Debesi Djukpan V Rhorhadjor Orovuyovbe And Another (1967)
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The appellant in this appeal was the plaintiff in an action to redeem land, which he claimed had been pledged to the defendants, in the Central Urhobo Grade B Court which was dismissed with £25 costs. He appealed first to the Chief Magistrate, Warri, and from him to Prest, J. in the Warri High Court but in each court his appeal was dismissed. The plaintiff’s claim as set out in his particulars was-
‘The plaintiff’s claim against the defendants jointly and severally is for the redemption of plaintiff’s late grandfather’s portion of land known and called “Edu Bush” situated by the second bridge along Iwrekan-Otu Jeremi Road in Jeremi clan which piece of land was pledged by the plaintiff’s late cousin Oginlbo on behalf of the “Porno” family to the defendants late father Orovuyovbe some 22 years ago for the sum of £5-15s-0d.
2. The plaintiff had on behalf of the “Porno” family approached the defendants on several occasions for the redemption of the said piece of land but this had been turned down whereupon the plaintiff now seeks through this court the redemption of the said piece of land. The value is £50:”
It was not in dispute that the defendants were in occupation of the land and had so been since 1942, but what was at issue was whether the defendants occupied it by virtue of a redeemable pledge or because they had bought the land outright from the plaintiff.
In this Court Dr. Odje for the appellant sought leave to argue a number of grounds of appeal but objection was taken to some of them by Mr. Ogbobine for the respondents on the ground that either they were never raised in either of the appeals to the courts below or at any rate they were not argued on appeal to the Warri High Court. Dr Odje conceded this but argued that this Court had a discretion to allow such grounds to be argued notwithstanding the failure to argue them in the courts below ff the grounds raised points of law and the justice of the case required it. He further submitted that the reason for the failure to argue these points in the courts below was a change of counsel for the appellant and that he had only been briefed before us. We agree with Dr. Odje that this Court has a discretion whether to allow grounds of appeal to be argued which had not been argued in the High Court, but in our view when this is the position the burden is on the appellant to satisfy us that there will be no injustice by allowing them to be argued here on the material before us. If there are special circumstances and they involve substantial points of law then as the Privy Council did in Abinabina v. Enyimadu 12 W.A.C.A. 171 leave may be granted or as in the Commissioner of Lands v. Arah 14 W.A.C.A. 510 where the new points sought to be raised went to the existence of the action then leave may be granted. The Judicial Committee of the Privy Council in the United Marketing Co. v. Kara  1 W.L.R. 523 has in our view helpfully set out the practice which it considers desirable in the following passage from Lord Hodson’s judgment at page 524-
‘Their Lordships are of the opinion that the appellants should not be allowed to take this point at this stage. In the first place, the point could have been met by evidence that if the claim had been made against the company under a subsisting policy the company would not rely on the breach of the condition or possibly by some other evidence. Their Lordships would not depart from their practice of refusing to allow a point not taken before to be argued unless satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, If fully investigated, would have supported the new plea: Connecticut Fire Insurance Co. v. Kavanagh  A.C. 473., 480; and Archambault v. Archambault  A.C. 575.
Even If the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow a fresh point of law to be argued without the benefit of the judgments of the judges in the court below. In this case the appellants have relied in support of their submission that there was a breach of condition on two South African cases, Lewis Ltd. v. Norwich Union Fire Insurance Co. Ltd. (1916) S.A.L.R. App. D.509 and Sacks v. Western Assurance Co. (1907) Tr. H.C. 257 which on similar facts support their submission, but their Lordships are not prepared to say that the point is too plain for argument to be required upon ft.
The arguments and judgments in these two cases indicate that at any rate in the United States of America there are conflicting decisions on this topic, and no direct authority in this country was available so far as the researches of the appellants were able to show. Accordingly, their Lordships, would not, even if the question were a bare question of law, entertain the submission that the respondent’s claim is to be defeated by reason of his breach of a condition of his contract of Insurance with the Jubilee Co., and they would follow the guidance given by Lord Birkenhead, L.C. in North Staffordshire Rafhvay Co. v. Edge  A.C. 254, 263, when he said, ‘The efficiency and the authority of Appeal, are Increased and strengthened by the opinions of learned judges who have considered these matters below. To acquiesce in such an attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest Importance without having received any assistance at all from the judges in the courts below.’ The Lord Chancellor went on to say that there might be very exceptional cases where new matters might be considered, but their Lordships do not regard this case as requiring such exceptional treatment.”
Moreover, there may, for Instance, be cases where subsequent decisions of this Court are contrary to what was decided in the High Court so that they were not known at the time in that court or there may be special circumstances where the lower court is bound by a decision, when the higher court is not, which would warrant leave being granted though even then in the latter instance it is desirable for the point to be taken at the earliest opportunity even If it has in fact then only to be reserved for argument in a later appellate court. Be these instances as they may, in this appeal the only ground for the exercise of our discretion was that counsel had changed and we did not consider that this alone was enough to discharge the burden on the appellant of satisfying us that leave should be granted, as otherwise any appellant just by changing his counsel could seek leave to argue points he had not put forward In the lower courts, and we accordingly refused leave to appeal on these grounds. Dr. Odje also sought leave to argue the question of the admissibility of a document because it was incorrectly stamped, but when we pointed out to him the provisions of section 23 of the Supreme Court Act, 1960, he agreed that he was precluded from so arguing so that leave to argue that ground of appeal was refused.
The first ground of appeal that then remained that was argued was that there was an error in law in holding that exhibit A., which reads as follows-
“AN AGREEMENT ENTERED BETWEEN OGINIBO OF IWREKA OWNER AND OREVOYEVBE (sic) OF OTUJEREMI BUYER.
I, Oginibo of Iwreka wholly and solely sold this my land “Edu” to Orevoyevbe of Otu-Jeremi at the sum of £5-15s-0d
The buyer Orevoyevbe Is to occupy the land and can farm on it, or plant crop it as he wish.
If the said Orevoyevbe die his sons and grand sons will use the land for ever. From today’s date this land “Edu” become personal property of Orevoyevbe. If any body come and interfere in the land “Edu” I shall deal with the party seriously.
Oginibo His X Mk.
Orevoyevbe His X Mk.
W/M. Orevoyevbe His X Mk.
Orhordadje His X Mk.
Odje His X Mk.
Akpojluovbi His X Mk.
Ovie Ugo His X Mk.
Orevoyevbe pay £1-15s-0d 11th October, 1941. B/£4-0s-0d. £1 paid 8th January, 1942 B/£3. £3 paid 18th March, 1942.
W/M The whole debt is satisfied.
S. L . Orubu
C.N.C.”, could be treated as a receipt to evidence sale of the land in dispute after the document was held inadmissible by virtue of the Land Instruments Registration Law.
In our judgment the learned judge on appeal was quite correct to hold that this document was an instrument within the meaning of section 2 of the Land Instruments Registration Law as it was capable of having effect as an estate contract, but in our view section 16 of that Law did not, when it said “No Instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall have been registered in the proper office as specified in section 3”, preclude exhibit A being admitted as a receipt for the payment of money and as a memorandum evidencing a transaction under native Law and custom. Mr. Ogbobine sought to rely for its admissibility on the decision in Yaya v. Mogoga 12 W.A.C.A. 132 but that case does not in our view assist as it turned upon the application of the Land Registration (Agreements Exemption No. 2) Regulations 1944 which did not apply here. Dr. Odje for his part, however, sought to distinguish Ogunbambi v. Abowaba 13 W.A.C.A. 222, which Mr. Ogbobine craved in aid on this question of inadmissibility, on the ground that in that case both sides claimed title to the land whilst in the present appeal the dispute was whether it was a pledge or a sale.
We see no merit in Dr. Odje’s argument on this point and in our judgment the principle enunciated in Ogunbambi v. Abowaba that the purchase receipt was admissible as an acknowledgement of the payment of money applied equally here.
Counsel for the appellant next argued his ground of appeal that exhibit A was wrongly admitted in evidence as offending against the provisions of sections 3 and 6 of the Illiterates Protection Law (cap. 44 of the Laws of Western Nigeria). He submitted that exhibit A offended against section 3 as it did not show the address of the person preparing the document and he further argued that section 6 had not in any way been complied with by the writer indicating what, If any, fee he received. In fact we would note that it was the Illiterates Protection Ordinance that then applied and though the material wording Is the same it was to sections 3 and 8 of that Ordinance that counsel should have referred.
In support of his argument on section 3 counsel cited the decision of Charles J. in the High Court of Western Nigeria in Jiboso v. Obadina, 1962 W.N.L.R. 303 as establishing that non compliance with section 3 made the document voidable and thus unenforceable at the option of the illiterate, but if this is right, we do not consider it necessary to deter-mine now whether, when both sides are illiterates as was the case here, It would mean that either side could make it unenforceable so that in other words each illiterate was protected against the other, because in fact the writer of exhibit A put after his name “C.N.C.” meaning thereby Clerk of the Native Court which he in fact was at the time as was established by his own evidence, and in our view this was a sufficient compliance with the requirement of the section as to the address of the writer. The purpose of requiring the particulars of the address is to trace the writer, especially a professional letter writer, which was not in fact the position here, and this description was a sufficient address to enable him to be traced. In any case the legal position has been made clear By this court in S.C.O.A. Zaria v. Okon 4 F.S.C. 220 where this court at page 223 approved the judgment of Smith J. when he said:-
‘The document on the face of it does not comply with the section. The object of the Ordinance is to protect an illiterate person from possible fraud. Strict compliance therewith Is obligatory as regards, the writer of the document. If the document creates legal rights and the writer benefits thereunder, those benefits are only enforceable by the writer of the document N he complies strictly with the provisions of the Ordinance. If a document which does not comply with the provisions of the Ordinance creates legal rights between the illiterate and a third party then evidence may be called to prove what happened at the time the document was prepared by the writer and the parties signed it. But the writer himself cannot adduce evidence in his own favour to remedy the omission.”, and in respect of the document (exhibit A) which is in dispute there was in our view ample evidence before the trial court establishing that both parties asked the writer to prepare the document for them.
So far as noncompliance with section 6 is concerned we do not consider this section, unlike section 3, is so much for the protection of the illiterate as a penal provision in respect of the writer and non-compliance would not as such affect the admissibility of the Instrument; especially when as here, exhibit A was tendered by the plaintiff himself when cross-examining the first defendant so he could not in our view seek to show R was inadmissible when there was not an absolute statutory bar under the Illiterates Protection Ordinance (Now replaced by the Illiterate Protection Law), as there is for instance in certain circumstances under the Land Instruments Registration Law or as there is without good cause under section 23 of the Survey Act as was indicated by this court in Alase v. llu 1965 N.M.L.R. 66.
Dr. Odje conceded that the burden of proving the nature of the defendants possession of the land in dispute lay on the plaintiff/appellant and in our view this was rightly held by the lower courts not to have been discharged. We accordingly dismiss the appeal with 32 guineas costs.
Other Citation: (1967) LCN/1487(SC)