Alhaji Abdullahi Ibrahim V. Mallam Zangina Abubakar Bakori & Anor. (2009)

LawGlobal-Hub Lead Judgment Report

JOHN INYANG OKORO, J.C.A.

The Appellant had sometime in 2002 approached the 2nd Respondent for financial assistance to the tune of N2,500,000.00 to resuscitate his ailing business having earlier collected from him the sum of N242,000.00. Not being able to help him personally again, the 2nd Respondent introduced the Appellant to the 1st Respondent who agreed to assist the Appellant with the sum of N2,200,000.00 instead of the N2,500,000.00 requested. Also, the parties agreed at a monthly interest of 10%. This agreement was thereafter reduced into writing in Exhibit A dated 3rd July, 2002 which was executed by both parties. After the execution of Exhibit A, the sum of N2,200,000.00 was released to the Appellant, who in turn issued a post dated cheque for the sum of N2,200,000.00 to the Respondents payable on the 3rd day of August, 2003. The said cheque was tendered as Exhibit D. The Appellant was able to pay the 10% monthly interest for the months of July, August, September and October, 2002, and half the amount for the month of November, 2002 all totaling the sum of N990,000,00 (Nine Hundred and Ninety Thousand Naira). Due to the failure of the Appellant to continue to pay the interest as agreed, the Respondent wrote Exhibit B to the appellant requesting for the interest due and the principal. On receipt of Exhibit B, the Appellant wrote Exhibit E to the respondents pleading for the reduction of the monthly interest. In addition the appellant instituted an action at the Sharia Court, Ungwan Rimi Kaduna for the interpretation of Exhibit A and review of same, for according to the appellant, he thought the 10% monthly payment to the Respondents was a repayment of the principal sum and not interest which is the language of Exhibit A. The Appellant having failed to abide by the terms in Exhibit A, the Respondents filed the action giving birth to this appeal seeking the following reliefs as contained in paragraph 22 of the statement of claim:-

“1. The sum of N2,200,000.00 (Two Million, Two Hundred Thousand Naira) being the amount collected by the Defendant from the plaintiffs as financial assistance in order to revive his collapsing business

2. The sum of N220, 000.00 (Two Hundred and Twenty Thousand Naira) being monthly penalty for withholding the said amount as agreed from the month of December, 2002 till judgment and payment.
3. A DECLARATION that the Defendant is in breach of the Financial Assistance Agreement dated 2nd July, 2002 till judgment and payment.
4. The sum of N242,000.00 (Two Hundred and Forty Two Thousand Naira) being money owed the 2nd plaintiff by the Defendant with 21% interest per annum from the 2nd December, 2002 till judgment and 10% thereafter till Payment.

At the trial, both parties gave evidence and after addresses by both Counsel, the learned trial judge held, amongst others that –

“the transaction between the parties is the case of a simple transaction; Having failed to prove that the Plaintiffs are money lenders, Exhibit A cannot therefore be said to fall under the scrutiny of the Money Lenders Law.”

He then ordered the Appellant to pay to the first Respondent the sum of N2,200,000.00 with interest at the rate of 2% from the date of the judgment, 23rd June, 2006. Judgment was also entered for the 2nd Respondent in the sum of N242,000.00 which he assisted the Appellant.

Aggrieved with the decision of the Court below, the Appellant appealed to this Court with a notice of appeal dated 21st September, 2006 containing seven grounds of appeal. Briefs were filed and exchanged in line with Rules of this Court. In the brief prepared by A.A. Owolabi Esq, Counsel for the Appellants, four issues have been distilled for the determination of this appeal. The issues are:-

“1. whether the 1st Respondent who lent money on interest is not to be bound by provision of Money Lenders Law of Kaduna State (Distilled from grounds 1 and 2).

2. whether an action instituted prior to the maturity date on a post – dated cheque was not pre – mature (Distilled from grounds 3)
3. whether the trial Court was right to suo motu have awarded 2% interest on the judgment sum in contravention of Order 39 Rule 8 of the High Court (Civil Procedure) Rules 1987 when no such relief was claimed or justified by evidence (Distilled from ground 4)
4. whether the judgment of the trial Court was not pervasive in the circumstance of the case (Distilled from grounds 5, 6 and 7).

The Respondents, through their Counsel, E.A. Aremo Esq also formulated four issues. In the brief settled by the said Learned Counsel, the following issues are formulated:-

“1. Whether the provision of the Money Lenders Law chapter 100 of Kaduna State are applicable to the Respondents in respect of whom the appellant in paragraphs 8 and 16 (a) of his Amended statement of defence, had pleaded are not Money Lenders, which same was confirmed by the evidence of PW1 and PW2 (Grounds 1 and 2)

2. Whether the respondents were right to have initiated this action and claimed for their interests as contained in Exhibit A when the appellant had breached its provisions and further declared hostility by instituting an action against them at the Sharia Court (Ground 3)
3. was the trial Court right in awarding interest On the amount claimed in the respondent’s Statement of claim as done in this case (Ground 4)
4. In view of the evidence adduced before the Court, was the trial Court right in granting the respondent’s claims in Grounds 5, 6 and 7.

On the 22nd April, 2009 when this appeal came up for hearing, and just before the briefs were adopted, the learned Counsel for the Respondents prayed for and obtained leave of Court to argue the notice of preliminary objection dated 16th April, 2009 and filed on 17th April, 2009 by the Respondents. Arguments in respect of the said notice of preliminary objection are contained in pages 4 – 5 of the brief of the Respondents. The learned counsel for the Appellant filed a reply brief in response to the argument on the preliminary objection. I shall consider this preliminary objection before taking further steps in this appeal.

Basically, it is the contention of the learned counsel for the respondents that Grounds of appeal Nos 3 and 5 in the Notice of appeal and issues 3 and 4 formulated therefrom by the Appellant are incompetent.

On ground 3, learned counsel for the Respondents submitted that the issue as to whether or not the claim of the Respondents at the court below was mature or immature was never canvassed and decided upon by the court below. That it is a new issue and that in order to have it raised in this court, leave must be sought and obtained. That although the learned counsel for the Appellant raised this issue in his address at the Lower Court, he was overruled as it did not form part of the case of the parties and no appeal has been entered against that decision. Learned Counsel cites and relies on the case of Bello Vs. Fayose (1999) 7 S.C.N.J. 286, Leventis Technical Ltd Vs. Petrojessica Enterprise Ltd (2001) 4 S.C.N.J. 121, Biariko Vs. Edeh – Owude (2001) 4 S.C.N.J. 332. The same argument was made in respect of ground 5.

Finally, that issues 3 and 4 predicated on grounds of appeal Nos. 3 and 5 should be held to be incompetent having been formulated from incompetent grounds relying on the cases of Akibu Vs. Oduntan (2000) 7 S.C.N.J. 189 and INCAR Nigeria Plc Vs. Olaogun Enterprise Ltd (1999) 12 S.C.N.J. 171. He urged the Court to strike out issues 3 and 4 also.