GUFFANTI NIGERIA PLC v. PIDRELLA AUSTALT VADUZ & ORS (2013)

GUFFANTI NIGERIA PLC v. PIDRELLA AUSTALT VADUZ & ORS

(2013)LCN/6622(CA)

In The Court of Appeal of Nigeria

On Monday, the 9th day of December, 2013

CA/L/145M/2001

RATIO

WHETHER A FACT IN DISPUTE ADMITTED IN PLEADINGS MAY BE DEEMED ESTABLISHED AND FORMS ONE OF THE AGREED FACTS

Where a Defendant admits a fact in dispute by his pleading, that fact is taken as established and forms one of the agreed facts in the case – BRITISH INDIA GENERAL INSURANCE CO. NIG. LTD v. THARWADS (1978) 3 S.C. 143. Decidedly, admissions need no further proof – HONIKA SANMILL v. HOFF (1994) 2 SCNJ 8 at 96-105.

Order 29 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 1994 has this to say

“Any party may at any stage of a cause or matter where admission of facts 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 admission 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, us the court or Judge in chambers may think just.” PER RITA NOSAKHARE PEMU, J.C.A

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

GUFFANTI NIGERIA PLC Appellant(s)

AND

PIDRELLA AUSTALT VADUZ

AND

1. ANTONIO GUFFANTI
(For himself and as heir of Engr. Felice Guffanti (Deceased))

2. CARLO MARIA GUFFANTI
(For himself and as heir of Mario Guffanti (Deceased)) Respondent(s)

RITA NOSAKHARE PEMU, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the Ruling of Hon. Justice Adeyinka of the High Court of Justice Lagos State, delivered on the 25th of May 2000 in Suit No ID/1320/1998.

In the Ruling, on an application for Judgment by admission dated 11/1/2000 by the 1st Respondent (as plaintiff at the lower court) he entered Judgment against the Appellant (Defendant at the court below) in favour of the 1st Respondent in the sum of N157,033,588.40k (One hundred and fifty seven million, thirty three thousand, five hundred and eighty-eight naira, forty kobo) only, being the sum admitted by the Appellant as money owed the 1st Respondent company in the Appellant’s Company Annual Reports and Accounts for the year ending 30/6/1994, with interest at 21% per annum, from the 30th of June 1994 till the date of the Judgment and thereafter at the rate of 6% per annum till liquidation.

The Entry on the Annual Report and Account of the Appellant Company in which the debt owed the 1st Respondent Company is reflected and allegedly admitted is at page 57 of the Record of Appeal.
The Appellant is dissatisfied with the Judgment and has consequently filed a Notice of Appeal on the 14th of July 2000 encapsulating five (5) Grounds of Appeal pages 73-78 of the Record of Appeal.

FACTS

The suit, the subject matter of this appeal was commenced by Writ of Summons dated 4th June 1998 – shown on pages 1-2 of the Record of Appeal instituted by Pidrella Austalt Vaduz as plaintiff (1st Respondent in the present appeal) and against Guffanti (Nigeria) plc (Appellant in the present appeal).
It is for the sum of USD8,336,278, being sum due and owing to the Plaintiff, or its naira equivalent, being the amount of goods supplied to the Defendant company as at May 1996 at its request, which it has persistently refused or neglected to pay; N2 million naira damages; interest at the rate of 21% per annum from May 1996 till Judgment, and thereafter 6% till liquidation of the debt; cost of N100,000.00.

After exchange of pleadings, the Plaintiff brought a motion for Judgment for an amount of over N157 million Naira, entered as debt due to the Plaintiff in the Defendant’s Annual Report and Account for the year 1994. At the lower court, it was alleged that the Defendant’s Annual Reports had been fraught with lie and fraudulent. That relevant facts had been kept away from the Auditors and that the accuracy of the Annual Reports and Accounts including those of 1993 and 1994 have been so seriously vitiated, as to render them unreliable for the purpose of the present suit. The 2nd and 3rd Respondents in this appeal, who were ordered to be joined as third parties, though served abroad with the process, never entered appearance in the case – page 109-115 of the Record of Appeal.
It is alleged that the 1st Respondent in its pleading, averred that the Appellant did not deny liability and had in fact admitted its liability as per its Annual Reports and Accounts for the year ended 1993 and 1994 as well as minutes of the meetings of the Appellant’s directors held on 6th of June 1990 at No. 411, Agege Motor Road, Mushin, Lagos.
The Appellant filed his Brief of Argument on the 6th of November, 2013 by a deeming order. The said Brief is settled by Professor A. B. Kasumu, SAN.

He distilled six (6) issues for determination which are:

(i) Whether the lower Court erred in law when instead of allowing the case to proceed to trial it upheld the plaintiff/Respondents’ Motion for Judgment in limine without in its Ruling to the Defendant/Respondent’s averment in its amended Statement of Defence that for years the Annual Reports and Accounts, including those for 1994 containing an entry of indebtedness to the Plaintiff/Respondent and relied upon in the Judgment as a conclusive admission, have never given a fair and truthful record of the Defendant/Appellant’s business and so their veracity has been so seriously vitiated as to render them lacking in credibility and for one in the present case.

(ii) Whether the lower Court erred in law when instead of allowing the case to proceed to trial it upheld the Plaintiff/Respondents’ Motion for Judgment in limine by holding that an entry of indebtedness to the Plaintiff/Respondent in the Defendant/Appellants 1994 Annual Report and Accounts is a conclusive proof of the admission of such indebtedness even though the materials before the court did not include all the ingredients necessary in raw to constitute an estoppels by admission under Section 151 of the Evidence Act.

(iii) Whether the lower court erred in law when, without having heard the case on its merits, it ruled on the Plaintiff/Respondent’s Motion for Judgment that the Defendant/Respondent has no right to resile from the admission because in the lower Court’s view, the claimed right was not based on ignorance of facts or erroneous view of the law, but on other circumstances not specified by the lower Court.

(iv) Whether the lower court erred in law when it based its Ruling partly on its view that the Plaintiff/Respondent has not been alleged to be party to the alleged irregular and unauthorized remittance of the Defendant/Appellant’s funds abroad whereas any absence of such involvement on the part of the Plaintiff/Respondent would not per se have negatived the alleged falsity nor enhanced the credibility of the 1994 Annual Report and Accounts containing the alleged admission.

(v) Whether the lower Court erred in law in not allowing the issue raised by the Motion for Judgment to proceed to trial despite the grave averments by the Appellant of the complicit relationship between the Guffanti family and the plaintiff/Respondents.

(vi) Whether the lower court erred in law when it held that the Defendant/Appellant’s express denial of indebtedness to the plaintiff/Respondent in the Amended Statement of Defence still amounted to a conclusive admission of such indebtedness.

The 1st Respondent filed its Brief of Argument on the 6th of November, 2013. It is settled by E. D. Onyeke Esq.

The 1st Respondent had proffered two (2) issues for determination.
They are:

(i) What is/are the relevant issues/facts to be considered by a Court in an application for Judgment by admission brought pursuant to order 29 Rule 6 of the High Court of Lagos (Civil procedure) Rules 1994?

(ii) Whether the lower Court ought to have considered the allegation of fraud leveled by the Appellant against its own directors and the effect of same if any, on the entry of indebtedness to the 1st Respondent in the Appellant’s Annual Report and Accounts for the year ending 30/6/1994, as a ground of refusing the 1st Respondent’s Application for Judgment brought under Order 29 Rule 6 of the High Court of Lagos (Civil Procedure) Rules 1994?

The 2nd and 3rd Respondents; filed their Brief of Argument on the 23rd of November 2012 but same was deemed filed on the 6th of November, 2013. It is settled by M. A. O. Okulaja Esq. SAN.
The 2nd and 3rd Respondents proffered two (2) issues for determination. They are:

(1) Whether the 1st Respondent had not satisfied the court below that the admission contained in Exhibit P1 entitled it to Judgment pursuant to the provisions of Order 29 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 1994.

(2) Whether the Court was entitled to take into consideration the allegation of fraud leveled by Appellants, against its own directors in determining the liability of the Appellant for the indebtedness of the Appellant to the 1st Respondent.

In their brief of argument, the 2nd and 3rd Respondents at page 2 made preliminary observation, that most of the issues raised in the five (5) Grounds of Appeal filed by the Appellant were not raised in the Court below and are consequently not considered by the Court below in its Ruling. That accordingly, the Appellant cannot possibly appeal against what has not been tendered or ruled upon by the Court below, citing NDIC v. SBN PLC (2003) 1 NWLR (Pt. 801) 311 CA.

With respect, I do not know whether this is a preliminary objection by the 2nd and 3rd Respondents. If it is, it should have been properly put before Court, and notify the Appellant according to the Rules of Court, by filing a Notice of preliminary objection and incorporate same in its brief of argument.

Order 10 Rule 1 of the Court of Appeal Rules 2011 has this to say

“A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objections and shall file such notice together with twenty copies thereof with the Registrar within the same time”

The term “most of the issues raised in the 5 Grounds of Appeal….” is vague, as those terms have not been specified. I shall therefore discountenance paragraph 3.00 of the 2nd and 3rd Respondents, brief and same is accordingly hereby discountenanced.

The Appellant had filed no reply brief to the Respondents, Brief of Argument.
On the 6th of November 2013, the parties adopted their respective Briefs of Argument.
While the Appellant urged court to allow the appeal, the Respondents urged Court to dismiss the appeal.

A cursory look at the issue for determination of the Appellant, it seems to me that it is prolix narrative and utterly argumentative. Decidedly, even in Grounds of Appeal, arguments and narration do not improve the Ground of Appeal, rather they become verbose, which verbosity tends to becloud the issue arising from the ground and render it complex – ASR CO. LTD. v. O.O. BIOSAH & CO. LTD (1997) 11 NWLR (Pt. 527), 145. I shall however attempt to glean from the, verbose issues what is relevant to this appeal. But counsel is advised to desist from proffering issues which are prolix, argumentative and utterly narrative, as same depicts bad drafting.

An issue for determination for the purposes of an appeal is the substantial question of law, or of fact or both, arising from the ground of appeal filed in the appeal. It is not the same as arguing the appeal.
An issue can be on a question of fact, yet a mere dispute about facts divorced from their legal consequences does not qualify as an issue for determination. An issue should not therefore be formulated in the abstract. Thus an issue for determination bring into clear focus and precision the main points involved in the appeal.

ISSUE ONE

The Appellant had referred this Court to page 66 of the Record of Appeal, where the lower court stated that counsel for the Defendant/Appellant had referred inter-aria, to paragraphs 12, 13, 14, 17, 18, 19, 20, 21, 22, 23 and 24 of the Amended statement of Defence.

With respect, there is no such statement at page 66 of the Record of Appeal neither is there anything in the last three sentences in the fifth paragraph at page 66 where counsel was recorded as having submitted that the 1995 Account was not approved, and that over the years, the Company’s Accounts had been untruthful.

He argues that if as averred, the 20% of Federal Government contracts sums officially permitted to be remitted abroad for meeting the Defendant/Appellants’ off-shore contract expenses, have never been used for that purpose, but diverted into the Guffanti family’s Company’s private Bank Account in Switzerland, which fact was not known until fortuitous circumstances brought the irregular remittances to the knowledge of the Nigerian Directors and shareholders in 1995, such clandestine irregular remittances would, in the ordinary course have been unknown to the Nigerian Directors and shareholders and the external Auditors.
That notwithstanding the previous approval of the Reports and Accounts by the Company and their external Auditors, all in ignorance of what had been happening, that factor alone would seriously vitiate the credibility of all the Annual Reports and Accounts, thus rendering them unreliable for the purpose of the present suit.
This is because, he submits, the Annual Reports and Accounts (Exhibit P1) cannot properly be said to constitute a binding admission against interest, merely because the Defendant/Appellant being a public Company, the public can apply for its documents if they are filed in the Corporate Affairs Commission, or because Exhibit P1 was not objected to as not coming from proper custody, or because no forgery of the Exhibit was alleged, or because it has not been specifically alleged to be a party to the fraudulent remittances.

He submits that all these circumstances would not negate averment that the irregular remittances abroad for years had been clandestinely effected and unknown to all the persons listed until circumstances brought everything to light in 1995. Nor would they negative the point that over the years all the Company’s Annual Reports and Account have been untruthful.
He submits that there were irregular foreign remittances by the Guffanti brothers that were never to the knowledge of the Nigerian Directors and shareholders. The relevant documents were only discussed in 1995 under lock and key in the office of the last Italian Managing Director after he left office unceremoniously. That none of the Appellant’s Annual Reports and Accounts for the year 1976 up to the one for the year ended 30th June 1995, later rejected at the Annual General Meeting, has ever reflected these irregular remittances abroad of funds belonging to the Appellant, and the rejection occurred when the remittances surfaced at the said meeting – referring to paragraphs 12, 14 and 15 of the Amended statement of Defence at pages 5-9 of the Record of Appeal.

He submits that, as a result of these circumstances, the credibility of the Appellant’s Annual Reports and Accounts for many years including 1993 and 1994 has been seriously impugned and are unreliable for the present suit – referring to paragraphs 21 and 24 of the Amended Statement of Defence at page 8 of the Record of Appeal.
He submits that the learned trial Judge had failed to see averments which were designed to explain these circumstances in which all Annual Reports and Accounts had come to be prepared and approved, are such that if proved at the time, would vitiate in no small measure, the credibility of these Reports and Accounts (including those of 1994) to an extent that it would warrant their contents not being retied on, as conclusive admission which should shut out the Appellant’s case in limine.
He submits that in the present case, the Appellant averred that the Annual Reports and Accounts of the Company have been so prepared as not to disclose over a period of many years that substantial amounts exceeding US$13 million had been remitted abroad, (with official approval for the meeting of the Company’s off-shore expenses in respect of Federal Government contracts) but in fact diverted into family company accounts of the Italian Founders and Directors of the Company. He submits that Annual Reports and Accounts so prepared can properly be regarded as bogus and unreliable Annual Reports and Accounts. Citing RE COUNTY MARINE INSURANCE COMPANY, RANCES CASE (1870) 6 CH. App. 104 at 118-119 where a Balance Sheet which failed to take account of matters for determining whether or not a profit has been made to warrant declaration of a dividend, was held to be fraudulent and delusive. He submits that the annual Reports and Accounts in the present case lack accuracy and not credit-worthy.
He submits that in RE LONDON AND CENTRAL BANK (No. 2) (1895) 3 CH. 673, LINDLEY L.J observed that the balance sheet and profit and loss account were true and correct in the sense that they were in accordance with the books of the company, they were nevertheless entirely misleading and misrepresented the real position of the company by not laying before the shareholders information which was herd to be material.

He submits that the learned trial Judge erred in law, when he held that the entry of indebtedness to the Respondent in the Appellant’s 1994 Annual Report and Account is a conclusive admission by the Defendant/Appellant against interest.
Urges court to resolve Issue No 1. in favour of the Appellant.
I shall take Issues No 1, 2 and 3 together as, in my view they dwell on the same subject matter.

Order 29 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 1994 has this to say

The 1st Respondent in his brief of argument had argued that he had brought an application for Judgment dated 11th January 2000. That in consideration of this, the learned trial Judge referred to Exhibit P1 attached to the application which is dated 11/1/2000, which was an audited annual report and account of the Appellant’s company for the year ending 30/6/1994, prepared by the Appellant’s Auditors.

That in the Judgment of the lower Court, the learned trial Judge drew a clear distinction between admissions contained in a pleading filed by a party and admission contained in an extraneous document relied on by a party to a suit. That the lower Court went on to state that the 1st
Respondent was not relying on an admission on the pleading filed by the Appellant, but in extraneous Appellant’s document, which the Court held was prima facie an admission of the 1st Respondent’s claim.
He submits that the Appellant should have argued at the filing of the Application for Judgment that the document relied on by the 1st Respondent was not a document made by the Appellant’s Company, or that the document if found to have been made by the Appellant’s company, did not contain any admission of liability of the Judgment sum or any other sum as urged on the lower Court by the 1st Respondent.
From record, precisely at page 64 of the Record of Appeal – Dr. Ajayi SAN appeared for the Defendants/Respondents and he did not object, when at the hearing of the application filed on the 11th of January 2000 – (pages 55-57 of the Record of Appeal) the 1st Respondent proceeded to tender a copy of the Appellant’s Annual Report and Accounts for the year ended 30/6/1994.
There was nothing in the counter affidavit filed by the Appellant (page 58 of the Record of Appeal) denying the owing of the sum to the 1st Respondent.

The facts therein deposed to, in the affidavit in support of the motion for Judgment are deemed therefore admitted.
Let me quickly say here that in the Defendants’ Amended statement of Defence dated 22nd of February 2000 (pages 5-9 of the Record of Appeal), paragraphs 14 and 31 are instructive, in so far as it relates to admission or otherwise by the Appellant. I shall reproduce same verbatim.

Paragraph 14:
“The documents on the transactions referred to in paragraphs 9, 10 and 11 above were discovered by the Nigerian Directors of the Defendant for the first time under lock and key in the office of the Italian Managing Director of the Defendant Mr. G. Belluso who left office unceremoniously in 1995”

Paragraph 31:
The Defendant will also contend at the trial of this action that in so far any acts or omissions on the part of the Defendant could be capable of being construed as an admission of liability to the Plaintiff, such acts or omissions have resulted from the Defendant’s ignorance of the true facts at the material times and so the same hove taken place under a mistake of fact and therefore not binding on the Defendant.”

The Appellant is not denying that there is an admission but that such admission of liability was predicated on Appellants, ignorance of the true facts at the material time, and thus same has taken place under a mistake of fact, and therefore not binding on the Appellant.
There is no reply to these facts averred in paragraph 31 0f the Amended Statement of Defence.
Yes, the Appellant did not deny authorship of the document containing the admission, but his point is that such was obtained under a mistake of fact.
In paragraph 21 of the Amended Statement of Defence – page 8 of the Record of Appeal, it was averred in essence that right from the year 1976, when the remittances commenced and up to date, they have never been disclosed in any of the Company’s annual Reports and Accounts (including those of 1993 and 1994). Therefore the true, fair and honest state of the Company’s business has never been disclosed in any of its Annual Reports and Accounts. The Appellant had stressed that the contents of the 1994 Annual Reports and Accounts, lacking truthfulness and accuracy like others before it, cannot properly, on a motion for Judgment and without full trial, be held as containing conclusive proof of admission of indebtedness on the part of the Respondent.
With respect I do not agree with this contention. The Rules and indeed the Law refers to admission on the pleadings. The Appellant had never admitted liability but had stressed lots of discrepancy in the Annual Reports of the Defendant spanning through years including 1993 and 1994, when Exhibit P1 issued.
Exhibit P1 which is reflected at page 57 of the Record of Appeal is Notes of Accounts of Guffanti (Nigeria) PLC, where Trade Creditors are stated. PIDRELA the 1st Respondent is stated to be owed the sum of One hundred and Fifty Seven Million, Thirty Three thousand, Five hundred and Eighty-eight Naira, Forty kobo (N157,033,588.40k) in the years 1993 and 1994.

The 2nd – 3rd Respondents in their brief of argument had submitted that the 1st Respondent relied on the admissions contained in the Audited Report and Accounts of the Appellant for the year 1994. That the application for Judgment was in the year 2000. That by the time the contents of the 1994 Audited Report was being considered, it had been passed and adopted by the Board of Directors of the Appellant. That, there was nothing in subsequent years to show that that admission had been rejected, tainted or discredited.
They argue that the requirement of Order 29 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules, was for the learned trial Judge to see if there was an admission of fact, to justify giving Judgment to the Claimant.
They argue that the Statement of Defence is a mere pleading, but not evidence that had been subjected to cross-examination. That the Statement of Defence of the Appellant did not have the weight to dislodge the admission contained in the Appellant’s Annual Report.
That the main requirement of Order 29 Rule 6 was for the learned trial Judge to see if there was an admission of fact, to justify giving Judgment to the Claimant. That it is a matter of general knowledge, that all information and documents used in audit exercise are supplied by the clients to the External Auditors. The facts and figures were supplied to the Appellant’s Auditors by the Appellant himself, he submits.
Urges Court to refuse to be distracted by the puerile argument of the Appellant. That no better document shows, or determines the financial position of a company, than its Audited Report and Accounts.
He submits that the Appellant at the Court below, never canvassed that the matter should be allowed to proceed to trial. That the Appellant all owed the 1st Respondent to tender Exhibit P1 (The 1994 Annual Report and Accounts) from the bar and there was no argument that it was not certified.
Urges Court not to allow the Appellant to introduce a new question or an argument that was not made in the Court below for the first time on appeal citing AKIBU v. ODUNTAN (2000)13 NWLR (Pt. 685) 446/462 – 463; EGBE v. ALHAJI (1990) 1 NWLR (Pt. 128) 546/590; AJIDE v. KELANI (1985) 3 NWLR (Pt. 12) 248/269.

The Appellant had filed no reply brief.

Decidedly, final judgment based upon formal and/or informal admissions should not be given, and should not operate as ESTOPPEL, if such final Judgments have the effect of shutting out the defence in limine, and where the materials explanatory of the circumstances in which the admissions have been made, and suggesting that they may have been made due to any error, mistake or misrepresentation, fraud or other sufficient explanatory events exist – ANSON FARMS LTD v. NAL MERCHANT BANK (1994) 3 NWLR 241, Part 331. RATIO 3; MURPHY v. COLHANE 1977 QB. 94; GALE v. SUPERDRUG STORES PLC (1996) 1 WLR. 1989.
It is pertinent to take a cursory look at the claim of the 1st Respondent (as Plaintiff in the lower court) – page 3 of the Record of Appeal.
Paragraphs 3, 4, 5 and 6 of the Statement of Claim is apt. I shall reproduce same verbatim.

Paragraph 3:

“The Defendant is indebted to the plaintiff in the sum of USD8,336.278 (Eight Million, Three Hundred and Thirty Six Thousand, Two Hundred and Seventy Eight Dollars) or is Naira equivalent being value of machinery and spare parts and services supplied the Defendant at its request as at May, 1996 which it has persistently refused and/or neglected to pay”

Paragraph 4:
“The Defendant is not denying liability and has in fact admitted its indebtedness to the Plaintiff. The Plaintiff shall at the trial rely on the Annual Report and Accounts of Guffanti Nigeria PLC for the year ended 1993 and 1994 as well as the minutes of the meeting of the Directors of Guffanti Nigeria Limited held on 6th June 1990 at No. 411, Agege Motor Road, Mushin, Lagos.

Paragraph 5:
“The Plaintiff avers that despite repeated demands on the Defendant to amortize its indebtedness to it, it has willfully refused and/or neglected to do so.”

Paragraph 6:
“The Plaintiff caused its Solicitors, Messrs Kayode Sofolo’s Chambers to demand from the Defendant the said sum, all to no avail. The Plaintiff’s Solicitors letter dated 2nd March 1999 shall be relied upon at the trial of this action.”

From above, it is clear that the 1st Respondent had claimed the sum of USD 8,336,278 (Eight Million, Three Hundred and Thirty Six Thousand, Two Hundred and Seventy Eight Dollars) or its naira equivalent.
To this Statement of Claim, the Appellants (as Defendants) in their paragraphs 3 and 4 of his Amended Statement of Defence made a general traverse which in law is no traverse – page 5 of the Record of Appeal.
Nowhere in the entire 33 paragraphs Amended Statement of Defence dated 22nd February 2000, did he deny paragraphs 3, 4, 5 and 6 of the Statement of Claim except the General traverse, which I observed above, is no traverse in law.
The result is that the Appellant admits liability ab initio, indeed in his pleadings. Exhibit P1 attached to the Motion for Judgment buttressed the averments in the pleadings.
This is what the Law requires. I am of the view that the learned trial Judge was right in giving Judgment as he did to the 1st Respondent in the circumstances of this case. Issues 1, 2, and 3 are therefore resolved in favour of the Respondents and against the Appellant.

ISSUES NO. 4 AND 5
These two issues are akin, in the sense that it has to do with the relationship between the Respondent and the alleged irregular and unauthorized remittances of the Appellant’s funds abroad on one part, and the averments by the Appellant of the relationship between the Guffanti family and the Respondent on the other part.
The Appellant had argued that whether or not there has been any credible connection between the Respondent and the unauthorized transfers, this would not be an answer to the averment that for years, the Annual Reports and Accounts of the Appellant had been manipulated in a deliberate fashion, thus rendering; the Accounts to be false and unreliable. He urges that Issue No. 4 be resolved in favour of the Appellant. Issue 2 of the 1st Respondent issues for determination refers to this.
The 1st Respondent refers to pages 68-72 at 67-71, of the Record of Appeal and in so doing submits that the lower Court in its Ruling observed thus:

“I refer to the Defendant’s 1994 Annual Reports and Accounts and hold that the entry was prima facie an admission that the Defendant was owing the Plaintiff N157,033,588.40k as at 1994 – – – Exhibit P1 was not objected to for not coming from proper custody and neither was forgery of the Report raised. Exhibit P1 is an admission against the Defendant’s interest. Exhibit P1 has considerable weight in that it was prepared by the Defendant’s Accountant, verified and audited by the Defendant’s external auditors and approved by the Defendant’s Management. The Defendant’s case is that two Directors of the Defendant without authority siphoned about USD13 Million into an Account No. 3848 of A. Guffanti & Co….. It was not specifically alleged that the Plaintiff was a party to the alleged fraudulent transfer of the USD13 Million to Switzerland by the two Directors of the Defendant… The Plaintiff having produced Defendant’s Account for 1994, the Defendant ought to have produced the Defendant’s Account for 1995 when it discovered the alleged fraud, not on ipsi-dixit uproar in the Company – There was no credible connection of the Plaintiff to the alleged unauthorized transfer of Defendant’s money by the Defendant’s two Directors. The Appellate Courts frown on attempts by a Defendant to dribble a Plaintiff to prolong and complicate litigation in a matter in which there is no defence….”

The 1st Respondent urges Court to hold, as the lower Court did, that the above observation of the learned trial Judge is a proper consideration of all issues raised in the issue formulated by the Appellant on estoppel, and indeed the 1st Respondent’s issue on any effect the fraud alleged to have been perpetrated by the Appellant Directors ought to have on the 1st Respondent’s Application for Judgment.
He submits that every averments contained in the Appellant’s amended statement of Defence at the lower court validated the decision of the lower Court to grant Judgment against him.
He submits that the learned trial Judge, in giving Judgment, exercised its discretion judicially and judiciously, as set out in the Lagos State (Civil Procedure) Rules 1994.

I must say unequivocally that I agree with the submissions of the 1st Respondent, referring to the portion of the Ruling just reproduced. This is because, from records, the Appellant had admitted his indebtedness to the 1st Respondent in the sum adjudged. The averment by the 1st Respondent of the indebtedness was never challenged, but only to the extent that it was a mistake of fact.
When the motion was to be argued, the Appellant did not object to the application for Judgment – pages 64-67 of the Record of Appeal.
The Word “ADMISSION” is defined in Section 20 of the Evidence Act 2011 thus

20 “An admission is a statement oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons’ and in the circumstances mentioned in this Act”

Section 27 however stipulates; that

27 “Admissions are not conclusive proof of the matters admitted but they may operate as estoppel under Part X”

Under Part X of the Evidence Act 2011, Section 145 thereof provides that

145 (1) “Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved unless and until it is disproved, or may call for proof of it”

This provision is disjunctive, as the Court can wield either of the option of either regarding such fact as, proved unless and until it is disproved, OR may call for proof of it. The Court has a discretion in the matter, which of course must be exercised both judicially and judiciously in arriving at a just conclusion in every matter before it.

By Section 169 of the Evidence Act 2011 it says:

“When one person has either by virtue of on existing Court Judgment, deed or agreement, or by his declaration act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed, in any proceeding between himself and such person or such person’s representatives in interest, to deny the truth of that thing.”

By the combined effects of the above provisions of the Evidence Act, it is apparent that the Appellant by Exhibit P1 and indeed by his pleading admitted his indebtedness to the 1st Respondent, in the amount reflected in Exhibit P1.
The excuse that the content in Exhibit P1 is a mistake of fact does not, and cannot avail the Appellant.
The anomalies in the remittances of monies, the elementary fraud allegedly involved, the fact of certain named Italians having served as functionaries of both the debtor and the creditor at one and the same time, cannot avail the Appellant. At the expense of repetition after all in his amended Statement of Defence, he admitted the debt, but that it was borne out of some mistake of fact. The Appellant did not object to the contents of Exhibit P1 which was annexed to the motion for Judgment, neither did he object to the motion being moved for that matter. The fact of irregular foreign remittances, rendering the Accounts to be false and unreliable was not the business of the Court, as the Appellant had admitted the debt.

Resultantly, Issues No. 4 and 5 are resolved in favour of the 1st Respondent and against the Appellant.

On the 6th Issue, I dare say that this issue had been aptly subsumed in my treatment of Issues 1, 2 and 3, 4 and 5. In the face of paragraph 22 of the Amended Statement of Defence, the Appellant went on to aver in paragraph 31 of the Amended Statement of Defence thus

“The Defendant will also contend at the trial of this action that in so fur any acts or omissions on the part of the Defendant could be capable of being construed as an admission of liability to the plaintiff, such acts or omissions have resulted from the Defendant’s ignorance of the true facts at the material times and so the same have taken place under a mistake of fact and therefore not binding on the Defendant”

As earlier observed on this Judgment, and at the expense of repetition, the averments in paragraphs 3, 4 and 5 in the Statement of Claim of the 1st Respondent (as Plaintiff at the lower Court) was not denied specifically by the Appellant in the lower Court, but by a general traverse which in law is no traverse. The facts averred in paragraphs 3, 4 and 5 in the Statement of Claim were therefore, deemed admitted by the Appellant.

The Appellant has argued (wrongfully in my view) that in the con of the pleadings exchanged, the particular paragraph in question in the Amended Statement of Defence, if properly construed, has averred no more and no less than that DR. FELICE GUFFANTI and his brother MARIO GUFFANTI had siphoned abroad US$D13,930 M 938.85 which is higher in amount than the sum of US8,336-278.00 now being claimed by the Plaintiff/Respondent.

This issue is resolved in favour of the 1st Respondent and against the Appellant.
The result is that the Appeal is devoid of merit and same is hereby dismissed.
The Ruling of Adeyinka J. of the High Court of Lagos State delivered on the 25th day of May, 2000 in Suit No. ID/1320/98 is hereby affirmed.
N30,000.00 costs in favour of the 1st Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the advantage of reading in advance the thorough judgment of my learned brother, Rita Nosakhare Pemu, J.C.A., in which I concur and adopt as my judgment with nothing tangible to add. I too find no merit in the appeal and hereby dismiss it and affirm the ruling of the court below and subscribe to the order on costs contained in the said lead judgment.

TIJJANI ABUBAKAR, J.C.A.: I read in draft the lead judgment delivered by my learned brother Pemu, J.C.A.
A court has the power to enter Judgment on admission by a party either in the pleadings or otherwise upon the application by a party in whose favour the admission is made, See: ROSEHILL LIMITED v. AREWA METAL CONTAINERS (2010) LPELR 4904.
I entirely agree with my learned brother and adopt his reasoning and conclusion in this appeal as my own. The appeal is devoid of merit it is therefore dismissed. I affirm the ruling delivered by Adeyinka J. on 25th May 2000 in suit No. ID/1320/98.
I also abide by the order relating to costs.

Appearances

Prof. A. B. Kasumu, SAN with
T. A. Adesanmi (Miss)For Appellant

AND

M. A. O. Okulaja, SAN,
E. Onyeke, Olatunji Oduntan Esq.
Blessing AwachuroFor Respondent