Solar Energe Advanced Power System Ltd V. Mr. Albert Oluwatoyin Ogunnaike & Anor (2008)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, J.C.A.,

The plaintiff brought an action at the Lagos State High Court of Justice, sitting at Ikeja against Payless 2 Industrial and Commercial Services Limited, Mr. Vijay Mclwani, Mr. Albert Ogunnaike, United Bank for Africa Plc, respectively as first, second, third and fourth defendants claiming as per its writs of summons as follows-

(a) The sum of N863,740.00 (EIGHT HUNDRED AND SIXTY THREE THOUSAND SEVEN HUNDRED AND FORTY NAIRA ONLY) BEING THE SUM OWED THE PLAINTIFF BY THE DEFENDANTS, REPRESENTING VALUE OF GOODS TO WIT SOLAR PANEL/VENRNER 7 INVERTER GENERATORS AND PV MODULES SUPPLIED BY THE PLAINTIFF TO THE DEFENDANTS AS AT JULY 2000.

(b) INTEREST ON THE AFORESAID SUM OF N846,950.00 (EIGHT HUNDRED AND FORTY SIX THOUSAND AND NINE HUNDRED AND FIFTY NAIRA ONLY) AT THE RATE OF 2.25%PER MONTH UNTIL THE AS AGREED FROM AUGUST, 2000 UP TILL DATE JUDGMENT AND THEREAFTER AT THE RATE OF 15% PER ANNUM UNTIL THE ENTIRE JUDGMENT DEBT IS LIQUIDATED.

GENERAL DAMAGES OF N1,000,000.00 (ONE MILLION NAIRA ONLY)

THE COST OF THIS ACTION”

The substance of the plaintiffs case, enunciated in its statement of claim, is to the effect that at various times in 1999, at the instance of first and second defendants, it supplied goods to be sold on its behalf to the first defendant who was to sell and remit the proceed of sales to the plaintiff; on the basis that those defendants would be entitled to retention of N12% commission of the proceeds.

It was further averred in the statement of claim that as at July 2000, the sum of N863,740.00 remained outstanding and consequently, the first and second defendants issued two post dated cheques drawn on Chartered Bank respectively for N86,240.00 and N105,600.00 as part payment of the said sum. The two cheques were, however, not honoured and were returned unpaid, All steps taken to recover the proceeds of the cheques were to no avail.

It was further averred, in the statement of claim, that by a letter of 13th January, 2000, written by third defendant, the plaintiff was informed of the appointment of the third defendant as the receiver/manager of the first defendant by the fourth defendant. He requested for the details of first defendant’s indebtedness. The plaintiff forwarded an up to dale statement of the first defendant’s outstanding debt to the third defendant and thereafter made several abortive demands for the settlement of the said debt.

The third and fourth defendants failed to file a statement of defence or statements of defence. Rather they brought an application seeking for an order striking them out of the suits. The basis for praying for the relief was that the plaintiff had no cause of action against the two defendants as the third defendant had been relieved of his appointment as receiver/manager over the assets of the first defendant.

Learned trial judge, in a reserved and considered ruling, held that the plaintiff can only proceed against the first defendant on the alleged contract between them. Further if third defendant failed to perform its duties as receiver/manager, it is the first defendant that can properly pursue an action against him or the fourth defendant which appointed him.

Being dissatisfied with the decision of the court below, the plaintiff appealed to this court on 5 grounds of appeal.

Briefs of argument were filed and exchanged. There are appellant’s, appellant’s reply as well as respondents’ briefs.

In the appellant’s brief, the following issues were identified for determination-