EZEKWEM v. BARNAWA MICROFINANCE BANK LTD (2020)

EZEKWEM v. BARNAWA MICROFINANCE BANK LTD

(2020)LCN/14474(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, July 21, 2020

CA/K/229/2015

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

CHIEF NDUBUISI EZEKWEM (KENE C. BUSINESS VENTURES) APPELANT(S)

And

BARNAWA MICROFINANCE BANK LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT FACTS ADMITTED NEED NO PROOF

An admission has been held to be statement, oral or written, (expressed or implied) which is made by a party or his agent to a civil proceeding and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement. See Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR Part 824 Page 49 at 69, Para C-F per Tobi JSC; Agbahamovo v. Eduyegbe (1999) 3 NWLR Part 594 Page 170 at 183, Para F-G per Onu JSC.
It is settled law that facts admitted are no longer issues between the parties and need no proof. The Court is expected to act thereon. See Jitte v. Okpulor (2016) 2 NWLR Part 1497 Page 542 at 567 Para F-G per Ogunbiyi JSC; Al Hassan v Ishaku (2016) 10 NWLR Part 1520 Page 230 at 298-299 Para G-C per Sanusi JSC. PER ADEFOPE-OKOJIE, J.C.A.

THE RIGHT OF PARTNERS TO SUE AND BE SUED IN THE BUSINESS NAME

The Supreme Court, elucidating on the right of partners to sue and be sued in the business name, held as follows in the case above, per Uwaifo JSC reading the lead judgment:
“I think the provision in Order 4 Rule 6 of the Federal High Court (Civil Procedure) Rules 1976 is clear that a firm composed of two or more partners may sue or be sued in the firm’s name i.e. eo nomine. The said rule reads:
“6. Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose; and any party to an action may in such case apply to the Court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the Court may direct.
“As has been said, the law, by this provision, allows partners to sue, when they claim any relief to which they may be entitled as partners, or be sued, when they are alleged to be liable as partners, and in either case such action may be in the name of the firm in which they were partners at the time the cause of action arose. When action has thus been taken against that firm, the plaintiff or any other party to the action may apply to the Court for a statement of the names and addresses of the persons who were partners in the firm at the time the cause of action arose. This is an information a plaintiff may wish to avail himself of after the action has been filed. One of the purposes this serves the plaintiff is the legal consequence that a judgment against the firm has the same effect that a judgment against all the partners had formerly: see Clark v. Cullen (1882) 9 Q.B.D. 355. PER ADEFOPE-OKOJIE, J.C.A.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State (hereafter referred to as “the lower Court”), delivered on the 10th day of December, 2014 by Hon. Justice B.U. SUKOLA in favour of the Respondent.

The facts leading to this appeal are that the Respondent, who was the Plaintiff in the lower Court, commenced a suit by the Summary Judgment procedure. It filed its Writ of Summons and Statement of Claim on the 7th November, 2014 and its Motion for Summary Judgment on 3rd December 2014. By its claim, the Respondent alleged that the Appellant applied for and was granted a loan facility of N5 Million at the rate of 5% per month for the period of eight months, expiring on 13/9/2014. After much pressure, the Appellant only paid N90,000.00 (Ninety Thousand Naira) on the 25th September, 2014, refusing to pay the balance. In spite of letters of demand by the Respondent’s Solicitors, the Appellant has failed to pay the indebted sum.

In response, the Appellant filed a Statement of Defence accompanied by a Witness Statement on Oath and a Counter Affidavit

deposed to by the Appellant. Both parties filed written addresses.

The Court, in its Ruling held the defence raised by the Appellant insufficient to justify the grant of leave to defend the suit. It held further:
“The character of the defence so required must be cogent, concrete and compelling as would sway the Court to allow the defendant to defend same. The defence as raised by the defendant, in my view, fell short of the required standard in the face of a combined/or community reading of all the exhibits attached to both the writ of summons and statement of claim on the one hand and the exhibits attached to the statement of defence on the other hand. One the whole I find merits in the instant motion on notice dated 1/12/14 and accordingly hereby grant the application in the terms prayed.
The arguments and submissions of the defendant as contained in the counter affidavit and the written address in opposition are discountenanced in the face of the credible documentary evidence/exhibits attached by the Plaintiffs.
In consequence, therefore, leave to defend the Plaintiff’s claims as prayed for by the defendant is refused.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Judgment is hereby entered for the Plaintiff and against the Defendant in the sum of N5,915,523.41 (Five Million, Nine Hundred and Fifteen Thousand, Five Hundred and Twenty Three Naira, Forty One Kobo) Plus interest at the rate of 10% per annum from today until the final liquidation of the judgment sum. The claim for 5% interest on the principal sum of N5 Million from the date of commencement of this suit is refused i.e paragraph 21(2) of the statement of claim dated 8/11/14.”

Aggrieved, the Appellant filed a Notice of Appeal on 16/12/14 and an Appellant’s Brief of Arguments on 25/11/15, settled by his Counsel, Evelyn Moses Esq., in which 3 issues were formulated for determination, as follows:
1. Whether the Respondent met or satisfied the requirements of Order 11 Rule 1 of the lower Court (Kaduna State High Court Civil Procedure Rules 2007) to warrant the hearing and determination of the Respondent’s application for summary judgment.
2. Whether the Lower Court was right to have refused the Appellant leave to defend this suit, in spite of the triable issues raised by the Appellant, controverting Exh BMFB/1 of the

Respondent.
3. Whether the proper parties were before the Court.

The Respondent’s Counsel, M.A. Odeh Esq., of Morris Odeh & Co, in the Respondent’s Brief of Arguments filed on 5/10/19 but deemed properly filed on 15/6/20, adopted the issues for determination formulated by the Appellant’s Counsel.

In response, the Appellant’s Counsel filed a Reply Brief on 26/3/2020 settled by A.J. Omoigui Esq.
I shall adopt the issues raised by the Appellant, modified for succinctness where required.
The 1st issue for determination is:
Whether the Respondent met or satisfied the requirements of Order 11 Rule 1 of the Lower Court (Kaduna State High Court Civil Procedure Rules 2007) to warrant the hearing and determination of the Respondents application for Summary Judgment.

SUBMISSIONS OF COUNSEL
Appellant’s Counsel
Arguing this issue, the Appellant’s Counsel setting out the provisions of Order 11 Rule 1 of the Kaduna State High Court Civil Procedure Rules 2007, submitted that the Respondent did not satisfy the requirement therein, thus depriving the lower Court of competence to hear the

application under the Summary Judgment Procedure. The Respondent, Counsel argued, ought to have filed the Motion for Summary Judgment along with the Originating process, and not subsequently, without leave of the lower Court. Learned Counsel pointed out that the originating processes were filed on the 7th day of November, 2014 while the Motion for Summary Judgment was filed by the Respondent on the 3rd day of December, 2014. The cardinal principle of interpretation is that Statutes or Rules are to be given their plain and literal meaning. The use of the word “shall” is mandatory and not optional on the part of the Respondent. Where the Respondent fails to fulfill the conditions subsequent, the application shall fail for being inconsistent with the provision of the said rule. She accused the lower Court of proceeding and entering judgment in respect of an incompetent application.

Defining the word “with” as used in the said Rules, Counsel submitted that this word connotes that at the point of filing, the originating processes are to be accompanied with the said documents, meaning that they should happen at the same time, which was not the case.

On the conjunctive nature of the word “and”, Counsel referred to the case of Chief Sunday Ogunyade V. Solomon Oluyemi (2007) 31 NSCQLR 361 at Page 382-383 per Niki Tobi JSC. The Court was thus urged to set aside the judgment of the Lower Court entered pursuant to Order 11 Rule 1 Supra for lack of compliance and thus incompetent.

Respondent’s Counsel
The Respondent’s Counsel, however submitted that the non-filing of the two processes on the same day did not offend the said Rules as it was nowhere stated that the word “shall” means on the same day. The question should be whether the originating processes and the motion for summary judgment were filed, which question he answered in the affirmative. Counsel argued further that by Order 5 Rule 1 (2) of the said Rules, the act amounted to a mere procedural irregularity which cannot vitiate the proceedings. The Appellant, in addition, failed to show how the filing of both processes on different days occasioned injustice to him. The Courts, he submitted, have long departed from the era of technicalities which perpetrated miscarriage of justice on litigants,

citing the cases of Governor Of Ekiti State V. Oyewo (2011) ALL FWLR PT 564, Pg. 102 Pp. 117 – 118 Paras E – G; Famfa Oil Ltd V. A/G Federation (2003) 18 NWLR (Pt. 852) 453 at 468 Paras D – H; Amadu V. Yantaunmaki (2011) 9 NWLR (Pt. 1251) 161 at Pg. 182, Para C.

Counsel continued further that what Order 11 of the Rules of the lower Court demands from any Defendant in an application for Summary Judgment is to show a “good defence” to the case of the Plaintiff and not to attempt to grasp at straws in the guise of technicalities. The lower Court, he said, rightfully held that the Appellant did not show a good defence on the merits to warrant the matter being transferred to the general cause list. He cited in addition the case of Adebayo David V. Alfa Abdul – Ganiyu Jolayemi (2011) ALL FWLR PT 571 Pg. 1545 Pp 1582 Paras A – E.

The Reply Brief of the Appellant on this issue was largely a re-argument of the Appellant’s Brief.

Decision
Order 11 Rules 1-5 of the High Court of Kaduna (Civil Procedure) Rules 2007 provides as follows:
ORDER 11 – SUMMARY JUDGEMENT
“1. Where a Plaintiff

believes that there is no defence to the claim, the Plaintiff shall file with the originating process the statement of claim, the exhibits, the depositions of the Plaintiff’s witnesses and an application for summary judgment which application shall be supported by an affidavit stating the grounds for the Plaintiff’s belief and a written address in respect thereof.
2. A Plaintiff shall deliver to the Registrar as many copies of all the processes and documents referred to in Rule 1 of this Order as there are defendants.
3. Service of all the processes and documents referred to in Rule 1 of this Order shall be effected in the manner provided under Order 7 of these Rules.
4. Where any defendant served with the processes and documents referred to in Rule 1 of this Order intends to defend the suit, such defendant shall, not later than the time prescribed by these Rules for filing a defence, file:
(a) a statement of defence;
(b) depositions of witnesses;
(c) the exhibits to be used in the defence; and
(d) a written address in reply to the application for summary judgment
5(1) Where it appears to a Judge that a defendant has a good

defence and ought to be permitted to defend the claim, the Judge may grant the defendant leave to defend the claim.
(2) Where any defendant fails or neglects to comply with the provisions of Rule 4 of this Order, or it appears to the Judge that the defendant has no good defence to the claim, the Judge may enter judgment for the Plaintiff.
(3) Where it appears to a Judge that the defendant has a good defence to part of the claim but no defence to other parts of the claim, the Judge may thereupon enter judgment for that part of the claim to which there is no defence and grant leave to defend that part to which there is a defence.”
The cardinal principle of interpretation of statutes, is that where the words used in a statute are clear and unambiguous the Courts should give them their ordinary natural and literal meaning, in order to establish the intention of the law maker. It is only where the ordinary or literal meaning of the clear and unambiguous words fail to bring out the intention of the lawmaker or leads to an absurdity that resort is had to constructive interpretation. See Dickson v Sylva (2017) 8 NWLR Part 1567 Page 167 at 233 Para

D per Kekere-Ekun JSC; Registered Trustees of the Airline Operators of Nigeria v Nigerian Airspace Management Agency (2014) 8 NWLR Part 1408 Page 1 at 41 Para B-C; (2015) All FWLR Part 762 Page 1786 at 1812 Para B-D per Okoro JSC.
The Courts, in construction of statutes, are to take into consideration the totality of the statute and not pockets of it, in order to arrive at the intention of the lawmaker. The Court cannot pick and choose. See Nigerian Ports Authority PLC v Lotus Plastics Ltd (2005) 19 NWLR Part 959 Page 158 at 182, Para F-H per Mohammed JSC; at 199 Para E-F per Tobi JSC.
It is also settled law that the purpose of a provision should be adhered to and the intention of the legislature in enacting the provision should be sought. The Court cannot read into a section of a statute a meaning which cannot be described as the intention of the legislator – See Fidelity Bank Plc v Monye (2012) All FWLR Part 631 Page 1412 at 1438 Para D per Adekeye JSC; Uhunmwangho v Okojie (1989) 5 NWLR Part 122 Page 471 at 490 Para B-C per Nnaemeka-Agu JSC; Eguamwense v Amghizemwen (1993) 9 NWLR Part 315 Page 1 at 31 Para H per Olatawura JSC.

It is clear from the interpretation of Order 11 Rule 1 Supra that the intendment of the Legislature is that where the a Plaintiff believes that the Defendant has no defence to the action, he should file, in addition to his originating processes, an application for summary judgment, supported by an affidavit showing the grounds for believing that the Defendant has no defence. The purpose of this is to abort the full gamut of a hearing.
The intendment of the requirement that the processes should be filed together, is that both these sets of processes should be served on the Defendant, who can thus take advantage of Order 11 Rule 4 and put in his defence and written address in response to the application for Summary Judgment. Thus the use of the word “and” is taken to mean “in addition to”, I hold.
The failure of the Respondent to file his application for Summary Judgment at the same time as its originating processes, is thus not fatal to the Summary Judgment proceedings, it not having been shown by the Appellant that the latter process was not served on him along with the originating processes.
Also, no miscarriage of justice has

been shown to have been occasioned to him by the Respondent not filing the processes on the same date. As held by the Supreme Court, in the case of Famfa Oil Ltd v A.G Federation (2003) 18 NWLR Part 852 Page 453 at 468 Para D-H per Belgore JSC (as he then was), a procedural irregularity should not vitiate a suit once it can be shown that no party has suffered a miscarriage of justice.
Rules of procedure, I hold, are made for the convenience and orderly hearing of cases in Court and not masters of the Court. They are made as aids to and to help the cause of justice, not to defeat it. For a Court to read Rules in the absolute without recourse to the justice of the case, will be making the Courts slavish to the Rules. See Poroye v Maikarfi (2018) 1 NWLR Part 1500 Page 91 at 146 Para B-E per Ariwoola JSC.
In any event, where a party alleges non-compliance with the rules of Court, yet files a counter affidavit in response to the said process, he is deemed to have taken fresh steps in the proceedings since knowing of the non-compliance complained of. He is therefore prevented from raising the alleged non-compliance. See Cooperative & Commerce Bank (Nig) Plc v. A.G Anambra State

(1992) 8 NWLR Part 261 Page 528 at 554 Paragraph C-G per Karibi-Whyte JSC.
I accordingly hold that the Respondent substantially satisfied the requirements of Order 11 Rule 1 of the High Court of Kaduna State (Civil Procedure) Rules Supra, warranting the hearing and determination of the Respondent’s application for summary judgment. I thus resolve the 1st issue for determination against the Appellant.

The 2nd issue for determination is the following:

Whether the Lower Court was right to have refused the Appellant leave to defend this suit, in spite of the triable issues raised by the Appellant, controverting Exh BMFB/1 of the Respondent.

SUBMISSIONS
Appellant’s Counsel
The Appellant’s Counsel prefaced his arguments by submitting that the Respondent was not sure of the Account Number of the Appellant, whether it was 030310212 or 030310003 and into whose account the sum of N5,000,000.00 (Five Million Naira) was disbursed. He pointed out that Paragraph 7 of the Respondent’s Statement of Claim contains the figures “030310003” as the Account Number of the Appellant, while Exh BMFB/1,

the Statement of Account of the Respondent carries the figures “030310212” as the Account Number of the Appellant. These, he submitted, are triable issues that cannot be resolved through Summary Judgment proceedings, accusing the lower Court of proceeding to hear and determine the suit.

He accused the Respondent of charging double interest on the account, one for overdraft and another one for loan, as if Kene C. Business Ventures Nigeria had double credit facilities, he argued. He contended that the double interest charges continued by the Respondent for the dates 28th February, 2014, 31st March, 2014, 30th April, 2014, 30th May, 2014, 30th June, 2014, 31st July 2014, 29th August, 2014 and 30th September, 2014. He also complained that the interest rate charged by the Respondent was in clear violation of Section 12 of the Central Bank of Nigeria Act 2007, being contrary to the Monetary Policy Rate as set by the Monetary Policy Committee of the Central Bank of Nigeria. He contended that as at 25th September, 2014, the indebtedness of the Appellant as per Exh BMFB/1 was N4,943,351.22 (Four Million Nine Hundred and Forty Three Thousand Three Hundred and

Fifty One Naira Twenty Two Kobo), which amount would have been less if the double interest charges are deducted.

He also accused the Respondent on 29th September, 2014 of importing into the account the sum of N5,890,000 as credit and debited the same amount and of starting a new interest regime. He alleged that out of the sum of N4,850,000.00 (Four Million Eight Hundred and Fifty Thousand Naira) disbursed to Kene C. Business Ventures Nigeria, the partnership had paid back the sum of N1,074,794.52 (One Million Seventy Four Thousand Seven Hundred and Ninety Four Naira Fifty Two Kobo) leaving an unpaid principal of N3,775,205.48 (Three Million Seven Hundred and Seventy Five Thousand Two Hundred and Five Naira Forty Eight Kobo). He stated that the various payments were made on 26th February, 2014, 28th May 2014, 15th July 2014 and 25th September, 2014 respectively as shown in the Respondent’s Exh BMFB/1.

These, he said, are all triable issues which ought not to have been resolved by Summary Judgment proceedings but by oral evidence. He cited the cases of Imoniyame Holdings Ltd V. Soneb Enterprises Ltd (2010) NSCQLR Vol. 41, pg 299 at pgs 313-314, per Onnoghen JSC (as he then was).

At best, he said, judgment should have been entered for the admitted unrepaid principal while the balance, which is the interests which the Appellant had successfully contested, be transferred for trial.

Respondent’s counsel
The Respondent’s Counsel submitted that there was no ambiguity in the figures “030310212” or “030310003”, as the Appellant in his Statement of Defence had agreed in Paragraph 3 thereof that it operates an account with the Respondent and the account number is “030310212”. The Appellant had also agreed that on the 27th January, 2014, it received a deposit of the loan into the said account and utilized the said sum, pointing to Page 48 of the Record of Proceedings.

He refuted the contention that the Appellant was charged double interest, submitting that the statement of account, Exhibit BMFB/1, shows clearly the deductions as agreed by the parties to the loan agreement and which was not contrary to the Central Bank of Nigeria ACT 2007. He accused the Appellant of crying wolf merely in an attempt to get the lower Court to transfer the suit to the

general cause list, in order to frustrate the Respondent with a lengthy trial, which the Lower Court in its ruling “brilliantly” refused. Counsel accused the Appellant of benefiting from a contract only to turn round and claim its illegality in order to avoid performing its part of the contract. Parties, he said, are bound by the terms of their contract and Courts do not interfere with such terms especially if written, citing the case of Ekiadolor V. Osayande (2011) ALL FWLR PT 566 Pg 504 Pp.524 – 225 Paras G – A and Paras G – H on the bindingness of contracts.

The Respondent’s Counsel also refuted the Appellant’s contention that the Respondent credited only the sum of N4,850,000.00, pointing to Exhibit BMFB/1 relied on by the Appellant, which shows clearly that on 27th of January 2014, the sum of N5,000,000.00 (Five Million Naira) was credited to the Appellant’s account. Any other charges debited subsequently were as agreed by the parties. He pointed out that the Appellant never denied his indebtedness to the Respondent but in fact admitted the same in his correspondence dated the 30th day of September,

where he fixed his indebtedness to the Respondent at N5,061, 786. 36 (Five Million and Sixty One Thousand, Seven Hundred and Eighty Six Naira Thirty-Six Kobo) and 1% flat rate, pointing to Pages 36 and 37 of the Record of Appeal. There is nothing on the record to show that the Appellant has liquidated the said debt, urging this Court to hold that the Appellant failed to show triable issues in his defence, causing the lower Court to rightfully dispense with the suit by way of Summary Judgment Procedure.

Decision
In arguing that a triable issue has been raised, the Appellant has referred to a discrepancy in the account numbers stated in the Statement of Claim and again in his Statement of Account. I note that the Respondent, in Paragraph 3 of the Statement of Claim, referred to the Appellant’s Account Number as No. “030310212” but that in Paragraph 7 thereof the account number is referred to as 030310003. The Appellant, however agrees in Paragraph 8 of the Statement of Defence, at Page 49 of the Record and Paragraph 7 of the Counter Affidavit at Page 60 that it operates a Corporate Account with the Respondent, with No. 030310212 in

respect of which a term loan of N5 Million (Five Million) was granted.

I also note that the documents attached to the Respondents affidavit in support of the Motion for Summary Judgment, namely, the Statement of Account, the form of the Loan Application and the Appellant’s Acceptance Letter, all refer to the Account Number as 030310212. It is patent therefore that referring to the account number in paragraph 7 as “030310003” was an error, which will not be held by this Court to be fatal, without more, to the summary judgment proceedings.

As pointed out above, the trial Judge refused the request of the Appellant to transfer the suit to the General Cause List for Hearing.

The Appellant has however alleged that it was charged double interest and denying its indebtedness to the Respondent and claiming that as at September 2014, it had paid back the sum of N1,074,794.52 (One Million Seventy Four Thousand Seven Hundred and Ninety Four Naira Fifty Two Kobo) leaving an unpaid principal of N3,775,205.48 (Three Million Seven Hundred and Seventy Five Thousand Two Hundred and Five Naira Forty Eight Kobo). It did not concede any interest,

seeking that the issue of interest should go to trial.

I note, however, that the Appellant, through his Counsel Victor Olisah & Co., wrote a letter to the Respondent, dated 30th September 2014 and annexed to the Respondent’s Affidavit in support of the application, in which it claimed as follows:
“The Managing Director,
Barnawa Microfinance Bank Ltd,
Plot 3, Mozambique Road,
Barnawa Shopping Complex,
Barnawa – Kaduna.
Dear Sir,
RE: INDEBTEDNESS OF KENE C. BUSINESS VENTURES
We refer to your letter of 30th September, 2014 in respect of the above subject matter.
We did not alter unilaterally the agreement we reached with you. The agreement was inchoate: for you to give us the balance of the indebtedness and then 1% flat interest rate on the outstanding balance. From our client’s perspective, he was indebted to your bank in the sum of N5, 061,786.36 (Five Million Sixty-one Thousand, Seven Hundred and Eighty six Naira, Thirty six Kobo) only and interest rate will be N50,617.86 (Fifty Thousand Six Hundred and Seventeen Naira, Eighty six Kobo) only.
The addition of both less ninety thousand

naira will give the total indebtedness of our client to you and any other thing outside of this is not acceptable to our client.
Our client has paid N90,000:00 (Ninety Thousand Naira) only and this was not reflected in the statement of Account of our client.
We should also request you to furnish us with our client’s statement of account. Our client is desirous of resolving this matter amicably.
We thank you in anticipation of your usual co-operation
Yours faithfully,
Signed
Evelyn Moses Esq
Barrister & Solicitor.”
By this letter, the Appellant admits that, as at the date of the letter, which I note is 30th September, 2014, he was owing the Respondent N5,061,786.36 (Five Million and Sixty-One Thousand, Seven Hundred and Eighty-Six Naira Thirty-Six Kobo), in addition to N50,617.86 (Fifty Thousand Six Hundred and Seventeen Naira Eighty Six Kobo) being 1% interest rate, but that he had repaid N90,000.00 (Ninety Thousand Naira) out of the sum owing.
By simple calculation, the amount admitted as owing, after the subtraction of the sum stated as having been paid, is the sum of N5,022,404.22 (Five Million and

Twenty-Two Thousand Four Hundred and Four Thousand Naira Twenty-Two Kobo).
The Appellant has not denied this letter. I shall accordingly give it its due weight, that it is owing the Respondent the sum stated.
An admission has been held to be statement, oral or written, (expressed or implied) which is made by a party or his agent to a civil proceeding and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement. See Cappa & D’Alberto Ltd v. Akintilo (2003) 9 NWLR Part 824 Page 49 at 69, Para C-F per Tobi JSC; Agbahamovo v. Eduyegbe (1999) 3 NWLR Part 594 Page 170 at 183, Para F-G per Onu JSC.
It is settled law that facts admitted are no longer issues between the parties and need no proof. The Court is expected to act thereon. See Jitte v. Okpulor (2016) 2 NWLR Part 1497 Page 542 at 567 Para F-G per Ogunbiyi JSC; Al Hassan v Ishaku (2016) 10 NWLR Part 1520 Page 230 at 298-299 Para G-C per Sanusi JSC.
In view of this admission, no triable issue, I hold, has been raised in the admitted sum of N5,022,404.22 (Five Million and Twenty-Two Thousand Four Hundred

and Four Thousand Twenty-Two Kobo) leaving the balance, following deduction from the sum claimed of N893,119.19 (Eight Hundred and Ninety-Three Thousand One Hundred and Nineteen Naira Nineteen Kobo) as the triable figure, I accordingly resolve the 2nd issue for determination partly in favour of the Appellant.

The final issue for determination is:
Whether the proper parties in this suit were before the lower Court.

SUBMISSIONS
Appellant’s Counsel
The Counsel to the Appellant has contended that the proper parties in this suit were not before the Court, as the person who took the loan from the Respondent is a corporate person, being the partnership firm of Kene C. Business Ventures Nigeria and not the Appellant. The proper Appellant in the suit is thus Kene C. Business Ventures Nigeria and not Chief Ndubuisi Ezekwum against whom judgment was wrongly entered against by the lower Court. Since the proper party was not before the Court, the lower Court ought not to have assumed jurisdiction and granted Summary Judgment against the wrong party. He referred to the case of Iyke Medical Merchandise V. Pfizer Inc. (2006) 6 NSCQLR 1997.

He cited Order 13 Rule 24 of the High Court (Civil Procedure) Rules 2007 of Kaduna State in support.

This Rule of Court, Counsel further submitted, is in pari materia with Order 4 Rule 6 of Federal High Court (Civil Procedure) Rules 1976 which came up for interpretation in Iyke Medical Merchandise V. Pfizer Inc & Anor Supra.

Respondent’s Counsel
The Respondent’s Counsel however submitted that “Kene C. Business Ventures Nigeria” is a registered Business name and that “Ndubuisi Ezekwem Godfrey” is a partner and not a corporate entity. It is not a limited liability company that acquires a legal personality upon incorporation, merely a Business Name which has no Legal personality and cannot sue or be sued in its name, not being a juristic person. Qualifying it further, he submitted that it is merely a name under which Ndubuisi Ezekwem Godfrey does his business. For a partnership to have a legal personality capable of suing and being sued in its name, it has to be registered as a Company and not a Business name.

He cited Section 19(1) of Companies And Allied Matters Act (CAMA) 1990 submitting that the

provision is one of the exceptions to the general rule that partnerships are registered as a matter of law as a Business Name. He pointed out that the partnership known as “Kene C. Business Ventures” was registered under Part B of CAMA as its partners are only two (2) as shown by the Appellant in the Certificate of Registration exhibited by him.

He submitted further that Section 21 (1) a, b, & c (CAMA) outlines the types of companies that are called incorporated companies, and no contemplation was made of a Business Name being a company. He submitted further that partners in a partnership are liable personally or at most on the ratio of profit and loss as should be evidenced by their Deed of Partnership. In this regard “Kene C. Business Ventures Nigeria” is a trade name and not a Corporate entity which has a distinct personality from its directors but a name and style under which the persons (partners) do their business (trade). “Ndubisi Ezekwem”, being a partner, is thus personally liable to the tune of the loan and agreed interest applied for, granted and utilized by him being the natural person trading under the

name and style of “Kene C. Business Ventures”.

He argued further, that the Statement of Account, Exhibit BMFB/1 shows clearly that on the same day the loan was granted, Chief Ndubisi Ezekwem withdrew the cash of N4, 825,000.00 (Four Million, Eight Hundred and Twenty Five Thousand naira only) thus utilizing the said loan as granted.

DECISION
I note that the letter of application for the overdraft dated 18/12/2013 and exhibited to the Respondent’s application, is in the name Kene Business Venture and is signed by Chief Ndubuisi Ezekwem and Mrs Dinah Ezekwem.
Exhibited to the Appellant’s Counter Affidavit is the Certificate of Registration of Business Name dated 20th November 2012. Appended thereunder are the words by the Registrar of Business Names:
“I hereby certify that Kene C Business Ventures Nigeria is registered as a Business Name with the Commission…”
In the Form attached to the application, the particulars of the partners are there stated, to be Ndubisi Ezekwem Godfrey and Dinah Ezekwem (Mrs).
Section 21 of the Companies and Allied Matters Act (CAMA) 1990 specifies the different

types of companies, as follows:
SECTION 21
“[TYPES OF COMPANIES]
1. An incorporated company may be a company-
a. having the liability of its members limited by the memorandum to the amount, if any, unpaid on the shares respectively held by them (in this Act referred to as “a company limited by shares”); or
b. having the liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up (in this Act termed to as “a company limited by guarantee”) or
c. not having any limit on the liability of its members (in this Act referred to as “an unlimited company”).
2. A company of any of the foregoing types may either be a private company or a public company.
It is these types of companies, properly known as limited liability companies, that can take protection under the name of the company and have their liability limited to the memorandum of association, I hold.
Persons registered under Business Names do not however have this protection.
While they may sue or be sued in the name of the

partnership, I have been shown no authority that precludes a suit, as the present, in which it is sued in the personal name of a partner, with the business name stated, as done in this case, to wit
“Chief Ndubusi Ezekwem
(Kene C. Business Ventures)”
Learned Counsel to the Appellant has however cited in support of his position Order 13 Rule 24 of the High Court of Kaduna State (Civil Procedure) Rules Supra, which provides as follows:
“Any two or more persons claiming or alleged to be liable as partners and doing business within the jurisdiction may sue or be sued in the name of the firm, if any, of which they were partners when the cause of action arose and any party to an action may in such case apply to the Judge for a statement of the names and addresses of the persons who were partners in the firm when the cause of action arose, to be furnished in such manner, and verified on oath or otherwise as the judge may direct.”
Counsel submitted that this Rule is on all fours with the Federal High Court (Civil Procedure) Rules 1976 which came up for interpretation in the case cited by him of Iyke Med. Merch. v. Pfizer

(2001) 10 NWLR Part722 Page 540.
The Supreme Court, elucidating on the right of partners to sue and be sued in the business name, held as follows in the case above, per Uwaifo JSC reading the lead judgment:
“I think the provision in Order 4 Rule 6 of the Federal High Court (Civil Procedure) Rules 1976 is clear that a firm composed of two or more partners may sue or be sued in the firm’s name i.e. eo nomine. The said rule reads:
“6. Any two or more persons claiming or alleged to be liable as partners may sue or be sued in the name of the firm in which they were partners when the cause of action arose; and any party to an action may in such case apply to the Court for a statement of the names and addresses of the persons who were, when the cause of action arose, partners in any such firm, to be furnished in such manner, and verified on oath or otherwise, as the Court may direct.
“As has been said, the law, by this provision, allows partners to sue, when they claim any relief to which they may be entitled as partners, or be sued, when they are alleged to be liable as partners, and in either case such action may be in the name

of the firm in which they were partners at the time the cause of action arose. When action has thus been taken against that firm, the plaintiff or any other party to the action may apply to the Court for a statement of the names and addresses of the persons who were partners in the firm at the time the cause of action arose. This is an information a plaintiff may wish to avail himself of after the action has been filed. One of the purposes this serves the plaintiff is the legal consequence that a judgment against the firm has the same effect that a judgment against all the partners had formerly: see Clark v. Cullen (1882) 9 Q.B.D. 355. Actually it serves to ensure the execution of such judgment. In Jackson v. Litchfield (1882) 8 Q.B.D. 474, the plaintiff having issued his writ against a partnership firm in the name of the firm, moved to enter judgment against a person whom he had discovered to be a member of the firm, and who had not appeared to the writ. Similarly an order for discovery against a firm is an order against the partners: see Seal & Edgelow v. Kingston (1908) 2 K.B. 579.
Although actions against partners may be in the name of the firm in

which they are partners, the law is that there is no necessity of finding out the names of the individual partners. This is important as will be apparent shortly.
The firm has no existence and the name is a mere expression, not a legal entity. It is used as an expedience under the rule. It is a method of expressing the persons (as partners) who made up the firm at the time the cause of action arose. It may therefore be used for the sake of suing and being sued:… But it must be noted that a plaintiff who sues such partners in their firm’s name is taken to have sued them individually just as much as if he had set out their names: see Western National Bank v. Perez, Triana & Co. (1891) 1 Q.B.D. 304 at 314 per Lindley, L.J.” Underlining Mine
It is clear from this judgment that a firm may sue and be sued in its business name. The firm however has no existence and is a mere expression, not a legal entity, used for expedience. There is however no compulsion to do this, as they can be sued in their individual names. That is the reason, it is apparent, why Order 13 Rules 24 and 25 of the High Court of Kaduna (Civil Procedure) Rules Supra,

mandates the partners to supply their names and particulars where requested by the opposing party.
As also held above, a plaintiff who sues such partners in their firm’s name is taken to have sued them individually.
This authority, I hold, is thus of no assistance to the Appellant, rather it holds the contrary. It is also clear from the facts of that case that the Supreme Court set its face against the ploy by the Appellant, Iyke Med. Merch, who was the Defendant at the trial Court, to evade the tort of “passing off” by taking refuge under the contention that it was not a juristic party that could be sued in its business name.
As stated above, the capacity in which the Appellant was sued is:
“Chief Ndubusi Ezekwum
(Kene C. Business Ventures).”
This was a proper appellation, I hold, as not only is the name of the partner stated, the business name is also stated.
The Appellant, in this case, has tried all manner of subterfuge to evade his liability under the loan agreement. Having utilised the loan, it engages in all manner of subterfuge to evade meeting his obligations. The Courts will never allow this

reprehensible behaviour. I therefore hold that the proper parties were before the Court and thus resolve the 3rd issue for determination against the Appellant.
I therefore hold that this appeal succeeds in part.

Having held that the Appellant is bound by its admission of indebtedness of N5,022,404.22 (Five Million and Twenty-Two Thousand Four Hundred and Four Thousand Twenty-Two Kobo), I set aside the judgment of the lower Court of N5,915,523.41 (Five Million Nine Hundred and Fifteen Thousand, Five Hundred and Twenty Three Naira, Forty-One Kobo and enter judgment against the Appellant upon its admission of indebtedness, in the sum of N5,022,404.22 (Five Million and Twenty-Two Thousand Four Hundred and Four Thousand Twenty-Two Kobo). This sum will attract the same interest of 10% per annum as awarded by the lower Court from 10/12/14, the date of that judgment until its final liquidation by the Appellant.

In the event that the Respondent still wishes to pursue its balance of N893,119.19 (Eight Hundred and Ninety-Three Thousand One Hundred and Nineteen Naira Nineteen Kobo) this claim shall be remitted to the Chief Judge of the Kaduna State High

Court for trial on the said sum.
The Appellant shall pay costs of N100,000 to the Respondent.

HUSSEIN MUKHTAR, J.C.A.: I was privileged to preview the judgment just delivered by my learned brother, Oludotun Adebola Adefope-Okojie, JCA. I am in agreement with the entire reasons and the conclusion that the appeal succeeds partly and is allowed to the extent of its success. I adopt the consequential orders made in the judgment.

SAIDU TANKO HUSSAINI, J.C.A.: I agree with the lead Judgment of my brother, Oludotun Adebola Adefope- Okojie, JCA. I abide with every other Order made including the Order to pay cost imposed on the Appellant.

Appearances:

J. OMOIGUI, ESQ., with him, R. B. BAKARE, ESQ. For Appellant(s)

A. ODEH, ESQ., with him, Z. L. DASHE ESQ. For Respondent(s)