Alhaji Babangida Sa’adu & Anor V. Pama Motors Nigeria Ltd. & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice of Plateau State, holden at Jos (hereinafter referred to as the trial Court), delivered on 5th May, 2005, by, Hon. Justice L. C. Dakyen.

The brief background facts of this matter are that, sometime in year 2002, the Ministry of Federal Capital Territory, Abuja, awarded a contract for the supply of fire fighting vehicles to some companies. Three of the fire fighting vehicles was sub-contracted to the Appellants. The Appellants in turn sub-contracted the three fire fighting vehicles to the Respondents for the total sum of twenty-two million, eight hundred thousand naira (N22,800,000.00). The three vehicles were supplied by the Respondents.

The Appellants as at the commencement of the action which culminated into this appeal, were owing, the Respondents, the sum of eight million, seven hundred and fifty thousand naira (N8,750,000.00) as the outstanding balance of the said contract sum. The Appellants out of the said outstanding sum issued a cheque for the sum of four million, six hundred and sixty-five thousand naira (N4,665,000.00) to the Respondents, but the cheque was returned unpaid.

Therefore, by a motion “ex parte”, dated and filed on 21st July, 2004, the Respondents, before the trial Court, applied for leave to issue a writ against the Appellants for the recovery of the said balance of eight million, seven hundred and fifty thousand naira (N8,750,000.00) and place same in the undefended cause list and mark same as such. Attached to the supporting affidavit of five paragraphs are four Exhibits that is, Exhibits A, B, C and C 1. The application was granted. The Respondents as plaintiffs then, claimed against the Appellants as defendants the following, vide their particulars of claim:

(a) The sum of Eight Million, Seven Hundred and Fifty Thousand Naira (N8,750,000.00) being the balance of three (3) fire fighting vehicles bought by the defendants from the plaintiffs.

(b) Ten per centum (10%) interest from the Day of Judgment, till final Payment.

(c) Costs of the action.

For clarity and easy reference, the germane averments in the particulars of the Respondents’ claim are reproduced thus:

PARTICULARS OF CLAIM

1. The 1st plaintiff is a limited liability company registered under Nigerian Law and the 2nd plaintiff is a businessman and Managing Director of the 1st Plaintiff and both do their business at No. 2 Zaria Road, Jos. (The 1st and 2nd Plaintiffs are hereinafter referred to as the plaintiffs”
2. The 1st Defendant is a businessman and he resides at No. 10 Ndagi Faruk close, Jos and the 1st Defendant is the Managing Director of the 2nd Defendant which is a Limited Liability Company registered under Nigerian Law (the 1st and 2nd Defendants are hereinafter referred to as “the Defendants”).
3. The Defendants bought 2 fire fighting vehicles from the plaintiffs at the cost N16,300,000.00 – (Sixteen Million Three Hundred Thousand Naira) on 11/02/02.
4. The Defendants bought another fire fighting vehicles from the Plaintiffs at the cost of N16,500,000.00 (Six Million Five Hundred Thousand Naira) on 6/4/02.
5. The Defendants made part payments of N300, 000.00 (Three Hundred Thousand Naira) and N250,000.00 Two hundred and Fifty Thousand Naira) at the time of the two purchases respectively leaving the balance of N6,00,000.00 (Sixteen Million Naira) and N6,250,000.00 (Six Million Two and Fifty Thousand Naira) respectively and the total of the balance is N22,250,000.00 Twenty-two Million Two Hundred and Fifty Thousand Naira) and the Defendants sold the 3 fire fighting vehicles to an individual and the Ministry for a very highly profitable rate.
6. The Defendants made various installment payments to the plaintiffs which when added to the payments stated in the preceding paragraphs is N7,050,000.00 (Seven Million and Fifty Thousand Naira) leaving a balance of N15,750,000.00 (Fifteen Million Seven Hundred and Fifty Thousand Naira).
7. The transaction herein took the parties hereto, to the police in Abuja and the Defendants made undertaking to pay N4,665,000.00 (Four Million Six Hundred and Sixty Five Thousand Naira) to the plaintiffs.
8. The Defendants assigned the collection of their money for their contract with Ministry of Federal Capital Territory Abuja (hereinafter referred to as the Ministry”) in the event they performed the contract to the tune of N9,785,000.00 (Nine Million Seven Hundred and Eighty Five Thousand Naira).
9. The Plaintiffs on their approach to the Ministry same were informed by Alhaji Hanafi Musa Moriki Assistant Chief Accountant of the Ministry on the 17/12/2003 in Abuja at 11:40am which information the plaintiffs verily believe that:

a. The Defendants’ balance with the Ministry is N7,000,000.00 (Seven Million Naira).

b. This sum of N7,000,000.00 (Seven Million Naira) is to be paid to the plaintiffs for the assignment of same as aforesaid.

10. The plaintiffs are now pursuing the payment of the said sum of N7,000,000.00 (Seven Million Naira) with the Ministry.
11. The plaintiffs balance with the Defendants now is the sum of N8,750,000.00 (Eight Million Seven Hundred and Fifty Thousand Naira).
12. The Defendants do not have a defence to this action.
13. WHEREOF the plaintiffs claim against the Defendants jointly and severally for:-

(a) The sum of N8,750,000.00 (Eight Million Seven Hundred and Fifty Thousand Naira) being balance of the 3 fire fighting vehicles bought by the Defendants from the plaintiffs.

(b) 10% interest from the Day of Judgment till final payment.