Nishizawa Limited V Strichand N. Jethwani (1984)

LawGlobal-Hub Lead Judgment Report

OBASEKI J.S.C.

The Nigerian General Motors Ltd. of 56 Marina, Lagos was indebted to the plaintiffs, a limited liability company based in Japan whose registered address is No.83 Chome, Bingo-Machi, Higashi-Ku, Osaka, Japan, to the tune of 1,149,198,633 Japanese Yen (One billion, one hundred and forty nine million, one hundred and ninety-eight thousix hundred and thirty three Japanese Yen) and US Dollars 586,412.39 (Five hundred and eighty six thousand four hundred and twelve dollars and thirty-nine cents) the total equivalent value in Naira being N3, 172,533.30 (three million, one hundred and seventy two thoufive hundred and thirty three Naira, thirty kobo). This was on 21st day of November, 1979 when the defendant executed a deed of guarantee under seal (exhibit KM/ 1) to pay the debt to the plaintiff if the Nigerian General Motors Limited defaults in payment of any instalment due. The Nigerian General Motors Limited was to pay the debt in instalments as set out in the schedule incorporated in the deed.

By 16th June, 1981 when the specially endorsed writ was taken out against the defendant, the amount owing was N3,123,466.20 (three million, one hundred and twenty three thousand, four hundred and sixty six Naira, twenty kobo), the value of Japanese Yen 1,005,013,845 and US Dollar 586,413.39. The defendant entered appearance to the writ on the 13th day of July, 1981. After the defendant had entered appearance to the writ, the plaintiff by notice of motion applied under Order 10 rules 1 and 2 and Order 40 rule 1, High Court of Lagos Civil Procedure Rules for an order empowering the plaintiff/appellant to enter judgment against the defendant/respondent as upon the writ of summons and statement of claim. The motion was supported by affidavit verifying the facts pleaded in the statement of claim containing 17 paragraphs. This was on the 23rd day of July 1981.

The defendant did not file any counter-affidavit until the 2nd day of September, 1981. The facts deposed to in the affidavit in support of the motion read:

“I Keigo Muruyama, Company Director, Japanese citizen, of 51 Awolowo Road, Ikoyi, Lagos do hereby make oath and say as follows:

(1) That I am the Managing Director of Nishizawa (Nigeria) Limited a sister company to the plaintiff company in this suit, and by virtue of my position I am familiar with the fact of this case.

(2) That I have the authority of the plaintiff company to depose this affidavit.

(3) That by an agreement in writing and under seal, dated the 21st day of November, 1979, the defendant Strichand N. Jethwani, then of 53 Adeola Odeku Street, Victoria Island, and now of Plot 876, Ozumba Mbadiwe Street, Victoria Island guaranteed payment to the plaintiff company of certain sums of money owed to the plaintiff company by Nigeria General Motors Limited, a company of which the defendant is a director.

(4) That shown to me and marked Exhibit KM/1 is a photostat copy of the said agreement on 21st November, 1979.

(5) That the terms of the said guarantee agreement were, inter alia, that the defendant, in consideration of an agreement between the plaintiff and the said Nigeria General Motors Limited would guarantee the payment by Nigeria General Motors Limited of certain sums due to the plaintiff under that company’s agreement with the plaintiff.

(6) The said guarantee agreement further provided that should the said Nigeria General Motors Limited default in payment to the plaintiff, the entire sum owed to the plaintiff by Nigeria General Motors Limited would be paid by the defendant.

(7) The Nigeria General Motors Limited were under a separate agreement with the plaintiff to make monthly payment to the plaintiff commencing in November, 1979.

(8) That no payments have been made by Nigeria General Motors Limited since February, 1980, because the cheques given to the plaintiff by Nigeria General Motors Limited were returned unpaid.

(9) That shown to me and marked Exhibit KM/2-KM/13 are photostat copies of twelve cheques drawn by Nigeria General Motors Limited on Standard Bank Nigeria Limited 208/212 Yakubu Gowon Street (now Broad Street) Lagos, which were returned to the plaintiff unpaid, and totalling N1,224,347.20.