Jolasimi Zaria V. Alhaji Abdu Small (1973)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C. 

This appeal is a sequel to proceedings instituted in the High Court, Kaduna, North-Central State by the present respondent as plaintiff against the appellant who was the defendant in that court.

The action was for repayment of a total amount of 1,400 pounds which the plaintiff alleged was due to him from the defendant. There were no pleadings and the case was tried summarily by Read C.J. who eventually gave judgment for the plaintiff against the defendant in the sum of 1,300 pounds (or N2,600) with costs.

In the course of the trial in the High Court the plaintiff gave evidence to the effect that he had during the month of November 1966, given a sum of 100 pounds to the defendant to buy stones for him but that the defendant neither bought the stones nor refunded the money. The plaintiff also testified that on different occasions he lent the defendant amounts of 500 pounds, 200 pounds and 600 pounds respectively, the last payment of 600 pounds having been made to the defendant to enable him to complete a P.W.D. contract at Malunfashi and the previous amounts of 500 pounds and 200 pounds lent to him for the purposes of his other businesses. The plaintiff produced as Exhibit A the agreement for the loan of 500 pounds and as Exhibit B the agreement between them for the loan of 600 pounds.

The defence was manifestly that the entire debt has been repaid as well as the profits accruing from the respective businesses for which the loans were made. A number of questions directed to showing that these capital loans as well as the profits relating thereto had already been paid to the plaintiff by regular instalments were asked of the plaintiff in the course of cross-examination.

The plaintiff admitted having received monies from the defendant on several occasions in connection with these transactions but persistently stated that he did not remember the actual amounts which he had received. For instance his answers to such questions are of the following pattern:

“Q. I put it to you that defendant paid you 722 pounds: 12s:6d as stated in Exhibit D.

A. I know he gave me profit but I cannot say how much.”

Later in the course of his examination the following notes were made by the learned trial Chief Justice:-

“Q. I put it to you that the payments were for repayment of capital and profits.

A. No, that is not correct. I agree that under the agreement I was to receive 2/5 of the profits derived from the 500 pounds. I confirm that all the payments defendant made to me were profits. It is correct that I gave defendant 600 pounds. I received money from Amodu Adape as profit derived from the 600 pounds. Defendant told me that 50 pounds would be derived monthly as profits but nothing was given to me for 8 months. I cannot remember how much I received from Amodu Adape.
Q. I put it to you that you received 678 pounds:2s:6d from Amodu Adape in respect of the 600 pounds loan.

A. I cannot remember.”
After the end of cross-examination learned counsel for the plaintiff who was supposed to re-examine his client instead asked for and obtained the leave of court to produce in evidence a letter which he stated the defendant had written to the plaintiff. The letter dated 16th March, 1968 was produced and admitted in evidence as Exhibit E and it reads as follows:-

“Dear Sir,
Repudiation of Agreement due to Business Insolvency
This is to refer to the agreement dated the 18th March, 1966 and to advise you that due to the insolvency of the business for which a sum of 500 pounds, was taken from you, I have to advise you that the business has been wound up and the agreement is hereby repudiated as from today the 18th March, 1968.
The capital of 500 pounds taken would be refunded to you on monthly instalments through your banker commencing from the first week in April 1968, until the final repayment is effected.

Yours faithfully,