National Bank Of Nigeria Ltd. V. Weide & Co. Nigeria Ltd. & Ors (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

This is yet another appeal which revolves on Order 10 of the High Court of Lagos State (Civil Procedure) Rules 1972. The Rules are very often misapplied and misconstrued by some judges and practitioners. The result is that endless delays are caused while waiting for the outcome of interlocutory appeals which are the by products while the substantive cases are left in the cooler.

The plaintiff who is the appellant before this court instituted a civil action in the High Court of Lagos State in April, 1987 claiming the following reliefs from the defendants:

“1. Judgment against the First defendant in the sum of N950,015.66 (Nine hundred and fifty thousand and fifteen naira sixty six kobo) and interest thereon at the rate of 9 1/2% per annum from the 1st day of March, 1987 until the whole debt with interest is settled.

2. Judgment against the Second defendant in the sum of N2,867,932.25 (Two million, eight hundred sixty seven thousand nine hundred and thirty two naira twenty five kobo) and interest thereon at the rate of 9 ‘bd % per annum from the 1st day of March, 1987 until the whole debt with interest is liquidated.
3. Judgment against the First, Second, Third and Fourth defendants jointly and severally in the sum of N1,200,000.00 and interest thereon at the rate of 9 1/2 % per annum from the 1st day of March, 1987 until the whole debt and interest arc paid.
4. Judgment or an order that the plaintiff can exercise its powers as an equitable mortgagee to sell any or all the landed properties of the First and Second defendant (sic) at Iganmu, Lagos. Ilupeju, Lagos and Isolo Industrial Estate, Isolo, Lagos in order to use the proceeds of such sales in liquidating all or part of the debt of N3,817,947.91 payable by the defendants as at 28th February, 1987 with interest thereon at the rate of 9 1/2% per annum from the 1st day of March, 1987,”

The writ of summons was specially endorsed and accompanied by statement of claim. The 1st, 2nd and 3rd defendants entered an unconditional appearance by their memorandum of appearance 8:4:87. The fourth defendant could not be served with the writ of summons.

On 5:5:87, the plaintiff applied by summons to the court for summary judgment under Order 10, rule 1 of the High Court of Lagos State (Civil Procedure) Rules, 1972. The summons was supported by an affidavit deposed to by one Fidelis A. Ogunleye, the Loans Manager of the plaintiff’s Bank. Exhibits “A” – “D” were annexed to the affidavit. The defendants filed a counter-affidavit in opposition to the plaintiff’s application for judgment. A statement of defence was annexed to the counter-affidavit. The 3rd defendant, Dr. Onagoruwa, also filed a motion praying the court to strike out his name from the writ of summons.

The summons for judgment and the motion to strike out the name of the 3rd defendant were for convenience taken together by the learned trial Judge who in a reserved ruling, after hearing arguments, dismissed the applications for summary judgment and to strike out the name of the 3rd defendant from the summons. The defendants were granted unconditional leave to defend the action.

The plaintiff being dissatisfied with the ruling of the High Court appealed to the Court of Appeal and that court in a unanimous decision dismissed the appeal on 9:2:89. The plaintiff has further appealed to this court against the decision of the Court of Appeal. Five grounds of appeal were filed and from these grounds of appeal, the following seven issues have been identified by the appellant for determination in the appeal:-

“The first issue for determination in this appeal is whether the defendant/respondents have admitted in the letter dated 18th July, 1986 which they wrote to the plaintiffs/appellant liability to pay the loan/overdraft of N3,446,674.20 and interest thereon at the rate of 9 1/2% per annum as at 31st May 1986.

The second issue for determination is whether the onus of proof was not on the defendants/respondents who admitted liability to pay the debt of N3,446,674.20 to prove that they have settled the debt instead of putting up a sharp defence that they made a mistake in making the admission.

The third issue for determination is whether the third defendant/respondent who had executed a deed of guarantee to pay the debt of the first and second defendants/respondent can be heard to say that he is no longer the guarantor contrary to the provisions of the deed of guarantee which was executed under seal.

The fourth issue for determination is whether the written undertaking given by the defendants/respondents to pledge the landed properties of the defendants/respondents as securities for the loan/overdrafts granted by the plaintiff/applicant has created an equitable mortgage in respect of which the Court can make an order to sell the landed properties.

The fifth issue for determination is whether the mere fact that the defendants/respondents filed a Statement of defence or a counter-affidavit or both is sufficient ground for ruling that the application for judgment should be dismissed in order to adduce oral evidence without considering whether or not the Statement of Defence or the Counter-Affidavit or both constituted a valid defence in law.

The sixth issue for determination is whether this Honourable Supreme Court of Nigeria should set aside the two concurrent findings of fact of the trial court and the Court of Appeal of Nigeria.