Sylvester D.E. Egbase V Augustine O. Oriareghan (1985)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C. 

On the 17th day of September 1985,1 allowed the Plaintiffs appeal and restored the judgment delivered on 18th January, 1980 by Aluyi, J. in the Bendel State High Court which was reversed by the Court below on 26th January 1983, and I indicated the reasons for my decision will be given today.

The trial judge on the evidence before him found that the defendant due to pressing financial constraint consciously entered into a written agreement, Exhibit B, with the Plaintiff, ‘that warranted his selling his house situate at No.5 Okoduwa Street, Idumu-Okojie, Uromi for a sum N500.00 on the condition that he could repurchase it within 6 months after which period that the sale would become absolute.’ He found that defendant was unable to repurchase the house within the stipulated period. Thereafter, the parties agreed that the defendant could and continued to occupy the premises as Plaintiffs tenant at the rent of N15 monthly.

PAGE| 2 The defendant paid the rent for three months and then ceased to pay, alleging that the transaction between him and the Plaintiff was a pledge of the house for the loan and not the sale of his house. In paragraph 7 of his Statement of Defence, he averred:- ‘The defendant who is an illiterate, told the plaintiff Vincent Okoebor and Barrister Okpere that he wanted the loan for six months using his fifteen-room house, being the only house he has, as a security for the loan.

The defendant admits that he agreed with the plaintiffs suggestion before Barrister Okpere that both (sic) the capital loan given to him.’ His evidence in defence was at variance with his pleading, for he stated follows:- ‘At the time we agreed on the loan and what interest I was to pay on it; there was no discussion whatsoever about the house. When we got to Mr. Okperes house, the plaintiff; the 1st p. w. and Mr. Okpere went to confer outsider. I overheard them discussing in Hausa (sic) (in Hausa) language and that was the day I knew they all understood the Hausa language. On their return; the plaintiff asked me if I own a house and I said I own a house.

The plaintiff asked for the number of rooms in the house and I told him. After this, they reverted to Hausa language again after which Mr. Okpere started preparing the agreement. He then asked me whether I was prepared to refund the amount of N500.00 at the end of six months and I said yes. When Mr. Okpere completed the preparation of the agreement, he told, me that he had finished. Mr. Okpere then asked P. W.I, Vincent Okoebor to read and interprete the agreement to me.

As he read the agreement to me in Ishan language, I came to know for the first time that they included my house in the agreement and that I obtained the loan with my house as security, It was after P.W.I interpreted the agreement to me that I signed it. I could not help signing the agreement because I was in dire need of it and if I refused to sign the agreement as read, I might not get the money I so badly needed. ‘ (italics mine). Later in his evidence in chief, he said:- ‘P.W.I never interpreted the agreement to me to the effect that I sold my house to the plaintiff with the option to repurchase it after six months.

I did not at any time sell my house to the plaintiff. At the expiration of six months, I could not refund the loan. I then went to Mr. Okpere to help me beg the plaintiff to give me a little time more to refund the money.’ Later still, he testified, although this fact was not pleaded, that he refunded the N500.00, to the plaintiff through P..W.1 – Vincent Okoebor in the presence of one Ofonda Balogun.

PAGE| 3 It was never suggested to Vincent Okoebor, P.W.,1, when he gave evidence that defendant refunded the N500.00 through him, or through, any other person. Also, it was not suggested to the Plaintiff that defendant had repaid the loan through P.W.I, nor did he call. Balogun whom he alleged witnessed the payment to P.W.1, He did not say why, he did. not refund the N500.00 direct to the plaintiff or through Mr. Okpere, the Solicitor; who prepared the agreement between him and the plaintiff and Who later prepared the agreement with John Igah for a subsequent loan on the same security of the house.

Under cross-examination, he admitted ‘Exhibit B was read to me but not that I sold my house.- It was also read to me that if I am unable to repay or refund the loan at the expiration of the given time, that the house would become the property of the plaintiff ‘ His own witness, D.W.I, Ambrose Okowu Okpere; recalled that he prepared exhibit B, The defendant, in whose company was the plaintiff, instructed him that he had a parcel of land with a house thereon which he wanted to sell on a conditional basis and that he drafted Exhibit B according to the terms agreed to by the parties.

He was not aware that the defendant was an illiterate person in that they spoke both in English and Ishan during the transaction. He read and explained the contents of the agreement to the defendant before he signed after agreeing that the contents were correct. Paragraphs 3 and 4 of the agreement read as follows:- ‘(3) The Purchaser at the request of the Vendor has agreed to acquire the estate in fee simple absolute of the said land TOGETHER with the appurtenances free from incumbrances, for the N500 (Five hundred naira). (4) IT IS hereby further agreed upon by the parties:- (a) That the said sum of N500 (Five hundred naira) shall be paid for the said land Together with the appurtenances to the Vendor immediately on the execution of this agreement (b) That the Vendor RESERVES the right to purchase the said land together with the appurtenances from the Purchaser for the said sum of N500 (Five hundred naira) on or before But NOT later than the 22nd May 1975.”

The trial judge accepted the plaintiffs evidence and that of the mutual friend, Vincent Okoebor, who acted as middle man between the defendant and the plaintiff. He also accepted the evidence of D.W.I, Okpere; the Solicitor who prepared the agreement, exhibit B. He came to the conclusion as earlier observed, that ‘it was due to the pressing financial constraint of the defendant that warranted the selling of his house to obtain money, with the hope that he would raise money within 6 months to repurchase the house.

PAGE| 4 He could not repurchase the house and so he decided…….to a tale, a fraudulent refuge under the plea of non est factum.’ It is clear from the contradictory evidence of the defendant and the inconsistency of his pleading with his evidence, that the trial judge was justified when he expressed that view.

He found that the defendant failed to lead evidence ‘to prove that from this 2nd loan, the plaintiff was paid off.’ And finally, that the defence of non est factum was not established. Consequently, he entered judgment in favour of the plaintiff and made an order that he was entitled to a statutory right of occupancy of the said house and land claimed in the Amended Statement of Claim.