YOUNIS V. CHIDIAK & ORS.

• Pages: 138-142

138



NIGERIAN SUPREME COURT CASES

[1970] N.S.C.C.

Appeal allowed: High Court to

continue with hearing of

application for order of certiorari

before another Judge.

YOUNIS V. CHIDIAK & ORS.

5

10

JOHN YOUNIS



APPELLANT

V

RACHEED CHIDIAK AND ANOR.



RESPONDENT

SUIT NO. SC 301/1967



15

SUPREME COURT OF NIGERIA

ADEMOLA,



C.J.N.

LEWIS,



J.S.C.

FATAI-WILLIAMS, J.S.C.

24th April, 1970.



20

Commercial Law - Contract - Guarantee - Loan - Guarantee to pay debt of

another must be under seal unless supported by valuable consideration -

Whether forebearance to sue sufficient consideration for guarantee.

25

ISSUES:

1.

Whether a forebearance to sue constitutes sufficient consideration for a

guaratee?

2.

Whether on agreement to accept a smaller sum in discharging a debt is

sufficient consideration for the guarantee of the debt.



30

FACTS:

The plaintiff claimed against the Defendants a sum of money being total amount

of loans made to the 1st Defendant. The second defendant was sued as guaran-

tor of the 1st defendant. The trial Judge gave judgment for the plaintiff in respect

of the claim against the 1st defendant but dismissed his claim against the 2nd de-



35

fendant.

The plaintiff appealed to this court against the dismissal of the claim against

the 2nd defendant.

HELD:

1.

Exhibit D was a guarantee to pay the debt of another and must normally be



40

under seal; but if it was supported by valuable consideration, it need not be

under seal.

2.

A forebearance to sue or to take the principal debtor to court, given at the

request of the guarantor, is sufficient consideration for the guarantor. In this

case the agreement on the 11th March, 1965 in exhibit D, at the instance of the



45

2nd defendant, to payment of the debt by monthly instalments of £100 with

effect from 1st August, 1965 instead of in one lump sum immediately, was

clearly indicative of the plaintiffs forebearance to sue.

3.

Moreover, the plaintiffs agreement, as set out in the document (exhibit D) to

accept smaller sum in discharging of the larger debt was also ample



50

consideration for the guarantee given by the 2nd defendant.

CASES REFERRED TO IN JUDGMENT:

1.

Crears v. Hunter

(1887) 19 Q.B.D. 341.