VAN VILET TRUCKS NIGERIA LIMITED v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ANOR
(2018)LCN/12227(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/L/379/2015
RATIO
COMPANY LAW: OBJECTS OF CORPORATION
“The Asset Management Corporation of Nigeria is a statutory corporation and agency of the Federal Government established by an Act of the National Assembly in 2010. See CBN v AMAO [2010] 16 NWLR (PT 1219) 271. It is important to state the objects provided for in Section 4 of the Act therein: The objects of the corporation shall be to:- (a) assist eligible financial institutions to efficiently dispose of eligible bank assets in accordance with the provisions of this act; (b) efficiently manage and dispose of the eligible bank assets acquired by the corporation in accordance with the provisions of his act; (c) obtain the best achievable financial returns on eligible bank assets or other assets acquired by it in pursuance of the provisions of this Act having regard to..” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
PLEADING: PLEADIGS OF FACTS
“Pleadings are a reflection of the role of the Court and as an aspect of the adversary system of civic proceedings. See AFRICAN CONTINENTAL SEAWAYS LTD NDRGW LTD 1977 LPELR 209 SC. Furthermore, it is trite that the principles of pleadings that before an issue of fact can be said to have been joined by the parties in their pleadings, there must be proper and specific traverse of the facts contained in the pleadings. SeeAGBOR v AGOM (2013) LPELR – 21122.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
JUSTICES
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
VAN VILET TRUCKS NIGERIA LIMITED – Appellant(s)
AND
1. ASSET MANAGEMENT CORPORATION OF NIGERIA (AMCON)
2. MR. ADEDAYO ADETUNMBI – Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A (Delivering the Leading Judgment):
The appeal is against the judgment of the Federal High Court dated 4th March, 2015; coram ABANG, J wherein he granted the 1st Respondent/plaintiff’s claim.
The Appellant being dissatisfied with the decisions of the Court filed an amended Notice of Appeal on 23/4/18, and an amended Appellant’s brief dated and filed on 23/4/18, wherein he formulated seven issues for determination and a reply brief filed on 10/5/18 to the 1st Respondent’s brief which was filed on 27/4/18 wherein he formulated a single issue for determination.
The Appellant submits that the issues for determination in this appeal are as follows:
1. Whether the Plaintiff/1st Respondent has not proved by evidence that it purchased from Devcom Bank and Equitorial Trust Band the loan rights in the loan facilities purportedly granted to the 1st Defendant. OR in the alternative, whether the Plaintiff has not shown by evidence that it is the owner of the loan rights that previously belonged to Devcom Bank and Equitorial Trust Bank.
2. Whether in view of Plaintiff witness admission under cross examination and the obvious fact that Exhibit B1 was written to one Mac Olu & Co Enterprises Ltd and not 1st Defendant, Plaintiff cannot be said to have proved its claims against 1st Defendant.
3. Whether the copy of Certificate of Registration issued by CAC Exhibit B11 and copy of a deed of legal mortgage ‘Exhibit B12 and copy of the Certificate of Occupancy’ Exhibit B13 issued by Lagos Land Registry, Alausa tendered by the Plaintiff are public documents and if they are public documents, whether only certified True Copies of them are legally admissible in evidence in proof of their contents.
4. Whether by the sudden closure of the 1st defendant?s case when its counsel was inevitably not present in Court to open its defence, the 1st defendant?s fundamental right to fair hearing has been violated.
5. Whether based on the proceedings of the trial Court, the trial judge was wrong in casting aspersion and making uncomplimentary remarks about or on the character of Defendant?s Counsel.
6. Whether the trial Court wrongly assumed jurisdiction when be refused to set aside wrong service of the originating -process on the 1st defendant/appellant at an address different from the proper address of 1st defendant stipulated on the statement of claim.
7. Whether the trial Judge erred and was misdirected in equity, law and fact when he (without the knowledge of the 1st Defendant/Appellant and its Counsel) entertained and granted Plaintiff’s Motion ‘Ex-parte and consequently gave far reaching Order against the 1st Defendant during trial in breach of rule of fair hearing (after Plaintiff/1st Respondent had called its witness and closed its case).’
The 1st Respondent submitted a sole issue for determination namely:
“Whether the lower Court was right in entering judgment in favour of the 1st Respondent by Respondent’s Writ of Summon dated December 7, 2012”
In summary, the appeal is in respect of a suit filed by the 1st Respondent herein in respect of loan facilities granted by Devcom bank and Equitorial Trust bank to the Appellant, which became a bad loan and by virtue of the powers vested in AMCON, same was taken over.
The reliefs in the lower Court were:
i) Judgment in the sum of N550.000.000(five hundred and fifty million Naira only)
(ii) Interest on the aforesaid sum at the rate of 14% from the 16th day of December, 2011 till the date of Judgement.
(iii) Post judgement interest at the rate of 21% till final liquidation of entire sum.?
The suit proceeded to trial, evidence was taken and the case closed midway when the lower Court found that the Appellant was delaying the case, his application to set aside and recall was refused and the Court proceeded to judgment.
I shall adopt the Appellant?s issues in the resolution of this appeal, though in the following order: issue 1 (originally issues 1, 6 & 7); issue 2 (originally issues 2 & 3) and issue 3 (originally issues 4 & 5).
ISSUE 1
The Appellant submits that the 1st Respondent did not prove that it purchased the loan from the banks. He referred to paragraph 7 of the statement of claim, Section 131(1) of the Evidence Act and a host of cases to wit: OLANIYAN v OYEWOLE [2011]14 NWLR (PT. 1268) 445 at 483 paras D-E; DUROSARO v AYORINDE [2005] 8 NWLR (PT 927) at 427 E-F; INEC v IFEANYI [2010] 1 NWLR (PT. 1174) 98 at 11; ATTAH v IDI [2015] 2 NWLR (PT 1443) 385 at 400 E-H.
Appellant also raised the issue of locus standi and submitted that there was therefore no jurisdiction to entertain the case in the first place.
The 1st Respondent in reply, submitted that by virtue of Sections 34 and 55 of the AMCON Act 2010 the Respondent purchased the loan as an eligible bank asset, and that upon the receipt of a demand notice, the Appellant recognised and acknowledged the powers of the 1st Respondent as the legal owner of the debt he referred to Exhibits B8 & B9 which were the restructuring and acceptance letters of the Appellant on the asset.
1st Respondent further referred to the paragraphs of the amended statement of defence and submitted that the Appellant did not deny or challenge any of the issues except for bare denials.
The Appellant made submissions in respect of issue 6 that the lower Court wrongly refused to set aside the service of the originating process on the 1st defendant at an address different from the address stipulated for service on the original process.
He referred to the bailiff’s affidavit of service showing that processes were merely dropped at a different address stipulated for service, and that even the statement of claim and other processes had the defendants address at block m plot 26 Apapa-Oshodi Express way, Lagos which tallied with the PW1 witnesss statement on oath.
Counsel made further reference to the rules of Federal High Court Order 6 rules 8, that the lower Court refused to set service aside and held that there was proper service.
The 1st Respondent also contended in response to issue 6 that in refusing to set aside the originating process the Court relied on the affidavit evidence before it that the processes were served on the Appellant at its registered address at 386 Herbert Macaulay Street, Yaba and this was not controverted or stated that the processes were not received.
On another breath 1st Respondent submitted that ground F of the Notice of Appeal is incompetent because it complains of a Ruling of March 4 2013 and that leave of Court was not sought or obtained before appealing an interlocutory decision as required in Section 2(2)(a) and therefore it stands incompetent, reliance as placed on R.E.A.N. PLC v AMINU (2003) 6 NWLR 81, paras A-G.
In its issue seven, the Appellant raised the issue of the lower Court on 14th May, 2013 granting a far reaching Order ex-parte during trial without the Appellant’s knowledge and that, this is contrary to natural justice, equity and good conscience.
The 1st Respondent on the other hand stated that Section 49(1) of the AMCON Act did not provide for putting the Appellant on notice. He added that a Court has powers to preserve the assets of the debtor for the 1st Respondent to have recourse to them in the event that the debts cannot be paid and that this can be made at any time, without notice to the Appellant.
1st Respondent submitted that in any case there was no right of appeal against an ex-parte Order. He referred to NATIONAL INSURANCE COMMISSION & ORS v FIDELITY BOND OF (NIG) & ORS (2016) LPELR – 41427 (CA); ODUBEKO v FOWLER [1993]7 NWLR (PT. 308) 637; OKE v OKE [2006] NWLR (PT. 1008) 224; EYESAN VS NNPC (2012) LPELR – 1967 (CA); Section 14(1) of Court of Appeal Act 2004. 1st Respondent finally submitted that the Federal High Court rules 2009 has provided for the mode of dealing with such matters which is to apply to vary or discharge such ex-parte Orders and not appeal to the appeal Court.
In reply on points of law, the Appellant reiterated its submissions and in support relied on TABIOWO V DISU [2008] 7 NWLR (PT. 1087) 533 at 545 A-B.
RESOLUTION
The issue revolves round the provisions of the AMCON Act, which was an urgent interjection into the financial industry in Nigeria for the purchase and resolution of non-performing loans, when banks were failing, the public was losing confidence in the system, and the public and economy had to be insulated.
The Asset Management Corporation of Nigeria is a statutory corporation and agency of the Federal Government established by an Act of the National Assembly in 2010. See CBN v AMAO [2010] 16 NWLR (PT 1219) 271. It is important to state the objects provided for in Section 4 of the Act therein:
The objects of the corporation shall be to:-
(a) assist eligible financial institutions to efficiently dispose of eligible bank assets in accordance with the provisions of this act;
(b) efficiently manage and dispose of the eligible bank assets acquired by the corporation in accordance with the provisions of his act;
(c) obtain the best achievable financial returns on eligible bank assets or other assets acquired by it in pursuance of the provisions of this Act having regard to
The powers and procedure for the above is in Section 34(1) the Act reproduced below:
34(1) ?…where the corporation acquires an eligible bank assets, such eligible bank asset shall forthwith become vested in the corporation and the corporation shall exercise, all the rights and powers and subject to the provision of this act, become subject to all the obligations of the eligible financial institutions from which the eligible bank asset was acquired in relation to the bank asset, the debtor concerned and any guarantor, surety, or any receiver, liquidator, examiner or any other person concerned and the eligible financial institutions? shall cease to have those rights and obligations
35(1) For the avoidance of doubt, after the corporation has acquired an eligible Bank Asset and subject to any exclusion stated in the purchase agreement relating thereto, the corporation shall be entitled to exercise all rights and powers in relation to the eligible Bank Asset and security interest connected to the eligible bank asset.
The result or effect of the above is that the 1st Respondent has the statutory powers of ownership once it has fulfilled the purpose of its creation which is to acquire eligible bank assets (which in essence, are bad loans) it becomes the owner of the loan instead of the initial banks that advanced the loan facility to the debtor. This step also confers locus standi on the corporation as the bank.
Therefore once the loan becomes vested in the 1st Respondent, the divesting financial institution ceases to have the right to pursue after the debtor. The 1st Respondent becomes seised of an eligible bank asset once it acquires such. See PRIME MARKETING ASSOCIATES LTD & ANOR v KEYSTONE BANK LTD (2016) LPELR – 42262 (CA); ZAMFARA STATE GOVT & ANOR v UNITY BANK & ANOR (2016) LPELR – 41813(CA).
In EFE FINANCE HOLDINGS LTD v OSAGIES, OTEGBOLA & CO [2000] FWLR (PT 6)952, the Court held that:
“AMCON is a purpose made legislation designed to assist the corporation in its aggressive pursuit of debt recovery…”
It is against the purposive statue that requires the intention of the drafters to be the underlying factor when considering the interpretation of any section of the act. The purpose being an aggressive pursuit of debtors and recovery of debts and assets through the judicial process at the shortest period possible. The rate of rising debts profile in the country and its rippling effect on the economy and investors, the stark reality that these loans are the depositors’ funds which were badly managed and all tricks in the book is applied to avoid a return of the loan.
Now in this appeal the said objectives showing the capacity of the 1st Respondent has been pleaded in paragraphs 2 & 7 of the statement of claim:
2. the objects of the Plaintiff include to efficiently manage and dispose of eligible bank assets acquired by the Corporation in accordance with the provisions of the Act and to obtain the best achievable financial returns on eligible bank assets or other assets acquired by it in pursuance of the provisions of the Act, while the functions of the Plaintiff, among others, are to hold, manage, realise and dispose of eligible bank assets (including the collection of interest, principal and capital due and the taking over of collateral securing such assets) in accordance with the provisions of the Act.
7. Plaintiff’s Acquisition Of Eligible Bank Assets
By virtue of its functions as stated by the Act, the Plaintiff is empowered under the Act to acquire loans that qualify as Eligible Bank Assets from any Eligible Financial Institutions, as may be designated by the Central Bank of Nigeria’s (‘CBN’) guidelines, Pursuant to this power, the Plaintiff purchased on a voluntary basis from the Bank, the loan rights in all the loan facilities the Bank had granted to the 1st Defendant, which as at April 6, 2011, was in the sum of N1,201,451,662.08 (One Billion, Two Hundred and One Million, Four Hundred and Fifty-One Thousand, Six Hundred and Sixty-Two Naira and Eight kobo) (?Outstanding Debt).
By exhibit B9 dated 16/12/2011, at page 120 vol. 1 of the record in its first paragraph in the letter, the Appellant acknowledged the 1st Respondent as the owner of the loan: ‘…We hereby refer to the meeting held with your team and our company’s representatives led by our Managing Director, Dayo Adetunmbi on 12th December, 2011 on the restructuring of our indebtedness to Equitorial Trust Bank (ETB) which has been purchased by AMCON…’
Furthermore, in the letter dated 20/3/12 – exhibit B8, wherein the Appellant asked for a reduction of the settlement debt to N550 Million to be paid in one bullet. This again confirmed the knowledge of the position of the 1st Respondent who had taken over the loan portfolio from the two banks. Therefore, I am of the humble view that the Appellant are in law estopped from contending the contrary.
The act is in furtherance of powers of the 1st Respondent which is statutory and the Appellant having admitted same needs no proof. See UBA v JARGABA NSCQR VOL 31 2007; MSC EZEMBA v S.O IBENEME & ORS NSCQ VOL. 19 (2004) PG 352.
It is trite that a party is bound by his own admission. See Phipson on evidence, 15th Edition Sweet and MAXWELL 2000.
On issue seven, it is in respect of an order granted in an interlocutory decision and there is no leave of Court to appeal before the notice was filed as required in Section 242 (a) of the Constitution. It is therefore incompetent and it is hereby struck out.
I have gone through the records and I found that there is no record of the Appellant’s attempt to set it aside or vary by way of a motion. See 7UP BOTTLING CO. LTD v ABIOLA AND SONS LTD (Supra) [1995]3 NWLR (PT. 383) 257, 277 & 280. Obviously, Courts have powers to set aside exparte Orders. See OJUKWU v GOVT LAGOS STATE, [1986] 3 NWLR (PT. 26) 39; ORJI v ZARIA INDUSTRIES LTD [1992] 1 NWLR (PT. 216) 124.
By Sections 49 and 50 of the AMCON Act, a Court can issue an exparte injunction pending the determination of the case to save the res (money or assets) from dissipation or disappearance from the jurisdiction of the Court.
Section 49(1) of the AMCON Act is as follows:
“where the corporation has reasonable cause to believe that a debtor or debtor company is the bonafide owner of any movable or immovable property, it may apply to the Court by motion ex-parte for an Order granting possession of the property to the corporation.
Exparte Order of injunction is therefore vital arsenal to curb surreptitious defendant from bolting away and out of jurisdiction with assets that might meet the judgment debt at the end of the trial. The Order given is called Mareva. It is akin to an interim judgment. The defendant need not be put on notice or heard before it is issue. It is like a sting operation.
The purpose of such exparte injunction may be defeated if the defendant has advance notice, as the element of surprise which is the linchpin of the judicial facility or procedure will be blown open letting the defendant loose to do away with the assets that should have been available for settlement of the judgment debt. See 7UP BOTTLING CO LTD v ABIOLA AND SONS LTD [1995] 3 NWLR (PT. 383); MAREVA COMPANY NAVIERA S.A. v INTERNATIONAL BULCARRERS S.A. (1975) 2 LLOYDS REPORT 509; ANYAWU v. THE EFFCC (2013) 3 LPELR 74 at 105.
This Court has had cause to make pronouncement in respect of this section in TANZILLA PETROLEUM COMPANY LTD & ANOR v ASSEST MANAGEMENT CORPORATION ACT (2015) LPELR 40909 (CA).
‘…Is there anything wrong in filling the recovery action at the same time the exparte was filed/I think the issue is whether it was proper to issue the exparte Order four weeks after filing the substantive suit having regard to Sections 49 & 50 of AMCON Act. Sections 49(1)(2)(3) is explicit and does not in my view admit of any interpretation beyond the plain natural and ordinary meaning of the word used in the legislation. The first step is where the plaintiff conceives that there is reasonable cause to believe that a debtor or debtor company is the owner of a moveable or immovable property, the corporation may then apply exparte for an Order of possession shall be serve on the debtor or debtor company, the plaintiff shall then proceed to file an action within 14 days…’
The fact of this case is different from the circumstances here.
In AMERICAN SPECIFICATIONS AUTOS LTD & ANOR v AMCON APPEAL NO CA/L/66/2013 IKYEGH, JCA held relying on the dictum of UWAIS, CJN that
In both criminal and civil proceedings, there are certain steps to be taken which are incidental or preliminary to the substantive case. Such steps include motions for directions, interim or interlocutory injunctions. The time available for taking the steps may be too short or an emergency situation may have arisen. It therefore becomes necessary to take quick action in Order to seek remedy for or arrest he situation. It is in this respect of such cases that provision are made in Court Rules to enable the party affected to make exparte applications. The Orders to be made by the Court unlike final decisions are temporary in nature so they do not determine the civil obligations.
To bring the point I am making home I refer to the application under consideration at page 388 of vol 1 of the records is the said exparte application for INCIDENTAL/CONSEQUENTIAL ORDER for protection/assistance of officers and bailiffs in the execution of possession orders of the Court on 27th November, 2012 is indeed a follow up to the initial Order obtained at the initial stage of the commencement of the case. It does not amount to a fresh application it’s barely, to giving effect to the Courts Order. Therefore the lower Court acted in line with the powers under the relevant laws and practice direction. It is different from the scenario in TANZILLA’s case.
I find in support the AMCON practice direction of the Federal High Court 2013 made by the Chief Judge of The Federal High Court pursuant to Section 254 of the Constitution and Order 57 rule 3 of the rules of the FHCT, Section 44 of the FHCT Act, coupled with Section 53 And 61 of AMCON Act, permits a claimant to apply to the Court without notice for interim reliefs provided under Section 49 & 50 of AMCON Act and other remedies under Part 13 of the Practice Direction.
Therefore it is in the light of the above that bank debts are endemic and the debtors are applying every wicked trick in the book to frustrate and void the process of judicial recovery. Definitely the judiciary has to apply laws in an aggressive pursuit of recovery will ultimately attract a strict judicial aggressive purposive interpretation of the act and its application, grant Orders, ensure a protection of its Orders within the confines of the law to bring sanity in this area.
I therefore resolve this issue in favour of the 1st Respondent.
ISSUE 2
The Appellant submits on issue 2 that the 1st Respondent tendered exhibit B1 in proof of part of the indebtedness of the Appellant, same was written by Devcom bank to one MAC-OLU & Co Enterprises Ltd in respect of four loan facilities.
That PW1, Respondent’s witness admitted under oath that the total money owed by MAC ?OLU Enterprises (which is a different company from the Appellant) was part of the total sum claimed against the Appellant. He referred to INEC v IFEANYI [2010]1 NWLR (PT. 1174) 98 at 119; HARUNA v K.S.H.A [2010] 7 NWLR (PT. 1194) 615 at 647.
The Appellant referred to the admission of counsel in his final address on this issue on the record, at page 472 lines 1-4 vol. 1. In addition, he contended that the Court considered exhibit B1 irrelevant and hence descended into the arena.
Appellant further contended that these are two separate companies which cannot be liable for each other’s debt he then emphasized M.I.N LTD v M.F.K.W.A. LTD [2005] 10 NWLR (PT. 934) 645; AGWARANGBO v NAKANDE [2009] NWLR (PT. 672) 341 at 349 that the Court has power to revaluate the document.
1st Respondent in reply submitted that the lower Court found and held that Exhibit B1 which made reference to MAC-OLU was in existence before the Appellant wrote exhibit B9 requesting to restructure the loan and exhibit B8 wherein he accepted to pay the sum of N550 Million hence held the said Exhibit B1 irrelevant in the face of admission.
1st Respondent submitted that the claim in the lower Court was for N550 Million the negotiated sum by the Appellant.
They further contended that the Appellant did not challenge Exhibits. He referred to AMEDE v UBA [2008] NWLR (PT. 1090) 656-660 paras H-B. He urged this Court not to interfere with the judgment unless found to be perverse or based on improper appraisal of evidence or misapplication of law. He relied on OLEKSANDR v LONESTAR DRILLING CO LTD [2015] 9 NWLR (PT. 1464) 337.
The Appellant submitted on issue 3 that the documents tendered in proof of the 1st Respondent’s case at the trial were all public documents specifically, Exhibits B11 – certificate of registration by CAC; B12 – copy of deed of legal Mortgage; B13 – Certificate of registration issued by Lagos land registry, Alausa and only certified true copies can be tendered by virtue of Section 102 of the Evidence Act, 89, 104, 105, 106(ii) and iii of the Evidence Act he referred to OKIKI V JAGUN [2000] NWLR (PT. 655) 19; SHANU v AFRIBANK [2002]17 NWLR (PT. 795) 185 at 221; EBENIGHE v ACHI [2011] 2 NWLR (PT. 1230 ) 65 at 79 paras D-E.
He urged the Court to reject the document and expunge them from its record.
The 1st Respondent in response submitted that the contention of the Appellant does not go to the root of the lower Court’s decision. That the decision of the Court was not influenced by the said exhibits and that the Appellant has not shown that the admissibility of the exhibits occasioned a miscarriage of justice. He relied onIBRAHIM v JSC [1998] 14 NWLR (PT. 584) 1.
RESOLUTION
In resolving these two issues together, I shall reproduce the reliefs of the 1st Respondent in the lower Court:
1. AN ORDER granting possession of the land property lying and situate at Plot 26, Block M, Isolo Industrial Scheme, along Apapa/Oshodi Expressway, Lagos State registered to the 1st Debtors at No. 61 at page 61 in Volume 2012 of the Land Registry in the Office at Lagos, and issued with Certificate of Occupancy No. 3/3/2001B dated the 14th day of December, 2000 to satisfy the outstanding debt sum of N550,000.000.00 (Five Hundred and Fifty Million) and interest on the outstanding debt at 14% per annum from the 16th day of December, 2011 until final liquidation of the outstanding debt.
2. AN ORDER directing any of the named Financial Institutions to respectively disclose forthwith, the account number(s) and address(es) of the branch(s) at which the Debtors? account(s) are held and the number of the account(s) held by the Debtors with the Financial Institutions, as at the date of service of the Order of Court, and that such disclosures be made on Oath and verified by an affidavit sworn and filed before this Honourable Court within seven(7) days of the service of the Order of this Court.
3. AN ORDER directing any of the named Financial Institutions to respectively disclose forthwith, a comprehensive statement of the account(s) and sum(s) of monies or fund(s) outstanding to the credit of all the accounts maintained by the Debtors with the financial Institutions, as at the date of service of the Order of Court, and that such disclosures be made on Oath and verified by an affidavit sworn and filed before this Honourable Court within seven (7) days of the service of the Order of this Court.
4. AN ORDER directing any of the named Financial Institution who fails to file and serve an affidavit within 7 days of service of the Order of Court upon it, to appear before this Honourable Court within 14 days of service of the Order of Court upon it to show cause why an Order should not be made for payment to the Plaintiff/Applicant of the total outstanding sum of N550, 000,000.00 (Five Hundred and Fifty Million) and interest on the said debt at 14% per annum from the 16th day of December, 2011 until final liquidation of the debt.
5. AN ORDER attaching and freezing the account(s) and or funds of the Debtors in the custody of any of the above named Financial Institutions, or any of their branches within the jurisdiction of this Honourable Court to the total outstanding debt sum of N550, 000,000.00 (Five Hundred and Fifty Million) and interest on the outstanding debt at 14% per annum from the 16th Day of December, 2011 until final liquidation of the outstanding debt.
And for such further notice that the grounds upon which this application is brought are as follows:
i. The Debtors have by their letters dated December 16, 2011 and March 20, 2012 admitted their indebtedness to the Plaintiff/Applicant in the sum of 550,000.000.00 (Five Hundred and Fifty Million) and interest on the outstanding debt at 14% per annum.
ii. The 1st Debtors is the owner of the landed property lying and situate at Plot 26, Block M, Isolo Industrial Scheme, along Apapa/Oshodi Expressway, Lagos State registered at No. 61 at page 61 in Volume 2012 of the Land Registry in the Office of Lagos and issued with Certificate of Occupancy No. 3/3/2001B dated the 14th of December, 2000.
iii. The Debtors have acknowledge their indebtedness to the Plaintiff/Applicant and promised to pay the indebted sum in their letter dated December 16, 2011.
iv. Despite repeated demands, the Debtors have failed, refused and neglected to make good their indebtedness to the Plaintiff/Applicant.
v. The Debtors both operate bank account(s) and have funds in the custody of any of the above named Financial Institutions, or any of their branches within the jurisdiction of this Honourable Court.
vi. The provisions of Section 49 and 50 of the Asset Management Corporation of Nigeria Act vest this Honourable Court with the powers to make the orders sought by the present application in the given circumstances.
vii. The Applicant is prepared upon the granting of this application to commence a debt recovery action against the Debtors in respect of whom the Orders in this application are being sought, within the period stipulated by the applicable law.
viii. The interest of justice will best be served by the grant of this application.
From the above, it is clear that the basis of the claim below is on money by way of facilities advanced to the Appellant, this fact is unchallenged even throughout the defence they did a general denial which in law amounts to no denial, the said exhibit B1 is a letter of offer of a facility dated 13th March 2003, same was tendered by the 1st Respondents witness, but in the statement of claim in paragraph 11 it refers to a mortgage facility created in 24th December 2012,in paragraph 7 of the said claim they averred that the Appellant approached them for settlement upon a letter of demand being received by them this led to a request for settlement and restructuring of the debt of N1,201,451,662.08 followed by series of meeting and eventual agreement of the sum of N550 Million accepted as being owed. This is found in Exhibit B8 & B9 dated December 16 2011, signed by Managing director – 2nd Respondent.
Therefore the tendering of Exhibit B1 I agree is irrelevant and having contradicted the claims, Exhibit B1 is unreliable but what is more reliable is the letters of the Appellant which is a clear admission. It was written and was in existence before Exhibit B8 & 9 (letters of admission) and the Appellant still admitted the debt.
The heavy weather made by the Appellant, is to my mind neither in their favour, having made the fatal admissions. Therefore the proof of the claim of the 1st Respondent has not been affected.
Most crucial is the issue 3 in respect of public documents, its trite that all public documents are to be certified by the issuing authority before they can be admitted in evidence. See Section 104 of the Evidence Act.
The Appellant did not object to this procedure which is entirely his fault or perhaps he was digging the pit of the 1st Respondent hence he kept in this regard. Howbeit the documents were wrongly admitted in that state but, having said this; the crucial question is, how does this affect the case of the 1st Respondent and the judgment?
The answer is to repeat all the analysis in the previous issue, that even without these documents we must not lose sight of the fact that the case of the 1st Respondent is fought on the clear unequivocal admission of the Appellant in exhibits B8 & B9.
In UBA & ANOR v ALHAJI BABANGIDA JARGABA NSCQR VOL 31 Pg 144 it was held that facts admitted need not be proved therefore minimal proof is required from the 1st Respondent in this case. A look at the defence, reveals a general denial nothing specific.
Paragraphs 8 – 10 of the claim is insightful and throws much light to extent of the averment but I shall also reproduce relevant paragraphs of the defence for clarity sake:
STATEMENT OF CLAIM
8. By the Defendants’ letter dated December 16, 2011, which was addressed to the Managing Director of the Plaintiff, the Defendants applied for the restructuring of the outstanding debt and approval was given by the Plaintiff of a settlement amount in the sum of N517,000,000.00 (Five Hundred and Seventeen Million Naira Only) as full and final payment for the outstanding Debt; and payment of interest rate of 14% per annum on the negotiated sum.
The Plaintiff shall at the trial of this action rely on the 1st Defendant?s letter dated December 16, 2011 and signed by the 2nd Defendant?s letter dated December 16, 2011 and signed by the 2nd Defendant…
Agreement To Restructure Outstanding Facility
9. The plaintiff agreed to restructure the outstanding Debt and approved the settlement amount in the sum of N550,000,000.00 (‘Agreed Sum’) as full and final payment for the outstanding Debt; and payment of interest rate of 14% per annum on the negotiated sum. The Defendants have since failed, refused and neglected to pay the approved settlement sum and by a letter dated March 20, 2012, the Defendant appealed for a grace period to enable them make a bullet payment of the Agreed Sum
The Plaintiff shall at the trial of this action rely on the 1st Defendant?s letter dated March 20, 2012.
10. The Plaintiff agreed to further extend the grace period for the payment of the Agreed sum, but the Defendants failed, refused and neglected to pay the Agreed Sum; and by a letter dated May 4, 2012, the Plaintiff issued a final demand letter on the Defendants to pay the Agreed Sum within seven (7) days from thedate of the letter, but the Defendants have still failed, refused and neglected to pay the Agreed Sum. The Plaintiff shall at the trial of this action rely on the Plaintiff?s letter dated May 4, 2012.
1ST DEFENDANT’S AMENDED STATEMENT OF DEFENCE vol. ii page 434
1.The 1st Defendant denies paragraph 1,2,4,5,6,7,8,9,10,11,12,14,15 and 16 of the statement of claim and puts the plaintiff to the strictest proof thereof.
2. The 1st Defendant admits paragraph 3 of the Statement of Claim.
3. Then 1st Defendant denies paragraph 5 of the statement of claim and specifically avers that the offer letter dated March 13, 2013 was not issued in its favour and neither was same accepted by 1st defendant’s authorised representative.
4. Further to paragraph 3 above, the four loan facilities in the various of N62,000,000.00, N119,075,500.00, N199,075,500 and N5,000,000.00 covered by the said letter of March 13, 2013 were granted in favour of one Mac-Olu & Co. Enterprises Ltd, the said loan facilities were accepted by one Chief F. Olu Makinde and one Basirat M. Durojaiye for and on behalf of Mac-Olu & Co. Ent. Ltd.
5. Consequently, the 1st defendant is not liable for any default in respect of any of the four loan facilities covered by the letter dated March 13, 2013.
6. the 1st Defendant specifically denies paragraph 11 of the Statement of Claim and avers that no legal mortgage was created contrary to the averment of the Plaintiff.
There is no direct answer to the averments in the statement of defence only extraneous issues to the claim about the Appellant being owed /issues with his bank, he has not denied the signature of the Managing director or the restructuring, this is fatal to his defence and does not aid him in any way, the defence simply prevaricates.
Pleadings are a reflection of the role of the Court and as an aspect of the adversary system of civic proceedings. See AFRICAN CONTINENTAL SEAWAYS LTD NDRGW LTD 1977 LPELR 209 SC.
Furthermore, it is trite that the principles of pleadings that before an issue of fact can be said to have been joined by the parties in their pleadings, there must be proper and specific traverse of the facts contained in the pleadings. SeeAGBOR v AGOM (2013) LPELR – 21122.
In OGU v MANID TECNOLOGY & MUTIPURPOSE CO ?OPERATIVE (2010) LPELR ? 4690 (CA) per GARBA, JCA at pages 38 ? 41, paras. A-F on the question whether every material facts in a statement of claim must be specifically traversed, held as follows:
“Well, it is a known cardinal principle of pleadings that before an issue of fact can be said to have been joined by the parties in their pleadings, there must be proper and specific traverse of the fact/s contained in the pleadings. Where a positive and specific allegation or statement of fact was made by q party in his pleadings, there must be express and specific traverse of such allegation of statement of fact for an issue to be properly joined by the parties on such fact. So if a defendant wishes to join issues with a plaintiff on any statement of fact in the statement of claim, he must state specifically the facts of the denial in the statement of defence otherwise there would be no proper traverse which gives rise to an issue joined in the pleadings.
The Supreme Court in the case of OTAPO v. SUNMONU (1987) 2 NWLR 587 at 592 had stated the principle thus:- ?A denial in a statement of defence that “the defendants deny paragraph ….. of the statement of claim and put the plaintiff to the strictest of proof thereof” amounts to insufficient denial or insufficient traverse to put the matters thus denied in issues.” See also: LEWIS & PEAT (MG.) LTD. V. AKHIMIEN (1976) 1 ALL NLR 460; AKINTOLA v. SOLANO (1986) 2 NWLR 598; ADIMORA v. AJUFO (supra); OSAFILE v. ODI (1994) 2 SCNJ 1.
Flowing from the above principle, if pleadings which contain the statement of the facts upon which the cases of the parties are predicated, are to have any effective meaning at all, they must specifically deal with points of substance and should not be evasive or half-hearted in stating what the position of a party is in a case. For a defendant, a half-hearted, weak or evasive denial of a specific statement in the statement of claim would be regarded as insufficient traverse and therefore an admission of such statement. In the above pleading by the Respondent, it was positively specifically that it was dispatched to his house. In reaction to that assertion of fact, the Respondent merely made a general and obtuse allegation or statement that paragraph 13 of the Respondent’s affidavit which was on oath, but alleged that it was false. The averment in paragraph 3 of the Appellant’s affidavit is rather spurious and did not properly and effectively traverse the Respondent’s Paragraph 13 to join issue on the fact of the service of the Exhibit P3 on the Respondent.
Consequently there was no issue joined in pleadings for the Respondent to call evidence in proof of at the hearing of the case. There must be an issue of fact properly joined by the parties in their pleadings before there could be proof because after all the onus of proof is one (sic) to prove an issue. See: NIGERIAN GENERAL INSURANCE v. EMOH (1990) 3 NWLR (138) 314; LEWIS & PEAT v. AKHIMIEN (supra). Since there was no proper and effective traverse of the averment in the Respondent’s paragraph 13 by the Appellant, the Respondent had no duty to call evidence in proof thereof because the law presumes that the Appellant had conceded or admitted to it. In this con the Lower Court was right in its judgment when it held that ‘the Defendant never denied the receipt of the letter’ in reference to Exhibit P3. Being evidence in support of the Respondent’s pleading which was deemed admitted by the Appellant, the Lower Court was right in relying on it in its judgment.
The Supreme Court also in OTAPO v SUNMONU (1987) 2 NWLR 587 at 592 stated the principle thus:
“A denial in a statement of defence that the defendants deny paragraph…of the statement of claim and put the plaintiff to the strictest proof therefore amounts to insufficient denial or insufficient traverse to put the matters thus denied in issue see LEWIS & PEAT MG LTD V AKHIMIEN 1976 1 ALL NLR 460; AKINTOLA V SOLANO (1986) 2 NWLR 598…”
Pleadings should not be evasive or half hearted in stating what the position of the party is in a case.
Section 20 of the Evidence Act defines an admission as a statement, oral or documentary, or conduct which suggests any inference as to any fact in issue or relevant fact, and is made by any of the persons, and in the circumstances, mentioned in this Act.
Section 23 of the Evidence Act on admissions by person expressly referred to by party to suit states that:
“Statements made by person to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.
On the above I resolve the issue against the Appellant.
ISSUE 3
On the Appellant’s issue 4, he complained about the sudden closure of its case when it was inevitable for him not to be present in Court to open its defence, and that same amounted to a violation of Appellant’s fundamental right to fair hearing. Appellant referred to series of proceedings wherein the learned trial Court held as evidence of unethical conduct on the part of Appellant counsel. He contended that they were erroneously reflected in the reasoning behind the closure of his case.
He referred to proceedings of 7/5/13; 16/5/13; 20/6/13; 25/6/13; 12/7/13; 24/10/13; 3/2/14; 2/5/14; 6/5/14; 13/5/14; 30/5/14; 16/6/14; 17/6/14 respectively and adduced reasons for the adjournments of each date.
In summary he submitted that he applied for only three of the adjournments and the 1st Respondent applied for four times while the Court adjourned at it instance six out of the thirteen times and therefore the entire dates cited by the lower Court as unethical conduct attributable to him is not correct.
On points of law Appellant relied on PAM V MOHAMMED (2008)16 NWLR (PT 112 1 AT 68.NATIONAL ASSEMBLY V CCI LTD 2008 5 NWLR (PT 1081) 519 at 543 -544 HC.UDUMA V ARUNSI 2009 17 NWLR (PT 1170) 310 at 324.
Coupled with this, where the Appellant submitted on issue 5 that based on the complaints in issue 4 above, the learned trial judge was wrong in casting aspersion and making uncomplimentary remarks about or on his character.
On issue 4 on the foreclosure of Appellant?s right to call evidence, 1st Respondent counsel submitted that the foreclosure did not amount to denial since the Appellant failed to take several opportunities to present its case. He referred to page 510-511 vol iii of the judgment. He relied on NEWSWATCH COMMM LTD V ATTA (2006) ALL FWLR (PT 318) 611; ALHAJI SALEH V ALHAJI MONGUNO & ORS (2002) FWLR (PT 87); CHRISDON INDUSTRIAL LTD & ANOR V AIB LTD (2002) FWLR (PT 128) 1355; OTOKPA V. MR OGEYIN & ORS (2005) ALL FWLR (PT 272)318 at 326.
1st Respondent contended that the lower Court considered the letter of adjournment and ruled upon and called defendant witness in Court who refused to open its defence.
In respect of issue 5, the 1st Respondent submitted that this issue was formulated from ground D which is also the basis for issue 4 and therefore is incompetent. He relied onEGBE V ALHAJI &ORS (1990) 1 NSCC (VOL 21) (PT 1) 306 at 332; AGBETOBA V LAGOS STATE EXECUTIVE COUNCIL (1991) 4 NWLR (PT 188) 664. He urged this Court to discountenance the Appellant?s submission on the issue.
RESOLUTION
The issues for determination as clearly set out in the Appellant?s brief together with the ground upon which they stand, issues 4 & 5 both emanate from ground D. It is a wide known principle of law that more than one issue for determination must not flow from one ground of appeal. In fact part of issue seven also touches on ground D.
The apex Court in YISI (NIG) V TRADE BANK PLC (2013 LPELR ? 20087 – SC, has frowned heavily in a host of cases that:
Where more than one issue is formulated from the same ground of appeal both the issues so formulated and the ground from which they were formulated shall be struck out.
See AGBETOBA V LAGOS STATE EXECUTIVE COUNCIL & ANOR 1991 6 SCNJ PT 1PG 12, TANAREWA NIG LTD V PLASTIFARM LTD 2003 14 NWLR PT 840 P 369.
It is also trite that a party is not allowed to formulate more than one issue for determination out of ground of appeal even though he can combine two or more grounds of appeal in formulating a single issue for determination. This is the principle against the proliferation of issues for determination by parties. See also ALHAJI MUSTAPHA DUROJAIYE AJISEGIRI & ORS V OBA BASHIRI SALIU SALAMI (2016) LPELR- 40567(CA); AMODU V THE COMMANDANT P.C. MAIDUGURI & ANOR (2009) 15 NWLR (PT 1163) 75 SC; NWANKWO V YARADUA (2010) 12 NWLR (PT 1163) 518 SC; AYOADE V ADEYESO (2010) 47 WRN 155.
Therefore issues 4 & 5 (issue 3) and ground D of the ground of appeal are incompetent and are hereby struck out.
On the whole, having resolved all the issues against the Appellant, I hold that this appeal lacks merit and it is accordingly dismissed.
The judgment of the lower Court coram ABANG, J delivered on the 4th of March, 2015 is hereby upheld.
TOM SHAIBU YAKUBU, J.C.A.: I am in agreement with the reasons proffered in the lead judgment by the HONOURABLE JUSTICE ABIMBOLA OSARUGUE OBASEKI- ADEJUMO, J.C.A. I have nothing more useful to add, to it.
The judgment by Abang, J:, rendered at the Federal High Court, Lagos Division, Lagos, on 4th March, 2015 is hereby affirmed.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my lord ABIMBOLA OSARAGUE OBASEKI – ADEJUMO, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.
Appearances:
Babalola IkotunFor Appellant(s)
C. I. Umeche with him, O. Adebiyi for Respondent.
Kayoed Ogunyemi G. M. for Respondent.
Bola Onabanjo lead representative AMCONFor Respondent(s)
