Bendel Insurance Company Plc V. B.c.m. Finance & Securities (Nigeria) Ltd (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A. 

The respondent in this appeal as the plaintiff took out a writ of summons and claimed against three defendants jointly and severally including the appellant in the Kaduna State High Court the following reliefs:

1. “(a) Money which became due and payable on or about 1-9-91 by the 1st, 2nd and 3rd defendants jointly and severally to the plaintiff being money N550,000.00 lent by the plaintiff to the 1st defendant on or about 13-6-91 and interest there on secured by the credit Bond No NBCB 12469 of 6-6-91 executed by 2nd defendant as surety, obligor or guarantor of the Loan in favour of the plaintiff N720,000.00k.

(b) Default interest at 5% of the principal sum (N550,000.00) per week (i.e. N27,000.00 per week) from 11-9-91 to 5-11-91… N220,000.00.

2. Default interest at 5% of the principal sum (N550,000.00) per week (i.e. N27,000.00 per week) from 6-11-91 until the date of judgment.
3. Interest at the rate of 10% of the judgment sum per annum from the date of judgment “until the final and full payment of the judgment sum.”

The other defendants in the action at the lower court along with the appellant are Allied Holdings (Nigeria) Ltd as 1st defendant and Prince Tunde S. Adebo as the 3rd defendant.

Pleadings were duly filed and exchanged between the parties. In reaction to the plaintiff’s statement of claim, the 1st and 3rd defendants filed a joint statement of defence while the 2nd defendant filed a separate statement of defence. The plaintiff also filed a reply to the statement of defence filed by the 2nd defendant. At the conclusion of pleadings, the case went to trial before Yahaya J. of the Kaduna High Court where the plaintiff called only one witness who testified on its behalf in the course of whose evidence 25 documents were tendered and received in evidence in support of the plaintiff’s claims. The 1st and 3rd defendants though filed a joint statement of defence did not call any evidence in their defence but chose to rest their case on the case made out by the plaintiff. The 2nd defendant however called one witness who testified on its behalf and tendered 5 documents which were received in evidence in support of its defence. In the course of the trial, the 2nd defendant attempted to amend its statement of defence but the application was refused by the learned trial Judge.

At the end of the trial, the learned trial Judge after reviewing the oral and documentary evidence before him in a well considered judgment delivered on 29-4-1994 granted all the plaintiff’s claim against all the 3 defendants in 3 separate findings of distinct liability against each of the defendants. The 1st defendant which virtually did not contest the plaintiff’s claims against it was found liable to the plaintiff on the evidence led by the plaintiff. The 3rd defendant who sought to escape liability by putting up a defence that he was not personally liable to the plaintiff for the repayment of the loan granted to his company the 1st defendant, was also found liable to the plaintiff for having personally signed and received the loan on behalf of the 1st defendant by the application of the provisions of section 290 of the Companies and Allied Matters Act, 1990. The 2nd defendant which strongly contested the plaintiff’s claims on the main ground that it did not issue the bond which guaranteed the loan granted to the 1st defendant was also found liable to the plaintiff having regard to the evidence before the learned trial Judge. Part of the judgment against the 2nd defendant at pages 97-98 of the record of trial court reads –

“In view of the above therefore, I hold that the 2nd defendant is liable to the plaintiff as per the agreement in Exhibit 20 which also recognizes the issue of interest and charges on the principal sum. I therefore enter judgment for the plaintiff against the 2nd defendant also in the like term as follows:-

(a) The sum of N720,000 being principal and interest.

(b) The sum of N220,000.00 being default interest at 5% per week (N27,000.00 per week) from the 11-9-91 to the 5-11-91

(c) Default interest at 5% of the principal sum, per week (27,000.00 per week) from the 6-11-91 until today the 29-4-94 being the judgment date.

(d) 10% interest per annum of the judgment sum from the 30-44-94 until the whole judgment sum is totally liquidated.”

It is apparent that the 1st and 3rd defendants against whom judgment was also entered for the plaintiff have no complaint against the judgment. However, the 2nd defendant was not happy with the decision of the trial court and had decided to appeal not only against the judgment of 29-4-1994 but also against the refusal of the learned trial judge to grant its application to amend its statement of defence in the ruling of the lower court of 22-4-1993. This appeal therefore is essentially between the 2nd defendant which is the appellant and the plaintiff now the respondent. The appellant’s Notice of Appeal dated 17-5-94 contains two original grounds of appeal while the 3rd additional ground of appeal was filed by the appellant with the leave of this court. The 3 grounds of appeal without the particular are as follows:-

“1. The judgment is unreasonable, unwarranted, and cannot be supported having regard to the weight of the evidence adduced.

2. The learned trial Judge erred in law, in refusing the appellant, leave to amend the pleading statement of defence in this suit.
3. That the learned trial Judge erred in law in awarding 5% interest per week on a principal sum of N550,000 from 13/6/91 – 10/9/91.”

Briefs of argument were fully filed and served in accordance with the rules of this court. The appellant’s brief of argument initially contains 5 issues for determination distilled from the 3 grounds of appeal. However at the hearing of the appeal on 28-10-1996, the learned counsel to the appellant was forced to abandon the 5th issue for determination which was not linked to any of the 3 grounds of appeal. The 5th issue was accordingly struck out. The remaining 4 issues identified in the appellant’s brief of argument are: