FBN LTD v. STALLIONAIRE (NIG) LTD & ANOR (2022)

FBN LTD v. STALLIONAIRE (NIG) LTD & ANOR

(2022)LCN/16561(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/A/873/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

FIRST BANK OF NIGERIA LIMITED APPELANT(S)

And

1. STALLIONAIRE NIGERIA LIMITED 2. ACCOUNTANT-GENERAL OF THE FEDERATION RESPONDENT(S)

RATIO:

A PARTY IS ENTITLED TO JUDGMENT ON ADMISSION MADE IN THE ADVERSE PARTY’S PLEADINGS WHERE SUCH ADMISSION IS CLEAR

The facts on which this appeal is predicated are simple and straightforward. They are not convoluted. Indeed, the disceptation falls within narrow confines since the law seems settled that a party is entitled to judgment on admission made in the adverse party’s pleadings where such admission is clear, unequivocal and unambiguous. See NATIONAL BANK LTD vs. GUTHRIE (supra) and ANASON FARMS LTD vs. NAL MERCHANT BANK (1994) 3 NWLR (PT 331) 241 at 251-252. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ALL JUDICIAL DISCRETION MUST BE EXERCISED JUDICIALLY AND JUDICIOUSLY

Order 28 Rule 3 (1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004, which was the regnant rules at the time of the proceedings before the lower Court stipulates as follows:
“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 upon those admissions as 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, as it thinks just.”
It is effulgent that the above provision is not automatic. It gives the Court discretion in an application for judgment on admission. The discretion, like all judicial discretions must be exercised judicially and judiciously. It is a discretion which is to be exercised with great caution. See ANASON FARMS LTD vs. NAL MERCHANT BANK (supra) at 251 and IBACHEM LTD vs. VISA INVESTMENT & SECURITIES LTD (2009) LPELR (4273) 1 at 16-23. The lower Court declined to exercise discretion in favour of the Appellant, thus necessitating this appeal. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE PLEADINGS MUST BE CONSIDERED AS A WHOLE AND NOT EACH PARAGRAPH IN ISOLATION

See AZUBUOGU vs. ORANEZI(2017) LPELR (supra) at 19-20, FADLALLAH vs. AREWA TEXTILES LTD (1997) LPELR (1225) 1 at 25 and UMA vs. KOFANA SECURITIES AND INVESTMENT LTD (2021) LPELR (55197) 1 at 46-47.
In SPDC vs. PESSU (2014) LPELR (23325) 1 at 67-68, Ogakwu, JCA stated the legal position in the following words:
“It is settled law that before a fact can be taken to have been admitted on the pleadings, as arrived at by the lower Court relative to paragraph 5 (d) of the Amended Statement of Defence, the pleadings must be considered as a whole and not each paragraph in isolation.

The hornbook principle of law is that before a Court decides whether or not there is an admission in the pleadings, it must consider the entire pleadings as a whole. See TITILOYE vs. OLUPO (1991) 7 NWLR (PT 295) 519, UGOCHUKWU vs. CO-OPERATIVE & COMMERCE BANK LTD (1996) 6 NWLR (PT 486) 524 and OKOYE vs. NWANKWO (2014) LPELR (23172) 1 at 20-21. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

A JUDICIAL DISCRETION IS BASED UPON FACTS AND CIRCUMSTANCES PRESENTED TO THE COURT FROM WHICH IT MUST DRAW A CONCLUSION

THE EXERCISE OF DISCRETION AT NISI PRIUS MAY BE REVIEWED ON APPEAL

Undoubtedly, the exercise of discretion at nisi prius may be reviewed on appeal; but an appellate Court will not interfere unless it is shown that such discretion was not exercised judicially and judiciously, id est, if the exercise was mala fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was inconsistent with the ends of justice. See IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 23, WAZIRI vs. GUMEL(supra) or (2012) 9 NWLR (PT 1304) 184 at 209, NZEKWE vs. ANAEKWENEGBU (2019) LPELR (49002) 1 at 22-23 and ADENIYI vs. TINA GEORGE INDUSTRIES LTD (2019) LPELR (48891) 1 at 27-29.
In the diacritical circumstances of this matter, the decision of the lower Court dismissing the Appellant’s application is the correct decision. It is just and equitable. The exercise of discretion was discretiolegalisestscire per legem quid sit justum (a discretion to do what is just through the law): FAGBENRO vs. OROGUN (supra). The discretion having been judicially and judiciously exercised, this Court cannot interfere even if it would have exercised the discretion differently. See BAKARE vs. ACB LTD (1986) LPELR (708) 1 at 26, BRAITHWAITE vs. DALHATU (2016) LPELR (40301) 1 at 24-25 and ALIOKE vs. OYE (2018) LPELR (45153) 1 at 19-20. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

THE LAW IS CLEAR THAT PARTIES ARE BOUND BY THEIR PLEADINGS

In simple terms, our law is clear that parties are bound by their pleadings. A fact which is admitted by the Defendant in his pleadings need not be proved by the plaintiff but should be regarded as established at the trial. See Oladejo Adewuyi Ajuwon v. Fadele Akanni & Ors (1993) LPELR-311(SC), Per Iguh, JSC. . STEPHEN JONAH ADAH, J.C.A

THE WHOLE PLEADING MUST BE SCRUTINIZED BEFORE A COURT CAN BE CERTAIN ABOUT AN ADMISSION IN ANY PLEADING

The law stipulates that before a Court decides whether or not there is an admission or reply to a suit in respect of an averment in a statement of claim, it must consider the entire pleadings of the parties as a whole. Admission in pleadings are not taken on a single paragraph but holistically. So in Titiloye v. Olupo (1991) 7 NWLR (Pt. 205) 519, the Supreme Court held that to be able to decide whether there was an admission in the pleadings of the respondents which could have entitled the appellants to the judgment of the Court, the respondents’ pleadings must be looked at as a whole and not just to consider each paragraph in isolation.
It is therefore, in line with the established principles of our law that before a Court can be certain about an admission in any pleading, the whole pleading must be scrutinized. STEPHEN JONAH ADAH, J.C.A

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The provenance of this appeal is in the banker/customer relationship between the Appellant and the 1st Respondent. The 1st Respondent was the Plaintiff in an action commenced before the High Court of the Federal Capital Territory, Abuja in SUIT NO. FCT/HC/CV/2668/2016: STALLIONAIRE NIGERIA LIMITED vs. FIRST BANK OF NIGERIA LIMITED & ANOR. The 1st Respondent claimed various reliefs for the alleged breach by the Appellant of their banker/customer relationship.

Pleadings were filed and exchanged and the Appellant, contending that the 1st Respondent had admitted in its pleadings that it was owing the Appellant money, filed an application for an order entering final judgment against the 1st Respondent for the amount admitted. In the said application which was filed on 30th January, 2017, the Appellant prayed for the following orders:
“(i) an order entering final judgment on admission against the Plaintiff/Defendant to the counter-claim/Respondent (the ‘Defendant to the Counterclaim’) in the sum of Nine Hundred and Nine Million Naira (N909,000,000) being the sum admitted by the Defendant to the counter-claim to be outstanding and due to the counter-claimant on the credit facilities totalling One Hundred Million United States Dollars (US$100,000,000) granted to the Defendant to the counter-claim by the counter-claimant for the importation and local purchase of petroleum products;
(ii) interest on the admitted sum of Nine Hundred and Nine Million Naira (N909,000,000) at the rate of twenty-two percent (22%) per annum from September 26, 2016 until judgment in respect of the instant motion on notice is delivered;
(iii) interest on the admitted sum of Nine Hundred and Nine Million Naira (N909,000,000) at the rate of ten percent (10%) per annum from the date of entry of judgment in respect of the instant motion on notice until the judgment sum is liquidated; and
(iv) for such further order(s) as the Honourable Court may deem fit to make in the circumstance.”

The 1st Respondent filed its processes in opposition to the application. The lower Court after hearing the parties on the processes filed and exchanged in respect of the application, delivered a considered ruling dismissing the application. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same. The ruling of the lower Court which was delivered on 11th October, 2017 is at pages 94-100 of the records, while the Notice of Appeal which was filed on 23rd October, 2017 is at pages 101-106 of the records.

In prosecution of the appeal, the Records of Appeal was compiled and transmitted on 18th December, 2017. With the leave of Court, the Appellant further transmitted an Additional Record of Appeal on 23rd November, 2021. Briefs of argument were filed and exchanged between the Appellant and the 1st Respondent. The 2nd Respondent did not file any processes in respect of the appeal. At the hearing of the appeal, the learned counsel for the Appellant and the 1st Respondent urged the Court to uphold their respective submissions in the determination of the appeal.

In the Appellant’s brief which was filed on 22nd November, 2021, but deemed as properly filed on 2nd December, 2021, a sole issue was distilled for determination, as follows:
“Whether the trial Court was not wrong when, in the ruling, it dismissed the Appellant’s Motion on Notice dated January 30, 2017? (Distilled from Grounds 1, 2, 3, 4 and 5 of the Notice of Appeal)”

In its brief of argument which was filed on 13th December, 2021, the 1st Respondent equally formulated a sole issue for determination, namely:
“Whether the lower Court rightly dismissed the Appellant’s Motion dated 30th January, 2017 on grounds that the admission of N909 Million by the 1st Respondent’s pleading is not clear, straightforward and unequivocal and would lead to pre-judgment of substantive issues?”

In replication to the issues raised in the 1st Respondent’s brief, the Appellant filed a Reply Brief on 31st January, 2022 but deemed as properly filed on 8th February, 2022.

The respective sole issue nominated for determination interrogates whether the decision of the lower Court is correct. Since the said issues are the same two and tuppence, I will presently review the submissions of learned counsel and then resolve the appeal seamlessly.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that it is agreed on all sides that judgment can be entered for a sum of money admitted in the pleadings and so the lower Court was wrong to dismiss the Appellant’s motion. It was asserted that it was a wrong exercise of discretion for the lower Court to conclude that the application was misconceived and lacking in merit, after having found that the 1st Respondent admitted being indebted to the Appellant to the tune of N909 Million. It was further submitted that an appellate Court will not interfere when discretion is properly exercised, merely because it would have arrived at a different conclusion but that it would interfere when the discretion has not been exercised judicially and judiciously vide NJC vs. DAKWANG (2019) LPELR-46927 (SC). It was posited that under the rules of the lower Court, the Court cannot exercise discretion and dismiss an application for judgment on admission where there has been a clear and unequivocal admission. The case of INTERNATIONAL BANK PLC vs. NULGE, JALINGO LGC (2014) LPELR-24171 (CA) at 53 was relied upon. It was stated that by dismissing the application, the lower Court exercised its discretion wrongly such that this Court ought to interfere, set aside the ruling and grant the Appellant’s application.

It is the further contention of the Appellant that admission made in pleadings requires no further proof, thereby entitling the other party to judgment. The case of MOSHESHE GENERAL MERCHANT LTD vs. NIGERIA STEEL PRODUCTS LTD (1987) ALL NLR 13 was called in aid. It was maintained that the lower Court having found that the 1st Respondent made admission in its pleadings, ought to have entered judgment for the Appellant pursuant to Order 28 Rule 3 (1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004. It was opined that the lower Court was wrong, in the face of the clear and unequivocal admission, to decide to seek further evidence or make further enquiry in respect of the admissions. The cases of KAMALU vs. UMUNNA (1997) LPELR-1657 (SC) at 14, PIPC SECURITY LTD vs. VLACHOS (2007) LPELR-5150 (CA) at 20 and OBMIAMI BRICK & STONE (NIG) LTD vs. ACB LTD (1992) 3 NWLR (PT 229) 260 were referred to. It was stated that the lower Court reached a perverse decision when it held that the amount admitted by the 1st Respondent was to be settled from moneys in possession of the 2nd Respondent, which was not a party in the creditor/debtor relationship between the Appellant and the 1st Respondent. The case of EZEAFULUKWE vs. JOHN HOLT LTD (1996) LPELR-1196 (SC) was cited in support. It was asserted that the 1st Respondent has no monetary claim against the 2nd Respondent in the action and that a debtor cannot dictate to its creditor to recover its money from another third party vide REICHIE vs. NBCI (2016) LPELR-40051 (SC) and UBA PLC vs. JARGABA(2007) LPELR-3399 (SC). The Court was urged, on the authority of ATOLAGBE vs. SHORUN(1985) LPELR-592 (SC), to set aside the perverse decision of the lower Court.

Still in argument, the Appellant states that the 1st Respondent’s admission of indebtedness is clear and unequivocal to the extent that one of the reliefs claimed by the 1st Respondent is a declaration that it is only the sum of N909million that was outstanding on the transaction between the parties. It was asserted that the lower Court wrongly held that the consideration of the application would prejudge the substantive issues in the case as the issues that were raised in paragraphs 32-39 of the 1st Respondent’s Amended Statement of Claim on moneys belonging to it that were in the custody of the 2nd Respondent, had nothing to do with the motion for judgment on admission, especially when the Appellant had denied the averments in the said paragraphs 32-39 of the 1st Respondent’s Amended Statement of Claim.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent submits that the lower Court rightly dismissed the Appellant’s application on the grounds that the alleged admission is equivocal and that granting the application would amount to prejudging substantive issues. It was contended that an admission must be specific and categorical in order to entitle the adverse party to judgment. The case of NATIONAL BANK LTD vs. GUTHRIE (1993) 3 NWLR (PT. 284) 643 at 657 was relied upon. It was further submitted that the lower Court did not rely on the paragraphs of the Amended Statement of Claim that were isolated by the Appellant, but considered all the paragraphs of the Amended Statement of Claim and came to the right and just decision since the 1st Respondent subjected the admission of N909 Million to several factors involving the 2nd Respondent which was to pay the N909 Million from theN1.02 Billion that it was holding and which was the subject of the monetary relief claimed in paragraph 47 (e) of the Amended Statement of Claim. It was maintained that for a fact to ground an admission, the entire case must be considered in totality and not in isolated paragraphs. The case of STEEL BELL (NIG) LTD vs. NDIC (2015) 1 NWLR (PT 1441) 570 at 604-605, BAKAN vs. ARABO (2015) LPELR-40857 at 28 and AZUBUOGU vs. ORANEZI (2017) LPELR-42669 at 19-20 were referred to.

It was further contended that the issues of whether the obligations from the banker/customer relationship between the Appellant and the 1st Respondent can be borne by the 2nd Respondent, and whether the 1st Respondent can dictate to the Appellant where to recover the debt owed to it, are issues for trial based on the 1st Respondent’s pleadings. The said issues were said to be interwoven with the loan facility and the expected funds from the 2nd Respondent and were not to be predetermined before trial. It was stated that the judgment sought by the Appellant would substantially affect the reliefs claimed by the 1st Respondent as (c), (d) and (e) and therefore cannot be determined at the interlocutory stage vide GLOBE FISHING INDUSTRIES LTD vs. COKER (1990) 7 NWLR (PT 162) 265 at 281-282. It was asserted that an admission must cover all the elements of the cause of action. The cases of BLUNDELL vs. RIMMER (1971) 1 WLR 123 and RANKINE vs. GARTON SONS COMPANY LTD (1979) 2 ALL ER 1185 were cited in support.

The 1st Respondent further argues that the judgment which the Appellant sought to obtain by its application is executory, which by its nature is directed to a party to act in a particular way. The case of OKOYA vs. SANTILI (1990) 2 NWLR (PT 131) 172 at 196 was called in aid. It was opined that the 1st Respondent, having stated in its pleadings that the N909 Million was to be paid by the 2nd Respondent, the alleged admission as relied on by the Appellant does not reflect the pleaded legal position on who has the obligation to pay the money, thereby making the admission not to be valid in law. The case of ODUTOLA vs. PAPERSACK (NIG) LTD (2006) 18 NWLR (PT 1012) 470 at 494 was referred to. It was conclusively submitted that the lower Court rightly exercised discretion by dismissing the application and that the decision it reached is not perverse.

APPELLANT’S REPLY ON LAW
Replicando, the Appellant submits that the location of the money of the 1st Respondent is not relevant in the consideration of an application for judgment based on clear and unequivocal admission of indebtedness by the 1st Respondent. It was maintained that the admission in the 1st Respondent’s pleadings is clear, straightforward, unequivocal, unambiguous, direct and positive. The cases of KENLINK HOLDINGS LTD vs. R.E. INVEST. LTD (1997) 11 NWLR (PT 529) 438 and EIGBE vs. N.U.T. (2008) 5 NWLR (PT 1081) 604 were relied upon.

It was contended that admission in law may relate to only part of the claim vide OLUWALOGBON MOTORS vs. NDIC (2018) LPELR-45565 (CA) and ALI vs. NDIC (2014) LPELR-22422 (CA). It was posited that rather than not prejudging the issue, the lower Court descended into the arena and prejudged the substantive matter when it held that the admitted amount is alleged to be with the 2nd Respondent. It was maintained that the manner of execution of the judgment is not a factor to consider in an application for judgment on admission since the said admission is no longer an issue for trial and needs no further proof. The cases of COPYTECH DESIGN AND PRINT (NIG) LTD vs. FIRST BANK (2021) LPELR-53521 (CA) and SKYMIT MOTORS LTD vs. UBA PLC (2020) LPELR-52457 (SC) were called in aid.

RESOLUTION
The facts on which this appeal is predicated are simple and straightforward. They are not convoluted. Indeed, the disceptation falls within narrow confines since the law seems settled that a party is entitled to judgment on admission made in the adverse party’s pleadings where such admission is clear, unequivocal and unambiguous. See NATIONAL BANK LTD vs. GUTHRIE (supra) and ANASON FARMS LTD vs. NAL MERCHANT BANK (1994) 3 NWLR (PT 331) 241 at 251-252.

The paragraphs of the 1st Respondent’s Amended Statement of Claim on which the Appellant anchored its application for judgment on admission are paragraphs 18, 28 and 47 (b) thereof. The said paragraphs read:
“18. From the Plaintiff’s various statements of accounts, the Plaintiff paid over N16.8 Billion to the 1st Defendant leaving an outstanding balance of N909 Million. The Plaintiff shall contend that it has only an outstanding balance of N909 Million on the facilities with the 1st Defendant. The Plaintiff shall rely on the statements of account for its two accounts for the period January 2014 to October 2016, and puts the Bank on Notice to Produce the originals at trial.
28. The Plaintiff’s Board commissioned independent Auditors, MBSL and Paragon Links Limited to review its records with banks and duly advise it. Paragon Links submitted a report dated 10th September, 2016 to the Plaintiff’s Chairman. The report showed that the Plaintiff had paid over N16.8 Billion to FBN leaving an outstanding of N909 Million as against N8.6 Billion reported by the Bank in its statements. The Plaintiff shall contend that the Bank acted in breach of trust when it represented that an account that held N10.9 Billion in December 2015 and thereafter had an inflow of N4.8 Billion, would still close with N8.6 Billion in September 2016.
47(b) A DECLARATION that by a prudential management of the Plaintiff’s accounts without the negligence and absence of good faith and mismanagement that characterized it, the Plaintiff’s outstanding debit balance as at 30th September 2016 was N909 Million.”
(See pages 7-8, 9-10 and 13 of the Additional Records of Appeal)By all odds, read in isolation as the Appellant has done, the said paragraphs disclose an admission of the sum of N909million as outstanding on the facilities granted to the 1st Respondent by the Appellant. But then, the settled state of the law is that in construing pleadings, the averments should be considered as a whole in order to gather the collective import of the pleaded facts. The pleadings are considered in their totality and not in watertight compartments. The paragraphs of the pleadings are considered as a whole and not each paragraph in isolation. See AZUBUOGU vs. ORANEZI(2017) LPELR (supra) at 19-20, FADLALLAH vs. AREWA TEXTILES LTD (1997) LPELR (1225) 1 at 25 and UMA vs. KOFANA SECURITIES AND INVESTMENT LTD (2021) LPELR (55197) 1 at 46-47.
In SPDC vs. PESSU (2014) LPELR (23325) 1 at 67-68, Ogakwu, JCA stated the legal position in the following words:
“It is settled law that before a fact can be taken to have been admitted on the pleadings, as arrived at by the lower Court relative to paragraph 5 (d) of the Amended Statement of Defence, the pleadings must be considered as a whole and not each paragraph in isolation.

See TITILOYE vs. OLUPO (1991) 7 NWLR (PT 205) 519 at 532F-G & 543D, UGOCHUKWU vs. CO-OPERATIV E & COMMERCE BANK LTD (1996) 6 NWLR (PT 456) 524 at 537 and UDO vs. CROSS RIVER STATE NEWSPAPER CORPORATION (2001) 22 WRN 53 at 88. In NIGERIA BOTTLING COMPANY PLC vs. OBOH (2000) 9 WRN 114 at 125, Muhammad JCA stated:
‘…for a formal admission in a civil suit such as the one in hand to be acted upon positively by a Court, the Court is duty bound to consider the totality of the pleadings of the party said to have made the admission. The law does not allow, in such circumstance, the fragmentation of paragraphs. No paragraph shall be considered in isolation but must be read in conjunction with the other paragraphs to enable the issues joined on the pleadings to be properly ascertained.’”

From the position taken by the Appellant, it is limpid that the Appellant hankers after judgment on admission based on an isolated construction of the aforesaid paragraphs 18, 28 and 47(b) of the Amended Statement of Claim. An integral construction makes it clear beyond peradventure that the collective import of the facts pleaded in the Amended Statement of Claim is that the 1st Respondent has repaid over N16.8billion of the facility to the Appellant, leaving a balance of N909million, which amount is readily available in the funds with the 2nd Respondent and that it is the said funds with the 2nd Respondent that is to be applied for the full and final satisfaction of all obligations owed the Appellant. Paragraphs 39 and 46 of the Amended Statement of Claim are apposite. It is therein averred:
“39. The Plaintiff shall cont. end that the N1,020,451,733.22 with the 2nd Defendant which can easily be freed to flow into the account with the Bank’s intervention with its sister commercial bank, is more than sufficient to offset the sum of N909 Million outstanding on the Plaintiff’s accounts”.
46. The Plaintiff shall further contend that the SDN valued at N1,020,451,733.22 from Batch P/14 financed by the 1st Defendant, now temporarily locked down with the 2nd Defendant by a wrongful adverse claim from another commercial bank is the fund to be applied for full and final satisfaction of all obligations owed the Bank on the subject-matter account, and the Plaintiff is entitled to have the AGF process the SDN for payment to the Bank when all legal issues thereon are resolved”.
(See pages 11 and 12 of the Additional Records of Appeal)

It is premised on the facts pleaded that the Appellant is to be paid the outstanding N909million from the 1st Respondent’s N1.02billion with the 2nd Respondent that the 1st Respondent claimed the following relief in paragraph 47 (e) of the Amended Statement of Claim:
“(e) MANDATORY INJUNCTION directing the 2nd Defendant, whether by itself, its agents, assigns or successors to pay into a designated account with the 1st Defendant, the SDN valued at N1,020,451,733.22 processed for payment as Batch P/14, being funds lawfully belonging to the 1st Defendant upon the loan granted by the 1st Defendant to the Plaintiff.”
(See page 13 of the Additional Record of Appeal)

The matter is yet to be tried so the lower Court is yet to make a pronouncement as it relates to the relief claimed against the 2nd Respondent reproduced above. The lower Court was consequently spot on when it held that entering judgment on admission at the stage of the proceedings would be prejudging the issue in the substantive trial. The reference by the lower Court in its ruling to the 1st Respondent’s contention that it is the 2nd Respondent that is to pay the outstanding N909 Million is neither a descent into the arena, nor prejudging the matter as contended by the Appellant. No. It is a mere reference by the lower Court to the pleaded facts; it is not a resolution and finding of fact on the said pleaded facts for it to amount to the issue having been decided.

The matter does not end there. It is imperative to state that in paragraphs 18, 28 and 47 (b) of the Amended Statement of Claim which the Appellant has isolated in its quest for judgment on admission, it has been pleaded that the 1st Respondent has repaid N16.8 Billion and that only the sum of N909 Million was outstanding. It is instructive that the Appellant denied the said paragraphs in paragraphs 2 and 39 of its Statement of Defence and counter-claim. While it is good to deny that the 1st Respondent has repaid the sum of N16.8 Billion, it is equally good to demand that the admitted N909 Million be entered as judgment in limine before trial. The Appellant by so doing is running with the hares and hunting with the hounds. The Appellant cannot, even after it has isolated the paragraphs of the pleadings, cherry pick the averments in the individual paragraphs. The Appellant cannot be heard to deny that N16.8 Billion had been repaid and that only N909 Million is outstanding, and then turn around to apply for judgment on admission. In the same vein, the Appellant cannot while denying the 1st Respondent’s entitlement to the relief claimed in paragraph 47 (b) of the Amended Statement of Claim, turn round to apply for judgment to be entered for it on the basis of admission in pleadings predicated on the said relief. Consistency is the rule of the game. A party is not allowed to approbate and reprobate on one issue. So the Appellant’s approbation and reprobation cannot be sanctioned by a Court. See COMPTROLLER-GENERAL OF CUSTOMS vs. GUSAU (2017) 18 NWLR (PT. 1598) 353, AJUWON vs. GOV OF OYO STATE (2021) LPELR (55339) 1 at 34-35 and ADEGBANKE vs. OJELABI (2021) LPELR (54992) 1 at 49.

There is more. Even though the Appellant has made a foofaraw with its contention that a debtor is not to direct its creditor on where to collect the money owed to it, it is instructive that the relief claimed in paragraph 47 (e) of the Amended Statement of Claim for the 2nd Respondent to pay the said sum of N1.02billion to the Appellant is conceded by the Appellant! See paragraph 2 of the Statement of Defence and counter-claim.

The hornbook principle of law is that before a Court decides whether or not there is an admission in the pleadings, it must consider the entire pleadings as a whole. See TITILOYE vs. OLUPO (1991) 7 NWLR (PT 295) 519, UGOCHUKWU vs. CO-OPERATIVE & COMMERCE BANK LTD (1996) 6 NWLR (PT 486) 524 and OKOYE vs. NWANKWO (2014) LPELR (23172) 1 at 20-21.

In order for an admission to be accorded credence by the law, the admission must be clear, unequivocal, positive and unambiguous. See NARINDEX TRUST LTD vs. NICMB LTD (2001) 1 SC (PT I) 25, OGUANUHU vs. CHIEGBOKA (2013) LPELR (19980) 1 at 23 and AIRTEL NETWORKS LTD vs. PLUS LTD (2020) LPELR (51383) 1 at 59. From an integral consideration of the Amended Statement of Claim as one flowing story and not compartmentalized as several isolated stories in the individual paragraphs, it is lucent that there is no unequivocal, clear, positive and unambiguous admission that would have entitled the Appellant to judgment.

I iterate that the power of the Court to enter judgment on admission pursuant to Order 28 Rule 3 (1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 is discretionary. In questions of exercise of discretion and the manner in which discretion is to be exercised, it is discretiolegalisestscire per legem quid sit justum – a discretion to do what is just through the law: FAGBENRO vs. OROGUN (1993) 3 NWLR (PT. 284) 662 at 679.

Judicial discretion is a term applied to the discretionary action of a Court or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to humour. It is a discretion exercised judicially and judiciously. A judicial discretion is based upon facts and circumstances presented to the Court from which it must draw a conclusion governed by law, justice and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. The exercise of discretion has to be judicial in the sense that it must not be capricious and must be for a reason connected with the case. It has to be judicious in the sense that it must be based on sound judgment marked by discretion, wisdom and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.
Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:
“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…
The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.
But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.”

The exercise of discretion by the lower Court in this matter was judicial. It was exercised within the framework of the rules of the lower Court. It was also judicious, as it was imbued with wisdom and prudence which met the justice of the case.

Undoubtedly, the exercise of discretion at nisi prius may be reviewed on appeal; but an appellate Court will not interfere unless it is shown that such discretion was not exercised judicially and judiciously, id est, if the exercise was mala fide, arbitrary, illegal either by the consideration of extraneous or irrelevant matters or failure to consider material issues, or otherwise that it was inconsistent with the ends of justice. See IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) LPELR (1476) 1 at 23, WAZIRI vs. GUMEL(supra) or (2012) 9 NWLR (PT 1304) 184 at 209, NZEKWE vs. ANAEKWENEGBU (2019) LPELR (49002) 1 at 22-23 and ADENIYI vs. TINA GEORGE INDUSTRIES LTD (2019) LPELR (48891) 1 at 27-29.
In the diacritical circumstances of this matter, the decision of the lower Court dismissing the Appellant’s application is the correct decision. It is just and equitable. The exercise of discretion was discretio legalisestscire per legem quid sit justum (a discretion to do what is just through the law): FAGBENRO vs. OROGUN (supra). The discretion having been judicially and judiciously exercised, this Court cannot interfere even if it would have exercised the discretion differently. See BAKARE vs. ACB LTD (1986) LPELR (708) 1 at 26, BRAITHWAITE vs. DALHATU (2016) LPELR (40301) 1 at 24-25 and ALIOKE vs. OYE(2018) LPELR (45153) 1 at 19-20.

In a summation, the concatenation and conflating of the foregoing is that the issue for determination must be resolved against the Appellant. The appeal is devoid of merit. It fails and it is hereby dismissed. The decision of the lower Court delivered on 11th October, 2017 is hereby affirmed. The sum of N100,000.00 is awarded in favour of the 1st Respondent as costs of this appeal against the Appellant.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered in Court by my learned brother, Ugochukwu Anthony Ogakwu, JCA.

It is for this and the fuller reasons adduced by my learned brother in the lead judgment that I too hold that the appeal lacks merit and is hereby dismissed by me. I abide by all the consequential orders as made in the lead judgment.

HAMMA AKAWU BARKA, J.C.A.: I was privileged to have read in draft the judgment just delivered by my learned brother Ugochukwu Anthony Ogakwu JCA with which I am in full agreement.

I adopt the judgment as mine thereby dismissing the appeal for lack of merit. I abide on orders made including that on costs.

Appearances:

Lawal Ijaodola, Esq. For Appellant(s)

C. O. P. Emeka, Esq., SAN, with him, C. A. Okafor, Esq. – for 1st Respondent
Yahaya Abubakar, Esq. – for 2nd Respondent. For Respondent(s)