FBN v. BENLION (NIG) LTD & ORS (2021)

FBN v. BENLION (NIG) LTD & ORS

(2021)LCN/15141(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/C/31/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

FIRST BANK OF NIGERIA PLC APPELANT(S)

And

1. BENLION (NIG) LIMITED 2. CHIEF EZENAGU 3. CRUST CREST LIMITED RESPONDENT(S)

RATIO

MEANING AND NATURE OF MORTGAGE

A mortgage is defined as creation of an interest in a property defeasible, that is, annullable upon performing the condition of paying a given sum of money with interest at a certain time. Thus, the legal consequence of the above is that the owner of the mortgaged property becomes divested of the right to dispose of it until he has secured a release of the property from the mortgagee. In a legal mortgage, title to the property is therefore transferred to the mortgagee subject to the proviso that the mortgage property would be reconveyed by the mortgagee to the mortgagor upon the performance of the conditions stipulated in the mortgage deed and upon payment of the debt at the time stipulated therein. In other words, the mortgagor is liable to repay the loan as stipulated; otherwise the mortgaged property is foreclosed. See BANK OF NORTH V. BELLO (2000) 7 NWLR (prt 664) 244, ADETONA V. ZENITH INTERNATIONAL BANK PLC (2011) 18 NWLR (prt 1278) 627 and ATIBA IYALAMU SAVINGS & LOANS LTD V. SUBERU (2018) 13 NWLR (prt 1637) 387 at 414. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WHEN IS A DEED OF LEGAL MORTGAGE SAID TO HAVE BEEN CREATED; POSITION OF THE LAW REGARDING WHEN THE RIGHT OF THE MORGAGEE TO EXERCISE ITS POSSESSORY RIGHTS OVER THE MORTGAGE PROPERTY WILL BECOME ACTIVATED

A deed of legal mortgage is said to have been created once an agreement exists between the parties, and the instrument signed by the parties which is described as a legal mortgage, provided it is under a seal. Therefore, the legal effect of a deed of legal mortgage is that it allows the mortgagee exercise its possessory rights over the mortgage property. It is to be noted however, that caveat in the position of a mortgagee remains that the mortgage debt has to be outstanding and unliquidated in order for the right of a mortgagee to immediate possession of the mortgaged property to become activated. See AFRIBANK V. ALADE (2000) LPELR – 10722 (CA) and S.W.V. (NIG) LTD V. AMCON (2020) 3 NWLR (prt 1710) 179. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

STANDARD OF PROOF REQUIRED IN ESTABLISHING ALLEGATION OF FORGERY

DEFINITION OF THE WORD “FORGERY”

The word forgery is defined as an act of fraudulent making a false document or altering a real one to be used as if genuine. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

EFFECT OF A SIGNATURE ON A DOCUMENT

It is pertinent to note that a signature on a document identifies the document as an act of a particular person and without a signature, the document cannot pass as the act of such unnamed person, and it is therefore totally useless. See N.N.P.C. V. ROVEN SHIPING LTD (2019) 9 NWLR (prt.1676) 67 at 83 and TSALIBAWA V. HABIBA (1991)2 NWLR (prt 174) 461. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

POSITION OF THE LAW REGARDING THE EXERCISE OF A MORGAGEE TO EXERCISE HIS POWER OF SALE ; WHEN WILL A MORGAGEE BE RESTRAINED IN EXERCISING ITS POWER OF SALE

There is an abundance of authorities describing the obligations of a mortgagee and by extension, a receiver, exercising a power of sale. Thus, whether the mortgagee or receiver owes a duty of care in the conduct of the sale, the law seems sufficiently well settled that the mortgagee or receiver engaged in selling the mortgaged property has a duty to act bona fide. In EKA – ETEH V. NIGERIA HOUSING DEVELOPMENT SOCIETY LTD & ANOR (1973) NSCC 373, 380, at 381, the Supreme Court held that – “The only obligation incumbent on a mortgagee selling under and in pursuance of a power of sale in the mortgage deed is that he should act in good faith.” I need to stress here that a mortgagee’s power of sale becomes exercisable if it has arisen and once it has so arisen, the title of the subsequent purchaser will not be affected by its improper or irregular exercise and the sale will be regarded valid. See MAJEKODUNMI & ORS V. CO-OP BANK LTD (1997) 10 NWLR (prt. 524) 198. But, in exercising the power of sale, a mortgagee is under duty to take reasonable care to obtain the true value of the property. See TEMCO ENG. & CO LTD V. S.B.N. LTD (1995) 5 NWLR (prt. 397) 607. However, a mortgagee will not be restrained on the exercise of his power of sale merely because the mortgagor objects to the manner in which the sale is being arranged or because the mortgagor has commenced a redemption action in Court, but he (mortgagee) will be restrained if the mortgagor pays the amount claimed by the mortgagee into Court. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WHETHER A BREACH OF THE AUCTIONEERS LAW AND LAND USE ACT IN SALE OF MORTGAGED PROPERTY WILL VITIATE SUCH SALE.

An auction sale of mortgaged property is however valid despite the non-compliance with auctioneers law. Thus, any irregularity in the sale is remediable to the mortgagor in damages. See OKONKWO V. C.C.B. (NIG) PLC. (Supra). In ABDULKADIR V. MOHAMMED (2019)12 NWLR (prt. 1687) 450 at 496, it was held that except where the sale of a mortgaged property by auction is tainted with fraud and collusion, any irregularity in an auction sale in breach of the auctioneers Law and Land use Act cannot vitiate the sale. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

WHAT IS A CONSEQUENTIAL ORDER

A consequential order is essentially one which would make the principal order effectual and effective. In other words, it is one which has a bearing with the main relief(s) claimed by a party. It is thus granted usually to give meaning and effect to the main relief(s) as such a consequential order can only relates to the matters adjudicated upon. See INAKOJU V. ADELEKE (2007) 4 NWLR (prt. 1025) 423. In LIMAN V. MOHAMMED (1999)9 NWLR (prt 617) 116, it was held that a consequential order is a necessary order flowing directly and naturally from and inevitably consequent from the judgment already given. It therefore need not be claimed. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Ikom Coram, Hon. Justice M. J. Eneji delivered on 25/6/2014 wherein judgment was entered in favour of the 1st and 2nd respondents.

The 3rd respondent as claimant at the trial Court took out a writ of summons and statement of claim respectively filed on 19/5/2009 claiming inter alia, ownership of a parcel of land measuring 2978.716 square meters with the buildings and other structures thereon covered with a deed of assignment dated 11/7/1984 and registered as No.55/54 at the land Registry office Calabar and covered by a certificate of occupancy NO.M/196/184 dated 14/12/1994 by virtue of a Deed of Assignment dated 20/12/2007 and registered as No. 82 of page 82 in volume 92 at the Lands Registry, Calabar. The 3rd respondent also claimed an order of vacant possession of the said property lying and situate at No. 55 Obudu Road, Ikom which was a mortgage property registered as No.72/72/72 at the Lands Registry, Calabar acquired by virtue of a Deed of Assignment dated 20/12/2007 as well as perpetual

injunction together general damages against the defendants thereat.

Upon service of the said originating processes the defendants denied the claim in their respective statements of defence. In addition, the 1st and 2nd defendants (now 1st and 2nd respondents) filed a counter claim alleging that the Deed of mortgage was forged and thus, the purported auction sale of the property to the 3rd respondent was therefore null and void.

Pleadings were filed and exchanged on both the main action and the cross-action. At the end of the hearing, the learned trial Judge entered judgment for the 1st and 2nd defendant at pages 358 – 389 of the record of appeal as follows:-
(a) The mortgage transaction purportedly entered between the 3rd defendant and the 1st – 2nd defendants is hereby held to be incompetent in law and accordingly declared null and void.
(b) The auction sale of the 1st defendant’s property at No. 55 Obudu Road, Four Corners, Ikom to the claimant having not been done in compliance with due process is hereby declared null and void and accordingly set aside.
(c) The 3rd defendant is hereby ordered to refund

the money for the failed auction sale of the 1st and 2nd defendants’ property to the claimant.
(d) The 3rd defendant is to pay N500,000 (Five hundred thousand naira) only as general damages for the failed auction sale of the 1st – 2nd defendant’s property to the claimant.
(e) The 3rd defendant is to pay the 1st – 2nd defendants general damages of N7,000.000.00 (Seven million naira) only for embarrassment against and humiliation caused them by the forcible closure and sale of their property under an incompetent invalid, non-existence mortgage transaction and a flawed auction sale.
(f) The 3rd defendant and the 1st – 2nd defendant are to jointly agree and appoint a Chartered Accountant to reconcile the outstanding Central Bank rate for the 1st – 2nd defendants to pay soonest.

Dissatisfied with the judgment of the trial Court, the appellant appealed to this Court on four grounds of appeal. Distilled from the said four grounds of appeal, learned counsel for the appellant Paul E. Eko, Esq. formulated four issues for the determination of this appeal as follows:-
1. Whether the Deed of Mortgage (Exhibit 1)

between the appellant and 1st respondent was valid.
2. Whether the Appellant was entitled to exercise its power of sale of the mortgage property and the sale valid.
3. Whether there was any legal justification for the award of N500,000.00 damages for the 3rd respondent and N7 million for the 1st and 2nd respondents.
4. Whether the learned trial Judge was right when he ordered that both appellant and 1st respondent should jointly appoint a Chartered Accountant to reconcile the outstanding amount due on the overdraft facility with interest on the outstanding debt based on the Central Bank of Nigeria interest rate for the 1st and 2nd respondents to pay soonest.

Chief Onyebueke F. O. on behalf of the 1st and 2nd respondents adopts the issues formulated by the appellant. S. A. Akpanke, Esq. for the 3rd respondent formulated two issues for the determination of the appeal thus:-
1. Whether the trial Judge was right in law to have held that the mortgage transaction entered between the appellant and the 1st and 2nd respondents is incompetent, null and void.
2. Whether the trial Judge was right in law to have held that the auction

sale of the 1st respondent’s property lying and situate at No. 55 Ikom – Obudu Road, Four Corners Ikom to the 3rd respondent is invalid null and void, having not been done in compliance with due process.

Although, the issues for determination were differently formulated by the appellant and 3rd respondent in their briefs, the two issues formulated by the 3rd respondent seems in my view, to have encompassed the same areas covered in the appellant’s four issues. I shall determine the appeal on the bases of the said two issues formulated by the 3rd respondent.

On issue one, which relates to the competency of the mortgage transaction between the appellant and the 1st and 2nd respondents, learned counsel for the appellant contends that, whoever desires any Court to give judgment as to any right or liability dependent on facts which he asserts, must prove that those facts exist. Counsel submits that the 1st – 2nd respondents have failed to substantiate their allegation that the mortgage transaction in the Deed of Mortgage was forged and thus, the trial Judge was wrong to have held that same was incompetent, null and void. He

referred to Section 4 of the Statute of Fraud, 1677 that governs mortgage transaction to the effect that for a mortgage to be valid, it must be signed by the party to be charged which means the mortgagor.

With regards to the auction sale of the 1st respondent’s property to the 3rd respondent as it pertains the second issue, counsel submits that a mortgagee’s power of sale arises when any part of the mortgagor’s debt is outstanding and remaining unpaid. Thus, where a mortgagee exercises his power for sale bona fide for the purpose of realizing his debt and without collusion with the purchaser, the Court will not interfere with such sale. In aid, counsel cited the case of OKONKWO V. CCB (NIG) PLC (2003) 8 NWLR (prt. 822) 347 to the effect that irregularities from auction sale by way of lack of statutory notice to the mortgagor and sale of the property at a low price perse, may not vitiate the sale as the property had passed in the sale from the mortgagee to the purchaser. The 1st respondent’s indebtedness been outstanding and the appellant having rightly exercised its power of sale, same according to the learned

counsel cannot be vitiated.

In response to the above, learned counsel for the 1st – 2nd respondent contended that there was no Deed of mortgage as the document tendered as Exhibit 1 was manipulated and the particulars of forgery were averred in paragraph 4 of the statement of oath of the 2nd respondent. It was further contended that on the face of two contending documents that is Exhibit 1 which was purportedly made in 2000 and Exhibit 7 made in 2005 – in respect of the same loan, the latter in time will prevail. Counsel submits that parties must execute an agreement before it becomes binding. He referred to JINADU V. ESUROMBI – ARO (2009) 9 NWLR (prt. 1145) 55 at 81 to contend that a document which does not bear the signature of the maker should attract little or no weight.

As to the existence or otherwise of the auction sale of the 1st respondent’s property to the 3rd respondent, counsel relied on Section 17 (1) of the Auctioneers Laws of Cross River State 2004 and the case of TAIWO V. ADEGBORO (2011) 11 NWLR (prt 1259) 562 at 588 to contend that no sale of land can validly take place unless the public

notice is given at least seven days before such sale. He submits that the mere fact that the alleged Deed of Assignment was registered, same did not confer title on the 3rd respondent as the purported auction sale was nothing but an act of trespass.

On behalf of the 3rd respondent, it was contended that a document or proceeding requiring authentication by a company may be done by a Director, Secretary or other authorized officer of the company and need not to be under its common seal unless otherwise provided by its Articles of Association or statute. Therefore, any contract entered into by the company and executed by any of the aforesaid principal officers is valid, irrespective of the fact that the common seal of the company is not affixed to the agreement except where there is a contrary intention as contained in the Articles of Association or by a statute. Counsel submits that the purported Deed of Assignment having not been signed by any principal members of the appellant is incompetent, null and void. He referred to CARLEN (NIG) LTD V. UNIVERSITY OF JOS (1994) ISCNJ 72 to contend that the situation would have been different if

any principal officer of the appellant acting on its behalf executed the deed despite the absence of the company’s common seal.

The 3rd respondent’s contention as regards the second issue is that a mortgage transaction is between the mortgagor and the mortgagee as it is the mortgagor that is supposed to transfer his title to the mortgagee. Thus, there is an obligation on mortgagee to ensure that proper documentation and due execution of the mortgage deed was done so that the mortgagee may validly transfer title to a purchaser in event of breach by the mortgagor. Counsel submits that the trial Judge was therefore right to have held that the auction sale in the present case is invalid same not having been done in compliance with due process. And in the absence of valid deed of mortgage between the appellant and the 1st – 2nd respondents, it follows that the appellant’s right to sale cannot be said to have arisen. He referred to NHOS LTD V. MUNUMENTA (1977) 85 and OGUCHI V. FEDERAL MORTGAGE BANK OF NIGERIA LTD (1990) 6 NWLR (prt 156) 330 at 3443.

RESOLUTION
As stated earlier that issue one relates to

the competency of the mortgage transaction between the appellant and the 1st – 2nd respondents. A mortgage is defined as creation of an interest in a property defeasible, that is, annullable upon performing the condition of paying a given sum of money with interest at a certain time. Thus, the legal consequence of the above is that the owner of the mortgaged property becomes divested of the right to dispose of it until he has secured a release of the property from the mortgagee.

In a legal mortgage, title to the property is therefore transferred to the mortgagee subject to the proviso that the mortgage property would be reconveyed by the mortgagee to the mortgagor upon the performance of the conditions stipulated in the mortgage deed and upon payment of the debt at the time stipulated therein. In other words, the mortgagor is liable to repay the loan as stipulated; otherwise the mortgaged property is foreclosed. See BANK OF NORTH V. BELLO (2000) 7 NWLR (prt 664) 244, ADETONA V. ZENITH INTERNATIONAL BANK PLC (2011) 18 NWLR (prt 1278) 627 and ATIBA IYALAMU SAVINGS & LOANS LTD V. SUBERU (2018) 13 NWLR (prt 1637) 387 at 414.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The 1st – 2nd respondents contended that the purported mortgage deed was obtained by misrepresentation and not in line with due process of law and hence null and void. In paragraphs 3, 4 and 6 of the statement of defence of 1st and 2nd defendants at pages 129 – 130 of the record of appeal, it averred as follows:-
3. That defendants states that 1st defendant got an over draft from the 3rd defendant to the tune of N2,000,000.00 which the 1st defendant was to liquidate in monthly installment of N333,333,34 which the 1st defendant was consistent in servicing and the 3rd defendant sometime sent in statement of account which is hereby pleaded. That the purported mortgage deed was done without the consent and knowledge of the defendants as the 2nd defendant was only asked to give his specimen of his signature in a blank paper which he did and did not know that same will be used in the execution of agreement. That the 3rd defendant merely requested for the original document in respect of the 1st defendant’s land and same was handed over to her.
4. That the deed of mortgage was forged and the secretary to the 1st

defendant never witnessed the alleged mortgage deed because he was not there when the transaction was concluded between the manager of the 3rd defendant branch at Ikom and the 2nd defendant.

PARTICULARS OF FORGERY

(a) The managing director of the 1st defendant was asked to sign a blank paper which he never knew it would be incorporated in a document as mortgage deed.
(b) The signature on the document is not that of the 1st defendant secretary’s signature as on that particular day the transaction was between the manager of Ikom branch of the 3rd defendant and the Managing Director of the 1st defendant. The secretary of the 1st defendant’s company was not present.
(c) That by the letter of 7th day of April, 2005, the 3rd defendant wrote to the 1st and 2nd defendants requesting them and their director to sign guarantee No. 3421 in respect of the said loan. Letter is pleaded.
(d) The entire mortgage deed was the manipulation of the 3rd defendant with a view to selling the 1st defendant’s property.
(e) That the 3rd defendant has other documents of the 1st defendant in respect of Uyanga and Akwa and same

were not mentioned in the said Deed as they were handed over to the defendant at the same time. There was no Governor’s consent obtained before the purported mortgage was executed.
6. That the purported mortgage deed is null and void as same was obtained by misrepresentation and not in line with due process of the law.”

The 3rd respondent as claimant at the trial Court tendered documents in prove of how

the property was acquired by the 1st respondent and how same was mortgaged to the appellant before it was sold to the 3rd respondent. However, in their pleadings and evidence, the 1st and 2nd respondents alleged that the said Deed of Legal Mortgage Exhibit 1 was forged and thereby making the said Deed of Legal Mortgage incompetent, null and void. The learned trial Judge agreed with the 1st and 2nd respondents’ position that Exhibit 1 is patently defective on the premise that in Exhibit 1, the common seal of the borrower, 1st respondent is stated as having been affixed by Benlion Nigeria Ltd, and signed by her Director and Secretary, as borrower and witness respectively. However, in the same Exhibit 1, the name of the lender the appellant herein, is not stated under the column: signed, sealed and delivered by them. And therefore the name or signature of the appellant’s Director or Secretary is nowhere stated in Exhibit 1.

Learned trial judge observed:-
“Only one Mr. Isong Ekanem Akpan, who is described in Exhibit 1 as a banker, signed as a witness, under the 3rd defendant’s column. Now what is Mr.

Akpan witnessing when the names and signatures of the 3rd defendant’s principal signatories such as her Director, Manager or Secretary, is conspicuously absent from Exhibit 1?

Learned counsel for the appellant has submitted and I agree with his submission that the allegation of forgery is generally an allegation of crime which requires proving the forgery beyond reasonable doubt. See Section 138 of the Evidence Act and the case of FABUNAH V. TEWOGBADE (1985)1 NWLR (prt. 2) 299 at 319. The question then is, did the 1st and 2nd respondents discharge that burden of proof? I have elsewhere reproduced the 1st and 2nd respondents’ averments relating to the allegation of forgery of Exhibit 1 which allegation was replicated by the evidence of DW2 – Chief Elias Ezenagu.

The word forgery is defined as an act of fraudulent making a false document or altering a real one to be used as if genuine. However, in ATUCHUKWU V. ADINDU (2011) LPELR – 3821 (CA), OGUNWUMIJU, JCA (as he then was) drew a distinction between grammatical and criminal forgery and held that the mere speculative observation of the respondent and her witness

given flesh by the reasoning of the trial Judge cannot be substituted for conclusive and hard evidence of criminal forgery which must be proved beyond reasonable doubt. Thus, the case put forward before the trial Court deserved to be meticulously and reflectively analyzed in order to determine whether such a party has set out to establish the commission of a crime by anybody as would impose on him the necessity to establish a case of forgery beyond reasonable doubt.

Now, looking at the circumstances of this case, it was not the case of the 1st and 2nd respondents that any named person had forged Exhibit 1. An examination of paragraph 4 of the statement of defence of 1st and 2nd defendants as well as paragraph 4 of the statement of oath of Chief Elias Ezenagu who testified as DW2 vis-a-vis Section 138 of the Evidence Act shows that the allegation of forgery was not made specifically to a party or against a party. Therefore, the case made by the 1st and 2nd respondents is not one of criminal forgery but that Exhibit 1 was a useless document on account that same was neither signed by the mortgagor nor the mortgagee.

Learned trial Judge has aptly captured the case of the 1st and 2nd respondents thus:-
“It is not the place of this Court to conjecture the reason for the omission of the 3rd defendant’s Director and Secretary’s name and signatures in Exhibit 1. The main business and concern of this Court, is to determine the present status of Exhibit 1 from the eyes of the law. And in that regard, I find and hold that from all intent and purpose, Exhibit 1 is patently defective and completely incompetent in law for want of the 3rd defendant’s principal’s signatories on it.”

deed if made between private persons. Thus, it must be signed, sealed and delivered. Exhibit 1 having not been signed is a useless piece of paper and cannot qualify as a deed and the learned trial judge was therefore right in my view when he held that:-
“The mortgage transaction predicated on the execution of exhibit 1 failed ab initio as in the first place, it never secured the 1st defendant’s property as a collateral for the over-draft facility allowanced by the 3rd defendant to the 1st defendant –
Secondly, on account of the defect and incompetence of Exhibit 1, the subsequent legal mortgage dated 20/10/2000 registered as NO 72/72/27, as well as the consequent Deed of Assignment dated 20/12/2007 between the 3rd Defendant and the claimant, in respect of the 1st – 2nd defendants’ property described as NO 55 Obudu Road, Four Corners Ikom is null and void. The claimant cannot in the circumstances of this case rely on any of the above instruments to lay claim to the 1st – 2nd defendants’ property in law, as no title passed from the 1st – 2nd defendant by virtue of the

incompetence of Exhibit 1.
Thirdly, I agree as rightly maintained and submitted by counsel to the 1st – 2nd defendants that due to the incompetence of Exhibit 1, which is the said mortgage deed, relied on by the claimant and the 3rd defendant, to contest the 1st – 2nd defendants’ property in this case, smacks of fraud.”

In the light of the foregoing, issue one is therefore resolved against the appellant.

The main contention on the second issue centred on the legality or otherwise or the auction sale of the 1st respondent’s property lying and situate at NO.55 Ikom – Obudu Road, Four Corners, Ikom to the 3rd respondent who was the claimant at the trial Court.

NSCC 373, 380, at 381, the Supreme Court held that –
“The only obligation incumbent on a mortgagee selling under and in pursuance of a power of sale in the mortgage deed is that he should act in good faith.”
I need to stress here that a mortgagee’s power of sale becomes exercisable if it has arisen and once it has so arisen, the title of the subsequent purchaser will not be affected by its improper or irregular exercise and the sale will be regarded valid. See MAJEKODUNMI & ORS V. CO-OP BANK LTD (1997) 10 NWLR (prt. 524) 198. But, in exercising the power of sale, a mortgagee is under duty to take reasonable care to obtain the true value of the property. See TEMCO ENG. & CO LTD V. S.B.N. LTD (1995) 5 NWLR (prt. 397) 607. However, a mortgagee will not be restrained on the exercise of his power of sale merely because the mortgagor objects to the manner in which the sale is being arranged or because the mortgagor has commenced a redemption action in Court, but he (mortgagee) will be restrained if the mortgagor pays the amount claimed by the mortgagee into Court.

Learned counsel for the 1st and

2nd respondents had dissipated a lot of energy in submitting that the failure to give seven days public notice renders the auction sale invalid. An auction sale of mortgaged property is however valid despite the non-compliance with auctioneers law. Thus, any irregularity in the sale is remediable to the mortgagor in damages. See OKONKWO V. C.C.B. (NIG) PLC. (Supra). In ABDULKADIR V. MOHAMMED (2019)12 NWLR (prt. 1687) 450 at 496, it was held that except where the sale of a mortgaged property by auction is tainted with fraud and collusion, any irregularity in an auction sale in breach of the auctioneers Law and Land use Act cannot vitiate the sale.

I have earlier in this judgment held the view that the absence of the signature on the Deed of Legal Mortgage Exhibit 1 has rendered same incompetent and likewise reliance on the defective Deed of Legal Mortgage to contest the property of the 1st and 2nd respondents smacks of fraud. Thus, in the present case there is evidence that the foundation of the auction sale is tainted with fraud, which invariably vitiates the sale. The second issue is also resolved against the

appellant.

As an ancillary issue, the appellant also contested the consequential orders giving general damages each to the respondents as well as an order directing the respondents to jointly agree and appoint a Chartered Accountant to reconcile the outstanding rate of interest.

From the record, the N500,000.00 damages awarded in favour of the 3rd respondent was for failed auction sale while the N7 million was for

the embarrassment, anguish and humiliation caused the 1st and 2nd respondent by forcible seizure and sale of their property under an incompetent and non-existing mortgage transaction as well as a flawed auction sale.

The learned authors of volume 12 of the Halbury’s Laws of England, 4th Edition dealt with the rules regarding measure of damages in regard to trespass to land in paragraph 1170 and therein at page 460 commented as follows:-
“A plaintiff is entitled to nominal damages for trespass even if no damage or loss is caused. If damage or loss is caused, he is entitled to recover in respect of his loss according to general principles. Whereby the trespass, the plaintiff has been wholly deprived of his land he is to be compensated according to the value of his interest and if he is a freeholder entitled to possession, the damages will be the value of the produce of the land during the period of deprivation subject to the proper expense of management or in case of permanent deprivation, its selling value. Where the defendant has by the trespass made use of plaintiff’s land, the plaintiff is entitled to receive by way of

damages such sum as should reasonably be paid for the use. It is immaterial that the plaintiff was not in fact thereby impeded or prevented from himself using his own land either because he did not wish to do so or for any other reason.”
In the instant case, the appellant is not per se complaining of excessiveness of the quantum of damages but contended that the 1st and 2nd respondents are not entitled to damages because the transaction was valid. However, the trial Court held otherwise. It also found the act of the appellant in engaging persons who forcibly entered into the 1st and 2nd respondents’ property as embarrassing and humiliating. It is thus my view that the trial Judge having given judgment for the 1st and 2nd respondents against the appellant; the damages are justified in order not to whittle down the effect of their victory by depriving them damages. I am also of the view that the order directing the respondents to agree to jointly appoint Chartered Accountant is meant to give effect to the judgment already given. And having found that the 1st respondent has not stated how much she has repaid the

appellant out of the N2,000,000.00 overdraft, it become necessary to make a consequential order to ascertain the exact money outstanding.

In the result, the appeal is moribund and is accordingly dismissed. I however make no order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the judgment delivered by my learned brother MUHAMMED L. SHUAIBU, JCA.
I agree with the reasoning and conclusion reached in the judgment.
I also agree that the appeal is devoid of merit and I accordingly dismiss the appeal also.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft of the judgment just delivered by my learned brother, M. L. Shuaibu, JCA.
I agree that the appeal should be dismissed.
For the reasons set out in detail in the judgment, I too dismiss the appeal.
I abide by the orders in the judgment including the order as to costs.

Appearances:

Prince N. E. Nkanu For Appellant(s)

O. Onyebueke – for the 1st and 2nd Respondents.
Dr. Sam Eboh – for the 3rd Respondent, Cross Appeal. For Respondent(s)