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:

“1. Whether the learned trial Judge was right in granting the claims of the respondents having regard to the evidence given by the parties at the trial.

2. What it is (sic) the effect when averments in a party’s pleading are abandoned.”

Having gone through the briefs of argument, I am of the view that the issues formulated by learned counsel for the appellant be preferred. I therefore adopt them in this judgment.

Arguing issue No.1 learned counsel for the appellant referred to section 2 of the Moneylenders Law Cap. 103 Laws of Kwara State, 1994 on the definition of moneylender and submitted that a moneylender is a person whose business is that of money lending or who advertises or announces himself or holds himself out in any way as carrying on that business. That a person whose business does not have primary object of lending money but lends money in the course of and for the purpose of that business is not money lender. Learned counsel referred the court to the case of Veritas Insurance Co. Ltd. v. Citi Trust Invest. Ltd. (1993) 3 NWLR (Pt.281) 349 at 366 – 367; Eboni Finance & Securities Ltd. v. Wole-Ojo Technical Service Ltd. (1996) 7 NWLR (Pt. 461) 464 at 474; Sogbesan v. Dosunmu (1970) 2 African Law Reports Commercial 225; Official Asignee v. Ek liong Hin. Ltd. (1960) 1 All ER 440; Litchfield v. Drevfus (1906) 1 KB 584.

Learned counsel however referred to section 3 of the said Cap. 103, Laws of Kwara State, 1994 but submitted that the presumption therein contained is rebutable citing Veritas Insurance Co. Ltd. v. Citi Trust Invest. Ltd. (supra) at 366. Learned counsel submitted that since the only business of the appellant is trading and not money lending and on the authority of the cases cited and relied upon (supra) the appellant is not a money-lender within the Moneylenders Law and as such the lower court was wrong in holding that he is. He then urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the respondents referred to the pleadings, evidence and section 3 of the Money Lenders Law (supra) and submitted that the appellant is by the facts presumed to be a moneylender but that the appellant failed to rebut the presumption. That all the cases cited and relied upon by learned counsel for the appellant are not relevant to the issue under consideration. That the appellant gave loan and received interest thereon when he has no licence to do so. That money lending business without a licence is punishable under section 5(d) of the law. He then urged the court to resolve the issue against the appellant.

The appellant does not deny giving out loan on interest upon security but argues that since the giving of loans is not his main or primary business but trading, then he is not a moneylender within the definition of same under the law and as such the transaction is legal. On the other hand the respondents argument is simply that since the appellant receives interest for the loan granted without moneylenders licence by the operation of section 3 of the Money Lender Law, the appellant is presumed to be a moneylender unless he can rebut the presumption.

I must admit that the evidence in this case from both parties is very scanty. However, as regards the issue under consideration there is enough to resolve same – that is whether the appellant is a money lender within the law.

Section 2 of the Moneylenders Law Cap. 103 Laws of Kwara State, 1994 defines ‘moneylender’ as follows:

“Moneylender’ includes every person whose business is that of money lending or who carries on or advertises or announces himself or holds himself out in any way as carrying on that business, whether or not he also possesses or owns property or money derived from sources other than the lending of money and whether or not he carries on the business as a principal or as an agent; but shall not include:

(a) any society registered under the co-operative societies law; or

(b) any body co-operate, incorporated or empowered by special Act or law to lend money in accordance with such Act; or

(c) any person bona fide carrying on the business of banking or insurance or bona fide carrying on the business not having for its primary object the lending of money, in the course of which and for the purposes whereof he lends money; or

(d) any person or body corporate exempted from the provisions of this law by order of Governor; or

(e) any Pawnbroker licensed under the Pawnbrokers law where the loan is made in accordance with the provisions of the Pawnbrokers law and does not exceed the sum of forty naira”.(italics mine)

From the above definition, it is very clear that for the person to qualify as a money lender he must carry out the business of money lending or hold himself out as carrying out that business which business must have as its primary object the lending of money.

However, section 3 of the said Cap. 103 went on to provide as follows:

“3. Save as excepted in paragraphs (a), (b), (c), (d) and (e) of the definition of moneylender in section 2 any person who lends money at interest or who lends a sum of money in consideration of a larger sum being repaid shall be presumed to be a moneylender until the contrary be proved.”?

The question that follows is whether section 3 supra creates an exception to the general definition provided in section 2, also supra, to the effect that for one to qualify as a moneylender he must, for instance have as the primary object of his business the lending of money. In other words, does the fact that a person lends money in consideration of a larger sum being repaid make him a moneylender within the provisions of section 2 even if the primary object of his business is not money lending? The answer to this question, holds the key to the resolution of the issue under consideration.

In the case of Veritas Insurance Co. Ltd. v. Citi Trust Invest. Ltd. (1993) 3 NWLR (Pt. 281) 349, this court considered similar provisions in the Lagos State Money lenders Law, Cap. 85 Laws of Lagos State, particularly sections 2 and 4 thereof which are in pari materia to sections 2 and 3 of Cap. 103 Laws of Kwara State presently being considered. The court, per Tobi, JCA (as he then was) stated at pages 366 and 367 thereof as follows; inter alia:

“Section 2 of the law is the definition or interpretation clause. It defines inter alia who is a moneylender. The first leg of the definition is inclusive; not exclusive. For our purpose, it is the second leg which is material. It provides for four specific instances when a person is not a moneylender within the meaning of the law. I think the relevant provision is (c). it provides thus:

‘Any person bonafide carrying on the business of banking or insurance or bona fide carrying on any business, not having for its primary object the lending of money, in the course of which and for the purpose whereof he lends money’.”?

As it is, (c) provides for three categories of persons who cannot be called or designated as moneylenders within the meaning of the law, first is a banker. Second is an Insurer and the third category is the omnibus one. It is the person who does not have for the primary object the lending of money. The word ‘primary’ conually means main, major, chief or highest in rank or importance. By the provisions, a person may not necessarily qualify as a money lender although he is involved in money lending in so far as he is able to show that money lending is a subsidiary or secondary object, or merely ancillary, he is not caught by the provisions for our purpose, section 2 as it stands is meaningless unless read along with section 4. Section 4 provides:

“Save as excepted in paragraph (a), (b), (c) and (d) of the definition of money lender in section 2 any person who lends money at interest or who lends a sum of money in consideration of a larger sum being repaid shall be presumed to be a moneylender until the contrary be proved .

… Section 4 raises a presumption of who is a money lender. The presumption is not watertight. The presumption is rebuttable and it can be rebutted. There is therefore nothing sacrosanct in section 4. As it is, the burden of proving paragraphs (a), (b), (c) and (d) of section 2 lies on the person alleging the exceptions … That is borne out by our elementary evidential rules of burden of proof. He who asserts must prove the truth of his assertion …

…Learned counsel for the appellant made heavy weather out from a reasonably fine cloud on the issue of interest. As it is, the respondent claimed an interest of 5% on the amount. It is certainly not my understanding of the law that once a plaintiff claims interest on an amount, the transaction automatically comes within the ambit or preview of the moneylenders law.

…There is no such provision either in the moneylenders law or in any other law …”

Again in Eboni Finance and Securities Ltd. v. Wole-Ojo Technical Services Ltd. (1996) 7 NWLR (Pt. 461) 464, this court, again considering sections 2 and 4 of the Money Lenders Law Cap. 85 of Laws of Lagos State came to the same conclusion as in the earlier case cited (supra).

However, in the present case and having regards to the pleadings and evidence can it be said that it has been established that the appellant is a moneylender within the preview of the law.

In interpreting a statute, the meaning and intention of the legislation must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained as to what is just or expedient – see Ahmed v. Kassim (1958) SCNLR 28. The courts are therefore not to defeat the plain meaning of statute by an introduction of their own words, as was the case in Okumagba v. Egbe (1965) 1 All NLR 62. To do that will amount to judicial legislation which the law frowns upon – see Ifezue v. Mbadugha (1984) 1 SCNLR. 427.

The courts therefore favour literal interpretation of statute unless it would lead to absurdity and inconsistency with the provisions of the statute as a whole – see Onashile v. Idowu (1991) 2 SCNLR 53; Lawal v. G.B. Olivant (1972) 3 SC 124.

Looking at the pleadings the respondents pleaded that the appellant is not a licensed moneylender and as such he is not entitled to sell or put up for or sale the property of the deceased allegedly pledged to the appellant and that the appellant charged interest on the alleged loan granted to the deceased.

On the other hand the appellant pleaded that he is a trader who deals mainly in the buying and selling of general merchandise and does not dabble into any other business. He also gave evidence in support of that pleading.

In deciding that the appellant is a moneylender within the law the learned trial Judge found as follows; inter alia:

“I believe from the little he said that he is a moneylender operating the business without a license (sic) which is a punishable offence under the law.”?

Now, though there is a ground of appeal against weight of evidence, no issue was formulated on it and learned counsel for the respondents has submitted that said ground is deemed abandoned. There is no reply brief. I therefore agree with learned counsel for the respondents in that submission.

That being the case, the above finding by the lower court remains unchallenged by the appellant.

That apart, the said finding is based on the resolution of the oath of the respondents on the issue and that of the appellant, and the learned trial Judge has the power to decide, in such circumstance, who to believe. In the present case, he believed the respondents. The effect is that the appellant is a moneylender within the law and that being the case, the authorities cited and relied upon by learned counsel for the appellant on the issue are not relevant. Apart from that the present case is different from cases involving companies with articles and memorandum of association from which the objects of the company can be easily ascertained. In the present case, it is the oath of the appellant against that of the respondents in which the trial Judge has the right to choose who to believe.

I therefore resolve issue No.1 against the appellant.

On issue NO.2 learned counsel for the appellant submitted that the only witness for the respondents gave evidence on relief No.1 while no evidence was given in respect of relief No.2 – 11 and that in consequence thereof the said relief Nos. 2 – 11 are deemed abandoned referring to Olorunfemi v. Asho (2000) 2 NWLR (Pt.643) 143 at 158; in Re Obiamwu (1999) 12 NWLR (Pt. 629) 78 at 85; Chukwuma v. Chukwuma (1996) 1NWLR (Pt. 426) 543 at 563 – 564; Pan African Bank Ltd. v. Ubani (1999) 13 NWLR (Pt. 633) 166 at 176; Olarenwaju v. Afribank Nig. Plc. (2001) 12 NWLR (Pt.731) 691 at 703.

That being the case, the lower court had no jurisdiction in considering relief Nos. 2 – 11 in its judgment referring to A.-G., Federation v. A.I.G. Ltd. (2000) 10 NLWR (Pt. 675) 293 at 305 – 306; Dykrade Ltd. v. Omnia Nig. Ltd. (2000) 12 NWLR (Pt. 680) 1 at 13; Adeye v. Adesanya (2000) 6 NWLR (Pt. 708) 1 at 9; Oyakonghan v. Amadi (2000) 5 NWLR (Pt. 658) 625 t 632; UBN Ltd. v. Ogboh (1995) 2 NWLR (Pt.380) 647 at 663; Co-Operative Devt. Bank Plc. v. Joe Golday Co. Ltd. (2000) 14 NWLR (Pt. 688) 506 at 538.

Learned counsel then urged the court to resolve the issue in favour of the appellant and set aside the decision of the lower court granting reliefs 2 – 11. On his part, learned counsel for the respondents submitted that a party gives evidence on the pleadings and not on the reliefs sought relying on the case of Jekpe v. Alokwe (2001) 8 NWLR (Pt. 715) 252; (2001) 4 SC (Pt.1) 1 at 16. That since the PW 1 stated at page 42 of the record that “I want the court to grant all my claims” it is enough or sufficient evidence in relation to the pleadings on reliefs claimed.

That since the appellant formulated no issue out of ground 4 of the grounds of appeal, the ground is deemed abandoned and no argument can be grounded on same. That being the case learned counsel cannot be heard to attack the evidence of the respondents.

Learned counsel then urged the court to resolve the issue against the appellant.

I have gone through the authorities cited and relied upon by both counsel in support of their contending positions.

I must however observe that the cases cited and relied upon by learned counsel for the appellant are not relevant to the facts of the case as it relates to the issue under consideration. While it is the law that a relief(s) abandoned or withdrawn it they automatically ceases(s) to exist and the court is without jurisdiction to grant it/they, in the present case on appeal, learned counsel’s argument is based on the assumption that since no evidence was adduced by the respondents in support of reliefs 2 – 11, they are deemed abandoned and the lower court is without jurisdiction to grant same. In the present case both parties agree that reliefs 2 – 11 are pleaded by the respondents in their statement of claim. The case of A.-G., Federation v. A.I.C. Ltd. supra; Adeye v. Adesanya supra; Oyakonghan v. Amadi supra; UBN Ltd. v. Ogboh supra and Co-operative Devt. Bank Plc. v. Joe Golday Co. Ltd. also supra cited and relied upon by learned counsel for the appellant decided nothing more than restate the principle of law that the court of law ought not to award to a plaintiff a substantive relief he has not specifically claimed and may in fact not desire. In the present case, the reliefs are pleaded and therefore claimed by the respondents.

A party gives evidence on the facts pleaded which could ground the relief but not on the reliefs claimed. The Supreme Court made the position clear in the case of Jekpe v. Alokwe (2001) 8 NWLR (Pt.715) 252; (2001) 4 SC (Pt.1) 1 at 16 thus:

“The point to make here is that the principle of law that evidence must be led to support averments in a statement of claim does not require a plaintiff to recite viva voce by heart in his testimony before the court each item of the reliefs he seeks in his statement of claim. A statement of claim may contain a variety of reliefs. The preparation of reliefs sought by the plaintiff is a function of the legal practitioner who settles the statement of claim from the brief he receives from his client, plaintiff is not expected to know the niceties of the reliefs derivable from the totality of the facts he confides to his solicitor. Mr. Okeaya-Inneh, SAN was quite right when he said the plaintiff was claiming the reliefs stated in the amended statement of claim. Indeed, it is counsel who would say so in his submission. That is not for the plaintiff or any of his witnesses. It was therefore surprising that the learned trial Judge thought that if a plaintiff did not in his oral evidence enumerate all the reliefs he sought, he had not led evidence to support his claim and would therefore lose his action … The itemization of the reliefs sought does not require, if I may repeat oral evidence for the purpose of applying the principle in Mogaji v. Odofin (1978) NSCC (vol.11) 275 at 277; (1978) 4 SC 91.”

On the issue raised by learned counsel for the respondents to the effect that the appellant has abandoned ground 4 of his grounds of appeal since no reference was made thereto in the issues formulated, I am of the opinion that the argument of counsel for the appellant is fully supported by ground 5 of the grounds of appeal from which issue No.2 is formulated. That being the case, whether the ground is abandoned or not is of no relevance to the argument on the said issue particularly since ground 5 is an attack directly on the grant of reliefs 2 – 11 by the lower court allegedly without evidence.

I am of the view that having regards to the facts of this case and the decided authorities, issue No.2 be and is hereby resolved against the appellant.

On issue No.3 learned counsel for the appellant submitted that reliefs 2, 3, and 4 in the statement of claim were requested for as alternative to relief No.1 while reliefs 5, 6, 7, 8, 9, 10 and 11 are requested as alternative to reliefs 2, 3 and 4. That though PW1 requested the court to grant all the reliefs, the court could not legally oblige because that was not what they sought in their pleading.

That parties and the court are .bound by their pleading relying on Ifeadie v. Afeade (1998) 13 NWLR (Pt. 581) 205 at 220.

That the reliefs having been requested in the alternative the lower court has no power to grant all the reliefs cumulatively relying on Egharevba v. Oruonghae (2001) 11NWLR (Pt. 724) 318 at 340.

That a court of law has no power to grant to a party more than what he has asked for in his pleadings relying on Chukwuma v. Chukwuma supra, and urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the respondents submitted rather strangely, inter alia as follows:

“Assuming but not conceding that some of the reliefs as claimed in the alternative ought not to be granted, it is humbly submitted that based on the uncontroverted evidence before the trial court, the reliefs ought to be granted.”?

I used the word ‘strangely’ because the submission is not only strange having regards to the position of the law on the matter but was made without citing any authority in support. It may be learned counsel meant to say that his submission, supra, is the statement of the law on the point because he says so. That will not be sufficient for the development of the law in my view.

However, learned counsel went further to submit that having regards to the unchallenged evidence of the respondents, the court can invoke its general powers under section 16 of the Court of Appeal Act in the circumstances of the case and urged us to so hold.

I have carefully gone through the argument of both counsel in their briefs on the issue under consideration. The reliefs claimed by the respondents have earlier in this judgment been reproduced. There is no doubt at all that some of them are claimed in the alternative. The claims are as follows:

“Relief No.1 is claimed in alternative to 2, 3 and 4 or 5, 6, 7 and 8.”?

What the respondents are understood as saying is that they be granted relief 1 or in the alternative 2, 3 and 4,5,6,7 and 8, 9, 10 and 11 thereof. I hold that from the or in the further alternative to 2, 3 and 4; above reliefs, they were not claimed cumulatively.

It is trite law that both parties and the court are bound by the pleadings filed and that reliefs claimed in the alternative are not granted cumulatively. In the present case, some reliefs were pleaded in the alternative as can be seen in his judgment earlier reproduced in this judgment.

The next sub-issue is whether the grant of the reliefs cumulatively must result in setting aside of the decision or this court should, under the circumstances and having regards to the facts of the case, invoke its powers under section 16 of the Court of Appeal Act and proceed to review the evidence and grant whatever reliefs established by the evidence, if any.

Now section 16 of the Court of Appeal Act confers general powers on the Court of Appeal in the following provision:

“16. The Court of Appeal may from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its finding on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant and may direct any necessary inquires or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the power of that court, or in the case of an appeal from the court below in that court’s appellate jurisdiction order the case to be re-heard by a court of competent jurisdiction.”?

From the above provisions it is clear that the invitation of learned counsel for the respondents is well founded. Even without recourse to the general powers of this court as provided supra the issue before this court can be adequately dealt with within the issue formulated. I am of the firm view that the fact that the alternative reliefs are granted cumulatively with the substantive reliefs does not render the grant of the substantive reliefs or all the reliefs so granted invalid, It is only those reliefs which ought not to have been granted in view of the facts of the case that ought to be set aside or discountenanced particularly as the lower court had already granted all the reliefs, I hold the view that it would be unjust or inequitable to set aside the whole award as urged on us by learned counsel for the appellant simply because the trial Judge made an award which he ought not to have made. To me the principle behind the court frowning at a grant of alternative reliefs cumulatively is to avoid double compensation to the plaintiff or counter-claimant. That being the case the fact that the lower court erred in awarding both reliefs instead of one should not lead to the setting aside of both awards but the one that was made in error.

Going through the evidence produced before the lower court, can it be said that the reliefs had been established by the respondents. Only the 3rd respondent testified on behalf of the respondents as PW1 and she tendered 4 documents in support of the case for the plaintiffs. On the other hand, the appellant testified as DW1 and said nothing useful except that his business is trading.

Going through the judgment of the lower court, the following findings appear:

“Because there is no document or evidence before me to show that the deceased took a loan from the defendant in the sum of N390,000.00 (Three hundred and ninety thousand naira) on 30th June, 1999, I declare that the purported loan is null and void. There is no evidence to support the assertion that the deceased took any loan. Similarly, there is nothing on record to show that there was any agreement to charge any form of interest on the said loan if any whether simple or compound interest hence I hold and declare that late Dehinde Ademola is not indebted to the defendant in the sum of N469,200.00 as at 30th September, 1999 … The evidence adduced by the only witness who testified for the defendant is highly unimpressive. He did not satisfy me as a serious person who has parted with so much money to the late Dehinde Ademola. He could not even tell the court how much money was loaned out neither could he remember the name of the person who took the loan.

Infact he did not even mention the loan which is the bone of contention.”

As earlier stated, there is no issue challenging the above findings on the evidence and on which the awards were made. However having regards to the reliefs claimed in the alternative particularly reliefs 2, 2, 3, 4, 5, 6, 7 and 8 but awarded cumulatively, it is my view that the said reliefs be and are hereby set aside as having been awarded in error. Therefore having regards to the findings of the court which remain unchallenged by the appellant reliefs 1, 9, 10 and 11 awarded by the lower court are hereby affirmed. To that extent issue No.3 is resolved against the appellant.

On the 4th issue counsel for the appellant submitted that the burden of proof in civil cases rests on the plaintiff under sections 135, 136 and 137 of the Evidence Act Cap. 112 Laws of the Federation 1990, particularly where the defendant does not counterclaim.

Referring to the case of Olusanya v. Osineye (2001) 13 NWLR (Pt.730) 298 at 330 and Makanjuola v. Ajilore (2001) 12 NWLR (Pt. 727) 416 at 437; Learned counsel submitted that it is the duty of the respondents who claimed declaratory reliefs to prove same and that the burden does not shift. Referring to the portion of the judgment of the lower court earlier reproduced in this judgment while considering issue No.3 learned counsel submitted that the lower court placed the burden of proving the existence or non existence of the loan on the appellant whereas the onus rests on the respondent.

He therefore urged the court to resolve the issue in favour of the appellant.

On his part, learned counsel for the respondents submitted that in civil cases the burden of proof is not static but continues to shift and that where no evidence is offered by the defendant to contradict the evidence of the plaintiff, only the plaintiff’s evidence can be believed. That the appellant pleaded various documents but failed to tender them to controvert the plaintiff’s case. That the appellant in effect abandoned his pleading making the evidence from the respondents the only evidence before the court which the court believed. Learned counsel then cited and relied on Mercantile Bank v. Adusomwan (1986) 2 NWLR (Pt. 22) 270 at 271.

I have to once again repeat that no issue was formulated on weight of evidence so that ground is clearly abandoned. While it is the law that where a party claims declaratory reliefs the burden is on him to produce evidence to establish same even if the other party made admissions of same in the pleadings, in the present case, the learned trial Judge found that there was such evidence.

The issue as to who is to establish the existence of the loan agreement is determined by the pleadings of the parties. It is the case of the appellant that he did grant a loan to the deceased under a written agreement dated 30th June, 1999 which agreement he specifically pleaded and stated he would rely on at the trial- see paragraph 12 of the statement of claim. At the trial, the appellant failed to testify on the agreement neither did he tender same. The effect of what the learned trial Judge said is an invocation of section 149(d) of the Evidence Act, 1990 which provides – that evidence which ought to be and is not produced would, if produced, be unfavourable to the person who withholds it.

It is the law that where a party to a case fails or refuses to submit the issues he has raised in his pleadings for trial by giving evidence in their support, the trial court must resolve the case against the defaulting party except there are other legal reasons to the contrary. In the present case, our attention has not been drawn to any other legal reasons why the trial court should not resolve the issue against the appellant, as it did. I am therefore of the view that the issue is not of wrongfully shifting the burden of proof from the respondents to the appellant but failure of the appellant to produce evidence in support of his pleadings on a matter crucial to his defence. I accordingly resolve the issue against the appellant.

On issue No.5, learned counsel for the appellant submitted that the finding by the court that the deceased never took a loan from the appellant contrary to the admission of the respondents is perverse.

I have to state that with the resolution of the other issues in this appeal, issue No. 5 becomes spent and is accordingly discountenanced.

In conclusion, I find no merit in this appeal which is accordingly dismissed with N10,000.00 cost against the appellant.

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Other Citations: (2004)LCN/1602(CA)