Alimi Lawal. V. G.b Ollivant (Nig.) Ltd (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C. 

This is an appeal against the judgment of the Western State Court of Appeal reversing the judgment and order of the High Court of Ibadan (Aguda, J.) ,wherein the plaintiff, herein appellant, was granted a declaration in terms of his claim against the defendants, now respondents.

The plaintiff instituted in the High Court, Ibadan, suit No. 1/57/68 claiming against the defendants as endorsed on his writ of summons:

“A declaration that the purported registration of the deed of Conveyance dated 2nd February, 1961, and registered as No. 6 at page 6 in Volume 430 of the Register of Deeds kept in the Lands Registry at Ibadan is illegal and null and void and of no effect.”

Pleadings having been ordered were duly filed and delivered. Having regard to the complaints of the appellants in this appeal and since a number of issues would appear to have been settled on the pleadings, for the better appreciation of the issue in controversy between the parties and which went to trial, we consider paragraphs 1 to 7 of the Statement of Claim and paragraphs 4, 6 and 7 of the Statement of Defence of material relevance the purpose of this appeal.

Paragraphs 1 to 7 of the Statement of Claim are in the following terms:

“1. The plaintiff is the person described as Mortgagor in the Deed dated 2nd February, 1971, and registered as No. 6 at page 6 in Volume 430 of the Register of Deeds kept in the Lands Registry at Ibadan and referred to in the Indorsement to the Writ of Summons in this action.

2. The defendants are a company incorporated under the Companies Act and carry on business in Ibadan, among other places. They are parties to the Deed foresaid.
3. The plaintiff is an illiterate person.
4. The plaintiff was, on the date of the execution of the Deed aforesaid, the beneficial owner of the property at Yemetu, Ibadan, measuring 55.497 square yards which was a property purporting to have been affected by the Deed aforesaid.
5. The Deed aforesaid was not executed by the plaintiff in the presence of a Magistrate or Justice of the Peace nor was it subscribed by any Magistrate or Justice of the Peace as witness thereto.
6. The deed aforesaid was registered at the Lands Registry.
7. The plaintiff will contend, at the trial of this action, that such registration is illegal and null and void and of no effect.”

In answer to the averments contained in the Statement of Claim set out above, the defendants pleaded in paragraphs 1, 2, 4, 6 and 7 of their Statement of Defence as follows:

“1. The defendant admits paragraphs 1, 2, 5 and 6 of the plaintiff’s Statement of Claim.

2. The defendant denies paragraphs 3 and 7 of the plaintiff’s Statement of Claim.
3. The defendant avers that the Registrar of Deeds in Ibadan was satisfied that the Mortgage dated the 2nd of February, 1961, complied with the provisions of the Land Instruments Registration Law before he registered the Mortgage as No. 6 at page 6 in Volume 430 of the Lands Registry kept at Ibadan.
4. The defendant also avers that during the course of negotiations to mortgage his property to secure the account of Mr. E.B. Owosho with the defendant the plaintiff claimed that he was literate and at the time of execution of the mortgage also claimed that he was literate.
5. Wherefore the defendant avers that the plaintiff’s claim is frivolous and misconceived, and should be dismissed.”

On 8th November, 1968, the case came up for hearing and Mr. Aderemi, learned counsel for the plaintiff sought and obtained leave to amend paragraph 4 of the Statement of Claim by deleting therefrom the figure “55,497” appearing in line 3 thereof and substituting therefor the figure “554.97”, so that by the amendment, the land involved in the Deed, the subject matter of the action, was alleged to measure 554.97 sq. yards. Thereupon, Chief Okubadejo, learned counsel for the defendants stated that he admitted paragraph 4 of the Statement of Claim as amended. By implication therefore, paragraph 1 of his Statement of Defence was amended to include paragraph 4 of the Statement of Claim.

Thus after the close of pleadings and the amendment and the admission referred to herein, the only live issue of fact, it seems to us, in controversy on the pleadings triable and for determination by the court, was as to whether or not the plaintiff was illiterate as alleged by him in paragraph 3 of his Statement of Claim. For, if he was, and the statutory requirements of the Land Instruments Registration Law (Cap. 56) of the Laws of the Western State were not complied with, then the consequences to flow therefrom would be a matter of law just as the consequences would be equally legal in character if, in fact, the plaintiff was found by the court not to be illiterate. This point was clearly made by Mr. Aderemi at the opening of the case for the plaintiff and before any evidence was called. It was accepted or acquiesced in or at least not dissented from by Chief Okubadejo.

Such was the state of affairs when the trial of the case commenced. Evidence was called by both parties in an endeavour to establish their respective cases. The plaintiff alone testified for himself while three witnesses gave evidence for the defendants. In the course of his testimony, the 2nd witness for the defendants, Miefimiebipa Fiderikumo, who described himself as the Manager, sought unsuccessfully to tender in evidence a Deed of Conveyance purported to have been surrendered to the defendants by the plaintiff. On the objection of the learned counsel for the plaintiff on a number of grounds, the document was rejected and was so marked. Otherwise the trial proceeded to finality. The learned trial Judge took time to consider his judgment. Thereafter he gave judgment for the plaintiff after carefully examining the whole of the evidence in the case. He held that the plaintiff is illiterate and therefore entitled to the declaration which he sought; and accordingly granted him a declaration in terms of the indorsement on his Writ of Summons.

The defendants successfully appealed against the judgment to the Western State Court of Appeal on a number of grounds, of which only two were argued. They were argued together and appeared to have tilted the scales in favour of the defendants. The two grounds were:-

1. The learned trial Judge erred in law and misdirected himself when he rejected admissible evidence which is the conveyance dated 6th May, 1959, and registered as No. 15 at page 15 in Volume 294 Ibadan, whereby the plaintiff derived his title to the property mortgaged to the appellant company and referred to in Exhibit A and thereafter proceeded to hold that ‘there is not before me any evidence that the plaintiff claimed to be literate previous to the execution of Exhibit ‘A’ – the rejected document being the only available evidence by which that fact could be proved.
2. The learned trial Judge erred in law and misdirected himself in misconceiving the issues involved in the action when he held that the only fact in issue was that contained in paragraph 3 of the Statement of Claim, namely: ‘The plaintiff is an illiterate person.’ The fact of illiteracy was not the only fact in issue (if at all it is) and this misconception of the issues involved led to a wrong decision.”

The appeal having succeeded, the judgment and order of the High Court granting the plaintiff the declaration in terms claimed by him were set aside and the claim of the plaintiff was dismissed with costs.