NWOBODO v. OKOLIE (2020)

NWOBODO v. OKOLIE

(2020)LCN/14564(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, September 02, 2020

CA/AS/616/2018

RATIO

PLEADINGS: FRAUD, DECEIT AND MISREPRESENTATION.

This is to ensure and protect the rights of persons to freely enter into agreements and exercise to their free will of choice. It is not for the Courts to enter for or write agreements for parties or read into their consensual pacts any terms of any kind except those that are by law, to be implied.
It is also in this philosophy, that the Evidence Act, 2011, Section 169 thereof stipulates thus:
“When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true, and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing.”
Equity will come in though to obviate this evidential statement of the law by allowing the successful plea of fraud, deceit, misrepresentation etc, even against the succinct position of the law that the best evidence when a thing has been reduced into writing is the document itself, except where a vitiating element can be established to vary or alter such a document.
Order 15 Rule 3 Sub-rule 1 of the Delta State High Court procedure Rules 2009 provides mandatorily that the equitable Defences of fraud, deceit, misrepresentation, mistake and the allied defences shall be pleaded specifically and their particulars given.
This Defences were pleaded no doubt by the paragraphs 5 (a) (b) (c) (d) (f) e and 6, 7, 8 and 9 of the Statement of Defence and statement on oath of the respondent who said he was an illiterate and was tricked and deceived into signing Exhibit ‘E’ – (the Deed of conveyance).
However, no particulars of the act of tricking or deception which may loosely be referable to misrepresentation or fraud were supplied. It was not for the trial Court to, suo motu, supply the particulars of the fraud, trick or deceit and misrepresentation that will vitiate the Exhibit ‘E’ which was in law, the presumed intention of the parties.
Nwadike Vs. Ibekwe (1987) 4 NWLR pt 67, page 718; Abacha Vs. Fawehinmi (2000) 6 NWLR (pt 660) 2 NWLR (pt 6) 187.
That it was peremptorily incumbent on the Respondent to give the particulars of the fraud or deceit or misrepresentation alleged, is re-enforced by the fact that the word “shall” is a command language; It evokes compulsion and mandate. The host of authorities cited by the Appellant in that regard including Oyegun Vs. Nzeribe (2010) 7 NWLR (pt 1197) 577 have established this trite position of the law. Per MOHAMMED AMBI-USI DANJUMA, J.C.A.

RATIO

PLEADINGS: ILLITERACY

Illiteracy is not established by the mere assertion or credibility test of a witness but by the evaluation of the facts of the case, the surrounding facts and the specific nature of the transaction in question.
That the Respondent did not go to school or speak no queens English does not necessarily make him an illiterate. In the circumstances of this case, there was evidence that the respondent is a real estate dealer. He admitted same and has been involved in estate business and has a manager whom he (Respondent) stated in cross examination that the said manager works for him but he personally runs his business. Is it such a professional that would be taken as an illiterate in estate business? I do not think so.
What is more, the Respondent tendered two Exhibits purporting to be Deeds of conveyance or Agreements in respect of lands in his Estate sold by him; can such a person be an illiterate in the use of the language and purport and prize of property sold and the nature of Document to be signed? The content of such document should not be an issue to such a land investor and business magnate.
Hard, as a surmise, I cannot find the usage of square metre as the unit of dimension in the Deed of conveyance any new or strange thing that would warrant the setting up of the Defence illiteracy. The survey regulations cap Section 13 Laws of Delta State specifically provides mandatorily for the specification of survey plans of plots to be expressed in square metres or square hectres.
That is the law applicable. It is not a new issue or question of law. The facts though not pleaded but evidence was led and addresses made thereon the size expressed in square metres as against being in the Emperial unit of feet and inches – as desired by the other hand subsequent. Section 31 of the Survey Regulations, made pursuant to the Delta State survey Law provides in part iv, 31 as follows:
31 “The original plan of a survey shall show the following information;
i) The area of each plot to the following accuracy
ii) Building lots, and plot under 0.81 hectares … in square metres to the 2nd decimal
iii) Plots from 0.81 to 4.05 hectares in Hectres, to the 2nd decimal
iv) Over 4.05 hectres to 40.50 hectares … in hectres, to the 2nd decimal.
v) Over 40.5 hectares to 404.70 hectares … in hectres to the 1st decimal
vi) Over 40.70 hectares .. to the nearest hectares.
The Plaintiff/Appellant also complained about the land being 4 (four) plots as against one plot.
The documents of conveyance, Exhibit ‘E’ and its certificate of occupancy did not allude to 4 plots but to a piece or parcel of land of the dimension claimed. So whether the land was seen and called as one (1) or 4 (four) plots, this was in my view not material. What is material is that the piece or parcel of land as an entity was of the dimension or size claimed.
The Expression of same in “metres” as one in Exhibit “E” in compliance with the law, is not an act of deceit, trick, fraud or misrepresentation such that the Respondent will claim ignorance of its mandatory usage by the law of Delta State applicable. The law binds all. No benefit can be conferred on whoever is uncomfortable with it and against compliance duly made.
The Respondent cannot claim not to understand the purport and effect of the document (Exhibit ‘E’) which he signed.
I would think that it was an early change of mind when he felt the consideration of N200,000 paid was inadequate for the plot or parcel of land covered by Exhibit ‘E’. All the arguments as to not agreeing to an offer of an additional money for the land to cover 4 plots is of no consequence as the Exhibit ‘E’ relates not to 4 plots of land of a particular dimension but simply to a unit or plot of land of the specified dimension. It is a piece or parcel.
Baffling is the fact that the Respondent who had led evidence in cross-examination as to the existence of the original plan of the land in dispute which he said he gave to the Respondent but that respondent had proceeded and produced the Exhibit ‘E’ in his name and registered it for the certificate of occupancy could not tender his own counterpart or give notice to the Appellant to produce it or even apply for the joinder of the Delta State Ministry of Lands and Survey, Urban Planning/Government of Delta State and to issue them with the Notice to produce the said original copy that must be with them. It is this alone that would have shown if the plot was expressed as one plot of land and in what unit of measurement in dimension or in feet. He did not tender a plan or conveyance in feet as none existed.
That not done, the Appellant was right in my contrite view when he submitted that this amounted to the withholding of evidence. By Section 167 (d) of the Evidence Act, Evidence which could be produced but was not produced and shown to be in possession or within the power of a person, it shall be presumed that if such evidence were produced it will be unfavourable to him.
The common cause of business must be presumed under Section 167 (c) of the Evidence Act.
The withholding of evidence in the circumstances demonstrated herein constitutes such circumstances that the claim to illiteracy of the Respondent is suspect.
The fact of appending an illiterate jurat in some documents as those tendered by the Respondent is not proof of illiteracy, as the circumstances of those documents were not testified to in this case.
Documents cannot be relevant where they are not related to same case or between same parties or their privies. They cannot be superimposed to arrive at a decision in another case. The common course of business of buying and selling land since 2006 as has shown a custom well known to the Respondent testified to by the Respondent.
The Respondent had not claimed that he signed the Document – Exhibit ‘E’ by mistake or by any undue influence, although the Appellant testified that she bought wine which they all took, it was not testified to that it influenced the execution of the Document either. Sanity is presumed.
His witness, Mr. Paul Eze – His Estate manager also voluntarily signed the Exhibit ‘E’, upon which N200,000 was paid. See page 185 of the Record.
I have studied the Respondent’s Brief of Argument and Note that it draws its energy from the stand of the trial Judge’s view of the evidence rather than on the facts and circumstances as testified to in the trial.
The apt words of scruthon, LJ in Okoli Vs. Morecab Finance (Nig) Ltd (2007) 14 NWLR (pt 1053) 37 thus “it would be dangerous to allow a man over the age of legal infancy to escape from the effect of a document he has after reading it, signed in the absence of an express misrepresentation by the other party of that legal effect.”
There was neither the proof of non est factum nor illiteracy in the facts and circumstances of the Deed of conveyance Exhibit ‘E’.
It is the law that the element of consent must be shown to be completely lacking before the document was signed, else a mistake as to the contents of a deed or document is not sufficient to avail a plea of non est factum; it is only a mistake as to its nature. That the writing, deed or document may be voidable for fraud, but the contract therein is not void ab initio. Awosile Vs. Sotunbo (1992) NWLR (pt 243) 54 (1992) 6 SCNJ 204 and Chitty on contract vol. 1 23rd Edition par 222 referred.
A person of full age, sense, knowledge and discretion signing a document cannot raise the Defence of non est factum to avoid the validity and legal effect of such a document.
Aisien V. Akinnuli & Anor (2012) LPELR 9700 CA, Bulet Int’l Nig. Ltd & Anor V. Olaniyi & Anor (2017) LPELR 42475; Natsaha Vs. State (2017) LPELR 42359 SC.
The trial Judge was bound by the decision in T. A. O. Wilson A & Anor Vs. A. B. Oshin & Ors (2000) 6 SCNJ 371 at 387; Uwagboe & Anor V. Eriyo & Anor (2017) LPELR 42512 CA cited to him by the Appellant in the final Address filed on 13th April, 2018 as found on page 120-143 of the record of Appeal.
By the Section 85 of the Property and Conveyancing Law Cap. page 17 Laws of Delta State –“A conveyance of free hold land to any person without words of limitation, or any equivalent expression, shall pass to the grantee the fee simple or other the whole interest which the grantor had the power to convey in such land, unless a contrary intention appears in the conveyance.”
The conveyance, Exhibit ‘E’ does not show any contrary intention to deprive it of this incident of viability.
The Respondent had feigned illiteracy in writing and reading. However, Section 78 of the Property and Conveyancing Law of Delta State, provides that “subject to the provisions herein after contained with respect to the creation of interest in land by parol –
“a) No interest in land can be created or disposed of except by writing signed by the person creating or conveying the same or by his agent thereunder lawfully authorized in writing or by will, or by operation of law;
b) …
c) ….”
The Respondent on the basis of the above could not have done otherwise than convey in writing as he did. He did not tender any Deed of conveyance written in Pigeon English or Ibo language to show that those were the only languages he understands and in which he was literate and thus disposed of his property in those or either of those languages only, so as to invalidate a conveyance in English language without a jurat, as herein relating to him.
On the whole, I do not find evidence of or presumption thereof of illiteracy on the part of the Respondent, to warrant the invocation of the illiterates person’s protection law of Delta State.

The respondent had addressed the Court strenuously in all his issues, as raised, that the fact that the Respondent was able to scribble or write/sign his signature on Exhibit ‘E’ per se does not make him a literate person. I agree. This is what this Court indeed stated in Jeje V. Enterprises Bank Ltd & Ors (2015) LPELR 24829 (CA), as the preamble to the resolution of that question.

However, I find from the circumstances that the Respondent was not an illiterate.
The prolific and terse apt words of this Court, per Lokulo-Sodipe, JCA is reproduced hereunder thus:
“In the case of JEJE v. ENTERPRISE BANK LTD & ORS (2015) LPELR- 24829(CA), the Court of Appeal citing with approval the Supreme’ Court case of ANAEZE V. ANYASO (1993) LPELR – 480 (SC) held thus:” 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 Band 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 Lawai 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…” Per LOKULO-SODIPE, J.C.A. (Pp. 55-59, paras. E-F). (Underlining supplied for emphasis).
I totally find the above as apt and applicable to the circumstances of this appeal.
Upon the myraids of case law authorities including African Produce Sales Co. Ltd Vs. Ayo & Anor (1961) 1 SCNJ 197 at 2001-202; Col. Nicholas Ayanru (Rtd) V. Mandillas Limited (2007) LPELR 670 (SC) the Respondent can not by his oral evidence per se establish his illiteracy; it is a decision to be embarked upon by the Court and to be based on a candid evaluation of all the facts and circumstances of the case.

The persistent and consistent frustration of the Appellant from fencing the land purchased was clear evidence of the fact that the respondent was not an illiterate but knew the dimension of the land in dispute hence, the reaction from him, since he was not comfortable with what was expressed therein. The Respondent knew the nature and character of the Document he was signing.
Indeed, even if the respondent were an illiterate, the Exhibit ‘E’ prepared by a legal practitioner cannot be caught by the illiterate person protection law to warrant any compliance thereof by the Appellant. At least the Respondent did not say that he never consented to one lawyer acting for the both parties in preparing the Deed of Conveyance.
I find that, that was the situation in the ordinary course of business, as he was entitled to so permit. At least, it is not prohibited; the respondent did not state that he was protesting against the legal practitioner as acting for both of them. That explains his signing same.
In Uwagboe & Anor Vs. Eriyo & Anor (2017) LPELR 42512 (CA), this Court eloquently stated the law thus:
In fact, documents or letters prepared by Legal Practitioners are exempted from the provisions of the Illiterate Protection Law Cap 70 Laws of Bendel State of Nigeria applicable in Edo State. Section 5 of the above mentioned law which puts the matter beyond dispute provides thus:- “The law shall not apply to the writing of any letter or other document written in the course of his business or at the direction of any person admitted to practice and practicing as a Legal Practitioner in a High Court or the Supreme Court.” In UNION BANK OF NIGERIA PLC VS IDRISU (Supra) Page 121 – 122, it was held thus: “However, Section 4 says that the Illiterate Protection Law shall not apply where a letter or document is written in the course of his business by or at the direction of any person practicing as a Legal Practitioner. Both briefs in this case agree that the firm of D.A. Akintoye & Co., of lIorin is a firm of solicitors though one says that 1st Defendant is the client of the firm of solicitors while the other says that the Plaintiff is the client. They need not quarrel over that. The provision of Section 4 is clear. Once a letter or document is written by or at the direction of a person admitted to practice as a Legal Practitioner, the Illiterates Protection Law is inapplicable to whoever may have instructed the solicitor or his employee.” Consequent upon the foregoing, it is my view that Exhibit “8” enjoys the presumption of regularity ascribed to documents prepared for illiterates by Legal Practitioners.” Per BADA, J.C.A. (Pp. 15-17, Paras. C-A)(Underlining ours for emphasis).
Indeed, Section 5 of the Delta State, Illiterates Protection Law states as follows:
3…
4…
5. Legal practitioners except from the provision of this law: This law shall not apply to the writing of any letter or other document written in the course of this business by or at the direction of any person admitted to practice and practicing as a legal practitioner in a High Court or the Supreme Court.
The respondent, who had the opportunity of producing the original plan he said he gave to the Appellant (and which Appellant said he could not find) and which he said indicated, a smaller size of land; and who had the opportunity to issue a “Notice to produce” on the Appellant and/or the relevant authority to be written to for a certified copy, cannot, in the face of the withholding of evidence and the surrounding circumstances of this case circumvent the applicability of the Section 5 of the Illiterates Protection Law of Delta State that mandatorily prohibits the application of the requirement of illiterate jurat to Documents written or prepared by a legal practitioner.
If for the sake of argument (and the Court are not the forum for theoretical postulation or of moot questions), it could be said along with the Respondent that he never authorized or consented to the Exhibit ‘E’ then that would mean that it was not written on his behalf or by his instruction; and in that circumstance, the requirement of an illiterate jurat would, therefore, not be applicable.

It is also trite that all the parties in the conveyance must not be present at the time of survey of the land nor must they all be present when the legal practitioner prepares the document; even at the point of signing, they must not all sign at the same time and place, to confer legality so long as there is evidence as to the agreement and its due regularity of the process.
The presumption of regularity applies.
From the above, it is my contrite view that the issues 1 and 2 be and are accordingly resolved in favour of the Appellant and against the Respondent. That is to say that there was neither fraud nor misrepresentation proved in the execution of Exhibit ‘E’; ii) That the Respondent had not proved before the trial Court per the evidence and circumstances of the case that he was an illiterate person and in relation to the Execution of the Exhibit ‘E’
iii) That the illiterates protection law of Delta State called in aid was inapplicable and unavailing to the Respondent in relation to Exhibit ‘E’ which was prepared by a legal practitioner. Per MOHAMMED AMBI-USI DANJUMA, J.C.A.

RATIO

PLEADINGS: VOID AND VOIDABLE CONTRACT.

However, for a clearer appreciation, it should be noted that the trite position of the law is that contracts entered into by parties are binding and sacrosanct so long as it is not against the law, public policy or suffers from any incidents capable of vitiating same. Such incidents are fraud, mistake, misrepresentation, duress etc.
None had been established in this case at the trial. There is no such proof, at least.
A valid contract is one in which:
1. The parties are of contractual age
2. There is the identifiable subject of agreement
3. There is a consideration
4. There is a consensus ad idem i.e the meeting of the minds of the parties by their consensual agreement.
The Respondent who did not feel comfortable with the Appellant after the signing of the transaction did not take such action as taking the Appellant to Court for the setting aside of the Deed of Conveyance complained of. Relaxing and abiding the Appellant’s suit, so as to raise a counter claim therein in total denunciation and denial of the Deed of conveyance makes any such defence in the circumstances, a doubtful after thought.
It is in the same thought that reliance was sought to be made on Section 119 of the Evidence Act 2011 which requires that depositions and oaths or declarations on oath by an illiterate shall have an illiterate jurat attested thereto; this was sought to be foisted as a justification for the argument that the Exhibit ‘E’ was invalid for not having an illiterate jurat. The Appellant was right when he argued that the Exhibit ‘E’ was not a statement on oath, Declaration or Affidavit and was not therefore covered by the Section 119 of the Evidence Act.
The expression of one thing excludes the alternative;
Expressio unius ex exclusio alterius.
In any case, even if the Exhibit ‘E’ were an Affidavit, it can only be accompanied with a jurat after stating the fact of illiteracy or blindness as the case may be.
The Respondent who had not told the Court at least from the record, that he showed the Appellant that he was an illiterate and that yet that fact was not captured or expressed in Exhibit ‘E’, cannot in fairness to the other side and in conscience be made to resile from his undertaking; the document was neither void nor voidable.
Parties are bound by their agreement, and the Court will not read into it or allow either party to read into it what is not therein stated. See Larmie V. Data Processing Maintenance & Services Ltd (2005) 18 NWLR (pt 958) page 438 where Mohammed, JSC (as he then was-later (CJN) stated the law thus:
“The law is trite regarding the bindingness of terms of agreement on the parties. Where parties enter into agreement in writing they are bound by the terms thereof. This Court and indeed any other Court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad idem. See Baba V. Nigeria Civil Aviation Training Centre, Zaria (1991) 5 NWLR (pt 192) 388; Union Bank of Nigeria Ltd Vs. B. U. Umeh & Sons Ltd (1996) 1 NWLR (pt 426) 565; SCOA (Nig) Ltd V. Bourdex (1990) 3 NWLR (pt 138) 330 and Koiki V. Magnusson (1999) 8 NWLR (pt 615) 492 at 514.” Per MOHAMMED AMBI-USI DANJUMA, J.C.A.

RATIO

PLEADINGS: EVIDENCE
Documentary evidence being the best form of evidence in proof of a case as, while oral evidence may be subject to forgetfulness, fidgeting and lying, the cold documents stands, until proved otherwise. See Attorney – General of Rivers State Vs. Attorney General, Bayelsa State (2013) 3 NWLR (pt 1340) page 123 at 163.
On the whole, fraud not having been pleaded with particularity or at all nor proved. See Onamade V. ACB Ltd (1997) 1 NWLR (pt 480) 123 and thus not permitted to be inferred, the Exhibit ‘E’ remains the binding contract, same not being void or voidable as between the parties. The stretch in an argument of the character in a seeming tongue – in cheek that there was “no genuine consent”, is to state that there are categories of ‘consent’. That is to say that Respondent gave a fictitious or deceitful consent, and I know of no such concept other than as the apex Court stated in BPS Construction & Engineering Co. Ltd Vs. F.C.D.A (2017) LPELR 42516 that the elements of binding and enforceable contract, being: (1) offer (2) acceptance (3) intention to create a legal relationship (4)consideration and (5) capacity. See page 31, par C-F, per Kekere – Ekun, JSC.
The contract Exhibit ‘E’, that is the Deed of conveyance is binding as it is neither void nor voidable.
The Courts cannot make agreements or contracts for the parties, and the Courts will not, in law and in equity in the absence of the proof of any vitiating element such as fraud, mistake etc or any illegality, allow itself to inquire into the adequacy of the consideration, in this matter, the N200,000(Two Hundred Thousand naira only) paid by the Appellant; for to do so will be an interference in the freedom of the parties and descent from the position of an umpire-holding the scale of justice evenly and observing the constitution and Rules of pleadings and proof.

Where there is abundant documentary evidence on an aspect of a party’s case, no oral evidence is admissible on that aspect. This is because our adjectival law does not admit oral evidence on an aspect or area covered by a document.
As, Katsina-Alu, JSC stated in Brossette Vs. Ilemobola (2007) 5 SCJ 153 at 166 line 5-10:
“The Learned trial Judge was clearly in error. This Court in Olaloye Vs. Balogun (1990) 5 NWLR (pt 148) 24 said that:
“This Court in Abiodun Vs. Adehin (1962) 1 ALL NLR 550 at 555 relying on the Section 131 (1) of the Evidence Act has said that once there is a documentary evidence of sale of land, oral evidence of the sale would be excluded and the question as to what land was sold has been settled by the document so in the instance case oral evidence as to the land sold by each of Exhibits K, K1 – K3 is inadmissible.” Per MOHAMMED AMBI-USI DANJUMA, J.C.A.

Before Our Lordships:

Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Abimbola Osarugue Obaseki-AdejumoJustice of the Court of Appeal

Between

NNAMANI ESTHER NWOBODO APPELANT(S)

And

DADA OKOLIE RESPONDENT(S)

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice of Delta State, Akwukwu – Igbo Judicial Division delivered by Honourable Justice M. C. Okoh on the 30th July, 2018. By her amended writ of summons, the Appellant had sought inter alia for the following reliefs:
1) Declaration of title, Damages for trespass and injunction against the Defendant/Respondent who had also counter claimed as follows:
a) A declaration that the Deed of conveyance made between the Respondent and the Appellant in respect of the land in dispute is null, void and of no effect.
b) An order of this Honourable Court setting aside the certificate of occupancy No. DTSR15646 No. 22, page 22 Vol. CO 209 issued to the claimant on the basis of the said Deed of conveyance.

FACTS OF THE CASE
It is the Appellant’s case that he bought four plots of land from the Respondent and caused same to be surveyed and registered in his name, in the Delta State Land Registry, Asaba, wherefore a certificate of occupancy was issued to him; after submitting the signed Deed of Conveyance and the

approved survey plan, which Deed of conveyance was signed by the respective parties in the presence of witnesses upon the payment of the purchase price of N200,000 as agreed by the parties.

However, the Respondent asserts to the contrary and says that the Appellant purchased only one plot of land measuring 100 feet by 100 feet in his estate at Okpanam in Delta State for the sum of Two Hundred Thousand Naira only (N200,000) paid by the Appellant.

The Respondent asserts that the Deed of conveyance signed was in the trust and belief that what he signed was for one plot of land only which he said he sold to the Appellant; that the Deed of conveyance Exhibit ‘E’ was not read, explained and interpreted to him being an illiterate before he signed it.

That he was surprised and alarmed in 2007, when he discovered that Appellant’s agents began fencing plots of land that was four times larger than the one plot of land measuring 100ft by 100ft which he sold to the Appellant; she had to stop the agents, from fencing beyond the one plot sold. That he was an illiterate and unsuspectingly believed that the Deed of conveyance was for only one

plot of land which he had sold at N200,000.

It is upon this contestation that the action was instituted and 5 apt issues were at the pre-trial conference, identified for trial, namely;
1. What was the size and quantum of the land actually agreed to be sold by the Respondent to the Appellant, in this case; was it one plot of land measuring 100ft by 100ft as contended by the Respondent or 4452.717 square metres i.e four plots of land as contended by the Appellant?
2. Whether the Deed of conveyance between the Appellant and the Respondent was made in compliance with relevant laws and the statute of fraud.
3. Whether by the Deed of conveyance executed between the Respondent and Appellant, the Appellant was entitled to the grant of statutory right of occupancy over the land in dispute.
4. Whether there was no deceit and misrepresentation of facts in the transaction concerning the land in dispute by the Appellant.
5. Whether the Appellant, in the light of the facts and evidence led in this case is entitled to the relief sought.

At the conclusion of hearing and address, the learned trial Judge dismissed the Appellant’s case

and refused to enforce the Deed of conveyance, and yet refused to nullify the certificate of occupancy issued on the ground that neither the Delta State Government or the Ministry of Lands, Survey and Urban Development which issued the Statutory Right of occupancy was a party in the suit.

That the Court had no power to nullify the certificate of occupancy since the Government was not a party to the suit.

In a compact form, the lower Court declared the Deed of conveyance a nullity of no effect and unenforceable as far as it purports to convey four plots of land as against one plot and for not complying with the statute of fraud and the illiterate protection law. It however refused to grant the Defendant/counter claimant’s Relief No. 2 for a Decree nullifying the certificate of occupancy Exhibit ‘B’ the issuing Authorities not having been joined in the suit.

There has not, to our notice, been any appeal by the Defendant counter claimant, now Respondent. Suffice it to state that the trial leading to the Judgment appealed herein was a straight and clear one where the plaintiff now Appellant testified, called 3 witnesses and

also tendered documents (5 Exhibits) in evidence. The Respondent also testified in his Defence and tendered 2 Exhibits.

Following the dissatisfaction with the decision, the Appellant lodged the instant appeal upon which the respective parties filed and exchanged their Briefs of Argument upon the transmission of the record of Appeal to this Court out of time and upon leave granted on the 18th September, 2019 deeming the Record transmitted on 17-12-2018 as having being duly compiled and transmitted.

The Appellant’s Briefs of Argument are those filed on 28-3-2019 and deemed filed on 18-9-2019 and adopted on 10-6-2020, and the Reply Brief is that filed on 8-6-2020 and adopted on same 10-6-2020.

The Respondent’s Brief of Argument was filed on 30-3-2020 and adopted at the hearing of the appeal on 10-6-2020.
The Appellant raised 6 issues for determination as follows:
1. WHETHER THE HONOURABLE TRIAL JUDGE ERRED IN LAW LEADING TO MASSIVE MISCARRIAGE OF JUSTICE WHEN HE HELD THAT ILLITERATE PROTECTION LAW INURES AS A DEFENCE TO THE RESPONDENT ON EXHIBIT E (THE DEED OF CONVEYANCE), A DOCUMENT PROVEN BY THE ADMISSION OF BOTH PARTIES TO

HAVE BEEN MADE BY A LEGAL PRACTITIONER. (DISTILLED FROM GROUND 3.1)
2. WHETHER THE HONORABLE TRIAL JUDGE ERRED IN LAW WHEN HE HELD THAT THE CRIMES OF DECEIT AND FRAUD WHICH WERE PLEADED BUT WITHOUT PARTICULARS-WERE PROVEN WITHOUT SUBMITTING SAME TO PROOF BEYOND REASONABLE DOUBTS. (DISTILLED FROM GROUND 3.2)
3. WHETHER THE HONORABLE TRIAL JUDGE ERRED IN LAW WHEN HE FAILED TO CONSIDER AS WELL AS REFUSED TO TREAT AS SACROSANCT THE DEED OF CONVEYANCE FREELY ENTERED INTO BY THE PARTIES IN THIS SUIT FOR THE SALE OF THE PARCEL OF LAND IN DISPUTE. (DISTILLED FROM GROUND 3.3)
4. WHETHER THE HONORABLE TRIAL JUDGE ERRED IN LAW WHEN HE ERRONEOUSLY MISCONSTRUED AND WITHOUT ANY IOTA OF EVIDENCE UPHELD THE DEFENCE OF ILLITERACY RAISED BY THE RESPONDENT WHEN HE HELD THAT
“THE RESPONDENT HAS LED CREDIBLE EVIDENCE TO SHOW THAT HE IS AN ILLITERATE AND DID NOT UNDERSTAND THE CONTENT OF EXHIBIT E BEFORE HE SIGNED AND THAT ILLITERATE PROTECTION LAW AND STATUTE OF FRAUD WAS NOT COMPLIED WITH”. (DISTILLED FROM GROUND 3.4)
5. WHETHER HONOURABLE TRIAL JUDGE ERRED IN LAW AND NEGATED THE RULES OF PLEADINGS, ORDER 15 RULES 3 OF THE HIGH COURT OF DELTA STATE (CIVIL PROCEDURE) RULES 2009

AND ESTABLISHED JUDICIAL PRECEDENT WHEN HE UPHELD THE DEFENCE OF FRAUD RAISED BY THE RESPONDENT WHEN HE HELD INTER ALIA:
“THAT THE RESPONDENT HAS LED CREDIBLE EVIDENCE TO SHOW THAT HE IS AN ILLITERATE AND DID NOT UNDERSTAND THE CONTENT OF EXHIBIT E BEFORE HE SIGNED AND THAT STATUTE OF FRAUD WAS NOT COMPLIED WITH.” (DISTILLED FROM GROUND 3.5)
6. WHETHER THE HONOURABLE TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE EVIDENCE OF THE APPELLANT AND THAT OF HER 2 WITNESSES (MR. IFEANYI NNAMANI – CWI AND MR. EMMANUEL NGENE-CW2) UNDER CROSS-EXAMINATION CONTRADICTED EACH OTHER AND ARE IN CONFLICT TO JUSTIFY HIS DECISION TO DISCOUNTENANCE WITH THEM LEADING TO A MISCARRIAGE OF JUSTICE (DISTILLED FROM GROUND 3.6)

The respondent also raised 6 issues, which upon perusal, I find them as being simply the same or similar to the Appellant’s Issues, upon which the appeal will be determined, subject to the reframing and abridging by this Court.

ARGUMENTS ON THE ISSUES
ISSUE ONE
On the issue one, the Appellant’s learned counsel submitted that the Exhibit ‘E’ (the Deed of conveyance signed

between the claimant, now Appellant and the Defendant/Respondent, being a document prepared by a legal practitioner was not subject to the illiterates protection law or statutes of fraud.
The Section 5 thereof of the said law which states; “This law shall not apply to the writing of any letter or other document written in the course of his business by or at the direction of any person admitted to practice and practicing as a legal practitioner in a High Court or the Supreme Court.”

The decisions of this Court in the cases of Uwagboe & Anor Vs. Eriyo Anor (2017) LPELR – 42512 CA and Union Bank of Nigeria Plc Vs Idrisu were relied upon for the view.

The decision of the Supreme Court in Edokpolo & Co. Ltd Vs. Samson Ohenhen & Anor (1994) LPELR – 1016 (SC) to the effect that a document prepared for an illiterate upon request or on his behalf by a legal practitioner does not have to be read over, explained and interpreted to his illiterate client was also relied upon.

The learned counsel referred to the evidence and submitted that Exhibit ‘E’ – the Deed of conveyance was prepared by a

Legal Practitioner Barrister C. C. Echoke, of 42 Dr. Whyte Street, Boji-Boji, Delta State and that it had created a legal right between the parties herein. That the evidence of CW1 and CW2 was explicit as to how the parties signed the agreement; when he clearly understood they had entered into the agreement, prepared by a lawyer.

It was also submitted that the Exhibit ‘E’ prepared by a Legal Practitioner (Barrister C. C. Echoke) without jurat in it does not invalidate it; T. O. Wilson & Anor Vs. A. B. Oshin & Ors (2000) 6 (SCNJ) 371 @ 397.

That a duly franked document is not invalidated by the absence of the illiterate jurat. Saka Buraimoh Vs. Mrs. Karimu (1999) 9 NWLR (pt 618) 310 relied upon; That the document Exhibit ‘E’ cannot be declared null and void, as there was no prima facie evidence that the Respondent was an illiterate person at the time that he executed Exhibit ‘E’.

That the Respondent’s ipse dixit was inconsistent with the facts established before the trial Court, and that neither the Exhibit ‘E’ nor the certificate of occupancy can be nullified on the basis of the

illiterate jurat not being present in Exhibit ‘E’.

It was also submitted that it cannot be correct to hold that the respondent was an illiterate as he was described in paragraph 2 of the Amended Statement of claim as a real Estate Businessman” (page 65 of the Record of Appeal) and that this averment was not controverted by the respondent. On this, it was submitted that this fact was presumed admitted by the other party. See Ikare Community Bank Nig. Ltd. Vs. Ademuwagun (2005) 2 NWLR (pt 256) 187.

The Learned Counsel refers to the evidence in cross-examination by him when he stated thus:
“I don’t know the academic qualification of the Defendant but the defendant is in the business of buying and selling of land and he understands it perfectly. (page 180 of the record) and that the respondent did not contradict or controvert this.

That I have been selling land before this present issue came up. That “I have been in the business of selling land since 2006. (page 184 of the record)” and therefore this admitted facts needed no proof. See CPC Vs Lado (2011) 8 NWLR pt (1266) 40 at 91. Counsel submitted that;

i) The issue of square metres was a custom of the trade usage in the real estate business of buying and selling of land which the respondent was engaged in.
ii) That the respondent did not inform the Appellant during the negotiation for the sale of the land or at the time of executing Exhibit ‘E’ that he was an illiterate.
iii) That the respondent willingly and freely executed same by appending his signature thereto and has not shown that he was coerced and/or forced to enter into the terms of Exhibit ‘E’. He did not even thump print.

Learned counsel proceeded to contend that the Respondent’s Estate manager Mr. Paul Eze together with the Respondent voluntarily signed the Exhibit E, upon the payment of the sum of N200,000 as the purchase prize for the piece of land measuring approximately 4452.717 square metres situate, lying and being at Ogbeowelle quarters, Okpanam Oshimili North Local Government Area, Delta State Nigeria subject of the certificate of occupancy registered as No. 22 at page 22 in Volume C of 209 of the Land Registry, office, Asaba, Delta State and the subject of the survey plan No. AOD/DT/312/2006 dated

2006 drawn by P. O. Odigili, a registered surveyor. Learned Counsel refers to Section 169 of the Evidence Act, 2011 to contend that “when one person has by his declaration act or omission intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”

That the Respondent cannot claim illiteracy in square metres used in describing the size of the piece and parcel of land in Exhibit ‘E’ made on 10th July, 2006. The Learned Counsel submits that illiteracy is not determined by the ipse dixit, or mien or credibility of a witness but is a matter of facts to be established by evidence of the circumstances surrounding the act claimed to represent illiteracy.

That the Court of appeal cannot evaluate the circumstances to arrive at a conclusion whether the Respondent was an illiterate and then could interfere with the finding’s of the trial Court in that respect.

That Learned Counsel also

argued that even if it were conceded that the Exhibit ‘E’ was mistakenly signed by the respondent, to succeed on a plea of “non est factum” to render the document void, the party alleging must prove that:
i) The Document deferred in character from the one he thought he signed.
ii) That document differed in content from the one he thought he had signed.
iii) There was no way he could have known or found out the difference in the two documents or he did not have the opportunity to investigate such.

That it was mandatory to comply with the doctrine of precedent; Refers to Abacha Vs Fawehinmi (2000) 6 NWLR (pt 660) 228 SC and Mohammed V. Olawunmi (1993) 4 NWLR (pt 288) 384, Badra V. Olurun Femi (2007) WRN (Vol. 25) 161 at 179 CA, Dalhatu Vs. Turaki (2003) 42 WRN 15; (2003) 15 NWLR (pt 843) 310 at 336; Dairo V. UBN Plc (2007) ALL FWLR (pt 392) 1846 at 1900. SC.

That the refusal of the trial Judge to be bound by the decisions cited to it in respect of the non-applicability of the illiterates protection law to the Exhibit ‘E’ had occasioned a miscarriage of Justice. Contrary to Section 36(1) CFRN 1999 (as Amended).

That it was a gross miscarriage of justice to refuse to be bound by the decisions of superior Courts applicable and cited to the lower Court in this instance.
That the declaration of voidity and unenforceability of Exhibit ‘E’ was contrary to law.

That contracts voluntarily entered into cannot be altered or having a term read into it. Parties are bound having appended their signatures; African International Bank Ltd Vs. Integrated Dimensional System Ltd (2012) 17 NWLR (pt 1328) 553. That contract between parties are sacrosanct and it is not the business of any Court to rewrite the contract by adding or subtracting or importing any provisions into the contract. See Omega Bank (Nig) Plc Vs. OBC Ltd (2005) 8 NWLR (pt 928) 547; BFI Group Corporation Vs. Bureau of Public Enterprises (2012) 18 NWLR (pt 1332) 209, Daspan Vs. Mangu L.G.C. (2013) 2 NWLR (pt 1338) 203, Afrilec Ltd V. Lee (2013) 6 NWLR (pt 1349).

In response, the Respondent argued by his Issue one that the Respondent had by his evidence shown that he was an illiterate and did not understand the content of Exhibit ‘E’ as he did not understand the

language used in the Deed of conveyance and thus did not know the content when he signed it. And that the statute of fraud and the illiterate protection law was not complied; the Learned Counsel argued that an illiterate is a person who cannot write and read or understand the language used in a document signed by him and that the question of whether a person was an illiterate is one of fact to be determined from the facts and evidence before the Court. Ezeigwe V. Awudu (2008) ALL FWLR (pt 434) page 1529. That the pleadings in that regard in the counter claim were not denied and, therefore, stood as proved; relies on Our Line Ltd V. SCC (Nig) Ltd (2009) 17 NWLR (pt 1170) 382 for facts not denied are deemed as proved. That aside the pleadings, the respondent had led evidence in that respect per his adopted statement on oath containing the illiterate jurat at page 89 to 92 of the Record of Appeal.

That the fact that a person can write his name does not ipso facto qualify him as literate with respect to a technical or professional language contained in a document. SCOA Vs Zaria V. A. Okon (1959) SCNLR 562; Osfor V. Nwalia (1971) Commercial Law Report ALR 421;

Azera V. Ndukwe 1961 ALL NLR (page not supplied). Learned Counsel argued that this Court can infer illiteracy by reference to previous documents signed by the respondent.

Anaeze V. Anyaso (1993) 5 SCNJ Page 151 where previous documents signed by the respondent did not contain illiterate jurat, and thus showed that the respondent thereat was not an illiterate as claimed contrary to the instant case. Section 119 of the Evidence Act relied on for the need to append illiterate jurat in document by illiterate or the blind.

It was submitted that the Respondent not having gone to school to be able to read or write cannot be literate in the technical things such as land dimension in square metres and that the fact of the face off with the Appellant’s Agents between 2007 and 2008 was proof that it was not what the Respondent had agreed upon that was in Exhibit ‘E’ as sought to be fenced.

Answering as to the inapplicability of the illiterate protection Act and statutes of fraud to Documents prepared by a legal practitioner, the Respondent by his issue 2 argued that it only raises a presumption of regularity which was rebuttable as it

was for the protection of the illiterate: Relies on Union Bank (Supra); that the Exhibit ‘E’ was not the intendment of the Respondent and therefore should be jettisoned. The cases of Okelola V. Boyle (1998) 2 NWLR (pt 539) 53 at 553 relied on.
ISSUE TWO
The Appellant submits by this issue that the crimes of deceit and fraud were pleaded without particulars and were not also proved beyond reasonable doubt. Reliance was placed on Order 15 Rule 3 (1) of the Delta State High Court (Civil procedure) Rules, 2009. And to argue that Rules of Court and the word “shall” connote mandate and compulsion and must be peremptorily complied with.
Relies on Tanko Vs. Caleb (1999) 8 NWLR (pt 616) 606; Amadi V. NNPC (2000) 10 NWLR (pt 674) 76; Abimbola V. Aderoju (1999) 5 NWLR (pt 601) 100; Adewumi V. A.G. Ekiti State (2002) 2 NWLR (pt 751) 474; Achineku Vs. Aghagba (1989) 4 NWLR (pt 89) 411; Oyegun v. Nzeribe (2010) 7 NWLR (pt 1197) 577; UTC (Nig) Ltd Vs. Pamotei (1989) 2 NWLR (pt 103) 244 Solanke Vs. Somefun (1974) 1 SC 141 and Saude Vs. Abdullahi (1989) 4 NWLR (pt 116) 387.

That the Respondent had failed to plead the particulars of

fraud in relation to Exhibit ‘E’. That that failure was fatal to the respondent’s case as the Court cannot rely and/or found on it. Reference was made to paragraphs 5, a, b, c, d, e, f, and 6, 7, 8 and 9 of the statement of Defence and witness statement on oath where the Respondent claimed that he was an illiterate and can not read nor write and that he was deceived, tricked into signing the Deed of conveyance (Exhibit ‘E’). Page 84-102 of the Record and Olufunmise Vs. Falana (1990) LPELR 2616 (SC) Mr. Audu Otukpo V. APA John & Anor (2012) LPELR 20619 (SC); Yakubu Vs. Jauroyel & Ors (2014) LPELR 22732 (SC) Ogah V. Ikpeazu & Ors (2017) LPELR 42372 (SC). That the Respondent had not pleaded fraud with its particulars and that the position of the law is that the Court can only determine issues raised in the pleadings before it, as a Court cannot of its volition raise unpleaded issues.
Obijuru Vs. Ozims (1985) 2 NWLR (pt 6) 187; Nwadike V. Ibekwe (1987) 4 NWLR Pt. 67, pg 718 Abacha V. Fawehinmi (2000) 6 NWLR (pt 660) 228.

That on the aforesaid authorities, the trial Judge was wrong to hold that the

crime of deceit and fraud which were pleaded but without particulars were proven, without submitting same to proof beyond reasonable grounds.

The Respondent in response, contended that the elements and fact of fraud and deceit had been pleaded and proved and that the issue be resolved in his favour.

ISSUE THREE
Whether the Honourable trial Judge erred in law when he failed to consider as well as refused to treat as sacrosanct the Deed of conveyance freely entered into by the parties in this suit for the sale of the parcel of land in dispute.

On this issue, it was submitted that once parties have reached an agreement it was binding and the Courts have no jurisdiction to alter same.
Spera Indeo Ltd V. Peccuno Mineral Industry Nig (Ltd) & Anor (2016) LPELR 1044 relying on the decisions of the Supreme Court.
Union Bank (Nig) Ltd V. Ozigi (1994) 3 NWLR (pt 333) 385; P.A.N. Ltd Vs. Oje (1997) 11 NWLR (pt 530) p. 625; Amodu V. Amode (1990) 5 NWLR (pt 150) p. 356. Nika Fishing Co Ltd Vs. Lavina Corporation (2008) LPELR 2035 SC; Amede V. UBA (2008) 8 NWLR (Pt 1090) 623 at 659 – 660 CA.

That from the totality of evidence led, the

Respondent cannot resile from the contract merely because he later on found the terms to be unfavourable to him Arjay V. A.M.S Ltd (2003) 7 NWLR (pt 820) 577.

That the trial Judge failed to appreciate that the basic rule of contract is that consideration need not be adequate as long as it has some value in the eyes of the law and flows from the offeree to the offeror.
ABBA V. SPDC of Nigeria (2013) LPELR 20338 (SC) SPDC Nig. Ltd V. Allaputa (2005) 9 NWLR (Pt 931) 475 at 500 pars C-D (CA).

It was also argued that whilst the Appellant gave the identity of the land claimed, the Respondent did not plead or challenge the identity and dimension of the land claimed by a distinct plan, description, dimension, location or size as alleged.

That the trial Judge misconstrued the written terms of Exhibit ‘A’ and ‘E’ respectively by altering or modifying their contents as per the actual size of the land sold to the Appellant by the Respondent when he relied on the oral testimony of the respondent to hold that the Appellant bought only one plot of land measuring 100ft x 100ft. Adenle V. Olude (2002) 18 NWLR (pt 799) 413 at

433 Ogbu V. Wokoma (2005) 14 NWLR (PT. 944) 118, Otanma Vs. Youdubagha (2006) 2 NWLR (pt 964) 337, Gbadamosi Vs. Dairo (2007) 3 NWLR (pt 1021) 282, Ogunyanwo Vs. Oluwole (2009) 16 NWLR (pt 1167) 391 and Abdullahi V. Hedima (2011) 2 NWLR (pt 1230) 44 were cited to show that the Appellant as plaintiff had identified his land the subject of the claim, but the Defendant Respondent who asserted a smaller size did not prove the identity thereof of his assertion.

The Section 128 (1) of the Evidence Act and the cases of Koiki Vs Magnusson (1999) 8 NWLR (pt 615) 492, Layade Vs. Panalpina World Trans Nig. Ltd (1996) 6 NWLR Pt 456, Dalek Nig. Ltd V. Ompadec (2007) 2 SC 305.

That the trial Court failed to appreciate that Exhibit DA and DB were extrinsic and irrelevant to the agreement of the parties herein in Exhibit E.

It was submitted that the address of counsel as to price of land at the respondent’s estate as at 2005/2006 for one plot of land of 100ft by 50% or 100ft by 61ft costing between N100,000 and N150,000 are unsupportable by the evidence led and therefore goes to no issue.

That this was more so that no matter how Brilliant a counsel’s

submission is, they do not amount to evidence. See Oyeyemi & Ors Vs. Owoeye & Anor (2017) LPELR 41903 (SC) relying on Calabar Central Co-operative Thrift and Credit Society Limited & 2 Ors V. Bassey Ekpong Ekpo (2008) 25 WRNL (2008) 1-2 SC 299; (2008) 6 NWLR (pt 1083) 362.

It was therefore submitted that there was no logic to be inferred or followed from the cost of land as contained in Exhibit DA and DB as those documents are not in issue in this case to warrant any presumption of any facts.

They are extrinsic to the determination of the price agreed and concluded to by the Appellant and the respondent under Exhibit ‘E’ and therefore makes the Section 167 of the Evidence Act, 2011 called in aid by the Respondent in applicable and should be discountenanced.

ISSUE FOUR
Whether the Respondent had proved illiteracy before the Court to warrant the findings in that regard as done.

It was argued that the proof of literacy or otherwise is a question of fact to be proved; and that the trial Judge did not properly evaluate the evidence before it in the circumstances. It was submitted that where a person claims illiteracy and

wants to avoid a document he executed, he shall furnish such sufficient evidence to proof such allegation, failing which they should stand and be enforced against him. Scort Zaria Vs. Okon (supra); Olanloye V. Fatunbi (1999) 8 NWLR (pt 614) 203 at 233; Djukpan V. Orovuyovbe (1967) 1 ALL NLR 134.

It was submitted that the Respondent who testified to being in the business of buying and selling land understands the use of feet but not square metres cannot be an illiterate. That a person who is totally illiterate i.e who cannot read or write in any language and not a person who can read or write in other languages except that is so, a person who cannot read or write in the langue a particular document is written is not an illiterate merely by that fact.

That fraud had not been proved as no particulars thereof given and so also that this issue be resolved in favour of the Appellant.

ISSUE FIVE
This issue treats holistically the fact that the trial Judge violated the Rules of pleadings to the effect that evidence on unpleaded facts go to no issue and must be expunged.
That, that was what transpired at the trial in this matter.

ISSUE SIX
Whether the trial Judge was right in holding that the evidence of the Appellant and that of her 2 witnesses CW1 and CW2 under Cross-examination contradicted each other and are in conflict to justify the decision to discountenance with them leading to miscarriage of justice.

It was argued that only material contradictions could lead to the discountenance of a piece of evidence, if reliance on the testimony will lead to a miscarriage of justice. Alhaji Isiaku Yakubu V. Alhaji Usman Jauroyel & Ors (2014) LPELR 22732 (SC), Emmanuel Eke Vs. The State (2011) LPELR SC – 364/2009.

That the evidence of CW1 and the Appellant as to where the Appellant was as at the time of executing the conveyance was not a material contradiction.
Akpabio V. State (1994) 7 NWLR (pt 359) page 635.

On the whole, it was submitted that there was no material contradictions in the evidence of the Appellant and his witnesses CW1 and CW2 as they did not derogate from the agreed fact that the Exhibit E was executed by the parties; wherever Appellant was did not affect the material essence of their evidence on Exhibit ‘E’ showing that it was duly

executed by the parties without any form of dures or misrepresentation.

That the trial Court should be reversed in his order disregarding their evidence and to resolve this issue in favour of the Appellant. Ultimately, this Court has been urged to allow the appeal and set aside the order of the trial Court which nullified the Deed of conveyance (Exhibit E) by the parties herein and to hold that the Appellant is lawfully vested with title to the parcel of land measuring 4452.717sq. metres and as described in the Exhibit E and evidenced by the certificate of occupancy and to grant the reliefs as sought at the trial Court per the notice of Appeal filed on 11th October, 2018.

On the sanctity of the Exhibit E, the Respondent by his Issue 3 argued that it failed to meet the expectation of a valid contract.

That there was no consensus ad idem as to the size of the land conveyed. That civil matters are decided on the balance of probabilities under Section 134 of the Evidence Act and that we should so hold. Onuminya V. Access Bank Plc (2015) 9 NWLR pt 1463, p. 159 at 162, referred.

It was also argued that “the absence of genuiness of consent

by the parties to the terms of the contract vitiates or invalidates the contract.” Whatever that means.

That the Court should take into consideration, the facts and surrounding circumstances of the case as enjoined by Adel Boshali V. Allied Commercial Exporters Ltd (1961) ALL NLR 487 @ 490 and Section 125 of the Evidence Act 2011.

That the continuous disagreement as early as 2007/2008 shows that there was no consensus on the size of the land sold and that the Respondent believed at the time of the Exhibit E that he sold 100ft by 100ft.

That as far back as 2007, the respondent prevented the fencing of 4 plots of land and insisted that the Appellant do not exceed fencing one plot of land.

That in addition having testified unchallenged that the Appellant offered additional N600,000 which he turned down telling him not to be greedy and indeed even more money offer was turned turn. That both the Appellants and her witnesses admitted not being at the site when the land in dispute was surveyed.

That the certificate of occupancy was taken in anticipation of the suit that triggered this appeal, when the Appellant knew of the

on-going complaints that had not been resolved; that the certificate of occupancy cannot stand in the face of the unenforceable Exhibit ‘E’ as it was the foundation as more so that the objection to Exhibit ‘E’ was persistent and consistent. That the prima facie proof of ownership vide the certificate had been rebutted.

On whether the Rules of pleadings and fair hearing had been breached by the Judge’s upholding the Defence of illiteracy and non-compliance with the statute of fraud; it was argued that there was no such breach as the Respondent had so pleaded the statute at paragraph 9 of his statement of Defence and paragraph 8 of the counter claim.
That the plea of non est factum availed the Respondent herein.

That the particulars of fraud and non-consent and the fact of illiteracy were duly pleaded such that there was neither the violation of the rules of pleadings nor the breach of the right of fair hearing.

On the Issue 5, whether there was contradiction in the testimony of the Appellant and CW1 and CW2, it was argued that there was, as complainant said CW1 was present at the signing of Exhibit

‘E’ whereas, the C1 denied the claim of his being present at the signing.

That it was a material contradiction that tainted their credibility as all of them or one of them was untruthful.

That Section 223 (9) of the Evidence Act intended to show case the credibility, veracity and accuracy of a witness, thus casting doubt on all that those witnesses said.

That CW2 who said he was a witness to the transaction does not know the size of the land that the Appellant took them or showed them.
Even the Appellant admitted in cross-examination that she was not present when the surveyor surveyed the land and the surveyor was not called to give evidence.

Learned Counsel then asked the question thus;
“Who then showed the surveyor the land which he surveyed and got the size and dimension stated in the survey plan and Deed i.e Exhibit ‘E’?”

Having admitted in cross-examination that the Respondent gave her a copy of the survey plan of the land she bought, and yet she resurveyed it in her name and yet could not produce the said copy any more, smarks of withholding of evidence, contended the respondent’s counsel.

That cases are decided based upon the probative value of the witnesses and not on their number.
Abisi Vs. Ekwealor (1993) NWLR (pt. 302) 643 was referred to.

That the Learned trial Judge was right in not relying on the evidence of the Appellant and her witnesses as relating the size of the of the plot of land sold, considering the dispute as to the size and the character of their contradictory evidence.

In urging that this issue be resolved in favour of the Respondent, the Learned Counsel referred us to Igbojimadu Vs. Ibeabuchi (1998) 1 NWLR (pt 533) 179 at 193, paragraphs A-B wherein the Court stated “…. but the assessment to be made by the Court will be based on the fact that evidence which bears the hall marks of contradictions or conflicts cannot be relied on…”

RESOLUTION OF THE ISSUES
Before I proceed, I should state that the Appellant had sought to raise an objection to the Amended Respondent’s Brief of Argument filed on 30th March, 2020 as being filed in abuse of Court process in that it was an attempt to have a second bite at the cherry in that it responded largely to the Appellant’s

Reply Brief of Argument filed before the instant.

I should state right away that the Respondent’s Amended Brief of Argument was filed pursuant to the leave granted by this Court on the 10th June, 2020 to regularize the Brief of 30-3-2020.

It is pursuant thereto that the Appellant’s Reply Brief of Argument filed on 8-6-2020 was deemed on the said 10-6-2020.

The presumption of regularity and due compliance inures in its favour; it is not an abuse of Court process.

In any case, having filed a Reply Brief, what ever irregularity had been waived, even if there was no Court order to so file the Amended Respondent’s Brief.
I shall proceed.

From the galaxy of the 6 (six) number of intertwined issues that were argued in admixture by the respective parties, I can decipher 3 salient Issues, which I think will be determinant of this appeal.
They are viz;
1. Was fraud, deceit or misrepresentation established in the execution of Exhibit ‘E’ i.e Deed of conveyance in this matter.
2. Did the Respondent prove illiteracy in the subject matter of this appeal to warrant the invocation of the illiterates

protection law of Delta State.
3. Is the Exhibit ‘E’, Deed of conveyance void or voidable in the circumstances of this case on Appeal.
I shall resolve Issues 1 and 2 together.

ISSUES ONE AND TWO
The Appellant had argued that there was not, in the slightest, the evidence of fraud, deceit or misrepresentation established against the transaction for the purchase of the land in dispute let alone the Deed of Conveyance Exhibit ‘E’ as signed/executed by the parties herein.

The Respondent does not deny signing the Deed of conveyance in question, but alleges fraud, deceit and misrepresentation on the part of the Appellant; since contracts between parties are sacrosanct, the law (parties) presumes their validity unless proven otherwise.
This is to ensure and protect the rights of persons to freely enter into agreements and exercise to their free will of choice. It is not for the Courts to enter for or write agreements for parties or read into their consensual pacts any terms of any kind except those that are by law, to be implied.
It is also in this philosophy, that the Evidence Act, 2011, Section 169 thereof

stipulates thus:
“When one person has by his declaration, act or omission intentionally caused or permitted another person to believe a thing to be true, and to act upon such belief, neither he nor his representative in interest shall be allowed in any proceedings between himself and such person or such person’s representative in interest to deny the truth of that thing.”
Equity will come in though to obviate this evidential statement of the law by allowing the successful plea of fraud, deceit, misrepresentation etc, even against the succinct position of the law that the best evidence when a thing has been reduced into writing is the document itself, except where a vitiating element can be established to vary or alter such a document.
Order 15 Rule 3 Sub-rule 1 of the Delta State High Court procedure Rules 2009 provides mandatorily that the equitable Defences of fraud, deceit, misrepresentation, mistake and the allied defences shall be pleaded specifically and their particulars given.
This Defences were pleaded no doubt by the paragraphs 5 (a) (b) (c) (d) (f) e and 6, 7, 8 and 9 of the Statement of Defence and statement

on oath of the respondent who said he was an illiterate and was tricked and deceived into signing Exhibit ‘E’ – (the Deed of conveyance).
However, no particulars of the act of tricking or deception which may loosely be referable to misrepresentation or fraud were supplied. It was not for the trial Court to, suo motu, supply the particulars of the fraud, trick or deceit and misrepresentation that will vitiate the Exhibit ‘E’ which was in law, the presumed intention of the parties.
Nwadike Vs. Ibekwe (1987) 4 NWLR pt 67, page 718; Abacha Vs. Fawehinmi (2000) 6 NWLR (pt 660) 2 NWLR (pt 6) 187.
That it was peremptorily incumbent on the Respondent to give the particulars of the fraud or deceit or misrepresentation alleged, is re-enforced by the fact that the word “shall” is a command language; It evokes compulsion and mandate. The host of authorities cited by the Appellant in that regard including Oyegun Vs. Nzeribe (2010) 7 NWLR (pt 1197) 577 have established this trite position of the law.

ISSUE TWO
Did the Respondent prove illiteracy in the Execution of Exhibit ‘E’.

The Appellant was entitled to rely on the fact of due execution of Exhibit ‘E’, the Deed of conveyance and the presumption of regularity that annures in her favour by virtue of Section of the Evidence Act, 2011 then applicable.

The Respondent claimed illiteracy on the grounds that he did not understand the technical language used in the Deed of conveyance Exhibit ‘E’ as square metres was the unit of measurement used as against square feet which he said he was familiar with.

The plaintiff also contended that he did not understand the language and content of the Exhibit ‘E’ because he did not go to school and could speak only pigeon English and Ibo, adding that he can sign, though cannot write in English language.

I have perused the submissions of both sides on this Issue and think that the submission by the Respondent is misplaced for the following reasons:
Illiteracy is not established by the mere assertion or credibility test of a witness but by the evaluation of the facts of the case, the surrounding facts and the specific nature of the transaction in question.
That the Respondent did not go to school or speak

no queens English does not necessarily make him an illiterate. In the circumstances of this case, there was evidence that the respondent is a real estate dealer. He admitted same and has been involved in estate business and has a manager whom he (Respondent) stated in cross examination that the said manager works for him but he personally runs his business. Is it such a professional that would be taken as an illiterate in estate business? I do not think so.
What is more, the Respondent tendered two Exhibits purporting to be Deeds of conveyance or Agreements in respect of lands in his Estate sold by him; can such a person be an illiterate in the use of the language and purport and prize of property sold and the nature of Document to be signed? The content of such document should not be an issue to such a land investor and business magnate.
Hard, as a surmise, I cannot find the usage of square metre as the unit of dimension in the Deed of conveyance any new or strange thing that would warrant the setting up of the Defence illiteracy. The survey regulations cap Section 13 Laws of Delta State specifically provides mandatorily for the specification of

survey plans of plots to be expressed in square metres or square hectres.
That is the law applicable. It is not a new issue or question of law. The facts though not pleaded but evidence was led and addresses made thereon the size expressed in square metres as against being in the Emperial unit of feet and inches – as desired by the other hand subsequent. Section 31 of the Survey Regulations, made pursuant to the Delta State survey Law provides in part iv, 31 as follows:
31 “The original plan of a survey shall show the following information;
i) The area of each plot to the following accuracy
ii) Building lots, and plot under 0.81 hectares … in square metres to the 2nd decimal
iii) Plots from 0.81 to 4.05 hectares in Hectres, to the 2nd decimal
iv) Over 4.05 hectres to 40.50 hectares … in hectres, to the 2nd decimal.
v) Over 40.5 hectares to 404.70 hectares … in hectres to the 1st decimal
vi) Over 40.70 hectares .. to the nearest hectares.
The Plaintiff/Appellant also complained about the land being 4 (four) plots as against one plot.
The documents of conveyance, Exhibit

‘E’ and its certificate of occupancy did not allude to 4 plots but to a piece or parcel of land of the dimension claimed. So whether the land was seen and called as one (1) or 4 (four) plots, this was in my view not material. What is material is that the piece or parcel of land as an entity was of the dimension or size claimed.
The Expression of same in “metres” as one in Exhibit “E” in compliance with the law, is not an act of deceit, trick, fraud or misrepresentation such that the Respondent will claim ignorance of its mandatory usage by the law of Delta State applicable. The law binds all. No benefit can be conferred on whoever is uncomfortable with it and against compliance duly made.
The Respondent cannot claim not to understand the purport and effect of the document (Exhibit ‘E’) which he signed.
I would think that it was an early change of mind when he felt the consideration of N200,000 paid was inadequate for the plot or parcel of land covered by Exhibit ‘E’. All the arguments as to not agreeing to an offer of an additional money for the land to cover 4 plots is of no

consequence as the Exhibit ‘E’ relates not to 4 plots of land of a particular dimension but simply to a unit or plot of land of the specified dimension. It is a piece or parcel.
Baffling is the fact that the Respondent who had led evidence in cross-examination as to the existence of the original plan of the land in dispute which he said he gave to the Respondent but that respondent had proceeded and produced the Exhibit ‘E’ in his name and registered it for the certificate of occupancy could not tender his own counterpart or give notice to the Appellant to produce it or even apply for the joinder of the Delta State Ministry of Lands and Survey, Urban Planning/Government of Delta State and to issue them with the Notice to produce the said original copy that must be with them. It is this alone that would have shown if the plot was expressed as one plot of land and in what unit of measurement in dimension or in feet. He did not tender a plan or conveyance in feet as none existed.
That not done, the Appellant was right in my contrite view when he submitted that this amounted to the withholding of evidence.

By Section 167 (d) of the Evidence Act, Evidence which could be produced but was not produced and shown to be in possession or within the power of a person, it shall be presumed that if such evidence were produced it will be unfavourable to him.
The common cause of business must be presumed under Section 167 (c) of the Evidence Act.
The withholding of evidence in the circumstances demonstrated herein constitutes such circumstances that the claim to illiteracy of the Respondent is suspect.
The fact of appending an illiterate jurat in some documents as those tendered by the Respondent is not proof of illiteracy, as the circumstances of those documents were not testified to in this case.
Documents cannot be relevant where they are not related to same case or between same parties or their privies. They cannot be superimposed to arrive at a decision in another case. The common course of business of buying and selling land since 2006 as has shown a custom well known to the Respondent testified to by the Respondent.
The Respondent had not claimed that he signed the Document – Exhibit ‘E’ by mistake or by any undue influence, although the

Appellant testified that she bought wine which they all took, it was not testified to that it influenced the execution of the Document either. Sanity is presumed.
His witness, Mr. Paul Eze – His Estate manager also voluntarily signed the Exhibit ‘E’, upon which N200,000 was paid. See page 185 of the Record.
I have studied the Respondent’s Brief of Argument and Note that it draws its energy from the stand of the trial Judge’s view of the evidence rather than on the facts and circumstances as testified to in the trial.
The apt words of scruthon, LJ in Okoli Vs. Morecab Finance (Nig) Ltd (2007) 14 NWLR (pt 1053) 37 thus “it would be dangerous to allow a man over the age of legal infancy to escape from the effect of a document he has after reading it, signed in the absence of an express misrepresentation by the other party of that legal effect.”
There was neither the proof of non est factum nor illiteracy in the facts and circumstances of the Deed of conveyance Exhibit ‘E’.
It is the law that the element of consent must be shown to be completely lacking before the document was

signed, else a mistake as to the contents of a deed or document is not sufficient to avail a plea of non est factum; it is only a mistake as to its nature. That the writing, deed or document may be voidable for fraud, but the contract therein is not void ab initio. Awosile Vs. Sotunbo (1992) NWLR (pt 243) 54 (1992) 6 SCNJ 204 and Chitty on contract vol. 1 23rd Edition par 222 referred.
A person of full age, sense, knowledge and discretion signing a document cannot raise the Defence of non est factum to avoid the validity and legal effect of such a document.
Aisien V. Akinnuli & Anor (2012) LPELR 9700 CA, Bulet Int’l Nig. Ltd & Anor V. Olaniyi & Anor (2017) LPELR 42475; Natsaha Vs. State (2017) LPELR 42359 SC.
The trial Judge was bound by the decision in T. A. O. Wilson A & Anor Vs. A. B. Oshin & Ors (2000) 6 SCNJ 371 at 387; Uwagboe & Anor V. Eriyo & Anor (2017) LPELR 42512 CA cited to him by the Appellant in the final Address filed on 13th April, 2018 as found on page 120-143 of the record of Appeal.
By the Section 85 of the Property and Conveyancing Law Cap. page 17 Laws of Delta State –<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“A conveyance of free hold land to any person without words of limitation, or any equivalent expression, shall pass to the grantee the fee simple or other the whole interest which the grantor had the power to convey in such land, unless a contrary intention appears in the conveyance.”
The conveyance, Exhibit ‘E’ does not show any contrary intention to deprive it of this incident of viability.
The Respondent had feigned illiteracy in writing and reading. However, Section 78 of the Property and Conveyancing Law of Delta State, provides that “subject to the provisions herein after contained with respect to the creation of interest in land by parol –
“a) No interest in land can be created or disposed of except by writing signed by the person creating or conveying the same or by his agent thereunder lawfully authorized in writing or by will, or by operation of law;
b) …
c) ….”
The Respondent on the basis of the above could not have done otherwise than convey in writing as he did. He did not tender any Deed of conveyance written in Pigeon English or Ibo language to show that those were the

only languages he understands and in which he was literate and thus disposed of his property in those or either of those languages only, so as to invalidate a conveyance in English language without a jurat, as herein relating to him.
On the whole, I do not find evidence of or presumption thereof of illiteracy on the part of the Respondent, to warrant the invocation of the illiterates person’s protection law of Delta State.

Supreme’ Court case of ANAEZE V. ANYASO (1993) LPELR – 480 (SC) held thus:” 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 Band 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 Lawai 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…” Per LOKULO-SODIPE, J.C.A. (Pp. 55-59, paras. E-F). (Underlining supplied for emphasis).
I totally find the above as apt and applicable to the circumstances of this appeal.
Upon the myraids of case law authorities including African Produce Sales Co. Ltd Vs. Ayo & Anor (1961) 1 SCNJ 197 at 2001-202; Col. Nicholas Ayanru (Rtd) V. Mandillas Limited (2007) LPELR 670 (SC) the Respondent can not by his oral evidence per se establish his illiteracy; it is a decision to be embarked upon by the Court and to be based on a candid evaluation of all the facts and circumstances of the case.

The Respondent knew the nature and character of the Document he was signing.
Indeed, even if the respondent were an illiterate, the Exhibit ‘E’ prepared by a legal practitioner cannot be caught by the illiterate person protection law to warrant any compliance thereof by the Appellant. At least the Respondent did not say that he never consented to one lawyer acting for the both parties in preparing the Deed of Conveyance.
I find that, that was the situation in the ordinary course of business, as he was entitled to so permit. At least, it is not prohibited; the respondent did not state that he was protesting against the legal practitioner as acting for both of them. That explains his signing same.
In Uwagboe & Anor Vs. Eriyo & Anor (2017) LPELR 42512 (CA), this Court eloquently stated the law thus:
In fact, documents or letters prepared by Legal Practitioners are exempted from the provisions of the Illiterate Protection Law Cap 70 Laws of Bendel State of Nigeria applicable in Edo State. Section 5 of the above mentioned law which puts the matter beyond dispute provides thus:- “The law shall not apply to the

writing of any letter or other document written in the course of his business or at the direction of any person admitted to practice and practicing as a Legal Practitioner in a High Court or the Supreme Court.” In UNION BANK OF NIGERIA PLC VS IDRISU (Supra) Page 121 – 122, it was held thus: “However, Section 4 says that the Illiterate Protection Law shall not apply where a letter or document is written in the course of his business by or at the direction of any person practicing as a Legal Practitioner. Both briefs in this case agree that the firm of D.A. Akintoye & Co., of lIorin is a firm of solicitors though one says that 1st Defendant is the client of the firm of solicitors while the other says that the Plaintiff is the client. They need not quarrel over that. The provision of Section 4 is clear. Once a letter or document is written by or at the direction of a person admitted to practice as a Legal Practitioner, the Illiterates Protection Law is inapplicable to whoever may have instructed the solicitor or his employee.” Consequent upon the foregoing, it is my view that Exhibit “8” enjoys the presumption of regularity ascribed to documents prepared for

illiterates by Legal Practitioners.” Per BADA, J.C.A. (Pp. 15-17, Paras. C-A)(Underlining ours for emphasis).
Indeed, Section 5 of the Delta State, Illiterates Protection Law states as follows:
3…
4…
5. Legal practitioners except from the provision of this law: This law shall not apply to the writing of any letter or other document written in the course of this business by or at the direction of any person admitted to practice and practicing as a legal practitioner in a High Court or the Supreme Court.
The respondent, who had the opportunity of producing the original plan he said he gave to the Appellant (and which Appellant said he could not find) and which he said indicated, a smaller size of land; and who had the opportunity to issue a “Notice to produce” on the Appellant and/or the relevant authority to be written to for a certified copy, cannot, in the face of the withholding of evidence and the surrounding circumstances of this case circumvent the applicability of the Section 5 of the Illiterates Protection Law of Delta State that mandatorily prohibits the application of the requirement of illiterate jurat to

Documents written or prepared by a legal practitioner.
If for the sake of argument (and the Court are not the forum for theoretical postulation or of moot questions), it could be said along with the Respondent that he never authorized or consented to the Exhibit ‘E’ then that would mean that it was not written on his behalf or by his instruction; and in that circumstance, the requirement of an illiterate jurat would, therefore, not be applicable.

ii) That the Respondent had not proved before the trial Court per the evidence and circumstances of the case that he was an illiterate person and in relation to the Execution of the Exhibit ‘E’
iii) That the illiterates protection law of Delta State called in aid was inapplicable and unavailing to the Respondent in relation to Exhibit ‘E’ which was prepared by a legal practitioner.

ISSUE THREE
Is the Exhibit ‘E’ the Deed of conveyance in this case void nor voidable.

In answering this issue, it is crystal clear that a resolution of the 1st Issue and Issue 2 in favour of the Appellant necessarily brings an end to the Issue 3 as having the in-evitable answer that the Exhibit ‘E’ is neither void nor voidable.

There is no such proof, at least.
A valid contract is one in which:
1. The parties are of contractual age
2. There is the identifiable subject of agreement
3. There is a consideration
4. There is a consensus ad idem i.e the meeting of the minds of the parties by their consensual agreement.
The Respondent who did not feel comfortable with the Appellant after the signing of the transaction did not take such action as taking the Appellant to Court for the setting aside of the Deed of Conveyance complained of. Relaxing and abiding the Appellant’s suit, so as to raise a counter claim therein in total denunciation and denial of the Deed of conveyance makes any such defence in the circumstances, a doubtful after thought.
It is in the same thought that reliance was sought to be made on Section 119 of the Evidence Act 2011 which requires that depositions and oaths or declarations on oath by an illiterate shall have an illiterate jurat attested thereto; this was sought to be foisted as a justification for the argument that the Exhibit ‘E’ was invalid for not having an illiterate jurat. The Appellant was right when he

argued that the Exhibit ‘E’ was not a statement on oath, Declaration or Affidavit and was not therefore covered by the Section 119 of the Evidence Act.
The expression of one thing excludes the alternative;
Expressio unius ex exclusio alterius.
In any case, even if the Exhibit ‘E’ were an Affidavit, it can only be accompanied with a jurat after stating the fact of illiteracy or blindness as the case may be.
The Respondent who had not told the Court at least from the record, that he showed the Appellant that he was an illiterate and that yet that fact was not captured or expressed in Exhibit ‘E’, cannot in fairness to the other side and in conscience be made to resile from his undertaking; the document was neither void nor voidable.
Parties are bound by their agreement, and the Court will not read into it or allow either party to read into it what is not therein stated. See Larmie V. Data Processing Maintenance & Services Ltd (2005) 18 NWLR (pt 958) page 438 where Mohammed, JSC (as he then was-later (CJN) stated the law thus:
“The law is trite regarding the bindingness of terms of

agreement on the parties. Where parties enter into agreement in writing they are bound by the terms thereof. This Court and indeed any other Court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad idem. See Baba V. Nigeria Civil Aviation Training Centre, Zaria (1991) 5 NWLR (pt 192) 388; Union Bank of Nigeria Ltd Vs. B. U. Umeh & Sons Ltd (1996) 1 NWLR (pt 426) 565; SCOA (Nig) Ltd V. Bourdex (1990) 3 NWLR (pt 138) 330 and Koiki V. Magnusson (1999) 8 NWLR (pt 615) 492 at 514.”
Documentary evidence being the best form of evidence in proof of a case as, while oral evidence may be subject to forgetfulness, fidgeting and lying, the cold documents stands, until proved otherwise. See Attorney – General of Rivers State Vs. Attorney General, Bayelsa State (2013) 3 NWLR (pt 1340) page 123 at 163.
On the whole, fraud not having been pleaded with particularity or at all nor proved. See Onamade V. ACB Ltd (1997) 1 NWLR (pt 480) 123 and thus not permitted to be inferred, the Exhibit ‘E’ remains the binding contract, same not being void or voidable as between the parties.

The stretch in an argument of the character in a seeming tongue – in cheek that there was “no genuine consent”, is to state that there are categories of ‘consent’. That is to say that Respondent gave a fictitious or deceitful consent, and I know of no such concept other than as the apex Court stated in BPS Construction & Engineering Co. Ltd Vs. F.C.D.A (2017) LPELR 42516 that the elements of binding and enforceable contract, being: (1) offer (2) acceptance (3) intention to create a legal relationship (4)consideration and (5) capacity. See page 31, par C-F, per Kekere – Ekun, JSC.
The contract Exhibit ‘E’, that is the Deed of conveyance is binding as it is neither void nor voidable.
The Courts cannot make agreements or contracts for the parties, and the Courts will not, in law and in equity in the absence of the proof of any vitiating element such as fraud, mistake etc or any illegality, allow itself to inquire into the adequacy of the consideration, in this matter, the N200,000(Two Hundred Thousand naira only) paid by the Appellant; for to do so will be an interference in the freedom of

the parties and descent from the position of an umpire-holding the scale of justice evenly and observing the constitution and Rules of pleadings and proof.

In the same vein, the case supra, upon the afore quoted dictum is a fitting cap to the instant case herein.

I resolve the Issue 3 against the Respondent and in favour of the Appellant.

The Respondent’s learned counsel had sought to argue that there was no challenge to the counter claim of his client. I do think that in the circumstances of this case, where the law ex-facie forbids the application of the illiterates protection law, see Edokpolo & Co. Ltd Vs. Samson Ohenhen & Anor (1994) LPELR – 1016 (SC) Union Bank of Nigeria Plc Vs Idrisu (1999) 7 NWLR (pt 609) page 105 at 121 and these decisions of which were binding on the trial Court and so also on this Court, they must be given their place in our judicial system of stare decisis. It is meant for certainty in the law and consistency to ensure justice.

To do otherwise will constitute an act of judicial impertinence or rascality, and this Court would not wish to be so seen in that light. See Suleiman Vs Commissioner of Police, Plateau State 2006 SC 1; 2007 LRCN.
This is even more so that the contract Exhibit ‘E’ was not proved to be void or voidable.
Accordingly, the appeal succeeds and is allowed.
2. The decision and order of the trial Court granting the

Relief number 1 (one) of the Defendant/counter claimant to wit: it is hereby declared that the Deed of conveyance made between the Defendant and the Claimant in so far as it purports to convey four (4) plots of land to the claimant is of no effect and unenforceable against the Defendant/counter – claimant” is set aside and quashed in the circumstance; the Plaintiff/Appellant’s case at the trial ought to succeed and it succeeds and in the following terms only. That the Plaintiffs/Appellant’s claims numbers 1, 3, 4 to wit:
1. A Declaration that the piece or parcel of land measuring approximately 4452.717 square meters situate, lying and being at Ogbeowelle Quarters Okpanum, Oshimili North Local Government Area, Delta State, Nigeria subject of the Certificate of Occupancy registered as No. 22 at page 22 in Volume Co209 of the Lands Registry Office Asaba, Delta State and the subject of the survey plan No. AOD/DT/312/2006, dated 26:9:2006 drawn by P. O. Odigili, registered surveyor remained vested in and belongs to the Claimant.
3. A Declaration the Defendant has no more legal or equitable interest over the said parcel of land

measuring approximately 4452.717 square meters situate, lying and being at Ogbeowelle Quarters Okpanum, Oshimili North Local Government Area, Delta State, Nigeria having sold, transferred, assigned, conveyed and/or alienated same to the Claimant.
4. A Declaration that the Claimant is entitled to the quiet, peaceful and undisturbed possession of all that parcel of land measuring approximately 4452.717 square meters are granted as they ought to have been done at the trial Court.

For the avoidance of doubt, it is of note that this Court is unable to grant the other reliefs sought relating to declaration for acts of trespass and Damages in respect thereto nor the reliefs relating to orders of perpetual injunction and the invocation of the principle of Quid Quic Plantatur Solo Solo Cedit (ie what is affixed to the land is part of the land) because those reliefs/issues or heads of claims were not seriously or at all canvassed at the trial nor did the trial Court make any specific pronouncement on them.

Those other issues, having not been addressed in the Judgment of the Court appealed against/from, and having not, understandably been made an issue

before this Court, I shall be content with limiting my orders to the validity of Exhibit ‘E’ and Appellant’s entitlement to the land described in the Deed of conveyance, the Exhibit ‘E’, therefore.

Appeal succeeds and in terms of prayers 1, 3 and 4 of the reliefs claimed at the trial Court as reproduced herein before in this Judgment.

The Decision in suit AKU/61/2011 delivered on 30-07-2018 per M. C. Okoh of the Delta State High Court is set aside, therefore.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading in draft the leading judgment prepared by my learned brother, MOHAMMED A. DANJUMA, JCA, in the instant appeal.

This is to state that I am in total agreement with the reasoning and conclusions of his Lordship in respect of the issues for determination of the appeal.

Consequently, I too allow the appeal and abide by the consequential orders made in the leading judgment.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA and I agree with the reasoning and

conclusion of my brother.
I also agree that the appeal is meritorious and it hereby succeeds.
I abide by all other consequential orders in the lead judgment.

Appearances:

Dr. Charles D. Mekwunye with him, John Ochada Esq. & Cyril Onyeogaziri Esq. For Appellant(s)

C. Ikenwe Esq. For Respondent(s)