Ben E. Chidoka & Anor V. First City Finance Company Limited (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

These two consolidated appeals were brought against the judgment of Silva J., sitting at the Lagos Division of the High Court of Lagos State delivered on 12th July, 1991, in suit No.LD/1669/91 and against his ruling of same date refusing to amend the defendants now appellants, statement of defence to raise a legal defence in the suit.

The appellants are couple. They jointly and severally applied in 1986 to the respondent for loan facilities to enable them execute the business of exporting shrimps to London, United Kingdom. Consequent upon two set of agreement in writing executed by the parties the respondent advanced the loan facilities in the sum of:

(a) N150,000 repayable on or before 20th January, 1987 in the sum of N195,200.

(b) N50,000 repayable on or before 20th January, 1987 in the sum of N61,000.

It would appear that the respondent’s claim leading to the appeal for certain sums of money due from the appellants as at 1/8/89 inclusive of normal and compound interest charges was N486,780. The particulars of claim explain this figure as resulting from charging interest on the sum disbursed and further 3% interest on the sum, apart from flat interest rate of 22%.

The judgment was entered in favour of the respondent against the appellants jointly and severally for the said sum of N480,780.

Dissatisfied the appellants appealed against the ruling and judgment of the lower court.

The solitary ground of appeal of the appellants against the ruling of 12/7/91 with the particular is as follows:

GROUND OF APPEAL

The learned trial Judge did not exercise his discretion judicially and judiciously in refusing the defendant’s application to amend their statement of defence to include the issue of illegality of the transactions on which plaintiffs claims were based, thus, holding that the application was made too late in the day in bad faith and meant to overreach the plaintiff and proceeding to deliver judgment:

PARTICULARS…

(i) The amendment sought did not raise new issues of fact but simply a defence in law which was ex-facie apparent on the plaintiff’s claims in and their evidence on the record.

(ii) The court did not give proper consideration to the obvious circumstance placed before the court by affidavit evidence which necessitated the amendment, i.e. change of counsel due to withdrawal of earlier counsel without leave of court.