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When Recovering a Debt – should a debtor seek his creditor at his place of business in order to pay?

Whether A Judge Elevated To The Court of Appeal Can Return To The High Court To Conclude the Hearing and Determination of a Part Heard Matter?

Should a debtor seek his creditor at his place of business in order to pay?

CASE CITATION: NATIONAL BANK (NIG.) LTD. & ANOR. v. JOHN AKINKUNMI SHOYOYE & ANOR. (1977) 5 S.C. 110

DATE OF JUDGMENT: ON FRIDAY, THE 27TH DAY OF MAY, 1977

COURT: SUPREME COURT

SUIT:  SC.312/1975

CORAM:

  1. SIR D. A. R. ALEXANDER(Presided)
  2. GEORGE S. SOWEMIMO
  3. CHUKWUNWEIKE IDIGBE
  4. ANDREWS O. OBASEKI (Delivered the Leading Judgment)

ISSUE(S):   Debt Recovery – should a debtor seek his creditor at his place of business in order to pay?

CASE SYNTHESIS

We may once more turn our attention to the Writ of Summons. The defendants’ address for service the reinstated lies within the jurisdiction of the court and in the absence of evidence to the effect that at the date of the issue of the writ the defendants were not resident in or carrying on business within the jurisdiction of the court or that the agreement for payment of the money was not to be performed within the jurisdiction of the court, the court has no legal justification to decline jurisdiction. It is the law that where no payment is expressly or impliedly specified by the contract the general rule is that it is the debtor’s duty (his place of residence notwithstanding) to seek the creditor in order to pay him at his place of business or residence if it is within the country or realm. In other words, “It is a general principle that money is paid to a creditor by a debtor where the creditor is”- (see Sir Francis Jeune in The Eider 1893 Probate 119 at 128: also Robey v. Snaefell Mining Co (1888) 20 CBD 152 at 154 Stephen, J., citing the authority of Sir Edward Coke to the effect that the obligor of a bond must go to the oblige in order to pay it); and here the allegation is that the 2nd appellant to whom the debt due from the respondent was assigned now resides in Ibadan within the jurisdiction. We may also observe that there is no evidence that leave of the Judge was obtained to seal the writ for service out of jurisdiction as is required by Order 4 Rule 16 of the High Court Civil Procedure Rules if and when is to be served on the defendant who resides out of jurisdiction.

NATIONAL BANK (NIG.) LTD. & ANOR. v. JOHN AKINKUNMI SHOYOYE & ANOR. (1977) 5 S.C. 110 @ 118 – 119 Para 30 – 5

Click to Read Full Judgment

 

Lawbreed Limited

Publishers of Judgments of The Supreme Court of Nigeria (S.C Report) - on the Authority of the Supreme Court of Nigeria

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