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.

2. 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:-