Mr. L. A. Ohiowele V. Mr. Edward Ighodaro (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 18/10/2007 by the High Court of Edo State holden in Benin City (hereafter simply referred to as “the lower court”) presided over by Hon. Justice P. I. Imoedemhe (hereafter simply referred to as “the learned trial Judge”). The lower court entered judgment in favour of the Respondent as Plaintiff before it, in respect of one out of the three claims he brought against the Appellant as Defendant.

The facts of the case briefly stated are that the Respondent brought the instant action against the Defendant claiming the sum of N6,664,800.00 (Six Million, Six Hundred and Sixty Four Thousand Eight Hundred Naira) as loan given to the Appellant between March to October 1997; pre-judgment interest at 30% per annum from 18/10/1997 till judgment and interest at 10% on all the sums owed by the Appellant as solicitor’s fees for which he has been exposed by recovering his money through court action.

In his pleading the Appellant controverted the case set up by the Respondent in pursuit of the claims before the lower court. The Appellant set up a case that two of the post dated cheques pleaded by the Respondent were issued in anticipation of a loan he did not actually receive. It is also his case on the pleading that the Respondent was seeking to hold him (Appellant) liable for a loan extended by the Respondent to one Mr. Philemon Abu whom the Appellant introduced to Respondent.

Parties adduced evidence before the lower court in respect of their respective cases as set up in their pleadings. Documentary evidence was also relied upon by the parties at the hearing of the case. Having had the benefit of addresses of the parties, and after evaluating the evidence (i.e. oral and documentary) before it, the lower court in its judgment found that the Respondent did not establish his entitlement to the claims for solicitor’ fees; and pre-judgment interest. The lower court accordingly entered judgment in favour of the Respondent against the Appellant for the sum of N6,664,800.00 being money had and received by the Appellant from the Respondent between March 1997 and October, 1997. Costs in the sum of N5,000.00 was also awarded in favour of the Respondent.

Being aggrieved with the decision of the lower court the Appellant lodged an appeal against the same by a Notice of Appeal dated 9/11/2007 and filed on the same date. The Notice of Appeal contains two grounds of appeal. The grounds of appeal shorn of their respective particulars read thus:

“GROUND ONE

The learned trial Judge erred in holding that the inconsistency in the evidence of the plaintiff/Respondent is immaterial despite the fact that the contradiction goes to the root of the Plaintiffs case.

GROUND TWO

The learned trial Judge erred in law in holding that the Plaintiff is entitled to the presumption under Section 30(1) Bills of Exchange Act Cap 35 Laws of the Federation 1990.”

Parties filed and exchanged Briefs of Argument in accordance with the Rules of this Court. Appellant’s Brief of Argument dated 13/1/2009 and filed on the same date but deemed to have been properly filed on 28/10/2009 was settled by M. O. Okhuarobo Esq. Respondent’s Brief of Argument dated 2/6/2010 and filed on the same date but deemed to have been properly filed on 14/4/2011 was settled by J.O. Odion Esq.

The appeal was entertained on 12/2/2013. At the hearing of the appeal, O. A. Lawani of counsel for the Appellant and J. O. Odion learned lead counsel for the Respondent respectively, adopted and relied on the Briefs of Argument of their clients as hereinbefore identified, in aid of their positions in the appeal.

Two issues were formulated for the determination of the appeal in the Appellant’s Brief of Argument. The issues read thus: –

“1. Whether the Respondent proved his case before the trial Court that the Appellant is indebted to him to the tune of N6,664.800.00.