CORAM
ADOLPHUS G. KARIBI-WHYTE, JUSTICE, SUPREME COURT
MICHAEL E. OGUNDARE, JUSTICE, SUPREME COURT
UWANI MUSA ABBA AJI
EMMANUEL O. AYOOLA, JUSTICE, SUPREME COURT
PARTIES
SAEBY JERNSTOBERI MASKINFABRIC A/ S APPELLANTS
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondent is a company registered in Nigeria which engaged in large scale agriculture. In 1979 it placed an order for a feed-mill machine as well as its spare parts with the appellant, a limited liability company with registered office in Copenhagen, Denmark, which at all material times was carrying on the business of manufacturing and marketing of agricultural machines or equipment. The appellant manufactured and delivered to the respondent the machine in accordance with the respondent’s order.
HELD
The Court of Appeal was wrong in its conclusion that any part of the debt was statute-barred by the principle of the Ijale case.
ISSUES
Whether a cause of action accrues in respect of each instalment that has fallen into arrears and from the date of the falling into arrears?
Whether the appellant, a company registered in Denmark but not in Nigeria, can sue in Nigeria in its corporate name?
Whether it was right for the Court of Appeal to have denied the appellant of the cost of the appeal?
RATIONES DECIDENDI
A FOREIGN CORPORATION MAY SUE IN ITS CORPORATE NAME
The principle of law that a foreign corporation, duly created according to the laws of a foreign state recognised by Nigeria, may sue or be sued in its corporate name in our courts is part of the common law. Per Emmanuel O. Ayoola JSC
WHEN AN APPEAL IS PARTIALLY SUCCESSFUL
When an appeal is partially successful, it becomes a matter purely at the discretion of the appellate court whether or not to order costs or what order of costs to make. In such a case, the principle that a successful party may not be deprived of his costs unless for good reasons, would have less force because, technically, the two parties could be described as “successful parties”.- Per Emmanuel O. Ayoola JSC
AFRICAN CONTINENTAL BANK LTD. CALABER VS JOSEPH AGBANYM 1960 FSC 267/1959 [1960] NSCC 12 INSTALMENTAL PAYMENT IN CONTRACT OF SALE
The matter seems capable of two views. One is that upon each installment falling due, a debt is created as to that installment which is enforceable immediately by action. Another is that the amount of the installment in respect of which a default has been made could be rolled into the next to swell the amount of the next installment, and subsequently, until at the end of the period agreed for the payment of all installments the seller knows and can sue for the balance of the purchase price then remaining unpaid. In the former case, where, as in the present case, the buyer is permitted to pay the purchase price by six equal installments six separate obligations to pay are incurred, each accruing at the time each installment falls due and enforceable by the number of actions as there are defaults. In the latter case, the obligation to pay the purchase price remains a single obligation enforceable, in order not to be caught by the Limitation Law, within six years of the default in paying the whole balance due at the time fixed for the payment of the last installment. In the latter case, where there is no acceleration clause, the whole balance owing becomes due and payable at the end of the period. The latter position which, for one thing, is tidier and more consistent with the existence of one single obligation to pay the purchase price created by the contract of sale, was, in effect, rightly chosen by the trial judge. Per Emmanuel O. Ayoola JSC
CASES CITED
Barclays Bank International Ltd. v Levi Brothers (Bradford) Ltd. (1976) 3 All E.R. 900
Ijale v A.G. Leventis & Co. Ltd. (1961) All NLR 762, 771
Jos Steel Rolling Co. Ltd. v Bernestieli (Nig.) Ltd. (1985) 8 NWLR (Pt. 412) 201 at pg. 209
Koya v United Bank for Africa Ltd. (1977) 1 NWLR (Pt. 481) 251, 269-28
Miliangos v George Frank (Textiles) Ltd. (1975) 3 All E.R. 801 (HL)
The Despina v R. (1979) 1 All ER 421
STATUTES REFERRED TO
The Bills of Exchange Act (Cap 35 LFN, 1990
Limitation Law Cap 64 of the Laws of Oyo State of Nigeria, 1978