METALIMPEX VS LEVENTIS & CO. (NIGERIA) LTD

CORAM

EPHRAIM OMOROSE IBUKUN AKPATA JUSTICE, SUPREME COURT

MADARIKAN JUSTICE, SUPREME COURT

IDIGBE JUSTICE, SUPREME COURT

PARTIES

METALIMPEX APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

This action commenced by a writ in which the appellants claim against the respondents the sum of N102, 702.73 as indorsers of a bill of exchange and in the alternative as guarantors of a contractual undertaking made to the appellants by Messrs. The appellants also claimed interest on the total sum claimed (i.e.,N102,702.73) at 10% per annum until judgment is delivered.

HELD

This appeal succeeded. The judgment of the learned Judge of the High Court together with the order awarding costs of N1,000 to the respondents was set aside.

ISSUES

That they cannot be liable to the appellants because no consideration moved from the appellants to the respondents in respect of the transaction leading to the indorsement by the respondents of the said Bills of Exchange.

In any event, the Bill in question (i.e. in the case in hand) Exhibit E was never properly presented to them and the appellants never gave to them (the respondents) any “notice of dishonor” of the said Bill; accordingly, the appellants cannot, in the circumstances, maintain the present action.

Finally, the appellants ought not to succeed on a plea of estoppel by conduct, which they raised in the lower court relying on the fact of payment to them of the amount due on the first Bill which was due on 31/3/72 and negotiated in Lagos (as earlier on stated) by Dr. Hontvari.

RATIONES DECIDENDI

PLEADING OF FULFILLMENT OF ALL CONDITIONS PRECEDENT IN STATEMENT OF CLAIM

“It is generally unnecessary for a plaintiff to plead in his statement of claim the fulfillment of all conditions precedent, and this is because the due performance or happening of all conditions precedent is usually implied in every pleading.” Per IDIGBE, JSC

SERVICE OF INDORSES WITH NOTICE OF DISHONOR FOR NON-PAYMENT

“It is the law that where the indorser (in the instant case, the respondents) is the person to whom the Bill is presented for payment, it is not necessary to serve him (the indorses) with a notice of dishonor for non-payment.” Per IDIGBE, JSC