Sanusi Brothers (Nigeria) Limited V. Cotia Commercio Exportacao E Importacao S. A. (2000)

LAWGLOBAL HUB Lead Judgment Report

WALI, J.S.C.

The respondent as plaintiff filed in the High Court of Justice, in the Lagos Judicial Division a specially indorsed writ wherein he claimed as follows:-

‘The Plaintiff’s claim as indorsed on the writ reads as follows- The plaintiff’s claim against the defendant is for Five hundred and sixty thousand, three hundred and fifty-eight dollars and seventy-three cents ($560,358.73) (United States Dollars), being the currency of account and payment, or its current equivalent in Naira under the Second Tier Foreign Exchange Market, for interest payable on overdue bills in respect of goods sold and delivered by the plaintiff to the defendant at the request of the defendant, made up as follows:-

(i) The sum of Three hundred and seventy-nine thousand four hundred and seventy-five dollars and seventy-three cents ($379,475.73) United States Dollars) being the overdue interest; and

(ii) The sum of One hundred and eighty thousand, eight hundred and eighty-three dollars and forty-two cents ($180,883.42) (United States Dollars), being interest payable on the above sum of money from the 26th day of February, 1985 till the 26th day of April, 1987 or until the date of judgment.

Particulars of claim are as contained in the annexure attached hereto and the interest thereon as stated in clause (ii).”After service of the writ and its annexures, the defendant filed his statement of defence and an application on notice dated 9th July, 1987 in which he was asking for the plaintiff to give security for costs; it being a foreign corporation carrying on business in Brazil with no tangible assets within the jurisdiction of the High Court of Lagos State. The application was fixed for hearing on 14/9/87.

The plaintiff on his part by an application dated 21/8/87, filed on 31/8/87 and fixed for hearing on 12/10/87 (sought) for leave and order of the court to enter judgment against the defendant as per the writ of summons and statement of claim.

The record did not show whether the application for security for costs was moved or abandoned. But by a considered ruling of the trial court delivered by Ayorinde J, [as he then was], the application for leave to sign judgment against the defendant was granted on 9/6/88 as prayed. In the ruling the learned Judge concluded as follows –

“In respect of Order 10, leave of court is required to allow the defendant to defend. But leave will only be granted upon the defendant satisfying the court that he has a good defence to the action on the merit or upon the defendant disclosing such facts as may be deemed sufficient to entitle the defendant to defend generally. Such facts are required to be given on oath or affidavit. But an issue of law constituting a good defence need not be given by affidavit.

The defendants have failed to disclose such facts upon affidavit which are sufficient to entitle them to defend generally. The agreement showed that the defendant had to pay 11% interest in respect of the 1st 180 days on overdue debts and thereafter 22% for 360 days. These are well calculated and computed. There are no facts challenging these averments.

The plaintiff does not prove such fact beyond reasonable doubt. In this country sections 134-136 of the Evidence Act govern the burden of proof. There is no defence on the merit and there is insufficiency of facts to enable them defend generally. There is nothing. The defendant raised the defence of frustration and illegality. The first part is based on an imagination that the Nigerian Government made a regulation prohibiting payment of interest over and above 180 days. The court takes judicial notice of all laws and regulation. The burden or onus of bringing such regulation to the notice of the court as a special defence is on the defendant. They have failed in this respect. I hold that such regulation did not exist in light of Exhibit C where the defendant obtained permission in Form 17.

There is no frustration. This is tied up with illegality. There is no evidence or fact of any illegal deal. The plaintiff dealt with the defendant through an authorised agent i.e. U.B.A. LTD. It was not illegal to pay interest on overdue account. There is no defence on the merit and mere filing of a sham defence cannot stop the court from giving judgment. On the question of rate of exchange,

Miliango’s case settles the issue that it should be from the date of the writ of summons or the date the order of judgment is made. In this case, I hold it should be from date claimed by the plaintiff in the statement of claim i.e. date of the writ of summons.

Finally, there will be final judgment for the plaintiff as per the statement of claim with costs.”