C. Onyemelukwue V. West African Chemical Company Limited & Anor (1994)

LawGlobal-Hub Lead Judgment Report

TOBI, J.C.A.

TOBI, J.C.A. (Delivering the Leading Judgment): The appellant, as plaintiff, claimed from the respondents jointly the following reliefs:-

“1. The sum of N2.300500 being loan granted to the 1st defendant/company in December 1987 and guaranteed by the 2nd defendant to be repaid within 60 days.

2. Interest at 21% on the said sum from January 1989 till the date of judgment and 6% from the date of judgment till the date of settlement.
3. Forfeiture of the property situate, lying and being at 215 Idowu Martins Street. Victoria Island to the plaintiff.”

The respondents jointly entered appearance on 7th December. 1989. They filed their statement of defence that day. The appellant brought a summons pursuant to order 10 rules 1 and 2 of the High Court (Civil Procedure) Rules. 1972 for an order entering final judgment in his favour against the respondents jointly.

The learned trial Judge did not see his way clear in granting the prayer sought in the summons. He refused it. In the last sentence of his 11th April, 1990 Ruling,

the learned trial Judge said:-

“As I have found earlier that the plaintiff failed to discharge the burden placed on him in the first part of Order 10 rule 1(a), this application fails and it is dismissed with costs fixed at N 100 to the defendants jointly and severally.”

Dissatisfied with the Ruling, the appellant filed an appeal. Briefs of arguments were filed and duly exchanged. Appellant formulated the following four issues for determination:-

“(i) What was the app ication before the court?

(i i) Was there a verified cause of action before the court’?

(iii) Were there evidence of the loan before the court and the actual amount owing?

(iv) Was there any defence to the loans of $200.000 and $15,000 claimed before the court?”

The Court also held that the defence put up by the respondents did not amount to good defence. Also dissatisfied with this, they filed a cross-appeal and formulated the following issues for determination in both the main appeal and the cross appeal:-

“2.1. Whether the court was in error of law in interpreting or construing Order 10 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 1972, in holding that the facts deposed to by the deponent in paragraphs 3 and 8 of the Affidavit did not constitute proof of plaintiff’s cause of action to satisfy the requirements of Order10?