HUSSEIN MANSOUR v. CARNCO FOODS (NIGERIA) LIMITED (2014)

HUSSEIN MANSOUR v. CARNCO FOODS (NIGERIA) LIMITED

(2014)LCN/7289(CA)

In The Court of Appeal of Nigeria

On Friday, the 20th day of June, 2014

CA/L/728M/2009

RATIO

EVIDENCE: ADMISSION; WHAT IS ADMISSIONS BY PARTIES AND THE VALUE OF AN ADMISSION
In NIGERIAN BANK FOR COMMERCE AND INDUSTRY AND INTEGRATED GAS (NIG) LTD AND NSCQ VOL 21 (2005) at page 226 the Supreme Court held that;’ “admissions by a party are evidence of facts asserted against but not in favour of such a party although they are not conclusive against the party against whom they are tendered.” Its trite that the value of an admission depends on the circumstances in which it was made it is for a trial judge to decide the issue and give due weight to the alleged admission and explanatory facts or circumstances in order to determine what constitute binding admission, the nature of the claim should be taken into account.
In CAPPA AND D’LBERTO LTD V AKINTILO 2003 (P 160) 1565 AT 1579 PR C, E.9 NWLR (PT 824). IN ANANSON FARMS V NAL MERCHANT BANK (1994) 3 NWLR (PT 331) 241 AT 257; the court held that; for an admission to qualify as a basis of judgement, It must directly and unequivocally touch upon or relate to the relief sought in the matter. Admission which are merely peripheral/incidental to the reliefs or reliefs sought in a matter cannot qualify as bases for entering judgment.
The court went on to opine that, admissions must be fully clear, unambiguous and freely made by a party, and by the very act of an admission, the person making the admission does not show any objection or opposition to the factual situation, he accepts it as correct. The court must also be satisfied that the accompany explanation of an admission is consistent with the tenor and common course of events, if the accompanying explanation vexes the clear language of the admission itself, the court is entitled to discountenance such explanations and rely exclusively on the clear language of the admission. It is only when the language of a document is ambiguous that a court can look out for the intention of the parties and one way of doing this is by examining the accompanying explanation or conduct, See: ODUYE VS NIG AIRWAYS LTD (1987) 2 NWLR ( PT 55), OJOKOLOBO V ALAMU (1987) 3 NWLR (PT 61) 377. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

RELIEF: DECLARATIVE RELIEF; WHETHER A DECLARATORY RELIEF CANNOT BE GRANTED MERELY BECAUSE OF DEFAULT OF PLEADINGS OR ON THE ADMISSIONS OF A DEFENDANT

The law is trite, in an action for declaratory relief; admissions on the part of a defendant will not independently entitle the plaintiff or claimant to judgement. A declaratory relief cannot be granted merely because of default of pleadings or on the admissions of a defendant see SIJUADE V OYEWOLE 2012 11 NWLR (PT 1311) 310 PR D-E, MOTUNWASE v. SORUGBE (1988) 5 NWLR PT.92 90, AYANRU V MANDILAS LTD 2007 10 NWLR PT 1043 462. UWAIFO JCA (AS HE THEN WAS) IN OZOWALA V EZEIHESHIE (1991) 1 NWLR (PT. 170) 699 AT 706 PAR F-G ADOPTING BUCKLEY L J HELD;
“it has long been my experience, and I believe it to be a practise that of long standing that a court does not make declarations of right either on admissions or in default of pleadings… but only if a court is satisfied by evidence”. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

PRACTICE AND PROCEDURE: THE DOCTRINE OF LIS PENDES; WHAT THE DOCTRINE OF LES PESDES ENTAILS

The doctrine of lis pendes prevents the effective transfer of any right in any property which is the subject-matter of an action pending in court, it is based on the principle that the law does not allow litigant parties or give to them during the pendency of the litigation involving any property rights in such property in dispute so as to prejudice any of the litigating party. See: AIKIJA V ABDULLAAI 1998 6 NWLR (PT 552) 1. AT PG 17 PAR F-G OGUNDIANIU v ARABA 1978 6-7 SC 55, OSAGIE V OYEYINKA 1987 3 NWLR PT 59 144, UWAIFO JSC HELD IN ALHAJI BUA v DAUDA (SUPRA) that the following must be present:-
I. At time of sale the suit was already pending.
II. The action was in respect of real property
III. The action is to recover an asset, title to a specific real property
IV The other party had been served with originating process in the pending suit.
See: AYORINDE V AYORINDE 2004 13 NWLR (PT 889) 96-97 PR A-A, ORONTI V ONIGBANJO 2004 17 NWLR (903) 603 AT 613, 614 PAR A-B, OGUNSHOLA V NICON 1991 4 NWLR (PT 188) 762, BUA V. NICON (1999) 12 NWLR (PT 629) 59. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

HUSSEIN MANSOUR Appellant(s)

AND

CARNCO FOODS (NIG) LTD Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling/Judgement of S.B.A CANDIDE-JOHNSON J. OF THE LAGOS HIGH COURT delivered on 16th September 2009, the appellant herein filed an action at the Lower Court praying for an order to nullify and set aside the purported sublease of plot 14 Igamu Industrial layout, Lagos, by the Receiver, while the Defendant counterclaimed for a declaration that by the reason of the sublease agreement between them inter-se they were entitled to the said plot 14 without any interference from Newspin Ltd and the Appellant.

The Lower court entered judgement on the Counter claim in favour of the Respondent based on admissions upon a motion on notice dated 15/5/2007, the appellants being dissatisfied appealed to this court with a Notice of Appeal dated 23/9/2009 containing three grounds of Appeal.
Briefs of Arguments were duly filed and in Appellant’s brief prepared by Ibukun Ajomo esq he formulated three issues;
1. Whether delivery of the Judgement on appeal in the circumstances prevailing on the 16th September, 2009 amounted to a denial of fair hearing.
2. “Whether on the material before the court below there are clear and unequivocal admissions which entitled the Respondent to Judgment
3. Whether the award and consideration of costs was arbitrary, excessive and unwarranted.

In Respondent’s brief prepared by Chief M. A. Agbamuche, two issues were formulated for determination;
1. Whether the learned Trial Judge in the Court below rightly delivered the judgement on the 16th day of SEPTEMBER 2009.
2. Whether Trial judge rightly applied Order 19 of the High Court of Lagos (Civil Procedure) Rules 2004.

The Appellant however at the hearings of the Appeal withdrew issues 1 & 3 leaving issue 2 while, the Respondent consequently withdrew issue 1 leaving issue 2.

I have examined both issues of the Parties and am of the view that the appellant’s sole issue embraces the issue formulated by the respondent and it suffices, I therefore adopt it as the issue for determination in this Appeal.

ISSUE 1
“Whether on the material before the court there ore clear and unequivocal admissions. That unequivocal admissions that entitle the counter claimant (now respondent) to this judgement”.

The Appellant submitted that the learned trial judge in resolving the question of Admission in the materials before the court, declared the admissions as clear and unequivocal admissions. That the claim of the Respondent was for one of peaceful and quite enjoyment of an 18 year sub-lease and that an admissions must of necessity be as to the Validity and legality of the sublease therefore, reference must be made to the Notice of motion for Judgment on admission. He relied on TUKUR V GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT 117) 595 AT 603, ANANSON FARMS V NAL MERCHANT BANK (1994) 3 NWLR (PT 331) 241 AT 251 to the effect that for an admission to attract an entry of judgment under the High Court of Lagos state civil procedure rules it must unequivocally touch upon or relate to the Reliefs sought in the matter. Appellant examined the 5 grounds upon which the learned judge found there were areas of agreement and submitted that there was no admission, and that the admission made in paragraph 7 of the affidavit /statement on oath dated 27/2/06 by Alhaji Basher Wali, Company Secretary of the Appointers of the Receiver is that of an adverse party to the Appellant and a privy to Respondent and as such does not bind the appellant.

Secondly, that the admission of the counter-claimant’s occupation sequel to the sublease as contained in the letter of the defendant (Appellant) to the respondent, does not amount to an admission that, the Sub-lease was legal and valid.

Thirdly, that the appellant caused one Albert Shoyombo to depose to an affidavit admitting on behalf of the Defendant that, the Iganmu Industrial Estate had been deposed off to the Respondent, did not mean that it was done legally and validly.

Fourthly, that the existence of the sublease does not mean that it was done legally and Validly because, one Nurudeen Adewale during the proceedings on 16/1/2007, deposed to an affidavit admitting on behalf of the counterclaimant that a sublease agreement was in existence between the counter claim and the Receiver manager.

And fifthly, the Respondent contended that, as at the date of the application, no court had Ruled that the Receiver manager had no right to grant, a sublease of No 14 Igamu Industrial Layout and that this is not an admission by the appellant or anyone else of the validity or legality of the sublease. Appellant further contended that the grounds relied upon by them throughout their defence and other processes was to the effect that the sublease was not valid and subsisting. Appellant stated that the learned judge gave judgement on admission based on what the Judge described as common grounds between parties, he contended that this was not borne out in any of the processes filed before the lower court. That Newspin Ltd was under Receivership of Prince Adesupo Adetona and there is a suit challenging this at the Federal High court, to the effect that the Receiver/Manager had exceeded his mandate by of the grant of the 18yrs sub-lease and that there could not have been any common ground.

He submitted that the reason for the judgement by the lower court was not on any admission but on the ground of setting aside the mandate of the Receiver so the Receiver could act without limit to exercise his powers and authorities vested on him and thereby misdirected himself because;
(i) It was not the ground for the application before him
(ii) The receiver in issue is an extra curial Receiver appointed out of court and not a court appointed Receiver and
(iii) The principle of ‘lis pendens’ overrides the principle relied upon by the lower court, he referred to OSAGIE V OYEYINKA 1987 3 NWLR (PT 59) 144 THE DICTA OF OPUTA JSC. AT PAGE 155.

Finally, he contended that a Suit was pending and is still pending at as the Present and as the time of the motion and that the Receiver cannot complete the assignment of the sublease to the Respondent without violating the principle of lis pendens.
The Respondent on the other hand contended, that by O 19 1 & 4 of the High Court State Civil Procedure Rules it is clear that, it’s a general rule of law that formal admission can be made by a party to a civil proceedings as to relive the other party of the necessity of proving a matter admitted. He stated that formal admission may take the form of clear admission filed or made by parties to civil proceedings or by counsel in the course of filing a civil suit, he referred to Section 73 of Evidence Act. FRIDAY KAMALU & ORS V DANIEL NWAKUNLU UKA UMUNNA & ORS (1997) 5 NWLR PT 505 321, AZUBIKE NWUKE ESQ V UMUBON NIG PLC (2009) 10 NWLR (PT 1145) 1. BARISTER VITALIS OKAFOR V INEC & ORS 2010 3 NWLR 9 (PT1180) 1 AT 49 PAR F.

Respondent defined admissions to mean “a voluntary acknowledgement made by a party of the existence of the truth of a certain fact, he referred PAN AFRICAN INT. SUPPLY CO LTD V JPEEEZ IMPEXCO LTD & ANOR (2010) 3 NWLR 9 (PT1182) 441 AT 460 PARF OWOHO & ORS V DADA 1984 NSCC VOL 15 PAGE 568 where the Supreme Court held that “a fact is deemed to be admitted if it is neither specifically denied nor admitted or denied by implication. In considering Order 29 rule 5 of 1994 rules which is the same as Order 19 Rule 4 of 2004 rules he relied on the court of appeal decision in PAN AFRICAN INT; SUPPTY COM LTD V JPEEZ IMPEEX CO LTD (SUPRA),. KANO V OYELAKIN (1993) 12 NSCC 373 AT 390, DAUDU V BL & CO LTD (2001) 15 NWLR (PT 1241) 411 P 43.

He contended that from the pleadings, its common ground that a suit was instituted in 2003 by Newsspin ltd in FHC/L/CS/992/2002 at the Federal High Court which is still pending and is yet to be determined, and that the so called mistake of the Receiver/Manager cannot be used to justify the failure of the Appellant herein from honouring the Sub-lease agreement entered into with the Respondent, until there is a final determination by a court that the Receiver/Manager exceeded his authorities/mandate in dealing with the property, it is not legally competent for the appellant herein to challenge the rights of the Respondent.

Finally he contended that the lower court rightly applied Order 19 of the Civil procedure Rules of Lagos State. The crux of this appeal is whether there are clear unequivocal admissions made by the appellant that entitled the lower court to enter judgement against it, therefore the starting point is the process filed by the applicant,: that is the motion on notice dated 15th May which grounds contained in the counter claim dated 30th June 2006, and were for the following reliefs:

i) That a declaration that sequel to the agreement the terms of which are as stipulated in a letter of Dec 20th 2001 the counter claimant is entitled to remain in peaceable possession and quite of No 14th, Iganmu Industrial Estate for a period of eighteen (18) years and
ii) An order of perpetual injunction restraining the defendant to the counter claim, his agent, servants, or privies from interfering with the counter claimant in its peaceful possession and quite enjoyment of the property at No 14, Iganmu Industrial Estate for eighteen years (18).
iii) Such further orders as this court may deem fit to make in the circumstances of the case.

This application had 5 grounds which are;
i) That in paragraph 7 of the Affidavit/statement on oath dated 27th February 2006 by Ahlaji Bashir Wali Company secretary of the appointer of the receiver the sublease agreement was admitted.
ii) The solicitors to the Defendant to the counterclaim M.I. Jegede & Co through a letter of 23rd June 2005, admitted that the counter claimant was in possession.
iii) That in cause of proceedings one Albert Shoyombo deposed to an affidavit dated 16th October 2006 I on behalf of the defendant to the counterclaim admitting in paragraph 6 that the remaining 18yr lease had been deposed of to the counter claimant.
iv) That one Nurudeen Adewale on behalf of the counter claimant on 16th January 2007 deposed to on affidavit admitting the existence of an agreement between the counter claimant and the Receiver manager in paragraphs 4 & 10 therein.
v) That till the date of the application no court has ruled that the receiver manager had no right to grant a sub lease of the property.

The appellants were the 1st plaintiff in the lower court wherein he sued the Respondents/1st defendant as the one to whom the alleged sublease was entered into with the Receiver/manager who is the 2nd defendant. The plaintiff’s claim was struck out for lack of jurisdiction leaving the counterclaim of the 1st defendant, the plaintiff/defendant to the counterclaim had filed a statement of Reply and an amended defence to the counter claim of the 1st defendant (at page 17 -28 more specifically at page 26 – 27) but curiously, the contents in the last page attached is an endorsement of the 1st defendant’s counsel Chief Agbamuche, it looks to me that there is a mix-up somewhere because the contents refer to the claimants/plaintiffs (who are defendants to the counter claim) counter affidavit to the application dated 22nd may 2007 at pages 47-55 of the record of appeal.

The lower court in its ruling on the application held as follows:
“The Receiver/manager in respect of a company-in-Receiver, over which he has been appointed, stoutly asserts as above quoted that it was he on the power and authority vested in him, as explained in the Intercontractors Nig Ltd v. UAC case that executed a sublease with the counter claimant herein. I hold that the on this reasoning and analysis that the counter-claimant is eminently entitled to in absence of any judgement setting aside the mandate of the receiver/manager at the times material to the sublease and to the subject matter of the sublease, to this judgement against this defendant who has no business to query the counterclaimant or the sub lease, presently only the Receiver/manager or the courts qua the Federal High court can legitimately intervene with respect to the counterclaims sublease in relation to the and or Receiver’s mandate.” See pages 81 of Record of Appeal.

The lower court in its consideration (at pages 78-80) in evaluating the opposition to the application on whether there are clear unequivocal admissions which entitles the counterclaimant to judgment stated thus;
“There is an affidavit in support of the counterclaimant aforesaid together with a Written address. In opposition is a counter affidavit dated 22/5/10 together with a written address by defendant to the counter claim. I have carefully perused all this material within the con of the requisite front loaded pleadings constituting both the amended counterclaim and the amended defence to the counterclaim. I have also not lost sight of the outcome of the previous rulings during this on regarding various relevant issues determined therein. I have considered it appropriate to note that there are common grounds between parities as there ore certain areas and/or issues that have already been determined and disposed of by (sic)…”

Against this findings and complaint of the appellant herein is to examine the process, if indeed there were common grounds (the said grounds having been stated earlier in this judgement). Paragraphs 2, 5, & 14 of the statement of defence to the counter claim is to the effect that the agreement on the sublease was not legal and inchoate, in addition is the counter affidavit to counterclaimant’s motion dated 23/5/2007 by Nurudeen Adewole paragraphs 4.1, 4.2.-4.3 are to the effect that there is a pending action challenging the mandate of the Receiver to lease the land. Furthermore is the attached exhibits attached to the affidavit in support of motion for judgement at pages 33-35 of the record, the last two paragraphs of the appellants solicitor’s letter are referred to by the learned trial judge as one of the admissions.

“…We act as solicitors for the Mansour family, owner of NEWSPIN NIGERIA LTD the registered owner of the lease hold property described above” … Since your company did not derivetitle from our client we shall be perfecting our clients instruction to take appropriate steps to eject you and or your servants from the property unless you rectify your company’s position with our client without further delay.
Take note that the rate per every square loot illegally occupied by you is N350.00 and this amount shall be the basis of our claim from you for the said illegal occupation.
Yours faithfully”

Again, paragraph 7 of the statement on oath of defendant’s witness; Alhaji Bashir Wali the Company Secretary and Group a Adviser of Afribank, the Appointer of the Receiver /Manager (formerly 2nd defendant) in the suit: at (page 34) of 27th February, 2006.

“I know that in 2001 the 2nd defendant with the consent and approval of our bank and in the name and on behalf of the 2nd claimant entered into an agreement into an agreement for a sublease of this 2nd claimants leasehold property at plot 14 Iganmu industrial Estate, Surulere, Lagos, to 1st Defendant for a term of 18yrs from march 2001 to February 2019 in consideration of the sum of N36,000,000 (thirty – six million Naira paid by the 1st Defendant. The terms of agreement are stipulated in the 2nd claimants letter of December 20 2001.”

Paragraph 6 of Albert Shoyombo’s affidavit of 15th May 2007 (page 38 to 43) is dated 16th of October 2007 that;
“That notwithstanding, the 2nd defendant proceeded to dispose of the 18 yrs remaining of the Lease hold property of the 1st Claimant known as plot 14, Iganmu Industrial Estate, Surulere of Lagos State to the 1st Defendant, the said property did not form part of the Debenture Agreement of the appointment of the 2nd Defendant, except upon creation of legal mortgage which was not affected”.

The last but not the least ground regarded as an admission, is said to be contained in the affidavit of Nurudeen Adewole of 16th January 2007. In the whole of the record book including the said attached exhibits there is no such document as this, except one made by Nurudeen attached as an exhibit is dated 22nd May 2007, paragraph 4 and 6 thereof (at page 47 to 49) are reproduced:

“4. Mr Hussein Mansour, the defendant to the counter-claim in this suit informed me on 21st may 2007, and I verily believe him as follows;
4.1 That he is not aware of any valid and enforceable sublease agreement between Nigerian Weaving Spinning and printing company limited (Newspin Ltd) and counter claimant in the suit.
4.2 That no valid sublease agreement was ever executed by Newspin Ltd in favour of the counter -claimant.
4.3 That the sublease agreement purport made by correspondence as pleaded by the counter-claimant in this case is fraudulent and same is going to be seriously challenged at the trial and hearing of the counter-claim.
5. I am further informed by Hussaine Mansour and I verily believe him as follows;
5.1 In the course of the said action at the Federal High court, 3 tenants found in possession of the said plot vacated and, Newspin Ltd took possession of the area vacated by the tenants measuring 830000 square loot out of the total warehouse space of 136,000 square foot.
6.2 At the time of taking possession of the area vacated by the 3 tenants including, Multi- pro enterprises ltd were found occupying the remaining part of the property.
6.3 The letter dated 23rd tune referred to in the counter-claim’s motion papers was written by Newspin’s solicitors to the counter-claimant., after the later had written by Newspin’s solicitors to the counter- claimant, after the later had admitted at Bode Thomas police station that it was the company that was occupying the remaining part of new spin’s property through the new tenants,”

It is pertinent to state at this stage that, the solicitors letter referred to is simply a reinstatement on the stand of their client that, they contest the validity of the leasehold and put them notice of an impending litigation thereon. It does not in any way amount to an admission not to talk of a clear and equivocal admission. I have also scrutinized Paragraphs 7 of the Statement on oath of Alhaji Bashir Wali and find as stated that he is the group legal adviser of the appointers of the Receiver manager, his deposition cannot be used against the plaintiff/appellant, whose bank advanced the loan, he is on the same side as the 2nd respondent and the Receiver/manager in the contest especially, as at the time of the judgement on admission, only the appellant/defendant to counterclaim and the 1st defendant counterclaimant were the parties on record.

In addition, the affidavit of Albert Shoyombo who is the Assistant General Manager of the Receiver manager, simply states that the debenture covers the leasehold in contention, this cannot be classified as an admission by the appellant herein. The Counter affidavit to the counterclaimants’ motion dated 15th May 2007 in paragraphs 4, 4.1, 4.2, 4.3, & 6, 6.1, 6.2 & 6.3 therein are deposed on behalf of the appellant and a close study shows that he still maintains that, to his knowledge he is not aware of any valid lease and if at all there is one, what was executed was not valid and that it was purportedly made by correspondence and was fraudulent and will be challenged at the trial and hearing of the counter-claim. It proceeds to notify them of the pendency of the Federal High court suit and attached the writ of summons, it further explained the circumstances of solicitors letter which he said, arose from admissions made by counterclaimants at the police station. Again, under the law can this be the clear unequivocal admissions envisaged by our statute books, rules of court and even precedents?

This leads me to Section 19(1) & (4) of the Lagos State High Court civil procedure rules under which the application was made:
“1. Any party in the proceedings may give notice by his pleadings or otherwise in writing that he admits the truth of the whole of facts or any part of the case of the other part”
2. the judge may at an application at a pre-trial conference or at any stage of the proceedings where admissions of facts have been made either on the leadings or otherwise make such orders such judgement as upon such admissions a party may be entitled to without waiting for the determination of any other question between the parties”
Definitely, these rules refer to admissions made by parties who are involved in a Contest in the subject matter it also refers to admissions against one’s interest.
In NIGERIAN BANK FOR COMMERCE AND INDUSTRY AND INTEGRATED GAS (NIG) LTD AND NSCQ VOL 21 (2005) at page 226 the Supreme Court held that;’ “admissions by a party are evidence of facts asserted against but not in favour of such a party although they are not conclusive against the party against whom they are tendered.”

Its trite that the value of an admission depends on the circumstances in which it was made it is for a trial judge to decide the issue and give due weight to the alleged admission and explanatory facts or circumstances in order to determine what constitute binding admission, the nature of the claim should be taken into account.
In CAPPA AND D’LBERTO LTD V AKINTILO 2003 (P 160) 1565 AT 1579 PR C, E.9 NWLR (PT 824). IN ANANSON FARMS V NAL MERCHANT BANK (1994) 3 NWLR (PT 331) 241 AT 257; the court held that; for an admission to qualify as a basis of judgement, It must directly and unequivocally touch upon or relate to the relief sought in the matter. Admission which are merely peripheral/incidental to the reliefs or reliefs sought in a matter cannot qualify as bases for entering judgment.
The court went on to opine that, admissions must be fully clear, unambiguous and freely made by a party, and by the very act of an admission, the person making the admission does not show any objection or opposition to the factual situation, he accepts it as correct. The court must also be satisfied that the accompany explanation of an admission is consistent with the tenor and common course of events, if the accompanying explanation vexes the clear language of the admission itself, the court is entitled to discountenance such explanations and rely exclusively on the clear language of the admission. It is only when the language of a document is ambiguous that a court can look out for the intention of the parties and one way of doing this is by examining the accompanying explanation or conduct, See: ODUYE VS NIG AIRWAYS LTD (1987) 2 NWLR ( PT 55), OJOKOLOBO V ALAMU (1987) 3 NWLR (PT 61) 377.

Therefore the circumstances of the case and consistent accompany explanation of the said admission when put against the tenor and common course of events, the above mentioned paragraphs therein cannot by any stretch of imagination amount to a clear unequivocal admission by the appellant herein. In my view, the appellant has throughout the processes filed in the lower court, consistently challenged the root and circumstances of the sub lease that the Debenture did not cover such and he has fully paid up the loan. In summary a person who has no valid title has none to pass, the principle here is “NEMO DAT NON HABET”. In this matter it is a term of 18 years that has been given out and the commercial implication for a lessee is grave, in the final analysis it would be irredeemable if proved to be correct. These allegations were raised in the defence to the counterclaim and it raises trial -able issues, a part of which is being adjudicated upon at the Federal High Court. It’s not in dispute between parties that the Receiver in quest of his appointment made decisions touching on the leasehold of the appellant but what is in dispute is whether such actions were legal and binding irrespective of the powers of the receiver manager. In the light of this hot contest, can these therefore be termed formal admissions in the pleadings or otherwise, am afraid NO!; it is a far cry from an admission. The Respondent In his brief stated that:

“the only contention of the appellant is that the Receiver/Manger in granting the sublease exceeded his authority and that the so called mistake of the receiver cannot be used to justify the failure of the appellant herein from honouring the sub lease agreement entered into with the respondent”.

I beg to disagree! if indeed he exceeded his mandate in respect of the sublease then, it lacked the capacity and power to give it out, it ought not to talk casually about 18 years of a commercial lease of warehouses and it’s enough to stop or vitiate the sublease in law, it’s not a trivial issue to be wished away once rights are involved.
Furthermore the reliefs in the counter-claim are declaratory in nature:
“a declaration that sequel to a the terms of agreement the terms which are stipulated in a letter of 20th December the counter claim “ant” is entitled to a remain in peaceable possession and quite enjoyment of no 14 Iganmu Industrial estate for a period of 18 years
b) An order of perpetual injunction restraining the defendant to the counter claim…”

I am persuaded to agree with the above especially in the light of the circumstances highlighted above; the lower court did not interpret or apply the rules of court correctly and thereby came to a wrong conclusion when it proceeded to enter judgement against the appellant herein. The lower court lost sight of the reliefs sought by the counter claim; it was wrong to have proceeded to judgement in that manner. On the issue that there is no final court judgement on the matter this brings me to contention of the appellant who raised the issue of lis pendens in the action, the doctrine of lis pendes has been defined in a long line of cases OGUNDIRAN V ARABA 7-6 SC 42, ALHAJI BUA V DAUDA NSCQ 14 (2003) 1046, IN AGUSTOBO V OKAGBUE (2001) 15 NWLR (PT 737) AT 551 AT 532 PAR E.G MUHAMMAD JCA HELD THAT…
“The doctrine ensure also that the eventual decision of court arising from the litigation in a respect of the property sought to be transferred is neither frustrated nor given in vain. Accordingly, a purchaser pendentelite would have his title set aside irrespective of the fact that the purchaser had been made without actual notice of the raging litigation and for valuable consideration. Muhammad JCA at page 532 par E-G held that… The respondent in instant or instant case was a purchaser pendintelite and it was Irrelevant whether or not he had knowledge be it actual or constructive about the litigation the pendency of which made the purchase and consequent transfer of title in respect of the litigated property impossible”.

The lower court having struck out the appellants claim for lack of jurisdiction and the attached writ of summons, (before the federal high court) failed to take into account the operation and essence of this doctrine, there is no need for a judgement of a court to have been obtained. The lower court ought to have declined the application to hear the counter claim to conclusion before making far reaching orders which, did not bear out the facts and circumstances of the case knowing that, if upheld at the federal high court, monetary compensation cannot completely restore the commercial profits and lost tenure to a perfect stranger. The doctrine of lis pendes prevents the effective transfer of any right in any property which is the subject-matter of an action pending in court, it is based on the principle that the law does not allow litigant parties or give to them during the pendency of the litigation involving any property rights in such property in dispute so as to prejudice any of the litigating party. See: AIKIJA V ABDULLAAI 1998 6 NWLR (PT 552) 1. AT PG 17 PAR F-G OGUNDIANIU v ARABA 1978 6-7 SC 55, OSAGIE V OYEYINKA 1987 3 NWLR PT 59 144, UWAIFO JSC HELD IN ALHAJI BUA v DAUDA (SUPRA) that the following must be present:-
I. At time of sale the suit was already pending.
II. The action was in respect of real property
III. The action is to recover an asset, title to a specific real property
IV The other party had been served with originating process in the pending suit.
See: AYORINDE V AYORINDE 2004 13 NWLR (PT 889) 96-97 PR A-A, ORONTI V ONIGBANJO 2004 17 NWLR (903) 603 AT 613, 614 PAR A-B, OGUNSHOLA V NICON 1991 4 NWLR (PT 188) 762, BUA V. NICON (1999) 12 NWLR (PT 629) 59.

The facts of the suit in the lower court is as found in the amended reply to statement of defence and defence to counter claim of the 1st defendant. At page 17 of the record paragraphs, 6, 10 11, 14 & 21i-iv of the Statement of Defence, paragraph 2 thereof pleads and repeats the paragraphs 1-22 and 42 of the reply to counter claim, referring to the stand of the Appellant that it had earlier filed a suit at the Federal high court, challenging the mandate of the Receiver Manager, that he had discharged the loan fully. A copy is attached to the counter affidavit, clearly reliefs 1, 2, 3 & 4 there in touch on the leasehold of the property under reference it is reproduced as follows;
1) A declaration that the 2nd defendants has completed his receivership of plaintiffs asset specified under the General Debenture dated 9th March 1995 the general debenture has been satisfied,
2) A declaration that the 1st defendant has no power under the General debenture dated 9th March 1995 to appoint the 2nd defendant as a receiver and /or manager of the lease hold property of the plaintiff known as plot 14 Iganmu industrial estate Surulere, Lagos..
3) A declaration that the leasehold property of the plaintiff known as plot 74 Iganmu Industrial Surulere Lagos does not fall within the ambit of the 2nd Defendant /receiver’s power as delimited by the general debenture dated 9th march 1995 under which the defendants was appointed a receiver’s power as delimited by the General debenture dated 9th march 1995 under which the 2nd defendant was appointed in February 1997.
4) A declaration that the to defendants continued possession, use and occupation of the aforesaid plaintiffs leasehold property through 3rd to 5th defendants and his continued demand and collection of rents and profits there from at the behest of the 1st Defendant and without the consent or authority of the plaintiff amount to o breach of the General denture and constitute acts of trespass.
5) An order that the plaintiff recover immediate possession of the leasehold property from the Defendant.
6) An order of perpetual injunction restraining the 2nd Defendants neither by himself, his appointer, tenants or servants from further acts of trespass on the plaintiffs lease hold property being at no 14 Iganmu Industrial Estate Surulere, Lagos.

From the above, reliefs 1, 2, 3, 4, 7 & 8 touch directly on the ownership of the property in dispute, furthermore the writ was filed on the 24th October 2002, the 1st and 2nd defendants are the AFRI BANK (appointee), the receiver -Prince Adesupo Adetona and other tenants. Its trite that a writ against the Receiver binds anybody claiming through him in law.

The sublease was entered into in 2005, 3 years after the initial suit at the federal high court, the 1st and 2nd defendants were aware of this when it went ahead with this acts, it was attached to processes forming part of what the lower court considered in its judgement, therefore it took judicial knowledge of these fact (see section 145(1) of evidence act 2011)’. The doctrine of lis pendens is aimed at preserving the res, the purchaser therefore buys at his own risk. The courts attitude to such deals is that it resents such reprehensible conduct and would not hesitate to resort to the use of its disciplinary powers to restore the status quo in appropriate cases; Oshinowo V NBN LTD (1998) 11 NWLR (PT 574) 408, COMBINE TRADE LTD V ASTB LTD (1995) 6 NWLR (PT 404) 709.

The Respondent therefore is presumed to have known, having taken its title from the Receiver manger during the pendency of the suit and therefore under the doctrine of lis pendes has bought a litigation for himself see page 24 par A dictum of Ogwegbu JCA in the case of Alakija v Abdulla (supra.)

The determination of the counter claim cannot in my firm view be determined without the main action in the Federal High Court due to the interwoven nature of the circumstances surrounding the matter despite the fact that a counter claim is a separate action.

The lower court based its reasoning on the fact that a receivership was in place but forgot that as the counter claim stood it was not the company challenging the acts of the receiver or its appointer but the original owner of the leasehold. In UNI BIZ V CBCL 2001 7 NWLR PT 713 PG 534 AT 542 PAR B ADEREMI JCA (AS HE THEN WAS) held
“that on the appointment of a Receiver the powers of the management of the company’s business automatically becomes vested in the Receiver but where some matters pertaining to the company do not relate to the management of the affairs of the company its directors can still act”.
Therefore the issue of the validity of sublease title and extent of the Debenture hereby affected the title of the head lease of the appellant who is also a major shareholder and chief executive of the Newspin Ltd does not touch on the management of the affairs of the company and in the situation the claimant is the appropriate person to complain. To shut him out is to perpetuate injustice in all its ramification and will be tantamount to snatching a piece of bread from a child and expect the child not to cry or holding the mouth from protesting.
On this note, I agree with the appellant that there were no clear unequivocal admissions on the part of the appellants in any document or writing, and the doctrine of lis pendens under the circumstances overrides the principles applied by the lower court. More importantly, the matter cannot be justiceablely decided without the lower court delving into the powers of the Receiver Manager, his terms of reference, the interpretation, application of the entire debenture and whether the Receiver has ended its terms etc., thereby touching on the jurisdiction of the Federal high court. SEE GAFAR V GOVT KWARA STATE & ORS 2007, NSCQLR VOL 29 34

Upon a combined reading of all processes in the record of appeal, it sticks out like a sore thumb that, this is not a land issue, contrary to what the lower Court held, it’s far from it.
Its “whether the receiver manger under it terms of reference validly, entered into a sublease agreement with the counter claimant to be entitle to the enjoyment of the sublease”.
From the facts and circumstances of the case, am convinced that it is not a straight forward issue as land under Lagos state, it has colourations that streams from the mandate of the receivership tree.
If the Respondent lacks the capacity to sue on the sublease agreement having taken root from the alleged mandate, it could not have sued in the counter-claim without joining the main Newspin Ltd and the Receiver in the claim. Having struck out the main claim and the names of the Receiver and the company-Newspin, judgement could not have been entered against the appellant herein.
Therefore both the claim and the counter claim were in the same boat- because there was no party against whom it could have been maintained, they sink together. The lower court could not have conveniently heard the counter claim which, ordinarily it ought to have done. See ETEC (NIG) LTD V NEVICO LTD 2004 13 NWLR (PT 860) 327 AT 369 PT F-G
For all the reasons above the appeal succeeds.
I hereby set aside the Judgement of the lower court delivered on the 16th September 2009, each party to bear their costs.

AMINA A. AUGIE, J.C.A.: I have read in draft the lead Judgment just delivered by my learned brother, Obaseki-Adejumo, JCA, and I agree with him that the appeal must be allowed.

He covered the field and I will only comment on the issue of admission, which simply put – is a statement made by a party or his agent, adverse to his case.
It is admissible against the maker as truth of the fact asserted therein, therefore, in civil cases, admissions are evidence of the facts asserted against, but not in favour of such party – see Nwuke V. Union Bank Plc. (2009) 10 NWLR (Pt. 1148) 1, Cappa & D’Alberto V. Akintilo (2003) 9 NWLR (Pt.824) 49.
But the law also says that a declaratory relief cannot be granted without oral evidence by the Plaintiff even where the Defendant expressly admits same – see Bello V. Eweka (1981) NSCC (Vol. 12) 48 and Ogolo V. Ogolo (2006) 5 NWLR (Pt. 972) 773, where the Supreme Court per Onnoghen, JSC, held thus –
“It must be noted that the reliefs claimed by the Respondent at the trial Court and which were granted in the default Judgment, included a declaratory relief. The law is settled that such a relief cannot be granted without oral evidence by the Plaintiff even where the Defendants expressly admitted same in the pleadings’ the said relief being equitable in nature. When looked at from that angle, it becomes very clear that the trial judge was under a misconception of the law when he granted the declaratory judgment in default of statement of defence thereby rendering the declaratory judgment liable to be set aside upon proper application to that effect”.

In this case, the Respondent counter-claimed for a declaration that sequel to the terms of agreement it is entitled to remain in peaceable possession and quiet enjoyment of the said Plot, and the lower Court, therefore, erred when it entered Judgment against the Appellant based on mere admission. It is for this and other reasons in the lead Judgment that I also allow the appeal. I abide by the consequential orders in the lead Judgment including the order on costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother A. O. OBASEKI – ADEJUMO JCA.

I agree with the reasoning and conclusion reached therein and wish to just add that it is trite that admission cannot be basis for the grant of a declaratory relief. A declaratory relief is one that seeks the pronouncement of the court as to the status of a named matter, things or situation, see ALIMS NIG LTD V U.B.A. PLC (2007) ALL FWLR (348) 971 at 981.
A claimant seeks the court to declare as established a legal and factual status of affairs in respect of a cause of action and he does no more than to invite the court to declare what the position of the law is on the issue. In a declaration, the claimant must call evidence that will satisfy the court to make a declaration. Declarations are equitable and so one must present what the court will use to declare. This is why admissions in pleadings cannot be basis for declaratory reliefs.
Admission that the court can act upon to grant reliefs must meet certain set down requirements as settled by the Apex Court in the case NWANKWO V NWANKWO (1995) 5 NWLR (PT 394) 153 at 171 where the court held thus:
“It is certainly not the law that all admissions are necessarily conclusive against the maker, as each and every admission must be carefully evaluated and considered by the court, against the particular circumstances under which it was made.

Admission are either formal or informal. Formal admissions are admissions made by a party to a civil proceeding so as to relieve the other party of the necessity of proving the matters admitted. They are usually contained in a pleading as facts admitted in pleading need not be proved any longer, but are taken as established. Formal admissions may also take the form of clear admission filed or made by a party to a civil proceeding or by his counsel in the course of the trial of a civil suit, SEE CHIEF AARON NWIZUK & ORS. V CHIEF WARIBO ENEYOK & ORS. (1953) 14 WACA 354.”
In considering the worth of admission, the court must take into account the circumstances under which it was made and the weight to attach to it, see AFRICAN CONTINENTAL BANK LTD V GWAGUADA (1994) LPELR – 204 (SC). Such admission must also relate to live issues in the matter. The question to ask here is whether the alleged admission related to life issues in contention between the parties? The obvious answer is No. So therefore, there was no admission to warrant the judgment of the court.

I agree that the trial court erred when it gave judgment on an alleged admission that did not relate to life issues in the matter and therefore there was no admission to base the decision upon.
The appeal succeeds and I also abide by the orders made in the main judgment.

Appearances

I. O AJOMO WITH T. O. ADEBAYO AND S. O. OSIDIRU.For Appellant

AND

M.A. AGBAMUCHE WITH AGAMUCHE-MUBU (MRS), HALIMA USUMAN (MISS) T. OLEH (MISS)For Respondent