3PLR – MUSA BELLO; UNITED OVERSEAS MERCHANTS LIMITED V. FARMERS SUPPLY COMPANY (KDS) LIMITED

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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MUSA BELLO; UNITED OVERSEAS MERCHANTS LIMITED

V.

FARMERS SUPPLY COMPANY (KDS) LIMITED

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/287/95

TUESDAY, 30TH JUNE, 1998

3PLR/1998/78 (CA)

OTHER CITATIONS

10 NWLR PART 568 PG.64

 

BEFORE THEIR LORDSHIPS:

UMARU ABDULLAHI;

JAMES OGENYI OGEBE;

ATINUKE OMOBONIKE IGE.

 

REPRESENTATION

MAIN ISSUES

PRACTICE AND PROCEDURE -Pleadings -Bindingness of on parties- Evidence at variance with pleadings – How treated.

SHIPPING LAW- Shipping documents- Mere presentation of- Whether conclusive Proof that goods actually imported.

AGRICULTURE AND FOOD LAW

BANKING AND FINANCE LAW

COMMERCIAL LAW

INTERNATIONAL TRADE – CUSTOMS

 

Issues:

  1. Whether on the totality of the evidence the trial court properly directed itself when it held that the appellant failed to discharge its own part of the agreement.
  2. Whether there is any evidence before the trial court which suggests that the 1st appellant was paid and indeed received payment of 80% of the contract sum in his personal capacity thereby making him a proper party to the suit.

Facts:

Before the Kaduna State High Court the respondent, as plaintiff, claimed against the 1st and 2nd appellants, as defendants, jointly and severally, as follows:

(a)     The sum of $190,516.00 (United States Dollars – One Hundred and Ninety Thousand, Five Hundred and Sixteen Dollars only) or its Nigerian Naira equivalent of N4,191,352.00 (Four Million, One Hundred and Ninety One Thousand, Three Hundred and Fifty Two Naira) at the 1995 official exchange rate of N22.00 (Twenty Two Naira) to $1.00 (United States – One Dollar only) being money had and received and or payment made by the respondents to the appellants for the supply of specified agro-chemicals (agro-products) to wit, Ingram Combi 500 EC, Gardonprim A500FW, Apron Plus 50 D5 and Plytrine 440 FC upon the quotation submitted by the 1st defendant and the issuance of purchase orders Nos. 316, 317, 318 and 319 all dated 20th July, 1990 with 180 days as the validity and or delivery durational period and which said ordered goods the defendants have failed, neglected and or refused to honour and fulfil their respective contractual and or quasi contractual obligations despite repeated and persisted demands made by the plaintiff in respect thereof.

 

(b)     Interest at the rate of 2 1 % (Twenty One per cent) per annum on the stated sum of N4,191,352.00 (Four Million, One Hundred and Ninety One Thousand, Three Hundred and Fifty Two Naira) with effect from 21st January, 1991 until judgment is delivered and thereafter at the rate of 10% (Ten per cent) until eventual liquidation.”

 

The facts of the case are that the appellants were given a contract to supply some agro-chemicals to the respondent in the total sum of 238,145 U.S. dollars. Four LPO’S (Exhibits Al-A4) were issued for the contract. It was part of the agreement that on the importation of the chemicals to Nigeria the appellants would be paid 80% of the contract sum and when the goods were cleared and transported to Kaduna, they would be paid the balance of 20% of the contract sum.

 

On the 10th of August, 1990 the appellants wrote a letter to the respondent requesting for the payment of 80% of the contract value and forwarded some shipping documents to show that the chemicals had been imported. 80% of the contract sum was eventually paid to the appellants in an account in London. The appellants collected back the shipping documents to help to clear the goods and demanded a huge sum of money for the clearing. The respondent did not agree with the sum claimed. The respondent asked the appellants to return the shipping documents but they were not returned. When the respondent formed the impression that the goods were not imported as claimed by the appellants, it decided to sue for the recovery of the money already paid to the appellants.

 

The appellants filed a joint statement of defence admitting some paragraphs of the statement of claim and denying others. The 1st appellant who is the managing director of the 2nd appellant gave evidence on behalf of himself and the 2nd appellant. He confirmed that the 2nd appellant was awarded contracts for the supply of agro-chemicals by the respondent and that they actually imported these chemicals and sent the shipping documents to the respondent to arrange clearance of the goods as that was not part of their agreement. The respondent asked them to clear the goods and they demanded a down payment of N450,000 for the clearance but the respondent failed to meet their demand with the result that they lost interest in the clearance. He confirmed the payment of 80% of the contract sum to the 2nd appellant and not himself.

 

The trial court in its judgment found for the respondent as claimed. Dissatisfied with that judgment the appellants appealed to the Court of Appeal.

 

MAIN JUDGEMENT

Held:

  1. It is the duty of a trial court to assess the evidence before it before coming to a decision, and it is not the duty of an appeal court to interfere with the findings of facts made by the trial court unless they are perverse. In the instant case, there is no cause whatsoever to interfere with the trial court’s findings of facts that the appellants woefully failed to prove that the goods contracted for were actually imported. [ Karimu v. Fajube (1968) NMLR 151; Anukanti v. Ekwonyeaso (1978) 1 S.C. 37 referred to].
  2. The mere presentation of shipping documents does not prove conclusively that the goods imported had actually arrived in

 

Nigeria. In the instant case, by the state of pleadings and of the case the burden of proving that the goods were imported fell on the appellants and they were unable to discharge. [Anyanwu v. Mbara (1992) 5 NWLR (Pt.242) 386; Moses Ola & Sons (Nig.) Ltd. v. Bank of the North Ltd. (1992) 3 NWLR (Pt.229) 377 referred to]

  1. A matter or a fact which is admitted does not require any proof. Such fact is taken as proved and any evidence which is at variance with pleadings must be discountenanced. In the instant case, the respondent specifically pleaded in paragraphs 12 and 13 that the 2nd appellant instructed that the money should be paid to the 1st appellant and that was done. In the appellants’ statement of defence, paragraph 6 thereof, the appellants admitted paragraphs 12 and 13 of the statement of claim. With the admission, any contrary evidence denying that the 1st appellant received the money goes to no issue. [Odumosu v. African Continental Bank Ltd. (1976) 11 S.C. 55; Akibu v. Oduntan (1992) 2 NWLR (Pt.222) 210 referred to].
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