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Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

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Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)
by PaulPipAr

Aina Modupe Jeje


1. Enterprise Bank Limited
2. S. A. Oloyede
3. Ojo Ajayi

(2015) LPELR-24829(CA);

Court of Appeal of Nigeria

Ayobode Olujimi Lokulo-Sodipe, JCA

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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.

- T.M. Ogunmoroti

FOR THE RESPONDENT - T.O. Obisesan; Pastor L.O. Aladetoyinbo

The instant cases was instituted by one Caleb Jeje against Owena Bank Plc; and the 2nd and 3rd Respondents respectively on record.
Caleb Jeje (Plaintiff) disclosed that he had some dealings with Owena Bank Plc as a customer and that he applied for a loan from the said Bank on his current account in addition to the money he already had in the said account. The loan was required for his trading business. Having averred that he is an illiterate in all languages, and after narrating what the manager of Owena Bank Plc did to facilitate the opening of his account and how he fell out with Owena Bank Plc, Caleb Jeje further averred that he did not sign any loan agreement as the loan he sought had not been approved before the relationship between him and Owena Bank Plc was severed.
Caleb also made averments that went to show that his house was wrongfully and irregularly sold in connection with the loan, by Owena Bank Plc (through the agent it appointed or procured for that purpose) to the 3rd Respondent.
The 3rd Respondent on record filed a separate statement of defence on 24/7/1996. It is dated 20/7/1996. (See pages 13 - 14 of the record). Therein he controverted the cases of Caleb Jeje and set up a cases to the effect that he legally bought the house of Caleb Jeje in question.
Caleb Jeje died after the institution of the instant cases and the filing of the statement of claim therein.
Changes also occurred in the banking industry that affected Owena Bank Plc amongst others. As a result of these developments, and for other reasons, parties amended their pleadings as they considered expedient with the cases being tried.

1. Whether the late father of the Appellant was an illiterate and legally obtained a loan from the 1st Respondent?
2. Whether the deed of legal mortgage between the Appellant or her late father is regular or valid and if it is invalid and irregular whether the pronouncement of its validity by the learned trial judge has not occasioned a miscarriage of justice?
3. Whether the property of the late Appellant's father at 12(a) Ajilosun Odo-Ijigbo Street Ado-Ekiti was properly and legally sold by the Respondents?
4. Whether the 3rd Respondent proved his counter-claim as to entitle him to the reliefs contained in his said counter-claim?


1. Issue 1 was settled against the Appellant.
On issue 1, the Court of Appeal held, "I hold that the trial Judge was in error when he concluded that the plaintiff is an illiterate. His conduct and actions clearly show that he understood the nature, purpose and consequence of his transaction with the defendants with regard to the supplemental lease and it should therefore be enforceable against him.";
"Suffice, it to say that by the same reasoning it follows that as Appellant's late father has been found not to be an illiterate and that Exhibit G and indeed any other letters or documents written by him in connection with the loan did not have to carry illiterate jurats, then the legality of the loan taken by Appellant's late father from 1st Respondent, cannot be impugned on his unproven illiteracy."

2. This issue was resolved against the Appellant. On issue 2, the Court of Appeal held, "It is my considered view that having regard to what a contract is and particularly as an act between the parties thereto, Exhibit E being the document in which Appellant's late father and Owena Bank Plc, reduced into writing the fact of the existence of their agreement and the terms and conditions thereof, is definitely admissible at the instant of either of the parties thereto even if the maker (in the sense of the person who prepared the deed) was not called to tender it."

3. Issue 3 was settled against the Appellant. The Court of Appeal held, "Flowing from all that has been said is that the house of the late father of the Appellant having been sold to 3rd Respondent by private treaty as permitted by the Exhibit E, same is undoubtedly legal and valid. This is particularly so as Appellant in her pleadings did not set up any cases suggestive of the fact that the house was sold at an undervalued price."

4. On issue 4, the Court of Appeal held, "The situation in the cases is that 3rd Respondent repeated the averments in his statement of defence for the purposes of the reliefs which he sought in the counter-claim. It has not been suggested by learned lead counsel that the Respondents did not adduce evidence in support of the averments in the statement of defence of 3rd Respondent or that the reliefs sought in the counter-claim cannot in law be granted upon evidence that has been or was adduced in support of the averments in the statement of defence and which are ipsissima verba with those in the counter-claim. It is my considered view that it is most absurd to expect 3rd Respondent to have expressly stated that he was adopting evidence adduced in support of the averments in his statement of defence as evidence in support of the averments regarding his counter-claim when the averments as already said are the same. The totality of the evidence placed before the Lower Court by parties was to be used by the learned trial Judge to resolve the issues raised in the counter-claim and the main action which consisted of the cases of the Appellant on the pleadings and that of the Respondents on their respective pleadings as all of them were tried together."

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126(a) of the Evidence Act, 2011;

AYANRU V. MANDILAS LTD (2007) LPELR - 670 (SC), (2007) 10 NWLR (Pt. 1043) 462 the Supreme Court in dwelling on who an "illiterate" is, per M. Mohammed, JSC; (as he then was) said thus: "It is trite law that where there is factual situation which raised the presumption of literacy the onus of rebuttal of such presumption rests on the party that assumes illiteracy. In this cases the plaintiff has the burden to prove his illiteracy."

On the claim of the appellant that he did not sign or execute exhibits B and F because he was illiterate, with the evidence on record, particularly the documents comprising the Deed of Lease exhibit '91A'91, the letters written and signed by him, the receipts for the rents of his premises issued and signed by him, the appellant was very far from the point of proving that he was the illiterate he claimed to be, taking into consideration that he was a professional driver presumably with a professional drivers licence. - Ayobode Olujimi Lokulo-Sodipe, JCA. Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

Appellant never portrayed her late father to be an idiot or of such a mental state or retardation that he could not have acquired knowledge to be able to write by himself when properly instructed or guided and without the instructor or guidance counsellor doing the writing. - Ayobode Olujimi Lokulo-Sodipe, JCA. Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

Though it is a settled position of law that a declaration by a person or his ipse dixit that he is an illiterate by itself alone, cannot establish that fact, it is however the position of the law that where there is factual situation which raises a presumption of literacy, the onus of rebuttal of such presumption rests on the person who asserts his own illiteracy. In other words, the literacy of a person when in question can eminently be presumed from the totality of the evidence placed before the court in relation thereto. - Ayobode Olujimi Lokulo-Sodipe, JCA. Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

Opinion is not the same thing as establishment of a fact by evidence. - Ayobode Olujimi Lokulo-Sodipe, JCA. Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

It is my considered view that it is clear from the settled principles relating to contracts that only parties to a deed can properly have a cause of action in respect of their own deed which Exhibit E definitely is irrespective of who prepared it. A deed like any other contract can undoubtedly be declared invalid. However this can only be on the basis of matters intrinsic or innate therein and not something extrinsic to it. The corollary of this in my considered view is that a party to a contract be it simple contract or under seal, cannot avoid or void a contract on any perceived act of commission or omission not arising from or not having any relationship with the subject matter of a contract or deed, as such a matter or matters will be glaringly extrinsic to the simple contract or deed in question. - Ayobode Olujimi Lokulo-Sodipe, JCA. Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

Furthermore, it is also my considered view that the argument of Respondents to the effect that the principle of law enunciated in the Okafor cases decided in 2007 cannot be applicable to a document such as Exhibit E which was made as far back as 1986, is well founded. This is because the pronouncement by the court regarding the position of law as it relates to a particular matter, cannot affect all that has been done contrary to the new position as declared. In other words, like the position of the law is to the effect that anything done under a repealed enactment is not affected by the repealing enactment, cases law (i.e. law as put in place by the courts) cannot alter the position of things done prior to when the law was declared otherwise by the court. For anything but this to be the cases would evidently work immense injustice. Decisions of courts are to promote justice and not injustice. - Ayobode Olujimi Lokulo-Sodipe, JCA. Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

Counter-Claim is a claim for relief asserted against an opposing party after an original claim has been made; that is, a defendant's claim in opposition to or as a set-off against the plaintiff's claim. It is not only a claim by the defendant against the plaintiff in the same proceedings but it is regarded as an independent and separate action in which the defendant/counter claimant is in opposition of the plaintiff and therefore has the burden of proving the counter claim to be entitled to judgment thereon. - Ayobode Olujimi Lokulo-Sodipe, JCA. Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

The filing of a counter-claim by the Respondents in the action of the Appellant does not derogate from the fact that the Respondents' counter-claim is a separate and independent action. The Respondents' counter-claim being a separate and independent action must therefore not only be instituted in accordance with the rules of court but also must comply with the rules of pleadings. - Ayobode Olujimi Lokulo-Sodipe, JCA. Aina Modupe Jeje v. Enterprise Bank Limited & Ors (2015)

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