Chief S. I. Edu V. National Bank Of Nigeria Ltd (1971)

LawGlobal-Hub Lead Judgment Report

MADARAKIN JSC

The present appellant was the 2nd defendant in an action instituted against him and the West African Travel Agency Limited as the 1st defendant in the High Court, Lagos (Suit No. LD/280/66). The plaintiff/company’s claim as endorsed on its writ was as follows:-

“The plaintiffs’ claim against the defendants jointly and severally is for the sum of £11,366-9s-3d being money payable by the defendants for money lent by the plaintiffs to the defendants and for money paid by the plaintiffs for the defendants as bankers for the defendants at their requests and for interest upon money due from the defendants to the plaintiffs up to and including February, 1966. The defendants have failed, refused or neglected to pay the said sum of money to the plaintiffs despite repeated demands.”

After pleadings had been ordered, learned counsel for the plaintiff/company, Chief Sowemimo, sought leave to withdraw the claim against the 1 st defendant (that is, the West African Travel Agency Limited) and it was struck out accordingly. It would appear that the case then proceeded against the 2nd defendant alone. But later in the proceedings, leave was obtained to join the West African Travel Agency Limited again, this time as the 2nd defendant. We shall hereafter refer to Chief Shafi Lawal Edu as the 1st defendant and to the West African Travel Agency Limited as the 2nd defendant/company.

In its statement of claim, the plaintiff/company averred as follows:-

“1. The plaintiffs are a limited liability company carrying on the business of banking with their registered office at No. 82/86, Broad Street, Lagos.

2. Chief S.L. Edu is a reputable business magnate who resides at 26, Queens Drive, Ikoyi.

3. The West African Travel Agency Limited is a limited liability company carrying on his business of a travel agency with its registered office at No. 9A, Martins Street, Lagos.

4. The plaintiff at the request of the West African Travel Agency Limited having been duly guaranteed by Chief S. L. Edu advanced on the basis of overdraft facilities to the said West African Travel Agency a total sum of £11,366-9s-3d inclusive of interest.

5. In pursuance of paragraph 4 above Chief S.L. Edu executed a memorandum of guarantee dated 5th March, 1963.

6. The plaintiffs will rely on the statement of account of the West African Travel Agency with the plaintiffs.

7. The plaintiffs have made repeated futile requests to the defendants for payment of the said sum. Whereof the plaintiff claims as per their writ of summons.

and in the statement of defence of the 1st defendant, he pleaded as follows:-

“1. The first defendant admits paragraph 2 of the statement of claim.