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.
He declined to make an order for possession on the ground that the defendant on payment of the three months rent, after the expiration of six months as provided in the agreement, had become a tenant of the plaintiff and therefore subject to the provisions of the Recovery of Residential Premises Law, No.4 of 1977 of Bendel State. Against the above decision and order, the defendant appealed to the Court of Appeal on three grounds.
The appeal was allowed only on one of the grounds namely, ‘whether or not the learned trial judge was right in rejecting the plea of non est factum put up by the defendant.’ Agbaje J.C.A., in the lead judgment proceeded to a disquisition of how the trial judge resolved the point in favour of the Plaintiff. In this exercise, he recognised the fact that the trial judge held that Exhibit B (not 3 as typed on the record) was correctly interpreted by the defendants own witness, Mr. Okpere (D.W.I), the Solicitor who prepared it.
The learned Justice of Appeal then quoted a passage in Cheshire and Fifoots Law on Contract 8th Edition p.235 which reads:- ‘The rule applicable to such a case has come to be that the mistaken party will escape liability if he has satisfied the court that the signed instrument is radically different from that which he intended to sign and that his mistake was not due to his carelessness.’ But in this case the trial judge did not so find. He then proceeded to say; I find no such corroboration in this Exhibit 3 (?) was correctly interpreted to the defendant by his 1st defence witness Mr. Okpere before he executed it, his defence of non est factum completely fails.
PAGE| 5 It appears to me from the analysis I have made of the judgment of the learned trial judge that he rejected the plea of non est factum put up by the defendant because (1) Exhibit ‘E’ (sic) was not fundamentally different in character from that which the defendant contemplated.’ With due respect to the learned justice, this is where he misdirected himself. For what the trial judge said was different, namely; ‘In discharging this onus Russell L. J. said in Gallie v. Lee (supra) that ‘generally speaking, reliable corroboration should be required of evidence given by the person asserting a plea of non est factum.’ ‘I find no such corroboration in this case and having regard to my findings above that Exhibit B was correctly interpreted to the defendant by his 1st defence witness Mr. Okpere before he executed it, his defence of non est factum completely fails.’ (italics for emphasis)
Thus, not only that the trial judge found that Exhibit B was correctly interpreted to the defendant by Mr. Okpere, the Solicitor who-prepared it, there was also corroboration by the fact of the admission of the Appellant that it was correctly interpreted to him. Agbaje, J.C.A. stated.” ‘In the face of these authorities I think the proper test to be applied in this case in the determination of the plea of non est factum raised by the defendant is whether Exhibit B sued upon by the plaintiff is essentially different in substance or in kind from the transaction intended by the defendant. It must also be borne in mind that the plea of non est factum requires clear and positive evidence before it can be established.” I entirely agree with him.
But the important and correct point was not what the defendant contemplated but whether Exhibit B was correctly explained to him before he signed it. The trial Court found it was correctly; interpreted on the evidence of the plaintiff, the defendant himself and D.W.1 who was the defendants own witness. But then the learned justice of appeal went further to say; PAGE| 6 ‘It is clear on a perusal of Exhibit B that the word Sale was never used in so far as the transaction which the defendant entered into with the plaintiff was concerned. That the defendant agreed to sell the property to which Exhibit B relates was a matter of implication from the wording of ExhibitB’. But here again, I am of the view that the correct approach is to consider if the defendant understood the substance of Exhibit B before he signed it. In other words, the question is not what the defendant contemplated or wished, but whether he understood the contents of Exhibit B before he signed it.
The defence in this case was not that of duress or mistake. He went on to say that the trial judge was critical of the Solicitor, Okpere, because he found that Exhibit B was badly drafted. Here, I am unable to agree, with him. From that premises he (the learned justice of appeal) proceeded to the conclusion, and in my opinion without justification:- ‘The learned trial judge, having himself criticised, and not in my view without justification, the way Mr. Okpere acted in the drafting of Exhibit B, cannot in my view hold .that the same person could have correctly interpreted what he had badly drafted. It would be better to leave Exhibit B to the court to construe bearing in mind the evidence of the defendant when he executed it.”
But the finding of the trial judge was well supported by the evidence before him. He then quoted portions of the defendants evidence and that of Vincent Okoebor and came to the conclusion that:- ‘The evidence of Vincent Okoebor a witness for the plaintiff, clearly supports the defendants contention that all he bargained for with the plaintiff was a loan on the security of his house and not a sale of the house to the defendant.’ I am of the View that the learned justice of Appeal not only misdirected himself, but confused the evidence, failed to direct himself on; the proper question in the matter and also the considerable burden of proof on the defendant in his plea of non est factum which he failed to discharge.
I have earlier referred to the evidence of the witnesses and that of the defendant. The case of the defendant stands or falls on his own evidence and that of his own witness. On no reasonable interpretation of their evidence can the plea of non est factum succeed. PAGE| 7 The relevant point to consider is the time when the defendant signed the document (exhibit B) whether he understood the contents, not the time when the parties proceeded to the office of the Solicitor, Okpere. The defendant himself under cross-examination admitted when he said, after denying same:- ‘It was also read 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’. To my mind, Exhibit B is incapable of no other reasonable meaning, His own witness 1st D.W. Ambrose Okosu Okpere, whose evidence the trial judge believed, testified that he prepared the agreement according to the terms agreed to by the parties; they spoke both in Ishan and English during the transaction and that he read and interpreted the contents of the document to the defendant before; he signed it after agreeing that the contents were correct.
The witness further explained that the transaction was a conditional sale of the house and land which sale was to become absolute at the expiration of the six months period. The above evidence of this witness substantially supported not only the case and evidence of the plaintiff but also the agreement itself, the relevant portion of which I have earlier reproduced. It is the defendant who pleaded the defence to show that he should have it. The evidence of the defendant was unsatisfactory and inadequate to sustain the plea Not only was his evidence self contradictory, it was also a departure from his pleading. He failed to prove that the agreement was different in content with what he agreed with the plaintiff. Before signing the agreement he knew the effect of the document.
He explained ‘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.’ The trial judge Who saw the witnesses and heard the evidence formed the impression that the defendant was ‘a crook and a person who was determined to deceive and mislead the court’ The contradictions in his evidence, his pleading and the content of the agreement seem to me that the judges impression of him was amply justified.
He raised the plea but failed to discharge that onus. In the result I came to the decision that there was no reasonable or legitimate basis on which the learned justices of appeal could have reversed the decision of the trial judge. PAGE| 8 In conclusion I wish to draw attention to the warning given by Lord Pearson in Saunders v. Anglia Building Society (1970)3 A.E.R. 961 at p.978 where he said:-
‘The danger of giving undue extension to the plea of non est factum. has been pointed out in a number of cases. For instance in Muskham Finance Ltd v. Howard (1963)1 All E.R. 81, at p.83 Donovan, LJ. delivering the judgment of the court said: ‘The plea of non est factum is a plea which must necessarily be kept within narrow limits. Much confusion and uncertainty would result in the field of contract and elsewhere if a man were permitted to try to disown his signature simply by asserting that he did not understand that which he had signed.’
The evidence of the defendant fell short, very far short, of making a clear and, satisfactory defence of non est factum and the trial judge was therefore right in rejecting his plea; For the above reasons, I allowed the Appeal of the plaintiff, set aside the judgment of the Court of Appeal and restored the judgment of the trial Court. IRIKEFE, J.S.C, (Presiding) On 17th September, 1985 this court allowed this appeal and restored in its entirety the judgment of the court of trial (ALUYI, J. as he then was) in the High Court of Bendel State, holden at Ubiaja on 18th January, 1980.
The respondent rested his defence to the case on the plea of non-est-factum. This defence was clearly not available to him on the facts established at the trial. It was thus, an error, for the Court of Appeal to have held that it was. This matter was gone into in depth in the reasons just delivered by my learned brother, COKER, J.S.C. a copy of which had been made available to me in draft. I agree with the said reasons. PAGE| 9 ESO, J.S.C As I consider the legal issue raised by the appeal of importance, I have decided, in agreeing with the reasons for judgment just read by my learned brother, Coker, J.S.C. to add a few observations in the law of ‘non est factum’ in so far as it affects or purports to affect this case.
The facts, as accepted by the learned trial judge were that the respondent who was the defendant before that court entered into an agreement Ex. B, with the purpose of raising money to meet his financial needs. The exhibit reads – ‘Exhibit’8’; THIS AGREEMENT is made the 21st day of November, 1974, BETWEEN AUGUSTINE OLINMHANKHIFO ORIAREGHAN of Idumu-Ighekpen Quarters in Onewa Uromi Trader (Hereinafter called ‘the Purchaser’) of the other part. WHEREAS:-
(1) The Vendor represents to the Purchaser that he is seised in estate in fee simple absolute of a piece of land of the dimensions 50ft by 100 ft. TOGETHER with a fifteen-roomed building thereon and other appurtenances which land is situate and lying in part of Idumu-Okojie Quarters in Ewoyi-Uromi of the Midwestern State of Nigeria and which is generally known as and called No. 5 Okoduwa Street, Idumu-Okojie-Uromi and having common boundaries with premises owned respectively by one Mr. Ifada Ebge one Mr. Christopher of Idumu-Oze-Uromi and one Mr. Irabor Okojie and lying in the said Okoduwa Street. 2. Both the Vendor and purchaser are friends for a long time. 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 sum of N500.00 (Five hundred Naira).
PAGE| 10 4. IT IS hereby further agreed upon by the parties:- (a) That the said sum of N500.00 (Five hundred Naira) shall 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 appurtenance from the purchaser for the said sum of N500 (Five hundred Naira) on or before BUT NOT later than the 22nd May, 1975. NOW THIS AGREEMENT WITNESSES AS FOLLOWS:- In pursuance of this agreement and in consideration of the sum of N500.00 (Five hundred Naira) paid by the purchaser to the Vendor, the Vendor hereby acknowledge the receipt of the said sum of N500.00 for the purchase of the said land Together with the appurtenances thereon, subject to the terms of this agreement.
As witness whereof the Parties have hereunto set their respective hands the day and year first above written. Signed or made his mark and Delivered by the said (Sgd) Vendor AUGUSTINE O. ORIAREGHAN (A.O. ORIAREGHAN) In the presence of::- VINCENT O. OKOEBO (Sgd.) ???? NO. 21, AFUDA ROAD UROMI 21/11/74 It was an agreement purely of sale of land. It talked of ‘Vendor’ and ‘Purchaser.’ It specified the interest which the Purchaser agreed with the Vendor to acquire.
It was an estate in fee simple absolute. It revealed the consideration of N500.00 and the condition of repurchase by the Vendor from the Purchaser. Indeed, it was a simple, clear and unambiguous agreement. PAGE| 11 In respect thereof, the learned trial judge though he formed the view that the agreement was badly drafted, nevertheless held it to be valid. Before then, he had examined the defence of the defendant. He said – ‘In the light of these constraints on the grant of this equitable remedy, it becomes necessary at this stage to examine the defendants defences. One of his defences is that Exhibit B was fraudulently obtained in that the contents as interpreted to him by Vincent Okoebor was that he obtained a loan of N500.00 from the plaintiff, refundable in 6 months, with his house as security for repayment whereas Exhibit B in fact is an agreement of outright sale of his said house to the plaintiff subject to his defendants option to repurchase the house at the end of 6 months from the date of the contract. The defendant testified that it was the plaintiff who took him to Mr. Okpere (a Solicitor) to prepare Exhibit B and that preliminary to this, the plaintiff, Mr. Okpere and Vincent Okoebor conferred together in Hausa which he didnt understand before he was casually asked by the plaintiff whether he owned a house and the number of rooms therein. He testified further that it was when the agreements was being interpreted to him in Ishan language by P.W. 1 Vincent Okoebor that he knew for the first time that his house was included in the agreement that he obtained the loan using his house as security.
It certainly is not true that it was at the interpretation stage that the defendant knew that his house was involved in the agreement. On the contrary, he went prepared to involve his said house in the bargain.’ He went on ‘Vincent Okoebor who acted as the middle man between the defendant and the plaintiff, confirms the defendants story to a certain extent that what the defendant wanted was a loan to be secured with his house and that these were the terms he gave to the plaintiff, at the plaintiffs house before they left for Mr. Okperes Chambers. It would appear that this situation changed by the time the parties got to Mr. Okpere …………………………………………………………………………………………………… ……………………………………………………………………………………………………………….. This is the defendants witness and his evidence is materially in consonance with the plaintiffs case. The defendant himself agreed as I earlier stated that the agreement was read and interpreted to him in Ishan by his friend Vincent Okoebor P.W. 2 that he took a loan of N500.00 from the, plaintiff using his house as security for repayment.’ PAGE| 12 The defendant raised the plea of non est factum, which after full consideration, was rejected by the learned trial judge.
Of his impression of the defendant,the learned trial judge held- ‘The defendant impressed me as a crook and a person who was determined to deceive and mislead the court throughout the proceedings. He posed as an illiterate throughout the proceedings. His signature on Exhibit B is certainly not consistent with the mark or script of an illiterate. Mr. Okpere who prepared Exhibit ‘B’ for him said they spoke in English and Ishan when the defendant came with the plaintiff to prepare the agreement- Exhibit B. Yet in Court here the proceedings had to be interpreted to him as he faked not to understand a word of English. I am not impressed by his evidence, I do not believe him when he denied entering into any verbal tenancy agreement with the plaintiff.” The learned trial judge gave judgment in favour of the plaintiff and the defendant appealed to the Court of Appeal. There, the court, as per Agbaje, J.C.A. dealt with the law dealing with the plea of ‘non est factum’.
Before the learned justice of the Court of Appeal dealt with the decision of the House of Lords in Gallie v. Lee (1971) AC. 1004 L. it disagreed (curiously enough without any concrete foundation) with the learned trial judges clear and unambiguous finding of fact. The learned Justice held – ‘I now come to the crux of the matter in this appeal which is raised in ground (2) of the defendants grounds of appeal.
The pith of the submissions of counsel for both sides was whether or not the learned trial judge was right in rejecting the plea of non est factum put up by the defendant. It was the submission for counsel for the defendant Mr. Felix U. Azeki that on the state of the law and on the evidence before the learned trial judge plea of non est factum put up by the defendant ought to have been up-held. For the plaintiff it was submitted on his behalf by his counsel Mr. J. A. Ojeme that the learned trial judge rightly rejected the defendants plea of non est factum. It therefore behoves me to find out how the learned trial judge resolved the point in favour of the plaintiff and against the defendant. PAGE| 13 First of all, the learned trial judge said: ‘It is beyond question that the agreement Exhibit B was valid even though badly drafted.’
Secondly, the learned trial judge made the point that: ‘Cases of non est factum occur where a person is induced by the false statement of another, to sign a written document containing a contract that is fundamentally different in character from that which he contemplated.
The effect was to render the contract null and void.’ Thirdly, the learned trial judge having referred to the case of FOSTER v. MACKINNON (1869) L.R. 4 C.P. 704 and GALLIE v. LEE (1971) AC. 1004 said: ‘in the present case, the object of the defendant was to raise money to meet his financial needs by using the house as security for the repayment of the loan and which house was to pass to the plaintiff on his failure to refund the loan at the stipulated time.”
Exhibit, B has also achieved that object. According to Cheshire and Fifootss Law on Contract 8th Edition p.235. ‘The rule applicable to such a case has come to be that the mistaken party will escape liability if he has satisfied the court that the signed instrument is radically different from that which he intended to sign and that his mistake was not due to his carelessness.’
In discharging this onus Russel L.J. said in Gallie v. Lee (supra) that ‘generally speaking, reliable corroboration should be required of evidence given by the person asserting a plea of non est factum.’ I find no such corroboration in that Exhibit 3 was correctly interpreted to the defendant by his 1st defence witness Mr. Okpere before he executed it, his defence of non est factum completely fails.’
PAGE| 14 It appears to me from the analysis I have made of the judgment of the learned trial judge that he rejected the plea of non est factum put up by the defendant because (1) Exhibit ‘E’ was not fundamentally different in character from that which the defendant contemplated; for the defendant in any event intended; to raise money on the strength of his house, either by way of security for a loan which will entail the loss of the house if defendant defaults in repaying the loan or by way of out-right sale of the house to begin with together with a condition to repurchase at a future specified time; (2) that there was no corroborative evidence of the defendant that all he bargained for with the plaintiff was a loan of N500.00 for a period of 6 months, his house only being used as a security to secure repayment of the loan and (3) that Exhibit B was correctly interpreted to the defendant by his witness Mr, Okpere, the lawyer who prepared it before the defendant executed it.
I think I must correct the notion created by the learned trial judge that cases of non est factum occur only where the document signed is fundamentally different in character from that which was contemplated.” In allowing the appeal from this judgment of the Court of Appeal, it is my considered view with respect, that the learned Justice of Court of Appeal completely went off tangent both on the facts and the law.
Firstly, the learned trial judge never held that ‘cases of non est factum occur only where the document signed is fundamentally different in character from that which was contemplated. What the learned Judge said, and the learned Justice of the Court of Appeal had earlier quoted them correctly, in the course of his judgment before embarking on an analysis thereof was ‘Cases of non est factum occur where a person is induced by the false statement containing a contract that is fundamentally different in character from that which he contemplated’ The introduction of the word ‘only’ which of course changed the tenor of the decision of the learned trial judge was by the learned Justice of the Court of Appeal in his analysis. Again where the learned trial judge introduced the element of deceit by another to induce a person into signing the document the learned Justice o
Other Citation: (1985) LCN/2248(SC)
