ISA v. ALHAJI SANI ADAMU TRADER

CITATION: (2016) LPELR-41311(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON THURSDAY, 16TH JUNE, 2016Suit No: CA/K/127/2014

Before Their Lordships:

ISAIAH OLUFEMI AKEJU Justice, Court of AppealHABEEB ADEWALE OLUMUYIWA ABIRU Justice, Court of AppealOLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice, Court of Appeal

BetweenALHAJI ABUBAKAR ISA - Appellant(s)

AndALHAJI SANI ADAMU TRADER - Respondent(s)

RATIO DECIDENDI1. APPEAL - REPLY BRIEF: Purpose/function of a reply brief

"The purpose of a Reply Brief is to answer new arguments raised in the Respondent's Brief and not arepetition or re-argument of the issues. SEE YARO V. AREWA CONSTRUCTION LTD. (2008) ALL FWLR (Pt.400) 603."Per AKEJU, J.C.A. (P. 10, Paras. D-E) - read in context

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2. COMMERCIAL LAW - MONEY LENDER: Who qualifies as a money lender within the provisions of theMoney Lenders Law; determining factor of whether a transaction amounts to money lending"On the issue of Money Lenders Law, Counsel to the Appellant posited that charging of interest in defaultof payment of the repayment of the money lent, as stated in the Agreement, connoted that what existedbetween the parties was a money lender's agreement and that this offended the Money Lenders Law ofKano State. This issue posed the question whether the Respondent is a money lender within the meaningof, and regulated by, the Money Lenders Law of Kano State, Cap 95, Laws of Kano State, 1991 and, if theanswer is in the affirmative, whether the Financing Agreement was enforceable. The necessary point ofcommencement of enquiry must the definition of "money lender" within the provisions of the MoneyLenders Law itself.The relevant Sections here are Sections 2 and 3 of the Law. Section 2 reads:"... 'Money Lender' includes every person whose business is that of money lending or who carries on oradvertises or announces himself or holds himself out in any way as carrying on that business, whether ornot he also Possess or owns property or money derived from sources other than the lending of moneyand whether or not he carries on the business as a principal or as an agent; but it shall not include:(a) Any society registered under the Co-operative Societies Law; or(b)Any body corporate, incorporated or empowered by special enactment to lend money in accordancewith such enactment; or(c) Any person bonafide carrying on business of banking or insurance or bona fide carrying on business,not having its primary object the lending of money, in the course of which and/or purposes whereof helends money; or(d)Any pawnbroker licenced under the Pawnbrokers Law where the loan is made in accordance with theprovisions of the Pawnbrokers Law and does not exceed the sum of forty Naira."Section 3 states that:"Save as excepted in Paragraphs (a), (b), (c) and (d) of the definition of 'money lender' in Section 2 anyperson who lends money at interest or who lends a sum of money in consideration of a larger sum beingrepaid shall be presumed to be a money lender until the contrary is proved." The wordings of these twoSections are a word for word replication of the provisions of the Money Lenders Law of practically all theStates in Nigeria and they have been subject of judicial interpretation in several cases. The consensus ofall the cases is that the definition of a money lender under the Law is wide and it encompasses everyperson whose business is that of money lending and any person who lends money on interest or wholends a sum of money in consideration of a larger sum being repaid.There are, however, three categories of persons that cannot be called money lenders within the meaningof the Money Lenders Law and these are a banker, an insurer and a person who does not have for hisprimary object the lending of money. It follows therefore that a person will not be designated as a moneylender even though he is involved in money lending, in so far as he is a banker or an insurer or theprimary object of his business is not money lending. ?In other words, the determining factor of whether atransaction amounts to money lending within the provisions of the Money Lenders Law is not onlywhether the loan was given on interest or in consideration of a larger sum being repaid. It includes adetermination of whether the person giving the loan is not a banker or an insurer or whether the primaryobject of the business of that person is money lending business so as to bring him within the definition ofa money lender in the provisions of the Law. Where it is not shown that the primary object of thebusiness of the lender is money lending, such a transaction does not come within the purview of theMoney Lenders Law - Veritas Insurance Co Ltd Vs City Trust Investment Ltd (1993) 3 NWLR (Pt 281) 349,Eboni Finance & Securities Ltd Vs Wole-Ojo Technical Services Ltd (1996) 7 NWLR (Pt 461) 464, NwankwoVs Nzeribe (2003) 73 NWLR (Pt 890) 422, Ajao Vs Ademola (2005) 3 NWLR (Pt 913) 637, Idika VsUzoukwu (2008) 9 NWLR (Pt 1091) 34, Ibrahim Vs Bakori (2009) LPELR 8681(CA). This position of ourCourts accords with the view expressed by Farewell, J in Lintchfield Vs Dreyful (1906) 1 KB 554 at 559that the Money Lenders Law was intended to apply to persons who are really carrying on the business ofmoney lending and not to persons who lend money as incident business or to a few old friends. It was notin dispute in the instant case that the Respondent was neither a banker nor an insurer. The question thenis whether, from the facts of this case, it was shown that the primary object of his business was moneylending. The word primary is said to mean first, main or most important. The onus of proving that theprimary object of the business of the Respondent was money lending was on the Appellant - VeritasInsurance Co Ltd Vs City Trust Investment Ltd supra, Eboni Finance & Securities Ltd Vs Wole-OjoTechnical Services Ltd supra, Nwankwo Vs Nzeribe supra."Per ABIRU, J.C.A. (Pp. 30-34, Paras. B-D) - readin context

3. CONTRACT - TERMS OF CONTRACT: Whether extrinsic evidence can be admissible to vary the termsof a written contract"The Law is that where parties have reduced the terms of their agreement or contract into a writtendocument, the parties are presumed to intend what they have stated in the written document, the wordsof the document must be given their ordinary and plain meaning and no extrinsic evidence is admissibleto add to, or vary or contradict the content of the document. See UBN LTD. V. NWANKWO (1995) 6 NWLR(Pt. 400) 727; EJUETAMI V. OLAIYA (2001) 78 NWLR (Pt.746) 572."Per AKEJU, J.C.A. (P. 16, Paras. D-F) -read in context

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4. CONTRACT - TERMS OF CONTRACT: Whether parties are bound by the terms of their contract and theduty of court to give effect to same"...it is settled law that parties are bound by the contract they voluntarily enter into and cannot actoutside the terms and conditions contained in the contract and neither of the parties to a contract canalter or read into a written agreement a term which is not embodied in it - African International Bank LtdVs Integrated Dimensional System Ltd (2012) 17 NWLR (pt 1328) 1, Lagos State Government VsToluwase (2013) 1 NWLR (Pt 1336) 555. A Court too must treat as sacrosanct the terms of an agreementfreely entered into by the parties as parties to a contract enjoy their freedom to contract on their ownterms so long as same is lawful and if any question should arise with regard to the contract, the terms inany document which constitute the contract are the invariable guide to its interpretation. It is not thebusiness of the Court to rewrite a contract for the parties and it should thus not add to or subtract from orimport any provision into the contract - Omega Bank (Nig) Plc Vs O.B.C. Ltd (2005) 8 NWLR (Pt 928) 547,BFI Group Corporation Vs Bureau of Public Enterprises (2012) 18 NWLR (Pt.1332) 209, Daspan Vs ManguLocal Government Council (2013) 2 NWLR (Pt.1338) 203, Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt 1349) 1. Aparty cannot be allowed to resile from an agreement he entered into unless he can prove that heconsented to the agreement under coercion, duress, undue influence, mistake or misrepresentation."PerABIRU, J.C.A. (Pp. 23-24, Paras. A-B) - read in context

5. INTERPRETATION OF DOCUMENT - RULE OF INTERPRETATION OF DOCUMENT/JUDGMENT:Cardinal rule of interpretation of document or judgment"It is also settled that in the interpretation of a document, the document must be read as a whole andinterpreted holistically. See MBANI V. BOSI (2006) 5 SC (Pt.111) 54."Per AKEJU, J.C.A. (Pp. 16-17, Paras. F-A) - read in context

6. INTERPRETATION OF DOCUMENT - RULE OF INTERPRETATION OF DOCUMENT/JUDGMENT:Cardinal rule of interpretation of document or judgment"It is a settled principle of interpretation of documents that where the language used by parties incouching the terms or provisions of a document are clear and unambiguous, the Court must give theoperative words in the document their simple, ordinary and actual grammatical meaning - Union Bank ofNigeria Plc Vs Ozigi (1994) 3 NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson (2005) 11 NWLR (Pt.937)631, Egwunewu Vs Egeagwu (2007) 6 NWLR (Pt 1031) 431. It is also settled that in interpreting adocument, the document must be read as a whole, and not parts in isolation, and that the different partsof the document must be interpreted in the light of the whole document and an effort must be made toachieve harmony amongst its different parts - Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc(2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2 NWLR (Pt 1071) 378, Nigerian Army Vs Aminu-Kano(2010) 5 NWLR (Pt 1188) 429."Per ABIRU, J.C.A. (Pp. 28-29, Paras. E-D) - read in context

7. JUDGMENT AND ORDER - AWARD OF INTEREST: Types of interest awardable in a civil claim"Basically the Law recognises two types of interests that are claimable and awardable in an action inCourt; these are prejudgment interest and post Judgment interest. In the Judgment of this Court, inASHAKA V. NWACHUKWU Delivered at Jos Division on 22/2/13 IN CA/J/290/2004 reported in (2013) LPELR-CA/J/290/2004, it was stated that "There are two types of interests which are awardable by a Court of Lawin a civil suit or litigation. It could be a prejudgment or post Judgment or interest, Prejudgment interest isstatutorily prescribed either from the date of the loss or from the date where the complaint was filed upto the date the final Judgment is entered. It may or may not be an element of damages. It is usuallycalculated only for liquidated sums. See Black's Law Dictionary 8th edition page 830 by Brayan A. Graner.In ADEYEMI V. LAN AND BAKER (NIG.) LTD. (2000) 7 NWLR (Pt.663) 33 at 48, this Court held that "theaward must be based on either Statute or Mercantile custom or equity and the plaintiff must plead thebasis and lead satisfactory evidence. That is so but the Law also recognises the right to interest of aplaintiff in a claim for the return of money from commercial transactions particularly where the defendanthas held money of the plaintiff for some time."Per AKEJU, J.C.A. (Pp. 17-18, Paras. F-F) - read in context

8. JUDGMENT AND ORDER - AWARD OF INTEREST: Guiding principles on the award of interest"It is also the Law that the Court may award interest in two distinct situations or instances which are (1)as of right and (2) where there is a power conferred by Statute to do so in exercise of the Courts'discretion. SEE EKWUNIFE V. WAYNE WEST AFRICA LTD. (1989) 5 NWLR (Pt. 122) 422. Where interest isclaimed as a matter of right, the claimant has the bounden duty to show by evidence that he is entitledthereto, and the Court may, if satisfied by such evidence award interests. See TEXACO OVERSEAS (NIG)UNLTD. V. PEDMAR (NIG.) LTD (2002) 13 NWLR (Pt 785) 526."Per AKEJU, J.C.A. (Pp. 18-19, Paras. G-C) -read in context

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9. PARTNERSHIP - FORMATION OF PARTNERSHIP: Meaning and nature of a partnership"A partnership is defined as a voluntary association of two or more persons who jointly own and carry ona business for profit. Ordinarily, a partnership will be presumed to exist if the persons involved agree toshare the profits or losses of the business proportionally - Ezejesi Vs Ezejesi (2008) LPELR-CA/E/101/2006."Per ABIRU, J.C.A. (P. 29, Paras. E-F) - read in context

10. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: The procedure under theundefended list"Just like similar or equivalent provisions in Civil Procedure Rules of High Court of various States inNigeria, the Kano State of Nigeria (Civil Procedure) Rules, 1988 makes provision for the undefended list inits Order 23 Rules 1, 2, 3, 4 and 5. I reproduce Rules 1, 3 and 4 thereof which are the relevant andmaterial ones for this discourse as follows; "1. Whenever application is made to a Court for the issue of awrit of summons in respect of a claim to recover a debt or liquidate (Sic) money demand and suchapplication is supported by an affidavit setting forth the grounds upon which the claim is based andstating that in the deponents belief there is no defence thereto, the Court shall if satisfied that there aregood grounds for believing that there is no defence thereto, enter the suit for hearing in what shall becalled the "Undefended List" and mark the writ of summons accordingly, and enter thereon a date forhearing suitable to the circumstances of the particular case,3.(1) If the party served with this writ of summons and affidavit deliver to the Registrar a notice in writingthat he intends to defend the suit together with an affidavit disclosing a defence on the merit, the Courtmay give him leave to defend upon such terms as the Court may think just.(2)Where leave to defend is given under this Rule, the action shall be removed from the undefended listand placed on the ordinary cause list: and the Court may order pleadings, or proceed to hearing withoutfurther pleadings.4. Where any defendant neglects to deliver the notice of defence and affidavit prescribed by Rule 3 (1) oris not given leave to defend by the Court, the suit shall be heard as an undefended suit, and Judgmentgiven thereon, without calling upon the plaintiff to summon witnesses before the Court to prove his caseformally."?Thus from the forgoing provisions of the Rules, where a plaintiff's claim is for recovery of debt orliquidated money demand, and the claim is supported by affidavit showing that in the belief of thedeponent the defendant does not have any defence thereto, the claim may be placed for hearing underthe undefended list. A defendant who desires that the action be transferred for hearing under the generalor ordinary cause list has a bounding duty to file a notice in writing that he intends to defend the actionwith a supporting affidavit disclosing to the satisfaction of the Court that he has a good defence to theaction on the merit, the Court may grant leave to defend the action and remove same from theundefended list to the ordinary cause list to be heard upon pleadings."Per AKEJU, J.C.A. (Pp. 10-13, Paras.F-A) - read in context

11. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Object of the Undefended listprocedure"The aim or object of the procedure of the undefended list therefore is to enable a plaintiff whose claimfor debt or liquidated money to quickly or summarily obtain Judgment where the facts are undisputed andit is unnecessary or not desirable to allow the defendant to defend for the mere sake of doing so or tomerely delay the entry of Judgment in favour of the claimant. See ATAGUBA & Co. V. GURA (NIG) LTD(2005) 8 NWLR (Pt. 927) 429; ADEBISI MACGREGOR ASSOCIATES LTD. V. NIGERIA MERCHANT BANK LTD.(1996) 2 NWLR (Pt. 431) 378, (1996) 2 SCNJ 72; MACAULAY V. NAL MERCHANT BANK LTD (1990) 4 NWLR(Pt. 144) 283."Per AKEJU, J.C.A. (P. 13, Paras. A-D) - read in context

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12. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: What is expected of a defendant inrespect of suit filed against him under the undefended list"...it is abundantly clear in Law from decision of Court that what is required of a defendant in an actionunder the undefended list is to set out a good defence on the merit of the action. IN NWANKWO V.ECUMENICAL DEVELOPMENT CO-OPERATIVE SOCIETY (EDCS) UA (2007) 5 NWLR (Pt.1027) 377, It washeld PER MUKHTAR JSC (LATER CJN) AT 398 that "It is trite that unless a defendant in its supportingaffidavit of intention to defend a suit on the undefended list states a good defence and the particulars ofsuch defence are adequately set out, and they are such that if proved would constitute such a defence,the Court will not transfer the suit to the general cause list and allow the defendant to defend the suit".Also in UNITED BANK FOR AFRICA PLC. V. JARGADA, (2007) 11 NWLR (Pt 1045) 247, It was held that for anaction to be transferred from the undefended list to the general cause list, the defendant must show adefence on the merit the particulars of which must be set out and it must be such that requires theplaintiff to make some explanation in respect of the claim. It was held at pages 275- 276 per Tabai JSCthat "A suit initiated under the undefended list procedure can only be considered appropriate for transferto the general cause list where the defendant's notice of intention to defend is supported by an affidavitshowing that there is a prima facie or triable issues that needed to be settled on pleadings, tried, testedand determined in Oral evidence.The defendant's affidavit evidence must disclose that there is a real dispute and not merely a frivolousand vague defence to delay the quick determination of the action."Per AKEJU, J.C.A. (Pp. 14-15, Paras. A-C) - read in context

13. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Essence/purpose of the undefendedlist procedure/summary judgment"The whole purpose of a summary judgment procedure is to ensure justice to a plaintiff and minimizedelay where there is obviously no defence to his claim and thus prevent the grave injustice that mightoccur through a protracted and immensely frivolous litigation. It is to prevent sham defence fromdefeating the right of a plaintiff by delay and thus causing great loss to a plaintiff. In other words, thesummary judgment rules are specially made to help the Court achieve their primary objective, i.e. to dojustice to the parties by hearing their cases on the merit with utmost dispatch and prevent the frequentoutcry that justice delayed is justice denied - United Bank for Africa Plc Vs Jargaba (2007) 11 NWLR (Pt1045) 247, University of Benin Vs Kraus Thompson Organisation Ltd (2007) 14 NWLR (Pt 1055) 441.Speaking on the essence of the Undefended List procedure, this Court in its unreported judgment inAppeal No CA/K/131/2010 Samabey International Communications Ltd Vs Celtel Nigeria Ltd (Trading asZain) delivered on the 26th of April, 2013 stated thus: "It is pertinent to state that the provisions onundefended list in the High Court of Kano State (Civil Procedure) Rules are adjunct to the course ofjustice.They are Rules of Court touching on the administration of justice and the procedure is simply designed toensure speedier attainment of justice with ease, certainty and dispatch, when it is abundantly clear thatthe defendant has absolutely no defence to the plaintiffs case. The undefended list procedure is a specieof summary judgment evolved by the rules of Court for the speedy disposal of otherwise uncontestedcases and where there is no reasonable doubt as to the efficacy of the plaintiffs claims and it would bemost unconscionable to oblige an otherwise liable defendant the opportunity to employ mere subterfugeto dribble his opponent and the Court just for the purpose of stalling proceedings and cheating theplaintiff out of reliefs to which he ordinarily would have been entitled - Imoniyame Holdings Ltd Vs SonebEnterprises Ltd (2010) 4 NWLR (Pt 1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa Esq (2010)9 NWLR (Pt 1200) 443, Babale Vs Eze (2011) 11 NWLR (Pt 1257) 48, David Vs Jolayemi (2011) 11 NWLR(Pt 1258) 320. It is not, however, the aim of the undefended list procedure to shut out a defendant whowants to contest a suit brought under the undefended list merely in order to obtain a speedy trial at theexpense of justice - Macaulay Vs NAL Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax PetroleumDevelopment (Nig) Ltd Vs Duke (2010) 8 NWLR (Pt 1196) 278. Thus, Order 23 Rule 3 (1) of the High Courtof Kano State (Civil Procedure) Rules gives a defendant willing to defend a suit placed under theundefended list a leeway and it obligates such a defendant to file a notice in writing that he intends todefend the suit together with an affidavit disclosing a defence on the merit, and it states that once adefendant does this, the Court will grant him leave to defend."Per ABIRU, J.C.A. (Pp. 24-27, Paras. C-A) -read in context

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14. PRACTICE AND PROCEDURE - NOTICE OF INTENTION TO DEFEND: What an affidavit in support of anotice of intention to defend should contain"The law is that for an affidavit to constitute a defence on the merit, the defendant must set out thedefence in the affidavit and not simply say that he has a defence. The affidavit must show reasonablegrounds of defence; that there is some dispute between the parties requiring to be gone into - Osifo VsOkogbo Community Bank Ltd (2006) 15 NWLR (Pt 1002) 260. Under the undefended list procedure, thedefendant's affidavit must condescend upon particulars and should as far as possible deal specificallywith the plaintiffs claim and affidavit, and state clearly and concisely what the defence is and what factsand documents are relied on to support it. The affidavit in support of the notice of intention to defendmust of necessity disclose facts which will at least throw some doubt on the case of the plaintiff. A meregeneral denial of the plaintiffs claim and affidavit is devoid of any evidential value and as such would nothave disclosed any defence which will at least throw some doubt on the plaintiff's claim - Ataguba & CoVs Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429, Tahir Vs Kapital Insurance Ltd (2006) 13 NWLR (Pt 997)452, David Vs Jolayemi (2011) 11 NWLR (Pt 1258) 320."Per ABIRU, J.C.A. (Pp. 27-28, Paras. D-B) - read incontext

15. PRACTICE AND PROCEDURE - UNDEFENDED LIST PROCEDURE: Position of the law where adefendant has no real defence to an action under the undefended list procedure"It is trite that a defendant who has no real defence to an action should not be allowed to disturb andfrustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by delay tacticsaimed not at offering any real defence to the action but at gaining time within which to continue topostpone meeting his obligation and indebtedness - Kenfrank (Nig) Ltd Vs Union Bank of Nigeria Plc(2002) 15 NWLR (Pt 789) 46, Sanyaolu Vs Adekunle (2006) 7 NWLR (Pt 980) 551."Per ABIRU, J.C.A. (P. 35,Paras. C-F) - read in context

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ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the

Leading Judgment): The Appellant herein was the

defendant in suit No. K/462/2011 at the High Court of

justice, Kano State of Nigeria in which the Respondent as

plaintiff had claimed through the writ of summons dated

17th October, 2011 the following reliefs;

1. N17,000,000.00 (Seventeen Million Naira only).

2. N380,000.00 (Three Hundred and eighty thousand

Naira only) being agreed 2% interest for every 30 days

due to the plaintiff from 5th December, 2010 till date

of Judgment.

3. 10% interest at the Court rate from the date of

Judgment until final liquidation of the Judgment sum.

4. Cost of instituting and prosecuting the action.

Upon the application of the plaintiff the writ of summons

was placed for hearing under the undefended list and after

hearing arguments from the parties the learned trial judge

refused to transfer the suit to general cause list. In the

Ruling of that Court delivered on 14th February, 2012, the

defendant was ordered to pay the plaintiff as per the writ of

summons the following:

The sum of N17,000,000.00; N380,000.00 being the

agreed 2% interest for every 30 days

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due to the plaintiff from 5th December, 2010 till date

of Judgment; 10% interest at the Court rate from the

date of Judgment until final liquidation of the

Judgment sum; and cost of instituting and

prosecuting the action.

The facts relied upon by the plaintiff as contained in the

affidavit of Kassim Yusif Bello in support of the writ of

summons are that on 4th October 2010, the defendant

approached the plaintiff with a request that he (plaintiff)

should sponsor or finance the completion of a contract

awarded to the defendant by providing an amount of

N15,000,000.00 which the plaintiff agreed to provide while

the defendant agreed to give N4,000,000.00 to the plaintiff

as his share of the contract profit. It was agreed that within

60 days from the date of their agreement both the capital

and profit would be repaid to the plaintiff and failure to pay

within 60 days would attract interest at the rate of 2% per

30 days for the entire amount. The agreement executed in

that regard was attached as exhibit AM 1 while the

document given by the defendant as security was attached

as exhibit AM2.

When the defendant reneged and the agreement expired,

the plaintiff

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issued a Demand Letter demanding for payment of

N19,000,000.00 with the 2% agreed interest for every 30

days from 5th December, 2010, a copy of which letter was

attached as exhibit AM3 while the response of the

defendant to exhibit AM3 was attached as exhibit AM4.

It was deposed that the defendant only paid N2,000,000.00

to the plaintiff on 30th May 2011, leaving a balance of

N17,000,000.00 and the agreed 2% interest for every 30

days from 5th December, 2010 which the defendant

refused to pay, and that in the belief of the deponent the

defendant had no defence to the action.

The defendant filed a notice of intention to defend the

action, and in the affidavit of Favour Uhuache in support

of the Notice it was deposed inter alia that the transaction

between the parties was an investment agreement in which

parties would share profit, and as such the transaction

presupposes a partnership agreement. It was also deposed

that the money for the contract that led to the agreement of

the parties was expected to be paid before December,

2010, but same had not been paid despite efforts made by

the defendant including the letter attached as exhibit AA1,

and the

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investment sum could only be paid after the contract sum

was paid. It was further deposed that the transaction

between the parties had a connotation of a money lending

transaction, and not being a licensed money lender, the

plaintiff was not entitled to charge any interest.

The defendant was dissatisfied with the decision of the trial

High Court of Kano State, and filed Notice and Grounds of

appeal dated 20/1/12 with five grounds of appeal, and in

prosecuting the appeal before this Court, the parties filed

and exchanged their briefs of argument. The Appellant's

brief settled by Francis O, Ithunokha Esq. of Counsel was

filed on 1/6/15 while the Respondent's Brief was prepared

by A.M, Mustapha Esq. of Counsel and filed on 22/7/15. The

learned Counsel for Appellant, Francis O. Ithunokha Esq.

also filed a Reply Brief on 15/2/16.

The two Briefs of the Appellant were filed upon grant of

application for extension of time by this Court on 27/5/15

and 15/2/16 respectively. The parties adopted and relied on

their Briefs at the hearing of the appeal to pray that the

appeal be dismissed or allowed.

From the five grounds of appeal, the learned Counsel for

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the Appellant distilled a single issue for determination

which is whether the Appellant (defendant at the Court

below) did not raise triable issues in the affidavit of defence

to warrant the suit No. K/462/2011 to be transferred to the

general cause list to be heard on the merit. The Respondent

also formulated one issue for the determination of the

appeal; whether the Appellant by his affidavit in support of

notice of intention to defend has disclosed a defence on the

merit to warrant the trial Court to transfer the suit

No.K/462/2011 to the general cause list for hearing instead

of entering Judgment for the Plaintiff/Respondent.

The issues formulated by the two learned Counsel are

virtually the same, I will however adopt the Appellant's

version so as to ensure that nothing of substance is left

untouched. The appeal will therefore be considered and

determined on the Appellant's issue for determination

which I have adopted.

The learned Counsel for the Appellant argued that from the

circumstances of the case and the affidavit of the Appellant

in support of his Notice of intention to defend the action,

what existed between the parties was a particular

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partnership which arises in a situation where the parties

agree to share profit and loss of a single transaction or

enterprise. He referred to paragraph 3 of exhibit AM1 and

argued that it has put the relationship between the parties

in the specie of a particular partnership moreso that the

Respondent had received an amount of N2million as share

of profit. It was submitted that having raised this issue of

particular partnership, the learned trial judge should have

been liberal in considering or determining whether a

defence was raised; CALVENPLY V. PEKAB INT'L LTD.

(2001) FWLR (Pt. 61) 1664 - 1665; PATIGI LOCAL

GOVERNMENT V. ELESHIN - NLA (2008) ALL FWLR

(Pt. 421) 859; EKUMA v. SILVER EAGLE SHIPPING

AGENCIES LTD. (1987) 4 NWLR (Pt.65) 472.

The learned Counsel also contended that the charge of

interest in default of repayment of loan connotes that what

existed between the parties was money lenders agreement

which offends the money lenders Law/Act. He referred to

Section 3 of the Money lenders Law, Cap 93 Laws of Kano

State as well as Exhibit AM 1 in paragraph 6 showing a

charge of 2% profit interest and contended that the

agreement was thus brought within

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the purview of a money lender's agreement; ALHAJI

ABDULLAHI V. MALLAM ZANGANA ABUBAKAR

BAKORI (2009) LPELR - 8681. He argued that Exhibit

AM 1 is not illegal but paragraph 6 thereof is not

enforceable having a connotation of a money lenders

agreement and the trial Court would have applied the Blue

pencil rule or test in giving effect to Exhibit AM1 so as to

ensure that the offending words are invalidated by running

a blue pencil through the agreement; IDIKA V.

U Z O U K W U ( 2 0 0 8 ) 9 N W L R ( P t . 1 0 9 1 )

(INCOMPLETE).

It was the argument of the learned Counsel that having

raised the defence of money lending, the burden was on the

plaintiff to show that he was a money lender.

For the Respondent it was submitted that for an action

under the undefended list to be transferred to the general

cause list for defendant to defend, the defendant must have

by a notice of intention to defend and a supporting affidavit

shown a defence on the merit in line with Order 23 Rule 3

(1) of Kano State High Court (Civil Procedure) Rules, 1988;

MOHAMMED V. SOCIETE - GENERAL BANK LTD.

(2006) ALL FWLR (Pt. 340) 1182; ABUBAKAR V.

MODIBBO (2009) ALL FWLR (pt. 400) 7 51.

The defence

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must not be merely frivolous, or vague, but must create

doubt in the claim of the plaintiff; SHELL PETROLEUM

DEVELOPMENT OF NIGERIA LTD. V. ARHO JOE

NIGERIA LTD. (2006) ALL FWLR (Pt. 331) 1330; The

defence must relate to the plaintiff's claim and not one that

is at large or has brought up fresh cause of action against

the plaintiff; FED. AIRPORT AUTHOURITY OF NIGERIA

V. WAMAL EXPREE SERVICES (NIG) LTD. (2011) ALL

FWLR (pt. 574) 42.

The learned Counsel for the Respondent submitted that

Exhibit AM 1 does not contain the basic requirements of a

partnership going by the definition of partnership in Black's

Law Dictionary as an association of two or more persons

who jointly own and carry on a business for a profit, as well

as the decision in ALADE V. ALIC (NIG) LTD. (2011)

ALL FWLR (Pt. 563) 1849; EZEJESI v. EZEJESI (2010)

ALL FWLR (Pt. 517) 647.

It was submitted that the duty of the Court is to look at

Exhibit AM 1 executed by the parties to determine their

intention, the Court cannot rewrite the agreement of the

parties by introducing what was not in their contemplation;

OWONI BOYS TECHNICAL SERVICES LTD. V. UNION

BANK OF NIG LTD. (2003) MJSC 38; OGUN STATE

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GOVERNMENT v. DALAMI LTD. (2007) MJSC 187;

KACHIA v. HADI (2012) ALL FWLR (Pt. 650) 1403.

The learned Counsel contended that the issue of

partnership raised by the Appellant at the trial was not a

defence on the merit of the case as depicted by Exhibits AM

1, AM 3 and AM 4 presented by the plaintiff/Applicant.

On whether the agreement of the parties is that of a money

lender, the learned Counsel submitted that based on the

provision of Section 2 of Money Lenders Law Cap 95 Laws

of Kano State 1991, a person who lends money to his friend

for purpose of resuscitating his business cannot thereby

become a money lender. It was submitted that from the

evidence available in this case and transaction of the

parties as expressed in Exhibits AM 1 and AM 3, the Money

Lenders Law does not apply to this case as the Respondent

does not have as his primary purpose or object, the lending

of money; CHIDOKA V. FIRST CITY FINANCE CO. LTD.

(2012) 12 SCM 29; ALHAJI IBRAHIM V. MALLAM

ZANGINA BAKORI (2009) LPELR 8681; EBONI

FINANCE AND SECURITIES LTD. V. WOLE OJO

TECHNICAL SEVICES LTD. (1996) 7 NWLR (Pt. 461)

464.

The learned Counsel contended that the Appellant who was

a

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party and had derived benefit from Exhibit AM 1 cannot

turn around and declare the same agreement as illegal. It

was also submitted that it is inequitable for a person who

obtained a loan and benefited therefrom to claim that the

agreement is null and void. AWOJUGBAGBE LIGHT

INDUSTRIES LTD, V. CHINUKWE (1995) 4 NWLR (Pt.

390); ADETUNJI v. AGBOJO (1997) 1 NWLR (Pt. 484)

705.

It is clear that the Respondent did not by his Brief raise any

new issue and the Appellant's Reply Brief did not answer

any new issue but a mere fortification of the argument of

the Appellant. The Reply Brief is therefore not of any value

in this appeal. The purpose of a Reply Brief is to answer

new arguments raised in the Respondent's Brief and not a

repetition or re-argument of the issues. SEE YARO V.

AREWA CONSTRUCTION LTD. (2008) ALL FWLR (Pt.

400) 603. Having not served its purpose, the Appellant's

Reply Brief is discountenanced in this appeal.

Just like similar or equivalent provisions in Civil Procedure

Rules of High Court of various States in Nigeria, the Kano

State of Nigeria (Civil Procedure) Rules, 1988 makes

provision for the undefended list in its Order 23 Rules 1, 2,

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3, 4 and 5. I reproduce Rules 1, 3 and 4 thereof which are

the relevant and material ones for this discourse as follows;

"1. Whenever application is made to a Court for the

issue of a writ of summons in respect of a claim to

recover a debt or liquidate (Sic) money demand and

such application is supported by an affidavit setting

forth the grounds upon which the claim is based and

stating that in the deponents belief there is no

defence thereto, the Court shall if satisfied that there

are good grounds for believing that there is no

defence thereto, enter the suit for hearing in what

shall be called the "Undefended List" and mark the

writ of summons accordingly, and enter thereon a

date for hearing suitable to the circumstances of the

particular case,

3.(1) If the party served with this writ of summons

and affidavit deliver to the Registrar a notice in

writing that he intends to defend the suit together

with an affidavit disclosing a defence on the merit,

the Court may give him leave to defend upon such

terms as the Court may think just.

(2)Where leave to defend is given under this Rule, the

action shall be removed from the undefended list and

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placed on the ordinary cause list: and the Court may

order pleadings, or proceed to hearing without

further pleadings.

4. Where any defendant neglects to deliver the notice

of defence and affidavit prescribed by Rule 3 (1) or is

not given leave to defend by the Court, the suit shall

be heard as an undefended suit, and Judgment given

thereon, without calling upon the plaintiff to summon

witnesses before the Court to prove his case

formally."

Thus from the forgoing provisions of the Rules, where a

plaintiff's claim is for recovery of debt or liquidated money

demand, and the claim is supported by affidavit showing

that in the belief of the deponent the defendant does not

have any defence thereto, the claim may be placed for

hearing under the undefended list. A defendant who desires

that the action be transferred for hearing under the general

or ordinary cause list has a bounding duty to file a notice in

writing that he intends to defend the action with a

supporting affidavit disclosing to the satisfaction of the

Court that he has a good defence to the action on the merit,

the Court may grant leave to defend the action and remove

same from the undefended

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list to the ordinary cause list to be heard upon pleadings.

The aim or object of the procedure of the undefended list

therefore is to enable a plaintiff whose claim for debt or

liquidated money to quickly or summarily obtain Judgment

where the facts are undisputed and it is unnecessary or not

desirable to allow the defendant to defend for the mere

sake of doing so or to merely delay the entry of Judgment in

favour of the claimant. See ATAGUBA & Co. V. GURA

(NIG) LTD (2005) 8 NWLR (Pt. 927) 429; ADEBISI

MACGREGOR ASSOCIATES LTD. V. NIGERIA

MERCHANT BANK LTD. (1996) 2 NWLR (Pt. 431)

378, (1996) 2 SCNJ 72; MACAULAY V. NAL

MERCHANT BANK LTD (1990) 4 NWLR (Pt. 144) 283.

The Appellant in the instant case who was the defendant at

the trial Court has contended that the learned trial judge

should have placed the Respondent's (plaintiff's) action for

hearing under the ordinary cause list on the twin grounds

that the agreement between the parties was a particular

partnership and that it comes under the Money Lenders

Law by which the Respondent was disentitled from

claiming interest.

Although the Appellant filed a Notice of intention to defend

the

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plaintiff's claim with affidavit in its support it is abundantly

clear in Law from decision of Court that what is required of

a defendant in an action under the undefended list is to set

out a good defence on the merit of the action. IN

NWANKWO V. ECUMENICAL DEVELOPMENT CO-

OPERATIVE SOCIETY (EDCS) UA (2007) 5 NWLR

(Pt.1027) 377, It was held PER MUKHTAR JSC (LATER

CJN) AT 398 that "It is trite that unless a defendant in

its supporting affidavit of intention to defend a suit

on the undefended list states a good defence and the

particulars of such defence are adequately set out,

and they are such that if proved would constitute

such a defence, the Court will not transfer the suit to

the general cause list and allow the defendant to

defend the suit". Also in UNITED BANK FOR AFRICA

PLC. V. JARGADA, (2007) 11 NWLR (Pt 1045) 247, It

was held that for an action to be transferred from the

undefended list to the general cause list, the defendant

must show a defence on the merit the particulars of which

must be set out and it must be such that requires the

plaintiff to make some explanation in respect of the claim.

It was held at pages 275- 276 per Tabai JSC that "A suit

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initiated under the undefended list procedure can

only be considered appropriate for transfer to the

general cause list where the defendant's notice of

intention to defend is supported by an affidavit

showing that there is a prima facie or triable issues

that needed to be settled on pleadings, tried, tested

and determined in Oral evidence.

The defendant's affidavit evidence must disclose that

there is a real dispute and not merely a frivolous

and vague defence to delay the quick determination

of the action."

I have closely and calmly perused exhibit AM1 at pages 110

- 112 of the record of appeal which exhibit is the basis of

the relationship between the parties to this action. It is

described in unmistaken terms as a "Financing

Agreement" made on the 4th day of October, 2010, in

respect of a contract awarded to Appellant who was

described therein as the Borrower while the Respondent is

financier. It was stated inter alia “2. THAT THE

BORROWER approached the financier to finance the

completion of the said contract providing the sum of

fifteen million naira (N15,000,000,00) subject to the

various terms and conditions herein stated.

(3)

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THAT THE FINANCIER has agreed to finance the

completion of the said contract as stated in No.2

above on the same terms and conditions herein

stated."

It was agreed in Exhibit AM1 that the financier shall give

the borrower an amount of N15,000,000.00 to perfect the

contract and the borrower shall surrender the original

document of his property, commit an amount of N4 million

to the financier as his share of the contract profit and the

whole amount of N19 million in the agreement shall be

liquidated within 60 days or attract 2% profit interest for

every 30 days in the event of default.

The Law is that where parties have reduced the terms of

their agreement or contract into a written document, the

parties are presumed to intend what they have stated in the

written document, the words of the document must be

given their ordinary and plain meaning and no extrinsic

evidence is admissible to add to, or vary or contradict the

content of the document. See UBN LTD. V. NWANKWO

(1995) 6 NWLR (Pt. 400) 727; EJUETAMI V. OLAIYA

(2001) 78 NWLR (Pt.746) 572.

It is also settled that in the interpretation of a document,

the document must be read as a whole and

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interpreted holistically. See MBANI V. BOSI (2006) 5 SC

(Pt.111) 54.

Applying the above principles of interpretation, it is clear

that Exhibit AM 1 plainly states that the Respondent was to

finance a contract awarded to the Appellant who in turn

was to pay an amount of N4,000,000.00 to the Respondent

as his own share of profit of the contract and in the event of

default of paying back the principal money of

N15,000,000.00 and profit of N4,000,000.00 within 60 days

the Appellant would pay interest of 2% every 30 days.

The argument of the learned Counsel for Appellant

regarding the issue of partnership amounts to reading into

Exhibit AM 1 what is not contained therein or what is

extraneous thereto which the Law does not permit.

On the contention of the Appellant on the award of interest

I am also convinced from the agreement of the parties that

they voluntarily and mutually agreed to pay and/or receive

interest of 2% in the event of default in payment of the

principal sum and profit. Basically the Law recognises two

types of interests that are claimable and awardable in an

action in Court; these are prejudgment interest and post

Judgment interest.

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In the Judgment of th is Court , in ASHAKA V.

NWACHUKWU Delivered at Jos Division on 22/2/13 IN

CA/J/290/2004 reported in (2013) LPELR- CA/J/290/2004, it

was stated that

"There are two types of interests which are awardable

by a Court of Law in a civil suit or litigation. It could

be a prejudgment or post Judgment or interest,

Prejudgment interest is statutorily prescribed either

from the date of the loss or from the date where the

complaint was filed up to the date the final Judgment

is entered. It may or may not be an element of

damages. It is usually calculated only for liquidated

sums. See Black's Law Dictionary 8th edition page

830 by Brayan A. Graner. In ADEYEMI V. LAN AND

BAKER (NIG.) LTD. (2000) 7 NWLR (Pt.663) 33 at 48,

this Court held that "the award must be based on

either Statute or Mercantile custom or equity and the

plaintiff must plead the basis and lead satisfactory

evidence. That is so but the Law also recognises the

right to interest of a plaintiff in a claim for the return

of money from commercial transactions particularly

where the defendant has held money of the plaintiff

for some time."

It is also the Law that the Court may award

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interest in two distinct situations or instances which are (1)

as of right and (2) where there is a power conferred by

Statute to do so in exercise of the Courts' discretion. SEE

EKWUNIFE V. WAYNE WEST AFRICA LTD. (1989) 5

NWLR (Pt. 122) 422. Where interest is claimed as a

matter of right, the claimant has the bounden duty to show

by evidence that he is entitled thereto, and the Court may,

if satisfied by such evidence award interests. See TEXACO

OVERSEAS (NIG) UNLTD. V. PEDMAR (NIG.) LTD

(2002) 13 NWLR (Pt 785) 526.

The Respondent in the instant case is, by virtue of the

agreement Exhibit AM1 conferred with the right to claim

interest in the transaction of the parties and the claim has

been successfully established. Again I hold that in so far as

Exhibit AM1 is a simple agreement to finance contract,

written in plain and simple words, it is improper to view it

as money lender's agreement thereby imputing words or

meaning thereto that the parties did not intend.

It is therefore my view in agreement with the learned trial

judge that the Appellant has not proffered a defence to the

Respondent's claim on its merit through the affidavit in

support of his

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notice of intention to defend the action, and that the suit

was properly placed and heard under the undefended list.

The reliefs claimed by the Respondent were also properly

granted by the Court. Therefore I find no merit in this

appeal. The appeal fails and it is accordingly dismissed with

cost of N30,000.00 to the Respondent.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I

have had the privilege of reading before now the draft of

the lead judgment delivered by my learned brother, Isaiah

Olufemi Akeju, JCA. His Lordship has ably considered and

resolved the issues in contention in this appeal.

The Appellant, described as Borrower, entered into a

Financing Agreement with the Respondent, described as

Financier. The operative parts of the Agreement read thus:

“Whereas:

1. The Borrower was awarded a contract which he

cannot perfect due to shortage of funds which need

urgent attention within four to five weeks now.

2. That the Borrower approached the Financier to

finance the completion of the said contract by

providing the sum of Fifteen Million Naira

(N15,000,000.00) subject to the various terms and

condition herein stated.

3.

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That the Financier has agreed to finance the

completion of the said contract as stated in No 2

above on the same terms and condition herein stated.

4. That the Borrower is the rightful owner of the

building and Plot No 26 at 31 Road Federal Housing

Estate Sharada Kano measuring as area of 1218

square meters which bears the name Alhaji Suleiman

Yahaya.

Now It Is Hereby Agreed As Follows:

1. That the Financier shall give the Borrower the sum

of Fifteen Million Naira (N15,000,000.00) in order to

perfect the contract awarded to the Borrower and

acknowledged the receipt of the same.

2. That the Borrower shall surrender the original

paper in respect of the said Plot No 26 at 31 Road

Federal Housing Estate Sharada Kano measuring as

area of 1218 square meters which bears the name

Alhaji Suleiman Yahaya of No.32, Caulcrick Road,

Apapa as collateral to the Financier.

3. That the Borrower shall commit the sum of Four

Million naira (N4,000.000.00) to the Financier as the

share of the contract profit.

4. That the Financier shall not release the original

allocation paper of the plot to the Borrower till the

whole sum is liquidated.

5. That

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the Borrower shall liquidate the whole sum that is

Nineteen Million Naira (N19,000,000.00) on the

anniversary of 60 days from the day the Agreement

was executed.

6. That the whole sum of Nineteen Million Naira

(N19,000,000.00) shall attract a 2% profit increase

for every 30 days in the event the Borrower fails to

liquidate the whole money within the stipulated

time.”

The Agreement was executed by both parties on the 5th of

October, 2010. The Appellant failed to repay the money and

he paid only N2 Million out of the N19 Million after the

expiration of the agreed period despite repeated demands.

The Respondent commenced an action under the

Undefended List Procedure for balance of N17 Million

together with the agreed interest of 2% for every thirty

days of default from 5th of December, 2010 until judgment

and thereafter at 10% per annum. The Appellant filed a

notice of intention to defend and the lower Court took

arguments of the parties and found that the affidavit of the

Appellant in support of the notice of intention to defendant

disclosed no triable issue and it entered judgment in favour

of the Respondent under the Undefended List. This

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appeal is against the judgment of the lower Court.

Now, certain basic principles come into play in this matter.

First, it is settled law that parties are bound by the contract

they voluntarily enter into and cannot act outside the terms

and conditions contained in the contract and neither of the

parties to a contract can alter or read into a written

agreement a term which is not embodied in it - African

International Bank Ltd Vs Integrated Dimensional

System Ltd (2012) 17 NWLR (pt 1328) 1, Lagos State

Government Vs Toluwase (2013) 1 NWLR (Pt 1336)

555.

A Court too must treat as sacrosanct the terms of an

agreement freely entered into by the parties as parties to a

contract enjoy their freedom to contract on their own terms

so long as same is lawful and if any question should arise

with regard to the contract, the terms in any document

which constitute the contract are the invariable guide to its

interpretation. It is not the business of the Court to rewrite

a contract for the parties and it should thus not add to or

subtract from or import any provision into the contract -

Omega Bank (Nig) Plc Vs O.B.C. Ltd (2005) 8 NWLR

(Pt 928) 547, BFI Group

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Corporation Vs Bureau of Public Enterprises (2012)

18 NWLR (Pt.1332) 209, Daspan Vs Mangu Local

Government Council (2013) 2 NWLR (Pt.1338) 203,

Afrilec Ltd Vs Lee (2013) 6 NWLR (Pt 1349) 1. A party

cannot be allowed to resile from an agreement he entered

into unless he can prove that he consented to the

agreement under coercion, duress, undue influence,

mistake or misrepresentation.

Secondly, the provisions of the High Court of Kaduna State

Rules relating to the Undefended List provide a summary

judgment procedure. The whole purpose of a summary

judgment procedure is to ensure justice to a plaintiff and

minimize delay where there is obviously no defence to his

claim and thus prevent the grave injustice that might occur

through a protracted and immensely frivolous litigation. It

is to prevent sham defence from defeating the right of a

plaintiff by delay and thus causing great loss to a plaintiff.

In other words, the summary judgment rules are specially

made to help the Court achieve their primary objective, i.e.

to do justice to the parties by hearing their cases on the

merit with utmost dispatch and prevent the frequent outcry

that justice delayed is

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justice denied - United Bank for Africa Plc Vs Jargaba

(2007) 11 NWLR (Pt 1045) 247, University of Benin

Vs Kraus Thompson Organisation Ltd (2007) 14

NWLR (Pt 1055) 441. Speaking on the essence of the

Undefended List procedure, this Court in its unreported

judgment in Appeal No CA/K/131/2010 Samabey

International Communications Ltd Vs Celtel Nigeria

Ltd (Trading as Zain) delivered on the 26th of April, 2013

stated thus:

"It is pertinent to state that the provisions on undefended

list in the High Court of Kano State (Civil Procedure) Rules

are adjunct to the course of justice.

They are Rules of Court touching on the administration of

justice and the procedure is simply designed to ensure

speedier attainment of justice with ease, certainty and

dispatch, when it is abundantly clear that the defendant has

absolutely no defence to the plaintiffs case. The

undefended list procedure is a specie of summary judgment

evolved by the rules of Court for the speedy disposal of

otherwise uncontested cases and where there is no

reasonable doubt as to the efficacy of the plaintiffs claims

and it would be most unconscionable to oblige an otherwise

liable defendant the

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opportunity to employ mere subterfuge to dribble his

opponent and the Court just for the purpose of stalling

proceedings and cheating the plaintiff out of reliefs to

which he ordinarily would have been entitled - Imoniyame

Holdings Ltd Vs Soneb Enterprises Ltd (2010) 4 NWLR (Pt

1185) 561, G. M. O. Nworah & Sons Co Ltd Vs Afam Akputa

Esq (2010) 9 NWLR (Pt 1200) 443, Babale Vs Eze (2011) 11

NWLR (Pt 1257) 48, David Vs Jolayemi (2011) 11 NWLR (Pt

1258) 320.

It is not, however, the aim of the undefended list procedure

to shut out a defendant who wants to contest a suit brought

under the undefended list merely in order to obtain a

speedy trial at the expense of justice - Macaulay Vs NAL

Merchant Bank Ltd (1990) 4 NWLR (Pt 144) 283, Addax

Petroleum Development (Nig) Ltd Vs Duke (2010) 8 NWLR

(Pt 1196) 278. Thus, Order 23 Rule 3 (1) of the High Court

of Kano State (Civil Procedure) Rules gives a defendant

willing to defend a suit placed under the undefended list a

leeway and it obligates such a defendant to file a notice in

writing that he intends to defend the suit together with an

affidavit disclosing a defence on the merit, and it states

that once a

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defendant does this, the Court will grant him leave to

defend."

Thus, the simple issue for determination in this appeal is

whether the lower Court was correct when it found that the

affidavit of the Appellant disclosed no defence on the merit.

The law is that for an affidavit to constitute a defence on

the merit, the defendant must set out the defence in the

affidavit and not simply say that he has a defence. The

affidavit must show reasonable grounds of defence; that

there is some dispute between the parties requiring to be

gone into - Osifo Vs Okogbo Community Bank Ltd

(2006) 15 NWLR (Pt 1002) 260. Under the undefended

list procedure, the defendant's affidavit must condescend

upon particulars and should as far as possible deal

specifically with the plaintiffs claim and affidavit, and state

clearly and concisely what the defence is and what facts

and documents are relied on to support it. The affidavit in

support of the notice of intention to defend must of

necessity disclose facts which will at least throw some

doubt on the case of the plaintiff. A mere general denial of

the plaintiffs claim and affidavit is devoid of any evidential

value and as

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such would not have disclosed any defence which will at

least throw some doubt on the plaintiff’s claim - Ataguba &

Co Vs Gura (Nig) Ltd (2005) 8 NWLR (Pt 927) 429,

Tahir Vs Kapital Insurance Ltd (2006) 13 NWLR (Pt

997) 452, David Vs Jolayemi (2011) 11 NWLR (Pt

1258) 320.

Counsel to the Appellant contended in this appeal that the

Appellant raised two issues in his defence that warranted

further examination by the lower Court by way of a trial.

These were the issues of partnership and the Money

Lenders Law of Kano State. On the issue of partnership,

Counsel submitted that it was the contention of the

Appellant in the notice of intention to defend that the

Agreement between the parties was not a Financing

Agreement but a Partnership Agreement wherein the

parties agreed to share profit and loss. The resolution of

this issue did not warrant a tr ial , but a simple

interpretation of the terms of the contract reproduced

above.

It is a settled principle of interpretation of documents that

where the language used by parties in couching the terms

or provisions of a document are clear and unambiguous,

the Court must give the operative words in the

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document their simple, ordinary and actual grammatical

meaning - Union Bank of Nigeria Plc Vs Ozigi (1994) 3

NWLR (Pt 333) 385, Isulight (Nig) Ltd Vs Jackson

(2005) 11 NWLR (Pt.937) 631, Egwunewu Vs Egeagwu

(2007) 6 NWLR (Pt 1031) 431. It is also settled that in

interpreting a document, the document must be read as a

whole, and not parts in isolation, and that the different

parts of the document must be interpreted in the light of

the whole document and an effort must be made to achieve

harmony amongst i ts dif ferent parts - Unilife

Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ

116, Mbani Vs Bosi (2006) 11 NWLR (Pt 991) 400,

Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc

(2007) 1 SCNJ 375, Agbareh Vs Mimra (2008) 2

NWLR (Pt 1071) 378, Nigerian Army Vs Aminu-Kano

(2010) 5 NWLR (Pt 1188) 429.

A partnership is defined as a voluntary association of two or

more persons who jointly own and carry on a business for

profit. Ordinarily, a partnership will be presumed to exist if

the persons involved agree to share the profits or losses of

the business proportionally - Ezejesi Vs Ezejesi (2008)

LPELR-CA/E/101/2006. Now, applying the above sated

principles on

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interpretation of documents to the contents of the

Financing Agreement reproduced above, it is clear that it is

not a Partnership Agreement and there is no clause therein

suggesting the existence of a partnership arrangement

between the parties.

On the issue of Money Lenders Law, Counsel to the

Appellant posited that charging of interest in default of

payment of the repayment of the money lent, as stated in

the Agreement, connoted that what existed between the

parties was a money lender's agreement and that this

offended the Money Lenders Law of Kano State. This issue

posed the question whether the Respondent is a money

lender within the meaning of, and regulated by, the Money

Lenders Law of Kano State, Cap 95, Laws of Kano State,

1991 and, if the answer is in the affirmative, whether the

Financing Agreement was enforceable. The necessary point

of commencement of enquiry must the definition of "money

lender" within the provisions of the Money Lenders Law

itself.

The relevant Sections here are Sections 2 and 3 of the Law.

Section 2 reads:

"… 'Money Lender’ includes every person whose business is

that of money lending or who carries

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on or advertises or announces himself or holds himself out

in any way as carrying on that business, whether or not he

also Possess or owns property or money derived from

sources other than the lending of money and whether or

not he carries on the business as a principal or as an agent;

but it shall not include:

(a) Any society registered under the Co-operative Societies

Law; or

(b)Any body corporate, incorporated or empowered by

special enactment to lend money in accordance with such

enactment; or

(c) Any person bonafide carrying on business of banking or

insurance or bona fide carrying on business, not having its

primary object the lending of money, in the course of which

and/or purposes whereof he lends money; or

(d)Any pawnbroker licenced under the Pawnbrokers Law

where the loan is made in accordance with the provisions of

the Pawnbrokers Law and does not exceed the sum of forty

Naira."

Section 3 states that:

“Save as excepted in Paragraphs (a), (b), (c) and (d) of the

definition of 'money lender’ in Section 2 any person who

lends money at interest or who lends a sum of money in

consideration of a larger sum being repaid

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shall be presumed to be a money lender until the contrary

is proved.”

The wordings of these two Sections are a word for word

replication of the provisions of the Money Lenders Law of

practically all the States in Nigeria and they have been

subject of judicial interpretation in several cases. The

consensus of all the cases is that the definition of a money

lender under the Law is wide and it encompasses every

person whose business is that of money lending and any

person who lends money on interest or who lends a sum of

money in consideration of a larger sum being repaid.

There are, however, three categories of persons that

cannot be called money lenders within the meaning of the

Money Lenders Law and these are a banker, an insurer and

a person who does not have for his primary object the

lending of money. It follows therefore that a person will not

be designated as a money lender even though he is

involved in money lending, in so far as he is a banker or an

insurer or the primary object of his business is not money

lending.

In other words, the determining factor of whether a

transaction amounts to money lending within the provisions

of the

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Money Lenders Law is not only whether the loan was given

on interest or in consideration of a larger sum being repaid.

It includes a determination of whether the person giving

the loan is not a banker or an insurer or whether the

primary object of the business of that person is money

lending business so as to bring him within the definition of

a money lender in the provisions of the Law. Where it is

not shown that the primary object of the business of the

lender is money lending, such a transaction does not come

within the purview of the Money Lenders Law - Veritas

Insurance Co Ltd Vs City Trust Investment Ltd (1993)

3 NWLR (Pt 281) 349, Eboni Finance & Securities Ltd

Vs Wole-Ojo Technical Services Ltd (1996) 7 NWLR

(Pt 461) 464, Nwankwo Vs Nzeribe (2003) 73 NWLR

(Pt 890) 422, Ajao Vs Ademola (2005) 3 NWLR (Pt

913) 637, Idika Vs Uzoukwu (2008) 9 NWLR (Pt 1091)

34, Ibrahim Vs Bakori (2009) LPELR 8681(CA). This

position of our Courts accords with the view expressed by

Farewell, J in Lintchfield Vs Dreyful (1906) 1 KB 554 at

559 that the Money Lenders Law was intended to apply to

persons who are really carrying on the business of money

lending and not to

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persons who lend money as incident business or to a few

old friends.

It was not in dispute in the instant case that the

Respondent was neither a banker nor an insurer. The

question then is whether, from the facts of this case, it was

shown that the primary object of his business was money

lending. The word primary is said to mean first, main or

most important. The onus of proving that the primary

object of the business of the Respondent was money

lending was on the Appellant – Veritas Insurance Co Ltd

Vs City Trust Investment Ltd supra, Eboni Finance &

Securities Ltd Vs Wole-Ojo Technical Services Ltd

supra, Nwankwo Vs Nzeribe supra.

In the instant case, it was not the case of the Respondent in

the affidavit in support of his case under the Undefended

List that he was in money lending business and/or that the

primary object of his business is money lending. It was not

part of the case of the Appellant in the affidavit in support

of the notice of intention to defend that the Respondent

was in the business of money lending and/or that the

primary object of the business of the Respondent was

money lending. There was nothing before the lower

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Court showing that the Respondent carried on the business

of money lending.

The Respondent was a money lender within the provisions

of the Money Lenders Law of Kano State and as such the

Financing Agreement entered into by the parties was not

governed by the provisions of that Law. The issue of

illegality of the Agreement as raised by the Appellant did

not thus arise. The Agreement was legal and enforceable.

The two issues canvassed by the Counsel to the Appellant

did not thus constitute triable issues to warrant this matter

being transferred to the general cause list by the lower

Court. It is trite that a defendant who has no real defence

to an action should not be allowed to disturb and frustrate

the plaintiff and cheat him out of the judgment he is

legitimately entitled to by delay tactics aimed not at

offering any real defence to the action but at gaining time

within which to continue to postpone meeting his obligation

and indebtedness - Kenfrank (Nig) Ltd Vs Union Bank

of Nigeria Plc (2002) 15 NWLR (Pt 789) 46, Sanyaolu

Vs Adekunle (2006) 7 NWLR (Pt 980) 551.

The lower Court was thus on a very firm ground when it

refused to grant the

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Appellant leave to defend the action.

It is for these reasons, and fuller reasons contained in the

lead judgment, that I agree that there is no merit in this

appeal. I hereby dismiss the appeal and affirm the

judgment entered against the Appellant by the High Court

of Kano State in the Ruling delivered by Honorable Justice

Ibrahim Musa Karaye in Suit No K/462/2011 on the 14th of

February, 2012. I abide the consequential orders contained

in the lead judgment

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I

have read in draft the judgment of my learned brother,

Isaiah Olufemi Akeju, JCA, and am in agreement that there

is no merit in this appeal. I also dismiss it, with the costs,

as awarded in the lead judgment.

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