Legalpedia Citation: (1989-04) Legalpedia 90396 (CA)

In the Court of Appeal

Holden At Enugu

Fri Apr 28, 1989

Suit Number: CA/E/180/82

CORAM

Sylvester Umaru Onu Justice, Court of Appeal

Owolabi Kolawole Justice, Court of Appeal

Braimah Amen Omosun Justice, Court of Appeal

PARTIES

JAMES A. AMIZU

APPELLANTS

1. BENJAMIN U. NZERIBE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONTRACT, EVIDENCE, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The plaintiff was and still is the bona fide owner of the property known as Plot 9 Block 217A WOBO LAYOUT otherwise 15, Ikwerre Road, Port Harcourt. On or about the month of November 1969, during the Nigerian Civil War, the defendant approached the plaintiff and offered to repair or reconstruct the plaintiffs building situate in Port Harcourt known now as 15 Ikwerre Road, if damaged as a result of Military operations, for 40,000 Biafran currency notes. The plaintiff and the defendant entered into an “agreement” for the aforesaid repairs and specifically averred in paragraph 8 of the said “agreement” that should the plaintiff fail to pay the said 40,000 Biafran currency notes within 3 months of the satisfactory completion of the repairs, the defendant shall request in writing, an assignment of the said property to the defendant.

At the time of the agreement averred above, the plaintiff and the defendant were living in the secessionist enclave and not in a position to ascertain the state of damage, if any, of the property the subject matter of the agreements. The defendant took advantage of the plaintiff’s illiteracy prepared two other documents namely for an assignment of aforesaid property to the defendant with the consent of the Military Governor of the Republic of Biafra which the plaintiff signed and a power of Attorney authorizing the defendant to enter the aforesaid property which was also signed by the plaintiff.

At the end of the civil war in 1970, the plaintiff’s property aforesaid was intact and the defendant did not carry out any repairs so the plaintiff repudiated the said agreement and informed the defendant that his property is intact but the defendant told the plaintiff that the property now belongs to him.

The Defendant on the other hand claimed that the plaintiff has since sold the said property to the defendant who is now the present owner. This, he claimed, was after the plaintiff had approached him and offered to sell to the said property which he obliged for forty thousand Biafran pounds which was at the time the medium of exchange for every person trapped in the then secessionist enclave.

The case was heard by Dagogo Manuel, J. in 1980 who dismissed the appellant’s claims. The appellant was aggrieved and has appealed to this Court.

HELD

Appeal allowed

ISSUES

1. Was the transaction between the parties a sale of the property in question or was it an agreement to repair and what is the effect in law of Exhibits E, E1 and E2?
2. If the agreement between the parties was for the sale of the property, what is the effect of the letter of repudiation 7 Exhibit A and the reply thereto Exhibit B?
3. What is the effect of Sections 14(7)(a) and (b) and 15 of the Abandoned Property (Custody and Management) Edict 1969 on the transaction between the parties?

RATIONES DECIDENDI

CAMOUFLAGE – MEANING OF CAMOUFLAGE

Camouflage is defined as any device or means for disguising, or for deceiving an adversary (Chambers 20th Century Dictionary New Edition page 180) – Per Owolabi Kolawole, JCA

 

ILLITERATE LAW – THE OBJECT OR ESSENCE OF THE ILLITERATE LAW

The object of the law is to protect an illiterate from possible fraud, strict compliance therewith is obligatory as regards the writer of the document. If the documents create 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 Law. (See S.C.O.A. Zaria v. Okon (1959) 4 F.S.C. 220 at 223. U.A.C. of Nigeria Ltd. v Edems and Ajayi (1958) N.R.N.L.R. 33).

The law is designed to protect and not to penalize the illiterate. The appellant can for instance, rely on such documents in support of his case although they fail to comply with the provisions of the law. (See Ezera v Ndukwe (1961) 1 All N.L.R. 564 at 22568).

Although Section 5 of the Law exempts Barristers and Solicitors from the provisions of the law, it is fundamental that a document prepared for an illiterate must carry a jurat that prior to its being so signed it was read over and explained to the illiterate person and that he fully understood the contents.

The matter was succinctly put in Halsbury’s Laws of England Volume 11, 3rd Edition at page 352 thus-

“When a deed is to be executed by a blind or an illiterate man it should first be correctly read over or fully and accurately explained to him; and he cannot be required to execute it until it has been so read or explained to him. If it is falsely read over or falsely explained to him in some particular going to the root of the matter, that is, to the substance of the whole consideration, he will not be bound thereby.

” The plea of non-est factum was available to the appellant who has shown that there never has been, or that there was not existing at the time of the plea, any valid execution of the deeds on his part. According to the appellant he was induced by the machinations of the respondent to execute the deeds of assignment and the Power of Attorney under a substantial mistake as to its contents, believing it to give effect to an entirely different transaction from what was expressed therein, so that when he executed Exhibits E1 and E2 his mind did not accompany his outward act, he may plead that for this reason Exhibits E1 and E2 were not his deeds, and as the deeds were established by the evidence, the deeds were altogether void from the beginning. (See HLE Volume 11 3rd Edition p. 360). – Per Owolabi Kolawole, JCA

AGREEMENT – WHETHER A DATE OF EXECUTION AND AN OPERATIVE DATE ARE NECESSARY TO MAKE AN AGREEMENT EFFECTIVE

I am clearly of the view that for any agreement to be effective, there must be a date of execution or a date when the agreement will become operative. Any agreement which bears no date of execution or the date when it comes into operation is invalid and unenforceable.

It is therefore erroneous for the learned trial Judge to rely on any of the provisions of Exhibits E and E2. It was also erroneous for the learned trial Judge to hold at page 30 of the record that the surrender of the appellant’s title deed was in compliance with the terms of the agreements for those agreements are invalid. In Harvey v Pratt (1965) 1 W.L.R. 1025, a written agreement for a lease of a garage gave all the necessary and usual particulars except the commencement of the term. The landlord later claimed that there was no binding or enforceable contract. It was held that an agreement for a lease which does not state when the term is to commence is invalid, and there is no implication that it is to start on the date of the agreement or within a reasonable time afterwards. Lord Denning, M.R., stated at pages 1026 and 1027 –

“The first point is this: The document does not specify any date from which the lease is to commence. It has been settled law for all my time that, in order to have a valid agreement for a lease, it is essential that it should appear, either in express terms or by reference to some writing which would make it certain, or by reasonable inference from the language used, on what day the term is to commence…..

This is an agreement for a lease to start at some future time. The time has not been specified or agreed. There was therefore, no concluded contract.

“The two documents contained no date, parol evidence was admissible to show when they were written and from what date they were intended to operate (see Morrell v Studd & Mullington (1913) 2 Ch. 648 at p. 658). There was no such parol evidence and so the two documents 27 Exhibits E and E2 were invalid and unenforceable. It follows that if Exhibit E was invalid paragraphs 8 and 10 thereof as well as all the provisions therein were invalid. Exhibit E2, the Deed of Assignment of the property in dispute was also in-valid and no property was previously assigned to the respondent. – Per Owolabi Kolawole, JCA

CONTRACT – THE LEGALITY OF A CONTRACT CONTAINING AN ILLEGAL CONSIDERATION/PROMISE

Alexander, C.J.N., stated the law thus

“It is the law that a contract is illegal if the consideration or the promise involves doing something illegal or contrary to public policy or if the intention of the parties in making the contract is thereby to promote something which is illegal or contrary to public policy; an illegal contract is void and cannot be the foundation of any legal right. This proposition of law was clearly enunciated by Brett, in Harman v Jeuchner (1885) Q.B.D. 561, at page 563 as follows:

“When the object of either the promise or the consideration is to promote the committal of an illegal act, the contract itself is illegal and cannot be enforced… – Per Owolabi Kolawole, JCA

COURTS – CONDUCT OF COURTS IN GIVING MEANING/INTERPRETATION TO AGREEMENTS/CONTRACTS

Lord Wensleydale gave a warning against what the learned trial Judge did in this case when he stated in an old case –

“The question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregard of which often leads to erroneous conclusions.” (See Monypenny v Monypenny (1861) 9 H.L.C. 114 at p.146) – Per Owolabi Kolawole, JCA

CONTRACT – WHETHER A MAN’S RIGHT TO POSSESS HIS CHATTELS WILL BE AFFECTED BY ILLEGALITY IN THE CONTRACT THAT CONFERED THOSE RIGHTS ON HIM

The principle of law has been stated in Bowmakers Ltd. v. Barnel Instruments Ltd. (1945) K.B. 65 at p.71 as follows:-

“In our opinion, a man’s right to possess his own chattels will as a general rule be enforced against one who, without any claim of right, is detaining them, or has converted them to his own use, even though it may appear either from the pleadings or in the course of the trial, that the chattels came into the defendant’s possession by reason of an illegal contract between himself and the plaintiff provided that the plaintiff does not seek, and is not forced, either to found his claim on the illegal contract or to plead its illegality in order to support his claim. – Per Owolabi Kolawole, JCA

ABANDONED PROPERTY – THE MEANING OF ABANDONED PROPERTY UNDER SECTION 237 OF EDICT NO.8 OF 1969

Edict No.8 of 1969 defines an abandoned property in Section 237 thereof as follows:-

“abandoned property” means any property movable or immovable belonging to a person whose home town or place of origin is not situated in the Rivers State of Nigeria which, in the opinion of the Military Governor or the Authority, has been abandoned by the owner thereof as a result of the Civil War in Nigeria or the disturbances in the country leading to and is at the time of the making of this Edict not in the physical occupation or under the personal control and management of such owner. – Per Owolabi Kolawole, JCA

CASES CITED

STATUTES REFERRED TO

1. Abandoned Property (Custody and Management) Edict No. 8 of 1969 of the Rivers State of Nigeria
2. Illiterates Protection Law Cap. 64 Laws of Eastern Nigeria
3. Central Bank Conversion (Amendment) Decree, Decree No. 48
4. Land Use Act of 1978

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