Amos Oladejo Oyebode V. Samuel Oloyede (1999)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

The appellant in the Osun State High Court sitting at Ile Ife filed the following claim against the respondent as per writ of summons.

1. A declaration that the Deed of Assignment purportedly entered into and/or executed by both parties in the house of the Defendant on the 11th day of January, 1990, assigning the Plaintiff’s interest in his property, a storey building at Oke Ola Area, Gbogan Oshun State of Nigeria, is illegal, null and void and of no effect whatsoever.
2. A Declaration that the Defendant’s forcible entry and breaking into the Plaintiff’s storey building and the consequent removal of all the properties owned by the Plaintiff without an order of Court is illegal.
3. A Declaration that the One hundred per cent interest charged on the sum of N16,000.00 (Sixteen Thousand Naira) taken as loan by the Plaintiff from the Defendant is a flagrant breach of the money lenders’ law Cap. 74 Vol. IV Laws of Oyo State 1978.
4. A declaration that the defendant has got a power of sale under the law on the plaintiffs storey building which is situate at Oke Ola Area, Gbongan and on any of the properties kept inside it.
5. A sum of N500,000.00 (Five Hundred Thousand Naira) as general and special damages against the defendant for the illegal acts committed on the plaintiff and the plaintiff’s properties during the month of December 1990.

Pleadings were exchanged by parties to wit there was a counter-claim and reply to statement of defence and counter-claim. The plaintiff in his statement of claims asserted that he borrowed the sum of N16,000.00 from the defendant, a money lender, at various times during 1989, and the said amount was paid in full by November, 1989, but without the issuance of receipts. On 11/1/90 the plaintiff signed a document purporting to offer the plaintiff’s personal storey holding as security for unpaid interest on the loan. Unknown to the plaintiff the document was a sale agreement of his storey building which he (the plaintiff) and his family occupied. On 27/12/90 the defendant forcibly broke into the plaintiff’s residence, removed all the properties in it, and prevented the plaintiff from entering therein, and has been put to ridicule. The plaintiff claimed against the defendant as follows (1) A declaration that the “Deed of assignment” purportedly entered into and/or executed by both parties in the house of the defendant on the 11th day of January, 1990 assigning the plaintiff’s interest in his property, a storey building at Oke-Ola Area, Gbongan, Osun State of Nigeria, is illegal, null and void and of no effect whatsoever.

(2) A declaration that the defendant’s forcible entry and breaking into the plaintiff’s storey building and consequent removal of all properties owned by the plaintiff without an order of court is illegal.

(3) A declaration that the defendant has not got a power of sale under the law on the plaintiff’s storey building and consequent removal of all properties which is situate at Oke-Ola Area, Gbongan and on any of the properties kept inside it.

(4) A declaration that the one hundred per cent interest charged on the sum of N16,000.00 (Sixteen Thousand Naira) taken as loan by the plaintiff from the defendant is a flagrant breach of the Moneylenders Law. Cap. 74. Vol. IV laws of Oyo State 1978.

Particulars of damages

5. A sum of N500,000.00 (Five Hundred Thousand Naira) special and general damages against the defendant for the illegal acts committed on the plaintiff and the plaintiff’s items of property during the month of December, 1990.

The respondent’s/defendant’s case was that the total sum of N41,000 was the loan obtained by the plaintiff in four instalments, with an agreed interest of ten per cent and administrative charges of N850. When the plaintiff could not repay the loan he transferred by sale his interest on the said 2 storey building, already used as security for the loan, and an assignment document was made and signed on 11/1/90. The defendant however allowed him to continue to live in the house. In the end the defendant claimed the said sum of N41,000.00 by way of counter-claim, witnesses testified and addresses were made. After a careful evaluation of the evidence the learned trial Judge dismissed the claim of the plaintiff and granted the defendant’s counter-claim in the sum of N41.000.00. Dissatisfied with the judgment the plaintiff appealed to this court on six grounds of appeal.

Counsel exchanged briefs of argument which were adopted at the hearing of the appeal. Three issues for determination were formulated in the appellant’s brief of argument and they are –

a. Whether the contract between the parties was enforceable in view of the statutory provisions of the Moneylenders Law and Illiterates Protection Law of Oyo State, applicable to Osun State.

b. Whether it was proper for the learned trial Judge to have dismissed the plaintiff/appellant’s claim and instead granted the defendant/respondent’s counter-claim.

c. Whether the learned trial Judge had rightly refused to consider in his judgment the award of damages claimed by the appellant.

The issues formulated in the respondent’s brief of argument are in pari materia with those above. In arguing issues (1) and (2) supra, learned counsel for the appellant examined the provision of S.13(1) of the Moneylender Law, Cap. 74. Volume 4. Laws of Oyo State, 1978, as applicable to Osun State, and reproduced the definition of “memorandum” as defined in the 5th Edition of Black’s Law Dictionary. The supra provision enumerates the conditions to be satisfied before a contract by a borrower for repayment of money borrowed shall be enforceable.

They are-

(a) There must be a memorandum in writing of the contract to be made and signed by the parties or their respective agents;

(b) A copy of such memorandum must be delivered or sent by post to the borrower or his agent within seven days of its having been so signed and certified, and

(c) It shall not be enforceable unless the memorandum was signed before the money was lent or before the security was given as the case may be.

Learned counsel for the appellant has argued that Exhibits 1, 2, 3 and 5, do not amount to memorandum, and that they did not embody the real issue. At this juncture it is imperative that I now look at Exhibits 1, 2 and 3, the loan agreements that bear dates and signatures of the parties, witnesses and guarantor. Learned counsel has reproduced the definition of memorandum as –

(i) an informal note or instrument embodying something that the parties desire to fix in memory by the aid of written evidence or this is to serve as the basis of a future formal contract or deed and

(ii) a brief written statement outlining the terms of an agreement or transaction.

With this definition I fail to see how anyone can seem to think that Exhibits 1, 2 and 3 do not or cannot qualify to fall within the word memorandum, for they very much do. It is not in dispute that subsections (a) and (b) of S.13(1) of the supra law have been satisfied, the only point in dispute is the satisfaction of subsection (c), which to my mind is a provision that is in the alternative, not conjunctive. Whether the exhibits were signed before the money was lent one will need to look at the evidence of the witnesses. The plaintiff himself in his evidence testified that there were documents in support of the loan, and tendered Exhibits 1, 2, and 3.

There is no gainsaying that each loan was received after the exhibits had been signed. As for the provision of security, (that is assuming that provision (c) was conjunctive) a careful perusal of Exh. (1) reveals a building plan of No. BD/GB/C.794 (even though the word security is not reflected therein). This, coupled with the evidence of the plaintiff in the course of cross examination confirms that security was given before the money was lent. That piece of evidence reads:-

“This is the building plan of the house which I handed over to the defendant as security for the loan.”

Prior to the above he had said the following in evidence in chief-

“It was this house that I used as security for the loan.”

It is clear that the above argument buttresses the fact that all the conditions laid down supra have been satisfied, Heavy weather was also made of the administrative charge by learned counsel for the appellant who referred to sections 15(3) and 16 of the law and the case of Fashina v. Odedina 1957 WRNLR page 45 on the purported effect of the illegally of the contract. In my own opinion these authorities have no bearing on this argument.

On the allegation that the appellant was ignorant of the content of Exhibit (5) before he signed because he is illiterate, this allegation will be bettered call with if the relevant pieces of evidence are examined carefully, I will first of all go to the argument of learned counsel for the appellant that the appellant testified in Yoruba, and hence the inference that he was illiterate. Agreed that he gave evidence in Yoruba, but the question is, is that sufficient to assume that he could not read or understand English, or that he is illiterate? It may well be that he found it easier to testify in Yoruba in open court, and so elected to speak in his native language.

At any rate under his cross examination the plaintiff said inter alia-

“When I was signing Exhibit 5 one David Oyebode, my immediate senior brother was in attendance as my witness, I do not know the witness of the defendant. No Alfred 13 Bada or Sunday Ilesanmi there (sic) when I asked about what Exhibit 5 is about he told me it is about the interest and I willingly signed.”

It is instructive to note that the defendant had witness who signed the document but the appellant said he did not know the witness, (at least that is the assumption). So, that he did not know that the witness was Alfred Bada is not surprising. As for Sunday Ilesanmi who did the translation it is amply clear from Exh. 5 that there was interpretation. The claim that the appellant was ignorant of the content of what he was signing is far from the truth because it will be difficult to convince any reasonable man that a person would sign a document of the size and officious looking nature of Exh. 5 without not only fully comprehending the content, but having good knowledge of its effect and consequence. Besides, the interpretation was confirmed by Alfred Bada himself in his evidence, and it was not debunked during cross examination. The respondent also testified to that, and what is more important, the learned trial Judge believed the evidence adduced by the respondent, rather than that of the appellant, when in his judgment he said inter alia:-

“When this piece of evidence is compared with that of the plaintiff whose sagacity impressed me as a shrewd businessman even if he has no formal education. I cannot accept that he signed deed of assignment thinking it is a document for security of the loan he had said was already paid. It is only a big fool who would sign Exhibit 5 after the principal loan had been paid leaving merely the accrued interest. I do not, as a matter of fact find the plaintiff as a fool. On the contrary, he is a clever man or perhaps clever by half trying to deny the obvious. Exhibit 5 by all standard is a valid document which is binding on the plaintiff. He cannot now be heard to the contrary. ”

I couldn’t agree more. Besides, the law is that a trial Judge who hears and sees a witness is in a proper position to assess a witness and find on his demeanour, what to believe and the probative value to ascribe to the evidence. It is his absolute prerogative, and a Court of Appeal cannot and will not disturb this finding unless the Judge failed to make proper use of the singular advantage of seeing and hearing the witness. See Ayua v Adasu (1992) 3 NWLR (Pt. 231) 598, Omoregbe v. Edo (1971) 1 ALL NLR 282, and Ebba v. Ogodo (1984) 1 SCNLR 372. An illustration of the unreliability of the appellant is his piece of evidence on cross examination when he said:-

“When the case was fresh, I told my lawyer that the rate of interest was not disclosed to me. I say to court this morning it was 100%.” In this respect I refuse to subscribe to learned counsel’s contention that the learned trial Judge was wrong when he found as he did above. Instead I endorse that of learned counsel for the respondent that the appellant failed to discharge the onus placed on him when he alleged that he signed Exhibit 5 without knowing its content. See Oke v. Atoloye No.2 (1986) 1 NWLR (Pt.12) 241 (1986) All NLR 100 relied upon by learned counsel. All in all I am satisfied that the appellant did not prove his case in the lower court, rather it is the respondent who proved his counterclaim in view of Exhibits 1, 2, 3, 5 and 6 read together, for there is no doubt whatsoever that the plaintiff obtained the loan and has failed to repay it. In the light of the above discussion the answers to the above issues are in the affirmative, and so their related grounds of appeal fail.

As for the last issue, which is one on damages I endorse the argument proffered by learned counsel for the respondent as the plaintiff neither proved the special nor general damages, and the case of Warner and Warner International Associates (Nig.) Ltd v. Federal Housing Authority (1993) 6 NWLR (Pt.298) 148Â Â (1993) 7 S.C. N.J.I.

It is trite that for a claim of special damages to succeed a party must prove the special damages strictly. See Agunwe v. Onukwue (1962) 2 SC NLR 275, and Okeowo v. Sanyaolu (1986) 2 NWLR (Pt. 23) page 471. The arguments proffered on this issue by learned counsel for the appellant are untenable and it is apparent that the plaintiff did not prove his case for which the award of damages would have been warranted. To go through the treatment of the argument would be like a wild goose chase, This issue is resolved in favour of the respondent, and the ground of appeal to which it married is dismissed.

In the final analysis the appeal fails in its entirety and it is hereby dismissed.

The judgment of the lower court is affirmed. I assess costs at N1,000 in favour of the respondent.

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Other Citations: (1999)LCN/0563(CA)