CHIEF (MRS) EUNICE AKINYELE v. AFRIBANK PLC & ANOR(2005)

CHIEF (MRS) EUNICE AKINYELE v. AFRIBANK PLC & ANOR

(2005)LCN/1770(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 22nd day of June, 2005

CA/IL/M.5/2004

 

JUSTICES

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE   Justice of The Court of Appeal of Nigeria

ABOYI JOHN IKONGBEH   Justice of The Court of Appeal of Nigeria

TIJJANI ABDULLAHI   Justice of The Court of Appeal of Nigeria

Between

 

CHIEF (MRS) EUNICE AKINYELE Appellant(s)

AND

  1. AFRI BANK PLC
    2. MR. A. T. AYANTUNDE (Trading under the name Alatmas Venture) Respondent(s)

 

TIJJANI ABDULLAHI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Kwara State, Coram Elela Habeeb J. delivered on the 4/12/2003, in which His Lordship refused to make the declarations that were sought and dismissed the Appellant’s case as lacking in merit. The Plaintiff now Appellant, was dissatisfied with the Judgment of the trial Court and on 11th day of December, 2003, lodged a Notice of Appeal containing 5 grounds of appeal against the said Judgment.
The facts of the case as can be gleaned from Record of Proceedings are as follows:- The appellant is a customer of the 1st Respondent at her Ilorin main branch, where she operates an account. Sometime in July, 1996, the Appellant applied for and was granted an overdraft of N1 million. In return, she mortgaged her property situate at Fogo Olorunhan Street, Ilorin, covered by a Customary Right of Occupancy to the 1st Respondent. The facility was later increased to N2 million.
Sometime as at the middle of 1998, the outstanding debit balance on the Appellant’s account was such that the 1st Respondent could no longer tolerate, whereupon it informed the Appellant of its intention to foreclose the mortgage. The Appellant however pleaded with the 1st Respondent for more time to pay the debt which request was granted. Another promise by the Appellant for the 2nd time to pay the debt did not materialize. The 1st Respondent then instructed the 2nd Respondent to carry out a public auction of the property. The 2nd Respondent, a licensed auctioneer made auction posters advertising the property for sale and pasted same in several places in Ilorin.
The Appellant filed an action at the High Court, Ilorin, alleging that the Respondent without any warning put an auction notice at the mortgaged properly while the 2nd Respondent asserted that he complied with all the requirement of the law relating to auction notice by pasting notice at the property in question and Afribank hall and Stadium Complex on 31st August, 1999.
The Plaintiff at the Court below now the Appellant in this Court filed an action, claiming the following reliefs:-
“Whereof the Plaintiff urges the Court to declare:-
(1) As illegal, null and void the purported notice of auction pasted by the 2nd Defendant or his agent at the house of the Plaintiff at No.5 Fogo Oluwahan Street off Stadium Road, Ilorin.
(2) As null and void any purported sale of the Plaintiff’s at No.5 Fogo Oluwahan Street Off Stadium road, Ilorin and to award (sic).
(3) General damages to the Plaintiff against the Defendant jointly and severally (or embarrassing the Plaintiff.”
The Defendants at the lower Court filed a joint statement of defence denying the claim of the Appellant and urged the lower court to dismiss the Plaintiffs claim in its entirety for lacking in merit. The lower court was not persuaded by the case advanced by the Appellant whereupon her case was dismissed in its entirety.
Dissatisfied with the Judgment of the lower court, the Appellant filed Notice of Appeal consisting of five Grounds of Appeal and sought from this court the following reliefs:-
(i) To allow the Appeal
(ii) To hold that the purported auction Notice Law has not been complied with the Auctioneers Law, Cap 14 Laws of Kwara State.
The Appellant formulated four issues for determination from the records of appeal as follows:-
“(3.01) Is it correct as stated by the trial Court that the Plaintiff did not prove any of her averments? This is based on Grounds 1 and 2?
(3.01) Was the notice given in compliance with the Auctioneers Law Cap 14 Laws of Kwara State of Nigeria? This is based on Ground 3?
(3.02) Whether the liability of the Appellant on which no issue was joined has not beclouded the vision of the trial Judge in making proper appraisal of the evidence?. This is based on Ground 4.
(3.03) Wheather granting the declaration sought by the Appellant can amount to inequity- This is based on Ground 5.”
The Counsel for the Respondents also formulated four issues for determination as follows:-
“(i) Whether the Appellant prove any of the averment in her Statement of Claim.
(ii) Whether the Appellant prove that the purported notice of auction was not in conformity with the Auctioneers’ Law.
(iii) Whether the Appellant’s indebtedness wrongly or improperly influenced the lower Court’s decision.
(iv) Whether the Appellant prove that it was equitable to grant the declarations sought by her.”
The above issues are one and the same thing, even though differently worded in the briefs for our consideration.
For Appellant, it was submitted that she was not expected to give negative evidence and w as also n at expected to give evidence of legal consequences of action or in action. It is contended that it is the duty of the Court to apply the state of facts before the court to the legal requirement and draw legal conclusion. Learned Senior Counsel referred us to the evidence of the Appellant and her witness as to the notice and where it was pasted. The Court’s duty Learned Senior Counsel contended is to see whether these satisfy the requirement of the auctioneer’s law.
Learned Senior Counsel further submitted that even if pasting of notice was accepted by the trial Court as having been done, the other requirements of the Auctioneers’ Law have not been met. Learned Senior Counsel contended that the defence gave hearsay evidence as DW1 admitted that he was not in the Loan Department, when the pasting was done, but the trial Judge did not evaluate the evidence properly and therefore, came to a wrong conclusion.
On issue No.2, Learned Senior Counsel submitted that though the witnesses for the Appellant testified to the type of notice that took place-pasting it on the wall of the property in question, they were not examined as to whether other methods were applied or not. This Learned Senior Counsel contended is a tacit admission of the truth of the evidence relying on the case of Gaji -vs- Paye (2003) FWLR (Pt. 163) P.1.
However, Learned Senior Counsel contended that assuming but not conceding that the notices were so placed as the defence stated that in itself does not satisfy the requirement of the Auctioneer’s Law of Kwara State, Cap 14 Sections 19 and 20 of the said law.
Learned Senior Counsel further contended that there are conditions which must be fulfilled before an auction could be said to have been properly held, When DW2 testified to the effect that he followed all that is required by the Law, he did not avert his mind to the provisions of the Auctioneer’s Law.
Learned Senior Counsel contended that it is the duty of the Court to apply evidence to the Law applicable. Learned Senior Counsel submitted that the Respondents have failed to give adequate notice as required by Law. The trial Judge, he went on was therefore wrong to have discountenanced this aspect of the claim.
On issue No.3, Learned Senior Counsel contended that the Appellant’s case was based on propriety of notice of auction not whether he is owing. The Plaintiffs case determines the cause of action. The Appellant did not join issues with the Respondent on amount of debt. The Appellant did not deny owing the Respondents. Learned Senior Counsel submitted that the claim of the Plaintiff was not about liability but about the procedure for recovery. Counsel then posited that the trial Judge was not too clear about the claim before it.
On issue No.4, Learned Senior Counsel contended that the mere existence of undenied debt beclouded the mind of the trial Judge to the extent of holding that the Appellant did not prove her case. Learned Senior Counsel, however submitted that the Court is not called upon to declare whether or not the Plaintiff is owing.
The declaration sought is for the method applied by the Defendants to be nullified for failure to apply the lawful process. The Court in making such declaration as requested is not saying that the liability of the Plaintiff evaporates. He urged us to hold that the claim of the Plaintiff succeeds on this ground.
It is the case of the Respondents that paragraphs 3 – 8 of the statement of claim of the Plaintiff which are germane to the Appellant’s case, which also alleged that the auction notice was not inconformity with the Law have not been proved by the Appellant. Learned Counsel submitted that by virtue of Section 135(1) of the Evidence Act, the burden of proof was on the Appellant who wanted the court to make declaration in her favour. She failed to give evidence of what aspect of the Auctioneers Law the Respondent did not comply with and which conditions precedent to the auction were not carried out. Learned Counsel further submitted that a consideration of the Defendant’s defence docs not begin until the Plaintiff has made out a case which he has to answer relying on Section 135, 136 and 137 of the Evidence Act and NBC -Vs- Okwejiminor (1998) 8 NWLR (Pt.561) 295 at Pp. 308 – 309 and Onuigbo vs. Nwekeson (1993) 3 NWLR (Pt. 283) P. 533 at 545.
Learned Counsel submitted that though the Appellant in paragraph 8 of her statement of claim averred that the Respondents did not comply with the Auctioneers’ Law, she failed to give evidence of what aspects of the requirement were not complied with relying on the case of Emecheta -vs- Ogueri (1997) 8 NWLR (Pt.516) P. 322 at P.334.
On issue No.2, Learned Counsel submitted that the fact that particulurs (d) under ground 3 alludes to other requirement for a proper auction cannot expand the ground of appeal beyond what it is. Particular to a ground of appeal is only complementary to and not expansive of a ground of appeal relying on the cases of Anammco -vs- First Marina Trust Limited (2000) 1 NWLR (Pt. 640) P. 309 at P. 317 Orakwute -vs- Umolu (1998) 7 NWLR (Pt.557) P.266 at P.274. Learned Counsel urged us to strike out issue No.2, especially paragraph 5.2.04 which deal with 13 conditions which should be fulfilled before an auction sale could be said to be properly held or alternatively, in answer to the argument in paragraph 5.2.04, Learned Counsel submitted that the issue of compliance with 13 conditions is a matter of fact. No evidence of these conditions was given by the Appellant and none was given about non compliance with them.
On issue No.3, learned Counsel submitted that by virtue of Order 25 Rule 10(1) of the High Court Civil Procedure Rules (1989) of Kwara Stale, there is an implied joinder of issues (including the issue of indebtedness) on the Statement of Defence in so far as no reply was filed by the Appellant. Therefore, the submission of Counsel that no issue of indebtedness was joined on the issue of indebtedness cannot hold. It is further submitted, once a matter is properly before court, that court has a duty to determine all the issues validly raised as affecting the cause of action in the case.
Learned Counsel further submitted that the cause of action in the suit at the lower court is the lawfulness or propriety of the attempt to sell by public auction the Appellant’s mortgaged house. It is idle as the Appellant seeks to do in her brief to say that the issue of debt is not relevant. This cannot be further from the truth. The question that one may ask is how else can the 1st Respondent justify the attempt to auction the house if it did not show that the Appellant (mortgagor) was indebted to it on the mortgage agreement.
On issue No.4, Learned Counsel submitted that a claim for a declaratory relief is an appeal to equity. It is not granted as a matter of course relying on the cases of Judicial Service Commission -vs- Omo (1990) 6 NWLR (Pt.157) P. 407 at 408 and Olusanya vs. Osineye (2001) 13 NWLR (Pt. 730) P. 298 at Pp. 330 – 331.
1n the lower court, the Appellant admitted while being cross-examined that she mortgaged her house (the subject matter of the suit) to the 1st Respondent in consideration of credit facilities which were given to her. She admitted she took N1 Million and she tendered a letter Exhibit C, which was written by her solicitor pleading for time to repay the debit balance on her account which at the time stood at N4.9 million.
It is submitted that the hands of the Appellant were not clean. She took and utilized credit faculties which she failed to pay back and at the same time wanted to retain the collateral security, which she had agreed to allow the 1st Respondent sell in order to recoup its money, if she was unable to pay. She admitted her inability to repay the facilities. She had eaten her cake, yet she wanted the aid of the Court to keep it.
That was certainly inequitable, It would have resulted in manifest injustice if the Court had granted the declaratory reliefs relying on the case of Olusanya -vs- Osineye (supra) at P. 330 and Kopoluyi -vs- Philips (2001) NWLR (Pt. 731) P. 736 at P. 763.
The above is the summary of the submissions made to this court in this matter. It seems to me that the first question in this matter that one should ask is what are the claims of the Plaintiff/Appellant in the lower court? The 2nd question is on whom the burden of proof lies in civil matter?, While the last but not the least question is whether the Plaintiff/Appellant has proved her case as per her claim in the lower court. If she has, what is the effect and if she has not what is also the effect.
The Appellant, in her statement of claim filed in the lower court dated 6th day of November, 2000 averred in paragraphs 5 -10 as follows:-
“5. The Plaintiff hereby avers that the 2nd Defendant had no authority to give notice of auction of sale of her house.
6. The Plaintiff avers that the 2nd Defendant is not a licensed or did not hold a current auctioneer’s license at the time he purportedly give the notice of auction of the Plaintiffs house at No 5 Fogo Oluwahan Street, Ilorin.
7. The purported notice of auction is in flagrant and in complete defiance of the provisions of the Auctioneers Law Cap 14 Laws of Kwara State of Nigeria.
8. The Defendants did not comply with conditions precedent for auctioning her property as no authority was informed nor the public at large informed of the purported auction sale.
9. The Plaintiff avers that nobody bid for the house.
10. Whereof the Plaintiff urges the Court to declare:-
(1) As illegal, null and void the purported notice of auction pasted by the 2nd Defendant or his agent at the house of the Plaintiff at No.5 Fogo Oluwahan Street off Stadium Road, Ilorin.
(2) As null and void any purported sale of the Plaintiff’s house at No. 5 Fogo Oluwahan Street, Off Stadium Road, Ilorin and to award (sic).
(3) General damages to the Plaintiff against the Defendant jointly and severally for embarrassing the Plaintiff.”
This brings me to question No.2 posed supra that is on whom the burden of prove lies? Section 135(1) of the Evidence Act provides thus:-
“35(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he assets must prove that those facts exist.”
In the case of Onuigbo -vs- Nwekeson (1993) 3 NWLR (Pt. 283) P. 533 it was held thus:-
“That law is that the burden of proving a particular fact is on the party who seek to rely on it and who will fail where such evidence is not adduced. Arase -vs- Arase (1981) 5 SC 33 at Pp. 51- 52. In Akinfosile -vs- Ajose (1960) SCNLR 447; (1960) 5 FSC 192 at 1998, it was held that ‘The person who make allegations in a proceeding is by the ordinary rules of pleadings bound to produce evidence to substantiate them as part of his case, and it is not sufficient for him to rely upon emergence of evidence from the opposite party for the purpose of proving allegation in his own pleadings.”
Also, in the case of Ogundipe -vs- A. G. Kwara State  (1993) 8 NWLR (Pt. 313) P. 558 at P. 568, this Court Per Achike, J.C.A. as he then was of blessed memory held thus:-
“But we must hasten to add that it will be wrong for a Plaintiff to assume that he will be entitled to judgment as a matter of course, because the Defendant had failed to tender any evidence, as is exactly the situation in the instant case. The trial Court is still under a duty to evaluate the evidence adduced by the Plaintiff and must be satisfied that the evidence is credible and sufficient to sustain the claim. This is so because the legal burden on the Plaintiff or any person who asserts, is to prove his claim on balance of probabilities, and is in no way mitigated by the opposing side’s election to blow a muted trumpet.”
I must state at this juncture that from the averments contained in the statement of claim of the Plaintiff in the Court below, the Appellant is seeking declaratory reliefs. That being the case, the Plaintiff now the Appellant has to rely on the strength of her own case as was decided by this Court in the case of Taduggoronno -vs- Gotom (2002) 4 NWLR (Pt. 757) P. 453 at P. 467 as follows:-
“The Plaintiff has the abounding duty to satisfy the Court by evidence and not through admission in the pleading of the Defendant that he is entitled to the declaration claimed. As Rowland, JCA said in Igbinovia v. UBTH supra at page 86 ‘the necessity for this arises from the fact that the court has a discretion to grant or refuse the declaration and success of a claimant in such a action depends entirely on the strength of his own case and not on the weakness of the defence.”
Now, the next question is whether is not the Appellant had adduced evidence in the court below to entitle her get the declaratory reliefs as claimed in her statement of claim set out elsewhere in this Judgment.
The Appellant, in the lower court, in support of her claim, testified as PW1 and her Son also testified as PW2 and did not call any other witness to testify for her. Since the evidence adduced by her is not unwieldy for a better understanding of the case she put forward in the trial Court. I have decided to set out the evidence verbatim and it is as follows:-
“PW1:- Christian, on Oath, Female, Adult, speaks Yoruba – My names are Eunice Adenike Akinleye. I live at No. 5 Fogo Olorunham, off Stadium Road, Ilorin. I am a business woman. I know the 1st Defendant, Afribank, I know the Defendant, as a bank. I have transactions with the bank. I know one A. D. Ayantunde alias Alatmas Ventures.
On 6/9/99, I was in Lagos. Before I left for Lagos on 16/9/99, I did not see any poster on the door of my house. When I was in Lagos, my son phoned me that some people come and pasted some pages at our house. When he phoned me, I told him to go and explain to his father. I was told the house was to be auctioned. I was never informed that the house will be auctioned. Mr. Ayantunde did not inform me that he was asked to come auction my house.
I urge the court to help me stop the Defendant from selling my house. I want to be paid compensation for the disgrace and embarrassment I suffered.”
PW2:. Christian, on Oath, Male, Adult, speaks Yoruba. My names are Kayode Akinyele. I live at No.5 Ogo Oluwa Street, off Stadium Road, Ilorin. I am a Student of C & S Secondary School, Ilorin. I have just finished from the School. My mother owned the house at No. 5 Ogo Oluwa Street, Ilorin, which I reside. My mother is Mrs. Eunice Akinyele, the plaintiff herein.
On 16th September, 1999, I was in his (sic) my mother’s house. In the morning of that day, we were home and my mother said she wanted to travel. She traveled on that day. On 17th September, 1999, my mother was not around. On the 17th September, 1999, I was in the house. On the 17th September, 1999, I was in the house watching a film. Then a vehicle packed outside our house. I then saw some men came out of the vehicle and they were pasting a poster on the wall. I then came out and by then had left. I saw the Document they pasted on the wall of the house. This is the document.
Chief Olorunisola (SAN): I seek to tender this document in evidence.
Mrs. Oladipo:- We have to objection.
Court: This document titled Auction Notice and dated 31st August, 1999 is hereby admitted in evidence and marked Exhibit ‘D’.
Sgd
Hon Justice R.O. Elelu Habeeb Judge
PW2:- The date of sale on Exhibit D is 20/9/99, I saw some people in our house in respect of this Exhibit ‘D’.
On that day, 20/9/99, I was in the house when I saw about 4 people in a vehicle. They came down, rang bell twice and then entered the vehicle and went away.
My mother did not (sic) all these happenings I phoned my mother. My mother returns (sic) from her journey after the 20th September, 1999.”
It is crystal clear from the evidence of the Appellant adumbrated above neither she nor her witness gave evidence of any act on the part of the Respondents, which may be connected with the provisions of the Auctioneers’ Law. The main concern of the Appellant was that no poster was pasted on the house before she traveled and that the Respondents did not inform her that they would auction the house. Obviously, the evidence of the Appellant and her witness was not only inadequate to ground the declaratory reliefs sought, the Court also found their evidence to be without weight.
I pause here to state that, in the light of the evidence adduced by the Appellant as set out (supra), the holding of the Learned trial Judge at page 60 of the Record of Appeal to wit:-
“It appears, in the main that the Plaintiff has not proved what she assets by the averments in her pleadings set out supra.”
is unassailable.
In the final analysis, in view of all that I have been saying, this appeal is completely devoid of any merit and same must be and it is hereby dismissed accordingly. I award N10,000.00 costs in favour of the Respondnets against the Appellant.

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.C.A: Having had an opportunity of reading in draft, the lead judgment of my learned brother, Tijjani Abdullahi J.C.A., I am convinced that the appeal lacks merit. For the reasons he adduced, I hold that the appeal must and is hereby dismissed. I endorse the order of costs.

ABOYI JOHN IKONGBEH, J.C.A.: I have read the judgment just delivered by my learned brother, Abdullahi, J.C.A. I agree with him that this appeal ought to be dismissed. I abide by all the consequential orders made by him.

 

Appearances

Chief Ayanda FajenyoFor Appellant

 

AND

Mr. Duro Ayodele (with him, O. K. Obayemi and Taiye Oniyide)For Respondent

 

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