FAGBOYEGUN v. HERITAGE BANK LTD & ANOR
(2022)LCN/16547(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Monday, July 25, 2022
CA/AK/85/2016
Before Our Lordships:
AyobodeOlujimiLokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale OlumuyiwaAbiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
MR. AJIBOLA FAGBOYEGUN (For Himself And The Entire Members Of Late Fagboyegun Family) APPELANT(S)
And
1. HERITAGE BANK LIMITED 2. MR. OLUSEGUN ADENIRAN RESPONDENT(S)
RATIO:
THE BURDEN OF PROOF AS A MATTER OF LAW AND PLEADINGS IS THE BURDEN OF ESTABLISHING A CASE BY PREPONDERANCE OF EVIDENCE
It is trite that in civil proceedings, the burden of proof as a matter of law and pleadings is the burden of establishing a case by preponderance of evidence. This rests upon the party whether claimant or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstance whatever. In deciding what party asserts the affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which the pleader can frequently vary at will. A negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rests on him. In other words, once a party asserts, he must prove the assertion, otherwise judgment will be given against him – Obe Vs MTN Nigeria Communications Ltd (2021) 18 NWLR (Pt 1809) 415, Dematic (Nig) Ltd vs Utuk (2022) 8 NWLR (Pt 1831) 71, Adesina Vs Air France(2022) 8 NWLR (Pt 1833) 523. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
AN APPELLATE COURT WILL NOT INTERFERE WITH THE EVALUATION OF EVIDENCE CARRIED OUT BY A TRIAL COURT
The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for thatof the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC). AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE SUBSTANCE OF A MORTGAGE OF LAND IS A RIGHT OF PROPERTY VESTED IN THE MORTGAGEE
It is also part of their counter-claim a declaration that they have a right as an unsettled mortgagee to sell all the property legally mortgaged to it by the Late J. S. Fagboyegun and an Order for the sale of the property situate at No. 16, Ademuwagun Street, Odojoka Area, Off Araromi High School, Road, Akure which was mortgaged to it.
Having established that the claimant is indeed indebted to the Counter-Claimants/Defendants, the question now arises as to whether they can exercise a Power of Sale of the mortgaged property. The substance of a mortgage of land is a right of property vested in the mortgagee. By virtue ofthat right, the mortgagee is entitled to have the rents and profits applied to satisfy his debt, and upon default by the mortgagor to liquidate the loan and enforce the security by sale or foreclosure. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
AN ORDER OF NON SUIT IS A TERMINATION OF AN ACTION WHICH DID NOT ADJUDICATE ALL RELEVANT ISSUES ON THE MERIT
An order of non-suit is a termination of an action which did not adjudicate all relevant issues on the merit, as where a plaintiff is unable to prove his whole case and it will be unjust to dismiss such a case in its entirety or where there was a failure by the trial Judge to make proper and specific findings and an appellate Court can neither do the same on the printed evidence, a re-hearing or non-suit, depending on the circumstances, may be ordered – Awote Vs Owodunni (No 2) (1987) 2 NWLR (Pt 57)366, Olufosoye vs Olorunfemi (1989) 1 SC (Pt 1) 29, Odi Vs Iyala (2004) 8 NWLR (Pt 875) 283. The order of non-suit made by a Court is an expression that at the conclusion of the trial, the plaintiff who brought the action has not established his claim to the satisfaction of the Court to deserve judgment in his favour. At the same time, the defendant who has been brought to Court is not similarly entitled to judgment. This is because although the plaintiff may not be entirely devoid of any right or title as regards the matter in dispute, he has not established any claim as against the defendant. It therefore means that the plaintiff should have a second chance to litigate the issue – Okpala Vs Ibeme (1989) NWLR (Pt 102) 208, Adelusola Vs Akinde (2004)12 NWLR (Pt 887) 295. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 5/8/2015 by the High Court of Ondo State presided over by T.O. Osoba, J. (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively).
The instant case was instituted by the Appellant for himself and the entire members of the family of Fagboyegun against Omega Bank Plc and Mr. Olusegun Adeniran (the 2nd Respondent herein) by a writ of summons which issued on 7/5/2001. The writ of summons was accompanied by a statement of claim dated and filed on the same 7/5/2001. The claims of the Appellant as set out in paragraph 31 in the said statement of claim against the defendants jointly and severally, are as follows:-
“(a) A Declaration that the the (sic) death intestate of Chief (Dr,) J.S Fagboyegun on 4/11/2000, all his children including the plaintiff, become successors-in-title and, therefore, owners of the landed property known as No, 16, Ademuwagun Street, Odojoka Area, off Araromi High School Road, Akure, covered by Certificate of Statutory Right of Occupancy No. 37/37/137 of the Lands Registry in the office at Akure, through inheritance.
(b) A Declaration that there exists no subsisting legal mortgage Deed (Agreement) or charge by way of legal mortgage executed between the first defendant and the plaintiff, in respect of the eight (8) three-Bedroom Flat (sic) situate and being at No. 16, Ademuwagun Street, Odojoka Akure, off Araromi High School Road, Akure, advertised for sale through Public Auction at 10:10 am on 11th May, 2001, by the second defendant, Public Auctioneer, for and on behalf of the first defendant.
(c) An order that the Defendants either jointly or severally have no disposable interests in the said property advertised for sale through Public Auction by the second Defendant as agent of the first Respondent (sic).
(d) AN ORDER of injunction restraining the defendants either by themselves, agents, servants, privies or through any person howsoever from selling or alienating in any form the plaintiffs landed property situate, lying and being at No. 16, Ademuwagun Street, Odojoka Area, Araromi High School Road, Akure, covered by a Certificate of Statutory Right of Occupancy No. 37/37/137 at the Lands Registry inthe Office at Akure.”
The Appellant in the course of the trial would appear to have amended his statement of claim. I deliberately use the words “would appear” because the date the lower Court allowed the amendment was not disclosed in any of the notes of proceedings in the record of appeal (hereafter to be simply referred to as “the record”). It would however appear that the lower Court actually made necessary orders in respect of the amendments or regularization to and of the processes filed by the parties in the case. This is against the backdrop of the portion of the judgment of the said Court (which spans pages 84-105 of the record) wherein the said Court stated thus: –
“By a writ of summons dated 7th of May, 2001 and a statement of claim filed same day, the Claimants (sic) seek the following reliefs:-
…
The statement of claim was subsequently amended and this Honourable Court granted the amendment on 27th day of May, 2014. The reliefs sought are substantially same with the writ of summons with an additional relief included to read;
(5) the sum of N10 Million Naira (Ten Million Naira only) as damages for their convenience pain odium and ridicule the actions of the Defendants have caused the plaintiff and the entire members of the family.
The defendants filed a consequential amended statement of defence and counter-claim to the claimants’ (sic) statement of claim. The defendants (sic) counter claimed as follows;
“(a) The sum of N7,861,466.82 being the total indebtedness of his late father, J.S. Fagboyegun to it as at 31/12/2001
(b) 21% interest on the principal sum of N7,861,466.82 from 1/1/2002 till judgment day and thereafter 10% interest on the judgment debt till final liquidation.
(c) A declaration that neither the Plaintiff nor any other beneficiary of the estate of Late J.S. Fagboyegun could inherit the property situate at No. 16, Ademuwagun Street, Odojoka Area, Akure without settling the total indebtedness of the deceased to it.
(d) A declaration that it has a right as an unsettled mortgagee to sell all the property legally mortgaged to it by the late J.S. Fagboyegun, including the property at No. 16, Ademuwagun Street, Odojoka Area, Akure.
(e) An order for the sale of the property situate at No. 16, Ademuwagun Street, Odojoka Area, Akure which was mortgaged to it by the late J.S. Fagboyegun,”
The case of the Appellant as set up in his further amended statement of claim is that his father (hereafter to be simply referred to as “the deceased”) in his lifetime was a customer of the 1st Respondent Bank (therein described as Enterprise Bank Ltd but now Heritage Bank Ltd as shown on the briefs of argument filed in the instant appeal by the parties). That after the death of the deceased, he (Appellant) and other members of his family demanded for the statement of account of the deceased from the 1st Respondent but was given a letter of offer of credit facility in the sum of N5 million issued to the said deceased without any evidence showing that there was actual disbursement of the said sum to the deceased. That he (Appellant) conducted a search at the lands registry in Akure and discovered only a legal mortgage created over the property at No 16 Ademuwagun Street, Odojaka Area off Araromi High School Road Akure (hereafter to be simply referred to as “the property”) between the deceased and Federal Mortgage Bank. The Appellant averred to the effect that his searches revealed no deed of mortgage executed between the deceased and the 1st Respondent. That the 1st Respondent instructed the 2nd Respondent to advertise the property for sale. That as there was no deed of release in respect of the mortgage created in favour of Federal Mortgage Bank, it would be impossible for the deceased to have executed a mortgage over the same property with the 1st Respondent. It is the case of the Appellant that the 2nd Respondent did not comply with the law regulating auction sales.
The case of the 1st Respondent as stated in its amended pleadings is that the property was mortgaged to it by the deceased and that members of the family of the deceased were aware of the indebtedness. That it complied with all statutory requirements before advertising the mortgaged property for sale. That it has a right as an unsettled mortgagee to sell the mortgaged property and that the mortgage between it and the deceased is binding on his (deceased) successors which included his children. The counter-claim set up by the 1st Respondent is to the effect that the deceased was a customer of the bank and that he was granted an overdraft facility in the sum of N1,500,000.00in 1997 after he had repaid an earlier overdraft facility granted him in 1996 in the sum of N1,070,000.00. That the deceased was also granted another overdraft facility in the sum of N5 million in the same year (i.e. 1997) after he had repaid the overdraft facility of N1.5 million. That while the deceased repaid the overdraft facilities of N1,070 000.00 and N1.5 million granted him in 1996 and 1997 respectively, he did not repay any part of the overdraft facility granted to him in the same 1997 before he died. That the 1997 overdraft facility which the deceased never re-paid any part thereof, was secured with some properties including the property in issue in the instant case. That the indebtedness of the deceased to the 1st Respondent as at 31/12/2001 was in the sum of N7,861,466.82, and that this fact was brought to the knowledge of the Appellant. That upon requests from the members of the family of the deceased, it (1st Respondent) agreed to reduce the indebtedness of the deceased from N5,623,000.00 to N3,655,000.00. Upon the failure of the family of the deceased to repay the facility it (1st Respondent) instructed the 2nd Respondent to sell the mortgaged property. (Underline and bold provided by me).
In the proof of his case, the Appellant fielded two witnesses: PW1 – Emmanuel Ayo Falade, the Chief Registrar of Deeds, Ondo State who testified consequent upon a subpoena issued him. The Appellant testified as PW2. The following documents tendered by the Appellant were admitted in evidence: – (i) Exhibit A certified true copy of a deed of legal mortgage dated 9/4/1981; (ii) Exhibit B – report of search dated 23/4/2001; (iii) Exhibit C – Nigerian Tribune Newspaper dated 27/4/2001.
The 1st Respondent fielded one witness DW1 – Olufisayo Fawole, the Business Development Officer of the 1st Respondent Bank and the following documents tendered in evidence by the 1st Respondent were admitted and marked as appropriate: (i) Exhibit D – letter of offer of credit facility dated 22/7/1997; (ii) Exhibit E – deed of legal mortgage dated 29/3/1998. The statement of account of the deceased for the period covering 1/1/1999 to 30/6/2001, tendered by the 1st Respondent was rejected in evidence.
The lower Court at the end of trial in its judgment on pages 84-105 of the record duly summarized the evidence of the parties and also considered their written addresses. Having set out in its judgment that the case before it would be decided on 2 issues, namely, (i) whether or not the Plaintiff has established his claim against the Defendant; and (ii) whether the Defendant has successfully proved their (sic) Counter Claim against the plaintiff; and having set out the respective cases of the parties as set up in their pleadings upon which the case it entertained was fought, the lower Court in its said judgment proceeded thus:
“… The starting point in the resolution of the 1st issue for determination must be the appreciation of the general position of our law that the burden of proof is always on the party alleging the existence of a state of Affairs. As a matter of law in Civil Case, the burden is generally on the plaintiff who seeks relief to prove that he is in law and fact entitled to the relief sought.
There is an unending chain of legal authorities in support of that point of law. See … From the pleadings and evidence before me, it is evident that the Claimant’s father is indebted to the Defendant. The Claimant only gave oral evidence in prove of their claims that their father is not indebted to the Bank. There was no Statement of Account to buttress this claim. The Court cannot be placed in a position wherein it is left to speculate. It is the Claim of the plaintiff that the requested for the Statement of Account from the Defendant severally to no effect. According to them two (2) letters were written by their Counsel barrister C.K. Ojo and the bank refused to oblige them. These letters were not tendered in Court to establish this fact. The only document that could have assisted the Court to reach a reasonable conclusion of the plaintiff’s father’s indebtedness or otherwise which was their father’s Statement of Account was not presented in evidence. I also note that the Defendant Counsel tendered same which could have assisted this Court but was opposed to by Plaintiff’s Counsel due to non-compliance with Section 84 of the Evidence Act.
I hold that there is nothing placed before the Court by the Plaintiff to prove the plaintiff’s fathers’ non-indebtedness to the Defendant.
It is the contention of the plaintiff in this case that after conducting a search at the Lands Registry, they discovered an encumbrance which is a Legal Mortgage on the same property in favour of Federal Mortgage Bank dated 9/4/1982 and same has not been released. It is the argument of Counsel to the plaintiff that the Deed of Legal Mortgage subsequently tendered by the Defendant is not registered and does not exist.
In my view, the real issues for determination under this head are:
(i) Is the subsequent Legal Mortgage valid?
(ii) Can a subsequent Legal Mortgage be created on the same property?
This is dependent on where the land is situated. We have three laws, regulating creation of mortgages in Nigeria. These include: The Coveyancing (sic) Act 1881 (CA), the Property & Coveyancing (sic) Law. (PCL) and Mortgage & Property Law 2014. These Laws operate in different jurisdictions. The property in question is in Ondo State and the law regulating Mortgages in Ondo State is the Property and Coveyancing (sic) Law (PCL). Under this Law, successive Legal Mortgages can be created over the same property. This is because under the PCL, where the Mortgagor creates a Legal Mortgage by sub-demise, he retains his legal interest, which he may subsequently mortgage to a second mortgagee by executing another legal mortgage.
But Section 109 (2) (b) provides a qualification to the Mortgagor’s right to create successive Legal Mortgage over the same property thus:
“The term to be taken by a second or subsequent mortgagee shall be one day longer than the term vested in the first or other mortgagee whose security ranks immediately before that of the second or subsequent mortgagee, if the length of the last mentioned term permits, and in any case for a term less by one day at least than the term expressed to be assigned.”
On the argument that the Deed of Legal Mortgage was not registered, the Legal Mortgage tendered by the Defendant has on its face value that it was registered. The stamp duties were charged having been accessed and consent duly given. The maxim Res Ipsa Loquitor – The facts speaks for itself becomes relevant here. The document as well speaks for itself. … “I hold that the subsequent Legal Mortgage created was Legal and valid and same was duly registered.
On the whole, I hold that the plaintiff in this case has failed to prove their claims beyond preponderance of evidence placed before this Court. A party in a civil litigation who makes claim must prove his case with credible and consistent evidence, for he who asserts must prove. See Section 136 of the Evidence Act, 2011. A Plaintiff must succeed on the strength of his case and not on the weakness of the defence. A claim that is not supported with credible evidence is bound to fail. … I would address the second issue on whether the Defendant has successfully proved his case against the plaintiff. As noted earlier, the burden is always on the party alleging the existence of a state of affairs. See …
It is the claim of the counter Claimant/Defendant that the plaintiff is indebted to them to the sum of N7,861,466.82 being the total indebtedness of his late father, J. S. Fagboyegun to it as at 31/12/2001.
To ascertain the veracity of this claim, they relied on the Letter of Offer for credit facility granted to the plaintiff’s father and also tendered a Deed of Legal mortgage between the plaintiff’s father and the Counter Claimant/Defendant.
As noted earlier, it is the law that a document speaks for itself. The Letter for Offer of credit facility and the Deed of legal mortgage as tendered by the Counter Claimant is to the effect that there was indeed a Banker/Customer relationship between parties and the latter enjoys overdraft facilities from the Bank which was renewed on 22nd July, 1997. I note that almost a year after the renewal, a Deed of Legal mortgage was entered into by both parties on 29/3/1998. What this pre-supposes was that an overdraft was indeed granted to the plaintiff’s father and a Deed of mortgage subsequently entered into to secure the overdraft.
I also note that Plaintiff’s father deposited his share Certificates with the counter Claimant as security for the overdraft. This was given in evidence by the plaintiff when he stated thus: “Without informing my father, his share Certificates were sold by the Bank.”
From the plaintiff’s evidence, we can deduce the following:
(1) The Plaintiff’s father deposited his share Certificates with the Bank.
(2) The share Certificates were sold by the Bank in his father’s lifetime.
There was nowhere it was stated that the plaintiff’s father ever challenged the right of the bank to sell his share Certificates in his lifetime. What this presupposes is that the plaintiff’s father was indeed indebted to the counter-Claimant which was due in his lifetime and the latter exercised its power of sale. I have earlier on addressed the issue of the authenticity and legality of the subsequent legal mortgage entered into by Plaintiff’s father and the Counter Claimant/Defendant.
On the preponderance, of evidence before me, I hold that the Plaintiff’s father is indebted to the counter-Claimant/Defendant.
I note however that the Statement of Account of the plaintiff’s father which could have assisted the Court in ascertaining the amount owed has been duly rejected by this Court for non-compliance with Section 84 of the Evidence Act as raised by Plaintiff’s Counsel.
…”
In the circumstance, this Honourable Court cannot make any reference to any content in the rejected Statement of Account. It serves no evidential value.
In other words, there is nothing before this Court to prove that the Plaintiff’s father is indebted to the Counter Claimant/Defendant to the sum ofN7,861,466.82. The only piece of evidence for sum owed before this Court is the Letter of Offer for credit which the sum of N5,000,000.00 was granted to the plaintiff’s father. There is also nothing before this Court to show that the sum was re-payed (sic) by the Plaintiff’s father. I note however that the Counter Claimant in exercising their power of sale against the Plaintiff’s father sold the share Certificates of the Plaintiff’s father deposited with them. The proceeds from the sale of the shares were not stated by either of the parties. From the evidence of the counter Claimant/Defendant’s witness – Mr. Olufisayo Fawole who is the Business Development Officer of the Bank, avers that: “the proceeds of the shares were not deducted”.
It is also part of their counter-claim a declaration that they have a right as an unsettled mortgagee to sell all the property legally mortgaged to it by the Late J. S. Fagboyegun and an Order for the sale of the property situate at No. 16, Ademuwagun Street, Odojoka Area, Off Araromi High School, Road, Akure which was mortgaged to it.
Having established that the claimant is indeed indebted to the Counter-Claimants/Defendant’s, (sic) the question now arises as to whether they can exercise a Power of Sale of the mortgaged property. The substance of a mortgage of land is a right of property vested in the mortgagee. By virtue of that right, the mortgagee is entitled to have the rents and profits applied to satisfy his debt, and upon default by the mortgagor to liquidate the loan and enforce the security by sale or foreclosure. See … As decided earlier that the plaintiff’s father is indebted to the counter claimants in which there is no evidence that it has been settled yet, the counter claimant remains an unsettled mortgagee and the law gives them the right to sell all properties mortgaged to it by Late J. S. Fagboyegun including the property at No. 16, Ademuwagun Street, Odojoka Area, Off Araromi High School Road, Akure. I would briefly address the issue of interest as claimed by the counter-claimants. I agree with submission to Counsel to the Claimant that pre-judgment interest must be pleaded and proved. There was no evidence led to prove this leg of claim by the Counter Claimants. See … Accordingly, this leg of their CounterClaim must fail,
The Counter Claim of the Counter-Claimants/Defendant therefore succeeds on the following terms:
(a) The sum of N5,000,000.00 less the proceeds from the sale of shares being the total indebtedness of Plaintiff’s late father, J. S. Fagboyegun to it as at 31/12/2001.
(b) 10% interest on the judgment debt till final liquidation.
(c) Neither the Plaintiff nor any other beneficiary of the estate of Late J. S. Fagboyegun except the first mortgagee that is, Federal Mortgage Bank, can deal in the property situate at No. 16, Ademuwagun Street, Odojoka Area, Off Araromi High School Road, Akure.
(d) The Counter Claimant has a right as an unsettled mortgagee to sell all the property mortgaged to it by the Late J. S. Fagboyegun, including the property at No. 16, Ademuwagun Street, Odojoka Area, Off Araromi High School Road, Akure.”
Aggrieved by the decision of the lower Court, the Appellant initiated this appeal by lodging at the registry of the said Court on 3/9/2015 a notice of appeal bearing the same date. The grounds of appeal therein shorn of their respective particulars read thus: –
“GROUND ONE
The learned trial Judge erred in law when he held thus:
“In other words, there is nothing before this Court to prove that the plaintiff’s father is indebted to the Counter Claimant/Defendant to the sum of N7,861,466.82. The only piece of evidence for sum owed before this Court is the letter of offer for credit which the sum of was granted to the plaintiff’s father…”
And this has occasioned a miscarriage of justice.
GROUND TWO
The learned trial Judge erred in law when he held that counter-claimant remains an unsettled mortgagee and has the right to sell the property at 16, Ademuwagun Street, Odojoka Area, off Araromi High School Road, Akure; and this has occasioned a miscarriage of justice.
GROUND THREE
The learned trial Judge erred in law when he held that neither the plaintiff nor any other beneficiary of the estate of Late J.S Fagboyegun except the first mortgagee- that is, Federal Mortgage Bank, can deal in the property situate at 16, Ademuwagun Street, Odojoka Area, off Araromi High School Road, Akure.
GROUND FOUR
The learned trial Judge erred in law when he held that the counter claimant has a right as anunsettled mortgagee to sell all the property mortgaged to it by the Late J.S Fagboyegun, including the property at No 16, Ademuwagun Street, Odojoka Area, off Araromi High School, Akure when the same Court has adjudged that only the first Mortgagee; that is, Federal Mortgage Bank can deal in the property and when the counter-claimant did not prove that she is an unsettled mortgagee
GROUND FIVE
The learned trial Judge erred in law when it granted the sum of N5,000,000 to the counter claimant being the indebtedness of the claimant and at the same time proceeded to grant a right to sell the property mortgaged on the N5,000,000.
GROUND SIX:
The learned trial Judge erred in law when he held thus:
“From the pleadings and evidence before me, it is evident that the claimant’s father is indebted to the defendant. The claimant only gave oral evidence in prove (sic) of their claims that their father is not indebted to the Bank (sic). There was no Statement of Account to buttress their claim. The Court cannot be placed in a position wherein it is left to speculate”
And this has occasioned a miscarriage of justice.”
GROUND SEVEN
The learned trial Judge erred in law when he held thus:
“l hold that there is nothing placed before the Court by the plaintiff to prove the plaintiff’s father’s non-indebtedness to the defendant”
And this has occasioned a miscarriage of justice.
GROUND EIGHT
The learned trial Judge erred in law when he held that the subsequent legal mortgage created was legal and valid and same was duly registered when evidence from the lands registry showed that the document was never in the registry; and this has occasioned a miscarriage of justice.
GROUND NINE
The learned trial Judge erred in law when he held that the real issues for determination are:
(i) Is the subsequent legal Mortgage Valid?
(ii) Can a subsequent legal mortgage be created on the same property?
When these facts were not in issue and none of the parties addressed the Court or gave evidence in this line; and this has occasioned a miscarriage of justice.
GROUND TEN
The learned trial Judge erred in law when he held that an overdraft was indeed granted to the plaintiff’s father and a deed of mortgage was subsequently entered into secure the overdraft (sic).
GROUND ELEVEN
The learned trial Judge erred in law when it failed to grant the claims of the claimants when they were proved.
GROUND TWELVE
The decision of the trial Court is against the weight of evidence.”
The reliefs sought by the Appellant from this Court in this appeal as set out in the notice of appeal are: (a) to allow the appeal; (b) to set aside the judgment of the lower Court; and (c) to grant the Appellant’s claim.
The appeal was entertained on 27/4/2022 and learned leading counsel, O.O. Ayenakin, in urging the Court to allow the appeal, adopted and relied on the Appellant’s brief of argument dated 26/3/2018 and filed on 27/3/2018 as well as the Appellant’s reply brief dated 10/1/2015 and filed on 11/1/2019 but deemed properly filed and served on 27/3/2019. In the same vein, learned leading counsel Oso Adetunji in urging this Court to dismiss the appeal, adopted and relied on the Respondents’ brief of argument dated and filed on 30/4/2018.
The Appellant formulated 12 issues (one from each of his grounds of appeal) for the determination of the appeal, in his brief of argument. The issues read thus: –
“(i) Whether the learned trial Judge was right in holding that the appellant’s father was indebted to the 1st Respondent to the tune of N5,000,000. (Ground One).
(ii) Whether the learned trial Judge was right in holding that the 1st Respondent is an unsettled mortgagee who had the right to sell the property at 16, Ademuwagun Street, Akure (Ground Two)
(iii) Whether the learned trial Judge was not in error by holding that only the first mortgagee; that is, Federal Mortgage Bank who could deal in the disputed property (Ground Three).
(iv) Whether the learned trial Judge was not in error in holding on one breath that the first Respondent as an unsettled mortgagee had the right to sell all the disputed property when the Court at the same time adjudged Federal Mortgage Bank as the only one that could deal in the property (Ground Four).
(v) Whether the learned trial Judge was in error by granting the 1st Respondent judgment sum of N5,000,000 and at the same time granted the 1st Respondent the right to sell the alleged mortgage property (Ground Five).
(vi) Whether the learned trial Judge was right in holding that the appellant’s father was indebted to the 1st Respondent when the appellant did not place the Statement of Account of the appellant’s father before the Court (Ground Six).
(vii) Whether the learned trial Judge was right in holding that the appellant placed nothing before him to show his father’s non-indebtedness to the 1st Respondent (Ground Seven).
(viii) Whether the learned trial Judge was right in holding that the purported legal mortgage placed before it by the respondents was valid and duly registered (Ground Eight).
(ix) Whether the learned trial Judge was not in error when he held that the real issues were whether the subsequent legal mortgage was valid and if a subsequent legal mortgage could be created on the same property when these facts were not in issue (Ground Nine).
(x) Whether the learned trial Judge was right when it concluded that the overdraft facility was indeed granted to the appellant’s father and a deed of mortgage was subsequently entered (Ground Ten).
(xi) Whether the learned trial Judge was not in error when he refused to grant the reliefs sought by the appellant when they were proved (Ground Eleven).
(xii) Whether the learned trial Judge properly reviewed the evidence placed before him (Ground Twelve).”
The Respondents formulated a lone issue for the determination of the appeal. It reads thus: –
“Whether in the peculiar circumstances of this case, the pleadings, and the evidence, both oral and documentary, the learned trial Court was right in giving judgment to the Respondent. (grounds 1 to 12)
Arguing issues 1, 6 and 7 together, Appellant submitted to the effect that the lower Court erred in holding that the deceased was indebted to the 1st Respondent in the sum of N5,000,000.00 less the proceeds of sale of shares. That his case at the lower Court, which was supported by evidence, was that the alleged overdraft facility was not disbursed to the deceased and that the pleadings of the 1st Respondent did not disclose that it disbursed the said facility to the deceased. Appellant submitted that the 1st Respondent having alleged that the said sum was disbursed to the deceased, the onus laid on the 1st Respondent to prove that the said facility was indeed disbursed. Appellant submitted that the lower Court in one breath stated that the 1stRespondents placed no evidence of the disbursement of the sum to the deceased and in another breath that Exhibit D revealed that the deceased was indebted to the 1st Respondent in the sum of N5,000,000.00. That Exhibit D did not suffice to show that the facility was indeed disbursed. It is the stance of the Appellant that the lower Court did not appreciate the issue between the parties which was not whether the deceased was issued a letter of offer by the 1st Respondent but that the 1st Respondent never disbursed the overdraft facility in sum of N5,000,000.00 to the deceased. Appellant further submitted that the conclusion of the lower Court in its judgment to the effect that the deceased was indebted to the 1st Respondent was erroneous. Appellant submitted that the position of the law is that in recovery proceedings, the onus laid on the Bank to prove that it granted the facility to the customer and in the instant case, it was for the 1st Respondent to place the statement of account of the deceased before the Court to show that indeed the facility was received by the deceased. That he (Appellant) could not place any evidence of the non-indebtedness of thedeceased before the lower Court as there was no evidence showing that the deceased was indebted to the 1st Respondent.
Dwelling on issues 2, 8 and 10 together, Appellant submitted to the effect that the lower Court erred in its finding that the 1st Respondent was an unsettled mortgagee who had the right to sell the disputed property. That the existence of a legal mortgage between the deceased and the 1st Respondent was predicated on an alleged overdraft facility granted to the said deceased in his lifetime and that although the process of granting the facility to the deceased began; the same was not concluded as the said facility was never disbursed. Thus, the 1st Respondent having failed to prove the existence of the overdraft facility; the alleged mortgage transaction predicated on a non-existent or inchoate facility, is void. Appellant argued that by the evidence of PW1 and Exhibit B he proved that the deceased never executed any deed of legal mortgage with the 1st Respondent and that the Respondents failed to prove the existence of the said mortgage contract. It is the stance of the Appellant that the 1st Respondent having failed to prove the custody(sic: proper custody) of the deed of mortgage i.e. Exhibit E when the same was in issue, the lower Court erred in its finding that the same was valid and duly registered.
Appellant argued issues 3 and 4 together and submitted to the effect that the lower Court erred in holding that the 1st Respondent as an unsettled mortgagee had the right to sell the disputed property and at the same time held that the Federal Mortgage Bank is the only one that could deal with the property. That he (Appellant) only made reference to the “Federal Mortgage Bank” to show that the deceased had an existing mortgage with the said bank. That the Federal Mortgage Bank was not a party to the suit and he (Appellant) had sought no reliefs against it. Consequently, the lower Court erred in granting reliefs not sought against the said bank by him (Appellant). It is the stance of the Appellant that a Court cannot grant the same property to two different parties in the same judgment especially as the Federal Mortgage Bank and the 1st Respondent did not put forth any evidence before the lower Court to sustain the reliefs granted them by the said Court.
Dwelling on his issue 5,Appellant submitted that in a legal mortgage transaction, the mortgagor is entitled to the equity of redemption and that the lower Court erred in making an order to the effect that the Appellant is to pay the said sum of N5,000,000.00 and at the same time granted the 1st Respondent the right to sell the alleged mortgaged property. That the said reliefs sought by the 1st Respondent in respect of the overdraft facility and sale of the mortgaged property was wrongful as both are mutually exclusive.
Dwelling on his issue 9, the Appellant submitted to the effect that the pleadings of the parties outline the issues between the parties and that the dispute between him (Appellant) and the Respondents was whether the purported overdraft facility of N5,000,000.00 was actually disbursed to the deceased in his lifetime and whether a deed of legal mortgage was indeed created and registered in the Lands Registry. That the issue as to whether or not the subsequent legal mortgage was valid was not an issue between the parties. Appellant also submitted that his case is that there was no subsequent legal mortgage and therefore the lower Court had the duty to ascertainwhether there was a subsequent legal mortgage having placed Exhibit B before the lower Court to show that there was no legal mortgage between the deceased and the 1st Respondent and the onus was on the 1st Respondent to prove the custody of Exhibit E. That the Exhibit E that was tendered was non-existent and could not have been valid.
Dwelling on his issue 11, the Appellant having reiterated what his case was at the lower Court re-submitted that the onus laid on the 1st Respondent to prove that indeed it granted the deceased the facility the 1st Respondent claimed to have granted the said deceased and that as in a loan transaction, it is for the lender to prove the grant of the facility. Given the evidence of PW1 and Exhibit E, the Appellant submitted to the effect that the purported mortgage tendered by the 1st Respondent having not been registered at the Lands registry, the lower Court ought to have dismissed the counter claim and granted his reliefs. It is the stance of the Appellant that the lower Court misplaced the burden of proof and this occasioned a miscarriage of justice.
It is the stance of the Appellant on his issue 12 that the lowerCourt did not properly appraise the evidence adduced by the parties and this substantially affected its findings or conclusions which occasioned a miscarriage of justice. The Appellant in this regard, re-emphasized the point that the 1st Respondent did not disburse the alleged overdraft facility to the deceased and that the onus was on the 1st Respondent to prove that it indeed disbursed the same. That the 1st Respondent merely tendered the letter of offer of overdraft facility before the lower Court and the said Court accepted the same and mistook the offer for the consideration. Appellant referred to the provisions of Sections 131-133 of the Evidence Act, 2011 in support of his assertion that the 1st Respondent had the onus to prove the actual disbursement. It is the stance of the Appellant that the lower Court formulated wrong issues for determination of the instant case in its judgment and failed to resolve the life issues in dispute between the parties. That where a trial Court fails to properly evaluate evidence, an appellate Court in that instance could intervene. That in the face of Exhibit B, the lower Court ought to have been wary of Exhibit D.
Dwelling on their issue for determination, the Respondents referred to the principle of law that an appellate Court is concerned with the correctness or otherwise of a judgment and not the reasons relied upon by the Court in arriving at the decision. Respondents submitted that it is clear on the pleadings of the Appellant that the fact of the indebtedness of the deceased to the 1st Respondent was admitted. Respondents referred to paragraphs 3-7 and 10 of the Appellant’s statement of claim filed on 7/5/2001 as well as paragraphs 14-19 and 31 of the Appellant’s reply to 1st Respondent’s counter claim on pages 14 to 19 of the record in this regard. Respondents proceeded to argue the propriety of the amendment of the Appellant’s pleadings and submitted that this Court can consider the original statement of claim filed by the Appellant wherein he admitted the indebtedness of his father as the same formed part of the record. It is the stance of the Respondents that the finding of the lower Court that the deceased was indebted to the 1st Respondent was supported by pleadings and evidence. That having established the indebtedness of the deceased to the 1stRespondent, the onus shifted to the Appellant to displace the evidence adduced by the Respondents in that regard. That this, the Appellant failed to do. That the finding of the lower Court on page 100 of the record to the effect that an overdraft facility was indeed granted to the deceased was not appealed against and therefore remained valid. The stance of the Respondents is to the effect that they (Respondents) having pleaded positive and clear facts of the indebtedness of the deceased and backed same up with Exhibit D, the letter of offer of credit facility; and Exhibit E – legal mortgage executed in favour of 1st Respondent to secure the facility offered by the said Exhibit D, the onus shifted to the Appellant to adduce credible evidence to displace the evidence contained in the said Exhibits. That Exhibit E is prima facie evidence of the indebtedness of the deceased to the 1st Respondent and the fact that the said Exhibit E was not registered does not detract from the fact that the said Exhibit was executed in favour of the 1st Respondent. That the question of the indebtedness of the deceased to the 1st Respondent in the circumstances was properlyresolved against the Appellant.
In response to Appellant’s issues 2, 8 and 10, the Respondents submitted to the effect that the lower Court having found that the deceased was indebted to the 1st Respondent, then the finding of the said Court that the 1st Respondent was an unsettled mortgagee who had the right to sell the mortgaged property cannot be faulted. Respondents submitted that the Appellant did not proffer any evidence as to what purpose his father executed Exhibit E save to secure a credit facility. The fact that Exhibit E was not registered does not affect the right of the 1st Respondent as a mortgagee particularly when there was no evidence showing that the debt Exhibit E was used to secure had been repaid. Respondents argued that the relief for the sale of the mortgaged property which was made in favour of the 1st Respondent is rooted in equity and the fact that there is no legal mortgage covering a property pledged as a security for loan cannot be a reason for not considering a prayer for foreclosure. That while a legal mortgage requires some specialized processes like obtaining Governor’s consent which were largely followed in this case,equitable mortgage is created by mere delivery of an original title of the property pledged as security for a loan with the mortgagee. That the Respondents proved the relevant circumstances to entitle the 1st Respondent to an order of foreclosure.
On Appellant’s issues 3 and 4, the Respondents submitted that no adverse order was made against Federal Mortgage Bank on whose behalf the Appellant has complained in this appeal. That it is not for the Appellant to complain on behalf of the Federal Mortgage Bank as the said bank has not appealed against the judgment of the lower Court.
In response to Appellant’s issue 5, the Respondents submitted that the Appellant could elect to either pay back the said sum of N5,000,000.00 which has been adjudged to be the indebtedness of the deceased to the 1st Respondent or forfeit the property which has been found to have been used as security for the said overdraft facility. That there is nothing irregular about the lower Court first adjudging the deceased to have been indebted to the 1st Respondent to the tune of N5,000,000.00before making the order for sale or foreclosure against the property used as security for thefacility.
Before considering this appeal on its merit, I consider it expedient to dwell on the surreptitious challenge to the correctness of the ruling of the lower Court allowing the Appellant to amend his statement of claim as can be deciphered from paragraphs 2.07 to 2.11 of the Respondents’ brief of argument. The complaint of the Respondents in this regard I cannot but say goes to naught for the following reasons: –
(i) The ruling of the lower Court allowing the Appellant to file the amended pleading in question in the instant case does not form part of the record.
(ii) There is no appeal in respect of the interlocutory order of amendment made by the lower Court.
Consequently, the Respondents cannot validly proffer arguments on an issue which is not supported by an appeal. The said arguments go to no issue and are incompetent. The position of the law is to the effect that any argument proffered in an appeal must flow from an issue for determination properly distilled from a ground of appeal and where the same is not the case, the said arguments are of no moment. Accordingly, the arguments of the Respondents challenging the order ofamendment of the Appellant’s pleading in question by the lower Court and to which the 1st Respondent filed a consequential amendment have no bearing in this appeal and are consequently struck out. See in this regard the cases of OLAYEMI V. FHA (2022) LPELR-57579(SC) and OLUMOLU V. ISLAMIC TRUST OF NIGERIA (1996) LPELR-2626(SC).
In my considered view the issues for the determination of this appeal, certainly do not admit of the 12 separate issues as distilled by the Appellant (who has or owns the instant appeal) from the 12 grounds of appeal in the notice of appeal. One would have expected the Appellant to show some prowess in law by condensing the 12 separate issues he formulated from the 12 grounds of appeal into not more than two or three issues, given the fact that some of the grounds of appeal have as their basis the same complaint against the judgment of the lower Court. Indeed, having regard to the pleadings of the parties; the oral and documentary evidence before the lower Court as well as the conclusions reached in the judgment of the said Court, all the issues formulated by the Appellant for the determination of the appeal, can be moreconveniently resolved under the issue formulated by the Respondents. The issue in question in my considered view subsumes all the issues formulated by the Appellant from the grounds of appeal in the notice of appeal that were at times repetitive. Against the backdrop of all that has been said, and to show that the Court is aware that the judgment of the lower Court consists of its judgment in respect of the main case; and a counter claim the Court hereby re-couches the issues involved in this appeal to be: –
1. Whether the Appellant established or proved his entitlement to the relief claimed in the main case, given his case which is predicated or founded on the non-existence and or non-disbursement to the deceased of the facility of N5 million offered the deceased by the 1st Respondent.
2. Whether the lower Court was correct in his treatment of the counter claim of the 1st Respondent and the conclusions which it arrived at therein.
ISSUE 1 AS FORMULATED ABOVE
The case of the Appellant as set up in the further amended statement of claim is certainly not straight forward as it was set up in the initial statement of claim that accompaniedthe writ of summons by which the Appellant’s action was commenced. However, the lower Court having shown itself to have granted the amendment to the statement of claim filed by the Appellant at the commencement of the instant action and the Respondents having not appealed against the order granting the Appellant leave to amend the said statement of claim, the lower Court was duty bound to restrict itself to the further amended statement of claim same having superseded the initial statement of claim filed on 7/5/2001.
This is however not to say that the said initial statement of claim could not have been put to some positive use by the Respondents have they been sufficiently guided by the law. The Respondents throughout the prosecution of the case did not utilize the initial statement of claim for any purpose and I find it very amazing that it is before this Court that the Respondents are now urging that the said initial statement of claim be used to make certain finding(s). This Court will not fall prey to such suggestion. As earlier stated, the case of the Appellant as set up in the further amended statement of claim is not straightforward. This in my considered view is attributable to the fact that the Appellant set out to use an agreement or transaction between the deceased and the 1st Respondent to which he and those he represents were not privies for the purpose of stopping the 1st Respondent from exercising whatever powers he claims to have had by virtue of the transaction against the property of the deceased and which property the Appellant and those he represents are claiming as theirs because they claim to be the successors-in-title to the deceased who died intestate. Viewed against this backdrop, the Appellant who decided to take it upon himself to challenge the validity of an overdraft facility granted to the deceased (an arrangement in the form of a contract to which the said Appellant was not a party) on the ground that the said credit facility extended to the deceased was not covered by any deed of mortgage and that the facility was never disbursed, in my considered view, is the party that ought to place credible evidence in that regard before the lower Court. This is because the law is to the effect that in an action tried on pleadings, it is the plaintiff who nominates the issue for determination in the case having regard to his reliefs. See the cases of NKUMA V. ODILI (2006) LPELR-2047(SC) and LONGE V. FIRST BANK PLC(210) LPELR-1793(SC).
The bid of the Appellant in trying to discharge the burden of proof in this regard by submitting that the non-registration of any deed of mortgage attesting to the fact that the deceased was granted an overdraft facility in the sum of N5,000,000.00 by the 1st Respondent in my considered view goes to show some degree of craftiness and insincerity on the part of the Appellant in conceiving and conceptualizing his case. This is more so when the case of the Appellant is not that the deceased took the facility for the purposes of his family and which would have reasonably founded the inference that the Appellant was in the know of everything the deceased did in relation to his own finance or finances, particularly as the Appellant never made a case to the effect that the deceased was under a duty to have called his family members together and informed them that he was owing the 1st Respondent before he died. In my considered view, the case of the Appellant is more of an absurdity than what obtains in thecourse of the behaviour of a normal human being and I have not seen anywhere in the pleadings of the Appellant that depicted the deceased as somehow deranged or an eccentric of any kind. In this regard, see the general provision of Section 167 of the Evidence Act, 2011. In other words, the fact that the receipt of the overdraft facility N5,000,000.00 was not announced to the Appellant and those he represents by the deceased or was not made known to the Appellant in particular as a child or that the deceased as a father was literally running his life on loan and not as successful as his children thought he was, is not something any man worth his salt will announce to his family. Thus, it is absurd for the Appellant to say or suggest that the failure of the Respondents to prove the disbursement of the facility in the sum N5,000,000.00 to the deceased go to establish that the deceased did not conclude the arrangement for the overdraft facility that the 1st Respondent claimed to have extended to him in 1997. The Appellant would not appear to realise that the aspect of his case to stop the sale of the disputed property on the ground that it became family property consequent to the death of the deceased, went to naught; once it was sufficiently established that the deceased enjoyed the overdraft facility of N5 million and that the disputed property was owned solely by the deceased as at the time he used it as a security for the overdraft the 1st Respondent granted him. Indeed, the case of the Appellant as to the fact that it was upon the death of the deceased intestate that he and other members of his family inherited the said property without more has established the fact that the deceased personally owned the house as his. The deceased and not that the house was a family house. The deceased therefore could do with his house what he wished in securing whatever finances he needed in his lifetime and I do not believe that the Appellant can after the death of the deceased question the 1st Respondent as to whether or not the said 1st Respondent did the needful in relation to the deceased in respect of the facility and the security used by the deceased for the overdraft facility that was granted by the 1st Respondent. In any case, it is incongruous that the Appellant who testified that the deceased’s shares were sold in hislifetime apparently towards the liquidation of the indebtedness of the said deceased and who never testified as to what the deceased did in reaction to the situation (i.e. without the said deceased complaining) can properly challenge or question the disbursement of the overdraft facility to the deceased.
The lower Court in my considered view appreciated the case of the Appellant much better than the Appellant and also saw clearly through the craftiness of the Appellant by holding that the failure of the Appellant to prove the fact that credit facility in the sum N5,000,000.00 to the deceased portended the failure of his claims. This is more so when the statement of account which the 1st Respondent sought to tender in the proof of the transaction between it and the deceased was rejected in evidence as a result of the opposition to its admission in evidence by the Appellant. It is therefore obvious that the Appellant never wanted any proof of the disbursement to the deceased of the facility in question to be placed before the lower Court. I could say much more on the impropriety of the Appellant who was not a party to a transaction between the deceased and the 1st Respondent thinking that he can thrust the burden of proving that the transaction actually took place after the deceased who apparently benefited from the transaction had died and who in his lifetime never complained after part of the security for the said facility as pleaded by the 1st Respondent in the form of shares were sold toward the liquidation of the facility granted him as testified to by the Appellant himself. See page 69 of the record and which testimony DW1 confirmed under cross-examination save that he could not say whether or not the proceeds from the sale of the shares were deducted from the indebtedness of the deceased.
Flowing from the foregoing is that whether or not the 1st Respondent produced any documentary evidence in the form of deed of mortgage relating to the N5,000,000.00 facility it granted the deceased, the Appellant did not discharge the burden on him as to the non-disbursement or non-receipt of the said facility by the deceased. This is a fact in respect of which only the deceased could have given the best evidence. See the case of SHANU V. AFRI BANK NIG. PLC (2002) LPELR-3036(SC) wherein it was held amongst others to the effect that the general rule of evidence contains the best evidence rule by which it is said that the best evidence must be given and that no evidence must be given in substitution of the best evidence except strictly under some laid down exceptions. See also the case of EZEMBA V. IBENEME (2004) LPELR- 1205(SC) and Section 126 of the Evidence Act, 2011. The evidence of the non-receipt of the facility therefore needed to have been given by the deceased and evidence to establish the same cannot be said to have been established by the non-showing of payment by the 1st Respondent. If this was the only issue upon which the instant case or appeal was to be resolved, the Appellant who chose for himself the facts which he had to establish in this case, cannot be heard to say that he did this by the non-production of what he considered to be germane evidence material to his case by the Respondents. This is more so given Exhibits D and E tendered by the 1st Respondent and particularly as Exhibit D shows that the facility of N5 million granted the deceased was an enhancement/renewal of the overdraft facility of N1.5 million earlier granted him in the year1997.
Flowing from the above is that the lower Court was right in its finding that the Appellant did not establish his case of the non-disbursement or non-receipt of the facility of N5 million by the deceased and this in my considered view automatically dislodged the position of the Appellant who claimed that the transaction between the 1st Respondent and the deceased was inchoate. Given, the correctness of the decision of the lower as stated above, the said Court in my considered view correctly dismissed the case of the Appellant as set up in his pleading.
The second issue as formulated above, admits of the consideration of the question as to whether or not the lower Court was right to have found the deceased as still owing the 1st Respondent on the evidence before it.
The Respondents in order to show that the deceased was still indebted to the 1st Respondent pleaded in paragraph 26 of their statement of defence and counter claim as follows: –
“The 1st Defendant avers that the securities for the overdraft are the following:
(a) Legal mortgage on the property at No. 16 …
(b) Legal mortgage on the property of the late J.S. …
(c) Debenture charge on the fixed and floating assets of the Wood and Processing Factory along …
(d) Chatted mortgage on one 100KVA generating set owned by the late …”
The letter of offer of credit facility is Exhibit D and it was made on 22/7/1997 and it listed out the properties to be used as security for the facility of N5,000,000.00. Exhibit E was made after Exhibit D in that Exhibit D was made on 22/7/1997 and Exhibit E is dated 29/3/1998. Exhibit E does not set out all the properties set out in Exhibit D as security for the N5,000,000.00 overdraft. In the evidence of the Appellant, he testified to the effect that the 1st Respondent without informing the deceased sold the share certificates of the deceased. DW1 under cross-examination did not categorically deny the sale of the shares, but categorically stated that proceeds of the shares were not deducted from the indebtedness of the deceased. He however never disclosed the quantum of shares that he knew to have been sold and/or the sum of money realized from the sale of the shares and which sum was not deducted from the indebtedness of the deceased. The lower Court would appear not to have properly evaluated the evidence given by the Appellant about the sale of the shares of the deceased to the knowledge of the deceased and that of DW1 who admitted the sale of the shares and the non-deduction of the proceeds of the sale of the shares from the facility granted to the deceased. I am of the considered view that the lower Court never had any evidence regarding the proceeds or the quantum of proceeds of sale or sum of money realised from the sale of the shares of the deceased towards the liquidation of his indebtedness to the 1st Respondent as a result of his neglect to repay the N5,000,000.00 facility; and the admission of the DW1 that no deduction was made from the facility, could have properly found the 1st Respondent to have proved that the deceased was still indebted to it after the said 1st Respondent sold his (deceased) shares. What is reasonably inferable from the situation as testified to by the Appellant and confirmed by DW1 is that the 1st Respondent never furnished any evidence to establish that the actual indebtedness of the deceased to the said 1st Respondent was not totally cleared by the amount of money it realized from the sale of the shares in question. Without facts in this regard, there is no basis upon which the lower Court could have properly held that the deceased was still owing the 1st Respondent at least as at the time of his death.
It would also appear to be inferable that it is because the 1st Respondent knew of the fact that the deceased had liquidated the overdraft with his shares that they did not enforce in the lifetime of the deceased the recovery of the overdraft in question and/or seek to have sold the disputed property. In other words, the piece meal disposal of the security for the facility the 1st Respondent had in respect of the N5,000,000.00 facility; one during the life lifetime of the deceased; and two, attempt to do so after he died, has rendered the 1st Respondent as not placing before the lower Court credible evidence that the deceased remained indebted to it in any specific sum. Indeed, the fact that the lower Court did not find the deceased to be indebted to the 1st Respondent in any specific sum is the award it made and which reads:
“The sum of N5,000,000.00 less the proceeds from the sale of shares being the total indebtedness of Plaintiff’s late father, J.S. Fagboyegun to it as at 31/12/2001.”
Surely, this is nothing but an inchoate award which cannot be enforced as who is it that would now make a finding about how much the shares of the deceased were sold for and to make the subtraction? The award in this manner is meaningless and fortifies the view that the 1st Respondent did not establish before the lower Court the fact of the indebtedness of the deceased to it. Following the non-establishment of the actual indebtedness of the deceased to it in any certain sum and/or ascertainable sum by the 1st Respondent, is that all the other reliefs granted the 1st Respondent by the lower Court have no foundation. They ought to have failed and they are now pronounced to have failed. Accordingly, issue 2, is resolved against the Respondents and their counter-claim dismissed.
In the final analysis, given the resolution of the first of the two issues formulated by the Court against the Appellant but in favour of the Respondents; and also, the resolution of the second of the said issues, against the Respondents but in favour of the Appellant, is that there is some merit in the instant appeal to the extent that the aforementioned issue 2, has been resolved in favour of the Appellant.
Accordingly, while the judgment of the lower Court dismissing the claims of the Appellant is affirmed, that of the said Court entering judgment in favour of the “Counter Claimants/Defendant”, is set aside. It follows that the judgment of the lower Court is hereby altered to be one dismissing the claims of the Appellant and also dismissing the claims of the 1st Respondent in its counter-claim.
I make no order as to costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now, the lead judgment delivered by my learned brother, Ayobode Olujimi Lokulo-Sodipe, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and but differ slightly on the conclusion reached therein.
The Appellant commenced the action in the lower Court for himself and on behalf of the children of one late J. S. Fagboyegun and his claims against the Respondent were for declaratory orders that their late father was not indebted to the Respondent as at the time of his death and did not create a subsisting legal mortgage over his property known as No 16, Ademuwagun Street, Odojoka Area, off Araromi High School Road, Akure and that as such the Respondent had no powers to advertise the property for sale through public auction. The Respondent, on its part, counterclaimed for the sum of N7,861,466.82 being the outstanding debt of the late father of the Appellant as at 31st of December, 2001 together with interest of 21% per annum until judgment and for an order of sale of the property in question as a legal mortgagee, in the event of the failure of the Appellant to pay up the indebtedness of his late father.
It is trite that in civil proceedings, the burden of proof as a matter of law and pleadings is the burden of establishing a case by preponderance of evidence. This rests upon the party whether claimant or defendant who substantially asserts the affirmative of the issue. It is fixed at the beginning of the trial by the state of the pleadings as it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it and never shifting in any circumstance whatever. In deciding what party assertsthe affirmative, regard must be had to the substance of the issue, and not merely to its grammatical form which the pleader can frequently vary at will. A negative allegation must not be confounded with the mere traverse of an affirmative one. The true meaning of the rule is that where a given allegation whether affirmative or negative forms an essential part of a party’s case, the proof of such allegation rests on him. In other words, once a party asserts, he must prove the assertion, otherwise judgment will be given against him – Obe Vs MTN Nigeria Communications Ltd (2021) 18 NWLR (Pt 1809) 415, Dematic (Nig) Ltd vs Utuk (2022) 8 NWLR (Pt 1831) 71, Adesina Vs Air France(2022) 8 NWLR (Pt 1833) 523.
The onus was thus on the Appellant to prove that his late father was not indebted to the Respondent and that there was no subsisting legal mortgage over the property lying and being at No 16, Ademuwagun Street, Odojoka Area, off Araromi High School Road, Akure. And the Respondent had the onus of proving that the late father of the Appellant was indebted to it in the sum counterclaimed for and that he created a valid and subsisting legal mortgage in itsfavour as collateral for the indebtedness.
The lower Court, in the judgment, evaluated the case of the Appellant and the Respondent on the pleadings and in the evidence led and concluded therefrom that the late father of the Appellant was indeed indebted to the Respondent on overdraft facilities extended him by the Respondent and that he created a valid, legal and duly registered deed of legal of mortgage in favour of the Respondent as collateral for his indebtedness. The lower Court thus dismissed the claims of the Appellant.
Counsel to the Appellant railed against these findings of the lower Court. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Faleye Vs Dada (2016) LPELR-40297(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, TSKJ (Nig) Ltd Vs Otochem (Nig) Ltd (2018) 11 NWLR (Pt 1630) 330, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Mohammed Vs State (2020) LPELR-52451(SC).
In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 (Pt 1452) 343 at 373, ABC (Transport Co) Ltd Vs Omotoye (2019)LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.
Reading through the contentions of the Counsel to the Appellant against the findings of the lower Court vis-a-vis the pleadings and the evidence on records, it is clear that the Appellant woefully failed to show any perversity in the findings and conclusion reached by the lower Court on his claims. The Appellant failed to present any reason for this Court to tamper with the decision of the lower Court dismissing his claims.
With regards to the counterclaim of the Respondent, the lower Court deliberated thus:
“It is the claim of the counter Claimant/Defendant that the plaintiff is indebted to them to the sum of N7,861,466.82 being the total indebtedness of his late father, J. S. Fagboyegun to it as at 31/12/2001. To ascertain the veracity of this claim, they relied on the Letter of Offer for credit facility granted to the plaintiff’s father and also tendered a Deed of Legal mortgage between the plaintiff’s father and the Counter Claimant/ Defendant.
As noted earlier, it is the law that a document speaks for itself. The Letter for Offer of credit facility and the Deed of legal mortgage as tendered by the Counter Claimant is to the effect that there was indeed a Banker/Customer relationship between parties and the latter enjoys overdraft facilities from the Bank which was renewed on 22nd July, 1997. I note that almost a year after the renewal, a Deed of Legal mortgage was entered into by both parties on 29/3/1998. What this pre-supposes was that an overdraft was indeed granted to the plaintiff’s father and a Deed of mortgage subsequently entered into to secure the overdraft.
I also note that Plaintiff’s father deposited his share Certificates with the counter Claimant as security for the overdraft. This was given in evidence by the plaintiff when he stated thus: “Without informing my father, his share Certificates were sold by the Bank.” From the plaintiff’s evidence, we can deduce the following:
(1) The Plaintiff’s father deposited his share Certificates with the Bank.
(2) The share Certificates were sold by the Bank in his father’s lifetime.
There was nowhere it was stated that the plaintiff’s father ever challenged the right of the bank to sell his share Certificates in his lifetime. What this presupposes is that the plaintiff’s father was indeed indebted to the counter-Claimant which was due in his lifetime and the latter exercised its power of sale. …
On the preponderance, of evidence before me, I hold that the Plaintiff’s father is indebted to the counter-Claimant/Defendant. I note however that the Statement of Account of the plaintiff’s father which could have assisted the Court in ascertaining the amount owed has been duly rejected by this Court for non-compliance with Section 84 of the Evidence Act as raised by Plaintiff’s Counsel. …In the circumstance, this Honourable Court cannot make any reference to any content in the rejected Statement of Account. It serves no evidential value.
In other words, there is nothing before this Court to prove that the Plaintiffs father is indebted to the Counter Claimant/ Defendant to the sum of N7,861,466.82. The only piece of evidence for sum owed before this Court is the Letter of Offer for credit which the sum of N5,000,000.00 was granted to the plaintiff’s father. There is also nothing before this Court to show that the sum was re-payed (sic) by the Plaintiff’s father. I note however that the Counter Claimant in exercising their power of sale against the Plaintiff’s father sold the share Certificates of the plaintiff’s father deposited with them. The proceeds from the sale of the shares were not stated by either of the parties. From the evidence of the counter Claimant/Defendant’s witness – Mr. Olufisayo Fawole who is the Business Development Officer of the Bank, avers that: “the proceeds of the shares were not deducted “.
It is also part of their counter-claim a declaration that they have a right as an unsettled mortgagee to sell all the property legally mortgaged to it by the Late J. S. Fagboyegun and an Order for the sale of the property situate at No. 16, Ademuwagun Street, Odojoka Area, Off Araromi High School, Road, Akure which was mortgaged to it.
Having established that the claimant is indeed indebted to the Counter-Claimants/Defendants, the question now arises as to whether they can exercise a Power of Sale of the mortgaged property. The substance of a mortgage of land is a right of property vested in the mortgagee. By virtue of that right, the mortgagee is entitled to have the rents and profits applied to satisfy his debt, and upon default by the mortgagor to liquidate the loan and enforce the security by sale or foreclosure.
…
As decided earlier that the plaintiff’s father is indebted to the counter claimants in which there is no evidence that it has been settled yet, the counter claimant remains an unsettled mortgagee and the law gives them the right to sell all properties mortgaged to it by Late J. S. Fagboyegun including the property at No. 16, Ademuwagun Street, Odojoka Area, Off Araromi High School Road, Akure.
…The Counter Claim of the Counter-Claimants/Defendant therefore succeeds on the following terms:
(a) The sum of N5,000,000.00 less the proceeds from the sale of shares being the total indebtedness of Plaintiff’s late father, J. S. Fagboyegun to it as at 31/12/2001.
(b) 10% interest on the judgment debt till final liquidation.
(c) Neither the Plaintiff nor any other beneficiary of the estate of Late J. S. Fagboyegun except the first mortgagee that is, Federal Mortgage Bank, can deal in the property situate at No. 16,Ademuwagun Street, Odojoka Area, Off Araromi High School Road, Akure.
(d) The Counter Claimant has a right as an unsettled mortgagee to sell all the property mortgaged to it by the Late J. S. Fagboyegun, including the property at No. 16, Ademuwagun Street, Odojoka Area, Off Araromi High School Road, Akure.”
What is evident from the above deliberations of the lower Court on the counterclaim is that it found that the Respondent neither proved the sum of N7,861,466.82 claimed or any sum at all to be the debit balance outstanding on the overdraft. The lower Court further found that the Respondent sold the shares of the father of the Appellant, part of the collateral, to offset part of the indebtedness and that the proceeds of the shares were not applied to offset any part of the indebtedness. The lower Court further found that there was no evidence led to show the amount of the sum realized from the sale of the shares. The lower Court thereafter embarked on journey into speculations and conjectures and found that the sum due on the indebtedness of the father of the Appellant must be the sum of N5 Million stated on the letter of offer of facility, less the amount realized from the sale of the shares, without stating what the amount is. This was not the case of the Respondents on their counterclaim. It is settled law that a Court cannot decide issues on mere conjecture or speculation, no matter how close what it relies on may seem to be on the facts – Ayoade Vs State (2020) 9 NWLR (Pt 1730) 577, Addo Vs State (2021) 12 NWLR (Pt 1791) 427, AMCON Vs Suru Worldwide Ventures (Nig) Ltd (2022) 2 NWLR (Pt 1813) 163, All Progressives Congress Vs Obaseki (2022) 2 NWLR (Pt 1814) 273.
The finding of the lower Court that the Respondent did not prove the sum claimed as the due debt of the Appellant’s father or any other sum as the debt due meant that the Respondent failed to discharge the onus on it on the counterclaim and its claims ought to have been refused. However, the findings of the lower Court on the counterclaim throw up a question and it is – what order should be made in refusing the counterclaim of the Respondent, in view of the positive findings of the lower Court that the father of the Appellant was indebted to the Respondent and created a valid, legal and subsisting legal mortgage in its favour over his property at No 16, Ademuwagun Street, Odojoka Area, off Araromi High School Road, Akure as security for the indebtedness?
A Court adjudicating on a civil matter may make any of three orders to dispose of the matter. It may make an order of striking out or an order of dismissal or an order of non-suit. Which order the Court will make depends on the circumstances of each case.
In Badejo Vs Federal Ministry of Education (1996) 8 NWLR (Pt 464) 15 the Supreme Court held that in practice and procedure in civil cases, it has been stated that an order for striking out takes place when the Court makes an order to that effect for the purpose of amendment or to compel one of the parties to do some act, such as if a defendant fails to comply with an order for discovery he is liable to have his defence struck out and to be placed in the same position as if he had not defended the action. An order of striking out does not, most times, put an end to the suit but only temporarily removes the case from the Court’s cause list and it could be brought back either by relistment or refilling afresh – First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444.
An order of dismissal usually occurs after the adjudication of a matter on the merits and the Court finds that a claimant has led no iota of proof in support of his claims. To dismiss is to send something or someone away; specifically to terminate, for instance, an action or appeal without further hearing -Evemili Vs State (2014) 17 NWLR (Pt 1437) 421. An order of dismissal completely shuts out a claimant from the seat of justice and it creates a bar to subsequent litigation on the same subject matter where the parties are the same – Eronini Vs Iheuko (1989) 2 NWLR (Pt 101) 46, Registered Trustees of Ifeloju Friendly Union Vs Kuku (1991) 5 NWLR (Pt 189) 65.
An order of non-suit is a termination of an action which did not adjudicate all relevant issues on the merit, as where a plaintiff is unable to prove his whole case and it will be unjust to dismiss such a case in its entirety or where there was a failure by the trial Judge to make proper and specific findings and an appellate Court can neither do the same on the printed evidence, a re-hearing or non-suit, depending on the circumstances, may be ordered – Awote Vs Owodunni (No 2) (1987) 2 NWLR (Pt 57)366, Olufosoye vs Olorunfemi (1989) 1 SC (Pt 1) 29, Odi Vs Iyala (2004) 8 NWLR (Pt 875) 283. The order of non-suit made by a Court is an expression that at the conclusion of the trial, the plaintiff who brought the action has not established his claim to the satisfaction of the Court to deserve judgment in his favour. At the same time, the defendant who has been brought to Court is not similarly entitled to judgment. This is because although the plaintiff may not be entirely devoid of any right or title as regards the matter in dispute, he has not established any claim as against the defendant. It therefore means that the plaintiff should have a second chance to litigate the issue – Okpala Vs Ibeme (1989) NWLR (Pt 102) 208, Adelusola Vs Akinde(2004)12 NWLR (Pt 887) 295.
In view of the cumulative findings of the lower Court on the counterclaim of the Respondent, the appropriate order to make in the circumstances is not an order of striking out or of dismissal, but an order of non-suit. This point was made by Uwais, JSC (as he then was) in Yesufu Vs African Continental Bank Ltd (1980) All NLR 1 thus:
“…the evidence adduced shows that the Appellant was owing the Respondents some money, the exact sum of which was not actually determined by the trial Court. The Appellant by admission in his letter, Exhibit 8, to the Respondents as well as under cross-examination at the trial of the suit confirmed that he was owing the Respondents. In the light of this, it will surely be inequitable and wronging the Respondents to debar them from recovering the amount owing by entering an order of dismissal. I am satisfied that the justice of this case, as established by the evidence demands that an order of non-suit was the appropriate order to make.”
The lower Court was in clear error when it granted the counterclaim of the Respondents. It should rather have made an order non-suiting the claims.
This Court is empowered by the provisions of Section 15 of the Court of Appeal Act to make an order that a lower Court should have made – Yusuf Vs Federal Republic of Nigeria (2018) 8 NWLR (Pt 1622) 502, Discovery (Nig) Ltd Vs Cardinal Ohams Ltd (2021) LPELR-52458(CA), Dunkwu Vs Oar (Nig) Ltd (2021) LPELR-54577(CA).
It is for these reasons that I agree that there is some merit in this appeal and I hereby allowit in part. I affirm the judgment of the High Court of Ondo State sitting in Akure delivered in Suit No AK/144/2001 by Honorable Justice T. O. Oshoba on the 15th of August, 2015, save for the portion granting the counterclaim of the Respondents, and which portion I set aside and substitute in its stead an order non-suiting the counterclaim. I abide by the order on costs in the lead judgment.
YUSUF ALHAJI BASHIR, J.C.A.: I have read in draft, the leading judgment delivered by my noble brother AYOBODE O. LOKULO-SODIPE. I agree with the manner his lordship resolved the issues couched by this Court in place of the proliferated issues formulated by the Appellant Counsel most of which are either overlapping one another or hardly make any sense.
I adopt the conclusion of his lordship that there is some merit in this appeal and abide by the conclusion reached in the leading judgment.
Appearances:
O. Ayenakin, with him, M. A. Ikujuni, and R. O. Bolajoko. For Appellant(s)
Oso Adetunji, with him, D. A. Obidimma. For Respondent(s)
