FIRST NATION AIRWAYS (SS) LTD & ANOR v. POLARIS BANK LTD (2022)

FIRST NATION AIRWAYS (SS) LTD & ANOR v. POLARIS BANK LTD

(2022)LCN/16679(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 25, 2022

CA/LAG/84/2019

Before Our Lordships:

Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal

Between

1. FIRST NATION AIRWAYS (SS) LIMITED 2. KAYODE ODUKOYA APPELANT(S)

And

POLARIS BANK LIMITED RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE LEAVE OF COURT IS NOT SOUGHT FOR AND OBTAINED IN RESPECT OF AN INTERLOCUTORY DECISION

In NATIONAL INLAND WATERWAYS AUTHORITY VS SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA (2020) ELC AT 3491, PER OKORO, JSC, it was held that where leave is not sought for and obtained in respect of an interlocutory decision, the Notice of Appeal was incompetent. However, where the appeal relates to a final decision of the Court on an Issue, leave is not required.
Further reference is made to the cases of SYLVANUS EKEMEZIE VS ANIKOKWU IFEANACHO & 2 ORS (2019) SC; ELC AT 3421; WARRI REFINING AND PETRO-CHEMICAL CO LTD VS GECMEP NIG LIMITED (2020) SC; ELC AT 3381 AND ENGR PETER OLUSANYA FAPOHUNDA VS REYNOLDS CONSTRUCTION COMPANY LIMITED & 2 ORS (2018) ELC AT 3413 S.C. PER M.U. PETER ODILI, JSC. Thus, whether a decision is final or not, the test is that where the decision finally disposes of the rights of the Parties, then it is final and there is no need for leave to appeal on it. The converse is that where the ruling did not declare or determine the rights of the Parties, then it is interlocutory and an appeal on it cannot be validly made without leave of Court. This leave is mandatory when appealing against mixed law and facts. Failure to do so, renders the appeal invalid, incompetent, null and void as set out under Section 242 (1) of the 1999 Constitution. PER BANJOKO, J.C.A.

WHETHER OR NOT A COURT CAN ENTER JUDGEMENT BASED ON ADMISSION OF FACTS BY A PARTY TO A SUIT

WHETHER OR NOT THE COURTS CAN PRONOUNCE ON A SUBSTANTIVE MATTER IN THE COURSE OF INTERLOCUTORY PROCEEDINGS

It is settled law that Courts are duty bound not to pronounce on substantive matters in the course of interlocutory proceedings. Reference is made to the decided case law authorities of AGWU & ORS VS JULIUS BERGER (NIG) PLC (2019) LPELR-47625 (SC); ADEDOLAPO & ORS VS THE MILITARY ADMINISTRATOR OF ONDO STATE & ORS (2005) LPELR-7538 (CA); BUREMOH VS AKANDE (2017) LPELR-41565 (SC); A C B LTD & ANOR VS AWOGBORO & ANOR (1996) LPELR-200 (SC).

THE DEFINITION OF THE TERM “INTERLOCUTORY”

However, what is considered Interlocutory?
The Supreme Court in AGWU & ORS VS JULIUS BERGER (NIG) PLC (2019) LPELR-47625 (SC) per AMINA AUGIE JSC defined Interlocutory as follows:
“The word, “Interlocutory”‘ means interim or temporary; not constituting a final resolution of the whole controversy – Black’s Law Dictionary, 9th Ed. Since the Interlocutory Applications are usually dealt with before the substantive suit, the law is that a Court should not say anything at that stage of the proceedings that would jeopardize the just and proper determination of the suit at the trial. Simply put, the Court must not determine substantive issues at the interlocutory stage of the proceedings – See MORTUNE VS GAMBO (1979) LPELR-1913 (SC). In this case, the trial Court, in deciding the said Interlocutory Application, went on to comment on the Substantive Prayers sought in the Writ of Summons, therefore, the Court of Appeal was right to set aside the trial Court’s decision”
It follows therefore that interlocutory decisions are temporal decisions and as such do not constitute a final decision. PER BANJOKO, J.C.A.

THE PURPOSE OF A SUMMARY JUDGEMENT

In the case of ELIJAH ADEBIYI (TRADING UNDER THE STYLE OF DELOCK ASSOCIATION) & 6 ORS VS NATIONAL INSTITUTE OF PUBLIC INFORMATION & 2 ORS (2013) ELC 2260 SC AT PAGE 1, it was held that the whole purpose of a Summary Judgment Procedure is to ensure justice to a Plaintiff and minimize delay, where there is obviously no defence to his Claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent a sham defence from defeating the right of a Plaintiff by delay and thus causing great loss to a Plaintiff. In other words, the summary judgment Rules are specially made to help the Court achieve their Primary Objective, i.e. to do justice to the Parties by hearing their cases on the Merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied.
In LEWIS v. UBA (2016) LPELR-40661 (SC), the Supreme Court per KEKERE-EKUN JSC held as follows:
“The Summary Judgment Procedure is for disposing of Cases, which are virtually uncontested with dispatch. It applies to Cases where there can be no reasonable doubt that the Plaintiff is entitled to judgment and where it is inexpedient to allow a Defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty” See also UBA PLC VS JARGABA (2007) 11 NWLR (PART 1045) 247 at 270 F-H PER I.T. MUHAMMAD, JSC; SHODIPO VS LEMINKAINEN OY (1986) 1 NWLR (PART 15) 230: ADEBISI MACGREGOR ASS LTD VS N.M.B. LTD (1996) 2 NWLR (PART 431) 378; (1996) 2 SCNJ 72 at 81, THOR LTD VS FCMB LTD (2005) LPELR-3242 (SC); BONA VS TEXTILE LTD & ANOR (2012) LPELR-9828 (SC).
From these above Case Authorities it can be clearly seen that there are Two Steps to the Applicability of this Procedure under Order 19 Rule 4, and these are that: –
1. There must be no Reasonable Doubt as to the Efficacy of the Claims of a Plaintiff and
2. The Defendant must not have a Plausible Defence to the Claim of the Plaintiff.
These Two Steps must co-exist before the procedure can be employed.
It is usual to expect that in such actions, the Defendant would clearly set out his reasonable defence on the merits and condescend upon Particulars, and should as best as possible, deal with the Plaintiff’s claim, stating clearly what the defence is and what facts and documents are relied upon to support his position. The evidence adduced by him in his pleadings must disclose facts, which will at least, throw some doubt on the case of the Plaintiff, as a mere general denial of the Plaintiff’s claim is devoid of any evidential value, and as such would not have disclosed any defence which would throw some doubt on the Plaintiff’s claim. Reference is made to the case of OSIFO VS OKOGBO COMMUNITY BANK LTD (2006) 15 NWLR PART 1002 AT 260. PER BANJOKO, J.C.A.

ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered on the 10th of December 2018 by Honourable Justice L.A.F. Oluyemi in Suit No: LD/2940 CMW/2017 as contained in 1918 – 1924 of the Record of Appeal, Volume 4.

The Appellants who were the Claimants, commenced an Action via an Amended Writ of Summons dated 19th October 2018 and Amended Statement of Claim dated 18th of October 2018 against the Respondent who was the Defendant at the lower Court, Claiming for Several Declaratory Reliefs, Perpetual Injunctions and other Orders. (Seen on Pages 1681 to 1698 of the Records.)

In addition to the above, the Appellants also filed an Ex Parte Application for an Interim Injunction dated 6th of April 2017 seeking to restrain the Respondent from exercising the power of sale in respect of the mortgaged properties and calling in the personal guarantee of the Appellant. See Pages 216 – 218 of the Record of Appeal at Volume 1). The Appellants further filed a Motion on Notice also dated 6th of April 2017 seeking Orders of Interlocutory Injunction against the Respondent as seen at Pages 413 – 415 of Record of Appeal, at Volume 1.

The trial Court heard and granted the Appellant’s Motion Ex-Parte on the 13th of April 2017 and ordered Service of the Motion on Notice as seen on pages 1876–1879 of the Record of Appeal, at Volume 4).

Upon Service, the Respondent filed a Counter Affidavit seen on Pages 615–628 in Volume 2 of the Records as well as a Written Address dated 26th April 2017 in opposition to the Appellant’s Motion on Notice for an Interlocutory Injunction, seen on pages 798–806 of the Records of Appeal Volume 2.

The Respondent also filed a Motion on Notice to set aside the entire Proceedings and the Ex-Parte Orders of 13th of April 2017 for being made without jurisdiction as seen on Pages 807–823 of the Records of Appeal. In response, the Appellants objected to the Application, wherein the trial Court delivered its rulings on the two Applications on the 18th of October 2017, first refusing to grant the Prayers Claimed by the Respondent to set aside its ruling and Secondly, in regard to the Appellant’s Motion for Interlocutory Injunction, ordered the Parties to maintain the Status Quo.

The Respondent subsequently filed a Statement of Defence/Counterclaim dated 28th of November 2017. The Counterclaim, claiming Declaratory and other Orders, is seen at Pages 1061 to 1079 of the Records of Appeal Volume 2.

It also filed a Motion on Notice dated 4th of December 2017 brought pursuant to Order 19 Rule 4 of the High Court of Lagos State Civil Procedures Rule 2012 and Section 26 of the Mortgage and Property Law of Lagos State, 2015 seeking an Order entering Judgment on Admission in the Sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) based on the content of the Appellant’s letter dated 7th October 2016. The Appellants opposed the Application via a Counter-Affidavit and Written Address dated the 10th of January 2018 as seen respectively on Pages 1625–1628 and 1635–1640 of the Record of Appeal at Volume 3.

The Respondent filed a Further Affidavit and Reply on Points of Law dated 9th of April 2018 as seen on Pages 1651–1662 of the Record of Appeal. The trial Court heard the Application and the arguments of the Parties on the 24th of October 2018 and on the 10th of December 2018, it delivered its judgment wherein it entered Judgment on Admission in the Sum of N1,741, 994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) (as seen in Pages 1918–1924 of the Record of Appeal Volume 4) in favour of the Respondent and set down the balance of the claims for Hearing.

The Appellant, being dissatisfied with the decision of the trial Court filed a Notice of Appeal dated 10th of December 2018 as seen on Pages 1925–1928 of the Record of Appeal. The Notice of Appeal challenged the whole decision of the lower Court on the following Grounds: –
Ground 1
The Learned Trial Judge erred in law when she held that the Admission contained in the Letter dated 7th October 2016 was unambiguous and unequivocal. There were Five (5) Particulars of Error listed out in this Ground
Ground 2
The Learned Trial Judge erred in law when she granted the Respondent’s Application for judgment on an Admission, thereby determining the issues raised in the substantive case at an interlocutory stage. Five (5) Particulars of Error were listed out in this Ground.
Ground 3
The judgment of the Learned Trial Judge was against the weight of Evidence.

The Appellant sought for the following relief as stated in the Notice of Appeal at Page 1927 of the Records of Appeal.
a. AN ORDER setting aside the ruling of the Honourable Justice L.A.F Oluyemi of the High Court of Lagos State sitting at Lagos delivered on the 10th December, 2018.

The Appellants filed their Brief of Argument on the 15th of May 2019 and same was deemed on the 30th of November 2021.

The Respondent filed its Brief of Argument on the 21st of September 2020 and same was deemed on the 30th of November 2021. The Appellants filed their Reply to the Respondent’s Brief of Argument on the 27th of September 2021.

Now, this Court observed that the Respondent raised a Preliminary Objection in Pages 4 to 5 of their Written Address, which borders on the competency of this appeal.

The Preliminary Objection is praying for the following Reliefs:
1. AN ORDER striking out and/or dismissing the appeal of the Appellant for want of jurisdiction

2. SUCH FURTHER ORDER OR OTHER ORDERS that this Honourable Court may deem fit to make in the circumstances.

The Grounds for the Preliminary Objection is as follows:
1. The Leave of either the trial Court or this Honourable Court must first be sought and obtained before an Appellant can appeal against an interlocutory decision on grounds of facts or mixed law and fact.
2. The Appellants have conceded vide Ground 2 of their Notice of Appeal that the judgment appealed against is an interlocutory decision.
3. All the Grounds of the Appellant’s Notice of Appeal are grounds of mixed law and facts.
4. The Appellants failed to seek the requisite leave of either the trial Court or this Honourable Court before filing its Notice of Appeal and the Appellants’ Brief relies on these irregular Grounds, which do not have the leave of Court.

In support of his Preliminary Objection, Learned Counsel to the Respondent submitted that the sole issue for determination was “whether the failure of the Appellant to obtain Leave of Court to Appeal against the ruling of the trial Court on grounds of fact and/or mixed Law and facts does not rob this Court of Jurisdiction to Entertain the Appeal?”

He contended that by the combined provisions of Sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) a party who desires to appeal to this Honourable Court on grounds of facts alone or mixed law and fact and where the appeal challenges an Interlocutory Judgment, is required to seek the leave of Court. He relied on IKWEKI & ORS V EBELE & ANOR (2005) LPELR-1490 SC, YARO V AREWA CONSTRUCTION CO LTD (2007) 17 NWLR (PT 1063) 333 AT 358–359, KASADADI V NOMA (2007) 13 NWLR (PT 1052) 510. He submitted that the failure to obtain leave to appeal against an interlocutory decision on grounds of facts and/or mixed land facts not only renders the Ground of Appeal incompetent, but also nullifies any issue formulated therefrom. Further reliance was placed on OSHATOBA & ANOR V OLUJITAN & ANOR (2000) LPELR – 2797 SC.

Learned Counsel to the Respondent further submitted that a review of the Grounds of Appeal would reveal that they are all grounds of mixed law and facts and as such are caught up with the provisions of Section 241 (1) and 242 of the 1999 Constitution. Issue one (1) of the Appellant’s Brief of Argument was formulated from a combination of Grounds One (1) and Three (3) of the Notice of Appeal. He argued that the Appellant had conceded via Ground Two of the Notice of Appeal that the decision of the trial Court being appealed against is an interlocutory decision and further contended that the trial Court delved into the substantive matter at the interlocutory stage. It is his submission that this Court determines the appeal without considering the matters relating to the letters of the Appellant of the 7th of October 2016 and 17th October 2016, thereby making this Ground of Appeal one of mixed law and fact.

Finally, he argued that the Court has a duty to merely look beyond the mere description of a Ground of Law as an “Error of Law” and look into the particulars of such ground to determine whether the Grounds of Appeal were of mixed law and facts. He cited KASHADADI V NOMA (SUPRA) and urged this Court to strike out the Notice of Appeal as being incompetent for failure to obtain prerequisite leave of Court.

Conversely, by way of Reply, Learned Counsel to the Appellant agreed that regarding an interlocutory appeal, a Ground of Appeal founded on mixed law and fact requires the leave of Court to appeal in order for it to be competent. However, he argued that the judgment based on Admission of Facts could not be termed as an interlocutory judgment. He relied on Rule 4 of the Lagos High Court Civil Procedure Rules, 2012 (now Order 21 Rule 4 of the 2019 Rules). He further relied on Section 241 (1) of the 1999 Constitution to argue that leave of Court is not required in appealing a final decision of any civil or criminal proceedings. He further contended that no leave of Court is required to appeal a judgment that is based on admission of facts. He placed reliance on FIDELITY BANK PLC V VERVE (NIG) LTD (2019) LPELR-48855 (CA).

He contended that the Respondent could not on one hand argue that the decision was a final judgment, and on the other hand, state that it was an interlocutory ruling. Notwithstanding the submission that the appellant had conceded that the judgment was given at an interlocutory stage and therefore was an interlocutory appeal, this still will not change the position of law that such judgment is a final judgment. Reliance was placed on FIDELITY BANK PLC V VERVE (NIG) LTD (2019) LPELR-48855 (CA), KENLINK HOLDING LTD & ANOR V RELISTICE EQUITY INVESTMENT LTD & ANOR (SUPRA) and he finally urged the Court to dismiss the Preliminary Objection.

Resolution of the Preliminary Objection
In NATIONAL INLAND WATERWAYS AUTHORITY VS SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA (2020) ELC AT 3491, PER OKORO, JSC, it was held that where leave is not sought for and obtained in respect of an interlocutory decision, the Notice of Appeal was incompetent. However, where the appeal relates to a final decision of the Court on an Issue, leave is not required.
Further reference is made to the cases of SYLVANUS EKEMEZIE VS ANIKOKWU IFEANACHO & 2 ORS (2019) SC; ELC AT 3421; WARRI REFINING AND PETRO-CHEMICAL CO LTD VS GECMEP NIG LIMITED (2020) SC; ELC AT 3381 AND ENGR PETER OLUSANYA FAPOHUNDA VS REYNOLDS CONSTRUCTION COMPANY LIMITED & 2 ORS (2018) ELC AT 3413 S.C. PER M.U. PETER ODILI, JSC. Thus, whether a decision is final or not, the test is that where the decision finally disposes of the rights of the Parties, then it is final and there is no need for leave to appeal on it. The converse is that where the ruling did not declare or determine the rights of the Parties, then it is interlocutory and an appeal on it cannot be validly made without leave of Court. This leave is mandatory when appealing against mixed law and facts. Failure to do so, renders the appeal invalid, incompetent, null and void as set out under Section 242 (1) of the 1999 Constitution.

As regards the argument raised in respect of Order 19 Rule 4 High Court of Lagos, Civil Procedure Rules, 2012, this Order was vigorously argued by both Counsel under the issues raised for determination in the substantive appeal and it will be more appropriately treated anon.

Suffice to say, the Court will at this point, refer to the decided case law authority of KENLINK HOLDINGS LTD VS R.E INVESTMENT LIMITED (1997) 11 NWLR PT 529 PG 438 AT 446, Per Mohamed, JCA who held as follows:
“A judgment of a trial Court based on ADMISSION of part of the plaintiff’s claim by the defendant is to all intents and purposes, FINAL, despite the fact that the balance of the total claim will proceed to trial”
Thus a judgment of a trial Court based on admission is a final judgment. See also FIDELITY BANK PLC VS VERVE NIGERIA LIMITED (2019) LPELR – 48855 CA.
Section 241 of the 1999 Constitution of the Federal Republic of Nigeria provides as follows:
(1) An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases –
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the ground of appeal involves questions of law alone, decision in any civil or criminal proceedings; …”
It is therefore trite that a Court can enter judgment based on admission of facts by a Party to a suit. In SALAWU & ANOR v. YUSUF & ANOR (2007) LPELR-2988 (SC), the Supreme Court Per NIKI TOBI JSC held as follows:
“Admission of a Party in law is the best evidence, in the sense that the opposing party need not make any effort to prove the admitted fact. A Court of Law is entitled to give judgment based on admission by a party, if the admission is relevant to the facts in issue. See SALAMATU VS BUPA (1975) NMLR 243. In civil cases, admission by a party is evidence of the facts asserted against him. Unless explanations are given which satisfy the Court that admissions should not be so regarded, due probative weight should be given to them as such. See OKAI II VS AYIKAI II (1946) 12 WACA 31. A party who admitted a fact in his pleading is bound by such admission and he is estopped from denying the fact admitted.”
Thus where a Party has admitted to a fact, the Court is entitled to give judgment based on the facts admitted by the Party. See also NDU VS UNUDIKE PROPERTIES LIMITED (2008) 10 NWLR (PT. 1024) PG 24; ANASON FARMS LIMITED VS NAL MERCHANT BANK (1994) 3 NWLR (PT 331) 241, UBA PLC V IBACHEM LIMITED (2014) 16 NWLR (PT 1402) 125
Therefore, I am in agreement with the Learned Counsel to the Appellant that where a judgment is given based on admission, the decision of the trial Court in respect of the admitted sum is final notwithstanding the fact that other claims not resolved will proceed to trial before the same Court.
It appears that the Respondent’s objection is premised on the misconceived notion that the judgment of the lower Court appealed against, is an Interlocutory decision because of the fact that the trial is still pending before the lower Court, particularly in respect of the other parts of the reliefs sought by the Appellant and that of the Respondent as regards its Counterclaim. It is undisputed that the trial Court has settled the issue as to the indebtedness of the Appellant to the tune of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo). Thus, on this issue, reference can no longer be made to the lower Court, as the lower Court had already made a final pronouncement as regards the liability of the Appellant’s indebtedness to the tune of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo). Therefore, the question, as regards the indebtedness of the Appellant to the tune of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) has finally been resolved by the lower Court, and as such, it constitutes a final judgment.
Since the judgment is a final judgment in respect of the admission of fact relating to the said sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo), no leave of Court is required for the Appellant to file his Notice of Appeal, subject to the provisions of Section 241 of the 1999 Constitution. The Respondent’s Preliminary Objection is found to lack merit and as such, is hereby dismissed.

Now, having resolved the Preliminary Objection in favour of the Appellant, the substance of the main appeal shall be examined.

As regards the substantive appeal, the Appellants in their Brief of Argument raised two (2) issues for determination as follows:
1. Whether considering the facts and evidence adduced in this appeal, the Appellants had unequivocally admitted owing the Respondent the sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo)? (Distilled from Grounds 1 and 3 of the Notice of Appeal)
2. Whether by the grant of the Application for judgment on admission, the Court below had not determined the issues raised in the substantive case at an interlocutory stage?

The Respondent in its Brief of Argument also raised Two (2) Issues for determination as follows:
1. Whether a Party who has admitted liability of indebtedness in a commercial transaction is allowed to resile from same and/or approbate and reprobate?
2. Whether the trial Court is not seized with the Powers to enter judgment against the Appellant upon his clear and unequivocal admission of indebtedness of the sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) under the Rules of trial Court at an Interlocutory Stage of the matter before it?

Issues for Determination
Now, after a thorough perusal of the Grounds of Appeal and Particulars, the Adopted Briefs of Argument by the Parties, as well as the Records of the Trial Court, and after a careful consideration of the Issues raised by Learned Counsel across the divide, the Court will determine the appeal in the order of Issue Two raised by the Appellants, which is in essence Issue One raised by the Respondent as its own first Issue, and then proceed to consider the Appellants Issue One, which was Issue Two for the Respondent. The Issue is as follows:-
1. Whether the trial Court is not seized with powers to enter judgment against the Appellant upon his clear and unequivocal admission of indebtedness of the sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) under the Rules of the trial Court at the interlocutory stage. (Underline Mine)
2. Whether the Appellants have unequivocally admitted owing sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo)?

SUBMISSIONS OF COUNSEL ON ISSUE 1
Learned Counsel to the Appellant submitted that upon a ruling, Courts are duty bound not to make Orders, which have the effect of pre-judging or pre-empting issues for adjudication in the substantive suit before its hearing. He relied on the case law authorities of GROUP DANONE & ANOR VS VOLTIC (NIGERIA) LIMITED (2008) LPELR-1341 (SC); DPCCL VS BPCL (2008) VOL 4 MJSC 161; MORTUNE VS GAMBO (1979) 3-4 SC 54; OMONUWA VS ATTORNEY-GENERAL BENDEL STATE (1983) 4 NCLR 237; GLOBE FISHING INDUSTRIES LTD VS COKER (1990) 7 NWLR (PART 162) 625. Learned Counsel further cited the case of AKILU VS FAWEHIMI (NO. 2) (1989) NWLR (PART 102) 122 to argue that it is not permissible in an interlocutory decision to give what has been claimed and what is yet to be determined in the substantive case and where a Court so engages in this manner, such decision is tantamount to a breach of fair hearing and as such, should be set aside for being perverse. Reliance was placed on the case law authority of OKPOKIRI VS OKPOKIRI (2000) 3 NWLR (PART 649) 461.

Further, the suit was instituted at the trial Court at the instance of the Appellant claiming a declaration that the 1st Appellant was not indebted to the Respondent as well as a declaration that the Respondent was in fact indebted to the 1st Appellant to the tune of N1,361,245,720.82 (One Billion, Three Hundred and Sixty-One Million, Two Hundred and Forty-Five Thousand, Seven Hundred and Twenty-Naira, Eighty-Two Kobo), being the illegal excess and spurious bank charges, charged by the Respondent on the 1st Appellant’s Accounts. The relief sought in the Respondent’s Application for judgment was the exact opposite of the Appellant’s Claim. Learned Counsel for the Appellants contended that the trial Court in granting the Respondent’s Application, implicitly concluded that the Appellants were in fact indebted to the Respondent, and as such, resulted in a clear departure from the trite principle enunciated in AKILU VS FAWEHIMI (NO. 2) (SUPRA). He further argued that the trial Court had preempted its decision in the substantive suit at an interlocutory stage. The final decision has therefore been rendered nugatory. Reliance was placed on INYANG V CHUKWUOGOR (2007) (VOLUME 28) WRN 100. He finally urged this Court to resolve this Issue in the Appellants’ favour.

Learned Counsel to the Respondent conversely submitted that the said judgment on Admission made by the lower Court does not offend the Rule that substantive matters should not be dealt with at interlocutory stage. According to him, judgment on admissions is different from the situations being canvassed by the Appellants.

Learned Counsel submitted that by the Provisions of Order 19 Rule 4 of the High Court of Lagos State Civil Procedure Rules 2012, the trial Court acted within the law when it gave judgment in favour of the Respondent. Reliance was placed on MOSHESHE GENERAL MERCHANT LTD VS NIGERIA STEEL PRODUCTS LTD (SUPRA); OJUKWU VS ONWUDIWE (SUPRA). He argued that the Learned Counsel to the Appellant attempted to sneak in the issue of breach of fundamental rights and urged the Court to dismiss that argument as it did not emanate from any Ground of Appeal or Issues for Determination and as such, must be discountenanced. To this point, he relied on the case authorities of KLM ROYAL DUTCH AIRLINES VS ALOMA (2017) LPELR–42588 (SC) and KOLAWOLE VS ALBERTO (1989) 1 NWLR (PT 98) 383 AT 399.

Learned Counsel further submitted that even though the issue of fair hearing did not arise from the Ground of Appeal, the Appellants filed a Counter Affidavit and a Written Address in opposition to the Respondent’s Motion on Notice for Summary Judgment for Admission before the lower Court. The Respondent filed a Further Affidavit and a Reply on Points of Law. The Application was argued and the trial Court examined all the facts before delivering judgment. He finally urged this Court to dismiss the appeal with substantial costs.

Appellant’s Counsel by way of Reply relied on the case law authority of GUFFANTI NIG PLC VS VADUZ & ORS (SUPRA) to argue that admissions are not estoppels and cannot be held conclusive when same have been denied on the grounds that it is an error/mistake or having been made under wrongful representation.

He further submitted that the lower Court was in error when it delivered final judgment at such interlocutory stage considering the existence of the letter dated 17th October 2016. He urged the Court to set aside the judgment of the lower Court.

RESOLUTION OF ISSUE ONE
The crux of Issue One lies in the question of whether at an interlocutory stage, final pronouncements, can be made in regard to Issues forming part of the substantive matter, yet to be determined.

It is settled law that Courts are duty bound not to pronounce on substantive matters in the course of interlocutory proceedings. Reference is made to the decided case law authorities of AGWU & ORS VS JULIUS BERGER (NIG) PLC (2019) LPELR-47625 (SC); ADEDOLAPO & ORS VS THE MILITARY ADMINISTRATOR OF ONDO STATE & ORS (2005) LPELR-7538 (CA); BUREMOH VS AKANDE (2017) LPELR-41565 (SC); A C B LTD & ANOR VS AWOGBORO & ANOR (1996) LPELR-200 (SC).

However, what is considered Interlocutory?
The Supreme Court in AGWU & ORS VS JULIUS BERGER (NIG) PLC (2019) LPELR-47625 (SC) per AMINA AUGIE JSC defined Interlocutory as follows:
“The word, “Interlocutory”‘ means interim or temporary; not constituting a final resolution of the whole controversy – Black’s Law Dictionary, 9th Ed. Since the Interlocutory Applications are usually dealt with before the substantive suit, the law is that a Court should not say anything at that stage of the proceedings that would jeopardize the just and proper determination of the suit at the trial. Simply put, the Court must not determine substantive issues at the interlocutory stage of the proceedings – See MORTUNE VS GAMBO (1979) LPELR-1913 (SC). In this case, the trial Court, in deciding the said Interlocutory Application, went on to comment on the Substantive Prayers sought in the Writ of Summons, therefore, the Court of Appeal was right to set aside the trial Court’s decision”
It follows therefore that interlocutory decisions are temporal decisions and as such do not constitute a final decision.

The next pertinent question has to be whether the judgment/decision appealed based on an Admission constitutes a final or an interlocutory decision? It is instructive to note that Counsel to both Parties in this case were both flip-flopping in their arguments of whether the decision being appealed against was an interlocutory or final judgment, basically approbating and reprobating.

Learned Counsel to the Appellant had argued in Paragraphs 2.4 to 2.6 of his Reply to the Respondent’s Preliminary Objection that the appeal is not an interlocutory appeal, as the judgment, based on admission of fact, is a final judgment. However, in his Brief of Arguments, he argued to the contrary that the decision of the trial Court was an Interlocutory Decision and that the trial Court was wrong to have delved into the substantive matter at the interlocutory stage.

On his own part, Learned Counsel to the Respondent filed a Preliminary Objection challenging the jurisdiction of this Court to hear this appeal on the grounds that it is an interlocutory appeal and being an interlocutory appeal, leave of Court was required to file an appeal.

However, in his Brief of Arguments, he contradicted himself by arguing that the judgment is a final judgment based on that admission and was not an interlocutory decision.

Now, by Order 19 Rule 4, 2012, now Order 21 Rule 4 of the High Court of Lagos State Civil Procedure Rules 2019, the trial Judge is empowered “on Application, at a Case Management Conference or at any stage of the proceedings where admissions of fact have been made either on the pleadings or otherwise, to make such Orders or give such judgment as upon such admissions, which a Party may be entitled to, without waiting for the determination of any other question between the Parties.”
From this above Rule of Court, the Learned Trial Judge in this case, heard and determined an Application filed by the Respondent vide a Motion on Notice for Summary Judgment, of what was classified as an admission by the Appellants in respect of one claim in the Counter-Claim. A Pronouncement was made in respect of the Appellants’ Admission of indebtedness contained in their letter addressed to the Respondent dated the 7th of October 2016. The balance of the claims in the suit from both Parties was then set down for hearing.

It is obvious that Order 19 Rule 4 of the High Court of Lagos State was incorporated into the Rules of Lagos State High Court to foster Summary Procedures, at different levels of a trial, and even before the commencement of hearing.
In the case of ELIJAH ADEBIYI (TRADING UNDER THE STYLE OF DELOCK ASSOCIATION) & 6 ORS VS NATIONAL INSTITUTE OF PUBLIC INFORMATION & 2 ORS (2013) ELC 2260 SC AT PAGE 1, it was held that the whole purpose of a Summary Judgment Procedure is to ensure justice to a Plaintiff and minimize delay, where there is obviously no defence to his Claim and thus prevent the grave injustice that might occur through a protracted and immensely frivolous litigation. It is to prevent a sham defence from defeating the right of a Plaintiff by delay and thus causing great loss to a Plaintiff. In other words, the summary judgment Rules are specially made to help the Court achieve their Primary Objective, i.e. to do justice to the Parties by hearing their cases on the Merit with utmost dispatch and prevent the frequent outcry that justice delayed is justice denied.
In LEWIS v. UBA (2016) LPELR-40661 (SC), the Supreme Court per KEKERE-EKUN JSC held as follows:
“The Summary Judgment Procedure is for disposing of Cases, which are virtually uncontested with dispatch. It applies to Cases where there can be no reasonable doubt that the Plaintiff is entitled to judgment and where it is inexpedient to allow a Defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty” See also UBA PLC VS JARGABA (2007) 11 NWLR (PART 1045) 247 at 270 F-H PER I.T. MUHAMMAD, JSC; SHODIPO VS LEMINKAINEN OY (1986) 1 NWLR (PART 15) 230: ADEBISI MACGREGOR ASS LTD VS N.M.B. LTD (1996) 2 NWLR (PART 431) 378; (1996) 2 SCNJ 72 at 81, THOR LTD VS FCMB LTD (2005) LPELR-3242 (SC); BONA VS TEXTILE LTD & ANOR (2012) LPELR-9828 (SC).
From these above Case Authorities it can be clearly seen that there are Two Steps to the Applicability of this Procedure under Order 19 Rule 4, and these are that: –
1. There must be no Reasonable Doubt as to the Efficacy of the Claims of a Plaintiff and
2. The Defendant must not have a Plausible Defence to the Claim of the Plaintiff.
These Two Steps must co-exist before the procedure can be employed.
It is usual to expect that in such actions, the Defendant would clearly set out his reasonable defence on the merits and condescend upon Particulars, and should as best as possible, deal with the Plaintiff’s claim, stating clearly what the defence is and what facts and documents are relied upon to support his position. The evidence adduced by him in his pleadings must disclose facts, which will at least, throw some doubt on the case of the Plaintiff, as a mere general denial of the Plaintiff’s claim is devoid of any evidential value, and as such would not have disclosed any defence which would throw some doubt on the Plaintiff’s claim. Reference is made to the case of OSIFO VS OKOGBO COMMUNITY BANK LTD (2006) 15 NWLR PART 1002 AT 260.

The Supreme Court Per NIKI TOBI, JSC had stated in SALAWU & ANOR VS YUSUF & ANOR (2007) LPELR-2988 (SC) that where a Party in a suit had admitted to a fact relevant to the suit, the Court is entitled to enter judgment based on the admission of fact. See also NDU VS UNUDIKE PROPERTIES LIMITED (2008) 10 NWLR (PT. 1024) PG 24; UBA PLC V IBACHEM LIMITED (2014) 16 NWLR (PT 1402) 125
Thus a judgment of a trial Court based on admission is a final judgment, whether decided at the stage of an interlocutory application or otherwise. See also FIDELITY BANK PLC VS VERVE NIGERIA LIMITED (2019) LPELR – 48855 CA.

Finally, In ANASON FARMS LTD VS NAL MERCHANT BANK (1994) 3 NWLR (PART 331) PAGE 241 AT 251 – 252, this Court per NIKI TOBI JCA (as he then was) held as follows:
“For an Admission to qualify as a basis for entering a judgment under Order 28 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules, it must directly and unequivocally touch upon or relate to the relief or reliefs sought in the matter. Admissions which are merely peripheral or incidental to the relief or reliefs sought in a matter cannot qualify as bases for entering judgment under the rule. The element of substantiality of the admission is therefore material to the entire consideration whether the trial Court will deliver judgment in favour of the applicant. It is by and large a factual matter, which the trial Court must resolve by examining the content of the admission. In view of the fact that the procedure terminates a matter in limine without calling oral evidence, the trial Court must ensure that an admission really qualifies for entering a judgment in favour of the applicant before doing so. The procedure is designed to save litigation time in the judicial process.”

The Learned Counsel to the Appellant’s argument that the trial Court had delved into the substantive matter at interlocutory stage is inapposite to this case, as it has been stated that a judgment based on Admission is a final judgment. The rights in regard to the judgment sum has been completely resolved and cannot be revisited by the Learned Trial Judge, who became functus officio upon her pronouncement. It is only the other Claims not resolved during the summary trial that can proceed to trial. Judgment based on admission of facts can therefore not be said to be an interlocutory decision. It is envisaged under Order 19 Rule 4, which empowers the trial Court to enter judgment against the Appellant based on an Admission. This issue is resolved in favour of the Respondent.

The more pertinent question however is to be found under issue two for determination, which seeks to unravel whether, in this instant case, the Appellant clearly and unequivocally admitted its indebtedness to the Respondent and if so, whether it can retract such admission?

Issue Two is “Whether the Appellants have unequivocally admitted owing sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo)?”

SUBMISSION OF PARTIES ON ISSUE 2
Learned Counsel to the Appellant, Mr. Mobolaji Kuti Esq., submitted that where a Party has admitted to a whole or part of a claim against it, the Court may on the Application of the other Party enter judgment in terms of the admission. He however contended that it is not every admission that can qualify as a basis for judgment. The admission that can ground a judgment must be unequivocal and must directly touch or relate to the reliefs sought in the matter. He relied on the case law authorities of SALMATU VS BIBA (1975) NNLR 176; SALAWU & ANOR VS YUSUF & ANOR (2007) LPELR-2988 (SC); ANANSON FARMS V NAL MERCHANT BANK (1994) 3 NWLR (PART 331) PAGE 241; KANO VS THE GOVERNMENT OF ADAMAWA STATE (2014) LPELR 24161 (CA), MOUSSALLATI & ORS VS KNIGHT FRANK ESTATE AGENCY (2017) LPELR – 42893 CA; ORJI VS DORJI TEXTILES MILL (NIG) LTD (2009) 12 SCNJ 251; SEA PETROLEUM & GAS COMPANY LIMITED VS HENCHY NIGERIA LIMITED (2014) LPELR – 24095 CA.

He further contended that every Admission must be carefully evaluated and considered by the Court against the particular circumstance under which it was made, and relied on NWANKWO VS NWANKO (1995) 5 SCNJ 55, TITLOYE VS OLUPO (1991) 7 NWLR (PARTY 205) 519; COKER V OLUSOGA (1994) 2 NWLR (PART 329) 648. It was noted that the expression “Unequivocal” means clear and free from uncertainty. He argued that the Appellant in a Further Letter dated 17th October 2016, stated that a forensic audit uncovered the huge extent of the Respondent’s illegal and extortionate imposition of charges, which grossly inflated the 1st Appellant’s balance with the Respondent. It was also his contention that the Appellants had withdrawn their earlier letter of the 7th October 2016, wherein they admitted the debt.

Learned Counsel submitted that the Letter of the 7th October 2016 had lost its efficacy and had been superseded by the letter of 17th October 2016 and as such there was no admission at all that would warrant the decision of the trial Court against the interests of the Appellant. He argued that for a statement to be considered an admission of facts, that statement must be an unequivocal acknowledgment of facts and nothing more. He reiterated his submission that the Appellant erroneously admitted to owing the disputed sum and went on to point out that there was a retraction of the wrongful admission via the letter dated 17th of October 2016.

It was argued that the trial Court ought to have thoroughly considered the circumstances stated in the letter of 17th October 2016 and if the Court had considered the said letter, it would not have come to the erroneous decision where it granted the Reliefs sought by the Respondent. The circumstances stated in the letter of 17th of October 2016 were grave enough to prompt the curiosity of the lower Court below to properly and thoroughly consider them, as they made out allegations of unethical conducts on the part of the Respondent, which is a Financial Institution. The particular portion of the judgment was reproduced to demonstrate that the decision of the trial Court was perverse and ought to be set aside. He contended that the Court was only minded to read and scrutinize the contents of the Letter of 7th October 2016 to come to the decision that the Appellant admitted owing the Respondent the judgment sum.

Learned Counsel argued that it was settled law that admissions are not estoppel and therefore not conclusive against a Party against whom they are tendered. Such a Party always has the right to prove the circumstances or to show that they were due to erroneous conception of the law or ignorance of the real facts or other circumstances, which sufficiently explain them. Reliance was based on the case law authorities of AKPABUYO LG VS DUKE (2001) 7 NWLR (PART 713) 557; OKOLI II VS AYIKASI II (1946) 12 WACA 21; INSURANCE BROKERS OF NIGERIA VS ATLANTIC TEXTILES MANUFACTURING COMPANY LTD (1996) 8 NWLR (PART 466) 316.

It was further contended that the said admission in this suit is an informal admission, same being an extrajudicial admission. informal admissions do not necessarily bind their maker and may therefore be explained or contradicted. It is the law that where a Party makes an informal admission based on misapprehension of fact or law, he is entitled to make an explanation and such explanation would have to be taken into account in arriving at a decision. His admission cannot be accepted in the isolation of the explanation proffered. He relied on the case authorities of ADO IBRAHIM & CO LTD & ANOR VS ELDERSTEIN (NIG) LTD (2002) 1 NWLR (PART 747) 50; CONTRACT RESOURCES (NIG) LTD & ANOR VS WENDE (1998) 5 NWLR (PART 549) 243; YABOLA LTD & ANOR V TRADE BANK PLC (1998) 6 NWLR (PART 555) 670; NWANKWO VS NWANKWO (1995) 5 NWLR (PART 394) 153.

He argued that the admissions contained in a Party’s pleading can be retracted or withdrawn by way of an amendment relying on BON LIMITED VS NA BATURE (1994) 1 NWLR (PART 319) 235. The lower Court erred by jettisoning the said letter of the 17th of October 2016 as an afterthought. He further argued that the facts admitted ought to be proved by other factors other than by such admission alone. He placed reliance on the proviso of Section 123 of the Evidence Act 2011; ADO IBRAHIM & CO LTD & ANOR VS ELDERSTIEN (NIG) LTD (SUPRA) and urged this Court to hold that the trial Court was wrong in granting the Respondent’s Application for judgment on admission.

Conversely, Learned Counsel to the Respondent referred to Section 20 of the Evidence Act to argue that an admission is a statement, oral or documentary or conduct which suggests an inference as to any fact in issue or relevant act which is made by any of the Persons or in the circumstances mentioned in the Act. He relied on OGUNAIKE VS OJAYEMI (1987) 3 SCNJ, 69 AT 76, SEISMOGRAPH SERVICES LTD V EYUAFE (1976) 9 & 10 SC, 135; TITILOYE VS OLUPO (1991) 7 NWLR (205) 519; GABARI VS ILORI (2002) 14 NWLR (786), 78; CAPPA & D’ALBERTO LTD VS AKINTILO (2003) 9 NWLR (PART 824) 49 for the definition of Admission. He submitted that the Appellant’s Letter to the Respondent dated 7th October 2016 contains Statements, which satisfy the definition given by the Supreme Court in the cases cited and that the trial Court was right to have treated the Statement as an Admission and given judgment thereon without requiring further proof of same.

He further relied on Section 19 of the Evidence Act and Order 19 Rule 4 of the High Court Civil Procedure Rules to argue that a Judge may on Application at any stage of the proceedings, where admission of facts has been made, either on the pleadings or otherwise, make such Orders or give judgment as upon such Admission. He argued that the Provisions of Order 29 Rule 6 of the High Court of Lagos State Civil Procedure Rules, which is in pari material with Order 19 Rule 4 of the 2012 Rules has been interpreted in the case of ADENIJI V UBANAGWU (2010) 12 NWLR (PART 1208) 257 AT 371. He also relied on the case of PAISC LTD V JKPEEZ IMPEX CO LTD (2010) 3 NWLR (PT1182) 441 AT 458.

Learned Counsel to the Respondent contended that the gravamen of this appeal springs from the letter dated 7th October 2016 where the Appellant expressly admitted its indebtedness to the Respondent to the tune of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) out of N2.6 Billion indebtedness claimed by the Respondent. This sum was part of the Respondent’s claim in its Statement of Defence and Counterclaim that the 1st Appellant was indebted to it in the sum of N3,333,660,515.87 (Three Billion, Three Hundred and Thirty-Three Million, Six Hundred and Sixty Thousand, Five Hundred and Fifteen Naira, Eighty Seven Kobo).

Learned Counsel averred the said letter dated 7th of October 2016 was pleaded by the Respondent in its Statement of Defence and Counterclaim and as such, the trial Court was right to have applied the provisions of Order 19 Rule 4 of the High Court of Lagos Civil Procedure Rules to the content of the letter. Reliance was placed on the cases of MOSHEHE GENERAL MERCHANT LTD VS NIGERIA STEEL PRODUCTS LTD (1987) LPELR–1916 SC; OJUKWU VS ONWUDIWE (1984) 2 SC 15 AT 88. He disagreed with the submissions of the Learned Counsel to the Appellant where he argued that the Appellant had erroneously stated that the letter is an informal admission and as such did not bind the maker. He submitted that the contents of the said letter of 7th October 2016 has been pleaded and as such constitute formal admission, which is binding on the Appellants. He submitted that the real issue to be determined in this appeal is whether the Appellant having made the said admissions, can cleverly purport to resile or retract same by another letter, with a view to avoiding the legal consequences of such admissions particularly in a commercial transaction.

Learned Counsel relied on ACB VS GWAGWADA (1994) 5 NWLR (PART 342) to argue that in considering the worth of an Admission, the Court must take into account the circumstances under which it was made and the weight attached to it. He also cited FIRST ALMAGAMATED BUILDING SOCIETY LIMITED & ANOR VS IBIYEYE (2007) LPELR-4158CA; SEISOMOGRAPH SERVICE VS EYUAFE (SUPRA). He further argued that the Appellant had admitted liability to the said sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) and as such, admissions of Counsel are binding on their Client. Reliance was also placed on the case of NYAKO VS ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822 (SC).

Learned Counsel submitted that the logical conclusion that could be deduced from the letter dated 7th October 2016 is that the Appellant came into the conclusion of that amount, having and upon procuring an expert, whose findings they verily and totally believed. That was the circumstance of the said admission. He further contended that the Appellant was trying to evade the consequences of the admitted sum by writing another letter dated 17th October 2016 purporting to retract the said letter and are estopped from alleging that they made such admissions under a “wrong impression” as it has done in their Brief of Argument. The Appellants cannot blow hot and cold at the same time by approbating and reprobating. Reliance was placed on the case law authorities of UDE VS NWARA (1993) 2 NWLR (PART 278) 638 AT 662–663 PARAS FC; AKPA VS ITOD (1997) 5 NWLR (PART 506) PAGE 589; OSUJI VS EKEOCHA (2009) LPELR–2816 (SC); SUBERU VS THE STATE (2010) LPELR–3120 (SC). The trial Court was right to have evaluated the contents of the Appellants’ letter dated 7th October 2016 and the other letter dated 17th October 2016 in the light of the circumstances in which the two (2) letters were written, and was right to dismiss the letter dated 17th October 2016 as an afterthought.

Further, he argued that an Appellate Court has a duty not to disturb the findings of fact, which the trial Court makes its evaluation of evidence, where such findings were made in accordance with the established principles of law and upon the evidence before the Court. Reference was made to the cases of GUPE & ORS VS KWAITA & ANOR (2016) LPELR–41222 CA; CHIEF SALAMI OLATUNDE & ANOR VS SALAMI ABIDOGUN & ANOR (2001) 18 NWLR (PART 716) 712 AT 722 – 733; DANIEL BASSIL & ANOR VS CHIEF LASIS FAJEBE & ANOR (2001) 11 NWLR (PART 725) 592 AT 608, 609.

Further reliance was placed on the cases of IFEANYICHUKWU TRADING INVESTMENT VENTURES LTD & ANOR VS ONYESOM COMMUNITY BANK LTD (2015) LPELR – 24819 SC and KENFRANK NIG LTD VS UBN PLC (2002) 8 NWLR (PART 789) 46 SC and Learned Counsel finally urged this Court to resolve the issue in favour of the Respondent.

However, by way of Reply, the Learned Counsel representing the Appellant submitted that the Respondent’s submission that the Appellant’s letter dated 7th October 2016 is a final and unequivocal admission of its indebtedness is not the correct position of the law. He relied on the case of AKANINWO & ORS VS NSIRIM & ORS (2008) LPELR – 321 SC to argue that admission made in the instance of mistaken representation and/or “wrongful impression” that the audit was correct, cannot impose liability on the Appellants. He further argued that precedents cannot be followed blindly and each case must be treated on its own merits. Relying on ACN VS RIVERS STATE INEC & ORS (2013) LPELR CA, ADAMU & ORS VS JATAU & ORS (2018) LPELR–47141 CA, he argued that the Respondent’s argument on the Admission of the letter dated 7th October 2016 cannot stand as the disputed sum has been denied in its subsequent letter dated 17th October 2021. He also relied on the case of GUFFANTI NIG PLC VS VADUZ & ORS (2013) LPELR–22049 CA to argue that final judgments based on formal or informal admissions should not operate as estoppel. He also relied on ANASON FARMS LTD V NAL MERCHANT BANK (1994) 3 NWLR 241; MURPHY VS COLHANE 1977 QB 94, GALE VS SUPERFRUG STORES PLC (1996) 1 WLR 1989.

He urged this Court to hold that the trial Court was in error to have given judgment in favour of the Respondent considering the existence of the letter dated 17th October 2016.

RESOLUTION OF ISSUE 2
The consideration under this second issue is whether the admission was clear, unequivocal and sufficient to bind the Appellants and in this regard, both letters of the 7th of October as well as the 17th of October 2016, which were both written and were both Pre-Litigation, would be critically examined. This is because at this stage, Parties were clearly within the negotiation and reconciliation of account stages and perhaps had not at this point, considered litigation as an option.

Now, on this issue, the lower Court had Ruled on Pages 1918 – 1924 of the Records of Appeal thus:
“….Exhibit P is a letter dated October 7th, 2016 written by the 1st Claimant and signed by the 2nd Claimant as the Chief Executive Officer. The letter is headed: ‘Re: First Nation Airways (SS) Limited Credit Facilities’ and said to be in respect of ‘updated findings’ regarding the accounts of the 1st Claimant with the Defendant. In its last paragraph on Page 3, it reads:
‘The amount due on all the facilities granted to first nation is N1 741,994,962.04 (One Billion Seven Hundred and Forty-One Million Nine Hundred & Ninety-Four Thousand Nine Hundred and Sixty Two Naira Four Kobo) as against the N2,600,000,000 (Two Billion, Six Hundred Million Naira) in the Bank’s book. We therefore request that a complete reconciliation be accomplished on expedited basis to enable us reach a resolution in good faith and the final amount thereof be termed over a 60-month period. The current structure of the account appeared deliberately skewed against us despite monthly repayment averaging N45 Million over the last 18 months and total repayment of N1.1 billion the debit balance continued to grow to our detriment.’
From the above quoted paragraph Claimants were clear, explicit and in an unambiguous sentence, in their acknowledgment of their indebtedness to the Defendant to the tune of N1,741,994,962.04. The acknowledgment is direct. The phrase ‘amount due’ is unequivocal and indeed without any ambiguity as it is not capable of two or several meanings or interpretations
Claimants’ paragraphs 7 & 8 of the Counter affidavit of Charles Ofolue had admitted Exhibit ‘P’ (that is letter dated 7th October 2016) but that same was written when the 1st Claimant/Respondent did not have full facts concerning the extent of the applicant’s imposition of excessive and illegal charges on its accounts and as a result wrote another letter dated 17th October 2016; attached as exhibit CO3 to deny any indebtedness of the Claimants to the Applicant.
In my view paragraphs 7 and 8 of the Counter affidavit appears to be an afterthought as submitted by the Applicant’s Counsel. This is because the Claimants in their earlier letter of October 7th, 2016, disclosed the basis upon their Admission is hinged in Paragraph 1 of that letter which is said was from the findings of the firm of BBD & Associates retained by the Claimant to review all their accounts with the Defendants “for the purpose of determining the correctness of the amount debited as interest, bank charges etc.
It was after the finding of BBD & Associates that Claimants wrote Exhibit ‘P’ admitting the sum stated therein as the amount owed the Defendant/Applicant.
I agree with the submissions of the applicant’s Counsel that exhibit ‘P’ constitute a clear, valid and subsisting admission under Order 19 (not 29 as Cited by Counsel) Rule 4 High Court Lagos State Civil Procedure Rules 2012. I am also in agreement with the Counsel’s submission that a Court is empowered to grant that part of the claim admitted by a party to a proceeding. To allow the Claimants to rescind their admission is to allow them to approbate and reprobate…” (Underlining Mine)

Even though not set out literarily in the judgment delivered by the trial Court, the second letter dated the 17th October 2016, titled “RE: FIRSTNATION AIRWAYS (SS) LIMITED CREDIT FACILITIES) written by the 1st Appellant Ten days Later, and signed by the 2nd Appellant, stated thus: –
“This is further to our letter dated October 7th 2016 reference FRN/SKYE/EU/070/016 and our discussions on the above subject. Given the lack of progress with the reconciliation. Our additional forensic audit of the account and has constrained us to make the following submissions.
1. This letter supersede (sic) our Letter of October 7th and hereby categorically confirm that no further loan repayment is due to the bank. In accordance with our records, there are NO outstandings in the sum of N1.741 due to the bank as erroneously stated in our Letter of Oct 7th 2016. We had hoped that our letter of Oct 7th will be form the basis of serious discussions toward reconciliation and resolution. But in reality, the bank has chosen not to respond and at the same time, account reconciliation is now deliberately frustrated by your team….
2. The Letter of Offer of N1.3Billion purporting to consolidate existing facilities as at February 2013 grossly overstated the existing facility as at the date of the Letter, this was tabulated on record.
3. Letter of Offer is not proof of disbursement and the multiplicity of accounts appears created (sic) to confuse and manipulate us. It is apparent from the above that consolidation was done to compromise our finances and as the amount of 1.3 Billion was grossly inflated and only the sum of N200M was disbursed from the purported N1.3Billion. Will therefore urge you the new management to see things differently.”
4. The summary of their account position was stated and in,
5. You will recall that our previous correspondences raised our concern about the fact that monthly repayment is wrongly applied to the term loan account rather than first liquidating the OD to ensure that in good faith, carrying costs is reduced at sustainable level.
We remain open to a meeting at your earliest convenience to enable us accomplish reconciliation.

It is clear that the latter letter of the 17th constitutes a retraction and repudiation of the contents of the letter of the 7th of October. In MOUSSALLATI & ORS VS KNIGHT FRANK ESTATE AGENCY (2017) LPELR-42893 (CA), this Court defined retraction as follows:
Retraction is simply the act of recanting or taking back what had been said. Thus, even though the admission is clear, it was made by counsel and to compound it, it was retracted, so going by the decision of the Apex Court in the case of OKESUJI V LAWAL supra, it will not qualify as an admission that can give rise to a judgment.

By the above definition of retraction, the Appellants had on the 17th of October 2016, recanted or taken back their admission of indebtedness made on the 7th of October, in respect of the said sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo).

However, they requested a complete reconciliation on the accounts in order to determine the final amount to be paid. There is no evidence that the Respondent responded to the said letter.

Both letters of the 7th and 17th of October 2016 were placed before the trial Judge and the issue now for consideration, is whether the contents of these two letters can be said to amount to an admission of liability on the part of the Appellant?

In KASSIM VS ADESEMOWO & ORS (2021) LPELR-55333 (SC), the Supreme Court Per OKORO JSC, defined Admission as follows:
“…Admission is defined as a voluntary acknowledgment made by a Party of the existence of the truth of certain facts which are inconsistent with his claim in an action. It is a concession made by a party of the existence of certain facts, a statement made by a party of the existence of a fact which is relevant to the cause of the adversary.” See also CAPPA & D’ALBERTO LTD VS AKINTILO (2003) 9 NWLR (PART 824) 49; NIGERIAN ADVERTISING SERVICES LIMITED & ANOR VS UBA PLC & ANOR (2005) LPELR 2009 (SC) ADUSEI V ADEBAYO (2012) 3 NWLR (PT 1288) 534, OMISORE V AREGBESOLA (2015) LPELR-24803 (SC) at l.

Clearly an Admission, being a concession or voluntary acknowledgment of facts in issue, is an important piece of evidence and constitutes a powerful weapon of offence to be relied on against the party who made it. However, it is open to the person who made the admission to prove that those admissions are not true. Admissions have an added factor, which is that there must not be any doubt or ambiguity and the Courts are enjoined to carefully peruse the other parts of direct or circumstantial evidence available in order to come to the conclusion that the Admissions made were clear, certain, definite and verifiable. In other words, admissions are therefore not conclusive if it was successfully withdrawn, made out of lack of knowledge or proved to be erroneous. To successfully prove error, necessary evidence must be established for that purpose.

If the circumstances were such that the statement alleged to be an admission, was made in the course of an attempt to settle a dispute, either before an action is commenced or while an action is going on, the statement would ordinarily not be admissible in evidence at all. It would be classified as a form of informal admission, which may be made without reference to proceedings and may take the form of documents such as Wills, Deeds, Receipts, Negotiable Instruments, Account Books of Tradesmen, Maps or Plans. These types of informal admissions may be explained away unless proved to be sufficiently explicit. In GUFFAMTI NIG PLC VS VADUZ & ORS (2013) LPELR – 22049 (CA), this Court per held as follows:
”Decidedly, final judgment based upon formal and/or informal admissions should not be given, and should not operate as ESTOPPEL, if such final Judgments have the effect of shutting out the defence in limine, and where the materials explanatory of the circumstances in which the admissions have been made, and suggesting that they may have been made due to any error, mistake or misrepresentation, fraud or other sufficient explanatory events exist” See also ANASON FARMS LTD VS NAL MERCHANT BANK (1994) 3 NWLR 241, Part 331 RATIO 3; MURPHY VS COLHANE 1977 QB 94; GALE VS SUPERDRUG STORES PLC (1996) 1 WLR 1989.”
Accordingly what was said or written in the course of negotiations, which are entered into expressly or impliedly “without prejudice” can not be given in evidence, even on the question of costs, without the consent of the Party who made the statement. The fact that negotiations are without prejudice may also be garnered from the circumstances of the case, so that letters may be inadmissible even though none of them is expressly headed “without prejudice” or documents prepared in pursuance of negotiations. Reference is made to PHIPSON, MANUAL OF EVIDENCE, 8TH EDITION AT PAGES 126-127; MOLE VS MOLE (1951) 1 KB AT 485, AT PAGE 21 AND RABIN VS MENDOZA (1954) 1 WLR AT 271.

In this instant case, the Appellants had engaged the services of an Auditor to determine the correctness of their indebtedness to the Respondent with the aim of reconciling their accounts. Based on the report, the Appellants concluded that they were indebted to the Respondent in the sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo) based on their initial findings. The Appellants in their letter of 7th October 2016 however requested for the reconciliation of their accounts to determine their level of indebtedness to the Respondent. The Respondent failed to respond to their letter. Ten (10) days after, the Appellant wrote a letter dated 17th October 2016, recanting the letter dated 7th October 2016 stating that a further forensic audit of their accounts took place due to the failure of reconciliation of their indebtedness. In their letter, they recanted the admission of their Indebtedness on the grounds that upon further probe they discovered that they were not indebted. They claimed that multiplicity of accounts was created to confuse and manipulate them as “the sum of N1.3 Billion was grossly inflated.” The further forensic audit, which led to the retraction of the said admission of indebtedness, appears to indicate that the Appellants were under the mistaken belief that they were indebted to the Respondent in the sum of N1,741,994,962.04 (One Billion, Seven Hundred and Forty-One Million, Nine Hundred and Ninety-Four Thousand, Nine Hundred and Sixty-Two Naira, Four Kobo).

It is clear that the Appellants were not fully abreast of its outstanding indebtedness, and this explains why they had been requesting for reconciliation with the Respondent, who failed to respond to their letter.

It is also instructive to note that the Person or Firm who engaged in the further probe carried out that necessitated the retraction, was not stated and therefore it could very well have been undertaken by the same firm BBD & Co; by the Appellants themselves or any other person.

Further thoughts must be had to the fact that these letters, incorporating the admission and retraction, occurred before this suit was instituted at the trial Court.

From the evidence, the Appellants did not tender the letter dated 7th October 2016 admitting their indebtedness to support their Statement of Claim, and therefore the doctrine of estoppel estopping them from retracting the said admission in the proceedings, cannot be evoked.

Learned Counsel to the Respondent had also argued before the trial Court that the letter dated 17th October 2016 was an afterthought, and the Trial Court agreed with him in this manner:
“In my view Paragraphs 7 and 8 of the Counter Affidavit appears to be an afterthought as submitted by the Applicant’s Counsel. This is because the Claimants in their earlier letter of October 7th, 2016 disclosed the basis upon their Admission is hinged on Paragraph 1 of that letter which is said was from the findings of the firm of BBD & Associates retained by the Claimant to review all their accounts with the Defendants “for the purpose of determining the correctness of the amount debited as interest, bank charges etc.”

Now, the question is, how did the trial Court arrive at the conclusion that the Appellant’s letter dated 17th October 2016 was an afterthought?

According to the Chambers 21st Century Dictionary, an afterthought is an “an idea thought of after the main plan, etc. has been formed; a later thought or modification.” It is a second thought or reconsideration/reflection of the facts usually engaged in after an appropriate explanation, answer or whether it is expedient and is usually conceived too late for the occasion. It is something not added to the original plan or design.

For the trial Court to conclude that the said letter dated 17th October 2016 was an afterthought, there must be an in-depth analysis of both the letters of 7th October 2016 and 17th October 2016. The question is: did the trial Court examine the letter dated 17th October 2016 to determine that the letter was an afterthought? Were the letters of 7th October 2016 and 17th October 2016 weighed on an imaginary scale for the trial Judge to conclude that the said letter dated 17th October 2016 was an afterthought?

From the excerpts of the judgment, it appeared that the trial Court relied on Paragraphs 7 and 8 of the Appellant’s Counter-affidavit to conclude that the letter dated 17th October 2016 was an afterthought. There is nothing to show that the trial Court really examined the letter dated 17th October 2016 to conclude that the said Letter was an afterthought. There was no review of Paragraphs 7 and 8 of the Respondent’s Counter Affidavit, which stated that the earlier letter of the 7th was written when they did not have full facts concerning the extent of the Applicant’s imposition of excessive and illegal charges on its accounts. They termed the Letter written on the 17th of October as a clarifying letter denying any responsibility for the debt. They still requested for reconciliation to determine the final amount due, and it was due to the lack of progress in reconciling the accounts that they carried out a further forensic audit of the accounts, whereupon they discovered that they were not indebted to the Respondent in that amount.

This subsequent letter ought to have triggered the curiosity of the trial Court to know how the Appellant could claim they were not indebted. The claims of the Appellant that a further review was conducted, that there was a discovery of several accounts, the arbitrary deductions of funds as well as the non-disbursement of pledged funds, should have prompted the trial Judge to call for further evidence from both sides, before he could arrive at his finding that the letter of the 17th was an afterthought. Further, the trial Judge appeared to rely on the fact that the letter of the 7th October 2016 was written by an expert auditor. There is however nothing on record to show that it is not yet the same Auditor, BBD & Associates, who on further probe, discovered that the Appellants did not owe the Respondent. It must be noted that at every stage of communication by the Appellants, they always requested for reconciliation to determine the final amount due.

The fact that the Appellants were not certain as to the amount due and given the fact that they had retracted the said letter dated 7th October 2016 in their letter dated 17th October 2016, their Liability or otherwise ought to have been determined at the hearing of the substantive claim and a summary judgment ought not to have been delivered where the amount indebted was in dispute. It had the effect of shutting out the defence of any error, mistake or misrepresentation.

In this instant case, the trial Court has erroneously disposed of a suit that is contentious. The trial Court ought to have moved the substantive suit to the general cause list rather than pronouncing on a debt that is already in dispute under the summary judgment procedure. Thus Issue 2 of this appeal is hereby resolved in favour of the Appellant.

The judgment of the lower Court in respect of this issue is hereby set aside. It is hereby ordered that the suit be remitted back to the High Court for retrial and the suit be transferred to the Chief Judge of Lagos State for Re-assignment to another Judge.

OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my lord ADEBUKOLA BANJOKO, JCA. I agree.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I agree.