LUBCON LIMITED v. CLASSMATE TECHNOLOGIES COMPANY LIMITED (2019)

LUBCON LIMITED v. CLASSMATE TECHNOLOGIES COMPANY LIMITED

(2019)LCN/13545(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/IL/83/2018

RATIO

PRELIMINARY OBJECTIONS: IMPORTANCE

Before the consideration of the issues raised however, the settled position of the law commands that the preliminary objection raised be given prominence, upon the reasoning that should it succeed, there may be no need going into the issues contended upon, as the appeal would have been terminated in limine. See Jim-Jaja vs. COP, Rivers State (2013) 6 NWLR (pt. 1350) 225.PER HAMMA AKAWU BARKA, J.C.A.

WHEN A MATTER IS FOUNDED ON ILLEGALITY: A COURT CANNOT BE USED TO ENFORCE AN ILLEGALITY IE AN ILLEGAL CONTRACT

The position of the law as to when a matter is founded on illegality is very clear, it is that no Court and definitely this Court cannot close its eyes, and allow itself to be used to enforce such an illegality. The recent case of CITEC International Estates Ltd vs. E. Int’l INC.& Associates (2018) 3 NWLR (pt. 1606) 332 @ 361 per Eko JSC; which is to the effect that; illegality of a contract or transaction, whenever it is raised as a defense to a claim founded on the said transaction, impacts on the jurisdiction of the Court, settles the point under consideration. When the contract on which the plaintiff sues is ex-facie illegal, the Courts will decline to enforce it for the Courts exercise their jurisdiction only to administer the law of the land, and never would they exercise their jurisdiction to help the plaintiff break the law.PER HAMMA AKAWU BARKA, J.C.A.

BANK: DEFINITION OF A BANK WITHIN THE AMBIT OF THE LAW

Let me first deal with the question whether the respondent was a bank within the ambit of the law. A bank has been defined by the Blacks Law Dictionary, eight edition as a financial establishment for the deposit, loan exchange or issue of money, and for the transmission of money. A quasi public institution for the custody and loan of money, the exchange and transmission of the same by means of bills and drafts. Akintan JSC, in the case of Amalgamated Trustees Limited vs. Associated Discount House Limited (2006) LPELR-583 (SC), adopted the definition accorded to the term by Ogundare JSC in the case of the Federal Mortgage Bank of Nigeria vs. NDIC (1999) 2 NWLR (pt. 591) 333 @ 361, as an organization or place that provides financial services. The lower Court from the evidence before it, whether oral or documentary, formed the conclusive view that since the claimant was not shown to be in the business of receiving deposit on any kind of account, and or operating current or saving accounts on behalf of customers, the claimant cannot be appropriately described as a bank. PER HAMMA AKAWU BARKA, J.C.A.

WHETHER THE TRANSACTION WAS CONTRARY TO THE MONEY LENDERS LAW OF KWARA STATE AND WHO IS A MONEY LENDER

I now proceed to agitate on whether the transaction violently offended the Money Lenders Law of Kwara State, as submitted by the learned counsel for the respondent. My agitation is however short lived in view of the decision of the Supreme Court in the case of Chidoka vs FCFC Ltd (2013) 5 NWLR (pt. 1346) 144, commonly called the money lenders case. In the case just cited, which is similar to the instant case, the parties therein, contracted amongst themselves, wherein the respondent as the lender and the appellant as borrower, agreed to lend the appellant the sum of money agreed upon with an attracting interest standing at 132% per annum. The respondent in the case was not a licensed money lender, just like in the case at hand. It was contended in that case, that the agreement was illegal on the ground that the respondent was not a licensed money lender, and therefore could not operate as such under the money lenders laws of Lagos state. Coomassie JSC, in the lead judgment in adopting the reasoning of Okoro JCA (as he then was) in the case of Alhaji Abdullahi Ibrahim vs. Mallam Zangina Abubakar Bakori (unreported) in suit no. CA/K/299/2006 delivered on the 2/7/2009:

Justice

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria

Between

LUBCON LIMITEDAppellant(s)

AND

CLASSMATE TECHNOLOGIES CO. LTDRespondent(s)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory Appeal against the decision of M. O. Adewara J, of the Kwara State High Court in Suit No. KWS/336/2017 between Lubcon Limited and Classmate Technologies Co. Ltd, delivered on the 4th of June, 2018 wherein the appellants preliminary objection was dismissed.

The root of the instant appeal can be traced to the civil action initiated by the respondent, Classmate Technologies Co. Ltd who having taken out a writ of summons against the appellant, Lubcon Limited on the 17th of October, 2017 sought for the following reliefs:
1. An Order mandating the defendant to pay the claimant the sum of Ten Million Naira (N10,000,000.00) only in bulk being outstanding principal or capital sum invested by the claimant to the defendants organization in a business agreement between the claimant and the defendant.
2. An order that the defendant should pay the claimant the sum of Two Million, Eight Hundred Thousand Naira (N2, 800,000.00) only being the balance of outstanding accrued monthly interest of 8.5% from 12th November, 2016 to 12th October, 2017.

3. An order mandating the defendant to continue the payment of monthly interest at 8.5% of principal sum (N10,000,000.00) to the claimant every month starting from 12th November, 2017 until the defendant pays in bulk (or full) the claimants principal sum or capital invested in the defendants business.
4. The sum of Five Million Naira (N5, 000,000.00) only as general damages against the defendant.
5. Cost of filling this suit.

The defendant entered a conditional appearance, and on the 24th of January, 2018 filed a consequential amended statement of defense incorporating a preliminary objection.
The grounds of objection are listed as follows:-
1. The subject matter of the claimants suit bothers on illegality. It is void abinitio and prohibited by statute. The claimants actions are criminal with requisite punishment spelt out in the enabling laws.
2. Courts will not entertain illegality and will not allow itself to be used as vehicle or an instrument to enforce an illegal transaction.
3. The claimant is neither a bank nor a registered money lender. It cannot obtain any relief from its wrong

doing and cannot initiate this action.
4. This action is wanting in bona-fide. It is frivolous, vexatious and amounts to an improper use of legal process. It involves some desire to misuse and/or pervert the administration of Justice.
5. This Honorable Court lacks requisite jurisdiction to entertain this suit.

The Respondent herein reacted to the preliminary objection, when it filed a counter affidavit of six paragraphs deposed to by Mary Mordi Ojorumi, Secretary in the law firm of Biola Adimula and Co, the firm handling this suit on behalf of the claimant/respondent. A written address dated and filed on the 17th of April, 2018 was also filed in opposition to the preliminary objection.

On the 19th of April, 2018, Appellant filed a further affidavit in support of the preliminary objection filed on the 10/4/2018 and deposed to by Mustapha Hamidu a litigation assistant in the law firm of Bayo Ojo and Co, learned solicitors to the appellant accompanied by a reply address. Appellant also filed a list of additional authorities in support of the preliminary objection on the 2nd of May, 2018, while the respondent filed same the next day. And on the

same 3rd of May, 2018, the preliminary objection was moved, and consequently reserved for ruling against the 4/6/2018. The vexed ruling was delivered on the stated 4/6/2018 to the conclusion that:
Finally I hold this Notice of Preliminary Objection is (sic) lacking in merit. I hereby accordingly overrule and dismiss it.”

Dissatisfied with the ruling of the lower Court dismissing the preliminary objection, Appellant filed a Notice of Appeal on the 12/6/2018 predicated on three grounds. The record of appeal having been duly transmitted to this Court on the 19th of July, 2018, set the ball rolling for parties to file in their briefs. The appellants brief was filed on the 29/8/2018, and upon receiving the respondents brief filed on the 2nd of October, 2018, filed a reply brief on the 9th of October 2018.

The hearing of the appeal was then reserved to the 4/3/19, wherefore, parties identified their respective briefs, adopted the same in urging the Court to grant their respective prayers as borne in their briefs.

In the appellants brief settled by Taiye Oniyide Esquire, two issues were identified for the

resolution of this appeal. The two issues located at page 2 of the brief are as follows:-
1. Whether the learned trial judge was right when he held that the transaction on which the action before it is premised is not illegal. (Ground 1 of the Notice of Appeal)
2. Whether the decision of the learned trial Court is against the weight of evidence. (Grounds 2 and 3 of the Notice of Appeal)

And in the respondents brief settled by Ilori Olaleken Enoch, incorporating a Notice of Preliminary Objection argued at page 13 of the brief, identified a sole issue to wit;
Whether the Learned Trial Judge was right when he held that the Appellants preliminary objection could not be determined at the preliminary stage without calling evidence.

The Preliminary Objection
The Preliminary objection raised by the learned counsel for the respondent can be found at page 2 of the respondents brief filed on the 2nd of October, 2018, and argued from page 2, covering pages 2 – 13 of the brief. It was contended therein that appellant failed woefully to comply with the provisions of Order 2 Rule 1(a) of the Court of Appeal Rules, 2016. Alluding to the contents of the above cited rule of Court, counsel argued that appellant was duty bound to and is required to serve the respondent with the Notice of Appeal except where the proviso applies. He argued that a Notice of Appeal serves as the originating or initiating process at the appellate Court, the foundation upon which every other proceedings in the appeal rests, fundamental and compulsory, the case of Adegbola vs. Osiyi (2018) 4 NWLR (pt. 1608) 1 @ 16 was heavily relied on. He complained that the appellant failed and or refused to serve the Notice of Appeal on the respondent, alleging that from the record there is no evidence bearing the fact that the respondent was served the Notice of Appeal. It was his argument also that the service of the Notice of appeal is a right

guaranteed by the Constitution, the absence of which amounts to the denial of fair hearing guaranteed by Section 36 (1) of the Constitution of the Federal Republic of Nigeria 1999, as amended.
Heavily relying on case law, particularly, the cases of Adegbola vs. Osiyi (supra), Josiah Cornelius Ltd vs. Ezenwa (1996) 4 NWLR (pt. 443) 391, Learned counsel argued that failure to serve the originating process, in this case the Notice of Appeal, amounted to a fundamental defect, which goes to the root of the Courts jurisdiction to adjudicate. He urged the Court based on this leg of the objection to decline jurisdiction and to strike out the appeal for being incompetent.

With respect to the 2nd leg of the objection, it was argued for the respondent that appellant having failed to comply with the provisions of Section 242(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, and Section 14 (1) of the Court of Appeal Act CAP C36, Laws of the Federation of Nigeria 2004, rendered his notice of appeal incompetent. He premised his complaint on the fact that the appellant failed to obtain the requisite leave of the High Court or of this

Court as demanded by Section 242(1) of the Constitution, and the appeal being an interlocutory appeal, appellant must seek the leave of Court to file the notice of appeal. The cases of Global West Vessel Specialist (Nig) Ltd vs. Nigeria NLG Ltd (2017) 1119 @ 1144, and Otti vs. Ogah (2017) ALL FWLR (pt. 886) 2075 @ 2110 were cited in support of the legal principle. He stressed that in the instant case, the grounds of appeal being that of mixed law and facts, and there being nothing on record to show that such leave was sought and or obtained, the Notice of Appeal filed was wanting in competence and liable to be struck out. He continued to argue that where an appeal is to be with the leave of Court, such a notice of appeal can only be lodged with the leave of court, as it is the leave sought and obtained that confers jurisdiction on the Court, and any appeal filed without such leave is incompetent and the Court robbed of the jurisdiction to entertain same. The cases of Timothy vs. Fabusuyi (2013) 1NWLR (pt. 1335) 379 @ 392; Chrome Air Services Ltd vs. Fidelity Bank (2018) ALL FWLR (pt. 9200) 135 @ 138; Allanah vs. Kpolokwu (2016) ALL FWLR (pt. 830) 1207 @ 1234,

were cited in support of the legal principle advanced. His position is that there is no valid appeal before the Court as the supposed Notice of Appeal is defective and a nullity, for which the case of Ezenwaji vs. University of Nigeria (2018) ALL FWLR (pt. 933) 909 @ 936 was relied upon. In the main counsel urged the Court based on his submissions, to strike out the appeal on the grounds that it is defective.

In response, to the respondents objection, learned counsel for the appellant from paragraph 2.0 to 2.28 of the appellants unpaginated reply brief, contested the submissions of the learned counsel for the respondent and urged the Court to reject the totality of the submissions and to hold that the appeal is competently before the Court.

Regarding the ground alleging lack of service of the Notice of Appeal on the respondent, thus robbing the Court of jurisdiction to hear the appeal, learned counsel alluded to the earlier submissions made on behalf of the respondent, and further drew the attention of the Court to some basic salient facts deducible from the records, to submit that respondent having filed and served its brief of argument and

further participated in the appeal, he cannot be heard to complain that he was not served. The case of FBN Plc vs Ondo State Government (2012) 11 NWLR (pt 1312) 502 at 502, was cited for support.

He contended that the record of appeal containing the Notice of Appeal having been served on the respondent on the 23/07/2018 within time, and within the contemplation of Order 2 Rules 1 (a) and (b) of Court of Appeal Rules 2016, it can be safely deduced that the respondent was duly served with the notice of appeal in contention. In further contention, it was stated that by Order 2 Rule 2 of the rules of this Court, the duty of serving a copy of the Notice of Appeal on the parties is that of the Courts Registrar, and any omission by the registry should not be visited on the appellant. The cases of Ede vs. Mba (2011) 18 NWLR (pt. 1278) 230 at 273, Duke vs. Akpabuyo Local Government (2005) 19 NWLR (pt. 959) 130 at 150 were referred to.

He Further submitted that even if it were to be held that the respondent was not served as alleged, same amounted to an administrative defect which does not render the originating process a nullity. He supported this

contention with the cases of Saude vs. Abdullahi (1989) 4 NWLR (pt. 116) 387 at 424 and Odutola vs. Kayode (1994) 2 NWLR (pt. 324)1 at 19.

On the respondents contention which relied on the case of Adegbola vs Osiyi (supra), to the effect that the non-service of the Notice of Appeal deprived him of the opportunity of filing a Notice of cross-appeal, learned counsel retorted that respondent needed not to have waited for the filing of a notice of appeal before filing a Notice of cross-appeal, and relied on Oguma vs IBWA (1988) 1 NWLR (pt. 73) 658 at 681. He finally urged the Court to reject the respondents submission in that regard.

With regards to the second limb of the objection, which is to the effect that appellant failed to seek leave of the trial Court or that of the Court of appeal, before filing the notice of appeal, learned counsel submits that the entirely of the appeal is a challenge to the jurisdiction of the Court. He alluded to the processes filed by it and submitted that jurisdictional issues are issues of law, citing a host of cases in that regard. He maintained that being issues of law, the need for leave in filing a

Notice of Appeal is watered down and concluded by urging the Court to reject the respondents submissions and to hold that the appeal is competently before the Court.

Let me attend to the second limb of the objection first; which is whether the appellant needed the leave of the lower Court or of this Court before filing its Notice of Appeal.
For ease of reference, Section 242(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, and Section 14(1) of the Court of Appeal Act 2004, provides as follows:-
subject to the provisions of Section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court of High Court to the Court of Appeal with the leave of the Federal High Court or that of High Court or Court of Appeal.
Section 14 (1) of the Court of Appeal Act 2004 on the other hand provides as follows:
14(1) where, in the exercise by the High Court of a State or, as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter; an appeal shall, be by leave of that Court or of the

Court of Appeal, lie to the Court of Appeal; but no appeal shall lie from any order made ex parte, or by consent of the parties, or relating only costs.
The two sections of the law cited above given their natural and literal meaning, effectively provided that save for what is allowed under Section 241 of the same Constitution, any interlocutory appeal and or questions of fact, mixed law and fact, must be by leave of the Court of trial or this Court. In other words, the appellant must first seek leave of the Court of trial or the Court of appeal before a Notice of Appeal is filed. The recent case of Global West Vessel Specialist Nig. Ltd. Vs. Nigeria NLG Ltd (Supra) is apposite.
From the record of appeal before the Court, two facts readily stand out as canvassed by the respondent. Firstly, the appeal under consideration is an interlocutory appeal, and secondly, no leave of Court was either sought nor obtained by the Learned counsel on behalf of the appellant before filling its Notice of appeal.
Mr. Enoch based on the two undisputed facts, and placing reliance on the authority of Otti vs. Ogah (supra), which held that:-

An Appellant should seek the leave of Court in instances where the Notice of appeal contains grounds of mixed law and fact, the leave of Court serves as precondition upon which concerned grounds are properly before the appellate Court, failure of which the defective grounds may be struck out. In other words, where leave, which means permission is a precondition before an appellant can file a notice of appeal, containing grounds of mixed law and fact, an appellant who files a notice of appeal without satisfying or obtaining that precondition would have his process thrown out. See also Abubakar vs Dankwambo (2015) 18 NWLR (pt. 1491) 213 referred to (page 2110, paras. C-F),
drew the Courts attention to the appellants grounds of appeal in the appellants Notice of Appeal, contending that the grounds are of facts therefore requiring the appellant seeking leave. That not having been done, he argued, and leave being a condition precedent affected the jurisdiction of the Court in entertaining the appeal.
The response by Mr. Oniyide, relying on the case of Isah vs INEC (2016) 18 NWLR (pt. 1544) 175 at 239 is that:-<br< p=””>

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…succinctly and without having to belabor the arguments advanced on the preliminary objection raised on behalf of the 4th respondent relating the competence of certain grounds of appeal, I seek to briefly state that any ground of appeal, no matter its formulation, once it bothers on jurisdiction, it automatically qualifies as a ground of law which requires no leave from the Court for it to be competent. The totally of the preliminary objection raised in the circumstance is, I hold grossly misconceived and bears no relevance.”
There is no gainsaying the fact that where leave is a precondition before an appellant can file a notice of appeal containing grounds of mixed law and facts, an appellant who files a notice of appeal without satisfying or obtaining that pre condition would have his process thrown out on the ground that it is incompetent. That was the holding in the case of Abubakar vs. Dankwambo (2015) 18 NWLR (pt. 1491) 213. In essence, the Court must be guided by the decision of Chrome Air Services Ltd & Anor vs. Fidelity Bank (2017) LPELR 43470 (SC) in discerning whether in the con of the complaint by the respondent, leave

is a pre-requisite, enabling him to appeal. The learned counsel for the appellant cannot dispute the fact that in the case at hand, leave is required as mentioned in the case of Abubakar vs. Dankwambo (supra). Thus in the earlier cited case of Timothy vs. Fabusuyi (2013) 1 NWLR (pt. 1335) 379, it was held that:
Where an appeal can only be lodged with the leave of the Court, it is the leave that confers jurisdiction on the Court and it is very vital and fundamental that leave must be obtained before an appeal is filed and any appeal filed without leave is incompetent as no jurisdiction can be conferred on the Court.” See also the cases of Chrome Air Services Ltd vs. Fidelity Bank Ltd (supra) @ 138, Allanah vs. Kpolokwu (2016) ALL FWLR (pt. 830) 1207 @ 1234.
In the resolution of this issue therefore, I stand to be guided by the decision of the Apex Court in the recent case of Chrome Air Services Limited and Anor vs. Fidelity Bank (2017) LPELR 43470 (SC), which is to the effect that:
It is recognized that it is often difficult to distinguish between a ground of law and a ground which is of mixed law and facts. Overtime,

a general rule of thumb employed by Courts to determine the nature of a ground of appeal has evolved. Where the complaint is that the trial or appellate Court misunderstood the law to the proved or admitted facts, it is a ground of law. Where the ground of appeal questions the evaluation of evidence before the application of the law, it is a ground of mixed law and Fact. There is generally no difficulty in determining whether a ground of appeal is a question of fact.”
The learned counsel to the respondent referred the Court to the grounds of appeal, filed by the appellant, particularly ground three thereof which states that the decision of the learned trial judge is against the weight of evidence and argued that the grounds of appeal encapsulated in the Notice of appeal require leave of either the High Court or the Court of Appeal. In reply thereof, the respondent is of the firm view that the appellants entire appeal challenges the jurisdiction of the trial Court to entertain the suit, further contending that a jurisdictional issue automatically qualifies as an issue of law, which requires no leave from the Court for it to be

competent. The cases of Isah vs. INEC (2016) 18 NWLR (pt. 1544) 175 @ 239, Unilorin vs. Adesina (2014) 10 NWLR (pt. 1414) 159 @ 160. were relied upon.
The resolution of the issue at hand, therefore, requires a careful, thorough and dispassionate appraisal of the appellants notice of appeal, and in particular the grounds of appeal including the particulars thereto. In doing so, I do not need to look far, for as pointed out by the appellant, learned counsel for respondent in his paragraph 4.05 acknowledged the fact that what the appellant attacked by his preliminary objection, now subject of the instant appeal was the jurisdiction of the lower Court thus:
4.05 The appellant based the bulk of its preliminary objection on the jurisdiction of the trial Court to hear and determine the suit. The appellant had alleged that the transaction from which the matter arose is an illegal transaction and as such cannot be enforced by the trial Court.”
Besides, as rightly argued by the appellants counsel, the entire appeal as can be seen from the grounds of appeal and the particulars thereof challenges the jurisdiction of the lower Court in

entertaining the suit on the ground that the suit was an illegality. This being so and by the stand of the law, which is that:
The thrust of the instant appeal is the question whether the lower Court had the jurisdiction to entertain the case filed before it. It certainly is a jurisdictional matter for which this Court must determine. From the position of the law I am of the view that the ground of appeal being that which raised the issue of jurisdiction, leave to appeal is not a precondition.” See MPPP vs. INEC (2015) 10 MJSC 18 @ 31 – 32, Wema Securities and Finance Plc vs. NAIC, (2015) 63 NSCQR 561 @ 599 600, Agbiti vs. Nigerian Navy (2011) LPELR-2944 (SC), Isah vs. INEC (supra) @ 239, Unilorin vs. Adesina (2014) 10 NWLR (pt. 1414) 159 @ 169, Matari vs. Dangaladima (1993) 3 NWLR (pt. 281) 280, AG Oyo State vs. Fairlakes Hotels Ltd (1988) 5 NWLR (pt. 92) 1.
In the latter case of AG Oyo State vs. Fairlakes Hotels Ltd (supra), the Supreme Court reiterated the legal position that where an appellant in his issues for determination raises questions of jurisdiction, they are indisputably questions of law, and such questions

are not only competent, but expedient and in the interest of Justice, and for an appellate Court to determine.
I am left in no doubt at all, that the issue raised by the appellant being that which touches or challenges the jurisdiction of the lower Court, falls squarely as an issue of law for which the leave of the lower Court and or of this Court is not a precondition and therefore unnecessary. I do agree with the learned counsel for the appellant that this issue is devoid of merit and deserving of a dismissal.

In the examination of the other leg of the objection, I do not intend to waste time at all. The complaint of the respondent is anchored on the ground that the Notice of appeal was not served on the respondent as required by the law. It however admitted having been served the record of appeal which contains a Notice of appeal at pages 134 137 thereof. Respondent also admitted having been served the appellants brief of argument, which prompted him to file a respondents brief incorporating the instant preliminary objection. Let me however agree with the respondent on this point, and I am sure even the respondent has no

choice but to agree, that the Notice of Appeal is the substratum of the appeal, the very foundation upon which every other process in the appeal is built on; the filing of which is not only a fundamental requirement, but necessary and inevitable. Having filed a notice of appeal therefore, same must be served on all the necessary parties in the appeal, failing which, the respondents right to fair hearing is said to have been breached. The recent case of Adegbola vs. Osiyi (2018) 4 NWLR (pt. 1608) 1, cited by the respondents counsel says it all. M. D. Muhammad JSC, in the case cited left no one in doubt when he rammed home the point that:
Notice of appeal is the foundation of the appeal and non-service of the notice, if established goes to the root of the appeal. The defect is not a mere irregularity. Being fundamental, it robs the appellate Court of the jurisdiction to hear and determine the appeal.”
The question then is, what governs the service of a notice of appeal? I think it is the provision of Order 2 Rule (1) (a) of the Court of Appeal Rules 2016, which reads:
Every Notice of Appeal shall, subject to the

provision of Order 2 Rules 7, 8 and 9, be served personally, provided that if the Court is satisfied that the notice of appeal has been in fact been communicated to the respondent, no objection to the hearing of the appeal shall lie on the ground that the notice of appeal was not served personally.”
Let me confess that I do not understand the complaint by the respondent on this point, bearing in mind the clear purport of the section of the law just read. My confusion stems from the fact that the respondent in the normal state of things must have been informed of the instant appeal to have engaged a counsel of his own choice to defend the appeal on his behalf. That the learned counsel must have acted upon the brief of the respondent when in receipt of the record, containing the notice of appeal, and the appellants brief, responded by filing a respondents brief, attacking the appellants notice of appeal as that containing grounds of mixed law and facts, for which the leave of the Court ought to have been sought. If indeed, the notice of appeal has been communicated to the respondent, which I believe he must have been served from the permutations made,

or is the learned counsel saying that he ought to have been personally served, and that at no where in the record of appeal is it indicated that he was not so served? Otherwise what is the basis of the respondents complaint in that regard. I totally agree with the learned counsel for the appellant in line with the admonition of the Supreme Court in the case of Abubakar vs. Yaradua (2008) 4 NWLR (pt. 1078) 465 @ 511, to the effect that the obedience of Court rules be not be so slavish to the point that Justice is destroyed or thrown overboard or if I may add, become laughable is quite relevant here. The contention by the respondents that they were not served notice of appeal in this case does not impress me at all to the point that the preliminary objection on the point is dismissed by me.
In conclusion I find the preliminary objection devoid of merit and same is hereby dismissed.

THE MAIN APPEAL.
The first issue canvassed by the appellant, which is whether the learned trial judge was right when he held that the transaction on which the action before it is premised is not illegal, which appears to be the main issue, was argued from pages 2

19 of the appellants brief.

Proffering arguments in support of his submission, counsel drew the Courts attention to paragraphs 4(a) (e) of the affidavit in support of the preliminary objection at pages 63 64 of the record, to the effect that the respondents suit borders on illegality and prohibited by statute; and further to that is the contention of learned counsel to the effect that respondent was neither a bank nor a registered money lender. He submitted that a Court of law will not entertain illegality nor allow itself to be used as an instrument to enforce an illegal transaction.

Learned counsel further drew our attention to the counter affidavit filed by the respondent at pages 80 81 of the record, wherein appellants action before the lower Court was denied, to the effect that the action filed did not constitute an illegality, but admitted that a Court will neither entertain illegality nor allow itself to be used as a vehicle or instrument of enforcing illegality, and submits that the burden left for the Court was to determine whether the transaction instituted by the respondent constituted an illegality.

Referring to the ruling of the lower Court, having held that:
the claimant is neither a money lender nor a bank, and neither can it be said that it held itself out to be either of the two, and consequently the notice of preliminary objection is lacking in merit.”

And submits that it is the said ruling delivered by the lower Court that is the subject of the instant appeal.

It was contended for the appellant based on the decision of Oni vs. Cadbury (2016) 9 NWLR (pt. 1516) 80 @ 107 per Rhodes Vivour JSC, that in deciding whether a Court has jurisdiction in any given suit to hear a matter before it, it is the plaintiff/claimants writ of summons and the statement of claim and no other document that should be examined. Alluding to paragraphs 3 9 of the respondents statement of claim in the action filed, counsel is of the view that a careful perusal of the appellants allegations therein, would show that the respondent is purported to have given out the sums of Ten Million Naira to the appellant for its business and in respect of which, the appellant is to pay back the principal sum and interest at 8.5%.

Further alluding to paragraph 33 of the claimants statement of claim, it was submitted that the simple question now begging for resolution is whether the respondent actually held itself out as a bank or a money lender.

In the determination of whether the respondent held himself out as a bank, learned counsel referred to Section 66 of the Banks and Allied Financial Institutions Act cap B3, Laws of the Federation 2004, (BOFIA) in short, stating that the act does not limit the definition of banking activities to receiving deposit as wrongly held by the lower Court, and in support of this legal principle counsel cited the case of NDIC vs. Okem Ent. Ltd (2004) 10 NWLR (PT. 880) 107 @ 168.

He went on to submit that the aggregate of the plaintiffs statement of claim borders on the alleged provision of finance to the appellant, and thereby bringing the activities of the respondent, covered by paragraphs 3 9 within the meaning of a bank and banking transactions. He further alluded to the finding of the lower Court, to the effect that the sum of Ten Million Naira was paid into the account of the appellant, and went on to submit that the

transaction was targeted at recouping the principal sum and interest, thus amounting to engaging in banking transactions.

Where a transaction is clearly forbidden by statute, counsel argued, the contract entered becomes illegal and the case of Dunalin Inv. Ltd vs. BGL Ltd (2016) 18 NWLR (pt. 1544) 262 @ 315, was cited in that regard.

Learned counsel in further argument referred to Section 2 of the Money Lenders Law of Kwara State 2006, and the case of Ajao vs. Ademola (2005) 3NWLR (pt. 913) 639 @ 652, to posit that by the respondents pleadings at paragraphs 3 9 thereof, respondent held himself out as a money lender, and urged the Court to take note of the respondents Memorandum and Articles of Association, contending that for a party to engage in money lending he must obtain a license in that regard. He then argued that the respondent having engaged in money lending without having been so licensed to do so, is not only prohibited by statute, but constitutes a crime, and the act of the respondent, purporting to lend to the appellant is in clear contravention of the Money Lenders Law of Kwara State and thus a crime which the Court cannot shut

its eyes to. He submits that the respondents suit having being based on illegality, the respondent has no relief or remedy in law. It was the conclusion of the learned counsel that since the trial Court lacked the requisite jurisdiction to hear and to determine the respondents case on the bases that the transaction borders on illegality is therefore a null and void transaction.

With respect to the second issue canvased by him, i.e. whether the decision of the lower Court is against the weight of evidence, it was contended in line with the decision of Osolu vs. Osolu (2003) 11 NWLR (pt. 832)608 @ 631-632, that when a complaint is made against the weight of evidence, the complaint must be against the totality of the evidence adduced before the trial Court and not against any specific issue. Alluding to the holding of the lower Court which is to the effect that the transaction that led to the case is an issue that can only be resolved by evidence, submitted that the inference by the Court cannot be justified in view of the facts and the evidence before it. He made reference to paragraphs of the affidavit in support of the preliminary objection as well as

paragraphs of the counter affidavit, stating that by the averments in their various affidavits, parties had joined issues as to whether the transaction bordered on illegality or not. He alluded to the position of the law exposed in the cases of Reptico SA Geneva vs. Afribank (Nig) Ltd (2013) 14 NWLR (pt. 1373) 172 @ 208 and Oni vs. Cadbury (supra) @ 107 and contended that in the face of the respondents amended statement of claim, the lower Court had no jurisdiction to determine the case. The reasoning of the learned counsel is that having admitted that the sums of Ten Million were extended to the appellant payable with interest, against the spirit of Section 66 of the Banks and other financial institutions Act and Section 2 of the Kwara State Money Lenders Law, the respondent having failed to show that it was a bank and or a money lender, is deemed as having admitted the same. The case of Corporate Ideal Ins. Ltd vs. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (pt. 1405)165 @ 290 per Okoro JSC was referred to.

In conclusion the learned counsel urged the Court to hold that the transaction forming the fulcrum of the respondents action is that prohibited by statute

and ex-facie illegal null and void, and that no enforceable right can arise from the base transaction forming the fulcrum of the respondents action.

In his short, response to the appeal under a sole issue, which is whether the trial judge was right having held that Appellants preliminary objection could not be determined at the preliminary stage without calling evidence, it was contended for the respondent that the learned trial judge was right to have arrived at such a decision, and relied on the decision of Rhodes-Vivour in Oni vs. Cadbury (2016) 9 NWLR (pt. 1516) 80 @ 107. He contended that since no evidence was led at the trial Court, and since all the Court had to look at was the statement of claim, no evidence had been adduced at that stage. He referred to the amended statement of claim by the claimant, insisting that the transaction before the parties was grounded in partnership as against the assertion of the appellant that respondent was a money lender. Alluding to the provisions of the Money Lenders law, particularly Section 2 thereof, counsel submitted that the law does not apply to the respondent in any way, and urged the Court to

make a careful perusal of the object clause of the Memorundam of Association of the respondent company, and to hold that the appellants claims as to the transaction being that of money lending or banking business unsupportable, but rather a lawful transaction into a partnership or joint venture of buying and marketing petroleum products. He insists that the respondent is neither a money lender nor a bank, and urged the Court to so hold.

In the reply brief filed, Mr Oniyide opined that all submissions relating to the Money lenders Law of Kwara State as well as the Banks and other Financial institutions Act, Laws of the Federation of Nigeria 2004 has been addressed in the appellants brief of argument. He then concluded by asking the Court to dismiss the preliminary objection, and also to allow the appeal.

Let me remind myself of what the Supreme Court said in the case of Odom vs. PDP & 2 Ors (2015) SC 395/2013:

The purpose of an appeal is to find out whether on the state of pleadings, evidence and applicable law the former Court had come to the right decision in relation to the reliefs canvassed in the matter

Courts intervention is sought. Indeed it is not a new action but a continuation of the very dispute in the original action. An appeal therefore remains a complaint against a decision arising from the matter in dispute. This explains why a party is not permitted on appeal to change the case he made right from the trial Court otherwise the party would be allowed to appeal against what had not been decided against him. The Court is only empowered to deal with matters duly canvassed at and determined by the Court from which the appeal arises.”

One salient question where answered settles this appeal. It is whether the lower Court was right or wrong in holding that: whether the transaction entered between the appellant and the respondent, was the act of a money lender, or that of a banker as contended by the appellant, or a simple business transaction as the respondent would want us to believe, can only be determined by evidence at the trial of the case.

In that regard, I have given the submissions of the learned counsel on the point all due consideration. The position of the appellant and that of the respondent is well understood by me.

The appellant now complains that the transaction between the respondent and the appellant, that culminated in the instant appeal is illegal, thus robbing the lower Court of the jurisdiction to hear the suit brought by the respondent in that regard. Appellant relied heavily on the contents of the statement of

claim, particularly paragraphs 3 9 thereof.
The holding of the Apex Court in the case of the case of Oni vs. Cadbury (supra) cited by the appellants is most illuminating. It reads;
In deciding whether a Court has jurisdiction to hear a matter, the Court should examine the plaintiff/claimants pleadings and no other document. It is those pleadings that determines jurisdiction.”
My clear understanding of the crisp but terse statement of the law by the apex Court, is that the examination to be embarked on by the Court is limited to the statement of claim filed by the plaintiff. It does not admit of the examination of any other process in that regard. Let me reproduce paragraphs 3 9, and paragraph 33 of the respondents statement of claim for ease of reference:
3. The claimant avers that sometimes in October, 2016 she entered into an agreement with the defendant to invest the sum of Ten Million Naira (N10,000,000.00) only into the business of the defendant which is repayable at the end of termination of the investment.
4. The claimant avers that the defendant agree to be paying 8.5% monthly as interest on the Ten

Million Naira (N10,000,000.00) only invested into the business of the defendant.
5. The claimant avers that she paid the sum of Ten Million Naira (N10,000,000.00) only into the account of the defendant on 12th October, 2016 which commenced the investment as agreed by the parties, and defendant issued receipt and purchase order evidencing the payment. The claimant shall rely on these two documents (the receipt and purchase order) at the trial. The claimants account statement with the Heritage Bank from 1 Oct, 2016 to 21 September, 2017 showing the transfer of Ten Million Naira (N10,000,000.00) only from claimants account to the defendants account is hereby pleaded.
6. The claimant avers that the due date for payment of 8.5% interest on the Ten Million Naira (N10,000,000.00) only as agreed by the parties is on 12th day of every other month (i.e. 30 days from the date of investment).
7. The claimant avers that the total interest accrue at 8.5% on her investment at the defendants business organization as at 12th October, 2017 is as follows:
The due date percentage interest Agreed Amount
November 12th, 2016 –

8.5% = N850,000.00
December 12th, 2016 – 8.5% = N850,000.00
January 12th, 2017 – 8.5% = N850,000.00
February 12th, 2017 – 8.5% = N850,000.00
March 12th, 2017 – 8.5% = N850,000.00
April 12th, 2017 – 8.5% = N850,000.00
May 12th, 2017 – 8.5% = N850,000.00
June 12th, 2017 – 8.5% = N850,000.00
July 12th, 2017 – 8.5% = N850,000.00
August 12th, 2017 – 8.5% = N850,000.00
September 12th, 2017 – 8.5% = N850,000.00
October 12th, 2017 – 8.5% = N850,000.00
Total = N10,200,000.00
8. The claimant avers that the total interest accrued on her investment as at October, 12th 2017 is 12 months at 8.5% which amount to Ten Million Two Hundred Thousand Naira (N10,200,000.00) only.
9. The claimant avers that the total refund to be made by the defendant to her (the claimant) is Twenty Million, Two Hundred Thousand Naira (N20,200,000.00) only as at 12th October, 2017 being the total of principal sum of (N10,000,000.00) and monthly accrued interest (N10,200,000.00) altogether.

Obviously the lower Court took a hard look at the paragraphs reproduced, and in its judgment at page 131 of the record held that:<br< p=””>

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There is nothing before me in this case to show that the claimant is in the business of receiving deposit on any kind of account. Indeed the claimant is not shown to be operating either current or saving accounts on behalf of its customers into which such customers may deposit money. Is my view therefore that the claimant is neither a money lender nor a bank and neither has it held itself out to be either of these, and I so hold.”

Clearly, this holding by the lower Court is what irritated the appellant, leading to his filing the instant appeal. Mr Oniyide referred us to the holding of the case of FABS Ltd vs. Ibiyeye (2008) 14 NWLR (pt. 1107) 375 @ 404 as to what constitutes an illegal contract; i.e. where the subject matter of the promise is illegal or where the consideration or any part of it is illegal. I totally agree with him. He also referred to the provisions of Section 66 of the Banks and other financial institutions Act, (BOFIA) and Section 2 of the Money Lenders Law of Kwara State 2006. I have carefully studied the sections of the two statutes referred to me, and equally studied in minute detail the paragraphs of the respondents

statement of claim, particularly paragraphs 3 9 thereof. The lingering question remains whether the trial Court was right to have held that the claimant was neither a money lender nor a bank in the circumstance of the case.

on any kind of account, and or operating current or saving accounts on behalf of customers, the claimant cannot be appropriately described as a bank. I think he is absolutely correct. Going by the definition of the word bank in the case of FMBN vs. NDIC (supra), that a bank is an organization or place that provides financial service, and upon a proper appreciation of the Articles and Memorandum of Association of the claimant, now respondent, the respondent does not fall within the definition of what is a bank. I am not unaware of the provisions of Sections 58 and 59 of BOFIA, which criminalized any financial business without a valid license, in particular, where the association engages in soliciting and accepting money deposits from the public as a business concern, and for which no action can arise from such an illegal cause. See Ochedi & Ors vs. CBN & Ors (2018) LPELR 45316(CA). I however agree with the respondent that the transaction giving rise to the instant action cannot be described as a criminal transaction, a banking transaction, nor can it be stated that the claimant held himself out as a bank, and I so hold.

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A person engaged in other businesses who out of sympathy or pressure as in this case lends money to his friend to resuscitate his ailing business should not by any stretch of imagination be termed money lender under the law aforesaid. I seem to agree with the view expressed by Farewell J., in Lintch Filed vs. Dreyful (1906) 1 KB 554 @ 559 that:
The act was intended to apply only to persons who are really carrying on the business not to person who lend money as incidental business or to a few friends.”
The learned jurist proceeded to adopt the reasoning of my Lord of the Court of Appeal in length:
though not binding authority, I agree that the view so expressed represents the correct position of the law in this matter. I am always not comfortable at the practice where a party after seeking and obtaining money from a friend for resuscitation of his ailing or dwindling business will turn around to rely on technicalities or loopholes in the law as a cover to absolve himself from contractual obligations by putting up a defense under Money Lenders Law. As done by the appellants in this case this is pes-simi exempli of business

relations and this Court would not lend support for such a party to bite the finger that fed him and deprive him of his hard earned money. A man who, with his eyes open and without the other party committing any fraud against him, enters into an agreement with another, should be prepared to abide by the terms of the agreement illegal or otherwise un-enforceable in law. I cannot allow the appellants, after collecting money from the respondent to do business, to now turn around to plead the Money Lenders Law in order to escape the refund of the said money as governed by Exhibit A between them. It is on this note that I agree with the learned trial Judge that based on the pleadings and the evidence before the Court, the respondents are not Money Lenders under the Money Lenders Law of Kaduna State (Supra). According to Exhibit A is not governed by the Law.
My Lords, though I am not bound by the above exposition of the law, I agree that the statement represents the law and as such permit me to adopt same as mine. As earlier pointed out, the appellants have stated that the respondent is not a money lender, how can the provisions of

the money lenders law be applicable to him.
In his concurring contribution, Peter Odili JSC, had this to say:
Also a nonstarter, assuming the condition precedent for raising the matter of the contracts illegality was in place, is the fact that the appellants having effectively derived the benefit of the transaction leading to the suit subject matter of this appeal are estopped from disclaiming their non-obligation on account of the transaction being an illegal one. Apart from the reprehensible nature of the denunciation by them at this late hour, the law of contract has not given them the leg to be so favored. I rely on Veritas Insurance Co. Ltd vs. Citi Trust Investments Ltd (1993) 3 NWLR (pt. 281) 349; Ibrahim vs. Osim (1988) 3NWLR (pt. 82) 257.
I adopt the reasoning and the conclusions reached by their Lordships, in determining the question in the present appeal. I hold the humble but firm view that the transaction between the appellant and the respondent was a simple contract in the nature of the business akin to the case now generally referred to as the money lenders case. Therefore against the backdrop of the

decision in the case just referred to, I have no hesitation resolving the issue before the Court in tune with that posited by the learned counsel for the respondent and the lower Court to the effect that the claimant is neither a money lender nor a bank and neither can it be said that it held itself out to be either of the two, and I so hold.

The inevitable conclusion is that the appeal is lacking in merit, and I accordingly dismiss the same. The respondent shall have costs assessed at N50, 000.00 only.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother Barka, JCA had served upon me the draft of the Judgment just delivered. I concur with the reasoning therein, to the conclusive effect that the instant appeal is lacking in merit. Hence, having adopted the said reasoning as mine, I too hereby dismiss the appeal and abide by the terms of the judgment.

BALKISU BELLO ALIYU, J.C.A.: My learned brother HAMMA AKAWU BARKA J.C.A. has availed me with the draft of the judgment just delivered. I am in total agreement with the reasoning and conclusion reached by His Lordship in dismissing the preliminary

objection of the Respondent for lacking in merit. I also find no merit in the objection of the Respondent and it is hereby dismissed by me. I am also in agreement with the lead judgment in respect of the main appeal and I agree with the lead judgment that the appeal lacks merit. It is hereby dismissed by me. I abide by the order of cost made in the lead judgment.

Appearances:

Taiye Oniyide with him, Temiloye OmoleFor Appellant(s)

E.O Ilori with him, A. J. OpalekundeFor Respondent(s)

Appearances

Taiye Oniyide with him, Temiloye OmoleFor Appellant

AND

E.O Ilori with him, A. J. OpalekundeFor Respondent