KWARA STATE MINISTRY OF HEALTH & ANOR v. MALLAM ISSAH ELECTRICAL ENTERPRISES
(2011)LCN/4360(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2011
CA/IL/22/2008
RATIO
INTERLOCUTORY DECISION: HOW TO DETERMINE WHETHER A DECISION IS INTERLOCUTORY OR NOT
It is now settled beyond peradventure that whether a decision of a trial Court is interlocutory or not depends on whether such decision is capable of determining finally the rights of the parties to a dispute. PER TIJJANI ABDULLAHI, J.C.A.
INTERLOCUTORY : DEFINITION OF INTERLOCUTORY
Interlocutory is defined in Black’s Law Dictionary, 7th Edition, edited by Bryan A. Garner to mean (ln-tar-lok-ye-tor-ee) adj, (of an order, judgment, appeal, etc.) interim or temporary not constituting a final resolution of the whole controversy. PER TIJJANI ABDULLAHI, J.C.A.
DISPUTE : DEFINITION OF THE WORD “DISPUTE”
A dispute is defined in Black’s Law Dictionary 7th Edition on page 485, to mean “A conflict or controversy, especially one that has given rise to a particular lawsuit”. PER TIJJANI ABDULLAHI, J.C.A.
ADMITTED FACTS: WHETHER AN ADMITTED FACT REQUIRE FURTHER PROOF
The law is now trite that fact admitted requires no further proof to enable the Court to give judgment on it. Neither the appellants nor the respondent bear any further burden of proving the respondent’s claim which has been admitted by the appellants through their Counsel. It is my considered view that the admission of the respondent’s claim by the appellants brought the case to a position where the trial Court can finally determine the right and duties of the parties to the case. See the case of UBA, Plc and 1 other vs Alh. Babangida Jangaba supra. Again, in the cases of Din vs. African News Papers (1990) 5 SC (Pt.11) 111; (1990) 3 NWLR (Pt. 139) 3gg and Narindex Trust Ltd. v. N.I.M.B Ltd. (2001) 4 SC (Pt. II) 25 (2001) 10 NWLR (Pt. 791) 321 the Supreme Court held that there will no longer be a burden to prove what has been admitted. PER TIJJANI ABDULLAHI, J.C.A.
OMISSION TO HEAR PARTIES: WHETHER EVERY OMISSION TO HEAR PARTIES IN A CASE IS FATAL TO THE PROCEEDING
…it is now settled beyond dispute that not every omission to hear parties in a case that is fatal to the proceeding unless there is a miscarriage of justice. See Mora vs Nwalus (1962) 1 An NLR 681 and Atoyebi vs. Gov. of Oyo State (1994) 5 SCNJ 68 at 84. PER TIJJANI ABDULLAHI, J.C.A.
JUSTICE
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. KWARA STATE MINISTRY OF HEALTH
2. ATTORNEY-GENERAL, KWARA STATE Appellant(s)
AND
MALLAM ISSAH ELECTRICAL ENTERPRISES
(MIEE ELECTRICAL ENGINEERING SERVICES )Respondent(s)
TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kwara State High Court of Justice, Coram Gbadeyan (J) delivered on the 20th day of November, 2007 wherein the learned trial Judge overruled the Preliminary Objection brought by the appellants and consequently entered judgment in favour of the respondent; the appellants having conceded that they are indebted to the respondent (claimant) and are, therefore not contesting the amount as claimed by the respondent.
The learned trial judge held inter alia as follows:
“In his reply, Mrs. Abdulrahaman conceded that they are indebted to the claimant and are therefore not contesting the amount as stipulated by the claimant.
I am satisfied that there is no iota of dispute to be referred to any arbitrator in this matter.
The objection is, therefore overruled.
In the absence of any defence, judgment is accordingly entered for claimant as per the Writ of Summons.”
Dissatisfied with the decision of the learned trial Court, the appellants who were defendants at the lower Court filed a notice of appeal on 6th day of December, 2007 consisting of three grounds and sought for the following reliefs:
“(i) To set aside the decision of the trial court in which the trial court overruled the objection of the Defendant/Appellant and to hold that there existed a dispute which should be referred first to an arbitrator and not the court.
(ii) To set aside the judgment of the trial court as it is premature since the case has not gotten to the hearing of the substantive suit.”
In compliance with the rules of this Court, briefs were exchanged by the respective parties and in a brief settled by Saka Isau (SAN) Attorney-General of the state, on behalf of the appellants, two issues are distilled from the three grounds and they are:
(i) ISSUE NO. 1
Whether or not the lower Court was right to have overruled the objection of the Appellants in view of the arbitration clause in exhibit 1 attached thereto which was made subject to the arbitration and Conciliation Act of 1988. (Relate to ground 1 & 2)
(2) ISSUE NO. 2.
Whether or not the lower court rightly gave a final judgment in this case in a ruling on a preliminary objection, without affording the Appellants any hearing and whether this has not robbed the Appellants of their constitutional right to fair hearing thereby occasioning a miscarriage of justice to the Appellants. (Relate to Ground 3).
For his part, in a brief settled by Fabiyi F.B. Esq, learned Counsel formulated four issues for determination from the grounds of appeal. But when he was reminded that he cannot formulate issues more than the grounds of appeal, learned Counsel applied to abandon the fourth issue for determination and same was struck out.
The three issues formulated for determination by the learned Counsel are as stated below:
“(a) Whether the appeal of the Appellants against the ruling of the trial high court dated 20th day of November 2007 is competent before this court.
(b) Whether the trial high court was right to have overruled the preliminary objection of the Appellant in holding that “I am satisfied that there is no iota of dispute to be referred to any arbitration in this matter”. (Page 109 lines 4 and 5 of the record of proceedings).
(c) Whether the trial high court was right in giving final judgment based on the admission of the Appellants that they are indebted to the Claimant (Respondent) and are therefore not contesting the amount as stipulated by the Claimant (Respondent) (Page 94 lines 14 to 18; Page 107 lines 4 to 5; Page 109 lines 1 – 3 of the record of proceedings).
Let me say from the onset that the issues formulated by the parties are similar to one another and that the appeal can be determined by giving consideration to issues formulated by either party. It is also instructive to observe that issue No. 2 formulated by the Appellant is the same as issue No. 3 as formulated by the respondent. I will therefore consider issue No. 2 as formulated by the appellant together with issue No. 3 as formulated by the Respondent.
On the 9th of February, 2010, when the appeal came before us for hearing, learned Counsel for the appellants adopted his brief of argument filed on 22nd June, 2009 but deemed to have been properly filed and served on 14th October, 2009 through an application for extension heard and granted that date. He urged us to allow the appeal. Learned Counsel for the respondent adopted his brief filed on the 13th November, 2009 within time and urged us to dismiss the appeal as lacking in merit.
In arguing issue No. 1, learned Counsel Senior Counsel began by submitting that Courts are bound to limit themselves to the issues placed before them for adjudication by the parties. The Notice of Preliminary Objection filed by the appellants, learned Counsel went on, has only one annexture, which is the contract agreement. Learned Counsel Senior Counsel referred to paragraph 11(b) of that Exhibit which contains an Arbitration clause and submitted that under the said clause, parties have opted for arbitration and not litigation as was clearly expressed therein.
Learned Counsel Senior Counsel relied on the case of African Insurance Development Corporation vs. Nigeria LGN Ltd. (2000) 2 SCNJ, 119 to submit that parties are bound by all the terms agreed to under the agreement including the terms under the law to arbitrate and it is the duty of the Court to enforce it. Learned Counsel further submitted that the parties in this action as contained in exhibit 1 , have not agreed to revoke the arbitration Clause in Exhibit 1 neither did any of the parties seek leave of any court or judge to revoke same. That being so, learned counsel went on, Clause II (b) in Exhibit I remains intact and binding on the parties and we were urged to so hold.
Learned Senior Counsel referred to section 5 of the ACA, 1988 which empowers a party to apply for stay of action, after putting up appearance before delivering any pleadings for the purpose of referring the matter for arbitration, learned Senior Counsel submitted that, they complied with the provision of the said section by filing their Preliminary Objection timeously after putting a conditional appearance before filing their defence.
Learned Senior Counsel contended that the respondent, by filing an action in the trial Court before resorting before submitting the dispute to arbitration is in breach of Exhibit I and under section 34 of ACA, 1988 the trial Court shall not have intervened in any matter governed by the said Act except where so provided in the Act.
It is the submission of the learned Senior Counsel that, observance of a condition precedent to the institution of an action constitutes an important pre-requisite to a valid action before a Court. In support of this submission, learned Counsel relied on the cases of Okonkwo vs. INBC (2004) 1 NWLR (Pt.854) 242 at297 to 298 and Madukolu vs. Nkemdilim (1962) All NLR 591 at 589 – 590.
Learned Senior Counsel urged us to hold that, in view of the authorities cited supra,, the condition precedent to exhaust the avenue of Arbitration before coming to the Court was not observed by the respondent and to hold that this omission has stripped the lower Court of its jurisdiction to entertain this suit at the stage it did.
Learned Senior Counsel alluded to the letters the respondent wrote to the State House of Assembly which he attached to his Writ of Summons and claim as qualifying on the part of the respondent that he was seeking the intervention of a third party to the resolution of the dispute between it and the appellant as provided for in exhibit I which is a form of conciliation and medation under ACA 1988, the provision of this law is to the effect that when mediation fails, the party ought to proceed to arbitrate on the matter and not to abandon that procedure at that Stage and go to Court when this method has not been exhausted. Learned Senior Counsel submitted that this is exactly what the Respondents had done, which he urged this Court not to encourage.
Learned Senior Counsel referred to the decision of the learned trial judge wherein he held thus:
“I am satisfied that there is no iota of dispute to be referred to any arbitrator in this matter.”
Learned Senior Counsel contended that the lower Court erred in its conclusion quoted above because there existed a dispute or a disputable matter between the appellants and the respondent herein. After alluding to the definition of dispute as defined in the Oxford and Longman Dictionaries, learned Senior Counsel, submitted that from the definition of the word dispute and the method employed by the respondent in initiating the proceedings at the lower Court by his issuance of a Writ of Summons, he already knew that there was a likelihood of a dispute or a disputable thing in his claim against the appellants, especially on his claim for interest.
Learned Senior Counsel, submitted that the claim of the respondent at the Court below for 2nd interest on the Sums Claimed and from when to start calculating the interest are matters that are disputable. He submitted that what interest (if any) that is chargeable can only be arrived at when evidence are led on same and the parties are heard on the issue. More so, he further submitted that the Contract Agreement between the parties did not make any provision for the charging of interest on the Contract sum. The contract documents is on pages 51 to 64 of the record. See also the case of Attorney General Federation v. Attorney General Abia State and Ors (2001) 7 SCNJ on meaning of dispute.
It is the submission of the learned Senior Counsel that the charging of 21% interest on the sum claimed from 1999 is an extraneous agreement that the respondent had thereby read into the agreement between him and the appellants therein. For this submission, learned Senior Counsel relied on the case of Chukwuma vs. Petroleum (1993) 4 NWLR (Pt. 289) 512 at 534 where Ogundare JSC of blessed memory held that:
“An extraneous agreement not entered into by the parties to a Contract of Service Cannot be made the basis of an action
Learned Senior Counsel, further submitted that it will be illegal for the respondent to transfer the Savannah Bank’s interest claimed from it unto the appellants herein who are not a party in any way to the agreement between the bank and the respondent herein. To support his submission learned Counsel referred us to the case of Arjay Ltd. vs. A.M.S. Ltd. (2003) 7 NWLR (Pt. 820) 577 at 634 paras B – C.
Learned Senior Counsel urged us to; based on the foregoing argument the statutory and judicial authorities referred to, resolve this issue in favour of the appellants and to hold that the lower Court was in error in law to have overruled the Preliminary Objection of the appellants, in view of the content of its Exhibit I attached thereto and that this has occasioned a miscarriage of justice against the appellants herein.
Learned Counsel for the respondent, on the other hand, submitted that the appeal of the appellants against the ruling of the trial judge dated 20th day of November, 2007 is incompetent and that this Court has no jurisdiction to entertain it because it is an appeal against the interlocutory decision of the trial Court filed outside the prescribed mandatory period of fourteen days.
It is the contention of the learned Counsel that being an interlocutory decision, the relevant provisions of the 1999 Constitution and the Court of Appeal Act, Cap 75 of Laws of the Federation of Nigeria, 1990, must apply in any step taken to appeal against that aspect of the ruling. By the provisions of section 25 of the Court of Appeal Act, the appellants are required to file their notice of Appeal against the interlocutory decision within 14 days from the date of the ruling (20/11/07) learned counsel further contended. Learned counsel went on to contend, that, the appellants filed their Notice of Appeal on the 6th day of December 2007, fifteen days after the ruling of the learned trial Judge. Relying on the case of Chief Etete S. Owoh and three others vs. chief Kingston U. Ajuk and Lorder (200) 4-5 SC (Pt.1) 155 at 171 and the statutory authorities cited supra, learned counsel urged us to hold that the appeal is incompetent and that this court lacks the jurisdiction of entertaining it.
RESULUTION OF THE ISSUE(S)
It is now settled beyond peradventure that whether a decision of a trial Court is interlocutory or not depends on whether such decision is capable of determining finally the rights of the parties to a dispute. Interlocutory is defined in Black’s Law Dictionary, 7th Edition, edited by Bryan A. Garner to mean (ln-tar-lok-ye-tor-ee) adj, (of an order, judgment, appeal, etc.) interim or temporary not constituting a final resolution of the whole controversy.
Now, the question that is begging for an answer is this, can it be said from what transpired in the lower court, the rights of the parties have been finally determined by the ruling of the learned trial Judge or the decision handed down by the learned trial judge is an interim or temporary not constituting a final resolution of the whole controversy as the definition of the world interlocutory suggests.
To answer the question posed supra, recourse had to be made to the ruling of the learned trial Judge on the day in question whilst delivering his ruling wherein he held thus:
“In the absence of any defence, judgment is accordingly entered for claimant as per his writ of Summon”.
It is instructive to note that the decision of the learned trial Judge reproduced above is very clear and unambiguous. The decision, needless to say has finally determined the rights of the parties in the matter for which they appeared before him. This being the case, I am of the considered view that the decision of the learned trial Judge is not and cannot be an interlocutory decision. I am also of the further view that under section 220 (1) (a) of the constitution of the Federal Republic of Nigeria, 1999, “an appeal shall lie from decision of a High Court to the Federal Court of Appeal as of right in the following cases –
(a) Final decision in any civil or criminal proceeding before the High Court sitting at first instance;
(b) ………………………………………………….
(c) ………………………………………………….
(d) ………………………………………………….
(e) ………………………………………………….
(f) ………………………………………………….
Flowing from above, it is crystal clear that the appellant does not require any leave to appeal against the decision of the lower court. And under section 25 (2) of Court of Appeal Act, Cap. 7 5 Laws of the Federation, 1990, the appellant has three months to appeal against the decision of the learned trial Court not 14 days as canvassed by the learned Counsel for the respondent. This issue in the light of the foregoing is resolved against the respondent in favour of the appellant.
However, let me pause at this junction and say that, this is not the end of the matter. Learned senior Counsel quite vigorously argued that the parties having agreed to refer the dispute for arbitration under section 11(b) of Exhibit 1, they are bound by such agreement. He further argued that the dispute ought to have been referred for arbitration before filing an action for adjudication before the learned trial Judge and we were urged to so hold.
Learned Counsel for the respondent on the other hand, argued per contra and submitted that there exist no dispute in connection with the performance or execution of the contract between the 1st appellant and the respondent because the contractual term and condition stipulated in Exhibit 1, were not breached in the performance of the contract.
Learned Counsel submitted that dispute will only arise in connection with the contract between the 1st appellant and the respondent when either parties to Exhibit I have breached the terms and conditions stipulated in the Exhibit. Learned counsel further submitted that the Appellant having been satisfied with the performance of the contract job by the respondent and issued it with Exhibit A which is payment certificate directing that the balance sum of N1,132,739.09k be paid to the respondent, there exists no dispute arising from the contract to be referred to an arbitration but rather a claim for indebtedness (debt) which the civil court has the jurisdiction to adjudicate upon without reference to an arbitration. In support of this submission learned Counsel referred to the case of Usi Ent. Ltd. vs. Kogi State Govt. and 2 others (2005) NWLR (Pt.908) 494 at 516 paras C-D.
In resolving this aspect of the case, the first question to be asked is what is a dispute? And can it be said from what transpired at the lower court, that there is a dispute between the parties which ought to be referred for arbitration in accordance with provisions of Exhibit 1.
A dispute is defined in Black’s Law Dictionary 7th Edition on page 485, to mean “A conflict or controversy, especially one that has given rise to a particular lawsuit”. In the light of the definition of the word dispute as stated supra’ can it be said that there is a dispute between the parties? The answer to this question, needless to say, can only be found in the record of the Lower Court. On the 3rd of October, 2007, as can be seen from the printed record of the Court at page 106 whilst the application was being heard, a counsel with the appellants Mrs. Abdulrahman, who in fact represented the appellants stated as follows:
“There is no doubt that we are indebted to the claimant and we are not contesting the amount as stipulated by the claimant”
(underlining supplied for emphasis).
Let me say that, after this far reaching and very significant admission by the counsel for the appellants, the learned trial Judge adjourned the application for ruling on the 18/10/2007. Whilst delivering his ruling the learned trial judge rightly in my view referred to affidavit and the counter-affidavit filed by the parties to the litigation; Exhibit B in which the defendant admits owing the claimant and the admission made by the Senior State Counsel Mrs. Abdulrahman who conceded that they are indebted to the claimant and are, therefore, not contesting the amount as stipulated by the claimant and held thus:
“I am satisfied that there is no iota of dispute to be referred to any arbitration in this matter.
The objection is, therefore overruled.
In the absence of any defence, judgment is accordingly entered for claimant as per the writ of Summons”.
I am of the considered view that the learned trial Judge based on the materials placed before him, the admission of the learned Senior State Counsel inclusive was absolutely right to have held that there is no iota of dispute between the parties to be referred to arbitration. I am in complete agreement with the views expressed by the learned Lord on this aspect.
In the case of Usi Enterprises Limited vs. The Kogi State Government and 2 others Supra, when this Court was considering what constitutes a dispute for the purpose of reference to arbitration held thus:
“In the instant case, there is certainly a dispute between the parties as to whether the balance remaining unpaid is a balance due and unpaid after the completion of the contract works as maintained by the appellant, or it is an amount unpaid because it is not yet due, in the absence of formal certificates for works executed on the site duly issued in respect of the works for which payment is claimed as required by the contract and maintained by the respondents. (P.516, paras. B-C).”
It is pertinent to observe that the facts of the case in hand are not on all fours with the facts of the case reproduced above. In the case in hand there is no dispute whatsoever about none execution of some part of the contract. In fact there exists a Certificate of completion in the case in hand plus an admission that they (appellants) are not contesting the amount claimed on the Writ of Summons.
Let me also say that I cannot agree more with the submission of the learned Counsel for the respondent wherein he submitted thus:
“It is submitted that my Lords that the case of Chukuma vs. Petroleum (1993) 4 NWLR (Pt. 289) 512 at 534 referred to by the appellants is not applicable to this matter because it relates to contract of service while the present case relates to contract for service”.
In the light of the foregoings, this issue is resolved in favour of the respondent and against the appellants.
ISSUES NOS. 2 AND 3
The next issue for determination are issues No. 2 which is whether or not the lower Court rightly gave judgment in a ruling on a preliminary objection in this case without affording the appellants any hearing and whether this method has not robbed the appellants of their right to fair hearing, thereby occasioning a miscarriage of justice to the appellants. (Relate to Ground 3) and issue No.3 as formulated by the respondent which is whether the trial high court was no right in giving final judgment based on the admission of the Appellants that they are indebted to the Claimant (Respondent) and are therefore not contesting the amount as stipulated by the Claimant (Respondent) (Page 94 lines 14 to 18; Page 107 lines 4 to 5; Page 109 lines 1 – 3 of the record of proceedings).
Learned senior Counsel, in arguing these issues alluded to several orders and rules of the Kwara State high Court (Civil Procedure) Rules where a plaintiff to a cause is supposed to adduce evidence in support of his claim and submitted that on the application of either party to a cause, the Court can order for the attendance of any deponent of an affidavit for the purpose of his -being cross-examined. Learned Counsel further submitted that in the whole proceedings before the lower Court, there was no time the case was adjourned for hearing of the claim of the claimant but for the hearing of the preliminary objection of the appellants.
It is contention of the learned Senior Counsel that instead of delivering the ruling, the learned trial judge ended up in delivering his final judgment, wherein he held thus:
“The objection is therefore overruled. In the absence of any defence, judgment is accordingly entered for the claimant as per the Writ of Summons”.
Learned Senior Counsel submitted that based on the orders and rules alluded to earlier, there must be a hearing in this case where by the facts deposed to by the respondent herein can be given in evidence, confirmed and all the documents referred to in his deposition tendered in evidence and the appellant availed the opportunity to cross-examine the respondent on his evidence as a whole before the lower court can act on the same to give judgment. Learned Counsel opined that failure to follow the laid down procedure has occasioned a grave miscarriage of justice to the appellants. We were urged to so hold by the learned Senior Counsel. For this submission, learned Counsel referred to the case of Benjamin Abasuyi and another vs. Biz Ventures Ltd (2000) 4 SCNJ 20 to buttress his submission.
Learned senior counsel submitted that the fact finding of a court must depend on evidence only and not the contents of addresses of counsel orally or in a brief of argument. The rules of Courts, learned senior Counsel went on, are to ensure that the affairs of the Court are carried out in an orderly fashion, though the court should not be enslaved by the rules but it is not proper for the court to adhere to technical rules of procedure to cause injustice by shutting out a defendant from defending a suit. For this submission learned counsel relied on the cases of E.S.B. International Bank vs. Imano Nig. Ltd. and Another (2000) 7 NWLR p. 65 and Texaco Nigeria Plc. vs. Lukoko (1997) 6 NWLR (Pt.510) 651.
It is the contention of the learned counsel that the non-hearing of the case of the appellants has robbed the appellants of its constitutional right to fair hearing in this case before the lower Court thereby occasioning a miscarriage of Justice to the appellants. Learned Counsel further contended that the lower court has a duty to hear the parties on the issues raised and or consider all the issues before it can arrive at a decision. Learned Counsel further contended that the lower has failed in this respect by not allowing any hearing before it gave judgment in the matter which is the subject matter of this appeal. For this submission, learned Counsel relied on the case of
Oke vs. Nwaogbuinya (2001) 1 SC (pt.1) 22 at 25.
Learned Counsel referred us to section 137 of the Evidence Act and submitted that under the provision of the said section, it is the duty of the plaintiff to prove his case and not the duty of the defendants to disprove the plaintiff s case. In support of this submission, learned Counsel relied on the case of Agbana vs. Owa (2004) 13 NWLR (Pt.889) at 17 para C. Learned Senior Counsel cited the case of N.B.P.A. vs. Ososanya (2004) 5 NWLR (Pt. 867) 601 at 624 wherein the Apex Court held thus:
“A decision of Court is perverse when it ignores the fact or evidence before it and, when considered as a whole, amounts to a mismanage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.”
See also the case of Agbomeji vs. Bakare (1998) 9 NWLR (Pt.564) 1 at 8.
Based on the foregoing and all the arguments canvassed above, learned Senior Counsel submitted that the judgment of the lower Court is perverse, runs against the rule of fair hearing and has occasioned a miscarriage of Justice against the appellants and we were urged to set it aside and resolve the issues in favour of the appellants.
For his part, learned Counsel for the respondent submitted that the trial Judge was right to have awarded to the respondent the claims as contained in its Writ of Summons based on the admission of the appellants before the trial Judge.
It is the contention of the learned counsel that appellants clearly and unequivocally admitted the claims of the respondent against them when the counsel to the appellants, Mrs. Abdulrahrnan told the trial Judge in the open Court in the course of proceedings in this matter that there is no doubt that the appellants are indebted to the claimant and that the appellants are not contesting the amount as stipulated by the claimant. (page 107 lines 4-5 and page 109 lines l-3 of the record of proceedings).
Learned Counsel relied on the case of United Bank for Africa plc and 1 other vs. Alh. Babangida Jargaba (2007) 5 SC 1 act 21 in support of his contention that facts admitted need no further proof and posited that the apex Court in that case held that, when admission are made they are relevant and that no fact need to be proved in any civil proceedings which the parties thereto or their agents agree to admit at the hearing or which, before the hearing, they agree to admit by any writing under their hands or which by any pleadings in force at the time they are deemed to have admitted by the pleadings. Learned Counsel urged us to resolve these issues in their favour based on the foregoing reasoning.
RESOLUTION OF THE ISSUES
In resolving these issues, my first port of call is section 19 of the Evidence Act which provides thus:
“An admission is a statement, oral or documentary, which suggest any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and in the circumstance, hereinafter mentioned” and Section 20 (1) of the Evidence Act which states that:-
“Statements made by a party to the proceeding, or by an agent to any such party, whom the court regards, in the circumstances of the case, as expressly or impliedly authorized by him to make them, are admissions.”
Having stated what admission is and all that, I will proceed to examine what happened on the date the application of the appellants to have the case of the respondent dismissed for being premature and lack of jurisdiction on the part of the trial Court to entertain it came up for hearing. That date was 3rd October, 2007 in the course of proceedings, the learned senior State Counsel who appeared for the appellants, Mrs. Abdulrahaman submitted thus:
“There is no doubt that we are indebted to the claimant and we are not contesting the amount as stipulated by the claimant”.
It is instructive to note that the learned trial Judge in his ruling rightly in my view held that the learned Counsel for the appellants conceded the claim of the respondent. The word concede, is defined in the Oxford Advanced Learner’s Dictionary, 6th Edition at page 231 to mean to admit that something is true, logical etc. This being the case I am of the firm view that in the light of the provisions of sections 19 and 20 (1) of the Evidence Act reproduced supra, the Counsel for the appellants has admitted the claim of the respondent in the course of proceedings before the learned trial Judge.
In the light of the foregoing, the question to be asked is this, what is the effect of this admission on the entire case of the appellants? The law is now trite that fact admitted requires no further proof to enable the Court to give judgment on it. Neither the appellants nor the respondent bear any further burden of proving the respondent’s claim which has been admitted by the appellants through their Counsel. It is my considered view that the admission of the respondent’s claim by the appellants brought the case to a position where the trial Court can finally determine the right and duties of the parties to the case. See the case of UBA Plc and 1 other vs Alh. Babangida Jangaba supra.
Again, in the cases of Din vs. African News Papers (1990) 5 SC (Pt.11) 111; (1990) 3 NWLR (Pt. 139) 399 and Narindex Trust Ltd. v. N.I.M.B Ltd. (2001) 4 SC (Pt. II) 25 (2001) 10 NWLR (Pt. 791) 321 the Supreme Court held that there will no longer be a burden to prove what has been admitted.
Learned Senior Counsel has made heavy weather that the respondent having instituted his action by filing a Writ of Summons accompanied by statement of claim, deposition of witnesses and all other processes must call witnesses to establish his claim. With respect due to the learned Senior Counsel, the fact that the respondent has done what is required under order 2 Rules 2 of the Kwara State High Court (civil Procedure) Rules’ 2008 does not make it mandatory for the respondent to call witnesses to proof his case or adduce evidence to establish his claim after the claim has been admitted by the appellants (defendants). I am of the considered view’ as held by the learned trial-Judge that the unequivocal admission of the appellants to the effect that they are not contesting the respondent’s claim discharge the respondent the burden of proof. See the case of UBA Plc and 1 other vs. Alh. Babangida Jargaba (supra).
Learned senior counsel has also made heavy weather of the fact that by giving judgment the way the trial Judge did in the case in hand has deprived the appellants their right to fair hearing and has also caused miscarriage of justice on their part. With due respect to the learned Senior counsel, it is now settled beyond dispute that not every omission to hear parties in a case that is fatal to the proceeding unless there is a miscarriage of justice. See Mora vs Nwalus (1962) 1 An NLR 681 and Atoyebi vs. Gov. of Oyo State (1994) 5 SCNJ 68 at 84.
That aside, I am of the firm view that the final judgment by the learned trial Judge based on the admission of the appellants does not amount to denial of right to fair hearing of the appellants because the learned trial Judge afforded the appellants the opportunity to be heard on the claims of the respondent against them and they chose to admit the respondents claim. I am of the further view that the appellants’ right to fair hearing will only be infringed where they (appellants) were not given the opportunity to be heard on the claims of the respondents.
It is noteworthy to observe that the appellants were not prevented from calling witnesses to prove their claims. Far from that The appellants as can be gathered from the records, appeared in Court on the 3rd day of October, 2007 and told the court without prompting from any quarters, that they are indebted to the respondent and that they are not contesting the respondent’s claim on the Writ of Summons. The learned trial Judge, needless to say based on the admission of the appellants gave judgment against them. (See pg. 107 of the records).
Let me at this stage pause and say that, one final point I would like to make before dropping my pen on this issue is this, that, it is the duty of the court to create the atmosphere or environment by involving itself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. That is not fair to the Court. The Court further held that the fair hearing principle formerly entrenched in Section 33 of the 1979 Constitution, and now Section 34 of the 1999 Constitution is not for the weakly, the slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial proceedings by taken advantage of the principle at the appropriate time. The principle is not available to a party who set a trap in the litigation process against the Court and accuses the Court of assumed wrong doing even when so called (assumed) wrong doing is, as a matter of fact, propelled or instigated by the party through his Counsel. See the cases of News watch Communications Ltd vs. Alh. Aliyu Ibrahim Attah (2006) 4 SC (Pt 11) 114 at 128 and A.G. Rivers State vs. Ude and 12 Ors (2006) E-7 SC 131.
In the light of the foregoings, these issues, like the one before them are resolved in favour of the respondent and against the appellants.
In the light of all that I have been saying this appeal fails and it is hereby dismissed. Parties to this appeal shall bear their individual costs of prosecuting it.
SOTONYE DENTON WEST, J.C.A.: I have the privilege of reading in advance the Judgment just delivered by my respected learned brother Tijjani Abdullahi, JCA. He had in my humble view adequately addressed the issues raised in the appeal, namely:
“1. Whether the appeal of the Appellant against the ruling of the trial High court dated 20th day of November, 2007 is competent before this court.
2. Whether the trial High court was right to have overruled the preliminary objection of the Appellant in holding that of am satisfied that there is no iota of dispute to be referred to any arbitration in this matter”. (page 109 line 4 and 5 of the record of proceedings)
3. Whether the trial High Court was not right in giving final judgment based on the admission of the Appellants that they are indebted to the claimant (Respondent) and are therefore not contesting the amount as stipulated by the claimant (Respondent)
(Page 94 lines 14 to 18; page 107 lines 4 to 5; page 109 lines 1 -3 of the record of proceedings).
These issues were dealth with by His Lordship in the lead Judgment to my satisfaction. However by way of emphasis, I would like to highlight a point in respect of issue number (3) to this effect:
3. Whether the trial High Court was not right in giving final judgment based on the admission of the Appellants that they are indebted to the Claimant (Respondent) and are therefore not contesting the amount as stipulated by the claimant (Respondent). (Page 94 lines 14 to 18; Page 107 lines 4 to 5; Page 109 lines 1 – 3 of the record of proceedings).
There is so much undue delay in the administration of justice oweing to the fact that even when parties have no issues to settle in situations such as this where there has been clear admission of the rights and indebtedness by the appellants to the respondent’s claims, there need not be any more issues that may require the intervention of a court of law. However, where a court has acted and gave judgment in accordance with the admission of Learned Senior State Counsel, Mrs. Abdulrahaman of indebtedness of the Appellants to the claims of the Respondents without the desire to contest the amount claimed as stipulated by the claimant, then the Appellants should not complain or even make it an issue for determination on appeal. By doing so, they are only investing for time which in totality adds unnecessary delay in effecting justice, for justice delayed is justice denied.
However, a Judge is the master of his court and so long as there is no miscarriage of justice against any of the parties as in this appeal where the trial court made a final judgment in respect of the claim so as to bring the mater to a just conclusion which leads to speedy dispensation of justice.
See BELLO -VS- FAYOSE (1999) 11 NWLR (PT.627) 510; DAPIANLONG -VS- DARIYA (2007) 8 NWLR (PT.1036) 239 CA.
Indeed, it is a matter of trite law that fact admitted requires no further proof to enable the court to give judgment thereon. Therefore, it would serve no useful purpose for the appellants to make this fuss that judgment should not have been entered in favour of the respondents based on this admission before the court.
I also dismiss the Appellants’ appeal and other consequential orders made in the lead Judge
IGNATIUS IGWE AGUBE J.C.A.: I have read in advance the lead Judgment of my Noble and Learned Presiding Justice, T. Abdullahi, J.C.A. and there is no reason why I should differ from the position he has taken in dismissing the appeal in its entirety.
Where as in this case, the Appellants had conceded that they were indebted to the Respondent/Claimant and therefore not contesting the Respondent’s claim, the learned trial Judge had no other alternative than to give Judgment in favour of the Claimant/Respondent.
It was therefore foolhardy and a complete waste of time and resources to proceed to this Court on appeal to set aside the well considered Judgment of the Learned trial Judge. I too shall dismiss the, appeal of the Appellants and uphold the decision of my lord the Presiding Justice affirming the decision of the trial Court.
I abide by the order as to costs.
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Appearances
Mrs. Funsho Lawal (DCL) Kwara State Ministry of Justice with R. A. Shittu (SSC)For Appellant
AND
A. S. Jimoh Esq.For Respondent
