POLARIS BANK & ORS v. OLADIPO (2020)

POLARIS BANK & ORS v. OLADIPO

(2020)LCN/15366(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, September 17, 2020

CA/L/361/2000

RATIO

DUTY OF COURT: CONDITIONS TO DETERMINE WHEN THERE IS MISCARRIAGE OF JUSTICE

The primary duty of a Court is to do justice and in so doing what a Court should look at for is substantial justice and not technical justice. Justice is defined as fairness and quality of being right. A Court therefore may sometimes look outside the strict application of the law to ensure justice is done within the concept of equity, fairness and equality. See: Larmie vs. Data Processing Maintenance & Services Ltd (2005) 12SC (Pt. 1) 93; Willoughby vs. International Merchant Bank (Nig.) Ltd (1987)1 NWLR (Pt.48)105. There is miscarriage of justice when there is a gross unfair outcome in a judicial proceeding see: Olusola Adeyemi vs. State (2014)5-6 SC (Pt. iii)148. The Supreme Court in Alhaja Sanusi vs. Ameyogun (1992) 4 NWLR (Pt.23)527 defined miscarriage of justice as a “decision or outcome of legal proceeding that is prejudicial or inconsistent with substantial right of parties”. PER EBIOWEI TOBI, J.C.A.

RELIEFS: WHETHER A COURT CAN TERM ANY RELIEF A CONSEQUENTIAL RELIEF

It is trite that no one can put something on nothing and expect it to stand. See Sijuade vs. Elugbindin & 3 Ors (supra). Since a consequential order is supposed to give life to the principal, primary or main relief, a consequential order must not conflict with the principal order. The direct implication of that is that without granting the substantive, principal, main or primary relief, the consequential relief has no legs to stand on. This is clear and unequivocal. I will however hasten to add that an order or relief does not become consequential because a party calls it so. In an action, there are main reliefs, alternative reliefs and subsidiary reliefs. Except for alternative reliefs, every relief in an action stands on its own and the Court cannot term any relief as consequential relief. Though some reliefs can be produced and not seen as the main relief but a Court can grant same if there is evidence that establish the granting of same. The lower Court struck out relief one in the claim of the Respondent but granted reliefs 2 & 3. The Appellants are challenging this decision of the Court. To properly appreciate what is involved here, I will reproduce the reliefs earlier stated in this judgment:
“WHEREOF THE Plaintiff claims as follows:
1. A Declaration that the purported sale by Public Auction of the Plaintiff’s House known as No. 14, Araromi Street, Oshodi, Lagos State, to the 3rd Defendant by the 2nd Defendant on the instruction of the 1st Defendant is irregular, void and of no effect.
2. A Declaration that the Plaintiff is the person entitled to a right of occupancy over the said house.
3. An Order of Injunction restraining the Defendants from further dealing in, selling or in any way alienating or disposing of the said house.” PER EBIOWEI TOBI, J.C.A.

MORTGAGE: DISTINCTION BETWEEN A LEGAL AND EQUITABLE MORTGAGE

The law recognizes two forms of mortgages, these are legal and equitable mortgage. The law governing each is different and what makes them enforceable is also different. To create a legal mortgage, there must be a deed which must be registered and the Governor’s consent must be obtained. A legal mortgage will be null and void if it is not done in the form of a deed and the consent of the Governor is not obtained. SeeUBN Pc vs. Astra Builders (W.A.) Ltd (2010) LPELR-3383 (SC).
On the other hand, an equitable mortgage is created when the title deed of a property is deposited for the purpose of securing a loan. The deposit of the title deed linked to the loan in itself creates an equitable mortgage. What an equitable mortgage is, how it is created and the effect of such was established by the Supreme Court in the case of Usenfowokan vs. Idowu & Anor (1975) LPELR -3426 (SC) per Sowemimo, JSC (as he then was) when he held on pages 8-11 as follows:

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

1. POLARIS BANK LIMITED 2. G. ADE SHODIPO 3. ADEDOYIN ABIODUN APPELANT(S)

And

OLANREWAJU OLADIPO (SUBSTITUTED BY ORDER OF THE COURT OF APPEAL DATED 1ST MARCH, 2012 FOR RAFIU KOLAWOLE OLE OLADIPO (DECEASED) RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the judgment of Hon. Justice O. M. Akerele-Ayeni of the High Court of Lagos State, Ikeja Division delivered in Suit No. ID/824/1988 – Rafiu Kolawole Oladipo vs. Cooperative Bank Limited & 2 Ors., delivered on 31/5/2000 wherein the lower Court in its judgment found on pages 313 – 338 of the record of appeal (pages 1 – 26 of the judgment) found in favour of the Respondent.

The facts of the case at the lower Court are brief and straight forward. The Respondent (substituted for the Plaintiff at the lower Court) obtained a facility from the 1st Appellant. The Respondent executed a deed of legal mortgage Exhibit D2 in favour of the 1st Appellant. The Respondent failed to repay the loan and the 1st Appellant sold the property in dispute through the 2nd Appellant (2nd Defendant at the lower Court) to the 3rd Appellant (3rd Defendant at the lower Court). The Respondent (as Claimant in the lower Court) thereafter approached the lower Court challenging the sale of the mortgaged property on the ground that it was sold without proper notice, that no account of the same was rendered to him and that the property was sold at undervalue price which according to the Respondent is prima facie evidence of fraud and collision on the part of the Appellants. The 3rd Appellant on the other hand counter-claimed for possession of the property and arrears of rent on the twenty shops on the property. The lower Court after going through the whole gamut of a full trial held thus:
“It is quite clear that the Plaintiff sought the 1st declaratory relief in the belief that there was a sale albeit irregular. I cannot grant the relief sought in this premises and this head of claim is struck out. As I had earlier commented, the issue of consent ought to have been made the main plank of the Plaintiff’s claim and not by way of reply.
On the second relief however, I hold that the Plaintiff is the person entitled to a right of occupancy over the house, the purported alienation having failed for want of consent.
Consequent upon the above, the relief for injunction also succeeds.
As I have earlier stated in view of the fact Exhibit D2 displays patent illegality, same is null and void.
The problem which the Plaintiff could still face and which is issue borne out by the inelegant drafting of this claim is that the 3rd Defendant is the registered owner of the house by virtue of the title registered in the Registry. The Plaintiff having not sought declaratory relief as to the status of Exhibit D2 or D22 could not have and has not sort declaratory relief to rectify the register.
The Court cannot give him that when he has not asked for.
Having held that the subsequent consent given to D22 has not cured the defect in D2 and having held that the right of occupancy still resides in the Plaintiff it follows that the 3rd Defendant’s counter-claim must fail. I also add that had Exhibit D2 not been void the 3rd Defendant would have been entitled to judgment in terms of his counter-claim as the fact that the Plaintiff is still in possession of the house and the existence of twenty shops rented out at the rate of N100 per month per shop is not in dispute. He has also proved that he purchased without notice of any other interest for good value.
In all the counter-claim fails and judgment is hereby entered in favour of the Plaintiff as follows:
1) A declaration that the Plaintiff is the person entitled to a right of occupancy over the house known as No. 14, Araromi Street, Oshodi, Lagos.
2) An order of Injunction is hereby granted restraining the Defendant from further dealing in, selling or in anyway alienating or disposing of the said house known as No. 14, Araromi Street, Oshodi, Lagos State.
The cost of this case is assessed at N5,000 I favour of the Plaintiff.
It is regrettable that this case has had to spend twelve years in the Court. The counsel in this case at various stages contributed enormously to the delay. The first trial was aborted after 10½ years. Trial commenced in this Court in March 1999. With the cooperation of the same counsel we have in just over one year succeeded in seeing the end of the case at the High Court.
It is desirable and in the interest of justice always that matters proceed expeditiously. It is hoped that the appeal if any will not take another twelve years to resolve.”

The Appellants dissatisfied with the judgment of the lower Court filed a notice of appeal to that effect. The extant notice of appeal of the Appellants is the further amended notice of appeal dated and filed on 8/11/2010 but deemed on 13/11/2018. The notice of appeal contains five grounds of appeal which are:
1. The Learned Trial Judge erred in law when having found that the Respondent did not make any specific relief to declare the mortgage deed (Exhibit D2) null and void and further that the fact that there was no consent to Exhibit D2 ought to have formed the kernel to the Plaintiff’s Statement of Claim and not raised merely by way of reply, nevertheless the Learned Trial Judge still held as follows:
“Even though the Plaintiff has not asked that the mortgage deed be nullified, the Court when faced with an apparent illegality cannot shut its eyes to same. I hold that the Mortgage Deed, Exhibit D2 having been entered into without the Governor’s consent, is null and void b virtue of Section 26 of the Land Use Act.”
2. The Learned Trial Judge having held that:
“With utmost respect to the Learned Counsel to the Plaintiff in all those cases (cited by Plaintiff’s counsel) the Plaintiff by his Writ of Summons and Statement of Claim sought a declaration that the Mortgage Deed was null and void”
erred in law in granting the Respondent in this case a relief that was not sought by the Respondent in declaring the mortgage null and void.
3. The Learned Trial Judge erred in law in holding that:
“The Mortgage Deed, Exhibit D2 having been entered into without Governor’s consent is null and void by virtue of Section 26 of the Land Use Act”
thereby allowing the Respondent to benefit from his own wrongful act in not obtaining the required consent to the Mortgage Deed.
4. The Learned Trial Judge erred in law when having struck out the substantive relief of the Respondent and held:
“It is quite clear that the Respondent sought the 1st declaratory relief in the belief that there was a sale albeit irregular. I cannot grant the relief sought in this premises and this head of claim is struck out. As I had earlier commented, the issue of consent ought to have been made the main plank of the Respondent’s claim and not by way of reply”
the Learned Trial Judge still entered judgment for the Respondent on a ground not claimed by the Respondent and thus proceed on a wrong premise to grant the remaining two consequential reliefs of the Plaintiff.
5. The Learned Trial Judge erred in law in granting a declaration that the Respondent is the person entitled to a right of occupancy over the house (mortgage property) when declaration is an equitable relief that ought not to have been granted to the Respondent who had taken benefit under a transaction which the Respondent claimed to be ineffectual.

The Appellants’ brief dated and filed on 8/11/2018 but deemed as properly filed and served on 13/11/2018 was settled by Omowunmi Akinmuleya (Miss). In the Appellants’ brief, learned counsel raised four issues for determination viz:
1. Whether the Learned Trial Judge was wrong to have made a declaration that the Mortgage Deed, (Exhibit D2) was null and void on the ground that the Governor’s consent was not obtained prior to entering into the agreement when the Respondent asked for no such relief in his claims before the trial Court.
2. Whether the learned trial Judge was wrong to have held that the Deed of Legal Mortgage was null and void by virtue of Section 26 of the Land Use Act.
3. Whether the learned trial Judge was wrong to have proceeded to grant a relief not claimed by the Respondent and other consequential reliefs when the Respondent’s head claim had already been struck out.
4. Whether the learned trial Judge was wrong to have granted in favour of the Respondent a declaration that the Respondent is the person entitled to a right of occupancy over the mortgaged property when the Respondent had already taken benefit from the mortgage transaction.

Counsel craved the indulgence of this Court to argue issues one and three together. On the issues, counsel cited the cases of Agip (Nig.) Ltd & 8 Ors vs. Chief C. Esendu & 9 Ors (2010) 1 SC. 9; Pastor J. Akinlolu Akinduro vs. Alhaji Idris Alaya (Unreported) SC/296/2002 to the effect that a Court is always bound to determine the case brought before it by parties and should not in any way make out a case for the parties. Counsel also relied on Emirate Airline vs. Aforka (2015) NWLR (Pt. 1463) 106; Badmus vs. Abegunde (1999) 11 NWLR (Pt. 627) 493 in arguing that the learned trial Judge granted the Respondent a relief that was never in contemplation by him while presenting his case at the trial Court which in turn resulted in miscarriage of justice to the Appellants and which resultant effect is a nullity. He cited Funduk Engineering Ltd vs. Macarthur – In Re: Madaki (1996) 7 NWLR (Pt. 459) 153; Airtel Networks Limited vs. George (2015) 4 NWLR (Pt. 1448) 85. It is the contention of learned counsel that the issues before the trial Court was for the lower Court to set aside the sale of the mortgaged property on the ground that the sale was irregular, null and void and not that the deed is null having not obtained the Governor’s consent. It is therefore the submission of counsel that it is most unfair to the Appellants that in spite of the fact that the learned trial Judge found that all the case made out by the Respondent in respect of the irregularity of the auction lacked merit, the Court went ahead to grant an unclaimed relief to the Respondent and also proceeded to erroneously grant the Respondent the consequential reliefs that were supposed to also fail along with the head claim. It is the further contention of counsel that the success or otherwise of consequential reliefs in a suit depends on the success or otherwise of the substantive or principal claim. Counsel placed reliance on Eligwe vs. Okpokiri (2015) 2 NWLR (Pt. 1443) 372-373; Obayagbona vs. Obazee (1972) 5 SC 247 in submitting that it was wrong for the trial Judge to have struck out the Respondent’s substantive claim and thereafter proceed to grant the consequential reliefs.

It is argued by counsel that the learned trial Judge made a rather dangerous u-turn by granting the claim not contained in the Respondent’s Writ of Summons and Statement of Claim. Counsel further argued that inspite of the learned trial Judge’s holding, the learned trial Judge still allowed the Respondent to reap where and what he did not sow by granting him the relief that he did not claim but also that which he is not entitled to under the law. Finally, it is the contention of learned counsel for the Appellants that the issue of lack of Governor’s consent which was raised and determined by the Court did not relate to the issues brought before the Court for adjudication and that the learned trial Judge ought not to grant the consequential reliefs for the Respondent, having already struck out the Respondent’s head of claim.

On issue two, it is the contention of learned counsel that although the learned trial Judge in his judgment did not address the issue of whose responsibility it was to obtain Governor’s consent in respect of the mortgage deed, it is clear from the provisions of Section 26 of the Land Use Act that it is the Respondent that has the duty to obtain the Governor’s consent in respect of the mortgage deed. Counsel relied on Akinwunmi O. Alade vs. Alice (Nig) Ltd & Anor (2010) 19 NWLR (Pt. 1226) 11; Chika Belonwu Ugochukwu vs. Cooperative & Commerce Bank (Nig) Limited (1996) 6 NWLR (Pt. 456) 524; Emmanuel O. Adedeji vs. National Bank of Nigeria Ltd &Anor (1989) 1 NWLR (Pt. 96) 212 in contending that the judgment of the lower Court should not be allowed to stand as the Respondent who has taken benefit under the mortgage deed, defaulted in repaying the overdraft facility, failed to obtain Governor’s consent in accordance with Section 26 of the Land Use Act and never asked before the trial Court that the mortgage deed be declared null and void on the basis that Governor’s consent was not obtained, was awarded judgment in his favour. Counsel submitted that the case of Savannah Bank (Nig) Ltd vs. Ajilo (1989) 1 NWLR (Pt. 97) 305 which was relied upon by the learned trial Judge does not apply in the circumstances of this case. In the light of the above, it is the submission of counsel that it will be most unjust for the Respondent who has been found to be wrong on all sides in relation to the deed of mortgage and the presentation of his claim in Court to be victorious over the Appellants who have not been found by the trial Court to have committed any wrong in their dealings with the Respondent.

On issue four, it is the submission of counsel that it was wrong in law and in equity for the learned trial Judge to have made a declaration that the Respondent is the person entitled to a right of occupancy over the property even after it was shown that the Respondent mortgaged it in return for an overdraft/loan. It is the contention of counsel that the only reason why the learned trial Judge granted the right of occupancy over the mortgaged property to the Respondent is because the deed of legal mortgage was declared null and void for absence of Governor’s consent, which was due to the Respondent’s own default. It is the further contention of counsel that from the judgment, the learned trial Judge had already made a conclusion that there was an illegality in respect of the mortgage deed transaction and as such ought to have considered the fact, who, amongst the parties to the suit committed the said illegality before going ahead to nullify the mortgage deed and granting the right of occupancy to the Respondent who committed the illegality. Counsel argued that the learned trial Judge in declaring the Respondent as the person entitled to the right of occupancy over the mortgage property is tantamount to aiding the Respondent to take full benefit of his own illegality. Finally, it is the submission of counsel that it was a miscarriage of justice for the learned trial Judge to find in favour of the Respondent who apparently did not come to equity with clean hands as it was not in dispute that the Respondent did not comply with the Land Use Act and had not repaid the loan before approaching the Court to seek declaratory (equitable) reliefs.

The Respondent brief filed 4/3/2019 but deemed as properly filed and served on 7/7/2020 was settled by I.A. Kokumo Esq. In the brief, learned counsel raised the following issues for determination:
1. Whether the learned trial Judge made a declaration that the Mortgage Deed (Exhibit D2) was null and void on the ground that the Governor’s consent was not obtained prior to entering into the agreement when the Respondent asked for no such relief in his claims before the trial Court.
2. Whether the learned trial Judge was wrong to have held that the Deed of Legal Mortgage was null and void by virtue of Section 26 of the Land Use Act.
3. Whether the learned trial Judge granted a relief not claimed by the Respondent and other consequential reliefs when the Respondent’s head claim had already been struck out.
4. Whether the learned trial Judge was wrong to have granted in favour of the Respondent declaration that the Respondent is the person entitled to a right of occupancy over the mortgaged property when the Respondent had already taken benefit from the mortgage transaction.

Counsel craved the indulgence of this Court to argue issues 1, 2 and 3 together.

On these issues, it is argued by counsel that while the lower Court refused the first relief sought by the Respondent, it granted the reliefs 2 and 3. It is further argued by counsel that the lower Court did not make any declaration in favour of the Respondent that the Deed of Mortgage (Exhibit D2) is null and void and neither did the lower Court grant in favour of the Respondent reliefs not claimed by the Respondent. It is the submission of counsel that what the learned trial Judge did in this case was to make findings as regards the legal effect of the Deed of Legal Mortgage vis a vis the exercise of the power of sale by the 1st Appellant without the requisite consent of the Governor of Lagos State as enjoined by Section 22 of the Land Use Act. It is further submitted by learned counsel for the Respondent that Exhibit D2 being a document before the Court upon which the 1st Appellant purported to have exercised the power to sell the property in dispute to the 3rd Appellant through the 2nd Appellant the lower Court is not precluded from making necessary findings as to the legal effect of the document. He relied on Oyedeji vs. Akinyele (2001) FWLR (Pt. 77) 970 @ 997. Going further, it is the submission of counsel that in the absence of any dispute that no consent was obtained to the Deed of Legal Mortgage, the question that remains to be answered is “what is the legal effect of failure to obtain consent to Exhibit D2 and whether the 1st Appellant can validly exercise a power of sale to effect an assignment of the property in dispute to the 3rd Appellant in the absence of consent?”

Counsel cited the cases of Savannah Bank vs. Ajilo (1989) 1 NWLR (Pt. 97) 305; Awojugbagbe Light Industry Ltd vs. P.N. Chinukwe & Anor (1995) 4 NWLR (Pt. 390) 379; Ecotrade Ltd vs. Macfoy & Ors. (2015) LPELR-25205 (CA) on the effect of failure to obtain consent under Section 22 of the Land Use Act and the consequent legal effect as provided for under Section 26 of the Act. Counsel went on to state that the learned trial Judge correctly applied the law in ascribing probative value to Exhibit D2. Counsel argued that against the submission of the Appellants’ counsel on the issue of illegality, the Respondent actually raised it in his further amended reply to statement of defence and defence to counter claim dated 20/9/1997 and also in Respondent’s final written address but the Appellants chose to keep mute and did not join issues with the Respondent neither was there any response at all from them on the issue of lack of consent of the Governor. With respect to the contention of Appellant counsel’s submission that it is the duty of the Respondent to obtain the consent of the Governor, it is the submission of counsel that the Appellants glossed over the facts and or evidence led in this case which is not in dispute and as found by the learned trial Judge that it was the solicitor to the 1st Appellant who perfected Exhibit D2 and the said solicitor was paid from the Respondent’s account.

On issue four, it is the submission of counsel that the learned trial Judge having held that Exhibit D2 is void for failure to obtain Governor’s consent the consequence can only be that the right of occupancy to the property in dispute still resides in the Respondent. He therefore urged this Court to resolve issue four of the Respondent’s brief in favour of the Respondent and dismiss this appeal affirming the judgment of the lower Court.

The Appellants exercising their right of reply filed a reply brief on 6/8/2019 which was deemed as properly filed on 7/7/2020. It is the contention of learned counsel for the Appellants that the cases ofSavannah Bank (Nig) Ltd vs. Ajilo (supra) and Awojugbagbe Light Industry Ltd vs. P. N. Chinukwe referred to and relied on heavily by the Respondent in his brief are not applicable to the facts and circumstances of this case. Learned counsel cited Engr. Yakubu Ibrahim & Ors vs. Simon Obaje (2019) 3 NWLR (Pt. 1660) 389 @ 412 and argued that Section 22 of the Land Use Act cannot be given a literal interpretation and must be read in paripasu with the preamble to the Act and with the meaning ascribed to the said preamble in decided judicial authorities. It is the contention of counsel that, there is no conflict between the parties in this instant case and there is no consideration of overriding public interest. It is the further contention of counsel that it will be tantamount to using the Statute as an instrument of fraud and totally against public policy and the ends of justice for the Respondent to rely on lack of Governor’s consent to the legal mortgage as a ground to nullify the sale where there is evidence that the Governor’s consent was obtained for the Deed of Assignment pursuant to the exercise of sale on the Deed of legal mortgage. Counsel relied on Ayodele Ilori vs. Alhaja Risikat Ishola (2018) 15 NWLR (Pt. 1641) 77. Counsel also relied on Chief Belonwu Ugochukwu vs. Cooperative & Commerce Bank of Nigeria Ltd (1996) 6 NWLR (Pt. 456), (1996) 9 SCNJ 22/37 in stating that equity implies a system in law disposed to a just regulation of mutual rights and duties of man in a civilized society and does not envisage sharp practice or undue advantage of a situation, or a deliberate refusal to honour reciprocal liability arising therein.

Counsel reiterated his submission that contrary to the argument of the learned counsel for the Respondent, the issue of the validity of the Deed of Legal Mortgage was not in issue as the Respondent did not seek a declaration that the mortgage deed was null and void. Counsel argued that the Respondent only raised the issue by way of Reply. Counsel then stated the essence of a Reply to the effect that it is to answer to averments in the Statement of Defence and not to raise new ground of claim or allegation of fact inconsistent with the previous pleading of the party pleading the same. He cited Iwuoha vs. Nipost Ltd (2003) 3 NWLR (Pt. 822) 308 SC; L.U.T.H vs. Adewole (1998) 5 NWLR (Pt. 550) 406 @ 420; Abubakar vs. Joseph (2008) 13 NWLR (Pt. 1104) 307; Adedeji vs. National Bank Nig Ltd (1989) 1 NWLR (Pt. 96) 212, 223-225. Counsel argued that the argument that there was no intention to obtain consent is not made out, as the issue of consent was not in contention from the state of the pleadings and as such amount to conjecture. He placed reliance onOpia vs. Ibru & Ors (1992) 3 NWLR (Pt. 23) 658. He therefore urged this Court to discountenance the submissions of the Respondent’s counsel and allow this appeal.

I have gone through the briefs of argument of counsel for the respective parties and I make bold to say that the substance of the issues crafted by counsel are one and the same save for the way they were couched. In this light, I will be adopting the issues for determination as formulated by the Appellants. For completeness, the issues for determination reads thus:
1. Whether the Learned Trial Judge was wrong to have made a declaration that the Mortgage Deed, (Exhibit D2) was null and void on the ground that the Governor’s consent was not obtained prior to entering into the agreement when the Respondent asked for no such relief in his claims before the trial Court.
2. Whether the learned trial Judge was wrong to have held that the Deed of Legal Mortgage was null and void by virtue of Section 26 of the Land Use Act.
3. Whether the learned trial Judge was wrong to have proceeded to grant a relief not claimed by the Respondent and other consequential reliefs when the Respondent’s head claim had already been struck out.
4. Whether the learned trial Judge was wrong to have granted in favour of the Respondent a declaration that the Respondent is the person entitled to a right of occupancy over the mortgaged property when the Respondent had already taken benefit from the mortgage transaction.

In considering this appeal, I will be taking the issues one after the other but I will consider them in this manner; issue 2 will be resolved first, then issue 1, 3, and 4 in that order.

On issue 2, it is the contention of counsel for the Appellants that it was wrong for the learned trial Judge to have held that by virtue of Section 26 of the Land Use Act, the Deed of Legal Mortgage was null and void taking into cognizance the fact that the Respondent was the one who ought to have obtained the Governor’s consent and failure to obtain same should work against him. Counsel submitted that by declaring the Deed of Legal Mortgage null and void, the learned trial Judge conferred on the Respondent benefits over his own default. At this point, I will refer to the portion of the judgment of the lower Court declaring the Deed of Legal Mortgage null and void. It is found on page 334 of the record (page 22 of the judgment):
“In this case, Exhibit D2 is an agreement which was not made subject to the governor’s consent. The usual endorsement put on the agreements of this nature to which the governor subsequently appends his signature is also missing. Unlike the Awojugbagbe case, there was no application for consent. In other words, the mortgage deed Exhibit D2 was not made with the intention to seek Governor’s consent and I so hold. That being the case can it be said that a power of sale has risen? Regrettably the answer is no. Even though the Plaintiff has not asked that the mortgage deed be nullified the Court when faced with an apparent illegality cannot shut its eyes to same. I hold that the mortgage deed Exhibit D2 having been entered into without the Governor’s consent is null and void by virtue of Section 26 of the Land Use Act. I am not in a position to hold same as being inchoate as it is void ab initio. There was no interest passed to the mortgagee consequently no power of sale has arisen.”
Before I address the point whether the mortgage as prepared conforms to Sections 22 & 26 of the Land Use Act, I need to state that the lower Court was not right to hold that no interest was passed from the Respondent to the 1st Appellant. This is not true as the evidence before the lower Court clearly shows that the Respondent deposited title documents of the subject property as security for the loan granted him. There is also an agreement, Exhibit D2 transferring the subject property to the 1st Appellant with power to sell the property in case of default. This is not in dispute. The mere fact that the Governor’s consent was not obtained on Exhibit D2 does not mean that no interest was passed to the 1st Appellant. The non compliance with Sections 22 & 26 of the Land Use Act does not mean that no interest passed to the 1st Appellant. The law recognizes two forms of mortgages, these are legal and equitable mortgage. The law governing each is different and what makes them enforceable is also different. To create a legal mortgage, there must be a deed which must be registered and the Governor’s consent must be obtained. A legal mortgage will be null and void if it is not done in the form of a deed and the consent of the Governor is not obtained. SeeUBN Pc vs. Astra Builders (W.A.) Ltd (2010) LPELR-3383 (SC).
On the other hand, an equitable mortgage is created when the title deed of a property is deposited for the purpose of securing a loan. The deposit of the title deed linked to the loan in itself creates an equitable mortgage. What an equitable mortgage is, how it is created and the effect of such was established by the Supreme Court in the case of Usenfowokan vs. Idowu & Anor (1975) LPELR -3426 (SC) per Sowemimo, JSC (as he then was) when he held on pages 8-11 as follows:

“It must be appreciated that once an equitable mortgage has been created on a property the mortgagor’s interest is only to demand by way of right to an equity of redemption that the title deed be released to him on payment of the loan advanced so that if any interest was ever sold to the plaintiff/appellant it could only be the interest which at the material time the mortgagor himself has. We wish to draw attention to this statement of the law:-
“147. The charge created by a deposit of deeds and extends to every estate and interest possessed by the depositor at the time of the deposit, every interest which he afterwards acquires, and all incidental rights, such as the goodwill of a business carried on upon the premises. A limited owner can charge only his own estate by a deposit; but parol evidence of the assent of the remainder man is admissible to charge the inheritance. The deposit cannot create an equitable mortgage on property to which the deeds do not relate, notwithstanding that by a misapprehension the creditor believes that they relate to the property”.- (Halsbury’s Laws of England Vol.21, 1st Edition).
In Kadiri vs. Olusoga (1956) 1 FSC, the Federal Supreme Court decided:-
“It is the case, as stated by the learned trial Judge, that the security given was not in the form of a legal mortgage” that is to say by deed, transferring the legal estate to the respondent, but the deposit of title deeds as security for a loan is an equitable mortgage, and I am unable to agree that the loan was an unsecured one within the meaning of the legislation in question. As Lord Macnaghten said when delivering the Judgment of the Board in Bank of New South Wales v. O’Connor,(1).
“It is a well established rule of equity that a deposit of a document of title without either writing or word of mouth will create in equity a charge upon the property to which the document relates to the extent of the interest of the person who makes the deposit. In the absence of consent that charge can only be displaced by actual payment of the amount secured.”
In support of that judgment reliance was placed on the case of Bank of New South Wales v. O’Connor (1889) 14 Appeal Cases (A.C.) page 273 at page 282:-
“The bank was no doubt bound to deliver up the deeds on payment of the sum secured, with interest and costs, if any. But, in their Lordships’ opinion, there is no foundation for the proposition that a tender properly made and improperly rejected is equivalent to payment in the case of a mortgage. The proposition seems to be founded on a mistaken analogy. If a chattel be pledged, the general property remains in the pledgor. The pledge has only a special property. According to the doctrines of common law, that special property is determined if a proper tender is made and refused. The pledgee then becomes a wrongdoer. The pledgor can at once recover the chattel by action at law. But it is not so in the case of a mortgage, where the mortgagor’s estate is gone at law, nor is it so in the case of an equitable mortgage. A mortgagor coming into equity to redeem, must do equity and pay principal, interest, and costs before he can recover the property which at law is not his. So it is in the case of an equitable mortgage. It is a well established rule of equity that a deposit of a document of title without either writing or word of mouth will create in equity a charge upon the property to which the document relates to the extent of the interest of the person who makes the deposit. In the absence of consent that charge can only be displaced by actual payment of the amount secured. Before the fusion of law and equity would undoubtedly have restrained the legal owner of the property from recovering his title deeds at law so long as the charge continued, and now when law and equity are both administered by the same Court if there be any conflict the rules of equity must prevail. In Postlethwaite v. Blythe (1), where property had been conveyed to secure a debt of a comparatively small amount, the Lord Chancellor refused to direct a release upon payment into Court of the largest sum to which the debt would in probability amount. Lord Eldon said: “I take it to be contrary to the whole course of proceeding in this Court to compel a creditor to part with his security till he has received his money. Nothing but consent can authorize me to take the estate from the plaintiff before payment.”
The lower Court was therefore wrong to hold that because Exhibit D2 did not have the consent of the Governor or provision made for consent then nothing was passed and therefore the 1st Appellant had no right of sale over the property. That does not represent the position of the law. In fact, though the law is that once a mortgage always a mortgage, a mortgagee either in a legal or equitable mortgage has the right of sale if the mortgagor does not exercise his right of redemption. If the mortgagee exercises his right of sale because the mortgagor did not redeem the loan and there is allegation of improper sale, the remedy open to the mortgagor is to sue for damages and not to set aside the sale in the light of the principle of bonafide purchaser for value. See Alaede vs. Ecobank (Nig) Ltd & Ors (2015) LPELR-25875 (CA). Let me however make haste to say that while a mortgagee has the right to sell the mortgaged property but whether he can do so as of right depends on whether it is a legal or equitable mortgage. If it is a legal mortgage, the mortgagee can sale the mortgage property when the mortgagor fails to exercise his right of redemption without seeking a Court order. If however, it is an equitable mortgage, the mortgagee must secure a Court order to foreclose the mortgage before selling. SeeUBA Plc vs. Musa & Anor (2018) LPELR-45627 (CA); FCMB vs. ATS Abatcha (Nig.) Ltd & Ors (2017) LPELR-43452 (CA). The point I am laboring to make is that by the deposit of the title document with the 1st Appellant, an equitable mortgage has been created between the parties and therefore interest is passed unto the 1st Appellant over the subject property despite the fact that the agreement Exhibit D2 never had the consent of the Governor. The creation of an equitable mortgage can be made without getting the Governor’s consent at the time of creating same. The consent can be obtained later to comply with Sections 22 & 26 of the Land Use Act but the mere deposit of the title document gives the mortgagee right over the property as equitable mortgage. The 1st Appellant could therefore sell the subject property on the strength of that interest passed if the other condition as mentioned above is satisfied.

From the judgment of the lower Court quoted earlier in this judgment, two questions arise which are; what is the effect of failure to obtain the consent of Governor before the alienation of land and who has the duty to obtain the Governor’s consent? The answer to these questions will resolve issue 2 which is the issue I am addressing now.
At this point I will take a little excursion into Land Law but more specifically, the Land Use Act as it relates to alienation of land. The relevant provisions in considering this topical issue are Sections 22 and 26 of the Land Use Act which provides thus:
22. (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained: Provided that the consent of the Governor-
(a) shall not be required to the creation of a legal mortgage over a statutory right of occupancy in favour of a person in whose favour an equitable mortgage over the right of occupancy has already been created with the consent of the Governor;
(b) shall not be required to the reconveyance or release by a mortgagee to a holder or occupier of a statutory right of occupancy which that holder or occupier has mortgaged to that mortgagee with the consent of the Governor;
(c) to the renewal of a sub-lease shall not be presumed by reason only of his having consented to the grant of a sub-lease containing an option to renew the same.
(2) The Governor when giving his consent to an assignment, mortgage or sub-lease may require the holder of a statutory right of occupancy to submit an instrument executed in evidence of the assignment, mortgage or sub-lease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under Subsection (1) of this section may be signified by endorsement thereon.
“Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”
“26. Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”
The purport of the above mentioned provisions is to the effect that where there is an alienation of land either by way of mortgage, sale, lease etc., without the prior consent of the Governor, such alienation will be rendered null and void. In Olalomi Industries Ltd vs. NIDB Ltd (2009) LPELR-2564 (SC), the apex Court held thus:
“There is no doubt that the general intendment of the Land Use Act, the express words vesting title, management and control of the use of land in the Military Governor, the curtailment of the interest of land holder prescribing consent to alienation in all cases. Any failure by a holder under Section 34(2) of the Act to comply with the provisions of Section 22 would attract the full rigor of Section 26 of the Act and render a transaction or an instrument arising therefrom null and void. It was therefore declared that although the 1st Plaintiff/Respondent by the tenor of the Land Use Act committed the initial wrong by alienating his statutory right of occupancy without prior consent in writing of the Governor the express provisions of the Land Use Act makes it undesirable to invoke the maxim “Ex turpicausa non oritur action and the equitable principle enshrined in the case of Buknor Maclean v. Inlaks Ltd. (1980) 8-11 SC 1.”
Similarly, in Calabar Central Co-Operative Thrift and Credit Society Ltd & Ors vs. Ekpo (2008) LPELR-825 (SC), the Supreme Court while reiterating the trite principle of law had this to say:
“The consequence of the unlawful act of alienating a right of occupancy without the requisite consent of the Governor is what is stated under Section 26, also supra. It makes the transaction, such as Exhibit A expressly null and void. Section 26, in declaring such an act null and void used the word “shall” which, in the instant case makes the provision mandatory, not directory or discretionary. Learned Counsel for the appellants wants the Court to hold that Section 26 of the Act does not say that the alienation is void for all purposes but I do not see how that interpretation can be achieved. The provision, as earlier stated is clear and unambiguous and therefore calls for no interpretation – it says that an alienation made contrary to the provisions of the Act “shall be null and void” which to my mind, means “null and void” for all purposes under the sun; if it were not so the law would expressly or by necessary implication have stated so.”
To this extent, I agree with the learned trial Judge that the failure of the parties to obtain the prior consent of the Governor before alienation will render the transaction null and void.
The learned counsel for the Appellants has argued that the law imposes an obligation on the Respondent to seek the consent of the Governor. Can this be true? Where this Court holds that this is true, then this Court will find in favour of the Appellants and against the Respondent under the latin maxim ‘ex turpi cause non orituractio’ which is to the effect that a party will not be allowed to benefit from his own wrong. See Ibrahim vs. Osunde & Ors (2009) LPELR-1411 (SC); Kaiyaoja vs. Egunla (1974) 12 SC 55; Adimora vs. Ajufo (1988) 3 NWLR (Pt. 80)1; Adedeji vs. NBN (1989) 1 NWLR (Pt. 96) 212; AP vs. Owodunni (1991) 8 NWLR (Pt. 210) 391 @ 421. This will be the game changer in the case of the Appellants. The contention of Appellants’ counsel is evidenced by Section 22 of the Land Use Act and stated in the case ofBulet Int’l (Nig.) Ltd & Anor vs. Olaniyi & Anor (2017) LPELR-42475 (SC) where it was held thus:
“Sections 22 (1) and 26 of the Land Use Act provide: “22. (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained. 26. Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.” From the above provisions, no alienation of the interest of the holder of a statutory right of occupancy in respect of a piece or parcel of land will be valid unless the consent of the Governor (or in the case of the FCT, the Honourable Minister) has been sought and obtained. See: Ugochukwu Vs Cooperative and Commerce Bank Ltd. (1996) 6 NWLR (Pt.456) 524; Owoniboys Technical Services Ltd. vs Union Bank of Nig. Plc. (2003) 15 NWLR (Pt.844) 545. It is also the law that it is the holder of a statutory right of occupancy that has the duty to apply for the Governor’s (or Minister’s) consent in respect of the land he wishes to transfer, assign, mortgage, etc. See: Mbanefo V. Agbu (2014) 6 NWLR (Pt.1403) 238; Owoniboys Technical Services Ltd. V. Union Bank of Nig. Ltd. (supra).”
From the clear wording of the provision of Section 22(1) of the Land Use Act and the decision of the Courts in plethora of cases, the holder of the statutory right of occupancy, in this case, the Respondent has the responsibility of obtaining the Governor’s consent. The Respondent having failed to so do, can the Respondent hide under the law to say that the transaction is null and void? The law of equity will not permit that as he who comes to equity must come with clean hands. See Reichie vs. Nigeria Bank for Commerce and Industry (2016) LPELR-40051 (SC); Ifekandu & Anor vs. Uzoegwu (2008) LPELR-1435 (SC). The argument of learned counsel for the Appellants seems to be on course on this point but there is a game changer which turned the tide in favour of the Respondent. The Respondent has argued in its brief that having offset all expenses from the Respondent’s account, the duty of obtaining the Governor’s consent passed on to the Appellants and as such, their argument is misplaced. I find the cross examination of the Appellants’ witness who was the auctioneer at the sale, that is 2nd Appellant; very instructive on this matter. The cross examination of the 2nd Appellant by the Respondent’s counsel is found on page 289 of the record wherein the 2nd Appellant stated thus:
“The figure is made up of principal and interest. It includes all charges. I was working in the bank. We have many solicitors. Chief G. Ayodele Onagoruwa & Co., chamber was involved in the documentation perfection of the documents.
The settlement of all expenses was from plaintiff’s account.
The plaintiff submitted his title documents to us on which a legal mortgage was prepared…”
The Respondent counsel argued that by the evidence elicited from the 2nd Appellant under cross-examination, Respondent discharged the burden of proof that the Appellants having deducted the money from his account for documentation and processing of the consent of the Lagos State Governor in respect of Exhibit D2 and has done all he needed to by submitting all the documents to obtain consent, the Respondent was no longer obliged to process the consent from the Lagos State Governor; as his statutory duty was discharged. It is however surprising that there was no re-examination of the 2nd Appellant on this fact. What this implies is that it is deemed as true and the Court cannot hold otherwise. In the light of this evidence, I find that the Appellants who had deducted the money from the Respondent’s account in respect of documentation and the processing of the Governor’s consent cannot turn round to assert that the responsibility still lies on the Respondent and I so hold.
Having held that by the evidence before the lower Court that the duty to obtain the consent of the Governor has moved to the Appellants and the Appellants having failed to seek the consent of the Governor will therefore take responsibility for any fall out of the inability to obtain the consent of the Governor. What then, is now the effect of failure to obtain same? By law, parties can enter into an agreement to alienate land and execute such an agreement subject to the consent of the Governor being sought and obtained. The implication of alienating land without the consent of the Governor makes the agreement inchoate and not necessarily null and void. This was the decision of the Court in the cases of Awojugbagbe Light Industries Ltd vs. Chinukwe & Anor (1995) LPELR-650 (SC). As observed by the learned trial Judge, from the inception of the transaction the agreement was entered into without an intention to seek and obtain the Governor’s consent in the future. This was evidenced by the very fact that the endorsement column for the Governor’s signature is missing. By a clear reading of Section 26 of the Land Use Act as reproduced above and the very fact that the parties had no intention of seeking and obtaining the Governor’s consent, I cannot see my way clear in holding for the Appellants as the document evidencing the transaction is null and void. If there was provision in the agreement for Governor’s signature, then it would have been inchoate but the absence of the column for Governor’s consent shows clear violation of Section 22 and therefore the agreement, Exhibit D2 is null and void. This issue is therefore resolved in favour of the Respondent.

Having resolved issue 2 in favour of the Respondent which is to the effect that the Deed of Legal Mortgage is null and void, the next question that needs to be answered is whether the learned trial Judge was wrong in holding that the Deed of Legal Mortgage is null and void when the Respondent did not ask for a relief along that line. This now leads me to issue one.
On issue one, it is the argument of learned counsel for the Appellants that the basis on which the Respondent sought his claim at the lower Court was on the irregularity of the sale due to lack of notice, failure to account and the undervalued sale of the property, and not on grounds that the Deed of Legal Mortgage was null and void. I also find as a fact that prayer one of the Respondent’s (Plaintiff’s at the lower Court) claim was refused because the Respondent was challenging the procedure for the sale and not the legality of the sale. Counsel in arguing this issue contended that the lower Court in making its findings granted the Respondent reliefs which were not claimed. Can this be true?
The law as has been laid down over the years is that a Court of law being a Court of justice is not supposed to grant a relief not claimed by a party as the Court is not a father Christmas to grant a relief not sought. This trite principle of law was enunciated in the case of Ativie vs. Kabelmetal (Nig) Ltd (2008) LPELR-591 (SC), where the Supreme Court per Tabai, JSC held thus:
“A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A Court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed. These are the principles in OKUBULE v. OYAGBOLA (1990) 4 NWLR (part 147) 723 at 744; KALIO v. KALIO (1975) 2 SC 15; OLUROTIMI v. IGE (1993) 6 NWLR (Part 311) 257.”
See alsoIlona vs. Idakwo & Anor (2003) LPELR-1496 (SC); Osuji vs. Ekeocha (2009) LPELR-2816 (SC).
I need not dwell so much on this trite principle of law as it has become grounded and well settled over the years. I agree with the Appellants’ counsel on the trite principle of law but whether or not I agree with the argument of learned counsel for the Appellants on the issue under discussion will be dependent on the sense I make out of the pleadings of the parties and the judgment at the lower Court. At this junction, I will make reference to the reliefs claimed by the Respondent in his Amended Statement of Claim at the lower Court. This is contained on page 264 of the record.
“WHEREOF THE Plaintiff claims as follows:
1. A Declaration that the purported sale by Public Auction of the Plaintiff’s House known as No. 14, Araromi Street, Oshodi, Lagos State, to the 3rd Defendant by the 2nd Defendant on the instruction of the 1st Defendant is irregular, void and of no effect.
2. A Declaration that the Plaintiff is the person entitled to a right of occupancy over the said house.
3. An Order of Injunction restraining the Defendants from further dealing in, selling or in any way alienating or disposing of the said house.”
From the clear wording of the reliefs claimed by the Respondent at the lower Court, there is no relief for the lower Court to declare the Deed of Legal Mortgage null and void. Does this now bring the finding of the lower Court under the purview of granting a relief not claimed? The simple answer to this question is absolutely NO. I find the argument of learned counsel for the Appellants misplaced as the declaration of the Deed of Legal Mortgage as being null and void was not a relief granted to the Respondent but rather it is a finding made by the learned trial Judge for the effective resolution of the case of the parties. The Court is permitted to make necessary findings for the effective disposition of a matter before it and it is from these findings that the judgment of the Court flows from. This settled principle of law was laid down in the case of Ogbechie & Ors vs. Onochie & Ors (1988) LPELR-2277 (SC) per Nnaemeka-Agu JSC in these words:
“Now a judgment of Court ought to flow naturally from the findings or conclusions of fact made by the Court: Polycap Ojogbue & Anor v. Ajie Nnubia (1972) 1 All NLR (Part 2) 226.”
Similarly, in Oyeyemi & Ors vs. Irewole Local Govt., Ikire & Ors (1993) LPELR-2881 (SC) where the same principle was stated thus:
“Needless to state that every decision of a Court of justice should not only flow logically from the conclusions of facts and of law made by the Court but also be readily seen to be a logical result of such an exercise : Ojogbue v. Nnubia (1972) 1 All NLR 226.”
The finding of a Court is not and cannot be equated with the order of the Court although it is necessary that the Court makes findings in order for it to arrive at its judgment. Where a Court makes a finding, it cannot be said to be the order of the Court nor a relief granted but the judgment of the Court might flow from that finding. It therefore means that in the determination of issues, a Judge can make one or more findings. The issue of consent was raised in the Respondent’s reply to Appellants’ Statement of Defence and Statement of Defence to counter claim and also raised and argued by the Respondent’s counsel as an issue for determination before the lower Court. The Appellants counsel’s argument that the lower Court raised the issue of Governor’s consent suo moto and resolved same suo moto does not seem to be correct in my view as the Deed of legal mortgage is the document upon which all the transactions of the parties lie. It therefore means that if there is an obvious defect in it, every other thing done which proceeds from it cannot stand; as you cannot put something on nothing and expect it to stand. See Sijuade vs. Elugbindin & 3 Ors (2017) LPELR-42702 (CA). The lower Court was therefore right in settling the issue of consent before proceeding to other matters in the case. The Court is permitted to raise a question and answer same and that will not be considered as raising an issue suo motu if the point is contained in the pleading. That a party did not deem it fit to address it while conducting a case which the Court deals with in the judgment does not amount to raising the issue suo motu. An issue is raised suo motu when it does not form part of the pleadings before the Court. If it is part of the pleading but overlooked by the counsel which the Court in the judgment deal with without calling for address, it is appropriate and not an issue raised suo motu. In this respect, I find the case of Ikenta Best (Nigeria) Ltd vs. Attorney General River State (2008) 6 NWLR (Pt. 1084) 642 very instructive. The apex Court held:
“A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation.

A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.”
More so, the Exhibit D2; Deed of Legal Mortgage is a document before the lower Court which the Court ought to evaluate and make necessary findings which the lower Court did. A trial Court has a duty to consider all documents tendered before it as exhibits and make a finding on those documents by way of evaluating same to determine whether to give it probative value or not. See Karibo & Ors vs. Grend & Anor (1992) LPELR-1667 (SC); Unical & Ors vs. Effiong & Ors (2019) LPELR-47976 (CA); Fagunwa & Anor vs. Adibi & Ors (2004) 17 NWLR (Pt. 903) 544.
Even if I am to agree with the Appellants counsel’s submission that the lower Court granted the Respondent a relief not claimed, which I do not, the lower Court will still be in order as it has been settled that a Court may grant a relief not specifically claimed if however it meets the circumstance of the case where there is evidence to rely on for such a grant by way of consequential order. This principle was stated inObueke & Ors vs. Nnamchi & Ors (2012) LPELR-7810 (SC) thus:
“Indeed it is trite law that a Court may not grant a relief not specifically pleaded but may do so to meet the circumstances of the case more so where there is in evidence facts it can rely on to grant the relief.”
This issue is resolved in favour of the Respondent.

I will take issues 3 & 4 together as one dovetail to the other but in doing that, I will deal with the substance of issue 3 first. The Appellants through their counsel have also argued that the lower Court was wrong to have granted the consequential reliefs of the Respondent when his head relief was not granted. To confirm whether granting reliefs 2 & 3 amounts to granting a consequential relief, it will be necessary to know what amounts to consequential orders. The apex Court in a plethora of cases defined what consequential orders are. These are orders which give life to the main judgment of the Court. That is, these are orders which flow naturally from the judgment of the Court. I will mention just a case or two on this. In Liman vs. Mohammed (1999) 9 NWLR (Pt. 617) 116, the apex Court per Ogundare, JSC (of blessed memory) held:
“What is a consequential order is defined by Nnaemeka-Agu J.S.C in Akinbobola v. Plisson Fisko Nigeria Ltd. & Ors (1991) 1 NWLR 270, 288 where he said:
“A consequential order is not one merely incidental to a decision but one necessarily flowing directly and naturally from, and inevitably consequent upon, it. It must be giving effect to the judgment already given, not by granting a fresh and unclaimed or unproven relief.”
See also: Obayagbona v. Obazee (supra) where Sowemimo JSC, as he then was, observed:
“We think that by the very nature of the term ‘consequential’ any ‘consequential orders’ must be one giving effect to the judgment. In its ordinary dictionary meaning, the word ‘consequential’ means ‘Following as a result, of inference; following or resulting indirectly’. See the Concise Oxford Dictionary, 5th Edition, Page 258 . The word has never been regarded as a term of art. All the ‘consequential orders’ made by the learned trial Judge were not part of the claims before him and they do not necessarily follow as a result thereof or constitute an inference. A consequential order therefore, made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an order made within jurisdiction.”
A consequential order can only relate to matters adjudicated upon.”
Similarly, in Eyigebe vs. Iyaji (2013) 5-6 SC (Pt. 1) 28, the apex Court held thus:
“The purpose of a consequential order is to give effect to the judgment. It must therefore flow from the circumstances of the decision of the Court. It must not be at a cross purpose or in anyway contradictory to the decision of the Court. See the case of Chikere v. Okegbe (2000) 7 SCNJ 128 at 145.
With the High Court having pronounced an Order of a dismissal of the case, the subsequent Orders 3 and 4 did not correctly flow from the judgment of the Court but were inconsistent, contradictory and unnecessarily far reaching. A consequential order is not one merely incidental to the decision but one which necessarily flow directly and naturally there from; it is inevitable and consequent upon the decision made by the Court: It must in otherwords give effect to the judgment already given and not a granting of fresh and unclaimed or un proven relief. It can only relate to matters adjudicated upon. Where it flowed from nothing decided, as it is in the case at hand, the subsequent orders made must be nullified. This was the view held by this Court in Dr. M.T.A. Liman V. Alhaji Mohammed (1999) 6 SCNJ 142. Also in Henry O. Awoniyi V. ARMOC 2002 6 SCNJ 141, it was further held that where a principal order sought was refused by a Court, an incidental order cannot be made. This is because a consequential order by its very nature is predicated on a principal order, without which it must crumble. In otherwords it ought to be cut off/or severed.
Another related authority is the decision in the case of Obayagbona V. Obazee (1972) (reprint) 5 SC 159 wherein this Court again per Sowemimo, JSC while considering an Order made subsequent to a judgment restated clearly at page 162 and said:-
“With respect it is quite wrong for the learned trial judge having declared the plaintiffs successful “as claimed” to make consequential orders which had the effect as in this case of varying his judgment and which in any case were not specifically asked for. The learned trial judge was functus officio, immediately after he gave his judgment.”
Also at page 163 of the same report the learned jurist went further and said:-
“… A consequential order therefore made subsequent to a judgment which detracts from the judgment or contains extraneous matters is not an Order made within jurisdiction because at that stage, having determined the rights of the parties, by giving judgment for plaintiffs as claimed the judge has become functus officio except for any act permitted by law or Rules of Court.”
Following from the foregoing authority therefore and with the High Court, having dismissed the appeal, it had at that stage become functus officio. The making of subsequent consequential orders which had the effect of varying its judgment and which in any case was not specifically asked for, was erroneous. This is because by nature, the order must be one giving effect to the judgment; it follows as a result to inference; following or resulting indirectly.”
It is trite that no one can put something on nothing and expect it to stand. See Sijuade vs. Elugbindin & 3 Ors (supra). Since a consequential order is supposed to give life to the principal, primary or main relief, a consequential order must not conflict with the principal order. The direct implication of that is that without granting the substantive, principal, main or primary relief, the consequential relief has no legs to stand on. This is clear and unequivocal. I will however hasten to add that an order or relief does not become consequential because a party calls it so. In an action, there are main reliefs, alternative reliefs and subsidiary reliefs. Except for alternative reliefs, every relief in an action stands on its own and the Court cannot term any relief as consequential relief. Though some reliefs can be produced and not seen as the main relief but a Court can grant same if there is evidence that establish the granting of same. The lower Court struck out relief one in the claim of the Respondent but granted reliefs 2 & 3. The Appellants are challenging this decision of the Court. To properly appreciate what is involved here, I will reproduce the reliefs earlier stated in this judgment:
“WHEREOF THE Plaintiff claims as follows:
1. A Declaration that the purported sale by Public Auction of the Plaintiff’s House known as No. 14, Araromi Street, Oshodi, Lagos State, to the 3rd Defendant by the 2nd Defendant on the instruction of the 1st Defendant is irregular, void and of no effect.
2. A Declaration that the Plaintiff is the person entitled to a right of occupancy over the said house.
3. An Order of Injunction restraining the Defendants from further dealing in, selling or in any way alienating or disposing of the said house.”

In its judgment on page 337 of the record of appeal (page 25 of the judgment), the lower Court held:
1) A declaration that the Plaintiff is the person entitled to a right of occupancy over the house known as No. 14, Araromi Street, Oshodi, Lagos.
2) An order of injunction is hereby granted restraining the Defendant from further dealing in, selling or in anyway alienating or disposing of the said house known as No. 14, Araromi Street, Oshodi, Lagos State.
The lower Court refused to grant the first relief in my understanding of the judgment because the premise upon which the Respondent sought for the order to grant the relief to annul the sale cannot be justified by the evidence before the Court. The premises been that no notice was served on the Respondent or the property was sold at an undervalued price and there was collusion in the sale to defraud the Respondent. As stated above, this is a challenge on the procedure of the sale an not the legality of the sale. The lower Court held that the sale could not be set aside on those grounds. The lower Court however went on to set aside the sale because the document upon which the 1st Appellant instructed the 2nd Appellant to sell the property was not valid because as a legal mortgage it never had the consent of the Governor. This is why the lower Court now went on to grant the 2nd & 3rd reliefs. I do not agree that reliefs 2 & 3 which the Appellants’ counsel referred to as consequential reliefs are so properly called. They are reliefs that stand on their own right which will be considered in their own right. The general legal position is that these reliefs can stand on their own. The issue now is whether in the circumstance of the evidence before the lower Court, was the Court right to have granted reliefs 2 & 3 when it struck out or refused to grant relief 1. This now takes me to issue 4.

While I do not agree that the 2nd & 3rd reliefs are consequential reliefs, it worries me that the lower Court refusing to hold that the sale was irregular, null and void on the grounds stated by the Respondent in his pleadings however went on to hold that the Respondent who is owing the 1st Appellant is entitled to be granted the right of occupancy over a property that he used as security for a loan that he did not deny that he took and which at all material times to this case has not been paid by the Respondent.
The purport of the refusal to grant prayer 1 is that the sale is not void. In one breath, the same Court refused to grant the prayer to declare the sale irregular, null and void which implication is that the sale is valid. On the other breath, the lower Court went on to hold that the Respondent is entitled to the right of occupancy. This seem contradictory. Technically, the lower Court seem to be saying that since the document which confers the right upon the 1st Appellant to sell the subject property is null and void, the whole transaction is null and void and therefore the subject matter still belongs to the Respondent.
This position to say the least does not meet the tenet of justice or equity. The Appellants’ counsel rightly in my view had submitted that it is not justice to allow the Respondent who has enjoyed the facility to also take back the property without paying back the facility. This Court like any other Court is not just a Court of law but also a Court of justice. When dealing with the subject of justice, a Court must not look at justice from the perspective of the Appellant or the Respondent alone but also from the perspective of the society. Looking at justice from the perspective of one of the parties alone will definitely becloud the sense of justice as each of the parties will be narrow minded in defining what justice is within the purview of their case. A Claimant will say justice is done when the case is decided in his favour, just like the Defendant will. It is my firm view that justice must be done to both parties and not just to the Appellants. See PDP vs. INEC &Ors (2012) LPELR-9724 (SC); Nwokocha vs. A. G. Imo State (2012) LPELR-15358 (CA).
The primary duty of a Court is to do justice and in so doing what a Court should look at for is substantial justice and not technical justice. Justice is defined as fairness and quality of being right. A Court therefore may sometimes look outside the strict application of the law to ensure justice is done within the concept of equity, fairness and equality. See: Larmie vs. Data Processing Maintenance & Services Ltd (2005) 12SC (Pt. 1) 93; Willoughby vs. International Merchant Bank (Nig.) Ltd (1987)1 NWLR (Pt.48)105. There is miscarriage of justice when there is a gross unfair outcome in a judicial proceeding see: Olusola Adeyemi vs. State (2014)5-6 SC (Pt. iii)148. The Supreme Court in Alhaja Sanusi vs. Ameyogun (1992) 4 NWLR (Pt.23)527 defined miscarriage of justice as a “decision or outcome of legal proceeding that is prejudicial or inconsistent with substantial right of parties”. Bearing this in mind, will the tenent of justice be served when a Court decides in favour of a person over a property he used as security for a loan when the loan has not been paid back basically on the premise that the document upon which the property was deposited has some technical defect? I do not think so. I must make a distinction here, that, what is null and void is not the transaction of the loan facility but rather the document used to transfer title. The loan is still there and so whatever decision that will benefit the Respondent to the extent of eating his cake and having it back will not meet the tenet of justice. I had held earlier in this judgment that the worse case situation is that what transpired between the 1st Appellant and the Respondent is an equitable mortgage. For as long as the loan remain unpaid, it will not be fair to hold that the Respondent is entitled to the right of occupancy as it is settled that a party will not be allowed to profit from his wrong. This trite principle was well stated in the case of Adedeji vs. Obajimi (2018) LPELR-44360 (SC) thus:
“I find it pertinent here to ask in the interest of equity and good conscience, howbeit that the Appellant who has willy-nilly refused (and with no lawful excuse) to perform a contract he has willingly signed and deliberately held the Respondent to ransom by refusing to pay up without word of his loss of interest or otherwise to the Respondent, be made to benefit from his breach. It is trite that a party should not benefit from his own wrong and I am of the firm view that the decision of the trial Court amounts to allowing a party reap benefits from his wrong. See: ENEKWE VS I.M.B (NIG) LTD (2007) All FWLR (Pt. 349) page 1053 at 1081. The trial Court’s attempt to bail the Respondent out on the equitable doctrine of part performance shall not be allowed to stand, it is my firm view that equity must be done to both parties and not just the Appellant. I affirm the finding of the Court below as follows: “It must be stated here that the doctrine on part-performance arose by sheer intervention of equity. Equity intervened to mitigate the losses that may arise by rigid application of contracts that by law ought to be in writing but were made orally. The doctrine is based on estoppel that a defendant who plainly indicated by his conduct the existence of a contract could not be allowed to give himself the lie and take shelter under a statute. It is designed to prevent fraud from being perpetrated on the other side who has altered his position on the faith of the contract… Exhibit 7 is a written contract between the parties. They did not enter into any oral contract in which the appellant made the respondent alter his position adversely on the faith of the contract. So, the doctrine of part-performance imported into the judgment did not hold any water. The learned trial judge with respect to her, talked about interest of justice to the respondent who was in breach of a fundamental term. I am afraid; interest of justice must be to the appellant as well and I dare say even to the Court itself. The respondent did not pay the purchase price on 30-4-99 as agreed. Within 30-4-99 and 29-10-99, the respondent put the appellant in limbo; to use the language of the trial judge. The respondent failed to pay up on scheduled date. For about six months, the respondent put the appellant in suspense and had the audacity to say that the appellant was negotiating with others for the sale of his concern.” I absolutely agree with this position and do believe that if anything, that the wand of interest of justice and equity being waved in favour of the Appellant at the trial Court should have been directed at the Respondent too, luckily for the Respondent, posterity has smiled on him through the decision of the Court below and I do not intend to overturn that decision, in fact, I endorse it.”
At all times material to this case, there is no evidence that the Respondent has paid back the loan facility and in the circumstance, I do not think justice will be served by allowing the judgment of the lower Court as it relates to granting reliefs 2 & 3. In Afribank vs. Alade (2000) 13 (Pt. 685) 591 @ 604, it was held that a debtor who benefited from a loan/overdraft from a bank, commercial of financial institution has and owe both the legal and moral duty or obligation; expressly or implied, to repay it. See alsoNBN vs. Shoyoye (1977) 5 SC, 181; Udofel Limited vs. Skye Bank Plc (2014) LPELR-22742 (CA). I am fortified in this decision as it will be most unfair and portray a mark of injustice to allow the Respondent who has enjoyed the loan and has not paid back to still have the right of occupancy over a property used as security. The day when the Respondent will eat his cake and have it on the grounds to technically will not come in our judicial system as that will promote injustice.
I resolve issues 3 & 4 in favour of the Appellants.

On a whole, this appeal is meritorious and same is hereby allowed. The judgment of Hon. Justice O.M. Akerele-Ayeni of the High Court of Lagos State, Ikeja Division delivered in Suit No. ID/824/1988 – Rafiu Kolawole Oladipo vs. Cooperative Bank Limited & 2 Ors. Delivered on 31/5/2000 is hereby set aside, the claim of the Respondent in the lower Court is dismissed and judgment is therefore entered for the 3rd Appellant for the sum of N30,800.00 for rent between February 1988 – March 1989. As there is no evidence before the lower Court as to when possession was actually given to the 3rd Appellant, I cannot make any order as to rent after March 1989.
Parties are to bear their own cost.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to have read in draft the leading judgment of my learned brother, Ebiowei Tobi, JCA, which has just been delivered.

The manner of resolution of the issues for determination are in accord with my views. I therefore adopt the reasoning and conclusion in the leading judgment as mine, and also join in allowing the appeal on the same terms as set out in the leading judgment. I abide by the order as to costs.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

A. OWOLABI, ESQ. For Appellant(s)

A. KOKUMO, ESQ. For Respondent(s)