In the court below High Court, Lagos, Lagos State on the 3rd of August, 1993. The respondents as plaintiffs, claimed against the appellant’s as defendant’s in that court a refund of N4,000,000.00 (Four Million Naira) paid to the 1st defendant/appellant as investment by cheque dated 21st April 1993; they also claimed interest on the said sum at 60% per annum (i.e. 5% flat per month horn the 20th July, 1993 until the total sum is liquidated.

After the exchange between the processes such as the writ of summons and the statement of claim, memoranda of appearance by the defendants, summons on Notice and Notice of Preliminary Objection, the defendants brought an application dated 24th August 1993 urging the court below to dismiss the entire suit on the grounds of law raised in their statement of defence.

In summary, the issues of law raised in the defense and set down for hearing are that the 1st defendant/appellant being a limited liability company is a separate and distinct body from it even if they are the directors or managing director’s; they Cannot be personally liable’ no privity of contract between them and the plaintiffs; they finally averred that the action of the plaintiffs is precipitous and premature as their investments have not matured and the cause of action had not accrued as at the date of filing this suit. The plaintiffs reacted to the application calling for the dismissal of their case by filing counter affidavit. After some preliminaries the in court below set-down for hearing the points of law raised in the statement of defense of the defendants. The trial judge took arguments of counsel on both sides where after he adjourned for ruling for the determination of the preliminary points of law so raised in dismissing the preliminary objection on points law, the trial judge on 17th September 1993 held enter alia:

“The 2nd defendant had been alleged to be an agent of the defendant and therefore since the principal is known, the 2nd defendant cannot be sued. But the 1st defendant is acting through human agent and that is the 2nd defendant. The veil of 1st defendant can be lifted and this has been done by the plaintiff to fish out the 2nd defendant the agency through whom the 1st defendant is acting. Therefore the 2nd defendant could be sued. He is the Chairman of the defendant…

The plaintiffs invested N4 million with the defendants and they are claiming the principal back. These they are perfectly in order to do. They are not claiming the interest. ... The interest is not due till certain date. Therefore, I am in agreement with the applicant’s learned counsel, no cause of action has accrued yet on this. Therefore, court has no jurisdiction. But as earlier said, it is an investment and the plaintiffs are entitled to withdraw their investment any date...

This court therefore is of the view that the objection is frivolous. This court is competent and has jurisdiction to adjudicate on the matter...

Again ruling on the application of the plaintiffs for entering of final judgment the learned trial judge on the 26th of October 1993 held:

Dissatisfied with the ruling of 17th September 1993, the 1st and 2nd defendants/ appellants filed a notice of appeal