Llyods Development Company Limited & Anor V. Bullion Trust & Securities Limited (2016)

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ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

By a Writ of Summons and Statement of Claim dated 13th September 1993, the Respondent herein as plaintiff, commenced an action against the Appellants as Defendants for the following reliefs:-
(a) The sum of N25,021,799.20 (Twenty-Five Million, Twenty One Thousand, Seven Hundred and Ninety Nine Naira, Twenty Kobo) representing the total amount outstanding against the 1st Defendant in respect of the short term credit facilities granted to the 1st Defendant by the Plaintiff at the 1st Defendants request which facilitates the 2nd Defendant giving personal undertaking to be jointly and severally liable to re-pay and which the 1st Defendant has failed, neglected and/or refused to pay and discharge, despite repeated demands.
(b) Continuing interest at the rate of 13% per month from the 27/7/93 until the entire amount outstanding is discharged.
(c) An order of specific performance of the Agreement between the plaintiff and the 1st Defendant to create a legal mortgage in favour of the plaintiff over all the piece of land- situate along Toyin Street, Ikeja, Lagos in

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the Ikeja Area of Lagos State of Nigeria containing an area of approximately 1.231 Hectares more particularly delineated and shown verged RED on Survey plan No. LS/D/LKJ 478 annexed to the Certificate of Occupancy No. 15/15/1988A.
(d) Further reliefs and the cost of this action.

Pleadings were filed and exchanged by the parties. Subsequently, the Respondent filed an application for summons for Judgment dated 11th January 1994 whereupon the Defendants/Appellants filed a counter-Affidavit in response. Upon hearing the application, the lower Court entered judgment in the Respondent’s favour on admission by the Appellants in the sum of Fifteen Million, Five Hundred thousand Naira only (N15,500,000.00). The Court thereupon set down the rest of the Respondent’s claim for trial.

Naturally aggrieved with the decision of the lower Court, the Appellants filed a Notice of Appeal dated 27th December, 2000 seeking that the judgment of the lower Court delivered on 8th December, 2000 be set aside.

In compliance with the Rules of this Court, Briefs of Argument were filed and exchanged by counsel for the respective parties. Appellants’ brief prepared by

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Yinka Muyiwa of Yinka Muyiwa Chambers is dated and filed 4th June, 2012 but deemed 13th April, 2016. No Reply Brief was filed. Meanwhile, three issues were formulated for determination of this appeal by the Appellant. They are:
1. Whether on the averments in the Statement of Defence and Counter-Claim the Appellants did not disclose such facts as may be deemed, sufficient to defend the action.
2. Whether the trial Judge was right in law when he based his decision solely on the Affidavit evidence of the Respondent, where however the Deponent failed to disclose the grounds of his belief and source of his information vis-a-vis Section 88 and 89 of Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990
3. Whether Exhibits M08 and M09 could constitute an admission of liability on the part of the Appellants and whether the said Exhibits are inadmissible in evidence as an admission of liability on the part of Appellants against their averments in their Statement of Defence and Counter-Claim.

The Respondent also caused a Brief of Argument to be filed on their behalf by Oyetola Oshobi, Esq.; Yakubu Galadima Esq., of Babalakin & Co.

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Though dated and filed on 3rd November, 2014, it was deemed properly filed on 13th April, 2016. Two issues were nominated by counsel for the determination of this appeal thus:
1. Whether, considering the facts of this case and the exhibits before the lower Court, the Respondent was entitled to judgment on admission.
2. Whether the learned trial judge’s decision was founded on admissible evidence.

As evident above, counsel to the respective parties nominated differing issues for the determination of this appeal. However, I must say that the two issues nominated by the Respondent are apt for the determination of this appeal as they comprehensively cover those raised by the Appellant. Therefore, the issues identified by the Respondent shall be-adopted anon, with issues one and three of the Appellant taken with the Respondent’s issue one while issue two of the respective parties shall be taken together.

Submitting on issue one, Appellants’ counsel contended that the facts of this case did not and cannot be said to fall under the undefended procedure rules because the Appellants did not put forward enough and sufficient material facts which