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AFRICAN PRODUCE SALES CO. LTD.
E. AYO AND ANOTHER
BEFORE THEIR LORDSHIPS:
SIR LIONEL BRETT, F.J. (Presided).
JOHN IDOWU CONRAD TAYLOR, F.J. (Read the Judgment of the Court)
GEORGE BAPTIST AYODOLA COKER, AG. F.J.
COMMERCIAL LAW – Claim for payment of money plus interest – Debt – Illiterates Protection Ordinance, 1947, repealed and replaced by Illiterates Protection Law 1957 – Not pleaded – Effect – Definition of “illiterate”.
PRACTICE AND PROCEDURE – CIVIL PROCEDURE – Pleading – Party bound by his admission.
PRACTICE AND PROCEDURE – Evidence – No evidence of breach of bond – Liability of bondsman – Claim as to payment of interest – Not granted
Chief O. Moore (Mr. Otuyelu with him) for the Appellant.
Mr. H.T.O. Coker for the 1st Respondent.
Mr. D. Kolawole for the 2nd Respondent.
TAYLOR, F.J.: The plaintiff/appellant sued the defendants/respondents jointly for the sum of £2,000 plus interest at the rate of 6% from the 6th January, 1955, to the date of payment or judgment. The 1st respondent was a store- keeper and produce buyer under the appellant’s employ and the 2nd respondent was his bondsman in that respect. The suit was originally placed on the undefended list but leave was later granted the respondents to file a defence, and this was done.
The learned Trial Judge, after hearing the parties entered a non- suit against the plaintiff holding in so far as the claim against the 1st defendant is concerned that:
‘The book of account was tendered both as such and as an admission of liability by the 1st defendant. It and the letter were admitted subject to objection on the ground that the 1st defendant was an illiterate. By the evidence I am satisfied on the balance of probabilities, that the 1st defendant is an illiterate in that he cannot read and write English, the language in which the book of account and his letter were written. As the book of account and the letter were not signed by its preparer as required by the Illiterates Protection Ordinance 1947, which was in force at the relevant time, and has been repealed and replaced by the Illiterates Protection Law 1957, both are ‘inadmissible in evidence as admission”.
A little later on the Trial Judge held that:
“Apart from that (i.e. the inadmissibility of the book of account) the books of account are so unsatisfactory that it would be impossible to determine from them whether the 1st defendant was under any and what liability to the plaintiff.”
In respect of the claim against the 2nd defendant the Trial Judge held that:
“I am not satisfied, as against the 2nd defendant, that the 1st defendant failed to observe the conditions of the bond. The plaintiff deposed that the 1st defendant was not authorised to make advances on behalf of it to his middlemen …………. I am not satisfied that, as against the 2nd defendant, the failures alleged in the Statement of Claim to observe the conditions of the bond have been proved.”
Chief Moore, O.C., for the appellant has attacked the Judgment, in so far as it relates to the 1st respondent, on the following grounds:
(1) That the Illiterates Protection Ordinance was never pleaded.
(2) That in any case it could not avail the 1st respondent in the circumstances of this case and,
(3) That the 1st respondent was bound by the admission in his letter exhibit “C’ and in his affidavit filed in support of his application for taking the case off the undefended list and giving him leave to file a defence.
On the first point it is worthy of note that the appellant company averred in paragraph 2 of their Statement of Claim that the 1st defendant/respondent was a clerk and a store-keeper on a bond in their employ and in paragraphs 3 and 4 of same they plead that the bond was executed by the 1st respondent. The’ bond which was written in English, marked exhibit “A” at the hearing, and executed by both respondents, does not on the face of it show that it was executed by someone who was not conversant with the English language.
Finally, in paragraphs 6 and 7 of the Statement of Claim the appellant pleaded the letter written to the respondents and the reply of the 1st respondent thereto on the 14th June, 1955. This letter was relied on by the appellant as an admission of liability by the 1st respondent. In reply to these averments in the Statement of Claim which patently go to show that the appellant regarded the 1st respondent as someone who was conversant with the English language, the list respondent merely averred in paragraph 5 of the defence that he was not in a position to admit or deny the contents of those paragraphs. The Illiterates Protection Ordinance was never set up in answer to these averments, and in my view quite apart from other considerations it was too late in the day to set it up at the hearing and without an amendment of the defence.
Taking the second and third points together, I am of the view, for the reasons expressed by me in the case of Patterson Zochonis & Co. Ltd. v. Mallam Momo Gusau & Anor. F.S.C. 131/61 on the 28th April, 1962, that the Learned Trial Judge erred, in the passage already quoted, in holding that the 1st respondent is an illiterate because “he cannot read or write English.” In that case I said this – Inter alla:-
“In this case on appeal before us, there was evidence on record to show that though the appellant could not read English, the language in which the guarantee was couched, yet he was able to read and write in Arabic. The word ‘illiterate’ is defined in the Oxford Dictionary as meaning ‘Ignorant of letters of literature, without education, unable to read, i.e. totally Illiterate, an Illiterate, unlearned or uneducated person, one unable to read’. I have always understood the word ‘illiterate’ to refer to a person totally Illiterate in the sense that he is unable to read or write in any language.”
A little later on in the same Judgment, the case of S.C.OA. v. Okon (F.S.C. 147/1959) was referred to and the following passage in the Judgment of the Chief Justice of the Western Region (then Ag. F.J.) was quoted as follows:
“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. The evidence of Mr. Briggs is to the effect that the contents of this document were not explained to the defendant in the plaintiffs’ office. That, in my opinion, is important.”
Finally the Judgment in F.S.C. 131/61 concludes this point under consideration with the following words:
‘The illiterates Protection Ordinance was designed to protect illiterates from being taken advantage of by being made to sign or acknowledge a writing or document which does not bear out their real intention.”
In short it is something similar to the defence of “non est factum”. In the case on appeal the document under consideration was not a legal document such as a bond, but an ordinary letter written in reply to another. In it a statement of account is attached and what is more, it was written by the clerk of the very person who seeks to set up the Illiterates Protection Ordinance as a defence. No reason was given why the clerk should not have properly recorded the wishes of the 1st respondent. In my view if the Illiterates Protection Ordinance was meant to cover instances such as this, taking all the circumstances enumerated above into account, then it would be assisting in perpetrating the very fraud it hoped to prevent against illiterates, by persons styling themselves illiterates. This defence does not avail the 1st respondent. He is not a person coming within the contemplation of this Ordinance.
In his letter exhibit “C” written to the appellant Company, he admits having a debit balance in favour of the appellant Company in the sum of £2,005:13s:9d., but says that this sum was advanced by him to middlemen to purchase produce. The 1st respondent is bound by his own admission, and the appeal of the appellant in so far as it relates to him must succeed.
As to the 2nd respondent however, different considerations apply for the admission by the 1st respondent is only evidence against this respondent in certain circumstances. Chief Moore contended that there was in effect a conspiracy by the two respondents to cheat the appellant, that an admission could be gathered from exhibit “k’ written by the 2nd respondent in reply to exhibit “J”: that it was never the case for the 2nd respondent in the Court below; that it was in accordance with common business practice for advances to be made by the 1st respondent to middlemen to purchase produce; and finally that in any case such custom must be proved by evidence since it was not one of which the Court could take Judicial notice. Mr. Kolawole for the 2nd respondent contended that there was no admission made by the 2nd respondent, and drew our attention to Vol. 18, 3rd Edition of Halsbury’s Laws of England Page 443 paragraph 817 which reads thus:
“In an action against the surety by the creditor, a judgment or award obtained by the latter against the principal debtor is not evidence against the surety, being res inter alios acta; nor do the principal debtor’s admissions of liability dispense with proof by the creditor of the facts so admitted. An account delivered by an agent to his employer, charging himself, is, however, evidence against the surety of the agent. Official books and reports, which the person whose fidelity has been guaranteed is bound to keep as a duty incidental to his office, are, apparently, presumptive evidence against the surety.”
It seems to me that the first point for consideration is the extent of the liability of the 2nd respondent as contained in the bond exhibit “A”, the relevant portion of which reads thus:
“Now the condition of the above-written bond is such that if the said Emmanuel Ayo shall at all times hereafter, so long as he shall be in the service or employment of the said Company, faithfully, honestly and diligently perform and discharge the said Service and all the duties which may devolve upon the said Emmanuel Ayo, as such clerk or otherwise as aforesaid, and shall wherever required duly and faithfully account for and pay or deliver to the said “Company” all money, goods and property whatsoever for or with which the said Emmanuel Ayo may be in anywise accountable or chargeable as such dark or otherwise as aforesaid or ………..”
What I have to consider here is whether there was any evidence led at the Trial in the Court below by the present appellant/Company to show that, in the words of the bond, the 1st respondent has not, while in the employ of the Company acted ‘faithfully, honestly and diligently’ in the discharge of his duties.
The allegation made against the 1st respondent in the Statement of Claim to show such Infraction of his duties is contained in paragraph 5 which reads thus:
‘The 1st defendant did not during his said employment faithfully discharge the duties of Storekeeper to the plaintiffs; neither did he honestly account for nor pay over to the plaintiffs all moneys coming to his hands on behalf of the plaintiffs. Between October 1953 and 8th January 1955 the 1st defendant dishonestly appropriated to his own use the sum of £2,703 belonging to the plaintiffs.”
At the trial in the Court below, not a shred of evidence was adduced in proof of this and the 1st defendant in paragraph 7 of the Statement of Defence replies as follows to this averment.
“Paragraph 5 of the plaintiffs’ Statement of Claim discloses facts amounting to a felony and the defendants will rely on the rule in Smith v. Selwyn at the trial.”
The earlier paragraph 3 has put the Company to ‘the strictest Proof’ of the allegation contained in paragraph 5 of the Statement of Claim. In my view there was no proof of this breach by the 1st respondent of his duties and that being the breach alleged which “brings Into play’ the liability of the 2nd respondent, this appeal against that part of the Judgment must fail.
One further point must be mentioned, there has been no argument adduced before us on the claim by the appellant Company for interest on the £2,000. The claim is one based on the bond and on the facts appearing in the case on appeal, particularly that relating to the 1st respondent’s failure to pay the money to the Company being occasioned by the failure of the middlemen to supply him with produce. I am not inclined to make any order as to payment of interest. The order I make in this appeal is that:
(i) The appeal is allowed as between the appellant and the 1st respondent and Judgment Is entered for the appellant in the sum of £2,000 with costs in the Court below assessed at £79:11 s:Od and in this Court at £46 in favour of the appellant.
(ii) The appeal fails as between the appellant and the 2nd respondent. The order of non-suit made by the Learned Trial Judge is affirmed. No order is made as to costs in the Court below and the 2nd respondent is entitled to his costs in this Court assessed as 25 guineas.
BRETT, F.J.: I concur.
COKER, F.J.: I concur.
Appeal allowed against list respondent.
Appeal dismissed against 2nd respondent.