ALHADJI S. O. GBADAMOSI (PLAINTIFF)

v.

DR K. O. MBADIWE (DEFENDANTS)

(1964) All N.L.R. 441

Division: High Court, Lagos

Date of Judgment: 27th January, 1964

Case Number: LD/309/63

Before: Onyeama, Ag. C.J.

The plaintiff's claim, against the defendant, is for the sum of £46,065 being money lent by the plaintiff to the defendant as evidenced by two promissory notes under the hands of four signatories, including the defendant.

At the trial, it was shown in evidence that the money lent did not belong to the plaintiff but to the Action Group party which had made several thousands of pounds available to the plaintiff and whose leader, Chief Awolowo, had instructed the plaintiff to lend the money to the defendant and his party leaders; it was not intended that the loans given by the Action Group party to the defendant's party were to be recovered, and the promissory notes merely represented a means of exerting pressure on the defendant and the leaders of the Democratic party who had agreed to present a common front with the Action Group party at the parliamentary elections of 1959. The claim was not brought by the plaintiff for and on behalf of the Action Group party.

HELD:

(1)     Although the promissory notes upon which the action is brought bear the name of the plaintiff, the claim cannot succeed unless the plaintiff proves that he actually lent the amount to the defendant or that there is consideration from the plaintiff for the promissory notes.

(2)     The plaintiff ought to be non-suited since the evidence reveals that the plaintiff, in another capacity, or the Action Group party properly represented may have an arguable claim against the defendant and/or other people.

Adesanya, for the Plaintiff.

Okafor, for the Defendant.

Onyeama, Ag. C. J. of Lagos:-The plaintiff claims £46,065 as money lent by him to the defendant and not repaid. The loan is evidenced by two notes under the hands of four signatories, including the defendant, who promised to "repay on or before December 15th, 1959 to Alhaji S.O. Gbadamosi of Ikorodu Trading Company, Lagos" the sums set out in the notes "being the amount borrowed from him free of interest."

The first note was made on 4th of August, 1959 and was for £16,065. The second note was dated the 16th September 1959 and was for £30,000.

According to the plaintiff the defendant and the other three signatories, namely, L.N. Obioha, C. Obioha and R. Iweka, approached him and asked for a loan of £50,000. He agreed to lend them the money "as funds became available." On the 4th August 1959 he lent them £16,065 and they gave him the first promissory note, exhibit 1. In September 1959 the four men came back to him and he lent them £30,000. They made out a promissory note, exhibit 2, which they gave to him.

Cross-examination elicited that the loan of £16,065 was handed over in 64/68 Dosunmu Street, Lagos, where the plaintiff had his office, and not to the defendant but to one P.C. Obioha on behalf of the borrowers. This money was in cash and it was this P.C. Obioha who handed exhibit 1 to the plaintiff. Indeed, the plaintiff was not present when exhibit 1 was signed and it must therefore have been made and signed elsewhere before the loan was given.

It also came out in cross-examination that the money lent did not belong to the plaintiff but to the Action Group party which had made several thousands of pounds available to the plaintiff and whose leader, Chief Awolowo, had instructed the plaintiff to lend the money to the defendant and his party leaders. The plaintiff was the Federal Treasurer of the Action Group party.

Further in the cross-examination the plaintiff said he could not remember if the promissory notes were handed to him, but he knew they were in existence. He could not deny the suggestion that Ayo Rosiji had telephoned to him to say that the promissory notes had been made and that the money could be released; that is to say, handed to the defendant and his friends.

The plaintiff denied a suggestion that the first sum, £16,065, was not cash but represented the value of vehicles and other equipment given to the defendant and his party for election campaigns. He also denied that Ayo Rosiji, and not he, had handed the second sum, £30,000, to the defendant's agent P.C. Obioha.

All the money lent was handed over in cash.

The defendant admits that he signed the promissory notes but stoutly denies that, apart from using the plaintiff's name on the notes, he had had anything to do with the plaintiff in respect of these loans. He did not approach him for accommodation nor did he receive any sum of money whatever from him either in person or through P.C. Obioha.

The whole question of financial assistance for the political party in which the defendant was interested was discussed between the defendant and the Action Group, and it formed part of a political understanding between the Action Group and that party, the Democratic Party. The promissory notes were made out by Ayo Rosiji, the Secretary of the Action Group, in his office, and the £16,065 represented the value of vehicles and election campaign equipment given to the Democratic Party pursuant to the understanding. The sum of £30,000 was paid by cheque to one P.C. Obioha who had been authorised to receive it from Ayo Rosiji.

Ayo Rosiji gave evidence in support of the defendant's case. He said that it was not intended that the loans, or rather, the financial and other assistance given by the Action Group party to the defendant's party, were to be recovered. The promissory notes were really a means of exerting pressure on the defendant and the leaders of the Democratic Party and making them keep their promise to present a common front with the Action Group party should they win any seats in the Federal elections of 1959. If the Democratic Party won any parliamentary seats and backed out of this understanding, the notes were to be sued on.

It is, to my mind, beyond dispute that the defendant and certain other people had received money and money's worth to a total value of £46,065 from the Action Group party.

The question whether the defendant is in law bound to repay it or whether the alleged understanding that the money was not to be recovered affords him any defence is one which, in view of the opinion I have formed on other aspects of the case, I find it unnecessary and inadvisable to go into.

I am satisfied on the evidence that the sums loaned belonged to the Action Group party and not to the plaintiff. I find as a fact that the materials and money given to the defendant's agent, P.C. Obioha, were handed over by Ayo Rosiji and not by the plaintiff. I accept the evidence that the promissory notes were written out by Rosiji and signed by the defendant and the other three signatories in Rosiji's office and that the name of the plaintiff was inserted in them as a matter of form only. There is no evidence that Ayo Rosiji was the agent of the plaintiff for the purpose of making the promissory notes or handing over the materials or money.

The plaintiff's answers to some questions put to him in cross-examination appeared to modify the force of his evidence-in-chief and suggest that the plaintiff did not know very much about the circumstances surrounding the making of the promissory notes and, I suspect, the loans.

If he had sued for and on behalf of the Action Group party other considerations might have arisen. He has however taken advantage of the fact that the promissory notes bear his name and sued in his own name. In order to succeed he has to prove that he lent the amount claimed to the defendant; far from this being proved, it has been clearly established that, notwithstanding the promissory notes, the plaintiff lent no money at all to the defendant. There was therefore no consideration moving from the plaintiff for the notes and the claim must fail as at present formulated.