Nimota Oluwo & Ors V. R.o. Adebowale (1964)

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MBANEFO JSC 

The plaintiffs in the Court below, as the executors of the estate of one C. J. Oluwo (deceased) sued the defendant in the High Court of Lagos for:-

(1) An order setting aside a deed of Assignment of Lease dated the 20th July, 1955 and duly registered in the Lands Office, Lagos;

(2) An order that the aforesaid registration be expunged; and

(3) An injunction restraining the defendant and his servants and/or agents from acting under the said Deed.

The facts were shortly as follows. The deceased was a grantee of an area of land known as Plot 10 in Block 29 for a term of ninety nine years from the last day of February 1940. He had erected a substantial building on same which is known and referred to as No. 99 King George Avenue, Yaba. On the 5th February, 1955 the deceased mortgaged the property to one Mr Ibikunle Dada to secure a loan of £2,060 with interest; the deceased was unable to repay this loan on account of his illness which kept him confined to his bed, with the result that Mr Dada was desirous of exercising his powers of sale under the mortgage.

The plaintiffs, and this is where the dispute arises between the parties, say that the defendant offered to take over the mortgage of Mr Dada by advancing the deceased a total sum of £3,200, and that this was in fact done. The defendant, on the other hand, says that the transaction between himself and the deceased was one of sale and not mortgage. The principal documents on this point are exhibits ’25’, the deed of Assignment, and ’30’, the purchase agreement. The plaintiffs say with respect to these deeds in their Statement of Claim as follows:-

’11. That on 21-6-55, while the late Clement Jaiyesimi Oluwo was seriously ill on his sick bed, the Defendant brought some documents to him to sign which the defendant described to him as a receipt for the loan given to him by the Defendant and the Mortgage Deed for the said Loan.’

’14. That by a purported Deed of Assignment of lease dated the 20th day of July, 1955 and registered in the Register of Leasehold Titles in the Lands Registry Lagos as No. M00134, the said property known as 99 King George Avenue Yaba was purported to be assigned to the Defendant.’

’21. The Plaintiffs aver that the said assignment was not the act of the late Clement Jaiyesirni Oluwo: that it was not genuine: that it is a fraud and an utter nullity and ought in the interest of justice to be set aside.’

A defence was filed to this, but at no time before the hearing of the action was any application made on behalf of the defendant for particulars with regard to the allegations made in paragraph 21 above. In paragraphs 8 and 12 of the Statement of Defence it is averred that:-

‘8. With reference to paragraph 14 of the Statement of Claim the defendant states that the Deed of Assignment of the lease dated the 20th day of July, 1955 and registered as No. MOO 134 was duly executed by Clement Jaiyesimi Oluwo and attested by a witness after the former had read same. The said Jaiyesimi Oluwo could read and understand English.’

12. The Defendant says that the Plaintiffs ought not to be admitted to say that the said Assignment was not genuine or that it is a fraud and utter nullity because …. ‘

It seems quite clear from the state of the Pleadings that the Plaintiffs were setting up, and the defendant understood the plaintiffs as setting up, with relation to the Deed of Assignment, two contentions

(i) That the Deed was not signed by the Deceased, and alternatively

(ii) That it was not the act of the deceased, the execution of it having been obtained by fraud, i.e. that the Deed drawn up was one of Assignment whereas the deceased understood himself to be executing a deed of mortgage.

During the hearing of the case in the Court below, Learned Counsel for the plaintiffs was requested by the Learned Trial Judge to state categorically without equivocation the fraud on which he relied. Counsel is recorded as saying inter alia that:

‘The alleged deed of assignment dated 20-7-55, on which appears a signature purporting to be that of the deceased is a forgery, as it is not his signature. Secondly, Exhibit 30 described as a purchase receipt, which we say the deceased signed is not his act (non est factum) in that it was represented to him as a receipt for a loan and NOT a receipt for sale of the property.’

After this particularizing of the fraud, further evidence was adduced by the defence, and subsequent proceedings, including addresses of Counsel, bear out the contention of Mr K. Sofola, Learned Counsel for the appellants at the hearing of the appeal, that the contest as to the validity of the Deed of Assignment was fought out with the two alternative weapons to which reference has already been made.

The Learned Trial Judge dismissed the plaintiff’s claim and made the following findings, inter alia:-

(i) That the Deed of Assignment exhibit ’25’ was in fact signed by the deceased. That there was no forgery of the deceased’s signature.

(ii) That the deceased could not have understood the contents of exhibit ’30’, the Purchase Agreement even if he had read it.

(iii) That this exhibit ’30’ was procured by fraudulent misrepresentation.

(iv) That as a period of one month had elapsed between the signing of exhibit ’30’ and exhibit ’25’, in the absence of specific evidence of any fraudulent misrepresentation in respect of the latter, it must be shown that the fraudulent misrepresentation which induced the deceased to sign exhibit ’30’ on the 21st of June, 1955, continued up to the 20th July, 1955, when exhibit ’25’ was executed before the plaintiffs could succeed.

A total of eleven grounds of appeal, including four additional grounds, were filed, but Learned Counsel for the appellant argued only the first of the original grounds of appeal and grounds R to 11 of the additional grounds. His submissions may be put as follows under three heads:-

(a) That the finding of the Learned Trial Judge that exhibit ’30’ was procured by fraud amounts to a rejection of the Defence.

(b) That as the Learned Trial Judge has found that exhibit ’30’, made on the 21st June, 1955, which fanned the basis of the transaction between the parties, was procured by fraudulent misrepresentation, it follows that the onus was then shifted to the defendant/respondent to show that at the time exhibit ’25’ was executed the deception, the fraudulent misrepresentation, had been removed. That, in the absence of evidence to show this the Trial Judge should have found that exhibit ’25’ was also procured by fraudulent misrepresentation.

(c) That the Trial Judge erred in law in his application of the principle stated in Clough v. L.NWR. 1871 L.R. 7 Exch. 26, by refusing to grant the relief sought on the ground that the parties could not be restored to their original position.

Mr Odesanya, Learned Counsel for the respondent, found himself on the horns of a dilemma by the first submission put forward by Mr Sofola. He submitted that the judgement dismissing the action was correct but disagreed with the finding by the Trial Judge that exhibit ’30’ was procured by fraud. It was pointed out to Learned Counsel that the provisions of Order VII Rule 13(1) of the Federal Supreme Court Rules, which provides that a respondent. who intends to contend at the hearing of the appeal that the decision of the Court below should be varied or affirmed on grounds other than those relied on by that Court shall give notice of such intention within one month after the service on him of the notice of appeal, were not complied with. Mr Odesanya then made application under Order VII Rule 13(2), for an adjournment to enable him to give such notice or, in the alternative, for him to giv

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Other Citation: (1964) LCN/1167(SC)