MR. MAHMUD TUKUR & ANOR v. INTERGLOBAL PROCUREMENT ENGINEERING SERVICES LIMITED
(2014)LCN/6811(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of January, 2014
CA/L/1149/2010
RATIO
MODES IN WHICH A TRANSVERSE MAY BE MADE
It is trite that any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue operates as a denial of it.
A traverse may be made either by a denial or by a Statement of non-admission and either expressly or by necessary implication.
Every allegation of fact made in a Statement of Claim which the party on whom it is served does not intend to admit, must be specifically traversed by him in his defence, and a general denial of such allegation, or a general statement of non admission of them is not a sufficient traverse of them.
Every allegation of fact must be specifically denied or specifically not admitted. Thus a general denial or a general statement of non-admission of allegation of facts is not a sufficient traverse thereon. A traverse must not be evasive. Half admission or half-denial is evasive.
In PINSON v. LLOYD AND NAT. PROV. BANK (1941) 2 K.B. 72, in an action for buying and selling securities without the Plaintiff’s authority, the Defendants denied that they had done so without the authority of the Plaintiff. Particulars were ordered of any authority that the Defendants were alleged to have had from the Plaintiff to carry out any of these transactions. Per RITA NOSAKHARE PEMU, J.C.A.
WHETHER A GROUND OF APPEAL AGAINST A DECISION MUST RELATE TO AND CHALLENGE THE RATIO OF THAT DECISION.
It is trite that a Ground of Appeal against a decision must relate to, and challenge the validity of the ratio of the decision. Therefore no valid issue can be formulated from an invalid ground of appeal which does not relate to the Judgment being challenged. Per RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
Between
1. MR. MAHMUD TUKUR
2. INDEPENDENT ENERGY LIMITED
3. DADDO MARITIME SERVICES LIMITED
4. ECOMARINE LIMITED Appellant(s)
AND
INTERGLOBAL PROCUREMENT ENGINEERING SERVICES LIMITED Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of Honourable Justice O. Okeke of the Federal High Court, Lagos Division in Suit No FHC/L/CS/351/08 in which he entered Judgment in favour of the Respondent. (Pages 607-608 of the Record of Appeal)-upon an application dated 14th day of October 2009, in which the Respondent sought Judgment against the Defendants upon their alleged admissions in their pleadings.
SYNOPSIS OF FACTS:
The Respondent was the Plaintiff in the lower Court.
In an amended Writ of Summons and in paragraph 37 of the further amended Statement of Claim dated 30th April 2009 and filed on same date, the Respondent instituted an action against the Defendants (Appellants in the present appeal) jointly and severally claiming the following reliefs viz:
(a) A declaration that the 1st Defendant as Director of the Plaintiff company, owed a fiduciary duty to the said Plaintiff Company to pilot, manage and utilize the Plaintiff Company’s funds properly, lawfully, judiciously and transparently and not to appropriate money belonging to the Plaintiff company.
(b) A declaration that the 1st Defendant acted in bad faith in breach of this fiduciary duty to the Plaintiff Company by misappropriating from the Plaintiff Company’s account between 2003 to 2006 respectively the sums of $USD142,753 and N24,780,424.00 respectively belonging to the Plaintiff company without her consent, mandate and authority.
(c) An order for the refund of the sum of $USD142,753 which the 1st Defendant illegally, unlawfully and furtively diverted and siphoned from the Plaintiff Company’s account to his personal use without the Plaintiffs Company knowledge, consent and authority. With interest at the rate of 25% per annum from 23rd October, 2007 until Judgment thereafter at the same rate per annum until the Judgment sum is paid.
(d) An order for the refund of the sum of N24,780,424 which the Defendants surreptitiously and fraudulently diverted and siphoned from the Plaintiff Company’s account without the Plaintiffs company consent mandate, and authority,
(1) Independent Energy Ltd – N18,401,610
(2) Daddo Maritime Service Ltd. – N3,179,354
(3) ECO Marine Limited – N3,199,460
N24.780.424
With interest at the rate of 25% per annum from 23rd October, 2007 until Judgment thereafter at the rate per annum until the Judgment sum is paid.
(e) An order directing and compelling the 1st Defendant to render financial accounts to the Plaintiff Company for the period 2003 to 2005 respectively whilst he was the Managing Director of the Plaintiff Company.
(f) Sequel and pursuant to paragraph 5 above, in the event upon compliance by the 1st Defendant with paragraph 5 above, it is found, disclosed and or confirmed that the value of the amount misappropriated by the Defendants is in excess of the sums claimed by the Plaintiff in paragraphs 2, 3 and 4 above respectively, a further order directing the Defendants to make further refunds to the Plaintiff company to the value of the excess sums, misappropriated by the Defendants with interest at the rate of 25% per annum from 23rd October, 2007 until Judgment at the some rate per annum until Judgment sum is paid.
(g) An order directing and compelling the 1st Defendant to release and return to the Plaintiff’s company, the Plaintiff company financial accounting records in the 1st Defendant’s custody and possession for the period 2003 to 2006 respectively.
(h) An order directing that henceforth the 1st Defendant ceases forthwith from enjoying all the rights, privileges, perks and prerequisites of office by virtue of his position as both a Director/Shareholder of the Plaintiff Company pending the determination of this suit.
(i) Interest on the above-mentioned sums at the rate of 25% per annum from 23/10/07 until Judgment thereafter of the same rate per annum until the Judgment sum is liquidated.
(j) Cost of this action. – pages 140 – 147 of the Record of Appeal.
The Appellants filed a further amended Statement of Defence and Counter-claim on the 15th of December, 2009 – (pages 416-427 of the Record of Appeal).
Vide an application filed on the 14th of October, 2009, the Plaintiff/Applicant, sought an order of Court entering Judgment in the sum of USD$142,753.00 and N17,405,424.00 respectively in favour of the Plaintiff/Applicant jointly and severally against the 1st, 2nd and 4th Defendants as per their admissions contained in paragraphs 7, 6(a), 11 and 12 of the Defendants’ amended Statement of Defence dated 10th June 2009.
The Defendants, as gleaned at pages 285-290 of the Record of Appeal filed a Counter-Affidavit and written address in opposition to the application. The Plaintiff filed a Reply on points of law – (pages 587-589 of the Record of Appeal).
The learned trial Judge, after consideration of the application and other processes, entered Judgment in favour of the Respondent on the 29th of June, 2010 – pages 605-606 of the Record of Appeal.
The Appellants are dissatisfied with the Judgment and on the 8th of July, 2010, pursuant to the Practice Direction of this Honourable Court, filed a Notice of Appeal with six (6) Grounds of Appeal – pages 611-617 of the Record of Appeal.
The Appellants filed their Brief of Argument on the 20th of September, 2011. It is settled by Babatunde Osikoya Esq.
A supplementary Record of Appeal was filed on the 7th of June 2013.
On the 28th of November 2013, the parties adopted their respective Briefs of Argument. The Appellants abandons the sixth Ground of Appeal, and Issue No.3 in his Brief of Argument.
He urges Court to allow the Appeal.
The Respondent submits that on the 7th of February, 2012, the Appellants counsel orally withdrew his challenge to the jurisdiction of this Court. Same was granted by this Honourable Court. The Respondent withdraws his second issue for determination in view of this withdrawal.
The Respondent highlights paragraph 0.9 in his Brief of Argument. That there is double admission in open Court. The payment made reduced the naira equivalent. That if they were not owing, the question is why did they pay that money.
That Issue No. 2 of the Appellants’ issues for determination does not flow from the Grounds of Appeal. He urges Court to dismiss the appeal and to affirm the Judgment of the lower Court dated 29/6/2010, entered on admission.
The Appellants had proffered six (5) issues for determination from the Grounds of Appeal.
They are:
(1) WHETHER OR NOT IT IS PROPER FOR THE TRIAL JUDGE TO ENTER AN INTERIM JUDGMENT AGAINST THE 1ST DEFENDANT FOR UN-ADMITTED CLAIMANT IN ISOLATION, OR WITHOUT CONTEMPATION OF AND NOTWITHSTANDING THE 1ST DEFENDANTS COUNTER CLAIM, SET OFF YET TO BE DETERMINED BY THE SAME COURT AGAINST THE CLAIMANT.
(2) WHETHER OR NOT IT IS NOT PREMATURE TO ENTER INTO AN INTERIM JUDGMENT AGAINST THE 2ND – 4TH DEFENDANTS IN THE LIGHT OF THE OUTSTANDING ISSUES OF INTERCOMPANY RELATIONSHIP THAT SUBSISTS BETWEEN THE CLAIMANT AND THE 2ND – 4TH DEFENDANTS BY VIRTUE OF WHICH
(3) WHETHER OR NOT IT IS PROPER FOR AN AMENDMENT OF BOTH THE PLEADINGS AND THE APPLICATION FOR INTERIM INJUNCTION BEFORE THE PRONOUNCEMENT OF JUDGMENT ON AN INCHOATE PROCEEDING BY THE COURT.
(4) WHETHER IN VIEW OF CLAIM NO. 8 OF THE PLAINTIFF’S CLAIM AND CLAIMS NO. 3, I, II AND ALTERNATIVE CLAIMS NOS (A), (B), III, IV, VI, VII, VIII, IX AND X OF THE 1ST AND 3RD DEFENDANTS COUNTER-CLAIM AS SUPPORTED BY THE MINUTES OF THE BOARD OF DIRECTOR MEETTNG OF 10TH APRIL 2007, ATTACHED TO THE DEFENDANTS DOCUMENTS IN THE PROCESSES BEFORE THE COURT, IT SHOULD NOT THEN BECOME CLEAR TO THE LOWER COURT THAT THIS IS AN ACTION THAT AMOUNTS TO INDIRECT WINDING UP PROCEEDINGS TO WHICH PIECE-MEAL JUDGMENT DOES NOT APPLY OR OCCASION JUSTICE.
(5) WHETHER OR NOT THE COURT CLAIMS NO. 8 AS ENDORSED ON THE PLAINTIFF’S STATEMENT OF CLAIM AND THE WRIT OF SUMMONS DISCLOSES ANY REASONABLE CAUSE OF ACTION OR THE SAME IS JUSTICEABLE.
(6) WHETHR OR NOT IN VIEW OF ISSUE NO. 4 ABOVE THE LOWER COURT OUGHT NOT TO HAVE DISMISSED ACTION IN ITS ENTIRETY AND DIRECTED THAT THE PROPER PROCEDURE BE FOLLOWED FOR THE PURPOSE OF WINDING UP OF THE AFFAIRS OF THE COMPANY WHEN IT APPEARS THAT THE SUIT ITSELF IS IN ALL PRACTICAL PURPOSES AN ACTION FOR WINDING UP OF THE PLAINTIFF COMPANY.
The Respondent distilled two (2) issues for determination in his Brief of Argument filed on the 15th of February 2012. The Brief of Argument is settled by Emeka Okwuosa.
The two issues for determination are:
(A) WHETHER THE LOWER COURT (FEDERAL HIGH COURT, LAGOS) WAS RIGHT IN ENTERING JUDGMENT ON ADMISSION IN THIS SUIT.
(B) WHETHER THE LOWER COURT (FEDERAL HIGH COURT,LAGOS) HAS JURISDICTION TO ENTER JUDGMENT ON ADMISSION IN THIS ACTION.
Let me quickly note here that Issue No. 2 of the Appellants’ issues for determination is not complete, neither is it conclusive. It is vague and cannot be considered in consequence. It is hereby discountenanced.
ISSUE NO. 1
The fulcrum of Issue No. 1 in the Appellants’ issues for determination is that the procedure adopted by the lower Court in the proceedings leading to the interim Judgment was improper, unreasonable and unjust. That there was no admission by the 1st Defendant (Appellant) and in the face of admitted counter-claim, set off of the 1st Defendant against the Plaintiff.
The Appellants had sought to argue Issues 1 and 2 together, but as I had discountenanced issue No. 2 because of its in conclusion, that issue can no longer be considered. This connotes that the complaint in Ground 2 of the Grounds of Appeal from which Issue No. 2 is distilled, and which the Appellants argue that is of similar vein, facts and law and which relates to the 2nd, 3rd and 4th Defendants with regard to the state of pleadings of the parties, and as to whether there was an admission by them again, upon which the interim Judgment was based at the lower Court is hereby discountenanced.
The Appellants submits that the state of pleadings between the parties is most germaine in considering the propriety of, and or applicability of Order 15 Rule 4 of the Federal High Court (Civil Procedure Rules 2009), under which the Interim Judgment, the subject of the present appeal was given.
They submit that Order 15 Rule 4 provides thus
“The Judge may, on application at any stage of the proceedings where admission of facts have been made either on the pleadings or otherwise, make such orders or give such Judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties”
They submit that the question is whether there has been an admission of the facts in respect of which Interim Judgment is given. He further asked the question what qualifies as an admission in respect of which Interim Judgment may be given.
They submit that Section 20(1) and 21 of the Evidence Act define the term “ADMISSION”, but that Section 26 of the Evidence Act stipulates that Admission is not conclusive proof of the matters admitted, but they may operate as estoppel under the provisions of part VIII.
They submit that admission itself, without more may not necessarily be conclusive as to events, but that for it to be conclusive, as in the case of unchallenged evidence, it will depend on the circumstances.
Citing EIGBE v. NUT 2008, 24 WRN 110, he submits that for an admission to be enforceable, same must not be qualified or dependent on other issues yet to be determined, but same must be proved to be direct, positive, clear and unequivocal. That in this case SHOREMI, JCA stated;
“It is trite that for contents of a document to amount to an admission, the statement therein must be direct, positive, clear and unequivocal”
They also cite the case of NAVINDEX TRUST LTD v. NIGERIAN INTERCONTINENTAL BANK LTD 2001 26 WRN 83 AT 94. They submit that the true test is if the purported admission is clear, direct, positive and unequivocal.
They argue that in considering the application of the Respondent at the lower Court (as reflected at pages 256 of the Record of Appeal), paragraphs 6(a), 7, 11 and 12 of the Amended Statement of Defence and Counter claim as contained at pages 416-427 of the Record of Appeal were just picked out of con, and must be read along paragraphs 35(a) 36, 37(c), 38, 39 and 40 of the same Amended Statement of Defence and paragraphs 43, 44-47 of the Counter claim of 15th of December 2009 in order to understand whether there was any admission and the quality and kind of admission in the con of the circumstances of this matter.
Let me quickly note here that to say that something is read out of con connotes that it is not relevant to the issue at hand. It literally means it is alien to the issue at hand. I want to believe that what the Appellants meant to say was that the paragraphs should not be read in isolation, but should be read in conjunction with the processes enumerated.
The Appellants argue that the 1st, 2nd – 4th Defendants filed a Counter affidavit and Written Address in opposition to the Plaintiffs application for Judgment.
That the Counter Affidavit and Written address in opposition to the Plaintiff’s Application for Judgment under consideration. In the counter affidavit sworn to by one Festus Oshinowo, the same facts are stated in the paragraphs of the Amended Statement of Defence. Therefore issues have been joined by both parties awaiting the determination of the lower Court.
Citing OWOSHO v. DADA 1984 7 S.C. 149 where the Supreme Court held that
“A fact is deemed to be admitted if it is neither specifically denied nor denied by implication having regard to averments of facts in the pleadings. Plaintiffs averments of facts must be met frontally and categorically.”
They submit that the Written Address in opposition submitted both in law and in fact that the pleadings of the Defendants, do not in any manner translate into an admission.
They submit that the stage was set for the lower Court to determine in a well considered Ruling, as to whether the Defendants have in fact admitted by their pleadings, the sums being claimed to have been so admitted by the Plaintiff’s application.
They submit that the Judgment entered by the learned trial Judge does not derive from or arise out of the facts before him in the pleadings, and the Counter affidavit together with the written address of counsel. This makes the finding perverse.
That it is clear that the lower Court considered the motion on notice which includes the written address, but did not consider the Defendants Counter affidavit and the written address of the Defendants before coming to the conclusion in contravention of the law of fair hearing.
That address of counsel is part of the case of a party, and non consideration of the same by the Judge is fatal to the Judgment.
They submit that if the learned trial Judge had averted his mind to the issues raised in the Defendants’ written address, he would have had the benefit of the legal issues raised in the same, with regard to whether there has been an admission of the sums in what manner, and whether Judgment could be given on the same piece-meal under the procedure adopted by the Plaintiff.
The Appellants submit that the state of the pleadings of the Defendants with regard to the sums being claimed is that
a) The sums of USD$142,753 and N17,405,242.00 were not fraudulently misappropriated by the 1st Defendant while acting as the Managing Director of the Plaintiff.
b) That the sums were borrowed by the Plaintiff with both actual and tacit approval of the other Directors/Shareholders as against his dividend capital account and retirement benefits as the retired Managing Director of the Plaintiff amounting to about N15m and that the same be settled by way of set off.
c) That in view of the (b) above, the procedure adopted is not fair and that the Court should afford the parties an opportunity of full trial where all these issues will be treated once and for all.
They submit therefore that Section 26(1) of the Evidence Act states that an admission is not conclusive of the proof of evidence.
Submits that an admission can only be against and contrary to the position of the person making it. IGA v. AMAKIRI 1976 11 S.C. PG. 12.
They submits that if the admission of the taking of the sums by the Defendant both in the pleadings and by counsel as in this matter, is qualified by the issue of Counter claim and set off in respect of the same sums, then there is no clear, direct, positive and unequivocal admission of liability in line with the position of the Apex Court in OWOSHO v. DADA 1984 (supra).
Urges Court to set aside the perverse holding of the lower Court and to re-evaluate the same and substitute same with a new finding.
They urge this Honourable Court to take Judicial Notice of the Defendant’s Statement of Defence and Counter-claim especially paragraphs 35(a), 35, 37(c), 38, 39 and 40 of the Amended Statement of Defence and paragraphs 43, 44-47 of the Counter-claim of 15th of December, 2009.
That to deny the Defendant the right to complete and full hearing of the issues, and not to consider the Statement of Defence fully, properly and in-depth, is to deny the Defendant his Constitutional Right to access to Court – NIGER CARE v. ADAMA S.W.B. 2008 20 WRN 166.
They submit that the procedure of Interim Judgment is not applicable here.
ISSUES NO. 4 AND 5
In arguing these issues together, the Appellants submit that the suit should have been struck out by the lower Court and a proper winding up action be directed to be filed in its stead.
That claim 8 in the Statement of Claim of the Plaintiff at the lower Court sought an order of the Court to stop all the privileges and rights of the 1st Defendant as a Shareholder/Director in the Company.
They submit that from the issues raised in the pleadings and the claim and Counter-claim before the lower Court, these facts are deducible. That
(a) There is a major crisis within the Company that has rocked the soul and gut of the Company to the very foundation.
(b) There is no trust between the Directors who are also the Shareholders of the Company.
(c) A trio of Directors who have 67.5% of the Company shares have brought this action against the 4th Director who is the Defendant in this suit and that the pleadings show that they intend to do away with or expel the 4th Director as a Shareholder/Director in the Company.
(d) The 1st Defendant claims he is being oppressed by the majority as well as claiming numerous other reliefs. These points to an intention to wind up the relationship as in Section 408(e) of CAMA.
(e) There is deadlock in the Company.
(f) Therefore it is only fair and equitable to wind up the Company under Section 310 of CAMA.
They submit that everything points to the intention to wind up the Company.
They submit that it is the duty of the Judge, notwithstanding the mode or manner or even the elegance with which claims and pleadings are formulated, to determine the real cause of action which can only be distilled from the said pleadings – OGBORU v. IBORI 2006 13 WRN. 40.
Submitting that the Apex Court has decided in a phletora of cases that the true intention and or intent of a party will be known by the determination of its primary cause of action which may be hidden or latent within the formulated claims and pleadings.
They submit that the real cause of action of the Plaintiffs as endorsed in claim No. 8 shows the intention that the 1st Defendant, henceforth ceases forthwith to enjoy all the rights, privileges, ranks and prerequisites of office by virtue of his position as both a Director/Shareholder of the Plaintiff’s Company. They submit that all the other reliefs and claims in the said action are ancillary to this said claim No 8. That where the 1st Defendant also claims protection from oppression, complete financial and management accounts, schedule of debts, contracts and profits and the sharing of the accrued offshore profits, he has also evinced the intention to wind up the Company.
Therefore they submit, the procedure of Interim Judgment has no business being adopted in this nature of cases. That the lower Court should have realized that it was an action to wind up the Company and direct that a proper action be brought for the same.
ISSUE No. 5
The Appellants argue that from the construction of Relief No. 8 on the Writ of Summons, it means that the claim forms part of his final claim but “pending the determination of this suit” which makes the claim an interlocutory claim. It is not an interim proceeding – citing KOTOYE v. CBN 2000 16 WRN 71, where the Supreme Court held inter alia that notwithstanding the fact that an application is named and described as interim, it is the intent of the proceeding when it is filed that determines the nature of such application.
Citing OLUSOOKUN v. POPOOLA 2010 5 WRN 80; and WORLD MISSION AGENCY INCORPORATED v. SHODEINDE 2010 12 WRN 149, they argue that these authorities decide that the true test of whether a Judgment is final or interlocutory is whether the said Judgment finally disposes of the issue before the Court.
They submit that in so far as claim No. 8 says “pending the determination of the suit”, the claim, having been included in the main and final reliefs being claimed from the Court, the same is not an interlocutory claim, but a final claim.
That however if this Honourable Court holds that the claim by virtue of its description is an interlocutory claim, the same not being in the form of an Interlocutory Application or Motion with its attendant affidavit and written address, and in so far as the same is included in the final reliefs, same is incompetent, invalid, null and void for non- compliance with Order 26 Rules 3 and 7(1) of the Federal High Court (Civil Procedure) Rules 2009.
That in the event that this Court holds that claim No 8 is a final claim and not an interlocutory one, same is illegal and discloses no reasonable cause of action, not justiceable and renders the lower Court not to have the requisite jurisdiction to hear and determine that claim.
They submit that the pleadings have not shown that the shares of the 1st Defendant have been forfeited. Therefore the 1st Defendant possesses all the rights that are guaranteed under CAMA and the Memorandum and Articles of Association of the Company which rights he continues to enjoy constitutionally in the same manner as all the other Shareholders in the Company until the time of winding up in which case the same rules shall apply to all the Shareholders including the remaining three Shareholders of the Company.
That Section 114 of CAMA states that the Memorandum and Articles of Association of a Company shall determine the nature of the shares of each Company and that the shares in each class of shares shall rank pari pasu (equally).
They submit that it is impossible and illegal for the Court to direct that a Shareholder should cease to enjoy his rights, privileges, rank which attaches to his ownership of shares as a shareholder in the Plaintiff Company as against the other shareholders, except when the said shares are already forfeited by the holders of such shares.
Thus, they submit, where the claim is not legal or possible in law, then it cannot be enforceable in any manner, and cannot be the foundation or basis of any enforceable legal right. Therefore claim No. 8 of the Plaintiff is incompetent – citing IBRAHIM v. OSIM AND RINCO CONSTRUCTIONS LTD. v. VEEPEE IND. LTD (supra) and ONYINKE III v. G. E. OKEKE 1979 1 ALL NLR PART 1 181.
They submit that it is claim No. 8 in the Plaintiff’s Statement of Claim that should be scrutinized in other to determine whether it discloses reasonable cause of action and/or justiceable.
Urges Court to dismiss Claim No 8, and indeed exercise its powers to do so under Section 15 of the Court of Appeal Act.
RESPONDENT’S ISSUES FOR DETERMINATION
The Respondent had proffered two (2) issues for determination in his Brief of Argument filed on the 15th of February, 2012.
On the 7th of February, 2012, the Appellants had orally withdrawn their challenge to the jurisdiction of this Court, and same was granted by this Court.
The Respondent consequently withdraws his 2nd issue for determination in view of this withdrawal.
The only issue for determination of the Respondent therefore is
“WHETHER THE LOWER COURT (FEDERAL HIGH COURT, LAGOS) WAS RIGHT IN ENTERING JUDGMENT ON ADMISSION IN THIS SUIT”
The Respondent submits that the lower Court was right in entering Judgment on admission in this suit. This is because the lower Courts’ Judgment was premised on the several admissions contained in the Appellants further amended Statement of Defence dated 15th December, 2009. He submits that the 1st Appellant in his further amended Statement of Defence dated 15th December 2009 severally admitted his indebtedness to the Respondent in the sum of $USD14,753.00 and the sum of N24,780,424.00 through the 2nd and 4th Defendants Referring to paragraphs 7, 6(a), 11 and 12.
He submits that it is well know principle of law that a fact admitted by a party in his pleadings is taken as established and need no further proof and the Court may give Judgment based on the admission of a party in a suit-referring to Order 15 Rule 4 of the Federal High Court (Civil Procedure Rules) 2009 – cites MOZIE & ORS v. MBAMALU & ORS (2006) 7 SC (Pt. II) 154 AT PAGE 160.
He submits that the 1st Appellant in the Appellants’ pleadings at the lower Court also admitted paying the Respondent the sum of N7,375,000.00 thus far, through the 2nd and 4th Defendants vide part liquidation of the 1st Appellant’s indebtedness to the Respondent company leaving an outstanding balance of N17,405,424.00 and $USD142,753 respectively.
That on the 29th of June 2010, Appellants’ counsel Mrs. Ngozi Odinakalu orally admitted in open Court, the 1st Appellant’s indebtedness to the Respondent in the outstanding sums of $USD142,753 and N17,405,424.00 through the 2nd and 4th Appellants.
He submits that all these informed the judgment of the lower Court in favour of the Respondent against the 1st, 2nd and 4th Appellants jointly and severally. He refers to A.T.M. v. B.V.T LTD (2007) 1 NWLR. (Pt. 1015) pg. 259 AT 264 where this Court held as follows:
“Once a debt is admitted, it should be given effect to irrespective of other considerations that may crop up”
The Respondent submits that in response to Issues 2 to 6 for determination of the Appellants, these issues are extraneous and does not arise and/or flow from the lower Courts’ Ruling dated 29th June 2010.
He submits that Rules of Procedure and interpretation of pleadings of parties is at the discretion of the Presiding Judge.
He further submits that the Appellants did not plead the principle of set off in their further amended Statement of Defence dated 18th December, 2010.
He submits that the Respondent is not in any way indebted to the Appellants in any sum whatsoever and had joined issues with the Appellants in respect of the alleged debt, as same had been denied, disputed and contested by the Respondent in its pleadings.
He further submits that neither the Respondent and/or its Directors are indebted to the Appellants in any sums whatsoever.
That the Appellants’ Counter claim at the lower Court is a separate and distinct and independent action from the Respondent’s claim against the Appellants at the lower Court – AIR VIA LTD v. ORIENTAL AIRLINES LTD (2004) 9 NWLR (Pt. 878) PG. 298 AT 308; ANIMASHAUN v. OLOJO 1990 NWLR (Pt. 154) 111.
He submits that the lower Courts’ Judgment of 29th June, 2010 is predicated upon the Respondent’s claim against the Appellants in the lower Court and not the Appellants’ Counter Claim at the lower Court.
It is apparent that the sole issue for determination of the Respondent is an adoption of Issue No. 1 of the Appellants’ issues for determination, which in my view can safely be said to be the fulcrum of this appeal. That is “whether the Federal High court was right in entering Judgment on admission in this suit.”
The Appellants in their argument had brought up the issue of set-off, counter-claim, amendment of pleadings, winding up proceedings, and claim No. 8 as disclosing no reasonable cause of action.
These issues can safely be treated if they flow from the Grounds of Appeal. Ipso facto, Grounds of Appeal can only be sustainable if they flow from the Judgment/Ruling appealed.
The Court Order appealed is at pages 609 to 610 of the Record of Appeal. Upon motion on notice filed on the 24th day of May, 2010, with a supporting affidavit, by the Plaintiff/Applicant (in pages 546-547 of the Record of Appeal), the Defendants/Respondent filed a counter affidavit.
The lower Court ordered as follows:
“An order entering Judgment in the sum of USD$142,753.00 and N17,405,424.00 respectively in favour of the plaintiff/Appellant jointly and severally against the 1st, 2nd and 4th Defendants as per their admissions contained in Paragraphs 7, 6(a) 11 and 12 of the Defendants’ further amended statement of defence, dated 15th December 2009”
Decidedly, where a Defendant admits a fact in dispute by his pleadings, that fact is taken as established and forms one of the agreed facts in the case – BRITISH INDIA GENERAL INSURANCE CO. NIG. LTD v. THARWADAS 1978 3 SC, 143.
A cursory look at the 16 paragraphs affidavit in support of the motion on notice,it shows that the grouse of the Applicant is that the 1st Defendant in his further amended Statement of Defence, variously admitted owing the plaintiff Company various sum of money which he claimed was a loan granted him by the Plaintiff, but has since been denied by the Plaintiff. That the 1st Defendant further amended Statement of Defence also admitted owing the Plaintiff Company the sum of N27,780,424.00 through the 2nd and 4th Defendants companies.
In his counter affidavit, the Respondent deposed inter alia that the cause of action of the Plaintiff from the further amended Statement of Claim is fraudulent diversion of money and breach of fiduciary duty – referring to the Writ of Summons and Further Amended Statement of Claim. That the Defendants did not make any admission of any of the claims contained in the plaintiffs further amended Statement of claim but specifically denied all the claims of the Plaintiff in the further amended Statement of Defence filed by the Defendants. Pages 577 – 578 of the Record of Appeal.
Moreso that the Defendants specifically joined issues with the Plaintiff on the Plaintiffs’ further amended Statement of Claim.
He had in paragraph 13 of the Counter Affidavit deposed to the fact that this is a matter that ought to go to full trial, so that the rights of the parties will be fully considered and resolved by the Honourable court. Pages 577 – 578 of the Record of Appeal.
The plaintiff/Applicant in the lower Court had brought the application pursuant to the Provisions of Order 26 Rule 2 (1); Order 15 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 and under the Inherent Jurisdiction of the Court.
Order 26 Rule 2 (1) of the Federal High Court (Civil Procedure) Rules 2009 has this to say:
Rule 2(7) “Where by these Rules an application is authorized to be made to the Court or to a Judge in Chambers, such application may be made by motion.”
Order 26 Rule (1) has this to say:
“Subject to these Rules, interlocutory applications may be made at any stage of an action.”
This is what enabled the Appellant to bring the application as he did.
Order 15 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 states:
“The Judge may, on application at any stage of the proceedings where admissions of facts have been made either on the pleadings or otherwise, make such orders or give such Judgment as upon such admissions a party may be entitled to without waiting for the determination of any other question between the parties.”
The Word “May” makes the exercise of the Courts’ discretion discretionary.
In my view, where a Judge, in the due exercise of its discretion, finds on the pleadings that facts have been admitted, he can enter Judgment with regard to these admitted facts.
A cursory look at the Order of the lower Court, the subject matter of the appeal, shows that the learned trial Judge entered Judgment against the 1st, 2nd and 4th Defendants as per their admissions contained in paragraphs 6(a), 7, 11 and 12 of the Defendants further amended Statement of Defence dated 15th December 2009.
I shall reproduce these paragraphs:-
Paragraph 6(a):
“In further answer to paragraphs 7 and 8 of the Plaintiff’s Further Amended Statement of Claim, the 1st Defendant avers that the borrowing of the $142,753 from the Plaintiff was not peculiar to him as every Director and Shareholder of the Plaintiff had at one time or the other borrowed money and took IOU’s from the Plaintiff without following any guideline or policy either from the board or management of the Plaintiff. The 1st Defendant avers that none of these loans (from the Plaintiff) taken by all the other Directors and Shareholders received any prior approval from the Plaintiffs board or management or was in line with any policy guideline or rules of the Company as there was none in place. The Defendants plead the e-mail exchange between Serge Dassas, a Director of the plaintiff and Tajudeen Kareem an account with plaintiff of 3rd January, 2007 regarding the withdrawal of money from the Dollar account of the Plaintiff by two of the Directors of the Plaintiff annexed as Annexture A”.
Paragraph 7:
“In further response to paragraphs 7 and 8 of the Plaintiff’s Further Amended Statement of Claim the Defendants shall at the trial of this case contend that there was nothing furtive, illegal or unlawful in his withdrawal of the sum of $142,753 from the accounts of the Plaintiff and that the act itself was unilateral. On the contrary, the withdrawal of the said sum was made with the prior approval of the current Managing Director of the Plaintiff, Uzoma Ekpecham who is one of the four Shareholders of the Plaintiff and the subsequent approval of another Director and Shareholder of the Plaintiff, one Serge Dassas. The two Directors/Shareholders were in the know of and also consented to the use of the said sum by the 1st Defendant”.
Paragraph 11:
“The 1st Defendant denies paragraph 10 of the plaintiff’s Further Amended Statement of Claim and in answer the 1st Defendant avers that the purpose for which the $142,759 was withdrawn has been regularly and clearly stated in all the accounting records and documents of the company since the time the money was loaned by the 1st Defendant. The 1st Defendant pleads and will rely on the all the detailed management accounts of the Plaintiff and relevant documentary evidence in support of their averment at the trial hereof”
Paragraph 12:
“Paragraph 11 of the Plaintiff’s Further Amended Statement of Claim is denied. The alleged or any surreptitious, fraudulent diversion or siphoning from the Plaintiff’s account of the sum of N24,780,424 or at all is denied. The Defendants admits that the 2nd and 4th Defendants owe the Plaintiff but categorically deny that the transaction leading to the indebtedness were fraudulent or done without the Plaintiff Company’s mandate or authority.
The Defendants specifically aver that the transactions were known and approved by all the Shareholders and Directors of the Plaintiff and in any case, the existence of the debt and how it came to be had always been stated in the accounts statement circulated to all Directors and Shareholders of the Plaintiff, The 1st Defendant avers that the Dollar aspect of the outstanding sum was actually transferred to the 2nd Defendant by Serge Dassas, a Director/Shareholder of the Plaintiff who was and has been solely in charge of the Plaintiffs offshore account from which the sums were transferred. The Defendants shall rely on all relevant documents material to this case including emails, detailed account, intercompany accounts, bank statements, bank deposit slips e.t.c. concerning various transactions involving the Plaintiff and 2nd, 3rd and 4th Defendants in proving their case at the trial thereof, especially the 1st Defendant’s e-mail of 8th July, 2004 with the attached Plaintiffs Dollars Current Account State with Begoliase Bank for 2003/2004 attached as annexure K and K1, the 1st Defendant also pleads the Plaintiffs working capital analysis mode on the 70th of April, 2004 circulated to all Directors and Shareholders attached as annexure L.”
(Pages 416 – 418 of the Record of Appeal).
The Appellant had filed a Supplementary Record of Appeal pursuant to an order of this Court dated 5th June, 2013, on the 7th of June 2013.
Apt is the proceedings of the 29th of June 2010 before Honourable Justice Okechukwu J. Okeke. I shall reproduce the short proceedings of that day
“…. Parties absent
E. Okwuosa Esq., (S. Okocha Esq. with him) for the Plaintiff.
Mrs. Ngozi Odikanu for the Defendants.
OKWUOSA ESQ: This is a motion on notice dated 24th May, 2010 praying the Court to enter Judgment in the sum of USD$142,753 and N17,405,242.00 respectively in favour of the Plaintiff against the 1st, 2nd and 4th Defendant jointly and severally as per their admission contained in paragraphs 7, 6(a), 11 and 12 of the Defendants Further Amended Statement of Defence dated 15th December,2009.
MRS. ODIKANU: The said motion on Notice was served on us and we have filed a counter affidavit sworn to by Mrs. Ngozi Odikonu. The position of the Defendants is that the sum of money were not fraudulently taken, but were in fact taken. If the word fraudulently is removed, the Defendants admit liability of the sum of USD$142,753 and N17,405,424.00.
COURT: I have considered the Plaintiffs Motion on Notice and the Defendants counter-affidavit. I have also taken into consideration the oral admission of the Defendants through their counsel that the 1st, 2nd and 4th Defendants took the Plaintiff’s said sum of money, but not fraudulently, that amount to an admission of liability in a civil suit.
The Court has no option than to enter Judgment in the admitted sums in favour of the Plaintiff. Judgment is hereby entered in the suit in the admitted sums of USD$142,753 and N17,405,424.00 respectively in favour of the Plaintiff against the 1st, 2nd and 4th Defendants jointly and severally that the suit with the consent of both counsel is adjourned to 12th October, 2010 for continuation.
It is apparent that what the learned trial Judge determined was in regard to the ADMITTED SUMS ONLY.
The question then is whether, the averments in paragraphs 5(a), 7, 11 and 12 of the Further Amended Statement of Defence coupled with Mrs. Odikanu’s statement, amount to a clear, explicit, unequivocal and unambiguous full admission of the whole sum of $USD142,753 and the sum of N24,780,424.00 through the 2nd and 4th Defendants.
It is my view that the Appellants should have focused on this particular issue which flowed from the Judgment of the lower Court, instead of introducing extraneous matters like set off and counter claim to the matter, which had nothing to do with these amounts. Moreso, as the payments of those amounts do not finally dispose of the matter.
There is the need to take a look at paragraphs 7 and 8 of the Further Amended Statement of Claim (pages 143 – 147 of the Record of Appeal).
Paragraph 7 “The Plaintiff avers that contrary to paragraphs 6B above, the 1st Defendant acted unilaterally and in bad faith between 2003 to 2005 when he misappropriated the sum of $142,753 and N24,780,424 respectively, from the Plaintiff Company’s account without her consent, mandate and authority”
Paragraph 8 “The Plaintiff avers that between 2003 to 2006, the 1st Defendant illegally, unlawfully and furtively diverted and siphoned from the Plaintiffs Company account the sum $142,753 to his personal use without the Plaintiff’s Company knowledge, consent and authority. The Plaintiff pleads and will at the trial rely on the statement of account and audited account of the Plaintiff Company”
In Paragraph 7 of the further amended Statement of Defence, the Defendants while admitting the averment in paragraphs 7 and 8 however said the sum was withdrawn with the prior approval of the current Managing Director of the Plaintiff, Uzoma Ekpecham who is one of the four shareholders of the Plaintiff and the subsequent approval of another Director and shareholder of the Plaintiff, one Serge Dassas. That these two Directors/Shareholders consented to the use of the said sum by the 1st Defendant.
Paragraph 11 (already referred to in this Judgment) of the further amended Statement of Defence and Counter Claim is a reply to paragraph 10 of the further amended Statement of Claim which says:
“The plaintiff avers that up till date, the 1st Defendant has failed, neglected and or vehemently refused to justify the withdrawals of $142,753 to the Plaintiff Company”
Paragraph 12 of the further amended Statement of Defence (earlier referred to in this Judgment) is a reply to paragraph 11 of the further amended Statement of Claim which has this to say:
“The Plaintiff avers that between 2003 to 2006, the Defendants surreptitiously and fraudulently diverted and siphoned from the Plaintiffs Company account the sum of N24,780,424 without the Plaintiff Company’s consent, mandate and authority.
The Plaintiff pleads and will at the trial rely on the Statement of Account and audited account of the Company and minutes of Plaintiff Directors meeting of 28/09/07”
It is trite that a Ground of Appeal against a decision must relate to, and challenge the validity of the ratio of the decision. Therefore no valid issue can be formulated from an invalid ground of appeal which does not relate to the Judgment being challenged.
The issues for determination proffered by the Appellants are six based on six Grounds of Appeal which, and apart from Ground No. 1 and Issue No. 1 of the Notice of appeal, every other Ground of Appeal do relate to the Judgment being challenged.
At the expense of repetition I had observed that the fulcrum of this appeal is whether the lower Court had the right to grant the Interim Judgment as he did, in the face of the pleadings of the Defendant in the further amended Statement of Defence.
The plea of set-off pled in their further amended Statement of Defence dated 18th December 2010 was not subject of the Judgment delivered at the lower Court.
Counter claim, decidedly is a separate and independent action from the action in which it is raised-ANIMASHAUN v. OLOJO 1990 6 NWLR (Pt. 154) 111.
The lower Court granted the Respondent what he requested, as the Court is not a Father Christmas. It does not award what a party has not claimed. NIDOCO LTD v. GBAJABIAMILA 2013 14 NWLR. (Pt. 1374) 350 AT 396-397.
The Grounds of Appeal must be predicated on the Judgment/Ruling of the lower Court.
The learned trial Judge had observed that the admission of the Defendants that the 1st, 2nd and 4th Defendants took the Plaintiff’s money was enough admission as to their liability.
For a proper comprehension of this issue, it is necessary to bring to the fore, the salient facts which necessitated the filing of the action, and this can be gleaned from the Writ of Summons (the Reliefs sought in Reliefs 1, 2, 3, 4 and 5 and the same reliefs in Paragraph 37 (1-5) of the further amended Statement of Claim – pages 2 and 146 of the Record of Appeal.
The question is whether the facts deposed to in paragraphs 6(a), 7, 11 and 12 of the Further Amended Statement of Defence, constitute “admission” in law.
Is it one that needed to be deemed an admission by the Court, in the exercise of her judicial discretion, or one of which she could have refused the application?
In as much as particulars would be required in occasions such as negligence, contributory negligence, fraud, particulars of an admission are not permissible, but if what is called an admission in the pleading is in fact a separate independent allegation, particulars of such allegation will be ordered FOX v. H. WOOD (HARROW) LTD (1963) 2 Q.B. 601.
Order 18 Rule 13 (2) of the Supreme Court Practice (White Book) stipulates that if sufficient admissions is made by a Defendant, the Plaintiff may apply for Judgment and notwithstanding that he has joined issue on the defence and set the action down for trial – RUTTER v. TREGENT 1879 12 CHD 758; SMITH v. DAVIES 1886 28 CHD. 650.
It is trite that any allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue operates as a denial of it.
A traverse may be made either by a denial or by a Statement of non-admission and either expressly or by necessary implication.
Every allegation of fact made in a Statement of Claim which the party on whom it is served does not intend to admit, must be specifically traversed by him in his defence, and a general denial of such allegation, or a general statement of non admission of them is not a sufficient traverse of them.
Every allegation of fact must be specifically denied or specifically not admitted. Thus a general denial or a general statement of non-admission of allegation of facts is not a sufficient traverse thereon. A traverse must not be evasive. Half admission or half-denial is evasive.
In PINSON v. LLOYD AND NAT. PROV. BANK (1941) 2 K.B. 72, in an action for buying and selling securities without the Plaintiff’s authority, the Defendants denied that they had done so without the authority of the Plaintiff. Particulars were ordered of any authority that the Defendants were alleged to have had from the Plaintiff to carry out any of these transactions.
It is pertinent to look at the facts in paragraphs 6(a), 7, 11, and 12 of the further amended Statement of Defence and Counter-claim in reply to paragraphs 7, 8, 9, 10 and 11 of the further amended Statement of Claim, to see if the aforementioned paragraphs of the further amended Statement of Defence and Counter-claim constitute ADMISSION i.e. direct admission.
A cursory look at the facts deposed to in paragraphs 5(a), 7, 11 and 12 of the Further Amended Statement of Defence show that the Defendant in essence admitted taking the sums of money alleged.
The facts pleaded in paragraphs 35(a), 36, 37(c), 38, 39 and 40 of the Amended Statement of Defence are not to be entertained in an application such as this. Thus, to say that he has not been paid salary and allowances is no excuse by the 1st Defendant.
The learned trial Judge, faced with an interlocutory application to giving Judgment in respect of the sum of money complained about had a discretion in the matter to grant the amount requested, and gave Judgment in respect of the sum.
I am of the view that the learned trial Judge properly entered an Interim Judgment against the 1st Defendant.
A Counter-claim being a separate claim altogether had nothing to do with the motion on notice filed.
Issue No. 1 is therefore resolved in favour of the Respondent and against the Appellants. All the other issues proffered by the Appellants, having flowed from the incompetent Grounds of Appeal are hereby discountenanced. This is because the Grounds of Appeal do not flow from the decision of the Court. This makes the Appeal incompetent.
The Appeal is dismissed and the Judgment of the learned trial Judge delivered on the 29th of June 2010 is hereby affirmed. The matter shall be remitted back to the lower Court for the determination of the other claims in this suit.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: By the further amended statement of defence dated 15-12-09, the appellants admitted their indebtedness to the respondent in the sum of USD$142,753.00 and N24,780,424.00 the latter of which was later partially liquidated leaving outstanding balance of N17,405,424.00 indebtedness.
It was on the state of affairs above that the respondent applied for judgment on the admitted sum of money. In the course of the proceedings at the court below on 29-10-2010, Mrs. Odinaku, for the defendants at the court below, (now the appellants), responded inter alia on the issue of liability of the defendants, now appellants, for the said sum of money thus –
“…The position of the Defendants is that the sum of money were not fraudulently taken but were in fact taken. If the word fraudulently is removed, the Defendants admit liability of the sum of USD$142,753.00 and N17,405,424.00.”
The court below was therefore right to enter judgment on the admitted sum of the indebtedness only. See Order 15 rule 4 of the Federal High Court (Civil Procedure) Rules 2009 to wit –
“4. The Judge may, on application at any stage of the proceedings where admissions of facts have been made either on the pleadings or otherwise, make such orders or give such judgment as upon such admissions a party may be entitled to, without waiting for the determination of any other question between the parties.”
See also Mosheshe General Merchant Ltd. v. Nigeria Steel Productions Ltd. (1987) A.N.L.R. 309 at 319 thus –
“Where, as in the instant appeal, the claim is for a definite sum alleged owed by the defendant, and the defendant admits owing part of this sum, no difficulty will, or should, arise in the court entering judgment for the sum admitted leaving the balance to be contested. In such a case, the judgment could be entered upon an oral application to the court provided that the court, in its own discretion, may, having regard to the circumstances of the case, grant the application and enter judgment there and then, or order the applicant to formally move the Court. Yet, the admission in such a case is a solemn declaration of indebtedness of the defendant to the plaintiff, in the sum admitted, for the purpose of the remainder of the trial of that action. As has been said in Fox v. Luke (1925) 43 R.P.C. 37-a case of passing off – there is no hard and fast rule on the procedure to be followed.”
For the reasons stated above and for the comprehensive reasons contained in the painstaking judgment of my learned brother, Rita Nosakhare Pemu, J.C.A., with which I agree, I too find no merit in the appeal which I hereby dismiss and subscribe to the consequential orders contained in the lead judgment.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, RITA NOSAKHARE PEMU JCA. I agree that the appeal lack merit and should be dismissed. Order 15 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009 empowers a Judge on application at any stage of the proceedings where admissions of facts have been made to make such orders or give such judgment as a party may be entitled to on the basis of such admissions without waiting for the determination of other questions arising between the parties. This is exactly what happened here. In their statement of defence, the Appellants admitted taking out of the Company accounts the sum of USD$142,753 and N17,405,242.00, not fraudulently but with actual/tacit approval of some of the Directors/shareholders. The issue really irrespective of the words used in the pleadings is whether the said sums are due to the Respondent from the Appellants. At the hearing of the application for judgment in the amounts admitted, learned counsel for the Appellants said:
“The position of the Defendants is that the sums of money were not fraudulently taken, but were in fact taken. If the word fraudulently is removed, the Defendants admit liability for the sum of USD$142,753 and N17,405,242.00”
The learned trial Judge rightly construed the above statement as admission of liability and had no difficulty in entering judgment for the Respondent in the amounts admitted. The appeal surely lacks merit. I also dismiss it and abide by the consequential orders in the lead judgment.
Appearances
Babatunde Osikoya, Esq.For Appellant
AND
Emeka Okwuosa, Esq.
Ifeanyi Eze Esq.
Chima NnochiriFor Respondent
