Amos Oladejo Oyebode V. Samuel Oloyede (1999)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

The appellant in the Osun State High Court sitting at Ile Ife filed the following claim against the respondent as per writ of summons.

1. A declaration that the Deed of Assignment purportedly entered into and/or executed by both parties in the house of the Defendant on the 11th day of January, 1990, assigning the Plaintiff’s interest in his property, a storey building at Oke Ola Area, Gbogan Oshun State of Nigeria, is illegal, null and void and of no effect whatsoever.
2. A Declaration that the Defendant’s forcible entry and breaking into the Plaintiff’s storey building and the consequent removal of all the properties owned by the Plaintiff without an order of Court is illegal.
3. A Declaration that the One hundred per cent interest charged on the sum of N16,000.00 (Sixteen Thousand Naira) taken as loan by the Plaintiff from the Defendant is a flagrant breach of the money lenders’ law Cap. 74 Vol. IV Laws of Oyo State 1978.
4. A declaration that the defendant has got a power of sale under the law on the plaintiffs storey building which is situate at Oke Ola Area, Gbongan and on any of the properties kept inside it.
5. A sum of N500,000.00 (Five Hundred Thousand Naira) as general and special damages against the defendant for the illegal acts committed on the plaintiff and the plaintiff’s properties during the month of December 1990.

Pleadings were exchanged by parties to wit there was a counter-claim and reply to statement of defence and counter-claim. The plaintiff in his statement of claims asserted that he borrowed the sum of N16,000.00 from the defendant, a money lender, at various times during 1989, and the said amount was paid in full by November, 1989, but without the issuance of receipts. On 11/1/90 the plaintiff signed a document purporting to offer the plaintiff’s personal storey holding as security for unpaid interest on the loan. Unknown to the plaintiff the document was a sale agreement of his storey building which he (the plaintiff) and his family occupied. On 27/12/90 the defendant forcibly broke into the plaintiff’s residence, removed all the properties in it, and prevented the plaintiff from entering therein, and has been put to ridicule. The plaintiff claimed against the defendant as follows (1) A declaration that the “Deed of assignment” purportedly entered into and/or executed by both parties in the house of the defendant on the 11th day of January, 1990 assigning the plaintiff’s interest in his property, a storey building at Oke-Ola Area, Gbongan, Osun State of Nigeria, is illegal, null and void and of no effect whatsoever.

(2) A declaration that the defendant’s forcible entry and breaking into the plaintiff’s storey building and consequent removal of all properties owned by the plaintiff without an order of court is illegal.

(3) A declaration that the defendant has not got a power of sale under the law on the plaintiff’s storey building and consequent removal of all properties which is situate at Oke-Ola Area, Gbongan and on any of the properties kept inside it.

(4) A declaration that the one hundred per cent interest charged on the sum of N16,000.00 (Sixteen Thousand Naira) taken as loan by the plaintiff from the defendant is a flagrant breach of the Moneylenders Law. Cap. 74. Vol. IV laws of Oyo State 1978.

Particulars of damages

5. A sum of N500,000.00 (Five Hundred Thousand Naira) special and general damages against the defendant for the illegal acts committed on the plaintiff and the plaintiff’s items of property during the month of December, 1990.

The respondent’s/defendant’s case was that the total sum of N41,000 was the loan obtained by the plaintiff in four instalments, with an agreed interest of ten per cent and administrative charges of N850. When the plaintiff could not repay the loan he transferred by sale his interest on the said 2 storey building, already used as security for the loan, and an assignment document was made and signed on 11/1/90. The defendant however allowed him to continue to live in the house. In the end the defendant claimed the said sum of N41,000.00 by way of counter-claim, witnesses testified and addresses were made. After a careful evaluation of the evidence the learned trial Judge dismissed the claim of the plaintiff and granted the defendant’s counter-claim in the sum of N41.000.00. Dissatisfied with the judgment the plaintiff appealed to this court on six grounds of appeal.

Counsel exchanged briefs of argument which were adopted at the hearing of the appeal. Three issues for determination were formulated in the appellant’s brief of argument and they are –

a. Whether the contract between the parties was enforceable in view of the statutory provisions of the Moneylenders Law and Illiterates Protection Law of Oyo State, applicable to Osun State.

b. Whether it was proper for the learned trial Judge to have dismissed the plaintiff/appellant’s claim and instead granted the defendant/respondent’s counter-claim.

c. Whether the learned trial Judge had rightly refused to consider in his judgment the award of damages claimed by the appellant.

The issues formulated in the respondent’s brief of argument are in pari materia with those above. In arguing issues (1) and (2) supra, learned counsel for the appellant examined the provision of S.13(1) of the Moneylender Law, Cap. 74. Volume 4. Laws of Oyo State, 1978, as applicable to Osun State, and reproduced the definition of “memorandum” as defined in the 5th Edition of Black’s Law Dictionary. The supra provision enumerates the conditions to be satisfied before a contract by a borrower for repayment of money borrowed shall be enforceable.

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