REMIGIUS OGIDI MADUKA v. FIDELIA NWOSU
(2013)LCN/6053(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of March, 2013
CA/PH/380/2006
RATIO
“The law enjoins the mortgagee to always act in good faith. In the case of ACB Ltd v. Ihekwoaba (2003) 16 NWLR at 253 the Supreme Court held as follows: “The only obligation incumbent on a mortgagee selling under a power of sale is that he should act in good faith. Whether selling under an express or statutory power, he may generally conduct the sale in such manner as he may think most conducive to his own benefit, unless the deed contains any restrictions as to the mode of exercising the power, provided he acts bona fide and observes reasonable precautions to obtain not the “best price” but “a proper price” PER EKPE, J.C.A
“The law of sale by auction protects the purchaser and that is the basis of the principle of law that a mortgagee’s right is essentially in damages. The law will always have sympathy with the purchaser who bought bona fide as bad faith or mala fide destroys a mortgage sale. However, irregularities arising from auction sale by way of lack of statutory notice to the mortgagor and sale of the property at a low price may not vitiate the sale of a mortgaged property for keeps. The said property had passed in the sale from the mortgagee to the purchaser. See the case of OKONKWO V. CCB NIG. PLC (2003) 8 NWLR PT. 822 347 AT 358.” PER EKPE, J.C.A.
JUSTICES
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HARUNA S. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
REMIGIUS OGIDI MADUKA Appellant(s)
AND
FIDELIA NWOSU
(Sued as Administratrix of Geoffrey Nwosu) Respondent(s)
PHILOMENA MBUA EKPE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of A. B. Njemanze, Judge of the High Court of Imo State sitting at Orlu in Imo State of Nigeria, and delivered on the 27th day of April, 2006.
The judgment was in favour of the Respondent who was the defendant in the trial court against the Appellant who was the plaintiff at that court. The plaintiff’s claim at the trial court is as follows:
(a) A declaration that the plaintiff is a bona-fide assignee, and entitled to the possession of the piece or parcel of land, and the building/s thereon, situate and lying at Umuna in Orlu Local Government Area within the Orlu Judicial Division known as and called “ALA UZOULO” at No. 13 Umuduruaku Street, Umuna.
(b) A declaration that the piece or parcel of land, and the building/s thereon, situate and lying at Umuna in Orlu Local Government Area within the Orlu Judicial Division known as and called ALA UZOULO” or No. 13 Umuduruaku Street, Umuna is not part of the estate of Geoffrey Nwosu (deceased) or
(c) A declaration that the purported alienation of the said property by Nathaniel Ugwueze (deceased) in favour of Geoffrey Nwosu (deceased), while the property was lawfully mortgaged, is null and void and to no effect.
(d) An order for an account of the rent and other income received by the defendant in respect of the property from 22nd day of December 1994, until possession is returned to the plaintiff, and the sum of N50,000.00 (fifty thousand naira) as general damages for trespass.
(e) An Injunction restraining the defendant by herself, her agents and servants from interfering with the plaintiffs peaceful and quiet ownership/occupation of the property or holding out the property as part of the estate of Geoffrey Nwosu (deceased).
The defendant at the trial court joined issues with the plaintiff and the matter proceeded to trial whereby the learned trial Judge found in favour of the Defendant/Respondent.
Dissatisfied with the judgment of the trial court, the plaintiff, now Appellant filed a Notice of Appeal containing five grounds of appeal found at pages 87 – 92 of the record. The grounds of appeal without their particulars are as follows:
Ground One
The learned trial Judge erred in law when he held thus.
“I am of the opinion and I so hold that no public auction sale of the property at No. 13 Umuduruaku Street, Umuna Orlu ever took place. I am of this view because the PW1 in his evidence said that “after the sale, he went to the property the following day and informed the tenants of the sale of the property. That the tenants did not agree with him and so he left. He told the tenants to carry out an investigation and inform him of the outcome of their investigation”. But the DW1 on his part denied that the property was on mortgage and that it was sold by a public auction to the plaintiff. I believe the evidence of the DW1 that no public auction sale of the property ever took place”.
Ground Two
The learned trial Judge erred in law by his failure to determine first whether the property in dispute was a subject of mortgage or not before determining the regularity of the auction sale.
Ground Three
The learned trial Judge erred in law by holding thus:
“In the final analysis, I hold that the plaintiff has failed to prove his case on the balance of probabilities. The case therefore ought to be dismissed and it is hereby DISMISSED”.
Ground Four
The learned trial court erred in law in holding thus:
“It is to be noted that Exhibits H and H1 were published on 21.6.94 and the date of the public auction sale was given in exhibit H1 as 22.6.94. It is evidently clear that exhibit H1 did not comply with the provisions of Section 19 of the Auctioneers Law of Eastern Nigeria Applicable to Imo State”.
Ground Five
The judgment is against the weight of evidence.
The brief facts of the case are as follows:
The original plaintiff: KENNEDY NATHANIEL, UGWUEZE AKA NATHANIEL, NNANNA UGWUEZE, was the owner of the property in dispute known as Ala Uzoulo of No. 13 Umuduruaku Street, Urnuna in Orlu Local Government Area of Imo State.
The said Kennedy Nathaniel Ugwueze then mortgaged this property in dispute to African Continental Bank, PLC in 1982 for a loan to carry on his business. When he failed to service the loan, the bank proceeded to sell the property under mortgage in an auction sale and the property was finally purchased by the plaintiff in 1994 for the sum of N525, 000.00 at the public auction sale. A.C.B Plc then assigned the property to the plaintiff.
The Defendant/Respondent on the other hand claims that the said property was sold to him in 1989 by the same Nathaniel Nnanna Ugwueze.
The learned trial Judge after a protracted trial found in favour of the Defendant/Respondent hence this appeal.
The Appellant’s brief of argument was deemed filed on the 23rd day of November 2010 while the Respondent did not file any brief. The court then ordered that the appeal be heard based on the Appellant’s brief alone. The Appellant formulated two issues for determination using the Appellants grounds of appeal as follows:
“(A) Whether the property in dispute was a subject of mortgage by Nathaniel Nnanna Ugwueze or not (Grounds 1 and 2).
(B) Whether the plaintiff proved his case on the balance of probabilities. (Grounds 3, 4 and 5).”
This appeal shall therefore be determined based on the issues formulated in the appellant’s brief and the judgment of the trial court at pg. 68 of the record of appeal.
ISSUE NO. ONE
Whether the property in dispute was a subject of mortgage by Nathaniel Nnanna Ugwueze or not. This issue was culled from grounds one and two of the grounds of appeal.
It is the case of the appellant that in 1982 Nathaniel Nnanna Ugwueze borrowed money from African Continental bank and mortgaged his property through a deed of mortgage dated the 12th day of September 1982 which deed was duly registered as 60/60/241 in the Lands Registry, Owerri.
Learned counsel further submitted that the emphasis on the auction sale of the disputed property placed by the leaned trial Judge showed that the court failed to appreciate the main issues in contention in this case.
Learned counsel for the Appellant, P. U. Nnodum, Esq. in his submission traced the history of the plaintiffs case in the lower court, and concluded that failure of the borrower, i.e., Nathaniel Nnanna Ugwueze to repay the loan gave the bank the power to exercise its right of sale of the property which the bank did through a public auction sale after a Newspaper Publication of the sale for the sum of N525, 000.00 (Five hundred and twenty five thousand Naira, only).
Learned counsel further averred that on the 22nd day of December 1994 the bank i.e. African Continental Bank, PLC and the then plaintiff in the lower court executed a deed of assignment in relation to the property and obtained a statutory consent which was also registered as 59/59/91 in the Lands Registry at Owerri. That the deed of mortgage and the deed of assignment made by the Bank in favour of the plaintiff were tendered as exhibits C and D respectively. Learned counsel further opined that one of the main issues to have been determined by the trial court was whether or not Nathaniel Nnanna Ugwueze mortgaged the property in dispute to A.C.B. PLC. Also which of the parties in this case acquired a better title to the property.
Counsel again submitted that Nathaniel Nnanna Ugwueze trading under the name of KEN B RECO PHARMACEUTICAL CHEMISTS of No. 2 Alhaji Tijani Street, Orlu, Imo State mortgaged his property known as ALA UZOULO for a loan facility of N30,000.00 (Thirty Thousand Naira, only) which property was duly registered and also backed with the Governors consent.
Learned counsel further submitted that the law of sale by auction protects the person who bought in good faith. He then referred to the case of OKONKWO V. C.C.B. (NIG) PLC (2003) NWLR PT.822, 347 AT 423 para. E – G.
That either party in the court below pleaded or gave evidence to the effect that the purchase was fraudulent or that the property was bought in bad faith. Counsel also submitted that an allegation of fraud must be specifically pleaded, and further contended that as long as the mortgagee exercises his power of sale bona-fide for the purpose of realizing his debt without collusion with the purchaser, the court will not interfere even in a disadvantageous sale unless the price is so low as to connote fraud.
He then cited the case of A.C.B. LTD V. IHEKWOABA (2003) 16 NWLR PT 846, 269 Para. D – G., B.O.N. LTD V. MURU (1988) 2 NWLR, PT 536.
That in the instant case, no complaint has been made about the purchase of N525,000.00 for which the property was bought and also there has been no contention that the Plaintiff/Appellant colluded with the mortgagee.
Learned counsel further submitted that the title of the purchase shall not be impeached even if the property was bought under a wrongful or irregular exercise of power of sale. See IBIYEYE V. FOJULE (2006) ALL FWLR, PT 302 156 AT 174 H – A.
That the mortgagor, Nathaniel Nnanna Ugwueze had no right of sale of the property which was still under mortgage at the time of the purported sale to the then defendant. It is also the submission of the Appellant that the emphasis which the trial court placed on the auction sale was misconceived and that the prevalent issue to be determined at the time was; which of the parties in this case acquired a better title to the property since both parties traced their root of title to the same Nathaniel Nnanna Ugwueze.
Counsel submitted that right of sale of the mortgaged property lies with the bank, and that the said Nathaniel Ugwueze did not have the authority to dispose of the said property through any Power of Attorney dated 20th day of October 1989, when the property had already been mortgaged on the 12th day of September 1982. He then urged the court to resolve the issue in favour of the Appellant.
ISSUE NO. TWO
Whether the plaintiff proved his case on the Balance of probabilities. Learned counsel for the Appellant, P. U. Nnodum, Esq., again submitted that it was erroneous for the trial court to have held that the auction sale which was the root of title of the Appellant was not proved and that the sale itself was improper and not according to law.
Counsel further submitted that the Plaintiffs/Appellant’s root of title in this case is the Deed of Assignment (Exhibit ‘D’) and not the Public Auction Sale. He again referred to the case of A.C.B. LTD V. IHEKWOABA (supra) 270 paras. C. E and further stated that a titled document ought to be given to the purchaser of a mortgaged property. That the evidence of PW1 in the trial court in line with his pleadings was never impeached during cross examination. Learned counsel further referred to Exhibit ‘B’ which is the deed of mortgage and also Exhibit ‘C’ none of which were discredited at the trial court but rather that the trial court used the said exhibits to establish the identity of the property. In a further submission counsel established the fact that evidence was led at the court below to buttress the fact that the Respondent had been collecting rents on the said property from December 1994 to December 1996 at the rate of N800 monthly per flat and N108 monthly per month from January 1997 till date in the property comprising 6 flats.
Again, learned counsel stated that the plaintiff in the lower court had proved by EXHIBIT ‘D’ and other pieces of evidence that he is the bonafide assignee entitled to the possession of the property in dispute. Counsel further reiterated the fact that the disputed property known as UZOULO was the same property which had earlier been mortgaged by Nathaniel Nnanna Ugwueze as per EXHIBITS ‘B’ and ‘C’, and further submitted that since the reliefs sought had been proved by undisputed evidence, it therefore became imperative for the court to restrain the Defendant/Respondent from interfering with the rights of the Plaintiff/Appellant.
Counsel also submitted that one of the methods of proving title to land/property is by production of title documents to such property. See OFONDU V. NIWEIGHA (1993) 2 NWLR PT 265,268 Para. G.
He then submitted conclusively that by virtue of S. 21 (1) of the Conveyancing Act 1881 which is a statute of general application, applicable in Imo State, where a conveyance made in professed exercise shall not be impeached on the ground that the sale was improper and irregular.
Counsel further concluded that the court below failed to appreciate the facts involved in the case before him and thus held that the plaintiff had failed to prove his case on the balance of probabilities. He then urged this court to resolve the 2nd issue in his favour.
From the records it is revealed that the Respondent did not file any brief of argument in this appeal even though he had been properly served and there is adequate proof of such service in the court’s file. The Appellant had earlier filed an application for leave of this court to hear the appeal based on the Appellant’s brief alone. That motion was filed on the 2nd day of February 2011 and was duly granted on the 22nd day of February 2011. The Respondent however did not react in any way to the said motion hence the court’s decision to hear this appeal as per the Applicants motion so granted.
The action of the Respondent in not reacting to the said motion which was duly served on him simply points to the fact that the Respondent has thus conceded to this appeal. Nevertheless it is imperative for this court to consider other areas of this appeal particularly the judgment of the court below from which this appeal emanates and also certain aspects of the defendants case in the lower court in order to arrive at a just determination of this appeal.
Starting with issue No. 1, in the Appellants brief of argument whether the property in dispute was a subject of mortgage by Nathaniel Nnanna Ugwueze or not, the learned trial Judge found as a fact that the identity of the land is not in dispute. He further stated that both parties in their pleadings and oral testimonies all referred to the property in dispute as No. 13 Umuduruaku Street, Umuna Orlu. Also that the numbers on the Survey beacons shown in the two survey plans attached to Exhibits B and C tendered in evidence in the court below by both parties correspond.
Another factor which both parties in the lower court are in tandem is the fact that Nathaniel Nnanna Ugwueze is one and the same person as Kennedy Nathaniel Ugwueze who from the facts available in the record, and also as per ‘C’ and ‘D’, had mortgaged his property called” ALA UZOULO” and the building on it known as No. 13 Umuduruaku Street Umuna in Orlu Local Government Area to African Continental Bank. The Appellant has stated that the deed of mortgage is dated 12th day of September, 1982 and registered as 60/60/241 at the Lands Registry in Owerri.
The Respondent on the other hand who was the defendant in the lower court had claimed that the said deed of mortgage is a forged document. The law is quite clear on the issue of any allegation of fraud. It has to be specifically pleaded and proved beyond reasonable doubt.
In this case, the defendant had denied the fact that the said deed of mortgage is genuine. He did not plead any other facts to buttress that allegation. Simply claiming that a document was fraudulently obtained and nothing more does not satisfy the proof of fraud. This court will not engage in a voyage of discovery to fish out facts which have not been presented before the court. The burden can only shift to the other party when there is proof of such facts and supported by evidence. It has been argued by the Appellant’s counsel that Nathaniel Nnanna Ugwueze had failed to service his loan which he had obtained from the Bank by mortgaging his property at No. 13 Umuduruaku Street Umunna in Orlu Local Government Area. The Bank however exercised its right of sale of the said property through a public auction after a Newspaper Publication of the sale. The trial court made heavy weather of the fact that the purported sale was irregular and unlawful and thus dismissed the plaintiff’s case on that premise. In his words:
“The purpose of the Provision of Section 19 of the Auctioneers Law Cap 12 of the Laws of Eastern Nigeria 1963 applicable to Imo State is for the mortgagee to give adequate notice to the public of the proposed sale. It is not a notice intended to be given to the Mortgagor. It is to ensure that a true public auction, where everyone interested in the property may have the opportunity to bid for it, is conducted for a fair deal, devoid of unconscionable bargain through connivance or collusion. See, OKONKWO V. C.C.B. (NIG) PLC (2003) 8 NWLR (PT. 822) 347.
In this case the plaintiff did not give any evidence as to who conducted the public auction sale, where and when the public auction sale took place”.
Before I delve into the issue of sale of the said property, I must first of all clear the air as to who the rightful owner of the said property is. As I had stated earlier the identity of the said property was never a subject of dispute. Both parties in the lower court had traced their root of title to the same person by name Nathaniel Nnanna Ugwueze or Kennedy Nathaniel Ugwueze. The plaintiff had claimed that the said Nathaniel Nnanna Ugwueze mortgaged the property in dispute which he later bought at a public auction. The defendant on the other hand claimed that the said Nathaniel Nnanna Ugwueze donated a Power of Attorney in respect of his statutory Certificate of Occupancy to her husband. The plaintiff tendered a deed or mortgage exhibit C dated the 12th day of September 1982 and Registered as instrument No. 60/60/241 in the Lands Registry Owerri. The defendant also claimed that the same Nathaniel Nnanna Ugwueze had donated a Power of Attorney to the husband of the Defendant/Respondent and the Power of Attorney is dated the 20th day of October, 1989.
From the facts so far adduced it is clear that the owner of the property Nathaniel Nnanna Ugwueze had originally bought the said property from one Marcellinus Nnadi Ikebundu and relied on a deed of conveyance. In 1982, the said Nathaniel Ugwueze mortgaged the property to African Continental Bank for a loan of N30,000.00 (thirty thousand Naira) to carry on with his pharmaceutical business of buying and selling drugs. On failure to service the loan, the Bank then exercised its right of sale and disposed of the property by public auction. There is however no gainsaying the fact that Nathaniel Nnanna Ugwueze who mortgaged his property of No. 13 Umuduruaku Orlu also known as ALA UZOULO to the Bank also sold or donated a Power of Attorney to the defendant’s/Respondent’s husband in 1989. It is then obvious that the latter transaction was carried out during the subsistence of the mortgage and therefore Nathaniel Ugwueze had no property to sell to the Defendant/Respondent in 1989 while the mortgage with the Bank was still subsisting. The adage “NEMO DAT QUOD NON HABET” is quite relevant here as the said Nathaniel Ugwueze was not in a position to sell any property as he had none to dispose of.
The next point to be considered is whether the auction sale was proper in law. The law enjoins the mortgagee to always act in good faith. In the case of ACB Ltd v. Ihekwoaba (2003) 16 NWLR at 253 the
Supreme Court held as follows:
“The only obligation incumbent on a mortgagee selling under a power of sale is that he should act in good faith. Whether selling under an express or statutory power, he may generally conduct the sale in such manner as he may think most conducive to his own benefit, unless the deed contains any restrictions as to the mode of exercising the power, provided he acts bona fide and observes reasonable precautions to obtain not the “best price” but “a proper price”.In the case at hand, there was no evidence of sale at undervalue. The appellant bought the property for the sum of N525,000.00 (Five hundred and twenty five thousand Naira). The learned trial Judge had held that there was non compliance with S. 19 of the Auctioneers Law of Eastern Nigeria applicable in Imo State.
However in the case of IGIYEYE V. FOJULE (2006) All FWLR PT. 302 156 AT 160 the Supreme Court clearly stated thus:
“The basis of all dealings ought to be good faith; so, more especially in these transactions, where the public are brought upon a confidence that the articles set up to sale will be disposed of to the highest real bidder.’
I have held that Section 19 of the Auctioneers Law was not complied with. The effect of this would have been perhaps that an important condition for, what I might call, a popular auction sale not having been met, the sale would be held invalid. But a provision of another statute, Section 21(1) of the Conveyancing Act, 1881 applicable in Abia State, has interplayed with Section 19 of the Auctioneers Law. It provides:
‘Where a conveyance is made in professed exercise of the power of sale conferred by this Act, the title of the purchaser shall not be impeached on the grounds that no case has arisen to authorize the sale, or that due notice was not given or that the power was otherwise improperly or irregularly exercised, but any person damnified by all unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.’
The above is however to protect a bona fide purchaser who merely bought such property under irregular circumstances. Reference was also made to the case of SANUSI V. DANIEL (1956) SCNLR 288 where the Federal Supreme Court held thus:
“The Appellants complaint is against an irregular exercise of the power of sale on the grounds that there was a contravention of Section 19(1) of the Sale by Auction Ordinance. It seems to me that the title of the 2nd respondent cannot be impeached since the property was conveyed to him and that the appellant’s remedy is in damages against the 1st respondent as provided by section 21(2) of the Conveyancing Act, 1881′. Section 19(1) of the Sale by Auction Ordinance.”
I am of the opinion that the title of the Appellant cannot be impeached since the property was purchased in good faith following the auction sale. Nothing has been done by the Appellant to attract the intervention of equity to deny him the right to the property. The law of sale by auction protects the purchaser and that is the basis of the principle of law that a mortgagee’s right is essentially in damages. The law will always have sympathy with the purchaser who bought bona fide as bad faith or mala fide destroys a mortgage sale. However, irregularities arising from auction sale by way of lack of statutory notice to the mortgagor and sale of the property at a low price may not vitiate the sale of a mortgaged property for keeps. The said property had passed in the sale from the mortgagee to the purchaser. See the case of OKONKWO V. CCB NIG. PLC (2003) 8 NWLR PT. 822 347 AT 358.From the totality of all of the above, I find that the property in dispute known as ALA UZOULO at No. 13 Umuduruaky Street Umunna, Orlu was indeed a subject of mortgage by the mortgagor Nathaniel Nnanna Ugwueze through a deed of mortgage dated the 12th day of September 1982 and duly registered as 60/60/241 in the Lands Registry, Owerri in Imo State. Issue No. One is hereby resolved in favour of the Appellant.
Issue No. Two is whether the plaintiff proved his case on the balance of probabilities. It has been argued by the Appellant that the plaintiff’s root of title is the Deed of Assignment which is Exhibit D. That fact was never contravened or impeached during cross examination in the trial court. There was also exhibit ‘B’ and exhibit ‘C’ which are the Deed of Conveyance and the deed of mortgage respectively. These pieces of evidence were also uncontradicted at the trial and were used to properly identify the property.
The defence also admitted the fact that they had been collecting rents from the said property from 1994 till date at various rates in line with the plaintiff’s reliefs. Again the fact that there was a mortgage transaction between Nathaniel Nnanna Ugwueze and A.C.B. Ltd in 1982 was not successfully disloged by the Defendant/Respondent. The defence merely stated that the Deed of mortgage was fraudulent and proffered no further evidence to buttress that fact. The plaintiff had on the other hand proved by EXHIBIT D and other pieces of evidence that he is the bona fide assignee and entitled to possession of the disputed property. There are however two pieces of evidence that have helped to sway the mind of this court in favour of the Appellant. The first is the undisputed assertion that the said Nathaniel Nnanna Ugwueze bought the land in question from Nnadi Ikebundu. The second is that in 1982 Nathaniel Nnanna Ugwueze mortgaged the land and building to ACB Ltd in return for a loan facility of N30, 000.00.
In paragraph 5 of the recital in the Deed of Assignment – Exhibit D. It has been clearly stated that the plaintiff purchased the property in dispute at a public auction sale on the 22nd day of June 1994 at a price of N525,000.00. The plaintiff has therefore proved his case on the balance of probabilities.
On the whole, it is my considered view that this appeal has merit and is hereby allowed. The judgment of the trial court is accordingly set aside and the claim of the plaintiff in the lower court is upheld.
N50,000.00 cost is awarded in favour of the Appellant
UWANI MUSA ABBA AJI, J.C.A (PRESIDING): I have had a preview of the judgment of learned brother P. M. Ekpe, JCA, just delivered.
I entirely agree with the reasoning and the conclusions reached therein that the appeal is meritorious and ought to be allowed.
The facts are not in contention. In 1982 Nathaniel Nnanna Ugwueze borrowed money from African Continental Bank and in consideration mortgaged his property through a deed of mortgage dated 12th/9/1982 duly registered as 60/60/241 in the lands Registry, Owerri Exhibit “C”. Following the failure of the borrower Nathaniel Nnanna Ugwueze to repay the loan, the bank exercised its right of sale of the properly through a public auction sale after a Newspaper publication of the sale. The Appellant purchased the property at the cost of Five Hundred and Twenty Five Thousand Naira (N525,000.00) only.
The Law of sale by auction protects the purchaser for value in good faith. This is the basis for the principle of Law that a mortgagor’s right is essentially in damages. See Okonkwo vs. C. C. B (Nig.) Plc (2003) 8 NWLR (PT 822) 423. The law has an important qualification and it is that the purchaser must have bought the mortgaged property in good faith that is bona-fide and not in bad faith that mala fide. Bad faith taints or destroys a mortgage sale and therefore the property in the sale.
In the instant appeal, there was neither pleading nor evidence by the Respondent to prove that Exhibit “C” was fraudulently obtained or in bad faith. The price of N525,000.00 for which the Appellant bought could not be said to be too low or that he colluded with the mortgagee. See A.C.B. Ltd. v. Ihekwoba (2003) 16 NWLR (pt. 846) 269.
The defence by the Respondent was a denial of the mortgage transaction over the disputed property. The mortgagor, Nathaniel Nnanna Ugwueze could not have sold the properly to the Respondent’s husband through a Power of Attorney dated 20/10/1989 and registered as No, 2 page 2 in volume 731 of the Lands Registry office, Owerri Imo State when the said property was mortgaged on the 12/9/1982. This negates the principle of nemo dat quod non hobet, as no one gives what he does not have. If the Learned trial Judge had properly evaluated the evidence adduced by the Appellant he would not have come to the same conclusion he did that there was no public auction sale of the property in dispute and that the Appellant has not proved same.
I therefore agree with my learned brother that this appeal is meritorious. It is also allowed by me. I endorse the consequential order as to costs.
HARUNA SIMON TSAMMANI, J.C.A: I had the advantage of reading before now, the judgment delivered by my Learned brother PHILOMENA M. EKPE; JCA.
My Learned brother admirably considered and resolved the pertinent issues that arose for determination in this appeal. I have no hesitation in agreeing with him that the appeal has merit and should be allowed.
Consequently, I hereby set aside the judgment of the lower Court and uphold the claim of the Appellant in the Court below.
I abide by the consequential order made therein.
Appearances
P.U. Nnodum, Esq, with I.B.C. Egole, Esq.For Appellant
AND
For Respondent
