Ben E. Chidoka & Anor V. First City Finance Company Limited (2012)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C

The respondent, who was the plaintiff at the trial court claimed jointly and severally against the appellants the sum of N486, 780.00k being the debt owed as at 30th July, 1989 arising from the loan facilities granted the defendants/appellants in accordance with Agreements C.P/214 dated 20th December, 1986 and C.P/214 – A dated 19th December, 1986 entered into by the plaintiff and defendants at defendants’ request.

The facts of this case as agreed by the parties in their respective brief of argument are this. The contract between the parties was contracted in 1987 between the respondent, as lender, and the appellants, as borrowers. The appellants are couple doing business together. The money lent was to attract interest at the rate of 132% per annum. The respondent was not a licensed Money Lender at the time it entered into the transaction nor as at the time it sued to recover what was allegedly owing under the contract. This action was brought under a summary judgment procedure, however the trial court transferred it to the general cause list in order to hear and determine the case on merit. Thereafter the plaintiff/respondent proceeded to prove its case and after the close of its case defendants’ counsel sought for an adjournment for the defence to open, but as the record shows, the counsel abandoned the case without the leave of court. The plaintiff/respondent was duly cross-examined by the defendants’ counsel on 6/12/90 after which the plaintiff’s case was closed. All the consequent adjournment on 12/12/90, and 22/2/1991, were at the instances of the defendants/appellants.

(Underlining Mine)

Thereafter a new counsel was briefed to defend the appellants – Mr. Alao Aka – Bashorun (of blessed memory). The defendants on the 14/4/91 sought an adjournment to study the case; it was thus adjourned at his instance to 30/4/91.

On that day the learned counsel was not in court, rather he has sent a lawyer to the court who said that he knew nothing about the case. It must be noted that on the 4/4/91 Mr. Alao Aka – Bashorun specifically asked for the adjournment in order to enable him file an amended statement of defence, but as at date of the case, nothing has been filed. The trial court while refusing an application for adjournment held thus at page 136 of the record:

“I have myself gone through the court’s case filed and nothing has been filed in connection with an amended statement of defence which Mr. Alao Aka-Bashorun vigorously spoke about on 4th April 1991 when the same case came up. One of the two defendants is present in court. Since the plaintiff has closed its case I would presently call on the second defendants’ counsel to present the defendants’ own case. If the defendant is not ready to present her case then I shall be constrained to conclude that she does not wish to call any evidence……”

At this point the defendant’s counsel, Mr. Ajayi said and I quote,

“I am not in a position to ask the 2nd defendant if she has any defence to offer”

In response, the learned trial court ruled as follows:-

I shall therefore at this stage take it that the 2nd defendant does not wish to call any evidence. It is pertinent to recall here that the plaintiff closed its case on 6th December 1990. I regard the cases on both sides closed and I shall now listen to the final address”.

The trial court proceeded to hear the plaintiffs address and adjourned for judgment. That court delivered its judgment on 12/7/91 in which the plaintiff/respondent’s claims were granted.

Dissatisfied with this judgment the appellants unsuccessfully appealed to the Court of Appeal, Lagos Division, hereinafter called the lower court. On 8/5/2000 the lower court dismissed the appeal and affirmed the judgment of the trial court.

On the issue of the illegality of the agreement between the parties, which the appellants contended was illegal on the ground that the respondent not being a licensed Money Lender could not operate as such under the provisions of the money lenders law of the Lagos state cap. 58, the lower court held thus:-