International Merchant Bank Plc V. Comrade Cycle Co. Ltd. & Anor (1998)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, J.C.A.

This is an interlocutory appeal against the decision of Kaduna State High Court sitting at Zaria dated 15/7/92.

The facts briefly are that, the appellant as financiers, granted facilities to the 1st respondent and the 2nd respondent guaranteed the repayment. Somewhere along the line, dispute arose. The appellant then commenced an action on the undefended list claiming the sum of N3,139,558.47 being the money due and owing to it from the respondents.

The respondents filed a notice of intention to defend. The trial court transferred the case to the general cause list.

The respondents filed a joint statement of defence in which they admitted owing the appellant the sum of N2,415, 133.96.

The appellant then filed an application for judgment upon the sum admitted. The respondents filed a counter-affidavit opposing the application for judgment, but at the same time argued that if the court was inclined to enter judgment for the amount said to be admitted, then, that amount of N2,415,133.96 would represent their entire liability to the appellant.

The trial court heard arguments on the application and at the end of the day refused the application for judgment.

The appellant was dissatisfied with the decision of the trial court and has appealed against it to this court.

Parties filed and exchanged briefs of argument.

In his brief of argument, the learned counsel for appellant formulated one issue for the determination of the appeal. It reads thus:-

“Whether there has been an admission of the appellant’s claim to the tune of N2, 415,133.96 and whether judgment ought to be entered for the sum admitted.”

Learned counsel for appellant submitted that there was a clear and unambiguous admission of indebtedness by the respondents to the tune of N2,415,133.96 and judgment ought to have been entered against them in favour of the appellant.

Learned counsel referred to paragraph 5 of the joint statement of defence pleaded by the respondents. It reads thus:

“The defendants deny liability of the amount of N3,139,558.47 being claimed by the plaintiff but aver that it is indebted to the plaintiff to the tune of N2,415,133.96 and not the amount stated by the plaintiff.”

Learned counsel maintained that, having been served with the statement of defence confirming this admission, the appellant immediately filed an application for judgment in the sum admitted. However the respondents still filed a counter affidavit, in which again they deposed in paragraph 7 as follows:-

“That in the event of the court entering judgment against the defendants in the sum of N2,415.133.96, that shall be the final amount to be paid by the defendant and that after paying the amount (N2,415,133.96) the defendant will in no way be indebted to the plaintiff.”

It is the contention of the learned counsel for appellant that the respondents’ pleadings in paragraph 5 above and paragraph 7 of the counter-affidavit amounted to a clear and unequivocal admission of indebtedness by the respondents in favour of the appellant from whatever perspective one looks at it.

The point was made even by the finding of the learned trial Judge himself when in a portion of his ruling said:-

“Even though there appears to have been an admission by the defendants as to the debt totaling N2, 415,133.96 as per paragraph 5 of the statement of defence, this only goes to show that apart from this amount the defendants do not admit any further amount in excess of.”

It is the contention of the learned counsel for appellant that what ought to follow after this admission was for the learned trial Judge to enter judgment for the sum admitted and then proceed with the trial of the remaining sum disputed.

Learned counsel referred to the provisions of Order 29 rule 3 of Kaduna State High Court (Civil Procedure) Rules 1987 (Now Cap. 68 Laws of Kaduna State of Nigeria 1991). Learned counsel also referred to the case of Mosheshe General Merchants Ltd. V. Nigerian Steel Productions Ltd. (1987) 2 NWLR (Pt.55) 110; (1987) All NLR 309 in support and contended further that matters admitted by the parties require no further proof, Solana V. Olusanya (1975) 6 SC 55.

Learned counsel finally submitted that, in the circumstances of this case, it was incumbent on the trial court to enter judgment for the sum admitted and then limit the trial to the balance in respect of which there is dispute. He relied on the authority of Mosheshe Supra. He urged the court to allow the appeal and enter judgment for the appellant for the sum of N2,415.133.96 admitted by the respondents.

For his part, the learned counsel for respondents adopted the same issue formulated by the appellant for the determination of the appeal but it is the view of the counsel that there was no clear admission made by the respondents for the sum of N2,415,133.96. Counsel accused the appellant for not reproducing the exact words used in paragraph 5 of the statement of defence. He gave his own version as follows:

“The defendants deny liability of the amount (N3,139,558.47 being claimed by the plaintiff and avers that it is indebted to the defendant to the tune of N2,415,133.96 and not the amount stated by the plaintiff.”

In the view of the counsel for respondents, this averment is vague and ambiguous.

The trial court was therefore right to reject it as an admission.

It is further the contention of the counsel that paragraph 7 of the counter affidavit did not contain any admission that all that it said was. “In the event of the court entering judgment against the defendant, it shall be the filial amount to be paid.

It is the contention of the counsel that the provisions of Order 29 rule 3 of the Kaduna State High Court (Civil Procedure) Rules do not apply to the situation in this case. He urged the court to dismiss the appeal.

It is the law that parties are bound by their pleadings. It is also the law that matters admitted by the parties require no further proof. See Solana v. Olusanya (1975) 6 S.C. 55.

It is very clear that by the averment in paragraph 5 of the respondents’ statement of defence, the respondents had clearly and unequivocally admitted owing the appellant the sum of N2,415, 133.96. At the expense of repetition, I shall reproduce this paragraph again. It reads:-

“5. The defendants deny liability of the amount (N3,139,558.47) being claimed by the plaintiff and avers that it is indebted to the defendant to the tune of N2,415,133.96 and not the amount stated by the plaintiff.” (Italics provided).

I cannot see what is ambiguous about this averment as contended by the counsel for respondents.

I also share the view of the learned counsel for appellant that having found that there was an admission of the specific sum as in this case; the proper thing for the trial court to do was to enter judgment in favour of the appellant for the sum admitted and then proceed to hear evidence on the remaining disputed amount.

It is not open to the respondents to say that, this is all I am prepared to admit, take it or leave it, as was revealed in the averment in paragraph 7 of the counter affidavit filed to oppose the application for judgment. It is my view that it is well within the right of the appellant to pursue the remaining amount not admitted so long as he has the necessary evidence to pursue it. The respondents will equally be in a position to bring out whatever evidence they have to show that what they initially admitted was all there was to it and no more.

The trial court clearly has the power to enter judgment in the sum admitted. The provision of Order 29 rule 3 of the Kaduna State High Court (Civil Procedure) Rules, Cap 68 Laws of Kaduna State 1991 is very clear. It provides as follows:-

Order 29 r. 3 –

“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 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.”

Also in the case of Mosheshe General Merchants Ltd v. Nigerian Steel Productions Ltd (1987) 2 NWLR (Pt.55) 110: (1987) All NLR 309, the Supreme Court in interpreting the provision or Order27 r. 3 of the English Rules 1965, which is in pari materia with the provision of Order 29 r. 3 supra had this to say:”Where as in the instant appeal the claim is for a definite sum allegedly 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 at its discretion may have 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.”

Further on at page 315, the Supreme Court added further clarification of the law as follows:-

“It is my view appropriate, at this stage to comment that it was the duty of the plaintiff’s counsel to point out to limit his statement of defence (sic) (claim) to the amount still in dispute and also it was the duty of the trial Judge to limit the remainder of the trial only to that amount still in contest. …. Indeed he should have entered judgment for the amount already admitted before continuing the trial.”

In the circumstances, I agree with the learned counsel for appellant that the trial court ought to have treated the averment in paragraph 5 of the statement of defence as something akin to a solemn declaration of indebtedness by the respondents and then proceed to enter judgment for the said sum.

It is my view that this appeal has merit and it is allowed. The decision of the trial court dismissing the application for judgment in the sum of N2,415, 133.96 is hereby set aside. In its place, judgment is hereby entered in favour of the appellant in the sum of N2,415, 133.96 which is the sum admitted by the respondents.

If the trial Judge is still available, the case is hereby remitted back to him to continue to hear the remaining amount in dispute. If he is not available, then the case is remitted back to the Chief Judge of Kaduna Slate to assign it to another Judge to deal with the remaining amount in issue.

N2000 costs is awarded in favour of the appellant for this appeal.

Other Citations: (1998)LCN/0352(CA)