AFRICAN PRODUCE SALES CO. LTD V. AYO & ANOR

• Pages: 96-101

96

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NIGERIAN SUPREME COURT CASES

[1963] N.S.C.C.

AFRICAN PRODUCE SALES CO. LTD V. AYO &

ANOR

AFRICAN PRODUCE SALES CO. LTD.

V

E. AYO AND ANOTHER

FEDERAL SUPREME COURT.

BRETT,



F.J.

TAYLOR,



F.J.

COKER,



F.J.

5th March, 1963.

APPELLANT

RESPONDENTS

SUIT NO. FSC 374/1961

Commercial Law - Claim for payment of money plus interest - Debt - Illiterates

Protection Ordinance, 1947, repealed and replaced by Illiterates Protection Law

1957 - Not pleaded - Effect - Definition of "illiterate".

Civil Procedure - Pleading - Party bound by his admission.

Evidence - No evidence of breach of bond - Liability of bondsman - Claim as

to payment of interest - Not granted.

ISSUES:

1.

Whether a party may rely on the Illiterates Protection Law, 1957 during the

hearing of a case, without having pleaded it.

2.

What is the definition of "an illiterate?"

3.

Under what circumstances can the Illiterates Protection Law. 1957 avail a party

to an action?

4.

Whether facts admitted in pleadings can be resided at the trial.

FACTS:

The 1st defendant was a store keeper and produce buyer under the plaintiff's

employ and the 2nd defendant was his bondsman in that respect. The plaintiff

sued the defendants jointly and severally for the sum of £2,000 plus interest at the

rate of 6% from the 8th of January, 1955, to the date of payment or judgment.

The trial Judge, after hearing the parties, entered a non-suit against the plain-

tiff, holding that since the 1st defendant was illiterate, the documents tendered as

an admission of liability by him were not signed by the preparer and by virtue of

the Illiterates Protection Law, 1957 were inadmissible in evidence as admissions.

He also held that the claim against the 2nd defendant had not been proved.

On appeal, It was contended for the plaintiffs/appellants against the judgment

relating to the 1st defendant/respondent that the Illiterates Protection Ordinance

was never pleaded, and that it could not avail the 1st respondent in the circum-

stances of the case. Also that the 1st respondent was bound by the admission in

his own letter and in his affidavit filed in support of his application for taking the

present case off the undefended list and giving him leave to tile a defence.

HELD:

1.

That since the Illiterates Protection Ordinance had not been pIeaded, it was too

late in the day to set it up at the hearing without an amendment of the defence.