UNION BANK OF NIGERIA PLC. V. HELEN EZEIRU
(2011)LCN/4721(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 13th day of July, 2011
CA/J/180/2005
RATIO
PLEADINGS: WHETHERTHE PLEADINGS OF A PARTY ARE THE FOUNDATION OF ITS CLAIM
The pleadings of a party are the foundation of its claim. Every claim in a civil case must be properly founded and anchored on the pleadings. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
INTERFERENCE WITH EVALUATION OF EVIDENCE: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION AND FINDINGS OF FACT OF A TRIAL COURT
The law is settled that where a trial court has discharged its primary duty of evaluating the evidence and making findings of fact thereof, an appellant court would be reluctant to interfere with the decision arrived at unless the appellant can show that the evaluation and findings of fact were not based on a proper and dispassionate appraisal of the evidence led in support of each party’s case or where the findings are perverse, or on the face of the record justice has not been done in the case. See: Saleh V. B.O.N. Ltd (2006) 6 NWLR (976) 316 @ 329 – 30 H – A; Agbaje V. Fashola (2008) 6 NWLR (1082) 90 @ 153 B – E; Mafimisebi V. Ehuwa (2007) ALL FELR (351) 502 @ 605 G. PER KUDIRAT M. O. KEKERE-EKUN, J.C.A
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIGERIA PLC. – Appellant(s)
AND
HELEN EZEIRU – Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Benue State High Court, Gboko Judicial Division, delivered on 18th January, 2005 in suit no GHC/49/2003. In a writ of summons dated and filed on 8th April, 2003, the Respondent herein, as the Plaintiff sued the Appellant, as the 2nd Defendant and one of her children, Mr. Chijioke Ezeiru, as the 1st Defendant.
By paragraph 19 of her Statement of claim the Plaintiff /Respondent sought for the following 5 reliefs against the Defendants jointly and severally. They are:-
(a) A declaration that the Plaintiff is the only bonafide person by virtue of the letters of administration in her name to enter into any transaction or deal in any manner with the said 3 plots.
(b) A declaration that the 1st Defendant’s act in mortgaging the said 3 plots is null and void same having being done without the consent and authority of the Plaintiff.
(c) An order directing the 2nd Defendant to return and hand over to the Plaintiff the Certificate of Occupancies in respect of plot No. 2475, 2291 and 267 situate in Gboko.
(d) An order of Court directing the 2nd Defendant not to attach any liability to the said 3 plots.
(e) An order of perpetual injunction restraining the 2nd Defendant from disposing of the said 3 plots by whatever form or dealing and tampering with them in any manner inconsistent with the interest of the Plaintiff.
The 2nd Defendant/ Appellant filed a defence to the action in which it denied all the material averments and allegations in the claim of the Plaintiff / Respondent. By way of a counterclaim, the 2nd Defendant/ Appellant also sought for a series of declaratory and injunctive reliefs against the Plaintiff /Respondent and the 1st Defendant. The Plaintiff /Respondent, as the 1st Defendant to the counterclaim and the 1st Defendant, as the 2nd Defendant to the counterclaim each filed a separate Defence to it.
Subsequent to this, the 2nd Defendant/counterclaimant/Appellant filed a joint reply to the separate defences to the counterclaim. Issues now having been duly joined, the matter went to trial.
At the trial, the Plaintiff/Respondent testified as PW1 wherefore she was led by Counsel to adduce both oral and documentary evidence. She did not call other witnesses. At the end of her cross-examination and re-examination she closed her case. For the defence, Mr. Bibi Ejembi was led by Counsel to give oral evidence as DW1. Also, as part of the defence, a series of bank and lands transaction documents were tendered and admitted in evidence.
At the end of the evidence of the parties respective learned Counsel filed and exchanged written addresses. The 1st Defendant and a son of the Plaintiff /Respondent filed a defence to the main suit but did not participate in any meaningful manner in the hearing of the matter, though he was intermittently represented by learned Counsel Mr. Adebayo.
In a considered judgment, the learned Trial Judge decided thus:-
“In the light of the fact that the 1st Defendant failed to show the title or interest he had in the three landed properties of stake before he entered into the said mortgage transaction and, having regard to the fact that the 2nd Defendant did not prove collusion between Plaintiff and 1st Defendant to defeat the mortgage transaction, as evidence on the point both in cross-examination of Plaintiff and DW1’s testimony at defence stage left the allegation stuck in the imagination of 2nd Defendant and unworthy of belief for being scanty and fanciful, I find Plaintiff’s suit against Defendants proved and hereby grant her all the reliefs sought in paragraph 19 of the Statement of claims (supra) against the Defendants”.
(See page 119 record of appeal)
Though the lower Court found in favour of the counterclaim, against the 1st Defendant only, the 2nd Defendant/Appellant was dissatisfied with the decision of the lower Court on the main action and therefore appealed to this Court in a notice of appeal filed on 2nd February, 2005. The notice of appeal has 9 copious grounds of appeal with very copious particulars also.
To argue the appeal, learned Counsel to the Appellant filed a brief of argument dated 9/9/05. It was filed on 25/10/2005. The Respondent’s brief is dated 5/5/2006 and filed on 9 /5/06 but was deemed properly filed and served on 17/05/2006. In the Appellant’s brief, learned Counsel identified and argued 4 issues for the determination of this appeal.
They are: –
(1) Whether the lower Court was right to have found that the Respondent is cloaked with a dual status of a Ce-Beneficiary and Administratrix without whose consent or authority any mortgage executed over the 3 properties is void, having earlier found that Exh. ‘A’ of Administration over personnel properties of Benedict Ezeiru is irrelevant and in view of the undisclosed speculative basis of Exh- ‘B’ purportedly dated 30/7/92 which is not by itself a letter of Administration over real estate but merely guaranteed security over 2 out of the 3 properties covered by C of O No 267 Gboko-East, 2291 Gboko East and 2475 Gboko-East subject of grant of Gboko Local Government. Consent to mortgage?
(2) Whether the lower Court was right to have granted the Respondent an order for the release of the 3 certificates of occupancy from mortgage to the Respondent and that the Appellant shall not attach any liability to the 3 mortgaged properties when the Respondent had acquiesced in the Appellant interest in three properties by virtue of the payment of ground rent on the properties as mortgages since 1996 and when Respondent knew that the overdraft facilities secured by the three properties remained unpaid over 6 years before filling of the action till date?
(3) Whether the lower Court was right to have restrained the Appellant from exercising its statutory power of disposal of the 3 mortgage properties by alienation or sale even when it is evidently clear that the facilities secured by the 3 properties remained unpaid till date thereby frustrating the realization of the judgment debt of N4, 622, 340.61k?
(4) Whether having regard of the totality of evidence adduced and the exhibits tendered at the lower Court, was the lower Court right to have reached the decision of granting the Respondent all the reliefs sought as per paragraph 19(a) 19(e) of the statement of claim?
On behalf of the Respondent learned Counsel identified and argued 2 issues for the determination of this appeal. They are:-
(1) Whether the Trial Court was right to enter judgment in favour of the Respondent in respect of the 3 plots of land only; and
(2) Whether the judgment of the Trial Court is against the weight of evidence.
At the hearing of the appeal learned Counsel to the Appellant challenged the competence of the preliminary objection argued in the Respondent’s brief of argument on the ground that no formal application was made to rely on it 3 days before the hearing of the appeal as required by Order 10 rule 1 of the rules of this Court. To this objection, learned Counsel to the Respondent could not provide any ready answer, and having so found himself boxed into his own corner, he, without much ado withdrew all the arguments and submissions on the notice of preliminary objection of pages 2 to 3 of his brief of argument. In view of this scenario, all the arguments of the Respondent seeking to challenge the competence of the grounds of appeal by way of a preliminary objection, are hereby discountenanced and struck out for being an abuse of Process.
The coast now clear, respective learned Counsel proceeded to identify, adopt and rely on their respective briefs of argument. Learned Counsel to the Appellant urged on the Court to allow the appeal and to set aside all the findings of the lower Court made in favour of the claim of the Respondent in paragraph 19 of her Statement of claim. On his own part, learned Counsel to the Respondent urged on the Court to dismiss the appeal and affirm the judgment of the lower Court.
I have carefully considered the 4 issues formulated by learned Counsel to the Appellant against the only 2 issues formulated by learned Counsel to the Respondent. In my view his issue 4 appears to be one and the same thing with the 2 issues argued by the Respondent. To that extent, I will start the determination of this appeal by considering the submissions and arguments of learned Counsel to the Appellant on his issue no 4.
In opening his arguments on this issue in Paragraph 7.0 on page 29 of his brief of argument learned Counsel was bold to say that the decision of the lower Court granting all the reliefs sought by the Plaintiff/Respondent was against the weight of evidence. While referring to S. 43 of the Benue State Administration of Estates Law, 1988, learned Counsel explained that by virtue of the conveyance of the 3 plots of land to the mortgagee, ownership of all such mortgaged lands is vested on the Appellant, as the mortgagee and all the amount of the outstanding debt secured on the mortgage was payable by the estate of the deceased husband of the Respondent. While adopting his arguments on issues 1, 2 and 3 in paragraph 7.2 learned Counsel argued that the non-joinder of the Gboko Local Government Council in the suit before the lower Court was against the provisions of the Land Use Act 1978. According to learned Counsel, the Local Government had granted consent and that overrides any other consent, including that of the Respondent. He referred to S. 21(1) (b) of the Land Use Act and the case of AJILO V. SAVANNAH BANK LTD (1989) NWLR (PT. 97) 305 and submitted that the absence of consent by the Respondent to the mortgage would not operate to vitiate it.
Going into the evidence before the lower Court, learned Counsel explained that when a search was conducted of the lands registry no letters of administration with respect to the same lands had been filed and this much, according to learned Counsel, was admitted by the Respondent. Added to this, learned Counsel also pointed out that the grant of the letters of administration was not published in the Gazette and no evidence was called from the Probate Registry of the Benue State High Court. He, upon this, argued that the evidence in Exhibits A and B was speculative and the lower Court was wrong to have heavily relied on same to make findings against the Appellant. Learned Counsel also argued that the theft of the 3 certificates of occupancy was never proved and no report of the theft was made to the Police before the commencement of this action, and therefore such could not have affected the validity of the mortgage transaction. It is also the opinion of learned Counsel that the Respondent knew of the existence of the mortgage on one of the lands when she stopped paying ground rent on same in 1996 and for the remaining 2 she became aware and similarly stopped paying ground rent in the year 2000. According to learned Counsel, this stoppage of payment of rent was an acknowledgement of the mortgage and therefore the granting of her reliefs by the lower Court was wrong and erroneous.
In concluding his arguments, learned Counsel referred to the case of MOGAJI V. CADBURY NIG. LTD (1985) in urging this Court to set aside the judgment of the lower Court because the consent to the mortgage was binding on the estate covered by the 3 certificates of occupancy.
In his response, learned Counsel to the Respondent began by focusing and highlighting some of the undisputed facts and the evidence that was brought to bear to establish them as such. While doing this, learned Counsel also underscored the factual basis of the claim of the Respondent of the lower Court. According to learned Counsel by virtue of Exhibits A and B, the Respondent convinced the lower Court that she had the sole authority to control and manage the 3 plots of land of her deceased husband which were unlawfully mortgaged to the Appellant by one of her children. Learned Counsel pointed out that the documents of title to the mortgaged lands were unlawfully procured by her son when he broke into her cupboard of her family home in Anambra State. It was with these unlawfully procured documents that the son of the Respondent secured a loan with the Appellant bank without her consent.
In a further effort learned Counsel emphasized and commented on the evidence leading to some crucial findings at the lower Court, more particularly against the 1st Defendant, but who is not a party in this appeal. While referring to the position of the 1st Defendant, learned Counsel identified him as being of the centre of the dispute, and even though he filed a Defence to the action of his mother and Respondent herein he failed to give evidence in support of his pleadings.
Learned Counsel pointed out that learned Counsel to the 1st Defendant had told the lower Court point blank that the 1st Defendant did not intend to defend the action in suit no. GHC/49/2003. For a confirmation of this Position, learned Counsel to the Respondent herein drew the attention of this Court to lines 12-13 of page 91 of the record of appeal. While referring to the case of NGILARI V. MOTHER CAT LTD (1999) 12 SCNJ 107 and AJUWON V. AKANNI (1993) 12 SCNJ 32 at 51 learned Counsel submitted that the findings of the learned Trial Judge at pages 113 – 114 of the record that the evidence adduced by the Respondent in support of her claim was unchallenged and was right to have believed and acted on same in upholding her claims. Also, by virtue of Exhibits A and B, learned Counsel suggested that, the 1st Defendant had no interest or title to the said 3 plots of land to pass to the 2nd Defendant/Appellant by way of a valid mortgage transaction. He then added that since it was the Respondent who had the sole power of control and management over the mortgaged lands and there was no evidence that she authorized any person to enter into any transaction in relation to the said lands, the findings of the lower Court of pages 114 to 119 cannot be faulted on the basis of the legal principle expressed in the latin maxim of “Nemo dat quod non hobeat” – you cannot give that which you do not have. Related to this issue, learned Counsel drew the attention of this Court to the case of OGUMA ASSOC. CO. LTD V. IBWA LTD (1988) 3SCNJ 13 and argued that because of the failure of the 1st Defendant to give evidence in support of his pleadings, all the material allegations made against him remain admitted and unchallenged and needed no further than minimal proof to warrant the findings of the lower Court at pages 116-117 of the record. Upon all these, learned Counsel submitted and urged the Court to so hold that the lower Court evaluated the evidence of both parties before it, made correct findings on some and correctly applied the law in arriving at its decision. So much of the 2nd issue argued by learned Counsel was with respect to the findings of the lower Court on the counterclaim. Because, this appeal is not about the counter claim at all, I do not see any need to go into the details of those arguments and submissions of learned Counsel to the Respondent. In fact, without any mincing of words, all such arguments on counterclaim are liable, in the circumstance of this appeal, to be discountenanced and I hereby discountenance them for being totally irrelevant and unhelpful to a proper determination of this appeal.
The pleadings of a party are the foundation of its claim. Every claim in a civil case must be properly founded and anchored on the pleadings.
In the case of the Plaintiff/Respondent herein, and for a proper resolution of this issue, a careful perusal of the relevant parts of the Statement of claim and the evidence adduced in support of same will be helpful for the purpose of this exercise, I consider paragraphs 3, 4, 5, 6, 7, 11, 12, 13 and 14 to be relevant. I hereby reproduce them thus:-
3. Sometimes ago the husband of the Plaintiff Benedict Ezeiru acquired 3 separate plots of land in Gboko town known as Plots 2475, 2291 and 267.
4. The said Benedict Ezeiru developed all the 3 plots and was issued with Certificate of Occupancies in his own name.
5. The husband of the Plaintiff died on 23/4/1984 without making a will and thereafter the Plaintiff as the next of kin applied to the probate registry and was issued with letters of administration in her name in respect of the estates of her deceased husband. The said letter of administration dated 9/10/87 as well as a Certificate as to grant of estate and security dated 16/9/98 are hereby pleaded.
6. The Plaintiff as the administratess of the said estates was in custody and possession of the said 3 Certificates of Occupancies which she kept in her house.
7. Unknown to the Plaintiff, the 1st Defendant removed the said 3 Certificates of Occupancies in respect of plots 2475, 2291 and 267 without the consent and knowledge of the Plaintiff and used same to obtain a loan from the 2nd Defendant by offering the title deeds as security for repayment of the loan.
11. Plaintiff expressed her shock and informed the 2nd Defendant that:-
(i) She was the one in custody and possession of the said 3 title documents.
(ii) The letters of administration covering the 3 plots were in her name.
(iii) That she was not aware of the transaction between 1st and 2nd Defendant.
12. Plaintiff further aver that the 3 title documents were in the name of the Plaintiff’s deceased husband Benedict Ezeiru and not the 1st Defendant, and of no time prior to the grant of the loan did the 2nd Defendant inquire from the Plaintiff about the ownership of the 3 plots even though Plaintiff resides on one of the plots No.2475.
13. Thereafter the Plaintiff checked where the 3 Certificates of Occupancies were kept and discovered that they were not there and on inquiry the 1st Defendant admitted removing them without the knowledge of the Plaintiff and used some to obtain a loan from the 2nd Defendant.
14. Plaintiff avers that she did not authorize the 1st Defendant to mortgage the 3 plots and use the title deeds as security for repayment and that she was not aware of the transaction until the 24/3/2003. For the 2nd Defendant/Appellant, I find Paragraphs 4, 6 and 7 to be relevant. They are also reproduced thus:-
4. The 2nd Defendant contend that 1st Defendant represented to the 2nd Defendant that the three alleged plots allegedly acquired by his father in paragraph (3) of the Statement of claim were acquired in the name of 1st Defendant whose names are BENEDICT CHIJOKE EZEIRU which for short English name is Benedict Ezeiru.
6. The 2nd Defendant deny paragraph (5) of the Statement of claim and to the extent that…No Certificate of Marriage/Death of Benedict Ezeiru nor publication by the probate Registry in the Benue State Government Gazette was ever brought to the knowledge of the 2nd Defendant before and after the loan transactions with the 1st Defendant.
7. The 2nd Defendant in further answer to paragraph (5) avers that there is no evidence before the 2nd Defendant that the Plaintiff is the next of kin to the estate of Mr. Benedict Ezeiru over the alleged three plots of land. Strict proof will be required at the trial.
At the trial, the Respondent as PW1 testified as follows:-
“1st Defendant is my son. Benedict Ezeiru used to be my husband. He died on 23/4/84. I know plot of land No 2475, Gboko-East and plot No 2267 also in Gboko-East. All the plots were owned by my late husband. He developed the plots of land himself during his life time. He died intestate. I obtained letters of administration to manage the said plots of land.”
(See page 85 of record of appeal)
It was of this stage that Exhibits A and B were tendered and admitted in evidence without any objection by learned Counsel Miss Okulojo for the 1st Defendant and Mr. Igbarago for the 2nd Defendant/Appellant. Thereafter PW1 continued with her evidence thus: –
“My late husband had Certificates of Occupancy covering the three plots of land. I am in possession of them now. I came back from the market in March last year and I was informed that some officials from the 2nd Defendant came to my house looking for me. I went to them where I was told 1st Defendant took a loan from them and secured the loan with the three plots of land. I was taken back because I had the documents kept in our village at home at Ezeifi-Aguata because of the riot in Gboko at the material time for the safety of the documents.
When I went back to my village I discovered that the documents of title of the three plots of land were removed, when I came back I asked 1st Defendant about it and he confirmed that he took the documents and gave it to the 2nd Defendant as collateral security for the loan the 2nd Defendant gave him, without my knowledge … the plots of land do not belong to 1st Defendant.”
(See pages 85-86 of record of appeal)
Exhibits C and D were also tendered and admitted in evidence. Learned Counsel to the Appellant objected to the admissibility of Exh. D, but was overruled, rightly in my humble view, by the lower Court.
In the course of cross-examination by learned Counsel Mr. Adebayo for the 1st Defendant, PW1 said:-
“It is wrong to say I connived with the 1st Defendant to borrow money from the 2nd Defendant.”
(See page 88)
The cross-examination of PW1 by learned Counsel to the 2nd Defendant/Appellant was very rigorous and extensive. Apart from giving more details, her story remained thesame that the 1st Defendant did not own the plots of land with which he secured the loan and that she did not permit him to use the title deeds for the mortgage. She also remained firm that the 1st Defendant stole the documents and she did not benefit or share with the 1st Defendant from the money he borrowed from the Appellant bank.
The learned Trial Judge considered Exhibits A and B as well as what appeared to be the uncontroverted evidence of PW1 and observed that:-
“Being a surviving spouse of the deceased husband, Plaintiff, in addition to the letters of Administration in Exhibits A and B giving her authority to administer the properties contained therein, is also a beneficiary of the estate left behind by the deceased by virtue of S. 49 of the Administration of Estates Edict (or Law) 1988 read along with clause 2 of the 2nd schedule thereto. She is thus a beneficiary together with the 1st Defendant … and her other children of the marriage … her dual status in relation to the estate … makes her eminently qualified to protect the estate… (page 115)
It is against the backdrop of this observation that the learned Trial Judge went further to consider the meaning and effect of Sections 40, 43 and 49 of the Administration of Estates. Law 1988, and held that for any mortgage affecting all the lands set out in Exhibits A and B, the consent of the Plaintiff must be sought and obtained, irrespective of whether the mortgagor is also a co-beneficiary of the estate, as in the case of the 1st Defendant in the instant matter. In his effort to find answer to the question whether the 1st Defendant sought for and obtained the requisite consent of the Plaintiff /Respondent the learned Trial Judge, found as fully established that the 1st Defendant removed and uttered the land documents unlawfully and without authority. This fact was held to have been fully established because the 1st Defendant failed to lead evidence to challenge this fact and also the Appellant having failed to lead credible evidence to the contrary.
I have carefully considered the entire proceedings in this appeal and all the steps taken by the learned Trial Judge, including the decided cases and statutory provisions considered. I am fully satisfied that all the findings are correct and properly made on the pleadings and evidence of the parties. The evaluation of the evidence on record, particularly Exhibits A and B and their legal effect could not have been better. To the extent that all the findings were made on the pleadings and evidence they are not perverse, and therefore this Court cannot and should not interfere with those findings. I am also fully satisfied that the most relevant provisions of the law were considered and properly applied to the facts and circumstances of this matter.
I therefore resolve this issue against the Appellant.
With this issue having now been resolved against the Appellant, I am fully satisfied that it has fully determined this appeal. I do not see any need to decide on issues 1, 2 and 3 as formulated by in the Appellant’s brief of argument.
This appeal is hereby dismissed the decision of the Benue State High Court, Gboko Division in suit No. GHC/49/2003 delivered on 18th January, 2005 per Ikyegh, J. is hereby affirmed. I order for N30, 000 costs against the Appellant for the Respondent.
KUDIRAT M. O. KEKERE-EKUN, J.C.A: My learned brother, A.A.B: Gumel, JCA has painstakingly considered and adequately resolved the issue in contention in this appeal.
The law is settled that where a trial court has discharged its primary duty of evaluating the evidence and making findings of fact thereof, an appellant court would be reluctant to interfere with the decision arrived at unless the appellant can show that the evaluation and findings of fact were not based on a proper and dispassionate appraisal of the evidence led in support of each party’s case or where the findings are perverse, or on the face of the record justice has not been done in the case. See: Saleh V. B.O.N. Ltd (2006) 6 NWLR (976) 316 @ 329 – 30 H – A; Agbaje V. Fashola (2008) 6 NWLR (1082) 90 @ 153 B – E; Mafimisebi V. Ehuwa (2007) ALL FELR (351) 502 @ 605 G.
In the instant appeal the appellant has failed woefully to show that the findings of the learned trial Judge are perverse. I decline to interfere therewith. I agree with my learned brother in the lead judgment that this appeal is unmeritorious. I dismiss it in its entirety, I affirm the decision of the Benue State High Court, Gboko Division in Suit No: GHC/49/2003 delivered on 18/01/2005 and abide by the order on costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the judgment of my learned brother Gumel, JCA, just delivered. I agree entirely with the reasoning and conclusion therein which I adopt as mine. I abide by the consequential orders.
Appearances
MR. C.O. ALECHENUFor Appellant
AND
MISS. D. AGBAFor Respondent
