Adama Beverages Limited V. Alhaji Hamidu Galleon (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment of the High Court of Justice Adamawa State in Suit No. ADSY/76M/2015 delivered on 18th September 2014. The Court below, sitting in its appellate jurisdiction, dismissed the Appeal of the present Appellant and one Alhaji Ahmed H. Zarma, against the decision of the Upper Area Court delivered on 30-04-13. Aggrieved by the decision of the Court below, the Appellant sought and obtained the leave of the Court below to file an Appeal vide its Notice of Appeal on 04-11-14.

The brief facts of this case are as follows: The Respondent, a businessman, filed an action before the Upper Area Court 2 Yola against “Faro Bottling Company Limited” in Suit number CV/FI/TR/51/2000 on 04-11-02. Therein, he claimed inter alia for: (i) the sum of N680,400.00, being the amount accrued by the Defendant for hiring 1,200 crates of empty soft drink bottles from the Plaintiff at the rate of N10,800 per month from June 1995 to August 2000, and thereafter at the rate of N10,800.00 per month from September, 2000 until Judgment and final payment; (ii) return of the 1,200 crates of empty bottles; and in the alternative, its value in the sum of N540,000.00 at the rate of N450.00 per crate; (iii) plus 21% interest.

The Defendant denied the claim and at the close of trial, Judgment was entered in favour of the Plaintiff in the sum of N907,200.00 plus costs of N50,000.00. Thereafter, the Defendant made a part-payment of the Judgment sum in the sum of only N300,000.00 but thereafter, made no further effort to settle the balance on the Judgment debt. The Judgment Creditor/Plaintiff/Applicant therefore approached the same Upper Area Court 2 Yola, (as differently constituted) vide a motion on notice filed on 07-03-13, now against two Respondents, named as follows:

(i) “Faro Bottling Co. Nig. Ltd now Adama Beverages Ltd; and

(ii) Ahmed H. Zarma.”

Therein, he sought the following reliefs:

1. “An order of this Hon. Court granting leave to the Applicant to enforce Judgment delivered on 04-11-02 against the Respondents.
2. An order of this Hon. Court deeming all processes filed and served on the Defendants/Respondents as properly filed and served.
3. An order of the Hon. Court on the Defendants/Respondents to pay all the Judgment debt together with the interest as contained in the Judgment.
4. An order on the Defendants/Respondents to return the Plaintiff that are in the custody of the 1,200 empty crates belonging to the Defendants or its equivalent value at the current market price.
5. Any other order(s) the Hon. Court may deem fit to make in the circumstances of the case.”

In support of the motion, the Applicant (now Respondent) deposed inter alia thus in his supporting affidavit (at pages 4-6 of the Record):

1. That I am a businessman who run (sic) a guest (sic) in known as Mamiso Memorial Guest Inn situated at Numan Town, Numan Local Government Area, Adamawa State.
2. That the 1st Defendant/Respondent is a registered Company dealing in the business of soft drinks production with the head office at Kofare Industrial Area, Jimeta-Yola, Adamawa State.
3. That I am into business with he said Company where it use to supply me with the soft drinks at Memiso Memorial Guest House Numan since 1992.
4. That sometime the company run short of empty crates and approached me to hire my empty crates to it which I obliged for a period of 3 months.
5. That we enter into agreement dated 1st October, 1994. The said agreement letter dated 1/10/1994 is hereby attached and marked Exhibit B.
6. That after expiration of 3 months, I demanded for the return of my empty crates, but it could not return it to me instead the company send me a letter dated 16/1/1995 up reviewing the agreement. The said letter dated 16/1/1995 is hereby attached and marked Exhibit C.
7. That the company has stopped supplying me with the product since June, 1995. I then wrote a letter to the company reminding it of my crates in its custody…
8. That after all efforts to return my crates and the payment of the hire rate has failed, I sued the company at the Upper Area Court II Yola, where Judgment was given in my favour after hearing both side.
9. That the Defendants only made a part payment of N300,000.00 only through my lawyer…

The 2nd Respondent to the motion, Ahmed H. Zarma, who is also a staff of the Appellant herein, Adama Beverages Limited, responded by filing a Counter affidavit (at pages 29-30 of the Record) denying the assertions in the Applicant’s affidavit and deposing inter alia as follows:

4. That I admit Paragraph 11 of the affidavit in support of the motion only to the extent that I was only invited as a witness and I testified in the suit as a DW1 where I informed the Court what I know about the case.
5. That I am not in a position to admit or deny facts deposed in Paragraphs 12 and 13 of the affidavit in support of the motion because I was not a party to the suit filed by the Plaintiff/Applicant against the 1st Defendant/Respondent. I only testified as a witness and I was not aware of the Judgment (Exhibit E attached to the affidavit in support of the motion)…
6. That on the 12th March 2013 at about 2pm, Ismaila Ibrahim of Counsel, informed me in his office and I believed his information to be true as follows:

(a) Being not a party the substantive suit filed by the Plaintiff/Applicant against the 1st Defendant/Respondent, I cannot be joined as a party under an application for enforcement of Judgment of the case, while the Defendant/Respondent is alive and in existence.

(b) That the 1st Defendant/Respondent is a registered Company under Nigerian law with its Directors existing.

c) That Adama Beverages Limited is also a registered Company which is independent of the 1st Defendant/Respondent; therefore the two cannot alternate each other.”

The said Upper Area Court 2 heard arguments on the motion, during which learned Counsel for the Applicant contended that attempts to serve “Adama Beverages Limited” with the Court processes failed, as the latter had refused to accept service. The processes were therefore served by substituted means, following leave sought and obtained from the trial Court. The named 1st Respondent thereon, i.e. “Faro Bottling Co. Nig. Ltd now Adama Beverages Ltd” did not appear in person through any officer of the Company or through Counsel to respond to the motion. However, Counsel for the 2nd Respondent, Ahmed Zarma, in his response to the arguments on the motion, submitted that “Faro Bottling Co. Ltd” and “Adama Beverages Ltd” were both separate corporate organizations with distinct and different Directors.

He argued that the Applicant should have conducted a search on the two Companies at the Corporate Affairs Commission before filing the application. He also submitted that, while “Adama Beverages Company” acquired the building property of “Faro Bottling Company”, it did not take over its liabilities. Nonetheless, in its Ruling delivered on 30-04-13 (at pages 38-44) of the Record which, for some reason which is not readily clear to me, is described therein as a “Judgment”), the trial Court held as follows: