National Bank Of Nigeria Ltd Vs Guthrie (Nig.) Ltd & Anor (1970)

LawGlobal-Hub Lead Judgment Report

UWAIS, JSC. 

An action was com­menced in the High Court of Lagos State by a Writ of Summons taken out by the appellant as plaintiff, against the respondents as 1st and 2nd defendants respectively. In the Statement of Claim filed by the plaintiff paragraph 14 thereof reads thus:-

’14. Whereof the plaintiff claims against the 1st and 2nd defendants jointly and severally as follows:­

(1) Declaration that the 2nd defendant is liable as the guarantor of the 1st defendant to pay the balance of overdraft in the sum of N512,584.75 and interest thereon.

(2) Judgment for N512,574.75 being balance of the overdraft payable by the defendants as at the 31st day of August, 1984 and interest thereon at the rate of 13% (thirteen per centum) per annum with effect from the 1st day of September, 1984 until the whole debt with interest is settled.

(3) Any further judgment or other orders as this Honourable Court may consider necessary to give in favour of the plaintiff in the interest of justice.’

Subsequently, the plaintiff brought a motion under Order 28 Rule 6 and Order 35 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules, Cap.52 of the Laws of Lagos State, 1973 in which he asked for the following orders:

‘1. An order for declaration that the 2nd defendant is liable as the guarantor of the 1st defendant to pay the balance of overdraft in the sum of N512,534.75 and interest thereon.

2. An order entering judgment against the 1st and 2nd defendants jointly and severally in the sum of N512,534.75 being balance of the overdraft payable by the defendants as at the 31st day of August, 1984 and interest thereon at the rate of 13% (thirteen per centum) per annum with effect from the 1st day of September, 1984 until the whole debt with interest is settled.

3. Any further order or other orders as this Honourable Court may consider necessary to give in favour of the plaintiff/applicant in the interest of justice.’

The affidavit in support of the application states in paragraphs 4 to 13 as follows:-

‘4. That the 1st defendant was a customer of the plaintiff at the plaintiffs branch at No. 123, Itire Road, Lawanson, Surulere, Lagos:

5. That the 1st defendant made an application dated the 30th day of January, 1984 for an overdraft of N1,000.000.00 (one million naira) for working capital and also another overdraft of N500,000.00 for Letter of Credit.

6. That the 2nd defendant executed a written guarantee dated the 1st day of March, 1984 as the guarantor of the 1st defendant in the sum of N500,000.00 (Five hundred thousand naira) in order to settle any balance or part of the balance of overdraft that might be granted by the plaintiff to the 1st defendant within a period of six months from the 1st day of March, 1984 to the 30th day of August, 1984. (A copy of the written Guarantee is attached hereto and marked Exhibit A).