Ninety Six Thousand Four Hundred Naira). As at that date, the defendant had been served with the Statement of Claim with the attachments, that is, the Statement of Account showing a debit balance of N304,574.00 in favour of the plaintiffs and as stated in the demand letter addressed to the defendants, (Exhibit B).
The claim of the Plaintiffs as pleaded in paragraphs 3 and 4 read
“3. As at the 6th June, 1977 the Defendant who was a credit customer of the plaintiff was indebted to the said Plaintiff in the sum of N304,574.00 being the balance of payment in respect of various steel materials sold and delivered to the Defendant by the Plaintiff at the Defendant’s request. (Copy of Comprehensive Statement of Account attached).
The Plaintiff avers that inspite of repeated demand the defendant has refused, failed and/or neglected to pay the said sum of N304,574.00 or any part thereof. (photo-copy of letter of demand attached.)”
…………………….K…………………….
Before the Statement of Defence was filed and indeed, in paragraph 16 of the affidavit sworn to by Thompson Joseph Anomigbo Okpoko, learned Counsel for the defendant, in support of the application to set aside the judgment for N296,409.00 in favour of plaintiff, deposed as follows:
“The amount for which chief Yesufu obtained judgment for his Client includes the amount which its Client has received from the Defendant through its Representative, Mr Otaru and I verily believe that if chief Yesufu had disclosed this fact to court, he would not have obtained the judgment which he did.”
In support of the said application of the defendant, one, john Donatus Boregberue Bajere an accounting clerk of the defendant company also swore
“11. The money which plaintiff claimed and for which it obtained judgment in the absence of the Defendant and or in default of the Defendant filing a defence include the various sums already paid to the plaintiff through Mr M.D. Otaru at its request.”
Nowhere in the affidavit of the two witnesses, was it deposed that the defendant was not indebted to the plaintiffs. It is in the light of this fact that the defence must be considered in relation to the plaintiffs’ case.
Indeed the trial Judge in its Ruling to set aside the default judgment stated:
“It was also not denied by learned Counsel for the Respondent in his address that he had been shown four petty Cash Vouchers evidencing payments made to the Respondent through one Mr Otaru the Respondent’s representative amounting to N3,200.00. Indeed, in his address; Mr Yesufu said that they were prepared to forgo this amount. In effect, this is a clear admission that the plaintiff was not entitled to judgment for the entire sum of N296,409.00. In my view, it is injustice for a Plaintiff to obtain to obtain judgment for more than he deserves where the plaintiff deliberately keeps from the court the fact that the Defendant had paid certain amount out of the amount claimed. Obviously, this Court cannot allow the judgment to stand merely by deducting the said N3,200.00. This is so because the court cannot correct its own judgment when it is not a slip or omission.”
And later in the said Ruling, the trial Judge stated “This court was misled, perhaps not deliberately, not only to permit the plaintiff to prove its case, but also to enter judgment for the plaintiff for an amount more than it was entitled to…”
It is in the light of the foregoing circumstance that the defence should be considered, when it pleaded in paragraphs 2,
3, and 4 as follows:
“2. The defendant admits paragraph 3 of the Statement of Claim to the extent that it is a credit customer of the plaintiff but denies that as at 6th of June,1977, it owed the plaintiff the sum of N304,574.00 (three hundred and four thousand, five hundred and seventy-four Naira) as claimed.
…………………….L…………………….
In further answer to the said paragraph 3 of the Statement of Claim, the Defendant avers that the Statement of Account referred to by the Plaintiff are in general in respect of:
(a) Jobs which the plaintiff did not carry out and goods which it did not supply as agreed and or jobs which were improperly carried out or not completed and for which the Defendant is not liable to make payments;
(b) Some Accounts which have already been settled by cash payment made to plaintiff through his representatives and in particular one Mr Otaru and for which Defendant is no longer liable AND
(c) Some of the accounts for some materials which Defendant at its own cost supplied to the Plaintiff in execution of some of the jobs which the plaintiff did not carry out or did not complete and for which said materials and or jobs the plaintiff is not entitled to payments.
“At the trial of this action, the Defendant will rely on the necessary documents including the Petty Cash Vouchers for payments made to plaintiff’s Representatives of plaintiff’s request and all the necessary documents of protests to the plaintiff about the way it was carrying out some of the jobs.
4. The Defendant denies paragraph 4 of the Statement of Claim and state that it has always made its position known to the Plaintiff, namely, that the plaintiff was in breach of its contract in not carrying out the jobs as amended and for which it sent these bills and that the material for which the Plaintiff was claiming was not supplied by the plaintiff. The Defendant will insist on strict proof of every item of the plaintiff’s claim in its various Statement of Accounts.”
Chief Yesufu, learned Counsel for the plaintiffs at the trial in his final address submitted that the defendant was not denying liability in paragraphs 2 and 3 of the defence, but the quantum of liability. He pointed out that the defendant admitted liability for the sum N208,174 and issued a cheque for N200,174. But he submitted that out of the sum really in dispute was N96,400.00 and not the entire amount claimed in the writ. The trial Judge held that he did not regard the totality of the denial as evasive and that what learned Counsel wanted pleaded was evidence.
…………………….M…………………….
Agbaje, J.C.A., in the lead judgment of the Court below held the view I agree with him, that
“It is significant to note that paragraph 2 of the statement of defence does not say that the defendant does not owe the plaintiff the sum of N304,574 as claimed or any sum at all. It only denies owing the plaintiff the sum of N304,574. If it had gone on to say further it denies owing the plaintiff any sum at all, I would have been inclined to the view that the earlier admission of counsel on 24/4/79 before this statement of defence was filed had been retracted in the statement of defence filed on 6/11/79. But this was not the case. So, in my view, the statement of defence filed subsequently to the admission by counsel left the admission undisturbed. So, I do not agree with the learned trial Judge when he said ‘If there was any admission at all, it was overtaken by events following the filing of the statement of defence joining issues with the plaintiff.”
Having regard to the above, it cannot be right that the issue which went for trial was denying liability for the whole amount claimed but only for the disputed sum N96,400.00
In his brief of argument, Chief Williams did not dispute that paragraph 2 of the statement of defence did not properly deny liability for the entire claim. He referred to the part of the judgment of Agbaje, J.C.A., which I quoted above and submitted that “this reasoning allows a mere technicality to run riot. Paragraph 2 of the statement of Defence may have been drafted unskilfully. There can be no doubt that the plaintiff was in no way misled by the defective drafting of that paragraph. “I do not agree, clearly, the plaintiffs were misled.”
It is my view that this is not a case of mere technicality. Having regard to the antecedent of the defendant’s pleading and the statement of its counsel in the course of the proceedings at the trial. The reasonable inference was that the dispute was only in respect of the disputed sum of N96,400.00. See Wallersteiner v. Moir (1974) 3 All E.R.217, pp.228, 244.
As to the quantum of evidence, it is necessary for plaintiff to discharge the onus and that he did. I am equally satisfied that having regard to the pleadings, it was for the defence to substantiate the averments in paragraphs 3 and 4 and indeed file a set off or a counter claim for jobs which plaintiff did not carry and or in breach of contract. The defendant admitted it was a credit customer of the plaintiff. It received the statement of account and the demand letter, it did not object to any particular item. In Exhibit 4 is a letter to the defendant stating the discussion between Mr Leonard B. Griffiths of the plaintiff’s company and Prince J.O. Cousin Musheshe. It spoke of the defendant’s indebtedness and of some business transactions between the parties. And in Exhibit D5 Prince Musheshe, Chairman of the defendant Company promised to reduce whatever was the outstanding debt by N40,000 monthly. In the letter he referred to some outstanding defective work carried out by the plaintiff and asked for rectification of the defective works. He could have rejected the works or he could have counter claimed or set off the costs of repairing or replacing them if the defendant itself effected the repairs.
In conclusion, I agree with Aniagolu, J.S.C., that the appeal be dismissed for these and other reasons given in his judgment the draft of which I have had the advantage of reading before now. The judgment of the lower court is affirmed save that judgment for the plaintiff be for the sum of N296,574.00 and not for N304,547.00. I also agree that the plaintiff/appellant is entitled to costs of this appeal fixed at N300.00.
Chief F.R.A. Williams, SAN (with him Dr B.O. Babalakin) for the Appellant
Chief Webber George Egbe (with him Mrs Roli Graig) for the Respondent<
NAAJA STANDARD RESOURCES CO. LTD & ORS v. UNION BANK
On Wednesday, March 16, 2022
CA/L/113M/2013Before Their Lordships
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
Judgment
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): The Lagos Judicial Division of the High Court of Lagos State on the 5th April, 2012 delivered its judgment in the Suit No: LD/1240/2011 (Naaja Standard Resources Company Limited & Ors. vs. Union Bank Plc.), wherein the Court entered judgment in favour of the Respondent/Defendant. The Appellants, who were the Claimants in the lower Court, initiated the suit vide the Writ of Summons and Statement of Claim dated and filed on 5th July, 2011 with the 2nd Claimant’s statement on oath filed alongside.
The reliefs sought from the lower Court as endorsed on the face of the writ and the statement of claim are as follows: 1. An Order of this Honourable Court granting perpetual injunction restraining the Defendant from selling, advertising for sale in any form or manner or canvassing for the sale of the 3rd Claimant’s property situate along Olakunle Soga Street, Oriya Village, Ikorodu, Lagos State with Certificate of Occupancy No: 62/62/20029 dated 10th July, 2002 as third party mortgage is invalid and or irregular. 2.
A DECLARATION that by the letter dated 4th May, 2011, the 3rd party mortgage with the 3rd Claimant with respect to the aforementioned property is null and void. 3. A Mandatory injunction directing the Defendant to refund to the 1st Claimant’s all the monies paid through Union Bank Plc between 6th April, 2010 to 12th April, 2010 representing rates, taxes and dues including legal perfection fees for the 3rd party mortgage with the 3rd Claimant. 4.
An Order of this Honourable Court directing the Defendant to deduct all the payments for taxes, dues and legal perfection of the third party mortgage and also deduction from excess charges on interest rate in the transaction in line with Central Bank of Nigeria’s guidelines and regulations on loans to customers for the period April 2010 – May 2011 and thereby determine the actual sum and interest due to the Defendant. 5. An Order directing the Defendant to release forthwith the original title documents belonging to the 3rd Defendant, Mr.
Ifeanyi Ezeobi with Certificate of Occupancy No. 62/62/20029 situate along Olakunle Soga Street, Oriya Village, Ikorodu, Lagos State. In support of the application is an eleven paragraphs affidavit of urgency filed by the Appellants in the suit, it was deposed to by the 2nd Appellant herein. The Appellants filed a Motion on Notice on 5th July, 2011 wherein they sought for the following reliefs: 1.
An order of interlocutory injunction restraining the Defendants/Respondents herein, whether by themselves, their servants, agents, privies, assigns and successors-in-title from selling, negotiating the sale or concluding the sale, advertising for sale in any form or manner or canvassing for the sale of the 3rd Claimant’s property situate along Olakunle Street, Oriya Village, Ikorodu, Lagos State with Certificate of Occupancy No: 62/62/20029 dated 10th July, 2002, pending the hearing and determination of the substantive matter. 2.
An interlocutory injunction restraining the Defendant, their agents, servants, officers or by whatever name so called from resorting to violence, arrest, detention, intimidation and or harassment of the Applicants by the Respondent either by herself and or using any security agents/organizations and or commissions pending the determination of the substantive suit. The application was supported by a twenty paragraph affidavit deposed to by the 2nd Appellant, who was the chairman of the 1st Appellant Company; same was annexed with a considerable number of documentary exhibits.
There was also a written address in support of the application, as reproduced in pages 1-51 of the record. The Respondent filed a Counter affidavit on 5th July, 2011 of fifteen Paragraphs sworn to by Matthew Nkap, a legal practitioner in the law office of the Respondent’s counsel with a written address in support. The Respondent filed the statement of defence & counter-claim wherein the Respondent counter claimed against the Appellants, jointly and severally, as follows: 1.
The sum of N12, 997, 968. 97 being the outstanding indebtedness of the Claimants inclusive of interest as at 29th July, 2011 arising from overdraft facilities granted to the 1st and 2nd Claimants. 2. Interest at the rate of 21% from August 30, 2011 until judgment and thereafter at the rate of 10% until final liquidation. The Appellants filed their Reply/Defence to Counter Claim and a written address in support of the reply to the counter-claim.
There was also a Reply to Counter Affidavit dated 28th October, 2011 the fifteen paragraph reply affidavit was deposed to by Evarist Ezeoke, Esq., the Appellants’ counsel. It is important to note that the Respondent later filed a Motion on Notice dated 21st February, 2012 which was filed on 29th February, 2012, same was brought pursuant to Order 39 Rule 1 and Order 19 Rules 1 & 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004, therein; the Respondent prayed the lower Court for the following reliefs: 1.
An Order entering judgment in favour of the Defendant/Counter-Claimant/Applicant herein in the sum of N11, 000, 000.00 (Eleven Million Naira) only, based upon admissions made by the Claimants/Respondents. 2. An Order awarding commercial interest at the rate of 25% per annum on the said sum from when judgment is entered until full liquidation of the said judgment sum, and; Such further order(s) as this Honourable Court may deem fit to make in the circumstance.
The application was supported by a sixteen paragraph affidavit which was deposed to by Jayne Nelson Uzuegbu, a legal practitioner in the law office of counsel for the Respondent herein with a written address. As gleaned from the record before the Court, the said application for judgment was later withdrawn by the Respondent on 22nd March, 2012, consequent upon which the motion was struck out by the lower Court.
A similar application was however filed on 1st March, 2012 vide the motion on notice praying the lower Court, inter alia, for “An Order entering judgment in favour of the Defendant/Counter-Claimant/Applicant herein in the sum of N12, 000, 000.00 (Twelve Million Naira) only, ……”, the application was filed on other terms similar to the withdrawn application. See pages 145-158 of the record. At Pages 163-167 of the record was reproduced the Appellants’ Written Address in Opposition to Motion for Judgment dated 1st March 2012, it was filed on 9th March, 2012.
The written address was in support of the seventeen paragraph Counter Affidavit Against Motion for Judgment dated 1st March 2012 which was deposed to by Evarist Ezeoke, of counsel representing the Appellants – Pages 170-174 of the record. The respondent, in return, filed a thirteen paragraph Reply Affidavit to Counter Affidavit Sworn to on the 9th March 2012, it was sworn to by Jayne Nelson Uzuegbu, of counsel representing the Respondent, same is found in pages 175-177 of the record. The Respondent filed a reply on points of law as found in pages 178-180 of the record.
In a considered but concise judgment delivered on 5th April, 2012, as reproduced in Pages 221-224 of the record, the learned trial judge entered judgment in favour of the Respondent herein, in the sum of N12 Million, found by the lower Court to have been admitted by the Appellants herein, post judgment rate of 10% was equally granted on the judgment sum in favour of the Respondent. The Appellants were irked by the said judgment of the lower Court and had instituted this appeal vide the Notice of Appeal filed on 24th April, 2012.
The Appellants’ Brief of Argument was filed on 11th February, 2013 in which two (2) issues are distilled for determination, thus: 1. “Whether the Honourable Court below was right in awarding judgment in the sum of N12,000,000.00 (Twelve Million Naira) to the Respondent without properly evaluating all the pleadings and documents before the Court, particularly the contract dated 1st April, 2010, counter affidavit against motion for judgment and written address in opposition dated 9th March, 2012.” 2.
“Whether fair hearing was accorded the Appellants/Applicants in determining this suit in its entirety and the award of N12,000,000.00 as judgment sum on admission, in total and utter disregard to the entire pleadings and the issue of breach of the contract that gave rise to the transaction by the Respondent in the Third Party Mortgage Transaction.” The Respondent’s Brief of Argument was filed on 12th January, 2022, deemed properly filed and served on 18th January, 2022. Two issues for determination were distilled by the Respondent, to wit: 1.
“Is the lower Court’s judgment against the Appellants reasonably disputable considering the pleadings and overwhelming documentary evidence as well as diverse admissions all of which point irresistibly to their liability for the amount awarded.” 2.
“Whether the entire proceedings of the lower Court which culminated in the judgment dated 5th April, 2012, based upon the express admissions by the Appellants in the 1st Appellant’s letter dated 3rd March, 2011 and copiously replicated in the Appellants’ pleadings in any way, manner or form, violated the Appellants’ right to fair hearing and therefore necessitating setting aside the said judgment by this Honourable Court of Appeal.” The Appellant responded on points of law, to the supposed new legal issues raised in the Respondent’s brief of argument.
The Appellants’ Reply on Points of law was filed on 17th January, 2022 but deemed as properly filed and served on 18th January, 2022. Counsel for the Appellants, in arguing issue 1, highlighted the background facts leading to the initiation of the suit in the lower Court, as being that of a loan facility, in the sum of N10 Million, granted to the 1st Appellant Company on 1st April, 2010 by the Respondent Bank, the loan contract, which had a tenor of 1 year, was said to have been breached in some of its fundamental terms, hence the institution of the suit in the lower Court to seek redress.
It was submitted that the lower Court failed to properly evaluate the pleadings of the Appellants as well as the documentary evidence placed before it, prior to its decision that the Appellants admitted their indebtedness to the Respondent Bank, in the sum of N12 Million. Counsel contended vide the decision in Nwankwo vs. Nwankwo (1995) 5 NWLR (Pt. 394) 153 at 171 that the Appellants were never allowed to explain the circumstances and show that the admission was due to the ignorance of the real facts or other circumstances which sufficiently explain them.
Counsel restated the law to the effect that an admission must be clear and unequivocal -IMB Plc. vs. Comrade Cycle Co. Ltd. (1998) 14 NWLR (Pt. 574) 460. Counsel asserted that the Appellants, at nowhere, admitted to pay the said sum as the debt due to the Respondent. That the lower Court actually neglected and paid no heed to the pleading filed before it by the Appellants before arriving at its decision.
It was contended that the lower Court’s decision was also premised on a Court process said to have been duly filed by the Appellants in the lower Court, it was submitted also that the issues of accrued interests between the parties and that of refund to the Appellants by the Respondent, were left unresolved by the lower Court. The Court was urged to resolve the issue in favour of the Appellants. On issue 2, learned counsel emphasized the import of the need of the Court to dispense justice by affording fair hearing in the matter before it – Somai Sonka Co. Nig. Ltd. vs.
Adzege (2001) 9 NWLR (Pt. 718) 312. The Court was urged to allow the appeal and set aside the judgment of the lower Court, and that the suit be remitted to the lower Court for retrial. On its part, the Respondent averred that the provision of Order 19 Rules 1 and 4 of the High Court of Lagos State (Civil Procedure) Rules, 2004, was pivotal to the case of the Respondent as it relates to the motion for judgment in the lower Court and the decision arrived therefrom by the lower Court, which is in contention in the instant appeal.
It was then submitted that the lower Court was correct to enter judgment in favour of the Respondent, as in the instance, in line with its rules – National Bank of Nigeria Limited vs. Gutherie Nig.
Ltd. & Anor. (1987) 2 NWLR (Pt. 56) 255 at 257. On whether selected paragraphs of the Appellants’ pleadings suffice as admission by the Appellants that could validly ground judgment being entered in favour of the Respondent, as in the instance, counsel cited the provision of Section 20 of the Evidence Act, 2011, and submitted that the Appellants expressly admitted the indebtedness in the sum of N12 Million vide their letter dated 3rd May, 2012, addressed to the Respondent – Unity Bank Plc. vs. Bouari (2008) 7 NWLR (Pt. 1086) 372 at 381.
According to Counsel, the Appellants are bound by their said admissions. On whether or not the right to fair hearing of the Appellants was infringed upon, it was the Respondent’s contention that the Appellants’ allegation of breach of fair hearing was diversionary and was purposely to confuse the Court.
It was argued that the parties were in agreement that there was an overdraft facility granted and that same was due for repayment, it was averred that the construction of the Appellants’ letter dated 3rd May, 2011 and subsequent averments in their statement of claim, amongst others, precipitated the Respondent’s motion for judgment as filed in the lower Court, and the subsequent decision of the lower Court being appealed herein.
It was stated that the Respondent made an honest mistake in referring to selected paragraphs of the Appellants’ Counter Affidavit dated January 25, 2010 and that the said process was non-existent as held by the lower Court. The Respondent submitted that the lower Court was right in its finding that the process was not in existence at trial.
On the argument canvassed by the Appellants on the issue of 25% interest rate accruable on the subject overdraft transaction between the parties herein, it was argued that the issue did not arise from any of the grounds of appeal as set down in the notice of appeal filed by the Appellants – Onwubuya vs. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94 at 109.
That the Appellants are precluded from importing, into the contract between the parties, terms not intended in the said contract as reflected in the Respondent’s letter dated 1st April, 2010 addressed to the 1st Appellant Company, titled Banking Facility.
Counsel further submitted that the Appellants were liable to the Respondent for the said judgment sum as awarded by the lower Court. In the reply, by the Appellants, supposedly on points of law, it was observed that learned counsel for the Appellants nearly fell into the error of re-arguing the same issue and in the same manner as canvassed in the Appellants’ brief. On the issue of admission by the Appellants, learned counsel cited the decision in Insurance Brokers of Nigeria vs. Atlantic Textile Manufacturing Co.
Ltd. (1996) 8 NWLR (Pt. 466) 316 at 321 and submitted that the judgment of the lower Court was hastily handed down against the Appellants. The Court was urged to set aside the said judgment of the lower Court.
RESOLUTION OF THE ISSUES FOR DETERMINATION IN THE APPEAL Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2012 which is in pari materia with the 2004 Rules provides: “The Judge may, on application, at a case management conference or at any other stage of the proceedings where admissions of fact have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.” At paragraphs 11, 12 and 19 of the statement of claim contained in the writ of summons dated 5-07-2011 it was averred to thus:-
11 ”the 2nd Claimant pursuant to the company’s resolution, on the 3rd May, 2011 by their letter indicated that the company, 1st Claimant is willing and ready to finally liquidate and requested that interest should be stopped on the account. The principal amount and interest in the total sum of N12,000,000.00 to be paid via a post dated cheque to be issued and dated May 31st 2011, and another in June 30th, 2011.
The Claimant shall rely on the said letter dated the 3rd May, 2011 during trial.” 12 ”The Defendant on the same date, 3rd May 2011, by their letter addressed to the Chairman of the 1st Claimant vehemently refused to accept the mode of payment of the overdraft facility’s principal sum and interest on two installments of N60,000,000.00 (six Million Naira only) on 31st May 2011 and 30 June 2011, insisting that it has to be paid 100% on the 31 May 2011 with full interest, or else a penalty interest will be generated on the account.
The Claimant shall at the trial of this suit rely on the said letter by the Defendant dated 3rd May, 2011.” 19 ”The Claimants aver that they are ready and willing to liquidate the overdraft facility and legitimate interest as stated by their letter of 3rd May 2011, in two installments of N6,000,000.00 (Six Million Naira) each and unless this Honourable Court intervenes, the Defendant will carry out its hatched plan and visit a lot of injustice on the Claimants and convert the property to itself or dispose of the property.” It seems clear and without any doubt that the above provisions of the Rules of the Lower Court gave power to that Court as a matter of priority to enter judgment and/or make any other appropriate order in that regard to a deserving party whenever there is admission(s) either in the pleading or howsoever the admission(s) are made.
In the present circumstances therefore, the totality of the Appellants’ averments in Paragraphs 11, 12 and 19 of the Statement of Claim (Pages 4 & 5 of the record of Appeal) which were replicated in Paragraph 12 of the 2nd Appellant’s statement under (sic) oath (Page 9 of the record of Appeal) and also in the 1st Appellant’s letter to the Respondent dated 3rd May, 2011 (Page 29 of the record of Appeal), point irresistibly to the fact of the Appellants’ indebtedness to the Respondent and therefore constitute admissions of facts.
The procedure under Order 19 Rule 4 of the (Civil Procedure) Rules by which the Lower Court entered judgment in favour of the Respondent summarily without proceeding to formal trial by calling of evidence is well entrenched and recognized in the firmament of Nigerian jurisprudence, having been adopted in a long list of cases by the Court of Appeal as well as the Supreme Court. In National Bank of Nigeria Limited vs.
Guthrie (Nigeria) Limited & Anor. (1987) 2 NWLR (Pt. 56) 255 at 257, it was held as follows: “The object of the provision of the Rules relating to judgment on admission is to enable a party to obtain speedy judgment where the other party has made a plain admission entitling the former to succeed”. Similarly, in the case of Anason Farms Ltd vs.
Nal Merchant Bank (1993) 3 NWLR (Pt. 331) 243, it was held as follows: “…where admission of facts have been made, either on the pleadings or otherwise, a party may at any stage of the cause or matter apply to the Court or Judge in Chambers for judgment or order as upon such admission as may be entitled to without waiting for the determination of any other question between the parties.” It therefore follows that the ruling/judgment of the lower Court dated 5th April, 2012 made pursuant to the Respondent’s application of the Motion on Notice dated 1st day of March, 2012, based on the express admissions of the Appellants in their pleadings and other documentary evidence before the lower Court is valid and well founded in law.
Section 20 of the Evidence Act defines admission as follows: “An admission is a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstances, hereafter mention in this Act…….” The above definition from the Evidence Act is very apt to the circumstances of the present case in the sense that an admission can be oral, written or by conduct from which an inference can be drawn from.
In the present circumstance therefore, it is obviously inferable from the 1st Appellant’s letter to the Respondent dated 3rd May, 2012 that the Appellants admitted/acknowledged their indebtedness to the Respondent and the attendant readiness to liquidate same in two equal installments of N6,000,000.00 (Six Million Naira) each.
The said letter and the subsequent averment in the Appellants’ pleadings constitute express admission/ acknowledgement of indebtedness and readiness to liquidate same and having been so admitted, the Appellants cannot and would not be allowed to pull a wool over the eyes of this Honourable Court and be heard in argument to the contrary. After all parties and the Court are bound by the admissions/pleadings – Unity Bank Plc v Bouari (2008) 7 NWLR (Pt. 1086) 372 AT 381, Abubakar v. Joseph (2008)13 NWLR (Pt. 1104) 307.
Furthermore, Section 123 of the Evidence Act, 2011 vividly provides as follows: “No fact need be proved in any civil proceedings which the parties to the proceedings or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings”.
The Appellants, having admitted in clear and expressed terms their indebtedness to the Respondent, have absolutely removed the legal burden of proof on the Respondent to otherwise prove same and consequently, the lower Court was therefore right in entering judgment for the Respondent on the admitted sum of N12,000,000.00 (Twelve Million Naira) being the principal debt and accrued interest.
The lower Court took full cognizance and made reference to the Appellants’ Counter Affidavit dated March 9, 2012 in opposition to the Respondent’s motion judgment, there is therefore really no basis for the Appellants’ claim of absence of fair hearing in the circumstances. In Adebayo vs. A.G., Ogun State (2008)7 NWLR (Pt. 1085), 201 at 221-222, G-C thus: “Learned Counsel for the Appellant robed in the fair hearing principle.
I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened.
They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage.
On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.” This Appeal is therefore unmeritorious and is hereby dismissed. The judgment of the lower Court in Suit No. LD/1240/2011 delivered on 5th April, 2012 is hereby affirmed.
Fifty thousand Naira is hereby awarded as cost in favour of the Respondent and against the Appellant.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned brother: Abdullahi Mahmud Bayero, JCA. I agree with the legal reasoning and conclusion in it. l too dismiss the appeal. I abide by the consequential orders decreed in the leading judgment.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the benefit of a preview of the judgment delivered by my Learned Brother, ABDULLAHI M. BAYERO, JCA wherein the facts and issues in contention are set out in extensor. Admission of a claim (or part thereof) by an adversary in litigation, whether contained in pleadings or otherwise, is the best form of proof, which obviates the necessity of leading evidence to establish that very same claim. It is hornbook law that facts admitted need not be proved: S. 123 of the Evidence Act 2011, UREDI v DADA (1988) 1 NWLR (PT. 69) 237, CHIEF OKPARAEKE & ORS v O.
EGBUONU & ORS (1947) 7 WACA 53 and NDAYAKO v JIKANTORO & ORS (2004) 8 MJSC 163 at 185. As Aniagolu, JSC put it in OJUKWU v ONWUDIWE& ORS 179841 NSCC 172 at 199: “Another principle deeply enshrined in our jurisprudence is that admissions made do not require proof for the simple reason, amongst others that “out of the abundance of the heart the mouth speaketh” and that no better proof is required than that which an adversary wholly and voluntarily owns up on”.
In our adjectival law, an issue in a civil action conducted by pleadings emerges only where the Court, upon a comparison of the averments in the statement of claim and the statement of defence, identifies the matters actually in dispute between the parties and upon which it is necessary to lead evidence. There is no dispute between parties on matters which have been admitted in the pleadings and generally, evidence on such admitted matters is to be excluded.
The isolation of issues truly in dispute from those not in dispute enables the Court to save valuable time and cost, and it is by this process that the Court is enabled to receive evidence only on matters in respect of matters in controversy between the parties.
See ADEDEJI v OLOSO (2007) ALL FWLR (PT. 356) 670 at 634-635 -per Oguntade JSC and INDIA GENERAL INSURANCE COMPANY v THAWARDES (1978) 3 SC 143. In the case at hand, the Appellants herein (as claimants) averred in paragraph 19 of the statement of claim that they are “ready and willing to liquidate the overdraft facility and legitimate interest as stated in their letter of 3rd May 2017, in two installments of N6,000,000.00 (Six Million Naira) each and unless this Honourable Court intervenes, the Defendant will carry out its hatched plan and visit a lot of injustice on the Claimants and convert the property to itself or dispose of the property”.
As also averred in paragraphs 11 and 12 of the statement of claim, the letter of 3rd May 2011 referred to above was written pursuant to a resolution of the 1st Appellant (qua 1st claimant at the lower Court) to that effect. There is therefore no gainsaying that the Appellants admitted, unequivocally, their indebtedness to the Respondent in the sum of N12,000,000.00 (Twelve Million Naira) as principal and accrued “legitimate interest” on the overdraft facility granted to them by the Respondent.
Fundamentally, Order 19 Rule 4 of the High Court of Lagos State (Civil procedure) Rules 2012 provides that a Judge may, on application, at a Case Management Conference or any other stage of the proceedings, enter judgment on the basis of admission of facts in the pleadings or otherwise without waiting for the determination of any other question between the parties.
The lower Court cannot therefore be faulted for entering the judgment on the basis of the Appellants’ admission in the pleadings. In light of the foregoing, I cannot but affirm my agreement with the leading judgment dismissing this appeal for want of merit.