SUPREME COURT OF NIGERIA
14TH JANUARY, 1966.
SIR LIONEL BRETT, J.S.C. (Presided)
CHARLES DADI ONYEAMA, J.S.C.
MICHAEL OGUEJIOFO AJEGBO, J.S.C. (Read the Judgment of the Court)
F.O. Akinrele – for the Appellant
L.O. Okunnu – for the Respondent
INSURANCE AND RE-INSURANCE LAW:- Sum for property assured – Whether guide to price in open market.
BANKING AND FINANCE LAW:- Banking practices – Granting of loans and credit facilities – Whether makes bank a money-lender under the Money-Lenders Act
REAL ESTATE AND PROPERTY LAW:- Valuation of property pursuant to a sale – Sum for which property is insured – Whether reliable guide
PRACTICE AND PROCEDURE – PLEADINGS:- Plaintiff asserting to be a money-lender in claim- Defendant asserting otherwise – Defendant later asserting plaintiff to be money-lender – Whether permissible.
The plaintiffs sued the defendant in the High Court of Western Nigeria for a sum of £9,390.12s.11d being balance of a loan they granted to the defendant sometime in 1954. The defendant, on the other hand, counter-claimed for a sum of £10,000 which, he said, was the value of the property he mortgaged to the plaintiffs as security for the loan and which property, according to him, the plaintiffs sold by auction; alternatively, he wanted an account of the sale rendered to him. Delumo, J., who tried the case, gave judgment for the plaintiffs and dismissed the counter-claim.
The defendant has appealed from the judgment.
Three grounds of appeal were filed and argued and they are as follows:-
”(1) The learned trial Judge erred in law in not dismissing the plaintiffs’ claim as moneylenders when they have failed to comply with provisions as to account, interest and period of limitation under the Moneylenders Ordinance.
(2) The learned trial Judge erred in law in not awarding damages on the counter-claim when on the exhibits the fact of sale was admitted and they were not denied in the pleadings.
(3) Judgment against the weight of evidence.”
Arguing the appeal for the defendant, Mr.. Akinrele submitted in respect of the first ground that although the plaintiffs were bankers they elected to sue as money-lenders and the transaction should, therefore, be governed by the provisions of the Money-Lenders Act. It is true that for some unknown reason the plaintiffs pleaded in paragraph 1 of their Statement of Claim that they were money-lenders whose head office was at 82/84 Broad Street, Lagos, but instead of exploiting the situation created by the averment the defendant, rather unwisely, denied in paragraphs 1 and 7 of his Statement of Defence that the plaintiffs were money-lenders. Having denied the plaintiffs’ status as money-lenders, the defendant cannot call in aid the Money-Lenders Act; he cannot approbate and reprobate. Mr. Okunnu, for the plaintiffs, has rightly pointed out that throughout the evidence the plaintiffs were referred to as “the bank” and not as money-lenders, and that according to Section 2(c) of the Money-Lenders Act “money-lender” shall not include “any person bona fide carrying on the business of banking”. With this submission we agree and this ground of appeal, therefore, fails.
On the 2nd and 3rd grounds of appeal, which were argued together, learned Counsel submitted that because the plaintiffs themselves insured the property for £10,000 that was the value of the property. He argued that the houses were sold by the plaintiffs and that no account of the sale was rendered to the defendant; he referred to the evidence of the 3rd witness for the defendant, Erastus Oyeniyi, who testified that he bought a house in 1958 at Ondo for £250. The plaintiffs denied selling any of the defendant’s houses; there was no evidence of sale nor was there anything to connect the house that Oyeniyi said he bought with Exhibit G. or with any of the mortgaged houses in Exhibit El. The house was not conveyed to Oyeniyi.
It is a notorious fact that the sum for which property is insured is no guide to the price which it will fetch in the open market. If, on the defendant’s own showing, one of the houses was sold for £250 one fails to understand the basis for the claim of £10,000 for the three houses under mortgage. The learned trial Judge did not believe the story about the sale and we agree with him that the counter-claim should be dismissed.
There is no merit in the appeal and it is dismissed with costs assessed at thirty-five guineas.
BRETT, J.S.C.: I concur.
ONYEAMA, J.S.C.: I concur.