Alhaji Musa Bello & Anor V. Farmers Supply Company (Kds) Limited (1998)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The respondent sued the appellants before the High Court of Justice Kaduna by a writ of summons. In paragraph 39 of its statement of claim it claimed as follows:-

“Whereof the plaintiff claims against the 1st and 2nd defendants (jointly and severally) as follows:

(a) The sum of $190,516.00 (United States dollars – One hundred and ninety thousand, five hundred and sixteen dollars only) or its Nigerian naira equivalent of N4,191,352.00 (Four million, one hundred and ninety one thousand, three hundred and fifty two naira) at the 1995 official exchange rate of N22.00 (Twenty two naira) to $1.00 (United States – One dollar only) being money had and received and or payment made by the plaintiff to the defendants for the supply of specified agro-chemicals (agro-products) to wit, Ingram Cambi 500 EC, Gardonprim A500FW, Apron Plus 50 D5 and Plytrine 440FC upon the quotation submitted by the 1st defendant and the issuance of purchase orders Nos. 316,317,318 and 319 all dated 20th July, 1990 with 180 days as the validity and or delivery durational period and which said ordered goods the defendants have failed, neglected and or refused to honour and fulfil their respective contractual and or quasi contractual obligations despite repeated and persisted demands made by the plaintiff in respect thereof.

(b) Interest at the rate of 21 % (Twenty one per cent) per annum on the stated sum of N4,191,352.00 (Four million, one hundred and ninety one thousand, three hundred and fifty two naira) with effect from 21st January, 1991 until judgment is delivered and thereafter at the rate of 10% (Ten per cent) until eventual liquidation:’

The appellants filed a joint statement of defence admitting some paragraphs of the statement of claim and denying others. One Abbas Mohammed Ayatudeen, an auditor with the respondent gave evidence on its own behalf to the effect that the appellants were given a contract to supply some agro-chemicals to the respondent in the total sum of 238,145 U.S. dollars as per four LPOs received in evidence as Exhibits A1-A4. It was pan of the agreement that on the importation of the chemicals to Nigeria the appellants would be paid 80% of the contract sum and when the goods were cleared and transported to Kaduna, they would be paid the balance of 20% of the contract sum.

On the 10th of August, 1990 the appellants wrote a letter to the respondent requesting for the payment of 80% of the contract value and forwarded some shipping documents to show that the chemicals had been imported. 80% of the contract sum was eventually paid to the appellants in an account in London. The appellants collected back the shipping documents to help to clear the goods and demanded a huge sum of money for the clearing. The respondent did not agree with the sum claimed. The respondent asked the appellants to return the shipping document but they were not returned. When the respondent formed the impression that the goods were not imported as claimed by the appellants, they decided to sue for the recovery of the money already paid to the appellants.

The 1st appellant who is the managing director of the 2nd appellant gave evidence on behalf of himself and the 2nd appellant. He confirmed that the 2nd appellant was awarded contracts for the supply of agro-chemicals by the respondent and that they actually imported these chemicals and sent the shipping documents to the respondent to arrange clearance of the goods as that was not part of their agreement. The respondent asked them to clear the goods and they demanded a down payment of N450,000 for the clearance but the respondent failed to meet their demand with the result that they lost interest in the clearance. He confirmed the payment of 80% of the contract sum to the 2nd appellant and not himself. Under cross-examination the 1st appellant said that the shipping documents did not contain bills of entry and cargo arrival notice as well as liner bill of lading. He said that he could not remember the date the goods arrived at the Nigerian port and did not know the name of the ship owner, but that he forwarded the bill of lading to the respondent and the bill of lading had the name of the ship in it.

The trial court after listening to addresses of counsel gave judgment in favour of the respondent as claimed by it. Dissatisfied with that judgment the appellants appealed to this court, and in accordance with the rules of court tiled a brief of argument and identified four issues for determination. In the course of the argument of this appeal the learned counsel for the appellants abandoned issues 2 and 3 of the appellants’ issues and the arguments thereon and they are accordingly struck out. The surviving issues are as follows:-

“Issue 1. Whether on the totality of the evidence before the lower court the learned trial Judge properly directed himself when he held that the appellants failed to discharge their own part of the agreement.

Issue 4 re-numbered 2:

Whether there is any evidence before the lower court which suggests that the 1st appellant was paid and indeed received payment of 80% of the contract sum in his personal capacity thereby making him a proper party to the suit:’

The learned counsel for the respondent also filed a brief on behalf of his client and identified three issues for determination. In the course of the argument of the appeal he abandoned issue 2 and all the arguments thereon and they were accordingly struck out. The surviving issues are as follows:-

“Issue 1. Whether on the totality of evidence adduced before the trial court and on the balance of probabilities, the trial court was right to hold that the appellants did not (discharge the burden of proof placed on them as per the state of pleadings and issues joined thereon.