Billionaire Niyi Oyedele’s company, Westcom Technologies and Energy services Limited has been ordered by a federal high court sitting in Lagos to pay the sum of $12,064,435 to a Swiss based company, Transclear S.A. being demurrage accrued on several ship load of bulk cement sold to a the defendant company on credit by the plaintiff company.
Oyedele’s other company, Spark-West Steel Industries was one of the major debtors, which non-performing loans of N278bn wrecked Oceanic Bank.
The judgement of the court presided over by justice Musa kruya was sequel to a suit filed before the court by a lagos lawyer, Barrister Olumide Sofowora (SAN) on behalf of Transclear S.A. company.
According to the testimony of the Managing Director of the swiss company, Mr. Attila Paulovits while being led in evidence by his counsel Mr. Sofowora(SAN) as per his written statement on oath in support of his statement of claim told the court that on the 7th of September 2009/9 the plaintiff company entered into an agreement to supply five cargoes of bulk cement to Westcom Technologies and Energy services Company on credit and the company was supposed to pay for the consignment as per the terms of the said agreement.
The bulk of the cement were delivered as agreed but were not discharged from the vessel by the defendant as at when due resulting in the accrual of demurrage on all the vessels to the tune of $8,500,000 which became due and payable to the various ship owners.
Mr. Paulovit further told the court that the defendant company pleaded with the plaintiff to continue to supplying it with cement based on the terms and agreement and promise to defray the outstanding demurrage, thereafter additional four ships loads were supplied and statement of account of the demurrage accrued on the nine vessels shows the defendant was indebted to the plaintiff to the time of $12,063,435. Base on several agreements and promises the defendant promised to pay while he came to Nigeria on several occasions and held several meetings with both Messers Niyi Oyedele and Kola Sowande who are the chairman and Managing Director of Westcom Technologies and Energy services LTD respectively who promised to pay the debt but till date the defendant has failed, and refused to pay the outstanding sum, Consequently the plaintiff in order to maintain its goodwill amongst the various ship owners worldwide so as not to be blacklisted had to settle the outstanding demurrage, with accrued interest at the rate of three percent.
Mr. Paulovits tendered seven documents as exhibits to support his claim.
In its defence, the defendant’s company Managing Director Mr Kola Sowande while being led in evidence by his counsel Mr C.H Nwuke adopted his witness statement on oath he deposed to and tendered six documentary evidence in support of his defence under cross examination admitted that indeed and in truth the sum of US $12,063,444,96 was due and owing to the plaintiff and that the money has not been paid, but contended that the plaintiff claim is not truly a claim for demurrage as to confer the requisite jurisdiction on the court to entertain the plaintiff’s legal action.
In addition the defendant contended that the plaintiff did not establish any agreement of carriage of goods by sea between the two parties, there was no shipping agreement between the parties from which a demurrage claim could ensue and such claim was one for a simple debt over which the court has no jurisdiction. In addition the defence witness contended that the sum of $12,064,435 claimed by the plaintiff under the agreement is not supported by any consideration since the acknowledgement agreement of the debt was not made under seal.
However in his judgement, the justice Musa Kruya while ordering Westcom Technologies and energy services LTD to Transclear S.A. the sum of US$12,064,435 said “I have reviewed the facts of this case, in civil actions the standard of proof on the preponderance of evidence, consequently, it is the duty of the party to an action to adduce evidence which ought to reasonably satisfy a court that the facts sought to be proved is established.
“In conclusion I am of the firm view that based on the admission of the defendant’s witness under cross-examination alone the plaintiff has proved his case preponderance of evidence entitling it to judgement.
“I am of the further view that the agreement dated 25th october, 2011, which was tendered as, exhibit the debt acknowledgement agreement is valid in law to create an obligation on the defendant to pay the sum of $12,064,435=00 to the plaintiff since it was voluntarily signed by the defendant first before sending same to the plaintiff for execution.
“Consequently, judgement is hereby entered in favour of the plaintiff against the defendant as per the writ of summons and interest on the said $12,064,435 at the rate of three percent per annum from 29th September 2011 till the whole amount is paid.”