AKEEM ADEKUNLE & ANOR v. S. K. AJAYI (NIGERIA) LIMITED & ANOR
(2013)LCN/6545(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of November, 2013
CA/B/164/2006
JUSTICES:
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
AKEEM ADEKUNLE & ANOR – Appellant(s)
AND
S. K. AJAYI (NIG) LTD & ANOR – Respondent(s)
RATIO
CONDITIONS TO DETERMINE JOINDER OR NON-JOINDER OF A THIRD PARTY
Now, the pronouncement of Oputa JSC., in the case of GREEN vs. GREEN (supra) is quite instructive as to the conditions necessary in determining joinder or non-joinder of a third party. They are:
1) Is the cause or matter liable to be defeated by the non-joinder?
2) Is it possible for the court to adjudicate on the course of action set up by the plaintiff unless the third party is added as defendant?
3) Is the third party a person who ought to have been joined as a defendant?
4) Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely to adjudicate on and settle all the questions involved in the cause or matter. PER JOMBO-OFO, J.C.A.
WHETHER OR NOT A CAUSE OF MATTER CAN BE DEFEATED BY REASON OF THE NON-JOINDER OF PARTIES
Be that as it may, it has been made clear in a plethora of authorities that no cause or matter shall be defeated by reason of the non joinder of parties. See GREEN VS. GREEN (supra). PER JOMBO-OFO, J.C.A.
WHETHER OR NOT WHERE THERE IS NO EVIDENCE TO CHALLENGE AN UNCONTRADICTED EVIDENCE, REBUTTAL DOES NOT ARISE
Now even where a defence was not filed to a Counter-Claim, the law remains that:
“Where there is no evidence to contradict or challenge the very loud law that un-contradicted or unchallenged evidence will be used against a party cannot arise. If a Plaintiff (Counter-Claimant in the instant case) has not proved his case evidence in rebuttal does not arise.”
See the case of CONSOLIDATED BREWERIES PLC. VS. JOSHUA A. A. AISOWIEREN (2002) FWLR (Pt. 116) 959 at 990. PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is an appeal by the defendants against the judgment of A. O. ODUSOLA, J. sitting in the High Court of Justice of Ondo State which judgment was delivered 18th March, 2005. The respondents as plaintiffs, at the trial court claimed against the appellants as defendants jointly and severally the sum of Two Hundred and Seventy Eight Thousand Six Hundred and Sixty Naira Only (N278, 660.00) being outstanding balance due to the plaintiffs from sales of beer and soft drinks by the first defendant early in 1996 and for which the second defendant early stood surety.
The 1st appellant denied the claim of the respondents upon which he filed his Consequential Amended Statement of Defence and Counter-Claim. The counter-claim was however dismissed to the dissatisfaction of the appellant for want of proof.
At the close of evidence and address of counsel, the learned trial Judge gave judgment for the plaintiffs with costs of N2,000.00. The defendants feeling aggrieved by the decision have appealed against the judgment, filing nine grounds of appeal, though ground eight is abandoned for want of leave.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellants’ brief dated the 31st of July, 2006 and filed 3rd August, 2006 as well as the appellants’ reply brief dated and filed 21st November, 2006 were both settled by OLADELE, AYOOLA ESQ. On the part of the respondents their brief of argument dated 15th October, 2005 but filed 19th October, 2006 was settled by OLUMIDE AKINBINU ESQ.
At the hearing of the appeal on 22nd October, 2013 the learned counsel for the appellants adopted and relied on their respective briefs as their argument in this appeal. In the same vein the learned counsel for the respondents adopted and relied on the respondents’ brief as their argument in the appeal.
The crux of the appeal is that the respondents employed the 1st appellant as a sales clerk while the 2nd appellant stood as a surety/guarantor to indemnify the respondents against loss or theft of goods in the respondents’ store in the course of 1st appellant’s employment. When stock of the goods in the store was taken on 2nd March, 1996 it was discovered that the respondent had a total shortfall of N598, 910. Having admitted responsibility for the shortfall, the appellant paid up part of the indebtedness leaving a balance of N278,650.00 which formed the claim of the plaintiff/respondent at the trial court.
Having abandoned ground eight out of his original nine grounds of appeal, the appellant distilled the following six issues for determination of the appeal. They are:
i. Whether the learned trial Judge properly directed himself as to the existence of a cause of action between the parties, having regard to the way the first appellant was keeping the Plaintiff/Respondents’ account. (Grounds 1 and 2).
ii. Whether the non-joinder of the plaintiff/respondents’ customers, whose names and addresses were specifically pleaded in paragraphs 12, 19 to 21 of the Consequential Amended Statement of Defence with Counter-Claim to this suit, renders the whole trial and judgment invalid, null and void ab initio. (Ground 3).
iii. Whether the learned trial Judge rightly considered the validity of the Employment Agreement (Exhibit ‘B’) and took a correct view as to its evidential value in arriving at the judgment. (Grounds 4 and 6).
iv. Whether the trial Judge rightly dismissed the Counter-Claim of the first Appellant. (Ground 7).
v. Whether the second Appellant is protected from the enforcement of Exhibit ‘B’ by section 3 of the Illiterates Protection Law Cap. 48, Laws of Ondo State of Nigeria, 1978. (Ground 5).
vi. Whether the judgment is supportable by the evidence on record. (Ground 5).
The respondents in their brief of argument formulated two issues for the determination of the appeal. They are:
a. Whether or not the trial Judge was right in entering judgment in favour of the respondent on the basis of the evidence of the respondent witness and Exhibit ‘B’.
b. “Whether or not the learned trial Judge was right in dismissing the Counter-Claim of the Appellant for want of proof”.
The appeal shall be determined based on the six issues distilled by the appellants in that they encompass the issues as formulated by the respondents.
In support of issue one which arose from grounds 1 and 2 of the Notice of Appeal, the learned counsel for the appellants while referring to what the 2nd respondent said at page 59 lines 13 – 14 and 15 – 17 submitted that to know whether or not the 1st appellant was allowed to sell on credit can only be elicited from surrounding circumstances of the case.
Counsel said that the respondents have stock/daily transaction book in their custody which the respondents failed to produce at the trial court in spite of its demand in paragraph 15 of the Consequential Amended Statement of Defence and Counter-Claim of the 1st defendant. Such a book if produced was going to be unpalatable to the respondents’ case. See section 149(d) Evidence Act Cap. 112, Laws of the Federation of Nigeria, 1990; OBO vs. COMM. OF EDUCATION, BENDEL STATE (1993) 1 NWLR (PT. 273) 46 at 61G and OBOT vs. AKPAN (1998) 4 NWLR (PT. 546) 409 at 420 A-B.
Further more in his contention, the learned counsel said that the 1st appellant’s pleaded facts at paragraph 15 of his statement of claim that he was forced at gun point to sign Exhibit C admitting that he was owing and to which they led evidence, that evidence remained unchallenged and uncontradicted. Going by the cases of I.I.T.A. vs. AMRANI (1994) 3 NWLR (pt. 332) 269 at 314 C-F.; BIJON (NIG.) LTD VS. OSIDAROHWO (1992) 6 NWLR (PT. 249) 643; and NWABUOKU VS. OTTIH (1961) 2 SCNLR 232 any such uncontradicted evidence should be accepted.
The counsel further argued that with the tendering of Exhibits E-E9 through the 2nd respondent and Exhibit E being an acknowledgment of indebtedness by Demion, a customer of the respondents that there is no cause of action arising between the parties. He said that the only cause of action as shown by the pleadings and the evidence and writ of summons can only be between the respondents and their customers whose names and addresses were pleaded and given in evidence by the parties. Counsel pursued their cause further by stating that the customers’ indebtedness to the respondents was approved by the 2nd respondent the after ego of the 1st respondent.
Again in his contention the learned counsel for the appellant submitted that there was evidence on record that the transactions of the customers were always recorded in books which were in the custody of the respondents. One of such books is Exhibit D although the respondents knowingly did not produce others in evidence or deny their existence in their pleadings. Counsel opined that the learned trial Judge misdirected himself when he held that the 1st appellant did not keep a proper account. Counsel argued that without the accounts, the parties would not have been able to take stock on 2nd March, 1996, He concluded on this issue that there was nothing on record to show that the 1st appellant caused any shortfall in the business as to warrant his personal liability to the claim, since the customers who actually owed were known to the respondents. He urged on us to overrule the decision of the learned trial Judge and hold that there was no cause of action between the parties and that the 1st appellant’s account relating to the respondents’ claim was properly kept in such a way not to make him liable to the respondents’ claim.
RESOLUTION OF ISSUE (i) ONE
The learned counsel for the respondent did not react to this issue in the respondents’ brief of argument. Be that as it may, this court shall still resolve same on merit.
As rightly submitted by the learned counsel for the respondents in their brief of argument, it is not in doubt that there was a contract between the 1st appellant and the respondent and by virtue of Exhibit B being a contract of service, the 2nd appellant stood surety and or guarantor to indemnify the respondent against any theft or loss in the respondents’ business in the course of the contract. It is also common ground that at some point in the life of the contract there was a shortfall of N598, 910:00 out of which the 1st appellant paid up leaving an unpaid balance of N278, 660.00. The contention of the appellant is that the shortfall arose from debts owed by the customers for goods sold on credit to them to the knowledge and acquiescence of the respondent and that the instalmental payments made were from those customers. Now the contract of service tendered as Exhibit B contains thus:
“The Employer has agreed to employ MR. ADEKUNLE AKEEM as SALES CLERK subject to
(a) The Employees provision of a surety who shall be prepared to indemnify the employer against theft/loss of the employers goods in custody of the Employee.”
The foregoing to my mind is a binding clause which in the event of loss and or theft renders the employee being the appellant a necessary party. Relying on the authorities of OKOYE & ORS. VS. NIGERIAN CONSTRUCTION & FURNITURE CO. LTD & ORS. (1991) 6 NWLR (Pt.199) 501; and MOGAJI vs. MOGAJI & ORS. (1985) LPELR-1891 (SC) I am of the firm view that without the appellant herein there is no way the action can be determined conclusively and effectually. There is by virtue of Exhibit B, a cause of action between the parties that is the 1st appellant and the respondents on record. In resolution of issue one as raised by the appellant, I am saying that the learned trial Judge properly directed himself as to the existence of a cause of action between the parties, notwithstanding the way the 1st appellant was keeping the plaintiff/respondents’ account. Issue one is hereby resolved against the appellant and in favour of the respondents.
With regards to issue two, the learned counsel for the appellant is saying that going by the decision in GREEN VS. GREEN (1987) 18 NSCC (pt. 2) 1115 at 1123, the identified customers i.e. Mrs. Lanke, Mr. Friday, Mr. Demion, Mr. Jude and Mr. J. K. Man who possessed goods value of which are being claimed in this suit are necessary parties in whose absence the proceedings could not be fairly dealt with. See also PEENOK INVESTMENT LTD. V. HOTEL PRESIDENTIAL LTD. (1983) 13 NSCC 472 at 484; and ADISA V. OYINWOLA (2000) FWLR (pr. 8) 1349 at 1383-1384 H.D. Counsel went on in his submission that having regards to the manner in which the reliefs claimed by the respondents were formulated it was necessary that the persons/customers mentioned in paragraphs 19-21 of the consequential Amended Statement of Defence of the first defendant be joined as co defendants in the action for a fair and just determination thereof. He stated that evidence of the liability of these customers/third parties was given by both parties at pages 59, 60, 61 and 62 of the record and that one of them came to testify at pages 67-70 of the record about his liability to the respondents’ claim, but that the trial court still went on to hold at page 119 lines 8-29 of the record that joinder of the customers was unnecessary. Counsel referred to the case of OLORIODE VS. OYEBI (1964) 1 SCNLR 39 as well as ORDER 11 RULES 3 and 5(1) and (2) OF THE ONDO STATE HIGH COURT (CIVIL PROCEDURE) RULES, 1987. He consequently urged on us to allow this appeal and set aside the judgment of the trial court as being invalid, null and void.
RESOLUTION OF ISSUE (ii) TWO
Again with no direct reaction from the learned counsel of the respondent to issue two as formulated by the appellant, I shall however, take into consideration some salient submissions of the counsel in this regard.
Now, the pronouncement of Oputa JSC., in the case of GREEN vs. GREEN (supra) is quite instructive as to the conditions necessary in determining joinder or non-joinder of a third party. They are:
1) Is the cause or matter liable to be defeated by the non-joinder?
2) Is it possible for the court to adjudicate on the course of action set up by the plaintiff unless the third party is added as defendant?
3) Is the third party a person who ought to have been joined as a defendant?
4) Is the third party a person whose presence before the court as defendant will be necessary in order to enable the court effectually and completely to adjudicate on and settle all the questions involved in the cause or matter?
There is no denying the fact that there is a privity of contract between the first appellant and the respondents for which the 2nd appellant undertook to indemnify the respondents in the event of loss or theft of goods. However, it is my considered view that given the nature of the contract or business involved, indemnity herein includes proper accountability of the sales transactions. Any profit yielding business has the propensity to suffer loss or damage if not carefully and efficiently managed. Thus, before a servant such as the instant 1st appellant can be held liable for loss or damage of the goods in his care, he must be shown to have exhibited some level of negligence such that no reasonable person in his shoes or circumstances would have done. Although there seems to be nothing on record to suggest that the 1st appellant was negligent or careless in the manner and way he was conducting his master’s business yet, he was by virtue of their contract agreement under a heavier obligation of care.
Indeed it is on record that the transactions between 1st appellant and their customers are recorded in writing and the records are with the respondent. The respondent’ as can be found in paragraph 15 of the appellant’s consequential Amended statement of Defence, was given notice to produce the record of transaction in question and he failed to do so. The inference to be drawn from this in any event’ is that if the said book of transactions was produced it would have been inimical to the respondents’ case. See section 149 (d) of the Evidence Act Cap 112 Laws of the Federation of Nigeria, 1990 now section 167(d) of the Evidence Act, 2011 and the decided cases of OBO vs. COMM. OF EDUCATION BENDEL STATE (1993) 1 NWLR (PT. 273) 46 at 61G; and OBOT VS. AKPAN (1998) 4 NWLR (546) 409 at 420 A-B. Some named customers such as Mr. Demion, Mr. Tunde, Mr. Jude and J. K. Man were afforded credit facilities to the knowledge of the respondent but at the risk of the 1st appellant. Mr. Demion himself testified at page 69 fines 21-22 that his transactions with the respondents were recorded in a book. Though the respondent tried denying the fact that he authorized sales on credit but Exhibits C and D tendered at the trial court are implicit and substantial evidence of authorization by the said respondent to the sales on credit. I am convinced from the foregoing that credit sales were done by the 1st appellant with the approval of his master the respondent but as I said a while ago to his own detriment. Having sold on credit to the knowledge and acquiescence of his master it was only fair and proper that those named customers who were owing the respondents were joined as parties in the suit. Be that as it may, it has been made clear in a plethora of authorities that no cause or matter shall be defeated by reason of the non joinder of parties. See GREEN VS. GREEN (supra). Aside from this, ORDER 11 RULE 3 OF ONDO STATE HIGH COURT (CIVIL PROCEDURE) RULES, 1987 relied upon by the learned counsel for the appellants, provides that all persons whom the right to any relief is alleged to exist may be joined as defendants. The operative word here is ‘MAY’ thus making it discretionary as opposed to being mandatory. These customers who bought on credit may be classified as desirable parties in the suit in that they may be affected by the outcome of the suit. However, their joinder or non-joinder which is at the pleasure of either the parties on record or even at the instance of the court cannot as it were and in the circumstances of this case vitiate the trial. They are clearly not necessary parties as envisaged by GREEN VS. GREEN (supra). Whether they are joined or not joined, the suit as it was before the trial court could still be fairly and effectually determined. This is to say that it is still feasible for the trial court to adjudicate on the cause of action set up by the plaintiffs/respondents with or without the debt owing customers. To this extent, the second issue for determination, which is whether the non-joinder of the plaintiffs/respondents, customers, whose names and addresses were specifically pleaded in paragraphs 12, 19 to 21 of the Consequential Amended Statement of Defence with Counter-Claim to this suit renders the whole trial and judgment invalid, null and void ab initio; my answer thereto is a resounding NO.
Coming to issue three which is whether the learned trial judge rightly considered the validity of the Employment Agreement (Exhibit ‘B’) and took a correct view as to its evidential value in arriving at the judgment-the learned counsel for the appellant pointed out that Exhibit B was made for the sole benefit of the respondents. Counsel argued that as shown on page “138” (sic) of the record, that there is no provision therein that it was for the benefit of both parties. While relying on section 71 of the Companies and Allied Matters Act Cap. 59, Laws of the Federation 1990, the learned counsel submitted that Exhibit B was not under seal. Furthermore, the learned counsel contended that because the 2nd appellant maintained that he signed without the knowledge of its content that Exhibit B was not enforceable. Exhibit B was expressed to be between the second respondent and the first appellant only. He maintained that the recitals showed that first respondent was “trading under the name and style of S. K. Ajayi (Nig.) Ltd., therefore, the first respondent who was not expressed to be a party to Exhibit B cannot sue or be sued on it. Relying on the doctrine of privity of contract which is that only a party to a contract can sue or be sued on it, the learned counsel cited some authorities such as: UBN LTD. VS. PENNY MART LTD. (1992) 5 NWLR (pt. 240) 228 at 240 G-H; SALOMON vs. SALOMON & CO. LTD. (1897) AC 22; and BERLIET (NIG.) LTD. vs. FRANCIS (1987) 2 NWLR (pt. 58) 673 AT 677.
The learned counsel for the appellant went on to contend that the second respondent could not also claim under Exhibit B, since he expressed himself to be trading under the name and style of a registered company. This is only applicable to business enterprises. Exhibit B was not expressed to be made for the second respondent personally. Counsel referred us to Part B of the Companies and Allied Matters Act, Cap. 59 Laws of the Federation of Nigeria, 1990. He finally urged us to allow this appeal by holding Exhibit B as unenforceable and not made for the benefit of the first appellant.
In his reaction to the validity or otherwise of Exhibit B, the learned counsel for the respondent contended that by virtue of the provisions of section 132 (1) of the Evidence Act the content of a written document cannot be varied by oral evidence. He relied on the cases of IFEZUE vs. MBADUGHA (1984) 5 SC 79; (1984) 1 SCNLR 427; and ADIGUN VS. GOVERNOR OF OYO STATE (1987) 1 NWLR (PT. 153) 678.
He argued that clause 3 of Exhibit B confers liability on the second appellant in the event of loss or theft of goods. He submitted that a contract of GUARANTEE exists between the respondent and the second appellant vide Exhibit B. See FORTUNE INT’L BANK PLC. V. PEGASUS TRADING OFFICE (Gmbh) (2004) ALL FWLR (pt. 199) 13; and EDOKPOLO & CO. LTD. vs. SAMSON OHENHEN & 1 OR. (1994) 7 NWLR (Pt. 358) 511, 534.
Counsel for the respondent finally urged the court to hold that the second appellant cannot turn around to deny knowledge of the contents of Exhibit B under the guise of the Illiterate protection Law.
RESOLUTION OF ISSUE (iii) THREE
I seem not to agree with the submission of the learned counsel for the appellant that Exhibit B was made for the sole benefit of the respondents. The document is evidence of the agreement reached voluntarily by the said appellant on the one hand and the respondents on the other. The appellant saw the benefit in it for him also when he signed and executed same voluntarily. It was therefore correct of the learned trial court to so hold.
That Exhibit B was not executed under seal as envisaged by section 71 of the companies and Allied Matters Act (supra) is neither here nor there given the circumstances of this case, more so as the learned contending counsel failed to state the repercussions for not executing same under seal. Courts are not given to conjectures and speculation but to hard facts. I therefore hold the absence of seal on the document to be an innocuous omission which in no way touches on the justice of the case.
The appellant’s counsel had argued that the recitals on Exhibit B showed that the first respondent was trading under the name and style of “S. K. Ajayi (Nig.) Ltd.” and that it was not expressed to be a party to the said Exhibit B and so cannot sue or be sued on it’ Indeed on the doctrine of privity of contract, only a party to a contract can sue and be sued on it. The first respondent from every indication is not a natural person. However, the second respondent as the Chairman/Managing Director of the first respondent holds himself out as its alter ego hence he could sue or be sued in collaboration with it or on its behalf. Both the first and second respondents are interrelated as they share common interest. I am satisfied that Exhibit B was properly made to be enforceable and for the benefit of the parties thereto. It follows that the learned trial Judge rightly considered the validity of it as an Employment Agreement and took a correct view of its evidential value in arriving at the judgment.
Regarding issue four (iv) which is whether the trial Judge rightly dismissed the Counter-Claim of the first appellant-the learned counsel for the said appellant ,contended that the learned trial Judge was wrong to have based his reason for dismissing the Counter-Claim partly on the evidence of conviction at the Chief Magistrate court. He argued that the facts leading to the evidence were not pleaded by the parties and that evidence on facts not pleaded goes to no issue. He cited the cases of AMADI vs. NWOSU (1992) 2 NWLR (pt. 241) 273: MOROHUNFOLA VS. KWARA TECH. (1990) 4 NWLR (Pt. 145) 506; ODUKA Vs. KASUMU (1968) NMLR 28, 31; and JAMES vs. MID MOTORS (NIG.) LTD. (1978) 11 and 12 SC. 31 at 63.
Counsel submitted that as to whether or not the special damages were proved, that there was abundant pleadings by the first appellant at pages 97 and 98 of the record (per paragraph 31) and that evidence of this was given at page 64 lines 2 to 9. He also pointed out that once there is no defence to a Counter-Claim, the defendant is entitled to judgment. For this principle of law he placed reliance on KADUNA TEXTILES LTD. vs. UMAR (1994) 1 NWLR (pt. 319) 143 at 160 F-G; NIG. HOUSING DEV. SOCIETY VS. YAHA MUMUNI (1977) 2 SC 57 at 85-86; AND NEPA v. ALLI (1992) 8 NWLR (Pt. 259) 279. Against this background the learned appellants’ counsel urged the court to allow this appeal by setting aside the judgment of the trial court and granting the first appellant’s counter-claim.
On the part of the respondents learned counsel on their behalf raised the question of counter-claim as their issue two. He made quick to submit that the counter-claim in the instant case was for declaration that the arrest and detention of the appellant was unlawful and ipso facto a claim for damages. He quipped that the first appellant however under cross examination admitted that he was arraigned in court upon a charge and was equally convicted. This piece of evidence according to the counsel negates any claim to unlawful arrest and detention and if anything the trial court was left with no material fact with which to make a declaratory order that the arrest and detention of the first appellant was unlawful. Similarly the claim for special damages was not supported by evidence.
Counsel referred to NWANJI vs. COASTAL SERVICES (NIG.) LTD. (2004) ALL FWLR (Pt. 219) 1150 in contending that the lower court was right in dismissing the counter-claim of the appellant for want of proof and he urged the court to so hold. Counsel for the respondent urged the court to dismiss the appeal and affirm the judgment of the lower court.
RESOLUTION OF ISSUE (iv) FOUR
Now even where a defence was not filed to a Counter-Claim, the law remains that:
“Where there is no evidence to contradict or challenge the very loud law that un-contradicted or unchallenged evidence will be used against a party cannot arise. If a Plaintiff (Counter-Claimant in the instant case) has not proved his case evidence in rebuttal does not arise.”
See the case of CONSOLIDATED BREWERIES PLC. VS. JOSHUA A. A. AISOWIEREN (2002) FWLR (Pt. 116) 959 at 990. The position of the foregoing in relation to the instant appeal is that, though the facts leading to the evidence of conviction of the first appellant at the Chief Magistrate Court may not have been pleaded, it still behoves him to prove his said Counter-Claim, more so as the reliefs sought therein are declaratory in nature. It goes without saying that a Counter-Claim is a separate and distinct action from the original claim and so the counter-claimant just like the plaintiff in the original case succeeds on the strength of his own case. See the case of CHIEF EMMANUEL OGBONNA vs. AG IMO-STATE (1992) 1 NWLR (Pt. 220) 647 at 689 ptly referred to by the learned counsel for the respondents. The first appellant was therefore not expected to ride on the weakness of the respondents’ case if at all but rather on the strength of his own case. I hold the very strong view that the learned trial Judge was right to have based his reason for dismissing the counter-Claim as shown at page 22, lines 2-10 partly on the conviction at the Chief Magistrate Court. The first appellant’s Counter-Claim had no strength of its own to stand on and so it was rightly dismissed by the learned trial Judge. Accordingly issue four is hereby resolved in favour of the respondents and against the appellant.
On whether the second appellant is protected from the enforcement of Exhibit B, the learned counsel for the appellant in making their case submitted that for Exhibit B to be binding on the second appellant as a party, the provisions of section 3 of the Illiterates Protection Law Cap. 48 Laws of Ondo State, 1978 must be complied with and that there must be an illiterate jurat on it. Counsel referred us to the authorities of ANAEZE vs. ANYASO (1993) 5 NWLR (pt. 291) at 35-36 B-A; U. A. C. N. vs. EDEMS & AJAYI (1958) NRNLR 33; and SCOA ZARIA VS. OKON (1959) SCNLR 562.
Learned counsel submitted that all the above principles were pleaded and proved by the second appellant and that the respondents did not deny them in their pleadings. Counsel opined that the evidence of the second respondent at page 52, lines 8-11 of the record, of the ability of the second appellant to read and understand Exhibit B is not supported by the respondents’ pleadings and it is therefore not a rebuttal of illiteracy. He urged the court to allow this appeal and set aside the judgment and orders cramped down on the second appellant.
RESOLUTION OF ISSUE (v) FIVE
As rightly submitted by the learned counsel for the respondent somewhere in his brief (which brief is devoid of pagination and or paragraphs), the first appellant presented the second appellant as his surety/guarantor as required by Exhibit B.
The said Exhibit B was signed by the second appellant with nothing on the face of it such as an illiterate jurat to suggest that he was signing as an illiterate. Granted that the said second respondent was an illiterate as he turned around to claim, the fact still remains that Exhibit B was not made at his behest and so he cannot enjoy the protection of the illiterate Law of Ondo State, 1978. The Supreme Court made it clear in the case of EDOKPOLO & CO. LTD. vs. SAMSON OHENHEN & 1 OR. (supra) that:
“Section 3 of the Law only raises or provides certain presumption of law in respect of a document prepared at the request, on behalf or in the name of an illiterate by any person who shall write on such document his own name as writer thereof and his address.” (Emphasis mine).
Exhibit B was neither written at the request or on behalf of nor in the name of the second appellant. As already noted it was instead at the request of the first appellant that he the second appellant voluntarily chose to stand as surety and or guarantor for the former. As rightly found by the learned trial Judge the second appellant cannot avail himself of the protection of section 3 (supra). That he signed Exhibit B without same being read to him by the first appellant is neither here nor there. Indeed as noted by the trial Judge, ignorance of the law is no excuse for the acts of the second appellant and I so hold. Accordingly issue five as formulated by the learned counsel for the appellants is thus resolved in favour of the respondents but against the appellants.
Without much ado on issue six which is whether the judgment of the trial court is supportable by the evidence on record from all my findings above I am satisfied that the said judgment is supportable by the evidence before the trial court. The sum total of all I have said above is that the appeal lacks merit and so cannot succeed. It is hereby dismissed while the judgment of A. O. ODUSOLA, J. sitting at the High Court of Ondo State delivered 18th March, 2005 in suit nos. HOD/40/97 is hereby affirmed.
SOTONYE DENTON WEST, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Jombo-Ofo, JCA, who dealt convincingly with all the issues raised in this appeal that leads me to adopt his reasoning and conclusions as my own, giving me no alternative than to concur with the said lead judgment.
I thereby abide by all the consequential orders made therein.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Ifeoma Jombo-Ofo JCA.
I agree with the reasoning and conclusion. I also agree that the appeal lacks merit and should be dismissed. I abide with the order(s) as to costs.
Appearances
OLADELE AYOOLA ESQ. For Appellant
AND
OLUMIDE AKINBINU ESQ. for the respondents though served with Hearing Notice was absent for hearing of the appeal. The respondents, brief which was already filed was deemed as duly argued pursuant to order 18 Rule 9(4) of the Court of Appeal Rules, 2011 .For Respondent
