Vincent O. Awosile V. Chief F.O.D. Sotunbo (1992)

LawGlobal-Hub Lead Judgment Report

A. B. WALI, J.S.C. 

The appellant was the plaintiff in the High Court of Ogun State of Nigeria, in the Shagamu Judicial Division wherein he brought an action against the respondent/defendant, his former son-in-law, claiming as follows:-

“(a) An order setting aside the Deed of Conveyance obtained by FRAUD dated 25th day of June, 1965 registered as No. 1 at page 1 in Volume 867 of the Register of Deeds kept at the Land Registry IBADAN now ABEOKUTA.

(b) An account of Rents collected from all the building on the landed property by the defendant between 1963 and 1976. Payment over to the plaintiff of whatever is found due to him”.

Pleadings were filed and exchanged. Both the appellant and the respondent gave evidence and called witnesses in support of their cases. In a considered judgment by Delano J. (as he then was) he dismissed the appellant’s claims, concluding as follows-

“(a) The claims of the plaintiff in its (sic) entirety fails (sic) and it (sic) is accordingly dismissed.

(b) The counter-claim of the defendant in its entirety also fails and it is accordingly dismissed.

(c) The defendant shall return to the plaintiff the sum of five thousand Naira (N5,000.00) paid to the defendant.”

The learned trial Judge made no order as to costs.

The appellant, being dissatisfied with the judgment handed down by the trial court, appealed against it to the Court of Appeal, lbadan Division. In a considered judgment of the Court of Appeal delivered by Ogundare J.C.A. (as he then was) and to which both Omo, J.C.A. (as he was then) and Onu, J.C.A., subscribed, he dismissed the appeal of the appellant and set aside the order made by the trial court that the respondent should refund to the appellant the sum of N5,000.00.

The fact’s of the appellant’s case simply put are as follows-

The appellant, by purchase in 1953 under Native Law and Custom from ljokun Community became the owner of the parcel of land situate and lying at Shagamu. By a deed of conveyance dated 8th June, 1964 (Exh.’A’) executed between the Ijokun Community on the one part and the appellant on the other part the said parcel of land lying and situate at Orile Ijokun (Sabo) Shagamu was conveyed to the appellant as the purchaser, for a consideration of Forty Nine Pounds and Ten shillings (49.10.0). Later on, the appellant become indebted to the respondent to the tune of 1,600.88.

As a result of the indebtedness, the appellant said, by an oral agreement, he entrusted the collection of rents from the two houses built on the land to the respondent in order to reimburse himself in the sum of 1,600.00 or N3,200.00. Then in 1965 at the suggestion of the respondent, the appellant executed Exhibit “B”, another deed of conveyance in the respondent’s favour for a consideration of N4,800.00 the amount he was at the time indebted to the respondent; as security for the said debt. From that time the respondent continued to collect and receive the rents accruing from the two buildings without rendering any account to the appellant. The appellant also complained that the respondent had by 1969, built five more houses on the land without his permission or consent.

In 1973 the appellant demanded from the respondent a return of his land, the deeds of conveyance (Exhs. “A” and “B”) and for an account of the rents collected, plus payment of any amount found due either way.

There was an attempt by the Akarigbo of Ijebu Remo and his Chiefs to settle the matter which partially succeeded. The appellant thereupon instituted this action claiming the relief contained in his writ of Summons.

The facts of the respondent’s case may briefly be stated thus-

The appellant was the owner of the parcel of land in dispute with two dilapidated mud buildings thereon. In 1965 the appellant sold and conveyed to the respondent the parcel of land plus the two buildings thereon for N4,800.00. The deed of conveyance is Exhibit B. Between 1965 and 1972, not only did the respondent repair and renovate the two dilapidated buildings already on the land, but had erected and completed five additional storey buildings thereon to the knowledge of the appellant.

By the time the dispute arose between the appellant and the respondent the respondent claimed that he had spent over N100,000.00 on improvement to the land. He gave a condition that if the appellant would reimburse him in the sum of N100,000.00 he was prepared to reconvey the land together with improvement thereon to him.

When in 1972 the dispute as to the ownership of the land and the buildings thereon arose between the appellant and the respondent, the former reported the latter to the Akarigbo of Ijebu land as a result of which the Akarigbo and his Chiefs intervened. Resulting from the intervention the respondent said he agreed to reconvey the portion of the land in dispute covered by the two buildings originally erected thereon by the appellant on humanitarian reasons. This was done and the respondent signed a reconveyance of the said portion of land to the appellant. The appellant was not satisfied by this arrangement hence the institution of the present action.

Both parties filed and exchanged briefs. In the appellant’s brief, the following issues were formulated for determination:-

“(i) What is the effect or the legal consequence of the agreement reached between the parties following the reference of the dispute between the parties to His Highness the Akarigbo of Ijebu Remo and his chiefs particularly in relation to the property in dispute.

(ii) In the light of the concurrent findings of fact in the courts below concerning the aforementioned agreement what order or orders should the court have made on the claims before it

(iii) Was the court below correct in applying the provision of Order 3 rule 23 of the Court of Appeal Rules”

For the respondent, the following 4 issues were formulated in the brief filed on his behalf;-

“(i) Can the Plaintiff/Appellant raise the question relating to the effect on the Legal consequences of the agreement reached between the parties concerning the property in dispute following the reference of the dispute between the parties to His Highness the Akarigbo of Ijebu Remo as an issue before the Supreme Court having regard to the concurrent findings of fact in the court below and the Court of Appeal on the validity of Exhibit B in the above matter

(ii) If the answer to question (i) is yes, what is the effect or the Legal consequence of the said agreement referred to in (i) above

(iii) In the light of the various findings of fact of the lower Court set out at page 164 lines 17 to 34 and P.165 lines 1-38 of the records. What order or orders should the Court have made on the claim before it

(iv) Was the Court below correct in applying the provisions of Order 3 Rule 23 of the Court of Appeal Rules

Issues (i) and (ii) in the appellant’s brief cover issues (i) and (ii) of respondent’s brief, while issue (iii) in the appellant’s brief also covers issues (iii) and (iv) of the respondent’s brief. Issues (i) and (ii) were taken together by the appellant in his brief. It was the contention of the appellant in his brief that the respondent by answering the invitation of Akarigbo to appear before him at the instance of the appellant who reported the matter to the Akarigbo, he had by implication, agreed and submitted to the intervention of the paramount Chief of the area, and therefore whatever decision was taken was binding on him. Learned counsel supported this assertion by referring to the acceptance by the respondent of the sum of N5,000 and said his keeping of this sum is consistent only with the performance of the agreement which emerged between the parties after the intervention of the Akarigbo. He therefore further submitted, in the light of the agreement reached before Akarigbo, the respondent has no right to retain the land in dispute and also the sum of N5,000.00.

On the application of Order 3 rule 23 of the Court of Appeal Rules. 1981, learned counsel submitted that the Court of Appeal was wrong in construing it in such a way that it would operate to enable the court deal with an issue which is not on appeal before it.

In reply to the above submissions, learned counsel for the respondent submitted that it is clear from the facts of the case that the parties are not ad idem on the terms of the settlement purported to have been reached before the Akarigbo.

He said it was as a result of this non-consensus that the appellant instituted the present action in the High Court praying that court to declare Exhibit B void on account of fraud and deceit. He contended that since the doctrine of non est factum has been held inapplicable by both the trial court and the Court of Appeal, and that the respondent has been held to be vested with title to the land.By virtue of Exhibit “B” the purported agreement reached between the parties before the Akarigbo has no legal consequence at all.

On the application and interpretation of Order 3 rule 23 of the Court of Appeal Rules 1981, learned counsel submitted that although the respondent did not cross appeal on this issue he had given notice in the respondent’s brief that he would urge the Court of Appeal to correct the patent error on the record. He therefore further submitted that the Court of Appeal is right in applying the provision of Order 3 rule 23 of the Court of Appeal to set aside the trial Court order that the respondent should refund the N5,000.00 paid to him by the appellant.

From the pleadings of both parties, particularly that of the appellant where he averred in paragraph 23 of the Statement of Claim that –

“The plaintiff contends that by fraud and deceit, the defendant unlawfully enriched himself by the said deed of conveyance of 25th June 1965 in consequence of which plaintiff pleads ‘Non Est Factum’ whereof the plaintiff claimed as per his Writ of summons”;

It seems to me that he is no longer basing the relief sought on the agreement purportedly reached before the Akarigbo. There is also nothing in the appellant’s pleadings that he is seeking the enforcement of the purported sum agreed as an arbitration award conducted before a customary tribunal such as the Akarigbo and his other chiefs who participated in the settlement.

In that stance, the determining issue in this appeal is that of non est factum. In paragraph 3, 5, 6, 7, 9,11 and 12 of the Statement of Claim, the appellant averred thus:-

“3. In 1963 the defendant gave cash loan of 600pounds (now N1,200) to the plaintiff. The defendant also gave additional loans of various amounts to the plaintiff between 1963 and 1965 all making a total of 1,600pounds (N3,200).

4. X X X X X X X X
5. The plaintiff entrusted the collection of rents from two houses which he built on the front part of the land to the defendant on an oral agreement that the defendant should reimburse himself in the sum of N3,200.
6. The plaintiff had the conveyance of the landed property executed in his favour on 8th June 1964 through the assistance of the defendant. The deed of conveyance was registered as No.7 at page 7 in Volume 742 of the Land Registry at Ibadan (now Abeokuta).
7. As the outstanding debt remained substantially unliquidated by the plaintiff the defendant urged the plaintiff to secure the debt with plaintiff’s deed of conveyance. The plaintiff handed over the conveyance to the defendant.
8. X X X X. X X X X
9. In 1965 the defendant urged the plaintiff that if either party dies there could be difficulties in recovering the loan and thus the defendant induced the plaintiff to execute deed dated 25th June, 1965 registered as No.1 at page 1 in volume 867 of the Register of Deeds at Ibadan (now Abeokura) purporting the same to be a deed of mortgage of plaintiff’s property.
10. X X X X X X X X
11. In 1972 the plaintiff demanded return of his deed of conveyance and for an account of rents and payment over of any amount found due either way. The defendant said that all rents collected by him were used as profits or interest on the loan. The plaintiff agreed but insisted on having an account.
12. By letter dated 9th May, 1973, the plaintiff’s Solicitor demanded for clarification of the transaction from the defendant when it became apparent that defendant claimed ownership of the houses and landed properties.”

In support of these averments, the appellant testified as follows –

“There was a money transaction between self and the defendant.

The defendant loaned me N5,000.00. He loaned me this amount on about two (2) occasions. The defendant first of all loaned me N1,200.00. He loaned me this money in bits, all totalling 1,600 pounds that is, N3,200.00”.

X X X X .X X X X X

“I bought the land in dispute from Ijokun Community. I got a conveyance in respect of the land. The conveyance was given to the defendant. I gave the conveyance to the defendant because he was my in-law and as a result of the loan he gave to me. This is the conveyance of the land in dispute, I gave to the defendant. Conveyance tendered without any objection and marked Exhibit ‘A’

Since the defendant started collecting the rent of the houses, he has not accounted for the rent he had been collecting. I did ask him to account for these rents but he refused. The two houses on the land are built of cement and blocks and they are storey buildings.”

X X X X X X X XX

“Later things fall apart. The defendant said that as a result of the polygamous marriage contracted by both parties, I should come and execute an agreement in respect of the loan he gave to me. Our relationship was cordial and I executed an agreement for him that I owed him the loan.

“I executed the agreement in the Magistrate Court, Shagamu.

This agreement tendered by Mr. Abudu without objection from Mr. Awoniyi and marked Exhibit ‘B’. The Exhibit was produced by Mr. Awoniyi. I did not sell the land and my houses to him. I only loaned money from the defendant. I did not sell my landed property to him. I cannot imagine how I could sell my landed property consisting of (2) two houses and portion of land for N4,800.00”.

X X X X X X X XX

“I mortgaged my land for the loan I got from the defendant.I claim that the court should declare the conveyance dated June 25th, 1985 null and void and to order the defendant to render account for the rents he collected on my two houses.”

Under cross examination, the appellant further testified as follows:-

“It is a fact that I signed an agreement in the Magistrate Court. It is not an agreement for the sale of my landed property but an agreement to secure the loan”.

X X X X X X X XX

“I signed the document in respect of the loan. I do not know the contents. The defendant came to call me to follow him to make a document in respect of the loan. I do not know if the Magistrate signed the document. I signed the document in the Magistrate’s chambers.”

The cumulative effect of the pieces of evidence supra, leaves no avenue of doubt that the appellant was conscious and aware that he was signing a document affecting his land. The learned trial Judge after reviewing the evidence before him made the following observations –

“To come back to the main issue of non est factum, I hold the view that, in Nigeria the court should not absolutely adhere to the extension to this doctrine by the modern cases in Britain where enlightenment and education have reached its (sic) peak. In Nigeria, a wealthy person is not necessarily enlightened or educated. In Nigeria also, the majority of people involved in land matters, as in this case, are illiterate. In respect of this, it is also my view that this plea which obviously applies when the person sought to be held liable did not in fact sign the document or in certain cases so as to enable a person who in fact signed a document to say that it is not his deed. But definitely, any such extension must be kept within narrow limits if it is not to shake the confidence of those who habitually or rightly rely on signatories when there is no obvious reason to doubt their validity. For this plea to succeed, the burden as said earlier on is on the plaintiff. He is to prove that he did not sign the document. To put it in other words, he has to prove that there is a radical fundamental or serious or very substantial difference between what he signed and what he thought he signed. What amounts to radical difference must be in particular that which goes to the substance of the whole consideration or the root of the matter. (See Lord Hodson in Gallie v. Lee (1971) A.C. 1071)”

He then proceeded to make the following findings –

“In the case under consideration, the plaintiff has not alleged any fraud in the signing of exhibit’ B’ apart from his evidence that the agreement he signed was to secure a loan and that the clerk did not read it over to him”.

X X X X X X X XX

“I believe that the contents of exhibit ‘B’ was (sic) read over to the plaintiff not because the defendant said so but because the plaintiff had not adduced sufficient evidence to dislodge the presumption or regularity as evidenced in Exhibit ‘B”’.

X X X X X X X X X

“From above, from the evidence before me, it is my view that the plea of non est factum, cannot be invoked by the plaintiff.” The case of the appellant stands or falls on his own evidence and that of his other witnesses. On no reasonable consideration and evaluation of such evidence can the plea of non est factum succeed. In Igbinosa v. Cole Aiyobagbiegbe (1969) 1 All N.L.R. 99, this Court, while considering the applicability of the plea of non est factum held that-

“Where a person of full age and discretion executes a formal deed in the full knowledge of the nature of the document it will not avail him to seek to nullify the contract by complaining that he did not know the contents of the deed.”

What is emphasized in the paragraph above is the signatory’s knowledge of the nature of the document he has signed and not its contents. See also paragraph 222 of Chitty on Contract, vol. I (23rd Edition) wherein the law is stated thus-

“Mistake as to the contents of a deed or document is not sufficient.

Where it is the terms of a deed or writing, and not its nature, which are the subject of mistake, the plea will not avail. The writing, deed or document may be voidable for fraud but the contract contained there is not void ab initio.”

The plea will not be available to a party who signs a document without inquiring to know its precise effect, nor will it be available to whoever signs a document that contains a term to which he would have objected had he read and understood it. Before such a document is declared void, the element of consent must be completely lacking. See Saunders v. Anglia Building society (1970) 3 All E.R. 96, Gallie v. Lee (1971) A.C. 1004, Oluwo & Ors v. Adebowale (1964) NMLR 17 and Ebose v. Orhareghan (1985) 2 NWLR (Pt. 10) 884.

It is apparent on the face of Exhibit B that the intention expressed therein is the transfer of the legal estate in fee simple absolute to the respondent. This is evident from the following paragraphs of that Exhibit which cite that –

“THIS INDENTURE made the 25th day of June, 1965 BETWEEN EZEKIEL SOYEMI AWOSILE farmer of No. W1/3D Araromi Street Aiyegbami West Offin Shagamu Western Region hereinafer called the Vendor (which expression shall wherever the con so admits include his heirs legal personal Representatives and assigns) of the one part AND FREDERICK OLUSANYA DUNCAN SOTUNBO School Master of the Hospital Road Shagarnu Western Region of Nigeria hereinafter called the Purchaser (which expression ‘shall wherever the con so admits include his heirs legal Representatives assigns) of the other part:

WHEREAS under and by virtue of a deed of conveyance dated the 8th day of June, 1964 and registered as No.7 of page 7 in Volume 742 of Register of deeds kept at the Lands Registry in the office at Ibadan the Vendor became seised of the hereditaments which is herein described and expressed to be hereby granted and conveyed for an estate of inheritance in fee simple:

AND WHEREAS the said Vendor has agreed to an absolute sale of the said land and hereditaments and did sell by private treaty to the said Purchaser for the like estate for the sum of Two Thousand and Four Hundred Pounds (2,400) Nigerian currency:

NOW THIS INDENTURE WITNESSETH that in pursuance of the said agreement and in consideration of the sum of Two Thousand Four Hundred Pounds (2,400), Nigerian Currency paid by the said purchaser to the Vendor before the execution of these presents (the receipt whereof the Vendor hereby acknowledges) the said Vendor as beneficial owner hereby grants conveys assures and confirms unto the said purchaser his heirs and assigns all that piece or parcel of land situate lying and being at ORILE IJOKUN (Sabo) Offin Shagamu Ijebu Remo Western Region of Nigeria and more particularly described and delineated with its dimensions and abuttals on the plan shown or attached at the foot of the above recited deed of conveyance dated the 8th day of June, 1964 and thereon edged red together with all the rights easements and things appurtenant or reputed as appurtenant thereon.

TO HOLD the same unto and to the use of the Purchaser his heirs legal personal Representatives and assigns absolute in possession free and discharged from all incidents of Customary Laws or further claims and demands from any person or persons whatsoever. The Vendor do hereby covenant with the purchaser that he (the Vendor) will indemnify the Purchaser against any loss or damage that may occur or be sustained consequent upon any adverse claim for the title from any person or persons in respect of the freehold land herein conveyed:”.

At the tail end of Exhibit B where the signatures of both the appellant as the Vendor and the respondent as the purchaser appear there is a jurat evidencing that Exhibit B was read and explained to the appellant in Yoruba language before affixing his signature thereto. It was executed before a Senior Magistrate at Shagamu Magistrate Court. Both the Senior Magistrate and his Registrar signed Exhibit B, as witnesses to the execution and the interpretation and explanation of the contents of the documents respectively.

The respondent’s case is therefore supported, quite apart from his oral evidence, by Exhibit B which was duly executed by both the appellant and himself before the Senior Magistrate, Shagamu, in accordance with Section 3(b) of the Illiterates Protection Act. See S.C.O A. Zaria v. Okon (1959) SCNLR 562, (1959) 4 F.S.C. 220. A complaint by a person of full age, sense, knowledge and discretion that at the time he signed the document he did not know its contents without proving fraud, will not avail him a plea of non est factum to avoid the validity and legal effect of such a document. See Igbinosa v. Aiyohaghiegbe (1969) 1 All NLR 99.

It is to be noted that illiteracy of the appellant was never pleaded, although the learned trial Judge considered it in his judgment.

The learned Justice of the Court of Appeal Ogundare, J.C.A. (as he then was) after considering the arguments of counsel on both sides and reviewing the relevant authorities applicable to the plea also came to the same conclusion as the learned trial Judge wherein he said –

“Applying the law as earlier discussed by me to the facts as found by the learned trial Judge and as deposed to in evidence by the plaintiff, it is not in dispute that when executing Exhibit ‘B’ plaintiff knew he was dealing with his property. According to him, he thought he was mortgaging his property to the defendant, but Exhibit B turned out to be a sale of the property. In this respect plaintiff’s case was in line with plaintiff’s case in Oluwo v. Adebowale (supra) where the Supreme Court, per Taylor F.J. held that ‘as the misrepresentation was as to the contents and not the character and class of the deed’ the plea of non est factum did not avail the plaintiff. On the authorities, therefore, I must hold that the learned trial Judge was right when he held that ‘the plea of non est factum, cannot be invoked by the plaintiff.’

The plaintiff’s case is made worse by the factthat Exhibit ‘B’ was executed by the plaintiff before a Senior Magistrate and his Clerk of Court. The clerk signed the jurat on Exhibit B and the Senior Magistrate also signed the Certificate to the effect that the deed was signed, sealed and delivered by the plaintiff before him. A presumption of regularity arose which was not rebutted by the plaintiff at the trial. See Section 149(1) of the Evidence Act which provides:

‘When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.’”

The learned trial Judge also found that although the appellant mentioned fraud and deceit in his pleadings, he neither gave particulars of such fraud or deceit nor did he adduce evidence in proof of that. The learned trial Judge observed that

“an allegation of fraud or misrepresentation must be pleaded with utmost particularly. The pleader should accordingly set out the facts, matters and circumstances relied upon to prove the fraud……The acts alleged fraudulent must be set out and then it must be stated that these acts were done fraudulently otherwise no evidence in support of them would be received.”

The learned trial Judge then made the following finding on the issue –

“In the case under consideration plaintiff has not alleged any fraud in the signing of Exhibit B apart from his evidence that the agreement he signed was to secure a loan and that the clerk did not read it over to him.”

The learned Justice of the Court of Appeal in affirming the finding by the learned trial Judge said –