SEA PETROLEUM & GAS COMPANY LIMITED v. HENCHY NIGERIA LIMITED (2014)

SEA PETROLEUM & GAS COMPANY LIMITED v. HENCHY NIGERIA LIMITED

(2014)LCN/7484(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of October, 2014

CA/L/725/12

RATIO

EVIDENCE: ADMISSION; WHAT IS ADMISSION

This appeal revolves around admission of liability by the Appellant as Defendant at the Lower Court. Admission is a concession or voluntary acknowledgment made by a party of the existence of certain facts. Admission is also any statement or assertion made by a party to a case and offered against that party, an acknowledgment that facts are true: See: BLACK’S LAW DICTIONARY EIGTH EDITION PAGE 50. Having reproduced the above materials the next stage in this Judgment is to determine if the materials taken as they are constitute sufficient admission of liability by the Appellant. It appears standard was set on what to look out for in an admission. TOBI JCA (as he then was) in COKER v. OLUKOGA (1994) 2 NWLR (PT.329) 648, in setting the standard said as follows:
“An admission in law must clearly, precisely and unequivocally express the admitting mind of the person, an admission which bubbles on mere rhetoric’s, lacking exactness and firmness of purpose does not qualify as an admission in law…”

A fact admitted by a defendant in his pleadings should ordinarily be taken as established and should form the basis of what the parties agreed. See, OLUBODE V OYESINA (1977) 5 SC, such admission in pleadings puts an end to proof. Where there is admission parties no more join issues on the fact admitted. See: VERITAS INSURANCE CO LTD V. CITI TRUSTS INVESTMENTS LTD (1993) 3 NWLR (Pt.281) per. TIJJANI ABUBAKAR, J.C.A.

EVIDENCE: ADMISSION; HOW AN ADMISSION IN PLEADINGS BECOMES EFFECTIVE

EVIDENCE: ADMISSION; THE KIND OF ADMISSION THAT CAN BE BASIS FOR JUDGMENT, A CONDITION AN ADMISSION AGAINST INTEREST MUST SATISFY AND THE DUTY OF THE TRIAL COURT TO ASSESS AND GIVE WEIGHT TO THE ALLEGED ADMISSION

I only wish to reiterate on the kind of admission that can be basis for judgment. It is not every admission that the law allows to found a judgment. For an admission to be entitled to judgment, the court in the case of ANANSON FARMS V NAL MERCHANT BANK (1994) 3 NWLR (Pt.331) 241 at 257 held as follows:
“For an admission to qualify as a basis of judgment, it must directly and unequivocally touch upon or relate to the relief sought in the matter.”

Also in the case of ODUTOLA v. PAPERSACK (NIG) LTD (2006) NWLR (Pt. 1012) 470 the Supreme Court gave a condition an admission against interest must satisfy before it can be in favour of the adverse party. It held thus:
“An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intent and purposes as superfluous. And the court of law is entitled not to assign any probative value to it”

It is trite therefore that the value of admission depends on the circumstances in which it was made. It is usually for the trial judge to assess and give weight to the alleged admission. A duty the trial judge failed to do in this case.

An admission must be categorical, unconditional, unqualified and unequivocal. Per. YARGATA BYENCHIT NIMPAR, J.C.A.

JUSTICES

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

SEA PETROLEUM & GAS COMPANY LIMITED Appellant(s)

AND

HENCHY NIGERIA LIMITED Respondent(s)

TIJJANI ABUBAKAR, J.C.A.(Delivering the Leading Judgment): This Appeal is against the ruling delivered by Onyeabo J, of the High Court of Lagos State on 18th June 2012 entering Judgment on admission against the Defendant. The Claimant before the Lower Court, now Respondent in this appeal, commenced an action against the Appellant as Defendant before the High Court of Lagos State claiming as follows:
a) The sum of N5,120,950.00 (Five Million One Hundred and Twenty Thousand, Nine Hundred and Fifty Naira only) being outstanding debts owed the claimant by the Defendant for the clearance of several consignments on behalf of the defendant.
b) Interest at the rate of 20% per annum on the said sum of N5,120,950.00 (Five Million, One Hundred and Twenty Thousand, Nine Hundred and Fifty Only) from April 2008 until the date of Judgment and thereafter at the rate of 10% per annum until final liquidation of the debt
c) The sum of N200,000.00 (Two Hundred Thousand Naira Only) being the cost of prosecuting this suit in Court.

Parties exchanged pleadings, and the claimant/Respondent brought application dated 1st December 2011 pursuant to Order 19 Rule 4 of the High Court of Lagos (Civil Procedure) Rules 2004 praying for:
1) An order entering Judgment in favor of the Claimant in the Sum of Two Million two hundred and seventy thousand naira only (N2,270,000.00), the said sum having been admitted by the Defendant in their letter dated 15th of April 2008 and in paragraph 6-8 of the statement of defense and paragraph 4-7 of the deposition of the defendants witness Mr. Nnamdi Nwobu.
2) Interest on the said sum at the rate of 20% per annum from April 2008 until date of Judgment.
3) And for such further or other orders as this Honorable Court may deem fit to make in the circumstance.

The learned trial Judge after hearing both parties delivered a Ruling on 18th June 2012 entering Judgment on admission against the Defendant in favor the Claimant; this Ruling is now the subject of this appeal. The Defendant became aggrieved and therefore filed Notice of Appeal on the 1st day of August 2012. Appellant’s grounds of Appeal are reproduced less their particulars as follows:
1) The Learned trial Judge erred in law when she held that the Appellant has admitted owing the sum of N2,270,000.00 to the Respondent on the pleading despite the fact that in the same pleading the appellant has raised conditions for the payment of the money and has pleaded that the entire transaction is illegal and unenforceable.
2) The Learned trial Judge erred in Law when she held at an interlocutory stage that the appellant is liable to pay the said sum of N2,270,000.00 thereby resolving without hearing any evidence that the entire transaction is not caught by the doctrine of “ex turpi causa non oritur actio”.
3) The entire ruling was against the weight of evidence.

Parties settled their briefs of argument Learned Counsel A. O. Agbola settled Appellant’s brief, it was filed on the 1st day of November 2012, while Learned counsel Andy Isioma Agbolu filed Respondent’s brief on 26th November 2012. Appellant did not file Reply brief.

Appellant nominated and argued through learned counsel two issues for determination, while the Respondent crafted one issue for determination. Appellant’s issues for determination are reproduced as follows:
1. Whether the Appellant has made an unequivocal admission of owing the sum of N2,270,000.00 to the Respondent as to justify the summary Judgment of the Court below to enter Judgment for the amount. (Grounds 1 & 3)
2. Is the Contract between the Parties tainted by illegality as to render it unenforceable by any Court in Nigeria (Ground 2)?

On the part of the Respondent, the following single issue was nominated and argued by Learned Counsel, the issue reads as follows:
Whether the Learned trial Judge was right in holding that the Defendant/Appellant had made very clear Admissions in Exhibit A, which may be relied upon regardless of other considerations that may apply.

I will consider Appellant’s submissions first before taking Respondent’s argument on the sole issue. Making his submission on Issue number one, Learned Counsel Agbola said Respondent’s prayer for Judgment on admission was premised on the letter dated 15th April 2008 and paragraphs 6-8 of Defendant’s/Appellant’s Statement of Defense, and paragraphs 4 and 7 of depositions of the Defendant’s witness Mr. Nnamdi Nwobu found at pages 31 – 32 and 48-50 of the Record of Appeal.

Learned counsel for the Appellant said the learned trial Judge accepted the contention of the Respondent that the letter and the paragraphs cited constitute sufficient admission by the Appellant. Mr. Agbola said the learned trial Judge misdirected himself in law by awarding Judgment on admission when the alleged admission by the Defendant was not unequivocal. Appellant said the conclusion reached by the Lower Court did not take into account the full effect of the pleadings of the Appellant, and that the court failed to consider the aspect of the Appellant’s pleadings denying any liability to the Respondent. That in determining application for Judgment, the Court must make a determination that what is regarded as admission by the Defendant is actually an admission, that an admission must be categorical, unconditional, and not qualified. Learned Counsel for the Appellant relied on KWARA HOTEL LIMITED v. ISHOLA (2002) 9 NWLR (PT.773) 604, 621-622.

Appellant referred to the letter dated 15th April 2008, relied on by the learned trial Judge and said payment of the said sum was predicated upon the condition that the Respondent would undertake to deliver the Containers within a fortnight, Appellant said this condition was not met by the Respondent as shown in paragraph 7 of the statement of Defense. Appellant relied on paragraph 6 of the statement of Defense to submit that, the said letter was written by it, but denied owing the Respondent the said sum of money, as the Appellant had already paid the Respondent all the money due to it. Appellant also said the Lower Court was in grave error when the Learned trial Judge construed Respondent’s witness statement on oath of Mr. Nnamdi Nwobu as an admission, and that an admission must express the admitting mind of the person. He relied on COKER V. OLUKOGA (1994) 2 NWLR (PT.329) 648 AT 662.

Appellant submitted that, a careful evaluation of the pleadings and other documents before the Lower Court would show that there was no unequivocal denial of indebtedness by the Appellant to the Respondent. The Appellant also contended that, the Judgment on admission entered by the Lower Court was perverse and unsupported, that the Lower Court ought to have followed the decision in YABOLA LTD & ANOR v. TRADE BANK PLC (1998) 6 NWLR (Pt.555) 670 at 682, by allowing the Appellant to defend the suit before adjudging it liable. Appellant therefore urged this Court to hold that the decision reached by the Lower Court was not based on unequivocal admission of liability, and urged that this issue be resolved in favor of the Appellant against the Respondent.

On the issue of illegality of the contract, Appellant made reference to the Statement of Defense at page 45 of the record of Appeal, especially paragraph 16 and said Appellant clearly raised the issue of illegality of the contract, that some of the invoices raised for settlement were for clearing of contraband goods. Appellant made reference to various paragraphs raising the issue of illegality, especially paragraphs 15, 17, 18 and 19 of Appellant’s statement on oath found at pages 49-50 of the Record of Appeal. Appellant contended that the contract sought to be enforced is against public policy and amounts to a contract to commit criminal acts and that Respondent must not be allowed to benefit from its own crime, relying on the doctrine ex turpi causa non oritur actio, and the decision in WILLIS V. BALDWIN (1280) 2 DOUG. K.B. 450. & ALEXANDER V. RAYSON, (1936) 1 K.B. 169.

Appellant submitted that once an issue of illegality is raised, the Court must not close its eyes to the illegality, that even where the issue is not raised by the parties, the Court is entitled to raise it on its own motion, Appellant relied on OPARA v. OMOLU (2000) 12 WRN 42 at 49-50 to urge this Court to hold that the contract sought to be enforced is one tainted with illegality and cannot therefore be enforced, that this Court should invoke the provisions of Section 15 of the Court of Appeal Act, to strike out the suit at the Court below.

The Respondent as I stated earlier submitted and argued one issue for determination, which I reproduced earlier in this Judgment. Learned Counsel for the Respondent said the Lower Court found that the Appellant on the strength of Exhibit A made a finding that the Appellant had in fact made a clear admission of indebtedness to the Respondent. Respondent relied on the decision in CAPPA V. AKINTILO. 14 NSCQR 469 at 483 to submit that there was clear admission of indebtedness by the Appellant, the Lower Court was therefore right in concluding that the admission by the Appellant was clear and unequivocal.

It was also Respondent’s submission that by the provisions of Order 19 Rule 4 of the Lagos State High Court Rules, the Judge may on application at a pre-trial conference stage or any other stage of the proceedings where admissions of facts have been made either on the pleadings or otherwise, make such orders or give such Judgment upon such admissions a party may be entitled to without waiting for the determination of any other question between the parties. Learned Counsel for the Respondent said a close reading of Exhibit A would show that Appellant clearly admitted indebtedness, that reading the concluding part of Exhibit A; it would appear clearly that the Appellants were putting the Respondent on Notice that it would claim refund in the event of breach of contract. This approach counsel said was wrong as the Appellant would in law be required to either make a counter claim or set-off to recover refund under Order 17 Rule 3 of the Lagos State High Court Civil Procedure Rules 2004, Counsel said the Appellant rather than follow the rules of Court resorted to self help which the law clearly frowns against, he relied on ELOICHIN NIGERIA LTD V. MBADIWE (1986), 1 ANLR. 1. at 21. MILITARY GOVERNOR OF LAGOS STATE. V. OJUKWU (1986) 1 NSCC 304. A.P. LTD. V. J. K. OWODUNNI (1991) 6 LRCC 1944.

On the issue of illegality of contract, the Respondent submitted that the Lower Court was right in refraining from making any pronouncement because issue of legality and enforceability of the contract is a matter to be resolved at the trial of the suit, where reference was made to two sets of containers, cleared and delivered sets of containers on which admission of indebtedness was made by the Appellant, that the issue to resolve at the trial would be which set of containers the Appellant referred to as illegal, this issue is only resolved at the trial not at the stage of admission contemplated by the rules of Court. That the Lower Court made no findings on the legality and enforceability of contract in the Ruling which is the subject matter of this appeal, that the law is settled that for a person to found his right of appeal on a matter, the issue must arise in the course of the proceedings before the court. Respondent’s counsel relied on IKWEKI vs. EBELE (2005) 15 WRN 42 at 68, EGBE vs. ALHAJI (1990) 1 NWLR Part (128) 540 to 590, and SENATOR ADESANYA vs. PRESIDENT OF NIGERIA (1981) 5 SC 112. Learned counsel for the Respondent said since both issue number two formulated by the Appellant and the ground of appeal number two do not arise from the decision of the Lower Court, the issue and the ground must be struck out by this Court. He so urged this Court, and finally urged that the appeal be dismissed.

The Lower Court relied on the letter dated 15th April 2009 and the statement of defense filed by the Defendant/Appellant especially paragraphs 6-8 and the witness deposition of Nnamdi Nwodu defendants/Appellant’s witness especially paragraphs 4 to 7 to hold that the defendant admitted liability. Appellant said these materials do not constitute unequivocal admission of liability, the Lower Court was therefore wrong in entering Judgment against the Appellant. Appellant also raised the issue of illegality of the contract.

In order to resolve the first issue, it is necessary to subject the materials relied on by the Respondent to become entitled to judgment on admission to scrutiny; similar materials also formed the basis of the decision arrived at by the Lower Court. Let me start with the contents of Exhibit A, the letter relied on by the Respondent, it emanated from the Appellant and it reads as follows;
“April 15, 2008,
The Managing Director
Henchy Nigeria Ltd,
142 Bode Thomas Streets
Surulere, Lagos.
Attn: Mr. Henry Chiedu Mordi
Dear Sir
RE: Clearance Quote
Further to your offer to clear our gods as listed below.
1. 1 x 40″ container with #0609389stc willow, Bamboo and straw picnic basket
2. 7 x 20″ containers with NoTGHU 291707-0, stc stadium chairs.
3. 1 x 40″ container with container No. GCMU 984628-1 stc Chivari Golden chairs.
4. 1 x 20” container with container No. CMAU 100861-2 stc.
We wish to confirm acceptance of your quoted amount of N8.5 Million Naira to include all Shipping/Terminal charges/ rents and demurrage.
However our upfront will be N3 million Naira only. Regarding your outstanding balance, there appears to have been duplication of quoted line items on your part, as only items numbers 6, 7 and 14 on our attached reconciled job list have been received by us. This implies that the rest of the items are still in the containers listed above which are now to be cleared by you vide this approval for our management.
The total outstanding due to your company as explained above is therefore N2,270,000.00 as you have erroneously quoted.
Kindly respond in acceptance/indemnity and this an irrevocable letter of commitment to undertake that these containers will all be delivered to us not later than a fortnight from today by your company or full refund of all monies paid to you so far.
Thank you,
For: SEA PETROLEUM & GAS CO LTD.
Princess Stella Ada-Odua Ogiewomnyi-OON
President/CEO

Respondent as Plaintiff at the Lower Court also relied on the statement of defense filed by the Appellant, in particular paragraphs 6 7 and 8 found at page 44-45 of the record of appeal and said the paragraphs constitute admission, let me reproduce the said paragraphs as follows:
“6. The Defendant admits paragraph 8 of the statement of claim only to the extent that it wrote the letter dated 15th April 2008 but denies owing the claimant the sum of N2,270,000.00 or at all.
7. The Defendant avers that all it has a rolling clearing account with the Claimant and following the failure of the Claimant to safely deliver all the goods it was contracted to clear, the Defendant withheld payments to the claimant.
8. The Defendant avers that all the monies due to the claimant from it have been paid.”

The Respondent relied on the deposition of Mr. Nnamdi Nwobi. This witness offered statement on oath, as General Manager in charge of Audit in the Defendant Company. Respondent particularly pointed out paragraphs 4-7 of the statement on oath and said these specific paragraphs amount to admission by the Defendant/Appellant. Here again I think it is proper to import the relevant paragraphs into this Judgment, they are therefore reproduced as follows:
“4 I audited the goods received from the Claimant and I confirm as stated in our letter dated 15th April 2008 that we have only received from the Claimant the goods listed as 6, 7 and 14 in the Ledger Card attached to the said letter.
5. All monies owed to the Claimant have been duly paid and it is not true that we are owing the Claimant the sum of N5,120,950.00 or indeed any other sum or at all.
6. Prior to the institution of this suit, neither the Defendant nor myself as the officer in charge of verifying all payment due to contractors have seen or received the original or indeed other copy of the invoices mentioned in paragraph 6 of the Statement of Claim and listed as No.1 in the Claimant’s list of Exhibits.
7. I confirm that we wrote the letter dated 15th April 2008 and confirm that the sum of N2,270,000.00 mentioned in the said letter has since been paid by the Defendant to the Claimant.”

On the 18th day of June 2012, the learned trial Judge delivered a ruling against the Defendant/Appellant, entering Judgment on admission against the Defendant/Appellant in favor of the Plaintiff/Respondent, the said ruling is found at page 147- 147A of the record of appeal, and part of the ruling reads as follows:
“Exhibit A letter dated 15th April, 2008 is attached to the affidavit in support and states as referred
“The total outstanding due to your company as explained above is therefore N2,270,000.00 as you have erroneously quoted.”
Learned Counsel has submitted that the defence must be taken as a whole so as to discover an unequivocal admission.
Paragraph 6 and 7 of the Statement of Defense are as follows:
“6. The Defendant admits paragraph 8 of the statement of claim only to the extent that it wrote the letter dated 15th April, 2008 but denies owing the Claimant the sum of N2,270,000.00 or at all.
7. The Defendant avers that it has a rolling clearing Account with the Claimant and following the failure of the Claimant to safely deliver all the goods it was contracted to clear, the defendant withheld payments to the Claimant.
8. The Defendant avers that all monies due to the Claimant from it have been paid.”
It is the correct position that an admission must be clear and unequivocal. Therefore the statement relied on must be considered along with the surrounding facts and circumstances and not in isolation- EIGBE VS NUT (2006) NWLR (Pt.1005) 24 at 258. UBA PLC VS DAWODU (2003) 4 NWLR (Pt.810) 287.
In the instant case, Exhibit A had first stated as follows:
“Regarding your outstanding balance, there appears to have been duplication of quoted line items on your part as only items numbers 6, 7, and 14 on our attached reconciled job list have been received by us. This implies that the rest of the items are still in the containers listed above which are now to be cleared by you vide this approval for our management. The total outstanding due to your company as explained above is therefore N2,270,000.00…”
By this paragraph, the writer was simply stating that because not all the containers were cleared and some uncleared are still outstanding what is due to the addressee is N2.2 million and not what was quoted and demanded.
This is a clear admission which may be relied upon. The position is that where a party has admitted an indebtedness, such admission must be given effect regardless of other considerations that may crop up- ATM PLC V BVT PLC (2007) 1 NWLR (Pt.1015) 259 at 285. In the circumstance this application succeeds. Judgment is accordingly entered as prayed.”

The Appellant in this appeal said there was no admission of any liability to justify the decision of the Lower Court. I think the paragraphs extracted from the statement of defense are still relevant in determining whether there was unequivocal admission on the part of the Appellant at the Lower Court or not. The relevant paragraphs are again set out as follows:
“6. The Defendant admits paragraph 8 of the statement of claim only to the extent that it wrote the letter dated 15th April, 2008 but denies owing the Claimant the sum of N2,270,000.00 or at all.
7. The Defendant avers that it has a rolling clearing Account with the Claimant and following the failure of the Claimant to safely deliver all the goods it was contracted to clear, the defendant withheld payments to the Claimant.
8. The Defendant avers that all monies due to the Claimant from it have been paid.”

A careful scrutiny of the above paragraphs will clearly show that, Appellant denied owing the Respondent the specific sum of money alleged to be admitted, and the Appellant said all monies due to the claimant/Respondent had been paid. Again the witness statement relied on by the Respondent and used by the Lower Court as basis for its decision does not also appear to disclose any unequivocal admission by the Appellant, the witness statement on oath relied on is again set out as follows:
“4. I audited the goods received from the Claimant and I confirm as stated in our letter dated 15th April 2008 that we have only received from the Claimant the goods listed as 6, 7 and 14 in the Ledger Card attached to the said letter.
5. All monies owed to the Claimant have been duly paid and it is not true that we are owing the Claimant the sum of N1,120,950.00 or indeed any other sum or at all.
6. Prior to the institution of this suit, neither the Defendant nor myself as the officer in charge of verifying all payments due to contractors have seen or received the original or indeed other copy of the invoices mentioned in paragraph 6 of the Statement of Claim and listed as No. 1 in the Claimant’s list of Exhibits.
7. I confirm that we wrote the letter dated 15th April 2008 and confirm that the sum of N2,270,000.00 mentioned in the said letter has since been paid by the Defendant to the Claimant.”
The above witness deposition, which Respondent relied on to obtain Judgment on admission, does not also in my view appear to be certain and unequivocal, witness clearly said the amount claimed by the Respondent had since been paid.

I carefully examined Exhibit A, the letter dated 15th April 2008 relied on by the Respondent and the Lower Court, the learned trial Judge reproduced part of the said letter in the ruling, and the portion reproduced is also clearly an unequivocal denial of liability. I must point out that for possible reasons of inadvertence, or over sight the learned trial Judge reproduced some portion of Exhibit A, and the portion clearly reads as follows:
“The total outstanding due to your company as explained above is therefore N2,270,000.00 as you have erroneously quoted.”
Towards the concluding part of the Ruling the learned trial Judge reproduced the same portion but this time inadvertently omitted a critical portion of the letter, which reads:
“As yon have erroneously quoted.”
I am sure this missing part would have shown the Learned trial Judge that the Defendant/Appellant clearly denied liability; the learned trial Judge reproduced the said portion from Exhibit A as follows:
“Regarding your outstanding balance, there appears to have been duplication of quoted line items on your part as only items Numbers 6, 7, and 14 on our attached reconciled job list have been received by us. This implies that the rest of the items are still in the containers listed above which are now to be cleared by you vide this approval for our management. The total outstanding due to your company as explained above is therefore N2,270,000.00…”

An admission in pleadings cannot be effective unless it is shown that the deposition clearly represents the admitting mind of the party, an admission characterized by contraption, a clear product of logical deduction and assumption, lacking in certainty and precision cannot certainly qualify as admission in law. The law is firmly settled that an admission becomes effective when it is clear, unequivocal and unambiguous. The ruling of the Lower Court is lacking in these qualities. The ruling of the Lower Court is certainly not based on clear admission of liability, it at best arose from misapprehension of the facts, and I therefore hold that there was no admission of liability sufficient in law to Justify granting the application for Judgment. This issue is therefore resolved in favor of the appellant against the Respondent.

Appellant/Defendant while arguing issue two urged this Court to invoke the Provisions of Section 15 of the Court of Appeal Act to strike out the suit at the Court below because the Claim is premised on illegality. The Court of Appeal may invoke the Provisions of Section 15 of the Court of Appeal Act subject to the following conditions;
(1) The Lower Court must have legal power to adjudicate in the matter before the Appellate Court,
(2) The real issue raised by the claim of the Appellant at the Lower Court must be capable of being distilled from the ground of appeal.
(3) That all necessary materials must be available to the Court for consideration. (4) That the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the materials presented.
(5) that the hardship or injustice that will follow if the case is remitted to the Court below must be manifest. See: EZEIGWE V NWALULU (2010) 4 NWLR (Pt.1183) 159, 203-204.

In the instant appeal certainly the necessity to invoke the provisions of Section 15 does not arise, because the Lower Court did not hear the matter before it on the merit, the ruling entering Judgment on admission was premised on misunderstanding of the materials before the Lower Court and the law. The Lower Court needs to properly discharge its traditional role of hearing the matter and taking a decision on the merit.

I think Appellant has made a case deserving of positive consideration by this Court. From my understanding of the materials relied on by the Lower Court, the decision arrived at is perverse, this Court must therefore intervene by allowing the appeal and setting aside the Ruling. This Appeal is therefore allowed. Ruling delivered by Onyeabo J, of the Lagos State High Court on 18th June 2012 is hereby set aside. I order that this matter be remitted to the Hon. Chief Judge of the Lagos State High Court to be re-assigned to a Judge other than Onyeabo J, to be heard and determined. Parties shall bear their respective Costs.

SIDI DAUDA BAGE, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother TIJJANI ABUBAKAR, JCA, and I have nothing extra to add.

My learned brother TIJJANI ABUBAKAR, JCA, dealt with the issues in this appeal thoroughly and well, and left no space for further contribution, for the above reasons and the more detailed reasons given in the lead judgment, I too join my learned brother in holding that this court must therefore intervene by allowing the appeal and setting aside the Ruling. This Appeal is also therefore allowed by me. Ruling delivered by Onyeabo J, of the Lagos State High court on 18th June, 2012 is hereby set aside.

I too order that this matter be remitted to the Hon. Chief Judge of the Lagos State High Court to be re-assigned to a Judge other than Onyeabo J, to be heard and determined. Parties shall bear their respective costs.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, TIJJANI ABUBAKAR JCA. I agree with the reasoning and conclusions arrived at in the judgment.

An admission must be categorical, unconditional, unqualified and unequivocal. Exhibit A is not an unequivocal admission because it also talks about error in quoting the outstanding amount due to the respondent. The language of the letter may be in elegant but it is obviously not an admission.
Furthermore, the statement of defence filed by the Appellant is also a pointer to the denial of the claim, see paragraph 4-7. I also agree that the judgment appealed against lack all the qualities of an admission. In the face of clear denial of liability, the trial judge fell into serious error by not reading through the materials property before arriving at the decision that there was an admission. The judgment is perverse and cannot be allowed to stand.

I too allow the appeal and abide by the consequential orders made in the lead judgment.

Appearances

A. O. Agbolo with N. V. Chinwuba (Miss)For Appellant

AND

A. I. OgboluFor Respondent