John Oloko V. Mr. Sunday Awoko Ube (2003)

LawGlobal-Hub Lead Judgment Report

ISTIFANUS THOMAS, J.C.A.

This is an appeal against the decision of Uke, J. of the Cross-River State High Court, Ogoja Division in suit No. HJ/37/97 delivered on 16th June, 1997. The suit was initiated and concluded under the undefended list procedure based on liquidated money demand arising from loan with accrued interest. The appellant who was the defendant being dissatisfied with the judgment of the lower court filed a motion for extension of time to appeal, which was granted by this court.

The appellant filed 5 grounds of appeal from which three issues were distilled for determination.

They read as follows:-
1. Whether this case ought not to have been transferred to the general cause list for the court to take oral evidence in view of the conflicting affidavits.
2. Whether the claim of the respondent as constituted is not statute barred thereby depriving the court of jurisdiction to hear and determine same.
3. Whether the claim of 30% and 20% interest per week compound on the loan was not unlawful and illegal.

The respondent on the other hand in his brief of argument formulated 3 issues for determination that read thus:-
(a) Whether there are any material conflicts in the affidavits to dissuade the lower court from entering judgment for the plaintiff.
(b) Whether the respondent’s action is statute bar (sic).
(c) Whether the interest claim is lawful.

I find the two sets of issues for determination to be identical and they need not to be dealt with separately. I will approach the issues in the manner formulated by the appellant.

In arguing issue No.1, learned counsel for the appellant contended that, the respondent in his affidavit in support of his application to place the suit under the undefended list, had averred that he lent the appellant the sum of N50,000.00 and showed it by exhibiting a loan agreement and part-payment receipts. That the appellant on the other hand denied vehemently ever collecting any loan from the respondent. That the appellant claimed that his signature on exhibit PS2 was signed with the belief that he was witnessing the transaction. That his signature on exhibit PS2 was obtained at 5.00am.

Learned counsel for the appellant further observed that it is disturbing to know that the lawyer Odey Ogbaji who prepared the agreement loan for the appellant and the respondent is also the same lawyer who prepared the notice of intention to defend in which the loan was denied. That the appellant at the lower court had notified the trial Judge that there was a gang-up against him on political grounds and so should be given time to get another counsel.

That the appellant in his affidavit had mentioned names of persons who were present when the discussion of the loan took place.

Learned counsel for the appellant submitted that the learned trial Judge ought to have transferred the suit to the general cause list to enable him hear the parties since the averment of the appellant alleged misrepresentation and an absolute denial of taking any loan from the respondent.

Learned counsel referred to the case U.N.N. v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt. 119) 19,31.

Learned counsel to the appellant concluded arguing this issue by further submitting that this is a case where even the lawyer who drafted the loan agreement could and ought to have been a witness, particularly as to his role between the parties to the extent that he was being accused by his client of ganging up against him.

In reply to the argument of the appellant on issue No. 1, learned counsel to the respondent submitted that there is no conflict in the affidavits of the parties because according to learned counsel:
“construction of any document is a question of law for the Judge to decide and the court cannot be bound by any conclusion made by any of the parties as to what its language means.”

For this proposition, respondent’s counsel referred to the case of Bahamas International v. Thread Gold (1974) 3 All E.R. 1881 at 884. Learned respondent’s counsel referred to the loan agreement exhibit PS2 and identified witnesses called by the parties to witness the agreement.