Disable Preloader

CaseLaw

AG Federation V. AIC Ltd (2000) CLR 6(t) (SC)

Judgement delivered on June 2nd 2000

Brief

  • Privity of contract
  • Relief not claimed
  • Consequential order
  • Judgement of court
  • Default judgement

Facts

The facts briefly, show that the respondent was appointed through an oral agreement as the sole representative in Nigeria of Aermacchi SPA, an Italian company engaged in manufacture and sale of aircraft. The agreement was reached in May 1981 and a term of the agreement was that the respondent would receive commission of 10% of the net sales by Aermacchi SPA in Nigeria. Aermacchi SPA is the 1st defendant in the suit filed by the respondent in the High Court, the decision in which is the subject of this appeal.

In 1983 the respondent contacted the 1st defendant through the 2nd defendant and reported that it had arranged a final meeting with the Ministry of Defence in connection with a contract and requested the 1st defendant to pay it the agreed commission of 10% for its services. The 1st defendant denied the existence of any such agreement. In paragraph 11 of the statement of claim the respondent averred that 1st defendant had been awarded a contract for Jet trainers in the amount of $81, 943,000.00 US Dollars and the advance payment (10% of the contract sum) was about to be paid and a letter of credit was also about to be opened for the balance. The contract was for the supply of military hardware between the 1st defendant and Ministry of Defence.

On 20th May 1987 a motion was filed by the respondent before the High court with the following prayers:

The facts in brief, are as follows: the land in dispute formerly formed part of the land owned by one Aige, a Yoruba man and native of or an indigene of Ikorodu, Lagos State under customary law or native law and custom. On his death intestate, the property devolved on his children as family property. At some time later, the family decided to partition the family property at Aige family and allotted the land in dispute to one of the descendants of Aige by name Chief T.K. Dada. After his death, the family conveyed by deed of grant the said parcel of land to:

  • i
    "directing the 1st, 2nd and 3rd defendants to file their defence to the above action within such time as the court may prescribe;
  • ii
    that judgment be entered against the 4th defendant in default of his filing a statement of defence;
  • iii
    in the alternative to (ii) directing the 4th defendant to file his defence within such time as the court may deem fit;
  • iv
    directing that a copy of this order shall be served on Mr. G.O.K. Ajayi, S.A.N., and that such service be deemed good and proper service on the 1st, 2nd and 3rd defendants;
  • v
    directing that, pending the trial and final determination of this action, the Federal Government, its servants and agents shall be restrained from paying or remitting or causing to be remitted and the 1st, 2nd and 3rd defendants by themselves or their servants or agents shall be restrained from receiving or accepting any sum or sums in excess of 10% of the total amount due and payable to the 1st defendants in respect of the sale of aircraft and/or spare parts thereof and/or equipment ancillary thereto to the Federal Government under any contract for such sale".

On the 22nd of March 1988, the learned Chief Judge of the High Court of Lagos State heard the motion and granted prayers (i) (iii) (iv) and (v), He refused to grant prayer (ii) which sought for judgment to be entered against the 4th Defendant i.e. the Attorney-General of the Federation who is the appellant in this appeal. The appellant did not file a statement of defence as was demanded in prayer (iii) of the motion. He however filed a counter affidavit, paragraphs 10, 11 and 12 of which read as follows:

  • 10
    "That the claim is based on an alleged breach of a written contract between the plaintiff and the 1st defendant to which the 4th defendant is not a party and has not played any part whatsoever in the making thereof, nor does the 4th defendant have any interest whatever in the contract,
  • 11
    That S.N.C. Harris-Eze Esquire, learned counsel seised of the matter informed me and I verily believe it to be true that no meaningful defence can be filed by the 4th defendant without the statement of defence filed by the 1st to 3rd defendants to know facts in dispute and allegations otherwise connecting the 4th defendant if any.
  • 12
    That the plaintiff has no cause of action against the 4th defendant who should be struck out of the suit for misjoinder".

    • The learned trial judge, S.O. Hunponu-Wusu, considered the affidavits filed before him and in a considered ruling, made the following order against the appellant:

    • "The 4th defendant is hereby ordered to pay to the plaintiff the amount due to the 1st to 3rd defendant pending with the said Ministry of Defence in satisfaction of this judgment debt of US Dollars $8,194,300.00 (or its equivalent in Nigerian currency"

      • It was against the above decision that the Attorney-General of the Federation filed an appeal before the Court of Appeal. The Court of Appeal, coram, Sulu Gambari J.C.A. (as he then was) Niki Tobi and Ubaezonu, J.J.C.A., unanimously dismissed the appeal.

      He further appealed to the Supreme Court.

Issues

  • i
    Whether the learned Judges of the Court of Appeal erred in law by...
Read More