Charles A. Kekong & Anor V. Oshegaabang & Ors (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWATU, J.C.A. (Delivering the Leading Judgment)

It was alleged and admitted that the 8th Respondent, a staff by Ogoja Local Government secured a loan of N500,000.00 from the 9th Respondent. The 8th and 9th Respondents claimed that the loan was for the use of the Appellants and the 1st set of Respondents. The loan was to be paid back interest free within one month. It would however attract an interest of 30% per month in default. All the Respondents except the 2nd set as well as the Appellants worked for the Ogoja Local Government either as career Civil servants or members of the Local Government Caretaker Committee. Contrary to the case of the second set of Respondents (as Plaintiffs) the 1st Set of Respondents and the Appellants (as Defendants) claimed that the money was spent on a political function of the Ogoja Local Government Caretaker Committee. As the appellants and the 1st set of Respondents defaulted in repaying the loan the 2nd set of Respondents (as Plaintiff) proceeded by way of undefended suit and claimed the following reliefs from the Appellants and the 1st set of Respondents (as defendants):

1. N500,000.00 from the defendants jointly and severally.
2. Interest rate of 30% per month from April 2003 till date.
3. Interest rate of 10% from judgment till final liquidation.
4. N90,000.00 costs.

The defendants to the suits filed their notices of intention to defend accompanied by affidavit allegedly disclosing defence on the merit. The matter was subsequently transferred to the general cause list. The parties were allowed to rely on their various affidavit in place of formal pleadings.

Ogoja Local Government was joined as a 3rd party on the Application of the 3rd and 4th defendants now 1st and 2nd Appellants by Itam J. who then presided. The name was struck out by another judge who then presided. After a full dress trial Learned Counsel for the parties filed written address which were later adopted.

In his judgment delivered on 28th day of October, 2008, the Learned trial Judge, Edem J. found:

“that the plaintiffs have proved their claim which they brought to court and are therefore entitled to a judicial relief.”

In the flowery, colourful and flamboyant language which has become his identification mark, the Learned trial Judge ordered as follows:

“Where in entering as I do I do hereby enter judgment for the Plaintiffs against the defendants jointly and severally as follows.

1. The sum of N500,000.00 being loan demanded and had by the defendant from the Plaintiff.
2. Interest rate of 30% as undertaken by the defendants from the date on Exhibit 3, 17th April 2003 till this date judgment.
3. 10% interest from the date of this judgment till liquidation of the judgment debt.
4. N9,000.00 costs.

This is my judgment.” (See pages 144-145 of the records)

The 3rd and 4th defendants (now 1st and 2nd Appellants felt aggrieved and appealed on three grounds herein after reproduced, shorn of their particulars:

1. The judgment is against the weight of evidence.
2. The Learned Trial Judge was in grave error when he held that where a principal denies an agent, the agent becomes personally liable for his / her actions.
3. The Learned Trial Judge erred in Law in assuming jurisdiction and holding that the 3rd and 4th defendants did not raise issues touching on jurisdiction in their pleadings.

From their four grounds of appeal (the 4th ground was filed as a additional ground with the leave of the Court) the Appellants presented the following four issues for determination:

1. Whether the Trial Judge was right in holding and concluding that where a principal denies an agent, the agent becomes personally liable for his/her actions.
2. Whether the Trial Judge was right in striking out the name of Ogoja Local Government Council from the suit as a third party when the matter was adjourned for continuation of hearing of evidence of PW1.
3. Whether the Trial Judge was right in assuming jurisdiction when the Plaintiffs claimed interest for a loan where they are not registered money lenders.
4. Whether the Lower Court was not in grave error to have awarded a relief not claimed by any of the parties.

In their brief of argument the Respondents adopted the four issues framed by the appellants in their own brief, and in addition presented the following issue for determination:

“Whether having regards to the records of proceedings compiled by the Appellants, Appellants have furnished the Court with sufficient materials to sustain this appeal.”

Rather than summarise the arguments of Learned Counsel for the parties, I shall refer to relevant parties there of in the resolution of the issues in the appeal.