Harry Akande V. General Electric Company & Ors (1976)

LawGlobal-Hub Lead Judgment Report

A. N. ANIAGOLU, JSC. 

Leave to appeal against the Ruling of the Federal Court of Appeal dated 12th December, 1978, in the above case, was granted to the plaintiff/applicant on 7th March 1979, and after hearing argument of counsel on either side, this court, on 26th March 1979, set aside, with costs, the Order of the Federal Court of Appeal –

(a) granting leave to appeal to the General Electric Company of U.S.A. Nigeria Ltd., from the order of the High Court of Lagos dated 28th September 1977 dismissing the application of the said General Electric Company of U.S.A. Nigeria Ltd., to set aside services on them of the writ of summons, in the above case;

(b) extending the time within which the said company should appeal;

(c) granting stay of proceedings of the substantive suit in the High Court pending the determination of the appeal; and reserved the reasons for the judgment to a later date. We now give the reasons. It is necessary to give a brief narrative of the facts which constitute the background to the plaintiff’s application in these proceedings and, in order to avoid any possible confusion by reason of the similarity in the names of the 1st defendants and the General Electric Company of U.S.A. Nigeria Ltd., to designate the latter appropriately as “the interveners” and to refer to them throughout, in this Ruling, as such.   The writ of summons in the substantive case, issued on 19th May 1977, contained the endorsements of the plaintiff’s claims as follows:-  “The plaintiff claims –

(i) against the defendants jointly and severally a declaration that the International Sales Representation Agreement covering transportation market and dated 5th August, 1975, and made between the 1st defendant of the one part and the New Africa Technical and Electrical Company Limited of the other part was never validly terminated and did not expire until June 30, 1976.

(ii) against the 1st defendant the sum of US $720,460.00 (or its equivalent in Nigerian Currency) being commission payable under the beforementioned agreement by the 1st defendant to New Africa Technical & Electrical Company Limited plus interest at ten percent from the date of default to the date of judgment.

(iii) against the defendants jointly and severally a declaration that each and every other agreement between the 1st defendant on the one hand and the New Africa Technical and Electrical Company Limited on the other in respect of which commissions are payable to the latter company remains or remained valid until the date of their expiration and were never validly terminated or otherwise than by effluxion of time.

(iv) against the 2nd and 3rd defendants jointly and severally a true and correct account of all sums paid by the 1st defendant to the 2nd and 3rd defendants as commission being sums received by the said defendants as agents de son tort of the New Africa Technical and Electrical Company Limited in respect of the contracts referred to in paragraphs (i) and (iii) hereof, and payment over to the New Africa Technical and Electrical Company Limited of any sum found due on taking such account.”

A conditional appearance to the suit, upon a memorandum of appearance dated 22nd June 1977, was entered by a firm of solicitors, Fred Egbe & Co., on behalf of the 1st defendants. The reason for the conditional appearance was evident from the affidavit dated 28th July, 1977 sworn to by one Sikiru Agboola Lasisi, described in the affidavit as a “Legal Executive of 8/10 Broad Street”. It would appear that one John Maddox, the Sales Engineer of the interveners, was served at 739 Adeola Hopewell Street, Victoria Island, with the writ of summons and the statement of claim meant for the 1st defendants. This affidavit of Sikiru Agboola Lasisi, containing ten paragraphs, reads:

“1. That I am a subscriber to the Memorandum and Articles of Association of General Electric U.S.A. (Nigeria) Limited.

2. That I am a Director of the said General Electric U.S.A (Nigeria) Limited and by virtue of my position I am conversant with matters relating to the composition and affairs of General Electric U.S.A. (Nigeria) Limited.

3. That the subscription shares issued in the said General Electric U.S.A. (Nigeria) Limited have been issued to myself and Michael Ihenokoram, Nigerian citizen of 8/10 Broad Street, Lagos.

4. That no other shares have been issued in the said General Electric U.S.A. (Nigeria) Limited.