Alhaji Abubakar Girgiri V. Elf Marketing Nigeria Limited (1996)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
The appellant as plaintiff in Suit No. M/163/94 before the Maiduguri High Court of Borno State brought a suit against the respondent (as defendant) claiming the following reliefs:
“(i) A declaration that the purported deed of sublease is illegal, null and void and of no effect whatsoever.
(ii) In the alternative, a declaration that the tenancy shall be a period of 8 years and shall expire on the 11th June, 1998.
(iii) An order directing the defendant; its agents, servants and privies to vacate the petrol filling station together with the appurtenances thereon on or before the 11th June, 1998.
(iv) An order directing the defendant to put back the petrol filling station in tenatable conditions and to replace all damaged fixtures, fittings and other appliances.
(v) Cost to this suit.
(vi) Further other reliefs.”
The dispute arose in respect of a piece of land along Airport Road, Maiduguri of which the plaintiff was a lessee. The plaintiff granted a sublease of the said land to the defendant. The plaintiff claimed that the demised term in the sublease was for a period of eight years. The defendant claimed it was for a period of 25 years. The plaintiff was paid rents of N400,000.00 less 15% withholding tax of N60,000.00. This was rents for eight years. The plaintiff also pleaded that the sublease agreement between him and the defendant was not interpreted to him either in Hausa or Kanuri and that he could neither read nor write in English in which language the agreement was made. The defendant denied that the plaintiff was an illiterate and that the agreement was not interpreted to him before he signed it.
The parties filed and exchanged pleadings. In the statement of defence filed, the defendant, raised the issue of the lower court’s jurisdiction thus is paragraph 3:
“3 The defendant avers that under the sublease, all disputes arising therefrom shall be referred to a sole arbitrator and where the parties disagree on the choice of an arbitrator, same shall be appointed by a Judge of the High Court where the land is situate. The defendant shall rely on the sublease agreement.
The defendant later filed a notice of preliminary objection wherein it stated that the lower court had no jurisdiction to try plaintiff’s suit arising from a clause the sublease agreement that disputes arising therefrom be referred to an arbitrator. The defendant filed an affidavit in support of the notice of preliminary objection. The plaintiff filed a counter-affidavit and paragraphs 2 and 5 thereof reads –
“That the plaintiff/respondent informed me of the following and I verily believe same to be true;
(a) that the contents of Exhibit ‘A’ attached to the said affidavit were not interpreted to him by the representatives of the defendant/applicant, but that the parties agreed before same was drafted that the lease shall be for only a period of 8 years at the rate of N50,000.00 less 15% withholding tax and that if the parties so desire at the expiration of the tenancy, a further term of tenancy can be agreed upon after a review of the rent payable.
(b) that the representatives of the defendant/applicant did not tell him either in Hausa or Kanuri languages that the jurisdiction of the High Court was ousted or that any matter of dispute shall be referred to only an arbitrator.
(c) that he only carne to know the true meaning and intent of the said Exhibit ‘A’ when he engaged the service of Barrister Joe Kyari Gadzama to read over and interpret to him same.
(d) that he is illiterate as he neither speaks nor writes in English.
(e) that the original certificate of occupancy in the possession of the defendant/applicant is not for the petrol filling station in question but for a different property which is not a petrol filing station and that this fact was only discovered after filing this suit.
- That I am informed by Barrister Joe Kyari Gadzama Esq. of counsel and I verily believe same to be true that
(a) that this honourable court has jurisdiction of (sic) the landed property, the subject matter of this suit as well as over the parties.
(b) that the plaintiff/respondent has a constitutional right to same, particularly over his right of ownership, possession and use of the property in question.
(c) that Exhibit ‘A’ attached to the affidavit in support of the objection is illegal, null and void as it does not conform with the provisions of the Illiterates Protection Law and that same has not been registered as required by law.
(d) that the ouster clause in the said Exhibit cannot prevent this Honourable Court from exercising its original constitutional and statutory jurisdiction in this suit.
(e) that the averment in paragraph 3 of the affidavit is most irrelevant but misconceived.
(f) that the said objection should be overruled in the interest of justice.”
On 1st February, 1995, Jilantikiri J heard arguments on the objection. On 20th March, 1995, the trial Judge delivered his ruling wherein he held that his court has no jurisdiction to hear the plaintiff’s suit. He struck out the suit.
Aggrieved by the decision, the plaintiff filed an appeal against it on two grounds of appeal which read:
“(1) That the decision is against the weight of evidence.
(2) That the trial Judge erred in law when he held that it had no jurisdiction to entertain the suit because of non-compliance with the provisions of the Arbitration and Conciliation Act, 1990 in that no arbitration was made before the suit was filed.
Particulars of Error
(a) The appellant proved at the trial that he is an illiterate and that he neither understands, speaks nor writes in English.
(b) The sublease agreement, a copy of which was tendered in court by the respondent as Exhibit’ A’ was written in English and does not contain any illiterate jurat.
(c) The entire suit challenged the sublease agreement itself.
(d) the High Court has unlimited jurisdiction to entertain the suit as guaranteed by section 236 of the 1979 Constitution of the Federal Republic of Nigeria (as amended).”
In the appellant’s brief filed, only one issue was identified as arising for determination. The said issue reads:-
“Whether it was mandatory upon the appellant (as plaintiff) to have complied with the provisions and terms of the said deed of sublease in view of the assertion and averment, that the appellant is an illiterate and the contents of the said deed have not been read over and interpreted to him from English to Hausa or Kanuri Language which he understands (i.e. whether the preliminary objection was properly upheld.)”
In the respondent’s brief, the issues for determination were stated to be the following
“3.1. Whether considering the facts, circumstances and the law, the appellant is an illiterate and whether such claim if correct could avoid the sub-lease agreement which terms and conditions the parties have been enjoying since 1990.
3.2. Whether or not considering the facts, circumstances and law the learned trial Judge was right when he struck the suit for failure to submit to Arbitration before instituting proceedings before the trial court.”
I think that the issue for determination formulated by the appellant is germane having regard to the grounds of appeal from which it was distilled. In the same way, the second issue formulated by the respondent is also appropriate. It is the same in substance with the issue formulated by the appellant. The first issue formulated by the respondent clearly does not arise since there was no ground of appeal that the lower court wrongly decided the issue whether or not the appellant is an illiterate.
The issue to be decided in this appeal fails within an very narrow compass. The facts in this case highlight the consequences of a failure to comply with the Illiterates Protection Law Cap. 51 Laws of Northern Nigeria, 1963 Section 2 thereof which provides:
“Any person who shall write any letter or document at the request, on behalf, or in the name of any illiterate person shall also write on such letter or other document his own name as the writer thereof and his address; and his so doing shall be equivalent to a statement –
(a) that he was instructed to write such letter or document by the person for whom it purports to have been written and that the letter or document fully and correctly represents his instructions; and
(b) If the letter or document purports to be signed with the signature or mark of the illiterate person, that prior to its being so signed it was read over and explained to the illiterate, person and that the signature or mark was made by such person.”
In Amizu v. Nzeribe (1989) 4 NWLR (Pt. 118) 755 at 768, this court per Kolawole J.C.A. considered the object of the illiterate Protection Law thus:
“The object of the law is to protect all illiterate from possible fraud, strict compliance therewith is obligatory as regards the writer of the document. If the documents create legal rights and the writer benefits thereunder, those benefits are only enforceable by the writer of the document if he complies strictly with the provisions of the law. See S.C.O.A. Zaria v. Okon (1959) 4 F.S.C 220 at 223; U.A.C. of Nigeria Ltd. v. Edems and Ajayi (1958) N.R.N.L.R. 33.”
A copy of the sublease Agreement in question was attached to the affidavit in support of the Notice of preliminary objection. Clause 4 (11) thereof provides:
“All disputes arising from this agreement including that relating to the duration of the further term and the rent for ‘that further term shall be referred to a sole arbitrator mutually appointed by the parties provided that
(a) Where the parries fail to agree on the choice of an arbitrator same shall be appointed by a Judge of the High Court of the State where the land is situated.
(b) The decision of the arbitrator is final.
(e) The Arbitration and Conciliation Act, 1988 shall govern the proceedings in the arbitration.”
Now, the Arbitration and Conciliation Act, Cap 19, Laws of the Federation 1990 Ss.4 and 5 provide:
“4(1) A court before which an action which is the subject of an arbitration agreement is brought shall, if any party so requests not later than when submitting his first statement on the substance of the dispute, order a stay of proceedings and refer the parties to arbitration.
(2) Where an action referred to in subsection (1) of this section has been brought before a court, arbitral proceedings may nevertheless be commenced or continued and an award may be made by the arbitral tribunal while the matter is pending before the court.
5(1) If any party to an arbitration agreement commences any action in any court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration agreement may, at anytime after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay proceedings.
(2) A court to which an application is made under subsection (1) of this Section may, if it is satisfied-
(a) That there is no sufficient reason why the matter should not be referred to arbitration in accordance with arbitration agreement; and
(b) That the applicant was at the time when the action was commenced and still remains ready and willing to do all things necessary to the proper conduct of the arbitration, make an order staying the proceedings.”
There is no doubt that the parties to this appeal had in their sublease agreement agreed that all disputes between them shall be referred to an arbitration. They had also agreed that the decision of the arbitrator shall be final. But the contention of the plaintiff/appellant in this case is that he is not bound by the terms of the Sublease Agreement for the reason that the said agreement was not interpreted to him in the language he understands, he being an illiterate, the plaintiff/appellant did not anywhere state that he could read and write in Hausa or Kanuri Languages. All he said was he could neither read nor write in English. In P.Z. Co. Ltd. v. Mallam Momo Gusau (1962) 1 All NLR 242; (1962) 1 SCNLR 383, The Supreme Court said at page.
“The word “illiterate” as used in the illiterate Protection Act must be construed in the ordinary meaning.
An ‘illiterate’ within the meaning of the Illiterates Protection Act is a person who is unable to read or write in any language i.e. a person who is totally illiterate.
A person who is unable to read or write the language in which a particular document is written but who can read or write in some other language, is not an illiterate within the meaning of Illiterates Protection Act, therefore the appellant, did not come within the protection of that Act.”If the plaintiff/appellant is entitled to the protection afforded under the Illiterate Protection Law on an illiterate, arising from non-compliance with section 2 of the Law, it follows that he would not be bound by all the contents of the Sublease Agreement including the provision dealing with reference to arbitration. To be able to take umbrage under the Law however, it must first be shown that the plaintiff/appellant is an illiterate.
The plaintiff/appellant signed the sublease agreement. However, the fact that the plaintiff/appellant signed the sublease agreement does not show conclusively that he is literate. Indeed, the Illiterates Protection Law recognizes that an illiterate may be able to sign or make a mark on a document. There is no doubt that the sublease agreement does not comply with the provisions of section 2 of the Illiterate Protection Law. There is no jurat on the document indicating the name and address of the writer such as to bring into operation the presumptions of the law stated under the said section 2.
Section 4 of Illiterates Protection Law Cap.51, Laws of Northern Nigeria, 1963 applicable to this case makes the provisions of the Law inapplicable where a legal practitioner prepares a letter or document. But there is nothing in the sublease agreement showing that it was prepared by a Legal Practitioner.
In paragraph 5 of the statement of claim, (which for emphasis) I re-produce, the plaintiff/appellant pleaded.
“The plaintiff avers that a sublease agreement was drawn up by the defendant which was signed by the plaintiff on the 9th March, 1990 without the contents read over and interpreted to him in Hausa or Kanuri. The plaintiff can neither read nor write in English. The said agreement is hereby pleaded and shall be relied upon at the trial of this suit. The defendant is hereby put on notice to produce the original copy of the agreement.”
The defendant joined issues with the plaintiff on the question whether or not the plaintiff is an illiterate. In paragraphs 7 and 8, the defendant pleaded:
“7. The defendant admit paragraph 5 of the statement of claim to the extent that the sublease was drawn up by the parties and signed by the parties on 9/3/90 but denies that the plaintiff is an illiterate or that the agreement was not interpreted and explained to him.
- In further reply to paragraph 5 of the statement of claim the defendant avers that the plaintiff perfectly understood the terms of the sublease and has been reaping the fruits of the said sublease since 1990 and his motive in bringing this action is mala fide,”
Faced with the pleadings of parties, the lower court had the duty to hear evidence in order to determine whether or not the plaintiff/appellant is an illiterate. This was an issue of fact not law; and it was only after that question had been determined before the lower court could decide whether or not the plaintiff/appellant was bound by all the provisions in the sublease agreement. The proper course for the lower court to have adopted was to have conducted a trial on the preliminary issue whether or not the plaintiff/appellant is an illiterate. If the trial judge decided that the plaintiff is not an illiterate, then the plaintiff would not be entitled to the protection of the Illiterates Protection Law and his suit would be liable to be struck out in view of the clause in Ihesub1ease agreement as to reference to arbitration.
This appeal succeeds. The order striking out plaintiff’s suit is set aside. It is ordered that the lower court should try as a preliminary issue the question whether or not the plaintiff/appellant is an illiterate. The suit is to be tried by another Judge of the Borno State High Court. The plaintiff/appellant is entitled to costs which I fix at N1,500.00.
Other Citations: (1996)LCN/0236(CA)
