Mrs Nnenna Idika V. Mr. Romanus Uzoukwu (2007)
LawGlobal-Hub Lead Judgment Report
GALADIMA, J.C.A.
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.
Other Citations: (2007)LCN/2515(CA)
