Ibrahim Jimoh Ajao V. Michael Jenyo Ademola & Ors. (2004)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

This is an appeal against the judgment of the Kwara State High Court of Justice sitting at Ilorin in Suit No. KWS1205/99 delivered by Hon. Justice Olufemi Ajayi on the 29th day of January, 2002.

The facts of the case include the following: One Dehinde Sunday Ademola, now late is alleged to have borrowed the sum of N390,000.00 from the appellant payable on 30th August, 1999. The loan attracted interest. However, on the 22nd day of September, 1999 the said Dehinde Sunday Ademola died in a motor accident leaving the loan and interest unpaid. The deceased was buried on 26th September, 1999. On 30th September, 1999 the solicitor to the appellant wrote exhibit 2 addressed to the respondent’s solicitor, who is also the solicitor to the estate of the said deceased Dehinde Sunday Ademola, intimating them, for the first time, of the loan transaction allegedly entered into by the deceased.

The solicitor also mentioned the fact that the deceased did give to the appellant an irrevocable power of Attorney to sell the deceased house at Gaa Akanbi, Ilorin if he defaulted in repaying the loan. The said house happens to be the only house owned by the deceased and occupied by the respondents and other dependants of the deceased. As at the time of writing exhibit 2, the solicitor stated that the deceased was owing the appellant the sum of N469,200.00 only being principal and interest on the said loan. Exhibit 2 also stated that the rate of interest on the loan is 15% per month.

When no positive action was taken by the solicitor to the estate on exhibit 2, the solicitor to the appellant then wrote exhibit 3 dated 22nd November, 1999 threatening to offer for sale the said house of the deceased by public auction without a reserved price. From the receipt of exhibit 3, the respondents who are the infant children suing by their next friend and widow of the deceased Dehinde Sunday Ademola took out a writ of summons against the appellant claiming the following reliefs:

“30. Whereof the plaintiffs claim against the defendant as follows:

“1. Declaration that the purported loan of N390,000.00 (Three hundred and ninety thousand naira) only granted to the late Dehinde Sunday Ademola sometime on or about 30th of June, 1999 is null, void and of no effect as the defendant is not a licensed moneylender.

Alternatively

2. A declaration that the interest rate charged on the purported loan ofN390,000 by the defendant is null, void and of no effect as same do not comply with the provisions of the Money Lender’s Law of Kwara State
3. A declaration that the defendant can only charge a simple interest per annum on any alleged loan that may have been granted to late Dehinde Sunday Ademola.
4. A declaration that the late Dehinde Sunday Ademola is not indebted to the defendant in the sum of N469,200 (Four hundred and sixty-nine thousand, two hundred naira) only as at 30th day of September, 1999 or at any time whatsoever.

Alternatively,

5. A declaration that the defendant cannot charge any interest over the alleged loan of N390,000 granted to late Dehinde Sunday Ademola after the death of late Dehinde Sunday Ademola which occurred on the 22nd day of September, 1999.
6. A declaration that the Memorandum of Agreement dated the 30th day of June, 1999 and the Irrevocable power of attorney dated the same date to sell property belonging to late Dehinde Sunday Ademola situate, lying and being at Deniyaly Area GaaAkanbi, Ilorin, Kwara State are null, void, and of no effect as same did not comply with the provisions of the relevant laws of Kwara State and Land Use Act, Laws of the Federation, 1990.
7. A declaration that the Memorandum of Agreement and the irrevocable power of attorney both dated the 30th day of June, 1999 between late Dehinde Sunday Ademola and the defendant are null, void, and of no effect as the prior consent of the Governor of Kwara State was not sought and obtained before same were executed by the parties thereto.
8. Pursuant to (7) supra, an order setting aside (sic) the Memorandum of Agreement and the irrevocable power of attorney dated the 30th day of June, 1999 in respect of late Dehinde Sunday Ademola’s property situate, lying and being at Daniyalu, Gaa Akanbi, Ilorin, Kwara State.
9. An order of perpetual injunction restraining the defendant either by himself, agents servants privies, personal representatives or any person or persons howsoever from selling or offering for sale either by public auction or private treaty or trespassing on the property belonging to late Dehinde Sunday Ademola situate, lying and being at Daniyalu Area, Gaa Aknabi, Ilorin, Kwara State.
10. An order of injunction restraining the defendant either by himself, agents, servants, privies, person representatives or any person or persons, howsoever from intimidating, harassing and/or ejecting the plaintiffs and other occupants of the late Dehinde Sunday Ademola’s property situate, lying and being at Daniyalu Area, Gaa Akanbi, Borin, Kwara State.
11. An order directing the defendant, his agent, solicitor to release all the title documents relating to and in connection with the property belonging to late Dehinde SundayAdemola situate, lying and being at Daniyalu Area, GaaAkanbi, Ilorin, Kwara State to the plaintiffs herein”?

At the conclusion of retrial, the learned trial Judge held as follows:

“In view of the reasons given above, this court has no (sic) other choice than to grant all the reliefs sought by the plaintiff and also order the defendant either by himself, agents servant, privies personal representatives or any person or persons from selling or offering for sale either by public auction or private treaty or trespassing on the property belonging to late Dehinde Sunday Ademola situated, lying and being at Daniyaly Area, Gaa Akanbi, Ilorin, Kwara State. It is also ordered that all title documents in possession of the defendant or his lawyer and relating to the property of late Dehinde Sunday Ademola as described above shall be released immediately to the plaintiff.”‘9d

The appellant is dissatisfied with the above decision of the lower court and has appealed to this court on the total of six grounds of appeal made up of original and additional grounds, out of which learned counsel for the appellant Tunji Adeniran Esq., has formulated five issues for determination in the appellant’s brief of argument deemed filed on 20/2/03, and adopted in argument of this appeal on the 3rd day of May, 2004. The issues are as follows:

“1. Whether the appeilant is a moneylender as provided for by Money Lender’s Law Cap. 193, Laws of Kwara State, 1994.

2. Whether the respondents proved their case on all the grounds canvassed before the lower court.
3. Whether the lower court was right in granting all the eleven reliefs of the respondents in their statement of claim particularly when the said reliefs were sought for in the alternative.
4. Whether the lower court was right when it held in its judgment that there was no evidence that the late Dehinde Sunday Ademola took a loan from the appellant.
5. Whether the lower court were right to have placed the burden of proof on the appellant in a case in which the respondents were asking for declaratory orders and injunctions and whether this did not lead to a miscarriage of justice.”?

In the respondent’s brief of argument prepared by learned counsel for the respondents Roland Otaru, Esq., and deemed filed by order of this court on 3/5/04 the said learned counsel formulated two issues for determination. These are as follows: