IRO EZERA (APPELLANT)
INYIMA NDUKWE (RESPONDENT)
(1961) All N.L.R. 587
Division: High Court (East)
Date of Judgment: 10th July, 1961
Case Number: Appeal No. C/13a/1961
Before: Idigbe, J.
Appeal from Magistrates' Court.
The respondent, Secretary of the Asaga Union at Calabar, brought this action, on behalf of the Union, in the magistrate's court against the appellant on foot of a promissory note executed by the appellant by thumb-print. The promissory note was drawn and the thumb-print was witnessed by a former secretary of the Union who signed his name, "Stephen Oji Benson, Honourable Secretary", at the appellant's request. The promissory note did not comply with the Illiterates Protection Ordinance. The Writ did not show that the appellant sued in a representative capacity.
At the trial, the Promissory Note was admitted in evidence in support of the respondent's claim, and evidence was given by the former secretary that he drew and witnessed the note at the appellant's request and that he explained the contents to the appellant.
The appellant did not give evidence, but submitted that the respondent had not made out a case; and that the respondent should have shown on the Writ that he brought the action in a Representative capacity.
The Magistrate found, inter-alia, that the former Secretary in witnessing the Note did so in his personal capacity and not as a agent of the Union; that the words "Honourable Secretary" were merely descriptive; and that the Union was a stranger to the drawing and execution of the promissory note. Judgment was given against the appellant.
In his Grounds of Appeal the appellant claimed, inter alia;
(a) Misdirection:-In support of this ground he set out a lengthy passage from the magistrate's Judgment and nothing more. No particulars of the alleged misdirection were given;
(b) That the promissory note was improperly admitted in evidence as it did not comply with the requirements of the Illiterates Protection Ordinance.
(1) If an appellant alleges Misdirection as a Ground of Appeal, it is his duty to give particulars of the Misdirection alleged, unless it is patent from the passage quoted from the Judgment; He must also state whether the Misdirection is one of law or fact;
(2) The Illiterates Protection ordinance does not render a document which does not comply with its provisions inadmissible in evidence.
(3) The Illiterates Protection Ordinance precludes any inference that the illiterate person understood the contents of a document which does not comply with its provisions.
(4) Evidence to prove that the contents of such a document had been explained to the illiterate person before he thumb-printed it is not admissible in an action brought by the writer of the document against the illiterate person to enforce rights or benefits derived from the document by the writer.
(5) Such evidence is properly admissible in an action brought against the illiterate person to enforce rights under the document, where the document was prepared by a third party at the illiterate person's request.
(6) Where an action is brought in a representative capacity, failure to express that fact on the Writ of Summons does not necessarily invalidate the proceedings.
(7) An appellate court will of its own motion, amend the title to proceedings in order to show clearly the capacity in which a party sues or is sued.
Cases referred to:-
R. v. Wyman, 13 Crim. App. R.163.
R. v. Fielding, 26 Crim. App. R. 211.
U.A.C. v. Edems and Ajayi, (1958) N.R.L.R. 33.
S.C.O.A. v. A.D. Okon, 4 FSC 220.
Re Tottenham, (1896) 1 Ch. 628: 65 L.J. Ch. 549; 74 L.T. 376; 44 W.R. 539.
Divisional Chief Gbogbolulu of Vakpo v. Head Chief Hado of Anfoega Akukome 7 W.A.C.A. 165.
Kweku Mensah and others v. The King, 13 W.A.C.A. 140.
R. v. Motesho Okoni, Raji and others, 4 W.A.C.A. 19.
Ordinance and Rules referred to:-
Illiterates Protection Ordinance, Cap. 88 (1948 Ed.)
E.R. Magistrates Court Rules Order III, rule 1(5), 3.
Appeal from magistrate's court.
Koofreh for the Appellant.
Okon for the Respondent.
Idigbe, J.:-The facts in this appeal are clear. The plaintiff/respondent who is the Secretary of the Asaga Union at Calabar claims from the defendant/appellant a sum of £13-19s-0d which he says that defendant/appellant borrowed from the Asaga Union at Calabar on the first of June, 1958 and promised to repay to the Union on the 15th of April, 1959. A document which is in substance a promissory note and which respondent alleged was made by the appellant pursuant to the loan was received in evidence as exhibit 'A'. The appellant having failed to repay the amount to the Union in April 1959, respondent has at the request of the Union brought this claim against him. Exhhibit 'B' is a letter showing a previous demand for payment before action was taken by respondent. Apart from exhibit 'A', the respondent called two witnesses in support of his claim.
The appellant gave no evidence. He rested his case on the evidence of the plaintiff/respondent, having made a submission that the plaintiff/respondent has not made out a case. The learned Magistrate found that a case had been made out and gave Judgment in favour of the plaintiff/respondent. Against this Judgment, the appellant now appeals and has filed 9 grounds of appeal.
At the hearing of the appeal Mr Okon took preliminary objection to three of the grounds of appeal viz: grounds 4, 5 and 8. Mr Koofreh appearing for the appellant promptly amended ground 4. Ground 5 reads as follows:-
The learned trial Magistrate was wrong in law to hold that an action brought by the plaintiff in his personal capacity as Secretary of Asaga Union for debt due to the Union when that was not disclosed on the summons.
It was pointed out to Counsel for appellant that this ground appears to be incomplete, and that in its present form it is hardly intelligible. As no amendment was asked for it was struck out. Ground 8 alleged misdirection on the part of the learned trial Magistrate. This paragraph merely sets out a lengthy passage in the Judgment of the learned trial Magistrate and nothing more. No particulars of the alleged misdirection were given. Counsel therefore left it to the court to traverse the entire passage and surmise the gravamen of the alleged misdirection. If an appellant alleges misdirection it is his duty to give particulars of the misdirection alleged unless the misdirection is patent from the passage quoted from a Judgment. He must state whether the misdirection is as to law or facts of the case. This is certainly the practice in Criminal Appeals-See R. v. Wyman 13 C.A.R. 163 at 165; R. v. Fielding, 26 C.A.R. 211; Kweku Mensah and others v. The King 13 W.A.C.A., 140; and R. v. Motesho Okoni, Raji, and others 4 W.A.C.A. at 19. While it is true that a more liberal attitude may be taken in regard to civil appeals, it seems to me that there is equal need for compliance with this rule of practice in civil appeals. Accordingly, I ordered that paragraph 8 of the ground of appeal be struck out.
Appellant then argued the remaining grounds 1, 2, 3, 4, 6, 7 and 9. Ground 9 relates to weight of evidence and it was argued separately. The other grounds were taken together. Appellant's argument in respect of grounds 3 and 4 appear to me to be very substantial. The argument here was directed to exhibit 'A'. That was a document which respondent said appellant had thumb printed. The second witness for the respondent said that he made exhibit 'A' for the appellant at appellant's request. This witness who gave evidence as Stephen Oji Benson signed exhibit 'A' as Stephen Oji Ibem. His identity however has not been challenged. The substance of appellant's argument in grounds 3 and 4 is that exhibit 'A' does not satisfy the Illiterates' Protection Ordinance. Section 3 of this Ordinance requires the writer of a document made at the instance of an illiterate person, to enter his name on the document as the writer and also his address. Section 3(b) provides that this, having been done, is equivalent to a statement that prior to signing or thumb-printing the document, it had been read over and explained to the illiterate and that he (the illiterate) was the person who thumb-printed or signed the document.
Exhibit 'A' has no endorsement of the name of the writer and/or his address on the face of it, and does not comply with section 3 of the ordinance.
The appellant, I have already stated, did not give evidence. It was stated in evidence by the writer that he read over and explained the contents of exhibit 'A' to appellant and that it was the appellant who thumb-printed the document. This statement, to my mind, is prima facie evidence of appellant's illiteracy. But the document having failed to comply with section 3 of the Ordinance, the presumption given by section 3(b) does not arise. There is no evidence that the writer is a legal practitioner and so the provisions of section 5 of the Ordinance, are inapplicable to exhibit 'A'. It is true, that the Ordinance does not make a document inadmissible in evidence for want of compliance with its provisions, and so exhibit 'A' was properly admitted in evidence. But although admitted in evidence section 3(b) precludes any inference that the appellant understood the contents of exhibit 'A' before thumb-printing the same. But this does not mean that whenever such a document is admitted in evidence it cannot have any value. The Ordinance is designed to protect and not to penalise the illiterate. It can, for example, be admitted in support of the case of an illiterate although it fails to comply with the provisions of the Ordinance.
Therefore in my opinion it would be incorrect to make a general proposition of law that such documents which offend the Ordinance are inadmissible.
In the present case, although exhibit 'A' has been admitted the question however arises as to whether evidence of other witnesses is receivable to prove that the contents were explained to the illiterate before he thumb-printed it, since that cannot be presumed under Section 3(b). In my opinion where the document creates legal rights between the writer and the illiterate and the writer deriving a benefit under it, seeks to call evidence to prove that the contents had been explained to the illiterate person before he thumb-printed the documents such evidence ought to be excluded since it directly contravenes Section 3 of the Ordinance. But where a third party seeks to establish a claim against the illiterate party he may adduce evidence of other witnesses to establish the fact that the document was read over and explained to the illiterate party before he signed or thumb-printed the same. I have considered the question whether Stephen Oji Benson who was Secretary of the Asaga Union when exhibit 'A' was made was acting as agent of the Union in making the document and I find that in his evidence, Stephen Oji said:-
I wrote an I.O.U. when the defendant borrowed the sum of £13-19s-0d from the Union on 1-6-58. This is the I.O.U. (exhibit 'A' Identified). It was the defendant who begged me to write out exhibit 'A'.
It is my opinion that when this witness signed exhibit 'A' as "honourable Secretary" he merely described the office he was holding in the Union at the time, and his evidence in court makes it quite clear that he was not acting as agent of the Union when he wrote out exhibit 'A'. To my mind, as between the appellant and Stephen Oji, the Union-the real plaintiff in the case-is a third party, and can adduce evidence in proof of the fact that exhibit 'A' was signed by appellant after the contents had been explained to him.
In U.A.C. v. Edems and Ajayi, 1958 N.R.L.R. 33 at 34 Smith, J. observed as follows:-
...Strict compliance therewith is obligatory as regards the writer of the document. If the document creates legal rights and the writer benefits there-under 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 rights 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 and the parties signed it. But the writer himself cannot adduce evidence in his own favour to remedy the omission.
In the above case Smith, J., was considering the liabilities of an illiterate party under a document which did not satisfy the provisions of Section 3 of the Illiterates Protection Ordinance. The court of Appeal approved the above observations of Smith, J., when it considered the appeal in S.O.A. v. A.D. Okon, 4 FSC 220. The respondent's case is therefore quite apart from exhibit 'A', supported by the evidence of other witnesses whose evidence is to the effect that appellant received the sum of £13-19s-0d as a loan and that when exhibit 'A' was made appellant thumb-printed it after its contents had been read over and explained to him. The learned Magistrate accepted the evidence.
Appellant also complained in his grounds of appeal that the action although brought in plaintiff's personal capacity was in truth in respect of money belonging to the Union and that approval of Court to bring the action on behalf of the Union has not been obtained. With this contention, I will deal anon. I have already stated that respondent is the Secretary of the Asaga Union. The learned Magistrate found that the respondent in his capacity as the Secretary of Asaga Union brought this action for recovery of the money due to the Union. There is evidence on record that respondent was authorised by the Union to bring this action. There is no evidence on record to the contrary. In my opinion although the claim, ex facie has been brought in the plaintiff/respondent's personal capacity, it is in fact brought by him as a representative of the Union. The appellant cannot, in the circumstances of the case, and in fact he has not, contended that he has in any way been misled. Non-compliance with any of the rules of
Court or with any rule of practice for the time being in force, does not generally per se render any proceedings void.
Order III, rule 3 of the Magistrates' Courts Rules, Eastern Region reads as follows:-
Where more persons than one have the same interest in one suit, one or more of such persons may, with the approval of the court, be authorised by the other persons interested to sue. ...
There is evidence that the other persons who are interested in the claim authorised the action, and although no formal approval was given by the learned Magistrate in the court below, that court did not disapprove of the action when objection was taken before it. I have already stated that the appellant does not appear to have been misled. The objection cannot in my view succeed.
The appeal will be dismissed.
One point however calls for my consideration. The writ does not express that the action is brought on behalf of the Union, i.e., the Asaga Union, Calabar, and Judgment was entered in terms of the writ.
Order III, rule 3 of the Magistrates' Courts Rules, Eastern Region, requires the capacity in which a claim is brought to be expressed on the writ. I have already stated that non compliance with rules of practice for the time being in force by itself does not generally render proceedings void. Had an application for amendment of the writ to show the true capacity in which the claim has been brought, been made to the court below it ought to have been allowed-Re Tottenham v. Tottenham, (1896) 1 Ch. 628. In a case on appeal from the Magistrates' Courts, where the provisions of a similar rule was considered, the West African Court of Appeal observed as follows:-
It is the duty of courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities.... As soon as any question arose as to the capacities of the respective parties, it was in our view the duty of the court to make any formal amendment on the claim which would make clear the capacity in which plaintiffs sued... provided that could be done without any hardship to either party. This Court has full powers to take this course since it appeared that no hardship would accrue to either party by the heading of the suit being amended even at this late stage... We ordered in the course of the hearing of the appeal that the title of the suit be altered...
See Divisional Chief Gbogbolulu of Vakpo v. Head Chief Hodo of Anfoega Akukome, 7 W.A.C.A. at 165. I do not consider that any amendment at this stage creates any hardship. The evidence in the course of the hearing of the case made it clear even at the earliest stage that the real plaintiff was the Asaga Union, Calabar. It seems to me that an amendment at this stage, to determine the real issue which was in controversy between the parties, can be made.
Accordingly under section 36(d) of the Magistrates' Courts Law, Eastern Region, I amend the title of the suit to read "Inyima Ndukwe for and on behalf of the Asaga Union, Calabar v. Iro Ezera."
As already stated the appeal will be dismissed with costs to the respondent which I assess at 12 guineas.