STEEL BELL NIGERIA LIMITED & ORS v. NIGERIAN DEPOSIT INSURANCE CORPORATION & ORS (2014)

STEEL BELL NIGERIA LIMITED & ORS v. NIGERIAN DEPOSIT INSURANCE CORPORATION & ORS

(2014)LCN/7417(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 15th day of July, 2014

CA/L/368/2013

RATIO

COURT: RULES OF COURT: WHETHER RULES OF COURT MUST BE PRIMA FACIE OBEYED AND THE NATURE OF RULES OF COURT

I am of the school of thought that Rules of Court having been made pursuant to a statutory provision derives its strength therefrom and must be complied with stricto sensu. Any indulgence that should be granted upon failure to comply with the Rules of Court shall be limited to where the non compliance is minimal or where there is a specific provision in the Rules granting the court the discretion to either enforce it or grant a waiver. The Supreme Court in KALU VS ODILI (1992) 6 SCNJ 16 made it known that the clear principle is that Rules of Court must prima facie be obeyed, if there has been a non compliance with the rules and it is not explained away, then unless it is of a minimal kind, no indulgence of the court can be granted. Also in G.M.O. NWORAH & SONS CO. LTD VS AFAM AKPUTA (2010) 9 NWLR (PT.1200) 443, the Apex court held that:- “It is now firmly established that Rules of Court must be given discretion under them. In other words, Rules of Court are meant to be obeyed and the said Rules binds the parties before the court.” See also MALGWI vs GADAMA (2000) 11 NWLR (PT.678) 258; AJAYI vs OMOREGBE (1993) 7 SCNJ (PT 1) 168; BANGO vs CHADO (1998) NWLR (PT.564) 739.

It has also been stressed that Rules of Court are not mere rules, but they partake of the nature of a subsidiary legislation by virtue of Section 18(1) of the interpretation Act and therefore have the force of law that is why Rules of Court must be obeyed. See AKANBI VS ALAO (1989) 5 SCNJ 10 at 13 or (1989) 5 SC 1 and OWNERS OF M.V. ARABELLA VS NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 11 NWLR (PT.1097) 182 or (2008) 34 NSCQR (Pt.11) 109. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

EVIDENCE: ADMISSION; WHETHER WHAT IS ADMITTED NEED NO FURTHER PROOF

COURT: DUTY OF COURTS; THE DUTY OF THE COURT TO PROCEED TO THE TRIAL OF THE ISSUES IN CONTENTION ONCE PLEADINGS HAVE BEEN SETTLED AND ISSUES JOINED, AND CONDITIONS UNDER WHICH TRAIL COURT CAN GIVE JUDGMENT IN A CASE

To my mind, where issues are joined in the party’s pleadings, such issues must proceed to trial and proved on preponderance of evidence and not by inference to be drawn by a trial judge from mere averments in the pleadings without evidence adduced to give life to it. Once pleadings have been settled and issues joined, the duty of the court is to proceed to the trial of the issues in contention. See IMANA VS ROBINSON (1979) 3 – 4 SC 1.

EVIDENCE: ADMISSION; THE PRINCIPLE THAT WHAT IS ADMITTED NEED NO FURTHER PROOF, WHETHER ALL ADMISSIONS ARE NECESSARILY CONCLUSIVE AGAINST THE MAKER AND WHAT THE COURT MUST LOOK AT TO BE ABLE TO PROPERLY DECIDE WHETHER THERE WAS AN ADMISSION IN PARTY’S PLEADINGS
It is trite law that an admission in pleadings basically puts an end to the need for proof because by such admission the parties no more join issues on the matter. Thus what is expressly admitted in a pleading need no further proof. See AKANINWO VS NSIRIM (2008) 1 SCNJ 275; ADEDEJI vs OLOSO (2007) 1 SCNJ 379; EGBUNIKE vs ACB LTD (1996) ALL NLR 126 and AJUWON VS. AKANNI (1993) 12 SCNJ 32.

It is however not the law that all admissions are necessarily conclusive against the maker. Therefore each and every admission must be carefully evaluated and considered by the court against the particular circumstance under which it was made. See NWANKWO VS NWANKWO (1995) 5 SCNJ 55.

Thus for a court to be able to properly decide whether there was an admission in party’s pleadings it is necessary to have a proper look at the said pleadings as a whole and not just to consider each paragraph in isolation. See TITILOYE VS OLUPO (1991) 7 NWLR (PT 205) 519. In other words to ascertain whether there is express admission in a party’s pleadings the whole pleadings must be examined. See BUHARI OBASANJO (2005) 13 NWLR (PT.941) at 261; ORODOEGBUAM VS ORODOEGBUAM (2013) LPELR (20634) CA. Thus it is after the court has so done and is satisfied that a party has clearly admitted the facts which the rights of the party making the claim is hinged that it can enter judgment as the need arises. See DUNGE VS THE GOVERNOR OF RIVER STATE (2006) 141 LRCN 2227. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

COURT: MISCARRIAGE OF JUSTICE; WHAT AMOUNTS OR LEADS TO MISCARRIAGE OF JUSTICE AND THE DEFINITION OF MISCARRIAGE OF JUSTICE

I am therefore inclined to agree with the submission of the Appellants counsel that failure of the learned trial judge to take evidence from the parties and to determine the case on the merit, parties having exchanged pleadings and frontloaded documents and without giving the appellants the opportunity to prove their case occasioned a miscarriage of justice to them. Where material issues and facts relating to the case are not properly or adequately evaluated, it may lead to miscarriage of justice. See WILSON VS. OSHIN (2008) 6 SCNJ 371.

Miscarriage of justice is defined in Black’s Law Dictionary 9th Edition at page 1088 as a grossly unfair outcome in a judicial proceeding. per. SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

1. STEEL BELL NIGERIA LIMITED
2. RABO FARMS LIMITED
3. DR. IME SAMPSON UMONAH Appellant(s)

AND

1. NIGERIAN DEPOSIT INSURANCE CORPORATION
(LIQUIDATION OF PINACLE COMMERCIAL BANK LTD)
2. THE ATTORNEY-GENERAL OF LAGOS STATE
3. THE CHIEF LANDS OFFICER, LAGOS STATE
4. INDIMI ENTERPRISES LTD
5. THE REGISTRAR OF TITLES LAGOS STATE Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): The appeal is against the Judgment of the High Court of Lagos State, Lagos Division delivered by A. A. Phillips J. on the 25th Day of January, 2013.

The Suit leading to this appeal was commenced in the High Court of Lagos State, Lagos Division by the claimants (now Appellants) vide their writ of summons filed on 24-11-1994. The original 1st Defendant in the suit was (Pinnacle Commercial Bank Ltd) but subsequently substituted with the liquidator (Nigerian Deposit Insurance Corporation) now 1st Respondent.

The 4th Respondent herein was not part of the original defendants in the suit but subsequently applied on 13-3-1997 to be joined in the suit and was thus joined as the 5th defendant.

The bone of contention is all that property situate and being at plot 308 Younis Bashorun Street, Victoria Island, Lagos. By Tripartite Legal Mortgage made between the 1st and 3rd Appellant and the 1st Respondent dated 27th January, 1993 and registered as No 64 at page 64 in volume 1945 of the Land Registry office at Lagos, the said property was mortgage as security for a credit facility granted by the 1st Respondent to the 1st Appellant. Due some difficulties in repayment of the loans as agreed, the 1st Respondent in accordance with the loan agreement, appointed a Receiver who after series of correspondences with 3rd Appellant including threats of sale if the property of the loan is not repaid eventually informed the 1st Appellant that the property has been sold for the sum of N60 million naira and that the balance due to the 1st Appellant from proceeds of sale after deduction of the amount due for Payment as loan was being returned to the 1st Appellant.

This prompted the Appellant to commence the action in the Lower Court on the 24-11-1994, claiming certain reliefs. It was followed with a motion for interlocutory injunction to restrain the 1st Respondent from selling the mortgaged property. The defendants (now Respondents) filed their statement of defence as well as counter affidavit to oppose the application for interlocutory injunction. The said application was refused by the Lower Court and this issue of injunction was fought up to the Supreme Court for a period spanning ten years until the Supreme Court in 2004 ordered that the matter be remitted to the trial court for hearing of the substantive suit. The suit however, did not take off at the trial court until 2010. The Appellants subsequently filed an amended writ of summons and statement of claim dated 27-6-2011 while the 4th Respondent’s statement of defence and counterclaim is dated 13-7-2011. The 2nd, 3rd and 5th Respondents’ statement of defence was filed on 10-10-2011.

During the Pretrial conference, the 2nd, 3rd and 5th Respondents brought an application for special case to be considered pursuant to order 28 Rules (1) & (2) of the High Court of Lagos State (Civil Procedure) Rules 2004. Upon the concurrence of parties and approval of the court, written addresses were order filed and served on the issues stated in special case. The said written address were subsequently adopted and in a judgment delivered on 25-1-2013, on the special case, the Appellants’ suit as well as the 4th Respondent’s counterclaim were dismissed and the Appellants were asked to yield up possession of the property in dispute.

The Appellants were aggrieved with the outcome of the special case proceedings and accordingly filed a notice of appeal dated and filed on 28-1-2013. An Amended Notice of Appeal was subsequently filed on 29-4-2013 but deemed properly filed by order of this court on 18-11-2013 and it contains seven grounds of appeal.

Briefs of argument were eventually filed and served by the parties in compliance with the relevant Rules of this court.

The Appellants’ brief of argument is dated 7/6/2013 and filed on 10-6-2013. The 1st Respondent’s brief is dated and filed on 8-7-2013, the 2nd, 3rd and 5th Respondent’s brief 18-11-2013 was filed on 19-11-2013 but deemed properly filed on 21-11-2013. The 4th Respondent’s brief of argument dated 17-9-2011 was filed on 18-9-2013. At the hearing of the appeal on the 4-6-2014, parties duly adopted and relied on their respective briefs argument.

In the Appellant’s brief of argument, five issues were formulated for determination as follows:
(1) Whether the learned trial judge was right in granting an order for possession forthwith against the Appellants in this suit in respect of the property at Plot 108, Younis Bashorun Street Victoria Island Annex, Lagos, when same was not claimed in the application of the 2nd, 3rd and 5th Respondents. (Ground 1)
(2) Whether the learned trial was right in considering the written statement on oath of the claimant’s witness, Mr. Gabriel Oseke and the Documents to be relied upon at the trial in her decision on the application for special case brought by the 2nd, 3rd and 5th Respondents when trial had not commenced. (Ground 2)
(3) Whether the learned trial judge was right in holding that there was voluntary admission of debt by the Appellants in their amended statement of claim and the Respondents are entitled to judgment dismissing the action without taken oral evidence.
(4) Whether the learned trial judge was right in determining this suit of the Lower Court on the special case application of the 2nd, 3rd and 5th Respondents and dismissing the suit without taking oral evidence from the parties. (Ground 4, 5 and 7)
(5) Whether the learned trial judge was right in delivering judgment in the suit when it was not ripe to do so. (Ground 6)

In the 1st Respondent’s brief of argument four issues were distilled for determination as follows:
(1) Whether the Honorable judge of the High Court was right to hold that the Claimants/Appellants vacate the property, the subject matter of the suit.
(2) Whether the trial judge was right in determining the suit on the special case application and without recourse to oral evidence.
(3) Whether the trial court was right to hold that the Appellant had voluntarily admitted indebtedness to the 1st Respondent in their pleadings.
(4) Whether the trial court was right in dismissing the Appellants’ claims pursuant to the special case application.

The 2nd, 3rd and 5th Respondents in their own brief of argument adopted the five issues as formulated by the Appellants.

The 4th Respondent in its own brief of argument also adopted the five issues as formulated in the Appellant’s brief.
In the circumstance I am minded to consider this appeal on the basis of the five issues raised by the Appellant is in their brief of argument.

ISSUE No. 1
Dwelling on this issue, the learned counsel for the Appellants referred to the four issues raised in the application for a special case filed by the 2nd, 3rd and 5th Respondents pursuant to Order 28 Rules (1) & (2) of the High Court of Lagos State (Civil Procedure) Rules 2004 to point out that there was no prayer for possession forthwith, of the property in dispute in the said application. It was then submitted that the learned trial judge awarded the Respondents r prayer not contained in their application for special case, thereby failing to be guided by the decision in Ekpeyong & Ors v. Nyong & Ors (1975) 2 SC.71 where it was held that it should always be borne in mind that a court of law is not a charitable organization, it’s duty in civil cases is to render unto everyone according to his proven claim. The following authorities were also cited in support. A. G. FEDERATION VS. A. I. C. (2000) 4 WRN 96; UNOKAN ENT. LTD VS. OMUVWIE (2005) 1 WRN 155 and LADEJOBI Vs. SHODIPO (1989) 1 NWLR (Pt.99) 596.
He then urged this court to resolve the issue in favour of the Appellants and set aside the order of possession made by the trial court.

Responding on this issue, learned counsel for the 1st Respondent referred to issue no 3 raised in the 4th Respondent’s written address on the special case application where it prayed the court to determine its right and entitlement as the purchaser of the mortgaged property etcetera and submitted that though the issue may not have been specifically determined by the trial court, but it has unfettered power to make any order that would give effect to any principle relief granted by it. He cited the case of OKOYE VS CLO RIVER STATE (2005) 11 MJSC 8 at 107.

It was then argued that the order of the trial court that the Appellants should vacate possession of property in issue is no more than an incidental order to protect the judgment of the court.

In their own brief of argument, the 2nd, 3rd and 5th Respondents also made their submissions and cited authorities in tandem with the 1st respondent.

For the 4th Respondent, it was submitted by learned counsel that the order of possession is a consequential order made to give effect to the decision on the special case but that the Appellants failed to appreciate the fact that whilst the order for the possession of the property was not directly claimed by the 4th Respondent in the special order procedure, the order of possession made by the Lower Court was to do substantial justice and it is a direct and logical consequence of the conclusions reached in the determination of the dispute between the parties under the special case procedure.

On the principle and effect of the grant of consequential order, the following authorities were cited by the counsel. INAKOJU VS ADAELEKE (2007) 4 NWLR (PT.1025) 423; EAGLE SUPER PACK (NIG.) LTD VS. AFRICAN CONTINENTAL BANK PLC (2006) 19 NWLR (PT.1013) 20 and AMECHI VS INEC (2008) 5 NWLR (PT.1080) 227 at 393 – 394.

It was further submitted that the four issues under the special case procedure are simply to guide the court in narrowing down the issues for determination and not necessarily a substitute for the substantive prayers of the 4th Respondent which includes an order for possession. He added that the order of the Lower Court for the Appellant to vacate the property was founded on the clear decision of the court after due consideration of all the issues submitted for the special case procedure adopted with the concurrence of all the parties.

ISSUE NO. 2
Herein, learned counsel for the Appellants noted that the learned trial judge in her judgment on the special case procedure extensively used the written statement on oath of the claimant’s witness. Mr. Gabriel Oseke and the documents to be relied upon at the trial.

It was then substituted that it was a grave error for the learned trial judge to have considered the said written statement on oath has not been adopted by the witness before the court by virtue of Order 32 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides that:
“The oral examination of witness during his evidence-in-chief shall be limited to confirming his written deposition and tendering in evidence all disputed documents or other exhibits referred to in the deposition.”
Counsel further contended that the Lower Court cannot by way of application on special case without going to trial, rely on written statement on oath of a witness and the documents frontloaded to give judgment in favour of the Respondents because it did not afford the Appellants the opportunity to address the court on the use to be made of the document and the probative value to be placed on them.

This court was therefore urged to hold that the reliance on the written statement on oath before adoption and the document before being tendered in evidence has occasioned miscarriage of justice to the claimants.

In his response, the learned counsel for the 1st Respondent referred to Order 28 Rules (1) and (2) of the High Court of Lagos State (Civil Procedure) Rules to submit that its import and spirit is to ensure that straight forward matters with sufficiently prominent issue of law are determined in limine without recourse to undue delay by lengthy evidence and as such the court is at liberty to review all relevant documents put before it end this includes statement on oath. He added that the fact that a statement on oath has not been adopted by the deponent does not preclude its use by the court.

On the reference by the Appellants to Order 32 Rule 3, it was submitted that its provision only relates to the proceedings at the trial proper and not in a special case situation where the court is imbued with the inherent power to revive a sworn statement on oath, even when it has not been adopted by the deponent.

On the appellant’s contention that the special case procedure is based on law alone and not facts as applied by the learned trial judge in considering the issues, it was submitted that the issues determined pursuant to the special case application are principally points of law and not facts.

The 2nd, 3rd and 5th Respondents in responding to this issue repeated the arguments as presented by the 1st Respondent.

For the 4th Respondent, it was submitted that the trial court relied on the written statement on oath of claimant’s witness and documents frontloaded as a corroboration of the claimants’ pleadings which admitted liability. Furthermore, that reliance on the written statement on oath by the trial court did not occasion miscarriage of justice, because if the matter had proceeded to trial, that would have been the evidence of the claimant’s witness.

Learned counsel also referred to Order 19 Rule (4) of the High Court of Lagos State (Civil Procedure) Rules 2012 and section 123 of the Evidence Act on the effect of an admission of facts on a party in a suit. Counsel also reiterated the effect of the special case procedure under Order 28 Rules 1 and 2, and the fact that it was invoked with the concurrence of all the parties.

ISSUE NO 3
It was herein pointed out by the Appellants’ counsel that the learned trial judge in arriving at the decision that there was a involuntary admission of debts referred to paragraphs 11, 13, 20, 28, 31, 32, 33, 34, 37, 40 and 41 of the Appellants’ amended statement of claim dated 27-6-2011 and concluded that the claimant admitted owing the original defendant the sum of N10 million which was not liquidated within the specified period. This he argued, was not supported by any affidavit evidence.

It was further submitted that the facts relied upon by the learned trial judge to arrive at the decision on voluntary admission of debt by the Appellants in their witness written statement on oath has not been confirmed or adopted before the court. Worse still the learned trial judge failed to correctly advert her mind to paragraphs 16-29 of the amended statement of claim which clearly would have shown that there was no admission of debt by the Appellants.

He added that the averments relied upon in the appellant’s pleadings are facts that cannot be allowed in an application for special case procedure, which ordinarily deal with matters of law alone.

Learned counsel further submitted that before a court can reach a decision that there is an admission of facts in the pleadings which could entitle the other party to judgment without the need to prove such facts, the pleadings of the parties as a whole must be considered and not treat the paragraphs in isolation. He relied on the following cases: TITILOYE VS. OLUPO (1991) 7 NWLR (PT.205) 519; PAN ASIAN AFRICAN CO. LTD V. NATIONAL INSURANCE CO. (NIG.) LTD (1982) 9 S.C. 1; UGOCHUKWU vs COOPERATIVE BANK LTD (1996) 6 NWLR (PT.37) 674; ANAMBRA STATE Vs ONISELOGU ENTERPRISE LTD (1987) 4 NWLR (PT.66) 547.

He further referred to Order 28 Rule (1) as being applicable only to questions of law arising in a case, but that the issue of right of sale of the property in dispute borders on issues of fact which can only be dealt with at the trial where evidence will be given by the parties, therefore the decision of the trial court based on written statement on oath has not been adopted or confirmed and documents not yet tendered in evidence by the parties occasioned a miscarriage of justice to the Appellants and the court should so hold.

For the 1st Respondent it was submitted that one of the points of law canvassed by the parties under the case stated procedure is the issue bothering on the admission of indebtedness by the Appellants, where some relevant paragraphs of their pleadings were referred to and relied on, particularly paragraphs 31 and 36 which in conjunction with the 3rd Appellant’s endorsed note on the letter dated 27th September, 1994 shows conclusively that the Appellants are indebted to the 1st Respondent.

Learned counsel referred to section 20 of the Evidence Act 2011 on the definition of admission as well as the case of ORJI Vs DORJI ILE MILLS (NIG) LTD (2009) 12 MJSC (PT.11) 97 at 132 and CAPPER AND D’ALBERTO LTD Vs DEJI AKINTILO (2003) 6 MJSC 62 at 73.

Also referring Order 19 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004, he submitted that the Lower Court was right and was sufficiently empowered under the Relevant Rules of court to enter judgment as was done in this case.

The 2nd, 3rd and 5th Respondents in their own brief of arguments also argued along the same line with that of the 1st Respondent.

For the 4th Respondent, issues 3, 4 and 5 were taken together to submit that it is poignant to point out that from the outset, the parties, including the appellants herein agreed as to the sanctity of the Tripartite Legal Mortgage between the original 1st Respondent and the Appellants wherein the legal title in the subject property was validly passed to the original 1st Respondent as security for the credit facilities granted to the Appellants and no issue was joined in the parties pleadings on the said transaction. He added that the Appellants’ grouse therefore seemed to be hinged on the fact that the property was sold at an undervalued sum.

It was then submitted that it is trite law that it is not enough to vitiate the exercise of a mortgage’s power of sale under the guise of undervaluation of the mortgaged property except it is shown that the sale was made fraudulently or that the property was grossly undervalued. The case of EKAETE Vs NIGERIA HOUSING DEVELOPMENT SOCIETY LTD (1973) 6 SC 183 at 198 and MOHAMMED Vs KADIRI (2008) 4 NWLR was referred to.

Learned counsel also referred to some paragraphs of the Appellants pleadings as well as some frontloaded documents which showed that the Appellants clearly admitted the salient fact in dispute therefore establishing the fact that there is no legal justification to vitiate the sale of the property in dispute to the 4th Respondent who had bought bonafide for value and without notice of any impropriety.

Referring specifically to issue 5 as formulated by the Appellants, learned counsel submitted that it is vague and unmeritorious and very academic as it has no bearing to the substance of the judgment of the trial court. He added that the description of the verdict of the court as a ruling or a judgment has not been shown in any way by the Appellants to have occasioned a miscarriage of justice to them, it was further submitted that if it is assumed that the said issue 5 is not academic, the trial court was right to describe its decision as a Ruling during adjournment because at that stage the court could not have preconceived whether its decision would finally settle the suit on the same day the application for special case procedure was argued. So it is after writing his decision that the court would have been in a better position to appreciate if its verdict would finally settle the suit.

On the other hand, counsel submitted that the final decision of the trial court has been appropriately described as a judgment because the import of the Order 28 on the special case employed finally settled all the actionable issues in the suit.

ISSUE NO 4
Dwelling on this issue no. 4, learned counsel for the appellant referred to Order 28 Rule 5 to submit that the essence of the provision is not for a trial judge to proceed straight to judgment after the argument of the parties in a special case. Rather the issue of law dealt with in the special case is to be used at the trial of the suit. This is contrary to the instant case where after the submission of the parties on question of law in the special case, the learned trial judge on her own volition relied on written statement on oath that has not been confirmed or adopted by a witness and documents that have not been tendered in evidence to give judgment in favour of the Respondents in breach of Order 28 Rule 1.

It was further pointed out that the submissions made by the Respondents in their respective written addresses on the special case are based on “case stated” principles which are hinged on points of law alone and not facts. Therefore it was wrong for the trial judge to terminate the life of the case at the stage of special case without allowing the parties to proceed to trial and the case determined on the merits. He added that since all the parties have filed and exchanged pleadings and frontloaded their documents at the Lower Court, the issues have been joined which requires the case to be heard on the merit and failure of the trial court to take evidence from the parties before determining the case on the merit occasioned miscarriage of justice to the Appellants.

On this issue, learned counsel for the 1st Respondent submitted that the trial judge validly exercised the power vested on her by Order 28 Rule 1 and 2 to determine the claims through the special case procedure.

Learned counsel further adopted his argument as presented in issue 2 but added that the main basis for which the Appellants’ claim was dismissed at the trial court was that the claims as constituted in their statement of claim and other related documents before the court did not disclose any reasonable cause of action.

On the meaning of a cause of action and what processes the court will look at in determining whether there is a cause of action, the following cases were cited: CHEVRON (NIG) LTD Vs L. D. (NIG) LTD (2007) 10 MJSC 103 at 116-117; UCHE NWOKEDI Vs FRED EGBE (2005) 1 NWLR (PT.930) 293.; A.G. FEDERATION Vs GUARDIAN NEWSPAPERS LTD (1999) 1 SC (PT 111) 59.

It was further submitted that with the specific recourse to the statement of claim of the Appellants, the following issues were not in contention:
(1) Facility granted the 1st and 2nd Respondent.
(2) The said facility was secured by the Appellants executing a tripartite Legal Mortgage in respect of the property at plot 308, Younis Bashorun Street, Victoria Island, Lagos.
(3) The facility was accepted and utilized by the Appellants.
(4) The Appellants could not pay back the facility within the tenure.
The Appellants admitted being indebted to the 1st Respondent.
(6) The 1st Respondent exercised through its appointed receiver, the power of sale vested in it by the tripartite mortgage agreement.
It was then argued that the state of pleadings of the Appellants and with specific recourse to the documents annexed therewith, the trial court was right to have made the required inferences strictly on points of law.

Therefore the trial court was right to hold that undervaluation alone is not enough to vitiate the exercise of a mortgagee’s power of sale. It must be shown that the sale was made fraudulently or the property was grossly undervalued as per the decision in TEMCO ENG & CO. LTD Vs B. N. LTD (1995) 5 NWLR (Pt.397) 607 at 629 and UBA Vs OKEKE (2004) 7 NWLR (PT.872) 393 at 412.
The 2nd, 3rd and 5th Respondents at paragraphs 7.0 to 7.09 of their brief of argument in arguing issues 4 and 5 together also made submissions similar to that of the 1st Respondent and I find it unnecessary to repeat them herein.

The submission of the 4th Respondent on this issue had earlier been summarized in the judgment having argued issues 3, 4 and 5 together in their brief of argument.

ISSUE NO.5
Herein learned counsel for the Appellants noted that application for special case procedure by the 2nd, based on the 2nd, 3rd and 4th Respondents, the parties filed and served written addresses which they adopted on 7-3-2012 and the matter adjourned to 27-4-2012 for Ruling.
The said Ruling was however further adjourned several times until it was slated for 25-1-2013 where it was eventually delivered, but instead of a Ruling which was indicated in the day’s cause list, what the learned trial judge delivered was a judgment. He therefore contended that it was wrong for the learned trial judge to have delivered a judgment in the suit when it was not ripe to do so, because the case has not proceeded to full trial. Therefore, since the case was adjourned for Ruling as shown in the records of proceedings of the court, but the learned trial judge proceeded to deliver a judgment, it should be set aside for being irregular.

The submission of the respondents on this issue have earlier been summarized in this judgment being that it was argued together with other issues in their briefs of argument.

After a careful review of the issues raised and canvassed by the parties as set out above, I am of the humble view that issues 2, 3, and 4 can conveniently be taken together given the fact that they all relate to the proper interpretation and application of Order 28 Rules 1 and 2 of the High Court of Lagos State (Civil Procedure Rules) 2004 which provision is herein below reproduced.

Order 28 Rule (1) “Special case by consent”
“At the case management conference. Parties may concur in standing the questions of law arising in their case in the form of a special case for the opinion of the judge. Every such case shall be divided into paragraphs numbered consecutively and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions. Upon the argument of such case the judge and the parties may refer to all the contents of such documents and the judge may draw from the facts and documents stated in any such special case, any inference, whether of fact or law, which might have been drawn from them if proved at a trial.”
(2) Special case by Order before trial
“If at the case management conference it appears to the judge that there is in any cause or matter a question of law, which would be conveniently decided before any evidence is given or any question or issue of fact is tried, the judge may make on order accordingly, and may raise such questions of law or directs them to be raised at the trial either by Special case or in such other manner as the judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.”
In my humble view Rules (1) and (2) above set out applies under two different settings. That is to say, while parties may by consent initiate a special case procedure by stating the questions of law arising in the case for the opinion of the judge under Rule (1); a special case procedure can also be initiated before trial proper by the judge where it appears to him that there is a question of law which could be conveniently decided in any cause or matter before any evidence is given, or any question or issue of fact is tried.
In other words, while under Rule (1), the concurrence of the parties to the suit is required at the case management conference stage for a question of law arising in their case in the form of a special case to be presented before the court for the opinion of the judge. Under Rule (2) it is the judge that will raise such questions of law in any cause or matter before it at the case management conference stage for the parties to address the court on such question of law. This however is only possible where such question of law could conveniently be decided before any evidence is given or any question or issue of fact is tried.
The distinction between Rule (1) and Rule (2) is made clearer by Rule 3 which provides thus:-
Rule (3) “Every Special case agreed pursuant to Rule (1) shall be signed by the several parties or their legal practitioners and shall be filed by the claimant or other party having conduct of the proceedings”.

In the instant case, the special case procedure was initiated at the instance of the 3rd, 4th and 6th defendants at the trial court (now 2nd, 3rd and 5th) Respondents and the process dated 24-10-11 as contained in pages 285 to 286 of the Record in herein below set out:-
“SPECIAL CASE BROUGHT PURSANT TO ORDER 28 RULES 1 AND 2 OF THE LAGOS STATE (CIVIL PROCEDURE) RULES 2004 AND UNDER THE INHERENT JURISDICTION OF THE HONOURABLE COURT
TAKE NOTICE that this Honourable Court shall be moved on…….the………………day of…………………2011 at the honour of 9 O’ clock or so soon thereafter as counsel for the 3rd, 4th and 6th Defendants may be heard on the special case raised in this suits to be determined by this Honourable court to wit;
1) Whether by the voluntary admission of debut by the Claimants in their pleadings the Defendants are entitled to judgment dismissing this action without taking oral evidence.
2) Whether the right of sale of the property situate at Plot 308 Younis Bashorun Street, Victoria Island Eti-Osa Lagos already exercised pursuant to a valid tripartite legal mortgage registered as No. 64 at page 64 in Volume 1945 of the Land Registry Office, Logos can be set aside on ground of under valuation of the said property.
3) Whether in the light of paragraphs 11, 13, 20, 28, 31, 32, 33, 34, 37, 40, 41 and 43 of the statement of claim wherein the Claimants admitted executing o tripartite legal mortgage, admitted debut due to the Defendant and the sale of the property situate at Plot 308 Younis Bashorun Street, Victoria Island Eti-Osa Lagos, the Claimants action discloses nay reasonable cause of action and is not frivolous and embarrassing.
4) Whether from the totality of the averments in the Claimants statement of claim, the Defendants statement of defence and the documents already filed by the parties, this court can determine the suit without oral evidence

DATED THIS 24th DAY OF OCTOBER 2011
……………Sgd………………..
O.K. Akerele
Defendants/Applicants Counsel
Lagos State Ministry of Justice
Secretariat, Alausa – Ikeja ”

The above mentioned process was filed by the 2nd, 3rd and 5th Respondents at the Pre-trial conference stage of the proceedings. Thereafter during the pretrial conference held on 5-12-2011 the learned trial judge made the following order. (see page 412 of the Record:-
COURT= I agree with the issues raised by counsel for the 3rd, 4th and 6th defendants. The issues raised by counsel for the claimants can be his response to the issues raised by the defendants counsel. Counsel for all the defendants to file and serve their respective written address within 14 days from today. Counsel for the claimant to file and served his written address within 27 days of service. Case adjourned to 25-1-2012 for adoption.
Subsequently, upon filing and service of their respective written addresses which was adopted on 7-3-2012, wherein the learned trial judge ordered thus:-
COURT= Ruling Reserved till 27-4-12
What followed thereafter however was a judgment of the court delivered on 25-1-2013 and not a Ruling as earlier reserved.
One preliminary point to be noted is that from the record of appeal which contains all the processes filed in the trial court as well as the proceedings recorded therein, it is nowhere shown that the parties complied with the provisions of Order 28 Rule 3 which provides that:-
“Every special case agreed pursuant to Rule (1) shall be signed by the several parties or their legal practitioners and shall be filed by the claimant or other party having conduct of the proceedings.”
To my mind this provision of the Order 28 Rule 3 cannot be said to have been complied with by the mere fact that the learned trial judge agreed with the issues raised by the counsel for the 2nd 3rd and 5th Respondents in their application for a special case procedure dated 24-10-11 and ordered the parties to file written addresses on the issues so raised. It seems to me therefore that the approach adopted by the learned trial judge is alien to Rules 1 and (3). It would have been a different thing if acting under Rule 2 the learned trial judge had on her own raised the question of law which could be conveniently decided before any evidence is given or any question or issue of fact is tried. The application for a special case procedure is at the instance of the 2nd, 3rd and 5th Respondents, and though it was contended by their counsel that the appellants and other respondents agreed to it during the proceedings at the trial court and consequently filed their respective written addresses.
I am however of the view that it still is not in compliance with the provisions of Rule 1 that every such special case agreed must be signed by all the parties or their legal practitioners and the signed process must be filed by either the claimant or other party having conduct of the proceedings which in this case was the 2nd, 3rd and 5th Respondents. Failure to comply with the aforesaid provision to my mind is not a mere irregularity but a fundamental vice; moreso that it requires an all party signing and filing of a particular process.

I am of the school of thought that Rules of Court having been made pursuant to a statutory provision derives its strength therefrom and must be complied with stricto sensu. Any indulgence that should be granted upon failure to comply with the Rules of Court shall be limited to where the non compliance is minimal or where there is a specific provision in the Rules granting the court the discretion to either enforce it or grant a waiver. The Supreme Court in KALU VS ODILI (1992) 6 SCNJ 16 made it known that the clear principle is that Rules of Court must prima facie be obeyed, if there has been a non compliance with the rules and it is not explained away, then unless it is of a minimal kind, no indulgence of the court can be granted. Also in G.M.O. NWORAH & SONS CO. LTD VS AFAM AKPUTA (2010) 9 NWLR (PT.1200) 443, the Apex court held that:-
“It is now firmly established that Rules of Court must be given discretion under them. In other words, Rules of Court are meant to be obeyed and the said Rules binds the parties before the court.”
See also MALGWI vs GADAMA (2000) 11 NWLR (PT.678) 258; AJAYI vs OMOREGBE (1993) 7 SCNJ (PT 1) 168; BANGO vs CHADO (1998) NWLR (PT.564) 739.

Consequently, I hold the view that failure to comply with Order 28 Rule 3 of the High Court of Lagos State (Civil Procedure) Rules 2004, renders the special case procedure undertaken thereto incompetent.

Nonetheless, I shall proceed to touch on the merit of the issues raised in this appeal. Arguing on issue 2 the appellants counsel had contended that it was wrong for the learned trial judge to have held that there was voluntary admission of debt by the appellants in their amended statement of claim therefore the Respondents are entitled to judgment without proceeding with the trial and taking further evidence. The learned trial judge had in the judgment at page 432 to 434 of the held thus:-
“Having examined the various paragraphs of the averments in the statement of claim especially paragraphs 31-34 set out above, it is clear to that the claimant owed the original 1st Defendant money which was never liquidated before the expiration of the terms of the Mortgage Agreement. The Claimants clearly in paragraph 32 above stated that That the Claimants indebtedness to the original 1st Defendant was finally agreed to be N15.4 Million on the two accounts and also went further in paragraph 34 that after the payment of the N5,400,000.00 and when the N10 million cheque could not be met, the claimants on the 4th November, 1994 wrote to the original 2nd Defendant and copied the managing Director of the original 1st Defendant intimating him of the position. From the averments made by the Claimants it is clear to me that the Claimants did admit owing the original 1st Defendant a sum of N10 million, which was not liquidated within the specified period. I therefore resolve this issue in favour of the Defendants and I hold that the Defendants are entitled to judgment dismissing this action without taking oral evidence.”

It is trite law that what is admitted need no further proof. See AKINLAGUN vs OSHOBOJA (2006) 12 NWLR (PT 993) 60; EGBUNIKE VS A.C.B. LTD (1995) 2 SCNJ 58 and NDAYAKO VS DANTORO (2004) 13 NWLR (PT 889) 189 and A.G. RIVERS STATE VS UDE (2006) 17 NWLR (PT.1008) 436. In the case of OSENI vs DAWODU (1994) 4 SCNJ 197 it was held by the Supreme Court that a fact which is admitted by the defendant in his pleadings need not be proved anymore by the plaintiff but should be regarded as established at the trial.

The instant case is however peculiar in the sense that it is not a question of the defendants admitting to facts averred to in the claimants pleadings but a case of holding a claimant down to the averments in his pleadings alleging admission of liability and proceeding to give judgment accordingly. The said paragraphs 28 and 31 to 34 of the amended statement of claim relied upon as an admission of liability by the appellants reads thus:-
“28. That without prejudice, the claimants accepted to settle the accounts amicably with the original 1st Defendant on ascertained figures.
31. That with a view to settling the accounts amicably and in good faith the claimants issued post-dated cheques to the Defendants.
32. That the Claimants indebtedness to the original 1st Defendant was finally agreed to be N15.4 Million on the two accounts.
34. That after the payment of the N5,400,000.00 and when the N10 million cheque could not be met, the Claimants on the 4th November, 1994 wrote to the original 2nd Defendant and copied the managing Director of the original 1st Defendant intimating him of the position. The letter would be relied upon at the trial.”
In the course of considering the above paragraphs of the appellants amended statement of claim the learned trial judge referred to paragraphs 16 – 29 thereof but without any further evaluation of the facts averred therein concluded that by virtue of their averments in paragraphs 31-34, it is clear that the appellants owed the 1st Respondent money which was never liquidated before the expiration of the term of the mortgage agreement. The conclusion was reached without any evidence to support it. To my mind, where issues are joined in the party’s pleadings, such issues must proceed to trial and proved on preponderance of evidence and not by inference to be drawn by a trial judge from mere averments in the pleadings without evidence adduced to give life to it. Once pleadings have been settled and issues joined, the duty of the court is to proceed to the trial of the issues in contention. See IMANA VS ROBINSON (1979) 3 – 4 SC 1.

However, the Supreme Court in OSHOBOJA VS AMUDA (1992) NWLR (PT 250) 690 laid down some of the conditions under which a trial court can give judgment in a case to include:-
(i) Submitting to judgment without going through the process of due trial
(ii) Judgment by court after trial.
(iii) Judgment by default.
(iv) Judgment by consent.
In the instant case the learned trial judge seem to have entered judgment based on the first condition above, though without the clear or tacit submission to the said judgment by the appellants but relied on the averments of the appellants in paragraph 31 – 34 of their amended statement of claim to hold that they admitted indebtedness to the original 1st defendant and as such the defendants were entitled to judgment dismissing the appellants action without taking oral evidence. This decision was reached without due consideration of the appellants averments in paragraphs 16 – 29 of their pleadings which are herein below set out:-
“16. The Claimants aver that the 2nd Claimant deals in the export of teak logs and that the proceeds from the exports were paid by Wood Reef Limited, the agents of the 2nd Claimant in London through Lloyds Bank into the autonomous account of the 2nd Claimant with the original 1st Defendant. The documents of Wood Reef Limited, Lloyds Bank and Bank of Baroda dated 17/1/1995, 13/3/1996, 18/3/96 will be relied upon at the trial.
17. That further to paragraph 17 above, the total export proceeds paid into the autonomous account of the 2nd Claimant with the original 1stt Defendant as at March 1992 was to the tune of about US$956,127.00,
18. The export proceeds paid into the autonomous account of the 2nd claimant with the original 1st Defendant was to be used to offset the indebtedness of the Claimants state that as at 31/12/93, the 1st Claimant had standing in its account a balance credit of N331,771,00 white the 2nd Claimant had standing in its account a balance credit of N545,178.79. The Statements of accounts will be relied upon at the trial.
20. That in June 1993 the original 1st Defendant informed the Claimants that the facility went up to N12,325,454.50.
21. On the receipt of notice, the Claimants discovered that there were several unauthorized debits and credits in the two accounts.
22. The Claimants state that some of the fictitious entries in the account among others are as follows:
a. Fictitious Deposit of N10 million on 30/4/93
b. And R/E Deposit of N11 million on the 30/4/93
c. Fictitious entries of N77 million on 11/3/93
d. Consultancy fee N90,000.00 on 18/12/91
e. Fictitious deposit of N10 million in Nov. 1993
f. Fictitious entry of N15 million in Nov. 1993
23. Pursuant to facts in paragraph 22 above the Claimants protested and sought clarification, which never came.
24. The original 1st Defendant realizing the enormity of the implications of the said unauthorized entries agreed to waive part of the interests.
25. The unauthorized entries attracted enormous interest.
26. The Claimants over that apart from the fictitious entries the original 1st Defendant charged exorbitant interest rates over and the above the rate agreed.
27. That when the Claimants demanded for the full statement of accounts instead of the original 1st Defendant supplying the full statement of account, it only supplied statements for the months of April, August, October and November.
28. That without prejudice, the Claimants accepted settle the accounts amicably with the original Defendant on ascertained figures.
29. That by a letter date 5th April 1994 the original 2nd Defendant as Solicitor to the original 1st Defendant demanded N19,183,370.64 for the loan, while on the 14/4/94 the same original 2nd Defendant demanded N12,415,917.84. The letters would be relied on at trial.”

What is more it is nowhere shown that the appellant in any part of their amended statement of claim expressly admitted any claim but merely stated the facts that led to the institution of the action in the Lower Court.
It is trite law that an admission in pleadings basically puts an end to the need for proof because by such admission the parties no more join issues on the matter. Thus what is expressly admitted in a pleading need no further proof. See AKANINWO VS NSIRIM (2008) 1 SCNJ 275; ADEDEJI vs OLOSO (2007) 1 SCNJ 379; EGBUNIKE vs ACB LTD (1996) ALL NLR 126 and AJUWON VS. AKANNI (1993) 12 SCNJ 32.

The conclusion of the matter from the authorities, is that an admission must be clear, straightforward and unequivocal and should not be picked in isolation from a party’s pleadings. The learned trial judge herein relied on paragraphs 28, 31, 32, 33 and 34 of the amended statement of claim to arrive at the conclusion that the appellants have admitted indebtedness and therefore dismissed their claim. I however agree with the submission of the appellants counsel that the averments therein does not amount to express admission and therefore need further evidence at the trial to ascertain the rights of the parties given the facts averred to in paragraphs 16 – 29 of the appellants amended statement of claim.

On the contention of the appellants in their issue 2 that the learned trial judge was in error to have used the written statement on oath of their witness before it was adopted and the documents to be relied at the trial to determine an application for special case.
In this regard, a careful reading of the provisions of Order 28 Rule 1 reveal that it can only be resorted to where there is a question of law that needs to be addressed before the trial of the case. Hence it is clearly stated in the first part of Rule 1 that:-
“At the case management conference parties may concur in stating questions of law arising in their case in the form of a special case for the opinion of the judge.”
The said Order 28 Rule 1 also stated clearly the manner in which the special case shall be presented by providing that such special case shall be divided into paragraphs numbered consecutively and shall state concisely such facts and documents that will help the court in deciding on the questions of law raised.
To my mind, the provisions of order 28 Rule 1 is very clear and unambiguous as to the limits of its application in any action before the court to the effect that special case by consent of the parties can only be employed where there are questions of law arising in their case and they can only call in aid such facts and documents as may be necessary to enable the court decide the questions. Strong note should be taken here, that it is limited to “such facts and documents” and not evidence. In determining the issue whether from the totality of the averments in the parties pleadings and the documents already frontloaded, the court can determine the suit without oral evidence.

The learned trial judge at pages 441 to 442 of the record held thus:-
“I therefore find from an examination of all the front loaded processes filed herein that this is a matter that can easily be determined by this court at this stage and that it is in the interest of the justice of this matter for this court to do so. I am of the considered view that there is no ambiguity or disparity in the evidence before me, as there is a clear admission mode by the claimants in regard to monies still owed to the defendants, there is therefore no reason why this matter should not be determined now by way of case stated. I therefore resolve this issue also in favour of the Defendants.”
The learned trial judge seemed to have based her decision to terminate the suit at the pretrial stage on the premise that the matter has been pending since 1994 and as such long overdue for conclusion as well as the presumed admission in the appellants pleadings (which I had earlier on found not be admission as required by law). There also seemed not to be a clear cut opinion of the learned trial judge on questions of law raised in the special case, before trial but a general appraisal of the pleadings of the parties, the frontloaded documents and statement on oath of the appellants witness which no doubt constitute evidence. This to my mind went beyond the ambit of a special case by consent as envisaged by Order 28 Rule 1 which is meant to deal with questions of law arising from the case before the court simpliciter and did not confer on the Lower Court the licence to embark on the resolution of issues that ought to be properly dealt with in the trial of the suit through evidence with a view to ascertaining the proper right of the parties. It is a specie of case stated for the opinion of the judge while awaiting the trial proper. The learned trial adopted a short cut approach to attain justice without regard to due process of law which demands that every issue in contention shall be properly addressed and the contending parties given the opportunity to properly ventilate their grievances with the sole aim of avoiding miscarriage of justice. The learned trial judge had also relied on the provisions of Order 19 Rule 4 of the High Court of Lagos State (Civil procedure) Rules 2004 and section 123 of the Evidence Act 2011 to enter judgment against the appellants on the wrong premise that they had admitted indebtedness in their pleadings. Having thus earlier found that there was no legally sustainable admission in the appellants amended statement of claim, it follows therefore that the aforementioned provisions does not arise or apply to this case.

Miscarriage of justice is defined in Black’s Law Dictionary 9th Edition at page 1088 as a grossly unfair outcome in a judicial proceeding. The act of the learned trial judge in entering judgment against the appellant who were claimants in the Lower Court on the basis of a presumed admission of indebtedness without due regard to the proper application of Order 28 Rule 1 and an opportunity for the appellants to prove their case at the trial is no doubt a grossly unfair outcome of a judicial proceeding.

In this regard I resolve issues 2, 3 and 4 in favour of the appellants. With the resolution of the aforesaid issues which properly determines the appeal in favour of the appellant, to further embark on the consideration of issue 1 and 5 will amount to nothing but unnecessary academic exercise.

On the whole it is my finding and I so hold that this appeal succeeds and it is hereby allowed.
The judgment of the High Court of Lagos State delivered on the 25th January 2013 by Hon. Justice A. A. Phillips Mrs. in suit No. LD/5318/1994 is hereby set aside.

The said suit No.LD/5318/1994 is hereby ordered to be remitted back to the Chief Judge of Lagos State for reassignment to another judge for accelerated trial on the merits.

Parties to bear their costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the Judgment just delivered by my learned brother S. C. Oseji, JCA. I am in total agreement with the reasoning and final conclusions. I agree that this case had suffered a lot of delay in the prosecution of same. However, a case shall not be terminated at pre-trial stage of the proceedings sacrificing justice in the guise of expeditious trial. Speed and justice must go hand in hand.

Pleading is not evidence and so cannot be construed as such in the determination of the merit or otherwise of a case. A party who seeks judgment must be allowed to produce adequate credible evidence in support of his pleadings. In the suit in the trial Court this was not so. The suit was terminated of pre-trial stage, thereby denying the parties of their right to be heard in furtherance of the proof of their case. For this and the more comprehensive reasoning in the lead Judgment, I also allow this appeal. I abide by all the orders contained in the lead Judgment.

JAMILU YAMMAMA TUKUR, J.C.A.: I had read before now the draft of the judgment of this Court, just delivered by my lord Oseji, JCA, I am in complete agreement with the reasoning and conclusion contained therein that the appeal has merit and should be allowed. It is accordingly allowed and the judgment of the Court below in Suit No LD/5315/1994 is hereby set aside.
I abide by the consequential orders contained in the lead judgment including that as to costs.

Appearances

O. FabunmiFor Appellant

AND

Kayode Ajukigbe for 1st Respondent.
O. K. Akerele for 2nd, 3rd & 5th Respondents.
Y. A. Adeshina with O. K. Popoola and O. I. Chukwumereje for 4th Respondent.For Respondent

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