On 28 October 1998 the usual orders were made by the Deputystrar on a summons for Dire Directions taken out by the Plaintiff.
On 3 April 2000 the Defendant filed an applicato have the injunction dissolved and the action dismissed foed for want of prosecution.
In an anng affidavit the Pthe Plaintiff averred that discussions between the parties were continuing with a view to settlement.
On 8 May 2000 both Mr. Nagd Mr. Chandra appeared before me. After discussion I on I recorded both counsel as agreeing that there
were no fundamental issues of fact and that the legal validity of the mortgage was the only issue. In these circumstancordererdered
written submis to be filed.
In due course both Counsel filed helpful and comprehensive written submission.
Both Co agree that whether or not the mortgage is subject to the provisions of the Moneylenders Acrs Act (Cap. 234) (the Act) is at
the heart of this dispute.
Put simply Mr. Nagin’s argument is that the mortgage represented the lending of a sum of money in consideration of a larger sum of
money being repaid and accordingly was presumed by Section 3 of the Act to be lending by a moneylender. Since the Defe is not a
li a licensed moneylender Section 15 provides that the mortgage is unenforceable.
Mr. Chandra on the other hand submits that this lending of money was “one off” and not part of a course of money lending by the Defendant.
Furthermorrelies on Sectioection 29 (1) (a) of the Act and submits that the transaction is excluded from the Act and is therefore
enforceable.
Among other authorities cited I was referred to Ashni Kumar v. Hasid Ali
On the undisputed facts before me the mortgage (a co which is exhibited to the Plaintiff’s first affidavit) pro) provided for a rate
of interest of 13.5%. This rate exceeds the 12itlimit imposed by the Act (Section 29 (I) (b) and see also LN 22/82). Although the
Defendant hug sought retrospectively ty this rate to bring it within the limit I am satisfied that a retrospective unilateral varl
variation of a mortgage term for the purof avoiding the Act is impermissible (see Kasumu v. Baba Baba – Egbe [1956] 3 All ER 266, 271 I and 272A.)
p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> g reached the conclusion that Section 29 cannot avail the Defendant the question which then then presents itself is whether the Defendant
has discharged the statutory onus upon him of rebutting the presumption that he was a moneylender.
In hitten submission Mr. Chandra argued that there “is no evidence that the Defendant has been ieen involved in frequent transactions
to be possibly classified as a moneylender”.
