Ms. Becky Tofi V. Mr. L. T. Chen (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL JCA (Delivering the leading Judgment)

This is an appeal against the judgment of the High Court of Benue State, Gboko Judicial Division in suit no GHC/392/2008 delivered on 20th July, 2009. The Appellant herein was the Plaintiff before the lower Court. In a statement of claim dated 25th February, 2008, the Appellant as Plaintiff claimed as follows:-

“The Plaintiff is aggrieved and therefore claims from the Defendant, the sum of N362, 800 (Three Hundred and Sixty Two Thousand, Eight Hundred Naira) only, special damages being the sum owed the Plaintiff.”

In a statement of defence dated 23rd June, 2008, more particularly in its paragraph 13, the Defendant (Respondent herein) denied the claim and prayed the lower Court to dismiss it for being frivolous, vexatious and an abuse of the process of the Court.

The respective pleadings of the parties were supported by their depositions. Also, the Defendant/Respondent accompanied his depositions with the depositions of his 2 witnesses. Issues having been duly joined, the matter went to trial. At the trial, the Appellant gave oral evidence and also tendered a document which was admitted and marked as Exhibit A. For the defence of the action, the Respondent testified and also relied on the oral evidence of DW1, Mr. John Orga and DW2, Mr. Timothy Asen. Before their respective oral testimonies, each of the witnesses identified, adopted and relied on their respective depositions.

At the end of trial respective learned Counsel filed and exchanged written addresses. In a well-considered judgment the learned Trial Judge decided thus:-

“The Plaintiff in this matter wants this Court to enforce her money lending transaction with the Defendant in which she charge outrageous interest over three hundred percent) interest (sic) into the loan she gave to the Defendant without a money Lenders license. This is a clear illegality, which this Court cannot give credence to, All in all the Plaintiff’s claim fails and it is consequently dismissed.” (see lines 29-33 at page 36 of record of appeal)

The Appellant was dissatisfied with this decision and appealed to this Court in a notice of appeal dated 27th July, 2009 but filed on 29th/7/2009; respective learned Counsel filed and exchanged briefs of argument, pursuant to Order 17 of the 2007, Rules of this Court. The Appellant’s brief is dated 19/10/2009 but filed on 29/10/2009, while the Respondent’s brief, is dated 11/5/2010 but filed on 12/5/2010. At the hearing of the appeal before us on 7th April, 2011 respective learned Counsel adopted and relied on their briefs of argument, without more. While learned Counsel Mr. Ayua for the Appellant urged on us to allow the appeal and set aside the judgment of the lower Court, Mr. Akaazua for the Respondent prayed for an order affirming the appeal and order dismissing the judgment now on appeal herein.

In the Appellant’s brief, learned Counsel formulated and argued 2 issues out of the 3 grounds of appeal. They are as follows:-

(1) Whether Exh. A was properly interpreted by the Trial Court; and

(2) Whether the Respondent had proved that interest was charged on the money borrowed from the Appellant to warrant the transaction being termed illegal by virtue of the Money Lenders’ Law of Benue State, 2004.

Learned Counsel to the Respondent adopted and also argued these issues.

In arguing his issue 1, which was formulated out of grounds 1 and 2 of the grounds of appeal, learned Counsel referred to Exh. A and parts of the oral evidence of the Respondent and DW1 and DW2 and explained that Exh. A is clear, self-explanatory and unambigious. Upon this explanation, learned Counsel argued that since on the face of it Exh. A is clear and unambigious, there was no need for the Trial Court to resort to oral evidence to come to a conclusion that the Appellant charged interest on the loan granted since there was no mention of interest in the document.

With this argument as his springboard and section 132 (1) of the Evidence Act in view learned Counsel submitted that it was wrong for the learned Trial Judge to go on a voyage fishing for and resorting to oral evidence of the Respondent and his witnesses to clear what he considered to be an ambiguity in Exh. A. learned Counsel added that, Courts are enjoined to adopt and apply the literal, ordinary and grammatical rule of interpretation as a first option before resorting to other methods or rules. He referred to the cases of AMADI V. NNPC (2000) 2 SCNQR 990, ADMESANOYE V. ADEWOLE (2000) 2 SCNQR 834 and ADISA V. OYINWOLA (2000) 2 SCNQR 1264. Learned Counsel added further that according to the decisions in MBANI V. BOSI (2006) 26 NSCQR 583 at 602 and AKAIGHE V. IDAMA (1964) ALL NLR 317 at 322, a Court must read the whole of a document and not only part of it in the course of its interpretation. He urged the Court to resolve this issue in favour of the Appellant and allow this appeal.