ALEX FINANCE & MORTGAGE NIGERIA LIMITED & ANOR v. CECILIA UKONU
(2013)LCN/6684(CA)
RATIO
FACTS TO BE ESTABLISHED BY A PARTY PLEADING ILLITERACY
Where a party is pleading illiteracy, he must establish:
(a) The fact that he or she is illiterate and can only rarely sign his name or make a thumb impression, and
(b) That the document or documents he signed or thumb printed were not read to him or her; and
(c) That he could not have signed if the document or documents had been read to him or her.
Once the above positions are established it becomes clear that the document contravened not only the specific provisions of the Illiterate Protection Law but also the fundamental basis and precondition of agreement.
In the instant case, I quite agree with the reasoning of the learned trial judge that in reliance on the authority of ANAEZE V. ANYASO (1993) 5 NWLR (PT.291) Page 1, the respondent is adjudged illiterate. The contention of the Appellants that the Respondent signed the purported documents in the presence of her son-in-law and her daughter (both university graduates does not create a change of the position of the law. In this circumstances, I resolve this issue in favour of the respondent. Per ABUBAKAR JEGA ABDULKADIR, J.C.A.
In The Court of Appeal of Nigeria
On Monday, the 23rd day of December, 2013
CA/E/215/2009
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
1. ALEX FINANCE & MORTGAGE NIGERIA LIMITED
2. CHIEF ANDY MARTINS UDE Appellant(s)
AND
CECILIA UKONU Respondent(s)
ABUBAKAR JEGA ABDULKADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 25/9/2008 by Hon. Justice A.A. Nwobodo of the Enugu Judicial Division of the Enugu State High Court of Justice granting the reliefs sought by the respondent in the trial court.
The Respondent as the then Plaintiff commenced an action against the Defendants (now Appellants) at the High Court of Justice, Enugu State (hereafter simply referred to as “the lower court”) by a writ of summons filed on 28/7/98. The original 27 paragraph Statement of Claim filed on 28/7/98 was later amended and refiled on 29/9/2005 wherefore the Plaintiffs sought the following reliefs:
a. “A declaration that the transaction between the plaintiff and the 1st defendant in all the circumstances of the case was intended to be and was a loan transaction which ought to comply with the stipulations of the money lenders law with repayment of the loan and interest thereon secured by an equitable mortgage.
b. A declaration that the charge or equitable mortgage transaction ought to have been executed through appropriate conveyance procedure, and, that being an equitable charge or mortgage transaction, the mutual rights of the parties ought to have been secured as by law ordained, and, particularly the plaintiff’s equity of redemption and equitable right to redeem ought not to have been fraudulently trampled by the defendants.
c. A declaration that the transaction between the plaintiff on the one hand and the 1st and 2nd defendant on the other was irredeemably contrary to the money lenders law, the illiterate protection law and the proper conveyance law, practice and procedure.
d. Declaration that the 1st and 2nd defendants’ conduct in their dealings with the plaintiff contravened the money lenders law whereby the 1st and 2nd defendants forfeited their right to enforce payment of the balance of the loan given to the plaintiff.
e. Declaration of plaintiff’s statutory right of occupancy to the property in dispute.
f. An order setting aside the purported sale of the said property; namely No. 9 Kenyata Street, Uwani Enugu, variously to the 1st defendant, 2nd defendant, 4th defendant or any other purchasers whatsoever for illegality.
g. N15 million damages for fraud and trespass and 5% interest on the judgment debt until liquidated.
h. An order setting aside the purported powers of Attorney and for the 1st and 2nd defendants to return the plaintiff’s documents of title still in their custody.
i. An injunction restraining the defendants whether by themselves, their servants, agents or privies or otherwise however from interfering with plaintiff’s right of property over the buildings and premises at No. 9 Kenyatta Street, Uwani, Enugu.
At the trial court, the 1st defendant (now 2nd Appellant) filed a twelve (12) paragraph statement of defence dated 6/4/2000 and filed on 29/6/2004. The 2nd defendant (now 1st Appellant in this appeal) had a ten (10) paragraph statement of defence dated 6/4/2000 and filed on 29/6/2004. The 4th defendant (now 2nd Appellant) had a thirteen (13) paragraph statement of defence dated 16/6/13 and filed on 27/7/99. See pages 96-103 of the record. The 1st and 3rd defendants are parties in this appeal.
Issues were formulated, argued and settled by the parties through their respective legal representatives. “The plaintiff called two witnesses to prove her case at the trial while the 1st & 2nd defendants called two (2) witnesses in defence”
The final written addresses of counsel for the parties were adopted on 2nd July, 2008 and consequently the court reserved the matter for judgment to a later date.
Following the judgment in the case on 25th September 2008, the Appellants got dissatisfied with the whole decision of the court and consequently challenged same vide Notice of Appeal dated 2nd October, 2008 and filed on 10th October, 2008. The Notice of Appeal contains four (4) Grounds as reproduced copiously at pages 225-227 of the record of appeal as follows:
GROUND I
The learned trial judge erred in law in granting the plaintiff’s claim on the basis that he believed the oral evidence of the plaintiff as against the defendant’s documentary evidence under seal.
GROUND II
The learned trial judge erred in law in upholding the plaintiff’s mere assertion that she was signing a Deed of Mortgage and not an outright disposition of her property.
GROUND III
It is error in law for the learned trial judge not to have considered the interest of the 4th defendant in granting the plaintiff’s claims.
GROUND IV
The learned trial judge erred in law and fact in finding for the plaintiff when the facts in finding for the plaintiff when the facts and the law are contrary to such finding.
In accordance with the rules of this court, parties duly filed and exchanged Briefs of Argument. The Amended Appellants’ Brief of Argument dated 6/5/2013 and filed on 9/5/2013 was settled by K.O. Anyaegbunam; while the Respondent’s Amended Brief of Argument dated 21/5/2013 but deemed as having been properly filed and served on 10/10/2013 was settled by Dr. E.E.J. Okereke. The Appellants’ Reply Brief of Argument dated 26/7/2011 and filed on 28/5/2013 was settled by K.O. Anyaegbunam. The appeal was entertained on 10/10/2013. At the hearing of the appeal, learned counsel for the appellants K.O. Anyaegbunam adopted and relied on the Brief of Argument of the Appellants as herebefore identified, in urging the court to allow the appeal while learned counsel for the Respondent Dr. E.E.J. Okereke equally adopted and relied on the Respondent’s Brief of Argument in urging the court to dismiss the appeal in its entirety.
Two issues are set out for determination in the appeal in the Appellants’ Brief of Argument. The issues read thus:
1. Can mere “Ipsi Dixit’ of a witness be sufficient to set aside an Agreement under seal without proof of fraud?
2. How can a party prove illiteracy for Illiterate Protection Act to ensure in his favour. Did plaintiff prove her illiteracy?
The Respondent formulated a sole issue for determination in his Brief of Argument.
The issue reads:
“was the court below right to make findings of fact in respect of matters in which issues were joined”?
The appeal will be determined upon the issues formulated in the Appellants’ Brief of Argument as well as the sole issue formulated in the Respondent’s Brief of Argument.
APPELLANTS’ ISSUE 1
Dwelling on this issue, the Appellants said that the Respondent as plaintiff gave oral evidence and called no witness to the effect that she was an illiterate and did not know the nature of the document she was given to sign as such was neither read to her nor explained to her. The Appellant’s counsel stated that since the Respondent in her evidence raised the issue of fraud, the law is that he who assets must prove and in this case where the plaintiff alleged fraud, she must prove same beyond all reasonable doubt. He cited S.138 (1) and (2) of Evidence Act, EDOKPOLO & CO LTD. VS. OHEHEN (1994) 7 NWLR (PT.358) Page 511 at 534-535, Fadlallah vs. Arewa iles Ltd (1997) Pt 53 KLR page 1527 to back up his assertion. The learned counsel further posited that there is presumption in law under S.127 of the Evidence Act that the documents of title were duly executed by the Plaintiff/Respondent in favour of the 1st Appellant. He cited Section 132(1) of Evidence Act in aid.
APPELLANTS’ ISSUE 2
Dwelling on this issue the learned counsel for the Appellants contends that the Illiterate Protection Act is a shield and not a sword. He argued that the presumption of literacy is in favour of the other party where the person who had signed a document under seal seeks to resile on the document. He cites the authority of ANAEZE VS ANYASO (1993) 5 NWLR (PT.291) Page 1 at 45. The learned counsel further contends that it is a grave error for the trial court to hold in the judgment of the court at page 223 that the plaintiff was an illiterate because she claimed she could not read the document she signed. He submits that the learned trial judge had failed to evaluate the evidence of the plaintiff that she signed a blank document. He argues that since the court believed that the Respondent signed a blank document, which document did she the plaintiff fail to understand its contents. He contends that the failure of the trial court to appreciate the evidence and proof required of the plaintiff to ground illiteracy led to a perverse judgment in favour of the Respondent. He cited the cases of AYANRU v. MANDILAS LTD 2007 4 SC. PT.111 PAGE 58, CSS BOOKSHOPS LTD V. REG. TRUSTEES OF MUSLIM COM. RIVERS STATE & 3 ORS (2006) 4 KLR PT.216 PAGE 1375 AT 1383.
APPELLANTS’ ISSUE 3
The learned Appellants’ counsel merely posited his argument on this note although there is no formulated issue in the Brief of Argument as Appellants’ issue 3, I see this as a procedural irregularity. In his argument, the appellants’ learned counsel contends that the trial court did not consider the evidence or legal consequences of the evidence of the 4th defendant as DW2 throughout its judgment. He submits that the issue of his pendens was a live issue and if considered would have availed the 4th defendant of his evidence as the doctrine would not have applied to dispossess him of his property bought bonafide. He cited the cases of CLAY INDUSTRIES LTD. V. AINA (1997) NLR Pt.54, PAGE 1603, BUA VS. DADA (2003) FWLR (PT.172) PAGE 1892, OKECHUKWU ENEKWE V. I.M.B. LTD. & 2 ORS. (2007) ALL FWLR (PT.349) PAGE 1053 in aid. He urges the court to allow the appeal and dismiss the Respondent’s case for lack of merit.
RESPONDENT’S SOLE ISSUE
This issue had earlier been reproduced in this judgment.
In his reply to the Appellants’ argument on issues I & II, the learned counsel for the Respondent relies heavily on paragraphs 9, 15, 18 and 20 of the Respondent’s Amended Statement of Claim. In his argument, the learned counsel had this to say:
“Parties are bound by their pleadings and are precluded in law in putting forward evidence not pleaded. Consequently such evidence if erroneously given is expunged.
In the present case, the Plaintiff/Respondent gave her evidence in line with her pleadings whilst 1st and 2nd defendants in their statement of defence failed to answer the point of substance referred to in those paragraphs one by one but rather evasively denied the allegations by their general traverse. In the circumstances the general traverse does not constitute sufficient rebuttal of the facts stated therein.”
The Respondent’s counsel further submits that the 1st, 2nd and 4th defendants completely omitted any reference to paragraph 4 of the plaintiff’s claim which was repeated in the same vein that whilst the litigation was on, the 1st, 2nd and 3rd defendants purportedly sold the property to the 4th defendant. He further submits that the issue before the trial court and on which a finding of fact was made by the court was not whether a document under seal can be set aside by mere (ipsi Dixit) of a witness without proof of fraud. But whether the Agreement was for a loan (mortgage) or an outright sale of a storey building at a prime location at Uwani for N180,000.00. He cited the cases of Benedict Agwunedu & 7 Ors V Christopher Onwumere (1994) SCNJ 106 at 109, Chief Peter Higo Ajakaiye & Anor v The Military Governor, Bendel State of Nigeria & 2 Ors. Chief Agbebaku Idehai & Anor (1994) 9 SCNJ 102 at 105 ratio 7, Edio Ekretsu & Anor v. Miller Oyobebere & 5 Ors. (1992) H/11/12 SCNJ 189 at 192, Olarewaju v. Governor of Oyo State (1992) 11/12 SCNJ 92 at 94 and 95.
He contends that the 4th respondent was aware of the plaintiff’s pleadings in paragraph 4 of her statement of claim and repeated paragraph 4 of the amended statement of claim that he bought the property in question during the pendency of legal proceedings against the first three defendants, yet he proceeded to purchase the property. He added that the doctrine of lis pendens affects a purchaser who buys property the subject matter of litigation, during the pendency of such litigation, not because the purchaser is caught by the equitable doctrine of notice, but because the law does not allow the parties to a suit, and give to them pending the litigation, right in the property in dispute, so as to prejudice the opposite party. He cited the case of Oladejo Adewuje & 4 Ors v. Fadele Akanni & 10 Ors (1993) 12 SCNJ 31 at 34 ratio 1.
On the whole the Respondent’s counsel urges this court to see this appeal as unmeritorious and liable to be dismissed.
In his reply to the Respondent’s argument on the issues, the counsel for the Appellants contends that the Respondent while arguing his sole issue failed to take into cognizance that the document “ipso facto” speaks for itself and for the respondent to set aside the Deed of Assignment made under seal the Respondent must meet certain conditions under the law. He maintains that the Respondent never called any witness to testify on her behalf.
He contends further that the Respondent’s evidence that she pledged her property to secure a loan of N150,000 and paid N30,000.00 for her son in-law – Chinedu Ajoku is hearsay evidence, yet the trial judge believed same and acted on that evidence in his judgment. It is the contention of the Appellants’ counsel that if one should agree with the presumption of the trial judge, it would behove a reasonable tribunal to determine the following issues arising from that presumption:
a) What was the interest charge on the loan
b) What was the duration of the loan
c) What are the consequences of a failure to redeem the loan.
He relies on the case of SOLANKE V AJIBOLA, (1969) NMLR 253 AT 256-258 to move the court of Appeal to evaluate the evidence on the printed record and arrives at proper decision. He cited ADEYERI V. ATANDA (1995) 5 NWLR PT 597 PG. 512.
Finally the learned counsel pointed out that there was sufficient evidence from DW2 (4th Defendant) that at the time when he bought the property, Suit No E/290/93 was not yet in existence and that said suit was later dismissed. He referred to Exhibit H in aid.
APPELLANTS’ ISSUE 1
On the face of the record, the Respondent either entered into a contract of mortgage, or that of the sale (as the case may be) of her property under contention to the 1st or 2nd defendant (as the case may be) sometime in 1992. Following the later discovery of the plaintiff that it was not what she bargained for that was prevailing, she directed her solicitor to write a letter to the 1st and 2nd defendants, cancelling the earlier transaction on the grounds of conceived notion of fraud.
By the combined effect of paragraphs 4, 9, 15, 18 and 20 of the plaintiff’s statement of claim, the imputation of fraud in the transaction was heavily canvassed by the plaintiff. The 1st and 2nd defendants were the principal parties in defence at the trial of this suit. I carefully studied in between lines the plaintiff’s amended statement of claim sum that of the 1st and 2nd defendants’ respective statements of defence.
At page 98 of the record, the 1st defendant in paragraph 4 of his statement of defence stated inter alia:
“The 1st defendant denies all allegations of fraud and/or misrepresentation contained in paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the statement of claim and further states that upon the desperate need of fund by the plaintiff several approaches were made to the 1st defendant by her to purchase the said property”
The 2nd defendant in paragraph 4 of its statement of defence at page 101 of the record presented the exact wordings of the 1st defendant’s defence.
The rules of pleadings do not allow the defendants to be hedgy or evasive in their reply to facts averred by the plaintiff. Once the defendants refused to meet the facts directly either by admitting or denying them and joining issues specifically on such denial, they are taken to have admitted the plaintiff’s plea. This was the opinion of the Supreme Court in the case of LEWIS AND PEAT (N.R.I.) LTD V A.E. AKHAMIEN (1976) 7 S.C. 157.
There is no difference in effect between denying and admitting an allegation since traverse may be made either by a denial or non-admission and either expressly or by necessary implication. However, whether a party denies or does not admit, he must make it perfectly clear how much he disputes and how much he admits. See AGWUNEDU V ONWUMERE (1994) 1 NWLR (PT.321) page 375 at 379 ratio 5.
I entirely agree with the submission of the learned counsel for the respondent that the 1st and 2nd defendants did not make any reference to paragraph 4 of the plaintiff’s statement of claim. It is a trite principle of jurisprudence that an uncontroverted pleading is deemed admitted by the opposite party in the proceedings of a court. An admitted fact requires no further proof.
In the light of the foregoing analysis, I resolve the Appellants’ issue 1 in affirmative against the Appellants.
APPELLANTS’ ISSUE 2
The respondent claimed that the purported power of attorney signed by her was prepared by the 1st defendant’s solicitor. She gave in evidence that a copy of the document she signed was not given to her. She also claimed that the contents of the document were neither read to her nor explained to her by any person. She claimed that she is illiterate, having dropped at primary three in 1949, adding that her late husband only taught her how to sign a signature.
The defendants challenged the declaration of the plaintiff. They gave in evidence that the plaintiff is literate, having retired from a school as a teacher. It was also the contention of the defendants that the plaintiff signed the conveyance document in the presence of her son in-law and her daughter (both of whom are university graduates). However the defendants at the trial did not disclose the particular school where the plaintiff retired as a teacher.
The main issue for determination in this appeal is illiteracy of the plaintiff/Respondent. This is a question of fact which is to be proved by evidence. Seeing and hearing of the witness and watching her demeanour are neither helpful nor substitute for the proof.
Where a party is pleading illiteracy, he must establish:
(a) The fact that he or she is illiterate and can only rarely sign his name or make a thumb impression, and
(b) That the document or documents he signed or thumb printed were not read to him or her; and
(c) That he could not have signed if the document or documents had been read to him or her.
Once the above positions are established it becomes clear that the document contravened not only the specific provisions of the Illiterate Protection Law but also the fundamental basis and precondition of agreement.
In the instant case, I quite agree with the reasoning of the learned trial judge that in reliance on the authority of ANAEZE V. ANYASO (1993) 5 NWLR (PT.291) Page 1, the respondent is adjudged illiterate. The contention of the Appellants that the Respondent signed the purported documents in the presence of her son-in-law and her daughter (both university graduates does not create a change of the position of the law. In this circumstances, I resolve this issue in favour of the respondent.
APPELLANTS’ ISSUE 3
This issue was merely argued through without a foundation.
As I said earlier in this judgment, it is a procedural error. The contention of the Appellants is that the trial court did not consider the evidence or legal consequences of the evidence of the 4th defendant throughout the judgment, otherwise the issue lis pendens would have availed the 4th defendant of his defence that he bought the property bonafide.
The Appellate courts are guided in their decision by facts posited by the litigants at the trial court and the subsequent arguments based on issues canvassed by counsel for the parties in the appeal.
The learned counsel for the Respondent in opposition pointed out that paragraph 3 of the 4th defendant’s statement of defence did not controvert paragraph 4 of the plaintiff’s statement of claim. He added that the 1st and 2nd defendants did not oppose paragraph 4 of the plaintiff’s amended statement of claim at all. He further pointed out that the 1st defendant who was the principal party in the defence of the action at the lower court did not appeal against the judgment of the trial court. He also stated that the 4th defendant at the trial and the 2nd appellant in the instant appeal, by Notice of Withdrawal dated 6/5/2012 and filed on 7/5/2012 disengaged himself from the ongoing litigation.
The position of the law is that a thorough search must be conducted by any intending buyer of any landed property, to avoid delving into a transaction that would end up into litigation if one has to agree with the declaration of the 4th defendant at the trial that his purchase of the property in issue was legal and in consonance with all legal and moral tenets, then, he wouldn’t have fallen into the temptation of buying litigation. My opinion is that he did not do what is required of him to do before buying.
The plaintiff deposited her property title document to the 1st defendant (now at large in the appeal) as collateral for a loan of N150,000.00 in October 1992. In July, 1999, following heavy suspicion of fraud on the part of the 1st defendant, the plaintiff directed her solicitor to cancel whatever agreement that was subsisting between her and the 1st defendant. The 1st defendant, not minding the letter of cancellation of the existing agreement and a court action in suit No. E/290/13 went ahead to grant power of attorney in respect of the property to Chief L.C. Mbam in 1994. Chief Mbam further granted Power of Attorney in respect of the same property to Dr. Linus Ohaebosim in 1996.
Dr. Ohaebosim further granted power of attorney to the 4th defendant, Chief Andy Martin Ude on the same property in 1997.
The chain of events relating to this property from the on-set seems to me an organized fraud. The purchasers are members of the same group.
In the circumstances, the contention of the appellants in this regard as baseless and liable to be dismissed in favour of the Respondent.
On the sole issue of the Respondent, the learned counsel for the respondent adopts his argument in opposition to the Appellants’ formulated issues.
The two issues joined by the parties at the court below for determination of the suit are:
1. Whether plaintiff (Respondent) intends to enter into a loan transaction (Mortgage) with the 1st or 2nd Defendant? Or was the transaction for an outright sale of the property?
2. Whether the plaintiff is entitled to protection, pursuant to the illiterate persons protection law?
I have taken pains to read through the record of proceedings in this suit as compiled by the lower court and transmitted to this court for appellate adjudication in the suit. The judgment of the lower court is found at pages 210-224 of the record. I have also carefully examined the issues and arguments of counsel to the parties in this appeal on their individual merit.
Now, having resolved all the issues formulated by the Appellants against them in favour of the Respondent, there is no magic that would make this court fault the well considered findings and decision of the learned trial judge.
On the whole, I found no merit in this appeal. The appeal fails and accordingly, it is hereby dismissed. The judgment of Hon. Justice A.A. Nwobodo delivered at the Enugu State High Court of Justice on 25th September, 2008 is hereby affirmed.
Costs of N50,000.00 is awarded to the Respondent against the Appellants.
ADZIRA GANA MSHELIA, J.C.A.: I have read before now judgment just delivered by my learned brother Abubakar Jega Abdul-Kadir JCA, with which I agree.
For the same reasons contained therein which I respectfully adopt as mine, I too find the appeal devoid of merit and it is accordingly dismissed. The judgment of the High Court of justice Enugu State delivered by Nwobodo J. on the 25th September 2008 is hereby affirmed. I abide by the consequential order made as to costs.
IGNATIUS I. AGUBE, J.C.A.: I have been privileged to be availed of the draft of my Lord the Presiding Justice’s Judgment and I am in complete agreement with his reasoning and conclusion that this Appeal lacks merit. I shall also dismiss same as it would appear that there was a syndicated fraud by the Appellants against the Respondent, who is an illiterate, to deprive her of her property. I also affirm the Judgment of the Enugu State High Court of Justice per A.A. Nwobodo, J., sitting at Enugu Judicial Division which Judgment was delivered on the 25th September 2008 granting the Respondent all the reliefs sought. I shall abide by the order as to costs as made by my noble Presiding Justice.
Appearances
Mr. E. AmeneFor Appellant
AND
Mr. I. N. OnyiaFor Respondent
