Sino-afric Agriculture & Ind Company Limited & Ors V. Ministry Of Finance Incorporation Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the leading Judgment)

This appeal emerged from the decision of the Kano State High Court dated 22/6/2009 in suit No. K/170/2007. The facts leading to this appeal are that by the Specially Endorsed Writ For Service Out Of Jurisdiction dated the 29th March, 2007 and the Endorsed Statement of Claim pursuant to Order 5 Rule 10 of the Kano State High Count (Civil Procedure) Rules, the Respondent herein, as the Plaintiff therein, claimed against the Appellants (the Defendants therein) the following:

“a. The plaintiffs claim the sum of Three Hundred and Fifty-Five Million, Six Hundred and Thirty One Thousand, Nine Hundred and Six Naira and Sixty Seven Kobo (N355,631,906.67) being the balance of the money paid to the first and second defendants by the plaintiffs for the supply of Fertilizer. The amount paid by the plaintiffs to Sino-Afric Agricultural And Industrial Company Limited by reason of two insurance Policies Nos. A1001800090984 and H0016000901044 issued by the 3rd defendant.

b. Special damages against the defendants jointly and severally in the sum of N130,545,656.67 being incidental expenses expended by the plaintiffs to transport to Kano from Lagos the 183,505 bags of fertilizer the plaintiffs took from the defendants.

c. Special damages from the defendants jointly and severally in the sum of N750 (Seven Hundred and Fifty Naira) per bag in respect of the 183,605 bags of fertilizer.

d. The plaintiffs claim the sum of Fifty Million Naira exemplary damages from the 1st defendant for breach of contract.

e. The plaintiffs claim the sum of Fifty Million Naira from the 2nd defendant exemplary damages for breach of contract.

f. The plaintiffs claim the sum of Fifty Million Naira exemplary damages for breach of contract from the 3rd defendant.

g. The plaintiffs claim jointly and severally against the defendants in the sum of N10,000.000 (Ten Million Naira) being general damages for breach of contract – the failure to supply to the plaintiffs the fertilizer and the failure to redeem the bonds.

h. The plaintiffs claim the sum of Fifty Million Naira punitive damages from the 3rd defendant for breach of contract.

i. General damages in the sum of N10,000,000 for breaches which gave rise to loss of harvest and farm produce.

j. Special damages from the defendants jointly and severally to the tune of One Hundred Million Naira being sums incurred at the alternative arrangement to purchase the fertilizer in order minimize loss.

k. Cost of this action.”

Upon service of the originating process on the Defendants, they filed their respective Memorandum of Conditional Appearance/Appearances under protest on 11/6/07 and 8/6/07 respectively. Then on 26/9/07, the 1st and 2nd Appellants filed a Motion dated 25/9/07 for an order that the suit is incompetent as the condition precedent to the filing or instituting the action has not been fulfilled and for an order staying the proceedings in the suit pending the appointment of an arbitrator.