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Kachia v. Hadi

ALHAJI ALI MOHAMMED KACHIA

V

GARBA HADI

COURT OF APPEAL

( KADUNA DIVISION )

MARY U. PETER-ODILI JCA ( Presided )

THERESA NGOLIKA ORJI-ABADUA JCA

JOSEPH TINE TUR JCA ( Read the Lead Judgment )

CA/K/222/2003

THURSDAY, 20 JANUARY 2011

APPEAL - Case fought on pleadings and oral evidence - How determined - Appeal based on - Duty on appellate court therein

CONTRACT - Agreement - When may be declared illegal and unenforceable

CONTRACT - Illegality - Proof of - Effect of

CONTRACT - Parties to a contract - Intention of - How determined Construction of contract - Proper approach of court thereto Oral evidence - Irrelevance of thereto - Evidence Act, 1990, section 132(1)(b) considered

CONTRACT - Partnership - Existence of - How court determines

CONTRACT - Valid agreement - When exists between parties

CRIMINAL LAW AND PROCEDURE - Duress - What is - Party who alleges - Onus on to plead and prove

CRIMINAL LAW AND PROCEDURE - Illegality - Proof of - Effect of

EVIDENCE - Admitted facts - Proof of - Needlessness of - Evidence Act, 1990, section 75 considered

INTERPRETATION OF STATUTES - Statute - Where court imports words into - Impropriety of - Express mention of a thing therein Connotation of

PRACTICE AND PROCEDURE - Case fought on pleadings and oral evidence - How determined - Appeal based on - Duty on appellate court therein

STATUTE - Evidence Act, 1990, section 132(1)(b) - Contract Construction of - Proper approach of court thereto - Oral evidence - Irrelevance of thereto

STATUTE - Evidence Act, 1990, section 75 - Admitted facts - Proof of - Needlessness of

Issues:

  1. Whether exhibit 1 qualifies as joint business or partnership agreement, and therefore the parties are to share not only profits but also losses of the business.
  2. Whether uncertified certificate of occupancy, i.e. exhibits “2” and “2A” are admissible in evidence.
  3. Whether the trial court wrongly placed the burden on the appellant to prove where exhibit “3” was made.
  4. Whether the object of the joint business or partnership as pleaded and testified to at trial is legal.
  5. Whether the trial court evaluated and considered properly the evidence led at the trial.

Facts:

The plaintiff commenced an action against the defendant in the High Court of Kaduna State. The defendant counterclaimed for damages for breach of contract and a refund of his money. He claimed that he entered into a profit sharing agreement with the plaintiff which the latter was to run while he would finance the business, and pursuant to this, he advanced a sum of N500,000.00 (five hundred thousand naira) to the plaintiff. He further claimed that the plaintiff had failed to inform him of how the business is run, nor gave him any share of the profit as agreed, that he had also refused to refund him  his money despite repeated demands for same. The trial court dismissed plaintiff’s claims for want of diligent prosecution and allowed the counterclaim in part. The plaintiff was aggrieved and appealed to the Court of Appeal.

In determination of the appeal, the Court of Appeal considered the following statutes:

Evidence Act, 1990, section 132(1)(a)

132(1)  “When any ... contract ... has been reduced to the form of a document or series of documents, no evidence may be given of ... the terms of such contract, ... except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence: provided that any of the following matters may be proved;

(a) fraud, intimidation, illegality; want of due execution: the fact that it is wrongly dated; existence, or want or failure of consideration; mistake in fact or law; want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract; or any other matter which, if proved, would produce any effect upon the validity of any document, or of any part of it, or which could entitle any person to any judgment, decree, or order relating thereto.”

Kaduna State Partnership Law, 1991, sections 4(1) and 5

4(1) “Partnership is the relationship which subsists between persons who have agreed to carry on and are carrying on a business in common with a view to profit.

5. In determining whether a partnership does or does not exist, regard shall be had to the following rules.

(c)        ...

(iv) The advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender shall receive a rate of interest varying with the profits or shall receive a share of the profit arising from carrying on the business or liable as such; Provided that the contract is in writing and signed

by or on behalf of all the parties thereto.”