NDIDI v. SHAMMAH GLOBAL TRADES LTD & ORS (2022)

NDIDI v. SHAMMAH GLOBAL TRADES LTD & ORS

(2022)LCN/17191(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, November 10, 2022

CA/A/1048/2018

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

MRS ABE ETHEL NDIDI APPELANT(S)

And

1. SHAMMAH GLOBAL TRADES LIMITED 2. MRS. OBIAGELI ONUNAKU 3. MINISTRY OF HOUSING & URBAN DEVELOPMENT 4. ASO SAVING & LOANS PLC. 5. MINISTER OF HOUSING, LAND & URBAN DEVELOPMENT RESPONDENT(S)

RATIO

THE POSITION OF LAW WHERE AN OPPONENT FAILS OR NEGLECTS TO COUNTER AN ARGUMENT OR ISSUE VALID RAISED IN THE BRIEF OF ARGUMENT

My Lords, in law the failure of the Appellant to make any counter submissions to the challenge of the competence of the appeal simply amounts to a concession by the Appellant that indeed the appeal is incompetent as alleged by the 1st and 2nd Respondents. This is so because in law where one party is duly served with the arguments of the other party but he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was now CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.”
See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V. Aderinoye (2013) 50 WRN 111.
Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. See also Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121. PER GEORGEWILL, J.C.A.

THE POSITION OF LAW ON AN APPEAL AGAINST THE FINAL DECISION OF THE LOWER COURT TO THE COURT OF APPEAL

Now, by Section 241 (1)(a) of the Constitution of Nigeria 1999 (as amended), an appeal against the final decision of the lower Court to this Court is as of right and therefore, no prior leave of this Court is required to render such an appeal competent. I have taken time to read through the proceedings and judgment of the lower Court now being appealed against the Appellant, and even though it is true that the Appellant neither participated nor defended the claims of the 1st and 2nd Respondents against her before the lower Court, yet the resultant judgment after the hearing and consideration of the evidence of the 1st and 2nd Respondent was a judgment on the merit and not a consent judgment of any breed or specie as was vehemently but erroneously thought and submitted by the learned counsel for the 1st and 2nd Respondents. The heavy reliance therefore, by the 1st and 2nd Respondents on the provisions of Section 241(2)(c) of the Constitution of Nigeria 1999 (as amended) was truly and indefensibly misplaced and hereby discountenanced. See Section 241(1)(a) of the Constitution of Nigeria 1999 (as amended). See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. PER GEORGEWILL, J.C.A.

THE POSITION OF LAW ON SERVICE OF HEARING NOTICE

In law, the service of hearing notice may or may not be necessary or essential depending on the peculiar facts and circumstances of any given case. Happily, there is no dearth of decided cases on this very important aspect of our law but rather there is a surfeit of authorities as are replete in our law reports on when service of hearing notice may or may not be necessary. The essence of service of a hearing notice, as I understand it in law, is that it is designed to put parties on notice of a future date in which the Suit or appeal or matter will be called and or heard. The objective, in my view, is to give the parties equal opportunity of being fairly heard before any decision affecting their rights is taken. See Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as Amended. See also Ama Real Estate Ltd. V. Heritage Bank Plc (2022) LPELR – 57046 (CA) per Sir Biobele Abraham Georgewill JCA.

Now, while the service of hearing notice may be a duty on the part of the Court on the one hand and a right of the parties on the other hand, the duty of issuing it and ensuring that it is served on that parties, whenever it is necessary is exclusively that of the Court. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA.
See also Folorunso V. Shaloub (1994) 3 NWLR (Pt. 333) 413 AT p. 430, Mirchandani V. Pinheiro (2001)1 FWLR (Pt. 48) 1307 AT p. 1320.
Thus, at any time when it becomes clear to the Court that a party who is absent in Court was not aware of the date, it will be necessary for the Court, in the interest of justice and fair hearing, to order and issue hearing notice. However, where ignorance of a sitting date is self-induced, it is my view that such a party in default is not entitled to a hearing notice. See Baba V. Atunbi (2012) 3 NWLR (pt. 1287) 354. PER GEORGEWILL, J.C.A.

THE POSITION OF LAW ON WHY A HEARING NOTICE IS IMPORTANT

So, why is hearing notice so important in the adjudication processes in the Courts? It is worth pointing out that the importance of service hearing notice is underscored by the grim consequences of failure to do so where it is deemed and or found to be necessary but was not served. The position of the law is that a failure to issue and serve hearing notice, in circumstances in which issuance and service of a hearing notice is necessary, would amount to a fundamental omission, which renders the entire proceedings so conducted and the judgment so entered null and void and liable to be set aside on appeal. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Baba V. Atunbi (supra) AT Pp. 366 – 368, Sigbenu V. Imafidon (2009) 13 NWLR (Pt. 1158) 231 AT P.252, Ndukauba V. Kolomo (2005) 4 NWLR (Pt. 915) 411, Scott-Emuakpor V. Ukavbe (1975) 12 SC 41, SPDC Nig. Ltd V. Niger Optical Service Co Ltd (2004) 7 NWLR (Pt. 872) 420, Somai Sonka Ltd V. Adzege (2001) FWLR (Pt. 68) 1104. PER GEORGEWILL, J.C.A.

THE POSITION OF LAW ON THE REVERSE SIDE OF THE REQUIREMENT OF SERVICE OF HEARING NOTICE

However, it must be pointed out at once that on the reverse side of the requirement of service of hearing notice is the ugly reality of it being subject to abuse by parties, particularly those who may cling to it as a right and become lackadaisical in the prosecution or defense of their cases. Thus, where a party or his counsel was in Court on the sitting of a Court and the case was adjourned to another further date, it will be incongruous for such a party to insist on service of hearing notice on him should he or his counsel fail to appear in Court on the next adjourned date. In law, a party who fails to take or make use of the opportunity given to him to present his case cannot be heard or allowed to complain of a denial of fair hearing. See Uhembe V. Parkes (2014) 3 NWLR (Pt. 1395) 475. See also Mirchandani V. Pinheiro (2001) FWLR (Pt. 48) 1307) AT Pp. 1318 -1320, Kaduna Textiles Ltd V. Umar (1994) 1 NWLR (Pt. 319) 143, Ajaokuta Steel Co Nig Ltd V. Biosali & Co Nig Ltd (1997) 11 NWLR (Pt. 527) 145, Eastern Breweries Plc V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488.
It follows therefore, that since all parties ought to be informed of when a matter in which they are involved and pending before the Court is due to be called up and or be heard, all parties to a proceeding are entitled as of right to be served with all the Court processes, including hearing notices from day to day. This is so important that any dereliction in this regard is bound to vitiate the entire proceedings no matter how well conducted. See Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 AT p. 177. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Federal Capital Territory Abuja Division, Coram: O. O. Goodluck J, in Suit No. FCT/FIC/CV/4724/2011: Mrs Abe Ethel Ndidi V. Shammah Global Trades Limited & Ors delivered on 30/4/2019, in which the claims of the 1st – 2nd Respondents as Claimants against the Appellant as Defendant were granted.

The Appellant was peeved with the said judgment and had appealed against it vide her Notice of Appeal filed on 15/6/2014 on Six Grounds of appeal. See pages 456 – 462 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 19/11/2018. Subsequently, with the leave of Court an Additional Record of Appeal was transmitted to this Court and was deemed properly transmitted on 7/12/2021. The 1st – 2nd Respondents filed a Notice of Preliminary Objection on 3/3/2020. The 4th Respondent also filed a Notice of Preliminary objection 7/7/2021. The Parties filed and exchange their briefs, which were duly adopted as their arguments at the hearing of this appeal on 26/9/2022. The Appellant was represented by Ananyo Adibe Esq. The 1st and 2nd Respondents were represented by B. K. Barikpoa Esq. The 3rd and 5111 Respondents were represented by L. O. Akangbe Esq. The 4th Respondent was represented by Florence Samuel Esq.

SUCCINCT STATEMENT OF FACTS
On 24/7/2006, the 1st and 2nd Respondents as Claimants commenced Suit No. FHC/ABJ/CS/288/2006 against the Appellant, the 3rd and 4th Respondents as Defendants before the Federal High Court, Abuja Division. However, on 9/11/2010, upon the application of the counsel for the 1st and 2nd Respondents, the Federal High Court, per Aula J. (as he then was but later CJ) transferred the said Suit to the High Court of the FCT, where the Suit was reconstituted as FCT/IIC/CV/4724/2011 and served on all the parties. The Appellant as the 1st Defendant before the lower Court chose to ignore the processes and all the hearing notices served on her, although the 3rd and 5th Respondents filed their joint Defence to the Suit, though at the trial they did not call lead any witness. However, on 17/5/2012, the name of the 4th Respondent was struck out on the application of 4th Respondent, who was the 3rd Defendant before the lower Court. The 1st and 2nd Respondent was therefore, not defended by any of the adverse parties, including the Appellant.

The substance of the case of the 1st and 2nd Respondents inter alia was that the Appellant was the allottee of Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja vide a Letter of Allocation issued in her favour by the 3rd Respondent. However, following the Appellant’s agreement to sell her allocation letter to the 1st and 2nd Respondents, the Appellant handed over all the particulars of the said property to the Its and 2nd Respondents, for which the 2nd Respondent thereafter paid the sum of N700, 000. 00 to the Appellant as consideration for selling off her interest in the said property. On 14/2/2005, the Appellant notified the 1st and 2nd Respondents that she has not only taken up possession of the property but that she had also rented it out for a term of 2 years and collected the sum of N500. 000. 00 from the tenant, but it later turned out that the Appellant actually took physical possession of the property without surrendering it to the 1st and 2nd Respondents. All efforts by the 1st and 2nd Respondents to take possession of the property as owners as well as to deal with the Appellant’s mortgagors, the 4th Respondent was to no avail as their attempts to take over possession were resisted by the 4th Respondent as well as the 3rd Respondent, the Ministry of Housing, Lands and Urban Development, the Developers, hence the Suit by the 1st and 2nd Respondents to take over possession of the said property. See pages 1 – 24, 84 – 94, 102 – 108 and 329 – 333 of the Record of Appeal. See also pages 187 – 188 of the Additional Record of Appeal.

Before the lower Court, the 3rd and 5th Respondents who had initially filed their joint Defence did not also call any witness at the trial and the matter proceeded to trial and at the end of which judgment was entered in favour of the 1st and 2nd Respondents against the Appellant. On the part of the Appellant, she neither appeared nor defended the claims of the 1st and 2nd Respondents against her and the matter proceeded to trial and at the end of which judgment was entered against the Appellant in favour of the 1st and 2nd Respondents, hence, this appeal. See pages 442 – 455 and 456 – 462 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues for determination were formulated as follows:
1. Whether the 1st and 2nd Respondents can acquire title to a mortgaged property without the consent of the Mortgagee first sought and obtained? (Distilled from Grounds 2 and 3)
2. What is the legal implication of the failure of the 1st and 2nd Respondents to obtain the Mortgagee’s consent before the alleged transfer of title of the property, subject matter in dispute? (Distilled from Ground 4)
3. Whether the failure to serve the originating process and Hearing Notices on the Appellant, robbed the lower Court of the jurisdiction to entertain the matter? (Distilled from Ground 1)

In the 1st and 2nd Respondents’ brief, three issues for determination were formulated as follows:
1. Whether in view of the peculiar facts of this case especially Exhibit PW1F, the Appellant, Mortgagor can alienate her interest in the Mortgaged property without the consent of the Mortgagee, in order to liquidate her indebtedness to the Mortgagee?
2. Assuming but not conceding that the consent of the Mortgagee was crucial before the sale, can the Appellant after willfully selling her property and accepting payment, later turn around to repudiate the contract in the absence of fraud?
3. Whether the 1st and 2nd Respondents will be held responsible where the Appellant was served with the Originating processes and Hearing Notices but chose not to appear in Court?

In the 3rd and 5th Respondents’ brief, two issues for determination were formulated as follows:
1. Given the circumstances of the Suit and materials before the lower Court, whether the complaint of the Appellant that it was not served with the Originating processes in the Suit thereby robbing the lower Court of its jurisdiction is valid?
2. Considering the evidence before the lower Court, whether it was right in holding that the Appellant had sold her interest in Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja to the 1st and 2nd Respondents?

My Lords, I have reviewed the pleadings and evidence of the 1st and 2nd Respondents, who alone led evidence at the trial before the lower Court. I have also scanned through the entire processes and proceeding before the lower Court leading to the judgment appealed against by the Appellant, noting carefully all the proofs of service of every process in the Suit before the lower Court. I have also considered the submissions of learned counsel for the parties in the light of the judgment of the lower Court, and I am of the view that the proper issues for determination in this appeal are the three issues for determination as formulated in the Appellant’s brief, a consideration of which would involve a consideration of the three issues as formulated in the 1st and 2nd Respondents’ brief as well as the two issues formulated in the 3rd and 5th Respondents’ brief.

However, I shall commence with the consideration of the Appellant’s issue three, together with the 1st and 2nd Respondents’ issue three as well as the 3rd and 5th Respondents’ issue one. Thereafter, and if need be, depending on the resolution of the issue three, I shall proceed to consider the Appellant’s issues one and two together with the 1st and 2nd Respondents’ issues one and two as well as the 3rd and 5th Respondents’ issue two and resolve all of them together in one fell swoop. But first there are some preliminary objections, which being in the nature of jurisdictional issues, I shall proceed to consider anon!

1ST AND 2ND RESPONDENTS’ NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection, the 1st and 2nd Respondents are challenging the competence of this appeal on the grounds that pursuant to the provisions of Section 242 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), leave of Court was required before the Appellant can competently appeal against the judgement of the lower Court, and therefore, the failure by the Appellant to seek and obtain the prior leave of the Court before filing the Appeal rendered the Appeal incompetent and liable to be dismissed and or struck out. The Notice of preliminary objection was supported by an Affidavit deposed to by one, Barikpoa Barabari Kiasira, a legal practitioner in the Law Firm of the Solicitors to the 1st and 2nd Respondents to the effect that no leave was sought and obtained before the filing of the Notice of Appeal by the Appellant against the judgment of the lower Court.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
In his submissions in support of the preliminary objection, learned counsel for the 1st and 2nd Respondent had submitted inter alia that the judgment appealed against for which the Appellant did not contest before the lower Court amounts in law to a specie of consent judgment and contended that in law the Appellant required the prior leave of this Court to competently file an appeal against the judgment of the lower Court entered in such circumstances and urged the Court to hold that the failure of the Appellant to do so rendered the Notice of Appeal field without prior leave incompetent and to uphold the preliminary objection and dismiss and or strike out the appeal for being incompetent. Counsel relied on Alhaji Shuaibu Abdulkarim V. Incar (Nig.) Ltd (1992)7 NWLR (Pt. 251) 1 AT p. 16, Dr. P. A. C. Agwarangbo & Ors V. Winston Efioni Nakande (Carrying on Business under the name and style of Winston Nakande & Company (2000) 9 NWLR (Pt. 672) 341 AT p. 358, Chief Saro Manson & Ors V. Halliburton Energy Services Nig. Ltd & Or (2007)2 NWLR (Pt. 1018) 211 AT p. 234.

APPELLANTS’ COUNSEL SUBMISSIONS
My Lords, surprisingly the learned counsel for the Appellants despite the service on him of the 1st and 2nd Respondents’ preliminary objection and brief, made no iota of any submissions in response to submissions in support of the preliminary objection by the 1st and 2nd Respondents.

RESOLUTION OF 1ST AND 2ND RESPONDENTS’ PRELIMINARY OBJECTION
My Lords, in law the failure of the Appellant to make any counter submissions to the challenge of the competence of the appeal simply amounts to a concession by the Appellant that indeed the appeal is incompetent as alleged by the 1st and 2nd Respondents. This is so because in law where one party is duly served with the arguments of the other party but he fails or neglects or refuses to respond to the said arguments as proffered by the other party, it would be taken that he has conceded to the arguments of the other party. See Dr. Arthur Nwankwo & Ors V. Alhaji Umaru Yar’adua & Ors (2010) 12 NWLR (Pt. 1209) 518, where the Supreme Court per Onnoghen JSC, (as he then was now CJN) had held inter alia thus:
“It is settled law that where an opponent fails or neglects to counter any argument or issue validly raised in the brief of argument or during oral presentation, the issue is not so contested and is deemed conceded by the defaulting party.”
See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill, Ahmed V. Ahmed (2013) 41 WRN 1, Dairo V. Aderinoye (2013) 50 WRN 111.
Be that as it may, I am aware that in law where an issue raised by one party is not countered by the other party, it does not automatically follow that such arguments, though conceded, are to be taken hook, line and sinker by the Court. Thus the failure of one party to counter the arguments of the other party alone does not ipso facto without more confer merit on the arguments of the party as the Court is still under a duty to consider the arguments on their own merit. See Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgewill. See also Adah V. NYSC (2004) 13 NWLR (Pt. 891) 639, Tanko V. UBA Plc. (2010) 7 NWLR (Pt. 1221) 80, Obiuweubi V. CBN (2011) 17 NWLR (Pt. 1247) 80, Stowe V. Benstowe (2012) 17 NWLR (Pt. 1306) 450, Elelu – Habeeb V. AG. Fed. (2012) 13 NWLR (Pt. 1318) 423, Agi V. Access Bank Plc (2014) 9 NWLR (Pt. 1411) 121.

It is only in deference to the above position of the law and the overriding need to do substantial justice that I intend to proceed to consider and resolve the challenge to the competence of the Notice of Appeal on the allegation of failure to obtain the prior leave of this Court.

Now, by Section 241 (1)(a) of the Constitution of Nigeria 1999 (as amended), an appeal against the final decision of the lower Court to this Court is as of right and therefore, no prior leave of this Court is required to render such an appeal competent. I have taken time to read through the proceedings and judgment of the lower Court now being appealed against the Appellant, and even though it is true that the Appellant neither participated nor defended the claims of the 1st and 2nd Respondents against her before the lower Court, yet the resultant judgment after the hearing and consideration of the evidence of the 1st and 2nd Respondent was a judgment on the merit and not a consent judgment of any breed or specie as was vehemently but erroneously thought and submitted by the learned counsel for the 1st and 2nd Respondents. The heavy reliance therefore, by the 1st and 2nd Respondents on the provisions of Section 241(2)(c) of the Constitution of Nigeria 1999 (as amended) was truly and indefensibly misplaced and hereby discountenanced. See Section 241(1)(a) of the Constitution of Nigeria 1999 (as amended). See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) per Sir Biobele Abraham Georgcwill.

In the light of the above position of the law, the preliminary objection of the 1st and 2nd Respondents lack merit and it is hereby overruled and dismissed in its entirety.

RESOLUTION OF THE 4TH RESPONDENT’S PRELIMINARY OBJECTION
The 4th Respondent had by a Notice of Preliminary objection challenged the competence of the Notice of Appeal on the grounds that the 4th Respondent is not a proper and necessary party to this appeal and therefore, the Court lacks the jurisdiction to entertain the appeal. The learned counsel for the Appellant had no objection to the preliminary objection of the 4th Respondent not being a necessary party to this appeal, its name having since been struck out by the lower Court on its application before the proceedings leading to the delivery of the judgment against the Appellant.
My Lords, I have scanned through the proceedings of the lower Court and it is true that on 17/5/2012, the name of the 4th Respondent was struck out by the lower Court on the application of 4th Respondent, who was the 3rd Defendant before the lower Court. I therefore, do not see the necessity for the lengthy submissions by the learned counsel for the 4th Respondent in this appeal merely to make this, though salient, but uncontested issue. The 4th Respondent is not a necessary party to this appeal, it was also not a necessary party to the proceedings before the lower Court. The 4th Respondent’s preliminary objection is therefore, an open and shut case without any disputation. In the circumstances therefore, the preliminary objection of the 4th Respondent, in so far as it relates to it alone, has merit and it is hereby upheld. Consequently, the name of the 4th Respondent is hereby struck out from the Record of this Appeal. See Green V. Green (1987) 3 NWLR (Pt. 61) 480. See also Emecheta V. Sowemimo & Ors (2018) LPELR – 50399 (CA) per Sir Biobele Abraham Georgewill JCA.

ISSUE THREE
APPELLANT’S COUNSEL SUBMISSIONS
On issue three, learned counsel for the Appellant had submitted inter alia that in law for a Court to exercise jurisdiction, it must be statutorily empowered and properly constituted as it relates to its membership and the parties before it and upon the fulfilment of all condition precedent to the assumption of jurisdiction, including the service of the originating and other processes on the parties and contended that the service of Court processes, including hearing notice on a party is sine quo none to the exercise of jurisdiction by the Court and therefore, where there is failure to serve either the originating processes and or hearing notices on a party, such proceedings amount to a nullity and urged the Court to hold that the Appellant was not served with any of either the originating processes and or any hearing notice as required by law and she was therefore not aware of the entire proceedings against her and thus, neither held any defence nor defended herself against the claims of the 1st and 2nd Respondents and thereby rendered the entire proceedings and judgment of the lower Court a nullity and liable to be set aside and to allow the appeal, and set aside the judgment of the lower Court for being a nullity and having been reached without the requisite jurisdiction. Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on National Bank of Nig. Ltd. V. Shoyoye (1977) 5 SC 181, Aremo II V. Adekanye & Ors (2004) 11 MJSC 11 AT P. 24, Unity Bank Plc V. Onwudiwe and Anor (2015) LPELR – 24907 (CA), BCC Ltd. V. Imani & Sons Ltd/Shell Trustees Ltd (2007) All FWLR (Pt. 348) 806 AT p. 815, Ogolo V. Ogolo (2006) 12 NWLR (Pt. 629) 21.

It was also submitted that in law a Writ of Summons or any other originating process must be properly served on the Defendant since without such service, the Defendant may not know that he has been sued and may also not know the claims against him and thus in law the object of the service is therefore to give notice to the Defendant of the claims against him so that he may be aware of and be able to resist, if he desire to, that which is claimed against him and contended that where therefore, service of process is legally required, the failure to serve it in accordance with the law is a fundamental flaw and a person affected by any order but was not served with the process is entitled ex debito justitae to have the order set aside as a nullity and urged the Court to hold that the Appellant having not been served with either the originating processes or any other processes and or hearing notices is entitled to have the judgment of the lower Court entered against her in such circumstances set aside for being a nullity and to allow the appeal and set aside the judgment of the lower Court for being a nullity having been reached without jurisdiction. Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), and relied on Guda V. Kitta (1999) 12 NWLR (Pl. 629) 21, Madukolu V. Nkemdilim (2006) 2LC 208 AT pp. 218 – 219, Asuquo V. Eshiet (2008) All FWLR (Pt. 401) 970 AT p. 983, Menekenon V. Tekam (2001) 9 MJSC 114 AT p. 125.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue three, learned counsel for the 1st and 2nd Respondents had submitted inter alia that in law that where a party to a Suit was served with Court Processes, including Hearing Notices but he chose to be indolent and absented himself from the trial, such a party has himself to blame as the Court cannot open the door which he personally shot against himself and contended that the position of the law is so sacrosanct that even where a party appears once but fails to appear at subsequent times and no further blearing notice was served such a litigant is indolent and therefore cannot be aided by the Court and urged the Court to hold that all the originating processes and hearing notices were served on her and she was aware of the proceedings at the lower Court but only choose to ignore the proceedings and therefore, have no basis for any complaint in this appeal as the Appellant was not diligent in the defense of the Suit having been duly served with the originating processes and the hearing notices, and to dismiss the appeal and to affirm the judgment of the lower Court. Counsel relied Air France V. Gregory Okwudiafor (2012) All FWLR (Pt. 639) 1156 AT pp. 1172 – 1173, Attorney – General, Rivers State V. Ude (2007) All FWLR (Pt. 347) 598 AT pp. 613 – 614.

It was also submitted that the Appellant was duly served by substituted service to by pasting at her place of work and which in law is sufficient and good service as there is no requirement the Appellant must be served at her place of residence and contended that the fact that the 1st and 2nd Respondents knew the place of residence of the Appellant was immaterial to the requirement of proper service once she was duly served by substituted service at her place of work and urged the Court to hold that the Appellant having been duly served with both the originating processes as well as all other processes and hearing notice, the appeal lacks merit and should be dismissed and the judgment of the lower Court should be affirmed.

3RD AND 5TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 3rd and 5th Respondents had submitted inter alia that the Appellant admitted that the originating processes were served on her by substituted means by pasting the processes in the Court premises upon the representation that an unsuccessful attempt had been made to serve her the processes in her office and contended that in law the Appellant’s assertion that she was not aware of the Suit because service of the originating processes was effected on her by substituted means by pasting the processes in the Court premises is untenable and cannot avail her and urged the Court to hold that the Appellant was very much aware and instructed her counsel to file a memorandum of appearance and a motion for extension of time to file her defence, and was on the evidence also served with several hearing notices but all to no avail as she choose not to participate in the proceedings until judgment was entered against her and to dismiss the appeal and affirm the judgment of the lower Court. Counsel relied on Ajibola V. Sogeke (2003) 9 NWLR (Pt. 826) 494 AT p. 524.

RESOLUTION OF ISSUE THREE
My Lords, issue three raises a very crucial as well as fundamental issue in the due administration of justice to wit: the right of parties to be served with originating and all other processes in any proceedings against them and also the sacrosanct right to be served further with hearing notice for the hearing of the matter against them so as to enable them to participate, or of their own volition and choice refuse or neglect to do so in the proceedings against them in a Court of law. This is the minimum requirement of the law as to the exercise of the right to fair hearing of a party in any proceedings before the Court, failing which any such proceedings as well as the resultant decision and or judgment would be rendered a nullity in law and thereby liable to be set aside. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), by which it is provided as follows:
“In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to ensure its independence and impartiality.”
See High Chief Raymond Dokpesi V. Alhaji Lai Mohammed & Ors (2022) LPELR – 58195 (CA) per Sir Biobele Abraham Georgcwill JCA. See also Traxys Euro SA V. Ali & Ors (2022) LPELR – 57434 (CA) per Sir Biobele Abraham Georgcwill JCA, Air France V. Gregory Okwudiafor (2012) All FWLR (Pt. 639) 1156 AT Pp. 1172 – 1173, Attorney-General, Rivers State V. Ude (2007) All FWLR (Pt. 347) 598 AT pp. 613 – 614.

Now, the parties are ad idem, and there is an avalanche of evidence in the Record of Appeal to the effect, that the Appellant was served with the Originating Processes by means of substituted service pursuant to the leave of the lower Court and that in response thereto, the Appellant had caused her counsel to filed on her behalf a Memorandum of Appearance as well as a Motion on Notice on 20/2/2007 for extension of time to file her Statement of Defence to the claims of the 1st and 2nd Respondents. See pages 78 – 80 and 84 – 89 of the Records of Appeal.

The only contention appears to be that the Appellant was served by means of substituted service not at her place of residence, which was known to the 1st and 2nd Respondents but rather by pasting at the Court premises after an unsuccessful attempt at serving the processes at her office. I do not think this contention holds any weight or merit in law. Once a party has been duly served by substituted service as ordered by a Court of law, by whatever means and or at whatever place so ordered, it is in law deemed as sufficient and good service. The essence of service of Court process is simply to bring the pendency of the proceedings to the knowledge and awareness of the party. There is no requirement in law, as far I know, that the Appellant or any party for that matter to proceedings pending in Court, must be served with Court processes at her place of Residence, as erroneously thought but so vehemently contended by the Appellant in this appeal.
So, if truly as the Appellant claimed she was not aware of the 1st and 2nd Respondents’ Suit because it was only served on her by means of substituted service, which at any rate is deemed as good and sufficient service in law, how come she filed her processes in answer to the 1st and 2nd Respondents’ Suit after the substituted service on her? I think the Appellant was not truthful in this her contention. I cannot therefore but agree with the unassailable submissions of counsel for the 1st and 2nd Respondents as well as counsel for the 3rd and 5th Respondents that the Appellant’s contention of lack of service of originating processes on her itself lacks merit and should be discountenanced. It is hereby so discountenanced and I hold firmly that the Appellant was duly served with the Writ of Summons and all other processes in the 1st and 2nd Respondents’ Suit as required by law by mean of substituted service. See Ajibola V. Sogeke (2003) 9 NWLR (Pt. 826) 494 AT p. 524.

Having found as fact and held firmly that the Appellant was duly served with the Writ of Summons and all other processes in the 1st and 2nd Respondents’ Suit as required, by law, the next most crucial question is whether or not the Appellant was served with Hearing Notices as also required by law for the hearing and eventual determination of the 1st and 2nd Respondents’ Suit against the Appellant by the lower Court?

In law, the service of hearing notice may or may not be necessary or essential depending on the peculiar facts and circumstances of any given case. Happily, there is no dearth of decided cases on this very important aspect of our law but rather there is a surfeit of authorities as are replete in our law reports on when service of hearing notice may or may not be necessary. The essence of service of a hearing notice, as I understand it in law, is that it is designed to put parties on notice of a future date in which the Suit or appeal or matter will be called and or heard. The objective, in my view, is to give the parties equal opportunity of being fairly heard before any decision affecting their rights is taken. See Section 36(1) of the Constitution of Federal Republic of Nigeria 1999 as Amended. See also Ama Real Estate Ltd. V. Heritage Bank Plc (2022) LPELR – 57046 (CA) per Sir Biobele Abraham Georgewill JCA.

Now, while the service of hearing notice may be a duty on the part of the Court on the one hand and a right of the parties on the other hand, the duty of issuing it and ensuring that it is served on that parties, whenever it is necessary is exclusively that of the Court. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA.
See also Folorunso V. Shaloub (1994) 3 NWLR (Pt. 333) 413 AT p. 430, Mirchandani V. Pinheiro (2001)1 FWLR (Pt. 48) 1307 AT p. 1320.
Thus, at any time when it becomes clear to the Court that a party who is absent in Court was not aware of the date, it will be necessary for the Court, in the interest of justice and fair hearing, to order and issue hearing notice. However, where ignorance of a sitting date is self-induced, it is my view that such a party in default is not entitled to a hearing notice. See Baba V. Atunbi (2012) 3 NWLR (pt. 1287) 354.

So, why is hearing notice so important in the adjudication processes in the Courts? It is worth pointing out that the importance of service hearing notice is underscored by the grim consequences of failure to do so where it is deemed and or found to be necessary but was not served. The position of the law is that a failure to issue and serve hearing notice, in circumstances in which issuance and service of a hearing notice is necessary, would amount to a fundamental omission, which renders the entire proceedings so conducted and the judgment so entered null and void and liable to be set aside on appeal. See Gabdo V. Usman (2015) LPELR-25678(CA) per Georgewill JCA. See also Baba V. Atunbi (supra) AT Pp. 366 – 368, Sigbenu V. Imafidon (2009) 13 NWLR (Pt. 1158) 231 AT P.252, Ndukauba V. Kolomo (2005) 4 NWLR (Pt. 915) 411, Scott-Emuakpor V. Ukavbe (1975) 12 SC 41, SPDC Nig. Ltd V. Niger Optical Service Co Ltd (2004) 7 NWLR (Pt. 872) 420, Somai Sonka Ltd V. Adzege (2001) FWLR (Pt. 68) 1104.

However, it must be pointed out at once that on the reverse side of the requirement of service of hearing notice is the ugly reality of it being subject to abuse by parties, particularly those who may cling to it as a right and become lackadaisical in the prosecution or defense of their cases. Thus, where a party or his counsel was in Court on the sitting of a Court and the case was adjourned to another further date, it will be incongruous for such a party to insist on service of hearing notice on him should he or his counsel fail to appear in Court on the next adjourned date. In law, a party who fails to take or make use of the opportunity given to him to present his case cannot be heard or allowed to complain of a denial of fair hearing. See Uhembe V. Parkes (2014) 3 NWLR (Pt. 1395) 475. See also Mirchandani V. Pinheiro (2001) FWLR (Pt. 48) 1307) AT Pp. 1318 -1320, Kaduna Textiles Ltd V. Umar (1994) 1 NWLR (Pt. 319) 143, Ajaokuta Steel Co Nig Ltd V. Biosali & Co Nig Ltd (1997) 11 NWLR (Pt. 527) 145, Eastern Breweries Plc V. Nwokoro (2012) 14 NWLR (Pt. 1321) 488.
It follows therefore, that since all parties ought to be informed of when a matter in which they are involved and pending before the Court is due to be called up and or be heard, all parties to a proceeding are entitled as of right to be served with all the Court processes, including hearing notices from day to day. This is so important that any dereliction in this regard is bound to vitiate the entire proceedings no matter how well conducted. See Apeh V. PDP (2016) 7 NWLR (Pt. 1510) 153 AT p. 177.

Thus, it is the duty of the Court, and certainly not that of either of the parties in a pending litigation, to confirm that there is proper service of the Court processes, including hearing notice whenever it is necessary to be served, on the other party who may be affected by the outcome of a proceeding before the Court. So, as it does often happen in the Courts, where a party was neither in Court nor was represented by a counsel, it is in the interest of justice that the Court should ensure that hearing notice is duly issued and properly served on such a party in relation to the next adjourned date for the cause or matter. See FBN Plc. V. TSA Ind Ltd (2010) 15 NWLR (Pt. 1216) 247 AT p. 309.
The above is so because in law non-service of hearing Notice on a party, where service of hearing notice is required by law and necessary, would rob the Court of its jurisdiction to hear and determine a cause or matter. Thus, any order made by a Court against a party in the absence of service of hearing notice on a party, who is entitled to service of hearing notice, is null and void. The failure to serve hearing notice, where it ought to be served on a party to a pending proceedings, goes to the root of the jurisdiction of the Court. See Section 36 of the Constitution of Nigeria 1999 (as amended). See also Ezim V Menakaya (2018) 9 NWLR (Pt. 1623) 113 AT pp. 126 – 127, ENL Consortium Ltd V SS Nig Ltd (2018) 11 NWLR (Pt. 1630) 315 AT p. 326.

My Lords, the law is and has always been that a failure by a Court to observe the right to fair hearing of a party in the litigation process vitiates both the proceedings and judgment of the Court whose proceedings is affected by the deadly incurable and highly contagious virus of lack of or denial of fair hearing, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were or even how sound the judgment was on the merit. Once, the right to fair hearing is breached, all the proceedings and or judgment or decisions are all a nullity. But, the issue of lair hearing must at all limes, in any proceedings in which it is raised, be raised with all seriousness and bone fide and not mala fide or merely intended to raise a storm in a teacup without any real factual basis. See Agbogu V. Adichie (2003) 2 NWLR (Pt. 805) 509 AT p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (PT. 165) 33 AT p. 40, Adebesin V. The State (2014) 9 NWLR (pt. 1413) 609 AT pp. 641 – 642.

My Lords, I have taken time to scan through the entirety of the Record of Appeal in view of the crucial importance of service of hearing notice in the due administration of justice in this Country, and I find that there is avalanche of evidence that Hearing Notices were duly issued by the lower Court for service on the Appellant and further that these Hearing Notices were duly served on the Appellant through her counsel, having filed a Memorandum of Appearance on her behalf before the lower Court. See pages 68, 68, 84 – 89, 102, 157B, 163B, 164, 165, 169, 170, 170B, 171, 171B, 172, 173, 176, 176B, 180 and 181 of the Additional Record of Appeal. See also pages 387 – 390, 392, 394, 398, 402 – 403, 405, 412 – 414 of the Record of Appeal.

Thus, it is clear that the Appellant was duly served with both the Originating Processes and Hearing Notices at various limes but she choose to ignore the proceedings before the lower Court until judgment was entered against her on the uncontested and unchallenged sole evidence of the 1st and 2nd Respondents. In the circumstances, the law will neither aid nor come to the rescue of the indolent, or the careless, or the reckless and or the negligent in the prosecution or defence of their cases before a Court of law. Such a party, such as the Appellant, would in law have only herself to blame for the calamity of the judgment that eventually befell her. The lower Court was therefore perfectly right when in its judgment it stated inter alia thus:
“The Appellant failed and or neglected to file a defence to this suit even though she had been duly served with the originating process.” See page 429 of the Record of Appeal.”

In the light of all I have stated and found as above, issue three is hereby resolved against the Appellant in favour of the 1st and 2nd Respondents as well as the 3rd and 5th Respondents.

ISSUES ONE AND TWO
(TAKEN TOGETHER)
APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted inter alia that the lower Court was wrong when it found that the Appellant sold her letter of allocation in respect of the property in dispute and thereby enabled the 1st and 2nd Respondents to step into her shoes and contended that this finding by the lower Court violated the provisions of the Letter of Allocation, Exhibit PW 1A in that the property in dispute is a mortgaged property and in law the 1st and 2nd Respondents cannot acquire any title to the mortgaged property without the consent of the Mortgagee first sought and obtained since in law the consent of the mortgagee is a condition precedent to the assignment of a mortgaged property and urged the Court to hold that in the absence of the requisite consent of the Mortgagee the title in the mortgaged property in dispute resided in the mortgagee and therefore, the purported sale to the 1st and 2nd Respondents of the mortgaged property by the Appellant was null and void and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st and 2nd Respondents for lacking in merit. Counsel referred to the Book: “Practical Approach to Law of Real Property in Nigeria” by Prof. L.O. Smith, 2nd Edition AT p. 353, and relied on N. J. Ekaeteh V. Nigerian Housing Development Society Ltd & Anor (1973) All NLR 555, Marouf Adeleye Kasunmu V. J. M. Scott & Ors (1967) AH NLR 243, Barclays Bank DCO V. Olofintuyi & Anor (1961) All NLR 828.

On issue two, learned counsel for the Appellant had submitted inter alia that without the requisite consent of the Mortgagee the purported sale of the Mortgaged property is a nullity since the law is ‘ex nihilo nihil fit’ one cannot place something on nothing and expect it to stand and contended that in law prior consent of the Mortgagee is a condition precedent for the sale of a Mortgaged property by the Mortgagor and thus, any failure to do so renders such a sale a nullity and urged the Court to hold that without the consent of the 4th Respondent the Appellant cannot give out any title to the said Mortgaged property, which she had given out to the 4th Respondent and to allow the appeal, set aside the perverse judgment of the lower Court and dismiss the claims of the 1st and 2nd Respondents for being a nullity. Counsel relied on Madukolu & Ors V. Nkenidilim (2006) 2 LC 208 AT pp. 218 – 219.

1ST AND 2ND RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 1st and 2nd Respondents had submitted inter alia that from the unchallenged evidence before the lower Court the sale of the property to the 1st and 2nd Respondents by the Appellant without the consent of the Mortgagee, the 4th Respondent was not illegal as the peculiar facts reveal that the Appellant, the Mortgagor intended the 1st and 2nd Respondents to pay off her outstanding indebtedness to the Mortgagee and which the 1st and 2nd Respondents were doing until the unlawful action of the Appellant by unilaterally repudiating the sale after receiving full payment and Agreements signed and contended that Exhibit PWJ1 – 3 did not in any way forbid the Appellant from selling the said property as she would only lose her title if she was unable to service National 1 lousing Fund loan facility advanced to her in three consecutive months or defaulted in making the principal and interest repayment for six months within any year and urged the Court to hold that nothing short of these failures would make the Appellant lose her title to the said properly and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Janies Goloto & Another V. The Registered Trustees of Deeper Life Ministry & Another (2012) All FWLR (Pt. 647) 726 AT pp. 770 – 741.

On his issue two, learned counsel for the 1st and 2nd Respondents had submitted inter alia that in its adjudicatory function, the Courts have a duty to prevent injustice in any given scenario and avoid rendering a decision which enables a party escape from his or her obligation under a contract by his or her own willful wrongful act or otherwise profit from such a willful wrongful act and contended that to uphold the Appellant’s case that the failure to obtain the consent of the Mortgagee rendered the transaction null and void, especially when such a defense was not coming from the Mortgagee, will definitely amount to an injustice as the Appellant who willfully entered into a contract to sell her property and which was witnessed by her own husband will benefit from her own wrong and urged the Court to hold that the law will not support its use as an engine of fraud and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35, Bulet International (Nig) Ltd & Anor V. Olaniyi & Anor (2017) LPELR – 42475 (SC), Adedeji V. National Bank of Nigeria Ltd (1989)1 NWLR (Pt. 96) 212, Heco Foam Industries Nigeria Ltd V. Chellarams Plc (2018) All FWLR (Pt. 918) 172 AT p. 187, Teriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868 AT p. 1885, Okechukwu V. Onuorah (2000) LPELR – 2431 (SC).

3RD AND 5TH RESPONDENTS’ COUNSEL SUBMISSIONS
My Lords, none of the Defendants before the lower Court, including the Appellant and the 3rd and 5th Respondent, called any witness at the trial of the 1st and 2nd Respondents’ Suit. The 3rd and 5th Respondents who filed their Statement of Defence did not however, call any witness to give any evidence in support of and proof of their pleadings. In law, the averments in their pleadings are therefore, deemed abandoned and would thus go to no issue in the determination of the ease. It follows in my view therefore, all the avalanche of submissions by the 3rd and 5th Respondents on the facts, in the absence of any evidence from them, should not really be of any serious moment in this appeal. I shall therefore, review albeit briefly the submissions of the 3rd and 5th Respondents in their brief in this appeal, and I proceed to do so anon!

On his issue two, learned counsel for the 3rd and 5th Respondents had submitted inter alia that the lower Court was right to have held that the Appellant had sold or transferred her interest in the property to the 1st and 2nd Respondents and contended that in law it is not correct to contend as was done by the Appellant that a Mortgagor cannot validly divest his interest in a mortgaged property without the consent of the Mortgagee who has the legal title in the property in that firstly, the Appellant has no locus to make the complaint of lack of consent not being the Mortgagee, and secondly there is nothing in law that prevents a Mortgagor from alienating his interest provided it is subject to the Mortgage even though the Mortgagor may not be part of the transaction and urged the Court to hold that the lower Court was right when it validated the sale of the Mortgage property to the 1st and 2nd Respondents by the Appellant, a Mortgagor and for which there is no complaint of lack of consent by the 4th Respondent, the Mortgagee and to dismiss the appeal and affirm the sound judgment of the lower Court. Counsel relied on Chime V. Chime (2001) 3 NWLR (Pt. 701) 527 AT pp 542 – 543, Zakirai V. Muhammad (2017) 17 NWLR (Pt. 1594) 181, Mobil Producing Nigeria Unlimited V. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (Pt. 798) 1 AT pp. 34 – 35, UBN Plc V. Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647, Akindele V. Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86.

RESOLUTION OF ISSUES ONE AND TWO
My Lords, issues one and two deal with the merit or otherwise of the claims of the 1st and 2nd Respondents as Claimants against the Appellant and the 3rd and 5th Respondents as Defendant before the lower Court, the 4th Respondent’s name having been struck out by the lower Court. In brief, and in the absence of any evidence from the Appellant, the case of the 1st and 2nd Respondents, which had remained unchallenged and undefended, was inter alia that the Appellant was the allottee of Block C, Flat 1, Ekiti Court, Gaduwa District, Abuja, the property in dispute, vide a Letter of Allocation issued in her favour by the 3rd Respondent. However, following the Appellant’s agreement to sell her allocation letter to the 1st and 2nd Respondents for valuable consideration to enable her offset the mortgage she took from the 4th Respondent, the Appellant handed over all the particulars of the property to the 1st and 2nd Respondents and the 2nd Respondent thereafter paid to her the sum of N700, 000.00 as consideration for selling off her interest in the property. Curiously, rather than hand over possession of the said property to the 1st and 2nd Respondents, the Appellant later notified the 1st and 2nd Respondents that she had taken possession of the property and had rented it out to a tenant for a term of 2 years, without surrendering it to 1st and 2nd Respondents.

At the trial, the 1st and 2nd Respondent called one witness who testified as PW1 and tendered several documents, all of which remained unchallenged, uncontradicted and uncontroverted by the Appellant. In law, whenever documentary evidence is available, and since they are the best form of evidence due to the lower level of possibility of their manipulations and being earlier in time to the oral evidence, which is capable of manipulations and afterthoughts, they are to be used as hangers on which to assess the veracity of oral evidence. See Sections 128 (1) and 132 (1) of the Evidence Act 2011. See also Salbodi Group Limited & Anor V. Doyin Investment Nigeria Limited & Ors (2022) LPELR-57458(CA) per Sir Biobele Abraham Georgewill JCA, Ezenwa V. KSHSMB (2001) 9 NWLR (Pt. 1251)1, Womiloju V. Kiki (2009) 16 NWLR (Pt. 1166) 146.

Now, neither the Appellant nor the 3rd and 5th Respondents called any witness to give any evidence in rebuttal to the evidence, both oral and documentary led by the sole witness of the 1st and 2nd Respondents. The case of the 1st and 2nd Respondents, as Claimant, as pleaded and supported by evidence therefore remained unchallenged, uncontroverted and uncontradicted by any or all of the Appellant and the 3rd and 5th Respondents, as Defendants before the lower Court. In law, such evidence is deem good and can be relied upon by the trial Court to reach appropriate findings of facts as between the parties, and the onus of proof on the 1st and 2nd Respondents was therefore, minimal. See Zakariya V. Mohammed (2022) LPELR – 57505 (CA) per Sir Biobele Abraham Georgewill JCA. See also Olorundare SAN V. Minister of FCT & Ors (2022) LPELR – 58132 (CA) per Sir Biobele Abraham Georgewill JCA.

In law, a mortgage is a legal or equitable conveyance of title as a security for the payment of debt or the discharge of some other obligation for which it is given, subject to a condition that the title shall be re-conveyed if the mortgage debt is liquidated. A mortgage is the conveyance of title as security for the payment of a debt. In other words, the moment a mortgage is created, the mortgagor ceases, albeit temporarily, to be the owner of the mortgage property, until redemption of the mortgaged debt. See Practical Approach to Law of Real Property in Nigeria by Prof. L.O. Smith, 2nd Edition AT p. 353.

The Appellant was not and is not the Mortgagee, whose responsibility it is in law to grant consent to the sale of the mortgaged property should he consider it fit to do so. The Mortgagee was the 4th Respondent and who had whilst before the lower Court had applied to wash its hand off the case and whose application was granted and its name was accordingly struck out by the lower Court. The 4th Respondent, the Mortgagee, had nothing to insist or press as regards its consent to the sale of the mortgaged property by the Appellant, the Mortgagor, to the 1st and 2nd Respondents. In law, the right to complain is that of the 4th Respondent, at whose benefit the law requires that consent by the Mortgagee is required for the sale or otherwise dealing by the Mortgagor with the Mortgaged property. It is a party in whose benefit the law or statute makes a provision that should complain about its denial or refusal and not a stranger to the provision and or the benefit such as the Appellant in the instant case. See Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35.
Yet, curiously, it is the Appellant who as Mortgagor ought to seek and obtain the consent of the 4th Respondent, the Mortgagee, and is with the money paid to her by the 1st and 2nd Respondents as consideration for the sale of the letter of allocation to the property in dispute, that is now carrying on the, would have been, battle of the 4th Respondent and crying over the lack of consent to the sale of the letter of allocation to the mortgaged property. This, in my view, is clearly demonstrative of the saying at common parlance of ‘one crying more than the bereaved’. There is nothing else to appropriately describe the attitude of the Appellant in this case. In law, and I so firmly hold, the Appellant cannot be allowed to keep her cake by keeping the hard-earned money paid to her as consideration by the 1st and 2nd Respondents as in Exhibit PW1F and yet have her cake by keeping her ownership of the said property. The law will never allow itself to be used by the Appellant as an engine to perpetrate and perpetuate fraud against the 1st and 2nd Respondents. Indeed, equity forbids the Appellant to benefit from her own wrong using the law as an engine of fraud. See Mobil Producing (Nig.) UnLtd V. LASEPA (2002) 18 NWLR 9 (Pt. 798) 1 AT pp. 34 – 35. See also Bulet International (Nig) Ltd & Anor V. Olaniyi & Anor (2017) LPELR – 42475 (SC), Adedeji V. National Bank of Nigeria Ltd (1989)1 NWLR (Pt. 96) 212, Heco Foam Industries Nigeria Ltd V. Chellarams Plc (2018) All FWLR (Pt. 918) 172 AT p. 187, Teriba V. Adeyemo (2010) All FWLR (Pt. 533) 1868 AT p. 1885, Okechukwu V. Onuorah (2000) LPELR – 2431 (SC), Union Homes Service & Loans Plc V. Bluewing Travels & Tours (2017) LPELR – 51550 (CA) per Sir Biobele Abraham Georgewill JCA.
My Lords, in law, nothing prevents or hinders the mortgagor from alienating his equity of redemption with or without the consent of the Mortgagee in order to liquidate the mortgagor’s outstanding indebtedness to the mortgagee. A mortgagor may at any time without the mortgagee’s consent make a conveyance of his property subject to the mortgage. Thus, notwithstanding any such conveyance and even if the transferee undertakes personal liability to the mortgage, the mortgagor remains personally liable on the covenant to pay money. He therefore usually takes an express covenant for indemnity from the transferee but even if he does not, a transferee for value will be under an implied obligation to indemnify him.

EXHIBIT PWJ 1 – 3 AT page 274 of the Records of Appeal.
In the instant appeal, nothing in Exhibit PWJ1 – 3, which I had taken time to calmly scrutinize its contents, in any way forbid the Mortgagor, the Appellant from selling and therefore, by the contents of Exhibit PWJ 1 – 3 it does seem to me that the Appellant as the Mortgagor would only lose her title to the property if she was unable to service National Housing Fund loan facility advanced to her in three consecutive months or should she default in making the principal and interest repayment for six months within any year. The lower Court was in my finding therefore, right when it held that the sale between the Appellant and the 1st and 2nd Respondents was valid.
See James Goloto & Anor V. The Registered Trustees of Deeper Life Ministry & Anor (2012) All FWLR (Pt. 647) 726 AT pp. 770 – 741.
Indeed, the Appellant having sold or transferred her interest in the property to the 1st and 2nd Respondents, it cannot be correct in law to contend as was done by the Appellant that a Mortgagor cannot under any circumstances validly divest his interest in a mortgaged property without the consent of the Mortgagee who has the legal title in the property. This is so because firstly, the Appellant has no right of her own to make or lay the complaint of lack of consent not being the Mortgagee, and secondly, there is nothing in law that prevents a Mortgagor from alienating his interest provided it is subject to the Mortgage even though the Mortgagor may not be part of the transaction. See Chime V. Chime (2001) 3 NWLR (Pt. 701) 527 AT pp 542 – 543, Zakirai V. Muhammad (2017) 17 NWLR (Pt. 1594) 181, Mobil Producing Nigeria Unlimited V. Lagos State Environmental Protection Agency & Ors (2002) 18 NWLR (Pt. 798) 1 AT pp. 34 – 35, UBN Plc V. Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647, Akindele V. Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86.
In M. J Eka – Ette V. Nigerian Housing Development Society Ltd & Anor (1973) All NLR 555, the issue for determination was whether the Mortgaged property was undervalued and consequently undersold, and there was no challenge to the power of the Mortgagee or Mortgagor to sell in that case unlike in the instant case.

The facts in that case, in my humble view, are therefore, clearly distinguishable from the facts of the instant appeal. A sale in the established peculiar circumstances of this appeal ought not to and should not be set aside at the instance of the Appellant. The lower Court, in my view, was right to have validated the said sale so that the Appellant docs not use the law as an engine of fraud. See Barclays Bank Deo V. Olofintuyi & Anor (1961) All NLR 828. See also Marouf Adeleye Kasumu V. J. M. Scott & Ors (1967) All NLR 243.
Thus, in any dealing with the mortgaged property by the mortgagor, the only interest he can part with is his interest in the equity of redemption, as he cannot grant an interest to supersede the equitable rights of the mortgagee over the mortgaged property without first getting rid of the whole amount of his indebtedness to the mortgagee under the mortgage loan, even though the legal estate resides in him, the mortgagor. See UBN Plc V. Taylor (2005) 15 NWLR (Pt. 947) 27 AT pp. 368 – 369, Goloto V. The Registered Trustees of Deeper Life Ministry (2012) All FWLR (647) 647.
Most instructively, the right of Mortgagor to sell the Mortgaged property especially for the purpose of liquidating the loan facility, as the Appellant in the instant case did bit is seeking furtively to repudiate it, is lawful and has been so recognized even by the Apex Court. See Akindele V. Abe (2021) 17 NWLR (Pt. 1804) 1 AT p. 86, where the Supreme Court, per Abba – Aji, JSC, had stated inter alia thus:
“I must be categorical here that any mortgagor that does not want his property to be foreclosed for sale should sell it by himself or liquidate the loan facility.”
On the established facts in this case as in the Record of Appeal from the unchallenged evidence of PW1 and the several documentary Exhibits, and on the current state of the law on sale of mortgaged property by a Mortgagor, it seems clear to me, and as rightly found by the lower Court, that the sale of the said property to the 1st and 2nd Respondents by the Appellant without the consent of the Mortgagee, the 4th Respondent was not illegal as the peculiar facts reveal that the Appellant, the Mortgagor had intended the 1st and 2nd Respondents to pay off her outstanding indebtedness to the Mortgagee and which the 1st and 2nd Respondents were doing until the questioned action of the Appellant by unilaterally repudiating the sale after receiving full payment and all necessary agreements voluntarily entered into and duly signed between the parties. In law, as in equity, the Appellant lacks the power to renege using the concept of consent in Mortgage transaction merely as an engine of fraud in order to benefit from her own wrong. The law will never allow the Appellant to do so unashamedly as she had sought furtively to do in this case. See Mobil Producing (Nig.) Un Ltd V. LASEPA (2002) 18 NWLR 9 Pt. 798) 1 AT pp. 34 -35. See also Union Homes Service & Loans Plc V. Bluewing Travels & Tours (2017) LPELR – 51550 (CA) per Sir Biobele Abraham Georgewill, JCA.

In the light of all I have said above therefore, I hold that the conclusion reached by the lower Court that the sale transaction between the Appellant and the 1st and 2nd Respondents was valid was correct and cannot be disturbed by this Court. This is so because in law once the conclusion reached by a trial Court is correct on the evidence led before it, an appellate Court will not interfere with the correct conclusion of the trial Court. See Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 AT p. 198, per Edozie JSC. See also Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528 (CA) AT pp. 90 – 91, per Sir Biobele Abraham Georgewill JCA.

In the light of all I have stated and found above, issues one and two are hereby resolved against the Appellant in favour of the 1st – 2nd Respondents.

On the whole, therefore, having resolved all the issues one, two and three for determination against the Appellant in favour of the 1st – 2nd Respondents as well as the 3rd and 5th Respondents, I hold that this appeal lacks merit and is liable to be dismissed. Consequently, it is hereby dismissed.

In the result, the judgment of the High Court of Federal Capital Territory Abuja Division, Coram: O. O. Goodluck J, in Suit No. FCT/11C/CV/4724/2011: Mrs Abe Ethel Ndidi .V. Shammah Global Trades Limited & Ors delivered on 30/4/2019, in which the claims of the 1st – 2nd Respondents as Claimants were granted against the Appellant as Defendant, is hereby affirmed.

There shall be cost of N300,000. 00 against the Appellant in favour of the 1st – 2nd Respondents only.

MOHAMMED MUSTAPHA, J.C.A.: I have been privileged to read in advance a draft copy of the leading judgment just delivered by my Lord, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with his conclusions that the appeal lacks merit and it is consequently dismissed.

The decision of the High Court of Federal Capital Territory Abuja Division, delivered by O. O. Goodluck J, in Suit No. FCT/HC/CV/4724/2011 on 30/4/2019 is hereby affirmed.
I abide by the consequential orders.

DANLAMI ZAMA SENCHI, J.C.A.: I was privilege to read in draft before now the lead judgment of my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA just delivered. I agree with the reasoning and finding in the lead judgment as it has substantially reflected and captured all my views I had expressed during the conference. I therefore entirely adopt as mine the lead judgment of my learned brother, GEORGEWILL, JCA and I have nothing meaningful or useful to add. Hence, the appeal lacks merit and it is dismissed.

The judgment of the High Court of the Federal Capital Territory, Abuja in Suit No. FCT/HC/CV/4724/2011 delivered on 30th April, 2019 by O.O GOODLUCK, J is hereby affirmed.

I abide by the order as to cost made in the lead judgment as mine.