AINA MODUPE JEJE v. ENTERPRISE BANK LIMITED & ORS (2015)

AINA MODUPE JEJE v. ENTERPRISE BANK LIMITED & ORS

(2015)LCN/7911(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of June, 2015

CA/EK/24/2014

RATIO

APPEAL: FILING REPLY BRIEF IN APPEAL; THE PURPOSE OF FILING A REPLY BRIEF

While it is fashionable in recent times for some appellants to file reply briefs in appeals, one must not lose sight of the position of the law regarding the purpose and when there is need for the filing of a reply brief. A reply brief is not for the purpose of re-arguing an appeal by an appellant or to emphasis a point that has already been made in the appellant’s brief of argument. It is to respond to new issues or arguments raised by a respondent in his brief of argument. See AHMED V. AHMED (2013) 15 NWLR (Pt. 1377) 274; and ALAWIYE V. OGUNSANYA (2013) 5 NWLR (Pt. 1348) 570. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

MEANING OD WORDS: ILLITERATE AND LITERATE; THE MEANING OF THE WORD ILLITERATE AND LITERATE

The ordinary meanings of the word “illiterate” as given in Oxford Advanced Learner’s Dictionary (6th Edition) are as follows: – “adj. 1 (of a person) not knowing how to read or write [OPP] LITERATE 2. (of a document or letter) badly written, as if by sb without much education 3. (usually after noun or adverb) not knowing very much about a particular subject area; computer illiterate # musically literate.”
It is therefore obvious that in every day English the fact of the illiteracy of a person will depend on the con in which the word is used.
It is the word “literate” that is defined in Black’s Law Dictionary (Ninth Edition). The meanings of the word as contained on page 1017 read: –
“literate, adj. (15c) 1. Able to read and write a language. 2. Knowledgeable and educated. – literacy, n.”
It would appear clear again that even in law the illiteracy of a person depends on the con in which that fact is being considered. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

MEANING OF WORD: ILLITERATE; THE MEANING OF ILLITERATE UNDER THE ILLITERATES PROTECTION ACT

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF THE PLAINTIFF TO PROVE HIS ILLITERACY

In this case the plaintiff has the burden to prove his illiteracy. See Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

EVIDENCE: ONUS/BURDEN OF PROOF; THE ONUS OF REBUTTING THE PRESUMPTION OF LITERACY

CONTRACT: SIGNING A DEED; WHEN A DOCUMENT CAN BE RENDERED VOID AND THE PLEA OF NON EST FACTUM
It is also my considered view that in raising the issue of the illiteracy of her late father and non-compliance with the provisions of the Illiterates Protection Law, Appellant would appear to want to ride on the shoulder of the plea of non est factum. There is no doubt that a person who signs a legal document that ought to carry an illiterate jurat can in some cases rely on that plea in avoiding his obligations thereunder. This position is confirmed by the decision of the Supreme Court in the case of EGBASE V. ORIAREGHAN (1985) LPELR – 1030 (SC). In the case in question, the Supreme Court per Eso, JSC, (of blessed memory) dwelling on when a document can be rendered void and the plea of non est factum said at pages 27 and 29 – 30 thus: –
“Before a document is totally rendered void; the element of consent must be totally lacking. In Saunders v. Anglia Building Society (1971) AC. 1004; (Gallie v. Lee) Lord Wilberforce said –
“In my opinion a document should be held to be void (as opposed to voidable) only when the element of consent to it is totally lacking, that is, more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended.”
…….. The plaintiff pleaded non est factum and the trial Court upheld this. But the Court of Appeal later allowed the appeal against this and the House of Lords upheld the decision of the Court of Appeal. In the Court of Appeal, Lord Denning M.R. laid down a broad principle as his conclusion from the investigation of the law (and this was quoted by Lord Pearson in his judgment (see p.1032 of the law) –
“whenever a man of full age and understanding who can read and write signs a legal document which is put before him for signature by which I mean a document which, it is apparent on the fact of it, is intended to have legal consequences – then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented to all those whose hands it may come, that it is his document; and once they act upon it as being his document, he cannot go back on it, and say it was a nullity from the beginning.”
Lord Pearson then said –
“There can be no doubt that this statement by the Master of the Rolls is not only clear and concise formulation but also a valuable guide to the right decision to be given by a court in any ordinary case.”
I agree.”
While Karibi-Whyte, JSC; dwelling on the signing of a legal document and when the plea of non est factum would avail an illiterate said at pages 39 and 42 – 43 thus: –
“It must also be borne in mind that the plea of non est factum requires clear and positive evidence before it can be established. …….. The principle of law expressed in the legal expression scriptum predictum non est factum suum is of sixteenth century origin. The principle came to ameliorate the erstwhile absolute bindingness of a deed. Before the development of this principle a person was bound by his signature to a document whether he reads, or understands it, or not. It was in Thorough good’s case (1594)2 Co. Rep.9a that it was declared that if a person who could not read executed a deed after it had been incorrectly read over to him, he was not bound by it. The plea of non est factum is available to such person. It is also available where a person is induced by the false statements of another and after the exercise of due diligence, to sign a document which he discovers to be fundamentally different in character from that which he agreed.
In each of the situations stated the signature is invalid and of no force. The protection offered by the law is to ensure that a person is not held bound by the terms of a document which he should not have signed but signed due to fraud or mistake. The same principle dominates the Illiterates Protection Legislations which require interpretation of the content of a document signed by an illiterate, – see U.T.C. bid Tetteh (1965) ALR. Comn. 100. Byles J, has pointed out in Foster v. Mackinnon (1869) L.R.4 C.P. 704, the legal effect of defect on the document. He said,
“….it is invalid not merely on the ground of fraud, where fraud exist, but on the ground that the mind of the signer did not accompany the signature; in other words that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.”
The governing consideration is the absence of agreement which is a direct result of the intention of the mistaken party. As Wilberforce L.J. said in Saunders v. Anglia Building Society (1970) 3 All E.R.961 at p.272.
“It is lack of consent that matters, not the means by which this result was brought about.””
Also the Supreme Court dwelling on when the plea of non est factum will avail a person vis-‘a-vis presumption of regularity, in the case of AWOSILE V. SOTUNBO (1992) LPELR – 658 (SC) per Nnaemeka-Agu, JSC; stated at pages 33 – 34 thus: –
“…His admission that he knew that the document related to his property but that he thought it had a different effect completely put paid to his plea of non est factum. For the law is that it would be dangerous to allow a man over the age of legal infancy to escape from the legal effect of a document which he has, after reading it, signed in the absence of proof of fraud or positive mis-representation by the other party who would take advantage of the due execution of the document. For this see, Blay v. Pollard & Morris (1930) 1 K.B 628; Gilman v. Gilman 174 L.T. 272. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CONTRACT: VALID CONTRACT; ELEMENTS OF A VALID CONTRACT

It is however a specialty contract in that it is a contract under seal. It is settled law that there are five important factors that must be present in a valid contract and these are (i) offer; (ii) acceptance; (iii) consideration; (iv) intention to create legal relations; and (v) capacity to contract. See OMEGA BANK (NIG.) PLC V. OBC LTD (2005) 8 NWLR (Pt. 928) 547; and OKUBULE V. OYAGBOLA (1990) 4 NWLR (Pt. 147) 723. per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

CONTRACT: PRIVITY OF CONTRACT; WHETHER IT IS ONLY PARTIES TO A CONTRACT THAT CAN ENFORCE IT

It is my considered view that it is clear from the settled principles relating to contracts that only parties to a deed can properly have a cause of action in respect of their own deed which Exhibit E definitely is irrespective of who prepared it. A deed like any other contract can undoubtedly be declared invalid. However this can only be on the basis of matters intrinsic or innate therein and not something extrinsic to it. The corollary of this in my considered view is that a party to a contract be it simple contract or under seal, cannot avoid or void a contract on any perceived act of commission or omission not arising from or not having any relationship with the subject matter of a contract or deed, as such a matter or matters will be glaringly extrinsic to the simple contract or deed in question. This stance would appear to find succuor or aid in the case of IKPEAZU V. ACB LTD [1965] NMLR 374 wherein the Supreme Court per Ademola CJN (of blessed memory) said thus: –
“…………… Generally a contract cannot be enforced by a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue upon it-Tweddle v. Atkinson (1). This view was supported by the House of Lords in Dunlop Pneumatic Tyre Co. Ltd. v. Selfridge & Co. Ltd. (2). The position is stronger with regard to contracts under seal; unless a person is named as a party to the deed, he cannot maintain an action upon it-Chesterfield and Midland Silkstone Colliery Co. v. Hawkins (3). The only exemption to this rule relates to indentures made about land which was introduced by Section 5 of the Real Property Act 1845 to enable a stranger to a deed to take advantage of a benefit to him in the deed. Counsel for the Bank agreed that the Bank was not a party to the document (Exhibit D) and cannot sue on it, but he said that this is so at Common Law. In equity, he submitted that as the document is a compromise document prepared for the benefit of the Bank, it (the Bank) can sue on it on the theory of trusteeship. Counsel has not referred to any case for likening the Bank to a cestui que trust, nor explained how the recital of a representation made by the appellant to William Emodi, that he had guaranteed the debt, can be read as the contract of a guarantee given by the appellant to the Bank; and we do not know of any decided case which supports his submission. We therefore do not see by what stretch of imagination the Bank could rely on Exhibit D. as a guarantee by the appellant in its favour, to use the recital in the deed as a basis for making a claim based on guarantee. ………..”
(Underlining provided by me for emphasis). per. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

PRACTICE AND PROCEDURE: COUNTER CLAIM; THE NATURE OF A COUNTER CLAIM

JUSTICES

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

AINA MODUPE JEJE Appellant(s)

AND

1. ENTERPRISE BANK LIMITED
2. S. A. OLOYEDE
(For and on behalf of Akeju Commercial Agency)
3. OJO AJAYI Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment delivered on 1/8/2013 by the High Court of Justice of Ekiti State holden in Ado-Ekiti Judicial Division presided over by Hon. Justice C.I. Akintayo (hereafter simply referred to as “the Lower Court” and “learned trial Judge” respectively). In the judgment in question, the learned trial Judge dismissed the case of the Appellant (then Plaintiff) in its entirety and granted the counter-claim of the 3rd Respondent (then 3rd Defendant).

The instant case was instituted by one Caleb Jeje against Owena Bank Plc; and the 2nd and 3rd Respondents respectively on record. The writ of summons dated 2/2/1996 appears to have issued on the same date. In the statement of claim dated 17/2/1996 and filed on 27/5/1996 (see pages 8 – 10 of the record), Caleb Jeje disclosed that he had some dealings with Owena Bank Plc as a customer and that he applied for a loan from the said Bank on his current account in addition to the money he already had in the said account. The loan was required for his trading business. Having averred that he is an illiterate in all languages, and after narrating what the manager of Owena Bank Plc did to facilitate the opening of his account and how he fell out with Owena Bank Plc, Caleb Jeje further averred that he did not sign any loan agreement as the loan he sought had not been approved before the relationship between him and Owena Bank Plc was severed. Caleb also made averments that went to show that his house was wrongfully and irregularly sold in connection with the loan, by Owena Bank Plc (through the agent it appointed or procured for that purpose) to the 3rd Respondent. In the premises of the facts averred in the statement of claim, Caleb Jeje contended and claimed in paragraph 26 of the statement of claim as follows: –

“Paragraph 26

The plaintiff will contend at trial that the defendants have no right to sell or buy the house.

(a) That there is no Legal Mortgage Deed between the plaintiff and first defendant in respect of his property situate and behind First Bank Ado Ekiti and further

(b) That if there was one in existence, it is not properly prepared or properly executed as it was not signed by the plaintiff before a Magistrate or a person designated by Law for that purpose, the plaintiff being an illiterate.

(d) That the Governor’s consent was not obtained prior to the execution of the Deed.

(e) That the auction notice, if any was not pasted on the property which was intended to be sold.

(f) That the Auctioneer did not comply with all the requirements of the Law both Local and otherwise before the purported auction sale.

(g) That the procedure for and precedent to an Auction sale was not complied with.

(h) That the purported Auction sale was not conducted at the premises of the property purported to be sold or at all.

(i) That any action by the defendants in respect of the account of the plaintiff No. 050/00/400 is statute barred and stale before the auction was conducted as the account had been abandoned for over 15 years before that time.

Whereof the plaintiff claims from the defendants as follows: –

1. Declaration that the property of the plaintiff situate lying and being behind First Bank Odo Ijigbo Street now known as No. 12A, Ajilosun Odo Ijigbo Street, Ado-Ekiti, is not the subject of any legal Mortgage Deed between the plaintiff and the first defendant.

2. An order rescinding the sale if the property had been sold by the first and second defendants.

3. An order of the court on the first and second defendants to produce and give to the plaintiff an authentic copy of the duly executed Legal Mortgage Deed on which they acted, the plaintiff being an illiterate and also a statement of account on account No. 050/00/400 from the time the loan was granted up till the time of taking this action.”

The 3rd Respondent on record filed a separate statement of defence on 24/7/1996. It is dated 20/7/1996. (See pages 13 – 14 of the record). Therein he controverted the case of Caleb Jeje and set up a case to the effect that he legally bought the house of Caleb Jeje in question. Owena Bank Plc; and the 2nd Respondent on record both filed a joint statement of defence on 6/8/1996. It bears the same date. (See pages 15 – 22 of the record). Therein these two defendants controverted the case of Caleb Jeje and set up a case justifying the actions taken in respect of the house of Caleb Jeje on the ground that he never repaid the loan he took from Owena Bank Plc. On 16/8/1996 Caleb Jeje filed a reply to the statements of defence of three defendants before the Lower Court. (See pages 23 – 25 of the record).

Caleb Jeje died after the institution of the instant case and the filing of the statement of claim therein. Changes also occurred in the banking industry that affected Owena Bank Plc amongst others. As a result of these developments, and for other reasons, parties amended their pleadings as they considered expedient with the case being tried and decided on the following processes: (i) Second Further Amended Writ of Summons (see pages 273 & 274 of the record); (ii) Second Further Amended Statement of Claim (see pages 1 – 4 of the supplementary record); (iii) 1st and 2nd Defendants’ Third Further Amended Joint Statement of Defence (see pages 275 – 282 of the record); (iv) Further and Further Amended Statement of Defence of 3rd Defendant and Counter-Claim (pages 302 – 305 of the record); (v) Amended Reply to 1st and 2nd Defendants’ Third Further Amended Joint Statement of Defence (see pages 307 – 309 of the record); and (vi) Amended Reply to Further and Further Amended Statement of Defence and Defence to Counter-Claim of the 3rd Defendant (see pages 310 – 312 of the record).
Suffice, it to say that the respective cases of the parties as set up in their original pleadings are substantially the same in the amended processes catalogued above; hence the contention and reliefs contained in paragraph 26 of the statement of claim filed in the name of Caleb Jeje (and which have been re-produced hereinbefore) remained the same word for word in paragraph 26 of the 2nd Further Amended Statement of Claim (hereafter to be simply referred to as “statement of claim”). Also the counter-claim which the 3rd Respondent first introduced into the instant case in his statement of defence and counter-claim on pages 50 – 52 of the record remained the same; however a new claim/relief was added. The reliefs sought against the Appellant by the 3rd Respondent as set out in his Further and Further Amended Statement of Defence and Counter-Claim (hereafter to be simply referred to as 3rd Respondent’s statement of defence and counter-claim”) read: –

“(a) A declaration that the landed property of the plaintiff’s father situates (sic), lying and being at No 12A Ajilosun Street, along Ado-Ikere, Road Ado-Ekiti covered by Deed of Conveyance No. 40/40/1124 subject of Legal Mortgage Deed Registered as Nos. 39/39/359 and 17/17/395 was validly and regularly sold by 1st and 2nd defendants to 3rd defendant on 7th December, 1995 as such 3rd defendant is the rightful owner of the landed property.

(b) An order that plaintiff should account and pay to 3rd defendant all rents she has collected and still collecting from the Tenants in the said house at Ajilosun Street, Ado-Ekiti from 7th December, 1995 up to the date of judgment.

(c) A perpetual injunction restraining plaintiff, her Agents and privies from collecting rents from the Tenants in the said house from now and till judgment and thereafter.”

Parties duly called witnesses in the proof of their respective cases. Having had the benefit of addresses of learned counsel for the parties and after evaluating the evidence (viva voce and documentary) before the Lower Court, the learned trial Judge made findings he considered as appropriate and subsequently dismissed the case of the Appellant in its entirety and granted the reliefs sought by the 3rd Respondent in his counter-claim.

Being dissatisfied with the judgment of the Lower Court, the Appellant initiated the instant appeal by a Notice of Appeal dated 14/8/2013 and filed on 15/8/2013. The Notice of Appeal contains seven grounds of appeal which includes the omnibus ground of appeal in “civil appeal” namely, “the judgment of the Lower Court is against the weight of evidence”. The reliefs which the Appellant seeks from this Court as set out in the Notice of Appeal read: “(i) To allow the appeal, set aside the judgment of the learned trial judge and grant the Appellant’s reliefs; (ii) To dismiss the counter-claim of the 3rd Respondent”. (Bold and italic supplied by me).

The appeal was entertained on 30/3/2015 as parties had before then filed, exchanged and regularised the positions of their briefs of argument. At the hearing of the appeal, T.M. Ogunmoroti, learned lead counsel for Appellant duly adopted and relied on the briefs of argument filed on behalf of the party in urging the Court to the effect that the reliefs sought in the Notice of Appeal be granted the Appellant. The briefs in question are the Appellant’s brief of argument dated 4/12/2014 and filed on 5/12/2014 but deemed as having been properly filed and served on 24/2/2015 and Appellant’s reply brief dated 16/3/2015 and filed on 18/3/2015. Both briefs were settled by learned lead counsel.

The joint brief of argument of the 1st – 3rd Respondents dated 11/3/2015 and filed on 12/3/2015 was settled by Pastor L.O. Aladetoyinbo. The argument of the appeal was left to T.O. Obisesan of counsel as learned lead counsel L.O. Aladetoyinbo was not feeling well enough to conduct same. Obisesan of counsel duly adopted and relied on the Respondents’ brief of argument in urging this Court to dismiss the appeal and uphold the judgment of the Lower Court. Learned counsel also urged this Court to discountenance the reply brief of the Appellant as it does not deal with any new point. He referred to Order 18 Rule 5 of the Court of Appeal Rules 2011, in aid.

Four Issues were formulated for the determination of the appeal in the Appellant’s brief of argument. They read thus: –

“(1) Whether the late father of the Appellant was an illiterate and legally obtained a loan from the 1st Respondent. Grounds 1 and 3

(2) Whether the deed of legal mortgage between the Appellant or her late father is regular or valid and if it is invalid and irregular whether the pronouncement of its validity by the learned trial judge has not occasioned a miscarriage of justice. Ground 2

(3) Whether the property of the late Appellant’s father at 12(a) Ajilosun Odo-Ijigbo Street Ado-Ekiti was properly and legally sold by the Respondents. Ground 4

(4) Whether the 3rd Respondent proved his counter-claim as to entitle him to the reliefs contained in his said counter-claim. Ground 5 and 6”

The Issues formulated for the determination of the appeal in the Appellant’s brief of argument were adopted with slight modifications in the Respondents’ brief of argument and they read thus: –

“1. Whether the late father of the Appellant was literate or stark illiterate person in the circumstances of this case and whether he actually and legally obtained a loan from the 1st Respondent and mortgaged his property in issue in this case to the said 1st Respondent. (Grounds A & C of the Appellant’s Grounds of Appeal).

2. Whether the deed of legal mortgage between the Appellant or her late father is regular or valid and if it is invalid irregular whether the pronouncement of its validity by the learned trial judge has not occasioned a miscarriage of justice (Ground B of the Appellant’s Grounds of Appeal).

3. Whether the property of the late Appellant’s father at 12(a) Ajilosun Odo-Ijigbo Street, Ado-Ekiti was properly and legally sold by the Respondents (Ground D of the Appellant’s Grounds of Appeal).

4. Whether the 3rd Respondent proved his Counter-Claim as to entitle him to the reliefs contained in his said Counter-Claim (Grounds E and F of the Appellant’s Ground of Appeal).”

The appeal will be determined on the Issues formulated by the Appellant as the Issues formulated by the Respondents are not radically different despite the modification introduced thereto.

It is also pertinent to state at this stage, that I will discountenance the reply brief of argument filed by the Appellant in the consideration and resolution of the Issues for determination of the appeal. This is because having perused same, I am of the settled view that the arguments/submissions therein are not in respect of any new point raised by the Respondents in their brief of argument. The arguments/submissions of learned lead counsel in the reply brief in question, are no more than a re-argument of some aspects of Appellant’s brief of argument as responded to in the Respondents’ brief of argument.

APPELLANT’S ISSUE 1:

Dwelling on this Issue, learned lead counsel submitted to the effect that the finding of the learned trial Judge to the effect that the father of the Appellant was not an illiterate is wrong. This is particularly so as the evidence adduced by PWs 1 and 2 in respect of that aspect of Appellant’s case was dislodged by cross-examination and was confirmed by DW1 and DW3 in their evidence. He submitted to the effect that the admissions made by DWs 1 and 3, are against “interest” and fatal to the case of the Respondents but advantageous to that of the Appellant. That the weakness in the Respondents’ case in this regard, is one which the Appellant can exploit; and the case of Onisaodu v. Elewuju (2006) 13 NWLR (Pt. 998) 517 at 529-530 was cited in aid.

Learned lead counsel submitted to the effect that once this Court holds that Appellant’s late father was an illiterate in his life time, then Exhibit ‘G’ – the application for loan is irrelevant and inadmissible as it bears no illiterate jurat. Again, referring to the portion of the evidence of PW1 regarding what transpired between Appellant’s late father and one Mr. Alagbara and relying on Section 3 of the Illiterates Protection Law, learned lead counsel submitted that Exhibit G and other documents, namely, Exhibits J and J1 purportedly written by Appellant’s late father ought to bear or carry illiterate jurats as he was an illiterate; and the cases of UBA Plc v. Mustapha (2004) 1 NWLR (Pt. 855) 443 at 478-480; and Ezeigwe v. Awudu (2008) 11 NWLR (Pt. 1097) 158 at 178 were cited in aid.

It is the stance of learned lead counsel that learned trial Judge merely presumed the literacy of Appellant’s late father without regard to the evidence on record particularly the evidence of DW3. He submitted that the mere inscription of a person’s name or signature on a document does not make him literate and cited in aid the cases of Edokpayi v. Oke (1964) 1 WNLR 53; and UBA Plc v. Mustapha (supra). He submitted that the finding that Appellant’s late father was literate as made by learned trial Judge is not a proper inference from available evidence on record and that this is fatal; and the case of Royal Ade (Nig.) Ltd v. NOCM Co. Plc (2004) 8 NWLR (Pt. 874) 206 at 226 was cited in aid. Having also said that it is on record that evidence of Respondents’ witnesses is at variance vis-‘a-vis the literacy of the late father of the Appellant (and which is equally fatal), learned lead counsel submitted that this should have raised substantial doubt in the mind of the learned trial Judge against the Respondents and in favour of the Appellant; and the case of Auta v. Ibe (2003) 13 NWLR (Pt. 837) 247 at 265 – 266 was cited in aid. This Court was urged to allow the appeal on this point (issue) and set aside the judgment of the Lower Court.

RESPONDENTS’ ISSUE 1:

Respondents’ Issue 1 glaringly relates to the illiteracy or literacy of Appellant’s late father and whether or not he obtained a loan from the 1st Respondent. It is however my considered view that in arguing the Issue the Respondents proffered submissions hinged on materials (such as signature cards of Appellant’s late father) that were not transmitted with the record as they were never tendered at trial and thereby could never have formed part of the record. I am of the considered view that learned counsel who settle briefs of argument in appeals, should always limit themselves to the content of the record and which includes only exhibits tendered before the Lower Court and transmitted with the record. In other words, submissions in a brief of argument should not be based or predicated on documents which were never tendered at all, at the trial of a case.

Dwelling on the issue of illiteracy of Appellant’s late father, learned counsel said to the effect that various admissions by Appellant in the statement of claim; evidence adduced by Appellant; and documents tendered by Respondents before the Lower Court showed clearly that Appellant’s late father – Caleb Amuda Jeje, was literate and that he actually applied for and got a loan from the 1st Respondent to finance his gas project and trading business. That Appellant’s late father also personally admitted in paragraph 6 of Exhibit Q that he gave 1st Respondent the deed of conveyance of his property in Ado-Ekiti now in dispute and the one at Efon, when he applied for the loan. He also submitted that it is obvious from Appellant’s pleadings and her evidence at the Lower Court that her late father actually applied for a loan from 1st Respondent and that he made the application by Exhibit G which he personally wrote and signed. It is the stance of learned counsel that it was not enough for Appellant to have disputed the authenticity of her late father’s signature on the documents tendered by the Respondents, but had the onus to tender other documents bearing her late father’s signature or showing the manner her late father “managed to print his name on paper” and that Appellant failed woefully to discharge the onus. That the learned trial Judge was therefore right in believing the pleadings and evidence of the Respondents and consequently dismissing the Appellant’s claims and this Court was urged to so hold and the case of Babale v. Eze (2012) All FWLR (Pt. 635) 287 at 335 was cited in aid. Furthermore, learned counsel submitted that evidence adduced by Respondents on the issue of literacy of the late father of the Appellant; the application for loan and obtaining of same from 1st Respondent by Appellant’s late father, as well as the mortgage by him of the property in question in this case to 1st Respondent as a collateral for the loan remained unchallenged and un-contradicted and was rightly believed and acted upon by the Lower Court. The case of Bua v. Dauda (2003) 6 SC (Pt. II) 120 at 125 was cited in aid. It is also the stance of learned counsel that the totality of the evidence adduced by Appellant in the proof of her case was manifestly unreliable. This is because on the one hand Appellant was an infant between 1982 and 1986 (as she was just about 7 years old) when her late father had dealings with 1st Respondent and never followed him to the Bank, while PW2 – Appellant’s grandmother on the other hand knew absolutely nothing about the transactions between her deceased son – Caleb Jeje and 1st Respondent. That learned trial Judge, was therefore right in disbelieving the evidence placed before the Lower Court by the Appellant. Learned counsel said to the effect that the non-calling of Mr. Alagbara was fatal to the Appellant’s case and that evidence of DW1 relied upon by learned lead counsel for the Appellant, did not prove that Appellant’s late father was an illiterate. This is because a combined reading of Exhibits G, J, J1 and Q shows that Appellant’s late father was not an illiterate. That the fact that Exhibits E and Q carry jurats is not conclusive proof that Appellant’s late father was an illiterate. Learned counsel said to the effect that evidence showed clearly that it was Appellant’s late father that wrote, signed and brought Exhibits G, J and J1 to 1st Respondent. Learned counsel also said that the signatures of Appellant’s late father on Exhibits G, J and J1 which he personally wrote and signed, are the same with the ones on Exhibits D, E and Q.

It is the stance of learned counsel that the case of U.B.A. Plc v. Mustapha (supra) and other cases cited in Appellant’s brief of argument are in support of Respondents’ case having regard to the definition of “an illiterate”, therein. It is also the stance of learned counsel that learned trial Judge did not merely presume that Appellant’s late father was literate as the fact was firmly and effectively established by evidence adduced by Appellant; Respondents; and documents; particularly as it was never in evidence that Appellant’s late father ever thumb printed any document or correspondence between him and 1st Respondent; while Exhibits G, J and J1 which were not shown to have been written by any other person on behalf of Appellant’s late father went to show that he is not an illiterate.

Dwelling on the Issue as to whether or not Appellant’s late father obtained a loan from 1st Respondent and mortgaged his property in question in this case to the said 1st Respondent, learned counsel submitted that Appellant admitted in her pleadings and evidence on record that her late father applied for a loan from 1st Respondent. That the evidence that the loan was not approved or that no approval was communicated to Appellant’s late father is untenable in the face of Exhibits D, E, G and M. It was stressed that Exhibit G dated 25/7/84 is the application for loan written and signed by Appellant’s late father. That in the said exhibit Appellant’s late father promised to abide by the rule and conditions for the grant of the loan. That Exhibit M is the letter conveying approval of the loan and the conditions Appellant’s late father had to fulfill; while Exhibit E – the deed of legal mortgage signed by Appellant’s late father is one of the conditions. It is the stance of learned counsel that Exhibit D got to the custody/possession of 1st Respondent as narrated in paragraph 6 of Exhibit Q. Also that Exhibit D is reflected in Exhibit E as the collateral used by Appellant’s late father for the loan. Learned counsel submitted that, in law admission is the strongest means of proving a fact in issue and the case of Olagunji v. Oyeniran (1996) 6 NWLR (Pt. 453) amongst others was cited in aid. This Court was urged to resolve this Issue in favour of the Respondents and against the Appellant and affirm the decision of the Lower Court that Appellant’s late father actually obtained a loan from 1st Respondent and mortgaged the property in question in this case, to the said 1st Respondent.

The ordinary meanings of the word “illiterate” as given in Oxford Advanced Learner’s Dictionary (6th Edition) are as follows: –
“adj. 1 (of a person) not knowing how to read or write [OPP] LITERATE 2. (of a document or letter) badly written, as if by sb without much education 3. (usually after noun or adverb) not knowing very much about a particular subject area; computer illiterate # musically literate.”
It is therefore obvious that in every day English the fact of the illiteracy of a person will depend on the con in which the word is used.
It is the word “literate” that is defined in Black’s Law Dictionary (Ninth Edition). The meanings of the word as contained on page 1017 read: –
“literate, adj. (15c) 1. Able to read and write a language. 2. Knowledgeable and educated. – literacy, n.”
It would appear clear again that even in law the illiteracy of a person depends on the con in which that fact is being considered.

In the instant case the Appellant is quite clear regarding the illiteracy of her late father. It is predicated on the fact that he was “an illiterate in all languages” though he could manage to print his name on paper. It is on the basis that her late father was an illiterate in all languages but could still manage to print his name on paper that the Appellant has argued that her late father was entitled to the benefits or protection accorded illiterates by the Illiterates Protection Law and that non-compliance with the provisions of the said Law should attach to the transaction her late father had with the Respondents particularly the 1st Respondent as her late father could not have possibly undertaken the transaction. In this regard see paragraphs 5, 6, 7, 8, 9, 10, 11, 12 and 16 of the statement of claim. The averments read thus: –

“Paragraph 5

The plaintiff’s father was the owner of a house situate behind First Bank, at No. 12A, Ajilosun, Ijigbo Street, Ado-Ekiti.

Paragraph 6

The plaintiff’s father had some dealings as a customer with the first defendant between 1982 and 1986.

Paragraph 7

The plaintiff’s father applied for a loan on his current account No. 050/00/400 in addition to the money which he had in that account before he made the application for the purpose of his trading business.

Paragraph 8

The plaintiff’s father was an illiterate in all languages who could just manage to print his name on paper.

Paragraph 9

At the time of the application one Mr. Alagbara was the Bank Manager of the Bank at Ado-Ekiti where the plaintiff’s father had his account.

Paragraph 10

It was this Mr. Alagbara who helped and persuaded the plaintiff’s father to open the account with the Bank and generally explained to the plaintiff’s father the Banking process in the advancement of Customer’s trading concerns.

Paragraph 11

Before the loan was approved Mr. Alagbara was suspended and/or removed from office in the bank.

Paragraph 12

The plaintiff’s father was confused and he therefore stopped all transaction with the bank.

Paragraph 16

The plaintiff’s father did not sign any loan agreement or mortgage deed as the loan had not been approved before relations between the plaintiff’s father and the first defendant were severed.”

In the proof of the case set up in her pleadings (i.e. statement of claim and the replies to the pleadings of the Respondents) Appellant adduced evidence by herself and one other witness, her grandmother. The Respondents who controverted the case of the Appellant that her father was an illiterate also called witnesses in the proof of their case in this regard and tendered several exhibits.

The aspect of Appellant’s case that her late father was an illiterate was considered by the learned trial Judge under Issue 2 at pages 393 – 394 of the record. Learned trial Judge disbelieved the evidence adduced in aid of the case of Appellant that her late father was an illiterate and held that the claim of illiteracy was a calculated attempt to avoid liability after her father had enjoyed the loan he took from the 1st Respondent. In arriving at this finding, learned trial Judge relied on his evaluation of Exhibits G, J1 and Q; and the fact that no document relevant to the case where Appellant’s late father thumb printed as a way of signing was placed before the court.

In my considered view, it is implicit or embedded in the finding of learned trial Judge that he found no merit in Appellant’s case to the effect that because her father was an illiterate he could not have been the person who wrote the application for the loan in respect of which 1st Respondent sold his house, having defaulted in repaying the said loan.

It is apparently in a bid to show that learned trial Judge was wrong in finding the fact of the signing of the documents he evaluated as establishing the fact that Appellant’s late father was literate, that learned lead counsel has submitted amongst others to the effect that the inscription of a person’s name on a document or signature thereon, does not make him literate. That Exhibit ‘G’ and indeed other documents purportedly written by Appellant’s late father ought to have carried illiterate jurats given the provisions of Section 3 of the Illiterates Protection Law (the Law of which State learned lead counsel never specified). He however set out the provisions of Section 3 of the law he had in mind and they read thus: –

“Any person who shall write any letter or document at the request, or on behalf, or in the name of any illiterate person shall also write on such letter or other document his own name as the writer thereof and his address and his doing so shall be equivalent to the statement.

(a) That he was instructed to write such letter or document by the person for when (sic) it purports to have been written and that the letter or document fully and correctly represents his instructions and

(b) If the letter or document purports to be signed with the signature or mark of the illiterate person, that prior to its being signed it was read over and explained to the illiterate person, and that the signature or mark was made by such person”

I have hereinbefore set out the ordinary meanings of “illiterate” per Oxford Advanced Learner’s Dictionary and “literate” per Black’s Law Dictionary. However the meaning of “illiterate” under the Illiterates Protection Act (the provisions of which are in pari materia with those set out by learned lead counsel) has long been given by the Supreme Court per Udo Udoma, JSC, (of blessed memory) in the case of LAWAL V. G.B. Ollivant (Nig.) Ltd (1972) LPELR – 1764 (SC) on page 17 and it goes thus: –
“An illiterate within the meaning of the Illiterates Protection Act is a person who is unable to read or write in any language, that is, a person who is totally illiterate; and that a person who is unable to read or write the language in which a particular document is written but can read and write in some other language, is not an illiterate within the meaning of the Illiterates Protection Act”.
Also in the case of ANAEZE V. ANYASO (1993) LPELR – 480 (SC) the Supreme Court dwelling on the question of illiteracy per Wali, JSC; at pages 18 – 20; and 42 – 44 said: –
“The mere fact that a person puts down, scribbles or even signs a document does not necessarily confer on him the status of literacy. ……. The issue of illiteracy is a question of fact to be decided objectively on the evidence presented to the court. …… Where there is a factual situation which raises the presumption of literacy, the onus of rebuttal of such presumption rests on the respondent who asserts his illiteracy…….. It is a well settled principle of the English common law applicable in this country that where a person by his conduct represented to another 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 conduct……… Whether a person is illiterate or not is not a matter of the veracity of his evidence. It is not necessarily based on the credibility of the witness. The witness can tell lies about his literacy. His mien and comportment in court can be calm, reassuring, and yet completely false and deceptive. The issue of whether a person is illiterate or literate is a matter of fact to be established by evidence of the circumstances surrounding the act claimed to represent illiteracy. It is not a primary finding in respect of which Court of Appeal is ill-equipped to interfere. ………..”
Again, in the case of AYANRU V. MANDILAS LTD (2007) LPELR – 670 (SC), (2007) 10 NWLR (Pt. 1043) 462 the Supreme Court in dwelling on who an “illiterate” is, per M. Mohammed, JSC; (as he then was) said thus: –
“……. The facts placed by the plaintiffs show that he had 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 the basis that he identified his signature. In these documents there was no jurat. It is trite law that where there is factual situation which raised the presumption of literacy the onus of rebuttal of such presumption rests on the party that assumes illiteracy. In this case the plaintiff has the burden to prove his illiteracy. See Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1. 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.
Therefore the appellant having shown to have derived some benefit from the document exhibits B and F, H executed on 24th August, 1970, cannot be allowed to disown it by coming to the trial court more than 10 years after the coming into force of the Deed to challenge the document. On the claim of the appellant that he did not sign or execute exhibits B and F because he was illiterate, with the evidence on record, particularly the documents comprising the Deed of Lease exhibit ’91A’91, the letters written and signed by him, the receipts for the rents of his premises issued and signed by him, the appellant was very far from the point of proving that he was the illiterate he claimed to be, taking into consideration that he was a professional driver presumably with a professional drivers licence See Anaeze v. Anyaso (1993) 5 NWLR (Pt. 291) 1 at 32 where Karibi-Whyte, JSC said;
“There is clearly no doubt that the question of whether a person is illiterate or not is one of fact, which can be determined on the evidence before the trial court. It can also be determined from a presumption drawn upon the facts before the court. The decisions of Lawal v. G. B. Ollivant (Nig.) Ltd. (1972) 3 SC 124; Ntiashagwo v. Amodu (1959) WRNLR 273 cited by the learned counsel to the appellant are to the point.”
Certainly, on the evidence on record in the instant case, the appellant cannot be described as illiterate as defined in the case of African Produce Sales Co. Ltd. v. Ayo & Anor. (1963) 1 SCNLR 197 at 201 – 202. In any case, it must be emphasised that the fact that the plaintiff/appellant was an illiterate cannot be proved satisfactorily by oral evidence as illiteracy is not an object that can be seen, heard, touched, smelled or perceived in any physical form that can be identified for the purpose of being described by any witness in oral evidence to satisfy the requirement of proof under the Evidence Act. Definitely on the evidence on record, the appellant had woefully failed to prove that he was an illiterate who cannot read or write in any language. …..”
(Underlining supplied by me for emphasis)

Clearly, in the instant case, Appellant’s late father having died could not give any evidence regarding his alleged “illiteracy” which was based on the fact that he was an illiterate in all languages. Even if he had been alive and did give such evidence, merely doing so cannot establish the fact of his illiteracy. The documents which learned lead counsel have argued that ought to carry illiterate jurats are three, namely, Exhibits G, J and J1; while the learned trial Judge relied on Exhibits G, J1 and Q in arriving at the finding to the effect that Appellant’s late father was not an illiterate and that the claim of illiteracy is a calculated attempt to avoid liability in respect of the loan which he took from the 1st Respondent and enjoyed.

The evidence which Appellant (who was shown under cross-examination to be 7 years old in 1984) when she said her late father opened an account with 1st Respondent allegedly using Mr. Alagbara for the purpose, definitely went to nought given the fact that she never witnessed this. It is clearly hearsay evidence which by law is inadmissible and thus cannot be acceptable evidence in proof of the situation or fact to which it relates. See Section 126(a) of the Evidence Act, 2011. Similarly, the evidence of Appellant’s grandmother – PW2 that her son – Caleb Jeje never attended any school surely cannot be said to establish the illiteracy of Appellant’s late father inasmuch as Appellant never established the fact that it is by attending school or acquiring formal education alone that one can become literate. Exhibits G, J and J1 are letters written to 1st Respondent by Appellant’s late father. There is nothing on the Exhibits suggestive of the fact that they cannot be written or could not have been written by Appellant’s late father who in Exhibit G claimed to be engaged in selling of building materials; and in Exhibits J and J1 claimed to be Chairman/Managing Director of his own company. Appellant never portrayed her late father to be an idiot or of such a mental state or retardation that he could not have acquired knowledge to be able to write by himself when properly instructed or guided and without the instructor or guidance counsellor doing the writing. To crown or cap it all, no iota of evidence was adduced by Appellant and/or PW2 that Appellant’s late father engaged any person at all to write any of the letter signed in his name. This is aside from the fact that no evidence was placed before the Lower Court showing the manner in which Appellant’s late father who is said to be an illiterate in all languages but can manage to print his name, had ever done this. The Exhibits evaluated by learned trial Judge in arriving at the finding to the effect that Appellant’s late father was literate, glaringly carry the same signature. Even the signature in Exhibit Q (which is a counter-affidavit with a jurat filed in the instant action after the statement of claim in which Caleb Jeje had by himself raised the issue of his own illiteracy had been filed) carries a signature similar to those in Exhibits G, J and J1.

Though it is a settled position of law that a declaration by a person or his ipse dixit that he is an illiterate by itself alone, cannot establish that fact, it is however the position of the law that where there is factual situation which raises a presumption of literacy, the onus of rebuttal of such presumption rests on the person who asserts his own illiteracy. In other words, the literacy of a person when in question can eminently be presumed from the totality of the evidence placed before the court in relation thereto. Exhibits G and J1 which the learned trial Judge found to have been signed by Caleb Jeje (and there was no evidence to the contrary) clearly raised the presumption that Caleb Jeje wrote the said Exhibits by himself. The similarity in the signature on Exhibit Q which the learned trial Judge also found Caleb Jeje to have sworn to gives credence to fact that Caleb Jeje equally signed the aforementioned Exhibits G and J1. Appellant never adduced an iota of evidence that can be said to have refuted the factual situation created by Exhibits G, and/or J1 that her late father wrote them. Indeed, all that has been said before now, loudly or glaringly went to establish the fact that Appellant’s late father was not an illiterate within the meaning of the Illiterates Protection Law which learned lead counsel referred to in Appellant’s brief of argument. Against the backdrop of all these, learned trial Judge in my considered view was eminently correct in relying on the exhibits tendered by Respondents as having been written by Appellant’s late father to 1st Respondent in finding to the effect that Appellant’s late father was not an illiterate.

I am aware that learned lead counsel submitted to the effect that evidence of two of the Respondents’ witnesses to the effect that Appellant’s late father was an illiterate constitutes admission against interest. Suffice, it to say that the evidence of the Respondents’ witnesses in question simply disclosed their opinion regarding the literacy status of Appellant’s late father inasmuch as the fact of the illiteracy or literacy of Appellant’s late father is not one that is established by the ipse dixit of a witness. Opinion is not the same thing as establishment of a fact by evidence. Having regard to the provisions of the Illiterates Protection Law which learned lead counsel relied upon, Exhibits G, J and J1 would have required illiterate jurats if there was admissible evidence to the effect that any officer or agent of 1st Respondent wrote the said Exhibits at the request, or on behalf, or in the name of Caleb Jeje. It is my considered view that it was in the knowledge of the position of law in this regard, that it was pleaded in paragraphs 9 and 10 of the statement of claim to the effect that one Mr. Alagbara a manager of 1st Respondent was the person who wrote letters for Appellant’s late father. As already stated hereinbefore, no admissible evidence in the proof of this fact was adduced by the Appellant. Similarly, none of the witnesses called by the Respondents was even cross-examined to elicit the fact that Mr. Alagbara wrote any letter on behalf, or at the request, or in the name of Caleb Jeje. Opinion of a witness in respect of a fact is generally inadmissible (see Section 67 of the Evidence Act, 2011) and is only admissible as provided by Sections 68 – 76; and 126(d). In other words, evidence of opinion the basis of, or for which, was not placed before the court cannot distract from a finding of fact based on proper evaluation of evidence.

Therefore, evidence proffered by the Respondents that Appellant’s late father was an illiterate cannot properly obliterate or derogate from the evidence flowing from Appellant’s late father himself and which went to show that he was not an illiterate.
Flowing from all that has been said is that Appellant has not shown how the finding of learned trial Judge to the effect that her late father was not an illiterate is wrong talk less of why this Court should tamper with same.
The second part of Appellant’s Issue 1 is whether Appellant’s late father legally obtained a loan from 1st Respondent. Learned lead counsel would appear to have rested or predicated his stance that Appellant’s late father did not legally obtain a loan from 1st Respondent on the fact of his illiteracy. This is because it would appear to be his position that once Exhibit G by which the transaction regarding the loan was kick started or activated; nay all of Exhibits G, J and J1, are found to have breached the provisions of the Illiterates Protection Law, due to non-provision of illiterate jurats thereon, then the question of Appellant’s late father who never applied for a loan from 1st Respondent having been granted a loan by the said Respondent, a fortiori must be resolved against 1st Respondent. Suffice, it to say that by the same reasoning it follows that as Appellant’s late father has been found not to be an illiterate and that Exhibit G and indeed any other letters or documents written by him in connection with the loan did not have to carry illiterate jurats, then the legality of the loan taken by Appellant’s late father from 1st Respondent, cannot be impugned on his unproven illiteracy.
It is also my considered view that in raising the issue of the illiteracy of her late father and non-compliance with the provisions of the Illiterates Protection Law, Appellant would appear to want to ride on the shoulder of the plea of non est factum. There is no doubt that a person who signs a legal document that ought to carry an illiterate jurat can in some cases rely on that plea in avoiding his obligations thereunder. This position is confirmed by the decision of the Supreme Court in the case of EGBASE V. ORIAREGHAN (1985) LPELR – 1030 (SC). In the case in question, the Supreme Court per Eso, JSC, (of blessed memory) dwelling on when a document can be rendered void and the plea of non est factum said at pages 27 and 29 – 30 thus: –
“Before a document is totally rendered void; the element of consent must be totally lacking. In Saunders v. Anglia Building Society (1971) AC. 1004; (Gallie v. Lee) Lord Wilberforce said –
“In my opinion a document should be held to be void (as opposed to voidable) only when the element of consent to it is totally lacking, that is, more concretely, when the transaction which the document purports to effect is essentially different in substance or in kind from the transaction intended.”
…….. The plaintiff pleaded non est factum and the trial Court upheld this. But the Court of Appeal later allowed the appeal against this and the House of Lords upheld the decision of the Court of Appeal. In the Court of Appeal, Lord Denning M.R. laid down a broad principle as his conclusion from the investigation of the law (and this was quoted by Lord Pearson in his judgment (see p.1032 of the law) –
“whenever a man of full age and understanding who can read and write signs a legal document which is put before him for signature by which I mean a document which, it is apparent on the fact of it, is intended to have legal consequences – then, if he does not take the trouble to read it, but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented to all those whose hands it may come, that it is his document; and once they act upon it as being his document, he cannot go back on it, and say it was a nullity from the beginning.”
Lord Pearson then said –
“There can be no doubt that this statement by the Master of the Rolls is not only clear and concise formulation but also a valuable guide to the right decision to be given by a court in any ordinary case.”
I agree.”
While Karibi-Whyte, JSC; dwelling on the signing of a legal document and when the plea of non est factum would avail an illiterate said at pages 39 and 42 – 43 thus: –
“It must also be borne in mind that the plea of non est factum requires clear and positive evidence before it can be established. …….. The principle of law expressed in the legal expression scriptum predictum non est factum suum is of sixteenth century origin. The principle came to ameliorate the erstwhile absolute bindingness of a deed. Before the development of this principle a person was bound by his signature to a document whether he reads, or understands it, or not. It was in Thorough good’s case (1594)2 Co. Rep.9a that it was declared that if a person who could not read executed a deed after it had been incorrectly read over to him, he was not bound by it. The plea of non est factum is available to such person. It is also available where a person is induced by the false statements of another and after the exercise of due diligence, to sign a document which he discovers to be fundamentally different in character from that which he agreed.
In each of the situations stated the signature is invalid and of no force. The protection offered by the law is to ensure that a person is not held bound by the terms of a document which he should not have signed but signed due to fraud or mistake. The same principle dominates the Illiterates Protection Legislations which require interpretation of the content of a document signed by an illiterate, – see U.T.C. bid Tetteh (1965) ALR. Comn. 100. Byles J, has pointed out in Foster v. Mackinnon (1869) L.R.4 C.P. 704, the legal effect of defect on the document. He said,
“….it is invalid not merely on the ground of fraud, where fraud exist, but on the ground that the mind of the signer did not accompany the signature; in other words that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.”
The governing consideration is the absence of agreement which is a direct result of the intention of the mistaken party. As Wilberforce L.J. said in Saunders v. Anglia Building Society (1970) 3 All E.R.961 at p.272.
“It is lack of consent that matters, not the means by which this result was brought about.””
Also the Supreme Court dwelling on when the plea of non est factum will avail a person vis-‘a-vis presumption of regularity, in the case of AWOSILE V. SOTUNBO (1992) LPELR – 658 (SC) per Nnaemeka-Agu, JSC; stated at pages 33 – 34 thus: –
“…His admission that he knew that the document related to his property but that he thought it had a different effect completely put paid to his plea of non est factum. For the law is that it would be dangerous to allow a man over the age of legal infancy to escape from the legal effect of a document which he has, after reading it, signed in the absence of proof of fraud or positive mis-representation by the other party who would take advantage of the due execution of the document. For this see, Blay v. Pollard & Morris (1930) 1 K.B 628; Gilman v. Gilman 174 L.T. 272. The Court of Appeal was right in its interpretation and application of the law. ……. the plaintiff had no case to urge in his favour. Exh. “B” is a valid and subsisting deed of conveyance executed by him in favour of the defendant. He failed to prove fraud. As it was executed before a Magistrate and carries the illiterate jurat duly signed by the clerk of court as interpreter, I must presume that its execution was valid and regular; and this presumption of regularity has not been rebutted.”
Exhibit E is the deed of legal mortgage in respect of the loan Appellant’s late father took or procured from Owena Bank Ltd (now 1st Respondent). It discloses on its face the fact of the agreement between Appellant’s late father and the then Owena Bank Ltd and the particulars of the property that was used by Appellant’s late father as co-lateral for the loan (i.e. Exhibit ‘D’). Exhibits E and D respectively carry illiterate jurats attesting to the fact that it was after they had been interpreted to Appellant’s late father in Yoruba language by a sworn interpreter, that he signed them before or in the presence of a Senior Magistrate. The fact of the interpretation of Exhibit ‘E’ in particular to Appellant’s late father in Yoruba language and his having signed it in the presence of a Senior Magistrate clearly show compliance with the Illiterates Protection Act/Law; and raise the presumption of regularity regarding the said Exhibit E. The plea of non est factum which undoubtedly is a means by which Appellant’s late father can avoid or nullify Exhibit E can only be raised by him as it is personal in nature. This is because it is inconceivable how the said plea can be raised by a non-party to Exhibit E; which Appellant undoubtedly is, even though the fact that she is a biological daughter of Caleb Jeje has not been controverted.
I do not think the general position of law that it is parties to a contract that can have a cause of action in respect of the contract requires the citing of any authority in aid thereof. In any event it is inconceivable how Appellant by herself and/or through her grandmother i.e. PW 2 can be found to have given any admissible evidence of the fact that Caleb Jeje did not agree to Exhibit E as they never claimed to have been present where it was signed. Whereas, DW1 in whose presence parties executed Exhibit E testified to the fact that Appellant’s late father signed same before a magistrate. This in any event is what Exhibit E has said by itself. It therefore becomes obvious that the plea of non est factum as it relates to Appellant’s late father vis-‘a-vis Exhibit E has been comfortably dislodged albeit inferentially by the deed itself, even if the evidence of DW1 is discountenanced. The touted illiteracy of Appellant’s late father and reliance placed on the Illiterates Protection Law by learned lead counsel therefore glaringly lacks factual and legal basis. Indeed, it would appear that learned lead counsel saw the futility in this course of action in relation to Exhibit E hence the tenacious or dogged effort to get Exhibit G out of the way (but which he has failed to do). Furthermore, the fact that Exhibit E carries an illiterate jurat has seriously knocked the bottom out of the case of the Appellant (even if the Appellant had established the fact that her late father was an illiterate) and which the Appellant did not so do. May I quickly add that the fact that Exhibit E carries an illiterate jurat when Appellant’s late father is not an illiterate in my considered view certainly does not and cannot vitiate the deed inasmuch as all it shows is that despite the literacy of Appellant’s late father, he was still made to know what he was signing in a language that he showed or portrayed himself to understand, at least as at the time of the execution of Exhibit E by the parties thereto or therein stated.
Flowing from all that has been said, is that as Appellant has woefully failed to rebut or refute the presumption of regularity regarding Exhibit E, (wherein Appellant’s late father acknowledged the fact of the loan he procured from Owena Bank Plc), the Appellant has equally failed to establish that her late father did not legally obtain the loan the said Exhibit is about, from 1st Respondent. Accordingly, Appellant’s Issue 1 is resolved against her.

APPELLANT’S ISSUE 2:

Dwelling on this Issue, learned lead counsel in the main hinged his submissions that there was no valid legal mortgage between Appellant’s late father and 1st Respondent at all, on the premise that it was prepared by an unknown person and as such inferior, worthless and not binding. The unknown person who signed Exhibit ‘E’ on 15/1/1986 as disclosed in the submissions of learned lead counsel is one Omotoso Gbangba and Co. It is the stance of learned lead counsel that an unknown person cannot sign or prepare a document and that as Omotoso Gbangba and Co is not on the roll of legal practitioners in Nigeria with permission and authority to prepare and sign a document, Exhibit E made between Appellant’s late father and 1st Respondent is useless, valueless, weightless, worthless and inadmissible and ought to have been discarded by the learned trial Judge and this Court was urged to now do so. In aid of his stance regarding the Issue under consideration and that its infraction is not curable, learned lead counsel quoted copiously from the cases of Okafor v. Nweke (2007) 10NWLR (Pt. 1043) 521 at 530-531; Adeneye v. Yaro (2013) 3 NWLR (Pt. 1342) 625 at 632; FBN Plc v. Maiwada (2013) 5 NWLR (Pt. 1348) 444 at 485; and Ministry of Works and Transport Adamewa (sic) State v. Alhaji Isiyaku (2013) 6 NWLR (Pt. 1351) 481 at 495-496. Learned lead counsel submitted to the effect that the justification of the validity of Exhibit E by learned trial Judge through its up stamping done on 16/10/1986 after Exhibit E which is the foundation came into effect, cannot cure the defect in Exhibit ‘E’. This is because something cannot be put on nothing and be expected to stand. This Court was urged to hold that there was no valid legal mortgage between Appellant’s late father and 1st Respondent and as such the house in respect of the legal mortgage is not a subject of litigation and allow the appeal on this point (issue).

Respondents’ Issue 2 is the same word for word with Appellant’s Issue 2. Learned counsel however argued at large as it were, regarding this Issue as it would appear that he lost focus of the basis on which learned lead counsel predicated the arguments regarding the invalidity of Exhibit E. The arguments of learned lead counsel on the Issue of the invalidity of Exhibit E revolve around the fact that it was prepared and signed by one Omotoso Gbangba and Co, a person not known to law and whose name is not on the roll of legal practitioners in Nigeria with permission and authority to prepare and sign a document. I will therefore not highlight all the submissions of learned counsel for Respondents on this Issue.

Learned counsel submitted that the submissions of learned lead counsel on the issue have no foundation, are baseless and not borne out of the pleadings and evidence and should be discountenanced by this Court. It is the stance of learned counsel that learned lead counsel has made heavy weather of the case of Okafor v. Nweke (supra) and other cases he cited. He submitted that the submissions spun around the case were technical; and that in law technicality should not defeat the doing of substantial justice. That the era of technicalities has gone and courts now do substantial justice and the case of Fanfa Oil Ltd. v. AG Fed. (2003) 9-10 SC 31 at 44 was cited in aid. Learned counsel further submitted that more importantly the facts of Okafor v. Nweke (supra) and other cases heavily relied upon by learned lead counsel on the issue of Omotoso Gbangba & Co signing Exhibit E are not on all fours with the facts of the present case and so are not relevant. This is because the case of Okafor v. Nweke (supra) and other cases cited by learned lead counsel were decided in relation to court processes signed in the name of Law Firms and which is not the same situation in the present case because Exhibit E is not a court process but a legally binding mortgage agreement between Appellant’s late father and 1st Respondent though the lawyer who prepared it mistakenly signed it in his firm’s name of Omotoso Gbangba & Co. without putting his own name i.e. Omotoso Gbangba. That neither Omotoso Gbangba & Co nor Omotoso Gbangba is a party to the agreement. That parties to Exhibit E namely, Appellant’s late father and 1st Respondent duly executed same, and so it is valid. Again, learned counsel submitted that there are instances where oral evidence can be led in support of documentary evidence and that assuming without conceding that Appellant’s late father was an illiterate, it is still the law that when a document signed by an illiterate creates legal rights between the illiterate and a third person other than the writer or the preparer of the document, not only is the document valid and admissible but also other pieces of evidence may be adduced or introduced to prove what happened at the time the document was prepared and signed. The case of Salami v. Savanna Bank (1990) 2 NWLR (Pt. 130) 106 at 122 was cited in aid. It is the stance of learned counsel that evidence of DW1 was therefore very material as to who signed Exhibit E. Also stating that the case of Okafor v. Nweke (supra) and other cases cited by learned lead counsel are case law, learned counsel submitted that the cases cannot apply retrospectively to Exhibit E which had been in existence since 1986 and before the decision in the cases cited. This is because it is trite that laws are not made and applied retrospectively. This Court was urged to hold that Exhibit E is valid, regular and subsisting and to therefore resolve Issue 2 in favour of the Respondents and against the Appellant and hold that learned trial Judge was right in pronouncing that Exhibit E is valid.

I have painstaking read the pleadings of the parties and I must observe that I do not see where the question relating to the identity of the person that prepared Exhibit E executed by Appellant’s late father and Owena Bank Plc; was expressly made an issue. Contentions (a) to (i) in paragraph 26 of the statement of claim (and all of which had been re-produced hereinbefore) in my considered view certainly do not admit of any challenge to the validity of Exhibit E on the basis of the identity of the person that prepared it in contradistinction to the issue as to whether the parties thereto were ad idem. The fact that Appellant did not predicate the invalidly of Exhibit E on the issue of the identity of the person who prepared it, would appear to have been lost on learned trial Judge and learned counsel for the Respondents. This is because learned lead counsel was allowed to introduce the issue into the case by his objection to the admissibility in evidence of Exhibit E on 24/1/2012 (see pages 223 – 224 of the record) and which resulted in the 3rd Respondent who is not a party to the Exhibit consequently amending his pleading to introduce therein an averment that reads: “That Omotoso Gbangba & Co. chambers prepared the said Mortgage Deed and Certification of Registration of this Law firm dated 10th Feb. 1982 is hereby pleaded and shall be relied on at the trial”. It is against the backdrop of the pleadings as highlighted above that the validity of Exhibit E became an issue in respect of which the learned trial Judge made a finding in the judgment of the Lower Court.

The learned trial Judge made the finding regarding the validity of Exhibit E executed by Appellant’s late father and Owena Bank Plc; under Issue 1 of the Issues formulated for the determination of the case on page 392 of the record. The Issue reads thus: –

“Whether the plaintiff father Caleb Jeje took a loan from the 1st Defendant (Spring Bank) former Owena Bank Ltd and mortgaged his property in issue to the said Bank”.

Having stated to the effect that Appellant in person admitted that her father took a loan from the Bank and cataloguing other pieces of documentary evidence in support of the said admission, the learned trial Judge said at page 393 of the record thus: –

“I have to point out that the name of Omotosho Gbagba (sic) is on the mortgage up stamping and his signature, apart from Omotoso Gbangba and Co. which was also registered. So it is not correct to say that the Mortgage Deed is not valid, or that it was signed or prepared by a legal practitioner not known to law. I accord the exhibits all evidential value.
There are overwhelming evidence that point to the fact that the father of the plaintiff Caleb Jeje took a loan from the first Defendant Owena Bank now Spring Bank and mortgaged his house to the Bank.”

It is my considered view that the pertinent question that requires resolution for the purpose of the Issue under consideration is actually whether the non-disclosure of the actual name or names of the person who prepared Exhibit E distracts from its proper admission in evidence and whether it is a factor that has vitiated the said Exhibit.

It cannot be disputed that Exhibit E is a contract entered into by Appellant’s late father and Owena Bank Plc; (now 1st Respondent). It is however a specialty contract in that it is a contract under seal. It is settled law that there are five important factors that must be present in a valid contract and these are (i) offer; (ii) acceptance; (iii) consideration; (iv) intention to create legal relations; and (v) capacity to contract. See OMEGA BANK (NIG.) PLC V. OBC LTD (2005) 8 NWLR (Pt. 928) 547; and OKUBULE V. OYAGBOLA (1990) 4 NWLR (Pt. 147) 723. It should however be noted that a contract under seal such as Exhibit E is, derives its validity from its form and not particularly from the consideration which may exist for the promise therein contained. It is my considered view that having regard to what a contract is and particularly as an act between the parties thereto, Exhibit E being the document in which Appellant’s late father and Owena Bank Plc, reduced into writing the fact of the existence of their agreement and the terms and conditions thereof, is definitely admissible at the instant of either of the parties thereto even if the maker (in the sense of the person who prepared the deed) was not called to tender it. Exhibit E being a document evidencing the agreement in which the now 1st Respondent is a party, is that party’s document and admissible in evidence through any witness 1st Respondent chose to lead evidence in respect of same.

Learned lead counsel has however argued that Exhibit E which is undoubtedly a contract under seal made between Appellant’s late father and Owena Bank Plc, and setting out the fact of their agreement and the terms thereof is useless, valueless, weightless, worthless and inadmissible and ought to have been discarded by the learned trial Judge simply because of the inscription of the words “Omotoso Gbangba and Co.”, thereon; as the said “Omotoso Gbangba & Co” is an unknown person who cannot sign or prepare a document.

Again, I am of the considered view that just as the fact that Exhibit E was prepared by Omotoso and Co cannot derogate from the admission in evidence of the document, it also cannot derogate from the validity of said document between the parties thereto. Exhibit E declared the agreement reached by Appellant’s late father regarding the loan he applied for and got from Owena Bank Plc. The Exhibit created rights and obligations in respect of these two parties only. It is glaring from the Exhibit, that the person who prepared the deed and therein described as Omotoso Gbangba & Co and who also stated his name as Omotoso Gbangba in the document described as “Upstamping of Deed of Legal Mortgage” inserted in Exhibit E is not a party in any manner to the Exhibit in that no duty was imposed on him and he also has no benefit flowing to him therefrom or therein. Indeed, Omotoso Gbangba & Co. or Omotoso Gbangba, never executed the deed as a party to it. The signature of Omotoso Gbangba & Co even appears under the signatures of the parties and it is clearly disclosed in the Exhibit that the firm in question simply prepared the said Exhibit.

Learned lead counsel, who has glaringly not based any aspect of his arguments regarding the invalidity of Exhibit E on any aspect of the said deed itself, has not cited any case or legislation that makes the preparer or person who reduced the agreement between parties into written or permanent form, by the fact of that act to be subsumed into the agreement as a party thereto and thereby making it possible for such an agreement to be rendered invalid by an act of commission or omission on the part of the said preparer or person. Neither has he cited any law that stipulates that a deed such as Exhibit E, must be prepared by a legal practitioner only or solely. It is also my considered view that if the actual identity of the person who prepared Exhibit E had expressly been made an issue for challenging its validity, then the Respondents clearly adduced unchallenged evidence regarding the actual identity of the person who prepared it, i.e. Omotoso Gbangba who testified as DW1.
Evidence in that regard cannot be said to be one in that goes to vary the content of a document and which is generally inadmissible. Such evidence is one which goes to one fill a lacuna or gap in the document inasmuch as it is for the purpose of supplying information regarding the name of the human being behind Omotoso and Co. See Section 128(2) of the Evidence Act 2011 which provides thus: –

“Oral evidence of the existence of a legal relationship is not excluded by the fact that it has been created by document, when the fact to be proved is the existence of the relationship itself, and not the terms on which it was established or is carried on.”

In any event Respondents have sufficiently demonstrated in their joint brief of argument (some aspects of which have been highlighted hereinbefore) that the position of the law as enunciated in the case of Okafor v. Nweke (supra) and others cited by learned lead counsel relates to processes of court and not all documents such as Exhibit E and which indisputably is not a court process. Furthermore, it is also my considered view that the argument of Respondents to the effect that the principle of law enunciated in the Okafor case decided in 2007 cannot be applicable to a document such as Exhibit E which was made as far back as 1986, is well founded. This is because the pronouncement by the court regarding the position of law as it relates to a particular matter, cannot affect all that has been done contrary to the new position as declared. In other words, like the position of the law is to the effect that anything done under a repealed enactment is not affected by the repealing enactment, case law (i.e. law as put in place by the courts) cannot alter the position of things done prior to when the law was declared otherwise by the court.
For anything but this to be the case would evidently work immense injustice. Decisions of courts are to promote justice and not injustice.

Flowing from all that has been said on Appellant’s Issue 2, is that the Issue must be and is hereby resolved against the Appellant.

APPELLANT’S ISSUE 3:

Dwelling on this Issue, learned lead counsel referred to evidence of DWs 2 and 4 regarding the circumstances in which the house of Appellant’s father was sold. He submitted that evidence of two witnesses was suspect. This is because DW2 claimed to have seen DW4 who on 9/12/1995 paid the sum of N200,000.00 for the house whereas DW4 said it was only on 7/12/95 that he got wind of the sale of the property. That in effect this shows that DW4 purchased the property before knowing the purported auctioneer – DW2.

Also dwelling on the fact that there was no sale at all because the arrangement was altogether faulty, invalid, irregular and void, learned lead counsel submitted to the effect that 2nd Respondent not being a licensed auctioneer known to law and cannot validly sell the mortgaged property. He said that the fact of the non-registration of 2nd Respondent as a licenced auctioneering company was admitted in paragraph 2 of the 3rd Further Amended Joint Statement of Defence. That this was an admission by the 1st and 2nd Respondents of the fact that the 2nd Respondent was not a registered liability company under the laws of the Federation of Nigeria and as such not a licenced auctioneering company. That 1st Respondent therefore cannot engage the services of 2nd Respondent to auction the house of Appellant’s late father through S.A. Oloyede or anybody at all. The Court was urged to set aside the sale of the property of Appellant’s late father by DW2 to DW4 without licence; for being invalid, irregular, unlawful, ultra vires and unconstitutional.

Learned lead counsel also said that what is more, evidence of DWs 2 and 4 regarding the sale shows confusion and irregularity in the purported sale. He referred to Section 4(1) of the Auctioneers Law of Ondo State which is impari materia with Section 4(1) of the Auctioneers Law of Ekiti State which forbids a person without licence to auction any property at all. Again, referring to Exhibits ‘A’ and ‘B’ which showed that the property was to be sold by public auction but was secretly sold by available evidence on record, learned lead counsel submitted that 1st and 2nd Respondents cannot validly sell the property of Appellant’s late father to 3rd Respondent secretly or by private treaty when Exhibits ‘A’ and ‘B’ stated that same shall be done by way of public auction. Submitting that oral evidence cannot alter, change or obliterate the content of a written document (and citing the case of Brossette Manufacturing Nig. Ltd v. M/S Ola Ilemobola Ltd (2007) 14NWLR (Pt. 1053) 109 at 137-138 in aid), learned lead counsel urged this Court to set aside the sale of the house of Appellant’s late father for being irregular and of no moment. That the sale by private treaty contrary to sale by public auction further shows the inconsistency and contradictions in the case of the Respondents which Appellant can exploit to her advantage. This is more so as the sale did not comply with the Auctioneers Law and reference was made to Sections 19 and 24 of the said Law.

Dwelling on this Issue, learned counsel submitted that the submissions of learned lead counsel should be discountenanced as they are baseless and not supported by the pleadings and evidence on record. It is the stance of learned counsel that the mode of sale stated in Exhibit E executed by Appellant’s late father is “by public auction or by private treaty”. The case of Ndoma-Egba v. Chkwuogor (2004) 6 NWLR (Pt. 867) 382 was cited in aid of the interpretation to be accorded the word “or”. Furthermore, learned counsel submitted that the issue of illegality and fraud alleged by Appellant in her brief of argument was not proved. That illegality and fraud are criminal offences or allegations which have to be proved beyond reasonable doubt in both criminal and civil cases and reference was made to Section 138(2) of the Evidence Act Cap E 14 Laws of the Federation 2004. It is equally the stance of learned counsel that the issue of notice is not material in the instant case. That the important consideration is as to whether or not Appellant’s late father defaulted in repaying the loan thus causing the right of sale of the mortgaged property by the mortgagee – 1st Respondent to arise. That this is against the position of law that right to exercise power of sale under a mortgage must arise before the mortgagee can pass a good title to a purchaser free from equity of redemption. In other words the mortgage debt must have fallen due. That as it happened in the instant case, once the mortgage debt had fallen due, even if the stipulated notice to sell the mortgage property has not been given by the mortgagee to the mortgagor, the purchaser buying from the mortgagee will acquire an unimpeachable title to the property. The case of Oguchi v. FMB Nig. Ltd (1990) 6 NWLR (Pt. 156) 330 at 342 amongst others was cited in aid. It is the stance of learned counsel that Exhibits A and B, are not “proper auction sales public notices” because they contained no date, time and place of the auction sale and so have no evidential value or weight. That nobody was misled or deceived by the said Exhibits as no auction sale of the property in issue was conducted at all. That there is also no evidence on record showing that any public auction of the property in issue proved abortive.

Learned counsel submitted that as the mortgaged property in question in this case was sold by private treaty in accordance with the terms of Exhibit E, all the arguments and authorities cited by learned lead counsel in relation to Exhibits A and B; whether or not 2nd Respondent is a Licenced Auctioneer; and Auctioneers Laws; are not applicable to this case. This Court was urged to resolve Issue 3 in favour of the Respondents and hold that the property in question in this case was rightly and legally sold to 3rd Respondent who has acquired a good title to the said property.

It is clear from the submissions of learned lead counsel that the complaints relating to the sale of Appellant’s late father’s house all revolve around non-compliance by Respondents with the provisions of the law governing public auction, namely the Auctioneers Law of Ondo State which is impari materia with the Auctioneers Law of Ekiti State. Learned lead counsel indeed, referred to Sections 4 and 2 respectively of the law relating to public auction in aid of his stance that a person who has no licence is forbidden from auctioning any property at all. On the other hand, the stance of the Respondents is that the house of the late father of the Appellant was sold to 3rd Respondent by private treaty and that this was after the loan procured from Owena Bank Plc by Appellant’s late father had become due and notice of this duly given to him.

It would therefore appear apparent that the onus Appellant placed on herself was to establish that the loan agreement her father had with the now 1st Respondent stipulated only the mode of public auction for the sale of the house of her late father and that the public auction undertaken for that purpose violated the provisions of the Auctioneers Law as that is the law that governs public auctions. While the onus Respondents placed on themselves was to establish that the mode of sale by private treaty is provided for in the loan agreement Appellant’s late father entered into and that the sale of the house in question was indeed carried out by that mode.

In the judgment of the Lower Court, the learned trial Judge considered the question as to whether the house of the late father of the Appellant was properly sold under Issue 4 on page 395 of the record. The said Issue 4 reads thus: –

“Whether the property in question was rightly sold by the 1st Defendant through the 2nd Defendant to the 3rd Defendant and whether the (sic: he) acquired a good title to the said property.”

I now re-produce what the learned trial Judge said on the Issue as contained on pages 395 – 396. It goes thus: –

“From the facts of this case it has been established that the father of the Plaintiff took a loan from the 1st Defendant Bank and entered into a Deed of Mortgage with the bank and deposited the title deed of his property now in question. There is also abundant evidence that he failed to repay the loan despite repeated demands. The Bank even wrote him to come and pay the loan and this was confirmed by the Evidence of his mother PW2. There are also correspondences between the bank and the said Caleb Jeje before the house was sold by private treaty. The point must be made devoiding of any technicalities that the said Caleb Jeje having took (sic) a loan from the bank (i.e. shareholders money) cannot seat on it and refuse to pay without the attendant consequences. It will be a disservice to the economy of this country.

There is uncontroverted evidence on record that the proceeds of the sale of the house was paid to the account of the said Caleb Jeje and the Bank thereafter deducted the amount he was owing from the account and left the remaining there as the balance in his account. The 3rd Defendant was also issued a receipt of purchase. (sic) Exhibit F after he paid for the house. A third paid (sic: party) interest has been involved at that stage.

I hold the view that the property in question No 12A Ajilosun was rightly sold by the 1st Respondent through the 2nd Defendant to the 3rd Defendant and that the 3rd Respondent acquired a good title to the said property.”

In my considered view it requires no complicated thought process that implicit in the finding that the house of the late father of the Appellant was sold by “private treaty” is that it was not sold by public auction as Appellant has alleged in her statement of claim. I have painstakingly perused the evidence on record particularly evidence of DW2 on pages 225 – 228 thereof. DW2 gave evidence to the effect that in 1994 when he was appointed by Owena Bank Plc for the purpose of debt recovery, he was then a Director of Funsho Akeju Commercial Agency while S.A. Oloyede (i.e. the 2nd Respondent on record) worked under him as a manager in the company. DW2 narrated all that he did in relation to the house of the late father of the Appellant and was very explicit that the sale of the house was by private treaty. The witness even disclosed the indebtedness of Appellant’s late father to have been N108,067.67K and that 3rd Respondent paid the sum of N200,000.00 for the house and that he was issued a receipt – Exhibit F in evidence thereof. Learned lead counsel in the cross-examination of the witness clearly failed to elicit the fact that he is not a licenced auctioneer. Indeed, it would appear that the witness in answer to a question from learned lead counsel said that he had the certificate the question to him was about, but that it was at home. (See pages 228 and 229 of the record). The witness upon being confronted with Exhibit B which is an Auction Notice maintained that the sale of the house of the late father of the Appellant was not by public auction but by private treaty.

In my considered view, all that Exhibits A and B (both of which carry no particular or specific date regarding the happening of the event to which they relate) disclose is that Owena Bank Plc at some point in time contemplated or toyed with the idea of public auction; while evidence of DWs 2 and 4 showed conclusively that the said Bank apparently took the option of private treaty and which mode of sale of the mortgaged house is eminently allowed by Exhibit E entered into by Appellant’s late father. Against the backdrop of the fact that learned lead counsel has not shown that the position of the law is that a proposed public auction by law cannot be jettisoned, there is no basis for the irresistible inference upon which he has predicated Appellant’s case that the house of her late father was sold by public auction and a fortiori the application of the Auctioneers Law to the sale of the house in question. In the same vein as the fact of the sale of the house in question to 3rd Respondent by DW2 who conducted or carried out the transaction by private treaty has been eminently shown to be permissible by Exhibit E, learned trial Judge in my considered view was very correct in finding that the house in question was sold by private treaty.

Flowing from all that has been said is that the house of the late father of the Appellant having been sold to 3rd Respondent by private treaty as permitted by the Exhibit E, same is undoubtedly legal and valid. This is particularly so as Appellant in her pleadings did not set up any case suggestive of the fact that the house was sold at an undervalued price. Accordingly, Appellant’s Issue 3 must be and is hereby resolved against her.

APPELLANT’S ISSUE 4:

Dwelling on the Issue, learned lead counsel submitted that the 3 reliefs claimed in the counter-claim are not the averments in paragraphs 1 – 32 of the statement of defence and counter-claim of 3rd Respondent filed on 7th August, 2012. That the averments and the reliefs are parallel and poles apart from each other with the counter-claim therefore standing alone without life, flesh and blood but completely stranded, motionless and dead.

It is the stance of learned lead counsel that 3rd Respondent did not prove his counter-claim which is an independent action, separate and distinct. That the learned trial Judge speculated on the counter-claim when it was not proved but abandoned as no iota of evidence in support of the counter-claim or the reliefs was adduced but 3rd Respondent merely scantily summarized the said reliefs he wanted. That this is particularly so, as 3rd Respondent did not at anytime adopt the evidence adduced in aid of his statement of defence in the proof of his counter claim and that this is fatal. That what is not asked for cannot be granted since a court is not a Father Christmas. Cases on counter-claim considered to be relevant to the submissions highlighted above, were cited in the Appellant’s brief of argument. Learned lead counsel made a rehash of some of his submissions in respect of Issue 3 in arguing against the propriety of the order made by the learned trial Judge regarding orders in respect of account for rents on the premises and delivery of immediate possession of the premises to 3rd Respondent.

Dwelling on this Issue, learned counsel submitted in the main that 3rd Respondent and other witnesses fielded by the Respondents testified to the fact that the mortgaged property (covered by Exhibits D & E) was sold to 3rd Respondent after Appellant’s late father defaulted in repaying the loan he collected from 1st Respondent and after 1st Respondent’s power of sale had arisen and that the receipt of purchase was tendered as Exhibit F. And that Exhibit D was thereafter released to 3rd Respondent by 1st and 2nd Respondents. In order words that title to the mortgaged property had passed to 3rd Respondent and the case of Majekodunmi v. Coop Bank Ltd (1997) 10 NWLR (Pt. 524) 198 at 201-203 was cited in aid. It is the stance of learned counsel that reliefs sought in a case flow from what has been pleaded earlier and are part of the pleadings as they do not stand independently of the averments in the pleadings. He submitted that evidence in the proof of the counter-claim had already been given by Respondents’ witnesses and so by preponderance of evidence 3rd Respondent had proved his counter-claim with both reliable oral and documentary evidence and was entitled to judgment. This Court was urged to resolve Issue 4 in favour of the Respondents and hold that 3rd Respondent had proved his counter-claim and was rightly given judgment by the Lower Court.

It would appear that the grouse of learned lead counsel regarding the judgment entered by learned trial Judge in favour of 3rd Respondent on his counter-claim is predicated on the grounds that the counter-claim in question is not supported by any averment thus the 3rd Respondent cannot be said to have adduced evidence in respect of non-existent averments; and that 3rd Respondent in any event did not specifically adopt his evidence in relation to his statement of defence in the proof of the counter-claim.

What a counter-claim is and its attributes are settled in law. Counter-Claim is a claim for relief asserted against an opposing party after an original claim has been made; that is, a defendant’s claim in opposition to or as a set-off against the plaintiff’s claim. It is not only a claim by the defendant against the plaintiff in the same proceedings but it is regarded as an independent and separate action in which the defendant/counter claimant is in opposition of the plaintiff and therefore has the burden of proving the counter claim to be entitled to judgment thereon. See MAOBISON INTER-LINK ASSOCIATED LTD V. U.T.C. NIGERIA PLC (2013) LPELR – 20335 (SC). Counter-claim is a mode of instituting an action and in respect of which there is a host of decided cases. Indeed, this Court has its fair share of decisions in relation to counter-claim. For instance this Court dwelled at length with counter-claim in the case of ALI V. SALIHU (2010) LPELR – 3744 (CA). This is what I said in the case on nature/status of counter-claim on pages 19 – 23:
” The law is clear concerning the status/nature of a counter-claim. It is that a counter-claim is a separate and independent action which must be instituted in accordance with the rules of the court. See OGLI OKO MEMORIAL FARMS LTD & ANOR V. NIGERIAN AGRICULTURAL AND CO-OPERATIVE BANK LTD & ANOR 2008,112 NWLR (Pt. 1098) 412 at 428. xxxxxxxx
xxxxx In the instant case, the Respondents’ Joint Statement of Defence is at pages 26 – 29 of the Record of Appeal. The process contains 21 paragraphs. In its paragraph 21 the Respondents averred thus:-
“WHEREOF the Defendant (sic) prays that the suit be dismissed as frivolous and baseless.” and immediately following this averment is: – “COUNTER-CLAIM: i) A DECLARATION that the Odama Community are the customary owners and are entitled to the Customary Right of Occupancy of Ebugabi land together with all the fish ponds thereof situate and lying at Ebugabi in Kogi LGA of Kogi State bounded in the North by Ikumo Community land, in the SOUTH with Ogbangede Community land, in the East with ESIKAKU Community land and in the WEST with Banda Community. ii) N500,000.00 as damages for trespass. iii) Perpetual injunction restraining the claimant either by himself, agents, servants or privies from further trespassing, alienating or interfering in any manner howsoever with the Defendant’s (sic) ownership of the land.”
The action of the Appellant was instituted by the filing of a writ of summons and Statement of Claim. This mode of commencement of action is clearly one of the various modes permitted by the Civil Procedure Rules of the High Court of Kogi State. The filing of a counter-claim by the Respondents in the action of the Appellant does not derogate from the fact that the Respondents’ counter-claim is a separate and independent action. The Respondents’ counter-claim being a separate and independent action must therefore not only be instituted in accordance with the rules of court but also must comply with the rules of pleadings. In order words just as the Appellant’s action (in which the counter-claim was filed) had facts averred to in the Statement of Claim as its foundation, the Respondents’ counter-claim also must have facts upon which the reliefs sought in the counter-claim are predicated. It is in fulfillment of this requirement of pleadings that a defendant who decides to file a counter-claim in the action of a plaintiff, incorporates the averments in his statement of defence by reference as the facts he relies upon to sustain the reliefs being claimed in the counter-claim. Of course such a defendant is at liberty to aver additional or further facts to the facts contained in the statement of defence that have been incorporated by reference into the counter-claim. Indeed in law, nothing stops the party counter-claiming from re-producing all the averments in the statement of defence as the averments he relies upon to sustain the counter-claim instead of incorporating the same by reference. It is clear on the face of the Joint Statement of Defence filed by the Respondents in the instant action that they did not plead any fact or facts as the basis or foundation of the reliefs set out under the title or heading ‘Counter Claim’ therein contained. There is also nothing in the said Joint Statement of Defence remotely suggesting that the Respondents incorporated the averments or any of the averments set out in therein, as averments they relied upon to sustain the reliefs set out under the title or heading ‘Counter Claim’ contained in the said Joint Statement of Defence. In the circumstances the counter-claim of the Respondents which is a separate and independent action from that of the Appellant, was glaringly filed in total disregard of the rules of pleadings and I hold it (i.e. the Respondents’ counter-claim) to be no more than a purported counter-claim in respect of which no evidence could be said to have been adduced by the Respondents to sustain the reliefs claimed therein. This is because it is trite law that evidence to sustain the claims/reliefs in a civil case must be in line with the facts pleaded in relation to the said claims/reliefs. Where the reliefs sought in a counter-claim are not predicated on any pleaded facts as in the instant counter-claim of the Respondents, it therefore cannot be argued by any stretch of imagination that evidence was adduced in aid or in line with any such unpleaded fact or facts. xxxxxxxx The Lower Court was therefore wrong to have granted reliefs Nos. 1 and 3 in the counter-claim as all the three reliefs claimed in the counter-claim were not predicated on any pleaded fact or facts talk less of any evidence being adduced in relation to such unpleaded fact or facts.
(Underlining provided by me for emphasis).
3rd Respondent in the instant case clearly incorporated by reference all the averments in his 32 paragraph statement of defence as the averments upon which he predicated his counter-claim against the Appellant. In this regard, see the portion of the said statement of defence which reads thus: –
” COUNTER-CLAIM
33. 3rd Defendant repeats paragraphs 1 to 32 of his statement of defence and counter-claims against the plaintiff’s (sic) as follows: –
The situation in the instant case is very much unlike that in the case of OKONKWO V. CO-OPERATIVE & COMMERCE BANK (NIG.) PLC (2003) 13 NSCQLR 688, wherein Tobi, JSC; in affirming the correctness of the decision of this Court declaring the counter-claim in the case as incompetent said at pages 729 – 732 thus: –
“The procedure for setting up a counter-claim is well established in law. It is the usual practice to commence a counter-claim immediately after the defence. It could be on the same page with the defence or on a fresh or separate page. There is no rule of thumb. It depends upon the state of the individual pleadings. The important thing is that it should follow immediately after the defence and that is the meaning of the conjunction “and” found in most of the rules.
By our practice, a counter-claim is clearly marked “COUNTER-CLAIM” and the defendant who in his apparently changed status of plaintiff, avers in numbered paragraphs his claim which finally ends in the reliefs sought. xxxxxxxx
What is the procedure or arrangement adopted in the 3rd respondent’s amended statement of defence? The 3rd respondent’s amended statement of defence which is on pages 43 to 51 contains 24 paragraphs. In paragraph 24, the last paragraph, the respondent averred:
“WHEREOF the 3rd defendant claim against the plaintiff as follows: –
(a) xxxxxxxxxxxx
(b) xxxxxxxxxxxx
(c) xxxxxxxxxxxx
Xxxxxxxxxxxxxxx It is clear from the procedure adopted by the 3rd respondent that paragraph 24 alone does not qualify as a counter-claim. I have not come across a counter-claim of only one paragraph. Although the law does not provide for a minimum of paragraphs in a counter-claim, I am pretty certain in my mind that one paragraph cannot in law make a counter-claim. Is it possible for the single paragraph to narrate the story of the counter-claim as well as the relief sought? I think not. I therefore agree entirely with the Court of Appeal when that court came to the conclusion that the counter-claim is incompetent.”
Again, I cannot but say that the situation in the instant case is not the same as in the OKONKWO case supra, as 3rd Respondent in the instant case in incorporating by reference the whole of paragraphs 1 – 32 of his statement of defence by that act had at least 32 paragraphs in which he made averments upon which he had predicated the reliefs he sought against the Appellant. It would indeed appear that learned lead counsel was very much aware that 3rd Respondent incorporated by reference the averments in his statement of defence into his counter-claim and in that knowledge had no difficulty in filing “an AMENDED REPLY TO FURTHER AND FURTHER AMENDED STATEMENT OF DEFENCE AND DEFENCE TO COUNTER-CLAIM OF THE THIRD DEFENDANT”. It is my considered view that it is actually preposterous or absurd for learned lead counsel who had successfully filed this particular process to argue in the instant appeal that 3rd Respondent’s counter-claim has no averments in support of the reliefs. That is even if that issue is not a fresh one in respect of which leave ought to have been first procured in order to argue it. In any event, it is sufficient to say that the reliefs 3rd Respondent sought in his counter-claim were predicated on all the averments in his statement of defence as the same were incorporated by reference into the said counter-claim. Incorporating facts already pleaded is a well acknowledged procedure in the rules governing pleading; hence reliefs claimed in the writ of summons often times are incorporated by reference into statement of claim.
The other stance of learned lead counsel regarding the counter-claim of 3rd Respondent is that he never adduced evidence in relation thereto, particularly as he never adopted the evidence in support of his defence as evidence in the proof of his counter-claim. I have had cause to dwell on submissions in this vein before. This was in the unreported decision of this Court delivered on 12/12/2013 in APPEAL NO: CA/B/309/2012 – UWAGBOE OSAGIE & 3 ORS. V. OBAZEE & 3 ORS. Re-produced hereunder is what I said: –
” These three Issues relate to the counter-claim of the Appellants and I will consider them together. The Appellants have rightly submitted to the effect that the substantive or main case and counter claim are two separate actions. The Appellants in my considered view also rightly submitted that it is due to the position of the law that a counter-claim is an independent action, that it (counter-claim) has its own set of pleadings and that the facts pleaded by each party must be established by credible evidence at the trial unless they are admitted.
xxxxxxxApplying the principles relating to counter-claim to the instant case, the Appellants submitted that it was erroneous in law for the Respondents to have led evidence in defence to their (Appellants) counter-claim over nine months after they (Appellants) closed their case and filed their written address. That the evidence adduced by the Respondents in defence of the counter-claim ought to have been adduced immediately after the close of the defence/presentation of the counter-claim. That the procedure adopted by the Lower Court in permitting the Respondents to lead evidence in defence of the counter-claim after they (Appellants) had filed their written address on the said claim was prejudicial and in breach of their (Appellants) right to fair hearing. It is the stance of the Appellants that the pleading and evidence that the parties voluntary submitted themselves to customary arbitration which was relied upon by the Lower Court to determine the main suit was pleaded in the Respondents’ Further Amended Defence to Counter-Claim No. 4 at page 52 of the record, and that it was therefore erroneous in law for the Lower Court to have used the pleading and evidence in the defence to the counter-claim to determine the main suit.
xxxxx As already stated by me the Appellants are very correct regarding their analysis of a counter-claim. The Appellants would however appear to have seriously misapprehended the manner of trial in an action with a counter-claim to the extent that they would appear to believe that evidence adduced in a case with a counter-claim is compartmentalized or categorized into “evidence in the main suit” and “evidence in the counter-claim” as it were. All that is required in a trial on pleadings is for the trial court to identify the matters on which parties have joined issues that call for resolution and use the evidence adduced before it on the said issues (if such evidence has been adduced) to resolve the issues in dispute. It is against the backdrop of what a counterclaim is, that the position of the law is that where the plaintiff in the main action fails, it does not necessarily follow that the counter-claim must succeed unless findings are made in the main action in favour of the plaintiff in the counter-claim (i.e. defendant in the main action) entitling him to succeed. This is because the counter-claim being an independent action by itself, the plaintiff therein can only succeed on the strength of his own case and not on the weakness of the defence. See OLUBODUN V. LAWAL (2008) 35 NSCQLR 570 at 644. In other words evidence adduced in a case with a counter-claim is freely used by the court to resolve the matters in respect of which parties are in disagreement. Xxxxxxxx”
(Underlining supplied by me for emphasis).
Also in the unreported judgment of this Court delivered on 16/12/2014 in APPEAL NO: CA/EK/84/2013 – AJIDAHUN V. OJO I said in relation to the main action and counter-claim vis-‘a-vis evidence adduced therein thus: –
“The position of the law is that a defendant need only react to the case of a plaintiff or claimant against him by pleading the facts on which he relies in resisting the claims of the plaintiff or claimant. However where the defendant is not only resisting the claims of the plaintiff or claimant, but wishes to advance a case of his own as well, he must in addition set up facts on which he relies for his case on the counter-claim, in his pleading. This is against the backdrop of the position of the law that a counter-claim though tried together with the main action is a separate action that has its own pleading. It is for this reason as well that a plaintiff to the main action and who is the defendant in the counter-claim, if or where he intends to defend the counter-claim to the main action must file a reply to the new facts pleaded in the Statement of Defence as well as a defence to the averments relied upon by the defendant in the proof of the counter-claim.
xxxxxxxx
xxxxxxxx
The Appellant though apparently, realising that the Respondent’s counter-claim is a separate action being tried together with his own action, did not controvert the case of the Respondent in the counter-claim by filing any process for this purpose. It is to be noted that the Respondent incorporated by reference into the Counter-Claim all the averments in paragraphs 1 – 28 of the Statement of Defence as facts he relied upon for the reliefs he is claiming.
xxxxxxx I have said it before now, that the action instituted by a plaintiff (usually described as the main action) and the counter-claim brought in the main action by a defendant are independent action though they are tried together. Indeed, in realisation of the fact that the two independent actions are tried together is the fact that two judgments or decisions are always entered by the court; the first in relation to the main action and the second in relation to the counter-claim. And the position of the law is to the effect that where common questions determinative of a claim and counter-claim arise in a case, the trial court in the circumstance is not expected to consider the said question separately in relation to the counter-claim. The Appellant in my considered view by not seeking any relief regarding the main action (that is his own case) and by specifically seeking only the relief that this Court upon allowing the appeal should “set aside the entire judgment of the trial court granting the Respondent all the claims set out in the Counter-Claim” obviously has no grouse against the judgment of the Lower Court dismissing his own action. Xxxxxxx”
(Underlining supplied by me for emphasis).

The situation in the instant case is that 3rd Respondent repeated the averments in his statement of defence for the purposes of the reliefs which he sought in the counter-claim. It has not been suggested by learned lead counsel that the Respondents did not adduce evidence in support of the averments in the statement of defence of 3rd Respondent or that the reliefs sought in the counter-claim cannot in law be granted upon evidence that has been or was adduced in support of the averments in the statement of defence and which are ipsissima verba with those in the counter-claim. It is my considered view that it is most absurd to expect 3rd Respondent to have expressly stated that he was adopting evidence adduced in support of the averments in his statement of defence as evidence in support of the averments regarding his counter-claim when the averments as already said are the same. The totality of the evidence placed before the Lower Court by parties was to be used by the learned trial Judge to resolve the issues raised in the counter-claim and the main action which consisted of the case of the Appellant on the pleadings and that of the Respondents on their respective pleadings as all of them were tried together.

The learned trial Judge dwelled on the Issue as to “Whether the 3rd Respondent has proved his counter-claim and entitled to judgment” at pages 396 – 397 of the record. It was his finding that 3rd Respondent was entitled to judgment on the counter-claim. I am of the considered view that any contrary decision by the learned trial Judge would have been perverse having regard to evidence adduced by Respondents’ witnesses and particularly 3rd Respondent on pages 253 – 255 of the record.

Flowing from all that has been said is that Appellant’s Issue 4 must be and is hereby resolved against her.

The learned trial Judge having disbelieved the case of the Appellant that her late father was an illiterate expressed the view to the effect that the claim of illiteracy was a calculated attempt to enable the father of the Appellant avoid liability for the loan he took after he had enjoyed same. It is with great restraint that I will not comment further regarding morals of the instant case which is clearly an attempt to use the Illiterates Protection Law by a non-illiterate to his unwholesome advantage and/or whether the Appellant could in any event have properly maintained the instant action against the backdrop that the house of Caleb Jeje had been sold in his life time and was never at any time a family property. Be that as it may.

In the final analysis, I find the instant appeal to be totally devoid of merit as all the Issues formulated for its determination by the Appellant have been resolved against her. Accordingly, the appeal fails and is hereby dismissed. The judgment of the Lower Court is affirmed in its entirety.

Costs of N50,000.00 is awarded the Respondents and against the Appellant.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother, AYOBODE OLUJIMI LOKULO-SODIPE J.C.A. and I entirely agree with the lucid reasoning contained therein and the conclusion arrived thereat.

My learned brother, has carefully treated all the issues canvassed in the appeal in such an admirable manner, that I have nothing useful to add to the well researched judgment.

I adopt the reasons and the conclusion arrived at, by my learned brother as mine in reaching a conclusion that the appeal lacks merit. I also dismiss the appeal. I abide the order made as to costs in the lead judgment.

BOLOUKUROMO MOSES UGO, J.C.A.: I had the privilege of previewing the lead judgment delivered by my learned brother Lokulo-Sodipe J.C.A. I completely agree with my Lord’s reasoning and conclusions. I am equally of the view that this appeal lacks merit and should be dismissed, and I so order.

I also abide by the order as to costs as contained in the lead judgment.

Appearances

T. M. Ogunmoroti with T. Kolawole and A. Adeleke.For Appellant

AND

3rd Respondent is in Court. Pastor O. Aladetoyinbo with T. O. Obisesan.For Respondent