MAX BLOSSOM LIMITED v. MR. MAXWELL T. VICTOR & ORS
(2019)LCN/12534(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of January, 2019
CA/PH/599/2017
RATIO
CONTRACT: FINANCIAL OBLIGATION
“No person shall, after reaping benefit from a transaction of which he is a party, be heard to say such a transaction is illegal or void or voidable when it comes to him to fulfill his obligation under the transaction so far the other party has done all he pledged to do under it. [Emphasis mine]. This Court followed the same principle in the case of Chanchangi Airline (Nig.) Ltd. vs. A.P. Plc. (2015) 4 NWLR Pt. 1449, pg. 256, 274-275, paras. F-H., wherein Mbaba, JCA. upheld the decision of the trial Judge in the case thus:
I think it was wrong for the defendant at this stage, after it had received benefit of supply of supplied of aviation fuel from the Plaintiff worth N110 million to turn around at this hour to claim that it (the defendant is not a juristic person and also that the plaintiff is also not a juristic person and has no license to deal in petroleum product. The law, for a very long time, has been settled that no person shall, after reaping benefit from a transaction of which he is a party, be heard to say such a transaction is illegal or void or voidable, when it comes to him to fulfill his obligation under the transaction, so far the other party has done all he pledged to do under it. See Facel Services Ltd. vs. N.P.A. (2004) All FWLR Pt. 199, pg. 1400 at 1423; (2003) 8 NWLR Pt. 821, pg. 73.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
MAX BLOSSOM LTD Appellant(s)
AND
1. MR. MAXWELL T. VICTOR
2. VIC-AUSTIN NIG. LTD
3. MR. JUDE AKABUDIKE Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This appeal arose from the judgment of the High Court of Rivers State (hereinafter to be known as the lower/trial Court), per Hon. Justice S. C. Amadi, J. in suit No. PHC/24/2011 delivered 27th April, 2017.
The appellant who at the lower Court was the claimant commenced an action against the defendants/respondents on 10th January, 2011 vide an Originating Summons. Following the counter affidavit of the defendants, the learned trial Court ordered the parties to file pleadings. Consequently the claimant filed its statement of claim on 9th November, 2011, seeking the following reliefs jointly and severally against the defendants:
i. A declaration that the defendants are in breach of the terms of the loan agreement dated 19/07/2010 duly executed by all parties after the claimant has performed its own obligation.
ii. A declaration that the 2nd defendant is indebted to claimant in the sum of N10 Million as principal sum of the loan and N7.5 Million as accumulated interest charges till 22/10/2011.
iii. A declaration that under clause 5 of the loan agreement dated 19/07/2010 the rights of the 1st defendant over the landed property situate at No. 28 King Jaja Street, New Layout, Port Harcourt with a Certificate of Occupancy registered in the Port Harcourt Land Registry as No. 16 at page 16 in Volume 279 which was pledged as collateral for the loan obtained by the 2nd defendant from the claimant is foreclosed.
iv. An order of perpetual injunction restraining the 1st defendant, his privies or assigns from parading himself or themselves as owner(s) of a Certificate of Occupancy registered in the Port Harcourt Land Registry as No. 16 at page 16 in Volume 279 over the landed property situate at No. 28 King Jaja Street, Port Harcourt.
v. An order directing the claimant to sell No. 28 King Jaja Street, Port Harcourt which was used as collateral to recover the N10 million Naira principal loan sum together with the accrued interest in the rate of N500,000 per month from 22/07/10 till judgment is delivered.
vi. The sum of Thirty Million Naira (N30,000,000.00) as general damages.
The defendants in their reaction filed Statement of Defence with Counter-Claim, which they subsequently amended pursuant to the leave of the Court granted them on 18/03/2013. Therein they sought as follows against the claimant:
a. A declaration that the acts of the claimant in connection with the loan transaction and other subsequent acts are unlawful.
b. The total sum of N9,700,000.00 split into:
1) The sum of N700,000.00 being and representing the total sum charged and received by the claimant from the 3rd defendant as the cost and expenses incurred in connection with or incidental to the preparation and perfection of the loan agreement.
2) The sum of N9,000,000.00 being and representing the general damages for trespass to the 1st defendant?s property.
RELEVANT STATEMENT OF FACTS
The appellant purportedly executed a loan agreement with the 2nd respondent to the tune of N10 million on 19th July, 2010. (See Exhibit B). The loan transaction was facilitated by the 3rd respondent as the Director and Chief Executive Officer of the 2nd respondent. The 1st respondent on his part guaranteed the loan using his landed property situate at No. 28 King Jaja Street, New layout, Port Harcourt as collateral.
The tenure of the loan facility was 4 (four) months commencing from 22nd July, 2010 to 22nd November, 2010. At the trial the respondents contended that the transaction was one of money lending and the appellant being a money lender was in breach of the Rivers State Moneylenders Law of 1999, which in effect rendered the said transaction void and unenforceable.
In his considered judgment delivered 27th April, 2017, the learned trial Judge dismissed the action, thus upholding the defence of the defendants/respondents that the loan transaction was illegal and unenforceable having not complied with the relevant provisions of the Moneylenders Law, Cap 87, Laws of Rivers State, 1999 and further dismissed the counter-claim of the defendants/respondents. (See pages 214-237 of the record of appeal).
Aggrieved by the decision, the appellant on 29th June, 2017 filed a Notice of Appeal dated same day praying of us to set aside the judgment and in its place enter judgment for the appellant as per its claims. (See pages 238-241 record of appeal).
In compliance with the rules and practice of the Court, the parties filed and exchanged their respective briefs of argument. The appellant?s brief dated 20th December, 2017, filed 21st December, 2017 but deemed properly filed and served 24th September, 2018 was settled by Anthony Enyindah, Esq., while the respondents? brief dated and filed 6th March, 2018 but also deemed properly filed and served 24th September, 2018 was settled by A. E. Nnaji, Esq.
From the sole ground of the notice of appeal, the appellant posited the following lone issue for determination by this court:
Whether the learned trial Judge was right when His lordship held that Exhibit B, the loan agreement dated 19th July, 2010 between the appellant and the 1st and 2nd respondents was illegal and therefore unenforceable for non-compliance with the provisions of the Moneylenders Law of Rivers State even after His lordship found that the respondents have taken full benefits of the loan advanced to them pursuant to the agreement.
While making their submissions the appellant stated that Exhibit B is a loan agreement voluntarily executed by the appellant and the 1st and 2nd respondents and in which they clearly defined their rights and obligations thereto. Appellant referred to the case of Dalek Nigeria Ltd. vs. Oil Mineral Producing Areas Development Commission (OMPADEC) (2007) 7 NWLR Pt. 1033, pg. 441, paras. A-B, and urged that in interpreting the rights and obligations of the parties we should not legally or properly read into Exhibit B, the terms on which the parties have not agreed. The appellant?s counsel contended that failure of the 1st and 2nd respondents to repay the loan of N10 million from the appellant is a clear breach of the loan agreement Exhibit B. Counsel further made the point that a party who signs an agreement is bound by it, and that the Court is enjoined to interpret the agreement and enforce the terms without more. Relying on the authorities of Artra Industries Ltd. vs. Nigerian Bank for Commerce and Industries (1997) 1 NWLR Pt. 483, pg. 574 at 593, paras. F-H; and Dennis Nwoye Okafor vs. Anthony Igwilo (1997) 11 NWLR Pt. 527, pg. 36 at 53, paras. F-H, the learned counsel submitted that the fact that the 1st and 2nd respondents took the loan from the appellant and fully utilized it, it was wrong for the learned trial Judge to uphold the contention or defence of the respondents that the loan is no longer recoverable because the appellant did not comply with the provisions of the Moneylenders Law of Rivers State.
He argued that the respondents cannot take advantage of an irregularity or illegality which they acquiesced in. See Quest Nig. Ltd. vs. Bank of the North Ltd. (1994) 1 NWLR Pt. 318, pg. 41 at 49; United Bank for Africa Plc. vs. Ibhafidon (1994) 1 NWLR Pt. 318, pg. 90 at 119; and Enekwe vs. IMB (Nig.) Ltd. (2007) All FWLR. Learned counsel for the appellant finally canvassed that a dismissal of the entire reliefs in the respondents’ counter-claim is a revalidation of the claims of the appellant and that as a guarantor, the 1st respondent must be held accountable for the liability of the 2nd respondent.
In reaction to the issue, the learned counsel for the respondents felt the need to abridge the issue for determination to read thus:
Whether the learned trial Judge was right when he held that Exhibit B, the loan agreement dated 19th July, 2010 between the appellant and the 2nd respondent was illegal and therefore unenforceable for non-compliance with the provisions of the Moneylenders Law of Rivers State. (Distilled from ground 1 of the Notice of Appeal).
In making their submission, the respondents first noted that they are unable to appreciate where the lower Court found that the respondents have taken full benefit of the loan advanced to them pursuant to the agreement. They submitted that it is rather wooly, windy and unwieldy opinionated misconception of the appellant to seek sympathy. It was their further contention that the appellant is a registered Moneylender by virtue of Exhibit A (Moneylender Certificate) granted to it pursuant to Section 4 (2) of Moneylenders Law (Cap 87), Laws of Rivers State, 1999 and as such is bound to carry out its money lending business in accordance with the provisions of the law. Learned counsel on their behalf cited the case of Raji vs. University of Ilorin (2008) All FWLR Pt. 435, pg. 1832CA to buttress the fact that statutory provisions cannot be waived or compromised. See also Adesanoye vs. Adewole (2006) 27 NSCQR 783 at 800 – 801; Yusuf vs. Savannah Scape Realtors Ltd. (2016) NWLR Pt. 1, pg. 119CA; and Amaechi vs. INEC (228) (?) 5 NWLR Pt. 1080, pg. 227 at 437. Respondents submitted that the learned trial Judge in determining the case of the appellant considered such relevant Sections as 7 (1) and (2), 3 (c), (d) (ii), 10, 11 (1) (a) and (3) (c), 13 (1), 15, 17 (1), (2) and (4) of the Law as they relate to Exhibit B, as well as Section 20 (1), (3) and (6) of the Rules of Professional Conduct for Legal Practitioners, 2007.
They canvassed that every step taken by the appellant in its money lending business and or loan transaction with the respondents must be in strict compliance with the provision of Moneylenders Law (Cap 87) Laws of Rivers State, 1999 having been registered under the said statute. Respondents contended that by force of statute, a Moneylender shall not transfer his business to premises other than that specified in his license and on the contrary penalty is prescribed by the statute. Counsel further argued that the appellant is bound statutorily to charge only simple interest as opposed to compound interest or else be liable on contravention to a penalty of N10,000.00. See Sections 11 (1)(i), 12 (1) and 13 (1), (2) of Rivers State Moneylenders Law. See also the case of Nwankwo vs. Nzeribe (2004) 13 NWLR Pt. 890, pg. 422, 434, paras. C-D at ratio 3; and U.N.M.I. Co. Ltd. vs. Onikeku (1996) 2 NWLR Pt. 428, which counsel claims to be on all fours with the instant case. Counsel also reiterated that once a transaction is illegal, it is void and all things emanating from that transaction is illegal and by the authority of Ajayi vs. Total Nig. Plc. (2013) 226 LRCN (Pt. 1) SC., 65 at 80 ratio 2 per Ngwuta, JSC., ?No Court will lend its aid to one who willingly participated in an illegal contract to enforce same.
The learned counsel for the respondents also called to mind that Exhibit B was prepared by appellant’s solicitor, Ibimie B. Atiyegoba, Esq. (a legal practitioner) who carried out the entire loan transaction on the appellant’s behalf in disregard of the Moneylenders Law, and also prosecuted the case at the trial Court without testifying as a necessary witness in disregard to Rule 20 (1), (3) and (6) of the Rules of Professional Conduct for Legal Practitioners. Respondents contended that it is a misconception of the law and otiose for the appellant to argue that the dismissal of the respondents’ counter claim by the trial Court is a re-validation of the main claim dismissed by the trial Court. Respondents submitted that the learned trial Judge was perfectly right when he held that Exhibit B, the loan agreement dated 19th July, 2010 between the appellant and the 2nd respondent was illegal and therefore unenforceable for non-compliance with the relevant provisions of the Moneylenders Law of Rivers State. They finally urged on us to resolve the sole issue raised in this appeal in favour of the respondents. And against the appellant.
RESOLUTION OF THE SOLE ISSUE FOR DETERMINATION AS POSITED BY THE APPELLANT
Whether the learned trial Judge was right when His Lordship held that Exhibit B, the loan agreement dated 19th July, 2010 between the appellant and the 1st and 2nd respondents was illegal and therefore unenforceable for non-compliance with the provisions of the Moneylenders Law of Rivers State even after His Lordship found that the respondents have taken full benefits of the loan advanced to them pursuant to the agreement.
Exhibit ‘B’ which is the centre point of this sole issue is captioned ‘LOAN AGREEMENT BETWEEN MAX BLOSSOM LTD (LENDER) AND VIC-AUSTIN & SONS (NIG.) LTD. (BORROWER)’. This loan agreement as it were was duly executed 19th July, 2010 by Jude Akabudike on the one part and Dr. Daprim Ogaji on the other as witnesses of the respective common seals of the borrower and lender. In entering a contract of this nature, the two or more parties involved, formally agree to do or forbear from doing something. Generally for a contract to be valid and legally enforceable, there must be (1) capacity to contract; (2) intention to contract; (3) consensus ad idem; (4) valuable consideration; (5) legality of purpose; (6) sufficient certainty of terms. See Osborn’s Concise Law Dictionary 6th Edition, by John Burke. It might be proper at this point to reproduce the evidence of the 3rd respondent (Mr. Jude Akabudike) while being cross examined by counsel for the appellant.
He said inter alia:
‘… Exhibit ‘B’ is the loan agreement I signed. I am the chief officer of the 2nd defendant’s company. As chief operating officer of the 2nd defendant’s company, whenever I am giving (sic) an agreement, I first understand the agreement before signing. ‘The owner of the account from which the N10,000.00 (sic) loan was giving (sic) to me is the claimant. I discuss (sic) with CW1 on phone and CW1 was to get some interest at the end of the transaction. i.e. sum amount of money. There is no document to that effect.
By Exhibit ‘B’ the lender is the claimant while the borrower is the 2nd defendant. The N10,000,000.00 contained in Exhibit ‘B’ is a lone (sic).
I paid the claimant’s solicitor the sum of N500,000.00 for drafting the loan agreement. I have exhausted the N10; Million? (See pages 211-212 respectively of the record of appeal).
Similarly, the 1st respondent who testified as DW2 on his own part stated under cross examination that:
‘…Exhibit ‘D8’ is my certificate of occupancy. The signature on the guarantor form of the loan in Exhibit ‘B’ is mine. (See also page 212 of the record of appeal).
Premised on the foregoing excerpts, I have no doubt in my mind that the nitty-gritty of a valid contract was duly observed by both parties when Exhibit ‘B’ was executed. From the content of Exhibit ‘B’, the sum of N10 million which was advanced as loan to the 2nd respondent for a tenure commencing 22nd July, 2010 and terminating 22nd November, 2010 and on condition that the respondents shall repay the principal sum together with the compounded interest at the rate of 5% (five percent) on the last day of the expiration of the tenure. With such clear expressions of the terms, there is no gainsaying the fact that the failure of the respondents to repay the loan and the accrued interest as at when due, is a clear breach of the contract. Parties as in the instant case are bound by the contract they voluntarily entered into and cannot be heard to resile from the terms and conditions reached therein. See African International Bank Ltd. vs. Integrated Dimensional System Ltd. (2012) 17 NWLR Pt. 1328, pg. 1 at 43-44 paras. H-A; and Artra Industries Ltd. vs. Nigerian Bank for Commerce and Industries (1997) 1 NWLR Pt. 483, pg 574 at 593, paras. F-H.
The claim by the respondents that they were forced under duress to sign Exhibit ‘B’ is not at all established by evidence and therefore hold no water. Being satisfied myself that the respondents took the loan from the appellant pursuant to Exhibit ‘B’ and fully utilized it, it is wrong of them to turn around now and contend that the said loan is not recoverable because the appellant did not comply with the provisions of the Moneylenders Law of Rivers State. In so far as the respondents executed Exhibit ‘B’ voluntarily by signing same irrespective of the purported noncompliance with the Moneylenders Law and consequently benefitted from it, they cannot at payback time, turn around to castigate the transaction. More so, when the 2nd respondent?s solicitor wrote the letter (Exhibit B2), dated 18th November, 2010 to the appellant expressly admitting their indebtedness founded on the loan agreement and consequent upon which he requested for a six month moratorium to enable them meet up with the terms of the agreement.
As rightly noted by the learned counsel for the appellant, he who comes to equity must come with clean hands. This is in tandem with the Supreme Court’s decision in Ibrahim vs. Osim (1988) 3 NWLR Pt. 82, pg. 257, 279, paras. A-B, where it was held as follows:
If it is an illegal transaction, the Appellant by his conduct in all the Courts below and in this Court, is praying that his crime be condoned with all the benefits that accrued to him by way of financial gains and to let it end there. That will not only be unjust but will also not be equitable. No person shall, after reaping benefit from a transaction of which he is a party, be heard to say such a transaction is illegal or void or voidable when it comes to him to fulfill his obligation under the transaction so far the other party has done all he pledged to do under it. [Emphasis mine].
This Court followed the same principle in the case of Chanchangi Airline (Nig.) Ltd. vs. A.P. Plc. (2015) 4 NWLR Pt. 1449, pg. 256, 274-275, paras. F-H., wherein Mbaba, JCA. upheld the decision of the trial Judge in the case thus:
I think it was wrong for the defendant at this stage, after it had received benefit of supply of supplied of aviation fuel from the Plaintiff worth N110 million to turn around at this hour to claim that it (the defendant is not a juristic person and also that the plaintiff is also not a juristic person and has no license to deal in petroleum product. The law, for a very long time, has been settled that no person shall, after reaping benefit from a transaction of which he is a party, be heard to say such a transaction is illegal or void or voidable, when it comes to him to fulfill his obligation under the transaction, so far the other party has done all he pledged to do under it. See Facel Services Ltd. vs. N.P.A. (2004) All FWLR Pt. 199, pg. 1400 at 1423; (2003) 8 NWLR Pt. 821, pg. 73.
It goes without equivocation that where a duty is clearly spelt out in a statute and the procedure for carrying out such duty is laid out, a party has no choice than to adhere to the laid procedure. It is duly established on record that the appellant is a registered Moneylender by virtue of the Moneylender Certificate (Exhibit ?A?) granted to it pursuant to Section 4 (2) of the Moneylenders Law, Cap 87 Laws of Rivers State, 1999. The money lending business address of the appellant is shown to be No. 70 Awkuzu Street, Mile 1 Diobu, Port Harcourt, Rivers State. Exhibit A herein complies fully with the provisions of Section 2 of the Moneylenders Law supra which provides that:
1) Every moneylender, whether carrying on business alone or as partner in a firm, shall take out annually in respect of every address at which he carries on his business as such, a licence… which shall expire on the 31st day of December next after it is granted…’
2)’a moneylender’s licence shall be taken out by a moneylender in his true name, and shall be void if it be taken out in any other name, and every moneylender’s licence shall also show the moneylender?s authorized name and authorized address.
The penalty for breaches of Section 2 supra and as it relates to the appellant is provided for under Section 3 (d)(i) thus:
3. If any person :(d) enters into any agreement in the course of his business as a moneylender with respect to the advance or repayment of money or takes any security for money in the course of his business as a moneylender, otherwise than in his authorized name, he shall for each offence be liable on summary conviction.
(ii) in the case of a body corporate, to a fine of twenty thousand naira and …
The respondents’ contention herein is that in the introductory clause of Exhibit ‘B’ (loan agreement), the appellant stated that it is a company incorporated under the Laws of the Federal Republic of Nigeria and having its registered office at block 39, 23 Crescent EFAB Estate, Mbora, Abuja but that no such office address was mentioned in the entire gamut of Exhibit ‘A’ i.e. the Moneylenders Certificate.
Now, that Block 39, 23 Crescent EFAB Estate, Mbora, Abuja was not mentioned as the appellant’s office address in Exhibit ‘A’, does not to my mind tantamount to its not being the appellant’s authorized address. However, I believe that it would require a criminal trial and finding of guilt by a magistrate, before a summary conviction can be pronounced on the appellant as it were and as envisaged by Sections 2, 3 (d), 7, 12 (1), 13 (1)(2) and 17 of the Moneylenders Law read together. In the absence of the summary trial and conviction, it is premature and out of place for the respondents to rely on that defence in order to nail Exhibit ‘B’ as an illegal and an unenforceable contract. It therefore requires a criminal trial to conclusively determine, not only that No. 70 Awkuzu Street, Mile 1 Diobu, Port Harcourt, as it appears on the appellant’s Moneylender’s Licence (Exhibit ‘A’), is not an authorized address for the appellant to carry out its money lending business, but also that the provisions of Sections 2, 3 (d), 7, 12 (1), 13 (1) and (2) and 17 of the Moneylenders Law, 1999 were indeed breached.
As earlier noted there is nothing in the circumstances of this case to show that the respondents were cowed or fraudulently led into the agreement they signed. They are therefore bound by the agreement as reached by them. In the case of Chidoka vs. First Financial City Finance Coy. Ltd. (2013) 5 NWLR Pt. 1346, pg. 144, particularly at Pp. 162 – 163, paras. F – F, the noble Muntaka-Coommassie, JSC., in the leading judgment keyed into and adopted the view expressed by Okoro, JCA., (as he then was) in Alhaji Abdullahi Ibrahim vs. Mallam Zangina Abubakar Bakori, (unreported) suit No. CA/K/299/2006. The learned Justice of the Court of Appeal (as he then was) held as follows:
‘…I am always not comfortable at the practice where a party after seeking and obtaining money from a friend for resuscitation of his ailing or dwindling business will turn around to rely on technicalities or loopholes in the law as a cover to absolve himself from contractual obligations by putting up a defence under Money Lenders Law, as done by the appellants in this case. This is pes-simi exempli of business relations and this Court will not lend support for such a party to bite the finger that fed him and deprive him of his hard earned money. A man who, with his eyes open and without the other party committing any fraud against him, enters into an agreement with another, should be prepared to abide by the terms of the agreement illegal or otherwise un-enforceable in law. I cannot allow the appellants, after collecting money from the respondent to do business, to now turn around to plead the Money Lenders Law in order to escape the refund of the said money as governed by Exhibit ‘A’ between them
More like what is an icing on the cake given that it is on all fours with the instant appeal, is the holding of our noble Peter-Odili, JSC. who, in her contribution at pg. 174, paras. D ? F, held as follows:
This pillar of support of the appeal, based upon the point now canvassed by the appellants that the trial Court should have dismissed the action suo motu as the suit was unenforceable because of its contravention of the provisions of the Money Lenders Laws of Lagos State. There is nothing before any of the Courts below or this one in support of any illegality in the transaction between the parties, an arrangement from which the appellants derived immense benefit only to turn around on being called upon to repay, to raise the point of the transaction not meeting the requirements of the Money Lenders Act, Section 2 (c) precisely… Also, a nonstarter, assuming the condition precedent for raising the matter of the contract’s illegality was in place, is the fact that the appellants having effectively derived the benefit of the transaction leading to the suit subject matter of this appeal, are stopped from disclaiming their non obligation on account of the transaction being an illegal one. Apart from the reprehensible nature of the denunciation by them at this late hour, the law of contract has not given them the leg to be so favoured. I rely on Veritas Insurance Co. Ltd. vs. Citi Trust Investments Ltd. (1993) 3 NWLR (Pt. 281) 349; Ibrahim vs. Osim (1988) 3 NWLR (Pt. 82) 257.
After all said and done, I think that the respondents in this appeal are only trying to be clever by half as they seem to be buying time to settle their indebtedness. The purported illegality of Exhibit ‘B’ is to my mind inconclusive and this Court as it were lacks the jurisdiction to determine same. Premised on this, I can only hold and I so hold that Exhibit ‘B’ on the face of it was legally executed and in compliance with the provisions of the Money Lenders Laws of Rivers State, 1999 and therefore enforceable under the law. The question as to whether the learned trial Judge was right when His lordship held that Exhibit B, the loan agreement dated 19th July, 2010 between the appellant and the 1st and 2nd respondents was illegal and therefore unenforceable for non-compliance with the provisions of the Moneylenders Law of Rivers State even after His lordship found that the respondents have taken full benefits of the loan advanced to them pursuant to the agreement, is without equivocation answered in the negative. Accordingly the only issue raised for determination is hereby resolved in favour of the appellant and against the respondents.
Judgment is thus entered as shown hereunder in favour of the appellant. Pursuant to the provisions of Section 15 of the Court of Appeal Act, 2004, I hereby order and declare as follows:
a. That the 2nd respondent having been found to be indebted to the appellant in the sum of N10,000,000.00 (Ten Million Naira) as principal sum of the loan plus the compounded interest at the rate of 5% (five percent) per cent shall liquidate the said indebtedness on or before the 30th day of April, 2019.
b. That in default of paragraph (a) above, the rights of the 1st respondent over the landed property situate at No. 28 King Jaja Street, New Layout, Port Harcourt with a Certificate of Occupancy registered in the Port Harcourt Land Registry as No. 16 at Page 16 in vol. 279, which said property was pledged as collateral for the loan obtained by the 2nd respondent shall be foreclosed.
c. Upon default of order (a) above, the appellant shall be at liberty to sell No. 28 King Jaja Street, New Layout, Port Harcourt which was used as collateral for the recovery of the N10,000,000.00 (Ten Million Naira) principal loan sum with the accrued interest in the rate of N500,000.00 (Five Hundred Thousand Naira) per month from 22nd July, 2010 till the date of this judgment.
d. N500, 000.00 (Five Hundred Thousand Naira) is awarded in favour of the appellant as general damages.
The appeal is meritorious and so is allowed. Consequently, the judgment of the High Court of Rivers State, per Hon. Justice S. C. Amadi, J., delivered 27th April, 2017 in suit No. PHC/24/2011 is hereby set aside, while the dismissal of the respondents’ counter claim is affirmed.
Costs of N50,000.00 (Fifty Thousand Naira) is awarded in favour of the appellant and against the respondents.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Judgment of my learned brother, CORDELIA IFEOMA JOMBO-OFO JCA. I agree that the appeal is meritorious and I allow same. I abide by the consequential Order.
BITRUS GYARAZAMA SANGA, J.C.A.: I have a preview of the Judgment just delivered by my learned brother, CORDELIA IFEOMA JOMBO-OFO JCA. I agree with the evaluation of the evidence canvassed by the parties before the lower Court as it pertains to the money lenders Law of Rivers State by my learned brother in the lead judgment.
My learned brother dexterously and delicately dissected the convoluted reasoning by the respondents who after benefitting from a loan transaction turn round to castigate the said transaction by saying it was illegal ab initio. My learned brother in the lead judgment rightly observed on page 20 that ”the respondents in this appeal are only trying to be clever by half..”
In other words, they want to use the instrumentality of the law to aid their nefarious activity which is akin to the proverbial saying of eating their cake and having it at the same time. This Court cannot be a party to such an arrangement wherein the respondents derived benefit from the transaction, only to turn round on being called upon to pay to argue that the transaction did not meet the requirements of the money lenders Law of Rivers State.
Based on the reasoning and decision of my learned brother in the lead judgment supported by Judicial authorities cited and relied upon in reaching that decision, I adopt in toto the said reasoning and decision reached in the lead judgment in allowing this appeal and granting in favour of the Appellant the orders contained on pages 21-22 of the lead judgment. I also abide by the order as to cost.
Appearances:
A. Enyindah, Esq. with him, I. B. Atiyegoba, Esq.For Appellant(s)
A. E. Nnaji, Esq.For Respondent(s)
