ZEE AGRO LIVESTOCK PRODUCT LTD v. SPRINGFIELD AGRO LTD (2022)

ZEE AGRO LIVESTOCK PRODUCT LTD v. SPRINGFIELD AGRO LTD

(2022)LCN/16665(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/YL/83/2020

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Muhammed Lawal Abubakar Justice of the Court of Appeal

Between

ZEE AGRO LIVESTOCK PRODUCT LIMITED APPELANT(S)

And

SPRINGFIELD AGRO LIMITED RESPONDENT(S)

RATIO

THE PURPOSE OF A SUMMARY JUDGEMENT

The Supreme Court in the case of LEWIS v. UBA (2016) LPELR-40661(SC) (Pp. 21-22, Paras. E-A) Per KEKERE-EKUN, J.S.C., succinctly explained the reason for the summary judgment procedure thus:
“The summary judgment procedure is for disposing of cases which are virtually uncontested with dispatch. It applies to cases where there can be no reasonable doubt that the plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty. See U.B.A. Plc Vs Jargaba (2007) 11 NWLR (Pt. 1045) 247 AT 270 F-H per I.T. Muhammad, JSC; Sodipo Vs Lemninkainen OY (1986) 1 NWLR (Pt. 15) 230: Adebisi Macgregor Ass. Ltd. Vs N.M.B. Ltd (1996) 2 NWLR (Pt. 431) 378; (1996) 2 SCNJ 72 AT 81.”

See UZAKAH v. OKEKE (2017) LPELR-43445(CA); ADEBOYE v. BAJE (2016) LPELR-40578(CA); and DIGITAL SECURITY TECHNOLOGY LTD & ANOR v. ANDI (2017) LPELR-43446(CA). PER TUKUR, J.C.A.

THE EFFECT OF FRUSTRATION ON THE PERFORMANCE OF A CONTRACT

Frustration occurs in situations where after the formation of a contract, events occur which make performance of the contract impossible, illegal, or something radically different from that which was in contemplation of the parties at the time they entered it. The effect of frustration is that both parties are discharged of their obligations under the contract.
See AG CROSS RIVERS STATE V. AG FEDERATION & ANOR (2012) 16 NWLR (PT.1327) 425; AND NWAOLISAH V. NWABUFOH (2011) 14 NWLR (PT. 1268) 60.

The position of the law with regards to where a person expressly admits owing another a sum of money is clear, and is to the effect that judgment may be entered on the sum so admitted. See: SWISS PHARMA (NIG) LTD v. MARSH-OKORO & ORS (2018) LPELR-46562(CA); and IFEMESIA v. ECOBANK (2018) LPELR-46589(CA). The foregoing is an offshoot of the hallowed principle of law which states that where a person makes an admission of facts against his interest, then no other evidence is required to prove such facts. Thus the popular legal maxim: facts admitted, need no proof. See MBA v. MBA (2018) LPELR-44295(SC) Per ARIWOOLA, J.S.C. (Pp. 24-25, Paras. F-E); ALHAJI HASSAN BELLO & SONS LTD & ANOR v. ZENITH BANK (2018) LPELR-43792(CA); and MAI-KIRI v. YAHAYA (2018) LPELR-46595(CA). PER TUKUR, J.C.A.

WHETHER OR NOT IT IS EVERY ADMISSION THAT SUFFICIES TO BIND A PARTY

It isn’t every sort of admission that suffices to bind a party. This Court gave a guide on the specie of admission of facts which would establish those facts without the need for further proof. In the case of MOUSSALLATI & ORS v. KNIGHT FRANK ESTATE AGENCY (2017) LPELR-42893(CA) (Pp 23 – 26 Paras E – B), Per YARGATA BYENCHIT NIMPAR, JCA stated thus:
“A judgment can be entered on admission but the kind of admission that will bind the parties must be clear, unequivocal and total. Admission is not a game of chance. It is not subject to speculation or conjecture. It is a statement orally made or in writing suggesting a clear and unequivocal inference as to any fact in issue or relevant fact unfavorable to the conclusion contended by the person in whom or on whose behalf the statement is made, see ORJI V DORJI TEXTILES MILL (NIG) LTD (2009) 12 SCNJ 251 and TAIWO V ADEGBORO (2011) 5 SCNJ 125 where the Apex Court reiterated the principle and held that: “Judicial admissions are conclusive. That is to say that where a party agrees to a fact in issue, it is no longer necessary to prove that fact. In effect, after an admission, no further dispute on the fact admitted should be entertained by the Court. This is the strongest proof of the fact in issue.” However, the Court in ANANSON FARMS V NAL MERCHANT BANK (1994) 3 NWLR (PT.331) 241 at 257 held that it is not every admission that can qualify as basis for judgment, the admission that can ground a judgment is an admission that must be unequivocal and must directly touch on or relate to the reliefs sought in the matter.”
See: FUTMINA & ORS v. OLUTAYO (2017) LPELR-43827(SC); BARAU & ORS v. CONSOLIDATED TIN MINES LTD & ORS (2019) LPELR-46806(CA); and ANYALEWECHI v. LUFTHANSA GERMAN AIRLINES (2021) LPELR-55213(CA). PER TUKUR, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Taraba State in SUIT NO: TRSW/10/2020 delivered on 22nd May, 2020 by Honourable Justice J.D Yakubu, wherein the Court ruled in favour of the Respondent.

The material facts of the case leading to this appeal is that the Respondent acting on the belief that the Appellant was indebted to it instituted an action before the lower Court via a writ of summons dated 23rd March, 2020 and filed same date, along with other requisite processes. Desirous of obtaining summary judgment, the Respondent accompanied its originating processes with an application via Motion on Notice pursuant to Order 22, Rules 1, 2, 3, 4 of the lower Court`s rules, dated and filed on 23rd March, 2020, supported by a 15 paragraph affidavit deposed to by Titilayo Joy Ada, seeking the following:
1. An Order of this Hon. Court for summary judgment in Suit No. TRSW/10/2020.
2. A Declaration by the Hon. Court that the Defendant owes the Plaintiff an outstanding balance of N48,967,000.00 (Forty Eight Million, Nine Hundred and Sixty Seven Thousand Naira) only being the balance of the money owed to the Plaintiff for products supplied to the Defendant under the 2014-2015 Season of the Growth Enhancement Support for Farmers Scheme of the Federal Government.
3. An Order of this Hon. Court directing the Defendant to forthwith pay the Plaintiff the balance of N48,967,000.00 (Forty Eight Million, Nine Hundred and Sixty Seven Thousand Naira) only being the balance of the money owed to the Plaintiff for products supplied to the Defendant under the 2014-2015 Season of the Growth Enhancement Support for Farmers Scheme of the Federal Government.
4. An Order of this Hon. Court directing the Defendant to pay statutory interest of 10% per annum on the judgment sum from the date of judgment until fully liquidated.
5. An Order of this Hon. Court entering judgment summarily for the Plaintiff.
6. An Order of this Hon. Court declaring that the Defendant has no defence to this Suit.
7. And for such further order(s) as this Hon. Court may deem fit to make in the circumstances.

The grounds upon which the application was brought were stated thus:
1. That the Defendant has no defence to Suit No. TRSW/10/2020.

2. That there is a prima facie case for liquidated money demand against the Defendant.

In response, the Appellant filed a statement of defence with other required processes and also filed a counter affidavit in opposition to the Respondent’s application for summary judgment dated 22nd April, 2020. The Respondent thereafter filed a reply on point of law dated 20th April, 2020.

The application for summary judgment was heard and the lower Court in a ruling delivered on 22nd May, 2020, held that the Defendant had admitted owing the sum claimed and has no good defence to the Respondent’s claim, and entered judgment in favour of the Respondent. The Court consequently granted prayers 3 and 4.

Dissatisfied, the Appellant appealed the ruling via Notice of Appeal dated 30th June, 2020 and filed on 3rd July, 2020, with 6 grounds of appeal.
The Appellant’s Brief of Argument is dated 15th January, 2021 and filed on 18th January, 2021, but deemed properly filed on 18th March, 2021.

Appellant’s counsel formulated three issues for determination to wit:
1. Whether the learned trial Judge was right to ignore the defences of frustration and non-capturing of some amounts raised, pleaded and supported by evidence and thereby held that the Appellant processes did not disclose any good defence. (Grounds 3 & 4)
2. Whether the failure of the trial Court to evaluate the documentary evidence placed before it occasioned a miscarriage of justice that will warrant the appellate Court to step in and properly evaluate them in the interest of justice. (Ground 2)
3. Whether the trial Court was right to rely on the unaudited account in the email communication of 5th May, 2015 between parties as an admission in the award of N48,967,000.00 only claimed despite parties subsequent account reconciliation meetings, denials and without seeing the contract terms. (Grounds 1, 5 & 6)

The Respondent’s Brief of Argument is dated 11th November, 2021 and filed on 15th November, 2021. Respondent’s counsel also formulated three issues for determination to wit:
1. Whether the learned trial Judge was wrong to have decided this case by way of summary judgment and refusing to enter into full trial to take the defence of the Appellant, given the fact that the Appellant’s processes do not disclose a good defence to the Respondent’s case.
2. Whether the learned trial Judge wrongly refused the evaluation of the documentary evidence placed before him, having recourse to summary judgment in the absence of good defence from the defendant/appellant.
3. Whether the learned trial Judge wrongly relied on the email communication of 5th May, 2015.

A careful examination of the facts of the case at trial and the issues raised by both parties herein reveals that one pertinent issue calls for determination to wit:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE DECIDED THE CASE BY WAY OF SUMMARY JUDGMENT AND TO HAVE AWARDED THE RESPONDENT THE SUM CLAIMED.

Learned counsel for the Appellant argued that the only determinant under the Rule to grant the Appellant leave to defend this suit is the presence of a good defence in its processes filed pursuant to Order 22 Rule 4 of the rules of the trial Court and since Appellant via its pleadings and processes, denied the sum claimed by the Respondent and raised the defence of frustration to the sum it admitted, the trial Court ought not to have decided the suit via summary judgment procedure as it did. Counsel posited that the Appellant clearly pleaded frustration as a defence by pleading that the transaction was predicated upon payment in 2015, which payment was suspended and payment delayed due to the 2015 elections, an event that led to accumulation of 16.5% interest p.a amounting to N66,000,000, which interest led to the Appellant’s closure and that between 2013-2014, Wukari where the Appellant’s head office, shops and warehouses are located witnessed incessant crisis that ravaged the goods, subject matter of the transaction and that the lower Court was wrong to have failed to consider the Appellant’s defenses.

He relied on: Order 22 Rule 4, 5(1) of the High Court of Taraba (Civil Procedure) Rules 2011; Thor Ltd v. FCMB (2003) Vol.94 LRCN, pg 194 AT 202 EE, R1; Total (Nig) Plc v. Akinpelu (2004) 17 NWLR (Pt 903) pg.509 AT 523-524 paras E-A R.2; AG Cross Rivers State v. AGF & Anor (2012) LPELR-9335(SC) page 57 paras B-E; Nwaolisah v. Nwabufoh (2011) LPELR-2115 (SC) pp 35-36; and Opuiyo v. Omoniwari (2008) Vol.156 LRCN pg.229 AT 239 R.2.

Learned counsel further argued that contrary to the findings of the trial Court, the Appellant did not admit the judgment sum, rather it denied it and gave reasons for its denial. Thus, it had joined issues with the Respondent, which issues the learned trial Judge ought to allow go to full trial for a full determination thereof.

Counsel submitted that the failure of the trial Court to evaluate the four Exhibits presented by the Appellant at trial, and that is Exhibits A-D, led to a perverse finding that occasioned a miscarriage of justice which behooves this Court to step in. Counsel predicated his assertion on the fact that a proper evaluation of the Exhibits reveals that the contract between the parties was not an ordinary purchase and supply of fertilizers contract, but part of a Federal Government scheme with the understanding that the Respondent will be paid by the Appellant when the Federal Government pays the Appellant, an event that did not occur as a result of change in government; and that a proper evaluation of Exhibits C and D would reveal that the Respondent confirmed the stock of fertilizers, subject matter of the contract between the parties at Appellant’s warehouse, took delivery of the sound ones and promised to come for the damaged ones and that there were 2,228 bags of NKP fertilizers worth N11,585,600.00 which was unaccounted for by Representatives of both parties. Counsel posited that a proper evaluation of the exhibits would have resulted in the deduction of the sum of N11,447,200 (product of N9,861,600.00 and N11,585,600k) from the sum claimed by the Respondent and awarded by the trial Court.

He relied on: Bunge v. Gov. of Rivers State (2006) 12 NWLR (Pt.995) pg 573; UBA Plc v. BTL Ind. Ltd at 137 paras C-E, R.18; Akintola v. Balogun (2000) 1 NWLR (Pt.642) pg.532; Gaji v. Paye (2003) 8 NWLR (Pt.823) pg. 583 AT pp601-602 paras H-C R.13.

Counsel argued that a look at the email of 5th May, 2015, would reveal that its contents does not amount to an admission of the sum of N48,967,000.00, but was actually a denial of the sum based on deductions of various sums pointed out in the same mail, such as payment difference of N4,028,400.00 only and the value of 2228 bags of NPK. Counsel pointed out that after the email was received, Appellant reconciled its account on 1st September, 2015 as captured in Exhibit D by enumerating all the points raised in its 5th May, 2015 email and sent it to the Respondent; parties met physically to reconcile their accounts and Appellant’s Exhibit C was made and admitted by the Respondent on 16th August, 2019; on 21st June, 2019, the Respondent wrote a demand notice for the sum of N48,967,000.00 to the Appellant, which the Appellant denied via a reply dated 23rd July, 2019 and parties met in Respondent’s office in Abuja, where the Respondent demanded for N32,293,200.00 after deducting stock taken by Exhibit C but Appellant insisted on N20,707,600.00, with a plea of total waiver due to frustration.

He relied on Orji v. Dorji Text. Mills (Nig.) Ltd & Ors (2010) Vol. 182 LRCN pg 129 AT 158PU R..10; Zenon pet. & Gas v. Idrisiyya Ltd (2006) 8 NWLR (Pt.982) pg.221 AT 248 paras D-F; Trade Bank Plc v. Chami (2003) 13 NWLR (Pt.836) pg158, 219-220 paras E-A R.10.

Counsel submitted that the trial Court was wrong to have granted the amount claimed by the Respondent under the summary judgment procedure, as the terms of the contract under which the Respondent claimed were not properly presented before the Court; the sum granted was not a liquidated sum properly so called; and failure to allow oral evidence in the face of disputed pleadings and specific denials with special defences or seeing the contract terms is an infraction of the Appellant’s fundamental right to fair hearing.

On the other hand, learned counsel for the Respondent argued that the defence of frustration raised by the Appellant does not in any way dispute the material fact of the case and is not a requisite consideration to be granted leave to defend in a summary judgment procedure, unless it will satisfy the Court that it is a good defence which deals with the material facts of the case and not one intended to delay and frustrate the Plaintiff. He posited that the trial Court was right to enter judgment in favour of the Respondent on the basis that the Appellant had no good defence, because election being a routine occurrence cannot be held to be a frustrating event, thus the defence raised by the Appellant was a sham aimed at shifting the date for it to meet its obligations.

He relied on: Order 22 5(2) of the rules of the trial Court; Folk Synthesis Ltd v. Gapuna (UK) Ltd (2019) ALL FWLR (Pt.974) 574 CA; Agbabiaka v. FBN (2009) WRN 1 SC; AG Cross Rivers State v. AGF Federation (2012) ALL FWLR (Pt.646) 408 SC; and UBA Plc v. Aribisala (2016) ALL FWLR (Pt.835) 349 CA.

Learned counsel argued that contrary to the submission of Appellant’s counsel, the documentary evidence tendered by the Appellant was evaluated by the trial Judge, as seen in the Court’s finding that the Appellant does not have a good defence, a decision reached after reference to the Appellant’s statement of defence and the documents accompanying same. Counsel pointed out that what Appellant’s counsel is seeking for is proof of the contents of the documents it tendered, which is not obtainable under summary judgment procedure.
He relied on: NU Metro nig Ltd v. Tradex SRL (2019) ALL FWLR (Pt.996) 1035 CA.

Counsel submitted that the trial Court was right to have relied on the email communication of 5th May, 2015 between parties as Courts are allowed to admit computer generated evidence which covers email communication and the assertion by the Appellant that the account as presented by the Respondent was not reconciled does not hold water as the Appellant failed to present its own account of the transaction.

He relied on: Sections 84 and 258 of the Evidence Act 2011; Impact Solution Ltd & Anor v. International Breweries Plc (2018) LPELR-4544(CA); and Continental Sales Ltd v. R. Shipping Inc (2012) ALL FWLR (Pt.630) 1377 CA.

RESOLUTION OF THE ISSUE
The procedure under which the Respondent got judgment in the way it did is not strange, and as rightly posited by both counsel, stems from the provisions of the lower Court’s Rules encapsulated in Order 22 thereof. Summary judgment under the said rules is available in actions where the Plaintiff believes that the defendant has no defense to his claim. The Plaintiff is to bring in addition to its originating processes, an application for summary judgment by motion on notice; an affidavit in support of the application stating the grounds of his belief, and a written address. Upon service on the Defendant, if he intends to defend the action, he is to file his Notice of intention to defend statement of defence and a written address opposing the entry of summary judgment in the Claimant’s favour. Flowing from the rules, on hearing of the application, the Court can make any of the following orders:
i. Grant leave to the Defendant to defend the action where it appears to the Judge that the Defendant has a good defence Order 22 Rule 5(1).
ii. Enter judgment for the Plaintiff where it appears that the Defendant has no good defence (Order 22 Rule 5 (2).
iii. Where there are different/several claims, issues and it appears that the Defendant has a good defense to part of the claim, the Court is to grant leave to defend for that part, and enter judgment for the other party Order 22 Rule 5 (3).
The Supreme Court in the case of LEWIS v. UBA (2016) LPELR-40661(SC) (Pp. 21-22, Paras. E-A) Per KEKERE-EKUN, J.S.C., succinctly explained the reason for the summary judgment procedure thus:
“The summary judgment procedure is for disposing of cases which are virtually uncontested with dispatch. It applies to cases where there can be no reasonable doubt that the plaintiff is entitled to judgment and where it is inexpedient to allow a defendant to defend for mere purposes of delay. It is for the plain and straight forward, not for the devious and crafty. See U.B.A. Plc Vs Jargaba (2007) 11 NWLR (Pt. 1045) 247 AT 270 F-H per I.T. Muhammad, JSC; Sodipo Vs Lemninkainen OY (1986) 1 NWLR (Pt. 15) 230: Adebisi Macgregor Ass. Ltd. Vs N.M.B. Ltd (1996) 2 NWLR (Pt. 431) 378; (1996) 2 SCNJ 72 AT 81.”

See UZAKAH v. OKEKE (2017) LPELR-43445(CA); ADEBOYE v. BAJE (2016) LPELR-40578(CA); and DIGITAL SECURITY TECHNOLOGY LTD & ANOR v. ANDI (2017) LPELR-43446(CA).

Appellant’s chief grouse against the lower Court’s decision is that the Court refused to take note of Appellant’s defence to the amount claimed by the Respondent and granted by the learned trial Judge. The question that necessarily follows this assertion by the Appellant is whether such defence: that is frustration of the contract between the parties, by the non occurrence of the event upon which the contract was predicated and the alleged destruction of the subject matter of the transaction, constitutes a good defence that would operate in the Appellant’s favour, in view of the summary judgment procedure? The answer is clearly in the negative and I agree with the learned trial Judge`s conclusion that the reasons given by the Appellant may constitute hardship, but do not amount to total destruction of the subject matter that would constitute frustration, as payments were still made by the Federal Government, but only delayed. To hold a contract frustrated on the basis of delayed payments and subsequent accumulation of interest would be absurd indeed.

Frustration occurs in situations where after the formation of a contract, events occur which make performance of the contract impossible, illegal, or something radically different from that which was in contemplation of the parties at the time they entered it. The effect of frustration is that both parties are discharged of their obligations under the contract.
See AG CROSS RIVERS STATE V. AG FEDERATION & ANOR (2012) 16 NWLR (PT.1327) 425; AND NWAOLISAH V. NWABUFOH (2011) 14 NWLR (PT. 1268) 60.

The position of the law with regards to where a person expressly admits owing another a sum of money is clear, and is to the effect that judgment may be entered on the sum so admitted. See: SWISS PHARMA (NIG) LTD v. MARSH-OKORO & ORS (2018) LPELR-46562(CA); and IFEMESIA v. ECOBANK (2018) LPELR-46589(CA). The foregoing is an offshoot of the hallowed principle of law which states that where a person makes an admission of facts against his interest, then no other evidence is required to prove such facts. Thus the popular legal maxim: facts admitted, need no proof. See MBA v. MBA (2018) LPELR-44295(SC) Per ARIWOOLA, J.S.C. (Pp. 24-25, Paras. F-E); ALHAJI HASSAN BELLO & SONS LTD & ANOR v. ZENITH BANK (2018) LPELR-43792(CA); and MAI-KIRI v. YAHAYA (2018) LPELR-46595(CA).

It isn’t every sort of admission that suffices to bind a party. This Court gave a guide on the specie of admission of facts which would establish those facts without the need for further proof. In the case of MOUSSALLATI & ORS v. KNIGHT FRANK ESTATE AGENCY (2017) LPELR-42893(CA) (Pp 23 – 26 Paras E – B), Per YARGATA BYENCHIT NIMPAR, JCA stated thus:
“A judgment can be entered on admission but the kind of admission that will bind the parties must be clear, unequivocal and total. Admission is not a game of chance. It is not subject to speculation or conjecture. It is a statement orally made or in writing suggesting a clear and unequivocal inference as to any fact in issue or relevant fact unfavorable to the conclusion contended by the person in whom or on whose behalf the statement is made, see ORJI V DORJI TEXTILES MILL (NIG) LTD (2009) 12 SCNJ 251 and TAIWO V ADEGBORO (2011) 5 SCNJ 125 where the Apex Court reiterated the principle and held that: “Judicial admissions are conclusive. That is to say that where a party agrees to a fact in issue, it is no longer necessary to prove that fact. In effect, after an admission, no further dispute on the fact admitted should be entertained by the Court. This is the strongest proof of the fact in issue.” However, the Court in ANANSON FARMS V NAL MERCHANT BANK (1994) 3 NWLR (PT.331) 241 at 257 held that it is not every admission that can qualify as basis for judgment, the admission that can ground a judgment is an admission that must be unequivocal and must directly touch on or relate to the reliefs sought in the matter.”
See: FUTMINA & ORS v. OLUTAYO (2017) LPELR-43827(SC); BARAU & ORS v. CONSOLIDATED TIN MINES LTD & ORS (2019) LPELR-46806(CA); and ANYALEWECHI v. LUFTHANSA GERMAN AIRLINES (2021) LPELR-55213(CA).

A careful consideration of the processes before the lower Court however reveals that the Appellant never admitted the sum of N48,967,000.00 (Forty Eight Million, Nine Hundred and Sixty Seven Naira) granted by the trial Court, rather it admitted the sum of N20,707,600.00 (Twenty Million, Seven Hundred and Seven Thousand, Six Hundred Naira) and argued unsuccessfully before the lower Court that such admission be tempered by the application of the doctrine of frustration. In paragraph 11 and 17 of the statement of defence filed by the Appellant and which was reproduced in the ruling of the lower Court, it is clear that the Appellant in the lower Court joined issues with the Respondent with respect to the remaining amount claimed by the plaintiff outside of the sum of N20,707,600.00 it admitted owing the Plaintiff.

Adverting to the email correspondence between the parties relied upon by the learned trial judge in coming to the conclusion that the Appellant has no defence to the action. It is clear to me that the contents therein disclosed areas of differences between the parties with regard to actual amount owed by the defendant. At this stage the proper order which the lower Court ought to have made is to enter judgment in the sum of N20,707,600.00 (Twenty Million, Seven Hundred and Seven Thousand, Six Hundred Naira), the amount admitted by the Appellant, and proceed to try the balance by transferring the suit to the general cause list as envisaged by the provisions of Order 22 of the Civil Procedure Rules of Taraba State 2011. The learned trial judge was on firm ground when he entered judgment for the Plaintiff in the sum of N20,707,600.00 admitted by the Defendant as shown in his judgment at page 110-111 of the Record. He however in my view overstepped his bounds when he proceeded to also summarily try the other parts of the claim without affording parties the opportunity of participating by inviting witnesses to testify on the claims and issues raised in the statement of claim, defence and the other materials placed before the Court.

The learned trial judge was also clearly wrong in coming to the conclusion that the denial by the defendant regarding the remaining claim is not sufficient to answer the claim and entitle the defendant to defend that part of the claim. At that stage of the proceedings, all that the learned trial judge needed to be convinced was the probability of a bona fide defence, and not necessarily that the defence will succeed upon a full trial.
See Wemabod Estate Ltd v. Osinuga (1994) LPELR- 23169 (CA); Akpan v. Ubong (2013) LPELR 20418 (CA) Madalla v. Gusau (2014) LPELR – 22899 (CA).

It is against this background that I resolve the sole issue in favour of the Appellant and allow the appeal in part. The ruling of the lower Court is hereby set aside save for the part of the ruling where judgment was entered in favour of the Respondent in the sum N20,707,600.00 which the Appellant admitted before the lower Court. The lower Court is hereby directed to transfer to the general cause list the remaining disputed claims for trial on the merit.
Parties to bear their respective costs.

CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the leading judgment delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. I am in agreement with the reasoning and conclusions of his lordship. My learned brother has exhaustively resolved the sole issue that arose in the appeal adequately and/or comprehensively.

However, I am constrained to add a few words that from the printed records of appeal and a thorough glance at the processes filed at the trial Court, which reveals that the Appellant never admitted the sum of N48,967,000.00. (Forty Eight Million, Nine Hundred and Sixty Seven Thousand Naira) granted by the trial Court, rather the Appellant admitted the sum of N20,707,600.00 (Twenty Million Seven Hundred and Seven Thousand Six Hundred Naira). It is clear that the Appellant has expressly agreed that he owed the Respondent the said sum and it is trite that facts admitted, or facts not disputed, need no further proof. They are in law, taken as proved and/or established. See, AKINYEDE OLAIYA VS. THE STATE LER (2017) SC. 564 2014; ODEBUNMI & ANOR VS. OLADIMEJI & ORS. (2012) LPELR – 15419 (CA); OWENA MASS TRANSPORTATION CO. LTD. VS. OKONOGBO (2018) LPELR – 45221 (CA) and SECTION 123 OF THE EVIDENCE ACT, 2011.

I join my voice to that of my learned brother that the proper order which the lower Court ought to have made, is to enter judgment in the sum of N20,707,600.00 (Twenty Million Seven Hundred and Seven Thousand Six Hundred Naira) admitted by the Appellant and proceed to trial over the balance by transferring the suit to the general cause list in line with the Rules of the trial Court.

It is also my view that the sole issue for determination is partly resolved in favour of the Appellant. The ruling of the lower Court is hereby set aside save for the part of the ruling where judgment was entered in favour of the Respondent in the sum of N20,707,600.00 (Twenty Million Seven Hundred and Seven Thousand Six Hundred Naira) expressly admitted by the Appellant.

I abide by the order made by my learned brother in the leading judgment that the lower Court is directed to transfer the remaining disputed claims to the general cause list for trial on the merit and parties to bear their respective costs.

MUHAMMED LAWAL ABUBAKAR, J.C.A.: I have the opportunity of reading the draft judgment just delivered by my learned brother, JAMILU YAMMAMA TUKUR, JCA. I agree with the resolution of issues canvassed. The Appeal is allowed in part. The lower Court should transfer to the general cause list the remaining disputed claims for trial on merit.