Col. Nicholas Ayanru (Rtd) V Mandilas Limited (2007)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

Mr. Ekhator Ayanu who described himself as a professional driver, took out a writ of summons as a plaintiff in the High Court of Justice of Lagos State against Mandilas Limited as the defendant. In the writ of summons dated 17th November, 1980, the plaintiff claimed against the defendant as follows:

“The plaintiff’s claim against the defendant is for a declaration that he (the plaintiff) is not bound by the deed of lease dated 24th August, 1970 registered as No.7 at page 7 in volume 95 of the Lands Registry, Benin City purporting to be made between him and the defendant in respect of the plaintiff’s property situated at 3 Murtala Mohammed Road formerly No.3 Mission Road), Benin City.

Alternatively, the plaintiff “claims a declaration that the said deed of lease is a nullity.”

However, in the plaintiff’s amended statement of claim filed at the trial High Court on 29th April, 1987, by paragraph 15 thereof at pages 124 -125 of the record of appeal, the plaintiff reframed his claim as follows”

“15. The plaintiff avers that he is not bound by the said lease and that it is a nullity. THEREFORE the plaintiff claims a declaration that the said lease dated 24th day of August, 1970 and registered at No.7 at page 7 in volume 95 of the Lands Registry, Benin City is a nullity. ”

The plaintiff’s claim was heard by the trial court on this amended statement of claim and the 4th amended statement of defence of the defendant at pages 129’97131 of the record of the appeal. At the hearing of the case, the plaintiff testified in support of his claim and also called one of his sons who gave evidence as PW2. The defendant on its part called two witnesses one of who merely produced and tendered in evidence the original of the Deed of Lease, exhibit F. The case of the plaintiff at the trial court was that the defendant was his tenant occupying his property No.3 Mission Road, now Murtala Mohammed Road, Benin City. Initially, the lease between the parties was for 4 years at the end of which term it was renewed for a term of 25 years. The plaintiff said he executed this lease by thumb impression with the approval of the Oba of Benin. The certified true copy of this deed of lease was in evidence as exhibit ‘A’. However, in 1970, the plaintiff agreed with the defendant that at the expiration of the then current term of 25 years, the tenancy was to be further extended by 6 years at a yearly rent of ’91a3480 but that the rent for the whole of the term of 6 years being ‘a32,880.00 was to be paid to the plaintiff immediately while the yearly rent for the then current term of 25 years which had 5 years to run, should continue to be paid yearly. Pursuant to this agreement the plaintiff said he was paid the agreed sum of ‘a32,880.00. Although later on he received some documents from the defendant pertaining to the new agreement, he did not bother to read them since he had already been paid. In 1977 however, the plaintiff discovered the existence of Deed of Lease for a term of 93 years purported to have been executed between him and the defendant in the Land Registry. The plaintiff denied executing this document claiming that being an illiterate who could not read nor write in English or any other language, could not have signed the Deed of Lease said to have been executed on 24th August, 1970 and registered in the Land Registry. The plaintiff therefore asked the trial court for a declaration that he was not bound by the Deed of Lease which was in evidence as exhibits B and F, the document being a nullity. The defendant who agreed that it had been dealing with the plaintiff for over 20 years before the action at the trial court over its occupation of the plaintiff’9191s property on Mission Road now Murtala Mohammed Road, Benin City, maintained that the parties agreed to the terms of the Supplementary Lease before it was executed by the parties on 24th August, 1970; that the lease was duly signed by the plaintiff who all along in the course of his dealings with the defendant over the demised property, held out himself as a literate person particularly having regard to the frequent written correspondence received from the plaintiff in respect of the plaintiff’s property, which correspondence were duly signed by him. It was the case of the defendant therefore that the Deed of Lease executed by the parties on 24th August, 1970, is valid and that the plaintiff was bound by it. In his judgment delivered on 22nd September, 1989, Agoro, J., formulated the following two issues for determination:

“(i) Whether the due execution by the plaintiff of the Deed of Lease marked exhibits B and F has been established as required by law.

(ii) If the answer to (i) is in the affirmative, whether the plaintiff is entitled to avoid the said Deed of Lease by raising plea of non est factum or that the plaintiff did not know or understand the nature and contents of the said Deed of Lease.’

After quoting and relying on the provision of sections 99 and 107 of the Evidence Act, the learned trial Judge made the following findings at page 149 of the record:

“I have already stated the plaintiff denied, both on the pleading and in evidence, that he signed the Deed of Lease marked exhibits B and F. But in an effort to prove due execution of the said Deed of Lease by the plaintiff, the learned counsel for the defendant in his final address urged the court to compare the plaintiff’s signatures on exhibits D and ‘G – G3 in relation to the demised premises during the period 1957 to 1970, with the signatures on exhibits B and F which is in dispute in the present action. I have compared the plaintiff’s signature on the Deed of Lease marked exhibit “D” with the signature on exhibits “B “, “F”, “G-G3” and I am satisfied and as a fact that “the signature on exhibits D, G and G1 were written by one and the same person,while the signatures on exhibits “B”, F and G3 were written by another person. That is to say, the plaintiff signed the documents marked exhibits D, G and G1″; while another person signed the documents marked exhibits B “, F, G2 and G3. There is no other legally admissible evidence before this court either by the witness (Mr. Omosigho) or any other person who could confirm that it was the plaintiff who signed exhibits B and F in their presence. The only witness who said he was familiar with the signature of the plaintiff was Mr. Gaoff Ayanru (PW2). His evidence which I accept, was that the signature of the lessor on exhibit B was not that of his father (plaintiff).”

Having thus resolved the main issue in dispute between the parties and after resolving the second alternative issue, the learned trial Judge found in favour of the plaintiff by granting the declaration sought in the following terms:

“In the result of this action based upon the decisions reached on the two issues formulated for determination, it seems to me that the plaintiff is entitled to the declaration that the plaintiff in this suit is not bound by the Deed of Lease date 24th August, 1970 registered as No.7, at page 7 in Volume 95 of the Lands Registry in the office of Benin City, Bendel State, nor is the said Deed of Lease enforceable against the plaintiff in this suit in respect of the plaintiff’s property situate at No.3 Murtala Mohammed Road (formerly No. 3 Mission Road), Benin City, Bendel State of Nigeria.”

On appeal against this judgment by the defendant to the Court of Appeal, Lagos Division although three issues for determination were identified in the appellant’s and respondent’s brief of argument, the main issue was whether on pleadings and evidence at the trial court, it was proved that the plaintiff being illiterate did not sign or execute the Deed of Lease exhibits B and F. In a unanimous judgment of the Court of Appeal delivered on 31st January, 2000, the defendant’s appeal was allowed and the judgment of the trial court was set aside and replaced with an order dismissing the plaintiff’s action for declaration that he did not sign or execute the Deed of Lease dated 24th August, 1970. In coming to this decision, the Court of Appeal exercised its power of re-evaluation of the evidence on record. This further and final appeal to this court, is by the plaintiff who was aggrieved by the judgment of the Court of Appeal. Hence forth in this judgment, I shall refer to the plaintiff as the ‘appellant’ and the defendant as the ‘respondent’. In the brief of argument filed by the appellant who also filed a reply brief of argument, four issues for determination were raised thus: