BY GABRIEL ENOGHOLASE, BENIN CITY

Injustice. A foreign firm is alleged to be frustrating a judgement debt over a natural rubber contract with a Nigerian company that went sour. The principal of the Nigerian firm allegedly died in the course of the judgement debt recovery.

IN May 1992, a Nigerian firm based in Benin, the capital of Edo State, Agrofeen Rubber Processing Industries (W.A) Limited, owned by Mr. Felix Ogbonna, entered into a trade agreement with the Malaysian Rubber Development Corporation (MARDEC) for the supply to the latter natural rubber from Nigeria.

And to seal the deal,  MARDEC introduced to Agrofeen Rubber Processing (W.A) Limited, in a letter dated 28 October, 1991, one Mr. D.R. Chandran to negotiate with it.

Chandran wrote to Agrofeem to bring a quotation for the supply of natural rubber  which it sent. By November same year, Chandran wrote to Agrofeen making a counter offer. Agrofeen, in its reply, dated 2, December 1991, agreed to reduce its earlier quotations by $15 per tonne  which  MARDEC accepted in its  letter of  7 January, 1992.

Agrofeen said that after both parties had come to an agreement, MARDEC wrote another letter to further reduce the contract into writing. It also requested that  Agrofeen  should delay shipment till March, 1992, but assured  on  its part of the bargain and would take delivery of the rubber as agreed.

Thereafter, both parties agreed on the execution of the contract of sales and purchase  and that a letter of credit would be opened in favour of Agrofeem with the United Bank for Africa (UBA) Plc. But following the death of  Chandran, Mr. Balachandren  Nair was appointed by MARDEC to  act as its agent. Nair  arrived in Nigeria subsequently.

Following the agreement by both parties, Agrofeen said  it raised money from the UBA  Plc to purchase the natural rubber as specified in the agreement , ready for shipment to Malaysia. But  MARDEC, it alleged, neglected or failed to send to its bankers, UBA Plc, the letter of credit to enable the  bankers release more money to it.

Late Ogbonna

It added that when the MARDEC would not send a letter of credit, it wrote a letter to  Nair on 5 August, 1992. But by September 29 1992,  according to Agrofeem, the Malaysian company still  had not dispatched the letter of credit and did nothing towards the performance of  its  own side of the agreement and, in fact,  breached the agreement and, as result, it  suffered special and general damages.

It said that when MARDEC would not bulge, it  wrote to its headquarters in Barhad, Malaysia, complaining of the delay in  sending the letter of credit. Agrofeen also disclosed  its intention to seek a legal option if  MARDEC continued in the  alleged  breach.

Following this development, Ogbonna  approached  a Benin High Court, through his solicitors, H.O.Akpodonor  and Co,  to seek legal redress, claiming $10million or its Naira equivalent for  alleged breach of contract from MARDEC and Nair joined as  second defendant in the suit filed on 26 November, 1992.

Agrofeen  told the court  that following the breach of agreement by the defendants, it suffered special and general damages to the tune of N3,546,000 while its expected profit on the business was N1.5million monthly or N16.5million for the eleven months it did business with the defendants. It  added that the agreed $615 per tonne and the loss it  suffered as a result of the  alleged breach amounted to $10million or its equivalent in Naira.

But the defendants, in a statement of defence, through their counsel, Mr. Peter Otaigbe Esq., claimed that at no time was an agreement reached, adding that the offer made by the plaintiff  to the 1st, defendant was investigated by the 2nd defendant and found to be a smokescreen to dupe the 1st defendant hence the purchase agreement  prepared by the plaintiff was not signed by the defendants.

The trial judge, Justice J.O.Sadoh, in his judgment, after describing the only witness of Agrofeen as a witness of truth, held:“In view of my above findings, I hold that the defendants are in breach of the agreement entered into between them and the plaintiff on 16/1/92”.

The court also held that the plaintiff’s claim of  N1,500,000 as  special damages against the defendants had been proved and therefore awarded same in favour of the plaintiff. On the appropriate damages, the court awarded $10 million or its equivalent in favour of the plaintiff.

However, rather than file an appeal against the judgment of the lower court at the Court of Appeal, MARDEC, through the Malaysia High Commission in Nigeria, in a letter to the  Minister  of Foreign Affairs, Abuja, claimed that  MARDEC had neither  appointed anyone by name Balachandran Nair as its agent or representative nor given him any authority to transact any business on MARDEC’s behalf  and that it  also never appointed any law firm in Nigeria to act on its behalf.

But counsel to Agrofeen, Chief G O K Ajayi, in a  letter to the  Minister of Foreign Affairs, dated 3 March, 2003, dismissed the claims by the Malaysian High Commission in Nigeria. Ajayi said  the judge in the case, after giving both parties an opportunity of being heard, came to the conclusion that the uncontradicted evidence of  the prosecution witness  was credible and therefore gave judgment in the plaintiff’s favour.

He contended that MARDEC must know that the proper place to challenge the findings of a  judge on the issue of credibility of a witness is in a Court of Appeal, and not by a  diplomatic  note.

The Ministry of Foreign Affairs {Trade and Investment Division), Abuja, in a reply to  Ajayi’s  letter,  dated 18 July, 2006,  and signed by  one Adadu Echi, said, “Judging from records available in the Ministry, it seems that the relevant Malaysian authorities have resorted to a conspiracy of silence on the matter. Even, an invitation extended to the Malaysian High Commissioner to Nigeria for a meeting with the Director (Trade and Investment Division) of the Ministry in July 2004 was not honoured. It has therefore become imperative that new strategies to be adopted in pursuing the recovering of the judgment debt”.

He added: “The new strategies being adopted by the ministry include, inter alia, the intensification of diplomatic pressures on the Malaysian High Commission in Nigeria along similar pressures on the relevant Malaysian authorities by the Nigeria High Commission in Kuala Lumpur. This is more so as MARDEC is a malaysian government owned company. The ministry is also seeking for advice from the International Law Department of the Federal Ministry of Justice on other internationally acceptable legal options open to the ministry and your chambers on the case, especially on the bond entered into by the Malaysian diplomatic agent, Mr. Yusof Sarangit,  for the release of Mr. Nair from police custody and his subsequent escape from Nigeria”.

Since the communication to  Ajayi, the ministry  appears to have  washed its hands off  the matter. The  eldest son of  Ogbonna, the deceased chairman of Agrofeen Rubber Processing Industries (W.A) Ltd., Ifeanyi, said  since the death of  his father from complications arising from the high blood pressure he suffered while shuttling between Benin and  Abuja to ensure  the payment of the judgment debt, it has been terrible for  the family as there was no visible means of livelihood to sustain them.

He said that the attitude of the Ministry of Foreign Affairs on the issue had not helped matters. “The  Nigerian government has not helped matters. The Ministry of Foreign Affairs has refused to further communicate with Chief  Ajayi on the issue and  the Nigerian government has not been helpful in  recovering the judgment debt from MARDEC. Even, when my father was going to Abuja in connection with the issue, nothing tangible was done by the officials of the ministry. Chief  Ajayi sent people to the ministry in pursuit of the issue; it was promises upon promises”, Ifeanyi stated.

“We cannot go to court again. It is only the Nigerian government that can help the family to pursue the payment of the judgment debt from the Malaysian government. This country owes it a duty to its citizens to protect them from foreign predators and we urge the government to do something”.

He lamented that MARDEC  no longer listens to the family or  Ajayi, who, he said, has been assisting the family without charging them.

He equally appealed to President Goodluck Jonathan to take  interest in the issue.