➥ CASE SUMMARY OF:
Gilbert Ezeigwe V. Awawa Awudu (2001)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Ownership;
Illiterate protection law.
➥ CASE FACT/HISTORY
The appellant’s case both in his pleadings and oral evidence was that his late father James Ezeigwe and the respondent entered into agreement in 1958 to construct for the respondent a 29-room building on the disputed land. The contract price for the erection of the building was £6,000.00 (N12,000.00). The appellant’s father completed only 19 rooms. When his father asked for payment from the respondent and she was unable to pay, the respondent applied for the land to be assigned to the plaintiff’s father as shown in exhibit E, F, & G contained in Land Registry file exhibit C. The appellant’s father died and the appellant stepped into his shoes and was given an irrevocable power of attorney: exhibit A dated 25th June, 1966 from the respondent. The case of the respondent was that the plot was allocated to her by the defunct Eastern Nigeria Government in 1958. She entered into agreement with the late James Ezeigwe to erect a 29-room building but only 19 rooms were completed because the James Ezeigwe had no money to complete the rest. She herself had to complete the remaining 10 rooms. In September, 1966, the appellant assisted her to escape to the North because Northerners were being killed in Port Harcourt. The respondent was of Nupe origin and before she escaped she told the appellant’s to be collecting rents from the tenants. The appellant asked her to sign a paper which he would show the tenants as an authority to collect the rents. The appellant gave her such paper to sign but never interpreted it to her although she was an illiterate. She said that the appellant took advantage of her and induced her to sign exhibit A, the irrevocable power of attorney. At the end of the civil war the respondent returned to Port Harcourt and has been in possession of the property ever since.
This is an appeal against the judgment of the Rivers State High Court, Port Harcourt in which the trial Judge Okor, J., dismissed the appellant’s claim against the respondent on the 2nd day of May, 1997.
The appellant was dissatisfied with the judgment and has appealed to this court.
➥ ISSUE(S)
I. Whether the learned trial Judge was not in error in rejecting as inadmissible the building agreement made in 1958 between plaintiff’s late father and defendant?
II. Did the plaintiff establish his title to and over the property at plot 2, 250 Orije Layout Port Harcourt otherwise known as No. 4 Warri Street, Port Harcourt as to warrant the grant by the trial court of any of the reliefs claimed?
III. Whether the learned trial Judge ought to have expunged the evidence of the defendant, which evidence was uncompleted, and not subjected to cross-examination and if so, whether the omission resulted in a miscarriage of justice?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE EXHIBIT CA 1 IS ADMISSIBLE
‘It is trite law that issues in any civil case are defined and circumscribed by the pleadings of the parties. The parties and the court are bound by the pleadings. See Olusanya v. Osineye (2001) 27 WRN 86; (2001) 13 NWLR (Pt. 730) 298. From the pleadings of the parties which I have scrutinized it is clear that both sides agreed that there was a building agreement made between the late James Ezeigwe and the respondent and that the agreement was signed by both parties. The only point of disagreement was the issue of the price of building the 29-room complex on the disputed property. I am clearly of the view that the trial court was wrong in rejecting this document which was not really disputed between the parties. It was clearly pleaded by both sides. The respondent did not deny authenticating the document. She obviously obtained some benefits under that document and could not hide under the Illiterate Protection Law to renounce the document. I therefore admit that document as exhibit CA 1.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[EXHIBIT CA 1 CANNOT ESTABLISH TITLE AGAINST THE RESPONDENT
‘I have taken a look at exhibit CA1 and it does not assist the appellant in proving the case. There was clear evidence before the trial court that the appellant’s late father did not complete building the 29 rooms as stipulated in the contract. Exhibit CA1 cannot therefore assist in proving title to the disputed property. It is merely the building agreement. In any event, since there is clear evidence that one of the parties to the agreement has died, the agreement can no longer be enforced against the respondent.’
THE EXHIBIT A HAS NO ILLITERATE JURAT
‘I have taken a look at exhibit A and it has an illiterate jurat to the effect that the contents were interpreted to the respondent but there is nothing to show who the writer is, and his address as required by section 3 of the Illiterate Protection Law. Exhibit A therefore cannot be used against the interest of the respondent. Although it was attested before a Magistrate, it is strange that the Magistrate did not insist on compliance with the Illiterate Protection Law before endorsing the document. Having said that I must agree with the learned counsel for the appellant that fraud with regard to exhibit A as alleged by the respondent and held to be proved by the court was not actually proved. The evidence of Alhaji Abdullahi Ibrahim concerning exhibit A is entirely hearsay.’
THE APPELLANT DID NOT PROVE HIS CASE OF OWNERSHIP
‘From all I have said so far, it is clear that the appellant did not prove his claim for possession and ownership of the disputed land. He did not tender any document of title. He did not show that he was in possession of the property as at the time of the action. The evidence showed that the respondent came and took over the property after the Nigerian civil war and has been in possession ever since. There was therefore no basis upon which the trial court could have granted the appellant possession and ownership of the disputed land. See the case of Idaayor & Anor v. Chief Tigidam & Anor (1995) 2 NWLR (Pt. 377) 359.’]
.
.
↪️ ISSUE 3: IN RESPONDENT’S FAVOUR.
[THIS ISSUE WAS NOT CANVASSED BEFORE THE LOWER COURT
‘I have read the record of appeal thoroughly, especially the written address of the appellant’s counsel In the Court below which starts from pages 99 – 103. The issue of the treatment of the evidence of DW1 by the court below by allowing the attorney to substitute the respondent was never raised as irregular. The appellant could have asked the court to allow him to cross-examine the respondent before her attorney substituted her. He did not do that. He did not ask the court to expunge the evidence of the respondent because she was not cross-examined. It is my view that such issue that was not canvassed before the lower court cannot be raised in this court for the first time without leave of court and no such leave has been sought and obtained. In any event, even if the evidence of the respondent and her attorney are totally ignored it does not automatically mean that the appellant’s case has been proved and that he is entitled to judgment as it is his duty to prove his case on the strength of his own case and not on the weakness of the respondent’s case. See Oyewole v. Oyekola (1999) 7 NWLR (Pt. 612) 560.’]
.
.
.
✓ DECISION:
‘In the result I see no merit in this appeal and I hereby dismiss it and affirm the decision of the trial court. The appellant shall pay costs of N5,000.00 to the respondent.’
➥ FURTHER DICTA:
⦿
➥ LEAD JUDGEMENT DELIVERED BY:
James Ogenyi Ogebe, JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 3 of the Illiterate Protection Law of Rivers State reads: “Any person who shall write any letter or document at the request, on behalf, or in the name of any illiterate person shall also write on such letter or other document his own name as the writer thereof and his address and his so doing shall be equivalent to a statement: (a) that he was instructed to write such letter or document by the person for whom it purports to have been written and that the letter or document fully and correctly represents his instruction, and (b) if the letter or document purports to be signed with the signature or mark of the illiterate person, that prior to its being so signed it was read over and explained to the illiterate person and that the signature or mark was made by such person.”
➥ REFERENCED (CASE)
⦿ STRICT COMPLIANCE WITH THE ILLITERATE PROTECTION LAW
In the case of S.C.O.A. Zaria v. Okon (1959) SCNLR 562; (1959) 4 FSC 220 at 223 the Supreme Court in interpreting this provision above, quoted with approval the judgment of Smith J. in the case of U.A.C of Nigeria Ltd. v. Edems & Ajayi (1958) NRNLR 33 as follows: “The document on the face of it does not comply with the section. The object of the ordinance is to protect an illiterate person from possible fraud. Strict compliance therewith is obligatory as regards the writer of the document. If the document creates legal rights and the writer benefits thereunder, those benefits are only enforceable by the writer of the document if he complies strictly with the provisions of the ordinance. If a document which does not comply with the provisions of the ordinance creates legal right between the illiterate and a third party then evidence may be called to prove what happened at the time the document was prepared by the writer before the parties signed it. But the writer himself cannot adduce evidence in his own form to remedy the omission.”
➥ REFERENCED (OTHERS)
