Mallam Momo Gusan & Anor V. Paterson Zochonis & Co. Ltd (1962)
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The plaintiffs sued the defendants in the High Court of the Kano Judicial Division for the sum of £512-10s-7d being the amount alleged to be due and owing by the 1st defendant to the plaintiffs on his produce account and guaranteed by the 2nd defendant as per contract of guarantee dated the 27th day of October, 1958. The 1st defendant admitted this claim at the hearing and judgment was accordingly entered against him. The case proceeded to proof against the 2nd defendant, who denied liability and after evidence was heard, judgment was similarly entered against him in the same sum.
The 2nd defendant has appealed against this judgment and the grounds of appeal argued in his favour urge that:-
(1)The trial Judge erred in holding that the guarantee was written by the Manager of the respondent company when the typist was the writer.
(2)The trial Judge erred in holding that s.3 of the Illiterates Protection Act was complied with.
At the trial in the High Court and during the arguments before us, the point was argued as to whether the appellant was, in fact, an illiterate within the meaning of the Illiterates Protection Act. It will, I think, be convenient to deal with this point at the outset, for if the appellant is not a person protected by this Act then it serves little purpose dealing with the two grounds of appeal which are based on the provisions of s.3 of the said Act. The learned trial Judge has this to say on this point:–
“I conclude from the evidence that the 2nd defendant is not liter-ate in English. The Illiterates Protection Ordinance does not sup-ply any definition of the expression “illiterate person” in s.3 but I take it to mean a person who is unable to read the document in question in the language in which it is written, subject to the pro-viso that the expression includes a person who, though not totally il-literate, is not sufficiently literate to read and understand the contents of the document. The proviso follows from the decision of the Federal Supreme Court in S. C.O.A. v. Okon (F.S.C. 147/ 1959-unreported)…………….”
In this case on appeal before us, there was evidence on record to show that though the appellant could not read English, the language in which the guarantee was couched, yet he was able to read and write in Arabic. The word ‘illiterate’ is defined in the Oxford Dictionary as meaning “Ignorant of letters or literature, without education, unable to read, i.e. totally illiterate; an illiterate, unlearned, or uneducated person one unable to read”. I have always understood the word ‘illiterate’ to refer to a person totally illiterate in the sense that he is unable to read or write in any language. To hold that a person is illiterate or not literate because he is unable to read or write in a particular language, even if the document concerned was written in that language, is in my view to stretch the meaning of the word to an absurdity. A Frenchman enters into a contract with a Nigerian. The contract is written in English, which only the Nigerian can understand though interpreted to the Frenchman. By that interpretation the Frenchman would not be regarded as literate. In the case of S. C. O. A. v. Okon (FSC.147/1959) to which the learned trial Judge made reference, the guarantor could only write his name. There is no-thing in the Judgment to indicate that he was able to read or write in any language, and even as to his ability to sign his name this is what was said by this Court in the judgment delivered by Quashie-Idun, Ag. F.J. (as he then was):-
“The waybills which were signed by the defendant and upon which the plaintiffs rely in support of the contention that the defendant is not illiterate, have been seen by this Court. It is clear to me that the signatures of the defendant on them are not those of a person who could be regarded as literate in the sense that he can read and understand the meaning of Exhibit `A’ …………..
When the case was heard in the High Court, this is what the learned Chief Justice said in his judgment:–
“It seems to me that a man may be sufficiently literate to sign his name and read figures, but not sufficiently literate to understand the meaning and effect of a document such as a bond. The evidence of Mr. Briggs is to the effect that the contents of this document were not explained to the defendant in the plaintiffs’ office. That, in my opinion, is important.”
With the greatest respect, I agree with this view of the learned Chief Justice. The Illiterates Protection Act refers to an “Illiterate person” and “illiterate” is defined in the Concise Oxford Dictionary as “ignorant of letters, unlearned, unable to read”. I think that `illiterate’ in the Act should be construed in its ordinary meaning as thus defined. In my view, on the evidence on record, the appellant was not illiterate in this sense and did not come within the purview of this Act. Further, it must be borne in mind that there is no challenge to the following findings of fact by the trial Judge which read as follows:–
“I am satisfied that the guarantee was read over and explained to the 2nd defendant and that he subsequently signed it; I am satisfied that the 2nd defendant said that he understood the guarantee and I reject his evidence that the plaintiffs’ clerk misinformed him with regard to his liability. I am satisfied that the 2nd defendant raised no objection when the guarantee was read over to him and I conclude that the guarantee correctly represents his instructions.”
These findings of fact further differentiate the facts of this case from those of S. C. O. A. v. Okon and further go to show that the applicant was not a person envisaged by the provisions of the Illiterates Protection Act, for apart from being able to read and write in Arabic, he also under-stood the Hausa language, the medium of interpretation used by the 2nd plaintiff witness. The Illiterates Protection Act was designed to protect illiterates from being taken advantage of by being made to sign or acknowledge a writing or document which does not bear out their real intention. In the case on appeal before us the trial Judge has found as a fact, and it has not been challenged, that this document truly represents the intention of the appellant; that it was interpreted to him; that he understood it and agreed to it before appending his signature.
As for the contention that the typist was the writer of the guarantee and not the Manager of the respondent company, there is no substance in this point and I need say no more than that the fact that the typist who typed the guarantee was working in the office of the respondent company of which P. W.1. was the Manager, coupled with the fact that on the evidence of P. W.1. the latter made manuscript insertions on the document, brings him within the definition of a “writer” as contained in s.7 of the Act.
For the reasons given by me in this judgment I would dismiss this appeal with costs assessed at 20 guineas.
Other Citation: (1962) LCN/0998(SC)