ISA v. ALHAJI SANI ADAMU TRADER
CITATION: (2016) LPELR-41311(CA)
In the Court of AppealIn the Kaduna Judicial Division
Holden at Kaduna
ON THURSDAY, 16TH JUNE, 2016Suit No: CA/K/127/2014
Before Their Lordships:
ISAIAH OLUFEMI AKEJU Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealOLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice, Court of Appeal
BetweenALHAJI ABUBAKAR ISA - Appellant(s)
AndALHAJI SANI ADAMU TRADER - Respondent(s)
RATIO DECIDENDI1. APPEAL - REPLY BRIEF: Purpose/function of a reply brief
"The purpose of a Reply Brief is to answer new arguments raised in the Respondent's Brief and not arepetition or re-argument of the issues. SEE YARO V. AREWA CONSTRUCTION LTD. (2008) ALL FWLR (Pt.400) 603."Per AKEJU, J.C.A. (P. 10, Paras. D-E) - read in context
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2. COMMERCIAL LAW - MONEY LENDER: Who qualifies as a money lender within the provisions of theMoney Lenders Law; determining factor of whether a transaction amounts to money lending"On the issue of Money Lenders Law, Counsel to the Appellant posited that charging of interest in defaultof payment of the repayment of the money lent, as stated in the Agreement, connoted that what existedbetween the parties was a money lender's agreement and that this offended the Money Lenders Law ofKano State. This issue posed the question whether the Respondent is a money lender within the meaningof, and regulated by, the Money Lenders Law of Kano State, Cap 95, Laws of Kano State, 1991 and, if theanswer is in the affirmative, whether the Financing Agreement was enforceable. The necessary point ofcommencement of enquiry must the definition of "money lender" within the provisions of the MoneyLenders Law itself.The relevant Sections here are Sections 2 and 3 of the Law. Section 2 reads:"... 'Money Lender' includes every person whose business is that of money lending or who carries on oradvertises or announces himself or holds himself out in any way as carrying on that business, whether ornot he also Possess or owns property or money derived from sources other than the lending of moneyand whether or not he carries on the business as a principal or as an agent; but it shall not include:(a) Any society registered under the Co-operative Societies Law; or(b)Any body corporate, incorporated or empowered by special enactment to lend money in accordancewith such enactment; or(c) Any person bonafide carrying on business of banking or insurance or bona fide carrying on business,not having its primary object the lending of money, in the course of which and/or purposes whereof helends money; or(d)Any pawnbroker licenced under the Pawnbrokers Law where the loan is made in accordance with theprovisions of the Pawnbrokers Law and does not exceed the sum of forty Naira."Section 3 states that:"Save as excepted in Paragraphs (a), (b), (c) and (d) of the definition of 'money lender' in Section 2 anyperson who lends money at interest or who lends a sum of money in consideration of a larger sum beingrepaid shall be presumed to be a money lender until the contrary is proved." The wordings of these twoSections are a word for word replication of the provisions of the Money Lenders Law of practically all theStates in Nigeria and they have been subject of judicial interpretation in several cases. The consensus ofall the cases is that the definition of a money lender under the Law is wide and it encompasses everyperson whose business is that of money lending and any person who lends money on interest or wholends a sum of money in consideration of a larger sum being repaid.There are, however, three categories of persons that cannot be called money lenders within the meaningof the Money Lenders Law and these are a banker, an insurer and a person who does not have for hisprimary object the lending of money. It follows therefore that a person will not be designated as a moneylender even though he is involved in money lending, in so far as he is a banker or an insurer or theprimary object of his business is not money lending. ?In other words, the determining factor of whether atransaction amounts to money lending within the provisions of the Money Lenders Law is not onlywhether the loan was given on interest or in consideration of a larger sum being repaid. It includes adetermination of whether the person giving the loan is not a banker or an insurer or whether the primaryobject of the business of that person is money lending business so as to bring him within the definition ofa money lender in the provisions of the Law. Where it is not shown that the primary object of thebusiness of the lender is money lending, such a transaction does not come within the purview of theMoney Lenders Law - Veritas Insurance Co Ltd Vs City Trust Investment Ltd (1993) 3 NWLR (Pt 281) 349,Eboni Finance & Securities Ltd Vs Wole-Ojo Technical Services Ltd (1996) 7 NWLR (Pt 461) 464, NwankwoVs Nzeribe (2003) 73 NWLR (Pt 890) 422, Ajao Vs Ademola (2005) 3 NWLR (Pt 913) 637, Idika VsUzoukwu (2008) 9 NWLR (Pt 1091) 34, Ibrahim Vs Bakori (2009) LPELR 8681(CA). This position of ourCourts accords with the view expressed by Farewell, J in Lintchfield Vs Dreyful (1906) 1 KB 554 at 559that the Money Lenders Law was intended to apply to persons who are really carrying on the business ofmoney lending and not to persons who lend money as incident business or to a few old friends. It was notin dispute in the instant case that the Respondent was neither a banker nor an insurer. The question thenis whether, from the facts of this case, it was shown that the primary object of his business was moneylending. The word primary is said to mean first, main or most important. The onus of proving that theprimary object of the business of the Respondent was money lending was on the Appellant - VeritasInsurance Co Ltd Vs City Trust Investment Ltd supra, Eboni Finance & Securities Ltd Vs Wole-OjoTechnical Services Ltd supra, Nwankwo Vs Nzeribe supra."Per ABIRU, J.C.A. (Pp. 30-34, Paras. B-D) - readin context
3. CONTRACT - TERMS OF CONTRACT: Whether extrinsic evidence can be admissible to vary the termsof a written contract"The Law is that where parties have reduced the terms of their agreement or contract into a writtendocument, the parties are presumed to intend what they have stated in the written document, the wordsof the document must be given their ordinary and plain meaning and no extrinsic evidence is admissibleto add to, or vary or contradict the content of the document. See UBN LTD. V. NWANKWO (1995) 6 NWLR(Pt. 400) 727; EJUETAMI V. OLAIYA (2001) 78 NWLR (Pt.746) 572."Per AKEJU, J.C.A. (P. 16, Paras. D-F) -read in context
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4. CONTRACT - TERMS OF CONTRACT: Whether parties are bound by the terms of their contract and theduty of court to give effect to same"...it is settled law that parties are bound by the contract they voluntarily enter into and cannot actoutside the terms and conditions contained in the contract and neither of the parties to a contract canalter or read into a written agreement a term which is not embodied in it - African International Bank LtdVs Integrated Dimensional System Ltd (2012) 17 NWLR (pt 1328) 1, Lagos State Government VsToluwase (2013) 1 NWLR (Pt 1336) 555. A Court too must treat as sacrosanct the terms of an agreementfreely entered into by the parties as parties to a contract enjoy their freedom to contract on their ownterms so long as same is lawful and if any question should arise with regard to the contract, the terms inany document which constitute the contract are the invariable guide to its interpretation. It is not thebusiness of the Court to rewrite a contract for the parties and it should thus not add to or subtract from orimport any provision into the contract - Omega Bank (Nig) Plc Vs O.B.C. Ltd (2005) 8 NWLR (Pt 928) 547,BFI Group Corporation Vs Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) 209, Daspan Vs ManguLocal Government Council (2013) 2 NWLR (Pt.1338) 203, Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt 1349) 1. Aparty cannot be allowed to resile from an agreement he entered into unless he can prove that heconsented to the agreement under coercion, duress, undue influence, mistake or misrepresentation."PerABIRU, J.C.A. (Pp. 23-24, Paras. A-B) - read in context
5. INTERPRETATION OF DOCUMENT - RULE OF INTERPRETATION OF DOCUMENT/JUDGMENT:Cardinal rule of interpretation of document or judgment"It is also settled that in the interpretation of a document, the document must be read as a whole andinterpreted holistically. See MBANI V. BOSI (2006) 5 SC (Pt.111) 54."Per AKEJU, J.C.A. (Pp. 16-17, Paras. F-A) - read in context
6. INTERPRETATION OF DOCUMENT - RULE OF INTERPRETATION OF DOCUMENT/JUDGMENT:Cardinal rule of interpretation of document or judgment"It is a settled principle of interpretation of documents that where the language used by parties incouching the terms or provisions of a document are clear and unambiguous, the Court must give theoperative words in the document their simple, ordinary and actual grammatical meaning - Union Bank ofNigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt.937)631, Egwunewu Vs Egeagwu (2007) 6 NWLR (Pt 1031) 431. It is also settled that in interpreting adocument, the document must be read as a whole, and not parts in isolation, and that the different partsof the document must be interpreted in the light of the whole document and an effort must be made toachieve harmony amongst its different parts - Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc(2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378, Nigerian Army Vs Aminu-Kano(2010) 5 NWLR (Pt 1188) 429."Per ABIRU, J.C.A. (Pp. 28-29, Paras. E-D) - read in context
7. JUDGMENT AND ORDER - AWARD OF INTEREST: Types of interest awardable in a civil claim"Basically the Law recognises two types of interests that are claimable and awardable in an action inCourt; these are prejudgment interest and post Judgment interest. In the Judgment of this Court, inASHAKA V. NWACHUKWU Delivered at Jos Division on 22/2/13 IN CA/J/290/2004 reported in (2013) LPELR-CA/J/290/2004, it was stated that "There are two types of interests which are awardable by a Court of Lawin a civil suit or litigation. It could be a prejudgment or post Judgment or interest, Prejudgment interest isstatutorily prescribed either from the date of the loss or from the date where the complaint was filed upto the date the final Judgment is entered. It may or may not be an element of damages. It is usuallycalculated only for liquidated sums. See Black's Law Dictionary 8th edition page 830 by Brayan A. Graner.In ADEYEMI V. LAN AND BAKER (NIG.) LTD. (2000) 7 NWLR (Pt.663) 33 at 48, this Court held that "theaward must be based on either Statute or Mercantile custom or equity and the plaintiff must plead thebasis and lead satisfactory evidence. That is so but the Law also recognises the right to interest of aplaintiff in a claim for the return of money from commercial transactions particularly where the defendanthas held money of the plaintiff for some time."Per AKEJU, J.C.A. (Pp. 17-18, Paras. F-F) - read in context
8. JUDGMENT AND ORDER - AWARD OF INTEREST: Guiding principles on the award of interest"It is also the Law that the Court may award interest in two distinct situations or instances which are (1)as of right and (2) where there is a power conferred by Statute to do so in exercise of the Courts'discretion. SEE EKWUNIFE V. WAYNE WEST AFRICA LTD. (1989) 5 NWLR (Pt. 122) 422. Where interest isclaimed as a matter of right, the claimant has the bounden duty to show by evidence that he is entitledthereto, and the Court may, if satisfied by such evidence award interests. See TEXACO OVERSEAS (NIG)UNLTD. V. PEDMAR (NIG.) LTD (2002) 13 NWLR (Pt 785) 526."Per AKEJU, J.C.A. (Pp. 18-19, Paras. G-C) -read in context
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9. PARTNERSHIP - FORMATION OF PARTNERSHIP: Meaning and nature of a partnership"A partnership is defined as a voluntary association of two or more persons who jointly own and carry ona business for profit. Ordinarily, a partnership will be presumed to exist if the persons involved agree toshare the profits or losses of the business proportionally - Ezejesi Vs Ezejesi (2008) LPELR-CA/E/101/2006."Per ABIRU, J.C.A. (P. 29, Paras. E-F) - read in context
10. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: The procedure under theundefended list"Just like similar or equivalent provisions in Civil Procedure Rules of High Court of various States inNigeria, the Kano State of Nigeria (Civil Procedure) Rules, 1988 makes provision for the undefended list inits Order 23 Rules 1, 2, 3, 4 and 5. I reproduce Rules 1, 3 and 4 thereof which are the relevant andmaterial ones for this discourse as follows; "1. Whenever application is made to a Court for the issue of awrit of summons in respect of a claim to recover a debt or liquidate (Sic) money demand and suchapplication is supported by an affidavit setting forth the grounds upon which the claim is based andstating that in the deponents belief there is no defence thereto, the Court shall if satisfied that there aregood grounds for believing that there is no defence thereto, enter the suit for hearing in what shall becalled the "Undefended List" and mark the writ of summons accordingly, and enter thereon a date forhearing suitable to the circumstances of the particular case,3.(1) If the party served with this writ of summons and affidavit deliver to the Registrar a notice in writingthat he intends to defend the suit together with an affidavit disclosing a defence on the merit, the Courtmay give him leave to defend upon such terms as the Court may think just.(2)Where leave to defend is given under this Rule, the action shall be removed from the undefended listand placed on the ordinary cause list: and the Court may order pleadings, or proceed to hearing withoutfurther pleadings.4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (1) oris not given leave to defend by the Court, the suit shall be heard as an undefended suit, and Judgmentgiven thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his caseformally."?Thus from the forgoing provisions of the Rules, where a plaintiff's claim is for recovery of debt orliquidated money demand, and the claim is supported by affidavit showing that in the belief of thedeponent the defendant does not have any defence thereto, the claim may be placed for hearing underthe undefended list. A defendant who desires that the action be transferred for hearing under the generalor ordinary cause list has a bounding duty to file a notice in writing that he intends to defend the actionwith a supporting affidavit disclosing to the satisfaction of the Court that he has a good defence to theaction on the merit, the Court may grant leave to defend the action and remove same from theundefended list to the ordinary cause list to be heard upon pleadings."Per AKEJU, J.C.A. (Pp. 10-13, Paras.F-A) - read in context
11. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Object of the Undefended listprocedure"The aim or object of the procedure of the undefended list therefore is to enable a plaintiff whose claimfor debt or liquidated money to quickly or summarily obtain Judgment where the facts are undisputed andit is unnecessary or not desirable to allow the defendant to defend for the mere sake of doing so or tomerely delay the entry of Judgment in favour of the claimant. See ATAGUBA & Co. V. GURA (NIG) LTD(2005) 8 NWLR (Pt. 927) 429; ADEBISI MACGREGOR ASSOCIATES LTD. V. NIGERIA MERCHANT BANK LTD.(1996) 2 NWLR (Pt. 431) 378, (1996) 2 SCNJ 72; MACAULAY V. NAL MERCHANT BANK LTD (1990) 4 NWLR(Pt. 144) 283."Per AKEJU, J.C.A. (P. 13, Paras. A-D) - read in context
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12. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: What is expected of a defendant inrespect of suit filed against him under the undefended list"...it is abundantly clear in Law from decision of Court that what is required of a defendant in an actionunder the undefended list is to set out a good defence on the merit of the action. IN NWANKWO V.ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) UA (2007) 5 NWLR (Pt.1027) 377, It washeld PER MUKHTAR JSC (LATER CJN) AT 398 that "It is trite that unless a defendant in its supportingaffidavit of intention to defend a suit on the undefended list states a good defence and the particulars ofsuch defence are adequately set out, and they are such that if proved would constitute such a defence,the Court will not transfer the suit to the general cause list and allow the defendant to defend the suit".Also in UNITED BANK FOR AFRICA PLC. V. JARGADA, (2007) 11 NWLR (Pt 1045) 247, It was held that for anaction to be transferred from the undefended list to the general cause list, the defendant must show adefence on the merit the particulars of which must be set out and it must be such that requires theplaintiff to make some explanation in respect of the claim. It was held at pages 275- 276 per Tabai JSCthat "A suit initiated under the undefended list procedure can only be considered appropriate for transferto the general cause list where the defendant's notice of intention to defend is supported by an affidavitshowing that there is a prima facie or triable issues that needed to be settled on pleadings, tried, testedand determined in Oral evidence.The defendant's affidavit evidence must disclose that there is a real dispute and not merely a frivolousand vague defence to delay the quick determination of the action."Per AKEJU, J.C.A. (Pp. 14-15, Paras. A-C) - read in context
13. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Essence/purpose of the undefendedlist procedure/summary judgment"The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimizedelay where there is obviously no defence to his claim and thus prevent the grave injustice that mightoccur through a protracted and immensely frivolous litigation. It is to prevent sham defence fromdefeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, thesummary judgment rules are specially made to help the Court achieve their primary objective, i.e. to dojustice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequentoutcry that justice delayed is justice denied - United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441.Speaking on the essence of the Undefended List procedure, this Court in its unreported judgment inAppeal No CA/K/131/2010 Samabey International Communications Ltd Vs Celtel Nigeria Ltd (Trading asZain) delivered on the 26th of April, 2013 stated thus: "It is pertinent to state that the provisions onundefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course ofjustice.They are Rules of Court touching on the administration of justice and the procedure is simply designed toensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear thatthe defendant has absolutely no defence to the plaintiffs case. The undefended list procedure is a specieof summary judgment evolved by the rules of Court for the speedy disposal of otherwise uncontestedcases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would bemost unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfugeto dribble his opponent and the Court just for the purpose of stalling proceedings and cheating theplaintiff out of reliefs to which he ordinarily would have been entitled - Imoniyame Holdings Ltd Vs SonebEnterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010)9 NWLR (Pt 1200) 443, Babale Vs Eze (2011) 11 NWLR (Pt 1257) 48, David Vs Jolayemi (2011) 11 NWLR(Pt 1258) 320. It is not, however, the aim of the undefended list procedure to shut out a defendant whowants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at theexpense of justice - Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax PetroleumDevelopment (Nig) Ltd Vs Duke (2010) 8 NWLR (Pt 1196) 278. Thus, Order 23 Rule 3 (1) of the High Courtof Kano State (Civil Procedure) Rules gives a defendant willing to defend a suit placed under theundefended list a leeway and it obligates such a defendant to file a notice in writing that he intends todefend the suit together with an affidavit disclosing a defence on the merit, and it states that once adefendant does this, the Court will grant him leave to defend."Per ABIRU, J.C.A. (Pp. 24-27, Paras. C-A) -read in context
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14. PRACTICE AND PROCEDURE - NOTICE OF INTENTION TO DEFEND: What an affidavit in support of anotice of intention to defend should contain"The law is that for an affidavit to constitute a defence on the merit, the defendant must set out thedefence in the affidavit and not simply say that he has a defence. The affidavit must show reasonablegrounds of defence; that there is some dispute between the parties requiring to be gone into - Osifo VsOkogbo Community Bank Ltd (2006) 15 NWLR (Pt 1002) 260. Under the undefended list procedure, thedefendant's affidavit must condescend upon particulars and should as far as possible deal specificallywith the plaintiffs claim and affidavit, and state clearly and concisely what the defence is and what factsand documents are relied on to support it. The affidavit in support of the notice of intention to defendmust of necessity disclose facts which will at least throw some doubt on the case of the plaintiff. A meregeneral denial of the plaintiffs claim and affidavit is devoid of any evidential value and as such would nothave disclosed any defence which will at least throw some doubt on the plaintiff's claim - Ataguba & CoVs Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429, Tahir Vs Kapital Insurance Ltd (2006) 13 NWLR (Pt 997)452, David Vs Jolayemi (2011) 11 NWLR (Pt 1258) 320."Per ABIRU, J.C.A. (Pp. 27-28, Paras. D-B) - read incontext
15. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Position of the law where adefendant has no real defence to an action under the undefended list procedure"It is trite that a defendant who has no real defence to an action should not be allowed to disturb andfrustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tacticsaimed not at offering any real defence to the action but at gaining time within which to continue topostpone meeting his obligation and indebtedness - Kenfrank (Nig) Ltd Vs Union Bank of Nigeria Plc(2002) 15 NWLR (Pt 789) 46, Sanyaolu Vs Adekunle (2006) 7 NWLR (Pt 980) 551."Per ABIRU, J.C.A. (P. 35,Paras. C-F) - read in context
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ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the
Leading Judgment): The Appellant herein was the
defendant in suit No. K/462/2011 at the High Court of
justice, Kano State of Nigeria in which the Respondent as
plaintiff had claimed through the writ of summons dated
17th October, 2011 the following reliefs;
1. N17,000,000.00 (Seventeen Million Naira only).
2. N380,000.00 (Three Hundred and eighty thousand
Naira only) being agreed 2% interest for every 30 days
due to the plaintiff from 5th December, 2010 till date
of Judgment.
3. 10% interest at the Court rate from the date of
Judgment until final liquidation of the Judgment sum.
4. Cost of instituting and prosecuting the action.
Upon the application of the plaintiff the writ of summons
was placed for hearing under the undefended list and after
hearing arguments from the parties the learned trial judge
refused to transfer the suit to general cause list. In the
Ruling of that Court delivered on 14th February, 2012, the
defendant was ordered to pay the plaintiff as per the writ of
summons the following:
The sum of N17,000,000.00; N380,000.00 being the
agreed 2% interest for every 30 days
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due to the plaintiff from 5th December, 2010 till date
of Judgment; 10% interest at the Court rate from the
date of Judgment until final liquidation of the
Judgment sum; and cost of instituting and
prosecuting the action.
The facts relied upon by the plaintiff as contained in the
affidavit of Kassim Yusif Bello in support of the writ of
summons are that on 4th October 2010, the defendant
approached the plaintiff with a request that he (plaintiff)
should sponsor or finance the completion of a contract
awarded to the defendant by providing an amount of
N15,000,000.00 which the plaintiff agreed to provide while
the defendant agreed to give N4,000,000.00 to the plaintiff
as his share of the contract profit. It was agreed that within
60 days from the date of their agreement both the capital
and profit would be repaid to the plaintiff and failure to pay
within 60 days would attract interest at the rate of 2% per
30 days for the entire amount. The agreement executed in
that regard was attached as exhibit AM 1 while the
document given by the defendant as security was attached
as exhibit AM2.
When the defendant reneged and the agreement expired,
the plaintiff
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issued a Demand Letter demanding for payment of
N19,000,000.00 with the 2% agreed interest for every 30
days from 5th December, 2010, a copy of which letter was
attached as exhibit AM3 while the response of the
defendant to exhibit AM3 was attached as exhibit AM4.
It was deposed that the defendant only paid N2,000,000.00
to the plaintiff on 30th May 2011, leaving a balance of
N17,000,000.00 and the agreed 2% interest for every 30
days from 5th December, 2010 which the defendant
refused to pay, and that in the belief of the deponent the
defendant had no defence to the action.
The defendant filed a notice of intention to defend the
action, and in the affidavit of Favour Uhuache in support
of the Notice it was deposed inter alia that the transaction
between the parties was an investment agreement in which
parties would share profit, and as such the transaction
presupposes a partnership agreement. It was also deposed
that the money for the contract that led to the agreement of
the parties was expected to be paid before December,
2010, but same had not been paid despite efforts made by
the defendant including the letter attached as exhibit AA1,
and the
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investment sum could only be paid after the contract sum
was paid. It was further deposed that the transaction
between the parties had a connotation of a money lending
transaction, and not being a licensed money lender, the
plaintiff was not entitled to charge any interest.
The defendant was dissatisfied with the decision of the trial
High Court of Kano State, and filed Notice and Grounds of
appeal dated 20/1/12 with five grounds of appeal, and in
prosecuting the appeal before this Court, the parties filed
and exchanged their briefs of argument. The Appellant's
brief settled by Francis O, Ithunokha Esq. of Counsel was
filed on 1/6/15 while the Respondent's Brief was prepared
by A.M, Mustapha Esq. of Counsel and filed on 22/7/15. The
learned Counsel for Appellant, Francis O. Ithunokha Esq.
also filed a Reply Brief on 15/2/16.
The two Briefs of the Appellant were filed upon grant of
application for extension of time by this Court on 27/5/15
and 15/2/16 respectively. The parties adopted and relied on
their Briefs at the hearing of the appeal to pray that the
appeal be dismissed or allowed.
From the five grounds of appeal, the learned Counsel for
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the Appellant distilled a single issue for determination
which is whether the Appellant (defendant at the Court
below) did not raise triable issues in the affidavit of defence
to warrant the suit No. K/462/2011 to be transferred to the
general cause list to be heard on the merit. The Respondent
also formulated one issue for the determination of the
appeal; whether the Appellant by his affidavit in support of
notice of intention to defend has disclosed a defence on the
merit to warrant the trial Court to transfer the suit
No.K/462/2011 to the general cause list for hearing instead
of entering Judgment for the Plaintiff/Respondent.
The issues formulated by the two learned Counsel are
virtually the same, I will however adopt the Appellant's
version so as to ensure that nothing of substance is left
untouched. The appeal will therefore be considered and
determined on the Appellant's issue for determination
which I have adopted.
The learned Counsel for the Appellant argued that from the
circumstances of the case and the affidavit of the Appellant
in support of his Notice of intention to defend the action,
what existed between the parties was a particular
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partnership which arises in a situation where the parties
agree to share profit and loss of a single transaction or
enterprise. He referred to paragraph 3 of exhibit AM1 and
argued that it has put the relationship between the parties
in the specie of a particular partnership moreso that the
Respondent had received an amount of N2million as share
of profit. It was submitted that having raised this issue of
particular partnership, the learned trial judge should have
been liberal in considering or determining whether a
defence was raised; CALVENPLY V. PEKAB INT'L LTD.
(2001) FWLR (Pt. 61) 1664 - 1665; PATIGI LOCAL
GOVERNMENT V. ELESHIN - NLA (2008) ALL FWLR
(Pt. 421) 859; EKUMA v. SILVER EAGLE SHIPPING
AGENCIES LTD. (1987) 4 NWLR (Pt.65) 472.
The learned Counsel also contended that the charge of
interest in default of repayment of loan connotes that what
existed between the parties was money lenders agreement
which offends the money lenders Law/Act. He referred to
Section 3 of the Money lenders Law, Cap 93 Laws of Kano
State as well as Exhibit AM 1 in paragraph 6 showing a
charge of 2% profit interest and contended that the
agreement was thus brought within
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the purview of a money lender's agreement; ALHAJI
ABDULLAHI V. MALLAM ZANGANA ABUBAKAR
BAKORI (2009) LPELR - 8681. He argued that Exhibit
AM 1 is not illegal but paragraph 6 thereof is not
enforceable having a connotation of a money lenders
agreement and the trial Court would have applied the Blue
pencil rule or test in giving effect to Exhibit AM1 so as to
ensure that the offending words are invalidated by running
a blue pencil through the agreement; IDIKA V.
U Z O U K W U ( 2 0 0 8 ) 9 N W L R ( P t . 1 0 9 1 )
(INCOMPLETE).
It was the argument of the learned Counsel that having
raised the defence of money lending, the burden was on the
plaintiff to show that he was a money lender.
For the Respondent it was submitted that for an action
under the undefended list to be transferred to the general
cause list for defendant to defend, the defendant must have
by a notice of intention to defend and a supporting affidavit
shown a defence on the merit in line with Order 23 Rule 3
(1) of Kano State High Court (Civil Procedure) Rules, 1988;
MOHAMMED V. SOCIETE - GENERAL BANK LTD.
(2006) ALL FWLR (Pt. 340) 1182; ABUBAKAR V.
MODIBBO (2009) ALL FWLR (pt. 400) 7 51.
The defence
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must not be merely frivolous, or vague, but must create
doubt in the claim of the plaintiff; SHELL PETROLEUM
DEVELOPMENT OF NIGERIA LTD. V. ARHO JOE
NIGERIA LTD. (2006) ALL FWLR (Pt. 331) 1330; The
defence must relate to the plaintiff's claim and not one that
is at large or has brought up fresh cause of action against
the plaintiff; FED. AIRPORT AUTHOURITY OF NIGERIA
V. WAMAL EXPREE SERVICES (NIG) LTD. (2011) ALL
FWLR (pt. 574) 42.
The learned Counsel for the Respondent submitted that
Exhibit AM 1 does not contain the basic requirements of a
partnership going by the definition of partnership in Black's
Law Dictionary as an association of two or more persons
who jointly own and carry on a business for a profit, as well
as the decision in ALADE V. ALIC (NIG) LTD. (2011)
ALL FWLR (Pt. 563) 1849; EZEJESI v. EZEJESI (2010)
ALL FWLR (Pt. 517) 647.
It was submitted that the duty of the Court is to look at
Exhibit AM 1 executed by the parties to determine their
intention, the Court cannot rewrite the agreement of the
parties by introducing what was not in their contemplation;
OWONI BOYS TECHNICAL SERVICES LTD. V. UNION
BANK OF NIG LTD. (2003) MJSC 38; OGUN STATE
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6) LP
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311(
CA)
GOVERNMENT v. DALAMI LTD. (2007) MJSC 187;
KACHIA v. HADI (2012) ALL FWLR (Pt. 650) 1403.
The learned Counsel contended that the issue of
partnership raised by the Appellant at the trial was not a
defence on the merit of the case as depicted by Exhibits AM
1, AM 3 and AM 4 presented by the plaintiff/Applicant.
On whether the agreement of the parties is that of a money
lender, the learned Counsel submitted that based on the
provision of Section 2 of Money Lenders Law Cap 95 Laws
of Kano State 1991, a person who lends money to his friend
for purpose of resuscitating his business cannot thereby
become a money lender. It was submitted that from the
evidence available in this case and transaction of the
parties as expressed in Exhibits AM 1 and AM 3, the Money
Lenders Law does not apply to this case as the Respondent
does not have as his primary purpose or object, the lending
of money; CHIDOKA V. FIRST CITY FINANCE CO. LTD.
(2012) 12 SCM 29; ALHAJI IBRAHIM V. MALLAM
ZANGINA BAKORI (2009) LPELR 8681; EBONI
FINANCE AND SECURITIES LTD. V. WOLE OJO
TECHNICAL SEVICES LTD. (1996) 7 NWLR (Pt. 461)
464.
The learned Counsel contended that the Appellant who was
a
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party and had derived benefit from Exhibit AM 1 cannot
turn around and declare the same agreement as illegal. It
was also submitted that it is inequitable for a person who
obtained a loan and benefited therefrom to claim that the
agreement is null and void. AWOJUGBAGBE LIGHT
INDUSTRIES LTD, V. CHINUKWE (1995) 4 NWLR (Pt.
390); ADETUNJI v. AGBOJO (1997) 1 NWLR (Pt. 484)
705.
It is clear that the Respondent did not by his Brief raise any
new issue and the Appellant's Reply Brief did not answer
any new issue but a mere fortification of the argument of
the Appellant. The Reply Brief is therefore not of any value
in this appeal. The purpose of a Reply Brief is to answer
new arguments raised in the Respondent's Brief and not a
repetition or re-argument of the issues. SEE YARO V.
AREWA CONSTRUCTION LTD. (2008) ALL FWLR (Pt.
400) 603. Having not served its purpose, the Appellant's
Reply Brief is discountenanced in this appeal.
Just like similar or equivalent provisions in Civil Procedure
Rules of High Court of various States in Nigeria, the Kano
State of Nigeria (Civil Procedure) Rules, 1988 makes
provision for the undefended list in its Order 23 Rules 1, 2,
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3, 4 and 5. I reproduce Rules 1, 3 and 4 thereof which are
the relevant and material ones for this discourse as follows;
"1. Whenever application is made to a Court for the
issue of a writ of summons in respect of a claim to
recover a debt or liquidate (Sic) money demand and
such application is supported by an affidavit setting
forth the grounds upon which the claim is based and
stating that in the deponents belief there is no
defence thereto, the Court shall if satisfied that there
are good grounds for believing that there is no
defence thereto, enter the suit for hearing in what
shall be called the "Undefended List" and mark the
writ of summons accordingly, and enter thereon a
date for hearing suitable to the circumstances of the
particular case,
3.(1) If the party served with this writ of summons
and affidavit deliver to the Registrar a notice in
writing that he intends to defend the suit together
with an affidavit disclosing a defence on the merit,
the Court may give him leave to defend upon such
terms as the Court may think just.
(2)Where leave to defend is given under this Rule, the
action shall be removed from the undefended list and
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placed on the ordinary cause list: and the Court may
order pleadings, or proceed to hearing without
further pleadings.
4. Where any defendant neglects to deliver the notice
of defence and affidavit prescribed by Rule 3 (1) or is
not given leave to defend by the Court, the suit shall
be heard as an undefended suit, and Judgment given
thereon, without calling upon the plaintiff to summon
witnesses before the Court to prove his case
formally."
Thus from the forgoing provisions of the Rules, where a
plaintiff's claim is for recovery of debt or liquidated money
demand, and the claim is supported by affidavit showing
that in the belief of the deponent the defendant does not
have any defence thereto, the claim may be placed for
hearing under the undefended list. A defendant who desires
that the action be transferred for hearing under the general
or ordinary cause list has a bounding duty to file a notice in
writing that he intends to defend the action with a
supporting affidavit disclosing to the satisfaction of the
Court that he has a good defence to the action on the merit,
the Court may grant leave to defend the action and remove
same from the undefended
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list to the ordinary cause list to be heard upon pleadings.
The aim or object of the procedure of the undefended list
therefore is to enable a plaintiff whose claim for debt or
liquidated money to quickly or summarily obtain Judgment
where the facts are undisputed and it is unnecessary or not
desirable to allow the defendant to defend for the mere
sake of doing so or to merely delay the entry of Judgment in
favour of the claimant. See ATAGUBA & Co. V. GURA
(NIG) LTD (2005) 8 NWLR (Pt. 927) 429; ADEBISI
MACGREGOR ASSOCIATES LTD. V. NIGERIA
MERCHANT BANK LTD. (1996) 2 NWLR (Pt. 431)
378, (1996) 2 SCNJ 72; MACAULAY V. NAL
MERCHANT BANK LTD (1990) 4 NWLR (Pt. 144) 283.
The Appellant in the instant case who was the defendant at
the trial Court has contended that the learned trial judge
should have placed the Respondent's (plaintiff's) action for
hearing under the ordinary cause list on the twin grounds
that the agreement between the parties was a particular
partnership and that it comes under the Money Lenders
Law by which the Respondent was disentitled from
claiming interest.
Although the Appellant filed a Notice of intention to defend
the
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plaintiff's claim with affidavit in its support it is abundantly
clear in Law from decision of Court that what is required of
a defendant in an action under the undefended list is to set
out a good defence on the merit of the action. IN
NWANKWO V. ECUMENICAL DEVELOPMENT CO-
OPERATIVE SOCIETY (EDCS) UA (2007) 5 NWLR
(Pt.1027) 377, It was held PER MUKHTAR JSC (LATER
CJN) AT 398 that "It is trite that unless a defendant in
its supporting affidavit of intention to defend a suit
on the undefended list states a good defence and the
particulars of such defence are adequately set out,
and they are such that if proved would constitute
such a defence, the Court will not transfer the suit to
the general cause list and allow the defendant to
defend the suit". Also in UNITED BANK FOR AFRICA
PLC. V. JARGADA, (2007) 11 NWLR (Pt 1045) 247, It
was held that for an action to be transferred from the
undefended list to the general cause list, the defendant
must show a defence on the merit the particulars of which
must be set out and it must be such that requires the
plaintiff to make some explanation in respect of the claim.
It was held at pages 275- 276 per Tabai JSC that "A suit
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initiated under the undefended list procedure can
only be considered appropriate for transfer to the
general cause list where the defendant's notice of
intention to defend is supported by an affidavit
showing that there is a prima facie or triable issues
that needed to be settled on pleadings, tried, tested
and determined in Oral evidence.
The defendant's affidavit evidence must disclose that
there is a real dispute and not merely a frivolous
and vague defence to delay the quick determination
of the action."
I have closely and calmly perused exhibit AM1 at pages 110
- 112 of the record of appeal which exhibit is the basis of
the relationship between the parties to this action. It is
described in unmistaken terms as a "Financing
Agreement" made on the 4th day of October, 2010, in
respect of a contract awarded to Appellant who was
described therein as the Borrower while the Respondent is
financier. It was stated inter alia “2. THAT THE
BORROWER approached the financier to finance the
completion of the said contract providing the sum of
fifteen million naira (N15,000,000,00) subject to the
various terms and conditions herein stated.
(3)
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THAT THE FINANCIER has agreed to finance the
completion of the said contract as stated in No.2
above on the same terms and conditions herein
stated."
It was agreed in Exhibit AM1 that the financier shall give
the borrower an amount of N15,000,000.00 to perfect the
contract and the borrower shall surrender the original
document of his property, commit an amount of N4 million
to the financier as his share of the contract profit and the
whole amount of N19 million in the agreement shall be
liquidated within 60 days or attract 2% profit interest for
every 30 days in the event of default.
The Law is that where parties have reduced the terms of
their agreement or contract into a written document, the
parties are presumed to intend what they have stated in the
written document, the words of the document must be
given their ordinary and plain meaning and no extrinsic
evidence is admissible to add to, or vary or contradict the
content of the document. See UBN LTD. V. NWANKWO
(1995) 6 NWLR (Pt. 400) 727; EJUETAMI V. OLAIYA
(2001) 78 NWLR (Pt.746) 572.
It is also settled that in the interpretation of a document,
the document must be read as a whole and
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CA)
interpreted holistically. See MBANI V. BOSI (2006) 5 SC
(Pt.111) 54.
Applying the above principles of interpretation, it is clear
that Exhibit AM 1 plainly states that the Respondent was to
finance a contract awarded to the Appellant who in turn
was to pay an amount of N4,000,000.00 to the Respondent
as his own share of profit of the contract and in the event of
default of paying back the principal money of
N15,000,000.00 and profit of N4,000,000.00 within 60 days
the Appellant would pay interest of 2% every 30 days.
The argument of the learned Counsel for Appellant
regarding the issue of partnership amounts to reading into
Exhibit AM 1 what is not contained therein or what is
extraneous thereto which the Law does not permit.
On the contention of the Appellant on the award of interest
I am also convinced from the agreement of the parties that
they voluntarily and mutually agreed to pay and/or receive
interest of 2% in the event of default in payment of the
principal sum and profit. Basically the Law recognises two
types of interests that are claimable and awardable in an
action in Court; these are prejudgment interest and post
Judgment interest.
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CA)
In the Judgment of th is Court , in ASHAKA V.
NWACHUKWU Delivered at Jos Division on 22/2/13 IN
CA/J/290/2004 reported in (2013) LPELR- CA/J/290/2004, it
was stated that
"There are two types of interests which are awardable
by a Court of Law in a civil suit or litigation. It could
be a prejudgment or post Judgment or interest,
Prejudgment interest is statutorily prescribed either
from the date of the loss or from the date where the
complaint was filed up to the date the final Judgment
is entered. It may or may not be an element of
damages. It is usually calculated only for liquidated
sums. See Black's Law Dictionary 8th edition page
830 by Brayan A. Graner. In ADEYEMI V. LAN AND
BAKER (NIG.) LTD. (2000) 7 NWLR (Pt.663) 33 at 48,
this Court held that "the award must be based on
either Statute or Mercantile custom or equity and the
plaintiff must plead the basis and lead satisfactory
evidence. That is so but the Law also recognises the
right to interest of a plaintiff in a claim for the return
of money from commercial transactions particularly
where the defendant has held money of the plaintiff
for some time."
It is also the Law that the Court may award
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interest in two distinct situations or instances which are (1)
as of right and (2) where there is a power conferred by
Statute to do so in exercise of the Courts' discretion. SEE
EKWUNIFE V. WAYNE WEST AFRICA LTD. (1989) 5
NWLR (Pt. 122) 422. Where interest is claimed as a
matter of right, the claimant has the bounden duty to show
by evidence that he is entitled thereto, and the Court may,
if satisfied by such evidence award interests. See TEXACO
OVERSEAS (NIG) UNLTD. V. PEDMAR (NIG.) LTD
(2002) 13 NWLR (Pt 785) 526.
The Respondent in the instant case is, by virtue of the
agreement Exhibit AM1 conferred with the right to claim
interest in the transaction of the parties and the claim has
been successfully established. Again I hold that in so far as
Exhibit AM1 is a simple agreement to finance contract,
written in plain and simple words, it is improper to view it
as money lender's agreement thereby imputing words or
meaning thereto that the parties did not intend.
It is therefore my view in agreement with the learned trial
judge that the Appellant has not proffered a defence to the
Respondent's claim on its merit through the affidavit in
support of his
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notice of intention to defend the action, and that the suit
was properly placed and heard under the undefended list.
The reliefs claimed by the Respondent were also properly
granted by the Court. Therefore I find no merit in this
appeal. The appeal fails and it is accordingly dismissed with
cost of N30,000.00 to the Respondent.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I
have had the privilege of reading before now the draft of
the lead judgment delivered by my learned brother, Isaiah
Olufemi Akeju, JCA. His Lordship has ably considered and
resolved the issues in contention in this appeal.
The Appellant, described as Borrower, entered into a
Financing Agreement with the Respondent, described as
Financier. The operative parts of the Agreement read thus:
“Whereas:
1. The Borrower was awarded a contract which he
cannot perfect due to shortage of funds which need
urgent attention within four to five weeks now.
2. That the Borrower approached the Financier to
finance the completion of the said contract by
providing the sum of Fifteen Million Naira
(N15,000,000.00) subject to the various terms and
condition herein stated.
3.
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That the Financier has agreed to finance the
completion of the said contract as stated in No 2
above on the same terms and condition herein stated.
4. That the Borrower is the rightful owner of the
building and Plot No 26 at 31 Road Federal Housing
Estate Sharada Kano measuring as area of 1218
square meters which bears the name Alhaji Suleiman
Yahaya.
Now It Is Hereby Agreed As Follows:
1. That the Financier shall give the Borrower the sum
of Fifteen Million Naira (N15,000,000.00) in order to
perfect the contract awarded to the Borrower and
acknowledged the receipt of the same.
2. That the Borrower shall surrender the original
paper in respect of the said Plot No 26 at 31 Road
Federal Housing Estate Sharada Kano measuring as
area of 1218 square meters which bears the name
Alhaji Suleiman Yahaya of No.32, Caulcrick Road,
Apapa as collateral to the Financier.
3. That the Borrower shall commit the sum of Four
Million naira (N4,000.000.00) to the Financier as the
share of the contract profit.
4. That the Financier shall not release the original
allocation paper of the plot to the Borrower till the
whole sum is liquidated.
5. That
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the Borrower shall liquidate the whole sum that is
Nineteen Million Naira (N19,000,000.00) on the
anniversary of 60 days from the day the Agreement
was executed.
6. That the whole sum of Nineteen Million Naira
(N19,000,000.00) shall attract a 2% profit increase
for every 30 days in the event the Borrower fails to
liquidate the whole money within the stipulated
time.”
The Agreement was executed by both parties on the 5th of
October, 2010. The Appellant failed to repay the money and
he paid only N2 Million out of the N19 Million after the
expiration of the agreed period despite repeated demands.
The Respondent commenced an action under the
Undefended List Procedure for balance of N17 Million
together with the agreed interest of 2% for every thirty
days of default from 5th of December, 2010 until judgment
and thereafter at 10% per annum. The Appellant filed a
notice of intention to defend and the lower Court took
arguments of the parties and found that the affidavit of the
Appellant in support of the notice of intention to defendant
disclosed no triable issue and it entered judgment in favour
of the Respondent under the Undefended List. This
22
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appeal is against the judgment of the lower Court.
Now, certain basic principles come into play in this matter.
First, it is settled law that parties are bound by the contract
they voluntarily enter into and cannot act outside the terms
and conditions contained in the contract and neither of the
parties to a contract can alter or read into a written
agreement a term which is not embodied in it - African
International Bank Ltd Vs Integrated Dimensional
System Ltd (2012) 17 NWLR (pt 1328) 1, Lagos State
Government Vs Toluwase (2013) 1 NWLR (Pt 1336)
555.
A Court too must treat as sacrosanct the terms of an
agreement freely entered into by the parties as parties to a
contract enjoy their freedom to contract on their own terms
so long as same is lawful and if any question should arise
with regard to the contract, the terms in any document
which constitute the contract are the invariable guide to its
interpretation. It is not the business of the Court to rewrite
a contract for the parties and it should thus not add to or
subtract from or import any provision into the contract -
Omega Bank (Nig) Plc Vs O.B.C. Ltd (2005) 8 NWLR
(Pt 928) 547, BFI Group
23
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6) LP
ELR-41
311(
CA)
Corporation Vs Bureau of Public Enterprises (2012)
18 NWLR (Pt.1332) 209, Daspan Vs Mangu Local
Government Council (2013) 2 NWLR (Pt.1338) 203,
Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt 1349) 1. A party
cannot be allowed to resile from an agreement he entered
into unless he can prove that he consented to the
agreement under coercion, duress, undue influence,
mistake or misrepresentation.
Secondly, the provisions of the High Court of Kaduna State
Rules relating to the Undefended List provide a summary
judgment procedure. The whole purpose of a summary
judgment procedure is to ensure justice to a plaintiff and
minimize delay where there is obviously no defence to his
claim and thus prevent the grave injustice that might occur
through a protracted and immensely frivolous litigation. It
is to prevent sham defence from defeating the right of a
plaintiff by delay and thus causing great loss to a plaintiff.
In other words, the summary judgment rules are specially
made to help the Court achieve their primary objective, i.e.
to do justice to the parties by hearing their cases on the
merit with utmost dispatch and prevent the frequent outcry
that justice delayed is
24
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311(
CA)
justice denied - United Bank for Africa Plc Vs Jargaba
(2007) 11 NWLR (Pt 1045) 247, University of Benin
Vs Kraus Thompson Organisation Ltd (2007) 14
NWLR (Pt 1055) 441. Speaking on the essence of the
Undefended List procedure, this Court in its unreported
judgment in Appeal No CA/K/131/2010 Samabey
International Communications Ltd Vs Celtel Nigeria
Ltd (Trading as Zain) delivered on the 26th of April, 2013
stated thus:
"It is pertinent to state that the provisions on undefended
list in the High Court of Kano State (Civil Procedure) Rules
are adjunct to the course of justice.
They are Rules of Court touching on the administration of
justice and the procedure is simply designed to ensure
speedier attainment of justice with ease, certainty and
dispatch, when it is abundantly clear that the defendant has
absolutely no defence to the plaintiffs case. The
undefended list procedure is a specie of summary judgment
evolved by the rules of Court for the speedy disposal of
otherwise uncontested cases and where there is no
reasonable doubt as to the efficacy of the plaintiffs claims
and it would be most unconscionable to oblige an otherwise
liable defendant the
25
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opportunity to employ mere subterfuge to dribble his
opponent and the Court just for the purpose of stalling
proceedings and cheating the plaintiff out of reliefs to
which he ordinarily would have been entitled - Imoniyame
Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt
1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa
Esq (2010) 9 NWLR (Pt 1200) 443, Babale Vs Eze (2011) 11
NWLR (Pt 1257) 48, David Vs Jolayemi (2011) 11 NWLR (Pt
1258) 320.
It is not, however, the aim of the undefended list procedure
to shut out a defendant who wants to contest a suit brought
under the undefended list merely in order to obtain a
speedy trial at the expense of justice - Macaulay Vs NAL
Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax
Petroleum Development (Nig) Ltd Vs Duke (2010) 8 NWLR
(Pt 1196) 278. Thus, Order 23 Rule 3 (1) of the High Court
of Kano State (Civil Procedure) Rules gives a defendant
willing to defend a suit placed under the undefended list a
leeway and it obligates such a defendant to file a notice in
writing that he intends to defend the suit together with an
affidavit disclosing a defence on the merit, and it states
that once a
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ELR-41
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defendant does this, the Court will grant him leave to
defend."
Thus, the simple issue for determination in this appeal is
whether the lower Court was correct when it found that the
affidavit of the Appellant disclosed no defence on the merit.
The law is that for an affidavit to constitute a defence on
the merit, the defendant must set out the defence in the
affidavit and not simply say that he has a defence. The
affidavit must show reasonable grounds of defence; that
there is some dispute between the parties requiring to be
gone into - Osifo Vs Okogbo Community Bank Ltd
(2006) 15 NWLR (Pt 1002) 260. Under the undefended
list procedure, the defendant's affidavit must condescend
upon particulars and should as far as possible deal
specifically with the plaintiffs claim and affidavit, and state
clearly and concisely what the defence is and what facts
and documents are relied on to support it. The affidavit in
support of the notice of intention to defend must of
necessity disclose facts which will at least throw some
doubt on the case of the plaintiff. A mere general denial of
the plaintiffs claim and affidavit is devoid of any evidential
value and as
27
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6) LP
ELR-41
311(
CA)
such would not have disclosed any defence which will at
least throw some doubt on the plaintiff’s claim - Ataguba &
Co Vs Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429,
Tahir Vs Kapital Insurance Ltd (2006) 13 NWLR (Pt
997) 452, David Vs Jolayemi (2011) 11 NWLR (Pt
1258) 320.
Counsel to the Appellant contended in this appeal that the
Appellant raised two issues in his defence that warranted
further examination by the lower Court by way of a trial.
These were the issues of partnership and the Money
Lenders Law of Kano State. On the issue of partnership,
Counsel submitted that it was the contention of the
Appellant in the notice of intention to defend that the
Agreement between the parties was not a Financing
Agreement but a Partnership Agreement wherein the
parties agreed to share profit and loss. The resolution of
this issue did not warrant a tr ial , but a simple
interpretation of the terms of the contract reproduced
above.
It is a settled principle of interpretation of documents that
where the language used by parties in couching the terms
or provisions of a document are clear and unambiguous,
the Court must give the operative words in the
28
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6) LP
ELR-41
311(
CA)
document their simple, ordinary and actual grammatical
meaning - Union Bank of Nigeria Plc Vs Ozigi (1994) 3
NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson
(2005) 11 NWLR (Pt.937) 631, Egwunewu Vs Egeagwu
(2007) 6 NWLR (Pt 1031) 431. It is also settled that in
interpreting a document, the document must be read as a
whole, and not parts in isolation, and that the different
parts of the document must be interpreted in the light of
the whole document and an effort must be made to achieve
harmony amongst i ts dif ferent parts - Unilife
Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ
116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400,
Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc
(2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2
NWLR (Pt 1071) 378, Nigerian Army Vs Aminu-Kano
(2010) 5 NWLR (Pt 1188) 429.
A partnership is defined as a voluntary association of two or
more persons who jointly own and carry on a business for
profit. Ordinarily, a partnership will be presumed to exist if
the persons involved agree to share the profits or losses of
the business proportionally - Ezejesi Vs Ezejesi (2008)
LPELR-CA/E/101/2006. Now, applying the above sated
principles on
29
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311(
CA)
interpretation of documents to the contents of the
Financing Agreement reproduced above, it is clear that it is
not a Partnership Agreement and there is no clause therein
suggesting the existence of a partnership arrangement
between the parties.
On the issue of Money Lenders Law, Counsel to the
Appellant posited that charging of interest in default of
payment of the repayment of the money lent, as stated in
the Agreement, connoted that what existed between the
parties was a money lender's agreement and that this
offended the Money Lenders Law of Kano State. This issue
posed the question whether the Respondent is a money
lender within the meaning of, and regulated by, the Money
Lenders Law of Kano State, Cap 95, Laws of Kano State,
1991 and, if the answer is in the affirmative, whether the
Financing Agreement was enforceable. The necessary point
of commencement of enquiry must the definition of "money
lender" within the provisions of the Money Lenders Law
itself.
The relevant Sections here are Sections 2 and 3 of the Law.
Section 2 reads:
"… 'Money Lender’ includes every person whose business is
that of money lending or who carries
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on or advertises or announces himself or holds himself out
in any way as carrying on that business, whether or not he
also Possess or owns property or money derived from
sources other than the lending of money and whether or
not he carries on the business as a principal or as an agent;
but it shall not include:
(a) Any society registered under the Co-operative Societies
Law; or
(b)Any body corporate, incorporated or empowered by
special enactment to lend money in accordance with such
enactment; or
(c) Any person bonafide carrying on business of banking or
insurance or bona fide carrying on business, not having its
primary object the lending of money, in the course of which
and/or purposes whereof he lends money; or
(d)Any pawnbroker licenced under the Pawnbrokers Law
where the loan is made in accordance with the provisions of
the Pawnbrokers Law and does not exceed the sum of forty
Naira."
Section 3 states that:
“Save as excepted in Paragraphs (a), (b), (c) and (d) of the
definition of 'money lender’ in Section 2 any person who
lends money at interest or who lends a sum of money in
consideration of a larger sum being repaid
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shall be presumed to be a money lender until the contrary
is proved.”
The wordings of these two Sections are a word for word
replication of the provisions of the Money Lenders Law of
practically all the States in Nigeria and they have been
subject of judicial interpretation in several cases. The
consensus of all the cases is that the definition of a money
lender under the Law is wide and it encompasses every
person whose business is that of money lending and any
person who lends money on interest or who lends a sum of
money in consideration of a larger sum being repaid.
There are, however, three categories of persons that
cannot be called money lenders within the meaning of the
Money Lenders Law and these are a banker, an insurer and
a person who does not have for his primary object the
lending of money. It follows therefore that a person will not
be designated as a money lender even though he is
involved in money lending, in so far as he is a banker or an
insurer or the primary object of his business is not money
lending.
In other words, the determining factor of whether a
transaction amounts to money lending within the provisions
of the
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Money Lenders Law is not only whether the loan was given
on interest or in consideration of a larger sum being repaid.
It includes a determination of whether the person giving
the loan is not a banker or an insurer or whether the
primary object of the business of that person is money
lending business so as to bring him within the definition of
a money lender in the provisions of the Law. Where it is
not shown that the primary object of the business of the
lender is money lending, such a transaction does not come
within the purview of the Money Lenders Law - Veritas
Insurance Co Ltd Vs City Trust Investment Ltd (1993)
3 NWLR (Pt 281) 349, Eboni Finance & Securities Ltd
Vs Wole-Ojo Technical Services Ltd (1996) 7 NWLR
(Pt 461) 464, Nwankwo Vs Nzeribe (2003) 73 NWLR
(Pt 890) 422, Ajao Vs Ademola (2005) 3 NWLR (Pt
913) 637, Idika Vs Uzoukwu (2008) 9 NWLR (Pt 1091)
34, Ibrahim Vs Bakori (2009) LPELR 8681(CA). This
position of our Courts accords with the view expressed by
Farewell, J in Lintchfield Vs Dreyful (1906) 1 KB 554 at
559 that the Money Lenders Law was intended to apply to
persons who are really carrying on the business of money
lending and not to
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persons who lend money as incident business or to a few
old friends.
It was not in dispute in the instant case that the
Respondent was neither a banker nor an insurer. The
question then is whether, from the facts of this case, it was
shown that the primary object of his business was money
lending. The word primary is said to mean first, main or
most important. The onus of proving that the primary
object of the business of the Respondent was money
lending was on the Appellant – Veritas Insurance Co Ltd
Vs City Trust Investment Ltd supra, Eboni Finance &
Securities Ltd Vs Wole-Ojo Technical Services Ltd
supra, Nwankwo Vs Nzeribe supra.
In the instant case, it was not the case of the Respondent in
the affidavit in support of his case under the Undefended
List that he was in money lending business and/or that the
primary object of his business is money lending. It was not
part of the case of the Appellant in the affidavit in support
of the notice of intention to defend that the Respondent
was in the business of money lending and/or that the
primary object of the business of the Respondent was
money lending. There was nothing before the lower
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Court showing that the Respondent carried on the business
of money lending.
The Respondent was a money lender within the provisions
of the Money Lenders Law of Kano State and as such the
Financing Agreement entered into by the parties was not
governed by the provisions of that Law. The issue of
illegality of the Agreement as raised by the Appellant did
not thus arise. The Agreement was legal and enforceable.
The two issues canvassed by the Counsel to the Appellant
did not thus constitute triable issues to warrant this matter
being transferred to the general cause list by the lower
Court. It is trite that a defendant who has no real defence
to an action should not be allowed to disturb and frustrate
the plaintiff and cheat him out of the judgment he is
legitimately entitled to by delay tactics aimed not at
offering any real defence to the action but at gaining time
within which to continue to postpone meeting his obligation
and indebtedness - Kenfrank (Nig) Ltd Vs Union Bank
of Nigeria Plc (2002) 15 NWLR (Pt 789) 46, Sanyaolu
Vs Adekunle (2006) 7 NWLR (Pt 980) 551.
The lower Court was thus on a very firm ground when it
refused to grant the
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Appellant leave to defend the action.
It is for these reasons, and fuller reasons contained in the
lead judgment, that I agree that there is no merit in this
appeal. I hereby dismiss the appeal and affirm the
judgment entered against the Appellant by the High Court
of Kano State in the Ruling delivered by Honorable Justice
Ibrahim Musa Karaye in Suit No K/462/2011 on the 14th of
February, 2012. I abide the consequential orders contained
in the lead judgment
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I
have read in draft the judgment of my learned brother,
Isaiah Olufemi Akeju, JCA, and am in agreement that there
is no merit in this appeal. I also dismiss it, with the costs,
as awarded in the lead judgment.
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