ALABA EWARAWON v. FIRST BANK OF NIGERIA PLC & ANOR
(2019)LCN/13912(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of June, 2019
CA/AK/57/2015
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
ALABA EWARAWON
(For and on behalf of the children
of late Mr. Samuel Ekolere Ewarawon) Appellant(s)
AND
1. FIRST BANK OF NIGERIA PLC
2. MR. ABIMBOLA KUKOYI Respondent(s)
RATIO
WHETHER OR NOT PARTIES AND COURTS ARE BOUND BY THEIR PLEADINGS
A cursory look at the statement of claim of the Appellant as claimant before the trial Court nothing disclosing the fact that he filed the action in representative capacity to protect a family property. The brief of argument filed by the Appellant which contained an argument to that effect cannot represent facts not pleaded and evidence adduced in support thereto. Parties are bound by their pleadings as presented to Court and the Court also is bound by same. See ANYAFULU V MEKA (SUPRA). PER ABDULLAHI, J.C.A.
PARTIES ARE NOT ALLOWED TO START A NEW CASE ON APPEAL
It is an established principle of law that a party cannot be allowed to set up a new case on appeal other than which he presented at the trial Court. See REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V. N.A.M.A. (SUPRA) and MBANEFO V. AGBU (SUPRA).PER ABDULLAHI, J.C.A.
WHETHER OR NOT A PARTY CAN BENEFIT FROM INVALID CONSENT
I will answer this question in the negative in view of the decision of the Supreme Court in the case of UGOCHUKWU V. COOPERATIVE & COMMERCE BANK (1996) 6 NWLR (PT. 456) 524 per OGUNDARE, JSC (of blessed memory) and case of OMONIYI V. UBA (2001) FWLR (PT. 63) 54 @ 67.
Flowing from the aforesaid, Appellant cannot be allowed to benefit from the invalid consent obtained by his late father to escape from the liability under the Mortgage Deed the deceased entered. Moreso that in recognition of the liability, the Appellant made part payment of N435, 000.00 which by his relief (E) is asking for refund of same. PER ABDULLAHI, J.C.A.
WHETHER A PARTY CAN RECOVER TITLE DOCUMENT IN MORTGAGE WITHOUT PAYING THE DEBT OWED UNDER THE MORTGAGE
I am in agreement with the learned counsel to the Respondents that the Appellant cannot recover the title document being security without payment of the debt arising from the facility enjoyed by the Appellant?s deceased father who executed the Deed of Legal Mortgage. See the cases of YARO V AREWA CONST. LTD; NDABA (NIG.) LTD V. U.B.N. PLC AND NIGERIAN ADVERT. SERVICES LTD V. U.B.A (SUPRA). PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): The Appellant brought this appeal against the judgment of Ondo State High Court sitting in Okitipupa Division in Suit No: HOK/30/2011 delivered on the 5th day of March, 2014 by Hon. Justice S. A. Bola wherein the Appellant?s suit was struck out. Dissatisfied with the decision, the Appellant in representative capacity filed a Notice of Appeal on the 10th of March, 2014 containing four(4) grounds of appeal. See pages 227-230 of the record of appeal. It was amended by the order of this court made on 23rd day of March, 2017. The Amended Notice of Appeal contained seven(7) grounds of appeal.
FACTS OF THE CASE IN BRIEF
The Appellant in this suit was the plaintiff before the trial Court. The appellant instituted the action at the trial Court in representative capacity for himself and on behalf of other children of his late father, Mr. Samuel Ekolere Ewarawon. The Appellant is one of the children of the said Late Mr. Samuel Ekolere Ewarawon, the original owner of the residential building situate at No. 34, New ?site A? Apata Okitipupa Local Government Area,
1
Ondo State.
The Appellant Late father in his life time registered a company with the name SEA electro consult and open a bank account with the 1st respondent at its branch office at Igbokoda, Ilaje Local Govt Area Ondo State. The 2nd Respondent was the branch manager of the 1st respondent as at the time of the transaction. The Appellant father approached the 1st Respondent to secure loan facilities from the 1st respondent in the name of the company, the sea electro consult. The Appellant father thereafter entered a mortgage agreement with the 1st Respondent, thus deposited document of title to his residential building afore-described as security for the loan.
?The appellant father however died before he could upset the debt. The respondents informed the Appellant and his siblings of their father?s indebtedness to the 1st Respondent and the Appellant agreed to upset the debt and consequently paid over N400, 000.00 out of the alleged over 2million naira debt. The Appellant later stoped paying when he suspected some fraud on the part of the 2nd Respondent. When the appellant stopped paying, the respondents started making moves to sell the residential building. And the Appellant upon discovering the attempts by the respondents to sell the building, decided to institute this action aganst the respondents. The Appellant by his suit sought the following relief before the trial Court;
A. A DECLARATION that the deed of mortgage dated 22nd day of January, 1999, executed between (T/S Sea Electro Consult) and signed for by the plaintiff?s late father, Mr. Samuel Ekolere Adeniji Ewarawon (deceased) and the 1st defendant, on the property which now devolve to the plaintiff upon the death of their said father, a residential building situated at No. 34 New site ?A? Apata, Okitipupa Local Government Area Ondo State, is null and void on the ground that the requisite Governor, a consent was not obtained before the execution of same.
B. A DECLARATION that the plaintiff said late father is separate and distinct from the limited liability company, Sea Electro Consult and that the plaintiff late father was not liable for the loan, if any granted the said company, by the 1st defendant, which the defendants could demand from the plaintiff as children of the said late Mr. Samuel Ekolere Adeniji Ewarawon.
C. A DECLARATION that the default in the payment of the loan facility, if any granted to Sea Electro Consult, cannot be enforced against the said personal property of the plaintiff?s late father as the former Managing Director in the company, Sea Electro Consult.
D. AN ORDER DIRECTING the defendants their agents and servants to return to the plaintiff who has inherited the said property, the title deed a certificate of statutory right of occupancy dated 11th February, 1997 and registered as No. 16 at page 16, volume 360 of the land registry Akure which is in custody of the defendants as a result of the mortgage deed aforementioned.
E. AN ORDER DIRECTING the defendants to refund to the plaintiff the N435,000.00 which the 2nd defendants unlawfully induced the plaintiff to pay to the 2nd defendants on a trump up allegation of the plaintiff late father indebtedness to the 1st defendants.
F. AN ORDER RESTRAINING the defendants their agents and servants from further harassment of the plaintiff and in any manner interfere or trespass with the plaintiff late father said property, on account of the loan facility, if any granted to Sea Electro Consult.
G. N5 MILLION NAIRA as general damages for the sundry harassment and embarrassment caused to the plaintiff by the defendants in respect of the loan facility.
After the conclusion of the trial, the Court in its judgment held that the Appellant has no locus standi to institute the action having not obtained a letter of administration from the probate registry since their father died intestate.
In compliance with the Rules of Court, the parties filed and exchanged Briefs of Argument and the appeal was set down for hearing which it was taken on the 5th of March, 2019 by adoption of the two briefs.
The Appellant?s Brief of Argument settled by Omolegbon Odusola Esq., was adopted by him who identified same as filed on the 20th April, 2017 which contained three (3) for the determination of the appeal, as follows:
1) Whether the Appellants lacked locus standi to sue in this case in respect of the deceased father?s property in the absence of letter of administration (GROUND FIVE).
2) Whether the trial judge rightfully or wrongly refused to follow the recent decision of the Supreme Court in th case of Union Bank of Nigeria Plc. & Anr Vs. Ayodare & Sons (Nig) Ltd & Anor (2007) SC, wherein it was held that the doctrine that a person cannot benefit from his own wrong, is inapplicable under the tenor of land use Act, which prohibits alienation of statutory right of occupancy without prior consent of the Governor in writing (GROUND TWO).
3) Whether the learned trial Judge was right to have refused to grant the appellant relief for return of the title deed after holding that the mortgage deed was invalid (GROUND SIX AND SEVEN)
The Respondents? Brief of Argument settled by Ekerete Udofot Esq., was identified as filed on the 13th April, 2018 but deemed filed and properly served on 23rd October, 2018. The Respondents adopt the three issues formulated by the Appellant and brief was adopted by the same counsel.
ARGUMENTS ON THE ISSUES
ISSUE ONE (1)
This issue one is distilled from ground five of the grounds of appeal and in arguing same, the learned counsel for the Appellant (Omolegbon Odusoal Esq.) contended that Appellant and his siblings are children of one late Mr. Ekolere Ewarawon, the owner of a residential building situate at No. 34 New site ?A? Apata Okitipupa, Ondo State. That upon the death of their father, the said property devolved of them. Referred to paras. 2, 4 and 19 of the Plaintiff/Appellant?s Statement of Claim contained in page 33 of the record of appeal.
That the Respondents alleged that the said residential building is a subject matter of a mortgage Deed executed between the 1st Respondent and Appellant?s late father and in failure of the Appellant?s late father to pay the debt owned, the Respondents are entitled to sell the property. It was the attempt of the Respondents to sell the property that led the Appellant into instituting this action to protect his interest and of the other children, having inherited the property upon the death of their father.
?
That at the trial of the suit, the Respondents challenged the locus standi of the Appellant to institute the action without obtaining letter of administration. The trial Judge at the end of the trial struck out the suit on the ground of lack of locus standi to sue for failure of the Appellant to obtain letter of Administration before instituting the action.
Counsel submitted that to determine the locus standi of a plaintiff in a particular case, it is the statement of claim that the Court will resort to. In other words, it is the reliefs claimed by the plaintiff in the statement of claim that will reveal whether or not the plaintiff has disclosed his locus standi or legal rights and obligations that entitles him to institute the action. Referred to the cases of AROWOLO V. OLOWOOKERE (2011) 18 NWLR (PT. 1278) 280 and ADEKUNLE V. ADELUGBA (2011) 16 NWLR (PT. 1272) 154.
He referred to the reliefs sought by the Appellant in para. 24 of the statement of claim contained on page 33 of the record. Reference also made to paras. 2, 4, 19, 22 and 23 of the statement of claim for proper understanding of the reliefs claimed by the Appellant.
That it is clear from the statement of claim that the Respondents were making plans to sell the property on the ground that same was used to secure a loan facility from the Respondents by the Appellant?s late father and which he did not pay back before his death.
He submitted that from the facts as stated in the pleadings of the Appellant, it is glaring that this action was brought to protect the rights and interest of the Appellant and his siblings in the property which they inherited upon the demise of their father.
He further submitted that the Appellant did not sue as an administrator of the estate of the late Ekolere Ewarawon, neither did he intend to act as administrator of the estate of the deceased.
Counsel submitted that the Appellant by his statement of claim and evidence showed that they have sufficient interest in the property, therefore he has the locus standi to institute this action to protect their rights being threatened by the Respondents. That the Appellant does not need letter of administration before he can sue to protect their interest or right over the property, subject matter of the suit.
That the learned trial Judge was wrong to have relied on Section 10 of the Administration of Estate Law Cap. 3, Laws of Ondo State, 2006 as the applicable law to decide whether or not the Appellant ought to obtain letter of Administration before instituting this action. That the applicable law is Section 3(1), (2) and (3) of the Administration of Estate Law of Ondo State and not
Section 10 (supra) as the learned Judge erroneously relied on. That the said S. 3(1), (2) and (3) (supra) relate to an action by personal representatives of a deceased in relation to his property.
Counsel submitted that the law is trite that when a statutory provision or law has been interpreted by higher court, the lower Courts are bound to follow the interpretation. Cited the cases of BENSON OKECHUKWU NNOLI & ANOR. V. EMMANUEL CHUKKA NNOLI & ANOR (2013) LPELR 20633 and TAIWO V. ADEGBORO & ORS (2011) 6 SCM 159 @ 173.
He therefore submitted that the Appellant as heir of personal representative of late Ekolere Adeniji Ewarawon together with his siblings have capacity to institute an action in respect of the estate of their late father, even where letter of administration has not been obtained. We are urged to so hold and consequently resolve this issue one in favour of the Appellant.
In response to this ISSUE ONE, the learned counsel to the Respondents (Ekerete Udofot Esq.) contended that the name Appellant (claimant) and those he represents not being holders of letter of administration in respect of the estate of their deceased father (Samuel Ekolere Ewarawon) which estate is subject of the Deed of Legal Mortgage executed by the said deceased father in favour of the 1st Respondent have no locus standi to institute this action.
He referred to para. 2 of the statement of claim at page 7 of the record of appeal and the denial of same in para. 3 of the Statement of Defence at page 146 of the record. That the new issue raised in para. 3 of the Statement Defence was not addressed to by way of filing a reply to the Statement of Defence by the Appellant wherein he could have properly raised and/or make allegation of fact that he instituted the action to protect the family property as now being suddenly claimed and contended in this appeal.
According to counsel, the Appellant in the entirety of the statement of claim (which is their only pleading) never alleged the fact that he brought the action to protect a family property and cannot at this stage contend this fact as both parties and Court are bound by the pleadings. This is more particularly so as the land of the deceased Mr. Ekolere Ewarawon cannot be rightly said to be a family property as at the time of the institution of the suit by virtue of the Deed of Legal Mortgage executed by him in favour of the 1st Respondent pursuant to the credit facilities which is due and remain unpaid.
He contended that litigation is fought on pleadings as they are the pillars upon which a party?s case is founded. Not only do they give the other side notice of the case to meet on trial, they also define the parameters of the case. In other words, parties are bound by their pleadings. Referred to the case of ANYAFULU V. MEKA (2014) ALL FWLR (PT. 731) 1530 PARA. C.
That where a Plaintiff fails to file a reply to averment in a statement of defence which has not been taken care of by the averments in his statement of claim, he would be deemed to have admitted the averment in the Statement of Defence. Relied on the case of IWUOHA V. NIPOST LTD. (2003) 8 NWLR (PT. 882) 308 SC.
Counsel said that the contention of the Appellant that he instituted the action to protect the family property is a clear afterthought not supported by pleadings and evidence. That it is a well established principle of law that a party cannot be allowed to set up a new case on appeal other than that which he presented at the trial Court. There must be consistency in this regard. Referred to the cases of REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V. N. A. M. A. (2015) ALL FWLR (PT. 762) 1809 PARA. G and MBANEFO V. AGBU (2014) ALL FWLR (PT. 724) 62 PARAS. D-I.
It is argued that assuming without conceding that the Appellant rightly raised the fact/issue that he instituted the action to protect family property in their pleadings, no such property to protect as he can only protect what they have.
That it is the Respondents? pleadings and evidence that the late father of the Appellant applied for and obtained credit facilities from the 1st Respondent and used his landed property as security by executing a Deed of Legal Mortgage in favour of the 1st Respondent which Deed was registered initially as 16/16/658 at the Land Registry in Akure and later up-stamped and registered as 23/23/658.
That a mortgage is a legal or equitable conveyance of title as security for the payment of debt or discharge of some obligation for which it is given, subject to a condition that the title shall be re-conveyed if the Mortgage debt is liquidated. Referred to all
STATE TRUST BANK V. NSOFOR (2004) ALL FWLR (PT. 201) 1738 PARA. E.
Counsel stated that flowing from the foregoing, the implication of a mortgage is the conveyance of title by the mortgagor to the mortgagee and title can only be re-conveyed to the mortgagor or his heirs when the mortgage debt is fully liquidated. That in the instant case, title in the property which is the subject matter of mortgage has not been re-conveyed to the mortgagor since his debt remain in liquidated and the said property cannot rightly claimed or said to devolve on the family of late Mr. Samuel Ekolere Ewarawon upon his death as what is left for the deceased or his family is the equity of redemption which would be extinguished once the mortgage property is sold. Referred to IKEANYI V. A. C. B. LTD (1991) 7 NWLR (PT. 205) 626 and YARO V. AREWA CONSTRUCTION LTD. (2008) ALL FWLR (PT. 400) 634 PARAS. F-G.
He opined that as at the time the Appellant instituted this action, even till this very moment, the mortgage property which is a security for a due and payable debt which has not been liquidated does not form part of the Appellant?s family property which they can seek to protect by an action.
He referred to the Appellant?s contention that the trial judge was wrong in coming into conclusion that the Appellant has no locus standi to institute this action by relying on S. 10 of the Administration of Estate Laws of Ondo State, 2006, as misconceived and misplaced. That the said S. 10 (supra) is the applicable law and rightly relied upon by the learned trial Judge. Reliance placed on BALOGUN V. AGBARA ESTATE LTD (2008) ALL FWLR (PT. 438) 388 AT 405 PARAS. D ? E.
Also referred to the case of TAIWO V. ADEGBORO & ORS (2011) 6 SCM. 159 @ 173 cited by the Appellant in para. 4.9 of his brief of argument and contended that it is distinguishable from the instant case, in that, in the entirety of the pleadings and evidence in that case, the issue of Letter of Administration was never raised but same pointedly raised and pleaded in the instant case.
Counsel submitted that it is trite, an Administrator derives his title and authority entirely from his appointment by the Court. He has no title and authority until a grant of administration is issued to him. He cannot sue or be sued in connection with the estate before the issue or grant of Letters of Administration. Relied on ADEMOLA V. SODIPO (1989) 5 NWLR (PT. 121) 329 CA and EREWA V. IDEHEN (1971) 1 ALL NLR 192.
We are urged to resolve this ISSUE ONE in favour of the Respondents and against the Appellant.
RESOLUTION
A cursory look at the statement of claim of the Appellant as claimant before the trial Court nothing disclosing the fact that he filed the action in representative capacity to protect a family property. The brief of argument filed by the Appellant which contained an argument to that effect cannot represent facts not pleaded and evidence adduced in support thereto. Parties are bound by their pleadings as presented to Court and the Court also is bound by same. See ANYAFULU V MEKA (SUPRA).
The contention of the Appellant at this stage of the appeal that he instituted the action to protect the family property is without proper stand as it is not based on pleadings and evidence before the trial Court. It is an established principle of law that a party cannot be allowed to set up a new case on appeal other than which he presented at the trial Court. See REGISTERED TRUSTEES OF THE AIRLINE OPERATORS OF NIGERIA V. N.A.M.A. (SUPRA) and MBANEFO V. AGBU (SUPRA).
The Appellant from the entirety of their pleadings did not deny their father?s indebtedness to the 1st Respondent and never denied that the said property allegedly sought to protect was used by their late father as security for the credit facilities obtained by executing a Deed of Legal Mortgage in favour of the 1st Respondent.
It is in evidence on record that the estate of the late father of the Appellant herein in contention constitute in the property covered by the Deed of Legal Mortgage ? Exhibits ?B1 ? B4?.
It is trite law that customs do not acknowledge or recognise Deed of Legal Mortgage or Certificate of Statutory Right of Occupancy. It is therefore settled that the estate of the Appellant?s late father in this case is govern by the English Law which is the Property and Conveyance Law of Ondo State.
Accordingly, by virtue of Section 20 of the Administration of Estate Laws of Ondo State, 2006 (Cap. 3), it is clearly provided that where a person dies intestate, his estate will be deemed vested in the Chief Judge of a State until
Administration is granted. See BALOGUN V. AGBARA ESTATE LTD (SUPRA) @ P. 406 PARAS. D-E.
This action being maintained by the Appellant without Letters of Administration, or showing that the deceased father left a will goes to the root of the matter and my view affects the jurisdiction of the Court to determine same.
I am of the opinion that the contention of the Appellant on S. 10 of the Administration of Estate Law vis a vis S. 3(1), (2) and (3) of same is misconceived and misplaced; as the provision of S. 10 (supra) is applicable and opposite to the instant case. I so hold. Section 10 states: ?where a person died intestate?. his estate shall be deemed to have been vested from the date of his death until Administration is granted in the Chief Judge of a State.?
I agreed with the argument of the learned counsel to the Respondents that the case of TAIWO V. ADEGBORO & ORS cited by the learned counsel for the Appellant is distinguishable from this case as the issue of Letters of Administration was never raised in that case as done in the instant case.
Flowing from the afforestated, the trial Court was right in coming into conclusion that Appellant has no locus standi to institute this action by relying on S. 10 of the Administration of Estate Law of state.
Consequently, this issue one is resolved in favour of the Respondents and against the Appellant herein.
ISSUES TWO (2) AND THREE (3)
These issues are distilled from grounds two and six ? seven respectively which the learned counsel for the Appellant argued together. He contended that the trial Court in its judgment considered the validity of the Mortgage Deed executed between the Appellant?s late father and the 1st Respondent which was signed by a land officer instead of the Governor or his delegate, the commissioner for land and came to the conclusion that the Mortgage Deed was invalid having not been signed by the appropriate authority as required by the law. Referred to page 267 of the record.
That the trial Court however went further to hold that it was the Appellant?s father who applied for and obtained said invalid consent, thus the Appellant cannot be allowed to benefit from invalid consent obtained by the deceased father to escape from liability under the Mortgage Deed the deceased entered. That the trial Court cited the case of OMONIYI V. UBA FWLR (PT. 63) 54 decision of the Court of Appeal and ignore the Supreme Court decision in UNION BANK OF NIG. PLC & ANOR V. AYODARE & SONS (NIG) LTD & ANOR (2007) SC cited by the Appellant. Counsel submitted on this that the maxim ?ex turpicausa non aritoractio? technically applied by the trial Court to refuse Appellant relief 24 (D) in the Appellant?s Statement of Claim, not applicable to the provision of the Land Use Act which declares null and void mortgage transaction on the property covered by Statutory Right of Occupancy without the consent or appropriate consent of the Governor. He referred to UBA PLC & ANOR V. AYODARE & SONS (NIG) LTD & ANOR (SUPRA). He said that the lower Court is bound by the decision of the higher Court especially such decision is brought to the notice of the lower Court. Referred to the case of OKONJO V. ODIE & ORS (1985) 10 SC. 267. He then submitted that the principle of ?stare Decisis? imposed an obligation on lower Courts to be bound by the decision of higher Courts. Referred to L.M.B. LTD V. P.T.F. (2006) 5 NWLR (PT. 974) 463.
Counsel submitted that by the Supreme Court decisions in the cases of UBA PLC & ANOR V. AYODARE & SONS (NIG) LTD & ANOR (SUPRA) and SAVANNAH BANK (NIG) LTD V. AJILO (1989) 1 SC. (PT. 11) 90; the person who applied for the wrongful consent can still benefit from it (his wrong). That the Appellant is entitled to have the steps taken by his late father reversed due to the fact the Mortgage Deed was invalid and in effect not capable of transferring title to the Respondents. That it was wrong for the learned trial Judge to have held that the Appellant cannot be allowed to benefit from the invalid consent obtained by his deceased father to escape from liability under the Mortgage Deed the deceased entered. He then submitted that such position negates the position of Supreme Court in UBA PLC which was cited before the trial court by the Appellant.
Counsel submitted that where a transaction is declared invalid, each party is duty bound to return all of the things obtained. The law is that document declared null and void has no effect and conveys nothing whatsoever. Referred to the case of EJIMOFOR V. NITEL (2007) 1 NWLR (PT. 1014) 153 @ 198.
He contended that in the instant case the Appellant is entitled to the title deed while the Respondents are entitled to the money given out as loan. That the trial Court therefore ought to have granted Appellant relief (D) after declaring the Mortgage Deed invalid. We are urged to so hold and resolved these issues 2 and 3 in favour of the Appellant.
In conclusion, counsel urged this Court to allow the appeal and grant Appellant?s reliefs before the lower Court, particularly relief (D) of para. 24 of the statement of claim as failure to grant the said relief for the return of the title deed after the trial Court has concluded or held that the Mortgage Deed is valid is perverse or occasioned miscarriage of justice.
In respect to these ISSUES 2 and 3 argued together, the learned counsel to the Respondents referred to the case of UNION BANK (NIG.) PLC V. AYODARE & SONS (NIG) LTD (2007) ALL FWLR (PT. 383) 1 SC and said that it is distinguishable from the instant case in that the contention of the Appellant herein is that ?the letter dated 6th October, 1998 issued in respect of the mortgage transaction does not qualified as the requisite Governor?s consent as same was not signed by the Governor or his delegate; thereby making the Mortgage Deed null and void?, whereas, the Respondents herein in its pleading at para. 15 of the Statement of Defence states that ?the deed of legal mortgage was duly executed and consent properly applied for and obtained as the consent dated 6th October, 1998 which the late customer attached to the Deed of Legal Mortgage was duly signed/executed.
He contended that by the above quoted paragraph, the consent was properly applied for and obtained thereby stating the validity of the consent and creating an issue as to the validity of the consent. Whereas it was not the case in UBA PLC & ANOR V. AYODARE & SONS (NIG) LTD (SUPRA) where at p. 26, paras. D ? E says thus:
?On the state of pleadings, the case of the plaintiffs was that the consents granted for the purpose of the mortgage transaction were valid. The defendants on the other hand did not contend that the consents granted were invalid. Rather, what they plead was that the plaintiffs procured the consents and gave them to the defendants for the purpose of securing the loans which the plaintiffs sought from the defendants. The contention of the defendants did not create an issue as to the validity of the consents.?
Counsel said, it is well settled principle of law that each case must be considered on its own particulars or peculiar facts and circumstance. No one case is identical with the other. Referred to SKYE BANK PLC V. AKINPELU (2010) ALL FWLR (PT. 526) 460 @ 486.
He submitted that nowhere in the Land Use Act, 1978 is any description of the form that the Governor?s consent should take but only that the consent must be obtained. Referred to Section 22 of the Land Use Act, 1978 Thus:
?It shall not be lawful for the holder of a statutory right of occupancy granted by the governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the Governor first had and obtained.”
Counsel opined that undoubtedly justice cannot be seen to have been done when a party who did a wrong is allowed to benefit from it. This is more particularly so as justice must not only be done but must be seen to have been done. He submitted the ultimate aim of the Courts is to do substantial justice between the parties and any technicality as claimed by the Appellant, that rears its ugly head to defeat the cause of justice should be rebutted by the Court. Relied WASSAH V. KARA (2015) ALL FWLR (PT. 769) 1052 PARA. F. and AIYELABEGAN V. L.G.S.C. ILORIN, KWARA STATE (2015) ALL FWLR (PT. 778) 952-953 PARAS. B-A.
It was submitted that the Appellant?s contention as to the validity of the Deed of Legal Mortgage and the request for retrieval of the title document used as security on account of a Governor?s consent which is allegedly not in consonance with the provision of law is in bad faith and bad taste in view of the fact that it was the Appellant?s late father who obtained the Governor?s consent which the Appellant is now seeking to impugn. That of importance is the fact that consideration had been furnished by the Respondent bank as the Appellant?s deceased father had subsequent to the execution of the Deed of Legal Mortgage enjoyed credit facilities which he could not repay in his life time and which remains unpaid till now.
Counsel contended that the Lower Court in the entirety of its judgment never declared the Certificate of Statutory Right of Occupancy in respect of which the Deed of Legal Mortgage was executed void. That assuming without conceding that Deed of Legal Mortgage is void on account of lack of Governor?s consent in the manner submitted by the Appellant, the Appellant cannot recover the title document being security without full payment of the debt arising from the credit facilities enjoyed by the Appellant?s deceased father. Cited the cases of YARO V AREWA CONSTRUCTION LTD. (2008) ALL FWLR (PT. 400) 603 @ 640 PARAS. G ? H; NDABA (NIG.) LTD V. U.B.N. PLC. (2008) ALL FWLR (PT. 436) 1945 @ 1973 PARAS. G ? F and NIGERIAN ADVERT. SERVICE LTD V. U.B.A PLC (1999) 8 NWLR (PT. 616) 546 @ 556 PARAS. B ? C.
Counsel submitted that the case of EJIMOFOR V. NITEL (SUPRA) cited by the Appellant is not relevant or applicable to the instant case as the facts and circumstances of both cases are distinguishable and different.
We are urged to resolved ISSUES 2 and 3 against the Appellant and in favour of the Respondents.
In conclusion, counsel urged this Court to dismiss the appeal in its entirety for lacking in merit and affirm the decision of the learned trial Court.
RESOLUTION
The harmonized ISSUES 2 and 3 are predicated on the refusal of the learned trial Judge to consider the mortgage transaction as wrongly entered, baseless, null and void and therefore unenforceable. Also failure to order for the return of the title Deed deposited with the Respondents.
It is on record that Exhibit ?B3? is the letter of consent given to carryout further transaction under S. 22 of the Land Use Act and it was signed by one D. O. A. Ige, the Director of Lands Services, for Hon. Commissioner for Lands. This deficit the principle enunciated in the case of UNION BANK OF NIGERIA PLC & ANOR V. AYODARE & SONS (SUPRA) to the effect that the consent obtained by the Appellant?s deceased father in respect of the mortgage was invalid haven not been signed by the Governor or his delegate, i.e the commissioner of Lands.
The question here is whether the Appellant and his siblings can benefit from the wrongful act of their late father who applied for and obtained the invalid consent with which he was given credit facilities from the 1st Respondent?
I will answer this question in the negative in view of the decision of the Supreme Court in the case of UGOCHUKWU V. COOPERATIVE & COMMERCE BANK (1996) 6 NWLR (PT. 456) 524 per OGUNDARE, JSC (of blessed memory) and case of OMONIYI V. UBA (2001) FWLR (PT. 63) 54 @ 67.
Flowing from the aforesaid, Appellant cannot be allowed to benefit from the invalid consent obtained by his late father to escape from the liability under the Mortgage Deed the deceased entered. Moreso that in recognition of the liability, the Appellant made part payment of N435, 000.00 which by his relief (E) is asking for refund of same.
I am in agreement with the learned counsel to the Respondents that the Appellant cannot recover the title document being security without payment of the debt arising from the facility enjoyed by the Appellant?s deceased father who executed the Deed of Legal Mortgage. See the cases of YARO V AREWA CONST. LTD; NDABA (NIG.) LTD V. U.B.N. PLC AND NIGERIAN ADVERT. SERVICES LTD V. U.B.A (SUPRA).
In the light of the above, these ISSUES TWO AND THREE are resolved against the Appellant and in favour of the Respondents.
The other grounds of appeal in the Amended Notice of Appeal filed on 17th March, 2017 and deemed properly filed and served on the 23rd March, 2017 not covered by formulated issues are deemed abandoned and same struck out.
On the whole, having resolved the issues canvassed in favour of the Respondents and against the Appellant, the appeal lacks merit and hereby dismissed. The judgment of the High Court of Justice, Ondo State sitting at Okitipupa Judicial Division delivered by Hon. Justice S. A. Bola on the 5th of March, 2014 is therefore affirmed.
Parties to bear their costs of prosecuting and defending the appeal.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, Ridwan Maiwada Abdullahi, JCA.
I agree with His Lordship that the appeal is bereft of merit and accordingly dismiss it. Therefore, I affirm the judgment of the trial Court delivered on 5th of March, 2014 in Suit No. HOK/30/2011.
I make no order of costs.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read in draft before now the lead judgment of my learned brother Ridwan M. Abdullahi, JCA in draft and agree that the appeal be dismissed.
It would be unconscionable for the Appellants to take the benefit of a facility and seek to resile therefrom on the alleged ground of enforceability on ground of invalidity.
Even the principle of unjust enrichment frowns at it. In any case, the debt arising from the security advanced on account of the mortgage has to be repaid before a deed of release of their security as deposited per the title deeds can be made. If there had been a failure of consideration, will the Respondent’s monies advanced not be repaid? Could the Appellants not recover or ask for specific performance? They can; even the Respondent could, all in appropriate cases.
I, however, abide the order striking out the Grounds of Appeal not covered by an issue for determination, as same are deemed abandoned.
The issues as resolved were borne out of the evidence led at the trial Court in favour of the Respondent.
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Appearances:
Omolegbon Odusola, Esq.For Appellant(s)
Ekerete Udofot, Esq.For Respondent(s)
Appearances
Omolegbon Odusola, Esq.For Appellant
AND
Ekerete Udofot, Esq.For Respondent
