ACCESS BANK PLC v. TRILO NIGERIA COMPANY LIMITED & ORS (2013)

ACCESS BANK PLC v. TRILO NIGERIA COMPANY LIMITED & ORS

(2013)LCN/6620(CA)

In The Court of Appeal of Nigeria

On Monday, the 9th day of December, 2013

CA/K/22/2012

RATIO

EVIDENCE: WHETHER PLEADINGS MAY CONSTITUTE EVIDENCE FOR AVERMENTS IN PLEADINGS

It is a firmly established principle of judicial adjudication that pleadings do not amount and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings – Oguejiofor V. Siemens Ltd (2008) 2 NWLR (Pt 1071) 283, Nika Shipping Co. Ltd v. Lavina Corporation (2008) 16 NWLR (Pt 1114) 509, Dingyadi v. Wamako (2008) 17 NWLR (Pt 1116) 395. Thus any pleading not backed by evidence goes to no issue and should be disregarded by the court – Olusanya V. Osinleye (2013) 7 NWLR pt 1367) 148. The only exception being in respect of averments in pleadings which are admitted by the other party as what is admitted needs no further proof. In the instant case there was no admission of the material facts between the parties on the pleadings.

It is also an established principle of law that documentary evidence cannot serve any useful purpose in a trial where there is no oral evidence led by any of the parties explaining its essence – Adike V. Obiareri (2002) 4 NWLR (Pt 758) 537. In Egba V. Appah (2005) 10 NWLR (Pt 934) 464, the Court of Appeal stated that documents are not objects that can be cross-examined and that therefore oral evidence must be called in support thereof. In Alao Vs Akano (2005) 11 NWLR (Pt 935) 160, Supreme Court held that documents admitted in evidence, no matter how useful they could be, would not be of much assistance to the court in the absence of admissible oral evidence who can explain their purport. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES:

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

ACCESS BANK PLC – Appellant(s)

AND

1. TRILO NIGERIA COMPANY LIMITED
2. A. ABDUL MUMINI MUSA
3. ALH. KABIRU MOHAMMED – Respondent(s)

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): In the Plaintiff’s Joint Statement of Claim filed before the Kano State High Court dated the 13th September, 2006, the plaintiffs, now the Respondents in this appeal, claimed against three Defendants, of whom, one was Global Bank Plc, but, later taken over by Intercontinental Bank Plc, and which, in turn, was bought over by the present Appellant, i.e. Access Bank Plc; the following:
“1. An order setting aside the purported sale of 2nd Plaintiff’s property covered by Certificate of Occupancy No. LKN/RES/98/35 to the 3rd Defendant for being unlawful, irregular, null and void.
2. An order that the sale of the 2nd plaintiff’s landed property covered by Certificate of Occupancy No. LKN/RES/98/35 by the 1st Defendant at the cost of N12 Million was a breach of the 1st Defendant’s statutory and fiduciary duties to the 2nd plaintiff.
3. An order that the sale or the purported sale of the 2nd Plaintiff’s property covered by Certificate of Occupancy No. LKN/RES/98/35 by the 1st Defendant at Gross under value was unlawful, void and of no effect whatsoever.
4. N35 Million damages against the 1st Defendant being the forced sale value of the 2nd plaintiff’s property irregularly sold by the 1st plaintiff to the 3rd Defendant.
IN THE ALTERNATIVE
N35 Million special damages against the 1st Defendant
5. An order that the 1st plaintiffs account with the 1st Defendant has been unnecessarily debited by the 1st Defendant.
6. A declaration that the purported sate of the 2nd Plaintiff’s property situate at No. 2B Borno Avenue, Kano and covered by Certificate of Occupancy No. LKN/RES/98/35 is null and void and of no effect whatsoever.
7. A declaration that the purported sale of the 2nd Plaintiff’s property by the 1st Defendant is not in accordance with the law.
8. A declaration that the purported sale of the property in dispute is also null and void because it is contrary to the terms of the mortgage agreement between the 1st and 2nd plaintiffs and the 1st Defendant.
9. An order that the purported sale of the 2nd Plaintiff’s property by the 1st Defendant to the 3rd Defendant was conducted in Bad Faith and was a Sham and/or made fraudulently.
10. An order that the 2nd Plaintiff’s property ought to have been sold for at least N35 Million and not N12 Million considering inflationary trend and the fact that Landed Property appreciates with time.
11. An order restraining the 1st Defendant from selling, transferring or disposing the Landed Property belonging to the 2nd plaintiff to the 3rd Defendant or any other person for any value below N35 Million as stated in the valuation report submitted to the 1st Defendant by the valuers appointed by her.
12. An order that the 1st plaintiff’s account with the 1st Defendant ought to be in credit.
13. An order that the 2nd Defendant ought to pay all the Lease rentals for the 10 months the 5 Trucks were leased to the 2nd Defendant by the 3rd Defendant.
14. And for further or other order as this Honourable Court may deem fit to make in the circumstance.”

The 1st and 3rd Defendants filed an Amended Statement of Defence wherein the 3rd Defendant counter-claimed as follows:
“(a) That the plaintiffs be ordered to give to him possession of the proper covered by Certificate of Occupancy No. LKN/RES/98/35 situate at Bornu Avenue Nasarawa, Kano in view of the fact that he is the lawful owner of the said property otherwise the bailiffs of this Honourable Court should be ordered to break into the said property and deliver possession of same to the 3rd Defendant.
(b) Any other order(s) this Honourable Court may deem fit to make in the circumstance.”

The Respondents filed a Reply to the 1st and 3rd Defendants’ Statement of Defence and Counter Claim. The 2nd Defendant did not traverse any of the issues raised in the Plaintiffs’ Joint statement of claim.
The averments in the 1st and 3rd Respondents’ pleadings before the lower Court revealed that the 1st Respondent secured a loan of N15 million from the Appellant with a collateral furnished by the 2nd Respondent. The property is covered by certificate of occupancy No. LKN/RES/98/35. A third party Deed of Legal Mortgage over the property covered by Certificate of Occupancy No. LKN/RES/98/35 was executed. Before the loan was granted, the Appellant engaged the services of Jide Taiwo & Co. (Estate Surveyor & Valuers) to value the said property. The Valuation was carried out by Jide Taiwo & Co. on 22/5/2001, and on 24/5/2001, the Estate Surveyor submitted the Valuation Report Certificate to the Appellant, a copy of which was given to the 1st Respondent.

The Valuation Report mentioned that the Open Market Value of the property was N45 million while the Forced Sale Value was N35 Million. It was further averred that owing to the business deals the Respondents and the Appellant had over the leasing and sale of the Respondents’ 5 Trucks that were purchased by them, the sum of N29 Million was realized, which amount was over and above the N15 Million loan granted to the Respondents by the Appellant, the loan, agreement was liquidated.
Despite that, the Appellant purportedly sold the landed property belonging to the 2nd Respondent to the 3rd Defendant in the suit at the lower Court. It was equally averred that there was no auction sale and the sale was conducted contrary to the terms of the loan agreement. It was alleged that the sale was in Bad Faith, marred by irregularities, that the Statutory Notices required under the Mortgage Agreement and the Auctioneers Law have not been served by the Appellant on the 1st and 2nd Respondents and that no notice or demand notice as required by law before the purported Auction or Sale was carried out. It was also pleaded that the purported sale was made at gross under value and that fraud can be inferred from the purported sale. It was specially pleaded that the sale was fraudulent and in collusion. Several issues bordering on fraud, breach of fiduciary duty, lack of service of certain notices were raised in the pleading; and several documents were pleaded by the Respondents.

The length and breadth of the record of this appeal did not indicate where hearing was conducted in the proceedings before the lower Court. It is quite revealing that no oral evidence was adduced by the Plaintiffs now the Defendants in the proceeding rerating to the sale of the 2nd Respondent’s property. All I could deduce from the judgment of the lower Court and the written addresses of respective Counsel for the parties before it, was that the Exhibits admitted in the proceeding were tendered with the consent of respective Counsel from the Bar. No trial or hearing whatsoever was conducted by the trial Court, but the parties via their respective Counsel formulated the issues for determination and addressed the Court therein.
The learned trial Judge stated at page 154 of the record as follows:
“Instead of adducing oral evidence, parties consented to formulate issues and address the court on them.
By consent, the plaintiffs tendered some documents which were admitted in evidence and marked Exhibits 1 – 4. But, the Defendants did not tender any document in evidence. It should be realized that this type of procedure resorted to by the parties in this case had the blessing of the Supreme Court in the case of Amaechi vs. INEC (2008) 5 NWLR (Part 1080) page 227 at 311 – 313 and 372.”

After consideration of the eight issues presented by the Plaintiffs and the lone issue submitted by the 1st and 3rd Defendant for its consideration, the trial Court, on 30/12/2008 held thus:
“1. It is hereby declared that the sale of the 2nd Plaintiff’s property to the 3rd Defendant by the 1st Defendant for the sum of N12 million was a sale at a gross under value, having regard to the value of the property stated in Exhibits 1 and 3.
2. The sale of the 2nd Plaintiffs property by the 1st Defendant to the 3rd Defendant for the sum of N12 Million is hereby set aside.
3. Reliefs number 5, 12 and 13 are dismissed due to lack of evidence to support them and other reliefs sought are subsumed in the first relief granted.”

The 1st Defendant which was later substituted by the order of this Court with the former Appellant in this appeal was livid with the said judgment, that, it later filed a Notice of Appeal dated the 17th October, 2011 against the same after obtaining an order of this Court on the said 17/10/2011 extending the time within which it ought to have lodged the said appeal.
However, on 28/11/2012, and following the application of the Appellant, an order of this Court was made substituting the original Appellant (Intercontinental Bank) with Access Bank, the present Appellant before this Court. Further, with the leave of this Court, the Appellant filed an Amended Notice of Appeal on 6/12/12 which comprises seven grounds of appeal. The Appellant’s Grounds of Appeal as demonstrated in the Appellant’s Amended Notice of Appeal are hereby reproduced:
“GROUNDS OF APPEAL
Ground 1
The learned trial Judge erred in law when he relied on an inadmissible document (exhibit 3 – the expert valuation report of Jide Taiwo & Co.) to decide that the property in question was sold at gross undervalue.
PARTICULARS
a) The law is that an expert’s report is inadmissible and cannot be relied upon by a Court, unless the report is tendered through the expert that authored it.
b) Exhibit 3 was tendered from the Bar by Respondent’s Counsel.
c) The author of exhibit 3 never testified before the court.
Ground 2
The learned trial Judge erred in law when, having correctly stated that it is improper for a court to rely on an expert’s report without him being called to testify, he nevertheless relied on the same, because the Appellant’s Counsel consented to the Respondent’s Counsel tendering same from the Bar.
PARTICULARS
a) It is trite that once a document is inadmissible in law, a court has no choice but to reject it from the outset or discountenance it, if it has already erroneously admitted it into evidence.
b) parties cannot by mutual consent tender an otherwise inadmissible in law.
Ground 3
The learned trial Judge erred in law when he denied the Appellant fair hearing and effectively held that his reliance on the expert’s valuation report of the subject-matter property without the Appellant being afforded an opportunity to cross-examine the expert would not amount to a denial of fair hearing, because having commissioner the report itself, the Appellant could not possibly have had good cause or reason to cross-examine the expert.
PARTICULARS
a) The law is unequivocally clear that a litigant must be afforded an opportunity to cross-examine the author of an expert’s report which his opponent has tendered into evidence; otherwise the litigant of the first part has been denied fair hearing.
b) The expert who authored the report was never called to testify, and yet the report was the centre-point of the learned Judge’s judgment.
c) A trial Judge cannot conjecture as to whether a litigant has anything useful to ask in cross-examination and then deny a litigant the right to cross-examine; having suo motu decided the issue in the negative.
Ground 4
The learned trial Judge erred in law when he held that the subject-matter property was fraudulently sold at gross undervalue for N12 Million, because the forced sale value of the same was said to have been N35 Million three years previously.
PARTICULARS
a) The actual sale price of N12 million vis-a-vis the alleged force sale value N35 million was not low enough to warrant a finding of fraud.
b) An extremely low sale-price can only be said to be indicative of fraud, if evidence of bad faith and also collusion with the purchaser is adduced.
c) There was no evidence on record, of bad faith or collusion.
Ground 5
The learned trial Judge erred in law when he effectively held that the Appellant had an obligation to lead evidence as regards “why the property had to be sold for the sum of N12 million.
PARTICULARS
a) By law, the burden of proof lay on the Respondents/Plaintiffs, who alleged fraud and were seeking to have the sale set aside.
b) The burden of proof could only shift if the Respondent/Plaintiffs had adduced cogent, admissible evidence in a manner that required the Appellants to then lead evidence as regards why the property was sold for N12 million.
c) The Respondent/Plaintiffs failed to adduce any admissible evidence as regards the value of the property.
Ground 6
The learned trial Judge erred in law when he set aside the sale of the subject-matter property for alleged gross undervalue, despite the absence of any evidence on record as regards the market value of the property at the time it was sold, as opposed to when it was valued three years Previously.
PARTICULARS
a) The law is that a mortgagee seeking to set aside a sale for gross undervalue must provide evidence as to the value of the property at the time of sale because due to state of repair and market forces, the value of the property may have depreciated since its initial valuation.
b) The Respondents led no evidence whatsoever as regards the value of the property when it was sold in 2004, but instead sought to rely on a valuation done in 2001.
Ground 7
The learned trial Judge erred in law when he set aside the sale of the subject-matter property to the 3rd Defendant, despite the fact that he was a bona fide Purchaser for value.
PARTICULAR
a) The law states that provided a purchaser of mortgaged property buys it in good faith, the sale to him will not be set aside, or his title otherwise impeached, because the mortgagee’s power of sale was improperly or irregularly exercised.
b) There is no valid cogent evidence on record that the 3rd Defendant acted mala fide in his Purchase of the Property.
c) There was no admissible, cogent evidence on record, based on which the learned trial Judge could make a valid finding of improper or irregular exercise of the power of sale.”

The parties filed and exchanged their Briefs of Arguments pursuant to the Rules of this court. Three issues were postulated by the Appellant for the determination of this Court, and they read:
“A. Whether the lower court’s insistence on relying on the Property valuation Report because it had been commissioned by the Appellant and tendered with its consent despite the fact that its expert author did not testify and so could not be cross- examined, denied the Respondent fair hearing?
B. Whether the lower court was right to find fraudulent gross under value on the basis that the Appellant failed to lead evidence on why the property had to be sold for N12 Million instead of a price nearer to its alleged N35 Million forced sale value?
c. Whether the lower court was right to set aside the sale of the Property to its buyer?”
The Respondents for their part formulated two issues for determination, that is to say:
“1. Whether the Appellant having consented to the settlement of issue procedure adopted at the trial court can now complain on appeal that she has not been given or accorded fair hearing.
2. Whether from the facts and circumstances of this case the sale of the mortgaged property for N12 Million as against the open market value of N45 Million and forced sale value of N35 Million by the Appellant was done in good faith and without collusion.”

In respect of the first issue, learned Counsel for the Appellant, J. M. M. Majiyagbe Esq; contended that neither the expert or author of Exhibit 3 nor any other expert testified before the trial court regarding the said Exhibit, therefore, the lower Court should not have placed any reliance on it. He quoted an excerpt from the Supreme Court’s judgment, in the case of Attorney-General of the Federation vs. Abubakar (2007) 10 NWLR Part 1041 SC 1, per Aderemi, J.S.C., at 182 paragraphs B – F, and equally referenced the case of Nteogwuile vs. Otuo (2001) 16 NWLR Part 738 SC page 8 and submitted that even though the Appellant commissioned the report, that is, granting the authority for the Report to be prepared, the Appellant was not in law precluded from cross-examining its author when the Respondents sought to rely on the contents of the same. He contended it was a grave error for the trial court to have relied on it despite the fact the Appellant was not accorded an opportunity to cross-examine its author. He stressed that the fact the Appellant engaged Jide Taiwo & Co to value the said property in 2001 does not mean it was glued to the opinion expressed therein in 2004 when the property was sold. He explained that certain changes must have taken place, for instance, the property might have dilapidated or the real estate market in Kano may have stagnated.

He further made reference to the judgment of the Supreme Court in ACB Limited vs. Ihekwoaba (2003) 16 NWLR Part 846 page 248 at 267 paragraphs D – F, per Ogundare (J.S.C.) on the importance of the value of the property at the time it is sold, and, the pleading of the Appellant in its Statement of Defence that N12 Million was the best price it was able to obtain at the time the said property was sold, and then argued that, had oral evidence been proffered by the author of the said Exhibit, the Appellant could have, in cross – examination, confirmed from the author that property prices in Kano had suffered a downward trend and, so, N12 Million was an excellent price. He stated that the right of the Appellant to cross-examine the author is fundamental and cannot be compromised.

Learned Counsel submitted that where an opponent seeks to rely on an expert opinion or report, the other party must be given a chance to cross-examine its author. Anything short of that makes the trial a sham. Learned Counsel cited the cases of Braimoh vs. Abasi (1998) 13 NWLR part 581 p 167, National Investment & Property Company Limited vs. Thompson Limited (1969) NSCC pages 164 – 165, per Lewis, J.S.C., Thompson vs. Arowolo (2003) 7 NWLR Part 818, Shanu vs. Afribank Plc. (2002) 17 NWLR Part 795 and ACB Limited vs. Ihekwoaba (supra) and emphasised that the burden of proof on the Respondents to prove their case has not been discharged and, as such, did not shift, because he who asserts must prove and a party must rely on the strength of his own case not on the weakness of his opponent. He explained that since the Respondents refrained from calling the author of the report, there was absolutely no need for the Appellant to adduce any evidence in that regard. Also, the fact that the Appellant consented to the said Exhibit 3 being tendered from the Bar did not automatically render it admissible since it was not tendered through its author. He contended that the trial Court ought not to have countenanced the document at the time it was giving judgment in the matter. He further stressed that there was no evidence supporting the opinion of the trial Court that by Exhibit 1, the forced value of the property was N35 Million and that fact too, did not lift the burden of proof of the Respondents, and, that the ‘Offer Letter’, i.e., Exhibit 1, should not have been relied upon as evidence of value of the property.

In his argument in respect of issue No. 2, learned Counsel encapsulated the law as being (1) the party must act honestly and with good faith in selling a mortgaged property; (2) Once there is good faith it matters not that the sale is disadvantageous to the Mortgagor; (3) a ridiculously low selling price may itself indicate fraud but evidence of collusion with the purchaser ought to be adduced; and (a) The Mortgagor seeking to set aside sale for gross undervalue, bears the burden of proving bad faith and must provide evidence as to the value of the property at the time of the sale because its value may have depreciated since its initial valuation.
He tilted to the articulations of Ibekwe, J.S.C., in Eka-Eteh vs. Nigerian Housing Development Society Limited (1973) NSCC page 373 at 380 lines 15 – 20 wherein he quoted with approval the dictum in the English case of Kennedy vs. De Trafford (1887) AC. 180 at 185, which he stated is the locus classicus and has never been overturned. He submitted that the Appellant’s main focus at the time of selling the property was to fetch enough to cover the Respondent’s debt, and that was exactly what it did, therefore, it cannot be reasonably argued that the sum of N12 Million it obtained was low as to infer fraud.

The law entitled the Appellant to obtain a quick sale of the property to ensure that the Respondent’s debt was covered. He referred to the case of West African Breweries Limited vs. Savannah Ventures Limited (2002) 10 NWLR part 775 page 40 where the sort of disparity required for inference of fraud was illustrated, and, submitted that there is no such disparity in the instant matter, and, even if there exists any disparity, it is not the magnitude that would warrant an inference of fraud. He reiterated the principle as enunciated by Ogundare, J.S.C., in ACB Limited vs. Ihekwoaba (supra) as to the imperativeness of giving evidence of value of the property at the time of sale, and, submitted that without the Respondents adducing such evidence to prove the value of the property as at 2004 the said property was sold, they had failed to discharge the onus on them to prove an undervalue sale. They, also, failed to lead evidence to show that the Appellant colluded with the purchaser, Professor Ibrahim Halil Umar, as required by law. Learned Counsel then referred to the cases of West African Breweries Limited vs. Savannah Ventures Limited (supra) and Eka-Etch vs. Nigerian Housing Development Society Limited (supra) and contended that since the Respondents failed to adduce any evidence of collusion, they ought not to be entitled to have the sale set aside.

With regard to issue No. 3, learned counsel relied on the provisions of section 21(1) of the Conveyancing Act, 1881 and the cases of A.C.B. Limited vs. Ihekwoaba (supra), and Majekodunmi v. Co-op. Bank Limited (1997) 10 NWLR part 524 page 199 and submitted that the Supreme Court in applying section 21(1) of the said Act held that the buyer of the property could keep the same as he was obviously a bona fide purchaser for value without notice of the non-compliance with the requisite notices. He submitted that there is nothing on the record suggesting that Professor Umar, was anything other than a bona fide purchaser whose offer for the property was accepted by the Appellant.

In dealing with the Respondents’ issue No. 1, learned Counsel for the Respondents, Nasir Abdu Dangiri Esq, placed reliance on the provisions of Order 35 Rules 1 – 3 of the Kano State High Court (Civil Procedure) Rules which dealt with settlement of issues, and the cases of Amaechi v. INEC (supra) at 311 – 312, per Oguntade, J.S.C., and 448 – 449, per Aderemi, J.S.C.; Etim vs. Ekpe (1983) NSCC 86 at 95 – 95, per Aniagolu, J.S.C.; G & T Investment Ltd vs. Will & Bush Ltd (2011) 8 NWLR Part 1250 page 500 at 528 – 529; per Mukhtar, J.S.C., (as she then was) wherein Okulade v. Alade was referred to, Oguma A. G. Ltd vs. IBWA Ltd (1988) 3 SCNJ 13 at 22; Ipinlaye vs. Olukotun (1995) 6 SCNJ at 90 – 91; Union Bank v. Ozigi (1994) 3 SCNJ 42 at 53 – 54; IBWA vs. Imano (2001) 3 SCNJ 160 at 178; Unity Life & Fire Insurance Ltd vs. IBWA (2001) 7 NWLR Part 713 page 610 and Osita C. Nwosu vs. Imo State Environmental Sanitation Authority (1990) ALL WLR page 379 at 395 – 396. He argued that it was too late for the Appellant’s Counsel to challenge the admissibility of Exhibit 3 because that had already been admitted in evidence by consent of Counsel and without any objection to its admissibility. He submitted that Counsel cannot sit on the fence as the law does not permit that and must make his views known before case is fixed for judgment. He further submitted that if the Appellant did not like such a procedure he could have resisted it, but he did not. He then urged that issue No. 1 be resolved in favour of the Respondent, and against the Appellant.

Regarding issue No. 2, learned counsel submitted that the purported auction sale of the property, the subject matter of this action, by the Appellant at a gross undervalue of N12 Million is, not only a sham, but a fraud or pure humburg. He contended that the failure of the Appellant to, (1) prove that it acted in good faith and did not collude with the 3rd Defendant to sell the property in dispute for N12 Million in 2004, (2) produce the notice for the sale as required by the Auctioneers Law of Kano State since the sale was not by private treaty, are clear evidence that the exercise of the power of sale was not conducted under the principles or condition stated by the Supreme Court in W. A. B. Ltd v. Savannah Ventures Ltd (supra). He referred to Exhibit 1 which he described as the ‘Offer Letter’ of the N15 Million loan facility granted to the 1st and 2nd Respondents particularly at page 18 under column (2) as security, which indicated that the property covered by Certificate of Occupancy No. LKN/RES/98/35 is valued at N35 Million (FSR) by Jide Taiwo & Co. He explained that as at the 27th July, 2001, the Forced Sale Value (FSR) of the property was N35 Million. Counsel, also, referred to Exhibit 3 at pages 54-55 where it was stated by Jide Taiwo & Co that the Forced sale Value of the property at the date of valuation was in the sum of N35 Million only. Learned Counsel further made reference to the findings of the trial Court at pages 156 – 157 of the record to the effect that the Forced Sale Value of the property and its open Market Value were N35 Million and N45 Million respectively. He contended that no appeal has been filed against those findings of the lower court. He referred to the cases of W.A.B. Ltd vs. Savannah Ventures Ltd (2002) 10 NWLR Part 775 page 401 at 431 – 433, per Ayoola, J.S.C.; Ihekwoaba vs. A.C.B. Ltd (1998) 10 NWLR part 57 page 590 at 610; Okonkwo vs. C.C.B. (Nig) Ltd (2003) 8 NWLR Part 822 page 347 at 355 paragraph 5; Viatonu vs. Odutayo (1950) 10 NLR page 119 at 121; Daily Times vs. Williams (1986) 4 NWLR Part 36 page 26; Onagoruwa vs. I.G.P. (1991) 5 NWLR Part 193 page 593 at 650; NAS Ltd vs. UBA Plc (2005) 14 NWLR Part 945 page 421 at 437 and 4413 and S.P.D.C. (Nig) Ltd (supra), and, expressed that the law expects the mortgagee to act in good faith, i.e., to act bona fide.

He submitted that lack of good faith covers a multitude of conduct like dishonesty or reprehensibility, and, where the Mortgagee willfully deals with the property in such manner, that interest of the Mortgagor are sacrificed. He further submitted that the sale is itself evidence of fraud and collusion, as the interest of the 2nd plaintiff was sacrificed and that, the 3rd Defendant is not a bona fide purchaser for value. He stressed that being a native of Kano, he ought to have had fixed knowledge of value of even empty plot of land in Nasarawa, G.R.A., Kano, not to talk of a developed land.

He further contended that the Appellant had committed a breach of its statutory and fiduciary duties in selling the mortgaged property that its open Market value was N45 Million and Forced sale Value N35 Million on the 22nd May, 2011 for a party sum of N12 Million in October, 2004.
Learned counsel submitted that the Appellant deliberately and willfully concealed the real and actual value of the property and, instead, colluded with the 3rd Defendant to sacrifice the interests of the 1st and 2nd Respondents. He stressed that had the 3rd Defendant conducted a thorough search, he would discovered the Valuation Report; i.e., Exhibit 3.
He further stressed that sale at gross under value and lack of preciseness in the statement of the obligation of the supposed purchaser are all aspects and manifestation of absence of good faith. He then submitted that such sale to the 3rd Defendant who had notice of irregularity can be set aside (annulled) which he anchored on Okonkwo vs. C.C.B (supra).

He, also, stressed that the purported auction sale was conducted in contravention of the Auctioneers Laws of Kano State, and there is no evidence that section 19 of the said Law has been complied with. He reproduced the provisions of the said section 19 and submitted that there is no proof that a public auction took place. He submitted that the lack of advertisement and the failure to hold public auction as required is a good ground to set aside the purported sale. The sale in the absence of power to sell by private treaty and lack of notice as required by section 19 of the said Auctioneers Law are reprehensible as they are suggestive of fraud and collusion.

He explained that the essence of the notice required to be given is to ensure that a true public auction where everyone interested in the property may have the opportunity to bid for it, and, that the sale is not “a fraud upon the sale and upon the public”. He argued that no one can waive a right conferred on him by a law. The Auctioneers Law itself forbids waiver that is why there is a penal section. He argued strenuously on the failure of the Appellant to lead evidence in support of its assertions in the pleading which he stated is very fatal to the Appellant’s case. He therefore, persuaded this Court to resolve this issue in favour of the Respondent and dismiss the appeal.

The Appellant filed a Reply Brief in which it confronted some of the issues raised by the Respondents in their Brief. I must observe that most of the authorities already cited in the main brief were repeated in the Reply Brief.
I have, in great depth, considered the issues propositioned by the parties in their respective Briefs and the legal arguments of their Counsel on their behalf, and, I must state I find the three issues couched in the Appellant’s Brief of Argument appropriate as they appear to have evolved from the Appellant’s grounds of appeal.
The first issue for consideration as posited by the Appellant, is;
“Whether the lower Court’s insistence on relying on the Property Valuation Report because it had been commissioned by the Appellant and tendered with it’s consent despite the fact that its expert author did not testify and so could not be cross-examined, denied the Respondent fair hearing.”
This issue appears very interesting as it would once more, bring to focus, the necessity on the part of a party in an action to call oral evidence to substantiate his assertions and claims.
It would further highlight the dichotomy between the admissibility of a document and the weight to be attached to it by the Court.

It is instructive to note that a vital aspect of an action is proof of the contents of the pleading, therefore, it ought to be recognized that pleadings are not tantamount to evidence, therefore, it must be buttressed by material evidence not a sham. It is trite that any averments in a pleading not supported by evidence are deemed abandoned. See Osigwelem vs. I.N.E.C. (2011) 9 NWLR Part 1253 page 425.
It is one thing to present a claim before the Court or claim a relief, and it is another thing to prove it. Every single fact pleaded of which proof is required, must be proved by production of credible and cogent evidence consistent with the pleadings of a party to prove his case as facts not pleaded go to no issue.

By the provisions of the Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person, but the burden may in the course of a case be shifted from one side to the other. The law is, he who asserts must prove. It is after a plaintiff has proved his case that the burden of proof may shift to the defendant.

I must admit I find the procedure adopted by the lower court, the parties and their respective counsel in disposing of the issues raised between them in their main suit and counter-claim intriguing. They really goofed. The procedure whereby pleadings were filed and exchanged by the parties but not a minute oral evidence was tendered to even support the documentary evidence tendered from the Bar or relate them to the facts of the case seem to me absurd. The learned trial Judge even remarked that such procedure had the blessing of the apex Court in Amaechi vs. INEC (supra), yet, it was in the same, Amaechi vs. INEC, that the Supreme Court, per Mohammad, J.S.C. opined that it is indeed elementary principle of law that judgment or decision of a trial court must be supported by evidence. What is horridly agitating is; ‘how the trial court relied on an expert opinion expressed in Exhibit 3 that was not tendered through the maker/expert or someone the opposing party would have had the opportunity of cross-examining as to the contents of the same”
As I noted earlier, it is the basic principle of our law of evidence that he who asserts must prove. The burden of proof of the pleadings rests upon the party who substantially asserts the affirmative of an issue and who would fail if no evidence was adduced. Therefore, the trial Court will be in a serious error if it calls evidence suo motu to establish a fact which the plaintiff fails to do in the prosecution of his claim. For any Court to render sound legitimate legal judgment, particularly where oral evidence is required to prove the facts pleaded before the Court, the Court must give the parties the opportunity to tell their stories in a manner that would convince the Court in the assertions made in the parties, pleadings. Burden of proof is a central feature of all systems of adjudication.
I must admit I find the oral evidence stripped procedure adopted by the lower Court, the parties and their respective Counsel, in disposing of the issues raised between them in their main claim and Counter-Claim intriguing.
As I earlier observed, no oral evidence was adduced by the Plaintiffs at the lower court in proof of all the facts averred in their pleadings or the reliefs sought by them. The Exhibits tendered before the lower Court were tendered from the Bar with the consent of respective Counsel for the parties, and no evidence whatsoever was led to relate those Exhibits to the facts pleaded by the parties, or in support of them. The record portrays beyond doubt that the Respondents, as the Plaintiffs at the lower Court failed woefully to produce any evidence in proof of their case. The same thing applied to the Appellant in respect of its Counter-Claim. The parties had ample opportunity to produce evidence in respect of their respective claims but, they deliberately opted out of calling evidence and rather chose to tender Exhibits from the Bar and formulate issues and address the court on them.

Apart from the Evidence Act placing the onus on the person who asserts, Order 39 Rule 1 of the Kano State High Court (Civil Procedure Rules) Provides thus:
“Subject to the provisions of the Rules and of the Evidence Act, and any other enactment relating to evidence, any fact required to be proved at the trial of any action begun by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally in open Court.”
The onus is therefore on the Plaintiff to prove his case. If he succeeds in discharging the onus he will become entitled to judgment otherwise his action will fail irrespective of any weakness in the case for the Defendant although it is recognized that in certain cases the weakness of the defence may strengthen the case for the plaintiff. It is after the plaintiff has proved his case that the burden of proof shifts to the defendant. In that regard it has been well established that the judgment of a court must be confined to the relief sought in the light of the evidence adduced and the applicable law. What this connotes is that before a Plaintiff will be entitled to the relief sought by him, he must call credible and cogent evidence to prove all the allegations claim raised in his Statement of Claim.

The local point in issue No. 1 is the perceived weight attached to Exhibit 3, i.e., the Property Valuation Report prepared in 2001 by Jide Taiwo & Co, and which was not tendered through the expert/author nor were the contents confirmed on oath by another expert. It was vehemently contended by the Appellant’s counsel that neither the expert or author of Exhibit 3 nor any other expert testified before the trial court regarding the said Exhibit, whereas, the Respondents’ counsel perceived it from the angle that having consented to the kind of procedure adopted at the trial by the court, the Appellant is estopped from kicking against it now or castigating it, that it is too late in the day for him to do so.

It must be asserted that whatever procedure parties to a suit acquiesce to, such procedure must cohere with the procedural rules of our courts and the Evidence Act. It must be known to our adjectival laws, and, must not be an ingenious contrivance. It is therefore right to state that any procedural agreement or arrangement reached by the parties to a suit and the court that may have the effect of subjugating the fundamental principles of our Evidence Law on who lies the burden of proof and the standard of proof required in civil matters, or may have the effect of aiding a party who did not adduce any oral evidence in proof of his averments in his pleadings to be awarded such relief without a scintilla of proof, is invalid and cannot be invoked or enforced by any of the parties. It must be unequivocally stated that the fact the parties consented to tendering the admitted Exhibits from the Bar, did not relieve the Plaintiffs, who wished to rely on their contents in proof of their assertions, of the onerous duty to invite the makers i.e. Jide Taiwo & Co to explain to the Court how they arrived at such a valuation, or another expert who can be crossed-examined on the contents.

In our Law of Evidence, the existence of one opinion generated by a valuer does not oblige other valuers to accept or adopt that opinion, therefore, since the Respondents decided to adopt the opinion proffered by Jide Taiwo in Exhibit 3, they ought to have adduced oral evidence in that respect so that they could have been cross-examined as to the basis upon which they make such adoption. This is because there is possibility that either of the appointed experts may come to an entirely different conclusion from that articulated by Jide Taiwo & Co.

It is the law that since the Respondents decided to tender the Report, they ought to have called the evidence of Jide Taiwo & Co., or any other expert as enunciated by the Supreme Court in Nteogwuile v. Otuo (2001) 15 NWLR Part 738 page 58, per Ogwuegbu, J.S.C. at page 75 cited by the Appellant’s counsel. The Supreme Court clearly held that the mere fact Exhibit C was tendered was no licence for the learned trial Judge to comb the said Exhibit and use any material that came his way as if they were facts pleaded and evidence adduced at the trial and that before the opinion expressed in Exhibit C could become part of the evidence which the trial court could act upon and in the absence of the writer as a witness, such opinion must be put to another expert in the same field who is a witness in the case for his confirmation. Where this is done, the opinion properly becomes part of the evidence in the case and the trial Judge is entitled to consider it as such.

Unfortunately, such scenario is completely lacking in the instant matter. The plaintiffs in the present appeal not only failed to call the experts from Jide Taiwo & Co who authored the same but, also, failed to call any other expert in the same field to whom the Exhibit could have been put, to confirm the assertions or the Open Market Value or the Forced Sale Value of the property as at 2001 stated therein. The reason why such expert opinion shall not be treated as a strait-jacketed proof of the facts contained therein without more, was demonstrated by the Supreme Court in Rockonoh Property Co. Ltd and Nigerian Telecommunications Plc & anor (2001) 14 NWLR Part 733 page 468, per Uwaifo, J.S.C. His Lordship when dealing with Exhibit V. the Valuation Report tendered therein expressed thus:
“The law does not permit evidence which is of no probative value to be relied upon by a party, nor to be acted upon by the Court, to support a claim. It is an important aspect of civil procedure that for evidence to be considered useful and which a Court can act upon, there are certain basic qualities it must possess. The first consideration is usually the double requirement of relevancy and admissibility. But in essence they can be separated. The evidence must be relevant to a fact in issue, or to any fact which, though not in issue, is so connected with the fact in issue or relevant to a fact which is inconsistent to any fact in issue or to a fact which by itself or in connection with any other fact makes the existence or non-existence of any fact in issue probable or improbable. It must be admissible having regard to the facts pleaded and if no law or rule precludes its admission. See Emegokwue vs. Okadigbo (1973) 4 SC 113; Onobruchere vs. Esegine (1986) 1 NWLR Part 19 page 799. It must have credibility or cogency thereby enabling the judge to ascribe some probative value to it having regard to its nature and what it is intended to establish: Misr (nig) Ltd. vs. Ibrahim (1974) 5 SC 55 at 62; Aikhionbare vs. Omoregie (1976) 12 SC 11 at 27. I have had to state the above because Exhibit V neither has cogency nor any probative value which can be ascribed to it.” (Underlined for emphasis)

It needs to be straightened that even if there were averments in the plaintiffs’ Joint Statement of Claim, alleging that Jide Taiwo & Co carried out valuation of the said property in 2001 at the instructions of the Appellant, there was no evidence tendered before the trial Court to prove the allegation. Not even a shred of evidence was placed before the lower Court supporting it’s findings on the value of the said property as stated in Exhibit 3. Exhibit 3 had no platform on which it was based. It has no probative value. It was merely tendered as an Exhibit without any fact supporting it. The fact it was admitted by the trial Court does not imply it has any probative value. There was no evidence placed before the lower Court to show the platform on which the valuation was based or calculated. The questions the experts should have aided the Court in solving therein were whether the calculations of the said Open Market Value and Forced Sale Value were based on speculations or as in Rockonoh’s case (supra) on Bank interest rate? It was not stated before the lower Court the factors taken into consideration in those calculations or what were considered therein?

I must express that by admitting the said Property Valuation Report as Exhibit 3 in the suit without oral evidence supporting it, and acting upon its contents, the trial Court completely deprived the opposing party, in this case, the Appellant, of the forensic advantage of cross examining Jide Taiwo, the author of the said Exhibit 3 or any other expert they could have called to shade light on the factors upon which Jide Taiwo & Co pivoted its opinion. It does not matter it was the Appellant that engaged their services for the preparation of the same.

In A-G., Oyo State v. Fairlakes Hotels (No.2) (1989) NWLR Part 121 page 255 or (1988)12 S.C Part 1 page 1, Agbaje, JSC; held thus:
“The position, as I see it, is as follows. Oral evidence and a document put in evidence under section 90 of the Evidence Act cannot, on the authorities, receive the same treatment when it comes to the matter of evaluating such evidence. The former, if unchallenged, must, on the authorities, be accepted as establishing the facts therein stated. As regards the latter, documents admitted by the consent or by the Court in the absence of their maker under section 90 of the Evidence Act, the court still has, on the authorities, a duty to consider the weight to be attached to such documentary evidence before coming to the conclusion as to whether or not it establishes the facts stated therein, in any case, short of that in which there is an admission by the opposing side that it does.
I have, no doubt, therefore, in holding that the lower court, the Court of Appeal, was in error in equating Exh. B, the feasibility report, admissible in evidence under Section 90 of the Evidence Act, with oral evidence given in the witness-box by a witness for the purposes of the evaluation of that evidence. Because of this error, the Court of Appeal with respect, again, in my view, fell into the error of holding that since there was no challenge to Exh. B, it must be accepted as establishing the facts stated therein, regardless of any circumstance from which any inference can reasonably be drawn as to the weight, if any, to be attached to the document.”Â Â (underlined for emphasis)

From the standpoint of the aforementioned case, it is equally, my view that the lower court was in error in equating Exhibit 3, the Property Valuation Report admissible in evidence under section 90 of the Evidence Act, with oral evidence given in the witness – box by a witness for the purposes of the evaluation of that evidence. It was wrong for the trial court to have held that since there was no challenge to Exhibit 3, it must be accepted as establishing the facts stated therein, regardless of any circumstances from which there is an admission by the opposing side that it does.

The evidence from which the trial court could have inferred the weight to be attached to the document was not before it. The Respondents by merely putting Exhibit 3 in evidence without more have not proved their entitlement to the Forced Sale Value of the said property in the sum of N35 million claimed by them. The lower court was in error to have held that the property Valuation Report in the circumstances of this case, would suffice to establish the Respondents’ claim to the Forced sale Value of the said property. The lower court stated that it was for the Appellant to give or tender evidence. The law is that the onus is on the Respondents to read evidence in this case showing that the probabilities upon which Exhibit 3 was based are valid before there will be any onus on the defendants to show that the purported Forced Sale value was improbable. In the light of the absence of a supporting evidence on which the said Exhibit 3, could have been hinged, I resolve issue No. 1 in favour of the Appellant.

I will consider issues Nos. 2 and 3 together. It is trite that it is the value of the property in question at the time of sale that is relevant not the value before the time of the sale. In African Continental Bank Ltd & 2 Ors vs. Simon Ihekwoaba & 4 Ors (2003) 16 NWLR Part 845 page 249 referred to by both counsel, Ogundare, J.S.C., at page 267 expressed thus:
“True enough there was evidence that the property was valued by a valuer at the time the mortgage was being executed at N194,000.00. But no valuer gave evidence as to the value of the property at the time of sale. A number of factors would have to be taken into consideration in determining whether the value of the property had appreciated or depreciated. This would depend on such factors as the state of repairs of the property at the time of sale and market value of real property at that time. The Respondents led no evidence on these factors. They relied on ipse dixit of the 1st Respondent:
“I did not hear that my property was sold. I did not hear that it was bought by the Plaintiff. The auctioneer told me that the property had been sold. He also told me the name of the person that bought it – the plaintiff-the same auctioneer told me that the property was sold for N115,000.00. In 1987 I caused valuation of that property to be made. It was before the auctioneer gave me the information regarding the sale of the property. I had already done the valuation before 3rd April, 1987, the report was issued in May, 1987. I required it for my own purpose. That report was in my possession before I filed my suit. I did not refer to that report in my amended statement of defence.
Also in my amended statement of claim I did not refer to it. The valuation report was available as a 17/1/96 when I filed the amendments, I did not make it for the purpose of prosecuting this case.”
Earlier in his evidence in chief, the 1st plaintiff had said:
“As at 1987, the property was worth N3 million. I caused a valuation of same to be made. This is the valuation report the valuer gave to me – IDI”
I would find it difficult to disagree with the learned trial Judge that the respondents on whom lay the burden of proof that the property was sold at under value, discharged that burden on the evidence highlighted above.
The learned Justices of the court below, with profound respect to them, base their conclusion on mere speculation rather than on evidence. Uwaifo, JCA in his lead judgment opined:
“Ordinarily, the Property valued at N194,000.00 in 1977 would have appreciated reasonably ten years later 1987. The economic history of this country tells us that in 1977 the exchange rate of the Naira to the pound sterling was almost at par. We cannot feign ignorance of that. With the known devaluation of the Naira in 1987, the least the sum of N194,000.00 in 1977 would have been considered worth in 1987 would be upwards of three times. That would easily make it about N600,000.00 (N582,000.00 if three times). This does not take account yet of the expected appreciation of the property itself over the years. We sometimes ignore such prospects only at the risk of being regarded as unfamiliar with (perhaps better to say ignorant of) basic knowledge or common principles to help us decide these matters unrealistic in our approach to circumstances which should normally be taken for granted; or as it, in some extreme opinion, we appear to live in a cocoon. I admit that what cannot be stated definitely as facts and figures owing to the absence of concrete evidence is the exact valuation. But that should not deter the making of a comparative use of the accepted value of N194,000.00 of the property as at 1977 when the property was purportedly sold in 1987 for N115,000.00 to see, at least, what might represent a proper value.”

I have scanned through the record of appeal and do not find that any evidence of economic history of this country was led at the trial.
Indeed the premise upon which the learned Justices of the Court of Appeal came to the conclusion that:
“Taking all these into consideration, it would be difficult not to regard the price of N115,00.00 as gross undervalue of the property in question. There can hardly be any pretence about these matters,” was based on mere speculation unrelated to any evidence adduced at the trial. It must be borne in mind at all times that:
“it is of intrinsic relevance to the administration of justice in our legal system that the hearing of an appeal does not permit the Appeal Court to enquire into disputes, but to inquire into ways the disputes have been tried and settled – see Zaria vs. Maituwo (1965) NMLR 59; Oroke v. Edex (1954) NNLR 118.” (underlined for emphasis)
Per Karibi-Whyte, J.S.C in Ajadi vs. Okenihun (1985) 1 NWLR Part 3 page 484 (1985) ANLR 240 at 248.
The law as to sale under under-value is laid down by this court in Ekaele vs. Nigeria Housing Development Society Ltd. (73) 6 SC 183 at 198 in these words:
“We think it is now beyond controversy that undervalue alone is not enough to vitiate the exercise of a mortgage’s power of sale. It must be shown that the sale was made at a fraudulent or gross undervalue. Indeed, it is well established that ‘if a mortgagee exercises, his power of sale bona fide for the purpose of realizing his debt and without collusion with the purchaser, the Court will not interfere even though the sale be very disadvantageous, unless the price is so low as in itself to be evidence of fraud.” (see Warner vs. Jacob (1882) 20 Ch. D.220) (Underlined for emphasis)
In Coote on Mortagege, Vol. 2, 9th ed., at p.927, the law on this point is stated as follows:
“The only obligation incumbent on a mortgagee selling under a power of sale in his mortgage 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 mode of exercising the power, provided he acts bona fide and observes reasonable precautions to obtain not the “best price” but “a proper price”.
We think the learned editors of this treatise have correctly stated the law and we agree with them on the point.
It is worthy of note that a mortgagee is expected to obtain not the “best price” but “a proper price”.
With profound respect to their Lordships of the Court below who gave the majority decisions, I cannot agree that on the evidence, sale at undervalue was disclosed.”

It is glaring in the record of this appeal that no piece of oral evidence was placed before the lower Court let alone any evidence stating what the price of the said property was as at 2004 it was sold.Furthermore, there was no evidence supporting the allegations of fraud pleaded in the Respondents’ Joint Statement of Claim. Since it is an allegation bordering on commission of crime, it ought to have been proved beyond reasonable doubt. It is settled that those specific allegations must be proved before the lower Court to enable the Court ascertain if there were fraudulent undervalue and collusion between the Appellant and the buyer.

In Okonkwo vs. C. C. B. (Nig) Plc (2003) 8 NWLR Part 822 pages 363 – 364, Kutigi, J.S.C stated thus:
“Fraud, as a crime, must be specifically pleaded and proved. In other words, charges of fraud and charges of criminal malfeasance or felony against a defendant ought not to be made at the hearing of an action unless, in a case where there are pleadings, those charges have been definitely and clearly alleged so that the defendant comes into court prepared to meet them. In the instant case, the appellant did not specifically plead the allegation of fraud; neither did he adduce evidence on it. Even if he had given evidence, the evidence would have gone to no issue. This is because evidence not borne out from the pleadings is inadmissible. (U.A.C. Ltd vs. Taylor (1934) 2 WACA 67; Tamakloe vs. The Basel Trading Company Ltd. (1940) 6 WACA 231; Usefowokan vs. Idowu (1959) NMLR 77; Fabunmi vs. Agbe (1985) 1 NWLR Part 2) page 299; Adimora vs. Ajufo (1988) 3 NWLR Part 80 page 1 referred to.) page 415 paras. E – H)”.

It is distinct in the record before this court that there is stark lack of evidence upon which the decision of the lower court was based. The entire proceeding conducted by the lower Court is a complete sham.
I could not phantom what could have triggered the lower court and the parties to have embarked on this futile voyage of conducting trial in a highly contentious matter of this magnitude without hearing or adducing oral evidence to support the parties’ averments in their pleadings. On this footing, too I hereby resolve issues 2 and 3 in favour of the Appellant.
As I earlier observed, undervalue alone is not enough to vitiate the exercise of a Mortgagee’s power of sale, it must be shown that the sale was made at fraudulent or gross undervalue. In F.B.N. Plc v. Fashar (2000) 1 NWLR Part 662 page 631, the case of Majekodunmi vs. Coop Bank Ltd. (1997) 10 NWLR part 524 page 198 was referred to and in which Adamu, J.C.A., held thus:
“(1) once the power of sale arises and becomes exercisable, its improper or irregular exercise will not make the purchaser’s title impeachable – see T. B. Erikotola vs. A. S. Alli & Ors (supra); and Sabbach vs. The Bank of West Africa Ltd. (1962) LLR 174. The auctioneer in the present case was only invited as an agent or independent contractor of the 1st Respondent for the purpose of the auction sale and since it was his field of expertise for which he had acquired a licence to practice, he should be held responsible in damages for any injury suffered by the Appellant for his (i.e. auctioneer’s) non-compliance with the Auctioneers Law (2) it is also trite that the wrongfulness of a sale by mortgagee does not necessarily render the sale invalid and a bona-fide purchaser from the said mortgage (in the present case the 2nd Respondent) is protected under the Property and Coveyancing Law – see The Registered Trustees of the Nigerian union of Teachers vs. Sankey (1951) 20 NLR 23; Raji v S. Williams (1941) 7 WACA 147; and Reinnock vs. G.B. Ollivant & Co. Ltd (1934) 2 WACA 164. Even where the auction sale was made without requisite publicity or notice it was held that the mortgagor would only be damnified by the mortgagee in damages rather than being a ground for setting aside the sale – see Sanusi vs. Daniel (1956) SCBLR 288; (1956) 1 FSC 93 and Akpeampong vs. Atokora (1952) 14 WACA 4. The protection given to the bona fide purchaser is derived from the statutory provision. Thus it is expressly provided in section 126(2) of the Property and Conveyancing Law of Oyo State 126 (1) ……………..
(2) Where a conveyance is made in exercise of the power of sale conferred by this law, or any enactment replaced by this law. The title of the Purchaser shall not be impeachable on the ground:-
(a) that no case had arisen to authorize the sale; or
(b) that due notice was not given; or
(c) whether the mortgage was made before or after commencement of this law, that the Power was otherwise improperly irregularly exercised; and a Purchaser is not, either before or on conveyance, concerned to see or inquire whether a case has arisen to authorize the sale, or due notice has been given, or the power is otherwise properly and regularly exercised; but any person damnified by an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.”
The above provision in my humble view applies to the present case and as rightly held by the learned trial Judge has rendered the auction sale to the 2nd Respondent on 28/4/85 unimpeachable due to any irregularity or non-compliance with Auctioneers Law regulation as canvassed in the Appellant’s brief. Even if there was such non-compliance or irregularity and the appellant has suffered any damages that he proved, his remedy lies in an action against the mortgagee (1st Respondent), on whose behalf the auction sale was carried out. (see also the above cases).” (underlined for emphasis)
As I clearly stated, not an iota of oral evidence was proffered by the 1st and 2nd Respondents to prove any of the allegations of fraudulent or gross undervalue or that the Appellant exercised its power of sale improperly or irregularly. Even at that, the law is that once the power of sale has arisen and becomes exercisable, its improper or irregular exercise will not affect the title of a subsequent purchaser or make it impeachable. The sale will be regarded as valid.

It is the law that where the Plaintiff in the main action fails it does not necessarily follow that the counter-claim must succeed unless findings are made in the main action in favour of the Plaintiff in the Counter-Claim (i.e. Defendant in the main action) entitling him to succeed. As it is, the reliefs sought in the main claim were not proved by the 1st and 2nd Respondents. The Appellant had already exercised its power of sale and sold the property under the Deed of Mortgage it had with the 1st and 2nd Respondents, to the 3rd Respondent and in whom, title of the said property now resides. Consequently, since the title of the 3rd Respondent remains unimpeachable, possession in the said property situate at No. 28 Borno Avenue, Kano lies with him, and the same shall be surrendered to him as stipulated by the law. Accordingly, this appeal is hereby allowed, and, the judgment of the lower Court and the orders made therein having not been supported by any oral evidence will be and are hereby set aside. In their place the claims of the Respondents are hereby dismissed for want of proof. I make no order as to costs.

ITA G. MBABA J.C.A.: I have had the advantage of reading, in draft, the lead judgment delivery by my Lord ORJI-ABADUA JCA, and I agree with her that there was a total absence of evidence to base the judgment of the trial Court, since no evidence was called on the case by either side, the case having been originated by writ of summons and fought by means of pleadings, not affidavit evidence.

Only this afternoon this Court held in the case of ADEWALE AKEEN OWOSENI VS. TOLA ADEOLA OWOSENI: CA/K/310/2011, an unreported decision of this Court, that a Court cannot give judgment in a case fought by pleadings, when it has not heard or taken evidence from the parties; that pleadings must be converted to evidence on which the Court can rely as basis for its decision. In that case the decision of the Supreme Court in the case of MENAKAYA V. MENAKAYA (2001) 16 NWLR (Pt. 738) 203 at 252 – 253 was referred and relied upon, which says:
“… can a judge proceed to judgment in a matter before him without a hearing and in the absence of the parties arriving at the terms of settlement? I rather think not … But the Court does not exercise its discretion in vacuo but on legal evidence or materials placed before it by the parties. The learned trial judge dissolved the marriage between the parties without any evidence on what then had the petitioner satisfied the learned judge as required by section 15 (2) of the Act? On what then was the judge satisfied that the marriage had broken down irretrievably? None whatsoever. Had their Lordships addressed their minds to these questions they would have unhesitatingly set aside the judgment of the trial Court and order a proper hearing of the petition and Cross Petition.”
Per OGUNDARE JSC.

It was clearly a strange procedure that the counsel and the court adopted, when the counsel allegedly identified issues and addressed the Court on the said issues in the case, when the case was yet to be heard to establish such issues for address by counsel. Of course, the address of counsel in the circumstances, were mere speculations as they were not founded on evidence adduced in court. Address of Counsel is never a substitute for evidence, and amounts to mere hot air, no matter how brilliant, when not founded on evidence adduced in Court.

With this and fuller reasons in the lead judgment, I too allow the appeal and set aside the decision of the trial Court. But I do not agree with the consequential order, dismissing the case at the trial Court, as I think the same should rather be struck out, since no evidence was led in the case to prove or disprove it. I therefore strike out the suit No. KAH/KAF/9/2001 delivered on 5/10/2004. No order as to cost.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I wish to add a few comments. The Respondents, as plaintiffs, commenced this action against the Appellant and two other persons, as first, second and third defendants, and their claims were as detailed in a joint statement of claim dated 13th September, 2006 and the statement of claim contained averments of forty paragraphs in support of the claims.

The Appellant, as the first defendant, and the person sued as the third defendant filed a joint statement of defence and counterclaim consisting of twenty-six paragraphs. The Respondents filed a reply to the statement of defence and counterclaim and it consisted of twenty paragraphs. The pleadings contained vehement disputes on the material facts relied on upon by the parties in support of the claims and counterclaims. At the close of pleadings, the parties, strangely, agreed not to call oral evidence to prove the averments in the pleadings. Rather they formulated issues for determination, tendered four documents by consent from the Bar and they filed written addresses in argument of the issues they formulated. The judgment of the lower Court was a product of this rather bizarre procedure.

Further, the procedure of tendering the documents from the Bar adopted by the parties is a very peculiar one and, to the best of my knowledge, it is a procedure available only for the tendering of certified true copies of public documents. This is because by the provision of section 112 of the erstwhile Evidence Act, the applicable law at the times material to this case, a public document was admissible in evidence on its mere production without the need for any further proof. Therefore to qualify for “tendering from the Bar procedure” the document must be a public document duly certified by the appropriate authority, and nothing else. Three of the four documents tendered from the Bar in the instant case were private documents and did not qualify for tendering from the Bar.
Applying these principles to the procedure adopted by the parties in this matter in the lower Court, it is obvious that there were no viable pleadings or useful evidence upon which the lower Court could have based its judgment.

Counsel to the Respondents echoed the position taken by the lower Court in the judgment that this adopted procedure accorded with what took place in the case of Amaechi V. Independent National Electoral Commission (2008) 5 NWLR (Pt 1080) 227 and was sanctioned by the Supreme Court. Counsel to the Respondents quoted extensively in his brief of arguments from statements of Oguntade, JSC and Aderemi, JSC in that case. It is correct that it was a similar procedure that was adopted by the parties in that case and the procedure was sanctioned by the Supreme Court.
However, it essential to appreciate that, in jurisprudence, not every decision of a higher Court can serve as judicial precedent to govern the course of action to be taken in subsequent matters. This is because it is understood that certain decisions are given to meet exigent situations or to resolve a prevailing and immediate issue of social or political emergency. It is my view that the decision of the Supreme Court in Amaechi V. Independent National Electoral Commission supra falls within this category of decisions, just like the decision of the Supreme Court in Awolowo V. Shagari (1979) 1 All NLR 120; the only difference being that the Supreme Court came out to say so in the case of Awolowo V. Shagari supra. The decision in Amaechi V. Independent National Electoral Commission supra on the said procedure adopted by the parties went against hundreds of previous decisions of the Supreme Court on the way and manner a trial in matters commenced by writ of summons is conducted and evidence received thereat and there is nothing to show that the adoption of such procedure has been sanctioned by the Supreme Court in any of its subsequent decisions in similar circumstances. There is a principle in jurisprudence that a decision of Court which goes against an avalanche of other case law authorities on the same point does not constitute a just decision not does it amount to good law. This point was made by Oputa, JSC in Onuoha v. State (1989) 1 NSCC 411 at 421 thus:
“….’a just decision of the case’ will be a decision in accord with the many, many authorities and previous decisions of our courts as well as English decisions which our courts have followed and adopted. A decision that throws all our existing authorities to the wind, will no doubt be an alarming decision, but hardly a just decision.”
It is common sense that a decision of a higher court that does not constitute a just decision or does not qualify as good law cannot constitute a viable judicial precedent.
Counsel to the Respondents also referred to the provisions of Order 35 Rules 1-3 of the Kano State High Court (Civil Procedure) Rules 1988 dealing with Settlement and Trial of Issues. A close reading of those provisions shows clearly that they are applicable in situations where there are no disputes on the pleadings of the parties on the material facts of a case or where the admitted facts on the pleading raise an issue of law, the resolution of which is capable disposing of the entire case or of part of the case. They are not applicable in circumstances, as in the case, where there irreconcilable disputes on the pleadings on material facts of the case.

The folly of the procedure adopted by the parties is emphasized by the submissions of Counsel to the parties on the use to which the valuation report of the property in issue in the matter prepared by Messrs Jide Taiwo & Co was put by the lower Court in the judgment. The valuation report was one of the documents admitted from the Bar and marked as Exhibit 3 and it formed the fulcrum upon which the lower Court based its findings in the judgment. It is beyond contest that the contents of the valuation report, Exhibit 3, are the opinions of the said Messrs Jide Taiwo & Co on what they thought the value of the property was. By the provision of section 67 of the Evidence Act, 2011 the opinion of any person as to the existence or non-existence of a fact in issue or relevant to the fact in issue is inadmissible in evidence. The Evidence Act contains exceptions to this general de in section 68 to 76. Section 68 exempts the opinions of expert. Thus, for the valuation report, Exhibit 3, to be of any use at all in the proceedings, Messrs Jide Taiwo & Co who formed the opinions contained therein must qualify as experts; otherwise their opinions in Exhibit 3 are useless and inadmissible.

Section 68 of the Evidence Act defines an expert as someone who is specially skilled in the field he is called to testify upon. The learned authors of the Black’s Law Dictionary 9th Ed defined an expert as “a person who, through education or experience, has developed skill or knowledge in a particular subject, so that he or she may form an opinion that will assist the fact finder”. In Seismograph Service Ltd V. Onokpasa (1972) All NLR 347, the Supreme Court stated that the correct test of the relevance of the witness’s opinion as that of an expert is whether he is specially skilled in the particular field in question. The general agreement of decided cases is that the question of whether or not a person qualifies as an expert is one of fact to be determined by the trial Judge before whom he is called testify and the onus is on the party calling the witness as an expert. In All Nigeria Peoples Party V. Usman (2008) 12 NWLR (Pt 1100) 1, Aboki JCA stated at pages 72 to 73 thus:
“It is for the Judge to decide whether or not a person is sufficiently skilled to give expert evidence. The correct test of the relevance of the witness’s opinion as that of an expert is whether he is specially skilled in the particular field in question where the evidence of the opinion of an expert is relevant. He may be called as a witness and must first of all state his qualification and satisfy the court that he is an expert on the subject in which he is to give his opinion …
There must be enough material before the court to warrant the treating of a witness as an expert and the reception of his evidence as relevant evidence…
The party calling an expert witness has a duty to elicit from him in the witness box, evidence of the basis of his claim as an expert e.g. professional training, academic background and experience. And it is the duty of the opposing counsel where appropriate, to cross-examine the expert effectively in order to raise doubt as to the witness expertise…”
These views were re-echoed by Kekere-Ekun, JCA (as he then was) in Tuah V. Michael (2010) 10 NWLR (Pt 1203) 519 at 533 to 534. The learned Justice referred to the definition of an expert in the Evidence Act and stated thus:
“While the above section of the Evidence Act states who an expert is, it does not provide any guidelines for ascertaining the expertise of a person held out as an expert. In practice, the court usually relies on evidence as to the educational or practical experience of the expert to ascribe probative value to his evidence. It is the duty of the court to decide, based on the evidence before it whether or not a person is sufficiently skilled to give expert evidence. The usual practice is for the party calling an expert to elicit from him in the witness box those factors that qualify him as an expert on the subject on which he is to give an opinion, such as his academic qualifications, professional training or practical experience in the field….”

No evidence was led by the patties in this matter to establish that the author of the valuation report is an expert. This makes the valuation report inadmissible evidence. This is not an anomaly that can be glossed over with the principle that since the Appellant conceded to the procedure by which the valuation report was brought in, he cannot contest its admissibility. Opinion evidence is made totally inadmissible by section 67 of the Evidence Act and the parties cannot by consent override the clear provision of the law – G & T Investment Ltd V. Witts & Bush Ltd (2011) 8 NWLR (Pt 1250) 500.

There were no pleadings or useful evidence upon which the lower Court could have based its judgment in this matter. The judgment cannot thus be allowed to stand. The claims and counterclaims of the parties were not decided on the merits and it is my view that they are liable to be struck out. It is for these reasons and the fuller deliberations in the lead judgment that I also find merit in this appeal. I allow the appeal and set aside the judgment of the High Court of Kano State in Suit No K/168/05 delivered by Honorable Justice Wada Abubakar Omar on the 30th of December, 2008. I hereby enter an order striking out the claims of the Respondents and the counterclaims of the Appellant. I abide the order on costs in the lead judgment.

Appearances

J. M. M. Majiyagbe Esq; For Appellant

AND

N. A. Danjiri Esq; For Respondent