Ms. BECKY TOFI V. MR. L. T. CHEN (2011)

Ms. BECKY TOFI V. MR. L. T. CHEN

(2011)LCN/4577(CA)

In The Court of Appeal of Nigeria

On Thursday, the 26th day of May, 2011

CA/J/295/2009

RATIO

PLEADINGS: WHETHER THE PLEADINGS OF THE PARTIES ARE BINDING ON THE PARTIES AS WELL AS THE COURT

It is axiomatic and has been so decided in a plethora of cases that parties are bound by their pleadings and it will not be allowed for a party or the Court to deviate from the pleadings in making a case or arriving at a decision thereon. See for example, the case of ADESANYA V. OTUEWU (1983) 1 SCNCJ 77 at 98. PER ALI ABUBAKAR BABANDI GUMEL JCA

PLEADINGS: WHETHER PLEADINGS ARE THE FOUNDATION UPON WHICH CIVIL CASES ARE ADJUDICATED

The pleadings are the foundation upon which civil cases are adjudicated. Every material fact must be pleaded and where necessary particulars of same must be disclosed. PER ALI ABUBAKAR BABANDI GUMEL JCA

MONEY LENDER: MEANING OF THE WORD “MONEY LENDER” AS PROVIDED BY S.2 OF THE MONEY LENDERS LAW

According to S. 2 of the Money Lenders Law (Supra) a Money Lender is “…every person whose business is that of Money Lending or who carries on or advertises or announces himself or holds himself out in any way as carrying on that business…”
further to this S. 3 went to provide in part that:- … any person who Lends Money at interest or who Lends a sum of money inconsideration of a large sum being repaid shall be presumed to be a Money Lender until the contrary be proved” PER ALI ABUBAKAR BABANDI GUMEL JCA

INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION.132 (1) OF THE EVIDENCE ACT AS TO WHEN THE TERMS OF A CONTRACT HAS BEEN REDUCED TO THE FORM OF A DOCUMENT OR SERIES OF DOCUMENT WHETHER ANY OTHER TYPE OF EVIDENCE IS ADMISSIBLE TO PROVE THE TERMS OF THE AGREEMENT EXCEPT THE DOCUMENT ITSELF

Section.132 (1) of the Evidence Act provides; “When any judgment of any court or any other judicial or official proceedings, or any grant or other disposition of property has been reduced to the form of a document or series of document, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.” Generally once a document has recorded in writing, the agreement of parties whether pursuant to a requirement or provision of the law, or not, the document becomes the sole reference point of the parties and being binding no other type of evidence is admissible to prove the terms of the agreement except the document itself. See Prospect Text. (Nig.) Ltd. Mills V. I.C.I. Plc England (1996) 6 NWLR (PT. 457) 668. PER UCHECHUKWU ONYEMENAM JCA

CONTRACT: THE MEANING OF THE WORD “CONTRACT”

Loosely, a contract is the physical document evidencing an enforceable agreement between two or more parties to do or not to do a thing or set of things. The black’s law dictionary defines contract as: “The writing which contains the agreement of parties, with the terms and conditions, and which serves as a proof of the obligation” See Black’s Law Dictionary, 6th Edition page 322.” PER UCHECHUKWU ONYEMENAM JCA

ORAL/DOCUMENTARY EVIDENCE: CIRCUMSTANCES UNDER WHICH AN ORAL EVIDENCE WILL BE REQUIRED TO PROVE A DOCUMENTARY EVIDENCE

Accordingly oral evidence was required to prove Exhibit A which at best is a mere informal note or memorandum which the parties did not intend to have legal force as a contract. See Raffles V. Wichelhaus 159 B.R 3751 Smith V. Hughes (1871) L.R. 6. Q.B 597. PER UCHECHUKWU ONYEMENAM JCA

JUSTICES

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

Ms. BECKY TOFI Appellant(s)

AND

MR. L. T. CHEN Respondent(s)

ALI ABUBAKAR BABANDI GUMEL JCA (Delivering the leading Judgment): This is an appeal against the judgment of the High Court of Benue State, Gboko Judicial Division in suit no GHC/392/2008 delivered on 20th July, 2009. The Appellant herein was the Plaintiff before the lower Court. In a statement of claim dated 25th February, 2008, the Appellant as Plaintiff claimed as follows:-
“The Plaintiff is aggrieved and therefore claims from the Defendant, the sum of N362, 800 (Three Hundred and Sixty Two Thousand, Eight Hundred Naira) only, special damages being the sum owed the Plaintiff.”
In a statement of defence dated 23rd June, 2008, more particularly in its paragraph 13, the Defendant (Respondent herein) denied the claim and prayed the lower Court to dismiss it for being frivolous, vexatious and an abuse of the process of the Court.
The respective pleadings of the parties were supported by their depositions. Also, the Defendant/Respondent accompanied his depositions with the depositions of his 2 witnesses. Issues having been duly joined, the matter went to trial. At the trial, the Appellant gave oral evidence and also tendered a document which was admitted and marked as Exhibit A. For the defence of the action, the Respondent testified and also relied on the oral evidence of DW1, Mr. John Orga and DW2, Mr. Timothy Asen. Before their respective oral testimonies, each of the witnesses identified, adopted and relied on their respective depositions.
At the end of trial respective learned Counsel filed and exchanged written addresses. In a well-considered judgment the learned Trial Judge decided thus:-
“The Plaintiff in this matter wants this Court to enforce her money lending transaction with the Defendant in which she charge outrageous interest over three hundred percent) interest (sic) into the loan she gave to the Defendant without a money Lenders license. This is a clear illegality, which this Court cannot give credence to, All in all the Plaintiff’s claim fails and it is consequently dismissed.” (see lines 29-33 at page 36 of record of appeal)
The Appellant was dissatisfied with this decision and appealed to this Court in a notice of appeal dated 27th July, 2009 but filed on 29th/7/2009; respective learned Counsel filed and exchanged briefs of argument, pursuant to Order 17 of the 2007, Rules of this Court. The Appellant’s brief is dated 19/10/2009 but filed on 29/10/2009, while the Respondent’s brief, is dated 11/5/2010 but filed on 12/5/2010. At the hearing of the appeal before us on 7th April, 2011 respective learned Counsel adopted and relied on their briefs of argument, without more. While learned Counsel Mr. Ayua for the Appellant urged on us to allow the appeal and set aside the judgment of the lower Court, Mr. Akaazua for the Respondent prayed for an order affirming the appeal and order dismissing the judgment now on appeal herein.
In the Appellant’s brief, learned Counsel formulated and argued 2 issues out of the 3 grounds of appeal. They are as follows:-
(1) Whether Exh. A was properly interpreted by the Trial Court; and
(2) Whether the Respondent had proved that interest was charged on the money borrowed from the Appellant to warrant the transaction being termed illegal by virtue of the Money Lenders’ Law of Benue State, 2004.
Learned Counsel to the Respondent adopted and also argued these issues.
In arguing his issue 1, which was formulated out of grounds 1 and 2 of the grounds of appeal, learned Counsel referred to Exh. A and parts of the oral evidence of the Respondent and DW1 and DW2 and explained that Exh. A is clear, self-explanatory and unambigious. Upon this explanation, learned Counsel argued that since on the face of it Exh. A is clear and unambigious, there was no need for the Trial Court to resort to oral evidence to come to a conclusion that the Appellant charged interest on the loan granted since there was no mention of interest in the document.
With this argument as his springboard and section 132 (1) of the Evidence Act in view learned Counsel submitted that it was wrong for the learned Trial Judge to go on a voyage fishing for and resorting to oral evidence of the Respondent and his witnesses to clear what he considered to be an ambiguity in Exh. A. learned Counsel added that, Courts are enjoined to adopt and apply the literal, ordinary and grammatical rule of interpretation as a first option before resorting to other methods or rules. He referred to the cases of AMADI V. NNPC (2000) 2 SCNQR 990, ADMESANOYE V. ADEWOLE (2000) 2 SCNQR 834 and ADISA V. OYINWOLA (2000) 2 SCNQR 1264. Learned Counsel added further that according to the decisions in MBANI V. BOSI (2006) 26 NSCQR 583 at 602 and AKAIGHE V. IDAMA (1964) ALL NLR 317 at 322, a Court must read the whole of a document and not only part of it in the course of its interpretation. He urged the Court to resolve this issue in favour of the Appellant and allow this appeal.
In his reply learned Counsel to the Respondent began by pointing out that the only document before the Court was Exh, A. It was relied upon by the Appellant to anchor her claims. While the claim of the Appellant was for the sum of N362, 800 Exh. A, tendered add admitted in support of the claim refers to an undertaking to pay a balance of N382, 000. Having laid this as his foundation, learned Counsel remarked that the lower Court properly evaluated and interpreted Exh. A. When it referred to the oral evidence of the Respondent, DW1 and DW2. Learned Counsel focused further on Exh. A and maintained that in the absence of any other document to help out in ironing out the difference between the sum of money in the Appellant’s claim and the figure said to be the balance purportedly owing and outstanding according to Exh. A, it was necessary to refer to any other credible evidence on record to determine the claim of the Appellant.
While referring to a number of decided cases, learned Counsel agreed with the submission of Mr. Ayua for the Appellant, that it is always proper in interpreting documents to take into account first and foremost, the literal rule of interpretation before other methods or rules, He then referred to the case of ADETOUN NIG. LTD V. NIG. BREWERIES PLC. (2007) 1 KLR (PT. 228) 217 at 230 where it was held that a Court must resort to methods or rules of interpretation that would not allow or lead to absurdity and ambiguity. To illustrate the difficulty the lower Court faced learned Counsel referred to the oral evidence of the Appellant that it was because of the Respondents English that there was confusion in the matter. He urged the Court to resolve this issue against the Appellant.
In resolving this issue, it is my view that a consideration of the claim of the Appellant and the defence put up against it is essential. In that regard, I would proceed to underscore the case of the Appellant and as a good starting point, the pleadings necessarily become very handy. Paragraphs 2 to 5 of the statement of claim capture the essence and steps leading to the claim of the Appellant.
These paragraphs are:-
(2) Sometimes on the 18th day of November, 2007, the Defendant approached the Plaintiff for a loan sum of N382, 800 (Three Hundred and Eighty Two Thousand, Eight Hundred Naira) only repayable within the said month, which Plaintiff gave to the Defendant upon understanding that the loan shall be repaid from Defendant’s monthly salaries, and sales of oranges from Defendant’s vast citrus orchard.
(3) After the Defendant collected the loan, the Defendant made no effort any day at any time to repay the loan, even though the Plaintiff kept pestering the Defendant to repay.
(4) The Plaintiff avers that, due to persistent demands for repayment, the Defendant repaid N20, 000 (Twenty Thousand Naira) only, leaving a balance of N362, 800 (three Hundred and Sixty Two thousand Eight Hundred Naira) only, and would not pay again.
(5) On the 18th day of November, 2007, the Defendant wrote a receipt for the loan granted him and gave to the Plaintiff to evidence the transaction. The said receipt in the handwriting of the Defendant is hereby pleaded.
For the Respondent, I consider paragraphs 4 to 11 of his statement of defense as relevant and helpful. I hereby reproduce them in full. They are:-
(4) The Defendant further avers that on the 28th June, 2007, he collected the sum of N110, 000.00 as loan from the Plaintiff to enable him finance the burial of his mother in-law.
(5) When the Defendant collected this sum of N110, 000.00 the Plaintiff calculated the interest in it and entered the sum of N164, 000.00 in the form the Defendant purchased from her at the cost of N200.00
(6) The Defendant further states that when he collected this money, the Plaintiff gave a form to him which he filled the amount collected and signed and the Plaintiff also signed. The form was then kept in custody of the Plaintiff. The said form containing the contract sum is hereby pleaded and shall be relied upon at the trial.
(7) The Plaintiff on the 18th November, 2007 came to me that the interest on the loan of N110, 000.00 collected by me stood at N382, 800.00
(8) I then wrote an agreement for the lump of N164, 000.00 collected by me and the interest calculated by the Plaintiff which amounted to N382, 800.00.
(9) Paragraph 3 of the claim is denied. The Defendant made payments amounting to N240, 000.00. The Defendant on the 30th December, 2007, made a repayment of N220, 000.00 and in the early part of 2008 gave the Plaintiff the sum of N20, 000.00.
(10) When the Plaintiff collected this amount of N220, 000.00, the Defendant demanded for an acknowledgement receipt which the Plaintiff said there would not be any problem even if no receipt is issued to me, The Defendant then decided to invite one of his neighbours Mr. Asan Timothy to witness the handing over of the said N220, 000.00 to the Plaintiff.
(11) Paragraph 5 of the claim is admitted to the extent that receipt the Defendant wrote and handed over to the plaintiff includes the interest calculated by the Plaintiff on the loan hence the initial loan collected was N110, 000.00.
From the foregoing, it is very clear that the parties are not ad idem in their respective assertions of the figures constituting the transaction between them or the amount owing and outstanding against the Respondent. Pleadings are taken to be mere assertions which, unless validly and properly admitted, required evidential proof in order to support a claim.
As part of the evidence in support of her claim, the Appellant pleaded a receipt in the handwriting of the Respondent. It was pleaded in paragraphs 5 of the statement of claim. At the trial, it was tendered and admitted in evidence. It was marked as Exh. A and it states thus:-
“I, Mr. Chen L. T. of the above address have to pay a balance of N382, 800.00 i.e. Three Hundred and Eighty Two Thousand, Eight Hundred Naira Only, to Becky Tofi of Abwa Mbagen in November, 2007 in good condition.”
Whereas the claim of the Appellant was for N362, 800.00, Exh. A was referring to “a balance of N382, 8000.00.”
In order to explain this situation, the Appellant, under cross-examination, offered to clarify matters when she responded that:-
“Even though the Defendant wrote the N382, 800.00 in Exh, A as balance of the money he had to pay me, but was the total amount of money I gave to him. It is his English that is causing confusion.”
In paragraph 2 of the statement of claim, the Appellant claimed that she gave the Respondent the sum of N382, 800.00 with a promise by him to repay same within one month. It also added further that this was a loan to be repaid from the Respondent’s monthly salaries and sales of oranges from his orchard. Without mentioning any date, the Appellant asserted that the respondent paid her only N20, 000 out of the principal loan of N382, 800,00 leaving a balance of N362, 800. After her oral testimony and while under cross-examination by learned Counsel Mr. Akaazua, the Appellant told the lower Court thus:-
“The amount of money the Defendant collected from me was N362,800.00.”
(See line 7 at page 29 of record of appeal)
From his pleadings and the totality of the evidence in support of his defence, the Respondent maintained that the actual amount of money he collected from the Appellant was the principal sum of N110, 000 upon which the Appellant did calculations of interest and totaled the amount in the transaction to be N164, 000 which was said to have been entered in the loan agreement form which was said to have been executed by the parties. None of the parties produced this document. While the same form was pleaded in paragraph 6 of the statement of defence and notice to produce was given to the Appellant, this form remained unaccounted for at the conclusion of the trial.
It is against this background that the learned Trial Judge found S. 132(1) of the Evidence Act to be helpful and invoked same to resort to oral evidence to determine what probative value, if any, to ascribe to Exh. A. and after accepting DW2 and DW3 as credible witnesses, the learned Trial Judge evaluated the oral evidence of the Respondent, DW2 and DW3 alongside the contents of Exh. A and come to the following conclusion:-
“… in my opinion Exh. A does not cover the entire contract between the parties or still that it does not reflect the true picture of the amount of money in the contract. If there was some money involved which had been paid leaving the balance of N382, 800, 00? It then means that the Plaintiff was not correct to state the sum of N382, 800 was the capital loan she gave to the Defendant and on the date 18/11/07 contained in exhibit A. To that extent, it is ambiguous and depending on it alone would work injustice.”
(See line 37-42 at page34 of record of appeal.)
Having considered the entire circumstance of this case, I am of the firm view that the steps taken by the learned Trial Judge in his evaluation of the evidence before him and his findings upon same are sufficiently impeccable and cannot be faulted. I do not see any good reasons to interfere with the findings of the learned Trial Judge. I would not hesitate to uphold same and I accordingly do so. This issue must be and is hereby resolved against the Appellant. Grounds 1 and 2 of the grounds of appeal fail.
In arguing the 2nd issue learned Counsel started by putting the contending issues between the parties and made a preliminary remark that it was wrong for the lower Court to hold that the transaction between the parties was illegal under the provisions of the Money Lenders Law of Benue state. And while referring to the provisions of sections 3, 4 and 5 of the Benue State Money Lenders Law cap 111 Laws of Benue State, on the definition of a money Lender as well as the requirement of licensing for a would be money lender etc, learned Counsel submitted that these provisions do not apply to the instant transaction as the Appellant never lent money with interest to the Respondent. Also, while referring to the case of ATTAH V. EZEANA (2001) ALL FWLR (PT. 49) 1489 and order 15 rule 7(1) and (2) of the Benue State High Court Rules, learned Counsel submitted that the Respondent did not plead the illegality of the transaction or the provisions of the Law on Money Lending as a special defence. He urged the Court to resolve this issue in favour of the Appellant.
In his response, learned Counsel referred to the oral evidence on record and maintained that it is well established that the transaction between the parties was a loan in which interest was being charged. He then submitted that the Respondent had discharged the burden placed on him to establish the transaction as such and by virtue of S. 139 of the Evidence Act, it has shifted on the Appellant to show that interest was not charged on the loan. On the quality of the Respondent’s pleadings, learned Counsel referred to paragraphs 4, 5, 7, 9 and 11 of the statement of defence and suggested that the issue of any special defence does not arise because it was specifically pleaded by the Respondent that the transaction between him and the Appellant was a loan upon which interest was charged. He then urged the Court to resolve this issue against the Appellant and dismiss this appeal and to affirm the decision of the Trial Court.
It is axiomatic and has been so decided in a plethora of cases that parties are bound by their pleadings and it will not be allowed for a party or the Court to deviate from the pleadings in making a case or arriving at a decision thereon. See for example, the case of ADESANYA V. OTUEWU (1983) 1 SCNCJ 77 at 98. With respect to the instant appeal, it has copiously been pleaded by the Appellant that she gave a loan to the Respondent. Evidence also abounds that the Appellant gives loans to persons who come to her for that. It has not been disputed as an established fact that the Appellant sells application for loans form to her prospective customers for the sum of N200. The pleadings are the foundation upon which civil cases are adjudicated. Every material fact must be pleaded and where necessary particulars of same must be disclosed. In the instant case, the parties had pleaded that a transaction involving a Lender and a Borrower of money existed between them. I therefore do not agree with learned Counsel to the Appellant that there was any need for the provisions of the Money Lenders Law to be pleaded by the Respondent. It was finally admitted that DW2 and DW3 had also obtained loans from the Appellant. It therefore does not lay in the mouth of learned Counsel to argue that the Appellant is not ordinarily engaged in the business of Lending money to Borrowers generally and more specifically in the transaction that led to this appeal. The Appellant cannot genuinely and honestly say she is not a Money Lender.
It is such a very notorious fact that this Court can take judicial notice of and I hereby so do that all loans except where expressly stated otherwise would attract some payment of interest over its principal amount. This is a mercantile custom that is known to exist for ages. Remember the transaction between Shylock and Antonio in Shakespeare’s Merchant of Venice. While the Appellant has been fully established to be engaged in Money Lending business, she has failed to prove that she had not been engaged in charging interests on the loans she gave.
According to S. 2 of the Money Lenders Law (Supra) a Money Lender is
“…every person whose business is that of Money Lending or who carries on or advertises or announces himself or holds himself out in any way as carrying on that business…”
further to this S. 3 went to provide in part that:-
… any person who Lends Money at interest or who Lends a sum of money inconsideration of a large sum being repaid shall be presumed to be a Money Lender until the contrary be proved”
Where a person is presumed to be or holds out himself as a Money Lender, he needed to be so licensed under S. 4 under cross-examination, the Appellant had tacitly admitted that she was not licensed to be a Money Lender. It is not being unlicensed as a Money Lender that is so fatal to the transaction but the carrying out of the business without all the procedural safeguards that is more fatal and of grave consequences. For example, by virtue of S. 12 no contract by a Borrower for the repayment of money lent to him can be enforced unless a memorandum in writing of the contract shall have been made and duly executed by the parties thereto.
A Court of Law is deemed to be a repository of all the Laws within its jurisdiction and where the provisions if any particular Law appear to the Court to be applicable to any given circumstances, I believe, nothing prevents a Court from invoking the law in all appropriate circumstances it is the duty of the Courts to enforce the Law as circumstances permit. I therefore do not see any real substance in the arguments and submissions of learned Counsel to the Appellant on this issue. In consequence of that, issue 2 is also resolved against the Appellant and ground 3, of the grounds of appeal also fail accordingly. This appeal totally lack merit and it is hereby dismissed. The judgment of the high Court of Benue State, Gboko Division in suit no. GHC/39/2008 delivered on 20th July, 2009 is hereby affirmed, I order for N50, 000 costs against the Appellant in favour of the Respondent.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA: I have had the privilege of reading in draft the judgment of my learned brother, A.A.B. Gumel, JCA just delivered. I agree with his well articulated reasoning and conclusion that this appeal lacks merit and ought to be dismissed.
I also dismiss it. I abide by the consequential orders contained in the lead judgment including the order for costs.

UCHECHUKWU ONYEMENAM JCA: I read in advance the judgment just delivered by my learned brother, A.A.B. GUMEL, JCA. I agree with the reasoning and the conclusions.
The appellant claimed from the respondent the sum of Three Hundred and Sixty Two Thousand, Eight Hundred Naira (N362, 800.00) only, special damages: being the sum owed by the respondent. In proof of her claim the appellant gave evidence and tendered exhibit A which is an undertaking written by respondent. Exhibit A reads:
“I, Mr. Chen L.T. of the above address have to pay a balance of N382, 800.00 i.e. Three Hundred and eighty Two Thousand, Eight Hundred Naira only, to Becky Tofi of Abwa Mbagen in November 2007 in good condition.
SIGND”.
Counsel for the appellant submitted that the trial court was wrong to have resorted to oral evidence of the respondent, DW2 and DW3 at pages 34 and 35 of the record to come to the conclusion that the appellant charged interest on the loan when exhibit A made no mention of interest. He submitted that this offended section 132 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria and referred to: Union Bank V. Sax Nig. Ltd (1994) 9 SCNJ 1 AT 12: Savannah Bank V. Salami (1996) 9-10. SCNJ 187: S.G.B.U. V. Awolaja (2002) 9 NSCQR 218
Section.132 (1) of the Evidence Act provides;
“When any judgment of any court or any other judicial or official proceedings, or any grant or other disposition of property has been reduced to the form of a document or series of document, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.”
Generally once a document has recorded in writing, the agreement of parties whether pursuant to a requirement or provision of the law, or not, the document becomes the sole reference point of the parties and being binding no other type of evidence is admissible to prove the terms of the agreement except the document itself. See Prospect . (Nig.) Ltd. Mills V. I.C.I. Plc England (1996) 6NWLR (PT. 457) 668. The appellant’s position that by the provision of Section 132 (1) of the Evidence Act no oral evidence may be given of the terms of Exhibit A can only hold if exhibit A in the eye of the law qualifies as a contract. Loosely, a contract is the physical document evidencing an enforceable agreement between two or more parties to do or not to do a thing or set of things. The black’s law dictionary defines contract as:
“The writing which contains the agreement of parties, with the terms and conditions, and which serves as a proof of the obligation” See Black’s Law Dictionary, 6th Edition page 322.
For Section I32 (1) of the Evidence Act to apply the document must have been agreed or understood by the parties to operate as a document evidencing the transaction between the parties. This position is strengthened by the provision of Section 132 (2) of the Evidence Act which provides:
“Oral evidence of a transaction is not excluded by the fact that a documentary memorandum of it was made, if such memorandum was not intended to have legal effect as a contract, grant or disposition of property”
It is against this background that I examine Exhibit A. By paragraphs 2 and 5 of the appellant’s statement of claim and paragraphs 2 and 3 of her deposition the respondent borrowed the sum of N382,800.00 from her on 18/11/07 and wrote a receipt for the loan same day. See pages 6 – 7 of the record. Exhibit A tendered and heavily relied upon by the appellant as the receipt respondent wrote for the loan only acknowledged the balance of the loan; the said exhibit not only contradicted the appellant’s claim but is inconclusive. Exhibit A speaking said N382, 800.00 is the balance of the amount borrowed; the appellant says it is the amount borrowed while the respondent says it is neither the total sum borrowed nor the balance.
The appellant under cross examination at page 29 of the record brought to bare the state of exhibit A when she said, the English in exhibit A “is causing confusion”. This presupposes the fact that exhibit A does not represent the actual intention of the parties in the transaction and so could not have been understood by the parties to represent the physical document evidencing their transaction. By exhibit A there was no consensus ad idem and as such Exhibit A could not qualify as a contract in law. Accordingly oral evidence was required to prove Exhibit A which at best is a mere informal note or memorandum which the parties did not intend to have legal force as a contract. See Raffles V. Wichelhaus 159 B.R 3751 Smith V. Hughes (1871) L.R. 6. Q.B 597. It is for this that I opine that oral evidence was admissible and was rightly admitted by the trial court to establish that the parties did not intend Exhibit A to have a legal effect of a contract and that the sum of N382, 800.00 was a sky rocketing interest that had accumulated on the actual money borrowed.
For the above and the more detailed reasons proffered in the lead judgment, I also dismiss the appeal for lacking in merits while I affirm the decision of the lower court. I abide by the order as to costs.