Nosa Igiebor’s daughter fails in Sex for N15 million claims

Emmanuel Thomas l Wednesday, September 22, 2021

LAGOS, Nigeria – A Lagos High Court sitting in Ikeja has ordered Nosa Igiebor  Titilayo(the defendant) to pay the sum of N15 million  to Mr. Omokaro Peter Imafidon (the claimant)  being loan advance to the defendant.  Nosa  Igiebor Titilayo is the daughter of  Mr. Nosa Igiebor, Publisher and Chief Executive Officer of Tell Magazine.

The court also awarded N1 million as general damages against the defendant and in favour of the claimant. Justice R.I. B. Adebiyi  made the orders in her judgment  in the suit marked ID/ADR/591/13 between  Nichole Integrated Investment Limited (Claimant)  and  “Tilimanjaro Nigeria Limited.

Starconnectmedia.com reports that Adebiyi also ordered judgment interest at 35% per annum  from the date hereof until final liquidation of the Judgment debt.  “The Claimants claims for a declaration that the Defendant is bound by  the terms of the Loan Agreement dated 27th May 2011 Exhibit C1, and for prejudgment interest at 35% per annum fail and are hereby  dismissed.   The Defendant’s counterclaim fails in its entirety and is hereby  dismissed”,  Her lordship, Justice R.I.B Adebiyi declared.

This suit was commenced vide a Writ of Summons and a Statement of claim dated 23rd July 2013. The Claimant is a limited liability company incorporated in Nigeria carrying on business of investment with registered offices in Ikeja, Lagos. The Defendant is also a limited liability company incorporated in Nigeria into the business of information technology, supply of computer accessories and real property investment with registered offices in Ikeja, Lagos.

The Claimant averred during the hearing  that in May 2011, it entered into an oral agreement with the Defendant to lend the Defendant N15 million to enable one Ahmed Ogunbunmi, a Director in the  Defendant’s company to proceed on a pilots training course at Phoenix East Aviation School, Florida, United States of America (USA). The agreement was  for the defendant to repay the said sum of N15million by May 27th 2013 and if there is default, interest at 35% per annum shall apply on the whole sum which shall be payable along with the principal.  

The claimant sought the following  in his statement of claim dated 23rd July 2013:  “A Declaration that the Defendant is bound by the terms of the Loan  Agreement between the claimant and the Defendant in which the Defendant received the sum of N15,000,000.00 (Fifteen Million Naira only) ;  An Order for the payment of the sum of N15,000,000 (Fifteen Million  naira) being loan advanced to the Defendant by the claimant ; An Order that the claimant is entitled to interest on the N15,000.00  (Fifteen Thousand Naira only) at the rate of 35% from 27th day of May 2013 until judgment and liquidation.; An Order that the Defendant is liable for breach of contract in sum of N5,  000,000,00 (Five Million Naira Only) be paid as general damages

This suit was commenced vide a Writ of Summons and a Statement of claim dated 23rd July 2013. The Claimant is a limited liability company incorporated in Nigeria carrying on business of investment with Registered offices in Ikeja, Lagos. The Defendant is also a limited liability company incorporated in Nigeria into the business of information technology, supply of computer accessories and real property investment with registered offices in Ikeja, Lagos.

It is the case of the Claimant that in May 2011, it entered into an oral agreement with the Defendant to lend the Defendant N15 million to enable one Ahmed Ogunbunmi, a Director of the Defendant, proceed on a pilots training course at Phoenix East Aviation School, Florida, United States of America (USA). The agreement was to repay the said sum of N15million by May 27th 2013 and if there is default, interest at 35% per annum shall apply on the whole sum which shall be payable along with the principal.

According to the Claimant, the loan agreement evidencing the agreement was never executed for several reasons however, the unexecuted agreement, emails and other documents exist to prove the contract.  The Claimant is of the view that the Defendant remains indebted to it in the sum of N15million hence the instant suit.

The Claimant’s claims against the Defendant as contained in the  Statement of Claim dated 23rd July 2013 are as follows:  “A Declaration that the Defendant is bound by the terms of the Loan  Agreement between the claimant and the Defendant in which the Defendant received the sum of N15,000,000.00 (Fifteen Million Naira only) ;An Order for the payment of the sum of N15,000,000 (Fifteen Million  naira) being loan advanced to the Defendant by the claimant; An Order that the claimant is entitled to interest on the N15,000.00  (Fifteen Thousand Naira only) at the rate of 35% from 27th day of May 2013 until judgment and liquidation;  An Order that the Defendant is liable for breach of contract in sum of N5,  000,000,00 (Five Million Naira Only) be paid as general damages and an Order for the payment of N1,000,000.00(One Million Naira Only)” The Defendant filed a Statement of Defence and Counter claim which was amended dated 9th of February, 2017. The Defendant denied that it entered into an oral or written contract with the Claimant in respect of the N15million.

In reply, the Defendant averred that its Managing Director Miss Titilayo Nosa – Igiebor had an amorous sexual relationship with the Claimants Managing Director, Peter Omokaro which developed to the extent that the Claimants Managing Director proposed marriage to the Defendant’s Managing Director.

According to the Defendant, the relationship between the two Managing Directors was such that the Defendant’s Managing Director was showered with financial and non-financial gifts by the Claimant’s Managing Director and that during the course of their relationship, the Claimant’s Managing Director lodged cheques into the Defendant’s current account for the Managing Director of the Defendant because  she did not have a personal current account and also that the two also communicated through the official emails of both companies.

 The Defendant denied the existence of a company loan agreement dated 27th May 2011 and averred that same is nonexistent and a figment of the Claimant’s imagination.

THE SEX FOR N15 MILLION ALLEGATIONS

 The Defendant further averred that a personal loan agreement and note dated 10th May 2011 was drawn and executed between both the claimant and Defendant’s Managing Director whereby it was agreed that the claimants Managing Director would give the Defendant’s Managing Director a loan to pay for her brother’s flight school in the USA and that repayment of the loan would be if the Defendant’s Managing Director agreed to resume sexual intercourse with the claimant’s Managing Director following sexual withdrawal.

The Defendant acknowledged that its Managing Director had sexual encounters several times with the claimant’s Managing Director which triggered the waiver clause. Thereafter, according to the Defendant, their relationship continued, with ups and downs and each time there was a challenge, the Claimant’s Managing Director threatened to enforce the friendly loan against the company.

The Defendant noted that their Managing Director was later offered marriage by the claimant’s Managing Director,  which suffered a setback due to lovers quarrels in November 2011 which was later resolved and later turned sour as shown in emails, webcams, text messages, flash drives and so on.

The Defendant posited that the claimant’s Managing Director instituted a charge No: B/10A/2012 against the Claimant and then instituted two suits before this Court and the Federal High Court in respect of the facts of this case, Suit No: ID/563/2012 and Suit No: FHC/IKJ/CS/32/2012 and that settlement was reached in Suit No: ID/563/2012 and consent Judgment entered.

The Defendant averred that the instant suit is an abuse of Court process and relies on the defence of estoppel per rem judicata and urged the Court to dismiss the suit. The Defendant counterclaimed for the fees paid to its legal practitioner vide its Amended Counterclaim dated 9th February 2017 as follows:

 “The sum of N3,000,000 (Three Million Naira) being the refund of the  Professional fee paid to the Legal practitioner engaged by the Defendant/Counter-claimant to file a defence in this suit which is calculated  to waste scarce judicial time.

He also sought an order of perpetual prohibitory injunction restraining the Defendant to  the Counter-claim, whether by itself, its servants, agents, privies, representatives or by whatever names called from instigating, further instigating, instituting, further instituting any Suit relating to or pertaining  to the consent Judgment of Court in Suit No: ID/563/2012 3. Cost of this Counter-Claim as assessed.”

The Claimant filed a Reply to the Defendant’s amended Statement of Defence and Defence to Counter-claim dated 14th of February, 2017. The claimant averred that the relationship between the claimant and Defendant’s Managing Directors was distinct and separate from the business relationship between the two companies.

The Claimant denied executing an agreement with the Defendant’s Managing Director. The Claimant averred that the subject matter of the instant suit is different and distinct from the subject matter in Suit No: ID/563/2012, the Claimant denied the Defendant’s counterclaim and urged the Court to dismiss same.

In delivering her judgment, Justice RIB Adebiyi took note of the decision of the Supreme Court in Sparkling Breweries Ltd & Ors Vs Union Bank of Nig (supra) relied upon by the Claimant’s counsel and asserted that it is applicable.  According to her, the principle of law is as espoused by Ogundare JSC at pp36-37 para C as follows:

“Whether or not there is a semblance of a legally binding agreement between the parties, that is, a situation where the parties to the contract confer rights and impose liabilities on themselves – will largely depend on whether there exists a mutual assent between them. Where there is doubt on whether the parties have concluded a legally binding agreement, the Court has the responsibility to analyze the circumstances surrounding the alleged agreement and determine whether the traditional notion of ‘offer and ‘acceptance can be distilled from the purported agreement.

“The mutual assent must be outwardly manifested. The test of the existence of such ! mutuality is objective. See Norwich Union Fire Insurance Society v. Price (1934) AC 455, p.463. When there is mutual assent, the parties are said to be ad idem. Now the two items ‘offer’ and ‘acceptance’, earlier referred to, call for some explanation in order to recognise whether or not the parties are ad idem. An ‘offer’ is an expression of readiness to contract on the terms specified by the offer or (.e. the person making the offer) which if accepted by the offeree (i.e. the person to whom the offer is made) will give  rise to a binding contract. In other words, it is by acceptance that the offer is converted into a contract.”

According to the judge, the circumstances in this case is that CW1 gave N15million to the Defendant company by Exhibits C6 a& b and Exhibit D4 which were issued in favour of Tilimanjaro Nig Ltd, the Defendant company.  She noted that these facts are not in dispute. “ CW1 testified that the loan was to pay for the pilot training of Ahmed Ogunbunmi, DWI’s brother and a Director of the Defendant company as shown in Form CAC7 – Exhibit C7. The unsigned agreement Exhibit C1, which was correctly admitted in evidence as same was pleaded. See Mediterranean Shipping Co SAV V Enemalutan (2003) LPELR -9253 lacks probative value and cannot be used by the Court to arrive at any finding of fact. The email exchanged between CW1 and DW1 Exhibit C9b shows that DW1 expected to enter into loan agreement for the N15million loan she expected to receive from CW1. DW1 stated in Exhibit C9(8) in part as follows:

“Kindly find attached the mail from the flight school as you requested, to assist you in doing your homework (note that attached is the application Requirements and if you go through it, you will see that all we are waiting for is your side of the agreement). As for the N15million loan agreement, we shall sign it during our meeting over the week when you have recovered from the operation.”

“CW1 testified that they were unable to execute the loan agreement before disbursement of the loan to the Defendant in May 2011 due to his ill health, CW1 testified that he sent a copy of the agreement second time to Dwi, the Managing Director of the Defendant to execute by DHL vide Exhibit C8 shipment waybill dated 10/8/11 and that by an email dated 19th July 2011, she acknowledged receipt of the first one but failed to execute and return same despite assurances.

“ In the email dated 19th July 2011 Exhibit C9(c) tendered in evidence, DWI stated in part as follows:  “As for the agreement, I shall give it to you personally tomorrow by noon”.  CW1 under cross examination testified that he sent the agreement to DW1 for execution by DHL Courier.

“DW1 under cross examination did not deny receipt of the agreement by DHL. Her defence however, was that the loan was a personal one in furtherance of her amorous relationship with CW1 and that it was grounded by a loan agreement and note dated 10/5/2011(Exhibit D3) where it was agreed that the loan will be waived once she resumes sexual relations with CW1. CW1 has denied executing Exhibit D3 and stated that his signature on the said document was forged.

“Learned counsel to the Defendant urged the Court pursuant to S.101(1) of the Evidence Act 2011 to compare the signature of CW1 on Exhibit D3 with his signature on his witness deposition before the Court and to hold that they are the same. The Court relying on the powers conferred on it by the provision of Section 101(1) of the Evidence Act 2011 finds that the signature of the CW1 on Exhibit D3 and his witness depositions dated 23/7/2013 and 14/2/2017 before the Court, appear to be the same. The Court finds the defence of the CW1 that he did not sign Exhibit D3 on a balance of probabilities is unproved.

“Learned counsel to the Claimant submitted in his written address that Exhibit D3 is an unenforceable contract because it is built on an illegality. The entire defence of DW1 is centered around her sexual relationship with the Defendant and DW1 tendered in evidence in proof of her sexual relationship with the Defendant a flash drive showing them having sex.  

“Exhibit D15 (a) & (b), copies of text messages Exhibit D10 and a prenuptial agreement Exhibit D7. CW1 whilst admitting the existence of a relationship between himself and the Defendant’s Managing Director continuously maintained that the loan of N15milloion was a business transaction between the claimant and Defendant  company Exhibit D3- Loan Agreement & Note is dated 10/5/2011 and is purportedly executed by CWI & DW1. It states in part as follows:

“This is an agreement between Mr. OMOKARO PETER IMAFIDON (herein referred to as “PETER”) and Miss NOSA LIGIEBOR TITILAYO (herein referred to as TITILAYO) Whereas, Titilayo has requested a personal loan from Peter to use for tuition/bill payment for her brother through aviation school, and in accordance with certain terms and conditions;  

“Whereas, Peter is willing to loan money to Titlayo for her needs, and in accordance with certain terms and conditions:  NOW, THEREFORE, IT IS HEREBY AGREED that: 1. The Loan: On the date that this Agreement is signed by PETER, PETER will loan TITILAYO the sum of N15million” the Loan”. The date of making of the Loan shall be the date on which the payment is made.  The interest Rate: The Loan shall not accrue any interest. 3. Term of Loan: Titilayo shall attempt to repay the Loan as soon as possible, but in any event shall repay the entire principal amount of the Loan, together with interest, if any, to Peter, on or before a day which is three years from the date on which the Loan is made.

“Promise to Replay/Prepayment: Titilayo, jointly and severally, promises to repay Peter the principal amount of this Loan, together with interest thereon, if any, on or before a day which is three years from the date on which the loan is made. Titilayo may prepay the Loan, together with interest, if any, at any time, and without penalty. 5. Waiver of Rights: Titilayo forever waives demand, notice of nonpayment, dishonor, and protest or notice to protest.

“Also Peter forever waives all rights to loan payback, forfeiting totally full loan given if Titilayo agrees to  and has sexual intercourse (SEX) with Peter.” The waiver clause in the contract is subject to DW1 having sexual intercourse with CWI. The question begging for an answer is: Whether a contract with a waiver clause founded on sex  is a legally enforceable contract?

“A contract which is expressly or impliedly prohibited by statute is illegal and unenforceable. See Alao V ACB (1998)8 NWLR PT 542 339@370. The waiver of clause in Exhibit D3 which is founded on having sex, which should ordinarily be a private act, is implicitly an indecent act and therefore an offence against morality and public policy, proof of which will require the publication of obscene material such as the playing of a sexual encounters in Court (a public place) as contained in the flash drive Exhibit D15 (a) & (b), an offence contrary to Section 149 of the Criminal Law of Lagos State 2011. The Court finds for this reason and relying on the decision of Supreme Court in Alao V ACB (supra) and Corporate Ideal Insurance Ltd v Ajaokuta Steel Co Ltd & Ors (2014) LPELR-22255 that the contract Exhibit D3 is not enforceable in law.

Furthermore, the Court finds upon cursory consideration of Exhibit D3 particularly paragraph 1 which reads as follows:

1. “The loan: on the date that this Agreement is signed by Peter, Peter will  loan Titilayo the sum of N15million (US$100,000) “the loan”. The date  of making of the loan shall be date on which the payment is made” That the agreement which is dated 10th of May 2011 does not conform with the dates on the cheques issued to the Defendant. Exhibits C6 a &b and Exhibit D4 which are dated 24/5/2011 and 27/5/2011. The Court finds that on a balance of probabilities that the terms and conditions in Exhibit D3 is unlikely to be true.
2. “The Court finds that the Defendant failed to prove its contention that the loan was granted to the Defendant’s Managing Director, DW1 personally and that it was governed by the Loan Agreement & Note-Exhibit D3. The burden of proof shifts back to the Claimant, who will fail if no evidence is adduced. See Nigeria Maritime Services Ltd v Afolabi (1978) 2 SC 79 @ 84. The Court finds that from the evidence presented by the Claimant, the testimony of CW1, Exhibits C6 a & b, copy of the cheques. CAC forms CO7of the Defendant -Exhibit C7 showing the beneficiary of the loan was the Defendants Director with his admission letter to the College attached to Exhibit C9a, the Claimant were able to show the existence of a contract of offer and acceptance between the Claimant and Defendant company. I

The Defendant by the contract Exhibit D3, which was founded on an illegality, the contradictory statement of DW1 under cross examination where in one breath she stated that the Defendant did not receive any loan from the Claimant but that it was a personal loan to her and in another breath she denied receipt of the loan and DW1’s shifty and combative demeanor tilted the weight of evidence in the Claimants favour. The Court finds that the claimant was able to prove that the “N15million loan therefore was granted by the claimant to the Defendant’s company. –

In view of the Courts earlier finding that Exhibit C1, the unsigned loan agreement has no probative value, the claimants claims for a declaration that the Defendant is bound by the terms of Exhibit C1 and for prejudgment interest at 35% per annum as stipulated in Exhibit C1 must fail.

“No other reasons were proffered by the Claimants counsel to urge the claim for prejudgment interest on any other grounds such as custom or trade. See Ekuwumfe V Wayne WA Ltd (1989) 5 NWLR (PT 244) p. 422. This claim must accordingly fail.

“The Claimant’s claim includes post judgment interest. The Court is empowered pursuant to the provisions of Order 39 R 4 (b) of the High Court of Lagos State Civil Procedure Rule 2019 (HCLCPR) to award post judgment interest at a rate not less than 10% per annum. The Claimants claim is for post judgment interest at 35% per annum, same is awarded pursuant to Order 39 R 4 (b) of the HCLCPR 2019. The Claimant is also claiming for N5 million general damages and N1million costs.

“General damages are damages which the law implies or presumes to have accrued from the wrong complained of. See UBN PIC V Ajabule & anor (2011) LPELR 8239 SC. The test in applying general damages is that of a reasonable man. See Lar V Stirling Astaldi Ltd (1977) 17/128 SC 53. In applying the test, the Court finds that the sum of N1million general damages to the Claimant is sufficient to assuage the Claimant for the wrong complained of

“. In concluding Issue 2, the Court finds that the claimant is entitled to a part of its claims in the sum of N15million, 35% post Judgment interest and N1million damages.

On whether the Defendant is entitled to its counterclaim? The  court ruled that the Defendant’s counter claim is for refund of professional fees and an order of perpetual injunction restraining the Defendant to counterclaim from further instituting any suit relating to the consent judgment of Court in Suit No. ID/563/2002

Learned counsel to the Claimant submitted that the Defendant’s claim for solicitor’s fees does not form part of the Defendant’s cause of action. He cited in support Guinness Nig Plc V Nwoke (2000) 15 NWLR PR 689 and Nwanji V Coastal Services Ltd. (2004) 36 WRN 1 @ 14-15.  In response, learned counsel to the Defendant in his Reply on Points of Law submitted that a counterclaim is an independent action and cited in support several authorities including Olaloye V Ag & Chief Justice of Osun State (2015) ALLFWR Part 774 p. 33, Akinawo V Adewoye (2018) ALLFWR Part 627@448.

“The argument of learned counsel to the Defendant that a counterclaim is an independent and separate action is upheld as it reflects the correct position of the law. However, the counter Claimant has the burden of proving the counterclaim to be entitled to Judgment, See Maobison Inter Link Associates Ltd VU. T. C Nig Plc (2013) LPELR-20335 SC.

“The argument of learned counsel to the Claimant is that a party cannot ordinarily claim the legal fees he paid to his solicitor unless it is specially pleaded as special damages and proved by credible and cogent evidence. See Guinness Nig Plc V Nwoke (supra). The Defendant’s claim for solicitor’s fees is contained at paragraphs 88 and 89 of the Defendants Statement of Defence and counterclaim dated 9/2/2007. DW1 testified at paragraphs 88 & 89 of her deposition that after negotiation with their solicitors, they paid  N2. 5million to their solicitors in line with the Bill of professional charges. The bill issued by the Defendant’s counsel is attached to letter dated 23rd August 2013 (Exhibit D13).

“The bill Exhibit D13 did not contain a proper breakdown of services rendered nor was it taxed. The Court finds the claim for professional fees to be unproved, The Defendant’s counterclaim for a perpetual injunction which is based on res judicata must also fail in view of the Courts holding on res judicata in Issue 1.

 “In conclusion Judgment is hereby entered as follows:

1. It is hereby ordered that the Defendant pay the sum of N15million to  the Claimant being loan advanced to the Defendant. 2.  N1millon general damages is awarded in favour of the claimant against  the Defendant. 3. Post judgment interest shall be on the Judgment sum at 35% per annum  from the date hereof until final liquidation of the Judgment debt. 4. The Claimants claims for a declaration that the Defendant is bound by  the terms of the Loan Agreement dated 27th May 2011 Exhibit C1, and for prejudgment interest at 35% per annum fail and are hereby  dismissed. 5. The Defendant’s counterclaim fails in its entirety and is hereby  dismissed.