ACCESS BANK PLC v. DURA TRUST CONTRACTORS LIMITED & ANOR
(2019)LCN/12716(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of February, 2019
CA/A/306/2014
RATIO
CONTRACT: WHETHER THE COURT CAN MAKE CONTRACT FOR PARTIES
“The Court cannot make a contract for the parties or rewrite the one they have made for themselves. Accordingly, words in a document must first be given their simple and ordinary meaning and under no circumstance may new or additional words be imported into the text unless the document would be by the absence of that which is imported, impossible to understand.” The Court cannot make a contract for the parties or rewrite the one they have made for themselves. Accordingly, words in a document must first be given their simple and ordinary meaning and under no circumstance may new or additional words be imported into the text unless the document would be by the absence of that which is imported, impossible to understand.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES:
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
ACCESS BANK PLC – Appellant(s)
AND
1. DURA TRUST CONTRACTORS LTD
2. ALHAJI ABDULLAHI ADAMU – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment):
This appeal No. CA/A/306/2014 was commenced on 9-1-2014 when the appellant herein filed a notice of appeal against the judgment of the High Court of Niger State at Suleja delivered on 5-12-2013 in Suit No. NSHC/SD/33/2011 by H. I. Abdulmalik J. The notice of appeal contains 3 grounds of appeal.
The appellant and respondents filed, exchanged and adopted their briefs as follows – appellants brief, respondents brief and appellants reply brief.
The Appellants brief raised two issues for determination as follows-
1. Whether from the pleadings, oral and documentary evidence before the trial Court, it was right to have entered judgment in favour of the plaintiffs and dismissed the defendants counter claim.
2. Whether the learned trial Court was right in admitting Exhibit 7, which is a public document that was not also pleaded and rely on it in its judgment of 5th December, 2013.”
The respondents brief raised two issues for determination as follows-
1. Whether the trial Court was right when it entered judgment in favour of the Plaintiffs/Respondents and by dismissing the counter claim on the pleadings and evidence before it.
2. Whether the judgment of the Court below was affected by Exhibit 7.
I will determine this appeal on the basis of the issues for determination raised in the appellants brief.
Let me start with issue No. 2 which asks- Whether the learned trial Court was right in admitting Exhibit 7, which is a public document that was not also pleaded and rely on it in its judgment of 5th December, 2013.”
I have carefully read and considered the arguments of both sides on this issue.
The part of the judgment complained against under this issue reads thusly- I have also taken cognizance of the fact that Exhibit 7 is a public document and by virtue of Section 142 of the Evidence Act, only a Certify True Copy is admissible. But even in the absence of it, paragraphs 7 and 8 of the statement of claim were not specifically traversed on the fact that the property belonged to the heirs of Adamu Kaduna, that the Administrator consented to the use of the Certificate of Occupancy and Paragraphs 4, 5 and 10 A of the Defence to Counter Claim and Reply to statement of defence were also not traversed. In addition, the defence witness admitted seeing the document executed by the Administrator of the Estate in relation to the facility granted to Dura Trust.
The argument of Learned Counsel for the appellant that the letters of Administration (Exhibit 7) was not specifically pleaded is incompetent since there is no ground of this appeal challenging or complaining against the 9-4-2013 decision of the trial Court while ruling on the admissibility of the said Letters of Administration, on the issue of whether the said document was pleaded on it. The decision of the trial Court reads thusly-
Court:- By virtue of paragraphs 6 and 10(a) of the reply to the statement of defence and counterclaim, the plaintiff pleaded that Alh. Gambo Mohammed is the Administrator of Estate of Adamu Kaduna the document sought to be tendered to establish that he is the Administrator of the estate therefore becomes relevant. The objection is over ruled, the document is admitted in evidence and marked Exhibit 7.
The trial Court clearly decided that since the fact that Alhaji Gambo Mohammed is the Administrator of the Estate of Adamu Kaduna was pleaded, the letters of Administration being the evidence by which that fact can be proven is admissible. It is obvious that this decision applied the principle that it is facts that are pleaded and not the evidence by which those facts can be proved. See Auto Import Export v. Adebayo (2005) LPELR 642 (SC) and Oviawe v. I.R.P (Nig) Ltd (1997) LPELR-2837 (SC). Without a ground of this appeal complaining that the 9-4-2013 decision of the trial Court that the Letters of Administration is the evidence to establish the pleaded fact that Alhaji Gambo Mohammed is the Administrator of the estate of Adamu Kaduna, the appellant cannot competently contend in this appeal that the said Letters of Administration were not pleaded. By not appealing against that decision, the appellant accepted it as correct, conclusive and binding upon it and therefore cannot argue contrary to it. See Iyoho v. Effiong (2007) 4 SC (Pt. 111) 90 and Dabup v. Kolo (1993) 12 SCNJ 1.
The complaint in ground 3 of this appeal that the trial Court erred in law in admitting Exhibit 7 in evidence and acting on it in its judgment, issue No. 2 in the appellants brief and the argument of the Learned Counsel for the appellant under that issue that the trial Court having found that Exhibit 7 was not certified and was wrongly admitted, ought not to have relied on the document for its judgment, cannot be sustained and are invalid because there is no ground of this appeal complaining about or challenging the part of the judgment that even in the absence of Exhibit 7 (the Letters of Administration), paragraphs 7 and 8 of the statement of claim which plead that the property belonged to the heirs of Adamu Kaduna and that the administrator of the estate of Adamu Kaduna consented to the use of the Certificate of Occupancy and paragraphs 4, 5 and 10A of the defence to counter claim and reply to statement of defence were not traversed.
Paragraphs 7 and 8 of the statement of claim aver as follows-
7. The Plaintiff avers that the said certificate of occupancy belongs to the heirs of Adamu Kaduna of whom the Plaintiff is one of the administrator of the estate of Adamu Kaduna consented to the use of the certificate as collateral to secure a loan by Dura Trust Constructors Ltd.
8. The Plaintiff avers that in line with agreement to use the title document to secure the facility by Dura Trust Contractors Ltd, the administrator of the estate of Adamu Kaduna duly executed all the requisite documents from the Bank. The said documents are pleaded and the Bank is put on notice to produce the original documents during trials.
Paragraph 2 of the statement of defence responded to the above averments thusly-
2. The Defendant admits paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 and 19 of the Plaintiffs Statement of Claim to the EXTENT ONLY that the Certificate of Occupancy No. NGS 5904 and the property thereon were used by the Plaintiff to secure the loan facilities to the 1st Plaintiff and that the 2nd Plaintiff further used the same certificate and the property thereon to secure a loan facility of Twenty-five Million Naira (N25,000,000.00) to RABMERCY NIGERIA LIMITED.”
Paragraphs 4, 5 and 10a of the reply to statement of defence and defence to counter-claim state thusly –
4. The Plaintiff in reply to paragraph 5 of the statement of Defence avers that the certificate of occupancy was deposited for the Loan of Dura Trust and not Rabmercy Nig. Ltd, and that the Plaintiff never executed any 3rd partly memorandum of deposit of title Deed and tripartite legal mortgage with the Defendant.
5. The Plaintiff in further response to the statement of Defence avers that at the time the facility was granted to Dura Trust Ltd, to use the title documents over property No. NGS 5904 it was Alhaji Gambo Mohammed as Administrator of the Estate of Alhaji Adamu Kaduna that executed all the documents authorizing Dura Trust to use the Land as collateral to secure the loan, notice is given to the Defendants to produce all the aforesaid documents.
10. The Plaintiff/Defendant to the counter claim Denies paragraph 10 of the counter claim and shall contend as follows during trials.
a. That it never gave consent to mortgage the property covered by C of O No. NGS 5904 to the Defendant as any purported consent said to be given was not executed by the Defendant to counter claim as the person who has the authority to execute same is Alhaji Gambo Mohammed and not Abdullahi Adamu as the owner of NGS 5904 is deceased and Gambo Mohammed is the administrator of the estate.
It is clear from the above pleadings that the facts that the property comprised in the Certificate of Occupancy NO NGS 5904 belonged to the heirs of Adamu Kaduna, that the Administrator of the estate of Adamu Kaduna consented to the use of the said property as collateral to secure the repayment of the loan to the 1st respondent, that Alhaji Gambo Mohammed was the said Administrator of the said estate of Adamu Kaduna who executed all the documents authorizing the said use of the property as collateral for the loan to the 1st respondent, were not disputed and that therefore issues were not joined by the parties on them. The facts need no further proof as they are thereby admitted.
See Salzgitter Stahl GMBH V Tunji Dosunmu Industries LTD (2010)LPELR- 2999(SC) in which the Supreme Court held that Indeed, as found by the trial Court and I agree with it that no attempt has been made in the Statement of Defence to plead specifically in answer to paragraphs 3 and 4 of the Amended Statement of Claim. I find that the averments in paragraphs 3 and 4 of the Statement of Claim have not been traversed by the defence and are presumed admitted; otherwise it would amount to defeating the object of pleading to settle the issues upon which the case between the parties is to be contested. See: Ukaegbu v. Ugoji (1991) 6 NWLR (Pt. 196) 127 and Onwuka v. Omogui (1992) 3 NWLR (Pt. 230) 393. The trial Court therefore, rightly in my view has found as totally misconceived the defence making heavy weather of these figures which are at variance with one another. The defence counsel in his address has also belaboured upon these discrepancies between paragraphs 3 and 4 of the Amended Statement of Claim. However, it is trite law that counsels address cannot however brilliant and logical constitute evidence in a matter; and so any submission on facts not pleaded goes as to no issue.
The obvious implication of the decision of the trial Court that even if Exhibit 7 is absent, the above facts were not disputed in the pleadings, is that the said facts having been admitted on the pleadings, the absence of Exhibit 7 would make no difference as it is established on the pleadings that the property belongs to the heirs of Late Adamu Kaduna, that Alhaji Gambo Muhammed is the Administrator of the estate of late Adamu Kaduna and consented to the use of the property for the loan to 1st respondent and there was no need to prove that the property is jointly owned by the heirs of late Adamu Kaduna and there was no need for Exhibit 7 to prove that the estate was being administered by Alhaji Gambo Mohammed. This decision show clearly that the trial Court did not rely on Exhibit
7. The appellant by not appealing against the said decision accepted it as correct, conclusive and binding and therefore cannot validly argue that the failure of the trial Court to expunge Exhibit 7 rendered the judgment of the trial Court that relied on it liable to be set aside. See Iyoho v. Effiong (supra) and Dabup v. Kolo (supra).
The argument of Learned Counsel for the appellant that the trial Court having found that Exhibit 7 is a public document and is not a certified true copy and having held that only a certified copy of a public document is admissible evidence, should have expunged it from the evidence, is correct. But I do not agree that the trial Courts failure to expunge it from the evidence has any effect on the judgment of the trial Court, because the trial Court clearly held that even if it is absent, it would make no difference. S. 251 of the Evidence Act 2011 provides that The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. See Ntuks v. NPA (2007) 13 NWLR (Pt. 1051) 392 at 413, 414 cited by Learned Counsel for the respondent.
Learned Counsel for the appellant has not shown how the trial Court relied on Exhibit 7 to reach any decision in the judgment. It is not enough to allege that the trial Court relied on it without more. The part of the judgment quoted in page 16 of the appellants brief to show that the trial Court relied on Exhibit 7, rather show that the trial Court did not rely on it and held that its absence was of no effect.
In the light of the foregoing I resolve issue No. 2 in favour of the respondent.
Let me now determine Issue No. 1 which asks- Whether from the pleadings, oral and documentary evidence admitted by the trial Court, the trial lower Court was right to have entered judgment in favour of the plaintiffs and dismissed the defendants counter claim.”
I have carefully read and considered the arguments of both sides on this issue.
Learned Counsel for the appellant argued that the trial Court did not consider Exhibit 6, an agreement between 2nd respondent and Rabmercy Ltd., in which 2nd respondent consented to Rabmercy using certificate of occupancy NO NGS 5904 as collateral for a loan by appellant to Rabmercy and Exhibit 12, the statement of Rabmercys account with appellant, showing that Rabmercy received a loan of 25 million naira from appellant and that its failure to consider these exhibits rendered its judgment liable to be set aside. Learned Counsel for the appellant further submitted that the finding of the trial Court that only Alhaji Gambo Mohammed has the authority to consent to the use of Certificate of Occupancy No. NGS 5904 as collateral for the loan by appellant to Rabmercy or any loan was not correct as the pleadings and evidence state that the 2nd respondent used the said Certificate of Occupancy to secure a loan of 25 million naira to Rabmercy Nigeria Ltd by appellant and that the failure of the trial Court to consider and make specific findings on these relevant issues about the 2nd respondents use of the said Certificate of Occupancy to secure a loan of 25 million naira to Rabmercy Nigeria Limited by appellant before reaching the conclusions in the judgment rendered the said judgment liable to be set aside.
Learned Counsel for the respondent replied that the trial Court made reference to all the facts relating to these issues and made specific findings on these issues in its judgment.
Let me now consider the merit of the above arguments.
Let me straight away state that the above arguments of Learned Counsel for the appellant are wrong and incompetent. The trial Court considered all the issues and made clear specific findings of facts that the property comprised in Certificate of Occupancy NO NGS 5904 belong to the heirs of Admau Kadua, one of whom is the 2nd plaintiff, that Alhaji Gambo Mohammed being the Administrator of the estate of Adamu Kaduna was the only person with the authority and capacity to use or consent to the use of the said property to secure a loan to anybody, that the appellant was aware of this fact, that the appellant which has a record of Alhaji Gambo Mohammeds consent to the use of the said property as collateral for the appellants loan of 6 million naira to the 1st plaintiff, that the appellant has no record of Alhaji Gambo Mohammeds consent to the 2nd respondents use of the said property to secure the appellants loan of 25 million naira to Rabmercy Nigeria Limited, that the 2nd respondent had no power, authority or capacity to use the said property to secure any loan, that the 1st and 2nd respondents were not guarantors of the loan of 25 million naira by the appellant to Rabmercy Nig. Ltd, that the appellant was not a party to the agreement in Exhibit 6, that there is no documentary evidence that the 2nd respondent executed a tripartite legal mortgage and third party memorandum of deposit of the said Certificate of Occupancy.
The exact text of the part of the judgment containing these findings of facts reads thusly- The plaintiffs in their claim, are seeking for the return of its Certificate of Occupancy NO NGS 5904 which first got into the defendant/counter claimant possession, when the 1st plaintiff through its Chief Executive Officer the 2nd plaintiff obtained a six million naira credit facility to finance the completion of building of its property at Suleja and the purchase of shares of the Bank (then called intercity Bank Plc) See paragraph 6 of the statement of claim and paragraph 1 of the statement of defence, Evidence was led to the effect that the facility was paid on 18/3/2011 See Exhibit 1 (application for facility), Exhibit 3 (the statement of Account No 0101905072 of Dura Trust Contractor Ltd dated 26/9/2011) and Exhibit 4 (a Request for the Return of Certificate of Occupancy used to secure the six million naira facility). See also paragraphs 4, 5, 6 and 13 of statement of statement of claim.
Thus it is clear that the facility was repaid and the plaintiff was entitled to a return of its Certificate of Occupancy. However, when the request was made the defendant refused to accede to same. This gave rise to the existence of Exhibit 5A, B, C and D which were letters exchanged between the plaintiffs counsel and the Regional Legal Office of the defendant Bank. In the Banks response to the plaintiffs counsel letter of 27/7/2011, it was stated. We regret to state that we shall not be able to accede to your request for the return of the title deed in issue because the collateral NO NGS 5904 which was deposited with us by your client to secure his facility, was with the consent of the owner also given to us/authorized by the owner to be used as collateral to secure a facility advanced by the bank to Rabmercy Nig Ltd another customer and this customer is still indebted to the bank. Given the present circumstance therefore, we believe that you will agree with us that the bank will be unduly exposed without any collateral cover were it to accede to the extant request.”
Responding to the said letter (of 5/8/2011) the plaintiffs counsel in his letter of 10/8/2011 said:- We are amazed that you said our request cannot be acceded to by you. Our client informed us that at the point of transaction whereof the said Certificate was used as collateral to secure the facility granted by your organization to Dura Trust Contractors Ltd., the owner Alh. Muhammed Gambo who is the administrator of the estate of (Sic) Adamu Kaduna executed all the requisite documents consenting to the use of the title document as collateral by Dura Trust Contractors Ltd. Kindly check your records to verify this position.
We state on behalf of our client that our client had at no time consented to the use of the title document by Rabmercy Nig Ltd as collateral. We state further that the property in question is a family property which is administered on behalf of the heirs of Adamu Kaduna by Alh. Muhammed Gambo who had the consent of the family to allow Dura Trust Contractors Ltd to use (the) document as collateral. The family never at anytime consented to the use of the title document by Rabmercy Nig Ltd as collateral. We request you to to furnish us with such consent by Muhammed Gambo consenting to the use of the title document as collateral by Rabmercy Nig Ltd.
It is therefore clear, that while the defendant is saying the Certificate of Occupancy had been consented to be used as security for a loan to Rabmercy Nig. Ltd. The plaintiff is saying it did not consent to that, no one has the authority or capacity to grant such consent except the Administrator of the estate and the Bank should check its records to confirm that it was the Administrator that granted consent for the Certificate to be used for the loan to Dura Trust, and to furnish it with any records if the same Administrator consented to the use of the Certificate for the loan to Rabmercy. See paragraphs 6, 7, 8 statement of defence and the question is did the plaintiff allow Certificate of Occupancy NO 5904 to be used to secure the facility granted to Rabmercy. Evidence was led in line with the statement of claim that the 2nd plaintiff executed Exhibit 6 on behalf of Rabmercy. Can the plaintiffs be bound? For this, recourse is to be had to the nature of transaction and the requisite legal capacity to be had to the nature of transaction and the requisite legal capacity to grant consent.
The plaintiff tendered Exhibit 7, which is letter of Administrator of the Estate of Adamu Kaduna. In addition in its pleadings and witness statement on oath, it did state that only Alh. Gambo Muhammed the Administrator that could grant consent since the property is a family property.
The defendants on the other had said the plaintiffs are bound because the 2nd plaintiff gave consent.
In paragraphs 6, 8 & 10 of the statement of defence and counter claim it was averred that the 2nd plaintiff executed a Tripartite Legal Mortgage which they would rely on at trial. That document was never tendered and although notice to produce was given for the defendant/counter claimant to bring the document relating to the facility in respect of Dura Trust Contractors Ltd where the Administrator of the Estate was said to have given consent, the defendant failed to produce same. And the Court is bound to presume that it was withheld because its production will be adverse to the cause of the defendant/counterclaimant. And to presume that it was the Administrator that gave consent allowing the property to be used to secure the loan to Dura Trust only.
Would the defendant/counterclaimant be entitled to a right of foreclosure in view of Exhibit 6? I have looked at the contents of Exhibit 6 which is an agreement executed on 9/7/2007 exclusively between RABMERCY NIG LTD V (The Supplier) and ALH. ABDULLAHI ADAMU (THE SECURITY PROVIDER) the operative part/habendum reads.
NOW THEREFORE THIS AGREEMENT IS WITNESSED AS FOLLOWS
In consideration of the Certificate of Occupancy NO 5904 deposited in International Bank Plc by the SECURITY PROVIDER on behalf of the supplier (the receipt of which International Bank Plc hereby acknowledges), it is hereby agreed as follows:-
1. That the SECURITY PROVIDER shall immediately after the contract has been executed and payment made be entitled to N300,000.00 (Three Hundred Thousand Naira only) as commission for the provision of the security aforesaid.
2. That this agreement is for the duration of not more than sixty days commencing from the date of this agreement.
The agreement was signed and sealed by two parties, RABMERCY NIG LTD AND ABDULLAHI ADAMU. The Bank is not a privy or signatory. From clauses one and two above payment was to be made to Abdullahi Adamu after the contract was executed and payment made this agreement was to last sixty days. In the course of the trial the defendant/counterclaimant tendered Exhibit 12 which is the statement of account of RABMERCY NIG LTD with a debit balance of N57,913,954.23 as at June 2011. Exhibit 6 is itself wanting because it did not state the amount to be secured.
Dura Trust is a separate entity from Abdullahi Adamu, the property NGS 5904 is indisputably family property under the administration of Alh. Gambo Mohammed, therefore only he can confer consent for the Certificate to be used to secure any facility. The principle of nemo dat quod non habet will certainly apply to nullify any perceived mortgage without his consent, the execution of a letter of Authority to upstamp a Legal Mortgage- Exhibit 10 notwithstanding.
Indeed, from the evidence of DW1 under cross examination he stated I have seen the second page of Exhibit 7 (Letter of Administration) it refers to same property that was given to us. It is dated 2005 the transaction between us and Rabmercy took place in July 2007. As at July 2007 on the surface of it from what I am seeing, that property was then in trust of Alh. Gambo Mohammed. Initially, Dura Trust (1st Plaintiff) gave us the same property to enjoy a facility before the transaction with Rabmercy. There is a document in the Bank in which I sighted the signature of Gamohammbo Med at the Bank.
I have seen that document at the Bank which Gambo Mohammed signed. Yes at the time Dura Trust entered into transaction with the Bank Gambo Mohammed CONSENTED to that transaction. We do not have any document in which Gambo Mohammed as an Administrator of the Estate consented to our granting a facility to RABMERCY.”
This document of consent by Gambo Mohammed was not produced. But it is clear that the Bank is aware of the status of Gambo Mohammed to the Property, since he granted consent to enable Dura Trust (1st Plaintiff) use it as collateral for the facility granted to it. Therefore the averment in paragraphs 5 and 6 of the statement of defence/counterclaim is of no moment. The said paragraphs provide:- The defendant states in further answer to the said paragraphs that the 2nd Plaintiff deposited his Certificate of Occupancy NO NGS 5904 with the Defendant to secure a loan facility of Twenty Five Million Naira (N25,000,000.00) to Rabmercy Nig Ltd and also executed a Third Party Memorandum of Deposit of Title Deed and a Tripartite Legal Mortgage with the Defendant in addition to an Agreement with Rabmercy Nig Ltd in respect of Certificate of Occupancy NO NGS 5904 used as security.
The defendant shall at trial found and rely on the undated Deed of Tripartite Legal Mortgage, Third Party Memorandum of Deposit of Title Deed and Agreement in respect of the Certificate of Occupancy NO NGS 5904 used as security, all executed by the 2nd Plaintiff in favour f the defendant.
Thus there can be no valid legal mortgage with Abdullahi Adamu over the said property. (See also paragraphs 8 to 10 of the DW statement on oath).
In his testimony before the Court the defence witness said under cross examination:-
For all Guarantees, there are Guarantee Forms, DURA TRUST did not stand as guarantor, Abdullahi Adamu did not also stand as guarantor but Abdullahi Adamu executed a letter of Agreement with Rabmercy on the collateral pledged for the facility.
He further said:-
In paragraph 8 of my witness statement on oath, I said the 2nd plaintiff, the Chief Executive of the 1st plaintiff deposited his Certificate of Occupancy NO NGS 5904 over the property situate in Suleja to secure a loan facility of N25 Million to Rabmercy Nig Ltd and executed a Third Party memorandum of Deposit of Title Deeds and a Tripartite Legal Mortgage with the Defendant/Counter Claimant.
Yes, I said he executed a memo of deposit and a tripartite legal mortgage. I have nothing in Court to show that he executed the Tripartite Legal Mortgage and the Third Party Memorandum of Deposit of Title.
This testimony under cross-examination along with the admission that the Administrator of the Estate of Adamu Kaduna gave consent for the Certificate of Occupancy to be used as collateral by Dura Trust is a complete departure from and a contravention of their pleadings and witness statement on oath. Based on the foregoing and in the absence of any deed of tripartite legal mortgage or memo of deposit of title deeds executed by the Plaintiff/defendant to counterclaim on the authority of the Administrator of Adamu Kaduna in favour of Rabmercy Nig. Ltd and in line with paragraph 10 and 11 of the statement of claim, witness statement on oath, the plaintiff/defendant to counterclaim have proved on the balance of probabilities, that it had discharged its obligation under the six million naira facility granted to it by the defendant with the following payments as evidence in Exhibit 3 and 4:
1. N5,535,000.00 – January 27th, 2011
2. N2,200,000.00 – March 18th, 2011
3. N500,000.00 – March 18th, 2011
In addition, there is no specific denial that this loan facility was liquidated by the plaintiff/defendant to counterclaim.”
There is no ground of this appeal complaining against or challenging any of these specific findings of facts. None of these findings of fact was isolated for attack by any ground of this appeal. The complains in grounds 1 and 2 of this appeal that the trial Court erred in law for entering judgment for the respondents and ordering the appellant to return to them the Certificate of Occupancy No. NGS 5904 contrary to the evidence do not challenge or complain against any of these specific findings of fact as the said specific findings of facts are not isolated as the subject of the complains therein as required by Supreme Court decisions in Osolu v Osolu & Ors (2003) 6 SC (Pt 1) 1, Akinlagun & Ors v Oshoboja & Anor (2006) 6 SC (Pt II) 100 and Akpan v Umoh (1999) LPELR 375 (SC). By not appealing against these specific findings of facts, the appellant accepted them as correct, conclusive and binding upon it and therefore cannot competently argue contrary to them. See Iyoho v Effiong (supra) and Dabup v Kolo (supra). So the argument that the findings of facts are wrong is incompetent and invalid.
Incompetent because it cannot be made without an appeal against the said findings of fact. Invalid because it is not in dispute on the pleadings and evidence of both sides that the property comprised in the Certificate of Occupancy NO NGS 5904 is jointly owned by the heirs of the late Adamu Kaduna and is being administered as part of the estate of Adamu Kaduna by Alhaji Gambo Mohammed, that Alhaji Gambo Mohammed as such Administrator consented to the use of the property to secure the appellants loan of 6 million naira to the 1st respondent and there is nothing to show that he consented to the 2nd respondents use of the property to secure the appellants loan of 25 million naira to Rabmercy Nigeria Limited, that only Alhaji Gambo Mohammed as such Administrator has the authority to use or consent to the use of the said property to secure a loan, that 2nd respondent has no such power or authority, that the 2nd respondent did not execute a third party legal mortgage or memorandum of deposit of the Certificate of Occupancy to secure the appellants loan of 25 million naira to Rabmercy Nigeria Limited and that the respondents did not guarantee the said loan.
The argument of Learned Counsel for the appellant that there is evidence that the 2nd respondent admitted using or consenting to the use of the said property to secure the appellants loan to Rabmercy Nigeria Limited is meaningless in view of the unchallenged specific finding of facts and the undisputed facts highlighted above. What is the use of such evidence without evidence that the Administrator of the estate of Adamu Kaduna consented to the use of the said property to secure the loan of 25 million naira to Rabmercy Nigeria Limited, and when the 2nd respondent has no authority to use the family property to secure the said loan. Since the appellant has accepted the above stated specific finding of facts by the trial Court as correct, there was no basis for this appeal on grounds 1 and 2 and there is no basis for raising issue No. 1 for determination in the appellants brief and the arguments thereunder.
In any case, there is also no ground of this appeal complaining against or challenging the decision of the trial Court that the appellant did not prove its counter claim. The part of the judgment of the trial Court containing this decision and the basis for it reads thusly- The defendant/counterclaimants case is that the plaintiffs through the 2nd plaintiff allowed Certificate of Occupancy No NGS 5904 (which was already in its possession by virtue of an earlier facility granted to DURA TRUST) to be used as collateral for a N25 million facility granted to Rabmercy Nig Ltd on 6/7/2007 see paragraph 1 as well as paragraphs 2, 5 and 6 of statement of defence and paragraphs 8, 9, 10, 11 and 12 of the counterclaim.
That the facility was to finance a Local Purchase order for the supply of petroleum products to Dantata and Sawoe Construction site at katari, and the letter of offer of the facility was admitted as Exhibit 11.
By the terms of the offer, there shall be a legal mortgage to be secured with property covered by Certificate of Occupancy NO NGS 5904 belonging to Alh. Adamu Kaduna. There was no evidence before the Court that a Deed of Legal Mortgage was executed by the Administrator of the Estate of Adamu Kaduna, whose existence the counterclaimants are aware of from their earlier transaction over the same property with Dura Trust the 1st plaintiff.
Although in paragraphs 8 and 9 of the counterclaim the defendant counterclaimants pleaded the existence of Tripartite Legal Mortgage, and A memo of Deposit of Title Deeds, those documents were not produced in proof of pleadings and in the testimony of DW under cross examination, he said he had nothing before the Court to show they were so executed. It is however clear from the evidence plaintiff/defendants to counterclaim which the counterclaimants agreed, that Certificate of Occupancy NO NGS 5904 belonging to Adamu Kaduna, was already in the custody of the defendant/counterclaimants at the time it extended the facility to RABMERCY, and that it got into the possession of the defendant/counterclaimants when Dura Trust Contractors Ltd (1st Plaintiff) sought for and obtained a six million naira credit facility from the defendant.
The Counterclaimants did not prove the existence of a valid legal mortgage to entitle them to their counterclaim. Abdullahi Adamu did not have the legal capacity to surrender the said Certificate of Occupancy to secure any facility, only the Administrator of the estate could. And Exhibit 10 A and B were not sufficient to qualify as tripartite legal mortgage it being executed by one person.
In addition, by virtue of Section 22 of the Land Use Act, 1978 a Governors consent is required to precede the execution of valid legal mortgage Dahiru V Kamale (2005) 4 NWLR (pt 929) 8 at 20 the Court of Appeal By virtue of Section 22 of Land Use Act, 1978, it is not lawful for the holder of statutory right of occupancy granted by the governor to alienate his right by assignment, mortgage transfer of possession without the consent of the governor first had and obtained. See also OWONIBOYS TECH SERVICE LTD V UBN LTD (2003) 15 NWLR (Pt 844) 545.
In his address, learned counsel to the counter-claimants, submitted The law is trite that mere deposit of title Deed with a Bank is collateral for the loan offered and accepted. With the greatest respect, from his pleadings, the existence of a valid legal mortgage was pleaded.
Parties are bound by their pleadings and he cannot resile therefrom either in evidence or at address stage. See MOHAMMED V KLARGESTER (NIG) LTD (2002) 14 NWLR pt 787 335 at 343.
Furthermore, a counterclaim is a distinct action, which for convenience, is heard together with the plaintiffs claim. Therefore, the counterclaimant must prove his claim on the balance of probabilities.
The Defendant Counterclaimants pleaded Tripartite Legal Mortgage and third party memo of deposit it behoves on them the duty to prove that state of fact if it exists.
In addition to all that had been said, for a valid legal mortgage to be enforceable, there must be Governors consent. In the defendant counter claimants final address learned counsel tried to make out a case of equitable mortgage. That was not pleaded and even if it were pleaded and proven, the agreement will remain inchoate, ineffective and voidable- see FBN PLC V SONGONUGA (supra) ratio 5. The counterclaimants failed to establish a contract of guarantee, suretyship or pledge. Exhibit 6 is an agreement binding on the 2nd plaintiff and Rabmercy alone. It does not qualify as a contract of guarantee which was defined in CHAMI V UBA PLC (2010) 6 NWLR Pt 1191 474.
as a written undertaking to be responsible to another if a third person fails to perform a certain duty e.g. payment of debt, the guarantor or (surety as he is sometimes called) becomes liable for the said debt.”
DW had testified that neither Dura Trust nor the 2nd plaintiff executed the conventional Guarantee Forms at the Bank or to be responsible for Rabmercy.
I have taken cognisance of the fact that in Exhibit 6, the amount of the facility to be secured by the security provider is not stated and the Court cannot imply what is unclear or uncertain in the interpretation of a document or the intention of the parties to be bound. In OWONIBOYS (supra) the Supreme Court held:
The Court cannot make a contract for the parties or rewrite the one they have made for themselves. Accordingly, words in a document must first be given their simple and ordinary meaning and under no circumstance may new or additional words be imported into the text unless the document would be by the absence of that which is imported, impossible to understand.
The presumption is that parties have intended what they have in fact said so that their words must be construed as they stand.”
I have also taken cognizance of the fact that Exhibit 7 is a public document and by virtue of Section 142 of the Evidence Act, only a Certify True Copy is admissible. But even in the absence of it, paragraphs 7 and 8 of the statement of claim were not specifically traversed on the fact that the property belonged to the heirs of Adamu Kaduna, that the Administrator consented to the use of the Certificate of Occupancy and paragraphs 4, 5 and 10A of the Defence to Counter Claim and Reply to statement of defence were also not traversed. In addition, the defence witness admitted seeing the document executed by the Administrator of the Estate in relation to the facility granted to Dura Trust.
On the issue of fraud raised in the Defence to counterclaim and reply to statement of defence. It was not proved and shall be deemed abandoned. In OLATESU V COMMISSIONER FOR LANDS & HOUSING, KWARA STATE & 2 ORS (2010) 14 NWLR 297 AT 303, the Court held:-
An allegation of crime in civil proceedings must be proved beyond reasonable doubt. In the instant case, the appellants allegation of concealed fraud, being a crime in civil proceeding, must be proved beyond reasonable doubt which was not so proved.”
Based on the foregoing it is my humble conviction that the counterclaimants did not prove the claim. Consequently, a failure to return the Certificate of Occupancy to the plaintiffs after liquidation of the facility on 18/3/2011 will amount to a breach of contract and I so hold.
There is no ground of this appeal complaining against or challenging the specific finding of fact by the trial Court that there was no evidence before the Court that a deed of legal mortgage was executed by Administrator of the Estate of Adamu Kaduna whose existence the appellant was aware of from the earlier transaction over the same property with the 1st respondent, that there is no evidence of the existence of tripartite legal mortgage and a memorandum of deposit of the said Certificate of Occupancy, that the said Certificate of Occupancy was already in the custody of the appellant to secure an earlier loan by appellant to the 1st respondent, that the appellant did not prove the existence of a valid legal mortgage to entitle it to succeed on the counter-claim, that the 2nd respondent did not have the legal capacity to use the said Certificate of Occupancy to secure a loan as only the Administrator of the Estate can do so, that Exhibits 10A and B were not sufficient to qualify as tripartite legal mortgage as they were executed by only one person, that the purported mortgage of the property comprised in the Certificate of Occupancy with the consent of the Governor is void, that since the appellant pleaded a valid legal mortgage as the basis of his counterclaim, it cannot rely on a mere deposit of the Certificate of Occupancy with the appellant as a collateral for the loan offered. By not appealing against these findings of facts and holdings, the appellant accepted them as correct, conclusive and binding upon it and cannot therefore be heard in law to argue contrary to some of them as it has done under issue No. 1 in its brief.
Therefore issue No. 1 is resolved in favour of the respondents.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the High Court of Niger State at Suleja delivered on 15-12-2013 delivered in Suit No. NSHC/SD/33/2011 by H.I. Abdulmalik J is hereby affirmed and upheld.
The appellant shall pay costs of N400,000.00 to the respondents.
ADAMU JAURO, J.C.A.: I was opportuned to read in draft the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am at one with the reasoning and conclusion contained therein to the effect that the appeal is lacking in merit and substance.
I adopt the said judgment as mine in dismissing the appeal, and abide by all consequential orders made including that on costs.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. I am in agreement with the reasoning and conclusion that this appeal lacks merits. I too dismiss this appeal and I abide by the consequential order inclusive of the order as to cost as made in the lead judgment of my brother.
Appearances:
Hon. Mohammed Ndayako, Esq. with him, A.I. Lemu, Esq., A.I. Mustapha, Esq., M.M. Isa, Esq., A.H. Shehu, Esq. and M.M. Abdul, Esq. For Appellant(s)
Zaidu Abdul El-Idde, Esq. MCIArB (UK) with him, Aliyu Abduljabar, Esq., Adama Adamu Wakiili, Esq. and Kadija Ahmed Lawan, Esq. For Respondent(s)
