IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 14th of February, 2014

CA/L/408/2009

BETWEEN

ALHAJI MOHAMMED MAIYAKI ALI   ..........   APPELLANT

V

NIGERIAN DEPOSIT INSURANCE CORPORATION [NDIC]   .........  RESPONDENTS

REPRESENTATION

Layi Obadare, Esq. - for Appellant

O. T. Adebayo, Esq. - for Respondent

MAIN JUDGMENT

AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment):

The Appellant was a customer of Trade Bank Plc. at its Ikeja Branch, and he enjoyed various short term facilities from the Bank, which he promptly repaid.

On 17/5/2001, he was granted an "overdraft facility'' in the sum of N2 million to "import some fairly used Mercedes trucks and generators from Europe" and the expiry date was 21/7/2001. He failed to repay the facility as at that date, and after several letters of demand from the Bank, he forwarded N500, 000.00 as part repayment of his indebtedness to it. The Bank then renewed the N2m facility for 180 days from 8/8/2002 to 3/2/2003 for recovery purposes only.
Subsequently, by a letter dated 13/7/2003, the Bank conveyed waiver of 50% of the cumulative interest to enable him pay N3, 084, 737.94 as full and final settlement of his debt. He applied for a further extension of repayment time from 90 days to 180 day, and the Bank gave him up to 12/12/2006 to pay. However, despite numerous letters of demand and repeated visits to his office, the Respondent failed to liquidate his indebtedness to the said Trade Bank Plc.

It instructed its Solicitors - Messrs. Ronke Akinola & Co., to recover the debt from him, and its solicitors later sent him a letter of demand for the due debt in the sum of N4, 847, 457.04 as at 31/3/2004. He did not reply nor liquidate his indebtedness to the Bank, and the Bank instituted the action that led to this Appeal at the Lagos State High Court, wherein it claimed as follows –

1.    The sum of N4, 847,457.04 being the unpaid balance on facilities due to the Plaintiff on the Defendant's Account No: 0836006670168 with the Plaintiff's Ikeja Branch as at 31st March, 2004.

2.     Interest therein on the said sum at the rate of 19th per annum from 31st March, 2004 till Judgment and debt is finally liquidated.

3.       Cost of the action.
Pre-trial conference commenced on 31/3/2006 before A.M Nicol-Clay, J., and by an order of the lower court dated 25/4/2006, the name of Trade Bank Plc. was substituted with that of the Respondent herein - NDIC, as the Claimant. There was another pre-trial conference on 6/7/2006, and it was adjourned to 21/9/06 for continuation. On 16/11/2006, when it came up for continuation, learned counsel for Appellant, objected to the continuation on the ground that it takes the holding of the Pre-trial conference out of the three months period stipulated by Order 25 Rule 4 of the High Court Civil Procedure Rules that says –

"The pre-trial Conference or series of pre-trial conferences with respect to any case shall be completed within 3 months of its commencement, and the parties and their Legal Practitioners shall co-operate with the Judge on working within this time table. As far as practicable, Pre-trial Conference shall be held from day to day or adjourned only for purposes of compliance with Pre-trial conference orders, unless extended by the Chief Judge"

The Respondent's counsel countered that there is no penalty spelt out under the said Order 25 Rule 4 with regards to non-compliance with that schedule, and informed the court he had applied for extension. The lower court ruled –

“It is now my view that this proceeding would not affect the justice of this case, the essence of the rule is to a quick dispensation of justice, learned counsel has applied for an extension of time for the pre-trial conference. The objection raised by learned counsel is hereby dismissed. The claimant is to proceed with its application for extension of time".

Dissatisfied with the Ruling, the Appellant filed its first Notice of Appeal dated 22/11/2006, which contains two Grounds of Appeal that complain as follows –

1.     The learned trial judge erred in law when she held that she has the power and jurisdiction to extend the period within which a Pre-trial Conference takes place.

2.    The learned trial judge misdirected herself in law when she held that she had the discretion to extend the period within which a pre-trial conference can be held.

Meanwhile, the Appellant had filed an Application dated 15/11/2006 for –

"An Order upon admission of facts or Judgment as upon admission of the sum admitted by Respondent/Defendant to be due to the Applicant/Claimant as per paragraphs 16, 17 and 18 of the Statement of Defence dated 15/4/2006".

It is supported by a 10-paragraph Affidavit, wherein it was averred as follows –

5.   That the Respondent/Defendant has admitted to being indebted to the Claimant in the sum of N1, 436,235.44.

6.  That by simple arithmetic calculation, the Respondent/Defendant is invariably indebted to the Applicant/Claimant in the sum of N2, 602,606.87

7.    That I am told by S.O. Jimoh Esq. of Counsel and I verily believed him that the Applicant/Claimant is entitled to judgment upon such admission without waiting for the determination of any other question between the parties.

8.    I now pray this Honourable Court to give Judgment upon the admitted sum now in the interest of justice.

The Respondent filed a Counter-Affidavit of 8 paragraphs, wherein he averred-

4.     That there is nowhere in paragraphs 16, 17 and 18 of the Statement of Defence wherein I admitted to owing the sum of N1, 436,135.44 to the Claimant.

5.     That in paragraph 19, I admit to being wholly indebted to the Claimant to the tune of N1, 436,235.44 and I will want this Honourable Court to pronounce Judgment on this term.

6.     That this application is a continuation of the frauds carried out on my account by the Claimant and now by the Counsel to the Claimant.

Written Addresses were duly filed and adopted by counsel for both parties and the lower Court delivered "Judgment" on 20/12/2006, wherein it held thus –

"The law is elementary that a party is bound by his admission and to the extent of the admission - Such admission should be clear and unequivocal - From the facts before me, there is clear and unequivocal admission by the Defendant/Respondent on the unpaid balance or facilities due to the Claimant on the Defendant's Account by paragraphs 17, 18 & 19 of the Statement of Defence, the overriding consideration that the admission must be clear and unambiguous, the Defendant/Respondent has stated by his accountant that there was an excess interest on the total sum claim.

The total sum claimed is N4, 847,451 the excess deducted leaving a balance of N2, 606,600. IT IS HEREBY ADJUDGED that Judgment be and is hereby entered in favour of the Claimant/Applicant on the clear and unequivocal admission by the Defendant/Respondent in the sum of N2, 606, 608.18. Costs in the sum of N10, 000 is hereby awarded in favour of the Claimant/Applicant".

Dissatisfied with the "judgment", the Appellant filed another Notice of Appeal dated 21/12/2006 that contains 3 Grounds of Appeal, which complain that –

1.    The learned trial Judge erred in law when she made the basis of her judgment on admission a simple arithmetic calculation and/or an invariable ground by the Claimant/Counsel to the Claimant.

2.   The learned trial Judge erred in law when she continued Pre-Trial Conference sittings based on her extension of the period which d Pre-trial Conference(s) could be held.

3.     The learned trial Judge misdirected herself in law when she held that she had the discretion to extend the period within which a pre-trial conference can be held.

In compliance with the Rules of this Court, the Parties filed Briefs of Argument, which they adopted at the hearing of the appeal. The Appellant distilled two issues for Determination from a combination of the Grounds of Appeal in the two Notices of Appeal in his Brief settled by Layi Obadare, Esq. The issues are –

1.   Whether the Lagos State High Court has the right and power to continue sitting in defiance and contravention of provisions of Order 25 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules 2004.

2.     Whether from the facts of this case, the trial Court rightly entered judgment on admission against the Defendant.

The Respondent submitted in its own Brief prepared by Bayo Akinsola, Esq., that the two issues that call for determination in this appeal are as follows –

(a)   Whether the proceedings of the learned trial Court of Lagos State Coram Nicol-Clay J. dated the 16th day of November, 2006 occasioned the Appellant/Defendant any miscarriage of justice,

(b)   Whether the Respondent/Claimant was entitled to the final Judgment of the High Court Coram Nicol-Clay J. on the admission of the Appellant/Defendant indebtedness.