CASE TITLE: ALHAJI MODU MUSA & ANOR v. KAKA GANA (TRADER) (2021) LPELR-55156(CA)
JUDGMENT DATE: 22ND JULY, 2021
- JUMMAI HANNATU SANKEY, JCA
- TUNDE OYEBANJI AWOTOYE, JCA
- EBIOWEI TOBI, JCA
COURT DIVISION: GOMBE
PRACTICE AREA: Evidence- Illiterate Jurat
The Respondent, as Plaintiff in the High Court of Borno State, alleged that he is the owner of the piece of land in dispute between the parties. His root of title was from a certain Mohammed Sheriff Adam who bought the land from another Bulama Kunduli, the son of Malam Zannari, the original owner of the land. The said Bulama Kunduli actually testified for the Respondent as Plaintiff’s Witness 1, that he got the land from his Father, Malam Zannari as his own inheritance. He then sold the land to Mohammed Sheriff Adam who eventually sold it to the Respondent in 2010.
The Respondent could not exercise ownership over the land outrightly until the Appellant encroached into the land. He subsequently filed an action at the trial Court wherein he sought for declaration of title to the disputed land, an order of Court compelling the Appellant to remove all offending structures on the land, perpetual injunction and damages.
The Appellants, as Defendants, while conceding that the original owner of the land in dispute was Malam Zannari diverted from the Respondent’s case when 1st Appellant alleged that Makama bought the land from Malam Zannari which the 1st Appellant eventually bought from Makama in 2005. They also counter-claimed against the Respondent.
In its considered judgment, the High Court gave judgment in favor of the Respondent and dismissed the counter-claim of the Appellant.
Dissatisfied, the Appellant appealed.
The Court determined the appeal upon consideration of the following issues:
- Whether the respondent has proved his root of title in support of the declarative reliefs sought and granted by the lower Court.
- Whether the expunging testimonies of DW1 to DW4 for lack of compliance with the law with regards to illiterate protection law for lack of jurat is done in the interest of justice and fair hearing.
- The judgment of Court is against the weight of evidence.
Counsel to the Appellant submitted that the Respondent’s failure to plead the year his predecessor in title died is fatal to his case as this would have clarified the issue of priority. Also, that the failure of the Respondent to present any document of inheritance makes the case of the Respondent and his witnesses shaky and unbelievable.
Learned counsel further submitted that the High Court breached the right to fair hearing of the Appellants witnesses by expunging their evidence on the premise that their statement on oath were written in English language but on cross-examination the witnesses stated that they could neither read nor write in English language.
On the other hand, Respondent’s Counsel submitted that the High Court was right to expunge the evidence of the witnesses for non-compliance with the Illiterate Protection Law and that it was safe for the Court to act on their admittance that they were illiterates.
Counsel also submitted that the Respondent adduced cogent evidence and therefore the High Court was right in giving judgment in favor of the Respondent. That the Respondent led compelling evidence through his witnesses and has therefore discharged the burden placed on him to prove his title via any of the five ways required by law.
In the final analysis, the Court allowed the appeal and made a consequential order to remit the case file to the Chief Judge of Borno State for retrial by another judge.
EVIDENCE- ILLITERATE JURAT: Whether it is only an illiterate that can complain of non-compliance with the Illiterate Protection Act/Law
“The point I am laboring to make is that once the illiterate for whose benefit the Illiterate Protection Law is made does not complain about the non-compliance, it does not lie in the mouth of another person to complain on behalf of the illiterate. Permit me to refer to a few cases on this point. I am doing this because the lower Court fell for the argument that a non-compliance with Section 3 of the Illiterate Protection Law makes a document inadmissible and void. This is not correct. I will now refer to a few cases from the Supreme Court on the subject. In Edokpolo & Co Ltd vs Ohenhen & Anor (1994) 7 NWLR (part 359) 511, the apex Court held: “The first point that must be made is that the Illiterates Protection Law as its title suggests is a law to protect, and safeguard illiterates from being exploited. It is certainly not a law to penalize them and the fact that the writer of a letter or document at the request, on behalf or in the name of an EDOKPOLO & CO. LTD V. OHENHEN & ANOR illiterate did not carry out the provisions of that law did not mean that such letter or document was for that reason alone void and of no effect. See Iro Ezera v. Inyima Ndukwe (1961) All N.L.R 564 and P.Z. v. Gusau (1962) 1 SCNLR 383; (1962) 1 All NLR 242. It ought also to be noted that Section 3 of the Law only raises or provides certain presumptions of law in respect of a document prepared at the request, on behalf, or in the name of an illiterate by any person who shall write on such document, his own name as the writer thereof and his address. These presumptions of law are fully set out in Section 3(a) and 3(b) of the Law. The purpose of the said provisions under Section 3 of the Law is also to ensure, in furtherance to the said protection of illiterates, that the writer of such a document is identified or traced. So, in Djukpan v. Orovuyovbe (1967) 1 All N.L.R. 134, the writer of a document for an illiterate put after his name “C.N.C” meaning thereby “Clerk of the Native Court” which he, in fact, was at all material times. Lewis, J.S.C., delivering the judgment of this Court was of the view that this was a sufficient compliance with the requirement of Section 3 of the Law as to the address of the writer. For the real purpose and the application of the illiterate protection law, I find the case of Fatunbi & Anor vs Olanloye & Ors (2004) 12 NWLR (pt 887) 229 very instructive. The apex Court held: “It needs to emphasize that the provision in Section 3 (Supra) is intended for the protection of the illiterate person. Essentially, it is equally to trace the whereabouts of the maker of the statement. Care must be taken that we do not put in the intendment of that provision what is not intended to accomplish. It is to ensure that what is stated there reflects what the illiterate person has stated and intended to be correctly put in such a document, and he is the only person to complain if that is the case.” In fact, I make bold to say it is not correct to say that once a document made by an illiterate does not comply with the Illiterate Protection law is inadmissible will be taking it too far. The absence of illiterate jurat will not for all purpose make the document null and void. If non-compliance will benefit the illiterate who does not complain, a Court should not be worried for the illiterate. In fact, no person, not even the Court should drink any medication for the sickness of an illiterate who does not care about the sickness. The apex Court in Wilson & Anor vs Oshin & Ors (2000) 6 SC (part III) 1 made this position clear in these words: “I entirely agree that absence of jurat in a document signed by an illiterate does not render the document null and void. A jurat is for the protection of the illiterate and cannot be used against his interest.” The above decisions of the apex Court have made it clear that non-compliance with Section 3 of the Illiterate Protection Law in this instance will not make the written depositions of DW1-DW4 void as the Appellant did not complain. The lower Court was therefore wrong to expunge the evidence of DW1-DW4 simply because the deponents being illiterate never had jurat in the deposition.” Per TOBI, J.C.A.