Kenlink Holdings Ltd. & Anor. V. Realistic Equity Investment Ltd. & Anor. (1997)
LawGlobal-Hub Lead Judgment Report
MOHAMMED, J.C.A.
By a writ of summons dated 27/3/91 filed at the High Court of Justice Kano State at Kano, the 1st respondent as plaintiff claimed against the appellants who were 1st & 2nd defendants respectively the sum of N142,290.00 being the outstanding balance of a short term loan advanced to the 1st appellant. However, before the undefended suit could come up for hearing on the return date, the appellants had filed their notice of intention to defend the action which necessitated the action being transferred to the ordinary cause list for hearing.
Consequent upon this development, pleadings were dully filed and exchanged between the parties. Before the case proceeded to hearing on the merits, learned counsel to the plaintiff filed a motion on notice pursuant to ORDER 30 RULE 3 OF THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES, 1988 asking for judgment in the sum of N63,168.00 said to have been admitted by the defendants in their joint statement of defence. The motion for judgment was heard by the lower court on 27/4/92 and in his ruling delivered the same day, the learned trial Judge B.S. Adamu J. granted the application and entered judgment for the plaintiff in the sum of N63,168.00 while the balance of N77,000.00 of the claim was to proceed to trial.
The defendants, now appellants who were not happy with this judgment had appealed against it by a notice of appeal containing 2 grounds of appeal from which the following 2 issues were formulated in the appellants’ brief of argument filed in accordance with the rules of this Court.
“1. Whether the learned trial Judge properly reviewed, appraised, assessed, evaluated and considered all the relevant and material issues canvassed and raised by the parties both in their pleadings and in their affidavit evidence filed pursuant to the motion for judgment.
- Whether from the state of pleadings filed by the plaintiff and the 1st and 2nd defendants, the trial Judge was right in holding that there was admission of liability by the 1st and 2nd defendants at that stage of the proceedings.”
The 1st respondent had in its brief of argument identified only one issue for the determination of the appeal. According to the 1st respondent, the only issue for determination of this appeal is the appellants’ Issue No.2.
Although the 1st respondent also raised what it called “Preliminary Issues” at pages 3-4 of its brief of argument on the competence of the appellants’ appeal which the 1st respondent regarded as an appeal against interlocutory decision requiring the leave of the lower court or of this Court, no notice of the preliminary objection was given in accordance with OR.3 R.15(1), (2) & (3) of the rules of this Court. In the absence of such notice, the preliminary objection itself is not competent and accordingly must be ignored in the determination of the appeal. In any case it is absolutely wrong to describe the judgment of the lower court in the sum of N63,168.00 in favour of the 1st respondent as interlocutory simply because the balance of sum of N77 ,000.00 claimed was proceeding to trial. That judgment is indeed a final judgment for all intents and purposes. As the judgment was delivered on 27/4/92 and the notice of appeal was filed on 19/5/92, the appeal is clearly well within time.
Be that as it may, I entirely agree with the 1st respondent that the only issue for determination in this appeal is whether from the state of pleadings of the parties filed at the lower court, the learned trial Judge was right in holding that there was admission in the appellants’ joint statement of defence to justify entering judgment as he did.
The appellants have argued in their brief of argument that their statement of defence does not contain any admission of liability to the sum which is the subject of the judgment against them. That all the appellants did in their statement of defence was to plead the facts on the transaction between the parties. Nowhere did they admit liability expressly or by any implication to the sum awarded to the plaintiff now 1st respondent in the judgment of the lower court based on the alleged admission. BULLEN & LEAKE and JACOB’S PRECEDENTS OF PLEADINGS 12TH EDITION PAGES 73, 77, 78 were cited and relied upon by the appellants in support of their arguments on this issue. That although the appellants admitted collecting the sum of N187,000.00 from the 1st respondent in paragraph 4(b) of their statement of defence, the appellants proceeded and explained fully how that sum was expended in the joint venture. Learned counsel to the appellants pointed out that the learned trial Judge did not consider the full implication of paragraph 15 of the statement of defence. That relying on the case of Atuyeye v. Ashamu (1987) 1 NWLR (Pt. 49) 267, the failure of the trial court to properly consider the respective cases of the parties on pleadings and the affidavit before the court is fatal to the judgment now on appeal, concluded the learned counsel to the appellants who urged this court to allow the appeal.
For the 1st respondent however, it was submitted that by implication from the averments in the appellants’ statement of defence, there was clear admission of the sum awarded by the lower court in its judgment which was given in proper exercise of the power of that court under OR.30, R.3 OF THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988. That the judgment of the lower court was quite in order having regard to a number of decisions of the superior courts in Nigeria including the case of Mosheshe General Merchant Ltd. v. Nigerian Steel Products Ltd. (1987) 2 NWLR (Pt. 55) 110 at 120. Concluding his submission on the issue, learned counsel to the 1st respondent maintained that on the peculiar facts of this case, the learned trial Judge was right in his appraisal of the relevant facts and in the finding that the appellants had admitted owing the amount for which the learned trial Judge entered judgment for the 1st respondent.
Now, the provisions of OR.30 R.3 of THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988 also quoted and relied upon by the learned counsel for the 1st respondent at page 6 of the 1st respondent’s brief reads:”
Where admission of facts 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 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. An application for an order under this rule may be made by motion or summons.” It is quite clear from the provisions of this rule that for the rule to apply, there must be an admission in the pleadings or otherwise by a party or parties to a case and that the trial Judge has a discretion, even where the admission exists or is proved to give judgment or grant an order as may appear just to the trial Judge.
The word admission is a statement, oral, or documentary, which suggests any inferences as to any fact in issue, or relevant fact and which is made by any of the parties to a dispute and does not cease to be such admission simply because it is not pleaded. See Section 19 of the Evidence Cap. 112 of the Laws of the Federation 1990 and African Continental Bank Ltd. v. Gwagwada (1994) 4 SCNJ (Pt.11) 268 at 279; (1994) 5 NWLR (Pt.342) 25. If however the party relying on admission wishes to rely on it as an estoppel, the issue of pleading will be relevant. In the present case, the 1st respondent as plaintiff pleaded in paragraphs 5 and 15 of its statement of claim as follows:-
“5. The second defendant on behalf of himself, the 1st defendant and its subsidiaries approached the plaintiff prior to the 18th December, 1990 for a short term loan of N187 ,000.00 for one month to supply 4 strips of 360 tons of soya beans to Protein Derivatives Ltd. a company with its office in Kano. The plaintiff being a finance company then agreed to advance the short term loan on the following conditions:-
(a) That the interest/profit of the plaintiff on the cash advance of N187,000.00 would be N77,000.00 which would be consolidated with the cash advance which would make the total advance amount to N264,000.00.
(b) That this N264,000.00 would be the total money to be repaid by the 1st and 2nd defendants within 30 days.
- In an attempt to recover the loan facilities, the plaintiff called upon Protein Derivatives Limited to honour its undertaking to domicile payment on its contract with the 1st and 2nd defendants at least on the supply made and the plaintiff at two different times was able to recover a total sum of N121,710.00 paid on two occasions. The plaintiff kept the defendants informed of this development and the plaintiff will rely on its two letters dated 25th January, 1991 and that of 12th February, 1991 to the 3rd defendant who is hereby given notice to produce same at the trial.”
In response to these paragraphs in the statement of claim, the 1st and 2nd defendants now appellants averred as follows in paragraphs 3, 4 & 15 of their joint statement of defence:-
“3. Paragraph 5 of the statement of claim is admitted to the extent that the 1st defendant approached the plaintiff to finance the supply (sic) 4 strips of 360 tons of soya beans (3 trailer loads per trip to Protein Derivatives Limited (hereinafter called PDL).
- In further answer to paragraph 5 of the statement of claim, the 1st and 2nd defendants hereby state as follows:-
(a) That there was a written request to the plaintiff to finance the LPO from PDL by letter dated the 29th of November 1990. The said letter confirmed the modalities and terms of executing the contract.
(b) That the plaintiff accepted these terms by letter dated 10th December 1990, and advanced the sum of N187,000.00 to enable the 1st defendant to commence the project.
(c) That some of the terms of this arrangement were later reduced into formal agreement dated the 18th day of December 1990.
- The 1st and 2nd defendants deny paragraph 15 of the statement of claim and state in answer thereto that they are not indebted to the plaintiff to the sum of (sic) N142,690.00 or to any sum at all. In further answer thereto, the 1st and 2nd defendants aver as follows:-
(a) That the sum of N187,000.00 disbursed to the 1st defendant was to cover all the expenses to be incurred in the procurement and supply of Soya Beans to PDL.
The 1st respondent as plaintiff in its application for judgment by motion on notice asked for the following order –
“An order entering judgment for the plaintiff/applicant in the sum of N63,168.00 in this suit.”
although its total claim in the action is the sum of N142,290.00 as per paragraph 18 of the statement of claim. The learned trial Judge in entering judgment for the 1st respondent in the sum of N63,168.00 under ORDER 30 RULE 3 OF THE KANO STATE HIGH COURT (CIVIL PROCEDURE) RULES 1988 Stated as follows his reasons for giving judgment.
‘The application for judgment is for the principal sum of the loan given to the defendants for a business transaction. Although there was agreement as to sharing of profits and interests, the applicant/plaintiff is only claiming for the payment of the remaining balance of N63,168.00 which the 1st and 2nd defendants are yet to pay. They have earlier made payment (sic) N123,832.50 from the original sum of N187,000.00.
The 1st and 2nd defendants have not denied any liability and have not put any defence as to the time when they should be allowed to pay. The third defendant has not admitted having any amount in his custody and none of parties (sic) make any averments to this fact. So there should be judgment as of now against it for the repayment of the initial loan.”
It is quite clear that the learned trial Judge neither referred to the pleadings nor to any other admission to the sum of N63,168.00 said to have been made by the appellants to justify entering judgment against them. In fact, the learned trial Judge did not even make any specific findings that the appellants had duly admitted the sum in respect of which judgment was entered for the 1st respondent.
Therefore it is my view that without making a specific finding that appellants as defendants had admitted liability in the sum of N63, 168.00 to the plaintiff in their joint statement of defence or otherwise, the learned trial Judge was deprived of his power and discretion under OR.30 R.3 of the Kano State High Court (Civil Procedure) Rules 1988 to enter judgment for the plaintiff/1st respondent. The nature of the claim should be taken into account in determining what really constitutes a binding admission. In the present case nowhere in the joint statement of defence of the appellants did they admit the fact that the sum of N63,168.00 was due from them to the plaintiff, nor did they admit this fact through their counsel or by other means. It is quite clear from paragraph 18 of the 1st respondent’s statement of claim that the total amount being claimed by it in the action is the sum of N142,290.00 which claim was specifically denied by the appellants in paragraph 15 of their joint statement of defence earlier quoted in this judgment. Therefore quite contrary to the claim of the 1st respondent that the appellants had admitted its claim in their pleadings, what is contained therein is a denial of the claim. Undoubtedly, the statement of defence of the appellants in the circumstances of this case did not in anyway constitute a clear and unambiguous admission by the appellants of liability for the sum amount of N63,168.00 being claimed by the plaintiff in its motion for judgment to justify entering judgment against the appellants.
It is therefore the law that if an application is brought by a plaintiff under OR.30 R.3 of the Rules of the High Court for an order of judgment when there is no clear admission or where there is an admission which is not specific and categorical, such application cannot be granted because the circumstances or conditions which necessarily must be present in order to give the trial Judge power to exercise his discretion in favour of the applicant is non existent. See Mosheshe General Merchant Ltd. v. Nigerian Steel Products Ltd. (1987) 2 NWLR (Pt.55) 110 and National Bank of Nigeria Ltd. v. Guthrie (Nig.) Ltd. (1993) 3 NWLR (Pt.284) 643; (1994) 4 SCNJ 1 at 15. In other words in the absence of such circumstances the application is inchoate, ill-timed and therefore premature.
It is necessary to observe that R.3 of OR.30 of the Kano State High Court (Civil Procedure) Rules 1988 should not be read in isolation. It is certainly not difficult at all for any trial Judge to determine whether or not there had been an admission by a defendant in any given case to justify entering judgment for the plaintiff under R.3. This is because Rs. 1 & 2 of Or. 30 have already given the circumstances under which admissions could be made in the course of a trial. By R.I, an admission is made by a party by giving notice to that effect by his pleading or otherwise in writing that he admits the truth of the whole or any part of the case of the other party. An admission is also made under R.2 through leave of court obtained in a motion on notice by one party calling on the other party to admit any document or fact. In the present case, it is obvious that the alleged admission made by the appellants is contained in their statement of defence. However, it is quite plain that the appellants neither gave a notice in that statement of defence that they admitted the truth of the whole of the case of the 1st respondent nor gave notice admitting that part of the claim of the 1st respondent in respect of which judgment was entered by the learned trial Judge. Therefore it is not difficult to see that there was virtually no admission in terms of RULES 1 & 2 to warrant any judgment based on the admission under RULE 3 of the Rules.
This being an appeal against exercise of discretion by the lower court to enter judgment for the plaintiff for the part of the amount being claimed in the action, for the defendants now appellants to succeed in this appeal, they must show that the learned trial judge did not exercise his discretion in accordance with the law or that the discretion was not exercised judicially and judiciously. See Efetiroroje v. Okpalefe II (1991) 5 NWLR (Pt.193) 517 at 537. In the absence of a clear and unambiguous admission in the appellants’ statement of defence, coupled with the absence of specific finding by the learned trial judge that there was in fact admission by the appellants, the circumstances were clearly not ripe for the learned trial judge to have exercised his discretion under ORDER 30 RULE 3 of the Rules in favour of the 1st respondent. Therefore his discretion in this respect cannot be said to have been exercised in accordance with the law or that the discretion was exercised judicially and judiciously. Indeed this was a clear case of wrongful exercise of discretion to justify allowing the appeal. Accordingly the appeal is hereby allowed. The judgment of the lower court of 27/4/92 is hereby set aside. The case is remitted to the trial court for the hearing of the entire claims of the 1st respondent on the merit by another judge.
The appellants are entitled to costs assessed at N1,500.00 (One thousand, five hundred naira).
Other Citations: (1997)LCN/0273(CA)
