⦿ CASE SUMMARY OF:
Francis Anaeze v. Ude Anyaso (1993) – SC
(1993) 5 NWLR (Pt.291)1;
2 (1993) 5 SCNJ 151;
⦿ LEAD JUDGEMENT DELIVERED BY:
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Chief Onyiuke, S.A.N.
FOR THE RESPONDENT
– Chief Udechukwu
According to the statement of claim and his oral testimony at the trial, plaintiff/respondent acquired the property in dispute, namely, 70 Danfodio Road, Aba from one Nnana Kalu in February, 1955. In the same year he used the property as security for a loan with the African Continental Bank (ACB) Ltd. He deposited his title deeds with the Bank for the purpose and executed a Memorandum of deposit, Exhibit A with the Bank.
Subsequently, he obtained a loan of 1,300.00pds (N2, 600) from the defendant/appellant. For this purpose he handed over to him, the renewed lease, “Exhibit B,” The African Continental Bank Ltd, was still holding the lease which expired in 1960. The plaintiff/respondent gave to defendant/appellant a receipt and put him in possession of 70 Danfodio Road, Aba, in addition to handing over the renewed lease of the property.
Plaintiff/respondent was out of the country and was living in the Cameroons for quite a long time. He only returned to the country at the end of the civil war, to request the defendant/appellant to surrender the property to him.
When the defendant/appellant refused, he instituted this action claiming as follows: “(a) Recovery of possession of a house and land known as No. 70 Danfodio Road, Aba in the Aba Urban Division. (b) An account of all the rents collected by the defendant from the tenants of the said house and land known as No. 70 Danfodio Road, Aba from 1964 until possession is given up.”
Defendant’s story is different in certain respects, it was that plaintiff/respondent agreed to sell the property to him at the price of 1,300 pounds (N2,600). He paid the amount agreed and plaintiff/respondent issued him with” Exhibit C.” and surrendered to him the renewed lease of the property “Exhibit B,” The defendant/appellant said that in pursuance of the transaction plaintiff/respondent took him to the Land office at Aba, and completed all the vital formalities for the transfer of the property to him. He was put in possession of the property.
The defendant/appellant relied on several letters from the Land office with respect to the transfer of possession, and the fact that the Governor had given his consent, in principle, to the transfer before the outbreak of the civil war. At the end of the civil war defendant/appellant could not trace the plaintiff/respondent for the completion of the transfer of the property to him. When eventually he was found on his return from the Cameroons, plaintiff/respondent refused to co-operate in the transfer of the property.
It was at this time, he claimed the transaction with the defendant/appellant was a loan, recoverable from the rents of the property. It was a transaction for the sale of the property.
Hence, when plaintiff/respondent brought the action as indicated, defendant /appellant counterclaimed as follows:
Particulars of Counter-claim
1. On or about the 5th day of October, 1964 the plaintiff sold Plot 5 in Block 159, otherwise known as 70 Danfodio road, Aba to the defendant for N2, 600.00, put the defendant into possession of the same surrendered to the defendant the Building Lease thereof and all the documents relating thereto.
2. The defendant claims to have specific performance of the aforementioned transaction and that the plaintiff may be ordered to take all the necessary steps required by law and execute a proper assignment of the said premises to the defendant.
The action was tried in the High Court, on the pleadings of the parties. At the end of the trial, the learned Judge Mbachu J. entered judgment for the plaintiff.
The Appellant appealed to the Court of Appeal, but the Court of Appeal upheld the decision of the trial Court. The Appellant has herein appealed to this Court.
1. Whether the respondent is illiterate and can therefore take the advantage of the Illiterates Protection Law, Cap. 64 Laws of Eastern Nigeria, 1963 applicable to Imo State of Nigeria.
2. Whether both the trial court and the Court of Appeal were right in their findings that Exh. B was a subsisting lease by the respondent in favour of A.C.B. containing a limitation clause prohibiting any further assignment of the property in dispute.
3. Whether, without Governor’s consent, the appellant could rely on Exhibit C and ask for a specific performance.
4. Whether the respondent was entitled to judgment when the evidence he adduced had on material occasion departed from his pleadings.
⦿ HOLDING & RATIO DECIDENDI
THE APPEAL WAS ALLOWED.
1. On issue 1, the Supreme Court held for the Appellant.
i. As I have said earlier, the issue of illiteracy is a question of fact to be decided objectively on the evidence presented to the court. In the present case, the only evidence by the respondent is his own ipse dixit that he is illiterate. The court cannot decide the issue of the respondent’s illiteracy on the scanty evidence given by him and his demeanor. As the learned counsel for the appellant observed the best evidence of the respondent’s illiteracy could have come from P.W.2 and who said nothing on that.
ii. Against this scanty evidence, there are Exhibits A and B. These are documents, complicated as they are, and signed by the respondent without any jurat. There was no issue of illiteracy raised in them. These exhibits go to affirm the contention of the appellant that the respondent is literate.
iii. The overall effect of Exhibits A and B go to support the appellant’s claim that the respondent was literate at the time he signed and issued Exhibit C to the appellant. He was aware, conscious and fully knowledgeable of the effect of what he was doing. It was not the respondent’s case that Exhibit C was written on his behalf by the appellant or his agent to deprive the appellant of the benefit therein he is seeking to enforce, nor was it the respondent’s case that the appellant fraudulently or by use of threat, force or any other illegal means induced the respondent to issue Exhibit C to him (the appellant).
2. On issue 2, the Supreme Court held, “On the issue of whether there was a subsisting mortgage in favour of A.C.B. Ltd. on the property in dispute, as averred in paragraph 4 of the Amended Statement of Claim, it is my view that this is not an important matter to the decision of the appellant’s case. And even if it is, the evidence before the court did not show that the purported mortgage of the A.C.B. Ltd. is prior in time to the appellant’s interest in the property in dispute since, as argued by learned Senior Counsel to the appellant, the purported mortgage evidenced in Exhibit A still remained undated and not signed by the mortgagee i.e. representative of A.C.B. Ltd. The question of its registration is therefore non issue, since it is not a valid and enforceable document. See Harvey v. Pratt (1965) 1 WLR 1025. If even Exhibit “A” had been properly executed, it is no more than a charge on the disputed property for the loan granted.”
3. On issue 3, the Supreme Court granted specific performance.
i. The law takes the view that, for a breach of contract for the sale of land, damages cannot usually be an adequate remedy and the purchaser is entitled to have the contract specifically performed.
ii. It is pertinent to mention as done by the learned Senior Counsel for the appellant that the respondent filed no reply to the appellant’s counter-claim, which therefore stands undisputed.
⦿ SOME PROVISIONS
Section 3 of the Illiterates Protection Law 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 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.
Section 4 for non-compliance with section 3 is against the maker of the document.
It provides as follows: 4. If the writer of any such letter or document shall fail to write thereon his name and address, or if having done so, any statement which under the last preceding section is in consequence implied, shall be found to be untrue, the writer shall be liable to a fine of fifty pounds or in default of payment to imprisonment for six months.”
⦿ NOTABLE DICTA
It is now trite that a party seeking to enforce the performance of a contract must show that all conditions precedent to such performance have been performed by him, or is ready and willing to perform all the terms which he ought to have performed. – Wali, J.S.C. Francis Anaeze v. Ude Anyaso (1993)
Where there is a valid enforceable contract and one of the parties thereto defaults in performance, as in this case, the other party has two options: (a) Insist on the actual performance of the contract or (b) Seek damages for breach. – Wali, J.S.C. Francis Anaeze v. Ude Anyaso (1993)
The law takes the view that, for a breach of contract for the sale of land, damages cannot usually be an adequate remedy and the purchaser is entitled to have the contract specifically performed. – Wali, J.S.C. Francis Anaeze v. Ude Anyaso (1993)
This court has always discouraged and disapproved of the proliferation of issues for determination. The appellant is guilty of that vice. The better approach has always been to formulate issues tersely to cover a number of grounds of appeal which are governed by the same applicable principles of law. Verbosity is not a merit in the formulation of issues. Similarly the economy of words in the formulation of issues should not be made at the expense of clarity. Brevity should not result in obscurity. Clarity, succinctness and terseness are the guiding indicia. – Karibi-Whyte, J.S.C. Francis Anaeze v. Ude Anyaso (1993)
In the absence of such evidence the presumption is that the maker of the signature is literate, understood the content of the document which he has signed without interpretation and was capable of reading and writing, hence his signature. – Karibi-Whyte, J.S.C. Francis Anaeze v. Ude Anyaso (1993)
I have said in this judgment that where a person signed a document which signature is found as a fact to be his own, and there is no evidence on the document itself, or aliunde to show that he could not have made the document, the presumption is that he is the maker. – Karibi-Whyte, J.S.C. Francis Anaeze v. Ude Anyaso (1993)
The Illiterates Protection Law applies to protect persons who have established that they are illiterate and that they did not understand the documents they are alleged to have signed, and that the documents were not read over to them. – Karibi-Whyte, J.S.C. Francis Anaeze v. Ude Anyaso (1993)
Land is property which has a fixed location and a special value and ordinarily damages are not to be regarded as an adequate substitute for the right either to acquire or dispose of an interest in it. Even if the appellant intends to purchase it merely in order to be able to sell it later at a profit or even keep the property as it is, damages will not under the present state of our economy be, regarded as a complete remedy for him. – Ogwuegbu, J.S.C. Francis Anaeze v. Ude Anyaso (1993)