The respondent sued the appellants before the High Court of Justice Kaduna by a write of summons. In paragraph 39 of its statement of claim it claimed as follows: -

“Whereof the plaintiff claims the 1st and 2nd defendants (jointly and severally) as follows:

The appellants filed a joint statement of defence admitted some paragraphs of the statement of claim and denying others. One Abbas Mohammed Ayatudeen, an auditor with the respondent gave evidence on its own behalf to the effect 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 as per four LPOs received in evidence as Exhibits A1-A4. It was part of the agreement that on the importation of the chemicals to Nigeria the appellants would have 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 forward 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 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 document but they were not returned. When the respondent formed the impression that the goods were not imported as claimed by the appellant, they decided to sue for the recovery of the money already paid to the appellants.

The 1ast 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. Under cross-examination the 1st appellant said that the shipping document did not contain bills of entry and cargo arrival notice as well as liner bill of lading. He said that he could not remember the date the goods arrived at the Nigeria port and did not know the name of the ship owner, but that he forwarded the bill of lading to the respondent and the bill of lading had the name of the ship in it.

The trial court after listening to addresses of counsel gave judgment in favour of the respondent as claimed by it.

Dissatisfied with that judgment the appellants appealed