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

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

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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.

5. That the 1st defendant-Company owns no shares in General Electric U.S.A. (Nigeria) Limited.

6. That when the necessary approval has been obtained from the Ministry of Finance, 9,999 of the shares of General Electric U.S.A. (Nigeria) Limited will be owned by the General Electric Technical Services Company Inc., a corporation organised under the laws of the State of Delaware, U.S.A. and one share will be owned by Mr. E.F. Roache of U.S.A.

7. That on 16th June 1977 John Maddox, Sales Engineer of General Electric U.S.A. (Nigeria) Limited was served with Writ of Summons and Statement of Claim for the 1st defendants in this suit.

8. That John Maddox, Sales Engineer of General Electric U.S.A. (Nigeria) Limited is not an officer of the 1st defendant company.

9. That plot 739 Adeola Hopewell Street, Victoria Island the address at which the summons was served is the temporary office of General Electric U.S.A. (Nigeria) Limited and not the principal place of business of the 1st defendants in Nigeria.

10. That I make this affidavit in support of the application to set aside the service of the writ on the 1st defendants.”

The said affidavit was in support of an application dated the same 28th July, 1977 made by Fred Egbe & Co. (solicitors) to the High Court seeking the order of the said court to set aside the service of the writ of summons on the interveners. The application came before Johnson, J., who on 26th September 1977 dismissed it with N12.00 costs. A further application dated 3rd August 1977 for extension of time within which to file the Statement of Defence and to file an appeal against the Ruling, was refused with N20.00 costs. It would appear that the interveners, by their Solicitors, filed, on 16th December, 1977, in the Lagos High Court an application for leave to appeal to the Federal Court of Appeal against the Ruling of the High Court dated 26th September 1977. By reason of the limitation of time provided for in Section 25(2)(a) of the Federal Court of Appeal Decree, 1976 No. 43 of 1976, and lack of jurisdiction in the High Court to extend the time as is evident from the provisions of sub-section (4) of the same section, the High Court, quite properly, dismissed the application with costs.    Thereupon the interveners applied for leave of the Federal Court of Appeal to –

(i) appeal against the order dismissing their application to set aside service of the writ of summons on them;

(ii) appeal against the ruling refusing their application for adjournment of their motion seeking extension of time within which to file their statement of defence; and

(iii) appeal against the order striking out 1st defendants’ motion for extension of time within which to file their statement of defence. They also applied to the Court of Appeal for an order –

(iv) extending the time within which to appeal; and

(v) staying the proceedings in the suit pending the determination of the appeals in (i) , (ii) and (iii) above.

The Federal Court of Appeal granted the application in (i) and (v) above; found it unnecessary to make any orders on (ii) and (iii) above, but held that the interveners were not debarred from filing a statement of defence, if they considered one necessary, should the appeal for which leave was granted fail.    It is from this Ruling of the Federal Court of Appeal that the plaintiff has applied to this court for leave to appeal and has in the said application set out the grounds of his application as follows:-

“1. The learned Justices of appeal erred in law in granting to the applicant/company, the General Electric of U.S.A. (Nigeria) Limited, extension of time within which to seek leave to appeal when –

(i) the said company not being party to the suit, has not shown that it has any interest in the matter; and

(ii) the said company has not given any substantial reason known to law for the delay in applying for leave within time.

2. The learned Justices of appeal erred in law in granting leave to appeal to the said company when the said company, not being a party to the suit, has not shown that it has any interest in the matter.”    In his brief in support of his application for leave to appeal the plaintiff put down the questions for the determination of this court to be – “(a) Whether the Federal Court of Appeal has jurisdiction to grant leave to appeal to the respondent (i.e. the General Electric of U.S.A. (Nigeria) Limited); and (b) If the said court has jurisdiction whether leave ought to have been granted bearing in mind the special “circumstances of this case.”  The

Other Citation: (1976) LCN/2317(SC)