Tanarewa Nigeria Limited & Anor V. Musa Bala Arzai & Anor (2004)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

In the High Court of Kano State of Nigeria, in the Kano Judicial Division, the plaintiff commenced an action by causing a writ of summons to be issued against first and second defendants on the undefended list. The plaintiff subsequently applied successfully for the third defendant to be joined to the suit. Consequently, the writ of summons was amended to read as follows:

“The plaintiff has been a regular supplier of raw skins to defendants before now.

Whenever supplies were made to the defendants by the plaintiff, payment for the supplies were made by the 1st defendant or the 2nd defendant, who is a sister company of the 1st defendant. Sometimes before the first defendant, went into receivership the plaintiff supplied raw skin to it worth N3,469,646.97, for which the plaintiff has not received payment till date, in spite of repeated demands to that effect and acknowledgment of the indebtedness by the 1st defendant. The 3rd defendant personally sold the skins supplied to the 1st defendant for tanning, when he took over as the receiver of the 1st defendant and the 3rd defendant has refused to pay the plaintiff for same. Whereof the plaintiff claims against the defendants jointly and severally the sum of N3,469,646.97 being the value of raw skin supplied to the first defendant by the plaintiff.” (Italics mine).

The plaintiff deposed to a further affidavit to justify the involvement or joinder of the third defendant. The basis for joinder averred are in paragraphs 17, 18, 19, 20 and 21 thereof which would be recited when appropriate in the course of writing the judgment.

Learned trial Judge listened to argument from all the counsel and in a reserved and considered ruling delivered on 17th February, 2000, found as follows in respect of the three issues canvassed in the suit-

“From the evidence made available before the court three issues for determination have arisen. The first one is, whether the plaintiff had actually supplied raw skins to the 1st defendant. Exhibit MB1 as a letter written of the 3rd defendant in which he (the 3rd defendant) admitted that the plaintiff has supplied the 1st defendant with raw skins and pleaded for time within which the price of the said skins could be determined. And since there is no allegation of forgery in respect of the said letter, the defendants cannot now be allowed to claim that the skins were never supplied.

The second issue is whether the skins supplied have formed part of the 1st defendant assets as asset is defined in Osborn’s “A Course Law Dictionary at page 33 as “property available for payment of debts”. In my view, the property as the raw skins cannot be said to have passed to the 1st defendant since the price has not been paid. Similarly in Seven-Up v. Abiola Bottling Co. (1996) 7 NWLR (Pt. 463) 714, and Adeboyega v. Awu (supra) the view was held that goods purchased on credit of a company could not come under the powers of a receiver and a party wishing to challenge the question of title to these goods would be free to do so. I am of the view therefore, that since the prices of the raw skins have not been paid the property in the goods cannot be said to have passed, to the 1st defendant. And since property has not passed the raw skins are not part of the 1st defendant’s assets.

The third issue for determination is that for the price of the raw skins. The 3rd defendant has admitted in exhibit MB1 that the raw skins were supplied to the 1st defendant and that he would soon work out the level of indebtedness of the 1st defendant. On his part the plaintiff’s counsel stated that the price of the skin was N3,469,646.97k, but failed to produce evidence to support the claim. It is true therefore that the price of the raw skins supplied by the plaintiff to the 1st defendant has not been made clear to the court.

Accordingly, and on the authority of O.23 r. 3(2) this aspect of the price of the raw skins is hereby transferred to the ordinary cause list to be determined without pleadings.”

As a result of the court transferring the action from undefended to the general cause list for the determination of the price of the skins supplied, the plaintiff called two witnesses. The defence failed to produce its witness or witnesses. The court then closed their defence after three unfruitful consecutive adjournments to enable them call their witness on 22nd June, 2000 and reserved its judgment to 4th July, 2000 when judgment was accordingly delivered, awarding the sum of N3,469,646.97 being the cost of animal skins purchased from the plaintiff on credit”. There was no award made against 2nd defendant.

The defendants were not happy with the two decisions and being aggrieved have appealed to this court on two notices of appeal in respect of which extension of time to apply for leave, leave to appeal and extension of time to appeal were granted on 5th February, 2001 by this court, subject to filing of the relevant notices of appeal in the court below within 21 days which order was duly complied with. The parties, in compliance with provisions of Order 6 of the Court of Appeal Rules, filed and exchanged briefs of argument, which were settled at appellants’, as well as first respondent’s briefs of argument. Second respondent did not file brief. At the hearing of the appeal, learned Counsel for appellants adopted and placed reliance on the appellants’ brief of argument prepared by Chief Ayodele, SAN dated 19th November, 2001 and deemed as properly filed and served on 28th January, 2002. Also learned Counsel for first respondent adopted and relied on that respondent’s brief dated 22nd July, 2002, and deemed as properly filed and served by order of court given on 5th February, 2003.

Both counsels merely adopted their respective briefs but did not elucidate on them except to call the attention of the court to authorities they had come across since the briefs were settled. Learned Counsel for appellant referred the court to cases 1, 2 and 3 on their list of additional authorities. The cases are set out immediately hereunder and are cited in respect of appellant’s issue 1:

i. Kadzi International Ltd. v. Kano Tannery Co. Ltd. & others (2003) FWLR (Pt. 184) 255.