ETUBOM EFFIOM OKON & ANOR v. PASTOR ISUA AKPASO (2018)

ETUBOM EFFIOM OKON & ANOR v. PASTOR ISUA AKPASO

(2018)LCN/11796(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of June, 2018

CA/C/264/2015

RATIO

FORMAL ADMISSION IN CIVIL PROCEEDINGS

Where the truth of a fact is admitted, proof of such fact is dispensed with as superfluous and amount to a wasteful dissipation of energy to prove what has been admitted to be true. per CHIOMA EGONDU NWOSU-IHEME, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

ETUBOM EFFIOM OKON
2. CHIEF BASSEY EKANEM
(For and on behalf of Ishie
Clan Council, Ishie Clan, Calabar) Appellant(s)

AND

PASTOR ISUA AKPASO
(Carrying on Business under the
name & style of Isua Akpaso
& Associates) Respondent(s)

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment):

The Respondent as Claimant at the trial Court claimed against the Appellants as Defendants, reliefs, damages, costs. (See page 2 of the Records).

The learned trial Judge B. T. Ebuta, J, of the Cross River State High Court, Calabar entered part judgment on the Application of the Claimant (Respondent herein) on the 19/10/2015 based on the pleadings, Statement of Defence and witness depositions of the liability of the Appellants to the Respondent to the tune of Six Million Naira.
This appeal is predicated on the said part judgment.

SUMMARY OF RELEVANT FACTS:
The Respondent as Claimant at the Trial Court filed a writ of summons and statement of claim in this suit on the 10th of March, 2014. The case of the Respondent as presented at the trial Court was that the Respondent an Estate Surveyor, Valuer and Property Consultant was approached by the Appellants to open up their community land, design a layout, get approval from the Ministry of Lands and Parcelate the said land into plots, sell same and pay monies realized from the sale into their communitys designated Bank Account with Ishie Community Bank.

The Appellants donated a Power of Attorney to the Respondent with specific instructions as clearly spelt out at pages 12-13 of the Records. Consequent upon the instructions, the Respondent created access roads and parcelated the land into plots, sold the plots of land and paid in a total sum of N9,340,000.00 into the Appellants Ishie Community Bank Account.

Deeds of Assignment were executed between the Appellants and the buyers. Despite the Deeds of Assignment, no land was given to any person who paid for the land. Due to defective title, the Government of Cross River State revoked the approval already granted for the layout. Consequently, the various buyers started running after the Respondent for refund of their monies paid to him for the land which monies had already been paid into the Appellants bank account with Ishie Community Bank, Calabar. As a result of failure to refund the buyers their monies, the Respondent was arrested and detained at various police stations which resulted in Respondent approaching the Court for the enforcement of his Fundamental Rights.

He also made several demands for the refund of the monies (see pages 27-31 of the Records).

Consequent upon the Appellants refusal to return the said monies, the Respondent filed a suit at the High Court of Cross River State, Calabar Division, in suit No. HC/81/2014 praying the Court to compel the Appellants to return the said monies.

The Appellants filed their statement of Defence admitting liability to the tune of Six Million Naira only in paragraph 4 of the Statement of Defence as well as the witness statement on oath.

In view of the admission by the Appellants to the tune of Six Million Naira, counsel for the Respondent (Claimant at the Trial Court) applied for part judgment in the said sum of Six Million Naira to enable him pay part of his indebtedness to the buyers. Records show that counsel for the Appellants did not raise any objection.
The Learned Trial Judge consequently entered part judgment in the admitted sum.

The Appellants counsel, E. H. Andrew Esq formulated a sole issue for determination thus:
Whether the Learned Trial Judge was right to rule, without hearing from the Appellants, that on the pleadings filed in this case the Appellants have admitted the Respondents claim for the sum of N6,000,000.

Counsel for the Respondent, Michael Afu Esq adopted the sole issue as formulated by learned counsel for the Appellants.

Taking the sole issue, counsel for the Appellants cited STEEL BELL (NIG) LTD V. N.D.I.C (2014) ALL FWLR (Pt. 751) 985 at 1014 and argued that the part judgment entered by the Learned Trial Judge was based solely on paragraph 4 of the Statement of Defence. He contended that in determining what has been admitted, the Court must not read one paragraph of the pleading in isolation from the others, rather the Court must read and consider the entire pleadings as a whole.

Counsel also cited VICTABIO VENTURES LTD V. W. VAN DER ZWAN (2009) ALL FWLR (Pt. 490) 756 at 780 and submitted that there was no specific, categorical, straight forward and unequivocal admission of the Respondents claim by the Appellants in their pleadings. He further argued that in view of the issues joined on the pleadings the only avenue that was open to the trial Court was to proceed to trial to substantiate their pleadings.

Reacting to the above, counsel for the Respondent contended that by virtue of the admission of the Appellants contained in pages 40 and 42 of the Records, paragraphs 4 and 14 of the Appellants statement of defence and paragraph 3 of the witness depositions contained in page 45 of the Records that the trial Judge was right in entering part judgment in favour of the Respondent based on the admissions of the Appellants as shown in the aforementioned paragraphs. He urged the Court to dismiss this appeal and affirm the decision of the Court below.

In determining this appeal, reference must be made to the provisions of Order 18 Rule 4 of the High Court of Cross River State (Civil Procedure) Rules 2008 which is the extant Rules of the High Court of Cross River State. It provides:
The Judge may, on application at the pretrial conference or at any other state of the proceedings where admissions of facts have been made, either on the pleadings or otherwise, make such orders or give such judgment as upon such admission a party may be entitled to, without waiting for the determination of any other questions between the parties.

It is trite that a formal admission is a concession made by one of the parties in any civil proceeding of the truth of an alleged fact and is usually made in a pending litigation in pleadings.
The law is clear that parties are bound by their pleadings. Appellants admission in their pleading, statement of Defence paragraph 4 and 14 pages 40 and 42 of the Records is very clear and unambiguous. Same as in their witness deposition (see page 45 of the Records).
The Appellants averred as follows in paragraph 4 of their Statement of Defence:
Paragraphs 7 and 8 of the Statement of Claim are admitted only to the extent that the Claimant paid about N6,000,000 only into the designated bank account of Ishie Clan Council. At the trial the Defendants shall put the Claimant to the strictest proof, through bank tellers, of the sum of N9,340,000.00 alleged to have been paid by the Claimant into the designated bank account.
(underlining mine).
Where the truth of a fact is admitted, proof of such fact is dispensed with as superfluous and amount to a wasteful dissipation of energy to prove what has been admitted to be true.

See DARAMOLA V. A.G. ONDO STATE (2000) FWLR 997 Ratio 13 at 1024. See also A.G. LAGOS STATE V. PURIFICATION TECH. NIG. LTD (2003) 16 NWLR (Pt. 845).
Equity will not allow any body to approbate and reprobate at the same time, consequently, a Defendant who has admitted some averments in a Plaintiffs statement of claim would not be allowed to abandon such admission.
The admission made by the Appellants in paragraph 4 of their statement of defence already reproduced earlier in this judgment is very clear, unequivocal, unambiguous and very straight forward.
The letter written by the Chairman Ishie Clan Council to the Respondent Pastor Isua Akpaso which letter was dated 27th of August, 2007, (see pages 112 & 113 of the Records) stating that they were doing all in their powers to secure the land and promising the Respondent that he would hear from them soon does not in any way support the argument of counsel for the Appellants that the averments on the said paragraph 4 was not an admission. The said paragraph 4 was so clear and straight forward that it does not need any other paragraph or proof to give effect to it.

In the premise, the sole issue is resolved against the Appellants and in favour of the Respondent. This appeal is unmeritorious and is hereby dismissed. The decision of the Learned Trial Judge in his part judgment delivered on the 19/10/20 15 is hereby affirmed.
I award Two Hundred Thousand Naira costs against the Appellants.

STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment of my learned brother, Chioma Egondu Nwosu-Iheme, JCA.

I am in total agreement with the reasoning and the conclusion that this appeal is without merit and be dismissed. I also do dismiss this appeal and I abide by the consequential order of my learned brother in the judgment.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had the privilege of reading the draft of the lead judgment just read by my learned brother NWOSU-IHEME, JCA and I agree with the reasoning and conclusion therein.
I equally find no merit in this appeal and I accordingly dismiss it.
I adopt the consequential orders in the lead judgment as mine.

Appearances: