S.D.C. Cementation (Nigeria) Ltd. & Anor. V. Nagel & Company Ltd. & Anor. (2003)

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IKECHI FRANCIS OGBUAGU, J.C.A. 

This is an appeal against the decision/ruling of the Adamawa State High Court holden at Yola presided over by T. Oluoti. J. on 7th September, 1995, dismissing the appellants’ application seeking for an order of that court, dismissing the plaintiffs/respondents’ claim in Suit No. ADSY/23/94 on all or any of the grounds stated on the motion paper.

The grounds are as follows:

“(a) that the subject of this case as disclosed in the statement of claim of the plaintiffs dated 18thMay, 1995 is ex-facie illegal and/or contrary to public policy and therefore void and/or unenforceable.

(b) that the fact(s) in the statement of claim of plaintiffs dated 18th May, 1995 are tainted with illegality and therefore void and/or unenforceable.

(c) that the action subject of the above suit (sic) is ex-facie contrary to public policy and/or morals and therefore void and/or unenforceable.

(d) that the purported agreement between the plaintiffs/respondents and the defendants/applicants in the above suit is founded on or springs from an illegal transaction and/or transaction contrary to public policy/morals and therefore illegal, void and/or unenforceable.

The defendants/applicants in the said application, gave notice that at the hearing of the motion, they shall rely on the pleadings and particularly the statement of claim of the plaintiffs/respondents dated 18th May, 1994 as well as the evidence-in-chief of the 2nd plaintiff on 12th April, 1996.

The respondents as plaintiffs in their said suit, claimed various sums of money from the defendants- i.e. the appellants who denied liability. Pleadings were ordered, filed and exchanged. On 12th April, 1995, the P.W.1 – Alhaji Ahmed Njondi and P W. 2 (i.e. the 2nd plaintiff/respondent) – Alhaji Njidda Ahmed Gella, testified and were cross-examined. Exhs. 1 to 4 respectively, were tendered and admitted in evidence.

It was after the evidence of the P.W.2, that the appellants filed their said application for the dismissal of the said suit. The trial court heard arguments on 11th July, 1995, and on 7th September, 1995, dismissed the application and deferred the reasons for the dismissal to a later date. It adjourned further hearing to 18th and 19th October, 1995 as was agreed to by both learned counsel for the parties. On 6th March, 1996, the learned trial Judge gave his reasons for dismissing the said application.

Dissatisfied with the said ruling/decision, the appellants, having obtained the leave of this court on 13th May, 1997, filed the instant appeal on 29th May, 1997.

The facts of the case of the plaintiffs/respondents, are that the 2nd plaintiff/respondent who was the Managing Director of the 1st plaintiff/respondent, on 2nd July, 1990 approached the then Military Governor of the former Gongola State- Group Captain Abubakar Salihu, to award a contract to him in order to assist him – the 2nd respondent, execute the same with a view to raising money/funds to assist or enable him solve some personal pressing financial commitment/problem/indebtedness for which he had been dragged to court by his creditors- First Bank of Nigeria PLC.

The 2nd respondent brought a proposal over the construction or rebuilding of the Jimeta Shopping Complex, Yola which contract had in fact, been awarded to another company- Govas (Nigeria) Ltd. Incidentally, as the 2nd respondent had confessed to the said Military Governor that he did not have the resources/funds to execute the said project, (the shopping complex), the Military Governor advised him- the 2nd respondent, to look for and find a suitable construction firm/company that could execute the said project satisfactorily.

The 2nd respondent had agreed with the said Military Governor that the 2nd respondent would be entitled to a commission or percentages of every payment to be made to the contractor that would execute the said project. Pursuant to this said understanding agreement, the 2nd respondent went and brought the 2nd appellant who is the Managing Director of the 1st appellant.