Nigerian Ports Authority V. Construzion General Farsura Cogefarspa (1994)

LawGlobal-Hub Lead Judgment Report

O. IBEKWE, J.S.C. 

This is an appeal from the decision of J.I.C Taylor, Chief Justice delivered on 3rd of January, 1972. The plaintiffs’ amended claim against the defendants is as follows:

“(a) 80,810:0s:0d. money payable by the defendants to the Plaintiff for money received by the defendants for the use of the Plaintiff. Between January, 1966 and July, 1967 the 2nd Defendant cause payment of the said money, the property of the Plaintiff, to the 1st Defendant without authority from the Plaintiff;

(b) 32,324:0s:0d. interest thereon at 10% per annum for four years;

(c) 50,000:0s:0d. general damages; And the Plaintiff claims the total sum of 163,134:0s:0d.

2. Alternatively, the Plaintiff’s claims against the 2nd Defendant for 163,134 damages for Deceit.”

The 1st defendants counterclaimed for the sum of 287,986.

The plaintiffs are a statutory corporation entrusted with the management of the ports of Nigeria. The first defendants are building contractors who were engaged by the plaintiffs to construct what is now known as the second Apapa Wharf Extension. Work began on the Wharf Extension in 1963 and ended in March 1965. The second defendant was, at all material times, the chief executive of the plaintiffs.

Pleadings were ordered and filed The plaintiffs in their statement of claim contended that the 2nd defendant who authorised the payment to the 1st defendants of the amount claimed had no authority to do so; and that in approving the payment he, 2nd defendant, acted fraudulently, and recklessly. That averment was the plank upon which the entire case of the plaintiff rested. For the purpose of clarity, we shall set out the relevant portion of the statement of claim as follows:

“12. Knowing that he had no authority to settle Claim No. 2A (Le. the claim stated above) the 2nd defendant submitted a memorandum dated the 24th day of December, 1965 to the then Chairman of the Board of the Nigerian Ports Authority suggesting that consideration be given to meeting Claim No. 2A.

13. There was no reply to the said memorandum.
14. By letter dated 21st January, 1966, the 2nd defendant falsely represented through the Chief Engineer of the Nigerian Pons Authority to the Consulting Engineers who were by this time resident in London that the Plaintiff/Corporation had agreed to pay to the 1st defendant the money being claimed under Claim No. 2A.
15. There was no reply to the said memorandum.
16. By letter dated 21st January, 1966, the 2nd defendant falsely represented through the Chief Engineer of the Nigerian Ports Authority to the Consulting Engineers who were by this time resident in London that the Plaintiff/Corporation had agreed to pay to the 1st defendant the money being claimed under Claim No.2A .
17. In reliance upon the 2nd defendant’s said representation,hte Consulting Engineers began to issue Certificates covering the payments to the 1st defendant in respect of Claim No. 2A.

“17. The 2nd defendant’s said representation was false and was made fraudulently in that, as the 2nd defendant well knew, he had no authority what so ever from the Board of the Plaintiff Corporation to make any payment for the said Claim No. 2A, or the said represent+ation was made recklessly, the 2nd defendant not caring whether it was true or false.”

Strangely enough, the plaintiffs, at the trial, led no evidence whatsoever in proof of these allegations against the 2nd defendant, which allegations as we have stated, formed the only foundation upon which their case was built. In the words of the learned Chief Justice:

“Now quite a great many epithets have been used in these paragraphs to describe the action of the 2nd defendant amounting to something near criminal or corrupt negligence; but throughout the case for the plaintiff not a shred, and I repeat for emphasis, not a shred of evidence was led or slightest endeavour made to substantiate any of them.”

With particular reference to this aspect of the plaintiffs’ case, it is on record that, in his address, the learned counsel for the plaintiffs in the court below said as follows:

“We put up fraud but we were unable to present a case because our witnesses were absent. We have not put up a case against the 2nd defendant and