Alimi Lawal. V. G.b Ollivant (Nig.) Ltd (1972)

LawGlobal-Hub Lead Judgment Report

UDO UDOMA, J.S.C. 

This is an appeal against the judgment of the Western State Court of Appeal reversing the judgment and order of the High Court of Ibadan (Aguda, J.) ,wherein the plaintiff, herein appellant, was granted a declaration in terms of his claim against the defendants, now respondents.

The plaintiff instituted in the High Court, Ibadan, suit No. 1/57/68 claiming against the defendants as endorsed on his writ of summons:

“A declaration that the purported registration of the deed of Conveyance dated 2nd February, 1961, and registered as No. 6 at page 6 in Volume 430 of the Register of Deeds kept in the Lands Registry at Ibadan is illegal and null and void and of no effect.”

Pleadings having been ordered were duly filed and delivered. Having regard to the complaints of the appellants in this appeal and since a number of issues would appear to have been settled on the pleadings, for the better appreciation of the issue in controversy between the parties and which went to trial, we consider paragraphs 1 to 7 of the Statement of Claim and paragraphs 4, 6 and 7 of the Statement of Defence of material relevance the purpose of this appeal.

Paragraphs 1 to 7 of the Statement of Claim are in the following terms:

“1. The plaintiff is the person described as Mortgagor in the Deed dated 2nd February, 1971, and registered as No. 6 at page 6 in Volume 430 of the Register of Deeds kept in the Lands Registry at Ibadan and referred to in the Indorsement to the Writ of Summons in this action.

2. The defendants are a company incorporated under the Companies Act and carry on business in Ibadan, among other places. They are parties to the Deed foresaid.
3. The plaintiff is an illiterate person.
4. The plaintiff was, on the date of the execution of the Deed aforesaid, the beneficial owner of the property at Yemetu, Ibadan, measuring 55.497 square yards which was a property purporting to have been affected by the Deed aforesaid.
5. The Deed aforesaid was not executed by the plaintiff in the presence of a Magistrate or Justice of the Peace nor was it subscribed by any Magistrate or Justice of the Peace as witness thereto.
6. The deed aforesaid was registered at the Lands Registry.
7. The plaintiff will contend, at the trial of this action, that such registration is illegal and null and void and of no effect.”

In answer to the averments contained in the Statement of Claim set out above, the defendants pleaded in paragraphs 1, 2, 4, 6 and 7 of their Statement of Defence as follows:

“1. The defendant admits paragraphs 1, 2, 5 and 6 of the plaintiff’s Statement of Claim.

2. The defendant denies paragraphs 3 and 7 of the plaintiff’s Statement of Claim.
3. The defendant avers that the Registrar of Deeds in Ibadan was satisfied that the Mortgage dated the 2nd of February, 1961, complied with the provisions of the Land Instruments Registration Law before he registered the Mortgage as No. 6 at page 6 in Volume 430 of the Lands Registry kept at Ibadan.
4. The defendant also avers that during the course of negotiations to mortgage his property to secure the account of Mr. E.B. Owosho with the defendant the plaintiff claimed that he was literate and at the time of execution of the mortgage also claimed that he was literate.
5. Wherefore the defendant avers that the plaintiff’s claim is frivolous and misconceived, and should be dismissed.”

On 8th November, 1968, the case came up for hearing and Mr. Aderemi, learned counsel for the plaintiff sought and obtained leave to amend paragraph 4 of the Statement of Claim by deleting therefrom the figure “55,497” appearing in line 3 thereof and substituting therefor the figure “554.97”, so that by the amendment, the land involved in the Deed, the subject matter of the action, was alleged to measure 554.97 sq. yards. Thereupon, Chief Okubadejo, learned counsel for the defendants stated that he admitted paragraph 4 of the Statement of Claim as amended. By implication therefore, paragraph 1 of his Statement of Defence was amended to include paragraph 4 of the Statement of Claim.

Thus after the close of pleadings and the amendment and the admission referred to herein, the only live issue of fact, it seems to us, in controversy on the pleadings triable and for determination by the court, was as to whether or not the plaintiff was illiterate as alleged by him in paragraph 3 of his Statement of Claim. For, if he was, and the statutory requirements of the Land Instruments Registration Law (Cap. 56) of the Laws of the Western State were not complied with, then the consequences to flow therefrom would be a matter of law just as the consequences would be equally legal in character if, in fact, the plaintiff was found by the court not to be illiterate. This point was clearly made by Mr. Aderemi at the opening of the case for the plaintiff and before any evidence was called. It was accepted or acquiesced in or at least not dissented from by Chief Okubadejo.

Such was the state of affairs when the trial of the case commenced. Evidence was called by both parties in an endeavour to establish their respective cases. The plaintiff alone testified for himself while three witnesses gave evidence for the defendants. In the course of his testimony, the 2nd witness for the defendants, Miefimiebipa Fiderikumo, who described himself as the Manager, sought unsuccessfully to tender in evidence a Deed of Conveyance purported to have been surrendered to the defendants by the plaintiff. On the objection of the learned counsel for the plaintiff on a number of grounds, the document was rejected and was so marked. Otherwise the trial proceeded to finality. The learned trial Judge took time to consider his judgment. Thereafter he gave judgment for the plaintiff after carefully examining the whole of the evidence in the case. He held that the plaintiff is illiterate and therefore entitled to the declaration which he sought; and accordingly granted him a declaration in terms of the indorsement on his Writ of Summons.

The defendants successfully appealed against the judgment to the Western State Court of Appeal on a number of grounds, of which only two were argued. They were argued together and appeared to have tilted the scales in favour of the defendants. The two grounds were:-

1. The learned trial Judge erred in law and misdirected himself when he rejected admissible evidence which is the conveyance dated 6th May, 1959, and registered as No. 15 at page 15 in Volume 294 Ibadan, whereby the plaintiff derived his title to the property mortgaged to the appellant company and referred to in Exhibit A and thereafter proceeded to hold that ‘there is not before me any evidence that the plaintiff claimed to be literate previous to the execution of Exhibit ‘A’ – the rejected document being the only available evidence by which that fact could be proved.
2. The learned trial Judge erred in law and misdirected himself in misconceiving the issues involved in the action when he held that the only fact in issue was that contained in paragraph 3 of the Statement of Claim, namely: ‘The plaintiff is an illiterate person.’ The fact of illiteracy was not the only fact in issue (if at all it is) and this misconception of the issues involved led to a wrong decision.”

The appeal having succeeded, the judgment and order of the High Court granting the plaintiff the declaration in terms claimed by him were set aside and the claim of the plaintiff was dismissed with costs.

The plaintiff has now appealed against the judgment of the Western State of Court Appeal to this court. There were six grounds of appeal filed, but as argued before us by Chief Williams, learned counsel for the plaintiff, they crystalised into two main grounds, namely,

1. The Western State Court of Appeal erred in law –

(i)In holding that the conveyance dated 6th May, 1969, which was rejected by the learned trial Judge should have been admitted in evidence when-

(a)the Instrument was not pleaded by the defendants in their Statement of Defence; and

(b)it was not shown to be relevant to the only issue under enquiry by the court which was as to whether or not the plaintiff was illiterate since all other averments of fact in the Statement of Claim were admitted.

(ii)in holding that Section 8 of the Land Instrument Registration Law (Cap. 56) is not applicable to an illiterate who understands the purport of the Instrument he was executing at the time of executing the same, when the law does not create such a distinction.

2.Judgment is against the weight of evidence.

In support of these grounds of appeal which were all argued together, Chief Williams contended that the Western State Court of Appeal erred in holding that the learned trial Judge was wrong in law to have rejected the Conveyance of 6th May, 1959, which was neither pleaded by the defendants in their Statement of Defence as forming part of their case nor was it shown to be relevant to the issues in controversy between the parties as settled on the pleadings, the only triable issue for determination being as to whether or not the plaintiff was illiterate and therefore protected by Section 8 of the Land Instruments Registration Law. Learned counsel further submitted that the Western State Court of Appeal was also wrong in law in holding that Section 8 of the law affords no protection to an illiterate person who, having regard to the surrounding circumstances of a particular case, understands the purport of his action at the time of executing the instrument required to be registered under the law, and that this court should so hold.

For the defendants, Mr. Chukura, while conceding that the conveyance which was sought to be tendered in evidence and rejected by the learned trial Judge was not specifically pleaded as such, nonetheless, contended that on the authority of Banque Genevoise De Commerce Et De Credit v. Cla Mar. Di Isola Spetsal Limited (The Spetsi Patriot Case) (1962) 1 All NLR 570, having regard to the averment contained in paragraph 4 of the Statement of Defence, it was indirectly pleaded since the conveyance was referred to in the mortgage deed dated 2nd February, 1961, Exhibit A, and was the basis of the said Mortgage, the subject matter of the action.

The only averment in paragraph 4 of the Statement of Defence to which our attention was drawn and upon which reliance was placed by learned counsel is to the effect that the Registrar of Deeds in Ibadan was satisfied that the mortgage dated 2nd February, 1961, complied with the provisions of the Land Instrument Registration Law before he registered the mortgage as No. 6 at page 6 in volume 430 of the Register of Deeds kept in the Lands Registry at Ibadan. It is difficult to see how these allegations imply that the conveyance dated 6th May, 1959, and registered as No. 15 at page 15 in Volume 294 of the Lands Registry at Ibadan was going to be relied upon at the trial as establishing that the plaintiff is not illiterate, which was the only issue contested in the case. It is, of course, true that in Banque Genevoise De Commerce Et De Credit v. Cla Mar. Di Isola Spetsal Limited (The Spetsi Patriot Case) (supra), there is a statement of principle in the headnote with which we respectfully agree that

“if an agreement in writing is referred to in a pleading it becomes part of the pleading, and it is open to the court to give the agreement its true legal effect irrespective of the terms used in the pleading to indicate such effect.”

The emphasis here, it must be noted, is that the agreement in writing must be referred to in the pleadings, not in any other document pleaded. This statement of the law was taken from a passage in the judgment in which Brett, FJ., as he then was, said at pages 576 and 577:-

“As I have already said, paragraph 2 of the Statement of Defence admits that a Deed of Mortgage was executed, but it goes on to aver that the deed “was rescinded or revoked by an Agreement dated the 26th October, 1961, and made between the plaintiffs, the defendants, the Spetsal Island Shipping Company Limited, the American Trading Company, SA., and Constantin A. Petroutsis.”

Paragraph 3 sets out certain of the terms of the agreement, and paragraph 4 pleads that “since the execution of the agreement the relationship between the parties has been governed by that agreement and that its terms have been complied with.” Paragraph 7 repeats that the Deed of Mortgage has been rescinded and paragraph 12 begins “the defendants will contend at the trial (a) that the agreement of the 26th October, 1961, is a novation of the Mortgage Deed of the 22nd July, 1958, and that it has revoked or rescinded or replaced the said mortgage deed.” As the agreement of the 26th October, 1961, was in writing the reference to it makes it part of the pleadings; Day v. Williams Hill (Park Lane) (1949) 1 KB 632, and it was produced in evidence. The essential part of this pleading is the statement in paragraph 4 that since the agreement was entered into the relationship between the parties has been governed by it. This was enough to make it clear to the plaintiffs that the defendants were relying on the agreement as debarring them from enforcing the mortgage, and in my view it is open to the court to give the agreement its true legal effect, irrespective of whether the word “novation” is used correctly in paragraph 12 or of whether the mortgage can properly be said to have been revoked.”

It is clear that the quoted passage of the judgment is far from being authority for the proposition that a mere reference in a document which is not pleaded would be tantamount to having pleaded the subsequent document and that the court should give effect to such unpleaded document. In paragraph 4 of the Statement of Defence in the case on appeal, there was no averment that the defendants would rely for any purpose whatsoever on the conveyance which was sought to be put in evidence and was rejected. Indeed there was no reference as such to the conveyance at all.

The learned trial Judge in rejecting the document said:

“The only issue of fact being tried before me is as contained in paragraph 3 of the Statement of Claim, namely, the Plaintiff is an illiterate person. The defendants have not shown in any way how the document now being sought to be tendered is relevant to that issue. For this reason only, I would reject the document.”

In dealing with this aspect of the case, the Western State Court of Appeal took the view that it could not have conceived of anything more relevant to the case which was rejected by him. It said that by rejecting the said conveyance, the learned trial Judge was at a disadvantage at determining the real issue in controversy between the parties because he had shut out the only evidence that could have assisted him in formulating the correct issues. The Western State Court of Appeal then went on:-

“For, in effect, the case before the learned trial Judge was to examine whether the Deed of Mortgage, affecting the property of the plaintiff, executed by the plaintiff after he, the plaintiff, had surrendered to the appellants his Title Deed to that very property was one that qualified for registration having regard to Section 8 of the Land Instruments Law. The evidence that would have set out a chain of enquiry in the mind of the Judge was excluded. For what purpose could the plaintiff have surrendered that Title Deed”

The above passage of the judgment of the Western State Court of Appeal constitutes, in our view, a very serious misdirection in law. With respect we do not agree that the case before the learned trial Judge was to examine whether the Deed of Mortgage affecting the property of the plaintiff was one that qualified for registration having regard to Section 8 of the Land Instruments Registration Law. The case as settled on the pleadings which was being tried by the learned trial Judge was as to whether or not the plaintiff was illiterate. It was common ground and, indeed, a matter of law that the mortgage deed, Exhibit A, was a registrable instrument since it falls within the definition of “instrument” under Section 2 of the Land Instruments Registration Law wherein “instrument” is defined, so far as is material to this case, as meaning “a document affecting land in the Region whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee), any right or title to or interest in land in the Region.” Furthermore, the purpose for which the plaintiff had surrendered his title deed to the defendants was an issue of fact requiring proof by evidence and such fact ought to have been specifically pleaded in the Statement of Defence and proved by evidence if it was intended to rely thereon. That fact was never pleaded. In any case, the purpose for the surrendering of his title deed by the plaintiff to the defendants was completely irrelevant to the issue as to whether or not the plaintiff was illiterate. As was rightly observed by the Western State Court of Appeal the determination of the question as to whether or not the plaintiff was illiterate must precede registration. It must be determined first, and the complaint in the whole case was that that issue had not been determined before the document was registered; and the court was called upon to declare the registration null and void as the document had not complied with the requirements of the law.

We are of opinion that the reason which was given by the learned trial Judge in rejecting the conveyance when he held that it was irrelevant to the issue under inquiry by him was cogent and unassailable. It was unanswerable. On the facts and circumstances of this case the document was completely irrelevant to the issue in controversy between the parties. It was therefore inadmissible since the purpose for seeking to tender it in evidence was not to establish that the plaintiff was not illiterate. The contention of the learned counsel for the defendants on this point is therefore untenable. The Western State Court of Appeal was in error in ruling that the document was relevant and admissible.

On the question of illiteracy, learned counsel for the defendants maintained that since the word “illiterate’ is not defined at all in the Law itself or in the Interpretation Act or in the Interpretation Law of the Western State, it was necessary to invoke in aid the Illiterate’s Protection Act (Cap. 83) Laws of the Federation of Nigeria and adopt the construction given to the word by the Federal Supreme Court in Paterson Zochonis & Co. Ltd. v. Mallam Momo Gusau & Anor. In re: Mallam Baba Dan Kantoma (1962) 1 All NLR. 242. According to the head notes in that case it was held that the word ‘illiterate’ must be construed in its ordinary meaning; that an illiterate within the meaning of the Illiterate’s Protection Act is a person who is unable to read or write in any language, that is, a person who is totally illiterate; and that a person who is unable to read or write the language in which a particular document is written but can read and write in some other language, is not an illiterate within the meaning of the Illiterates’ Protection Act.

While we would respectfully agree generally with the view expressed by the Federal Supreme Court in the above case in so far as the Illiterate’s Protection Act is concerned, we do not think that we would be justified to extend it to the frontiers of the Land Instruments Registration Law of the Western State. The Illiterate’s Protection Act, like the Illiterate’s Protection law of the Western State, it seems to us, is distinguishable from the Land Instruments Registration Law. The latter is not made subject to the former. The Illiterate’s Protection Act according to its headnote is described as “the law to provide for the protection of illiterate persons, whereas the Land Instruments Registration Law is described as “the law to consolidate and amend the law relating to the registration of instruments and the filing of judgment affecting land.” Similarly, whereas the Illiterate’s Protection Law is like a very wide umbrella and covers all forms of writing or document written at the request of an illiterate person, the Land Instruments Registration Law is restricted to a well-defined and specialised class of documents called “Instruments.” In the Illiterate’s Protection Law all that is required is that the author of the writing or document should sign it and indicate the reward, if any, received by him for preparing the writing or document, but under the Land Instruments Registration Law, there is a well-defined class of persons or officials designated before whom an instrument for registration must be executed before it is accepted for registration. It is not every writing or document that is registrable. It cannot therefore be said that the requirements or the purposes for the enactment of the Illiterate’s Protection Act or Law are the same as those of the Land Instruments Registration Law. The two statutes must be kept separate and distinct; so too must their functions and purposes.

For the purpose of this case and at the material time the relevant section of the Land Instruments Registration Law is Section 8 which provides as follows:

“No instrument executed in Nigeria after the commencement of this law, the grantor, or one or more of the grantors whereof is illiterate, shall be registered unless it has been executed by such illiterate grantor or grantors in the presence of a Magistrate or Justice of the peace as a witness thereof.”

In dealing with the above provision the Western State Court of Appeal said:

“In determining whether the plaintiff was ‘illiterate’ for the purpose of the Law, it is, in our view, pertinent to the determination thereof whether he understood the purport of his action at the material time, that is, in this case whether at the time of the execution of the Mortgage Deed, which is the subject matter of this action, he clearly understood his action by the surrounding circumstances. This goes to the very root of the matter, and it is more so as it is the illiterate who seeks protection under this Law.”

And further:

“In our view, once the plaintiff understood what he was doing, he was out of the protection of Section 8 of the Law.

We cannot see the necessity for a witness to the signatory of a document having to surrender his own title deed to his property just for the purpose of being such a witness. As we have said, Exhibit A merely put into writing the action of the plaintiff. The purport of the word ‘illiterate’ in Section 8 of the Law is not merely one of form but one of essence. A man may not be able to read or write any language but he may very well understand the purport of his action and intend it. If he is mortgaging his property, and he understands what he is doing, clearly then, he is not an illiterate for the purpose of the Law just because he could neither read nor write. To declare him an illiterate would give him a technical but unjust advantage and assist him to avoid his own intended action. That cannot be the Law.”

With respect, we are left in no doubt whatsoever that the above passages of the judgment of the Western State Court of Appeal are based on over-simplification of the purposes of the provisions of Section 8 of the Law. They are based also on a misapprehension of the intention of the Legislature in providing for Magistrates or Justices of the peace to witness instruments executed by illiterates for the purpose of registration under the law. To give such a wide interpretation as has been given by the Western State Court of Appeal to the provisions of Section 8 of the Law is, in our view, to add a gloss to the statute. We respectfully disagree with the Western State Court of Appeal that the mere understanding of his act or even of the nature thereof by an illiterate who executes an instrument such as is defined under the law in question is sufficient to render the instrument registrable if the same is not witnessed by a magistrate or a Justice of the Peace as the case may be. The witnessing of such an instrument by a Magistrate or a Justice of the peace is, to our mind, a condition precedent, indeed a condition sine qua non to registration. To hold otherwise as has been held by the Western State Court of Appeal, would be to add a new dimension to an existing piece of legislation. If it was the intention of the Legislature that a mere understanding of the instrument or the nature thereof should be sufficient to satisfy the requirements for registration, then nothing could have been simpler than for the Legislature to have said so.

It is a cardinal rule of construction that plain words must be given their plain meanings. The words of Section 8 of the Law are plain enough to which effect must be given. We are satisfied that the criticism of the learned trial Judge for adopting the Concise Oxford Dictionary meaning of “illiterate as “ignorant of letters”, “unlearned”, “unable to read” in the absence of any definition of the word in the Law or in the Interpretation Law (Cap. 51) by the Western State Court of Appeal was not justified. In any case, the issue as to whether or not the plaintiff was illiterate was one of fact which the finding of the learned trial Judge ought not to have been disturbed unless on the balance of probability, there was no credible evidence to support it. In the final passage of his judgment the learned trial Judge said:

“Upon a full consideration of all the facts of this case as have been before me, I have no hesitation in holding that the plaintiff has discharged the onus on him to show and has shown, that he is an illiterate person for purposes of Section 8 of the Land Instruments Registration Law, Cap. 56 and since there is no evidence either oral, or is it patent on the face of Exhibit “A’, that it was executed in the presence of a magistrate or justice of the peace, I must hold that the instrument, Exhibit “A” ought not to have been accepted by the Registrar for registration under the Law by reasons of the provisions of Section 8 of that Law. In the result I must grant the declaration sought. Therefore I hereby declare that the purported registration of the instrument dated 2nd February, 1961 and registered as No. 6 at page 6 Volume 430 of the Register of Deeds kept in the Lands Registry at Ibadan is illegal, null and void.”

It is our view that there was abundance of evidence to support these findings and the conclusion reached by the learned trial Judge. The Western State Court of Appeal was therefore wrong to have reversed them on the ground that “to declare him an illiterate would give him a technical and unjust advantage and assist him to avoid his own intended action.”

This appeal therefore succeeds. It is allowed. The Judgment of the Western State Court of Appeal dated 30th January, 1970 in Appeal No. CAW/36/69 together with the costs awarded therein is hereby set aside. The judgment of the High Court (Aguda, J.), in Suit No. 1/57/68 of 4th December, 1968 granting the plaintiff the declaration sought with 35 guineas costs is restored; and this shall be the judgment of the court.

The plaintiff is entitled to costs in the Western State Court of Appeal and in this court which are assessed and fixed at 50 guineas and 62 guineas respectively. Order accordingly.

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SC.290/1971