Consolidated Resources Limited & Anor V. Abofar Ventures Nigeria Limited (2007)

LawGlobal-Hub Lead Judgment Report

R. C. AGBO, J.C.A.

The appellants as plaintiffs in suit No. LD/2185/2001 filed at the High Court of Lagos State, Lagos Division claimed of the defendant as per paragraph 22 of their amended statement of claim as follows:-

“1. DECLARATION that the defendant was in breach of agreements made on 28/5/99 and 9/6/99 between it and the 1st Plaintiff for the transfer from the Defendant’s oversees account proceeds from its export of cocoa the slim of USS66.550.35 (Sixty-six Thousand. Five Hundred and Fifty United States Dollars. Thirty- Five cents) for which the Defendant had received in Nigeria from the 1st Plaintiff on behalf of the 2nd Plaintiff the Naira equivalent of same to the 2nd Plaintiffs overseas customer.

2. ORDER for specific performance of the said agreements of 28th May 1999 and 9th June 1999 made between the Plaintiff and the Defendant for the transfer of sum of USS66.550.35 to the 2nd Plaintiff’s overseas customer.
3. ALTERNATIVELY to 2 above. AN ORDER directing the Defendant to pay over to the Plaintiffs the sum US$66.550.35 of its Naira equivalent at judgment.
4. Interest on the said sum of USS66.550.35 at the rate of 35% from 9th June 1999 till judgment and thereafter at the rate of 4% till final payment.
5. FURTHER or in the alternative damages for breach of the said contract.”

The facts of the case as pleaded by the plaintiff was that the 1st plaintiff, a company involved in sourcing and placement of funds and rendering financial advisory services to its customers sourced from the defendant the sum of US$449.600.00 which sum the 2nd defendant paid for in the naira equivalent. The defendant was to pay the agreed 449.600.00 dollars into an account in Singapore designated by the 2nd plaintiff. The defendant paid into the designated account the sum of 393.049.65 US Dollars leaving a balance of US Dollars 56.550.35. This contract was entered into between 28 May 1999 and 9th June 1999. As a result of this failure, the 2nd plaintiffs business suffered as its overseas customers refused to avail him all the goods he had ordered. Plaintiffs made several demands of the defendant to pay the said sum outstanding. It promised to pay but consistently defaulted. On the threat by the plaintiff to resort to the court to recover the dollars owing, the defendant offered to pay 10.000.00 dollars interest provided the plaintiff stayed action on filing the suit. The defendant has refused to pay both the outstanding sum and the 10,000.00 dollars interest. The plaintiff felt compelled to go to court to recover the said sum outstanding.

The defendant did not file a statement of defence nor did it take any steps to defend to defend itself. The case went to hearing. Plaintiffs called two witnesses, tendered some documentary exhibits and closed its case. Plaintiffs counsel thereafter addressed the court in writing. In a considered judgment delivered on 30th April 2003, the Lagos State High Court dismissed the plaintiffs’ case in its entirety.

Not being satisfied with the judgment, the appellant has timed this appeal. The appellant filed his grounds of appeal to wit:

“3.1 The court below erred and misdirected itself in law when it held that “the plaintiffs have failed to discharge the burden of proof placed on them to the existence of particular contracts dated 28th May, 1999 and 9th June, 1999 neither have they proven that the defendants are owing them the some of USS66,550.35 as the various exhibits tendered contain different amounts the defendants counsels admission – Exhibit PW6, stated that USS96,000 was the sum owed”.

3.2 The court below erred in law in dismissing the plaintiffs claims 1 and 2 without a due consideration and assigning any reason for doing so and thereby occasioned a miscarriage of justice.

3.3 The court below misdirected itself in law when it held that “The issues arising for determination are as follows:-

1. Was there a valid contract between the plaintiff and the defendants”
2. If so, is the contract legal?
3. Are the plaintiffs entitled to their claims?
4. Are the plaintiffs entitled to interest or damages?” and thereby arrived at a wrong conclusion and occasioned a miscarriage of justice.

3.4 The court below erred in law when it held that “the PW 1 in His testimony had stated that a part of the outstanding sum was being claimed before another Court, however no evidence was placed before the Court to show what part of the outstanding sum if any was due to another client of the 1st plaintiff by the defendant” and thereby arrived at a perverse finding by failing to make the necessary inferences from proved facts.

3.5 The court below erred in law in dismissing the Appellants’ claim after accepting exhibit PW2 in which the Respondent admitted owing the Appellants sum money well above the claim before it.

3.6 The judgment was against the weight of evidence.”

From these six grounds of appeals the appellant distilled three issues on determination:

“1. Whether there was an agreement for which the Respondent was in breach of (Grounds 1 and 3)