Mandilas Limited V. Ekhator Ayanru (2000)

LawGlobal-Hub Lead Judgment Report

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.

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.

(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.

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:

“There is no legally admissible evidence before this court either by the witness (Mr. Omosigho) or any other person who could confirm that it was the plaintiff who signed Exh. B and F in their presence. The only witness who said he was familiar with the signature of the plaintiff was Mr. Gooff Ayanru (PW 2).”

After making the above finding the trial court accepted the evidence of PW2 and concluded that the signature on Exh. B was not that of the plaintiff. By this conclusion the learned trial Judge did not consider other evidence adduced in the case. It is clear from the record that DW2 while giving evidence testified that having seen several correspondences on Exhibit B he could identify the plaintiff’s signature thereon. It is trite law that a witness who was not present as such did not see a document in dispute written or signed could despose his opinion that the signature or handwriting is that of a particular person. It is not necessary that a witness who deposes his opinion should have seen the person whose signature or handwriting is in question sign it at all for it will be sufficient if he has received documents purporting to be written or signed by him. See Doed Mudd v. Suckermore (supra). I therefore agree with the submission of the learned counsel for the appellant that the learned trial Judge did not give the consideration the evidence of DW2 deserves before he made up his mind to accept or reject it. That piece of evidence of DW 2 could be legally admissible in establishing whether the plaintiffs/respondent’s signed Exh. B. I therefore answer the first issue formulated by the appellant in the negative.

The second issue for determination is whether the respondent is in fact an illiterate and could not have signed the lease agreement. This issue also covers the first issue formulated by the respondent in his brief. I shall therefore deal with the two issues together. It is submitted on behalf of the appellant that on the basic principle of evidence that he who asserts must prove, the burden is on the plaintiff to prove that he is an illiterate. To that effect he testified that he is an illiterate and can not read or write. His son PW2 also testified in that regard. These pieces of evidence were accepted by the trial Judge. The learned counsel argued that the trial Judge erred in law in that for the past 20 years the plaintiff corresponded with Defendant Company by signing documents written in English language and which contained no jurat such as exh. A made in 1952 which was written in English language was executed by him and contained no jurat. He argued that by his conduct and action the plaintiff presented himself to the defendant that he was literate.

The respondent’s counsel on the other hand submitted that the plaintiff testified that he was an illiterate which said evidence was corroborated by that of his son PW2. He went further to argue that the defendant failed to establish that the plaintiff was literate but merely relied on his signature on some documents. He further argued that the plaintiff showed that he was a driver and that documents had to be read and interpreted to him in Edo Language. He said signing of document or thumb printing same does not make plaintiff literate. He cited and relied on the case of S.C.O.A Zaria v. Okon (Supra). The facts pleaded by the plaintiff show that he has prior to the existence of the disputed document (Exh. (B) had transacted with the defendant’s company in writing and signed and executed some documents (e.g. Exh. (A) written in English Language. DW2 testified to that effect and it was on that basis that he identified his signature. In these documents there was no jurat. It is trite law that where there is a factual situation which raises the presumption of literacy the onus of rebuttal of such presumption rests on the party that asserts illiteracy. In this case the plaintiff has the burden to prove his illiteracy. See Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1.

It is a well settled English common law principle applicable in Nigeria that where a person by his conduct represented himself to another person of the existence of a state of affairs and has induced such other person to act in reliance thereof, he will be bound by the fair inference to be drawn from his word or action. See Caincross v. Lorimer (1860) 3 LT. 130..

The respondent in this case and plaintiff at the lower court relied simply on his ipix dixit and the testimony of his son (PW2) to establish his illiteracy. This in my view is insufficient especially in view of the admissible evidence of DW2 and the existence of the deed he executed earlier without any jurat as well as previous correspondence he made with the defendant (appellant) which the trial court failed to give due consideration to before arriving at its decision. Where a person claims illiteracy and wants to void a document he thumb printed, he should furnish sufficient evidence to prove such allegation of illiteracy failing which the document should still stand and be enforced against him. See SCOA Zaria v. Okon (supra) Djukpan v. Orovuyovbe (1967) 1 All NLR 134; Olanloye v. Fatunbi (1999) 8 NWLR (Pt.614) 203 at 233.

Thus, considering the evidence adduced before the lower court and the conduct of the plaintiff and in line with the decided authorities cited above. I hold that the trial Judge was in error when he concluded that the plaintiff is an illiterate. His conduct and actions clearly show that he understood the nature, purpose and consequence of his transaction with the defendants with regard to the supplemental lease and it should therefore be enforceable against him.

The next issue formulated by the appellant is whether the lower court was right to have suo motu raised an issue without calling for addresses by counsel for the parties on such issue. The gravamen of the complaint by the appellant has to do with the trial court’s finding that the provisions of illiterate Protection Law Cap 55 Laws of Lagos State of 1973 were not complied with in the execution of Exh. B. This issue of non-compliance with the Illiterate Protection law according to the learned counsel for the appellant was never addressed by both counsels nor was it averred in the pleadings. According to the learned counsel the state of pleadings by plaintiff was that the alleged execution and registration of the lease violated provisions of the Land Instrument Registration Law and argued that Exh. B should not have been registered and it should be set aside. No reference was made by the parties to the Illiterate Protection Law but the lower court suo motu raised it in its judgment. The learned trial Judge is therefore incompetent to make a case for either of or both of the parties and proceed to give judgment in the case he formulated. He called in aid the authority of Commissioner for Works Benue v. Devcon Ltd. (1988) 3 NWLR (Pt. 83) 407: Nigeria Housing Development Society v. Yaya Mumunni (1977) 2 SC 57. He concluded his argument on this by submitting that the trial court was wrong to have held that there was non-compliance with illiterate Protection Law and that Exh. B was unenforceable against the plaintiff. In his reply on this issue the respondent’s counsel submitted that the rules of pleading is that law is not required to be pleaded but only material facts upon which the law will be applied should be pleaded. He argued that in paragraphs 5, 6, 9, 10, 11, 12, 14 and 15 of amended statement of claim pose the issue of the applicability or otherwise of the Illiterate Protection Law in that the plaintiff was alleged to be an illiterate and that Exh. B was not read and interpreted to him before he purportedly executed it. Having raised such issues on those averments in his pleading, the learned counsel for respondent opined that the lower court was right in the circumstances to apply the relevant law since the parties led evidence on the pleaded facts regarding execution or non-execution of the document in question hence the issue could not have been said to have been raised suo motu.

It is a general principle of law that a court ought not and should not formulate a case for parties or decide on issues not raised by them without at least giving them the opportunity of being heard. See Fulani & Ors. v. Idi (1990) 5 NWLR (Pt. 150) 311; Maiyaki v. Maidoya (1988) 3 NWLR (Pt. 81) 226 Kuti v. Balogun (1978) 1 SC 53; Iriri v. Erhurhobara (1991) 2 NWLR (Pt. 173) 252; Kudu v. Aliyu & Ors. (1992) 3 NWLR (Pt. 231) 615.

The starting point to deal with this issue is to make reference to the amended statement of claim. The relevant paragraphs read thus:

5. “The plaintiff avers that some months after he had been paid he received from the company an envelope containing some documents.
6. The plaintiff did not bother to have them read and interpreted to him as he had been paid the sum agreed to be paid to him for the further terms of six years sought by and granted to the company.
7. The plaintiff can not read or write the English or any other language.
8. The fact averred in the proceeding paragraphs is known to the company and to the defendant.
9. The plaintiff did not authorise any person to negotiate or agree on the said lease on his behalf.
10. The plaintiff avers that he did not at any material time know the nature and content thereof.
11. The plaintiff will contend that the alleged execution and registration of the lease are in contravention of the provisions of the Land Instruments Registration Law.
12. The plaintiff avers that he is not bound by the said lease and that it is a nullity.”

The defendant, after being served with the plaintiff’s amended statement of claim denied the averments reproduced above. Issues were therefore joined. From the look of the pleadings therefore there is no gainsaying that the plaintiff raised issue of illiteracy on his part and his failure to have caused the supplemental deed to be read or interpreted as well denied the execution of same. He also denied authorising anyone to negotiate it on his behalf. Also the evidence led by both parties touch on such issues. The only issue worthy of consideration is that the parties particularly the plaintiff did not plead Illiterate Protection Law, though he pleaded Land Instrument Registration Law. It is trite law however that material facts and not law should be pleaded. That is a rudimentary rule of pleading. It is my humble view therefore, that there is no how the material facts raised in the pleading which relate to whether or not the plaintiff is an Illiterate can be dealt with effectively by the trial court without making reference to the illiterate Protection Law as the court rightly did in the instant case in its judgment. I do not therefore agree with the learned counsel for the appellant that the trial Judge raised the issue suo motu simply because the counsel did not quote that law in his pleading which in fact he is not supposed to do. This instant case is distinguishable from the facts of the cases of Commissioner for Works Benue v. Devcon Ltd. (supra) and Nigeria Housing Development Society Ltd. v. Yaya Mumuni (supra) and relied on by the learned counsel for the appellant in his brief of argument. In the course of dealing with this issue I have answered or dealt with the first issue raised in the respondent’s brief of argument.

The 3rd and last issue raised by the respondent’s relates to the weight of evidence adduced by both parties in the case and whether the burden of proof did not tilt in favour of the plaintiff. As I have said above, the learned trial Judge did not give due consideration to the testimony of DW2 on the issue of his competence to give admissible evidence on the handwriting of the plaintiff. This is borne out by the fact that in his judgment found thus “there is no other legally admissible evidence before this court either by the witness or any other person who could confirm that it was the plaintiff who signed exhibit B and F in their presence”.

As I said above, that does not represent the position of law since presence of a witness when a disputed document was written or signed is not imperative before evidence of familiarity with the writer’s handwriting or signature can be given. Mere receipt of correspondence of such writer earlier qualifies the witness to give evidence on or identify such writer’s handwriting or signature. It is a long existing principle of Law that he who asserted must prove. See Okubele v. Oyagbola (1990) 4 NWLR (pt. 147) 723; Osawaru v. Ezeiruka (1978) 6-7 SC 135 at 145; Johnson v. Maja (1951) 13 WACA 290; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339. From the facts of the present case the trial Judge merely relied on the evidence of the plaintiff and that of his son PW2 and concluded that the plaintiff was an illiterate and that the lease was unenforceable. Besides the evidence of DW2 to the contrary there is also evidence that the plaintiff executed a similar deed of lease in his own handwriting made in English language as well as the evidence of collection of payment for the extended lease agreement which the learned trial Judge ought to have considered. If he had done so he would have reached different conclusion. These pieces of evidence clearly show that the respondent fully understood the nature and consequence of the transaction he was entering into and was not deceived at all. I hold therefore that the trial court was in error when it held that he was not literate and that the deed of lease was not enforceable against him. See UBN Plc. v. Idrisu (1999) 7 NWLR (Pt. 609) 105. In the present case it is erroneous for the trial court to have disregarded the vital evidence and conduct of the plaintiff by accepting the amount paid for the new lease, the previous transactions and the earlier correspondence with the appellant company as well as the evidence of DW2. A trial court has the advantage of seeing witnesses and watching their demeanor to make finding of facts on certain issues. But where it fails to take such advantage, an appeal court is in as good a position based on the evidence available on record to make finding of facts on the issues as the trial court was. See Anaeze v. Anyaso (supra) UBN Ltd. v. Ozigi (supra).

Similarly, an appeal court always has the competence to interfere or disturb the evaluation of evidence and of findings of the lower court which are not based on proper and dispassionate appraisal of the evidence given in support of each party’s case or where such findings are perverse and against the nature of evidence or where on the face of the record it is clear that justice has not been done in the case. See Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626: Egonu v. Egonu (1978) 11 & 12 SC 111; Akpagbue v. Ogu (1976) 6 SC 63.

Thus, having given due consideration to the entire evidence adduced in this present case and the circumstances of the case, I am of the view that had the trial court properly evaluated the evidence adduced before it, it would not have arrived at the conclusion it had reached. The trial court narrowed its consideration to the evidence of alleged illiteracy on the part of the plaintiff by himself and his own son only. In fact the evidence of PW2 the plaintiff’s son being evidence of person having interest in the matter should have been treated with great caution. These pieces of evidence have been challenged by that of DW2 and indeed the conduct of the plaintiff. This is therefore a clear example of a case and situation where this court must disturb and interfere with the finding of the lower court and reverse same. The respondent from his conduct and action understood the nature and consequence of the transaction he entered into with the appellant as it relates to the supplement at lease. The deed of lease is therefore enforceable in law against him. His claim of illiteracy is therefore mere after-thought.

In conclusion, I find that there is merit in the appeal. It therefore succeeds. The judgment of the lower court is hereby set aside and I accordingly make an order dismissing the respondent’s suit. I award a sum of N5,000,00 as cost in favour of the appellant against the respondent.

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Other Citations: (2000)LCN/0679(CA)