C.O.P. V. OSSAI & ORS.

• Pages: 134-137

134

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NIGERIAN SUPREME COURT CASES

[1962] N.S.C.C.

Now, what were the terms of the guarantee in the present case? Clause 1 pro-

vides that the consideration is: 'continuing the existing account

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for so long

hereafter as the Bank may think fit, or otherwise giving credit or accommodation

or granting time to the Principal. Clause 2 says that the guarantee shall be ap-

plicable to the ultimate balance,and Clause 3 makes the guarantee a continuing

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one. This guarantee does not expressly prohibit the opening of a further account.

and indeed the terms of the guarantee appear to contemplate that the old account

may be closed and a further account or accounts opened. It is. however, a guar-

antee for the ultimate balance. and I construe this as meaning the ultimate balance

on all accounts.

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In these circumstances, I would hold that the guarantor was not discharged

from liability but That the Bank was obliged to give the guarantor the benefit of cre-

dits in other accounts. As was said in

Mutton v. Peat

(1900) 2 Ch. 79, the method

of book-keeping adopted by the Bank must not prejudice the real rights of the

surety under the guarantee, and the Judge in the present case rightly held that the

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amount due by the guarantor was the ultimate balance as ascertained after treat-

ing all accounts as one unbroken account.

Counsel for the appellant further submitted that amounts exceeding the balance

due on the old account at the time of the guarantee had been paid into the No.2

account and that on this ground there was no liability. I do not think that there is

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substance in this point. The guarantee was a continuing guarantee for the ultimate

balance.

For the reascns given in this judgment I would dismiss the appeal.

Appeal Allowed: Judgment against

the guarantor set aside.

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C.O.P. V. OSSAI & ORS.

COMMISSIONER OF POLICE

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RESPONDENT

V

JONATHAN OSSAI AND OTHERS

In re, EFFIONG BASSEY

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APPELLANT

SUIT NO. FSC 357/1961

FEDERAL SUPREME COURT

ADEMOLA.

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C.J.F.

UNSWORTH.

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F.J.

TAYLOR,

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F.J.

30th March, 1962.

Criminal Law - Trial - Right of accused to opportunity to make defence -

Fundamental right - Magistrate's ruling no case to answer at end of prosecution

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evidence - High Court proceeded to convict and sentence accused - Conviction

under misapprehension that accused had declared in Magistrate's Court that he

would not make his defence - Conviction quashed by Federal Supreme Court.

Legislation - Criminal Procedure Act Cap. 43 sec. 278(16).

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ISSUE:

1. Whether the Federal Supreme Court will allow a conviction of a lower court

where the ccnvict was not given a chance to make his defence.

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