ARAB CHEM LTD v. PHARM RALPH OWODUENYI (2013)

ARAB CHEM LTD v. PHARM RALPH OWODUENYI

(2013)LCN/5831(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 8th day of January, 2013

CA/K/339/2007

RATIO

COUNTER CLAIM: A COUNTER CLAIM SHOULD BE TREATED AS A SEPARATE AND DISTINCT ACTION

“In Jegede v. Citicon Nig Ltd (2001) 4 NWLR Part 702 page 112, it was stated, per Oguntade, J.C.A. (as he then was); that a counter-claim for all practical purposes ought to be seen and treated as an action separate and distinct from the principal or main action. Further, in General Oil limited v. FSB International Bank Plc (2005) 5 NWLR Part 919 page 579, where it was contended by the Appellants that it was wrong of the trial Court to have considered the Respondent’s claim in isolation from their claim, M.D. Muhammad, J.C.A (as he then was) stated that although by the Rules of Court, the Defendants, that is, the Appellants’ were entitled to present their counter-claim, being Defendants to Respondent’s action, the Rules did not provide that the two must be determined simultaneously. The law is that it is an independent action that stands to be proceeded with should the Plaintiff’s claim succeeded or even abated or had been discontinued or had not succeeded.” Per ORJI-ABADUA,J.C.A.

PLEADINGS: PARTIES ARE BOUND BY THEIR PLEADINGS

“It is a basic principle that a party may admit the truth of the whole or any part of another party’s case. He may do this by his pleading. Where the admission is made in the pleading, the party making same is bound by it. It is the law that parties are bound by their pleadings, and, that matters admitted by the parties require no further proof. As rightly submitted by the Respondent’s Counsel, the trial Court has the power under Order 29 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987 to enter part-judgment in the sum admitted. In Mosheshe General Merchants Ltd v. Nigeria Steel Productions Ltd (1987) 2 NWLR Part 55 page 110: (1987) ALL NLR 309, the Supreme Court in interpreting the provision of Order 27 Rule 3 of the English Rules 1965, which is in pari materia with the provisions of Order 29 Rule 3 (supra), had this to say: “Where as in the instant appeal the claim is for a definite sum allegedly owed by the defendant and the defendant admits owing part of this sum, no difficulty will or should arise in the Court entering judgment for the sum admitted leaving the balance to be contested. In such a case, the judgment could be entered upon an oral application to the Court provided that the Court at its discretion may have regard to circumstances of the case, grant the application and enter judgment there and then or order the applicant to formally move the Court. Yet the admission in such a case is a solemn declaration of indebtedness of the defendant to the Plaintiff; in the sum admitted.”.” Per ORJI-ABADUA,J.C.A.

COUNTER CLAIM: MAIN CLAIM AND COUNTER CLAIM ARE DISTINCT AND SEPARATE

“The main claim and counter-claim are two separate and distinct claims that require separate proof. It follows that where judgment is entered summarily in favour of plaintiff under the summary judgment procedure by virtue of the Civil Procedure Rules of the High Court, the Defendant shall be allowed to continue against or proceed with his counter-claim against the Plaintiff and prove the same. The parties should be reminded that no action is determined on the parties’ pleadings only. The pleaded facts must be supported by credible evidence before they could be founded upon except admitted facts that need no further proof.” Per ORJI-ABADUA,J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

ARAB CHEM LTD Appellant(s)

AND

PHARM RALPH OWODUENYI Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A.(Delivering the leading Judgment): The Respondent, a former employee of the Appellant, who, during the period of his employment with the Appellant,was said to be stricken by stroke, and,whose employment was, presumably, terminated as a result of the debilitating illness, commenced a suit against the former employer, i.e. the Appellant, on the 8th December, 2006 in suit No. KDH/KAD/836/2006. He claimed against the Appellant as per paragraphs 28 and 29 of his Statement of Claim dated 23/1/2007 and filed on 24/1/07 as follows:
“28. Whereof the Plaintiff claimed from the Defendant,the sum of N6,259,832.20 made up as follows:-
(a) The sum of N1,259,832.20 as his accumulated emoluments and expenses.
(b) The sum of N5 million being compensation as a result of his incapacity caused in the and as a result of the Defendant’s work.
29. The Plaintiff further claims a right of lien on the Defendant’s bus with Registration No. BE743KTD which was packed in his premises.”
In challenging the suit, the Appellant filed a Statement of Defence and Counter-Claim dated 19/2/07. At paragraph 5 of the Counter-Claim, posited at page 9 of the record of appeal, the Appellant claimed against the Plaintiff thus:
“5. Whereof the defendant claims from the Plaintiff the sum of N1,100,600.00 (One million one hundred thousand six hundred naira) itemized as follows:
(a) The sum of N700,000.00 being value of bus wrongfully held by Plaintiff or return of same alternative.
(b) The sum of N300,000.00 being damages for loss of use of bus.
(c) The sum of N100,000; being float unaccounted for.
(d) The sum of N600,000; being cost of Glo lines wrongfully withheld by Plaintiff.”
Further, the Respondent filed a Reply to Statement of Defence and Counter-Claim dated the 1st March, 2007 on that same day. However, due to the averment made by the Appellant at paragraph 9 of it’s Statement of Defence and Counter-Claim with regard to the Respondent’s terminal benefit, it’s disputation with the computation done by the Respondent and its assertion of what it believed was its clear agreement with the Respondent, that only renders it liable for the sums stated in the said paragraph, the Respondent filed a Motion on Notice dated the 5th March, 2007 before the lower Court. He prayed the lower Court for an order entering Judgment in the sum of N575,568.42 against the defendant in his favour, being an admission in paragraph 9 of the Statement of Defence and allowing him, the Plaintiff, to prove the rest. The application was contested by the Appellant which filed a counter-affidavit of four paragraphs deposed to by one Lukman Shittu, the litigation Secretary in the Law Firm of Lekan Oyerinde & Associates, the Appellant’s Counsel. The application was heard and considered by the trial Court, and, in its ruling delivered on the 25th June, 2007, the Court entered part-Judgment in favour of the Plaintiff, i.e., the Respondent, against the Defendant in the said admitted sum of N575,568.42 as prayed and per paragraph 9 of the Defendant’s Statement of Defence. The Appellant was taken aback by the decision of the lower Court. Obviously disappointed with it, the Appellant, immediately, on that same 25/6/2007 lodged an appeal against the said decision by a Notice of Appeal dated the same 25th June, 2007. The appeal was hinged on just one ground of appeal, and he sought for an order setting aside the said ruling of the 25th June, 2007. As I have just remarked, there is only one ground of appeal in the Appellant’s Notice of Appeal, out, of which, he, naturally formulated one issue, which reads:
“Whether in the light of totality of its pleading, the Appellant admitted the sum of N575,568.42 summarily entered in judgment against it.”
The said issue was, equally, adopted by the Respondent.
It was argued on behalf of the Appellant by his Counsel,Olalekan Oyerinde Esq, that even though at paragraph 9 of its Statement of Defence and Counter-Claim the Appellant acknowledged that by its own computation the Respondent had monetary terminal benefit in the sum of N575,568.42, the Appellant was not liable to pay the same to the Respondent by reason of the facts pleaded at paragraph 7 of its Statement of Defence and paragraphs 2 and 3 of its Counter-Claim. Learned Counsel for the Appellant cited Owosho v. Dada (1984) 7 SC 149 and stated that a fact cannot be deemed admitted if it is either expressly or by implication denied.
He stressed that the aforestated paragraphs revealed the Appellant’s patent and manifested intension to deny liability of paying terminal benefit it acknowledged that was due to the Respondent at paragraph 9 of the Statement of Defence. He then referred to Order 24 Rule 33 of the Kaduna State High Court (Civil Procedure) Rules, 1987 and the cases of NBC Plc v. Oboh (2000) 11 NWLR Part 677 page 212 at page 223 paragraphs E-H, Pan Asian African Co. Ltd v. National Insurance Co. Ltd (1982) 9 SC 1, Titiloye v. Olupo (1991) 7 NWLR Part 205 page 519, Iga v. Amalari (1976) 9 – 10 SC 135, Seismo Graph Services Ltd v. Eyuafe (1976) 9 – 10 SCNLR 358, Okesuji v. Lawal (1986) 2 NWLR Part 22 page 417, Anason Farms Ltd v. NAL Merchant Bank (1994) 3 NWLR Part 331 page 241, and stated that the Appellant cannot be held to have admitted to pay that part of terminal benefits it acknowledged. He further stressed that the said paragraph 9 of the Appellant’s Statement of Defence was read disjunctively by the trial Court instead of conjunctively with other paragraphs in the pleadings. He, therefore, persuaded that this appeal be allowed and that the ruling of the lower Court be aside.
Then, learned Counsel for the Respondent, Deborah Shiklan (Esq.); in the Respondent’s Brief, adopted before this Court by S. A. Akanni Esq; firstly, submitted that in a suit for monetary claim, the plaintiff is at liberty to ask for part-payment of the amount claimed on the Writ of Summons if there is a clear admission by the defendant of the indebtedness of the sum so claimed. She made reference to the cases of Asaba ile Mill Plc v. Bona v. ile Ltd. Part 364 page 336 at page 358-359 paragraphs F – B; Azbek Nig. Ltd v. Abuja Investment & Property Development Co. Ltd (2003) FWLR Part 180 page 1441 at 1449 paragraph D, and the provisions of Order 29 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987 in support. He stressed that in the absence of any admission to the Appellant’s counter-claim by the Respondent, a defence of set-off, cannot avail the Appellant, therefore, the trial Court was right. He submitted that once a debt is admitted, it should be given effect to, irrespective of what may crop up. He further stated that for a plea of set-off to act as a bar to the claim of the Plaintiff, such a plea must be expressly stated in the statement of defence, and, that the defendant seeks to set-off such debt or claims in extinction or diminution of the Plaintiff’s claim. He cited the cases of; Asaba ile Mill Plc v. Bona ile Ltd (supra) at page 357, paragraphs C – D and F – G; and Unity Bank Plc. v. Oluwafemi (2007) ALL FWLR Part 382 page 1923 at 1946 paragraphs D – A in support. Counsel further pointed out that at no where in the Appellant’s pleading did it state that it intended the sums computed by it to act as a set-off. He, however, stated that even at that, the said sum of N1,100,600 being the Appellant’s counter-claim is to operate as a set-off against the Respondent’s claim of N6,000,000. Counsel then urged that this appeal be dismissed.
To tackle the only issue raised in this appeal, I feel it is of immense necessity that paragraphs 21 and 9 of the Respondent’s and Appellant’s Statement of Claim and Statement of Defence and Counter-Claim respectively be reproduced hereunder.
Paragraph 21 of the Appellant’s Statement of Claim reads thus:
“21. Wherefore the plaintiff claims special damages from the Defendants in the following terms;
(1) December salary in lieu of notice – N43,810.00
(2) Pay in lieu of leave (10) weeks – N15,158.42
(3) 2006 leave allowance – N78,823.80
(4) HHF/Pension Fund – N244,850.00
(5) Gratuity (for 5 years) – N219,050.00
(6) 2006 end of year bonus – N87,300.00
(7) Medical Bills as at Nov. 2006 – N42,200.00
(8) November, 2006 Salary for his Driver – N10,500.00
(9) November, 2006 Expenses – N64,150.00
(10) June/July 2005 Fuel Claim – N99,680.00
(11) Car Refurbishing Allowance – N1,00.00.00
(12) Areas of 2006 Compensation – N219,000.00.”
Then, the Appellant averred at paragraph 9 of it’s Statement of Defence and Counter-Claim as follows:
“9. The defendant denies paragraph 21 of the claim on computation of terminal benefit and states that its clear agreement with plaintiff only renders it liable for sums below:-
(a) December salary in lieu of notice – N43,810
(b) Payment in lieu of 10 weeks leave – N15,158.42
(c) Pension refund – N244,850
(d) Gratuity (5 years) – N219,050
(e) Medical bills – N42,200
(f) November, 2006 driver’s salary – N10,500
Wherefore the defendant shall urge the honorable court to dismiss plaintiff’s claim aside as delineated above as lacking in merit.”
The argument presented by the Appellant’s Counsel regarding the contents of paragraph 9 vis-‘a-vis paragraphs 7, 2, and 3 of the Appellant’s Statement of Defence and Counter-Claim postulates that they were never intended to constitute an admission capable of rendering the Appellant liable to paying the Respondent the said acknowledged sum of N575,568.42 it computed thereat as the agreed terminal benefit of the Respondent, since the Appellant has a counter-claim or set-off against the Respondent which includes, the respective sums of N100,000.00 being float unaccounted for, and, N700,000.00 being value of the bus wrongfully held by the Respondent.
I must say that I find the Appellant’s contention incomprehensible. Perhaps, to assist this Court, one has to go into or engage in semantics. It is clear in the Appellant’s Statement of Defence and Counter-Claim that it disputes the Respondent’s own computation of his entitlements or terminal benefits, particularly, the items and the figures he arrived at. It is clear that when a party denies a computation carried out by the other party, he is saying in essence that the computation is not true. In order to portray the accurate figures, that is what it was legally responsible to pay as per its agreement with the Respondent, after enumerating the items under paragraphs (a)-(f), the Appellant concluded the said paragraph by stating thus:
“Wherefore the defendant shall urge the honourable Court to dismiss Plaintiff claim aside as delineated above as lacking in merit.”
One may pause here for a second and then decipher, the phrase; ‘dismiss Plaintiff’s claim aside as delineated above.’ It is apparent in the con of usage of the word; ‘aside’ by the Appellant that it was doing nothing more than persuading this Court to dismiss the Respondents action or claims except as, or apart from the ones the Appellant had described in vivid detail. By the Appellant’s paragraph 9, there was clear admission of the extent to which the Appellant owed the Respondent in respect of his terminal benefits. At paragraph 28(a) of the Respondent’s Statement of Claim, it was clearly depicted that all the Respondent’s emoluments and expenses came to a total sum of N1,259,832. This figure or computation was what the Appellant disagreed with and, then stated it’s own version.
I must state that this seems a clear admission of part of the Respondent’s claim.
It is a basic principle that a party may admit the truth of the whole or any part of another party’s case. He may do this by his pleading. Where the admission is made in the pleading, the party making same is bound by it. It is the law that parties are bound by their pleadings, and, that matters admitted by the parties require no further proof.
As rightly submitted by the Respondent’s Counsel, the trial Court has the power under Order 29 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987 to enter part-judgment in the sum admitted. In Mosheshe General Merchants Ltd v. Nigeria Steel Productions Ltd (1987) 2 NWLR Part 55 page 110: (1987) ALL NLR 309, the Supreme Court in interpreting the provision of Order 27 Rule 3 of the English Rules 1965, which is in pari materia with the provisions of Order 29 Rule 3 (supra), had this to say: “Where as in the instant appeal the claim is for a definite sum allegedly owed by the defendant and the defendant admits owing part of this sum, no difficulty will or should arise in the Court entering judgment for the sum admitted leaving the balance to be contested. In such a case, the judgment could be entered upon an oral application to the Court provided that the Court at its discretion may have regard to circumstances of the case, grant the application and enter judgment there and then or order the applicant to formally move the Court. Yet the admission in such a case is a solemn declaration of indebtedness of the defendant to the Plaintiff; in the sum admitted.” Further, at page 315, the Supreme Court clarified that, “it was the duty of the plaintiff’s Counsel to point out to limit his statement of defence (sic) (claim) to amount still in dispute and also it was the duty of the trial Judge to limit the remainder of the trial only to that amount still in contest…. Indeed he should have entered judgment for the amount already admitted before continuing the trial.” See, also, I.N.B. Plc v. Comrade cycle co. Ltd (1998) 1 NWLR Part 574.
It must be observed that the fact that there is a counter-claim notwithstanding, the trial Court could still enter judgment for the sum already admitted by the Defendant. A counter-claim is a claim filed in opposition to another claim in a legal action. Just as a plaintiff who is pursuing a claim may apply immediately for judgment if the defendant’s statement of defence contains an admission of the facts or part of the claims stated in the plaintiff’s statement of claim, so is the defendant, who is pursuing a counter-claim under the Rules of Court entitled to apply immediately for judgment if the Plaintiff’s defence or response contains an admission of the facts or part of the claims stated in the defendant’s counter-claim. Why I stated this is that it does not matter that there is a counter-claim, the moment there is an admission by the Defendant of part of the Plaintiff’s facts under monetary claim, the plaintiff can apply for part judgment in respect of the sum already admitted.
The plaintiff’s claim and the defendant’s counter-claim are two different actions that they can be heard independent of the other. There is no doubt that the said sum of N575,568.42 clearly admitted by the Appellant at paragraph 9 of its Statement of Defence and Counter-Claim is an admission of some of the facts contained in the Respondent’s Statement of Claim and part of the entire sum of N6,259,832.20k sought as relief by the Respondent against the Appellant. It is not as if the award of the said sum of N575,568.42 brought to an end, the Respondent’s claims. The Plaintiff has before the lower Court the remaining claim or the contested facts upon which issues had been joined by the parties to prove.
As I observed earlier it is established that both the main action and counter-claim are not the same, and trial on a counter-claim would commence notwithstanding that the original was stayed, discontinued or dismissed. In Jegede v. Citicon Nig Ltd (2001) 4 NWLR Part 702 page 112, it was stated, per Oguntade, J.C.A. (as he then was); that a counter-claim for all practical purposes ought to be seen and treated as an action separate and distinct from the principal or main action. Further, in General Oil limited v. FSB International Bank Plc (2005) 5 NWLR Part 919 page 579, where it was contended by the Appellants that it was wrong of the trial Court to have considered the Respondent’s claim in isolation from their claim, M.D. Muhammad, J.C.A (as he then was) stated that although by the Rules of Court, the Defendants, that is, the Appellants’ were entitled to present their counter-claim, being Defendants to Respondent’s action, the Rules did not provide that the two must be determined simultaneously. The law is that it is an independent action that stands to be proceeded with should the Plaintiff’s claim succeeded or even abated or had been discontinued or had not succeeded. It was further held that a counter-claim persists until same is eventually determined notwithstanding the fact that the Respondent’s claim had already been determined.
The main claim and counter-claim are two separate and distinct claims that require separate proof. It follows that where judgment is entered summarily in favour of plaintiff under the summary judgment procedure by virtue of the Civil Procedure Rules of the High Court, the Defendant shall be allowed to continue against or proceed with his counter-claim against the Plaintiff and prove the same.
The parties should be reminded that no action is determined on the parties’ pleadings only. The pleaded facts must be supported by credible evidence before they could be founded upon except admitted facts that need no further proof.
In the instant appeal, the Appellant referred this Court to paragraph 7 of the Statement of Defence and paragraphs 2 and 3 of it’s Counter-Claim respectively. By so doing, it is trying to persuade this Court to do the impossible, to decide the case on the pleadings of the parties, when no evidence has been led by it in proof of the assertions made regarding its counter-claim that is a complete separate action. In Haido v. Usmah (2004) 3 NWLR Part 859 page 65; it was opined by Salami, J.C.A., (as he then was) that a counter-claim is not a defence to the Plaintiff’s claim. It operates as if the counter-claim were a separate action, as if the person making the counter-claim were the Plaintiff and the person against whom it was made as the defendant to the counter-claim. In other words, the existing plaintiff and defendants in the action would respectively be defendants and plaintiff to the counter-claim or cross-action.
It ought to be reminded that what the lower Court did was giving part judgment in favour of the Respondent as permitted by Order 29 Rule 3 of the Kaduna State High Court (Civil Procedure) Rules, 1987 with respect to his partly admitted claim. The Plaintiffs Claim, as per paragraph 28 of his Statement of Claim, was for the sum of N6,259,832.20k. I do not think it will be repetitive if I further mention that it was by the Motion on Notice dated 5/3/2007 and filed on the same day, that the Plaintiff prayed for an order entering judgment in the sum of N575,568.42 against the defendant in his favour in view of the admission made by the Appellant at paragraph 9 of its Statement of Defence. He also prayed that he be allowed to prove the rest of his claim, thereby, indicating his interest in proving the rest of his claims. There is, too, the Appellant’s counter-claim before the trial Court. The Appellant’s counter-claim is for the sum of N1,100,600.00. The parties still have lots of hurdles to clear before the trial Court they must prove their respective claims that are being contested between them. It is instructive to note that the facts averred at paragraph 7 of the Appellant’s Statement of Defence and Counter-Claim regarding the sums of N100,000.00 being money given to the Respondent as float or for expenses, and N700,000.00 being value of the Liteace Bus with Registration No. BE 743 KTD alleged to be in the care and custody of the Respondent were repeated at paragraphs 2 and 3 of the Counter-Claim. They are the facts supporting the reliefs itemized as (a) and (c) respectively in the Appellant’s Counter-Claim. They are part of the counter-claim and, absolutely require proof on balance of probability before the trial Court. Since they were not admitted by the Respondent in his Reply nor have they been proved by the Appellant as the plaintiff in the counter-claim at any trial, it is absolutely premature to raise any issue on the said counter-claim of N100,000.00 and N700,000.00 respectively.
It is, therefore, my considered view that the only issue raised for determination in this appeal is unmeritorious, and should therefore be resolved in favour of the Respondent. This appeal is bound to fail. Accordingly, it is hereby dismissed. The part-judgment of the lower Court is hereby affirmed. There will be costs to the Respondent against the Appellant which I assess and fix at N20,000.