Mandilas Limited V. Ekhator Ayanru (2000)

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SANUSI, J.C.A

This is an appeal against the judgment of Lagos State High Court, Coram I. O. Agora J. delivered on 22nd of September, 1989. The respondent who was the plaintiff at the lower court filed a writ of summons dated 17th November, 1980. Therein, he sought a declaration that he was not bound by the deed of lease dated 24th August, 1970 made by him and the appellant company as defendant in the court below and affecting property situate at 3 Murtala Mohammed Road, Benin-City in the defunct Bendel State now Edo State which was registered as No.7 at page 7 in volume 95 of the Lands Registry Benin-City. In the alternative the plaintiff claimed a declaration that the said deed of lease is a nullity.

The facts of the case as presented before the lower court in the pleadings and evidence led by the parties are summarised below. In 1970 the plaintiff (respondent) agreed to extend the tenancy of the appellant company for additional six years. The plaintiff claimed that he could not read and write in the English language or any other language. He was paid a sum of 2,880 Pounds (N5,760) by the appellant as rent for the six years from 1975 to 1981. Some documents were sent to him in an envelope which he never cared to have them read or interpreted to him. On further inquiry he later learnt that the documents sent to him were lease which was registered in the land registry. He denied executing the said lease or authorising any body to negotiate or agree on its terms on his behalf. The plaintiff further averred that the alleged execution and registration of the said lease contravened the provisions of the Land Instrument Registration Law.

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On the other hand the defendant company’s (appellant’s) case at the lower Court was that a supplemental lease was executed by the parties on 24th August, 1970 in respect of the land and buildings situate at Mission Road Benin-City for a period of 94 years. It is also the case of the defendant that the plaintiff was literate or that by his act or omission intentionally caused the defendant to believe that he was literate and to act upon such belief to its detriment. The defendant further averred that the plaintiff signed the said supplemental lease without any pressure whatsoever from it. Also based upon written correspondence, the plaintiff is literate or in the alternative he knowingly permitted his oldest son Lt. Col. N.A.E. Anyaru to represent him that the plaintiff was literate. In a considered judgment dated 22/9/89 the learned trial Judge granted the declaration demanded by the plaintiff (respondent) and held that he was an illiterate who could not read or write in any language and that he was not bound by the deed of lease. The plaintiff died after the lower court delivered its judgment hence on 24/9/96 this court ordered that he be substituted by his son Lt. Col. Nicholas Anyaru (Rtd) as respondent in this appeal. Dissatisfied with the lower court’s judgment the appellant appealed to this court. The appellant filed amended notice of appeal containing four grounds of appeal including the omnibus ground of appeal out of which it distilled three issues for determination in its brief of argument which are reproduced below:-

(i) Whether the only legally admissible evidence relevant to prove the respondent’s signature on exh. B. was the evidence of PW2 (his son).

(ii) Whether the respondent is in fact an illiterate and consequently could not have signed the lease agreement.

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(iii) Whether it was right and proper for the lower court to raise suo motu and without the benefit of addresses from counsel, determines an issue not raised by either side.

Having been served with the appellant’s brief of argument, the respondent also formulated three (3) issues for determination in this appeal. The issues he raised are as follows:-

(a) Whether having regard to the pleadings evidence and the circumstances of the case the learned trial Judge was not entitled to hold that the plaintiff was an illiterate who could not read and write in any language.

(b) Whether the facts pleaded and evidence adduced did not entitle the trial Judge to apply the Illiterate Protection Law.

(c) Whether having regard to the evidence adduced by either party, the weight of evidence did not tilt in favour of the plaintiff.

I shall proceed to deal with the issues formulated by the parties and shall start with those formulated by the appellant’s counsel. On the first issue it is the submission of the learned counsel that under section 100 of Evidence Act if a document is alleged to have been written wholly or in part by any person, the signature or handwriting of so much of the document as is alleged to be in that persons handwriting must be proved to be in his handwriting. By this provision the burden of proving the respondent’s signature lies on the appellant in this case. He further argued that section 100 does not require any particular method of proving a person’s signature on a document. He cited sections 101(2) and 103 of the Evidence Act as other alternative means of proving the making of document or signature on documents.

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The learned appellant’s counsel further argued that the learned trial Judge relied heavily on the evidence of PW 2 who was alleged to be acquainted with the signature of the plaintiff to the exclusion of all other evidence in rebuttal adduced by the appellant. It is also submitted by the counsel to the appellant that a witness who was not present or did not see the document in question being written or signed by a witness may depose his opinion that the signature is that of a particular person. It is not necessary, according to the learned counsel that the witness should have seen the person whose signature is in question sign it. It is sufficient if he has received documents purported to be written or signed by him. He cited the case of Doed Mudd v. Suckermore 7 L.J QB 33. He said the DW2 having said in his testimony that he received or seen several correspondence on Exh. B and identified plaintiff’s signature his testimony should not have been disregarded by the lower court. In his reply the respondent’s counsel plaintiff argued that the issue whether the plaintiff signed or thumb printed the document or not is irrelevant as it does not make him to be literate. He argued further that the fact that a person can sign his name and read figures does not mean that he is not an illiterate with respect to understanding the meaning and effect of documents. See SCOA Zaria v. Okon FSC 562: (1959) SCNLR 562.

It is clear from the record of appeal that the learned trial Judge made the following finding:

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