Victor Ezeugo V. Nelson Ohanyere (1978)
LawGlobal-Hub Lead Judgment Report
OBASEKI, JSC
This appeal is against the judgment of Umezinwa, J., sitting in the High Court, Aba, delivered on the 2nd day of April, 1973, in Suit No. HOW/145/71 in which the plaintiff by his Writ of Summons and Statement of Claim, claimed: “An order of the court setting aside the said Deed of Lease registered as No. 41 at Page 41 in Volume 443 of the Lands Registry in the office at Enugu and for a just and proper Deed embodying the agreement of plaintiff and defendant as contained in their memorandum of the 22nd September, 1965 to be executed by the plaintiff and the defendant.”
After considering the evidence led before him, the learned trial Judge dismissed the claim and found in favour of the defendant in a considered judgment the concluding portion of which reads: “I have carefully examined Exhibit ‘A’ and Exhibit ‘D’ and disagree with the learned counsel for the plaintiff that the two documents differed materially and fundamentally. In any event Exhibit ‘D’ is the binding agreement between the parties and I am satisfied that the contents were read over to the plaintiff and he consented to all the clauses in Exhibit D including Clauses 3(a) and 4. I do not agree with the submission of the learned counsel for the plaintiff that Clause 4 in Exhibit D amounts to a grant in perpetuity. This offensive clause to the plaintiff provides as follows: “The Lessor hereby covenants with the lessee that whenever this instrument is determined by effluxion of time or by breach of a material term as herein provided to grant to the lessee at his request and on payment of all arrears of rent (if any) or on performance of any condition that might have been breached, a tenancy containing the like provisions as herein contained including the present covenant for renewal.” “In the final result, I am of the view that plaintiff has not proved his case against the defendant to entitle him to judgment.
The action is hereby dismissed with costs to the defendant assessed and fixed at N105 i.e. 50 guineas.” The plaintiff/appellant was aggrieved by this decision and brought his appeal to this court. Several grounds were filed in the Notice of Appeal but only three grounds – grounds la, 1b, and 3 were argued before us. These grounds read as follows:
“1 (a) The learned trial Judge misdirected himself in fact and in law in holding that the bone of contention between the parties is as to the execution of Exhibit ‘D’ and that a resolution of that contention one way or the other disposes of the whole case as the correct issue between the parties is as to whether or not Exhibit ‘D’, contains terms other than the true agreement of the parties as embodied in their memorandum Exhibit ‘A’ and that it is that issue that calls for a determination. (b) The learned trial Judge misdirected himself in law in holding that there is no difference between the terms contained in Exhibits “A” and “D” whereas it is largely evident from the documents themselves that clauses 3(a) and 4 in Exhibit “D” make Exhibit “D” materially and fundamentally different from Exhibit ‘A’.
Clause 3(a) in Exhibit ‘D’ destroys the whole purpose of the agreement between the parties and Clause 4 in the said Exhibit “D” not only deprives the plaintiff/appellant of his family land of radical benefit he contracted for, but also deprives him of his family land by turning the agreement into a perpetually renewable lease. 3. That Clauses 3(a) and 4 in Exhibit “D” make it materially and fundamentally different from the true Agreement of the parties as contained in their memorandum dated 22nd September, 1965 Exhibit “A” and as such the plaintiff/appellant is ex debito justiciae entitled to relief in terms of his claim. The learned trial Judge was therefore in error in dismissing the plaintiff’s/appellant’s claim.”
Mr. G. R. I. Egonu who appeared as counsel for the appellant argued all the above grounds together, the substance of his complaint being that two clauses, clause 3(a) and clause 4 in the Deed, Exhibit D did not form part of the agreement Exhibit A from which Exhibit D, the Deed of Lease, was drawn up by their solicitor. These two clauses, counsel submitted, substantially altered the intention of the plaintiff/appellant, if not both parties, when the agreement Exhibit A was entered into. He contended that the two clauses – clause 3(a) and clause 4 were added without the consent, instruction agreement and or concurrence of plaintiff/appellant and in terms the offending clauses read: “3. (a) That the lessee may use the demised land for any purpose he likes 4. The lessor hereby covenants with the lessee that whenever this instrument is determined by effluxion of time or by breach of a material term as herein provided to grant to the lessee, at his request, and on payment of all arrears of rent (if any) or performance of any condition that might have been breached, a tenancy containing the like provisions as herein contained including the present covenant for renewal.” He conceded that Exhibit D was executed by the plaintiff/appellant but contended that though he had his eyes wide open, he did not appreciate the full legal effect of the contents of the deed. He observed that this failure to train his analytical mind on the contents of the Deed before signing it (execution), arose out of the implicit trust and confidence that he reposed in the defendant/respondent. He contended that the respondent’s representation to the appellant, that the Deed of Lease, Exhibit D reflected only the terms agreed on as reflected in Exhibit A, took his mind off the contents of the deed before signing. He stressed the fact that it was not until long after execution when he saw the Deed again that he came to realise that he had set his hands to two of the terms that were never discussed, let alone agreed on.
Learned counsel also submitted that a mistake of fact had occurred and this was enough ground to support a plea of non est factum to set aside the Deed or rectify the terms of the Deed. He finally submitted that it was the learned trial Judge’s erroneous view of the effect of the two offending clauses that earned them his order of dismissal. He contended that contrary to the learned trial Judge’s view that the two documents did not differ materially and fundamentally, the two offending clauses in Exhibit D already referred to above altered the character of the agreement in Exhibit D to make it quite different from the agreement in Exhibit A. In reply, Mr. R. A. B. Abasi, learned counsel for the respondent submitted that the plea of non est factum was not available to the appellant both on his pleadings and the evidence. He drew the attention of court to the evidence of the appellant’s witness (P.W.3) which confirms the respondent’s contention that the Deed of Lease Exhibit D correctly reflects the agreement of the parties.
Finally, he contended that clauses 3(a) and 4 in Exhibit D which are complained of did not alter the character of that document to make the transaction different from that contemplated by the parties. We have ourselves examined the documents Exhibit A and Exhibit D. We observe that Exhibit A is headed “Agreement”. The first paragraph is a declaration that appellant is owner of the property and that he on behalf of himself, his heirs or successors leased the property as from that day 29th September, 1965 for a period of 99 years to the respondent and his heir or heirs. The next paragraph is the agreement by the parties as to the annual rent payable. It was fixed at £20 or an award of scholarship in the college every 5 years. Then came an acknowledgment by the appellant of payment of £200 to cover ten years rent in advance by the respondent – a payment made before the signing of the agreement. Thereafter it was agreed that the appellant should refund all expenses to the respondent, should his title be faulted or found defective. The agreement was concluded by a renewal clause which reads: “At the expiration of the 99 years, renewal of this lease will be on the same term as this without any change whatsoever, and so on.” This agreement was in effect a lease for 99 years from 29th September, 1965.
An examination of Exhibit D shows that it was a Deed of Lease for a term of 99 years from the 1st of December, 1966 in respect of a parcel of land measuring about 55.48 acres and delineated on plan No. VE/29/65 granted in consideration of the sum of £200, ten years rent paid in advance and the annual rent of £20. The annual rent stipulated is the same as in Exhibit A, but the first payment after the payment of the £200 rent fell due on 31st December, 1976. The absence of any complaint as to the date of commencement of the term of 99 years stipulated in Exhibit D is not without significance. The impression arising from comparison of the two documents is that Exhibit D contains substantially the terms spelt out in Exhibit A with minor variation as could be seen above. The main question raised before us is whether the appellant can be heard to say that Exhibit D is not his Deed and avoid it. Before dealing with the submissions of counsel, it is desirable to set down the facts of the case in their true perspective.
Pleadings were, on the order of the court, filed and duly delivered; and the relevant facts pleaded by the plaintiff/appellant in his Statement of Claim are contained in paragraphs 3, 5 and 6. They read as follows: “3. On the 22nd September, 1965, the plaintiff and the defendant signed a memorandum setting out the terms of the lease and particularly the development to be effected on the aforesaid land, and the defendant undertook to engross the said terms in a Deed for execution by the plaintiff and the defendant.
5. Some months later, the defendant produced to the plaintiff at Oguta three copies of a Deed and alleged to the defendant that the Deed embodied exactly the terms agreed by both the plaintiff and the defendant as contained in the aforesaid memorandum of the 22nd September, 1965. The defendant requested the plaintiff to execute the three copies of the Deed. 6. The plaintiff could not and did not appreciate the contents of the Deed but relying on what the defendant had told him as stated herein above, the plaintiff executed the deed.”
The defendant/respondent in his Statement of Defence admitted the execution of the agreement and the Deed of Lease but in circumstances different from those set out by the plaintiff/appellant in his Statement of Claim. In particular, paragraphs 7, 9, 10 and 12 read: “7. The defendant denies paragraph 3 of the Statement of Claim. In further reply thereof the defendant will say that the memorandum mentioned in paragraph 3 of the Statement of Claim did not contain and did not state all the terms or covenants of the agreement between the plaintiff and the defendant.
This memorandum was not a final agreement and was not intended to be so. The memorandum was prepared before both the defendant and the plaintiff consulted and gave final instructions to a Solicitor, Eze Nwauwa Esq. 9. The Deed of Lease dated the 3rd of December, 1965, prepared by the solicitor, in accordance with the terms of the agreement between the defendant and the plaintiff and embodying the exact and accurate instructions of the defendant and the plaintiff to the said solicitor, Eze Nwauwa, Esq. was delivered to the plaintiff and the defendant in the solicitor’s Chambers at Enugu on the same 3rd of December, 1965 after the said solicitor had read same over to the defendant and the plaintiff and their witnesses and both the defendant and the plaintiff confirmed the contents to be correct and in accordance with their instructions and intention. Both the defendant and the plaintiff themselves read over the Deed of Lease. Neither the defendant nor the plaintiff objected to any term or terms therein contained. 10. On the same 3rd day of December, 1965, the defendant and the plaintiff together with their witnesses, took the Deed of Lease to the Justice of the Peace, Mr. E. O. Emelike at the Divisional Office, Enugu for execution.
12. The Justice of the Peace then proceeded to read the Deed of Lease aloud to the hearing and understanding of the defendant and the plaintiff and the witnesses. Neither the defendant nor the plaintiff raised any objection to any term of the deed. Thereafter the Justice of the Peace asked the plaintiff to sign the deed. The plaintiff signed and his witness signed. Then the defendant signed and his witness signed. The Justice of the Peace signed last.” The issue for trial raised on the pleadings was therefore confined within very narrow limits. It was whether the plaintiff/appellant was aware or presumed to be aware of the two terms – clauses 3(a) and 4 of the Deed of Lease before or at the time of execution.
After hearing evidence from the plaintiff, plaintiff’s two witnesses and the defendant and one witness, the learned trial Judge in a considered judgment observed: “From the conflict in the evidence of the plaintiff and the defendant, it is obvious to me that one of the parties is deliberately trying to mislead the court. I have not the slightest doubt in my mind that it is the plaintiff and his witness who have laboured hard to mislead this court. It is my finding of fact that both the plaintiff and his witness P.W. 3 are literate persons, and that their claims to be illiterate is a mere pretence.
I am satisfied from the evidence before me that late Barrister Nwuwa after preparing the Deed of Conveyance (lease) read same over to the plaintiff and the defendant and they agreed with the contents. I accept the evidence of D.W. 1 that the parties to Exhibit D (Deed of Lease) appeared before him on the 3rd of December, 1965 and executed the instrument before him after assuring him that the contents reflected the true intention of the parties.”
The futility of the plaintiff’s/appellant’s contention that he did not read or know the contents of Exhibit D (Deed of Lease) before he signed must by now have dawned on him and if not before but at least since we drew the attention of his counsel to the part of the testimony of his witness, Joseph Ezeani (who testified as P.W.3) which reads: “I was in my house when plaintiff sent for me to come and witness his signature to Exhibit D. After plaintiff signed, I then signed as his witness. . XXD. By Nsofor: I signed because both plaintiff and defendant told me that they were agreed on the contents of Exhibit D. Both the plaintiff and the defendant signed Exhibit D in my presence.”
We observe that the appellant’s claims are two fold i.e. (1) Cancellation of the Deed; and (2) An order for a new Deed to be drawn up. The only ground put forward to persuade the court to exercise its powers to grant the two orders was the ground of non est factum due to mistake of fact. The concept of non est factum no doubt has found its way into our law from the common law mother country and its development in that country has had a great influence on our own concept of the law.
The law is certain that apart from the absence of valuable consideration, a person is not precluded by the fact that his act in pais is evidenced by deed from averring any ground of avoidance of that act, which he might have asserted if the act had been accomplished by words of mouth or unsealed writing. He is entitled to aver and prove by extrinsic evidence (as has been attempted in this instant case) that he has not given such true, full and free consent to the transaction expressed therein as will render it unimpeachable.
The plea of non est factum or nient son fait is only available where the party sued or suing can show either that there never has been or that there is not existing at the time of the plea any valid execution of the deed on his part. (See Nichols v. Haywood (1545) 1 Dyer 59a; Whelpdale’s case (1604) 5 Co Rep 119a at 119b; 77 English Reports 241; Pigot’s case (1914) Co Rep 26). A person raising the plea of non est factum on the ground of mistake as to contents must have taken such precautions as he reasonably could, and must prove that he took reasonable care as well as proving all the other circumstances necessary to found the relief. The mistake must have been induced by a misrepresentation made whether by words or conduct, by some person, other than the executing party raising the plea; the other person need not be a party himself but a self induced mistake is insufficient. The plea is not available to a person whose mistake was really a mistake as to the legal effect of the document, whether that was his own mistake or that of his adviser (Saunders v. Anglia Building Society (1971) AC 1004 at 1016 per Lord Reid. Powell v. Smith 1872 LR 14 Eq. 85; Tamplin v. James (1880) 15 Ch. D 215 CA; Steward v. kennedy (No.2) (1890) 15 App Cas 108 HL).
On the authorities, the plea of the plaintiff/appellant that he could not and did not appreciate the contents of the deed, in our opinion, cannot be of any assistance to him. His evidence that he did not read the deed before he signed it because of the assurance given by the respondent (if the evidence had been accepted), would not and could not have availed him either.
In the case of Saunders (Executrix of the Estate of Rose Maud Gallie Deceased) v. Anglia Building Society, otherwise referred to as Gallie v. Lee, the fact of which are only slightly at variance with the facts pleaded by the plaintiff/appellant in this case, “Rose Maud Gallie, a widow of 78 who had a leasehold interest in a house gave the deeds to her trusted nephew, intending to make a gift of it to him immediately. She knew that the nephew wished to raise money on the house and that her nephew’s business associate was to collaborate with the nephew in raising money on the house. In June, 1962, L asked her to sign a document. She had broken her glasses and could not read it. She asked what it was and L told her that it was a gift of the house to her nephew. She executed it in that belief and her nephew, witnessed the execution it being part of his arrangement with L that L should raise money on the house and repay it to the nephew by instalments. The document signed was in fact an assignment of the house by her to L for £3000.00. The £3000.00, was never paid nor intended to be paid to her. L having obtained the deeds and a reference as to his reliability from the nephew, mortgaged the house for £2000.00 to a building society, but used the money so raised to pay his debts and defaulted on the mortgage instalments. The building society, sought to obtain possession of the house. Gallie, at the nephew’s instigation, began an action in which she pleaded non est factum against L and the building society and asked for a declaration that the assignment was void and that the title deeds should be delivered to her.”
The Judge held that the plea of non est factum was established but was reversed both in the Court of Appeal and House of Lords. Lord Reid in his judgment at Page 1082 of (1970) 3 WLR said: “The plea cannot be available to any one who was content to sign without taking the trouble to try to find out at least the good effect of the document. Many people do frequently sign document put before them for signature by their solicitors or other trusted advisers without making any enquiry as to their purpose or effect. ………………………. ……………………. Further, the plea cannot be available to a person whose mistake was really a mistake as to the legal effect of the document whether that was his own mistake or that of his advisers. That has always been the law and in this branch of the law, I see no reason for any change.”
PAGE| 9 On the historical origin of the doctrine, Lord Pearson at Page 1099 said: “What is doctrine and should it be radically transformed? As to the early history, the authorities referred to in the judgment of Byles J. in Foster v. Mackinnon (1869) LR 4 CP 704, 711 – 12, (and also referred to in Holdsworth’s History of English Law Vol. 8 pp. 50751) were cited in the argument in this appeal. Having considered them, I think they show that the law relating to the plea of non est factum remained in an undeveloped state until the judgment in Foster v. Mackinnon and the modern development began from that judgment. It was the judgment of the court (Bovill, CJ., Byles Keating and Montague Smith, JJ.), delivered by Byles, J. He said at p. 711: “It seems plain, on principle and on authority that if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forebears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs; then at least if there be no negligence, the signature so obtained is of no force.
And it is invalid merely on the ground of fraud where fraud exists, but on the ground that the mind of the signer did not accompany the signature, in other words, that he never intended to sign and therefore in contemplation of law never did sign, the contract to which his name is appended.” Gallie v. Lee was followed in 1975 in the Court of Appeal in England in the case of United Dominion Trust Ltd. v. Western B. S. Romanay (1976) 2 WLR 64, where it was held that, in considering a plea of non est factum, there is no distinction between carelessly signing a completed document and signing one in blanc.
The contention of the appellant before the learned trial Judge, we may repeat here, was that the signed Exhibit D “blind” i. e. without reading the contents. We may ask what he expected his signature to imply. We have no doubt in our minds that he intended his signature to imply full agreement with everything in the document. If he agreed with the contents, he gave his consent to every clause. On the authority of Gallie v. Lee (supra) followed by United Dominion Trust Ltd. v. Western B. S. Romanay with which we find ourselves in entire agreement, it is clear that the appellant must accept the implications and consequences of his signature to Exhibit D. In this particular case, the Judge’s task was not to discover the intentions of each party, it is to decide what each was reasonably entitled to conclude from the attitude of the other (per Lord Devlin in McCutcheon v. David MacBrayne Ltd. (1964) 1 WLR 125 at 134).
Sentiments command no place in judicial deliberations for if did, our task would be infinitely more difficult and less beneficial to the society. The appellant’s counsel cannot in the circumstances of this case, and having regard to and in the light of the findings of the trial Judge and particularly the testimony of the appellant’s witness, (P1.W.3) who signed Exhibit D as witness to the execution by him, be heard to contend that the appellant did not give his consent to the clauses 3(a) and 4 of the Deed of Lease, Exhibit D.
We find no merit in any of the grounds argued before us. The appeal therefore fails and it is hereby dismissed
Other Citation: (1978) LCN/1988(SC)
