MRS NNENNA IDIKA V. MR. ROMANUS UZOUKWU (2007)

MRS NNENNA IDIKA V. MR. ROMANUS UZOUKWU

(2007)LCN/2515(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 31st day of October, 2007

CA/PH/187/2005

RATIO

DEFINITION OF WORDS – “MONEY LENDER” : MEANING OF THE PHRASE “MONEY LENDER”

“The legal definition of the term “money lender” is contained in section 2 of the Money Lenders Law. This supersedes any other meaning whether ordinary or special that may be ascribed to it. Moreso that the term in a similar provision as sections 2 and 3 of the said law have been judicially defined, interpreted and applied by this court’s two decisions; namely Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt. 281) 349 and Eboni Finance and Securities Ltd. v. Wole-Ojo Technical Services Ltd. (1996) 7 NWLR (Pt. 461) 464. What came out clearly in both decisions is as follows: (i) For a person to be a “money lender”, he must have a business the primary object of which is money lending, (b) The mere fact that a person lent out money at interest does not automatically make him a money lender so as to bring him within the ambit of the Money Lenders Law” PER GALADIMA, J.C.A.

APPEAL – BRIEF OF ARGUMENT : WHETHER THE ISSUES FOR DETERMINATION IN THE BRIEF OF ARGUMENT OUGHT TO BE DISTILLED FROM THE APPELLANT’S GROUND OF APPEAL

“It’s trite that issues formulated for determination in brief of argument ought to ordinarily be distilled from the appellant’s ground of appeal. Thus, where, as in the present case, an issue formulated in a brief (whether of the appellant or the respondent) does not specifically relate to any ground of appeal, such issue becomes rather defective and ought to thus be discountenanced. See Dibia Maka v. Osakwe (1989) 3 NWLR (Part 107) 101; Anaedobe v. Ofodile (2001) FWLR (Pt. 45) 718; (2001) 5 NWLR (Pt.1052) 531, Eke v. Military Administrator, Imo State (2007) All FWLR (Pt. 381) 170 at 1740 paragraphs A- B and F – G.; (2007) 13 NWLR (Pt.1052) 531” PER IBRAHIM MOHAMMED MUSA SAULAWA J.C.A.

EVIDENCE – ASSERTION OF FACTS : WHETHER HE WHO ALLEGES THE EXISTENCE OF A FACT MUST PROVE THE TRUTH THEREOF

“It’s trite that he who asserts the existence of a fact must prove the truth thereof in Order to succeed in the action, and a paragraph in a pleading which is not proved on the preponderance of doubt is of no avail to that party. See Fyneface v. Fyneface (2007) 9 NWLR (Pt. 1040) 588 at 607 paragraphs D – F” PER IBRAHIM MOHAMMED MUSA SAULAWA J.C.A.

JUSTICES

SULEIMAN GALADIMA Justice of The Court of Appeal of Nigeria

MOHAMMAD LAWAL GARBA Justice of The Court of Appeal of Nigeria

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

Between

MRS NNENNA IDIKA BY HER ATTORNEY MISS ADA UDONSI Appellant(s)

AND

MR. ROMANUS UZOUKWU Respondent(s)

GALADIMA, J.C.A. (Delivering the Leading Judgment): The appellant herein, as the plaintiff in suit No. HOW/161/97 commenced an action against the defendant now the respondent in the Owerri High Court No. 8 of Imo State presided over by OHAKWE J. In the claim endorsed at the back of the writ of summons and the statement of claim, the plaintiff claims as follows:
“A. Refund of N195,000 (One hundred and Ninety-five thousand Naira) being the total principal sum lent to the Defendant by the plaintiff made up as follows:
(i) N35,000.00 (Thirty-five thousand Naira) under the 1st contract.
(ii) 20,000.00 (Twenty thousand Naira) under the 2nd contract.
(iii) 40,000.00 (Forty thousand Naira) under the 3rd contract; and
(iv) 100,000. 00 (One hundred thousand Naira) under the 4th contract.
B. N176,000.00 (One hundred and seventy six thousand Naira) being the total sum of monthly interest due under the 1st, 2nd and 3rd contracts from and including the month of November 1995 to and including the month of April, 1997 made up as follows:
(i) N68,400 (Sixty-eight thousand, four hundred Naira) for the said period under the 1st contract.
(ii) N36,000.00 (Thirty-six thousand Naira) for the said period under the 2nd contract.
(iii) N72,000.00 (Seventy-two thousand Naira) for the said period under the 3rd contract.
C. N15,000.00 (Fifteen thousand Naira) being the agreed interest under the 4th contract.
D. Order of court mandating the defendant to pay to the plaintiff the agreed interests on the various debts under the 1st, 2nd, and 3rd contracts respectively from and including the month of May, 1997 till judgment is delivered.
E. Declaration that the defendant is liable to pay plaintiff as interest of N15,000.00 (Fifteen thousand Naira) per month on the last loan of N100,000.00, the 4th contract from and including the month of December 1995 until judgment is delivered.
F. Order of court mandating the respondent to pay to the plaintiff monthly interest on the 1st, 2nd, 3rd and 4th loans under the various contracts respectively at the rates stipulated in the said contracts respectively from the date of judgment until the said principal sums are repaid back to the plaintiff.”
The defendant filed a statement of defence admitting paragraphs 4, 5, 6, 7, 8 and 11 but denying paragraphs 9, 10, 12, 14, 15, 18 and 19. During the hearing of the suit, plaintiff gave evidence as PW1 and called other witnesses.
The defendant gave no evidence neither did he call any witness, but rested his case on that of the plaintiff.
Both counsel for the parties addressed the trial court mainly on the issue of whether or not the transaction was illegal in view of the provisions of Money Lenders Law Cap. 84, Laws of Eastern Nigeria 1963 applicable in Imo State. On 26th May, 2003, the learned trial Judge delivered his judgment and held that the contracts between the parties was in breach of the provisions of the said Money Lenders’ Law as the monies were lent by the appellant who had no licence to do so and so was illegal and therefore unenforceable. He further held that the four transactions qualified the appellant as a person engaged in the business of money lending which therefore rendered her subject to the prohibitive provisions of the Money Lenders Law.
Aggrieved with this decision, the appellant appealed to this court on one ground of appeal. The parties filed and exchanged their respective briefs of argument. In the appellant’s brief filed on 15/6/2005 sole issue was formulated for determination as follows:
“Whether the learned trial Judge was right in holding that the exceptions in section 2(c) of the Money Lenders Law Cap. 84 Laws of Eastern Nigeria 1963 does not avail the appellant.”
On 2/5/2006, appellant filed a Reply Brief of argument. On 19/9/2007 when the appeal came up for hearing, learned counsel for the appellant Chidi Nworka, Esq adopted both briefs. On the other hand the respondent though in court, his counsel who was put on notice was absent without reason. Since respondent’s brief has been filed, in view of the provision of Order 6 rule 9(5) of the Court of Appeal Rules 2002, it will be treated as having been duly argued.
In response to the argument contained in the respondent’s brief, the learned counsel for the appellant in his reply brief drew our attention to the defective brief of the respondent. I agree with him. He made valid observations. The respondent did not file a cross-appeal and so presented no grounds of appeal for consideration of this court. Curiously, the respondent, yet, out of one ground of appeal filed by the appellant, adopted appellant’s first issue and went further to formulate one additional issue. While in practice, the respondent can adopt the appellant’s issue for determination, he cannot formulate more issue for determination than the number of grounds of appeal. This is trite and long been held in a plethora of cases that this practice is prolix and bad. I have taken a hard look at the respondent’s second issue. It cannot be said to arise from the sole ground of appeal. The appellant is challenging the trial court’s decision that by dint of-the four lending contracts between the parties, the appellant is not availed by the provision of section 2(a) of the Money Lenders Law Cap 84, Laws of Eastern Nigeria, 1963 applicable in Imo State. It is well settled that an issue for determination ought to arise from the grounds of appeal. Any issue which does not arise from the grounds of appeal is incompetent and must be struck out. It is for this reason that the second issue formulated by respondent is hereby struck out. It is only in accord with common sense that argument based on incompetent issue cannot but itself be incompetent. It is noted that learned counsel for the respondent in his brief argued his two issues together. This is so because the entire argument has been based on the two interwoven issues lased together by the respondent. This is again tainted by the incompetence of the second issue. I agree with the appellant’s counsel that the blue pencil rule cannot be applied to save the respondent’s brief as it is not possible to decipher or sift what part of the argument to ascribe to which issue. It is for this reason I consider that the argument based on the incompetent issue cannot stand.
As I have observed the crucial question, the answer to which resolves the appellant’s sole issue, is that whether in view of the pleadings and evidence led, as well as the provisions of sections 2(c) and 3(3) of the Money Lenders Law (supra), by dint of the four transactions in issue the appellant herein is a money lender.
Section 2(c) provides thus:
“2. In this law-
“money lender” includes 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, whether or not he also possesses or owns property or money derived from sources other than the lending of money and whether or not he carries on business as a principal or as an agent: but shall not include –
(a) …
(b) …
(c) Any person bona fide carrying on the business of banking or insurance or bona fide carrying on any business, not having for its primary object the lending of money, in the course of which and for the purposes whereof he lends money …”
It can be seen clearly, from section 2 of the Money Lenders Law (supra) that it defined in no uncertain terms what the term “money lender” means or rather who a money lender is. Taken as it is without the exceptions listed in paragraphs (a) – (c) thereof, a money lender is simply any person whose business is money lending. In paragraph 17 of the statement of claim the appellant pleaded that she does not have as her business money lending. Same was admitted and not denied by the respondent in his statement of defence. That fact was therefore established and evidence need not be led on same. Besides, appellant gave evidence of this fact on records. This evidence was neither challenged nor contravened by the respondent.
In the case of Kalu v. Odili (1992) 6 SCNJ (Pt. 1) 76 at 119; (1992) 5 NWLR (Pt.240) 130, it was held by the Supreme Court thus:
“Where the definition section (of a statute) has defined a particular word or expression, the meaning so given to the word, unless the con otherwise requires, shall be used throughout that statute.”
Also in Egbe v. Yusuf (1992) 6 SCNJ (Pt. 2) 263 at 275; (1992) 6 NWLR (Pt.245) 1 at 16 the Supreme Court again held:
“It is the general principle of interpretation of statutes and instruments that in the absence of an ambiguity, no exposition shall be made which is opposed to the express words of the statute or instrument. A court of law will not put any interpretation on any enactment which is contrary to its plain meaning.”
This court, on its part, quite aptly stated in Mbonu v. Nwoti (1991) 7 NWLR (Pt. 206) 737 at 750, thus:
“Therefore in the interpretation of its (Act) provisions, they must, as a cardinal principle be given their ordinary grammatical meaning. It is not proper to read into an enactment an exception which it has not expressed and which will thereby deprive any person of any protection or right or recourse thereunder.”
By the authority of Kalu v. Odili (supra) the term “money lender” in so far as it intended to activate the application of the Money Lenders Law, is limited to the definition contained in section 2 thereof. When that definition is given its plain, literal or ordinary meaning, as directed by the apex court in Egbe v. Yusuf (supra) and this court in Mbonu v. Nwoti (supra) then in view of the pleadings and evidence, the appellant cannot be said to be a money lender and that Law cannot apply to her. To hold otherwise would amount to reading into that enactment what it has not provided. Paragraph 2(c) of section 2 of the said Money Lenders Law reproduced above clearly excluded “any person bona fide carrying on any business not for its primary object the lending of money … ” As pleaded and given in evidence, appellant was only an employee of Progress Bank (Nig.) Plc. He did not, whether, before or since the transactions with the respondent, herein, carry on any business which engaged in the giving of loans at interest. She was engaged in no other business than her employment. She certainly did not have any business whose primary object was money lending. This piece of evidence was not controverted. Respondent did not lead any evidence to support the feeble pleading he put up. It is my humble opinion that appellant’s pleading and evidence remained unchallenged and therefore firmly established. The conclusion therefore is that the appellant proved “the contrary” to the presumption that she is by the dint of the transaction between herself and the respondent, a money lender. Section 3(3) of the said Money Lenders, therefore which provides that any person who lends money at interest shall be presumed to be a money lender until the contrary is proved. I do not see how, by any stretch of imagination, the appellant can be regarded as a money lender. She has proved that she is not.
Where words or expressions have been legally or judicially defined their ordinary meaning will surely give way to their legally or judicially defined meaning. The legal definition of the term “money lender” is contained in section 2 of the Money Lenders Law. This supersedes any other meaning whether ordinary or special that may be ascribed to it. Moreso that the term in a similar provision as sections 2 and 3 of the said law have been judicially defined, interpreted and applied by this court’s two decisions; namely Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt. 281) 349 and Eboni Finance and Securities Ltd. v. Wole-Ojo Technical Services Ltd. (1996) 7 NWLR (Pt. 461) 464. What came out clearly in both decisions is as follows: (i) For a person to be a “money lender”, he must have a business the primary object of which is money lending, (b) The mere fact that a person lent out money at interest does not automatically make him a money lender so as to bring him within the ambit of the Money Lenders Law. The learned trial judge, at page 53 of the records attempted to distinguish the EBONI FINANCE case (supra) from the instant case thus:
“In that case the primary object of the appellant’s business is Financial Services and not money lending” while in the instant case the plaintiff held himself out as carrying on the business of money lending …
I agree with the learned counsel for the appellant that the learned trial Judge did not find any evidence to support this finding. The finding is not supported by either the pleadings or evidence led. It is trite law that a finding of fact which is not hinged on any averment in the pleadings is improper, perverse and unsustainable. See Oviawe v. Integrated Rubber Products (Nig.) Ltd. (1997) 3 SCNJ 29 at 30; (1997) 3 NWLR (Pt.492) 126.
A statute must not be interpreted in such a manner as to enable it to be used as an instrument of fraud. See Kotoye v. Saraki (1994) 78 SCNJ (Pt. 3) 524 at 564, (1994) 7 NWLR (Pt.357) 414 and Chieke v. Olusoga (1997) 3 SCNJ 101 at 112 – 113, (1997) 3 NWLR (Pt.494) 390. The courts, particularly this court in the Eboni Finance case (supra) at page 478 per ACHOLONU, JCA (as he then was, of Blessed memory) has aptly captured this scenario thus:
“Another point in this case is this: As the 1st and 2nd respondents have received the money, might equity not come to the rescue for unjust enrichment. I think the principle of unjust enrichment which unfortunately is not well developed in English Law as both in U.S. and Scotland should, of necessity be nurtured to growth in a new and complex society like ours where people can easily at a whiff of breath resort to law to ward off debt or other enrichments they have had, at the expense of the other. This is a specie of constructive trust which is an instrument which the court of equity may employ to prevent undue enrichment. I believe that when a person is holding tight that which is subject to equity he should not be allowed to hold it firmly. Therefore where a party unjustly enriches himself at the expense of the plaintiff he must be made to disgorge it. Our legal system should at this instance lean more to U.S. law on this principle than in England where the principle is yet to assume a wide dimension. Thus Lord Porter in Reading v. A.-G. (1951) A.C. 507-513-4 said: “My Lords the exact status of the law of unjust enrichment is not yet assured. It holds a predominant place in the Law of Scotland and I think of the United States.” The premise behind the doctrine of restituting an unjust enrichment is that justice be done. That being the case, it seems to me that we ought to lean overly to U.S. legal practice to effectuate justice. Therefore in consonance with the principles enshrined in the restitution remedy shall be available whenever the defendant is unjustly enriched at the expense of the plaintiff. In this case, respondents must be made to vomit out what they have taken (unjustly).”
I am greatly persuaded by the above pronouncement to take a hard look into the circumstances of the instant case. The parties herein had a binding contract not in anyway tainted by fraud or illegality. The respondent did not deny that he enjoyed and benefited from the money he took from the appellant. The consideration offered to the appellant by the respondent for the money he received are the agreed interests he should pay, which interests the appellant would have earned had she lodged the money in the bank or invested it. This court will frown at an attempt made by the respondent to deprive the appellant of her principal sum and interests thereon under the misconception that the law that has by its own tenor clearly excluded her, at the same time applies to her. This is to allow the respondent to gloat over his unjust enrichment at the expense of the appellant.
It is in view of all that I have said above that I will allow this appeal. It is accordingly allowed. The judgment of the lower court is hereby set aside. I award costs in favour of the appellant assessed as N30,000.00.

GARBA, J.C.A.: A draft of the judgment written by my learned brother, GALADIMA, JCA was read by me. His views and reasons therefore admiringly set out by him, accord with mine and I just want to chip in a few words of support.
A perusal of the respondent’s brief which was annexed to the motion filed on 2nd March, 2006 as exhibit ‘A’ and deemed filed by the court shows a number of defects for which it eminently qualifies to be called a very bad and ineffective brief of argument. Apart from formulating more issues than the grounds of appeal, the only material or relevant issue related to the grounds of appeal filed by the appellant has so confusedly muddled up with another that is incompetent for being formulated outside the grounds of appeal in the argument. It will require legal forensic magic to distil such submissions in order to separate the good from the bad; the competent from the incompetent issues. There being no judicial magic, the court cannot and it is not its business to attempt to salvage the brief from its terminal defects by sifting through it. There is no such duty on the court which is entitled to strike out such a brief of argument. See Bereyin v. Gbobo (1989) 1 NWLR (Pt.97) 372 at 379-8; Globe Fishing Industries v. Coker (1990) 7 NWLR (Pt.162) 265; Borishade v. NBN Ltd. (2007) 1 NWLR (Pt.1015) 217 at 235.
I am in agreement therefore that the respondent’s brief of argument ought to be struck out of the appeal. The necessary legal consequence of striking out the respondent’s brief of argument is that the respondent has no valid response to the points or submissions of the appellant as contained in the appellant’s brief of argument. In law the respondent is deemed to have admitted all such points/submissions and so the appeal would be considered as uncontested by the court. See Order 6, rule 10 of the Court of Appeal Rule, 2002 (Now Order 17 rule 10 of the Court of Appeal Rule 2007) Akanbi v. Alatede (2000) 1 NWLR (Pt.639) 125, Fatokun v. Somade (2003) 1 NWLR (Pt.802) 431. The striking out of the respondent’s brief has the same effect as failure by the respondent to file the respondent’s brief in the determination of an appeal.
However, even in such a situation, the appellant is not automatically entitled to judgment merely because the respondent’s brief of argument was struck out and the respondent deemed to have conceded all the submissions in the appellant’s brief. This is because the appellant has to succeed on the merits of issue argued in the brief and not on the absence of or failure by the respondent to file a brief of argument. The court still owes a duty, which was ably discharged by my learned brother in the lead judgment, to consider and determine whether or not the appeal is sustainable. See John Holt Ventures v. Oputa (1996) 9 NWLR (Pt.470) 101; Sofolahan v. Folakan (1999) 9 NWLR (Pt.621) 86; Akas v. Manager and Receiver of Benjamin Anwadike (2001) 8 NWLR (Pt.715) 436 at 442; Ebe v. Ebe (2004) 3 NWLR (Pt.806) 215.
Merits abound both in law and equity as demonstrated in the lead judgment to wan-ant and amply justify the success of the appeal. For all the reasons stated therein, which I adopt as mine, the appeal is allowed by me in the terms thereof, including the order on costs.

SAULAWA, J.C.A. (DISSENTING): I have had the privilege of reading before now the lead judgment just delivered by my learned brother GALADIMA, JCA. However, with due respect to his Lordship, I have deemed it expedient to depart from the reasoning and conclusion reached therein.
The appellant had on 05/06/97 filed a suit No HOW/161/97 in the trial court of Imo State, holden at Owerri Judicial Division, Coram. C.I. Ohakwe, J; claiming against the Respondent a total sum of Five Hundred and Eighty One Thousand Four Hundred Naira (N581,400.00) being principal loans and (interests thereon) advances to the respondent by the appellant. By the statement of claim filed along with the writ of summons, the extent of the appellant’s claim against the respondents are to the following effect –
Wherefore the plaintiff claims against the defendant (sic) as follows:-
A. Refund of N195,000.00 (One Hundred and Ninety Five Thousand Naira) being the total principal sum lent to the defendant by the plaintiff, made up as follows:-
(i) N35,000.00 (Thirty Five Thousand Naira under the 1st contract.
(ii) N20,000. 00 (Twenty Thousand Naira) under the 2nd contract.
(iii) N40, 000. 00 (Forty (sic) Thousand Naira) under the 3rd contract; and
(iv) N100,000.00 (One Hundred thousand Naira) under the 4th contract.
B. One Hundred and Seventy Six Thousand, Four Hundred Naira (N176,400.00) being the total sum of monthly interests due under the 2nd and 3rd contracts from and including the month of November 1995 to and including the month of April 1997, made up as follows:
(i) N68,400.00 (Sixty Eight Thousand, Four Hundred Naira) for the said period under the contact.
(ii) N36,000.00 (Thirty Six Thousand Naira) for the said period under the 2nd contract.
(iii) N72,000.00 (Seventy Two Thousand Naira) for the said period under the 3rd contract.
C. Fifteen Thousand Naira (N15,000.00) being the agreed interest under the 4th contract.
D. Order of court mandating the defendant to pay to the plaintiff the agreed interests on the various debts under the 1st, 2nd and 3rd contract respectively from and including the month of May 1997 till judgment is delivered.
E. Declaration that the defendant is liable to pay plaintiff as interest of N15,000.00 ¢ (Fifteen Thousand Naira) per month on the last loan of N100,000.00 on the 4th contract, from and including the month of December 1995 until judgment is delivered.
F. Order of court mandating the defendant to pay to the plaintiff monthly interests on the 1st (sic), 2nd, 3rd and 4th loans under the various contracts respectively, at the rates stipulated in the said contracts respectively from the date of judgment until the said principal sums are repaid back to the plaintiff.
In response to the statement of claim, the respondent filed a statement of defence thereof on 22/3/99. After pleadings were filed and exchanged by both parties, the case was set down for hearing. Only one witness, in the person of Ada Udensi testified for the plaintiff/appellant. However, the defendant/respondent declined to call any witness.
At the end of the trial, judgment was delivered by the learned trial Judge on 30/07/03 to the effect, inter alia, thus-
“On the bindingness of the contract between the parties, it is agreed that parties are bound by contracts freely entered by them. A contract may be valid but may be unenforceable in law. The loan agreement entered between the plaintiff and the defendant can not be enforced in law by virtue of the fact that the plaintiff was in breach of section 4 of the money lenders Law Cap. 84 Laws of Eastern Nigeria. She had no legal authority to grant loans repayable with interest to the defendant. In view of the above reasoning, issue No 1, 2, and 3 are resolved in the negative. This action fails. The plaintiff’s claim in paragraph 19 of the statement of claim is dismissed. The plaintiff is to pay the defendant the sum of N3,000.00 as costs.
Not unnaturally, the appellant being dissatisfied with the decision of the trial High court, has appealed to this court upon one ground of appeal filed along with the notice of appeal on 09/09/03.
Instructively, both parties have filed and served their respective briefs of argument. In particular, the appellant had filed the brief thereof on 22/08/2006. On the other hand, the respondent’s brief was filed on 02/5/06, but deemed properly filed and served on 04/5/06. The appellant, in response thereto, filed a reply brief on 22/5/06.
Essentially, the appellant’s reply brief alleges that the respondent’s brief is defective on the ground that the two issues have been formulated in the said brief from the sole ground of appeal filed by the appellant. That, the respondent did not file a cross appeal and so presented no ground of appeal. That being the case therefore, the formulation of two issues by the respondent as against the sole ground of appeal contained in the notice of appeal, is prolix and bad. I think, I cannot agree more with that submission. It’s trite that issues formulated for determination in brief of argument ought to ordinarily be distilled from the appellant’s ground of appeal. Thus, where, as in the present case, an issue formulated in a brief (whether of the appellant or the respondent) does not specifically relate to any ground of appeal, such issue becomes rather defective and ought to thus be discountenanced. See Dibia Maka v. Osakwe (1989) 3 NWLR (Part 107) 101; Anaedobe v. Ofodile (2001) FWLR (Pt. 45) 718; (2001) 5 NWLR (Pt.1052) 531, Eke v. Military Administrator, Imo State (2007) All FWLR (Pt. 381) 170 at 1740 paragraphs A- B and F – G.; (2007) 13 NWLR (Pt.1052) 531.
I have no hesitation whatsoever in upholding the argument of the appellant’s learned counsel that the purported second issue of the respondent can not strictly speaking be said to have arisen from the sole ground of appeal. For ease of reference, I have considered it rather appropriate to reproduce the single ground of appeal with the particulars thereof as follows:-
3. GROUNDS OF APPEAL
A. GROUND ONE
ERROR OF LAW
The learned trial Judge erred in law when he held that the four (4) different contracts between the plaintiff and defendant were enough to qualify the plaintiff as a person to whom the money lender’s law applied.
PARTICULARS OF ERROR
(i) Undisputed evidence showed that at all material times, the plaintiff was an employee of Progress Bank Plc.
(ii) Unchallenged and uncontrovetted evidence proved that the plaintiff never previously or since contracts with the defendant engaged in the business of money lending.
(iii) Clear unchallenged evidence that the plaintiff did not have a business in the main object or even any object at all of which is the lending of money at interest.
(iv) Yet the trial court held that these four contracts in issue removed the plaintiff from the exception provided by section 2 Money Lenders Law, CAP. 84, Laws of Eastern Nigeria 1963 applicable in Imo State, and thereby occasioned a miscarriage of justice.
It’s trite law as alluded to above, that an issue for determination formulated in a brief of argument must specifically be distilled from grounds of appeal. Thus, any issue which is not distilled from a ground of appeal is incurably defective, incompetent, and ought to be discountenanced. See Eke v. Military Administrator Imo State (supra) at 1740 paragraphs A – B and F – G; Biocon Agrochem (Nig.) Ltd. v. Kudu Holdings (2000) 12 SC 1272 at 285; (2000) 15 NWLR (Pt.691) 493; Aladeto v. Nwapi (2007) All FWLR (Pt. 375) 591 at 608 paragraphs A – B.
It’s pertinent that the respondent’s 2nd issue has undoubtedly amounted to proliferation or multiplicity of issue (more than the grounds of appeal) is abhorrent and thus liable to be discountenanced. See University of Ilorin v. Oluwadare (2003) 3 NWLR (Pt. 808) 557; Padawa v. Jatau (2003) 5 NWLR (Pt. 813) 247; Okoro v. State (2007) 2 NWLR (Pt. 1019) 530 at 541, paragraphs G – H, respectively.
As alluded to above, the respondent’s issue No.2 is not only prolix but also alien to the sole ground of appeal. Thus, the respondent’s issue No.2 in question is hereby discountenanced. However, the above reasoning notwithstanding, I do not appreciate, let alone uphold, the view as expressed by the appellant’s learned counsel to the effect thus –
Learned counsel for the respondent in his brief argued his two issues together. His entire argument being therefore a result of the inter hearing or lasing together of his issues 1 and 2 is equally tainted by the incompetence of issue.
2. The blue pencil rule cannot even be applied to save the respondents brief as it is impossible to decipher what part of the argument to ascribe to which issue. The argument should therefore, it is submitted, go down along with the incompetent issue. ”
In my considered view, the respondent having adopted the appellant’s sole issue as formulated in the brief thereof, is entitled to make his submissions there upon uninhibited by this court. Thus, the fact that “the entire argument” of the respondent has most unfortunately become “a result of the interweaving or lasing together of his issues 1 and 2,” is not sufficient to warrant this court to deny him the right to be heard.
It’s instructive that it behoves upon this court to, in the course of determining this appeal, sift the chaff from the grains, as it were, and patiently cautiously, but rather critically, analyze the argument of the learned counsel as presented in the respective briefs thereof. In the circumstances, I am of the view that the instant case is a typical example of a situation in which the court is cherishing enjoined to apply the blue-pencil test or rule with a view to according justice to the respondent. And I so hold.
It’s trite that the blue pencil (otherwise known as severability) test or rule, is a judicial standard for deciding whether to invalidate the whole contract (or document, as the case may be) or only the offending words therein. Under this principle, only the offending words generally liable to be invalidated where it’s possible to delete them simply by running a blue pencil through, as opposed to changing, adding, or rearranging words. See Black’s Law Dictionary, 7th Edition, 1999 at page 166.
Instructively, the sole issue for the determination of this appeal raises the question of whether or not the learned trial judge was right in holding that the exceptions in section 2(c) of the Money Lenders Law CAP. 84, Laws of Eastern Nigeria, 1963 does not avail the appellant.
In his submission, the appellant’s learned counsel alluded to the provisions of section 2(c) of the Money Lenders Law, CAP. 84 (supra); Kalu v. Delili (1992) 6 SCNJ (Pt. 1) 76 at 119; (1992) 5 NWLR (Pt.240) 130, Egbe v. Yusuf (1992) 6 SCNJ (Pt.2) 263 at 275; (1992) 6 NWLR (Pt.245) and Mbonu v. Nwoti (1991) 7 NWLR (Pt. 206) 737 at 750, respectively reading the general principles of interpretation of statutes and instruments.
According to the learned counsel, by virtue of section 2 of the Money Lenders Law CAP 84 (supra); the term money lender is simply any person whose business is money lending; “that the appellant does not have as her business money lending”. That, this fact was clearly pleaded in paragraph 17 of the statement of claim, which was not denied by the respondent. See Ajuwon v. Akanni (1993) 12 SCNJ 32 at 50 – 51; (1993) 9 NWLR (Pt.316) 182.
It was submitted that the appellant falls into the category of persons expressly exempted by section 2(2)(a)(e) of the Money Lenders Law CAP. 84 (supra) from being considered as money lenders. See Abasi v. State (1992) 10 SCNJ 113 at 131; (1992) 8 NWLR (Pt.260) 383; Matari v. Dan Galadima (1993) 2 SCNJ 122 at 135; (1993) 3 NWLR (Pt.281) 266. It was reiterated that- “Appellant was only an employee of Progress Bank. She certainly did not have any business whose primary object was money lending. The number of times she lent money to this one respondent cannot raise the presumption that she is a money lender; they are not enough to deprive her of the protection provided by section 2(c). On whether section 3(3) of the Money Lenders Law Cap. 84 (supra) can be applied in the instant case, the counsel submitted to the contrary.”
See Ajuwon v. Akannu (supra); Ibeanu v. Ogbeide (1998) 9 SCNJ 77 at 86; (1998) 12 NWLR (Pt.576) 1; Acme Builders Ltd. v. Kaduna Water Board (1999) 2 SCNJ 25 at 5; (1998) 12 NWLR (Pt.576) 1; Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt.281) 349; Eboni Finance and Securities Ltd. v. Wole-Ojo Technical Service’s Ltd. (1996) 7 NWLR (Part 461) 464, respectively.
Thus, it was argued that (a) for a person to be said to be a money lender, he must have a business the primary object of which is money lending; and (b) the mere fact that a person lent out money at interest does not automatically make him a money lender as to bring him within the ambit of the money lenders Law (supra).
It’s further argued that the finding of the trial learned Judge at page 53 lines 26 – 28 of the record, to the effect that the appellant held herself out as carrying on the business of money lending is not hinged on any averment and thus improper, perverse and unsustainable. See Oviawe v. Integrated Rubber Products (1997) 3 SCNJ 29 at 40; (1997) 3 NWLR (Pt.492) 126; Kotoye v. Saraki (1994) 7 – 8 SCNJ (Pt. 3) 524 at 564; (1994) 7 NWLR (Pt.357) 414; Chieke v. Odusoga (1997) 3 SCNJ 101 at 112 – 113; (1997) 3 NWLR (Pt.494) 390; Eboni Finance and Securities v. Wale-Ojo Technical Services Ltd. (supra) at 478, respectively.
It was finally submitted that the contract between the parties was a binding and untainted one. That, it would be most unfair and unjust to deprive the appellant of her principal sum and interests thereon under the misconception that a Law (which has by its own tenor excluded her) applies to her.
On the other hand, the submission of the respondent’s learned counsel on the sole issue in question could be out lined thus:
1. That, the learned trial Judges, findings were borne out of both the pleadings and the evidence adduced to the effect that the series of loans agreement regarding the loans and interest thereon reduced to writing were money lending transactions. See paragraphs 5 – 11 of 8 the statement of claim, as well as paragraphs 3 -6 and 8 of the statement of defence at pages 5, lines 13 – 14; 52, lines 8 – 10 and 54, lines 3 -7 of the record.
2. That, the findings of the learned trial Judge that the appellant carried on the business of money lending with interest without licence on several occasions contrary to section 5 (b) of Money Lenders Law (supra) is also supported by both the pleadings and evidence. See paragraph 5 of the statement of claim and paragraphs 3 of the statement of defence; the evidence of PW 1 at page 36 lines 5- 10, 26 – 30; 37, lines 1-5; 54, lines 3-25 of the record, respectively.
The very well known case of Nwosu v. Aladu (1965) 9 ENLR 117, was also cited and relied upon to the effect that an isolated case of lending to a friend with small interest cannot be regarded as carrying on business of money lending. However, it was argued that Nwosu’s case (supra) is different from the instant case; the reason being simply that the appellant in the instant case has engaged in four separate lending transactions with the respondent strictly on interest basis. That the appellant in her brief laboured in vain to take a cover under the exception provided in section 2(c) of the Money Lenders Law (supra). That, it’s futile and too late for her to do so.
It’s argued that the provision in section 2(c) of the money Lenders Law is plain, thus the learned trial Judge did not need to go into the gymnastics or interpretation of statutes. See A-G., Lagos State v. A-G., Federation and Ors (2005) MJSC 1 at 104; (2004) 18 NWLR (Pt.904) 1. That, the mischief of the Law makers of the Money Lenders Law, Cap. 38 (supra), was intended to save and safeguard the poor and innocent members of the public from the hands of cut- throat, greedy persons who are likely to lend out money at high interest rate if not checked. See Societe BanCaive (Nig.) Ltd. v. M.A De Lluch (2005) 1 MJSC 187 at 2002 – 2003; (2004) 18 NWLR (Pt.905) 341; Thirwell v. Oyewumi (1990) 4 NWLR (Pt. 144) 384 at 400.
In conclusion, the respondent’s learned counsel submitted that”
The trial court was right in holding the exception or proviso under section 2(c) of the Money Lenders Law do (sic) avail the appellant and moreover, the trial court Judge was right in holding that the contract entered (sic) by the parties in this case is unenforceable in the light of the provisions of statute i.e. The Money Lenders Law, Cap. 84 of Eastern Nigeria Laws applicable in Imo State.
It’s trite that he who asserts the existence of a fact must prove the truth thereof in Order to succeed in the action, and a paragraph in a pleading which is not proved on the preponderance of doubt is of no avail to that party. See Fyneface v. Fyneface (2007) 9 NWLR (Pt. 1040) 588 at 607 paragraphs D – F.
It’s not in doubt as per the pleadings of both parties as well as the evidence so far adduced by the appellant vide the only witness thereof (PW1), that the appellant had on four different occasions granted loans at interest rates to the respondent. See especially, paragraphs 5, 6. 7, 8, 9 and 10 of the statement of claim which are to the effect that the appellant had granted various sums of money as loans at interest rates thus-
(i) On 31/01/94: the sum of Thirty five Thousand Naira (N35,000.00) payable at a monthly interest of N3,600.00 until the principal sum is paid with effect from 01/02/94.
(ii) On 01/10/9: the sum of Twenty Thousand (N20,000.00) payable at a monthly interest of Two Thousand Naira (N2,000. 00) with effect from 01/10/94 until the principal was paid.
(iii) On 01/7/95: the sum of Forty-Thousand Naira(N40,000.00) at a monthly interest rate of four thousand Naira (N4,000. 00) with effect from 01/7/95 until the principal was paid.
(iv) On 23/10/95, the sum of One Hundred Thousand Naira (N100,000.00 payable at a monthly interest rate of Fifteen Thousand Naira (15,000.00) with effect from 23/10/95 until the principal sum was paid.
It’s evident from the records that the respondent has had no qualm with the averments contained in paragraphs 5 – 8 and 11 of the statement of claim. See paragraphs 5, 6 and 9 of the statement of defence. He however controverted paragraphs 9. 10 and 12 of the statement of claim in paragraph 7 of the statement of defence thus-
7. That the defendants deny paragraphs 9 and 10 of the statement of claim as containing half truths and full of falsehood made to hood wink the honourable court. That it was the Plaintiff who persuaded the defendant to now take a huge sum in order to attract a large interest of 15% in one month, or 180% interest per annum, seeing that the defendant has promptly paid the earlier interest, and has nothing to do season’s trading which by 2nd December is only starting only to gain peak between 20th December and 2nd of January the next year.
9. That paragraph 12 is denied, the defendant did not refuse to pay the last debt of N100,000.00 interest rather when the plaintiff started demanding payment of interest on the earlier, principal sum lent, which has already been paid their principal sums plus the principal of N100,000.00 and its interest of N15,000.00 the defendant found it unbearable and greedy of the plaintiff and was unable to pay for all that and hence a misunderstanding ensued.
The word ‘lend’ as a verb, may be defined as follows:
“1. To allow the temporary use of (some thing) sometimes in exchange for compensation on condition that the thing or its equivalent be returned 2. To provide (money) temporarily on condition of repayment usually with interest.”
See Black’s Law Dictionary 7 Edition 1999 (supra) at pages 912 – 913.
Thus, the term “money lender” assumes the literal meaning of a person or an entity from which money is borrowed, temporarily on condition of repayment, usually with interest.
However, it’s rather instructive that section 2 of the Money Lenders Law Cap. 84 Laws of Eastern Nigeria, 1963 has no uncertain terms provided the following definition –
2. In this law-…
“Money lender” includes 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, whether or not he also possesses or owns property or money and whether or not he caries on the business as a principal or as an agent; but shall not include –
(a) any society registered under the Co-operative Societies Law; or
(b) any body corporate, incorporated or empowered by special Law or Act of Parliament to lend money in accordance with such Law or Act of Parliament; or
(c) any person bona fide carrying on the business of banking or insurance or bona fide carrying on any business, not having for its primary object the lending of money, in the course of which and for the purposes where of he lends money; or
(d) any person or body corporate exempted from the provisions of this law by order of the Minister; or
(e) any pawnbroker licensed 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 twenty pounds;
In the same vein, section 3 of the said money lenders Law has equally provided thus –
3. Save as expected in paragraphs (a), (b), (c), (d) and (e) 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 shall be presumed to be a money lender until the contrary be proved.
It is pertinent to reiterate that the question as to whether the appellant truly falls into the 3rd category of persons entitled to the exemption, as provided under section 2 (c) of the Money Lenders Law (supra), is subject to the nature and circumstances surrounding the contractual relationship between the appellant and the respondent and vis-a-vis the pleadings and evidence as contained in the records of appeal.
It’s trite that, as a court of law and nay equity, the object of this court as an umpire is to fish out the truth with a view to doing justice to both parties according to law. And in doing so, the court must guard the vision thereof from being “clouded by the dust of conflict.”
See Yuill v. Yuill (1945) 1 All ER 183 per LORD GREENE. According to the eminent jurist, Lord Denning, MR. (of blessed memory) –
It is all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth: and the less dust there is about the better let the advocates one after the other put the weights into the scales – the nicely calculated less or more – but the Judge at the end decides which way the balance tilts, be it ever so slightly.
See The Due Process of Law; London Butter Worths, 1980 at page 60 2nd paragraph.
It is not in doubt that, as alluded to above, the appellant had on four different occasions advanced various sums of money as loans repayable with interests. See paragraphs 5 – 12 of the statement of claim; paragraphs 5, 6 and of the statement of defence; exhibit B (The 1st lending agreement); exhibit C (2nd lending Agreement); exhibit D (3rd lending Agreement); and exhibit E (4th Lending Agreement).
It was the finding of the learned trial Judge at page 52-lines (2nd to last lines) and 53, line 1-1 thus-
The various sums of money loaned to the defendant on interest as shown by the plaintiff as contained in the documents referred to as exhibits ‘B’ ‘C’, ‘D’ and ‘E’ were money loaned by the plaintiff to the defendant on her personal capacity. The sums of money are said to be that of the Udensis. It has not been shown that the Udensis are a Barly Insurance Company or persons authorized to engage in the business of money lending. It is in evidence that the plaintiff was a staff of a Bank. The loans covered by exhibits ‘B’, ‘C’, ‘D’, and ‘E’ were not from the funds of the Bank, i.e. progress Bank of Nigeria Ltd. neither (sic) were the loans made by the plaintiff as agent of Progress Bank of Nigeria Ltd.
I think, I cannot agree more with that findings of the learned trial Judge.
There is no doubt that the fact that the appellant has held herself to be a staff of Progress Bank of Nigeria Ltd. in question does not in any way, in my considered view, automatically qualify her to be entitled to be regarded as –
“(C) any person bona fide carrying on the business of Banking … or bona fide carrying on any business, not having for its primary object the lending of money, in the course of which and for the purpose whereof he lends money within the purview of section 2(c) of the Money Lenders Law Cap. 84 (supra). The learned appellant’s counsel has at page 5, paragraph 4.09 of the brief thereof made the following assertion –
“Despite this state of affairs the appellant went further to testify that she was only an employee of Progress Bank and had no other business – (page 37 lines 15-18 records).”
The evidence of the PW1 Ada Udensi referred to above by the appellant’s learned counsel as contained at page 37, lines 15 – 18 of the record is to the following effect –
‘The plaintiff was a staff of Progress Bank at the time of these transaction. The plaintiff was not involved in any other job other than of being a banker”.
There is no doubt that the case of Eboni Finance and Securities Ltd. v. Wole-Ojo Tech. Services Ltd. & 2 Ors (supra) is distinguishable from the instant case for some obvious reasons. In that case, the object of the appellant’s business was predicated basically on financial services and not money lending. Whereas in the instant case, the appellant held herself out very clearly as carrying out the business of money lending.
The present case is not an instant in which the attitudinal disposition of the appellant and the contractual relationship thereof with the respondent could be said to be an isolated case as was held in Nwosu v. Aladu (1965)9 ENLR 117. In the instant case, the appellant had held herself out to be lending money to the respondent on four different occasions at very unbelievably ambitious and rather shylock interest rates for a period of over two years. The appellant charged over the loans as high interest rates as 15% especially on the 4th loan which was obviously much higher than the official bank interest rate. It’s thus evident that the various transactions carried out between the Appellant and Respondent could not reasonably be regarded in anyway as either “friendly loans” or “provisions of financial services” but purely money lending. See section 3 of Money Lender Law Cap. 84. (supra). The learned respondent’s counsel has cited the case of Societe Bancaive (Nig.) Ltd v. M.S. De Lluch (supra) at 2002 – 2003; (2004) 18 NWLR (Pt.905) 341 at 358 paragraph E – H; in which Pats Acholonu, JSC (of blessed memory in his usual erudite characteristics) stated inter alia, thus –
“I cannot however fail to comment at (sic) the manner the respondent in this matter readily parted with the sum of money being claimed … It is the likes of her that watered and manured the revolting and nauseating advance fee fraud which now thrives in the mentality and culture of our society … It would be seen that the respondent and the fraudsters had all the decease (sic) of greed and cupidity in their body mechanism.”
I think, one can not concede more to the above eloquent authoritative and rather blunt observation by the learned eminent jurist. From the circumstances surrounding the contractual relationship between the appellant, on the one hand, and the respondent on the other, the motive in granting the four separate loans with such cut-throat and prohibitive interests was most undoubtedly centred on pure business and greed. The question of the loans having allegedly been advanced on friendly basis is baseless and not within the contemplation of or intendment of the appellant. In the instant case, the appellant and the respondent, in my view, each aptly exemplifies the famous Shakespeare’s lyric poetry in the merchant of venice” i.e. a true personification of SHYLOCK and ANTONIO. However, as alluded here to fore, this court has a fundamental duty under the Constitution and the law to dispense justice to the parties with the highest degree of fairness and equity.
It’s trite that a statute should not be interpreted in such a way as to be capable of being used as an instrument of fraud. See Kotoye v. Saraki (1994) 7 – 8 SCNJ (Part 3) 524 at 564; (1994) 7 NWLR (Pt.357) 414; Chieke v. Olusoga (1997) 3 SCNJ 101 at 112 -113; (1997) 3 NWLR (Pt.494) 390, Eboni Finance And Securities Ltd. v. Wole-Ojo Technical Services (supra) at 478.
It’s instructive that the respondent has vehemently averred in his statement of defence that he had paid all the various interests accruing from the three loans advanced by the appellant thereto; that the appellant gained tremendously from the transaction due to the high interest rates she charged which the respondent dutifully and faithfully paid until the appellant became greedy; and that the respondent had paid N13000.00 to the appellant vide her solicitor Mr. Chidi Nworka as part of the settlement of the outstanding principal sum. See paragraphs 8 – 15 of the statement of defence. The averments contained in the respondent’s statement of defence referred to above no doubt confirm in no uncertain terms that the respondent had regularly paid the interests in respect of the 1st, 2nd and 3rd loans at prohibitive and cut-throat interest rates. Ironically however, as sterningly revealing as those averments are, the appellant did not deem it expedient to controvert them by filing a reply to the statement of defence. It is trite law that an uncontroverted averment contained in a pleading is deemed to have been admitted and thus needs no further proof. See Okene v. Oriamvo (1988) 9 NWLR (Pt. 566) 408; Morenikeji v. Adegbosin (2003) 8 NWLR (Pt. 823) 612; Kpan v. Edoho (1978) All NLR 196; Adake v. Akun (2003) 14 NWLR (Pt. 840) 418; Fyneface v. Fyneface supra at 607 paragraphs D – F, respectively. Thus, the appellant’s evidence on the issue adduced at the trial goes to no issue; as it’s not backed up by the pleadings thereof See Adake v. Akun (supra); et-al.
The justice of this case demands that the appellant must not be accorded the privilege to over rich herself and gain from the illegal transactions thereof. She most unfortunately took an undue advantage of her position as a staff of a bank to grant loans to the illiterate and gullible respondent at prohibitive and cut-throat interest rates. However, it’s axiomatic that, he who comes to equity, must come with clean hands. The learned trial Judge was right in my view in holding that the various contracts entered into between the appellant and the respondent were absolutely illegal and therefore unenforceable. The appellant gave a total sum of N95,000.00 as loans to the Respondent. Despite the evidence of payments of outstanding interest on the 1st, 2nd and 3rd loans, she now claims N581,400.00 against the respondent. Yet she takes cover under section 2(c) of the Money Lenders Law Cap. 84 (supra). That’s most outrageous to say the least. The appellant’s behavioural disposition is undoubtedly not only immoral but also criminal. The provisions of section 5 of the Money Lenders Law Cap. 84 (supra) are to the effect that any person who carries on the business of Money Lending without a valid Money Lenders’ Licence shall be liable to a fine or imprisonment on conviction.
Hence, in the light of the above postulations, I have no hesitation whatsoever in coming to the most inevitable conclusion that the appellant is not entitled to be accorded the privilege of the exemption provided in section 2 (c) of the Money Lenders Law Cap. 84 (supra). Thus, the learned trial Judge was absolutely right, in my considered view, in holding that the exception in the said section 2(c) of the Money Lenders Law Cap. 84 Laws of Eastern Nigeria, 1963 as applicable in Imo State, does not apply to the appellant. My answer to the sole issue in question is most undoubtedly in the affirmative and it’s hereby resolved in favour of the respondent.
Consequently, I hold that the instant appeal lacks any substantial merit and same is accordingly hereby dismissed by me. The judgment of the trial High Court No.9 Owerri Judicial Division, holden at Owerri, delivered on 30/7/03 is hereby affirmed.
I make no order as to costs.
Appeal dismissed.