➥ CASE SUMMARY OF:
African Continental Bank Ltd. (ACB) v. Alhaji Umaru Gwagwada (SC.26/1990, 29 APR 1994)
by Branham Chima.
➥ ISSUES RAISED
Tendering of notice to defend;
Tendering of admission.
➥ CASE FACT/HISTORY
The claim which was for the sum of ₦5,377,374.20 being the principal and interest due on the money allegedly lent to the defendant by the plaintiff at 7% interest was first put on the undefended list by virtue of Order 3 Rule 8 of High Court of Benue state (Civil Procedure) Rules 1978. The defendant through his counsel and in accordance with Order 3 Rule 10 of the same Rules filed a notice of Intention to Defend the suit. The Notice was dated 17th August, 1987. It was served on the plaintiff. There was an affidavit in support. According to the affidavit the defendant deposed he was reliably informed by officials of the plaintiff/Bank at Idumota branch Lagos and the manager of the Plaintiff/Bank at Makurdi that the plaintiff had instituted an action against him for the said sum of ₦5,377,374.20 being money allegedly lent to him by the plaintiff. He denied the indebtedness and gave a breakdown of his various lodgments in the branches of the plaintiff/Bank in Makurdi.
This appeal arose out of the ruling by Puusu. J. when the learned trial Judge on 10th February, 1988 ordered certain documents sought to be tendered by the appellant (hereinafter referred to as the plaintiff) on the objection raised by the respondent (hereinafter referred to as the defendant) be marked “tendered and rejected”. Any document so marked in the course of any proceedings can neither be tendered again nor relied upon either in the course of address by counsel nor commented upon by the trial judge. The importance or relevance of such a document marked “tendered and rejected” invariably gave rise to the appeal to the Court of Appeal.
The learned counsel for the plaintiff gave oral notice of appeal and sought leave to appeal. The appeal was heard. On 16th March, 1989, the Court of Appeal Jos, dismissed the appeal. It is against that judgment that the plaintiff filed Notice of appeal to this court.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
I. Whether having regard to the fact of this case, section 34(1) Evidence Act is applicable to an adverse party who seeks to tender a deponent’s previous affidavit when that affidavit was used by the other party to the dispute?
RESOLUTION:
[ESTOPPEL WAS WRONGLY IMPORTED INTO THE CASE; ESTOPPEL DOES NOT ARISE; NOTICE OF INTENTION TO DEFEND IS ADMISSIBLE
‘Overlooks the simple rule of pleading that facts, and not evidence, are to be pleaded. An admission as defined under s. 19 of the Evidence Act is “a statement, oral, or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons…” does not cease to be an admission on the ground that it is not pleaded. If however the party relying on it wishes to rely on it as an estoppel, the issue of pleading will be relevant. At the stage the Notice of intention to defend and all its annexures were about to be tendered, it was to establish paragraphs 17(b) and (d) of the Statement of Claim. I find it difficult how the lower court accepted the relevance of section 34(1) of the Evidence Act to the issue before the court at that stage of the trial. It was quite irrelevant. It was a technical manoeuvre to confuse the court at that stage. Anxiety of the defendant in respect of the documents should have been allayed if counsel had adverted to section 26 of the Evidence Act:- “Admissions are not conclusive proof of the matters admitted but they may operate as estoppel….”’
‘I agree with the plaintiff’s counsel where in his brief he said:- “4.9 The appellants submit that the question of estoppel was wrongly imported by the court below into this case. Estoppel does not, in any manner whatsoever, come into play here. All the appellants sought to do was prove that the respondent knew about, and indeed authorised the opening of, current accounts numbers 12540 and 1372, just as it had pleaded in paragraph 17 of the Statement of Claim.”’
THE DEPONENT’S AFFIDAVIT WAS AN ADMISSION AND WAS RELEVANT
‘In my respectful view, as the disputed documents were put in evidence as documents served on the plaintiff by the defendant in the course of the proceedings they are clearly admissible in evidence. It is significant to note that they already form part of the record of the trial court in the case. It cannot be denied that they are relevant to the issues in controversy between the parties. And in so far as the documents contain admissions by the defendants they are equally admissible under sections 19-26 inclusive of the Evidence Act, though they do not constitute conclusive proof of the matters admitted- Ajide v. Kelani (supra). In considering the worth of an admission, the court must take into account the circumstances under which it was made and the weight to be attached to it- see Seismograph Service (Nig.) Ltd v. Eyuafe (1976) 9-10 S.C. 135; Okai v. Ayika II. 12 WACA 31, 32. It has been held that any statement made by a person on oath may be used against him as an admission:- Iga and Ors. v. Amakiri and Ors (1976) 11 S.C.1; Ex-parte Hall, in re Cooper (1881-1882) 19 Ch.D 580, where it was held (and I agree with the decision) that a deposition of a witness, taken in the Court of Bankruptcy for one purpose, and filed, may be used against him as an admission in any other proceeding in the matter of the same bankruptcy.’]
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✓ DECISION:
‘In sum, I will allow this appeal, set aside the judgment of the lower court dated 16th day of March, 1989 which confirmed the ruling of the High Court dated 10th February, 1988. I hereby order that the Notice of Intention to defend together with all its annexures be admitted as Exhibit in the trial. Costs of this appeal against the respondent are assessed at ₦150.00 in the lower court and ₦1,000.00 in this court.’
➥ FURTHER DICTA:
⦿ PARTY WILL NOT BE ALLOWED TO LEAD EVIDENCE ON MATTER NOT PLEADED
The elementary rule of pleading is that a party shall plead facts which he propose to rely upon in order to establish his own case. It is now trite law that a party will not be allowed to lead evidence in respect of facts not pleaded; or to lead evidence contrary to his pleading. The sole purpose of pleading is to ensure that the parties to the case know the case they will meet at the trial, to obviate element of surprise. Pleading saves time and brings out clearly the issues in the case. — Olatawura JSC.
⦿ SIGNIFICANCE OF NOTICE OF INTENTION TO DEFEND
What is the significance of the Notice of Intention to Defend filed by the defendant? I will remind myself once again that the case was originally put on the undefended list. The significance of the Notice to defend is borne out by the affidavit accompanying the Notice that the grounds for asking to be heard in defence are not frivolous, vague or designed to delay the trial of the action and must show that there is a dispute between the parties: Olubusola stores v. Standard Bank Nigeria Ltd. (1975) NSCC. 137, (1975) 4 S.C. 51; John Holt and Co (Liverpool) Ltd. v. Fajemirokun (1961) All NLR. 513. When the Judge is satisfied that there is a prima facie defence then leave is granted to defend and then pleadings may be ordered. — Olatawura JSC.
⦿ ADMISSION IS NOT IPSO FACTO TRUTH OF THE CASE
I may repeat that an admission does not necessarily mean proof of what is contained therein. An admission relied upon by any party is not ipso facto accepted to be the truth by the court once it is not in accordance with the truth of the case. It is the duty of the court to decide the case in accordance with the facts pleaded and proved to be true. — Olatawura JSC.
➥ PARTIES:
⦿ APPELLANT(S)
African Continental Bank Ltd.
⦿ RESPONDENT(S)
Alhaji Umaru Gwagwada
➥ LEAD JUDGEMENT DELIVERED BY:
Olatawura, JSC
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Mr. Ekpo.
⦿ FOR THE RESPONDENT(S)
Mr. Olanrewaju.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
