Micheal Awieh & Ors V. Chief Johnson Fada Owofio (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Justice, Delta State, sitting in Warri Judicial Division in Suit No. W/3/2005 delivered on the 20th day of May, 2008.

By a writ of summons and paragraph 19 of the amended statement of claim at page 52 of the record of appeal, the Respondent, then plaintiff claimed against the Appellants as defendants the following reliefs:

(a) The sum of Four Million, Seven Hundred and Forty-Two Thousand Naira (N4,742,00.00) being total of the principal sum of One Million and Fifty Two Thousand Naira (N1,052,000.00) and accrued interest thereon for twenty-five (25) months lent to the 1st, 2nd and 3rd defendants on 5/6/02 and duly guaranteed by the 4th defendant.

(b) Monthly interest of fifteen per centum (15%) on the principal sum of One Million and Fifty Two Thousand Naira (N1,052,000.00) from November, 2004 till judgment is finally entered.

(c) Annual interest rate of ten per centum (10%) from the date of judgment till the money is finally paid up.

It is the case of the Appellants that they needed money to carry out a contractual obligation and arranged for a loan of Six Hundred Thousand Naira (N600,000=) with the Respondent who however gave the Appellants the sum of Five Hundred and Forty Thousand Naira (N540,000=), stating that the balance of Sixty Thousand Naira (N50,000=) was withheld by the Respondent as administrative expenses. The Appellants asserted that they never executed the alleged loan agreement, exhibit A. The case was initially commenced under the Undefended List Procedure but later transferred to the General Cause List of the trial Court.

However, it is the case of the Respondent that, the 4th Appellant is his very close friend. That the 4th Appellant was his teacher and they became co-workers later at the Petroleum Training Institute (PTI), Effurun till they both retired. Sometime about the 4th and 5th day of June, 2002, the said 4tn Appellant brought the 3rd Appellant, who is his younger brother and the 1st & 2nd Appellants to him, that is, the Respondent. The 4th Appellant on that occasion pleaded with the Respondent to grant a loan of One Million and Fifty Two Thousand Naira (N1,052,000=) to the 1st, 2nd and 3rd Appellants jointly to enable them execute a contract awarded to them by Shell. The Respondent agreed due to pressure, assurance and guarantee of payment of the said sum within three months by the Appellants.

It was equally agreed among the parties that if the money was not paid within the period of three months, it will begin to attract an interest of fifteen per centum (15%) per month until the principal sum was fully paid or the lender exercised his legal right to recover the loan. An agreement between the parties to that effect was executed, this is, Exhibit A. However, the Appellants defaulted and the Respondent sought to recover his money by filing an action at the trial Court after he had duly given written notices to the Appellants in this regard. The notices of default and commencement of interest are exhibits B & C respectively.

At the trial, the Appellants contended that the Respondent is a registered money lender but failed to deal with them in accordance with the provisions of the Money Lender’s Law of the former Bendel State as applicable in Delta State. The Appellants argued that exhibit A executed by the parties herein in effect is illegal and unenforceable.

The Respondent, on the other part, admitted that, although he is a money lender, in his transaction with the Appellants, he did not act as a money lender because of the cherished relationship he had with the 4th Appellant, hence, he gave the money as a friendly loan to the Appellants. Therefore, he was not obliged to comply with the provisions of the Money Lender’s Law. Accordingly, the Appellants, in their assurance that they will repay the friendly loan within three months at the most, gave a post-dated cheque for the said sum of One Million and Fifty Two Thousand Naira (N1,052,000.00) to the Respondent. The said cheque was drawn on an account with Diamond Bank Plc, Effurun-Sapele Road branch, Effurun, in the account name of Bisco Nigeria Enterprises.

The said cheque was dishonored upon presentation. The said cheque was in evidence as Exhibit D. Also at the trial, the Appellants denied signing exhibit A but that they only signed blank papers. They denied collecting One Million and Fifty Two Thousand Naira (N1,052,000.00) from the Respondent but claimed they borrowed only Six Hundred Thousand Naira (N600,000.00) out of which the Respondent withheld the sum of Sixty Thousand Naira (N60,000.00) as administrative costs. They denied issuing exhibit D, the dishonoured cheque. The 4th Appellant denied knowing the 1st and 2nd Appellants rather he claimed that it was the Respondent who brought them to him to guarantee them because the 3rd Appellant was his younger brother.

At the conclusion of trial, the learned trial Judge entered judgment in favour of the Respondent and against the Appellants jointly and severally. All the reliefs sought by the Respondent as per his writ of summons and paragraphs 19(a) & (c) of the Amended Statement of Claim.

The Appellants were dissatisfied with the said judgment of the trial Court and filed an appeal against it, to this Court vide their Notice and Grounds of Appeal, dated and filed on 22nd May, 2008, containing seven grounds of appeal – see pages 153 to 166 of the record of appeal. The Appellants distilled five issues from the seven grounds of appeal for the determination of this appeal. The five issues are contained in the Appellants’ brief of argument prepared by their counsel, Mr. G.J. Odjeba. It was dated and filed on 22nd September, 2010 but deemed properly filed and served on 14th April, 2011. The five issues read thus: