Consolidated Resources Limited & Anor V. Abofar Ventures Nigeria Limited (2007)

LawGlobal-Hub Lead Judgment Report

R. C. AGBO, J.C.A.

The appellants as plaintiffs in suit No. LD/2185/2001 filed at the High Court of Lagos State, Lagos Division claimed of the defendant as per paragraph 22 of their amended statement of claim as follows:-

“1. DECLARATION that the defendant was in breach of agreements made on 28/5/99 and 9/6/99 between it and the 1st Plaintiff for the transfer from the Defendant’s oversees account proceeds from its export of cocoa the slim of USS66.550.35 (Sixty-six Thousand. Five Hundred and Fifty United States Dollars. Thirty- Five cents) for which the Defendant had received in Nigeria from the 1st Plaintiff on behalf of the 2nd Plaintiff the Naira equivalent of same to the 2nd Plaintiffs overseas customer.

2. ORDER for specific performance of the said agreements of 28th May 1999 and 9th June 1999 made between the Plaintiff and the Defendant for the transfer of sum of USS66.550.35 to the 2nd Plaintiff’s overseas customer.
3. ALTERNATIVELY to 2 above. AN ORDER directing the Defendant to pay over to the Plaintiffs the sum US$66.550.35 of its Naira equivalent at judgment.
4. Interest on the said sum of USS66.550.35 at the rate of 35% from 9th June 1999 till judgment and thereafter at the rate of 4% till final payment.
5. FURTHER or in the alternative damages for breach of the said contract.”

The facts of the case as pleaded by the plaintiff was that the 1st plaintiff, a company involved in sourcing and placement of funds and rendering financial advisory services to its customers sourced from the defendant the sum of US$449.600.00 which sum the 2nd defendant paid for in the naira equivalent. The defendant was to pay the agreed 449.600.00 dollars into an account in Singapore designated by the 2nd plaintiff. The defendant paid into the designated account the sum of 393.049.65 US Dollars leaving a balance of US Dollars 56.550.35. This contract was entered into between 28 May 1999 and 9th June 1999. As a result of this failure, the 2nd plaintiffs business suffered as its overseas customers refused to avail him all the goods he had ordered. Plaintiffs made several demands of the defendant to pay the said sum outstanding. It promised to pay but consistently defaulted. On the threat by the plaintiff to resort to the court to recover the dollars owing, the defendant offered to pay 10.000.00 dollars interest provided the plaintiff stayed action on filing the suit. The defendant has refused to pay both the outstanding sum and the 10,000.00 dollars interest. The plaintiff felt compelled to go to court to recover the said sum outstanding.

The defendant did not file a statement of defence nor did it take any steps to defend to defend itself. The case went to hearing. Plaintiffs called two witnesses, tendered some documentary exhibits and closed its case. Plaintiffs counsel thereafter addressed the court in writing. In a considered judgment delivered on 30th April 2003, the Lagos State High Court dismissed the plaintiffs’ case in its entirety.

Not being satisfied with the judgment, the appellant has timed this appeal. The appellant filed his grounds of appeal to wit:

“3.1 The court below erred and misdirected itself in law when it held that “the plaintiffs have failed to discharge the burden of proof placed on them to the existence of particular contracts dated 28th May, 1999 and 9th June, 1999 neither have they proven that the defendants are owing them the some of USS66,550.35 as the various exhibits tendered contain different amounts the defendants counsels admission – Exhibit PW6, stated that USS96,000 was the sum owed”.

3.2 The court below erred in law in dismissing the plaintiffs claims 1 and 2 without a due consideration and assigning any reason for doing so and thereby occasioned a miscarriage of justice.

3.3 The court below misdirected itself in law when it held that “The issues arising for determination are as follows:-

1. Was there a valid contract between the plaintiff and the defendants”
2. If so, is the contract legal?
3. Are the plaintiffs entitled to their claims?
4. Are the plaintiffs entitled to interest or damages?” and thereby arrived at a wrong conclusion and occasioned a miscarriage of justice.

3.4 The court below erred in law when it held that “the PW 1 in His testimony had stated that a part of the outstanding sum was being claimed before another Court, however no evidence was placed before the Court to show what part of the outstanding sum if any was due to another client of the 1st plaintiff by the defendant” and thereby arrived at a perverse finding by failing to make the necessary inferences from proved facts.

3.5 The court below erred in law in dismissing the Appellants’ claim after accepting exhibit PW2 in which the Respondent admitted owing the Appellants sum money well above the claim before it.

3.6 The judgment was against the weight of evidence.”

From these six grounds of appeals the appellant distilled three issues on determination:

“1. Whether there was an agreement for which the Respondent was in breach of (Grounds 1 and 3)

2. Whether from the state of pleadings and the evidence on record the learned trial judge properly evaluated the evidence adduced before dismissing the Appellants’ claims (Grounds 2 and 4)
3. Whether in view of the admission of indebtedness by the Respondent, the order of dismissal of the Appellants’ claims made by the court below was proper in the circumstance (Ground 5).”

On the other hand the respondent formulated only one issue for determination to wit:

“Whether the appellants are entitled to their claim before the lower court in spite of apparent conflict and inadequate evidence adduced in support of same.”

The issues as set out by the appellant are more in consonance with the complaints in the grounds of appeal than that of the respondent.

I hade earlier set out the facts of the case as pleaded by the appellants in their statement of claim. The defendant filed no statement of defence. No issues were therefore joined on the facts. Where a defendant fails to file a statement of defence, he is taken to have admitted the facts pleaded by the plaintiffs – See Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444.  It is trite law that admitted facts need not be proved – Mozie & Ors v. Mbamalu & Ors (2006) 7 SC (pt 11) 154 at 160. Ordinarily therefore, as no Issues were joined, if the appellants had limited their prayers to a liquidated money demand as in their 3rd prayer, it would have been unnecessary for them to lead any evidence at all and the court below would have been left no other duty but to consider the legal effect of the facts so pleaded. However, for the appellants to obtain a declaratory order as sought in prayer number 1. an order I consider completely unnecessary from the facts pleaded, must lead evidence and they did. When a plaintiff leads evidence and the defendant does not, the onus of proof lying with the plaintiff to establish the facts pleaded would be established on a minimum of proof- See Buraimo v. Bamghose (1989) 3 NWLR (pt. 109) 353, Okuebor v. Police Council Supra, New Breed Organization Ltd. v. Erhoiasele (2006) 2 SC (pt.1) 136 at 150. In such instance, the defendant is deemed to have accepted the pleadings and evidence of the plaintiffs “lock, stock and barrel.” – See Eseighe ve Acholor & Anor (1993) 12 SCNJ 82 at 105. In such circumstance the court is left with the function of determining the legal effect of the admitted facts. In the instant case, in the judgment of the court below, it held that it had difficulties in determining the terms of the contract in dispute between the plaintiffs and the defendant. This flies in the face of the unchallenged facts pleaded in paragraphs 5 to 15 of the amended statement of claim and the unchallenged oral testimony of P.W.1. The said paragraphs 5 to 15 of the amended statement of claim is reproduced hereunder:

“5. The 1st plaintiff in the course of its business assists the 2nd plaintiff in sourcing for funds in foreign currency and remitting same to the 2nd plaintiff’s overseas customers who will in turn send the goods ordered by the 2nd plaintiff to Nigeria.

6. The defendant as an exporter of cases and other cash crops to foreign buyers earns quite substantial amount in dollars.
7. The 1st plaintiff buys some of these dollars from the defendants on behalf of its client, in this instance the 2nd plaintiff.
8. Between the 28th May 1999 and 9th June 1999 the 1st plaintiff agreed to buy and the defendant agreed to sell a total of US$449,600 (Four hundred and forty-nine thousand, six hundred United States Dollars) to the plaintiff.
9. In the course of the transaction the 1st plaintiff, made it clear to the defendant that the said amount of US$449.600 was required by the 2nd plaintiff for this importation business.
10. The 1st plaintiff paid the agreed Naira equivalent of the said sum of US$449,600 to the defendant.
11. Thereafter the 2nd plaintiff through 1st plaintiff supplied to the defendant the account number of the 2nd plaintiffs overseas customer into which the foreign currency would be paid.
12. Consequent upon facts averred in paragraph 11 of the plaintiff then instructed the defendant to pay in the said sum into namely:

BANK ABN Ambo Bank N-V

63 Chulia Street

Singapore, 049514

ACCOUNT NO. 40-27-094

ACCOUNT NAME: Dai-Ichi Pte Limited

ORDER OF: Paulius Ozonnagbo

13. The defendant party complied with the 1st plaintiffs instruction to remit the whole US$449,600 to the 2nd plaintiffs customer by remitting a total of USS393.049.65 leaving a balance of USS56,550.35.
14. As a result of this shortfall in the remittance of the entire sum of USS449,600 which Naira equivalent had been paid in full to the defendant, the overseas customers of 2nd plaintiff could not send the entire goods ordered by the 2nd plaintiff.
15. The defendant’s failure, neglect and/or refusal to remit the balance of USS56.550.35 to 2nd plaintiffs overseas customers has adversely affected crucial business relationship between the 1st plaintiff and the 2nd plaintiff who paid the Naira equivalent of the entire sum of USS449,600.”

The testimony of P.W. 1 agreed completely with the pleaded facts. Plaintiffs pleaded several transactions with the defendant but limited its claim to the particular transaction that took place between 28th May 1999 and 9th June 1999 involving the sum of US$449,600.00. The exhibits showing a higher volume of indebtedness by the defendant do not conflict with the pleadings as the plaintiffs acknowledged other transactions but limited its claim to the particular transaction the subject matter of this litigation. In the light of the pleadings and evidence before the court, the finding of the court below that the terms and conditions of the contract cannot be determined is perverse. It was also pleaded and proved that the defendant in order to obviate the losses suffered by the plaintiffs over its failure to remit the total amount of US Dollars purchased of it, it offered to pay an additional $10.000 dollars, an offer accepted by the plaintiffs. Plaintiffs’ counsel in his address to the court below expressed doubt as to the feasibility of giving effect to the 2nd prayer i.e. the prayer for a specific performance. The court below ought to have had no difficulty in granting the alternative prayer which is the 3rd prayer.

However, the appellant’s claim for pre-judgment interest is on shaky ground. This is because not only must a claim for interest be specifically pleaded but such pleading must disclose whether or not the interest is based on contract or statute and the ground upon which the claim is based. Where the interest claimed is founded on contract express or implied, the terms of the contract or relevant facts relied upon must be pleaded. If the claim for interest is founded on the equitable jurisdiction of the court, the relevant facts founding the claim must be pleaded – Sec S.J. Maskin Fachric A/S v. Olaogun Enterprises Ltd. (1999) 14 NWLR (pt 637) 128. The facts founding the prayer for 35% pre-judgment interest, not having been pleaded, that claim cannot be sustained. So also the alternative prayer for damages for breach of contracts as the parties themselves had agreed on $10.000.00 a sum incorporated in prayer NO.3.

This appeal succeeds. The judgment of the High Court of Lagos State dated 30th April 2003 is hereby avoided. In its place I hereby order as follows:

(1) There shall be judgment for the plaintiffs in the sum of US66,550.35 against the defendant.

(2) Interest at 4% of the judgment debt from 30th April 2003 until the payment of the total judgment sum.

(3) Costs to the appellants is assessed at N 10.000.00

---

Other Citations: (2007)LCN/2208(CA)