UNITED BANK FOR AFRICA PLC v. IBACHEM (IBAFON CHEMICALS) LIMITED
(2013)LCN/6430(CA)
In The Court of Appeal of Nigeria
On Friday, the 19th day of July, 2013
CA/L/474/2003
JUSTICES
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
UNITED BANK FOR AFRICA PLC – Appellant(s)
AND
IBACHEM (IBAFON CHEMICALS) LIMITED – Respondent(s)
RATIO
WHETHER OR NOT A PARTY CAN AT ANY STAGE OF A CAUSE APPLY TO THE COYRT FOR A JUDGEMENT OR ORDER WITHOUT WAITING FOR THE DETERMINATION OF ANY OTHER QUESTION BETWEEN THE PARTIES
By Order 29 Rule 6, Lagos State High Court (Civil Procedure Rules) 1994: Any party may at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court or a judge in chambers for such judgment or order as upon such submissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court or judge in chambers may upon such application make such Order, or give such judgment, as the court or judge in chambers may think fit. PER NWEZE, J.C.A.
THE MAIN PURPOSE OF PLEADINGS
The law took this view since the main purpose of this kind of admission was to obviate the necessity of proof of such admitted facts since they would be accepted as established, Kenlik Holdings Ltd v R. E. Investment Ltd (1997) 11 NWLR (pt 529) 438; F. C. E. v Anyanwu (1997) 4 NWLR (pt 501) 533; Salu v Egeibon (1994) 6 NWLR (pt 348) 23; Edokpolo and Co. Ltd v Ohenren (1974) 7 NWLR (pt.385) 511. Put differently, the raison d’etre for the prescription that the pleadings should be read holistically is to ascertain whether it was the true intention of the party to admit the particular fact he was alleged to have admitted before arriving at the conclusion that there was, in fact, an admission, Mobil Producing Nig Unlitd v Asuah (2002) FWLR (pt 107) 1196; Egbunike v ACB Ltd [1995] 2 SCNJ 58; TITILOYE V Olupo [1991] 9-10 SCNJ 122, 146; Pan-Asian Co Ltd v NICON Ltd [1982] 9 SC 1, 48. PER NWEZE, J.C.A.
CHIMA CENTUS NWEZE, J.C.A. (Delivering the Leading Judgment): The respondent in this appeal [as plaintiff] took out this action against the appellant [as defendant] at the Lagos state High court, Lagos Judicial Division claiming the following reliefs:
(a) N51,510,000.00 being rent and other charges for the storage of Base oil from Friday 1998 to January 2000;
(b) The sum of N2,400,000.00 being the monthly storage charges from February until the Base oil is removed from the Plaintiffs storage tank;
(c) Interest on the aforesaid sums of the rate of 21% per annum with effect from February 1998 until judgment and thereafter at the rate of 6% per annum until payment.
Issues were joined in the settled pleadings. In particular, the plaintiff, in paragraphs 7-10 of the Statement of Claim, averred thus:
7 The defendant by its letter of 1st September 1998 reiterated the agreement reached aforesaid and agreed to pay to the plaintiff the negotiated sum of N12,360,000.00 being the rental and other charges negotiated and agreed by the parties at the aforesaid meeting for the period from February 1998 to October 1998, a period of 9 months.
8. The plaintiff by its letter of 2nd September 1998 equally confirmed the agreement reached with the defendant and requested for the immediate payment of the N12,360,000.00 for the 9 months period.
9. The plaintiff avers that the defendant faired or neglected to pay the aforesaid sum of N12,360,000.00 or any part of the Rentals that has continued to accrue at the rate prescribed in the Storages Agreement as aforesaid, namely N2,400,000.00 per month.
10. The plaintiff further avers that as at the 31st of January 2000 there is (sic) a sum of N51,510,000.00 outstanding as Rent charges at the rate of N2,400,000.00 per month which sum the defendant has failed or neglected to pay.
As noted above, issues were joined in the settled pleadings. In paragraphs 4-7 of the statement of Defence, the defendant pleaded thus in answer to the above averments:
4. The defendant avers that it had no business or contract whatsoever with the plaintiff except with Queens Oil Marketing company Limited who (sic) the defendant granted a loan facility of N76,260,000.00 to import Base oil which was warehoused in the plaintiff tank by Queens Oil Marketing Company Limited with Trina Limited as the warehousing agent.
5. The defendant further avers that it is not a party to the contract between the plaintiff and Queens Oil Marketing Company Limited.
6. The defendant admits paragraphs 9, 10, 11 and 12 of the statement of claim to the extent that the meeting with the plaintiff was to resolve the issue of Queens Oil Marketing Company Limited’s debut to the plaintiff but both parties were unable to resolve the matter as the defendant’s proposal was not accepted by the plaintiff.
7. The defendant further avers as follows:
(a) That the letter of 1st September, 1999 written by the Bank was a follow up to the meeting held with the plaintiff in August 1998 and the letter did not specify any amount and when payment will be made as there is no agreement as such.
(b) That the letter was an offer by the defendant which offer was not accepted by the plaintiff to effect the payment on behalf of the customer from the proceeds of sale of the stored oil.
(c) In response to the defendant’s letter of 1st September 1998 the plaintiff in its letter dated 2nd September 1998 gave a confirmation on the amount but on the condition that the Bank should effect immediate payment of money.
(d) The defendant in its letter of 2nd October 1998, responding to the plaintiffs letter of 2nd September 1998 expressed its intention to effect payment from proceeds of sale of the Base Oil in the Plaintiffs custody.
(g) The plaintiff state that the letter dated 11th September 1998 is not an admission by it to personally pay the storage charges but rather it was to effect payment from proceeds of the sale of the Base Oil stored in the plaintiffs tanks which the plaintiff in August 1998 prevented the bank from further setting on the ground of not accepting the Defendant’s terms of payment.
Subsequently, the plaintiff/respondent filed a motion for judgment in limine against the defendant claiming for the sum of N12,360,000.00 with 21% annum from 1st September 1998 until judgment and 6% interest per payment. The plaintiff/respondent claimed that in the letter dated 1st September 1998, exhibit KA1 (page 7 of the Record), the defendant/appellant admitted to owing the plaintiff/respondent the sum of N12,360,000.00. The defendant/appellant filed a Counter Affidavit denying the claim. The appellant contended that the purported letter of admission was a mere offer with which the conveying the counter-offer was exhibited, (see page 11 of the Record).
In its ruling of October 25, 2002, the court (hereinafter referred to as the lower court) entered judgment based on admission against the defendant/appellant.
Aggrieved by the said ruling of the lower court (coram Adeniji J), the defendant/appellant appealed to this court. It set out two issues for the determination of this appeal:
1. Whether the court below was not in error when it held that the defendant/appellant did not, expressly or by implication, deny that it owed the plaintiff/respondent the sum of N12,360,000.00?
2. Whether the court below was not in error in granting the application for judgment on admission under Order 29 Rule 6 of the High Court of Lagos State (Civil procedure) Rules and based on exhibit KA1 in the circumstance?
ARGUMENTS ON THE ISSUES
ISSUE ONE
Whether the court below was not in error when it held that the Defendant/Appellant did not expressly or by implication, deny that it owed the Plaintiff/Respondent the sum of N12,350,000.00?
When this appeal came up for hearing on May 21, 2013, appellant’s counsel, K. S. Sofola, adopted the brief filed on May 10, 2005, although deemed, properly, filed and served on May 4, 2009. In the said brief, he observed that, reading through the ruling of the lower court in this suit, it is clear that the only reason for entering judgment for the plaintiff in the ruling was that there was no denial of the debt in the pleadings. He referred to
He submitted that the lower court’s reason, to wit, “the defendant failed to deny that it owed the plaintiff either expressly or by implication” was erroneous. He noted that, from the defendant’s categorical denial of the plaintiffs claim, the issue for determination was whether exhibit “KA” was an admission of debt by the defendant. He explained that the lower court failed to address this issue at all. In his view, the lower court was, also, oblivious of the fact that it was only called upon to give judgment based on the admission in exhibit “KA1” and not on the admission in the Pleadings.
He, further, elucidated on the sequence of events: the plaintiff/respondent applied, as per its motion for judgment, based on admission as per exhibit “KA1,” that is, the defendant/appellant’s letter of September 1, 1998. The application was not based on admission in any pleadings. He maintained that it was, therefore, not within the contemplation of Order 29 Rule 6 under which the plaintiff/respondent brought its application. He noted that the court cannot suo motu decide from the said plaintiff/respondent’s application and award judgment on admission based on the pleadings without any trial or evidence whatsoever to prove such a claim and totally abandon the letter purportedly amounting to or containing the admission of debt by the defendant/applicant, citing Abeje v Ajibola (2o02) FWLR (Pt 92) 1677, 1689; Adeleke v. Iyanda [2001] 13 NWLR (pt.729) (sic).
He pointed out that the lower court did not, in any wily, refer to the specific document or the pleadings that it relied on or regarded as an admission in reaching the said decision. He submitted that there was ample evidence of denial of the debt alleged to be admitted by defend ant/appellant at the lower court. He explained that the plaintiff made its case on the point in its paragraphs 5, 7 and 8 of the Statement of Claim. The defendant, while admitting that it wrote the letter of September 1, 1998, denied any admission thereby.
He noted that in paragraph 3 of the Statement of Defence (page 47 of the record), the defendant denied paragraphs 6 and 8 of the Statement of Claim. It claimed in paragraph 5 of the Statement of Defence that it was not a party to the contract from which the liability arose. In paragraphs 7(a) – 7(d) and 7(g), it explained the correspondent, pointing out that it offered to pay the storage charges from the proceeds of the sale of the Base Oil, a variation of which the plaintiffs letter of September 2, 1998 highlighted.
He observed that, as a matter of law, only the opportunity to sell the Base Oil constituted “consideration” for the arrangement between the parties to the suit. The lack of consensus ad idem was clear from the defendant’s letter of October 2, 1998. The defendant, in paragraph 6, at page 48 of the record (paragraph 9, actually), stated, emphatically, as follows:
6 The defendant denies paragraph 20 of the Statement of Claim and avers that it is not at any time a party to the agreement between the Plaintiff and Queens Oil Marketing Company Limited and that it is not owing the plaintiff any money.
(italics supplied)
He drew attention to the Counter Affidavit, which he observed, repeated the defendant’s position as set out in its pleadings, citing paragraphs 3,4(a)-4(d) and 4(g), (i) and 4(m), 6 and 7 of the defendant’s Counter Affidavit. He maintained that the above pleadings and averments in the Counter Affidavit qualified as evidence of non denial of claim by the plaintiff.
ISSUE 2
Whether the court below was not in error in granting the application for judgment on admission under Order 29 Rule 5 of the High Court of Lagos State (Civil Procedure) Rules and based on exhibit “KA1” in the circumstance?
He explained that the plaintiff/respondent’s application was brought under order 29 Rules 6 of the High Court of Lagos State (Civil Procedure) Rules. He noted that, under this rule, so much discretionary power was involved: a power which, like most others, had to be exercised judicially and judiciously. He canvassed the view that, for an admission to qualify as basis for entering judgment under the rule, it must, directly and unequivocally, touch upon or relate to the relief sought in the matter. As such, admissions which are merely peripheral or incidental to the relief sought in the matter cannot qualify as basis for entering judgment under the rule, Anason Farms Ltd v. NAL Merchant Bank (1994) 13 NWLR (Pt 331) 241, 251.
He contended that the condition required for the grant of application for judgment on admission under Order 29 Rule 6, High Court of Lagos (Civil procedure) Rules, as stated by the Supreme Court in the case of National Bank Nig Ltd v Guthrie Nig Ltd and Anor [1993] 3 NWLR (pt 284) 648, that should
warrant the grant of the application, was not met in this case. He referred to page 657 of Notional Bank v Guthrie (supra).
He submitted that there was no specific, categorical and certain admission in exhibit “KA1.” He took the view that it was nothing but a mere offer to which the plaintiff/respondent made a counter-offer and not an acceptance. He, further, pointed out that the defendant/applicant had established that there was no contract whatsoever between the plaintiff/respondent and itself. He noted that the agreement between the plaintiff/respondent and Queens Oil Marketing Company Limited was exhibited by the defend ant/appellant, citing page 13 of the record. He observed that the Lease Agreement was, specifically, between Ibachem Chemical Limited and Queens Oil Marketing Company Limited. The defendant/appellant was not privy to the contract at all.
He submitted that a contract affects only the parties to it and cannot be enforced by or against a person who is not a party thereto even if the contract was made for his benefit and purports to give him the right to sue and make him liable upon it, Alfortt Nig. Ltd v. A.G. Federation (1996) 19 NWLR (pt.475) 634, 655-656; Ilozor v. Ahmadu (2003) FWLR (Pt.163) (sic); Ekuma v. Silver Eagle Shipping and Agencies (1987) 4 NWLR (Pt.65) (sic). He explained that the plaintiff/respondent, deliberately, refused to join Queens Oil, the real debtor in this suit.
He pointed out that the defendant/appellant, in its counter Affidavit, paragraph 6, (page 10 of the record), stated that there was a link between the plaintiff/respondent and Queens Oil, hence the non-joinder of Queens Oil Marketing Company Limited. He noted that one of the exhibits attached to Further Affidavit of the plaintiff/respondent confirmed this fact that the plaintiff/respondent company is sister company of Queens Oil Marketing Company Limited. This is in paragraph 4 of the Queens Oil letter dated August 26, 1998, Page 38 of the record.
He, further, drew attention to the plaintiff/respondent’s letter of September 2, 1998, annexed to the defendant/appellant’s Counter Affidavit at the last paragraph therein, page 11 of the record, which stated that “[t]his agreement is only valid if full payment of N12,360,000.00 for the 9 months is immediate.” He pointed out that, in response to this letter, the defendant/appellant expressed the inability to meet with the condition of the plaintiff/respondent and stated in its letter of October 2, 1998, page 12 of the record. He pointed out that the above statement confirmed that the plaintiff/respondent did make a counter offer and the defendant/appellant refused or failed to accept same.
He contended that it was evident from exhibit “KA1” that it was a derivative of a meeting earlier held, the minutes of which were not before the court. He explained that the circumstances surrounding the offer to pay were not contained in the letter. He pointed out that the assertion of the defendant and the correspondence that followed, namely, the plaintiff’s letter of September 2, 1998, and the defendant’s letter of October 2, 1998 were material to the construction of the meaning of exhibit “KA1” by the court in determining if it was an admission, and what it admitted in the con of the suit. He maintained that it was clear, therefore, that the basis for the lower court’s decision was not part of the issue in contention as there was no conclusive, specific and clear admission whatsoever in the exhibit “KA1” or in the pleadings. Above all, there was no privity of contract between the parties.
He re-iterated his argument that exhibit “KA1” was not an admission by the defendant/appellant to, personally, pay the storage charges but rather it was to effect payment from proceeds of the sale of the Base oil stored in the plaintiff/respondent’s tanks which the plaintiff/respondent in August 1998 prevented the defendant/appellant from further selling on the ground of not accepting the defendant/appellant’s terms of payment. He observed that this fact was, expressly, deposed to in the defendant/appellant’s Counter Affidavit, citing paragraph a(a)-(m), pages 8 – 10 of the record.
Counsel canvassed the view that, for an admission to qualify as a basis for entering a judgment under order 29 Rule 6 of the High court of Lagos state (civil procedure) Rules, it must directly and unequivocally be founded upon or relate to the relief or reliefs sought in the matter and such an admission must be unambiguous, Anason Farms Ltd v NAL Merchant Bank (supra); National Bank Ltd v Geoffrey Nig Ltd (supra). He submitted that exhibit “KA1” was not a clear admission but a mere offer letter which the plaintiff/respondent refused. He took the view that the issue as to whether the defendant/appellant was liable at all in the suit could only be resolved during trial. In this instance, the lower court’s decision was an interlocutory decision.
He maintained that the ruling of the trial court was, obviously, tainted with a fundamental vice which is grave enough to warrant setting aside of the said judgment. He emphasized the point that the lower court did not it, anyway, make any pronouncement on exhibit “KA1.” According to him, it would amount to injustice to give judgment against the defendant/appellant where the real debtor, Queens Oil Marketing company Limited, was not joined. Above all, the debt which Queens Oil owed the defendant/appellant remained unpaid. Worse still, it was also established that Queens oil is a sister company to the plaintiff/respondent company. He urged the court to set aside the judgment of the lower court as it was based on wrong reason and the court also failed to follow the requirement of the law in giving judgment based on admission in limine. He entreated the court to remit the case to the High court for trial on the merit as that would be the just and equitable thing to do.
RESPONDENTS ARGUMENTS
On her part, C. N. Ndukwe, (Miss), counsel for the respondent, adopted the Amended brief filed on August 20, 2009, although deemed, properly, filed and served on December 1, 2010. In the said brief settled by Robert Emukpoeruo, the following issues were formulated for the determination of the appeal:
1. Whether the appellant’s letter dated September 1, 1998, is a clear and unambiguous admission of liability or agreement by the appellant to personally pay the respondent the sum of N12,360,000.00?
2 Whether the learned (sic) Judge was in error in entering judgment against the appellant in the sum of N12,360,000,00 on the basis of an admission contained in the appellant’s Statement of Defence and whether the judgment aforesaid was based solely on the admissions in the Statement of Defence?
3. The first issue for determination formulated in paragraph 4.1 above appears to cover the three Grounds of the Respondent’s Notice that issue will accordingly be adopted as the issue for determination arising from the Respondent’s Notice and argued together for convenience.
ISSUE 1
1. Whether the appellant’s letter dated September 1, 1998, is a clear and unambiguous admission of liability or agreement by the appellant to personally pay the respondent the sum of N12,360,000.00?
Counsel observed that the critical question to answer under this issue is whether the appellant’s letter of September 1, 1998 is a complete document which contains plain and unambiguous words admitting liability by the appellant to pay the respondent the sum of N12,360,000.00. She noted that if the document is complete and contains plain and unambiguous words, then it would be wrong to import extrinsic documents to vex its plain language, citing Union Bank Ltd v Nwaokolo [1995] 6 NWLR (pt 400) 127, 154-155; Ananson Farms Limited v NAL Merchant Bank Ltd (1994) 3 NWLR (pt.331) 240, 253. He reproduced the letter of September 1, 1998.
According to counsel, the key words in this letter, which made it clear that this document was a complete document needing no accompanying circumstance or document to explain its meaning and intent are “reiterate” occurring in the second line of the letter and the phrase “the conclusions reached” also occurring in line 2 of the letter. He noted that the plain, ordinary meaning of the word “reiterate” is to repeat or say something again, once or several times, citing page 1195, Cambridge International Dictionary of English.
In his view, the object, which this letter loudly proclaimed, was to repeat or restate in a written form, what the parties had earlier agreed on. He maintained that the phrase “conclusions reached” clearly showed that the parties had in fact reached an agreement and were no longer in the process of negotiation. He canvassed the view that the letter was a testament to the agreement earlier reached by the parties at the “constructive meeting.” He submitted that the contention of the appellant that the letter was a mere offer requiring acceptance was without any foundation and was totally untenable. He pointed out that the phrase, “It is agreed that the cost… is as itemized below”, occurring between lines 3-5 of the letter, clearly and unequivocally, set out in itemized format, the heads of agreement between the parties stating clearly the exact amount for each head and rounding off with the total sum of N12, 360, 000.00 payable by the appellant to the respondent. He noted that the letter ended with a request to the respondent to confirm that the matters itemized and quantified was as agreed between the parties.
He observed that the letter did not contain any caveat that the payment was to be made from the sale of the base oil since the appellant itself had, in any event, been selling the base oil without bothering to discharge the obligation to pay for its storage. He pointed out that the appellant was, simply, content to take the benefit whilst conveniently side stepping the obligation until the respondent stopped it from further selling the base oil.
He submitted that the letter did not brook any ambivalence either in its terms or in its meaning and resort to extrinsic materials, either oral or documentary, to whittle down its plain meaning and import, as canvassed by the appellant, was unwarranted. He, further, submitted that the letter was not an offer requiring an acceptance. According to counsel, it was a plan and an unequivocal testament of an antecedent agreement and it provided the clearest proof of part of the respondent’s claim against the appellant.
He pointed out that if the agreement between the parties was that the undertaken by the appellant to pay the respondent the sum of N12,360,000,00, as itemized in the letter, was to be conditional on the appellant selling the base oil or was to be derived from the proceeds of the base oil, the letter, which was an eloquent testament, would have stated this condition clearly before calling on the Respondent to “Kindly confirm this as agreed…” He maintained that payment of the N12,360,000.00 from the proceeds of the sale of the base oil was certainly not a condition for payment stated by the appellant in its aforesaid letter to the respondent.
He cited Union Bank of Nigeria Ltd v Benjamin Nwaokolo [1995] 6 NWLR (pt 400) 127, 144 and 146.
Counsel contended that it was very important to keep constantly in view the status of the appellant as the assignee of the base oil. He observed that as assignee, it [the appellant] had stepped into the shoes of its debtor/customer and taken over the base oil with the cost of its storage in the respondent’s tank. He contended that it was in its capacity as the assignee of the base oil, which it had taken over the sale of and was in fact selling the oil that it entered into negotiation with the respondent, which negotiation culminated in the agreement “reiterated” in the appellant’s letter of September 1, 1998, exhibit “KA1.” He noted that the appellant had benefited, enormously, from its sale of the base oil whilst it was still in the respondent’s tank. He canvassed the view that it should not be allowed to resile from the obligation to pay for the storage of the oil, which obligation it had expressly assumed and admitted in its letter of September 1, 1998 , N.B.N. Ltd v Savol W. A. Ltd (1991) 2 NWLR (pt 333) 435, 468.
He contended that from the contents of the appellant’s letter of September 1, 1998, the only thing that could be said to have been offered were:
Rental of 1,500MT tank @ N850,000/1,000 MT for 9 months- 11,475,000 Rental of pumping machine and flow meter @30,000 for 14 days – 420,000
Hire of hoses for 2 discharges 50,000
Labour of three days 15,000
Re-spraying of tank 400,000
Total 12,360,000
He drew attention to the fact that the appellant’s letter ended with the words
“Kindly confirm this (offer) as agreed to enable us effect payment.”
(Words in bracket supplied for illustrative purposes only)
He canvassed the view that the respondent accepted the aforesaid offer without any qualification whatsoever. He noted that it did not reject any of the sums stated in the alleged offer. It confirmed the accuracy of the figures. He contended that, to that extent, if the appellant’s letter of September 1, 1998, contained an offer then the offer was accepted by the respondent in its letter of September 2, 1998. He noted that for an acceptance to be valid, it must conform to the offer and must not add further conditions to the offer.
In his view, the question was whether the respondent in its letter of September 2, 1998, page 11 of the record, introduced a new or further condition to the appellant’s alleged offer contained in its letter of September 1, 1998. He noted the emphasis which the appellant placed on the clause “[t]his agreement is only valid if the full payment of N12,360, 000.00 for the nine months is immediate.” He, however, took the view that if that clause is juxtaposed with the entreaty:
“Kindly confirm this as agreed to enable us effect payment,” contained in the appellant’s alleged offer, it was clear that both parties were in fact saying the same thing.
In other words, even the appellant itself had offered to pay the full amount immediately insofar as it did not state in the letter that the money was to be paid at a later date or from the proceeds of sale of the base oil. He observed that the ordinary and literal meaning of “Kindly confirm this as agreed to enable us effect payment” could only be, “please confirm and then we pay.” In other words, these did not in substance differ from the request for immediate payment. He observed that, for over one month, the appellant did not react to the respondent’s letter of September 2, 1998. He pointed out that it was after one month, as shown in its letter of October 2, 1998, page 12 of the record, a letter which the respondent received on October 6, 1998, that it [the appellant] expressed its “inability” to make immediate payment and pleaded with the respondent to be allowed to make the payment from the proceeds of sale of the base oil. He canvassed the view that this letter was a statement of the means by which the appellant intended to discharge its indisputable liability to the respondent. It was, by no means, a denial or a repudiation of the liability to pay for those storage charges.
He pointed out that, in all of these correspondences, there was absolutely no controversy whatsoever as to the amount that was payable by the appellant to the respondent. In his view, the problem (of the appellant) related to the means of payment of an undoubted and indisputable debt of N12,350,000.00. He drew attention to the finding of the lower court on this point at page 75. He, further, contended that a harmonious reading of the three letters, pages 7, 11, and 12 of the record, would, unequivocally, show that the appellant’s liability to pay the respondent the sum of N12,360,000.00 was unconditional in the sense that the payment was not to be made at a later date or from the proceeds of the sale of the base oil. He observed that these issues – payment at a later date or from the proceeds of sale of the base oil. These issues, payment at a later date or from the proceeds of sale of the base oil – cropped up well over one month after the letter of 1st or 2nd September 1998.
He submitted that, in the light of the appellant’s status as an assignee of the base oil, an offer made by it to pay a lesser sum than the actual outstanding storage charges was an admission by it of, at least, the amount stated in the offer whether it is accepted or rejected. He noted that this so-called offer was being made by an assignee in respect of an existing debt of its assignor and relating to the subject matter of the assignment.
He pointed out that, having stepped into the shoes of its debtor/customer, as the assignee of the base oil, any offer it made for the payment of the outstanding storage charges, which it in fact negotiated downwards, was an admission. He explained that if A was indebted to B in the sum of say N20 and it offered to pay B N10, whether B accepted this offer or not, the offer to pay N10 was, at the least, an admission of the sum of N10 as a debt due from A to B, which the court can rely on to enter judgment under order 29 rule 6, Ananson Farms Ltd v NAL Merchant Bank Ltd (supra). He pointed out that the appellant, in paragraph 2 of its Statement of Defence, expressly, admitted paragraph 5 of the Statement of
Claim, the substance of which was that as assignee of the base, it assumed all the rights and liabilities in and over the base oil, paragraph VI and VII, page 3 of this Brief. He urged the court to resolve this issue against the Appellant and to affirm the decision of the lower court.
ISSUE 2
Whether the (sic) trial Judge was in error in entering Judgment against the appellant in the sum of N12,360,000.00 on the basis of an admission contained in the appellant’s Statement of Defence and whether the judgment aforesaid was based solely on the admissions in the Statement of Defence of the appellant?
Counsel drew attention to the concluding part of the decision of the lower court at page 80 of the record. He observed that the appellant’s complaint under this issue was that the lower court ought not to have relied on or and relied solely on its pleadings in arriving at its aforesaid decision. He noted that the reason for this, according to the appellant, was that the respondent’s application for judgment on admission was based solely on the letter of September 1, 1998 and not the pleadings. He observed that the appellant, further, contended that the issue of admission on the pleadings was raised suo motu by the lower court without giving the parties opportunity to be heard.
Counsel noted that the live issue before the lower court was whether the appellant had admitted its liability to pay the respondent a sum of N12,360,000.00. He pointed out that the lower court, in answering this question in the affirmative, first considered both the letter, exhibit “KA1”, attached to the application for summary judgment, and exhibit “A,” attached to the appellants Counter Affidavit, before proceeding to consider the pleadings of the parties. He drew attention to
He canvassed the view that it is, therefore, incorrect to argue that the lower court relied solely on the appellant’s pleading in entering judgment on admission. He noted that the lower court, from the above excerpt, relied on exhibit KA1 and exhibit A to come to the finding that a cause of action for judgment on admission was disclosed. He argued that, despite the form or manner of the judgment, the finding of an admission by the lower court below on the basis of the aforesaid letters could not be denied.
He contended that, since what the court below was called upon to decide was whether the appellant admitted liability to pay the respondent the sum of N12,360,000.00, the process or the manner by which the lower court arrived at that decision, if its conclusion was right, was immaterial. In his view, what the appellate court should be interested in is the conclusion reached by the court below:- N.I.I.A v. Ayanfalu (2007) 2 NWLR (pt.1018) 246, 265; Eberuhe v. Ukpakoro (1996) 7 NWLR (pt.460) 254; A.-G., Bendel State v. A.G., Federation [1982] 3 NCLR 1; Abaye v. Ofili (1986) 1 NWLR (pt.15) 134; Ukejianyo v. Uchendu (1950) 13 WACA 45. He, also, cited Hilary Farms Ltd v M/V “Mahtra” [2007] 14 NWLR (pt.1054) 210, 229.
He submitted that on the issue whether the appellant admitted liability to pay the respondent the sum of N12,360, 000.00, the court below came to a correct decision even on the pleadings of the parties and no miscarriage of justice whatsoever was occasioned to the appellant by a consideration of the pleadings.
He cited paragraphs 3, 4, 5, and 7 of the Statement of Claim where the respondent, as plaintiff, pleaded as follows:
(3) Sometime in November 1997, the defendant herein granted a credit facility to one Queens Oil & Marketing Company Limited (‘the importer’) to import and supply 3000MT Bright stock base oil for the use of ELF Oil Nigeria Limited.
(4) The plaintiff avers that the aforesaid Base oil were pledged by the importer to the defendant to secure the aforesaid credit facility and eventually about 2000 MT of the Base oil were stored in the plaintiffs V 200 Storage Tanks at its premises upon the terms and conditions contained in an agreement dated 20th day of March 1998 between the Plaintiff and the importer.
(5) The plaintiff avers that in consequence of the importer’s default the defendant exercised its rights under the memorandum of pledge took over the sale of the base oil aforesaid and became the assignee of the Base oil assuming alt the rights and liabilities of the importer in and over the Base oil.
(7) The defendant by its letter of 1st September 1998 reiterated the agreement reached aforesaid and agreed to pay to the plaintiff the negotiated sum of N12,360,000.00 being the rental and other charges negotiated and agreed by the parties at the aforesaid meeting for the period from February 1998 to October 1998, a period of 9 months.
(Italics supplied)
Counsel, then, turned to paragraph 2 of the Statement of Defence, [page 46 of the record], where the appellant pleaded as follows: “[t]he defendant admits paragraph 2, 4, 5, and 7 of the Statement of Claim,” (Italics supplied). He paraphrased paragraph 2 to demonstrate that the appellant admitted paragraphs 5 and 7 (supra).
He observed that it was thus common ground, an agreed fact, between the appellant and the respondent, that the appellant took over the sale of the base oil and became the assignee of the base oil stored in the respondent’s tank assuming all the right and liabilities attached to the base oil. He, further, noted that it was also common ground, an agreed fact that the appellant agreed to pay to the respondent the negotiated sum of N12,360,000.00. He noted that paragraph 2 of the appellant’s Statement of Defence was a most eloquent admission, in the clearest of terms, of the appellant’s liability to the respondent. He pointed out that this eloquent admission by the appellant was confirmed and reinforced by exhibit ‘KA1″, the appellant’s letter of September 1, 1998.
He canvassed the view that the decision of the lower court was, therefore, correct. In his view, whatever slip or mistake it may have made did not occasion any miscarriage of justice. He prayed in authorities on the view that it is not every error or slip that would result in the reversal of a decision. For such an error to have that effect it must have occasioned a miscarriage of justice, Abubakar v. B. O. & A.P. Ltd [2007] 18 NWLR (pt 1065) 319, 372-per Mukhtar, JSC (as she then was); Oyefolu v. Durosinmi [2001] 16 NWLR (pt.738) 1; Akpan v. Otong [1996] 10 NWLR (pt.476) 108; International Bank for West Africa Limited and Anor v Pavex International Company (Nigeria) Limited [2000] 7 NWLR (pt. 663) 105; A.G. Leventis (Nig) Plc v Akpu [2007] 17 NWLR (pt.1063) 416, 441-442; Onajobi v. Olanipekun [1985] 4 SC (pt.2) 156, 168; [1985] 4 NWLR (pt.2) 156; Osafile and Anor v. Odi and Anor (No.1) [1990] 3 NWLR (pt.137) 130; [1990] 5 SCNJ 118; Anyanwu v. Mbara (1992) 5 NWLR (pt.242) 386, 400; Odukwe v. Mrs. Ethel N. Ogunbiyi [1998] 8 NWLR (pt.561) 339, 351; [1998] 6 SCNJ 102, 113.
He submitted that the appellant’s complaint that the lower court raised the issue of admission of the debt on the pleadings suo motu without affording them an opportunity to be heard was answered by the fact that the court also relied on exhibits ‘KA1′ and “A” in coming to its decision. He maintained that no miscarriage of justice was occasioned on the appellant, particularly, in the light of paragraph 2 of its Statement of Defence. He cited Registered Trustees of AMORC v. Awoniyi (1994) 7 NWLR (pt 355) 154, 177. He, also, referred to Oshiomole v FGN (2007) 8 NWLR (pt.1035) 58, 74; Ajao v Ashiru (1973) NSCC 525; [1973] 11 SC 23.
Still on the question of miscarriage of justice, he pointed out that no miscarriage of justice was occasioned to the appellant since any argument no matter how brilliant could not have changed the eloquent and clear admission of its indebtedness to the respondent contained in paragraph 2 of the appellant’s Statement of Defence, Onoyom v. Egari (1999) 5 NWLR (Pt.603) 416, 424. He noted that even if the appellant had addressed the lower court on the issue of admission on their pleadings, the result would not have been different since the admission in paragraph 2 of their Statement of Defence constituted an unshakeable albatross.
Counsel, further, submitted that no new issue was raised suo motu by the lower court. He observed that the only issue before that court, and which it resolved against the appellant, was laid out under Order 29 rule 5 of the High Court of Lagos State. In his view, the Order, clearly, conferred on the lower court a lot of discretion whether to enter judgment “as the court or judge in chambers may think just.” He observed that, like all discretionary power, it must be exercised judiciously and judicially. He emphasized that the Order does not, in its terms, preclude the court from looking at the Statement of Defence in arriving at a decision on the existence of an admission on the pleadings or otherwise. He maintained that the pleadings are the threshold for the consideration and determination of the application.
He contended that the appellant’s complaint that the lower court ought not to have considered the pleadings because the application for judgment was based, exclusively, on the letter of September 1, 1998 was without factual or legal foundation. He explained that, in the first place, the application, pages 5-7 of the record, was not, by it terms, limited only to the letter of September 1, 1998. He observed that, whilst paragraph 3(a) referred to the said letter, paragraph 3(c) related to the Statement of Claim by paraphrasing paragraph 7 of the Statement of Claim which the appellant, expressly, admitted in paragraph 2 of its Statement of Defence. He pointed out that the depositions contained in the appellant’s Counter Affidavit filed in opposition to the respondent’s application, pages 8-10 of the record, were a rehash of the appellant’s Statement of Defence, pages 45-48 of the record.
He, further, contended that, in every interlocutory application, the pleadings of the parties are always relevant materials for the consideration of the court. He noted that the application must be determined in the light of the pleadings. In his view, if an application is outside the pleadings of the parties then the court lacks the juridical basis to entertain it, citing BULLEN and LEAKE and JOCOBS’ Precedents on Pleadings (Twelfth Edition) page 17.
He turned to Babatunde Adenuga and Ors v. IK. Odumeru and Ors [2001] 1 SC (pt.1) 72, 79. He referred to N.B.N. Ltd v Guthrie (Nig) Ltd [supra] at page 654. He canvassed the view that the appellant’s submission in paragraph 4.06 of the brief is thus unmeritorious and should be rejected on the ground that it is baseless and without any legal foundation to stand or, citing Ananson Farms Ltd v NAL Merchant Bank ltd [supra]. He drew attention to the express admission contained in paragraph 2 of the Statement of Defence. He explained that this paragraph admitted, inter alia, paragraph 7 of the Statement of Claim and did not deny either expressly or by necessary implication that it is an assignee of the base oil. According to him, the point of substance is that by paragraph 2 of the Statement of Defence, the appellant has expressly admitted that it would pay.
In his view, this explicit and lucid admission was sufficient to sustain or warrant judgment being entered against the appellant on its pleading since the paragraph encapsulated the very heart of the application before the court below. He contended that once the discretion under Order 29 Rule 6 had been exercised judiciously and judicially, then the appellate court cannot interfere with the exercise of the discretion even if it takes a different view of the matter. The discretion was that of the lower court and not that of the appellate court, Ananson Farms Ltd v NAI Merchant Bank ltd (supra); also, N.B. N. Ltd v. Guthrie (Nig.) Ltd (1993) 3 NWLR (pt.284) 643, 654.
He, also, cited Salu v Egeibon [1994] 6 NWLR (pt 348) 23, 41; 46-47. He submitted that the appellant has failed to show that the court below did not exercise its discretion judiciously and judicially in entering judgment on admission based on the pleadings and the letters exhibited before the lower court. He urged the court to dismiss the appeal.
APPELLANT’S REPLY
In the reply brief, the appellant responded to the two issues which the respondent formulated. In reply to the respondent’s issue one, counsel submitted that the letter dated September 1, 1998, cannot be regarded as a clear and unambiguous admission of liability by the appellant. He took the view that Ananson Farms v NAI Merchant Bank (supra) which the respondent referred to was not on all fours with this case. He noted that the admission letter relied upon Ananson Farm’s case was very clear. It stated thus in page 232 paragraph H: “However, we hereby acknowledge our indebtedness to NAL Merchant Bank in the sum of =N=97,334.16 amount is less =N=7,000.00 less than what you have indicated in your letter”
(Italics supplied).
He submitted that there was neither any admission nor an admission with such clarity as in the above referred case. He drew attention to the appellant’s letter of 1st September, 1998, which the respondent relied upon in its application for judgment based on admission.
He contended that there was no clear admission in this letter nor any admission at all and the issue of the appellant’s liability could only be determined at the trial and not in a summary judgment as in this instant case. He, further, submitted that this issue was not relevant in this matter as the lower court did not’ in any way, evaluate or consider the purported letter that was supposed to contain the admission. The judgment, in his view’ was based on a different ground entirely. He urged the court to set aside the ruling as it was fundamentally flawed and obviously defective.
He noted that the rule is clear: the judgment on admission could only be based on the said admission. He maintained that there was no admission whatsoever in the Statement of Defence, page 46 of the record. The judgment/ruling of the trial court was based on the pleadings. He submitted that the lower court was in serious error in basing its judgment on a non-existent admission in the pleadings and the only right thing to do in the circumstances is to set aside this judgment.
RESOLUTION OF THE ISSUE
As noted earlier, while the appellant formulated only two issues for the determination of this appeal, the respondents set out three issues for the resolution of the questions in this appeal. Upon a thorough perusal of the Grounds of appeal, we are satisfied that the appellant’s two grounds capture the gravamen of their grouse against the judgment on appeal. We shall, therefore, adopt these two grounds as the issues for the resolution in this appeal. After all, it is their appeal. Above all, we intend to consider the two issues together since they are, intricately, interwoven.
In our view, the real question that calls for determination in this appeal is a very narrow one. When pleadings had been filed and exchanged, the respondent herein [as plaintiff/applicant], by motion on notice dated May 31, 2000 implored the lower court, in limine, for an order entering final judgment against the defendant in the sum of N12,360,000 with interests at the rate of 27% per annum from September 1, 1998 until judgment and thereafter at the rate of 6% per annum until payment.
In the accompanying affidavit, it was averred that by a letter dated September 1, 1998, the defendant confirmed its agreement to pay the plaintiff the sum of N12,360,000 being storage and other charges due to the plaintiff for the storage of the Base oil which the defendant took over as pledgor. Exhibit “KA1” was attached to the affidavit. The said exhibit was dated Sept 1, 1998. It reads:
RE: QUEENS OIL MARKETING CO. LTD.
We would like to take this opportunity to thank you for the constructive meeting held on Friday 28 August, 1999 and to reiterate the conclusions reached.
It is agreed that the cost of storage and other ancillary services from February to October 1998 excluding N30,000 per day for loading going forward is as itemized below:
Rental of 1,500MT tank @ 880,000 1,000 MT for 9 months – 11,475,000
Rental of pumping machine and flow meter @ N30,000 for 14 days – 420,000
Hire of hoses for 2 discharges – 50,000
Labour of three days – 15,000
Respraying of – 400,000
Total – 12,360,000
Kindly ‘confirm’ this as agreed to enable us offer payment.
(sgd.)
A. O. AGBAJE
Assistant General Manager
Commercial Banking, Lagos
In the Counter Affidavit of the appellant [as defendant], it was averred, inter alia, that the appellant had no contract with the plaintiff [paragraph 3]. Paragraph 4 made elaborate depositions. The relevant depositions apropos this question may be summed up thus: exhibit “KA1” did not specify any amount nor when payment will be made [4 (a)]; the said exhibit was a mere offer to effect payment on behalf of the customer from the proceeds of sale of the stored oil. The plaintiff did not accept this exhibit [4 (b)]; the plaintiff responded to exhibit “KA1” through it letter of September 2 in which it gave confirmation of the amount but on the condition that the appellant should effect immediate payment of money [4(c)]; in response, the defendant wrote a letter of October 2, 1998. It expressed its intention to effect payment from the proceeds of sale of the Base oil in the plaintiffs custody [4 (d)].
In its ruling, the lower court, at page 10 of the judgment (page 82 of the record), held as follows:
A general traverse is not enough to controvert material and important averments in pleadings particularly where the claim is none of debt liquidated demand in money. As allegation of the Plaintiff that the Defendant owed it sum of N12,360,000.00 had not been denied expressly or by implication by the Defendant, the allegation must be deemed to be admitted and the plaintiff was not obliged to establish it by evidence.
I therefore enter judgment for the Plaintiff in the sum of N12,360,000.00 with interest at the rate of 21% per annum from 1st September, 1998 until judgment and thereafter at the rate of 6% per annum until final liquidation.
(Italics supplied)
Expectedly, counsel for the appellant oppugned the lower court’s view that the defendant/appellant failed to deny that it owed the plaintiff either expressly or by implication. According to him, the issue for determination was whether exhibit “KA1” was an admission of debt. In his view, the court failed to address this issue at all. He took the view that the court was called upon to give judgment based on admission in exhibit “KA1” and not in the pleadings. He canvassed the view that the application was not within the contemplation of Order 29 Rule 5 (supra).
By Order 29 Rule 6, Lagos State High Court (Civil Procedure Rules) 1994:
Any party may at any stage of a cause or matter, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court or a judge in chambers for such judgment or order as upon such submissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court or judge in chambers may upon such application make such Order, or give such judgment, as the court or judge in chambers may think fit.
In our view, exhibit “KA1” was a constitutive part of the pleadings in paragraph 7. In the said paragraph 7, it was averred thus:
(7) The defendant by its letter of 1st September 1998 reiterated the agreement reached aforesaid and agreed to pay to the plaintiff the negotiated sum of N12,360,000.00 being the rental and other charges negotiated and agreed by the parties at the aforesaid meeting for the period from February 1998 to October 1998, a period of 9 months.
Paragraph deposed that:
The plaintiff by its letter of September 2, 1998 equally confirmed the agreement reached with the defendant and requested for the immediate payment of the N12,360,000.00 for the 9 months period
In paragraph 2 of the Statement of Defence, the appellant pleaded thus “[t]he defendant admits paragraphs 2; 4; 5; and 7 of the Statement of Claim.” At page 75 of the record, the court found that:
In this case, exhibit ‘KAL’ is the letter of offer by the defendant to the plaintiff following the constructive meeting held on Friday 28 August, 1998 and to reiterate the conclusions reached by the parties on the cost of storage and other ancillary services from February to October 1998 excluding N30,000 per day for loading, which were itemized in the said letter totaling – N12,360,000.00 and in which defendant requested the plaintiff to confirm the agreement so that it could effect payment to the plaintiff.
By letter dated 2/9/98 – exhibit ‘A’ the plaintiff accepted the offer, as demanded. So a cause of action for debt is thereby disclosed for judgment on admission.
In other words, the court took the view that, by exhibit “KA1”, the plaintiff accepted the offer, as demanded. “So a cause of action for debt is thereby disclosed for judgment on admission,” page 75 of the record. With respect to the Lower Court, the matter would seem not to be as easy as that. By their letter, addressed to the appellant, the respondent, through the “AGM (Finance and Administration), concluded the letter of September 2, 1998 [page 11 of the record] thus: “[t]his agreement is only valid if the full payment of N12,360,000.00 for the 9 months is immediate.” The qualification “this agreement is only valid if the full payment…is made,” surely, constituted a counter offer, see, I. E. Sagay, Nigerian Law of Contract (Second Edition) (Ibadan: Spectrum Books Ltd, 2001) 22, citing Okubule and Anor v. Oyagbola and ors [1990] 4 NWLR (pt.147] 723.
By its letter of October 2, 1998, the appellant not only intimated the respondent of “our inability to effect payment now,” the letter did not mince words that “we intend to effect payment of cost of storage and other ancillary services from the proceeds of the sale of the Base oil currently in your custody,” page 12 of the record.
Appellant’s counsel contended that there was ample evidence of denial of the debt alleged admitted by the defendant/appellant. He cited paragraphs 6, 7 and 8 of the Statement of Claim. He referred to paragraph 3 of the Statement of Claim in which the said paragraphs 6 and 8 (supra) were denied. He made further references to paragraphs 5; 7 (a) -7 (d) and 7 (g) of the Statement of Defence.
In our view, there is considerable force in the appellant’s contention here. By expressly indicating that it would pay, not immediately as demanded in the respondent’s letter of September 2 (above), but in future and “from the proceeds of the sale of the Base oil currently in your custody,” we take the view that the lower court could not have been correct in its conclusion. It would appear that the lower court fell into the error of considering the above paragraph in isolation in arriving at its conclusion of the appellant’s admission of their indebtedness.
Under section 75 of the Evidence Act [then applicable to the proceedings], formal admissions were made in the pleadings. Facts so admitted needed no further proof, Owena Bank Nig Plc v Adedeji (2000) 1 WRN 10, 27.However, before a court could act on such admission, it was duty bound to consider the totality of the pleadings of the party said to have made it. In such a situation, the law did not brook the fragmentation of pleadings. As such, no paragraph could be considered in isolation.
All the paragraphs had to be read in conjunction to enable the court, properly, ascertain the issues joined in the pleadings, NBC v Oboh (2000) 9 WRN 114, 125. The law took this view since the main purpose of this kind of admission was to obviate the necessity of proof of such admitted facts since they would be accepted as established, Kenlik Holdings Ltd v R. E. Investment Ltd (1997) 11 NWLR (pt 529) 438; F. C. E. v Anyanwu (1997) 4 NWLR (pt 501) 533; Salu v Egeibon (1994) 6 NWLR (pt 348) 23; Edokpolo and Co. Ltd v Ohenren (1974) 7 NWLR (pt.385) 511. Put differently, the raison d’etre for the prescription that the pleadings should be read holistically is to ascertain whether it was the true intention of the party to admit the particular fact he was alleged to have admitted before arriving at the conclusion that there was, in fact, an admission, Mobil Producing Nig Unlitd v Asuah (2002) FWLR (pt 107) 1196; Egbunike v ACB Ltd [1995] 2 SCNJ 58; TITILOYE V Olupo [1991] 9-10 SCNJ 122, 146; Pan-Asian Co Ltd v NICON Ltd [1982] 9 SC 1, 48. The lower court failed to do this. This prompted its said finding on the appellant’s admission of indebtedness. We regret to say that we are not persuaded by this approach of the lower court. We resolve this issue in favour of the appellant.
Following our above finding on the respondent’s letter of September 2, 1998 and the implication of the response contained in the appellant’s letter of October 2, 1998, we have no hesitation in resolving issue the two issues in favour of the appellant. We endorse the submissions of the appellant’s counsel that the appellant failed to endorse or accept the counter offer in the said letter of the respondent dated September 2, 1998.
As shown above, in its said letter of October 2, 1998, the appellant registered its “inability to effect payment now.” It, emphatically, conveyed its intention to the respondent “to effect payment of cost of storage and other ancillary services from the proceeds of the sale of the Base oil currently in your custody.” Against this background, we agree with the submission of the appellant’s counsel that the 1998, we have no hesitation in resolving issue the two issues in favour of the appellant. We endorse the submissions of the appellant’s counsel that the appellant failed to endorse or accept the counter offer in the said letter of the respondent dated September 2, 1998.
As shown above, in its said letter of October 2, 1998, the appellant registered its “inability to effect payment now.” It, emphatically, conveyed its intention to the respondent “to effect payment of cost of storage and other ancillary services from the proceeds of the sale of the Base oil currently in your custody.” Against this background, we agree with the submission of the appellant’s counsel that the lower court erred in granting the application for judgment on admission under Order 29 Rule 6 (supra) based on exhibit “KA1.”
There was justification for this conclusion. In all, we find considerable merit in this appeal. We hereby enter an order allowing it. We, equally, enter an order setting aside the said ruling of the lower court (Coram Adeniji J). The Registrar of this court shall cause the case file to be remitted to the lower court for trial on the merit by another Judge of that court. Costs in favour of the appellant which we assess and fix at N30,000 in favour of the appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the judgment just delivered by my brother Chima Centus Nweze JCA, and I agree with his opinion and conclusions.
I abide by the consequential order made that the matter be remitted to the Lower Court for trial on the merit by another Judge of that Court, and also the order as to costs.
FATIMA OMORO AKINBAMI, J.C.A.: The Appellant was sued at the Lagos state, High court, Lagos, for the following reliefs:-
(a) N51,510,000.00 being rent and other charges for the storage of Base Oil from Friday 1998 to January 2000;
(b) The sum of N2,400,000.00 being the monthly storage charges from February until the Base Oil is removed from the Plaintiffs storage tank;
(c) Interest on the aforesaid sums of the rate of 21% per annum with effect from February 1998 until judgment and thereafter at the rate of 6% per annum until payment.
Issues were joined, and the plaintiff (now Appellant) filed a motion for judgment. The lower court in its Ruling of October 25, 2002 entered judgment based on admission against the Defendant/Appellant.
Dissatisfied Appellant has appealed against the said Ruling of the lower court [coram Adeniyi J], distilling two issues for determination.
I have had the privilege of reading in advance the judgment just delivered by my learned brother CHIMA CENTUS NWEZE, J.C.A. He has dealt extensively with all the issues raised by the parties. I agree with his reasoning and conclusions.
I also find merit in this appeal and enter an order allowing it. The Ruling of the lower court (coram Adeniyi J) is consequently set aside.
The case file is to be remitted to the lower Court for trial on the merit by another judge. I abide by the consequential orders made by my learned brother in favour of the Appellant.
Appearances
K. S. SofolaFor Appellant
AND
C. N. Ndukwe (Miss)For Respondent
