Asaba Ile Mill PLC V. Bona V. Ile Ltd. & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

ALAGOA, J.C.A.

The Appellant as plaintiff filed this suit at the High Court Registry Asaba, Delta State on the 31st October 2003 under the undefended list claiming against the respondents as defendants the following –

(a) The sum of five million five hundred and sixty two thousand, eight hundred and seventy-five naira, seventy two kobo (N5,562,875.72) being the defendants indebtedness to the plaintiff which sum the defendants refused to refund despite repeated demands.

(b) Interest on the said N5,562,875.72 at the rate of 20% until the entire sum is liquidated.

The respondents then filed a Notice of intention to Defend the suit supported by a twenty six paragraph affidavit to which were annexed some exhibits. The learned trial Judge, Okpu. J after hearing arguments of counsel on both sides removed the suit from the undefended list and had same transferred to the general cause list for hearing and determination.

The appellant by a motion on notice dated the 6th February, 2004 and filed on the 9th February, 2004 prayed the court for the following order – “To enter judgment for the plaintiff for the sum of N1,415,050.01 being the amount admitted by the defendants as their indebtedness to the plaintiff and so found by the court.

And for such further order or orders as this Honourable court may deem fit to make in the circumstances”. The motion was supported by a nine paragraph affidavit which is reproduced hereunder –

IN THE HIGH COURT OF JUSTICE, DELTA STATE OF NIGERIA

IN THE ASABA JUDICIAL DIVISION

HOLDEN AT ASABA

BETWEEN: SUIT NO: A/182/2003

ASABA ILE MILL PLC. PLAINTIFF/APPLICANT

AND

1. BONA V. ILE LTD.
2. I.O. UZODIKE DEFENDANT/RESPONDENTS

AFFIDAVIT IN SUPPORT

I, HOPE OKAFOR, female, secretary, citizen of the Federal Republic of Nigeria, of No. 131 Awka Road Onitsha do hereby make oath and state as follows:

1. That I am the litigation secretary in the chambers of C. O. Erondu & Co. 131 Awka Road, Onitsha.
2. That by virtue of my position, I am conversant with the facts of this case.
3. That I have the information and consent of my employer, C. O. Erondu Esq. and the plaintiff/applicant to depose to the following facts.
4. That in paragraph 18 of the defendant/respondent’s affidavit in support sworn to by the 2nd defendant, the defendant/respondents admitted owing the plaintiff the sum of N1,415,050.01.
5. That the court in its ruling delivered on 5/2/2004 made a finding of the said admission.
6. That this application is necessary to enable the remaining amount not admitted to be determined by further oral evidence in the general cause list as ordered by the court.
7. That the defendant/respondents will not be prejudiced by this application.
8. That at the hearing of this application the plaintiff/applicant shall rely on the records of the court which is hereby specifically referred to as an exhibit.
9. That I make this affidavit in good faith believing same to be true and correct and in accordance with the Oaths Act. (Underlining mine for Emphasis)

SGD

DEPONENT

SWORN to at the High court

Registry Asaba This ……. 9th day of February, 2004.

BEFORE ME:

SGD

COMMISSIONER FOR OATHS

The Respondents in opposition to the grant of the motion filed a nine paragraph counter affidavit which is also reproduced hereunder –

IN THE HIGH COURT OF JUSTICE, DELTA STATE OF NIGERIA

IN THE ASABA JUDICIAL DIVISION

HOLDEN AT ASABA

BETWEEN: SUIT NO: A/182/2003

ASABA ILE MILL PLC. PLAINTIFF/APPLICANT

AND

1. BONA V. VENTURES LTD.
2. I. O. UZODIKE DEFENDANT/RESPONDENTS

COUNTER-AFFIDAVIT

I, AFOKOGHENE IROGBO male, Legal Practitioner, Christian, Nigerian citizen of No 127 Port-Harcourt Road, Onitsha, Anambra State do hereby make oath and state that:

1. I am the Counsel and Solicitor to the Defendants in this Suit and by virtue of my position I am conversant with the facts of this case and make this affidavit with his consent and authority.
2. I have seen the Plaintiff’s Motion on Notice, with Affidavit in support dated 6th February, 2004 seeking for the payment of the sum of N1,415,050.01 (One million four hundred and fifteen thousand, fifty Naira and one kobo) in her favour).
3. That the motion on notice aforementioned is abuse of court process.
4. That the said paragraph 18 of the Defendants/respondents Affidavit in support of his Notice of intention to defend agreeing to the balance of the sum of N1,415,050.01 ought to have been defrayed by the supply of high quality goods on 80:20 formula to the defendants by the plaintiff which was subject of argument during the interlocutory stage of the matter before it was transferred to the general cause list.
5. That the plaintiff uptill now has not supplied the defendants with high quality goods on the agreed formula above, yet she is bringing an action to claim the sum of N1,415,050.01.
6. That the matter has been transferred to the general cause list and that the plaintiff cannot ask for part judgment at this stage of the proceeding.
7. The motion on notice if granted, the defendants will surely be prejudiced.
8. The plaintiff’s Motion should be dismissed as it lacks merit.
9. I make this affidavit conscientiously believing same to be true and correct and in accordance with the Oaths Act. 1990.

(SGD)

DEPONENT

SWORN to at the High Court Registry,

Asaba this 4th day of March 2004.

BEFORE ME

SGD

COMMISSIONER FOR OATHS

(Underlining mine for emphasis)

The learned trial Judge after listening to arguments of counsel dismissed the appellant’s motion for judgment in a considered ruling delivered on the 28th April 2004. It is against this ruling that the appellant has appealed to this court.

When this appeal came up for hearing on the 2nd March, 2006 counsel for the appellant C. O. Erondu Esq. adopted the appellant’s brief of argument and reply briefs dated the 8th November 2004 and 14th April 2005 respectively. He urged the court to allow the appeal set aside the judgment of the court below and grant the claims of the Appellant. Ejike Ezenwa Counsel for the Respondent also adopted the Respondent’s Brief of argument dated 7th February 2005 and deemed filed on the 14th April 2005. He urged this court to dismiss the appeal.

This court on the 8th November 2004 granted an application on Notice dated 31st May 2004 and filed on the 17th June 2004 directing a departure from the Rules of court pursuant to Section 16 of the Court of Appeal Act 1976, order 6 Rule 11 and order 7 Rule 2 of the Court of Appeal Rules 1981 as amended, and Records were accordingly compiled by virtue of the grant of this order. The appellant’s Notice of Appeal is reproduced below-

IN THE COURT OF APPEAL

HOLDEN AT BENIN

CA/B/2004 ASABA HIGH COURT

SUIT NO. A/182/2003

BETWEEN:

ASABA ILE MILL PLC APPELLANT

AND

1. BONA V. ILE LTD.
2. I.O. UZODIKE RESPONDENTS

TAKE NOTICE that the Appellant being dissatisfied with part of the decision more particularly stated in paragraph 2 of the High Court, Asaba contained in the judgment of his Lordship, the Honourable Justice K.O. Okpu dated the 28th day of April, 2004 doth hereby appeal to the Court of Appeal upon the grounds set out in paragraph 3 and will at the hearing of the appeal seek the relied set out in paragraph 4.

And the Appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.

2. Part of the decision of the Lower Court complained of: Whole decision
3. GROUNDS OF APPEAL.

A. ERROR IN LAW

The learned trial judge erred in law by refusing to enter judgment on the admissions made by the respondents in their affidavit evidence.

PARTICULARS OF ERROR

(i) The lower court failed to consider the unequivocal and unambiguous admission of indebtedness by the respondents in paragraph 18 of their affidavit dated 4th December 2003.

(ii) By dwelling so much on the issue of finding or non-finding of indebtedness in his ruling he gravely failed to give a dispassionate consideration to the case of the Appellant.

(iii) The lower court overlooked the cases cited by the appellant, which would have adequately guided him in the consideration of the issues before him.

B. ERROR IN LAW

The learned trial Judge erred in law in holding that he was functus officio thereby denying him jurisdiction to consider the appellant’s case.

PARTICULARS OF ERROR

(i) The appellant was not reopening the question dealing with whether the suit deserves to be transferred to the general cause list or not.

(ii) Judgment on the admissions of fact is a completely different procedure from undefended list and do not overlap.

(iii) Order 30 rule 3(1) of the High Court (Civil Procedure) rules 1988 does not limit admission of facts to pleadings alone as wrong held by the lower court but accommodates other processes like correspondences, affidavits etc.

4. Relief sought from the court of appeal:

That the ruling of the High Court be set aside and judgment entered on the admitted sum of N1,415,050.01 (One million, four hundred and fifteen thousand, fifty naira, one kobo) by the respondents in favour of the appeal.

5. Persons directly affected by the appeal

NAME ADDRESS

1. Asaba ile Mill Plc C/o C.O. Erondu Esq

Barr-at-Law & Solicitor

131 Awka Road Onitsha

1. Bona V. ile Ltd C/o P.C. Obiora Esq
2. I.O. Uzodike 127 Port Harcourt Road,

Fegge, Onitsha.

Dated the 5th day of May 2004.

C.O. ERONDU ESQ.

Counsel and Solicitor for

The appellant whose

Address for service is:

Erondu chambers

131 Awka Road,

Onitsha.

From the two grounds of appeal in the Notice of Appeal the appellant formulated this sole issue for the determination of this court – Whether the lower court was right in dismissing the application of the appellant for judgment on the admissions of the respondents. The respondents on the other hand distilled the following two issues for the determination of this court –

(i) Whether considering the facts of this case there was solemn and unequivocal admission of indebtedness by the respondents.

(ii) Whether this appeal is an abuse of court process in view of the fact that the appellant is pursuing the same relief at both the High Court and the Court of Appeal simultaneously.

I will like to deal with this latter issue formulated by the respondents first. The appellant has submitted that this issue – NO.2 is grossly incompetent as it is not tied to any of the grounds of appeal filed by the appellant and has urged this court to strike it out. It has also been submitted by the appellant that the respondents neither filed a cross-appeal nor a respondents notice in order to accommodate the said issue and that its factual props are not borne out by the record of appeal. It was further contended by the appellant that it is settled law that a respondent who does not cross appeal or file a respondent’s notice cannot frame issue outside the ground of appeal filed by the appellant since the said issue is incompetent. The case of ATANDA V. AJANI (1989) 3 NWLR PART 111, page 514, pages 543 -544 was relied upon. The appellant also submitted that the respondent should have come by way of preliminary objection under order 15 Rule 1 of the Court of Appeal Rules 2002. The case of EMEKA NJOKANMA V. PATRICK UYANNA, a decision of this court delivered on the 17th January 2006 was relied on. The appellant contended that he would decline to join issues with the Respondents on such a speculative and hypothetical point. The Respondents on the other hand have contended that they raised the argument in the body of their brief. They further contended that the respondent is to file a cross appeal where he disagrees with the judgment of the court. Reliance was placed on B.C.E. CONSULTING ENGINEERS V. N.N.P.C. (2004) 3 NWLR PART 859 PAGE 1 AT PAGE 1 at page 13 paras. C.E. The respondents contend that they have not disagreed with the said judgment which they accept entirely. They have also not asked for a variation of the judgment. On this ground this court should discountenance the argument that the respondent should file a Cross appeal.

The pitfalls of this issue (issue No 2 of the respondents) are manifold. Firstly and as correctly observed by the appellant that issue – No 2 formulated by the respondents is not tied to any of the grounds of appeal. This is borne out by the Record of Appeal. Secondly having gone through the original record of appeal page by page, I do not find any pleadings filed by the appellant following the failure of the appellant’s motion for judgment for N1,415,050.01. Respondents contention that such a pleading was filed is indeed speculative and unfortunate. This issue – No 2 of the respondents is therefore incompetent and is accordingly struck out.

I shall now proceed to deal with issue No 1 which is the sole issue and which though framed differently by the parties has as its central theme the alleged indebtedness by the respondent to the appellant in the sum of N5,562,875.72 out of which the appellant prayed the court below to enter judgment for the sum of N1,415,050.01 described as “amount admitted by the Defendants as their indebtedness to the plaintiff” and which in a considered ruling the court rejected. I think this issue should be amended slightly to accommodate both views to read, “Whether there was admission by the respondents of indebtedness to the appellant in the sum of N1,415,050.01 and whether the learned trial Judge was right in dismissing the application for judgment in this sum.” The appellant has contended that the respondents in paragraph 18 of the affidavit in support of their notice of intention to defend the suit had admitted thus “If the above amount is reduced from my balance of N5,762,875.72 with the plaintiff as at 28/02/02 then the balance shall stand at N1,415,050.01” (see page 13 of the Record of Appeal). Appellant further contended that the learned trial Judge failed to appreciate the avalanche of documentary evidence presented by the appellant but simply felt that the mere denial by the respondents and the discrepancy in both the sum claimed and admitted were enough for him to transfer the suit to the general cause list. Counsel for the appellant has further submitted that the order granting the respondents leave to defend the suit is not the subject of this appeal as the appellant has no right of appeal to that by virtue of Section 241(2) (a) of the 1999 Constitution. The appellant, counsel said, never invited the trial court to enter judgment on the said admission as same is not provided for under the undefended list procedure pursuant to Order 23 of the High Court (Civil Procedure) Rules 1988 as applicable to Delta State and that it was after the transfer of the suit from the undefended list to the General Cause List that the appellant applied for judgment to be entered on the admissions of the respondents and that the lower court erred in dismissing the application. It was contended for the appellant that the appellant’s application for judgment is predicated on Order 30 Rule 3(1) of the High Court Rules which states that “Where admissions of fact are made by a party either by his pleadings or otherwise, any other party may apply to the court for such judgment or order as upon those admissions he may be entitled to without waiting for the judgment or make such order on the application as it thinks just.” The learned trial Judge, it was contended did not advert his mind to the provision of the Rule before arriving at his verdict. Appellant went on to submit that paragraph 18 of the affidavit of the respondent in support of the Notice of Intention to defend the suit was an unequivocal, unambiguous and solemn declaration and admission of liability and indebtedness of the respondents to the appellant in the sum of N1,415,050.01 and that the learned trial Judge was bound to enter judgment for the appellant under the Rules of Court without waiting for the final resolution of the difference in the sum claimed and admitted. The case of MOSHESHE GENERAL MERCHANT LTD V. NIGERIA STEEL PRODUCTIONS LTD (1987) ANLR 309 at 319 was relied upon. Appellant submitted that the position of the learned trial Judge on the claim which runs thus, “……. I must point out here that the defendant admits in paragraph 18 of the affidavit in support of his application that the balance outstanding in his account is N1,415,050.01 and not N5,563,875.72 which is the claim of the plaintiff and the defendant “is a finding of admission of indebtedness on the part of the respondents by the lower court and since this finding has not been challenged on appeal by the respondents, it stands. Reliance was placed on NDIWE V. OKOCHA (1992) 7 NWLR PART 252 page 129. Learned counsel for the appellant went further to submit that the learned trial Judge in the face of his crucial finding of admission and the unambiguous admission in paragraph 18 of the affidavit in support of the respondents’ notice of intention to defend the suit still went on to hold that no where in the Court’s Ruling had the court held that the respondents are indebted to the appellant in the sum of N1,415,050.01 and that what the court did was to point out the position of the respondent as against the claim of the appellant. It was contended by the appellant’s counsel that the statement by the court that it simply pointed out the position of the respondents as against the claim of the appellant constitutes a finding. It was further submitted by the appellant that an admission need not only be made in the pleadings as canvassed by the respondents and held by the court below to be so but can be made in any other court process or document. The cases of ANASON FARMS LTD V. NAL MERCHANT BANK (1994) 3 NWLR PART 331 page 241 and MOSHESHE GENERAL MERCHANT LTD V. NIGERIA STEEL PRODUCTION LTD (Supra) were relied upon. The appellant, it was therefore submitted was perfectly in order by relying on the admissions made in the affidavit in support of the respondents notice of intention to defend the suit. The learned trial Judge had said that he was functus officio and could not re-open the issue of admission of indebtedness by the respondents to the appellant having ruled earlier on same. On this point, appellant contended that the learned trial Judge was labouring under the mistaken notion that the appellant’s application sought to re-open or re-visit the issue of transfer of the case from the undefended list to the general cause list which was not so. The appellant’s counsel submitted that the law of judgment on admission of facts under Order 30 Rule 3(1) of the rules of court is a separate procedure which does not overlap with Order 23 of the High Court Rules which deals with undefended list causes. It was further submitted for the appellant that the pendency of this case in the General Cause List pre-eminently gave the anchor upon which the issue of admission took off as it would have amounted to an abuse of the process of court if a request for part judgment were canvassed by the appellant before the suit was transferred from the undefended list to the general cause list. The case of CHRISDON IND. CO LTD V. A.I.B. LTD (2002) 8 NWLR PART 768 page 152 at page 187 paragraphs B-H was relied upon. The appellant therefore submitted that the order dismissing the appellant’s application was erroneous in law and urged this court to allow the appeal, set aside the ruling of the lower court and enter judgment in favour of the appellant on the admitted sum of N1,415,050.01.

The respondents’ on the other hand have contended in their Brief of Argument that the trial court was right in dismissing the appellant’s motion for judgment as there was no indebtedness by the respondents. It was further contended that the purported “admission” arose during the proceedings under the undefended list, the affidavit in support of the Notice to defend the suit being the conveyor of the said admission and the trial court after listening to the parties transferred the suit to the general cause list. The respondents further submitted that there is no right of appeal against any order of court transferring a suit from the undefended list to the general cause list as this amounts to granting a party leave to defend the suit. Reliance was placed on section 241(2)(a) of the 1999 Nigerian Constitution. Once an order is made transferring a suit from the undefended list to the general cause list, the only option available to the appellant is to file his pleadings and call evidence in proof of the claim, the respondent further submitted noting that all through the argument leading to the transfer of the suit to the general cause list the appellant’s counsel neither made reference to any admission of N1,415,050.01 nor urged the court to enter judgment in the sum purportedly admitted. Counsel for the respondents submitted that it is wrong for paragraph 18 of the affidavit, in support of the respondents’ Notice of Intention to defend the suit to be read in isolation of the other paragraphs and that it is the totality of the affidavit in support of the Notice of Intention to defend the suit that should be construed to determine whether the respondents have made out a triable issue to justify transferring the suit to the general cause list and if this were done it would be seen that the respondents did not admit equivocally that they were indebted to the appellant. Respondents’ counsel went further to submit that the copious averments in paragraphs 5, 6, 7, 8, 9 and 10 of the affidavit in support of the notice of intention to defend to the effect that the plaintiff dumped its low quality goods with the defendant to sell were no where denied by the appellant in its entire 7 paragraph further affidavit in reply and that where a material fact in an affidavit is not controverted by the opposing party, that fact is ipso facto deemed as admitted. EJIKEME V. IBEKWE (1997) 7 NWLR PART 574 page 592 at page 598 was relied upon. Respondents further submitted that for an admission of fact to be considered by the court it must be solemn and unequivocal as to the exact details of what is admitted. The case of GABRIEL IFEDIORAMA V. MARK OGBUE & ORS (1995) 5 NWLR PART 395 page 352 at 363 paras D-E was relied upon. Counsel submitted that the respondent’s notice of intention to defend the suit raised a triable issue and therefore the learned trial Judge was right in transferring the suit to the general cause list. Respondent also contended that there is manifest discrepancy in the alleged debt as claimed by the appellant and transferring the suit to the general cause list by the trial court was the right decision. Reliance was placed on the following cases – ONOBRUCHERE V. ESEGINE (1986) 1 NWLR PART 19 page 799 at 809, CHRISDON INDUSTRIAL CO. LTD V. A.I.B. LTD (2002) 8 NWLR part 768 PAGE 152 AT 187-188. The respondents have submitted in their Brief of Argument that the supposition by the appellant that the trial court ought to have split the claim by awarding judgment in the sum of N1,415,050.01 and then determining the balance after full trial is not tenable because the summary procedure of undefended list does not admit of approximation of the amount, claimed or admitted nor is it open on the procedure to award part judgment. CHRISDON INDUSTRIAL CO. LTD V. A.I.B. LTD (Supra) was relied upon. Respondents have also contended in their brief, that there are clearly certain issues which can only be resolved through a proper trial where evidence should be taken such as the proper construction of an 80:20 formula agreement between the appellant and the respondents. It has further been canvassed for the respondents that it is settled law that an appellate court would only interfere with the decision or order of lower court if it is shown that the decision of that court is perverse in law and/or that it was reached upon an erroneous assessment of the facts or upon inadmissible evidence. Respondents relied upon the following cases in support – IFEDIORAMA V. OGBUE (Supra) at page 362; AWOYALE V. OGUNBIYI NO.2 (1986) 2 NWLR PART 24 page 626.; SHA (JNR) V. KWAN (2000) 8 NWLR PART 670 page 685; WOLUCHEM V. GUDI (1981) 5 SC. 291.

With respect to issue 1 which is the sole issue now being considered, the appellant has made it abundantly clear that the application of the appellant for judgment in what he referred to as the admitted sum of N1,415,050.01 was predicated not under order 23 of the High Court (Civil Procedure) Rules 1988 of the defunct Bendel State now applicable to Delta State but under Order 30 Rule 3(1) of the same rules of court. It had been amply stated in the Appellant’s Brief of argument that appellant has no right of appeal with respect to a suit transferred by the trial Judge from the undefended list to the general cause list for hearing pursuant to an application brought under Order 23 of the Rules of court. This is by virtue of Section 241 2(a) of the 1999 Nigerian Constitution which provides as follows:

“Nothing in this section shall confer any right of appeal from a decision of the Federal High Court or any High Court granting unconditional leave to defend an action”. In other words any request for part judgment for a sum of money or an indebtedness is not covered by order 23 of the Rules of court. That the appellant’s application for judgment is predicated on Order 30 Rules 3(1) and (3) of the Rules of court is borne out not only by the appellant’s submissions in the appellant’s brief but also by the record of appeal. See page 35 of the record of appeal where the appellant’s counsel in moving the motion for judgment said inter alia,

“This application is brought pursuant to Order 30 Rule 3(1) and (3) (sic) applicable to Delta State. This application is praying this court for an order to enter judgment for the plaintiff for the sum of one million four hundred and fifteen thousand fifty naira and one kobo being the amount admitted by the Defendant as the indebtedness and so found by this Honourable court and for such order as this court may deem fit to make in the circumstances”. The appellant in the said application at page 35 of the record of appeal went further to submit as follows, “This procedure is different from the undefended list procedure.” The appellant had stated on page 4 of the Appellant’s Brief of Argument as follows, “The law of judgment on admission of facts under order 30 rule 3(1) of the rules is a separate procedure which does not overlap with order 23 of the High Court Rules which deals with undefended list causes. The appellant submits that the pendency of this suit in the General Cause List pre-eminently gave the anchor upon which the issue of admission took off as it would have amounted to an abuse of the process of court and request for part judgment by the appellant if the issue were agitated before the transfer.”

Order 30 Rule 1 of the High Court (Civil Procedure) Rules 1988 of Bendel State applicable to Delta State states as follows, ” Where admissions of fact are made by a party either by his pleading or otherwise, any other party 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.” The purport of this order is clear and does not lend itself to any ambiguity. Must such an admission be only as contained in the pleadings? This is the view of the respondents and also of the trial court as borne out by the record of appeal. See pages 37 and 41 of the Record of Appeal.

At page 37, it will be seen that P.C. Obiorah counsel for the respondents while addressing court on the 30th March 2004 said as follows, “Admission as envisaged by order 30 is admission in pleadings.” The learned trial Judge in his ruling on the 28th April, 2004 on page 41 of the Record of Appeal said that “It would however have been different if pleadings have settled and this issue were to arise out of the pleadings filed as a result of the transfer of this suit to the General Cause List.”

Order 30 Rule 3(1) of the Rules states “Where admissions of fact are made by a party EITHER BY HIS PLEADING OR OTHERWISE ………..” (Capitals mine for Emphasis)

This shows that the admission need not be in the pleading alone. How have the courts interpreted the expression –

“OR OTHERWISE”

In ANASON V. NAL MERCHANT BANK (1994) 3 NWLR PART 331 page 241 esp page 251 paragraphs G-H, the expression “or otherwise” was interpreted to mean that the admission could be made either in the pleadings or in any other court process be made either in the pleadings or in any other court process or document. What is undoubtedly clear from the wording of Order 30 of the rules of court is that admissions are not to be confined strictly to the pleadings alone and so the contention of the respondent and of the court in this regard cannot be correct. Before going into the issue of whether or not there was an admission of indebtedness by the respondents to the appellant in the sum of N1,415,050.01. I will like to firstly deal with the question whether part judgment can be entered by a trial court with respect to an admitted sum in a suit over a monetary claim. In MOSHESHE GENERAL MERCHANT LTD V. NIGERIA STEEL PRODUCTIONS LTD (1987) ANLR 309 at 319 the Supreme Court per Aniagolu JSC held as follows:

“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 discretion may having regard to the circumstance of the case grant the application and enter judgment there and then or order the applicant to formally move the court.”

That is the position of the law. The learned trial Judge having transferred this suit from the undefended list to the General Cause List, the appellant was at liberty to ask for part payment of the amount claimed in the summons if there was an admission by the respondents of indebtedness of part of the sum so claimed. Was there such an admission of indebtedness? What in any case constitutes an admission in law? Blacks Law Dictionary 7th Edition at page 48 defines “Admission” as “A voluntary acknowledgement of the existence of fact relevant to an adversary’s case”. Section 19 of the Evidence Act defines an Admission as, “a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons……….” In ANASON FARMS LTD V. NAL MERCHANT BANK (Supra) page 252 paras B-C, an Admission was defined as, “a statement oral or written made by a party or his agent to legal proceedings and which statement is adverse to his case” See also OGUNNAIKE V. OJAYEMI (1987)1 NWLR PART 53 page 760. See also TAGOE & ANR V. AKUMATAY (1946) 12 WACA 31; OKAI V. AYIKAI (1946) 12 WACA 31. Before a court can rely on an admission, it must be full, clear, unambiguous and freely made by the party.

It is now time to look at paragraph 18 of the affidavit in support of the Respondents’ notice of intention to defend the suit where the alleged admission of indebtedness was made. It must be reiterated that though paragraph 18 of the affidavit was in support of the notice of intention to defend the suit under order 23 of the Rules of Court it formed the basis of the application by the appellant for judgment under Order 30 Rule 3(1) of the Rules of court when the suit had been transferred to the General Cause List. The said paragraph 18 reads as follows-

“If the above amount is reduced from my balance of N5,762,875.72 with the plaintiff as at 28/02/02 then the balance shall stand at N1,415,050.01.”

The learned trial Judge in his ruling at page 31 of the Record of appeal stated thus, “I must point out here that the defendant admits in paragraph 18 of the affidavit in support of his application that the balance outstanding in his account is N1,415,050.01 and not N5,563,875.72 which is the claim of the plaintiff and the defendant.” What is anyone to make of these assertions both by the respondents and the court? If they are not to be taken as an admission by the respondents of indebtedness to the appellant in the said sum of N1,415,050.51 what could they be taken for?

The Respondents have canvassed in their Brief of Argument that the entire contents of the affidavit must be taken into consideration in deciding whether or not paragraph 18 constitutes an admission. I do not think so. It is only when the language of the or paragraph sought to be interpreted is ambiguous that one may be entitled to look outside it for assistance to get at its true purport. See generally the following cases – OJOKOLO v. ALAMU (1987) 3 NWLR PART 61 page 377; UHUMWANGBO V. OKOJIE (1989) 5 NWLR PART 122 PAGE 471; ODUYE V. NIGERIA AIRWAYS LTD (1987) 2 NWLR PART 55 page 126. Each paragraph of an affidavit is supposed to convey a definite, clear and unambiguous meaning. I am not aware that it is the law that one must take into consideration the entirety of the contents of an affidavit simply to get at the true meaning of one paragraph of the affidavit. See generally Sections 78-90 of the Evidence Act. Thus the assertion by the trial Judge to his ruling on the application for judgment with respect to paragraph 18 of the respondent’s affidavit to the effect that “there is no where in the reproduced part of the ruling above where this court held that the respondents (sic) is indebted to the applicant to the tune of N1,415,050.01. What the court did was to point out the position of the respondent as against the claim of the applicant. This to my mind is not a finding,” is rather unfortunate. A judge must stand up to his convictions and be resolute.

Having taken a stand he must abide by it and should not later be seen to make statements which are a complete derogation from his earlier position or which tend to create more confusion than they solve. This court will only rely on the clear and unambiguous words of admission of indebtedness. The respondent has dwelt at length on the Agreement between the appellant and the respondent which was described in the Respondents’ Brief of argument as an 80:20 formula. This does not derogate from the fact that there was indeed an admission by the respondent. When once a debt is admitted, it should be given effect to irrespective of other considerations that may crop up. All too often counsel are not to fall back on the principle of law that an appellate court is to interfere with the decision or order of a lower court if it is shown that the decision of that court is perverse in law and/or that it was reached upon an erroneous assessment of the facts or upon in admissible evidence.

This is and has always been the position of the law. It should not however be stretched too for to mean that an appellate court is a rampaging bull dog which barks ferociously but has lost its teeth to bite. It does sometimes happen that the appellate court is made to act on exactly the same stage that the lower court has had to act, accessories and all without the lower court having any better advantage. For example where no witnesses are called the lower court has no advantage as it does not have the deameanour of anybody to watch or where as in this case exactly the same documents that were before the lower court are passed on to the appellate court. In such a case the appellate court faced with a composite and comprehensive picture of the entire position is in a commanding position when the lower court is glaringly seen not to have done what it ought to have done. I hold that there was an admission of indebtedness of the respondents to the appellant to the tune of N1,415,050.01 and that the trial Judge was wrong in his finding that there was no such admission and therefore resolve the sole issue in favour of the appellant.

The appeal is accordingly allowed to the tune of the admitted amount of N1,415,050.01 only while the case is to be remitted to the trial Judge or where it has become impossible to do so, to some other Judge within that jurisdiction for a full trial of the unadmitted balance.

I however make no order as to costs.

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Other Citations: (2006)LCN/1995(CA)