Nature, Effect Of Summary Judgement

Learned counsel referred to the controversial paragraph 18 of the appellants’ affidavit in support of their notice of Intension to defend the action. He referred also to the preceding paragraphs 1-17 and the succeeding paragraphs 19-20 of paragraph 18 of the said affidavit and contended that it is the totality of the affidavit in support of the notice of intention to defend that will be construed to determine whether or not indeed there was an admission of indebtedness by the appellants.

The appellants referred to the further affidavit filed by the respondent in reply to the affidavit of the appellants in support of their notice of intention to defend the action. They contended that it was in fact the obvious contradictions and facts that made the trial Judge hold that the affidavit evidence has not helped the court in resolving the difference, hence oral evidence should be adduced by both parties upon pleadings. He submitted that that was the reason for the transfer of the suit from the undefended list to the general cause list.

The appellants referred to paragraphs 5, 6, 7, 8, 9 and 10 of the affidavit in support of the notice of Intention to defend to the effect that the plaintiff dumped its low quality goods with the defendants to sell. In other words, that the 1st appellant was merely assisting the plaintiff to market low quality or sub-standard goods and contended that there is nowhere in the entire 7 paragraph of the affidavit filed by the respondent that the averments were denied. He submitted that where a material fact in an affidavit is not controverted by the opposing party, then the facts are deemed admitted. He relied on Ejikeme v. Ibekwe (1997) 7 NWLR (Pt. 514) 592 at 598.

Learned counsel referred to Order 30 rules 1 & 3 (1) of the Bendel State of Nigeria High Court (Civil Procedure) Rules, 1988 applicable in Delta State and submitted that for an averment or statement to be considered as an admission of fact by the court, it must be solemn and unequivocal as to the exact details of what is being admitted.

Learned counsel submitted further that an admission against interest envisages a conscious act, a direct and unequivocal acceptance of the state of facts put forward by the other party. It must be clear and definite acceptance of facts stated. If there is possibility of doubt or uncertainty or discrepancy, it definitely cannot amount to an admission. The appellants contended that the appellants’ affidavit as well as the respondent’s further affidavit obviously raised triable issues in the action which led the trial court to transfer the suit from undefended list to the general cause list.

The appellants referred to the mutually agreed method of offsetting the balance of the old outstanding in their account, based on the 80:20 formula. They contended that the respondent breached this agreement, and this is deposed to in their affidavit in support of their intention to defend the action.

The appellants further contended that the fair and just resolution of the issue at stake must necessitate the proper construction of the said 80:20 formula agreement and whether or not the contract has been determined by the act of the respondent. They submitted that this can only be done by full trial evidence but not on affidavit evidence.

Learned appellants’ counsel submitted that the court below was duty bound to consider and determine all issues placed before it for determination in order to find out whether there was clear and unequivocal admission. And by failing to consider other paragraphs of the appellants’ affidavit, the court below failed to consider and determine whether paragraph 18 amounts to an admission and that even if it does, whether there was a defence disclosed in support of the notice of intention to defend. They relied on Ejowhomu v. Edok-Eter Mandilas Ltd. (1986) 2 NSCC 1184 and  1209-1215, (1986) 5 NWLR (Pt. 39) 1 per Aniagolu, JSC; Kotoye v. Saraki (1994) 7-8 SCNJ 524 at 560, (1994) 7 NWLR (Pt.357) 414, per Onu, JSC.

In the final analysis, the appellants urged the court to set aside the decision of the court below and to restore the decision of the trial court transferring the matter to the general cause list for hearing and determination.

On this issue as formulated by the respondent, it was submitted that the respondent properly invoked the jurisdiction of the trial court to request for part judgment on the admitted sum after the transfer of the substantive matter to the general cause list.

Reliance was placed on Chrisdon Ind Co. Ltd. V. A.J.B. Ltd. (2002) 8 NWLR (Pt. 768) 152 at 187. The rule of court referred to in the said case was in part material with Order 30 rule 1 of the Bendel State High Court (Civil Procedure) Rules, 1988 applicable to Delta State which the respondent invoked under the general cause list. Learned counsel to the respondent contented that the trial Judge was not functus officio as the court believed, after having transferred the matter to the general cause list. He submitted that indeed the general cause list gave the trial Judge the jurisdiction to entertain the said application. He cited Mosheshe General Merchant Ltd. Nigeria Steel Products Ltd. (1987) All NLR 309 at 319, (1987)2 NWLR (Pt. 55) 110, Per Aniagolu, JSC.