3PLR – A. E. ARO V SHITTU KADIRI
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
[PDF copy of this judgment can be sent to your email for N300 only. Just order through lawnigeria@gmail.com and info@lawnigeria.com or text 07067102097]
A. E. ARO
V
SHITTU KADIRI
HIGH COURT LAGOS STATE
FEBRUARY 7, 1972
(SUIT LD/650/71)
3PLR/1972/27 (HC)
[1972] 1 NMLR 96
BEFORE:
Dosunmu J
MAIN ISSUES
Vendor and purchaser-Declaration of title to land-Action for possession, damages for trespass and injunction-Defendant signing document in respect of sale of land Claim that document was acknowledgment of loan and not sale-Defendant pleading illiteracy-Lender was vendor of land, caretaker for defendant-Vendor selling and conveying land to plaintiff-Validity of sale.
DOSUNMU J.: The matter for decision in this case is a straightforward one. It is whether the defendant executed the document dated December 11, 1957-exhibit “ B “-as a conveyance of his land at Ajenifuja Street, Somolu, in favour of one Emanuel Abiola Williams (deceased) or as a document acknowledging the loan of £100 which he admitted that he took from the said Mr. Williams. The plaintiff derives his title to the land in dispute from Mr. E. A. Williams.
I do not think it is necessary for me in tracing the history of this land to go further than the defendant and the plaintiff’s vendor. For one thing, the plaintiff did not seem to know for certain from whom his predecessor-in-title, Mr. Williams, bought this land. It was left to the defendant himself to throw much light on this when he testified that he inherited the land from his father, Aina Kadiri, and that it was he, and not his father, who had any kind of dealings with Mr. Williams. The plaintiff, giving evidence in support of his case said that he bought the land in dispute which is a portion of an area of land alleged sold to his predecessor-in-title, Mr. Williams in 1957 for the price of £68. He obtained a conveyance dated June 5, 1968-exhibit “A”-from him. After the purchase he entered into possession and caused a surveyor to prepare a fresh survey of it. Mr. Body-Lawson, a licensed surveyor, who did the work in May 1958 as well as an earlier layout for Mr. Williams confirmed this in evidence. The plaintiff said he fixed a signboard on the land. In August 1970, when he went to the land, he did not see the signboard there and three of the survey pillars had been removed, and the remaining fourth chipped off.
Sometime in December 1970 when he visited the site again he met a blockmaker on it. In consequence of what this blockmaker told him, he instructed a solicitor to write to the defendant and there was no reply from him to his letter of April 26, 1971-exhibit “ C “-although the defendant said that he instructed his solicitor to write back.
In July 1971 the plaintiff discovered that cement blocks have been arranged to fence round the land in question, and the defendant admitted being responsible for this when he gave evidence in court. There were quantities of sand on the land, and it was cleaned ready for building operations.
As I said earlier, the gravamen of the defence is to be found in paragraph 9 of the statement of defence that:
“ 9. The defendant did not at any time execute any deed of conveyance in respect of any portion of the land in favour of the said Emanuel Abiola Williams.”
In support of this plea, the plaintiff claims that he is an illiterate in the sense that he cannot read or write the English language. But he admits he is good in Yoruba reading and writing. There can be no doubt about the latter claim because he writes legibly. Although the defendant told me that he did not understand the English language, at times when I intervened to put some questions to him in the English language, he would answer me in the Yoruba language without waiting for the aid of the court’s interpreter. He did so, not once, or twice and I called his attention to it. At the end of it, I came to the conclusion that he was only deceiving me when he said that he did not understand the English language. And, of course, he must do so if he wanted to disown the contents of exhibit
His evidence continued thus. He and the late Mr. E. A. Williams were close friends, the latter, he said, was his adviser. At one time Mr. Williams advised him to give to him a portion of his large area of land to let out to tenants, and he agreed. Mr. Williams was paying to him the rents he collected from the tenants. There was no plan of the land given to Mr. E. A. Williams but he said it was demarcated from the remaining portion of the land on which he continued farming by some sticks or woods.
A little time after this tenancy arrangement, he said he took a loan of £100 in 1951 from Mr. E. A. Williams. One day Mr. Williams said he wanted a document to evidence this loan. He came to him with a document and read all the contents to him as an acknowledgment of the loan, and he signed it. The defendant recognised exhibit “ B “ as the document and admitted his signature on it. This document is a conveyance. He added however, that he refunded this loan of £100 some six years later to Mr. Williams. When pressed with the question whether he obtained a receipt from Mr. Williams for the repayment, his answer was that he did not obtain one because he did not consider it necessary. He denied pledging his land to Mr. E. A. Williams for the loan of £100, which is contrary to his pleas in paragraph 6 of the statement of defence that:
“ 6. The defendant had a literate adviser named Emanuel Abiola Williams to whom he pledged a portion of land in 1951 for a hundred pounds (£100).”
I myself do not believe the defendant ever took a loan of £100 from Mr. Williams let alone repaying it to him. He has nothing to show for this. Incidentally, the amount of the purchase price recorded in the conveyance-exhibit “B “-executed by the defendant is £100. What a coincidence?
I am satisfied as I watched the demeanour of the defendant in the witness box that he is a literate person. My attention was drawn by the plaintiff’s counsel in the course of his address to the judgment of the Supreme Court (Ademola C.J.F., Unsworth and Taylor F.J) in P.Z. & Co. Ltd. v. Mallam Momo Gasau [1962] 1 A.N.L.R. 242 para. 2 where it was held:
“(1) The word ‘illiterate’ as used in the Illiterates Protection Act must be construed in the ordinary meaning.
(2) An ‘illiterate’ within the meaning of the Illiterates Protection Act is a person who is unable to read or write in any language, i.e. a person who is totally illiterate.
(3) A person who is unable to read or write the language in which a particular document is written, but who can read and write in some other language, is not an illiterate within the meaning of Illiterates Protection Act, therefore, the appellant did not come within the protection of that Act.”
The defendant’s counsel himself referred to the judgment of the Supreme Court (Ademola C.J.F., Brett F.J. and Quashie Idun Ag. F.J) in S.C.O.A. Zaria v. A. D. Okon, 4 F.S.C. 220. There Quashie Idun, Ag. F.J. who read the judgment of court seemed to affirm the conclusion of the trial Chief Justice that:
“ It seems to me that a man may be sufficiently literate to sign his name and read figures, but not sufficiently literate to understand the meaning and effect of a document such as a bond.” But as stated in the head note of the report of the case, the decision of the court depended largely on the facts of that particular case which are fully set out in the judgment. Taylor F.J. (as he then was) who read the judgment of the court in P.Z.’s case supra referred to the judgment in Okon’s case and distinguished it on the facts. It is only necessary for me to add that the facts of the present case do not tally with the facts in Okon’s case. But that apart it should be remembered that exhibit “B” is a conveyance franked by the solicitor of this court, and to that extent, compliance with the Illiterates Protection Act is excepted. The document has also been duly registered under Land Registration Act, cap. 99. My final conclusion therefore is that apart from the decision in P.Z. & Co. Ltd. v. Mallam Momo Gasau, supra, I believe that the defendant is a literate person.
There is an important plea in the statement of defence to which the defendant did not even advert in his evidence in court in spite of the attempts of his counsel to let him say something about it. As in paragraph 8:
“ 8. The defendant later at the request of the said Emanuel Abiola Williams executed a power of attorney in favour of the latter to look after and let on behalf of the defendant any portion of the large tract of land as described in paragraph 3 above.”
No such power of attorney was ever tendered, and the defendant denied making any such power of attorney.
In his final address to the court, the learned defence counsel properly referred to the decision in Gallie v. Lee [1969] 1 All E.R. 1062 and to the statement of Lord Denning M.R. at page 1071:
“ After all this long discussion, I would endeavour to state the principle. It seems to me to be this. Whenever a man of full age and understanding, who can read and write, signs a legal document which is put before him for signature-by which I mean a document which, it is apparent on the fact of it, is intended to have legal consequences-then, if he does not take the trouble to read it but signs it as it is, relying on the word of another as to its character or contents or effect, he cannot be heard to say that it is not his document. By his conduct in signing it he has represented, to all those into whose hands it may come, that it is his document; and once they act on it as being his document, he cannot go back on it, and say that it was a nullity from the beginning. If his signature was obtained by fraud, or under the influence of mistake, or something of the kind, he may be able to avoid it up to a point-but not when it has come into the hands of one who has in all innocence advanced money on the faith of its being his document, or otherwise has relied on it as being his document.
I propose, therefore, to apply the principle which I have stated. In consonance with it, I am quite clear that the plaintiff cannot in this case say that the deed of assignment was not her deed. She signed it without reading it, relying on the assurance of the first defendant that it was a deed of gift to Mr. Parkin. It turned out to be a deed of assignment to the first defendant. But it was obviously a legal document. She signed it; and the building society advanced money on faith of its being her document. She cannot now be allowed to disavow her signature.”
I say, with utmost respect, that I agree with this statement of principle. As in this case the defendant I have found to be a literate person. He signed a deed of conveyance relying on the words of the late Mr. Williams that it is some kind of acknowledgment of loan. The plaintiff bought a portion of land covered by the deed of conveyance and paid money for it I do not think the defendant ought to be allowed to disavow his signature on the conveyance-exhibit “ B.” He has transferred his ownership of the land to the late Mr. Williams from whom the plaintiff bought. I believe also that the plaintiff was in possession when the defendant entered the land to commence building. The plaintiff is entitled to succeed in his claims. It is hereby adjudged that the plaintiff is:
(1) The owner in fee simple of all that piece or parcel of land situate at Ajenifuja Street, Somolu, as sufficiently described and delineated on plan dated May 1, 1958, and attached to a deed of conveyance dated June 5, 1968, registered as No. 56 at page 56 in Volumes 252 of the Lands Registry in the office at Ibadan and admitted as exhibit “ A “ in these proceedings.
(2) Possession of the said land.
(3) £50 as damages for trespass.
(4) Injunction restraining the defendant, servants or agents from further acts of trespass on the said land.
(5) £52 10s. costs against the defendant.
