Chief Chris Nwankwo V. Chief Francis Arthur Nzeribe (2003)

LawGlobal-Hub Lead Judgment Report

SUNDAY AKINOLA AKINTAN, J.C.A. 

This is an appeal from the judgment delivered by Njiribeako, J. sitting at Oguta High Court on 5th October, 1997 in suit No. HOG/42/97.

The present appellant was the defendant while the present respondent was the plaintiff. The plaintiff’s claim before the court as set out in paragraph 8 of the statement of claim is as follows:
“1. The sum of N21,969,600 being money lent by the plaintiff to the defendant pursuant to written agreements dated 30th August, 1991 and 2/11/91, which money the defendant has failed, refused and/or neglected to pay to the plaintiff despite demands.
2. Interest on the said sum calculated at 21% per annum from 1st January, 1993, until judgment is entered.
3. Interest on judgment sum calculated at 4% per annum until satisfaction is made by defendant.”

The statement of claim was filed along with the writ of summons on 19/11/96. The plaintiff applied for and was granted leave to put the claim on the undefended list. The defendant, upon service of the writ, filed an application that he intended to defend the claim and prayed the court to therefore, transfer the claim from the undefended list to the general cause list. His application was granted.

The court therefore ruled as follows on the request for the case to be transferred from the undefended list to the general cause list.
“Court: This suit was listed for hearing on the undefended list. This was because the claim arose from a loan transaction. The document evidencing the loan was filed. The defendant was served. The defendant has filed a notice of intention to defend. He raised a defence of illegality of the transaction. Quoting paragraph 23 of the supporting affidavit: “That my counsel informs me and I verily believe him that the parties executed exhs. A & A1 in clear breach of the law and provisions of the Constitution of the Social Democratic Party.” This is a viable defence. If the loan transaction is tainted with illegality then it is the law that it cannot be enforced by any court of law. I shall admit the defendant to defend but since the issue is one of law, I do not consider it necessary to make an order for pleadings. I will proceed to hear the case without pleading.”

The case was then adjourned to another date for hearing. At the resumed hearing, the plaintiff gave evidence in support of his claim. He tendered the documents he relied on in the course of his evidence. He was duly cross-examined by learned Counsel for the defence. At the end of the cross-examination of the plaintiff, the said plaintiff closed his case. The defendant was then called upon to open his case. But learned Counsel for the defence told the court that:
“My Lord I am not calling evidence. We rely on plaintiff’s case.”

Learned Counsel for the plaintiff then addressed the court. His address was followed by that of learned Counsel for the defendant. Learned Counsel for the defendant submitted that the plaintiff failed to prove his claim in that the contents of the documents he relied on (exhs. A, B & C) were at variance with his evidence. Also, it was submitted that since the plaintiff claimed interest on the amounts loaned, as per exhs. A & A1, the plaintiff contravened the provisions of Money Lenders Law.

The transaction is therefore said to be illegal. The loan granted to the political party is also said to be in breach of section 2(1)(2) of the Transition to Civil Rule (Political Parties Registration and Activities) Act (Cap. 442, Laws of the Federation of Nigeria, 1990). The case was then adjourned for judgment.

In his reserved judgment delivered on 5th October, 1997, the learned trial Judge held, inter alia, that the plaintiff partially proved his claim. Judgment was therefore entered in his favour in the sum of N15,469,000. He was also awarded N8,000 as costs. The sum awarded was exclusive of any claim for interest.

The defendant was dissatisfied with the verdict of the court. He has appealed against it to this court. Five grounds of appeal were filed against the judgment. The parties filed their respective brief of argument in this court. The appellant formulated the following three issues in the appellant’s brief.
“1. Whether the trial court had jurisdiction to hear the case on 10/4/97, when the conditions precedent was not complied with.
2. Whether the trial Judge having assumed jurisdiction was right having transferred the suit to the general cause list, yet refused to order pleadings especially in view of the provisions of Order 25 rule 6(1).
3. Whether upon a proper direction on the evidence the lower court was right to have held that the plaintiff proved his case and was entitled to judgment.”

The respondent, on the other hand, also formulated three similar issues but with slight modifications. I therefore do not consider it necessary to reproduce them, since I consider the three issues formulated by the appellant as quite appropriate in resolving the questions raised in the appeal.

The facts of the case are that both the plaintiff and the defendant were friends. They were also politicians. As at the time in question, the two men were members of the same political party – the Social Democratic Party (SDP). The defendant requested from the plaintiff loans to enable him finance his political ambition of contesting the governorship of his State, Enugu State, on the platform of their political party, the Social Democratic Party (SDP). The plaintiff said he granted the request. On 30/8/91, the plaintiff said he released a total sum of N17,384,600 to the defendant and that the said loan was covered by a written agreement (exh. A.).

According to the written agreement (exh. A), the amount advanced was to be used by the defendant as follows:
“The sum of N6,507,900 provided to the party in the borrower governorship aspirant’s State before the date of this agreement. The sum of N10,876,900 received and signed for by the borrower governorship aspirant to fund the primary elections…”

The borrower was required, under the agreement, “to pay back to the lender within 90 days of his taking office as Governor of Enugu State…”