The case of the plaintiff is that while he was in Lagos to negotiate for an import licence he met the defendant there at the Federal Palace Hotel and at defendant's request, he gave him a loan of N25,000.00 interest free. The loan was receipted and admitted in evidence as Exhibit A. When the loan was not repaid for demand by plaintiff, the defendants delivered his Mercedes Benz Car Reg. No. LA9083 AE to the plaintiff with a letter of authority. Exhibit B, given to the plaintiff to dispose of the said car in partial liquidation of the loan. He also paid over to him the sum of N500 for the maintenance of the vehicle. Plaintiff got an offer of N10,000.00 for the sale of the car form an offeror, who made a deposit of N2,500. This was communicated who thereupon reacted by saying the value of the car was not enough to cover the debt of N25,000.00. Plaintiff therefore sued as per his claim for the amount of N25,000 less N10,000 recovered from the sale of the said care. He also claimed 10% interest until judgment is given and 10% interest thereafter until the judgment debt is finally paid.

On his part, the defendant's case was that he and the plaintiff had travelled to Lagos on a business venture to buy cars which would be re-sold at Onitsha. Towards this arrangement, he contributed N40,000.00 while plaintiff contributed N25,000.00 and thereafter a total sum of N65,000.00 was paid jointly by them through the defendants to Mr. And Mrs. Ebuwa and the said payment was receipted and admitted in evidence as Exhibits D – D2. The Ebuwas neither delivered any motors to them nor refunded their money. Consequently, the matter was reported to police in Lagos and the except of police Report was admitted in evidence and marked Exhibit E. defendant stated that the plaintiff had threatened his life when they were in Lagos because of the failure of the Ebuwas to either perform or make a refund. He also admitted delivering his Mercedes car to plaintiff and giving him N500 for repairs of the car if the need arises. Defendants also stated that when he was informed that the car fetched N10,000 he then told the plaintiff that that would cover the amount he was owing the plaintiff.

The Defendants were dissatisfied with the judgment. They brought an appeal against it before the Court of Appeal, Benin Division (hereinafter referred to as the 'Court below'). The Court below in its unanimous judgment on 7th July, 1995 allowed the appeal. The judgment given by the trial Judge was set aside and the case was ordered to be retried.

After due hearing, Awogu J, as he then was, dismissed plaintiff's case after holding that the evidence showed there was a business partnership between the parties and that Exhibits A and B were signed by the defendant under duress and that plaintiff's contribution could not be subsumed as a loan. Dissatisfied with the judgment of the lower court the plaintiff, herein appellant, appealed.