⦿ CASE SUMMARY OF:
Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor (1994) – SC
by PaulPipar
⦿ PARTIES
APPELLANT
Edokpolo & Co. Ltd.
v.
RESPONDENTS
1. Samson Ohenhen
2. Alfred Ehigiator Okenedo
⦿ CITATION
(1994) LPELR-SC.174/1991;
[1994] 7 NWLR (Pt.358) 511;
⦿ COURT
Supreme Court
⦿ LEAD JUDGEMENT DELIVERED BY:
Yekini Olayiwola Adio, JSC
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– A.O. Alegeh Esq.
FOR THE RESPONDENT
– K. S. Okeaya Inneh, SAN
⦿ FACT
The cause of the present dispute was another parcel of land which the father of the 2nd respondent allegedly sold to the appellant which had earlier been leased to the 1st respondent by the father of the 2nd respondent for fifty years.
The appellant paid N2,400.00 for it and the deed of conveyance executed by the parties in relation to the transaction was Exhibit “2”. At all material times and up to the time of his death in 1977, the father of the 2nd respondent, aged 120 years, was bed ridden and was a cripple.
As soon as the 1st respondent commenced building operations on the parcel of land, there were protests by the appellant. The appellant alleged that it brought the matter to the notice of the father of the 2nd respondent (hereinafter referred to as “the deceased”) and the deceased alleged that his thumb-impression on Exhibit “9” (Lease Agreement) must have been forged and that he did not grant to the 1st respondent lease for a period of fifty years in relation to the land in dispute; the agreement was oral and only a lease for three years was granted.
The learned trial judge, after consideration of some of the evidence led by the parties and of the submissions made by their Counsel, entered judgment for the appellant.
He held that fraud was not established in relation to Exhibits “2” and “9” executed by the deceased in relation to the land in dispute, in favour of the appellant and the 1st respondent, respectively. In his view, the Land Instruments Registration Law (Cap.81) was the relevant Law for the purpose of this case and he did not agree with the submission of the learned Counsel for the 1st respondent that by virtue of section 5 of the illiterates Protection Law, non-compliance with the provisions of the Law in relation to Exhibit “9” (Lease Agreement) did not invalidate the document.
In the circumstance, he held that Exhibit “9” was invalid because its contents were not read and interpreted to the deceased and by reason also of the fact that there was nothing therein to show that it was executed in the presence of a magistrate or Justice of the peace as prescribed in section 8 of the Land Instruments Registration Law, Cap. 81.
He also held that Exhibit “2” was valid.
⦿ ISSUE
(1) Whether the Court of Appeal was right in holding that Exhibit “9” complied with the provisions of the Land Instruments Registration Law, Cap.81 of the Laws of Bendel State, 1976.
(2) Whether the Court of Appeal was right in raising and basing its judgment on an issue not raised by either party.
(3) Whether the Court of Appeal was right in giving legal effects to Exhibit “9” in the circumstances of this case.
⦿ HOLDING & RATIO DECIDENDI
Appeal Failed!
1. The Supreme Court held that the Court of Appeal was right in holding that Exhibit “9” complied with the provisions of the Land Instruments Registration Law, Cap.81 of the Laws of Bendel State, 1976.
RATIO:
i. In the case of Exhibit “9”, the words of Execution “signed and delivered by the within named lessor” were in it, combined with the words of interpretation. In it, also, were the words “in my presence” on top or before the signature and official designation of the justice of the peace. What the learned trial Judge regarded as deficiency was that the foregoing things were not in their proper positions in Exhibit “9”, and it was on that account only that he held that Exhibit “9” did not comply with the provisions of the Land Instruments Registration Law and was, therefore, invalid. The conclusion of the learned trial Judge, on the point, was erroneous.
ii. If, as it was the position in this case, all the essential things which an instrument like Exhibit “9” should contain are contained in it and what appears to be wrong is that they are not in their proper or correct positions, the instrument may not on that ground alone be said to be invalid. The consequence of basing a judgment on such a technical point can be very grave and may result in a miscarriage of justice.
iii. Further, as all the essential things, particularly the signature of the justice of the peace and the magic words: “in my presence” and “Justice of the peace” were in Exhibit “9”, the learned trial Judge should have presumed or inferred that the instrument was executed in the presence of the justice of the peace.
2. On issue 2, the Supreme Court held “It is not correct to say, as the appellant had said, that the question whether Exhibit “2” or “9” should speak for itself or of the things that appeared on the face of each of the documents and their relative positions was not raised by the parties. The judgment of the learned trial Judge showed that he held the view that each of the documents should speak for itself and it was by examining the things that appeared on the face of the documents and their relative positions in the documents that he came to the conclusion that Exhibit “2” complied with the Illiterates Protection Law and the Land Instruments Registration Law and that Exhibit “9” did not.”
3. Issue 3 was answered in the affirmative.
⦿ REFERENCED
⦿ SOME PROVISIONS
Section 3 and 5 of the Illiterates Protection Law, Cap. 70, Laws of Bendel State provide as follows:
“3. 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 instructions; 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.
Land Instruments Registration Law, Section 8:
“No Instrument executed in Nigeria after the commencement of this Law, the grantor or one or more of the grantors, whereof, is illiterate shall be registered unless it has been executed by such illiterate grantor or grantors in the presence of:
(a) a magistrate; or
(b) the president of a Grade A Customary court or a Grade B Customary court;
(c) a justice of the peace, and is subscribed by such magistrate… or justice of the peace as a witness thereto.”
Section 5 of the Illiterate Protection Law:
“This Law shall not apply to the writing of any letter or other document written in the course of his business by or at the direction of any person admitted to practise and practising as a legal practitioner in a High Court or the Supreme Court.”
⦿ NOTABLE DICTA
The Illiterates Protection Law, which the appellant alleged that exhibit “9” contravened was made for the protection of illiterate persons. It is the Illiterate person at the request of whom any person writes a letter or document that requires protection and he is the one who may seek the protection given by the Law by complaining that the letter or document written at his request and which was signed with his signature or his mark was not, prior to its being so signed, read over and explained to him. – Yekini Olayiwola Adio, JSC. Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor (1994)
In short, where a letter or document is prepared by a legal practitioner at the request or on behalf of his client who is an Illiterate, the legal practitioner need not interprete and explain the letter or document to the client prior to the client signing or making his mark on the letter or document… In the circumstance, section 5 of the Illiterates Protection Law exempted the D.W.6 (Legal Practitioner) from complying with the provisions of the Law – Yekini Olayiwola Adio, JSC. Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor (1994)
In short, apart from the oral evidence led on the point by the respondents, particularly the evidence of D.W.6, the legal practitioner who prepared Exhibit “9” at the request of the deceased and who saw to the proper execution of it according to law, there was in addition in favour of the 1st respondent the provision of section 5 of the Law which exempts a document prepared by a legal practitioner from compliance with the provisions of the Law. Even if the provisions of the Law were applicable to the Exhibit, the party who was competent and who had the standing to raise the question of non-compliance with the said provisions did not or had not raised it. – Yekini Olayiwola Adio, JSC. Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor (1994)
If a court raises an issue, which the parties themselves have not raised, because it is material for the determination of the case or appeal before it, the parties must be given an opportunity to argue the point before the issue is determined. – Yekini Olayiwola Adio, JSC. Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor (1994)
The legal position is that where an instrument requiring registration under the Land Instruments Registration Law is not executed before a designated authority, it is not admissible. – Yekini Olayiwola Adio, JSC. Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor (1994)
The court will presume the existence of one fact from the existence of proved fact where such a presumption or inference is irresistible or where there is no other reasonable presumption or inference which fits all the facts. – Yekini Olayiwola Adio, JSC. Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor (1994)
Averment in the pleading of a party which is admitted in the pleading of the other proper party needs not be proved. – Yekini Olayiwola Adio, JSC. Edokpolo & Co. Ltd. v. Samson Ohenhen & Anor (1994)
