Ibacehm (Ibafon Chemicals) Limited V. Visa Investment & Securities Ltd Anor (2009)

LawGlobal-Hub Lead Judgment Report

CLARA BATA OGUNBIYI, J.C.A.

The appeal at hand is against the Ruling of the High Court of Lagos State in dismissing the appellant’s motion for summary judgment, brought pursuant to order 29 rules 6 of the High Court of Lagos State Civil Procedure Rules 1994. (LSHCCPR)

The brief facts of this case were that by a motion on notice dated 7th November, 2001, the appellant as plaintiff in the court below brought an application seeking summary judgment by admission against the Respondent, who was the 1st defendant under order 29 rules 6 of the Lagos State High Court Civil Procedure Rules 1994. In moving the application, the appellant drew the court’s attention to certain averments in the statement of defence of the Respondent, more particularly paragraphs 2(f)-(i) of the said statement of defence contained at pages 5-7 of the Record of Appeal, as the basis for seeking judgment under the aforementioned Rule of Court.

The appellant therein, further placed much reliance on Exhibit A attached to its application, being a returned cheque given to it by the 2nd defendant in the court below, Spectrade Nigeria Limited, with whom it had a business relationship and claiming that the respondent now, who was the 1st defendant, was the drawer of the cheque and by the legal effect of being the drawer had impliedly admitted the claim of the appellant. The returned cheque was an African International Bank Ltd. cheque No.00003370 dated 20th September, 2001 for the sum of N19Million and reference at page 10 of the record of appeal.

Upon the conclusion of arguments by counsel, the court below held that for the appellant to succeed in an application brought under order 29 rule 6 supra there had to be an admission of fact in the statement of defence as envisaged under the rule but that the statement of defence of the respondent at hand denied the appellant’s claim. Further more that Exhibit A relied upon extensively in the argument of the appellant was not a clear, unambiguous and freely made admission necessary to enable the court grant judgment to the appellant under the said order 29 rules 6 as envisaged. The application was consequently, on the 27th March, 2002, dismissed and hence this appeal.

The original notice of appeal was filed on the 28th March, 2002 and an amended notice further filed on the 10th May, 2002 but deemed properly filed on the 17th March, 2003 by the order of this court and containing six grounds of appeal.

The appellant’s brief of argument was dated 7th April, 2003 and filed the same day, while that of the respondent dated 21st April, 2004 was also deemed properly filed and served on the said date. The appellant’s reply brief was further deemed properly filed and served on the 26th October, 2004.

On the 3rd November, 2008 when this appeal was called up for hearing, the learned appellant’s counsel Mr. E. R. Emukpoerno adopted and relied on their said briefs under reference supra and submitted that while issue no.1 is distilled from grounds 1,2,3,4, and 6 of the grounds of appeal, issue 2 was from ground 5. The learned counsel urged that the appeal be allowed therefore.

Mr. E. D. Onyeke on behalf of the respondent also adopted and relied on the respondent’s brief supra and re-iterated their lone issue formulated from all the grounds of appeal put together and impressed upon the court to dismiss the appeal with substantial and punitive costs.

On the one hand, the appellant’s two issues reproduced are as follows:-

(1) Whether there is an admission of the appellant’s claim by the Respondent in its statement of defence and or on the cheque to entitle the appellant to judgment under order 29 rules 6 of the High Court of Lagos State Civil Procedure Rules of 1994.

(2) Whether the lower court exercised its discretion under order 29 rules 6 judiciously and judicially in its determination of the appellant’s motion.

On the other, the respondent’s only lone issue is to the effect that:-

“In an application for judgment by admission under order 29 rules 6, what is/are the essential elements(s) necessary in a pleading to enable a court exercise its discretion judiciously and judicially in granting judgment to an applicant?”