Afro Continental (Nig.). Ltd & Anor. V. Co-op. Association Of Prof. Inc (2003)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal from the judgment of the Port- Harcourt Division of the Court of Appeal. In the judgment the Court of Appeal upheld the decision of Owerri High Court, Imo State, in which it granted the claim of the respondent for the sum of $1,706,000.00 (U.S. Dollars) with interest at 13% against the appellants. The High Court further awarded 10% interest per annum until the judgment sum shall have been settled.

The 1st appellant is a Nigerian company based in Lagos and the 2nd appellant is an American company operating from New York. The respondent who was the plaintiff at the High Court is an American company based in Michigan. Another company which was involved in this matter is Co-operative Associations of Professionals Limited. It operates in Nassau Bahamas. One attorney, by name William A. House, is a director of both the American and Bahamian companies. It was this William A. House who gave Prince Ben Akabueze power of Attorney to institute the present action at Owerri High Court, Imo State.

This dispute arose over a contract awarded to the respondent by the Nigerian Presidential Task Force for the supply of 10,000 metric tons of American long grain rice at $790. U.S. Dollars per metric ton. Following an agreement between the appellants and the respondent the contract was sub-contracted to the appellants on an agreed price of $550. U.S. Dollars per metric ton. Pursuant to the agreement the respondent in June, 1982, issued to the appellants a letter of credit for the sum of $7,356,000.00. U.S. Dollars. Out of this amount the appellants were to deduct $1,856,000.00. U.S. Dollars. This would be their share of the transaction. It was agreed that this amount should be paid to Prince Ben Akabueze. In compliance with the agreement the appellants supplied the metric tons of rice. They however failed to pay Prince Ben Akabueze the respondent’s attorney the $1,856,000.00 U.S Dollars which was earlier agreed to be paid to him. Following several demands the appellants paid Ben Akabueze $150,000.00. U.S. Dollars, leaving a balance of $1,706,000.00. U.S. Dollars still to be paid. The respondent instituted this action to recover the outstanding balance yet to be paid by the appellants. The respondent’s claim against the appellants jointly and severally is for the following; as general and special damages.

“(i) The equivalent $1,856,000.00 less $150 ,000.00 being value of N100,000.00 paid to the plaintiffs… $1,706,000.00

(ii) Aggravated general damages… 200 ,000.00

$1,906,000.00

(iii) Interest at 13% up to date of judgment and thereafter 13% until payment is made.”

The respondent brought this suit under the undefended list. The particulars of claim and affidavit in support of the action were filed. The case was assigned to the learned Ogu Ugoagwu, J. of Imo High Court sitting at Owerri. The appellants entered unconditional appearance. Immediately afterwards many applications were filed by the appellants. Some were challenging the jurisdiction of the court and in some applications the appellants requested for transfer of the suit from Ugoagwu, J. to another Judge.

Looking at the issues identified by the appellants it is clear that the appellants, without saying so, are alleging bias on the part of the learned trial Judge. It is pertinent therefore to give a brief narration of the proceedings before the learned trial Judge delivered his judgment in favour of the respondent. Learned counsel for the respondent, Mr. Dike, in the respondent’s brief correctly narrated the facts of the proceedings from the beginning of the trial to the 13th of December, 1989. I will reproduce that narration for the clear understanding of what transpired before the learned Judge Ogu Ugoagwu, J. delivered his judgment. The proceedings were given in the following narrative.

“Two earlier suits were filed by the respondent before the one leading to this appeal.

(a) Suit No. HOW/242/87

Dated and filed on 31st August, 1987, this suit was commenced by the issue of an ordinary writ of summons and was brought before Ogu Ugoagwu, J.

Appellants raised a preliminary objection filed on 11th November, 1987 praying that the suit be struck out for lack of jurisdiction of the court and that leave was not obtained to serve the appellants out of jurisdiction. In a reserved ruling dated 14/1/88, the motion was dismissed with N100.00 costs to the respondent. Appellants appealed but the respondent discontinued the substantive action. That action died without hearing the merit of the case.