SURU WORLDWIDE VENTURES NIGERIA LIMITED v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS (2019)

SURU WORLDWIDE VENTURES NIGERIA LIMITED v. ASSET MANAGEMENT CORPORATION OF NIGERIA & ORS

(2019)LCN/13610(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 2nd day of July, 2019

CA/L/88/2018

RATIO

PARTIES: DIFFERENT TYPES OF PARTIES IN A SUIT

Proper parties are those who, though not interested in the Plaintiffs claim, are made parties for some good reasons e.g. where an action is brought to rescind a contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject-matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff
See also FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 41-42. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FAIR HEARING: WHAT IT IS MADE UP OF

Now, the right to a fair hearing is one of the twin pillars of natural justice which support the rule of law. It is a fundamental right enshrined in Section 36 (1) of the 1999 Constitution. As stated by Nnaemeka-Agu, JSC of blessed memory in KOTOYE vs. CBN (1989) 1 NWLR (PT 98) 419 at 448, the rule of fair hearing is not a technical doctrine. It is one of substance.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria

Between

SURU WORLDWIDE VENTURES NIGERIA LTD Appellant(s)

AND

1. ASSET MANAGEMENT CORPORATION OF NIGERIA
2. INSPECTOR GENERAL OF POLICE
3. COMMANDANT-GENERAL OF THE CORPS NIGERIA SECURITY AND CIVIL DEFENCE CORPS
4. LAGOS STATE COMMANDANT OF THE CORPS, NIGERIA SECURITY AND CIVIL DEFENCE CORPS Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court, Lagos Division in SUIT NO. FHC/L/CS/1059/2016: ASSET MANAGEMENT CORPORATION OF NIGERIA vs. INSPECTOR GENERAL OF POLICE & ORS. In its said judgment which was delivered on 30th May, 2017, the lower Court conclusively held as follows:
?In view of the foregoing, the Plaintiff has not only made out its right to undisturbed and peaceful possession of the properties located at No. 86, Opebi Road, Ikeja, Lagos State, No. 12, Reverend Ogunbiyi Street, G.R.A., Ikeja, Lagos State and No. 12, Allen Avenue, Ikeja, Lagos State, it has also made out a case to warrant adequate protection by the Defendants in exercising its established rights in Exhibits A, B and C.
?I hold that since the Plaintiff has established that he has a legal right to protect in this suit, this Court will be on firm grounds to order the Defendants together with officers and men under their control and command to assist and protect the possessory rights of the Plaintiff over the properties located at No. 86, Opebi Road, Ikeja, Lagos State,

No. 12, Reverend Ogunbiyi Street, G.R.A., Ikeja, Lagos State and No. 12, Allen Avenue, Ikeja, Lagos State.
On the basis of the foregoing, I do grant the reliefs endorsed on the Originating Motion.?
(See pages 124-125 of Volume I of the Records of Appeal)

The Appellant herein was not a party in the action at the lower Court. It has however appealed as a party interested. The 1st Respondent has by Notice of Preliminary Objection filed on 7th May 2019 urged the Court to dismiss the appeal in limine upon the ground that the Appellant was not given leave to appeal as a party interested. The Notice of Preliminary Objection was argued on pages 6-9 of the 1st Respondent?s Amended Brief of Argument. The Appellant filed a counter affidavit in opposition to the Notice of Preliminary Objection on 9th May, 2019. The arguments in opposition to the Preliminary Objection were proffered on pages 2-5 of the Appellant?s Reply Brief.
?
I have considered it apposite to deal with the Preliminary Objection post-haste on account of the nature of the issue raised therein. The contention of the 1st Respondent is that the Appellant applied for leave of

this Court to appeal against the decision of the lower Court as a party interested in MOTION NO. CA/L/1257/2017: SURU WORLDWIDE VENTURES NIGERIA LTD vs. ASSET MANAGEMENT CORPORATION OF NIGERIA [AMCON] & ORS., but that the application was refused in the Ruling of this Court delivered on 20th June, 2018. It was opined that the Appellant not having been granted leave, the appeal is incompetent and a nullity since you cannot put something on nothing. The cases of UAC vs. Mc FOY (1962) AC 152 at 160, UBN PLC vs. SOGUNRO (2006) 16 NWLR (PT 1006) 504 at 524 and AGROCHEMICALS (NIG) LTD vs. KUDU HOLDINGS LTD (2000) 15 NWLR (PT 691) 493 at 509-510 were referred to.

The Appellant submits in reply that this Court granted it leave to appeal as an interested party in the Ruling of 20th June, 2018 consequent upon it filed its Notice of Appeal on 21st June 2018. It was posited that the judgment of a Court is to be read together or in a seamless manner in order to achieve harmony among the parts. The cases of LADGROUP LTD vs. FBN PLC (2017) 12 NWR [sic] 464 at 493-494 and MBANI vs. BOSI (2006) 5 SC (PT III) 54 at 66-70 were relied upon. It was maintained that when the

lead Ruling of the Court is read with the contributions of other Justices as a whole, it becomes clear that leave was granted to the Appellant; the Court having held that the application subject of the Ruling of 20th June, 2008 partially succeeded.

Now, the contention in this Preliminary Objection calls for a closer look at and interpretation of the said Ruling of this Court of 20th June, 2018. The said Ruling is attached as Exhibit A to the affidavit in support of the Notice of Preliminary Objection. The said Ruling is equally exhibited in the Appellant?s counter affidavit in opposition to the preliminary objection. Without a doubt, the Ruling of 20th June, 2015 is penumbrous but the 1st Respondent, despite its Preliminary Objection would appear not to be in doubt as to what this Court decided in the said Ruling. I say so because in Paragraph 1.04 of the 1st Respondent?s Amended Brief of Argument, it is stated as follows:
?1.04 Dissatisfied with the above decision of the lower Court, the Appellant sought and obtained the leave of this Honourable Court to appeal against the abovesaid [sic] decision as an interested party on 20th June

2018. Hence this appeal.?

Having so emphatically stated that this appeal was filed pursuant to the leave of Court obtained by the Appellant on 20th June, 2018, one wonders the basis on which the 1st Respondent contends that the Appellant was refused leave to appeal by this Court in the Ruling of 20th June, 2018.

Howbeit, it is effulgent that when the Ruling of this Court is read as a whole as one is wont to do, there can be no doubt that the Appellant was granted leave to appeal as an interested party in the said Ruling of 20th June 2018. It is abecedarian that the decision of a Court is not to be read in snippets or instalments; rather there should be a harmonious and integral construction of the decision in order to appreciate what it decided:MBANI vs. BOSI (supra), AKAIGHE vs. IDAMA (1964) ALL NLR [Reprint] 317 at 322, AMBER RESOURCES NIG LTD vs. CENTURY ENERGY SERVICES LTD (2018) LPELR (43671) 1 at 12-13, ODIBO vs. FIRST BANK (2018) LPELR (46628) 1 at 14-15, ODOFIN vs. ONI (2001) LPELR (2226) 1 at 11 and CHIEF ADENIRAN AJAO & CO vs. AJIDAHUN (2019) LPELR (47514) 1.
?
The integral construction of the Ruling of 20th June, 2018 shows the

identification by the Court of the actual character of the application subject of the Ruling when at page 11, this Court stated:
?Looking at the prayers on the motion paper, one can clearly decipher two angles to the application, the first one is for leave to appeal as party interested and the second leg is the prayer for injunction.?

Having so identified the two angles, this Court then expounded the law on how to determine a person interested in an appeal as follows at page 14:
?How to determine a person interested in an appeal is simply whether the person could have been joined as a party in the first place, at the Court below. The applicant must show interest in the subject matter of the dispute to show he might therefore have been a party in the suit at the Court below. A person having interest has been judicially defined as including a person affected or likely to be affected or aggravated or likely to be aggrieved, see HARRY AKANDE V GENERAL ELECTRIC (1979) 4 SC 775. A person aggrieved or a person having an interest means a person against whom a decision has been pronounced which has wrongfully deprived him of

something or wrongfully affected his title to something. That a right of appeal has enured him. The decision must cause the applicant some grief, loss, disadvantage rights or positions, OWENA BANK V NSE LTD (1997) 8 NWLR (Pt. 515) and ONIFADE & ORS V OLORUNFUNMI (2014) LPELR -22956(CA).?

The Court then affirmatively held that the Appellant established its interest in the appeal. Hear the Court at pages 16-17 of the Ruling:
?The applicant in the affidavit in support and several further affidavits established its interest, how its business is affected and property destroyed by the execution carried out without its knowledge. That position was challenged by the 1st Respondent and both sides annexed so many exhibits in support of their respective positions. I must admit that the deluge of materials went beyond the relevant materials required at the consideration of the application such as this. Going through the affidavits in support, the applicant clearly substantiated his interest in the property the subject of the execution and assisted by the 2nd-4th Respondents pursuant to the judgment sought to be appealed against. The applicant

also established the fact that the judgment was entered in its absence as it was not put on notice. That is also obvious from a copy of the judgment attached to the application. The applicant also attached a proposed Notice of Appeal which it proposes to file for the hearing of the appeal.?

Dealing with the second angle identified, the Court conclusively held that the injunction sought could not be granted since it was in respect of a completed act and there was no pending appeal upon which an injunction pending appeal could be predicated. (See page 22 of the Ruling). The lead Ruling then concluded as follows:
?Flowing from the fact that there is no appeal pending, the prayer for injunction is premature and cannot be granted.
The application partially succeeds.?
?
Penumbrous the Ruling of 20th June, 2018 might be, but having clearly stated that there were two angles to the application, that the injunction cannot be granted but that the application partially succeeded simply connotes that the partial success is with respect to the angle dealing with leave to appeal. This is translucent from the contribution to the lead Ruling

where it is stated; inter alia, as follows:
?I have read a draft of the lead Ruling … in this application and agree that it is meritorious and deserves to be granted in respect of leave to appeal.
I join in granting leave to appeal and in striking the prayers for injunction in terms of the lead Ruling.?

Doubtless, the integral construction of the decision of this Court in the Ruling of 20th June, 2018 makes it as clear as crystal that the Appellant was granted leave to appeal as a party interested consequent upon which it filed its Notice of Appeal on 21st June 2018. The appeal is therefore competent and the 1st Respondent?s Preliminary Objection is accordingly dismissed.

THE APPEAL
Now that the Preliminary Objection has been dismissed, I clearly see the stable door. I will now proceed to mount the stallion, that is the merits of the appeal and consider the same.
?
Upon the compilation and transmission of the two Volume Records of Appeal, briefs of argument were filed and exchanged between the Appellant and the 1st Respondent. The 2nd-4th Respondents did not file any processes in respect of the appeal. The 2nd

Respondent was not represented at the hearing of the appeal when learned counsel for the Appellant and 1st Respondent urged the Court to uphold their respective submissions in the determination of the appeal.

The briefs of argument on which the appeal was argued are:
1. Appellant?s Brief of Argument filed on 6th August, 2018.
2. 1st Respondent?s Amended Brief of Argument filed on 7th May 2019.
3. Appellant?s Reply Brief filed on 9th May, 2019.

The 1st Respondent?s Amended Brief and the Appellant?s Reply Brief were deemed as properly filed on 9th May, 2019. The Appellant distilled four issues for determination as follows:
?i) Whether the trial Court acted without jurisdiction or otherwise acted in excess of its Jurisdiction when it heard and determined the suit as constituted and granted the reliefs sought by the 1st Respondent? [Distilled from grounds 1, 2, & 3]
ii) Whether the Appellant?s right to fair hearing was breached when the trial Court heard and determined the Plaintiff/1st Respondent?s suit without affording the Appellant, being the alleged debtor and whose properties were

the subject matter of the suit a hearing? [Distilled from ground 5]
(iii) Whether the suit, subject matter of this appeal, constituted an abuse of Court process? [Distilled from ground 4]
(iv) Having regards to the relevant provisions of the Evidence Act, 2011 particularly S. 131 (1) thereof and Section 32 AMCON Act, 2010 (as amended), was the trial Court right to have, without any concrete evidence, particularly the Loan purchase and Limited services Agreement (Loan Purchase Agreement), granted the Plaintiff/1st Respondents claims? [Distilled from grounds 6&7].?

The 1st Respondent on its part formulated three issues for determination, namely:
?1. Whether, having regard to the facts that, Suit No: FHC/L/CS/1059/2016 (now on appeal herein) was not seeking for the determination of any of the rights of the Appellant and that no reliefs were sought against the Appellant therein, the lower Court had the requisite jurisdiction to have entertained and determined the said suit in the absence of the Appellant. (Grounds 1, 2, 3 and 5).
2. Whether having regard to the parties, subject matter, issues and reliefs sought in Suit Nos:

FHC/L/CS/450/2011 and FHC/L/CS/218/2014, Suit No: FHC/L/CS/1059/2016 (now on appeal herein) amounts to an abuse of Court process. (Ground 4)
3. Whether failure to attach the loan purchase agreement by which that 1st Respondent acquired the Appellant indebtedness from the Bank vitiates the judgment of the lower Court. (Grounds 6 and 7).”

From the background facts of this matter evident on the Records and which have been copiously referred to by the parties in their briefs of argument, the Appellant and the 1st Respondent have been engaged in series of cases in respect of the facilities granted to the Appellant by Oceanic Bank (succeeded by Ecobank) and which outstanding debt was acquired by the 1st Respondent. The said cases involve issues that are similar to issue number three and four distilled by the Appellant and issue numbers two and three distilled by the 1st Respondent. The Appellant was not a party in the lower Court in the proceedings subject of this appeal, so the lower Court was not afforded the opportunity of making a pronouncement on the said issues as they were not raised before it since the Appellant was not a party before it.

Accordingly, since the issues are involved in different inter partes proceedings between the parties, considering and deciding the same in this appeal may be prejudging the said issues. I will therefore refrain from considering and resolving the said issues in this matter. Indeed, the Appellant is acquiescent to this. It submitted as follows in paragraphs 1.020 and 1.021 of the Appellant?s Reply Brief:
?1.020 It is important to point out, at this stage, that subsequent to the filing of this Appeal by the Appellant, against the decision of Idris; J; in FHC/L/CS/1059/2016, His Lordship Hassan J; delivered a considered Ruling in FHC/L/CS/450/2011 wherein His Lordship determined that the Counter-claim of the 1st Respondent against the Appellant for the same debt in dispute in all these cases constitute an abuse of Court process and therefore dismissed the suit.
1.021 That decision is now subject matter of Appeal CA/L/630/2018, pending before this Honourable Court. To the extent, it may, with respect, be safer, for your Lordships to decline to determine the issue of abuse of Court process in this appeal so as not to pre-judge the other appeal

in which the issue of abuse of process is a live issue.?

This being so, the issues on the basis of which I will presently consider the submissions of learned counsel and resolve this appeal are the Appellant?s issue numbers one and two, which issues are similar to the 1st Respondent?s issue number one. I will however take the liberty to tinker with the issues in order to conduce to an encompassing and distensible issue that will be cumulative with the issues distilled by the parties: SANUSI vs. AMEYOGUN (1992) 4 NWLR (PT 237) 527 at 550-551 and NEKA B.B.B. MANUFACTURING LTD vs. ACB LTD (2004) 17 NSCQR 240 at 250-251. The issue which I find apt is:
?Whether the lower Court rightly heard and determined the suit without the Appellant being made a party in order to afford it a hearing.?

SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that for a Court to have jurisdiction to entertain a case, the proper parties must be before the Court and there must be no feature which prevents the Court from exercising jurisdiction vide A-G LAGOS STATE vs. DOSUNMU (1989) 6 SC (PT II) 1 at 8 and GREEN vs. GREEN

(1987) 7 SC (PT II) 108 at 169. It was argued that the object of the 1st Respondent?s action was to recover the debts purportedly owed by the Appellant and its properties used as securities for the alleged debt and as such the Appellant was a necessary party and should have been made a party since its rights would be affected by the reliefs claimed by the 1st Respondent. The cases of GREEN vs. GREEN (supra) and AKPAMGBO-OKADIGBO vs. CHIDI (2015) 3-4 SC (PT II) at 82 were referred to.

It was maintained that critical questions on whether the Appellant was actually indebted to the 1st Respondent and the nexus between the targeted properties and the alleged indebtedness could not be dealt with in the absence of the Appellant. It was asserted that the non-joinder of the Appellant rendered the exercise of jurisdiction by the lower Court invalid or in excess of jurisdiction. The cases of GREEN vs. GREEN (supra) at 169 and POROYE vs. MAKARFI (2017) 6-7 SC (PT III) 166-168 were relied upon.

It is the further contention of the Appellant that its right to a fair hearing was breached when the lower Court heard and determined the 1st Respondent?s

suit without affording the Appellant, the alleged debtor, whose properties were the subject matter of the suit a hearing. The cases of OYEYEMI vs. OWOEYE (2017) 2-3 SC (PT IV) 117 at 155 and LPDC vs. FAWEHINMI (1985) 7 SC 108 at 163 were cited in support. It was posited that the failure to afford the Appellant a fair hearing rendered the proceedings conducted a nullity and liable to be set aside vide EBUCHU vs. CMB PLC (2016) 2-4 SC at 16, PDP vs. EZEONWUKA (2017) 4-5 SC (PT IV) 1 at 87-89 and CHITRA & W MANUFACTURING CO. vs. AKINGBADE (2016) 5 SC 156 at 178.

SUBMISSIONS OF THE 1ST RESPONDENT?S COUNSEL
The 1st Respondent submits that the action is not for debt recovery but for Police protection so that the 1st Respondent can take possession of the mortgaged properties which by virtue of the Deeds of Legal Mortgage were, by law, vested in the 1st Respondent. It was stated that the Appellant did not deny executing the Deeds of Legal Mortgage and in consequence the legal ownership of the properties resided in the 1st Respondent, which was entitled to immediate right to possession of the properties. The cases of OKUNEYE vs. FBN PLC (1996) 6

NWLR (PT 457) 749 at 755, ALL STATES TRUST BANK vs. NSOFOR (2004) ALL FWLR (PT 201) 1719 at 1738, AWOJUGBABE LIGHT IND. LTD vs. CHINUKWE (1995) 4 NWLR (PT 390) 370 at 410 and ABDULRAHMAN vs. ODUNEYE (2009) 17 NWLR (PT 1170) 220 were referred to.

The 1st Respondent further submitted that the lower Court was not called upon to determine the rights of the Appellant and none of its rights was determined. It was stated that the Appellant was therefore not a necessary party since no relief was sought against the Appellant in the action that was for the enforcement of the 1st Respondent?s established right by virtue of the Deeds of Legal Mortgage. It was maintained that where no claim or relief is sought against a party, then the need to join him as a defendant to a suit would not arise. Order 9 Rule 5 of the Federal High Court (Civil Procedure) Rules, 2009 and the cases of AJAYI vs. JOLAYEMI (2001) 10 NWLR (PT 722) 516 at 537 and AROMIRE vs. AWOYEMI (1972) ANLR Vol. 1 (2nd Edition) 105 at 111 were relied upon. It was conclusively submitted that the lower Court had the jurisdiction to determine the action in the absence of the Appellant since no reliefs

were sought against the Appellant in the action which was to enforce the 1st Respondent?s established right to possession of the mortgaged properties and that no breach of fair hearing was occasioned against the Appellant. It was stated that by Order 9 Rule 14 (1) of the Federal High Court (Civil Procedure) Rules, 2009, an action shall not be defeated by reason of misjoinder or non-joinder of parties and the Judge may deal with the matter so far as regards the rights and interest of the parties actually before him.

APPELLANT?S REPLY ON LAW
In the Reply Brief, the Appellant submits that the Deeds of Legal Mortgage, even if valid, do not exist in vacuo and that the Appellant was mortgagor in possession and no right of realization accrued to the 1st Respondent without proof of default on the part of the Appellant in respect of the alleged debt secured by the mortgages. It was maintained that the 1st Respondent?s action was for recovery of debt or the mortgage debt alleged against the Appellant. The Deeds of Legal Mortgage, it was stated, contained provisions for service of notice on the Appellant before possession can be wrested from

it and that parties are bound by the terms of their agreement vide AGBAREH vs. MIMRA (2008) 1 SC (PT III) 88.

The Appellant doubled down on its contention that its right to fair hearing was breached because since it was not joined; it could not tell its own story as to whether it is a debtor in default and whether or not it had been served with the Notice to recover possession stipulated in the Deeds of Legal Mortgage. Order 9 Rules 5 of the Federal High Court (Civil Procedure) Rules, 2009 relied upon by the 1st Respondent, it was stated, used the permissive word MAY and the Appellant whose properties were in issue qualify as one ?against whom the right to any relief is alleged? and ought to have been joined and given a fair hearing. The cases of FADIORA vs. GBADEBO (1978) 3 SC 219 and APGA vs. OYE (2018) 7 SC (PT III) 1 were called in aid.

RESOLUTION
The facts of this matter as evincible from the cold printed Records of Appeal are fairly straightforward. The Appellant was the customer of the defunct Oceanic International Bank, which upon distress, was succeeded by Ecobank Ltd. Banking facilities were granted to the Appellant. The

facilities were secured by among others, legal and equitable mortgages. The facilities were non-performing. Indeed they became toxic and were acquired by the 1st Respondent. Apart from the action, subject of this appeal, there were other actions between the parties. The first salvo was fired by the Appellant when it instituted SUIT NO. FHC/L/CS/450/2011 contending that its accounts were being mismanaged. The 1st Respondent herein was upon its application joined as a party to the said action on 15th June 2016. Prior to the said joinder, the 1st Respondent as Claimant instituted SUIT NO FHC/L/CS/218/2014 against the Appellant seeking to recover the outstanding sums due on the facilities. It later discontinued the said action and the same was dismissed by the Court on 22nd June 2015. It was after the said action was dismissed that the 1st Respondent applied and was joined to the action which the Appellant had previously instituted in SUIT NO. FHC/L/CS/450/2011. Upon being so joined the 1st Respondent set up a counterclaim for the recovery of the outstanding sums due on the facilities. It was while the said action was pending that the 1st Respondent commenced the

action which spawned this appeal.

I decided not to be ahistorical by prefatorily stating the relevant background facts in order to bring out that there has been an existing dispute being litigated with respect to the Appellant?s alleged outstanding indebtedness. The core of the question in this matter is whether in the diacritical circumstances of this matter, the Appellant should have been made a party and given a hearing by the lower Court before it determined the matter. The 1st Respondent?s action at the lower Court which was commenced by Originating Motion sought for the following reliefs:
?1. AN ORDER directing the Defendants, jointly and severally, whether personally and/or through officers and men under their command and control, to assist the Plaintiff, its offers, agents and representatives howsoever described, in exercising its rights as a Legal mortgagee under the Deeds of Legal Mortgage registered as 32/32/2033, 88/88/2032 and 89/89/2028, respectively.
2. AN ORDER directing the Defendants, jointly and severally, whether personally and/or through officers and men under their command and control, to assist the

Plaintiff, whether acting its officers, agents and representatives howsoever described in maintaining peace, order and for the protection of its exclusive possessory rights and powers over the properties located at No. 86, Opebi Road, Ikeja, Lagos State, No. 12, Reverend Ogunbiyi Street, G.R.A, Ikeja, Lagos State and N0. 12, Allen Avenue, Ikeja, Lagos State pursuant to and in furtherance of the exercise and/or discharge of its powers, functions and duties as the Legal Mortgagee of the said properties.?

Ex facie, the reliefs sought are for protection by the security agencies to enable the 1st Respondent exercise its possessory rights as a legal mortgagee under the Deeds of Legal Mortgage. But in order for the said rights to be exercised and for the 1st Respondent to be entitled to the security protection to exercise the rights, the rights must have crystallized under the Deeds of Legal Mortgage. The parties sued by the 1st Respondent at the lower Court were not party to the Deeds of Legal Mortgage, so they could not have assisted the lower Court in the determination of whether the rights under the legal mortgage had crystallized.

Without a doubt, the 1st Respondent is correct in its contention on the legal effect of a deed of legal mortgage and the position in which it puts the 1st Respondent as mortgagee vis-a-vis the mortgage property: OKUNEYE vs. FBN PLC (supra) and ALL STATES TRUST BANK vs. NSOFOR (supra). But the caveat in the position of the mortgagee remains that the mortgage debt has to be outstanding and unliquidated in order for the right of the mortgagee to immediate possession of the mortgaged property to become activated. Where the mortgage debt has been liquidated, then the said right to immediate possession is no longer extant, even if there has not been a formal Deed of Release in respect of the Legal Mortgage. The parties sued at the lower Court were definitely not in a position to proffer any information as to the state of the mortgage debt.
?I have already referred to the previous actions between the parties which were primarily on the state of the mortgage debt, one of the actions of which had been dismissed. I do not intend to make any comments that may be prejudicial in respect of the said actions, as they are not subject of this appeal, but even though the action

subject of this appeal did not claim for the recovery of any outstanding debt, the relief sought to be enforced in the said action would only accrue where there is an unliquidated mortgage debt. I iterate that the parties sued at the lower Court were not in any position to assist the lower Court on whether the mortgage debt had been liquidated or was still outstanding. Explaining the concept of a legal mortgage, Chukwuma-Eneh, JSC (of blessed memory) stated as follows in ADETONO vs. ZENITH INTERNATIONAL BANK (2011) LPELR (8237) 1 at 21:
?In other words in a proper mortgage the title to the property must have been transferred to the mortgagee, subject to the proviso of the mortgaged property being reconveyed by the mortgagee to mortgagor upon performing the condition stipulated in the mortgage deed and invariably upon payment of the debt at the time so stipulated in the Deed of Mortgage. The mortgagor is liable to repay the loan as stipulated otherwise the mortgaged property is foreclosed. It is settled that by a legal mortgage the mortgagee becomes the legal owner of the property although the mortgagor may be left in actual possession/occupation of

the mortgaged property but because the mortgagee is entitled to enter into possession immediately upon the execution of the mortgage he has a right to immediate possession. In this position, the mortgagee wields enormous rights over the mortgaged property.?
See also ATIBA IYALAMU SAVINGS & LOANS LTD vs. SUBERU (2018) LPELR (44069) 1 at 46-47.
As pungently put by this Court in GWARZO vs. MOHAMMED (2012) LPELR (22375) 1 at 34:
?It is settled that a mortgage is a conveyance of title to property that is given as security for the payment of a debt or the performance of a duty and that will become void upon payment or performance according to the stipulated terms.?
The Court continued at pages 35-36 as follows:
?A legal mortgage arises when the owner of a property surrenders his legal title of property to a lender or creditor to secure payment or the owner?s debt. The legal title reverts to the original owner the moment the loan is repaid or debt is liquidated.?
See also BANK OF THE NORTH vs. BELLO (2000) 7 NWLR (PT 664) 224 at 257.
There is yet a further aspect. The parties sued at the

lower Court, not being parties to the Deeds of Legal Mortgage were not in any position to assist the lower Court on whether any conditions precedent contained in the Deeds of Legal Mortgage which may affect the 1st Respondent?s right to immediate possession and security protection to attain the possession had been satisfied. The Deeds of Legal Mortgage contain similar terms, conditions and stipulations. Paragraph 13 thereof (See pages 17, 31 and 45 of Volume I of the Records) provides:
?13. The Mortgagor hereby attorns and becomes tenant from month to month to the Bank of such part of the mortgaged premises as is in the occupation of the Mortgagor at the monthly rent of a Pepper-corn if demanded. PROVIDED ALWAYS that the Bank, may at any time, after its power of sale has become exercisable and on the expiration of ONE MONTH?S NOTICE given pursuant to Clause 5(a), take possession of the premises whereof of the Mortgagor has attorned tenant, and determine the tenancy thereby created PROVIDED also that neither the receipt (if any) of the said rent nor the tenancy created by the said attornment shall render the Bank liable to account as

mortgagee in possession.?
By the above provision, the Appellant became a monthly tenant in possession of the mortgaged properties and the 1st Respondent?s right to immediate possession of the mortgaged property upon default in paying the mortgage debt was made subject to the issuance of one month?s notice on the Appellant. It cannot be confuted that the parties sued at the lower Court were not in a position to state if the said notice was issued.
With due deference to learned counsel, the issue is not whether the Appellant did not deny executing the Deeds of Legal Mortgage or whether the decision of the lower Court is correct. Rather the question is whether on the peculiar facts of this matter, the Appellant should have been made a party and afforded a hearing before the lower Court determined the matter. It has to be remembered that the Appellant was not a party at the lower Court so it could not have raised any issue of execution vel non of the Deeds of Legal Mortgage when the proceedings were conducted behind its back.
?I have proceeded in a rather circular manner to show that there was a lot that could have been attained in

the judicial and judicious determination of the matter if the Appellant had been made a party and given a hearing in the matter. It is only if the Appellant was a party and had been given a hearing that it would be ascertained, in the peculiar circumstances of this matter, whether the 1st Respondent?s right to immediate possession pursuant to the Deeds of Legal Mortgage had crystallized, videlicet, whether the mortgage debt remained unliquidated, relative to the other causes in litigation between the parties and whether the conditions precedent under the Deeds of Legal Mortgage to the 1st Respondent?s right to immediate possession of the mortgaged property had been observed and performed.
Dealing with the classification of parties in GREEN vs. GREEN (1987) LPELR (1338) 1 at 16-17, Oputa, JSC stated as follows:
?This now leads on to the consideration of the difference between ?proper parties?, ?desirable parties? and ?necessary parties?. Proper parties are those who, though not interested in the Plaintiffs claim, are made parties for some good reasons e.g. where an action is brought to rescind a

contract, any person is a proper party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject-matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff
See also FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 41-42.
Arguendo, even if the Appellant is not interested in the 1st Respondent?s reliefs, there is still good reason for it to have been made a party, so as to speak to whether the mortgage debt had been liquidated, more so when the 1st Respondent did not exhibit the statement of account showing the outstanding amount due. Furthermore, another good reason would be for the Appellant to speak to the compliance with the conditions in the Deeds of Legal Mortgage on the strength of which the

1st Respondent had filed the action for security protection in the exercise of its rights under the legal mortgages. So the Appellant was a proper party but it was not made a party and was neither heard nor given an opportunity of a hearing.
Even though there existed Deeds of Legal Mortgage by which the 1st Respondent had de jure possession of the mortgaged properties, the Appellant was in de facto possession as an attorned monthly tenant by the provisions of the Deeds of Legal Mortgage. The said Deeds of Legal Mortgage laid down conditions for de facto possession to be wrested from the Appellant. The Appellant would undoubtedly be affected by the result of any action by means of which possession is wrested from it otherwise than in accordance with the terms of the Legal Mortgages. So the Appellant was a desirable party. It was not made a party so it was neither heard nor afforded the opportunity of a hearing.

KOTOYE vs. CBN (1989) 1 NWLR (PT 98) 419 at 448, the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard had in fact been given the opportunity of a hearing. In BAKARE vs. LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) LPELR (711) 1 at 68, Karibi-Whyte, JSC stated:
?Section 33 [Section 36 of 1999 Constitution] is an entrenchment in the Constitution of the common law principle of the right of fair hearing which is an inherent and necessary element in the determination of every dispute. The provisions of Sub-section (1) of the section ensures that the rights and obligations of every citizen is finally and conclusively determined, after hearing the person whose rights and obligations are involved and would be affected by the decision. It is therefore a fundamental and constitutional right of the person whose rights and obligations would be affected by any determination to be heard before such rights and obligations is conclusively determined? Hence the person whose rights and obligations are in

issue must be given an opportunity to be heard in defence of such rights by the Court or Tribunal established for the purpose.?
See also DINGYADI vs. INEC (2010) 18 NWLR (PT 1224) 154. In DUKE vs. GOVERNMENT OF CROSS RIVER STATE (2013) LPELR (19887) 1 at 18, the apex Court also held as follows:
?The term ?fair hearing?, within the con of Section 36(1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all the parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto. Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if all the parties are given opportunity to state their case even in writing.?
See also UKACHUKWU vs. PDP (2014) 1 MJSC (PT II) 132 and MOHAMMED vs. KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424 at 426 or (1968) ALL NLR 411 at 413.

The entire proceedings at the lower Court were conducted behind the Appellant. It is not a question of the Appellant having failed to utilise the opportunity of a hearing afforded it by the Court: NEWSWATCH COMMUNICATION LTD vs. ATTA (2006) LPELR (1986) 1 at 25, BILL CONSTRUCTION CO LTD vs. IMANI & SONS LTD/SHELL TRUSTEES LTD (2006) LPELR (782) 1 at 12 -13 and MILITARY GOVERNOR OF LAGOS STATE vs. ADEYIGA (2012) LPELR (7836) 1 at 29-30. The Appellant was not given the opportunity to be heard. The Appellant?s awareness of such an action having been prosecuted was when execution of the decision of the lower Court was levied for its de facto possession to be wrested from it. Indeed, having held that the Appellant is a proper and desirable party, it constituted a manifest breach of the Appellant?s right to a fair hearing.
It is rudimentary and hornbook law that any breach of the right of fair hearing renders the entire proceedings where the breach was occasioned null and void. See POROYE vs. MAKARFI (2017) LPELR (42738) 1 at 85-86 and LONG-JOHN vs. BLAKK (1998) LPELR (1791) 1 at 40. It is immaterial if the same decision would have

been arrived at if the Appellant had been given a hearing, the proceedings would still be null and void: ADIGUN vs. A-G OYO STATE (1987) 1 NWLR (PT 53) 678, BAMGBOYE vs. UNIV. OF ILORIN (1999) 10 NWLR (PT 622) 290 and ARIJE vs. ARIJE (2018) LPELR (44193) 1 at 19-20.
In the words of Wali, JSC in SALU vs. EGEIBON (1994) 6 NWLR (PT 348) 23 at 44:
?It has also to be remembered that denial of fair hearing was a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (PT. 53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same; the proceedings will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The

decision must be declared to be no decision. The result is that the decision of the trial Court and Court below confirming that decision must be set aside. The case must be heard de novo. The decision reached on the 1st issue for determination has rendered it unnecessary to consider the other issues.?

The concatenation of the foregoing is that the issue for determination must ineluctably be resolved in favour of the Appellant. The appeal being meritorious succeeds. The decision of the lower Court is set aside and the case is remitted to the lower Court for hearing de novo with the Appellant as a party. The Appellant is entitled to the sum of N100, 000.00 as costs of this appeal.

MOHAMMED LAWAL GARBA, J.C.A.: I agree

GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege to read in draft, the lead judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA in which the instant appeal was adjudged meritorious and was upheld.

I agree with his reasoning and the conclusions reached in the appeal.

?I also abide with the consequential orders granted that the case be

remitted back to the lower Court and be re-heard de novo with the Appellant being joined as a Defendant.
?
I abide with the consequential order made as to costs awarded in favour of the Appellant.
The appeal is upheld.

Appearances:

Layi Babatunde, Esq., SAN with him, D. Ojogbede, Esq., J. O. Akolade, Esq. and D. Owoeye, Esq.For Appellant(s)

Collins Ogbonna, Esq. with him, Kunle Gbolahan, Esq.- for 1st Respondent.
Ms. Adebimpe Bada with him, Adedayo Awodun, Esq. -for 3rd & 4th Respondents
2nd Respondent absent and not represented by Counsel.For Respondent(s)

Appearances

Layi Babatunde, Esq., SAN with him, D. Ojogbede, Esq., J. O. Akolade, Esq. and D. Owoeye, Esq.For Appellant

AND