The Nigerian General Motors Ltd. of 56 Marina, Lagos was indebted to the plaintiffs, a limited liability company based in Japan whose registered address is No. 8, 3 Chome, Bingo - Machi, Higashi-Ku, Osaka, Japan, to the tune of 1,149,198,633 Japanese Yen (One billion, one hundred and forty nine million, one hundred and ninety-eight thousand, six hundred and thirty three Japanese Yen) and US. Dollars 586,412.39 (Five hundred and eighty six thousand four hundred and twelve dollars and thirty-nine cents) the total equivalent value in Naira being N3,172,533.30 (three million, one hundred and seventy two thousand, five hundred and thirty three Naira, thirty kobo). This was on 21st day of November, 1979 when the defendant executed a deed of guarantee under seal (exhibit KM/I) to pay the debt to the plaintiff if the Nigerian General Motors Limited defaults in payment of any instalment due. The Nigerian General Motors Limited was to pay the debt in instalments as set out in the schedule incorporated in the deed.

By 16th June, 1981 when the specialty endorsed writ was taken out against the defendant, the amount owing was N3,123,466.20 (three million, one hundred and twenty three thousand, four hundred and sixty six Naira, twenty kobo), the value of Japanese Yen 1,005,013,845 and US. Dollar 586,413.39. The defendant entered appearance to the writ on the 13th day of July, 1981. After the defendant had en¬tered appearance to the writ, the plaintiff by notice of motion applied under Order 10 rules 1 and 2 and Order 40 rule 1, High Court of Lagos Civil Procedure Rules for an order empowering the plaintiff/appellant to enter judgment against the defendant/respondent as upon the writ of summons and statement of claim. The motion was supported by affidavit verifying the facts pleaded in the statement of claim containing 17 paragraphs. This was on the 23rd day of July 1981.

The Federal High Court did not make an order granting interlocutory injunction, but made an order restraining the Defendants by themselves, their servants, agent and/or privies howsoever called from disturbing, harassing, intimidating, or in any other manner whatsoever interfering with the performance of the duties of the Receiver/Manager of the 2nd Defendant pending the hearing and determination of the Motion on Notice.

The defendant did not file any counter-affidavit until the 2nd day of September, 1981.

The defendant did not challenge the facts deposed to in the plaintiff's affidavit by counter-affidavit. Instead, a clerk in the chambers of the defendant/respondent's counsel deposed to a counter-affidavit which did not challenge the facts in the plaintiff's affidavit but which merely gave indication that counsel intended to file a defence against the claim. The affidavit showed no cause why the application of the plaintiff should not be granted and when defendant's solicitor filed a Statement of Defence it did not meet directly the facts deposed in the affidavit in support of plaintiff's motion.

At the trial court, the plaintiff objected to the procedure of filing a defence adopted by the defendant on the grounds that it was irregular. He was over-ruled, the trial judge being of the view that having gone through the Statement of Defence filed, he was satisfied that there were triable issues for which leave to defend ought to be granted. He dismissed the summons for judgment.

The plaintiff appealed to the Court of Appeal arguing that the learned trial judge erred in law in failing to enter judgment for the plaintiff when the plaintiff's claim was sustainable on the face of it; when he (the trial judge) had found that the defendant had not complied with Order 10 Rule 3; and with the absence of any evidence whatsoever in favour of the defendant, there was no basis for dismissing the summons.

The Court of Appeal dismissed the appeal. Appellant dissatisfied ap¬pealed to the Supreme Court.