3PLR – KATHLEEN WHELAN V MALLAM USMAN HAMED SULE
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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3PLR/1965/70 (SC)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
REPRESENTATION
Mr. G. IMPEY, for the Appellant.
Mr. C. D. ORIKE, for the Respondent.
OTHER ISSUES
COMMERCIAL LAW: – CONTRACT – Contract arising from amorous relationship – Teacher/student relationship – Action to recover various sums lent by female tutor to romantically linked student – Relevance of moral issues – How determined
TORT AND PERSONAL INJURY LAW: Action to recover sum for repair of motor vehicle damaged through negligence of defendant – How determined
DEBTOR AND CREDITOR LAW: – IOUs – When it does not give rise to a debt – Alleged indebtedness arising from amorous relations – Attitudes of court thereto
MOTOR VEHICLE/TRANSPORT LAW: – Negligent driving – Damage to vehicle – Liability of driver to owner of car – Relevant considerations
EDUCATION AND LAW: – Tertiary education – Tutor-student relations – Amorous relationship arising therefrom – When not improper – Disputed claims of a contractual nature arising thereform – How proved – Attitude of court thereto
CHILDREN AND WOMEN LAW: – Women and business – Women Tutors/Educators (Tertiary institutions) – Amorous relationship between older/Irish/Catholic female teacher and younger/Nigerian/Muslim student – When factored in by trial court in arriving at judgment – Propriety of – Assertion of contractual rights arising those circumstances – How proved – Claim of indebtedness and negligent use of property arising therefrom – How treated by court
RELIGION AND LAW:- Amorous relationship between older/Irish/Catholic female teacher and younger/Nigerian/Muslim student – Action by teacher to recover debt based on IOUs and for sums spent on repairs of vehicle damaged by student’s negligence – How treated
PRACTICE AND PROCEDURE – COURT:- Trial court – Consideration of moral issues in the determination of an action based on contract and negligence – Propriety of – Duty of appellate court thereto
MAIN JUDGMENT
BRETT, J.S.C. (Delivering the Judgment of the Court):
This is an appeal by the plaintiff against the judgment of the High Court of Lagos dismissing her claim. The claim falls into two parts which call for separate consideration. In the first part the plaintiff claimed £355 for money lent to the defendant and £270 as money paid on a consideration which wholly failed. In the second she claimed damages amounting to £443. 4s. Od. for negligence in the care and custody of a motor car.
The parties met when the plaintiff was a tutor at the Lagos City College Yaba, and the defendant was a student there. It is common ground that the defendant asked the plaintiff to coach him in English and that they were on friendly terms and visited each other’s houses. In her evidence the plaintiff said that at the defendant’s request she lent him various sums of money, though the only specific loans which she is recorded as having mentioned, are two sums of £50 each. In support of this part of her case the plaintiff produced two I.O.U’s purporting to be signed by the defendant which became Exhibits A and B. Exhibit B, which is the earlier in date, reads as follows –
‘To Miss K. Whelan 28.6.63 118, Zik Street, Lagos.
I owe you E50.0s. Od. (fifty pounds) invested in Government House, Harvey Road, Yaba.
Harried Sule”
The signature is in a different hand from the rest of the document, and Mr. Impey, counsel for the appellant agreed in this Court that it appears to have been affixed in pencil and to have been inked over later. Unfortunately the attention of the plaintiff was not drawn to this fact in the Court below and her explanation of it is not known.
Exhibit A, which was produced as an I.O.U. for C50 only, is also a document which called for more explanation than was offered. Its first three lines read –
To Miss K. Whelan
I owe you £50. Os. Od. (fifty pounds)”
“3.7.63
and are followed by a signature which is admittedly the defendant’s, but on either side of the signature someone has written –
“also £50 (fifty pounds)£30 Os Od12.8.63£30 18.7.63250 Os Od1.7.63£15 28.7.63£40 Os Od21.8.63£40 Os Od22.8.63”
and underneath the signature –
“I have no more money to give. I am poor. I cannot give money every week”.
The signature appears to be in one hand and the rest of the document in another. It would have been helpful to have had the plaintiff’s explanation of the document as a whole and to have learnt when and by whom the various parts of it were written.
As regards the sum of £270 the plaintiff said that after the defendant had pleaded with her she paid it in order to become a shareholder in a company registered by him under the name of the Sule O’Neill Company, and she produced a receipt, Exhibit C, which read –
“13.7.63
I received £270 (two hundred and seventy pounds) from K. Whelan, 118 Zik Street, Lagos towards the capital to begin Sule O’Neill Trading Limited, (Importing and Exporting).
All Sule”
Here again the signature is in a different hand from the rest and, like that in Exhibit B, was originally in pencil.
The defendant gave evidence, in which he denied having borrowed any money from the plaintiff or received any money investment. He admitted that the signature on Exhibit A was his and he explained this by saying “Sometimes when I visit the plaintiff and did not meet her I used to leave a note for her with my signature on such note. The signatures on these exhibits must have been left by me on paper with different notes or statements. That is the case with regard to Exhibit A. The signature there is mine and had nothing to do with a loan. The signature in Exhibit B is not mine. It is clear that this was a tracing. This is clearly the case also with Exhibit C”. We do not consider this a probable explanation having regard to the appearance of the documents, and the position of the signatures in relation to the rest of the handwriting. If, when he says that the signatures on Exhibits B & C were tracings, he means that what was originally written in pencil has been inked over, we have already said that we think the plaintiff ought to have explained this, but so far as we can judge with the naked eye, and in the absence of expert evidence, the entries in ink coincide with the former entries in pencil. As regards the Sule O’Neill Trading Company the defendant agreed that he registered this as a Business Name and discussed his plans with the plaintiff but he denied that he ever asked the plaintiff for a contribution. He also said that he had no money to engage in trading with and needed none.
That is the whole of the relevant evidence on this part of the claim. In our view the plaintiff’s evidence left too many matters unexplained to entitle her to judgment. On the other hand we consider that the defendant’s explanation of how his signature came to be on Exhibits A, B & C ought to be rejected. In these circumstances we hold that the proper judgment on this part of the claim would be one of non-suit, not of dismissal.
In dismissing this part of the claim, the trial judge based his decision to a great extent on the view which he had formed of the relationship between the parties. We do not share the judge’s view and in fairness to the plaintiff we think it desirable to set out the parts of the evidence which bear on the relationship.
We have already said that they were on friendly terms, and the plaintiff’s story of the loans she made presupposes that she trusted the defendant and was prepared to help him. The pleadings suggest nothing more and the only passage in the plaintiff’s evidence which seems to bear on it is where she said in cross-examination by the defendant in person – “I have been to your house on several occasions and I gave you some of the money in your house and sometime in my place.” In his evidence in chief the defendant said –
“I know the Plaintiff. I attended evening classes at the Technical Institute Yaba where the plaintiff was a tutor. I attended her classes. When she left that Institute for the City College. I met her one evening and asked her to coach me in English and she agreed. She coached me in the parlour of the hostel in which she was staying. I was then living at 32, McNeil Road Yaba. She called at my room. I was living in one room. She treated me with the affection of a Moslem and wanted me to embrace the Catholic faith. She gave me some novels from Rome and I accepted them”.
Under cross-examination he said –
“I did not borrow any money from the Plaintiff. She gave me no money. She was fond of me and I reciprocated. She called me her darling and I called her my darling. I used to close my letters with the remark: Yours till death do us part”.
She said that if I became a catholic she would marry me but she would not yield to producing an issue for me. I had a discussion with the plaintiff about the project I proposed. I had no money of my own. Mr. Bennett was not going to put money in my business. He said he would recommend some manufacturers who would export goods to me as the sales agent and when I sold I would earn a commission. We needed no capital for this. I showed the plaintiff my registration certificate. I let her know everything I did. I used my own money to pay for the letter head. I did not sign blank sheets for the plaintiff. The documents shown to me were written by me to the Plaintiff. Tendered by the plaintiff – admitted and marked Exhibit J – J3. When I said in Exhibit J3 that I will be her husband I was serious and honest with her. I also believed that the plaintiff was serious and honest with me when she said she would be my wife. She asked me if I would marry her and I said yes”.
The letters do not suggest any relationship that calls for moral condemnation. Exhibit J merely says “I will be grateful if you will kindly call at 6.30 to 7.30 p.m.” Exhibit J1 begins “Darling K” and ends “Yours one till death”. The body of the letter refers to the use of the plaintiff’s car. Exhibit J2 is another note about the car with nothing on which any inferences about their relationship can be based. Exhibit J3, which is the most revealing of the letters, reads –
1.8.63
Kay.
I am very grateful on your efforts about the Sisters- In-Christ.
Thank you. I will really let you understand that I be going to the Holy Cross for both of us to be blessed and we will do all as Husband and Wife. You are too good Kay.
The girls are here and I will like you to meet them. How do you feel about the rain.
We must go to Holy Cross for Blessing.
Yours till Death.
P.T.O.
Please darling I am worrying you about the car. You are for me and I am for you. I am using it tonight.
Please Darling. ? Sule”
The trial Judge summarised the evidence on this part as follows
‘The defendant has said that the plaintiff who is an Irish elderly woman and a Catholic has shown great keeness in him and has endeavoured to get him converted from the Muslim faith to the Catholic religion. The plaintiff has cabled her interest much further and had asked him to marry her. The defendant had accepted the proposal for marriage and to all appearances both of them have been very sweet on each other as evidenced by the following expressions in the notes from the defendant to the plaintiff, namely:
In Exhibit J1:
“Darling …. Yours on till death”
In Exhibit J3:
“I will really let you understand that I will be going to the Holy Cross for both of us to be blessed and we will do all as husband and wife”.
In exhibit J3:
“You are for me and I am for you”.
The defendant was living in one room at 32, McNeil Road, Yaba and the plaintiff was known to be visiting him there regularly and there is no doubt but that there existed between them the closest intimacy’.
Later, when stating his conclusions, he said –
“After a careful consideration of the facts I must say that I am not at all impressed by the plaintiff’s case which to my mind is nothing but a classical case of scandal and fraud. The plaintiff is easily fifty years of age and I shudder at the shameful exercise in which she indulged with a young boy of about half her own age. I do not agree that the plaintiff lent her money to the defendant on any occasion at all. What I believe is that she was liberal with her money in an effort to secure the defendant to her complete control and subjection and to enslave him to debauchery. Any money given by the plaintiff to the defendant was all a free gift when the going was good but when the game broke down the plaintiff felt herself that she played a losing game and sought to recover her expenses by fabricating a case of loan. I disbelieve her story completely about the loan and hold that the defendant never asked her for any loan and never received any.
We do not consider that the oral or documentary evidence justified these strictures on the plaintiff’s conduct. However strongly the judge may have felt that the disparity in the ages of the parties would have made a marriage between them unsuitable, that would not in itself warrant the use of such terms as “scandal”, “shameful exercise” or “debauchery”, and we are unable to see what else he found to disapprove of in the situation as disclosed by the evidence. Exhibit J3, the most intimate of the letters produced, neither states nor hints at anything that would merit such condemnation, and since it was no part of the defendant’s case that his relationship with the plaintiff called for censure the plaintiff had no opportunity of meeting any criticisms of her conduct. We dissociate ourselves from the Judge’s comments.
The claim relating to the motor car can be disposed of more shortly. It was not in dispute that the defendant was travelling in the car by permission of the plaintiff when it was damaged beyond repair through colliding with a bus. The defendant said that at the time of the collision the car was being driven by a driver employed by the plaintiff. The plaintiff denied she had a driver in her employment at the time and called the driver and the conductress of the bus to say that the defendant had been driving the car at the time the accident occurred, and that the cause of the accident was his negligence. The Judge thought the conductress had said that she did not direct her mind to the accident, but this seems to be a misunderstanding of her evidence, and he gave no reason for not believing the evidence of the driver, who was, after all, an Independent witness as between the plaintiff and the defendant. In our view this part of the claim was proved and the plaintiff is entitled to recover £300 as the value of the car; £11 garage expenses incurred by the defendant; £6 for the hire of other transport for one month; and £5 for general inconvenience, making a total of £322.
It is ordered –
(1) that the judgment of the High Court be set aside;
(2) that judgment of non-suit be entered in respect of the claim for money lent and the claim for money paid upon a consideration which was wholly failed;
(3) that the plaintiff be awarded damages of £322 in respect of the remaining parts of her claim;
(4) that the defendant do pay the plaintiff costs of the proceedings in the High Court assessed at 50 guineas.
Appeal allowed; non-suit entered in respect of claim for money lent.
