MR. EDEM EYO ISIN v. MR. EDEM EKPENYONG EDEM & ANOR
(2018)LCN/10873(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of February, 2018
CA/C/39/2016
RATIO
ILLITERATE PROTECTION ACT/LAW: REASONS FOR THE ACT
The Illiterates Protection Law was designed to protect the illiterate and ensure that written accounts of transactions by an illiterate correspond with the intention of the said illiterate. See EDOKPOLO & CO. LTDS VS OHENHEN & ANOR (1994) ELC 1485 SC 1. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
ISSUE ON APPEAL: WHETHER FOR A FRESH ISSUE ON APPEAL TO BE OBTAINED LEAVE OF COURT MUST BE SOUGHT
The law does not preclude a party from raising an issue not contested at trial on appeal. To do this however, requisite leave of the appellate Court must be sought and obtained and where such was not done as in the present instance, the said issue would be incompetent and shall be appropriately discountenanced. See OLUFEAGBA & ORS VS ABDUL RAHEEM & ORS (2009) 40 NSCQR 684. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
PRESENTATION OF A CASE: WHETHER A PARTY WILL BE ALLOWED TO APPROBATE AND REPROBATE
Moreover, parties are to be consistent in the presentation of their cases. A party will not be allowed to approbate and reprobate as he desires. See INTERCONTINENTAL BANK LTD VS BRIFINA LTD (2012) 50 NSCQR 307 at 330.PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
MR. EDEM EYO ISIN Appellant(s)
AND
1. MR. EDEM EKPENYONG EDEM
2. MR. UDUEHE NSINI UFEH Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting in Uyo Judicial Division delivered on the 2nd day of November, 2015 by WINIFRED EFFIONG J.
Following a dispute with the Appellant over a piece of land situate at Idikpoi Idu (later known as Atiamkpat Idu) in Idu Uruan, Uruan Local Government Area of Akwa Ibom State, the Respondents took out a writ of summons at the trial Court against the Appellant seeking the following reliefs:
(a) A declaration that all that parcels/pieces of land- Obot Idikpoi, Idu (Ataimkpat Idu) lying and situate at Idikpoi Idu (Ataimkpat) in Idu Uruan, Uruan Local Government Area of Akwa Ibom State is the bonafide property of the Estate of the late Etinyin Nsini Effiong Ufeh of Idu Uruan.
(b) A declaration that act of the Defendant trespassing into the parcels/pieces of land as aforesaid without the consent and authority of the Claimants is illegal, null and void.
?(c) An order directing the Defendant to uproot/remove all the coconut trees and any other plant/crop he planted on the said land
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forthwith.
(d) The sum of N5, 000,000.00 (Five Million Naira) only as general damages for trespass.
(e) An order of perpetual injunction restraining the Defendant, his agents, representatives or assigns from further trespass/encroachment into the said Claimant?s land.
The Appellant was served with the processes upon which he entered appearance through counsel and joined issues with the Respondents via pleadings.
?At trial, both parties called evidence in support of their pleadings. The case of the Respondents was that their progenitor, Etinyin Nsini Effiong Ufeh procured the land in dispute from the Appellant?s father, EyoIsin-Enyin Ukut in 1976 and that their said progenitor enjoyed exclusive possession of the said land throughout the life-time of the Appellant?s father. That after the demise of the Appellant?s father, the Appellant unsuccessfully challenged the ownership and occupation of Respondents? progenitor at the village arbitration and that shortly after the demise of the Respondents? progenitor, the Appellant encroached on the said land which necessitated the Court action.
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The Appellant on his part put forward a case that the land in dispute belonged to his late father and that there was no sale to the Respondents? progenitor who illegally entered the said land.
At the end of the trial, the learned trial Judge was more impressed with the case of the Respondents and consequently gave judgment in their favour as aforesaid on the 2nd November, 2015.
Peeved at this development, the Appellant wasted no time in filing a Notice of appeal against the said judgment on the 6th November, 2015 containing 4 grounds of appeal.
At the oral hearing of the appeal, Mr. Ekanem, the learned counsel for the Appellant adopted the Appellant?s brief filed on 24th February, 2016 as well as the Reply brief filed on the 31st March, 2016, both briefs having been deemed properly filed and served on the 18th January, 2018, as the arguments of the Appellant in furtherance of his appeal.
?For the Respondents, their learned counsel Mr. Udofia adopted their brief filed on the 16th March, 2016 but equally deemed properly filed and served on the 18th January, 2018 as the arguments of the Respondents in contesting this appeal.
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The Appellant distilled 4 issues for determination as follows:
(a) Whether or not Exhibit A, the deed of conveyance complied with the requirements of the illiterate jurat law to support the respondents? claim to title to the land in dispute.
(b) Whether or not the learned trial Judge was right in holding that the evidence of PW1 on oath was enough to explain the deficiency and inadequacy in Exhibit A in respect of the illiterate jurat.
(c) Whether or not the learned trial Judge was right in relying on the act of possession of the land in dispute by the late Etinyin Nsini Effiong Ufeh to hold that the respondents have proved title to the land.
(d) Whether or not Exhibit A, being a registrable instrument of land and having not been so registered was admissible in evidence to support the respondents? claim to title.
The Respondents on the other hand formulated a lone issue for determination as follows:
Whether the learned trial Judge was right in entering judgment for the Respondents herein based on Exhibit A and other pieces of evidence available to the Court.
An examination of the issues
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for determination formulated by the parties reveals that the sole issue of the Respondents encapsulates the 4 issues of the Appellant, I shall therefore in adopting the sole issue of the Respondents consider the issues of the Appellant together.
The Appellant argued that the entire case of the Respondents was anchored on Exhibit A which has the thumbprint of the Appellant?s father indicating he was illiterate without containing an illiterate?s jurat as required by law thereby rendering the said transaction invalid.
He further submitted that the explanation of PW1 on oath relied upon by the learned trial Judge was insufficient to cure the said deficiency. He referred to Section 3 of the Illiterate Protection Law Cap. 64 of the Laws of then Eastern Nigeria 1963 and EZEIGWE VS AWUDU (2008) 161 LRCN 194 at 199 and 213.
The learned counsel argued further that late Etinyin Nsini Ufeh, the progenitor of the Respondents entered the land in dispute as a trespasser thereby precluding the lawfulness of his possession. He referred to ECHERE VS EZIRIKE (2006) 12 NWLR (PT 994) 386 at 391 and 408 and OLUBODUN VS LAWAL (2008) 17 NWLR (PT 1115) 1 at 10.
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Finally, Mr. Ekanem submitted that the said Exhibit A, was a registrable land instrument which was not registered and as such was inadmissible despite the failure of counsel to object to the admissibility at trial and that the said document should be expunged from the records. He referred to OGBIMI VS NIGER CONSTRUCTION LTD (2006) 9 NWLR (PT 986) 474 at 478, OMEGA BANK (NIG) PLC VS OBC LTD (2005) 8 NWLR (PT 928) 547, EZEIGWE VS AWUDU (supra). AMINU VS HASSAN (2014) 5 NWLR (PT. 1400)287 at 297 and Sections 10(1) and 28 of the Land Instruments Registration Law, Cap 70, Laws of Akwa Ibom State, 2000.
He urged the Court to find for the Appellant.
Mr. Udofia?s riposte was that Exhibit A duly complied with the requirements of the Illiterate?s Protection Law as it contained a valid jurat and that the learned trial Court was right to have accepted the testimony of PW1 to cure any deficiency in the stated name of the writer thereof. He referred to EZEIGWE VS AWUDU (supra).
Mr. Udofia objected to the arguments that the said Exhibit A being a registerable instrument was not registered as according to him the issue
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was not raised at the trial Court and the leave of this Court was not obtained for it to be raised for the first time on appeal as provided by Order 4, Rule 2 of the Court of Appeal Rules, 2011. He referred to MC INVEST. LTD & ANOR VS CM (2012) Vol 209 LRCN 1 at page 4.
He pointed out that the original of Exhibit A was duly registered but an error was made in the photocopy substituted at the point it was tendered in the course of trial which was an error of counsel which should not be visited on the litigant. He referred to FIDELITY BANK PLC VS MONYE & ORG. (2012) LRCN Vol. 209 157 at 161.
He submitted that the Appellant?s counsel was aware of the error made in the substitution and having failed to object at the appropriate time could not benefit from the said error. He referred to TERIBA VS ADEYEMO (2010) 42 NSCQR (PT 2) 1204.
Finally, learned counsel submitted that the long possession of the Respondents? progenitor was conceded by the Appellant in the witness box as DW1 and that as such the learned trial Judge was right to have relied on same. He referred to ATANDA VS ILIASU (2012) Vol. 214 LRCN 220 at 227.
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He urged the Court to shun technical justice and dismiss the appeal.
In his Reply brief, Mr. Ekanem only responded to two points, first that TERIBA VS ADEYEMO (supra) was inapplicable as any error as to the tendered photocopy of Exhibit A was solely that of the Respondents? counsel.
The second point taken up by Mr. Ekanem was that EZEIGWE VS AWUDU (supra) did not support the arguments of the Respondents as the writer of a document for an illiterate can only be a natural person.
The arguments of the parties presuppose the centrality of Exhibit A to the ownership claims of the Respondents who had a duty to establish their title to the land in dispute.
?The inconvertible fact from the pleadings and evidence adduced by the parties at trial was that the land in question originally belonged to the late father of the Appellant. It was also common ground admitted by the Appellant in the witness box that the progenitor of the Respondents took possession of the said land in the lifetime of the Appellant?s father without challenge thereby and that challenge to his occupation by the Appellant began after the demise of
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the Appellant?s father. Furthermore, the Appellant?s case was that Exhibit A was never made by his late father as the thumbprint thereon was not that of his late father but in the witness box he conceded as shown on page 160 of the record of appeal, that he would not be in position to identify the thumbprint of his late father.
That the possession of the Respondents? progenitor began many years before the demise of the Appellant?s late father without opposition or challenge was consistent with the finding that he duly exercised his power of sale in Exhibit A. This was pivotal to the fate of the entire case.
More than anything, this fact confirmed the content of Exhibit A and precluded any subsequent challenge thereto. The Illiterates Protection Law was designed to protect the illiterate and ensure that written accounts of transactions by an illiterate correspond with the intention of the said illiterate. See EDOKPOLO & CO. LTDS VS OHENHEN & ANOR (1994) ELC 1485 SC 1.
The complaint of the Appellant was that there was no jurat as envisaged by the law but he failed to show that Exhibit A contradicted the
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intention of his late father. The adduced evidence was clear that Etinyin Nsini Effiong Ufeh, the Respondents? progenitor did not wait for the demise of EyoIsin Enyin Ukut, the Appellant?s father before moving onto the land in dispute. He was in possession unchallenged by EyoIsin-Enyin Ukut, the Appellant?s father which accorded with the content of Exhibit A. The illiterate in issue here was EyoIsin-Enyin Ukut, the Appellant?s late father who had no bone to pick with Etinyin Nsini Effiong Ufeh who occupied the land in issue for many years in his life-time without any dispute between them. The Appellant is precluded from complaining about Exhibit A as regards compliance with the illiterates protection law as he is not the illiterate in issue here. The extensive contentions as regards the level of compliance of Exhibit A with the illiterates Protection Law (supra) are with due respect to counsel non sequitur.
?The Appellant raised the issue of non-registration of Exhibit A which was countered by the Respondents on the ground that the issue was not contested at the trial Court. This argument attracted no response from the
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Appellant and the reason for this needs no clairvoyance. A perusal of the entire record of appeal with the finest tooth comb fails to reveal where this issue was raised or contested at trial. If anything page 95 contains the Notice of Consent to Documents filed by the same counsel for the Appellant in this appeal on behalf of the Appellant as Defendant at trial on 20th March, 2015 stating as follows:
The Defendant hereby consents to the tendering of the following front – loaded documents by the Claimant at the trial, to wit:
1. An agreement (conveyance) dated 2nd December, 1976 between Eyo Isin – Enyin Ukut and Ns ini Effiong Ufeh.
2. Receipt dated 2nd December, 1976.
3. The Civil summons in Suit Nos. 40 & 41 and the motion on Notice in Suit No. NU/MISC.72/2014.
4. Plaint note No. 4202
5. The medical certificate of cause of death dated 24/07/2012
6. Mortuary receipts issued by Romaco Funeral Directors and Terminal Care Units dated 04/09/2012 and 11/07/2012.
Dated 20th day of March 2015.
SGD
MARY E. ETIM ESQ
Counsel to the Defendant
The Bailey Chambers
65 Nwaniba Road,<br< p=””
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11
Uyo
The law does not preclude a party from raising an issue not contested at trial on appeal. To do this however, requisite leave of the appellate Court must be sought and obtained and where such was not done as in the present instance, the said issue would be incompetent and shall be appropriately discountenanced. See OLUFEAGBA & ORS VS ABDUL RAHEEM & ORS (2009) 40 NSCQR 684.
Moreover, parties are to be consistent in the presentation of their cases. A party will not be allowed to approbate and reprobate as he desires. See INTERCONTINENTAL BANK LTD VS BRIFINA LTD (2012) 50 NSCQR 307 at 330.
In the entire circumstances therefore I resolve the entire 4 Issues of the Appellant and the lone issue of the Respondents in favour of the Respondents and against the Appellant.
I hold that this appeal lacks merit and I accordingly dismiss it. The judgment of the learned trial Judge is hereby affirmed.
Cost of N50,000.00 is awarded in favor of the Respondents and against the Appellant.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the privilege of reading the draft of the lead judgment just read by my
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learned brother, J.O.K. OYEWOLE, JCA. I agree with his reasoning and conclusion therein that this appeal is bereft of merit.
I equally dismiss this appeal and affirm the judgment of the trial Court delivered on the 2nd of November, 2015 by W. Effiong, J. I also abide by the order as to costs made by OYEWOLE, JCA in the lead judgment.
STEPHEN JONAH ADAH, J.C.A.: I was given in advance a draft copy of the judgment just delivered by my learned brother, J.O.K. Oyewole, JCA. Having read through, I am in agreement with the reasoning and the conclusion that this appeal lacks merit and I also do dismiss it.
One issue which engaged the attention of the parties in this appeal was the issue of Exhibit A which was the deed of conveyance relied upon by the Respondents for their title to the land in issue. The complaint on Exhibit A was twofold. Firstly, that there was no compliance with the illiterates’ Protection Law which required the putting of illiterates jurat on a document purported to be made by an illiterate. The second issue is that of registering it as an instrument of Title. I want to take on the first
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issue which fundamentally deals with the validity of Exhibit A as an evidence of title. The intendment of the illiterates? Protection Law has been well analysed in some cases decided by the Supreme Court. In FATUNBI & ANOR VS. OLANLOYE & ORS. (2004) 12 NWLR (PT. 887) 229, Pats-Achonolu, JSC held:
?It needs be emphasized that the provision in Section 3 (Supra) is intended for the protection of the illiterate person. Essentially, it is equally to trace the whereabouts of the maker of the statement. Care must be taken that we do not put in the intendment of that provision what is not intended to accomplish. It is to ensure that what is stated there reflects what the illiterate person has stated and intended to be correctly put in such a document, and he is the only person to complain if that is not the case. Thus, in EDOKPOLO & CO. LTD. VS. OHENHEN (1994) 7 NWLR (PT. 358) 511 @ 525, the Supreme Court per Iguh, JSC, held:
?It ought also to be noted that Section 3 of that law only raises or provides certain presumptions of law in respect of a document prepared at the request of an illiterate by any person who shall write
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such a document his own as the writer and his address?..The purpose of the said provisions under Section 3 of the law is also to ensure in furtherance to the said protection of illiterate that the writer of such document is identified or traced?. Implicit in that Section is that where there exists a doubt or a denial as to the correct statements that were made by the illiterate, the writer will be traced to show whether the contents of the document represent the veracity of what the illiterate asserts. In other words, the protection singularly enures only to the illiterate. See DJUKPAN VS. OROVUYOVBE (1967) 1 ALL NLR 134 @ 140 and ANYABUNSI VS. UGWUNZE (1995) 6 NWLR (PT. 401) 225 @ 272.2.?
See also, the case of WILSON & ANOR VS. OSHIN & ORS (2000) 9 NWLR (PT. 673) 442. It is clear and certain that the illiterates Protection Law is intended for the protection of an illiterate person. This protection is essentially to prevent the literates from taking undue advantage of the illiterates in their intention to convey their property away. The law makes it mandatory for a jurat on the document wherewith the witness? name and
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identity can be verified in case of any dispute as to whether what was written down tallies with what the illiterates asserts. The protection is personal and it enures only to the illiterates.
It is therefore the illiterate involved that can raise issues of his protection under the law. The Appellant in the instant case not being the illiterate is therefore not having the locus to raise the issue.
For this and the more detailed reasons advanced in the lead judgment, I am also of the view that this appeal is lacking in merit. I dismiss this appeal and I abide by the consequential orders inclusive of the order as to costs made in the lead judgment.
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Appearances:
FRANCIS EKANEM ESQ.with him, E. UDOSEN ESQ.For Appellant(s)
GODWIN UDOFIA ESQ.For Respondent(s)
Appearances
FRANCIS EKANEM ESQ.with him, E. UDOSEN ESQ.For Appellant
AND
GODWIN UDOFIA ESQ.For Respondent
