MR. ADOLPHUS K. ATTIOGBEY V. UNITED BANK FOR AFRICA PLC & ORS (2013)

MR. ADOLPHUS K. ATTIOGBEY V. UNITED BANK FOR AFRICA PLC & ORS

(2013)LCN/5993(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of March, 2013

CA/K/374/2005

RATIO

JUDICIAL ADJUDICATION: ONCE A MATTER IS BEFORE A COURT OF LAW, NONE OF THE PARTIES CAN LEGALLY OR LAWFULLY TAKE ANY UNILATERAL ACTION THAT WILL AFFECT THE MATTER

LIS PENDENS: DEFINITION AND NATURE
The doctrine forbids the effective transfer of property in the subject matter of litigation during the pendency of the litigation. The law does not allow to litigant parties or give them, during the currency of litigation involving any property, rights in such property so as to prejudice any of the litigating parties – Ogundiani Vs Araba (1978) 6-7 SC 55, Oronti Vs Onigbanjo (2004) 17 NWLR (Pt 903) 601, Dunu Vs Oladejo (2004) 17 NWLR (Pt 903) 621, Olori Motors Co. Ltd Vs Union Bank of Nigeria Plc (2006) 10 NWLR (Pt 989) 586, Enekwe Vs International Merchant Bank (Nig) Ltd (2006) 19 NWLR (Pt 1013) 146, Enyibros Food Processing Co. Ltd Vs Nigerian Deposit Insurance Corp. (2007) 9 NWLR (Pt 1039) 216. The doctrine postulates that a sale conducted when a matter is in litigation is void ab initio and no title can be passed to the purchaser. The doctrine, as a matter of policy, precludes a party from selling land in dispute when he knows there is a dispute in court over the ownership of the land – Osagie Vs Oyeyinka (1987) 3 NWLR (pt 59) 144, Osidele Vs Sokunbi (2012) 15 NWLR (Pt 1324) 470.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LIS PENDENS: EFFECT OF BUYING A LAND SUBJECT OF AN ON-GOING LITIGATION

Thus, the courts have held that a person who buys land upon which there is on-going litigation buys nothing and acquires no interest – Fakoya Vs Taiwo (1995) 18 NWLR (Pt 413) 374, Umoh Vs Tita (1999) 12 NWLR (Pt 631) 427, Oguntoyinbo Vs Oguntoyinbo (2000) 2 NWLR (Pt 646) 585.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LIS PENDEND: NATURE
It is a doctrine common to the courts, both law and equity, and rests upon the foundation that it would plainly be impossible for any action or suit to be brought to successful termination if alienations pende lite were permitted to prevail. The claimant would be liable in every case to be defeated by the defendant alienating before the judgment or decree and would be driven to commence his proceedings de novo, subject again to being defeated by the same course or proceedings. This doctrine belongs to a court of law no less than courts of equity – Barclays Bank of Nigeria Ltd Vs Ashiru (1978) 1 LRN 266, Bua Vs Dauda (2003) 13 NWLR (Pt 838) 657, Ezomo Vs New Nigerian Bank Plc supra.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LIS PENDENS: GUIDELINES

STATUTE OF LIMITATION: WHAT IS A STATUTE OF LIMITATION AND WHAT DOES IT DO?

Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute bared, a claimant who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed – Odubeko Vs Fowler (1993) 7 NWLR (Pt 308) 637, Shell Petroleum Development Corporation vs Farah supra, PN Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt.723) 114, Muhammed Vs Military Administrator, Plateau State supra, Sulgrave Holdings Inc vs. Federal Government of Nigeria (2012) 17 NWLR (Pt 1329) 309.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

STATUTE BAR: MEANING
So, when an action is said to be statute barred, what it connotes is that the claimant my have an actionable cause of action, but his recourse to judicial remedy is voided; no proceedings could be brought to prosecute the action – Yusuf Vs Co-operative Bank Ltd (1994) 7 NWLR (Pt.359) 676, PN Udoh Trading Co. Ltd vs Abere (1996) 8 NWLR (Pt.467) 479.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ABDUL ABOKI 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

MR. ADOLPHUS K. ATTIOGBEY Appellant(s)

AND

1. UNITED BANK FOR AFRICA PLC
2. ALHAJI MUHAMMED SALIHU
3. ALHAJI IDRIS SA’EED Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/546/93 delivered by Honorable Justice J. Abiriyi (as he then was) on the 23rd of January, 2004. By a writ of summons filed on the 1st of November, 1993, the Appellant, as plaintiff, commenced an action in the High Court of Kaduna State in Suit No KDH/KAD/546/93 against the first and second Respondents, as first and second defendants, and he prayed for:
i. A declaration that the first Defendant Bank is in breach of contract by charging interests of more than 12% per annum on the loan/overdraft of N20,000.00 granted to the plaintiff, as any higher rate of interest has not only imposed a non-contractual burden on the Plaintiff and has brought about plaintiff’s consequential inability to liquidate the aforesaid loan inspite of repayments of more than double the principal loan/overdraft facility originally enjoyed by the plaintiff but has also fallen outside the terms and conditions (for the grant of the loan) concerning which the first Defendant had reserved the right to cancel or reverse.
ii. An order of Court suspending the charging of interest (whether compound or simple) on the aforesaid loan taken by the Plaintiff pending the determination of Plaintiff’s first claim above together with a perpetual injunction restraining the first Defendant from further charging any interest on the said loan pending the reconciliation of the proper accounts and further restraining the Defendants from any sale or disposal of Plaintiff’s property at Plot B.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No.00757.

The writ of summons was accompanied by a motion ex parte dated and filed on the 1st of November, 1993 wherein the Appellant prayed for an order of prohibitive interim injunction restraining the first and second Respondents from carrying out the sale or threatened sale on 3rd of November, 1993 of the Appellant’s landed property located at and known as Plot 8.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No.007571 whether by public auction or private treat pending the hearing of the motion on notice for interlocutory injunction. The Appellant also filed a motion on notice for interlocutory injunction dated 1st of November, 1993. On the 2nd of November, 1993, the lower Court heard the motion ex parte for interim injunction and granted the application as prayed.

When the matter came up on the 19th of January, 1994, the Appellant and his Counsel were absent from Court and the lower Court, on the application of Counsel to the first and second Respondents, as Counsel to the first and second defendants, struck out the motion on notice for interlocutory injunction and discharged the order of interim injunction. On the 31st of January, 1994, the first and second Respondents sold the landed property of the Appellant at Plot B.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No. 007571 to the third Respondent by public auction. By a motion on notice dated the 29th of July, 1994, the third Respondent applied to be joined as the third defendant in the action and the motion was granted by the lower Court on the 10th of October, 1994. The lower Court ordered the parties to file pleadings and the matter was fixed for hearing on the 1st of February, 1995.

Pleadings were filed and the third Respondent filed a counterclaim against the Appellant praying for the sum of N75,000.00 per annum as rents for the continued occupation of the property at Plot B.20 Unguwar Rimi, Kaduna from the 31st day of January, 1994 till date of judgment and interest at the rate of 22% per annum compoundable monthly. Trial in the matter did not progress much and it was severally adjourned due largely to the antics of the Appellant and his Counsel and in fact the lower Court struck out and relisted the case of the Appellant on a number of occasions. This was the position of the matter until the learned trial Judge before whom the matter was, Honorable Justice Donli, transferred her services from the Kaduna State Judiciary.

The matter was then transferred to Honorable Justice J. S. Abriyi and it came up for mention in that Court on the 6th of April, 2001. The matter was set down for hearing de novo. The matter again suffered several adjournments at the instance of the Appellant and on the 22nd of July, 2002, the lower Court dismissed the case of the Appellant for want of diligent prosecution and it set the counterclaim of the third Respondent down for hearing. The Appellant filed a motion on notice dated the 26th of August, 2002 praying the lower Court to set aside the order dismissing his case. The Lower Court took arguments on the motion and in a considered ruling delivered on the 15th of October, 2002, it dismissed the application.
On the 16th of June, 2003, the third Respondent amended his counterclaim to include a claim for possession of the property at Plot B.20 Unguwar Rimi, Kaduna from the Appellant. The counterclaim went to trial and the lower Court entered judgment on the counterclaim on the 23rd of January, 2004. The lower court refused the claim for rents but awarded damages in the sum of N100,000.00 in favour of the third Respondent.

The Appellant was dissatisfied with the judgment of lower Court and he filed a notice of appeal dated the 29th of January, 2004 against the judgment. The notice of appeal consisted of four grounds of appeal. The records of appeal were compiled and transmitted to this Court on the 27th of September, 2005. By a motion on notice dated the 27th of February, 2006 but filed on the 28th of February, 2006, the Appellant sought from this Court the following orders:
i. An order enlarging time within which the Appellant shall appeal against the judgment of the Kaduna State High Court delivered on 23rd of January, 2004 in Suit No.KDH/KAD/546/93.
ii. An order enlarging time within which the Appellant shall seek leave to appeal against the interlocutory rulings/decisions of the Kaduna State High Court delivered on 22nd of July, 2002 and 15th of October 2002 in Suit No.KDH/KAD/546/93.
iii. An order granting the Appellant leave to appeal against the rulings/decisions of the Kaduna State High Court delivered on 22nd of July, 2002 and 15th of October, 2002 in Suit No KDH/KAD/546/93.
iv. An order granting the Appellant enlargement of time to file Notice of Appeal against the rulings/decisions of the Kaduna State High Court delivered on 22nd of July, 2002 and 15th of October, 2002 in Suit No.KDH/KAD/546/93.
v. And for such order or orders as the Honorable Court may deem fit to make in the circumstances.

The motion was heard by this Honorable Court on the 2nd of May, 2006 and all the prayers were granted. Consequently, the Appellant filed a Notice of Appeal dated the 9th of May, 2006 and it consisted of seven grounds of appeal, inclusive of the omnibus ground. On the 10th of December, 2007, the Appellant filed another motion on notice dated the 3rd of November, 2007 seeking, inter alia, to amend the notice of appeal by deleting two grounds of appeal and substituting them with new grounds and leave to raise and argue two fresh issues on appeal as contained in the first and second grounds of appeal of the proposed amended notice of appeal. The motion was taken and granted by this Court on the 16th of March, 2009 and the amended notice of appeal dated the 30th of November, 2007 was deemed proper. The amended notice of appeal also consisted of seven grounds of appeal inclusive of the omnibus ground. Counsel to the third Respondent sought for and was granted leave by this Court to file Supplementary Records of Appeal on the 27th of September, 2010 and the Supplementary Records already compiled and transmitted were deemed proper.

Following an extension of time granted the Appellant by this Court to file his brief of arguments out of time on the 16th of March, 2009, the Appellant, in compliance with the Rules of this Court, filed his brief of arguments on the 30th of March, 2009. The first and second Respondents did not file any brief of arguments in the appeal. The third Respondent filed a brief of arguments dated the 11th of October, 2010 and this was consequent upon the filing of the Supplementary Records of Appeal. The Appellant filed a reply brief of argument to the third Respondent’s brief of arguments and it was dated and filed on the 26th of October, 2010. On the 22nd of October, 2012, this Honorable Court ordered the hearing of this appeal on the briefs of the Appellant and of the third Respondent only. The third Respondent filed a Notice of Preliminary Objection dated and filed on 22nd of January, 2013 challenging the second, fourth and fifth grounds of appeal on the amended notice of appeal. Counsel to the third Respondent argued the notice of preliminary objection in his brief of arguments and the Counsel to the Appellants responded to same in his reply brief of arguments. At the hearing of the appeal on the 22nd of January, 2013, Counsel to the Appellant and the third Respondent relied on and adopted their respective briefs of arguments.

This Court will commence the consideration of this appeal from the notice of preliminary objection of the third Respondent. The two grounds upon which the notice was predicated are that:
a. The second ground of appeal in the amended notice of appeal raised a fresh cause of action which did not in any way arise from the issues joined at trial nor flowed from the judgment of the trial Court and was never litigated at the trial Court.
b. The fourth and fifth grounds of the amended notice of appeal arose from interlocutory rulings of the trial court for which leave was never sought by the Appellant to appeal against as required by law.

Counsel to the third Respondent argued the notice of preliminary objection on pages 3 to 5 of the third Respondent’s brief of argument. On the first ground of objection, Counsel stated that the issue of statute of limitation in respect of the overdraft the first Respondent sought to recover from the Appellant by the sale of the property in question to the third Respondent and raised in the second ground of appeal was never canvassed, taken or raised in the pleadings of the parties at the trial Court and it was not considered or pronounced upon by the trial Court. Counsel submitted that though a party may on appeal, and with leave of the appellate Court, raise and argue fresh issues, such fresh issues must have been raised in the pleadings of the parties but not canvassed at trial and not pronounced upon by the lower Court. Counsel stated that the appellate court was without power to assume jurisdiction over an issue that seeks to change the tenor or character of the action canvassed by the parties at the lower Court and it cannot thus grant leave to an appellant to raise such an issue.

Counsel submitted that notwithstanding that the Appellant was granted leave to raise the issue in the second ground of appeal as an additional issue by this Court, if this Court discovered at the hearing that such issue was never raised by the parties in the pleadings, it was under a duty to strike it out and Counsel placed reliance on the cases of Ejiofodomi Vs Okonkwo (1982) 11 SC 74, Temco Engineering & Co Vs SBN Ltd (1995) 5 NWLR (Pt 397) 607 and Attorney General, Oyo State Vs Fairlakes Ltd (1988) 5 NWLR (Pt 92) 1,. Counsel concluded his submission on this point by saying that having failed to specifically plead limitation law in his pleadings as enjoined by Order 24 Rule 6(1) of the Kaduna State High Court (Civil Procedure) Rules 1987, the Appellant cannot now seek to make it an issue in this appeal and he referred to the case of Bakare Vs Nigeria Railway Corporation (2007) 7 – 10 SC 1.

On the second ground of objection, Counsel to the third Respondent stated that the fourth and fifth grounds of appeal were directed against rulings delivered by the lower Court in the course of proceedings. Counsel submitted that being grounds of appeal against interlocutory rulings of the lower Court, the Appellant was obligated to obtain the leave of this Court to appeal against those rulings before filing those grounds of appeal and that having failed to obtain such leave, the two grounds of appeal were incompetent. Counsel referred to AIB Vs Packoplast (2001) 30 WRN 141.

Counsel to the Appellant responded to these arguments on pages 1 to 3 of the Appellant’s reply brief of argument. On the first ground of objection, Counsel stated that the issue of limitation law vis-a-vis the legal mortgage pleaded and tendered by the third Respondent at the trial Court raised in the second ground of appeal was not a new cause of action as all the Appellant seeks to do is to question the validity and effect of a document tendered as a exhibit in the lower Court. On the question of non-pleading of limitation law, Counsel submitted that the days of adherence to strict technicalities were gone forever and he equated the issue of limitation law to that of illegality of contract and relied on the case of Fasel Services Ltd Vs NPA (2009) 9 NWLR (Pt 1146) 400 where he submitted that the Supreme Court said that once the illegality of a contract is brought to the attention of appellate Court, it must be considered and resolved irrespective of whether it was pleaded or not. Counsel stated that it is the duty of the Court to apply the law to facts admitted in any proceeding and that this Court can suo motu take judicial notice of the limitation law.

On the second ground of objection, Counsel to the Appellant submitted that the objection was misplaced and misconceived as the Appellant sought for and was granted leave by this Court on the 2nd of May, 2006 to appeal against the two rulings of the lower Court delivered on 22nd of July, 2002 and 15th of October, 2002.

The question that arises on the first ground of the notice of preliminary objection is – whether an appellant can raise the issue of limitation of action for the first time in the appellate Court, without having pleaded or canvassed same in the lower Court? This question has come up several times before the Supreme Court and the Supreme Court has expressed divergent views on it. In some instances the Supreme Court maintained that the defence of limitation law is a special defence and if available to the defendant at the time of the action, it must be specifically pleaded. Where it is not so pleaded and canvassed and pronounced upon in the lower Court, it cannot be raised in the appellate Court for the first time. In Kano Vs Oyelakin (1993) 3 NWLR (Pt 282) 399, Ogundare, JSC at page 409 put it thus:
“I must say, with all respect to learned counsel for the defendant/appellant, that all argument by him based on the provisions of the limitation law of Oyo State do not amount to much as it was not part of the defence raised in the amended statement of defence that the plaintiff’s action, or any part of it was barred under the limitation law. That defence being a special defence and available to the defendant at the time of the action must have been specifically pleaded and not having been pleaded by him, he could not now raise it even in this court…”
See also the cases of Ketu Vs Onikoro (1984) 10 SC 265, Savannah Bank of Nigeria Ltd Vs Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 NWLR (Pt 49) 212, Allen Vs Odubeko (1997) 5 NWLR (Pt 506) 638, Owie Vs Ighiwi (2005) 5 NWLR (Pt 917) 184 at 223-224. In a recent decision in Olagunju Vs Power Holding Company of Nigeria Plc (2011) 10 NWLR (Pt 1254) 113, the Supreme Court said:
“A defendant or party intending to raise or rely on defence of limitation law or statute of limitation must first of all specifically plead same otherwise the defence, being a special one, will not avail him. The rationale for this principle is to be found within the rules of pleadings, particular intent of which is to give notice to the other party so as not to take him by surprise.”
In its more recent decision in Sulgrave Holdings Inc Vs Federal Government of Nigeria (2012) 17 NWLR (Pt.1329) 309, the Supreme Court reiterated the point thus:
“In some jurisdictions of Nigeria, the limitation laws are required, as per the High Court (Civil Procedure) Rules, to be pleaded by the defence in order not to take the opposite side by surprise, although it may also arise from the facts as pleaded without specifically alleging the relevant limitation law. In that case, pleadings have to be filed and exchanged by the parties before an objection to the action being statute barred can properly be taken. This invariably is the case where demurrer has been abolished. And the rules in that case require the defendant to set down for hearing of the matter by an application raising specifically the question of limitation of action and the lack of the court’s power to entertain the matter.”
In another instance, the Supreme Court stated that where limitation of action is not pleaded or canvassed in the lower Court, it can be raised on appeal for the first time but that it must be with the leave of the appellate Court – Forestry Research Institute of Nigeria Vs Gold (2007) 11 NWLR (Pt 1044) 1.
In other instances, the Supreme Court equated an issue of limitation law with an issue of jurisdiction and suggested that it can be raised at any time, even on appeal for the first time, and that an appellant need not obtain the leave of the appellate Court to do so Elanbanjo Vs Dawodu (2006) 15 NWLR (Pt 1001) 76. This point was poignantly made by the Supreme Court in a recent decision in Ajayi Vs Adebiyi (2012) 11 NWLR (Pt 1310) 137 at 179-180 thus:
“Limitation Law and locus standi are both threshold issues which can be raised any time or for the first time in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court under Order 22 rule 2 of the High Court of Lagos State (Civil Procedure) Rules. It transcends any High Court rules. It can be raised by preliminary objection at any stage of the proceedings before any court by any of the parties or even suo motu by the court. It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence. The reason being that issue of jurisdiction can be raised at any time.”
This discordance in the position of the Supreme Court also infected the position taken by the Court of Appeal on the point. Thus, there are decisions of the Court of Appeal that say that limitation law must be pleaded and canvassed in the lower Court and cannot be raised for the first time in the Court of Appeal – see for example, Agricultural Development Corporation, Obitti, Imo State Vs Okedi (2004) 11 NWLR (Pt 884) 369, Oyebanji Vs Lawanson (2004) 13 NWLR (Pt 889) 62, Omotosho Vs Bank of the North Ltd (2006) 9 NWLR (Pt 986) 573, Ebenogwu Vs Onyemaobin (2008) 7 NWLR (Pt.1074) 396, Moyosore Vs Governor, Kwara State (2012) 5 NWLR (Pt 1293) 242. There are also decisions of the Court of Appeal where the Court equated an issue of limitation law with an issue of jurisdiction and suggested that it can be raised at any time, even on appeal for the first time, without the need for leave of the Court of Appeal – Nwaka Vs Head of Service, Ebonyi State (2008) 3 NWLR (Pt.1073) 156, Honorable Minister, Federal Capital Territory Vs Mononia Hotel Nigeria Ltd (2011) 9 NWLR (Pt.1252) 272.

In the instant case, it is not in contest that the issue of limitation law raised by the Appellant in his second ground of appeal was neither pleaded nor canvassed in the lower Court and it was not pronounced upon by the lower Court. It is also not in contest that on the 16th of March, 2009, this Court granted the Appellant leave to raise the issue in this appeal. In these circumstances and in view of the divergent positions of the Supreme Court on the issue, wise counsel dictates that this Court should allow the second ground of appeal to stand and that the issue of limitation law raised therein be considered in this appeal. It must, however, be stated that there is a need for the Supreme Court to reconcile its divergent decisions and take a definite stand on the issue. One of the eternal quality and advantage of the doctrine of judicial precedent is predictability and certainty in the law and this cannot be achieved in a state of divergent and discordant decisions by the highest court on the same point. The first ground of objection thus fails.

On the second ground of objection, this Court agrees with Counsel to the Appellant that the objection is completely misplaced and misconceived. The records of this Court show that the Appellant sought for and was granted leave by the Honorable Court on the 2nd of May, 2006 to appeal against the interlocutory rulings/decisions of the Kaduna State High Court delivered on 22nd of July, 2002 and 15th of October, 2002 in Suit No KDH/KAD/546/93. There is thus no basis for the ground of objection.

It has come to the attention of this Court that Counsel are in the habit of filing notices of preliminary objection to contend that some grounds on a notice of appeal are incompetent or to challenge issues formulated from such grounds of appeal. It is necessary to point out that the purpose of a preliminary objection to an appeal is to bring the appeal to an end for being incompetent or fundamentally defective. Consequently, a successful preliminary objection terminates the appeal. Where, as in this appeal, a preliminary objection was filed against some grounds of appeal, and there are other grounds of appeal that can sustain the appeal, a preliminary objection is inappropriate. Preliminary objections are only filed against the hearing of an appeal and not against one of more grounds of appeal which cannot stop the court from hearing the appeal, – General Electric Co Vs Akande (2010) 18 NWLR (Pt 1225) 596, Lafia Local Government vs The Executive Governor of Nasarawa State (2012) 17 NWLR (Pt 328) 94, Nigerian National Petroleum Corporation vs Famfa Oil Ltd (2012) 17 NWLR (Pt.1328) 148. The notice of preliminary objection of the third Respondent fails and it is hereby dismissed. This takes us to the substantive appeal of the Appellant.

This appeal is against the ruling of the lower Court delivered on 22nd of July, 2002 dismissing the case of the Appellant as well against the ruling of the lower court delivered on the 15th of October, 2002 refusing the motion to restore the Appellant’s case to the cause list and against the judgment of the lower court delivered on the 23rd of January, 2004 on the counter-claim of the third Respondent. In his brief of arguments, counsel to the Appellant distilled six issues for determination from the seven grounds of appeal and these are:
i. Whether the sale of the property situate at Plot B20, Unguwan Rimi, Kaduna by the first and second Respondents to the third Respondent during the pendency of this suit is valid in law (distilled from ground One).
ii. Whether the auction sale of the disputed property by the first and second Respondents can be held in law to be valid when the mortgage is caught by the limitation law of Kaduna State (distilled from ground Two).
iii. Whether the first Respondent can rely on a mortgage which was executed and registered before the offer and acceptance of the loan (distilled from ground Six)
iv. Whether the dismissal of the Appellant’s case in limine and subsequent refusal to set aside the order dismissing the case was not tantamount to wrongful and injudicious exercise of discretion and breach of fair hearing (distilled from grounds Four and Five).
v. Whether the learned trial Judge can properly in law suo motu grant general damages which was not claimed by the third Respondent in his counterclaim (distilled from ground Three).
vi. Whether the rulings and judgment of the Court below can be supported by the weight of the admissible evidence (distilled from ground Seven).

In response, Counsel to the third Respondent formulated only one issue for determination and this was:
Whether by the state of pleadings (counterclaim) and the evidence led thereon, the third defendant was entitled to judgment of the trial court.

The issue for determination formulated by Counsel to the third Respondent is the same as the sixth issue formulated by the Appellant. The issues for determination formulated by the Appellant are distilled from the grounds of appeal and it follows naturally that the issues so formulated encompass the grievances of the Appellant in this appeal. They thus must be preferred and form the basis of the resolution of this appeal -United Bank of Africa Plc Vs Odimayo (2005) 2 NWLR (Pt 909) 21. The issues will be dealt with separately.

Issue 1
On the first issue for determination, i.e. whether the sale of the property situate at Plot B20, Unguwan Rimi, Kaduna by the first and second Respondents to the third Respondent during the pendency of this suit is valid in law, Counsel to the Appellant stated that it was clear from the records that the first and second Respondents auctioned and sold the property to the third Respondent on the 31st of January, 1994 after the discharge of the interim order of injunction but while the substantive suit was still pending. Counsel stated that the third Respondent was aware of the pendency of the suit as at the time he acquired interest in the property and this was why the third Respondent applied to be joined in the suit and the fact of his purchase of the property during the pendency of the suit was evident from the facts deposed in the affidavit in support of the motion to join. Counsel submitted that the said sale of the property was caught by the doctrine of lis pendens and he referred to the case of Bua Vs Dauda (2003) 13 NWLR 657 where the Supreme Court explained the doctrine of lis pendens and stated the four criteria for its application.

Counsel submitted that the present case met the four criteria necessary for the application of the doctrine because (i) the first and second Respondents were served with the originating processes in this suit and they filed a memorandum of appearance to the suit on the 3rd of December, 1993, before the sale of the property on 31st January, 1994; (ii) the substantive suit was in respect of real property, that is the property situate at Plot B20, Unguwan Rimi, Kaduna and the object of the suit was to assert title to the aforesaid property and one of the orders sought in the suit was an order seeking to restrain the first and second Respondents from selling the property. Counsel traced the events that happened in the course of the matter and referred to portions of the testimonies of the Respondents at the trial in further assertion of the fact that the substantive suit was pending when the property was sold to the third Respondent. Counsel submitted this was a proper case for the invocation of the doctrine of lis pendens to nullify the sale.

Counsel to the third Respondent responded to the arguments of the Counsel to the Appellant on the first issue for determination in paragraphs 4.2.0 on page 11 to paragraph 4.4.0 on page 13 of his brief of arguments. The essence of the entire arguments of Counsel was that as at 31st of January, 1994 when the sale by auction of the property in question took place, the substantive suit was not pending and had been struck out and that it was not until the 16th of June, 1994 that the suit was relisted and that as such the factual basis upon which the Counsel to the Appellant based his submissions on lis pendens was faulty.

Counsel stated that as at the 31st of January, 1994 when the sale of the property took place there was no order of injunction restraining the sale and neither was there a substantive suit and all of them were struck out on the 19th of January, 1994 and he submitted that the doctrine of lis pendens was not applicable.

Before proceeding to consider the legal arguments on the doctrine of lis pendens, it is pertinent to set right the factual position of things as can be garnered from the records of appeal and the supplementary records of appeal. It is clear from the records that what the lower court struck out on the 19th of January, 1994, was the motion on notice for interlocutory injunction dated the 1st of November, 1993 and filed along with the writ of summons. The lower Court also discharged the order of interim injunction. The Court did not strike out the substantive suit of the Appellant on that day and that the first time the lower Court struck out the substantive suit was on the 1st of February, 1995.
Thus, as at 31st of January, 1994, when the first and second Respondents sold the property in question to the third Respondent, the substantive suit of the Appellant had not been struck out.

Now going to the law, one of the fundamental principles of judicial adjudication is that where a matter is before a court of law, none of the parties can legally or lawfully take any unilateral action that will prejudice or tend to prejudice the hearing or adjudication of the matter by the court. The doctrine of lis pendens, which is expressed in the Latin maxim lis pendente lite nihit innoveteur meaning that nothing should change during the pendency of an action, is a variant of this fundamental principle of adjudication. Under the doctrine, parties to proceedings pending in court ought not to do anything which may have the effect of rendering nugatory the judgment of the court. The court does not allow parties in a pending litigation to foist on it a fait accompli and thus render its decision utterly nugatory – Kerewi Vs Abraham (2010) 1 NWLR (Pt 1176) 443. It is the jurisdiction, power or control required by a court over property while a legal action is pending – Ezomo Vs New Nigerian Bank Plc (2006) 14 NWLR (Pt.1000) 624.
The doctrine forbids the effective transfer of property in the subject matter of litigation during the pendency of the litigation. The law does not allow to litigant parties or give them, during the currency of litigation involving any property, rights in such property so as to prejudice any of the litigating parties – Ogundiani Vs Araba (1978) 6-7 SC 55, Oronti Vs Onigbanjo (2004) 17 NWLR (Pt 903) 601, Dunu Vs Oladejo (2004) 17 NWLR (Pt 903) 621, Olori Motors Co. Ltd Vs Union Bank of Nigeria Plc (2006) 10 NWLR (Pt 989) 586, Enekwe Vs International Merchant Bank (Nig) Ltd (2006) 19 NWLR (Pt 1013) 146, Enyibros Food Processing Co. Ltd Vs Nigerian Deposit Insurance Corp. (2007) 9 NWLR (Pt 1039) 216. The doctrine postulates that a sale conducted when a matter is in litigation is void ab initio and no title can be passed to the purchaser. The doctrine, as a matter of policy, precludes a party from selling land in dispute when he knows there is a dispute in court over the ownership of the land – Osagie Vs Oyeyinka (1987) 3 NWLR (pt 59) 144, Osidele Vs Sokunbi (2012) 15 NWLR (Pt 1324) 470. Thus, the courts have held that a person who buys land upon which there is on-going litigation buys nothing and acquires no interest – Fakoya Vs Taiwo (1995) 18 NWLR (Pt 413) 374, Umoh Vs Tita (1999) 12 NWLR (Pt 631) 427, Oguntoyinbo Vs Oguntoyinbo (2000) 2 NWLR (Pt 646) 585.
It is a doctrine common to the courts, both law and equity, and rests upon the foundation that it would plainly be impossible for any action or suit to be brought to successful termination if alienations pende lite were permitted to prevail. The claimant would be liable in every case to be defeated by the defendant alienating before the judgment or decree and would be driven to commence his proceedings de novo, subject again to being defeated by the same course or proceedings. This doctrine belongs to a court of law no less than courts of equity – Barclays Bank of Nigeria Ltd Vs Ashiru (1978) 1 LRN 266, Bua Vs Dauda (2003) 13 NWLR (Pt 838) 657, Ezomo Vs New Nigerian Bank Plc supra.

The doctrine of lis pendens is, however, not one of common application and it has certain guidelines. The first guideline, relevant to the instant case, is that where the issue of lis pendens was neither pleaded nor the judgment of the trial court based thereon, it will be too late to raise it in the appellate court. In Clay Industries (Nig) Ltd Vs Aina (1997) 8 NWLR (Pt 516) 208, Iguh, JSC, made this point at page 233 B-C thus:
“Lis pendens was neither pleaded as a ground for the defeat of the respondents’ case before the trial Court nor was the judgment based thereon. In my view, it is now too late in the day for the appellant to raise this new defence which did not form the basis of his case before the trial court.”
In the instant case, the Appellant neither pleaded nor canvassed lis pendens in the lower Court and the lower Court did not pronounce on it in its judgment.
Going further and assuming that the Appellant can so raise lis pendens because of the leave granted him by this Honorable Court on the 16th of March, 2009 to raise it as a fresh issue, the second guideline is that where a property, the subject matter of a pending litigation, is sold by one of the litigating parties during the currency of the litigation and judgment in the litigation is given in favour of the party who sold the property or where the litigation is struck out and not decided on the merits, the doctrine of lis pendens will not apply at the instance of the other Party to the litigation to nullify the sale of the property simply because it was carried out during the currency of the litigation. The party must show the prejudice suffered by the alienation of the property – Ogunsola Vs NICON (1991) 4 NWLR (Pt 188) 762, Bua Vs Dauda (1999) 12 NWLR (Pt 629) 59, Oronti Vs Onigbanjo (2004) 17 NWLR (Pt 903) 601, Dunu Vs Oladejo supra, Oronti Vs Onigbanjo (2012) 12 NWLR (Pt 1313) 23. In the instant case, it is pertinent to remember that the only case pending as at 31st January, 1994 when the property was sold were the claims of the Appellant, and not the counterclaim of the third Respondent, and these claims were subsequently dismissed by the lower Court for want of diligent prosecution on the 22nd of July, 2002. Nowhere in the arguments on this issue did the Counsel to the Appellant allege or show any prejudice suffered by the Appellant by reason of the alienation. All the Counsel has asked this Court to do is to nullify the sale of the property simply because it was carried out during the lifetime of the case of the Appellant. The doctrine cannot be applicable in the circumstances.
Thirdly, for the doctrine of lis pendens to apply the following must be shown:
(a) that at the time of the sale of the property, the suit regarding the dispute about the said property was already pending;
(b) that the action or lis was in respect of real property; it never applies to personal property;
(c) that the object of the action was to receive or assert title to a specific real property, that is to say, an action in a subject matter adverse to the owner in respect of some substantive right which is proprietary in nature; and
(d) that the other party had been served with the originating process in the pending action.
See the cases of Bua vs Dauda (2003) 13 NWLR (Pt 838) 657, Oronti Vs Onigbanjo (2004) 17 NWLR (Pt 903) 601, Dunu vs Oladejo supra, Enekwe vs International Merchant Bank (Nig) Ltd supra, Enyibros Food Processing Co. Ltd Vs Nigerian Deposit Insurance Corp. supra. The above four conditions must co-exist before the doctrine of lis pendens would apply. The absence of any of these conditions would render the doctrine inapplicable – Oronti Vs Onigbanjo (2012) 12 NWLR (Pt 1313) 23.

Counsel to the Appellant argued profusely in his brief that the lis of the Appellant’s case before the lower Court was the property at Plot B20 Unguwan Rimi, Kaduna and that the object of the case was to assert title to the said property. Now, as at the time the property was sold on the 31st of January, 1994, the only processes that the Appellant had filed before the lower Court were the writ of summons, the motion ex parte for interim injunction and the motion on notice for interlocutory injunction. The Appellant did not file his statement of claim until the 12th of June, 1995 (see pages 68 to 75 of the records). The claims of the Appellants on the writ of summons are set out above. A close reading of the claims shows clearly that they were directed against the rate of interest being charged on the loan/overdraft facility extended by the first Respondent to the Appellant. The claims were not about asserting title or any rights to the property at Plot B20 Unguwan Rimi, Kaduna. The Appellant was disputing the amount he was said to be owing to the first Respondent on a loan/overdraft facility. The lis of the case of the Appellant before the lower Court was not the property at Plot B20 Unguwan Rimi, Kaduna and the case had nothing to do with the assertion of title over that landed Property.

It is clear from the claims of the Appellant that he took a facility from the first Respondent and that he was yet to fully pay up the said facility and his claims were only disputing the amount due on the facility. It is settled law that a mortgagee will not be restrained nor can his power of sale be affected merely because the amount due is in dispute or because the mortgagor objects to the manner in which the sale is being arranged or because the mortgagor has commenced a redemption action in court – Nigerian Housing Development Society Ltd Vs Mumuni (1977) 2 SC 57, Ayanlere Vs Federal Mortgage Bank Ltd (1998) 11 NWLR Pt 575) 621, Omidiji Vs Federal Mortgage Bank (2001) 13 NWLR (Pt 731) 646, African International Bank Ltd Vs Lee & Tee Industries Ltd (2003) 7 NWLR (Pt 819) 366, Ndaba (Nig) Ltd Vs Union Bank of Nigeria Plc (2007) 9 NWLR (Pt 1040) 439. In Intercity Bank Plc Vs Feed & Food Farms Ltd (2001) 17 NWLR 742) 347, Omage, JCA stated at page 365 D-F:
“In my respectful opinion, the complaint of the mortgagor notwithstanding, about the actual sum owing on the mortgage, the court will not intervene or restrain the mortgagee from exercising his right of sale of the mortgaged property. To intervene is to seek to vary the terms of the mortgage agreement and the court will not rewrite the mortgage agreement for the parties. The right of sale of the mortgagee is the only certain shield and he should be allowed to sell, ceteris paribus (all things being equal).”
The sale of the property at Plot B20 Unguwan Rimi, Kaduna by the first and second Respondents to the third Respondent cannot be questioned, in the circumstances of this case, on the basis of the doctrine of lis pendens. The first issue for determination is resolved in favour of the Respondent.

Issue II
On the second issue for determination, i.e. whether the auction sale of the disputed property by the first and second Respondents can be held in law to be valid when the mortgage is caught by the limitation law of Kaduna State, Counsel to the Appellant referred to the provision of Section 15 of the Limitation Law of Kaduna State. The Section reads that no action shall be brought to recover any principal sum of money accrued by a mortgage or other charge on a property and proceeds of sale and that no foreclosure action in respect of mortgaged property shall be brought after the expiration of ten years from the date the right to receive the money or to foreclose accrued. Counsel stated that the over draft facility given to the Appellant was for one year, 21st of April, 1982 to 31st of March, 1983 and he submitted that as the 31st of January, 1994 when the first and second Respondents purported to sell the property at plot B20 Unguwan Rimi, Kaduna to the third Respondent under the deed of legal mortgage, the period of ten years had lapsed and the sale was thus caught by the limitation law. Counsel submitted that the rights under the legal mortgage had been extinguished by the limitation law and that the principle of nemo dat qui non habet will nullify the sale.

The response arguments of the Counsel to the third Respondent on this issue are in paragraphs 4.5.0 on page 13 to 4.7.0 on page 16 of the third Respondent brief of arguments. The fulcrum of the arguments of Counsel was that the facility granted the Appellant was not a term facility but a continuing one and for which limitation period does not commence to run until a demand is made for the money due on the facility and that it was not until 2nd of March, 1992 that a demand was made on the Appellant and as such the sale of the mortgage property took place within the limitation period. Counsel also submitted that it was not in dispute that the Appellant had taken benefit under the loan transaction and that it would thus be unconscionable for the Appellant to turn round to contend, as done in the brief, that the debt he owed had become statute barred and that the auction of the mortgage property was thus invalid. Counsel also made submissions on what a party challenging the validity of the exercise of power of sale by a mortgagee should do and what such a party was entitled to.

With respects to both Counsel, their submissions on this issue show an absolute lack of understanding of the principle of limitation of action. Limitation of action is a statutory defence. The general rule is that where there is a right there is a remedy; that is to say, where there is a cause of action, there is a remedy. However, the legislature has prescribed certain periods of limitation for instituting certain actions and these are contained in the Limitations Laws of the different States of Nigeria, and including of the Federal Capital Territory, Abuja. This is based on public policy that there should be an end to litigation and that stale demands should be suppressed for it would be unfair to a person to allow claims to be made upon him after a long period during which he may have lost the evidence formerly available to him necessary to rebut the claim – Shell Petroleum Development Corporation Vs Farah (1995) 3 NWLR (Pt 382) 148, Muhammed Vs Military Administrator, Plateau State (2001) 16 NWLR (Pt 740) 524.
Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute bared, a claimant who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed – Odubeko Vs Fowler (1993) 7 NWLR (Pt 308) 637, Shell Petroleum Development Corporation vs Farah supra, PN Udoh Trading Co. Ltd Vs Abere (2001) 11 NWLR (Pt.723) 114, Muhammed Vs Military Administrator, Plateau State supra, Sulgrave Holdings Inc vs. Federal Government of Nigeria (2012) 17 NWLR (Pt 1329) 309.
So, when an action is said to be statute barred, what it connotes is that the claimant my have an actionable cause of action, but his recourse to judicial remedy is voided; no proceedings could be brought to prosecute the action – Yusuf Vs Co-operative Bank Ltd (1994) 7 NWLR (Pt.359) 676, PN Udoh Trading Co. Ltd vs Abere (1996) 8 NWLR (Pt.467) 479. In other words, in an action caught by limitation law, it is not that a claimant does not have a right of action or a competent cause of action, but only that the cause of action or the right of action is unenforceable Muhammed Vs Military Administrator, Plateau State supra.
The philosophy behind the Limitation Laws was stated by Tobi, JCA (as he then was) in Merchantile Bank (Nig) Ltd Vs Feteco (1998) 3 NWLR (Pt.540) 143 at 156-157 thus:
“A statute of limitation is designed to stop or avoid situations where a plaintiff can commence an action anytime he feels like doing so, even when human memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering plaintiff…”
This position was reiterated by Aderemi, JCA (as he then was) in Union Bank of Nigeria Ltd Vs Oki (1999) 8 NWLR (Pt 614) 244 at 253-254 thus:
“To my mind the philosophy behind the application of the statute of limitation is that barring actions by effluxion of time will encourage and secure reasonable diligence in litigation and protect defendants from stale claims when the evidence which might have answered them has perished And perhaps the rationale for that piece of legislation is to give peace to a defendant after the lapse of a given period… Eternal vigilance is the price of freedom.”
It is clear from the foregoing that limitation law affects a cause of action or the validity of a cause of action instituted outside the limitation period. Limitation law has nothing to do with the rights of parties in a contract or the power of sale of a mortgagee under a deed of legal mortgage. Limitation law only bars the right of parties to go to court to commence an action to enforce the rights in a contract or the power of sale of a mortgagee. It does not extinguish the rights of the parties under the contract or the power of sale of the mortgagee. The first Respondent, in the instant case, sold the property at plot B20 Unguwan Rimi, Kaduna by public auction pursuant to its power of sale under the deed of legal mortgage, and not by reason of any court action. Limitation law cannot be available to void the public auction. The second issue for determination is resolved in favour of the third Respondent.

Issue III
On the third issue for determination, i.e whether the first Respondent can rely on a mortgage which was executed and registered before the offer and acceptance of the loan, Counsel to the Appellant prefaced his submission with an introduction that the deed of legal mortgage, tendered as Exhibit 3 (see pages 140 to 145 of the records), was executed on the 6th of April, 1982 while the offer letter conveying the grant of the overdraft, tendered as Exhibit 8 (see page 8 of the records), was dated the 21st of April, 1982 and was signed by the Appellant to signify acceptance on the 26th of April, 1982. Counsel proceeded to define the word “mortgage” and submitted that as at 6th of April, 1982 when the deed of legal mortgage was executed there was no debt in existence which the mortgage was to secure. Counsel submitted that there was no consideration furnished by the first Respondent to the Appellant for the mortgage and that the mortgage could not have been meant to secure the facility granted after it was executed. Counsel stated that the first Respondent could thus not have legitimately exercised any power of sale under the deed of legal mortgage to recover the facility granted on the 26th of April, 1982.

The response arguments of Counsel to the third Respondent were in paragraphs 4.8.0 on page 16 to 4.9.0 on page 1.7 of the third Respondent’s brief. The arguments of Counsel centered on the fact that the Appellant having taking benefit in the transaction between him and the first Respondent, as confirmed in the Appellant’s testimony in course of trial of the counterclaim, was estopped from contesting the deed of legal mortgage which the Appellant himself alluded to and which was tendered at trial without objection from the Appellant’s Counsel. Counsel submitted that the contention of the Appellant was unconscionable in the circumstances and should not be allowed by this Court.

This Court has painstakingly and painfully read through the entire records of appeal and the supplementary records of appeal and nowhere therein was it shown or suggested that this issue was ever raised or canvassed before the lower Court and/or for that it was pronounced upon by that Court.
It is trite law that an appellate court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower court. An appeal court is bound by the records of appeal and therefore an appellant is entitled to contest the judgment of a trial court only on the issues properly raised before the lower court and pronounced upon by that court- Oshatoba Vs Olujitan (2000) 5 NWLR (Pt.655) 159, Onwuka Vs Ononuju (2009) 11 NWLR (Pt 1151) 174, Oseni Vs Bajulu (2009) 18 NWLR (Pt.1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt.1198) 1. Parties should be consistent in prosecuting their cases at the trial court as well as in the appellate court. There should be no somersault. The option open to an appellant seeking to raise a fresh issue on appeal is to seek the leave of the appellate Court to do so and where no leave was sought and obtained, the treatment of such issue by the appellate court would amount to an exercise in futility and a nullity as the appellate Court lacks jurisdiction to do so – Akpan Vs Bob (2010) 17 NWLR (Pt.1223) 421. This issue was not one of the issues for which the Appellant sought for and was granted leave by this Court to raise on the 16th of March, 2009. This Court thus has no jurisdiction to pronounce on the issue and the third issue for determination is hereby struck out.

Issue IV
This takes us to the fourth issue for determination, i.e. whether the dismissal of the Appellant’s case in limine and the subsequent refusal to set aside the order dismissing the case was not tantamount to wrongful and injudicious exercise of discretion and breach of fair hearing. Counsel to the Appellant submitted that it was settled law that the learned trial Judge in the instant case had a discretion to set aside his order dismissing the Appellant’s case for want of diligent prosecution and that the appellate Court would not interfere with the exercise of such discretion unless the trial Judge failed the ‘judicial and judicious’ test in exercising the discretion. Counsel then examined the facts leading up to the lower Court dismissing the case of the Appellant on the 22nd of July, 2002 and Counsel started from the 28th of November, 2001.

Counsel stated that on the 28th of November, 2001 the Appellant was in Court but that trial could not proceed because the exhibits tendered when the matter was part heard before Honorable Justice Donli were not in Court and the matter was adjourned to the 14th of March, 2002. Counsel said that on the 14th of March, 2002, the Appellant was not in Court and he was reported to be ill and the matter was adjourned to the 22nd of April, 2002. On the 22nd of April, 2002, the Appellant was again absent and his Counsel informed the Court that the Appellant was still ill and, despite the objection of the Counsel to the third Respondent, the lower Court adjourned the matter to the 22nd of May, 2002 with a directive to counsel to present medical evidence on the health of the Appellant. On the 22nd of May, 2002, the Appellant was again absent from Court and Counsel to the Appellant did not present the medical evidence of ill-health of the Appellant to the Court but against the Court adjourned the matter to the 22nd July, 2002 and the lower Court stated that it was adjourning “for the last time at the instance of the Plaintiff for hearing at 9.00am.” On the 22nd of July, 2002, the Appellant was again not in Court and his Counsel reported that the Appellant was still ill and whereupon the lower Court dismissed the case of the Appellant.

Counsel stated the principles governing the grant of adjournment by the Courts and he referred to the provisions of Order 38 Rule 8 of the High Court of Kaduna State (Civil Procedure) Rules 1987, the applicable Rules of Court in this case, dealing with the power of the Court to dismiss a case where the plaintiff does not appear at trial. Counsel submitted that the conditions necessary for the application of the power of the lower Court under Order 38 Rule 8 were not present in the instant case on the 22nd of July, 2002 when the case of the Appellant was dismissed and that as such it amounted to an injudicious use of the power. Counsel further stated that it was not apparent from the records of the lower Court that after the Counsel to the Appellant informed the Court on the 22nd of July, 2002 that the Appellant was still ill, the lower Court called on the Counsel to proceed with the case before dismissing the Appellant’s case for want of diligent prosecution. Counsel submitted that this was in breach of the right of the Appellant to fair hearing.

With regards to the motion of the Appellant seeking that the lower Court set aside the ruling dismissing his case, Counsel submitted that the lower Court did not properly evaluate the medical evidence of the Appellant’s ill health attached to the application in refusing the application and that this occasioned a miscarriage of justice.

In his response arguments, Counsel to the third Respondent stated that this issue for determination questions the refusal of the exercise of discretion by the lower Court and Counsel submitted that an appellate Court was not at liberty to substitute its own exercise of discretion for that exercised by the lower Court merely because it feels that it would have exercised the discretion differently from how the lower Court did. Counsel submitted that, in the circumstances of this case, the lower Court was perfectly in order in the exercise of its discretion as the Appellant continually exhibited a lack of diligence and an unwillingness to prosecute his case.

In presenting the factual situation on this issue for determination, Counsel to the Appellant began from the 28th of November, 2001, and he completely overlooked the fact that this case commenced in November 1993. In order to properly resolve this issue, it is necessary to put the proceedings in this matter from inception to the dismissal of the case of the Appellant in proper perspective. As stated earlier, the lower Court granted an order of interim injunction in favour of the Appellant on the 2nd of November, 1992 and it thereafter adjourned the hearing of the motion on notice for interlocutory injunction.

When the matter came up on the 19th of January, 1994, the Appellant and his Counsel were absent from Court and the lower Court struck out the motion on notice for interlocutory injunction and discharged the order of interim injunction. On the 31st of January, 1994, the first and second Respondents sold the landed property of the Appellant at Plot B.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No. 007571, to the third Respondent by public auction. On the 2nd of February, 1994, the Appellant filed a motion on notice dated the 1st of February, 1994 seeking to re-list the motion on notice for interlocutory injunction and to restore the order of interim injunction. The motion to re-list was struck out by the lower Court on the 6th of June, 1994 due to the absence of the Appellant and of his Counsel from Court. On the same 6th of June, 1994, the Counsel to the Appellant filed a motion to re-list the motion to re-list and the motion was granted on the 16th of June, 1994 and the motion to re-list dated 1st of February, 1994 was re-listed and the Court granted an interim stay of action in respect of the property Plot B.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No. 007571.

By a motion on notice dated the 29th of July, 1994, the third Respondent applied to be joined as the third defendant in the action and the motion was granted by the lower Court on the 10th of October, 1994. The lower Court ordered the parties to file pleadings and the matter was fixed for hearing on the 1st of February, 1995. The Appellant did not file pleadings and on the 1st of February, 1995, the Appellant and his Counsel were absent from Court and the lower Court struck out the entire suit inclusive of all pending motions and it discharged the order of interim stay of action made on the property Plot B.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No. 007571. On the 2nd of February, 1995, the Appellant filed a motion on notice praying to re-list the suit and restore the interim order of stay of action on the property. On the 27th of April, 1995, the lower Court heard the motion and granted only the prayer re-listing the suit and refused the order of interim stay of action.

On the 5th of May, 1995, the Appellant filed a motion on notice praying for an order of prohibitive interim injunction to restrain the Respondents from evicting or threatening to evict him from the property at Plot B.20 Unguwar Rimi, Kaduna pending the determination of the suit. On the 26th of May, 1995, the Appellant filed another motion on notice praying to re-list the motion on notice for interlocutory injunction dated 1st November, 1993 and to set aside the sale of the landed property Plot B.20 Unguwar Rimi, Kaduna to the third Respondent.
On the 5th of June, 1995, Counsel to the first and second Respondents and Counsel to the third Respondent gave undertakings to the lower Court not to evict the Appellant until the determination of the case and prayed the Court for accelerated hearing of the matter. Based on the undertakings all pending applications of the Appellant were struck out and the Court made an order that parties should maintain status quo and granted accelerated hearing of the substantive suit. The lower Court ordered the parties to file pleadings afresh and adjourned the matter to the 26th and 27th of July, 1995 for definite hearing.

Pleadings were filed and but the hearing did not progress as planned 26th of July, 1995. On that day the Appellant and his Counsel were in Court but the Counsel to the Appellant refused to proceed with hearing of the matter on the ground that the Appellant had not perfected his brief and after much drama, the lower adjourned the matter to the 28th of September, 1995 for definite hearing.
On the 28th of September, 1995, the Appellant was in Court but his Counsel was absent and the lower Court refused the request for a further adjournment and struck out the case of the Appellant for non-diligent prosecution. On the same 28th of September, 1995, the Appellant filed a motion to re-list his case that was struck out by the Court. On the 29th of September, 1995, the Appellant filed another motion to re-list his case struck out by the Court. On the 18th of December, 1995, Counsel to the Appellant withdrew the motion to re-list dated the 28th of September, 1995 and same was struck out. The lower Court heard and reluctantly granted the Appellant’s motion to re-list dated the 29th of September, 1995 and it re-listed the case of the Appellant. The case was again set down for trial on the 20th of February, 1996.

Again, the trial of the matter did not go ahead as planned and this was due to different requests for adjournment by the Appellant and after several of such adjournments, the lower Court dismissed the case of the Appellant on the 30th of January, 1997 and set the counterclaim of the third Respondent down for hearing. On the 3rd of February, 1997, the Appellant filed a motion on notice praying for an order to set aside the ruling dismissing his case. The motion was taken by the lower Court on the 22nd of April, 1997 and the Court set aside its ruling of 30th January, 1997 and re-listed the case of the Appellant. Trial eventually commenced in the matter on the 23rd of October, 1997 but was not concluded before the learned trial Judge, Honorable Justice Donli, left the service of the Kaduna State Judiciary. (see the supplementary records of appeal)

The matter was then transferred to Honorable Justice J.S. Abiriyi and it came up for mention in that Court on the 6th of April, 2001. The matter was set down for hearing de novo on the 22nd of May, 2001. Trial could not proceed as the Appellant had problems with his legal representation and the matter was adjourned on two occasions to enable the Appellant sort out his legal representation and when this was done, the matter was fixed for hearing on the 15th of October, 2001. On the 15th of October, 2001, the Appellant and his Counsel were in Court and Counsel to the Appellant sought for an adjournment of the hearing because they were yet to retrieve the exhibits tendered in the course of the part-heard trial before Honorable Justice Donli and the matter was adjourned to the 28th of November, 2001 for hearing. On 28th of November, 2001, the Appellant and his Counsel were in Court and Counsel to the Appellant again sought for an adjournment on the ground that their efforts at retrieving the exhibits were not successful and that it was only that morning that the Counsel to the third Respondent handed over the exhibits to him which the Counsel had retrieved from the Registrar of the former Court. The request for adjournment was again granted and the matter was adjourned for hearing.

The matter next came up on the 14th of March, 2002 and on which day the Appellant was absent from Court but his Counsel was present and the Counsel to the Appellant sought for an adjournment of the ground that the Appellant was ill and on admission in the Ahmadu Bello Teaching Hospital, Zaria for a kidney related problem. Counsel presented no medical evidence of ill-health and the request for adjournment was granted and the matter was adjourned to the 22nd of April, 2002 for hearing. On the 22nd of April, 2002, the Appellant was again absent from Court and his Counsel requested for another adjournment on the ground that the Appellant was still on the hospital bed and this time with acute liver problem and again no medical record of ill-health was produced. Counsel to the third Respondent vehemently opposed the request and the lower Court ruled thus:
“Despite the absence of medical evidence that the plaintiff is ill, I will nevertheless grant one last adjournment to enable 3rd Defendant’s Counsel confirm that the plaintiff is so ill that he cannot come to court and for medical evidence to be presented to court showing that he cannot attend court failing which the claim will be dismissed and the counterclaim set down for hearing.” (see page 162 of the records)

The matter was then adjourned to 22nd of May, 2002. On the 22nd of May, 2002, the Appellant was absent from Court and his Counsel informed the Court that the Appellant was still ill and had been transferred to a hospital in Katsina and he sought for an adjournment for two months to enable him get another witness to prosecute the case and that if he did not get any witness by the next adjourned date he “will throw in the towel”. It is apparent from the records that the Counsel to the Appellant showed some medical report to the Counsel to the third Respondent. Counsel to the third Respondent informed the lower Court that the medical report showed to him was dated February, 2002 and that it showed that the Appellant received treatment for malaria and not for any kidney problem. Counsel to the third Respondent conceded the request for two months adjournment on the basis of the undertaking of Counsel to the Appellant to “throw in the towel” if no witness was available to prosecute the case of the Appellant. The Court adjourned the matter to the 22nd of July, 2002 “for the last time at the instance of the plaintiff for hearing at 9.00am”.

On the 22nd of July, 2002, the Appellant was absent from Court and his Counsel informed the Court that the Appellant was still very sick. Counsel to the third Respondent prayed that the case of the Appellant be dismissed in view of the apparent inability of the Counsel to prosecute the case. The lower Court stated thus:
“From the records of proceedings of this Court, no medical evidence, despite the adjournments granted, has been produced before this Court to show that the plaintiff is ill.

In the circumstances, there is no basis for reviewing the last of court made on the 22nd of May, 2002 making that adjournment the last one at the instance of the plaintiff. The case of the plaintiff is hereby dismissed for want of prosecution.” (see page 164 of the records)

Thereafter the Appellant filed a motion on notice dated the 26th of August, 2002 praying the lower Court to set aside the ruling of 22nd of July, 2002 dismissing his case. The lower Court took arguments on the motion and stated in its Ruling delivered on the 15th of October, 2002 thus:
“I have considered the affidavit in support of the motion, the counter affidavit of the 1st Defendant and arguments of Counsel. It appears to me that this application was brought in after disregard of this court. On the date the case of the plaintiff was dismissed, the court in its ruling showed its concern that despite the claim that the plaintiff was not well no medical evidence had been produced in support. The exhibit attached to the affidavit shows that the plaintiff was on admission about five days before the case was dismissed. If it were so, that was the more reason why the medical evidence should have been furnished to the court. Then the matter would not have been dismissed.

Of course, there is evidence that in the course of the proceedings and before the plaintiff’s case was dismissed, he had fever. This is no reason for stalling the hearing of the case for several months. It is also instructive that it was the learned counsel for the 2nd and 3rd Defendants who got the exhibits from the previous court for the plaintiff. It was after this that the plaintiff started feigning illness.

As Mr. Aluko-Olokun SAN has rightly pointed out, the plaintiff throughout his affidavit has never attempted to show that he has a good case warranting his being heard. I agree entirely with learned counsel for the Defendants that on the available records of proceedings which show a want of seriousness to prosecute the case that the application should be dismissed. It is accordingly dismissed.” (see page 168 of the records)

The complaint of the Appellant is against the two rulings and his Counsel asserts that the lower Court wrongfully exercised its discretion in dismissing the case of the Appellant and in refusing to relist the matter. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations – First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt.1018) 276. Discretion is a very fluid situation and when a court is invited to exercise its discretion one way or the other, the court has to take cognizance of the very facts of the case before it – Bello vs. Yakubu (2008) 14 NWLR (Pt.1106) 104. The court’s discretion must be exercised so as to do what justice and fair play may require having regards to the facts and circumstances of each particular case – Mamman Vs Salaudeen (2005) 18 NWLR (Pt 958) 478. A court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations – CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt 1109) 1.
It is settled law that where a Court exercises its discretion judicially and judiciously, an appellate Court will not interfere with such exercise of discretion Nwude Vs Federal Government of Nigeria (2004) 17 NWLR (Pt 902) 306, Onwuka Vs Ononuju (2009) 11 WLR Pt 1151) 174, Oyegun Vs Nzeribe (2010) 7 NWLR (Pt.1194) 577. The principle to be followed by an appellate Court in considering a complaint against an exercise of discretion by a lower Court was stated by the Supreme Court in Alsthom SA Vs Saraki (2005) 3 NWLR (Pt 911) 208 thus:
“In determining whether a trial court exercised its discretion judicially and judiciously, care must be taken by the appellate court not to substitute its own discretion for the discretion of the trial court. The true principle is that for an appellate court to interfere with the exercise of the discretionary power vested in the trial court, it must be shown how that power was wrongly exercised to justify the intervention of the appellate court. In other words, to succeed in such an appeal, the appellant must satisfy the appellate court that the trial court acted on an entirely wrong principle or failed to take all the circumstances of the case into consideration, and that it is manifest that the order would work injustice to the appellant.”
The principle was reiterated by the Supreme Court in Mamman Vs Salaudeen supra thus:
“A discretion properly exercised by a court will not be lightly interfered with by an appellate court even where the appellate court is of the opinion that it might have exercised the discretion differently. An appellate court will only interfere with the exercise of discretion by a lower court where that court exercised its discretion upon a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters, thereby giving rise to injustice”.

This Court has taken great pains, time and effort to sift through the records of appeal and set out the sequence of events that took place between November 1993 when this action was commenced by the Appellant and July 2002 when the lower Court dismissed the case of the Appellant to show the lack of sincerity in the arguments of the Counsel to the Appellant on this issue. The above set out sequence shows that the case of the Appellant was struck twice on the 1st of February, 1995 and on the 28th of September, 1995 and was dismissed once by the lower Court on the 30th of January, 1997, all for want of diligent prosecution. The suit was re-listed on the three occasions by the lower Court in the interest of justice. Counsel to the Appellant conveniently forgot to refer to any of the proceedings before November 2001, in making his submissions on this issue.

The sequence further shows that between the 14th of March, 2002, when the issue of the Appellant being ill was brought up before the lower Court by the Counsel to the Appellant, and the 22nd of July, 2002 when the case of the Appellant was finally dismissed, the matter was adjourned three times for the Counsel to produce the medical report of ill health of the Appellant and Counsel failed to produce the medical report. This was despite the threat by the Court in its ruling adjourning the matter on 22nd of April, 2002 to dismiss the case of the Appellant on the next adjourned date should Counsel fail to produce the medical report and the statement of the Court on the 22nd of May, 2002 that it was adjourning the matter for the last time at the instance of the Appellant. It is amazing that after the case of the Appellant was dismissed by the Court on the 22nd of July, 2002, the Appellant who was said to have been ill from March till July 2002, a period of five months, miraculously got well and attended the office of his Counsel on the 21st of August, 2002 to supply information which was deposed to in the affidavit in support of the motion to restore the case unto the cause list (see page 101 of the records). It is obvious Counsel to the Appellant did not bother to acquaint himself with the history of the proceedings in this matter. Perhaps if he had, Counsel would have seen from the sequence of events that the main aim of the Appellant in commencing this action was to play for time and that the Appellant never intended to prosecute the suit. These were the things that the learned trial Judge took into consideration in his ruling of 15th of October, 2002 in refusing to restore the case of the Appellant to the cause list.

In Banna Vs Telepower (Nig) Ltd (2006) 15 NWLR (Pt 1001) 198, Oguntade, JSC, in his lead judgment said at page 216 E-G thus:
“It is needful that it be stressed that a plaintiff who is not ready to pursue his suit with diligence upon which the court must insist has no business bringing such case to court. Counsel and parties alike must bear in mind that the time of the court is valuable and must be apportioned between the different cases requiring attention. It is the duty of the court to proceed with the hearing of the cases before it expeditiously. The courts in the land must exact from parties and counsel as much diligence in the prosecution of their cases as would enable the court consign the incidence of congestion in our courts to history.”
Elucidating further on the above statement, Tobi, JSC, in his contributory judgment in the same case stated at page 220 E-G:
“A plaintiff has not only a right to file an action in court to redress a wrong done him by a defendant; he also has a duty to prosecute the matter to conclusion within the rules of court. Of course, the duty is not mandatory, compulsory or sacrosanct, as he can decide not to prosecute. A plaintiff who files an action in court and exhibits some indolence or non-challance has himself to blame. After all, he brought the defendant to court and if he decides not to pursue the case diligently, the court has no option than to either strike out or dismiss the matter, depending on the enabling rules of court.”
These statements were quoted with approval by the Supreme Court in Nigerian Navy vs Labinjo (2012) 17 NWLR (Pt 1328) 56. In the light of these statements, this Court cannot fault the exercise of discretion by the learned trial Judge either in his ruling of 22nd of July, 2002 or that of 15th of October, 2002. No party to a case is entitled to hold the court to ransom at his or her own whims and caprices and a party who has the temerity to bluff at the opportunity given him to be heard by the court at the trial stage, without justification, would not be heard on appeal to seek redress on the subject matter of the bluff -Magna Maritime Services Ltd Vs Oteju (2005) 14 NWLR (Pt 945) 517, Nwakudu vs Ibeto (2011) 2 NWLR (Pt 1231) 209. The Appellant has not shown that the learned trial Judge exercised his discretion in either of the two rulings on a wrong principle or mistake of law, or under a misapprehension of the facts, or took into consideration irrelevant or extraneous matter, or that any injustice has been caused to the Appellant. This Court will not interfere in the exercise of discretion by the lower Court. The fourth issue for determination is resolved in favour of the third Respondent.

Issue V
This issue is – whether the learned trial Judge can properly in law suo motu grant general damages which was not claimed by the third Respondent in his counter-claim. Counsel to the Appellant stated in his brief of arguments that the third Respondent did not claim for general damages but only for rents plus interest and possession. Counsel submitted that case law was replete with authorities that a trial Court cannot grant a party a remedy not asked for and counsel cited many cases on the point. Counsel submitted that the award of N100,000.00 as damages by the lower Court was thus wrongful.

In his response arguments, Counsel to the third Respondent stated that it was manifest from the judgment that the award of general damages by the lower Court arose from the Appellant’s deprivation of the third Defendant the use of the property in dispute for ten years and was therefore consequential to the relief of possession sought and nothing more.

The claims of the third Respondent on his counterclaim were for the sum of N75,000.00 per annum as rents from the 31st of January, 1994 together with interest and for possession of the property in question. The third Respondent did not claim for general damages. It cannot be contested that a claim for a particular sum as rents is a claim in the nature of a claim for special damages. On the issue of award of general damages, the learned trial Judge stated in the judgment thus:
“In paragraph 16 of the counterclaimant’s statement of defence and counterclaim it was deposed as follows:
“The Defendant states that as a result of the refusal of the plaintiff to vacate the premises he presently pay (sic) N75,000 per annum as rent to a landlord on his present abode”.

It is not shown who the landlord is and where the property is situated or its nature to entitle the counterclaimant to the amount claimed. No receipt was tendered to show that this money is spent every year by the counterclaimant as rent. On such evidence there is no basis for finding the claim established.

But the counterclaimant has not claimed general damages. But general damages are those damages directly referable to the breach and for which the injured Party should be compensated as a matter of right.

The counterclaimant should be compensated for the injury he has suffered since 31st of January, 1994 when the plaintiff deprived him of the use of the house he bought then at the public auction. The counterclaimant is awarded N100,000 (One Hundred Thousand Naira) only as general damage.”

The question that arises is – having found that the third Respondent failed to prove his entitlement to the claim for rents, was the learned trial Judge right in going ahead to award general damages though it was not claimed by the third Respondent? The simple answer to this question is, No and it was provided by the Supreme Court in The Shell Petroleum Development Company of Nigeria Ltd Vs Tiebo VII & Ors (2005) 9 NWLR (Pt.931) 439. Tobi, JSC stated on the point at page 470 B-D thus:
“There is a world of difference between proof of special damages and proof of general damages, and courts of law must not mix up the adjectival or procedural requirements of the two claims. While proof of special damages is strict, proof of general damages does not require the strictness in proof of special damages.
The issue in this appeal is whether a court can award general damages in place of special damages. The answer is, ‘no’. Where a plaintiff is unable to prove special damages, his case crumbles and a trial Judge cannot compensate him by way of general damages. This is because he has not proved the special damages he claimed.”
The learned trial Judge in the instant case was thus in error when he awarded the sum of N100,000.00 to the third Respondent as general damages.

The fifth issue for determination is resolved in favour of the Appellant.

Issue VI
On this issue, i.e. whether the rulings and judgment of the court below can be supported by the weight of the admissible evidence, Counsel to the Appellant stated that the learned trial Judge failed to draw the proper inferences or conclusions in its two rulings and in the judgment, on appeal. Counsel stated that the learned trial Judge did not properly evaluate and accord proper probative value to some pieces of evidence presented in the defence to the counter-claim and in support of the application to restore the case of the Appellant to the cause list.

In his response arguments, Counsel to the third Respondent submitted that it was not open to the Appellant to fault the judgment of the Court on the grounds that same was not supported by the weight of evidence adduced when it was apparent that the Appellant never filed any pleading to deny the averment in the counterclaim of the third Respondent and that the testimonies of the Appellant and of its witness were not hinged on any pleadings.

This Court has already dealt with the complaint against the ruling of 15th October, 2002 and will ignore it in resolving this issue. This Court will only deal with the complaint against the judgment and in doing so, it is pertinent to correct another factual fallacy committed by the Counsel to the third Respondent in his submission; that the Appellant did not file a defence to counterclaim. In his closing submission before the lower Court, Counsel to the third Respondent referred to the defence to counterclaim filed by the Appellant. Counsel stated thus:
“What is before the court is the counter-claim. However, the plaintiff having referred to its statement of claim in its defence to counterclaim, its averment in statement of claim will have to be taken side by side in this matter.” (See paragraph 6 of page 202 of the records).

How then can the same Counsel ask this Court to discountenance the submission of Counsel to the Appellant on the ground that the Appellant did not file a defence to the counterclaim?

The complaint of the Appellant on this issue is that the lower Court did not properly evaluate the bank tellers evidencing payments made to the first Respondent by the Appellant and tendered by the Appellant at the trial.
Now, a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt 1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Lafia Local Government Vs The Executive Governor of Nasarawa State (2012) 17 NWLR (Pt 1328) 94.
It is the primary responsibility of a trial court to hear the parties, watch and observe the demeanour of witnesses called to testify, before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision. This is regulated by time honoured procedure designed to mete out justice to both parties before the court. The procedure is crucial in its observance. The trial court is enjoined to place the totality of the testimonies of both parties on an imaginary scale. One side of the scale will contain the evidence of the plaintiff while the other side will harbor the evidence of the defendant. The court must then weigh them together to see which side is heavier than the other. This is in terms of quality, not quantity. To help the court in this regard, it should consider whether the evidence led by a party in its totality is relevant, admissible, credible, conclusive and more probable than that adduced by the other party. Once these considerations fall into line, the court will then apply the relevant laws to the facts or evidence adduced, in order to reach a decision.

Looking through the judgment, the learned trial Judge said of the tellers of the Appellant thus:
“In his defence to the counterclaim the plaintiff claimed to have repaid the facility. He did not say when. But he tendered Exhibits 9, 10 and 11. He said further that as at 31st January, 1994 the day his property was mortgaged, he was not indebted to the bank. Under cross-examination, the plaintiff said Exhibit 11 was paid into a different account. It is therefore evident that it was not paid in partial settlement of the facility. Still under cross-examination, the plaintiff said he did not know if this money was paid into the account for which he was indebted. Yet he claimed still under cross-examination that Exhibits 9, 10 and 11 were tendered by him to give the impression that he had fully repaid the (loan) debt. It is clear from the foregoing that the plaintiff knew that the purported payments on Exhibits 9, 10 and 11 were not in partial payment of the debt not to talk of full payment of same. This is more so when the plaintiff under cross-examination said that one of the account numbers in Exhibit 9 is not the same with others and the two tellers on the front page are the same date and the same amount. Still under cross-examination the plaintiff claimed he had only one account in the bank. This also contradicts his earlier evidence under cross-examination that Exhibit 11 was paid into a different account.
The evidence of payment from the foregoing being unreliable should be rejected by the court. I am therefore unable to say that on the said evidence, the plaintiff had repaid the debt.” (see pages 231 to 232 of the records).

What more evaluation of the tellers is the Counsel looking for? It is clear that the learned trial Judge meticulously evaluated the tellers tendered by the Appellant and found the evidence led on them to be unreliable. The complaint of the Appellant under this issue for determination is completely baseless. The sixth issue for determination is resolved in favour of the third Respondent.

In conclusion this appeal succeeds in part. The judgment of the High Court of Kaduna State in Suit No KDH/KAD/546/93 delivered by Honorable Justice J Abiriyi on the 23rd of January, 2004 is affirmed save for the award of general damages of N100,000.00 made in favour of the third Respondent. The award of general damages is hereby set aside. The parties shall bear their respective costs of the appeal.
These shall be the orders of the Court.

ABDU ABOKI, J.C.A.: I have the privilege of reading before now the lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU JCA, which has just been delivered. I entirely agree with his conclusion that this appeal is meritorious and ought to be affirmed. I also affirmed the judgment of the High Court of Kaduna State in Suit No. KDH/KAD/ 546/93 delivered on 23rd of January, 2004 by J. S. Abiriyi J. I also set aside the award of general damages, I abide by the consequential orders contained therein.

ITA G. MBABA, J.C.A.: I have had the privilege of reading, in advance, the draft of the judgment just delivered by my learned brother, ABIRU JCA. My Lord has, in his usual manner, painstakingly, discussed and considered all the crucial issues and points raised in the appeal -from the preliminary objection to the main appeal, admirably and I agree, completely, with his reasoning and conclusions.

I think, the learned trial judges who heard the case at the lower court were all extremely patient with the Appellant at the different times they heard the case, particularly my Lord, ABIRIYI J. (as he then was) who finally heard the case (de novon) to conclusion. In the same way my learned brother, ABIRU JCA, has exercised extreme patience and demonstration of the knowledge of the law in the manner he considered all the issues raised in this appeal.

After the learned trial judge had granted Appellant’s ex-parte motion on 3/11/93 and imposed as interim injunction against the sale of the property by 1st and 2nd Respondents, pending the hearing and determination of the motion on notice, filed together with the writ of Summons on 1/11/1993, one would have expected the Appellant to take advantage of that window of grace to come to court on the next adjournment date – 19/1/1994 – to move the motion on notice, justify the interim injunction, and convert the same to interlocutory injunction, pending the hearing and determination of the Suit, which was, infact, a disagreement as to what should be the interest payable on a paltry loan of N20,000! Appellant, apparently, lavishing in the short-lived victory of the interim injunction, dermonstrated what was, his real motive for seeking the reprieve given by the interim order, stayed away from court, thus using the court to buy time and frustrate his creditors.

Even when the trial Court quickly discharged the interim injunction and struck out the motion on notice for injunction, on 19/1/1994, Appellant and his Counsel failed to see that the Court was not going to be a willing partner in their evil game, to use of the process of Court for gambling. However, Appellant still succeeded in keeping the case in and out of the trial court from 1993 to 2004, and enjoying the property and the benefits of the loan facility, without responsibility to the creditors, and still had the audacity to seek to invoke the Statute of Limitation to go free from the debt, while also enjoying the mortgaged property! They even sought the revertal right of same, without offering to pay the debt nor interest thereon (as if nothing happened!)

Appellant had employed every antic known to law to escape from his responsibility to the creditor, who was also vigilant to claim his due and did so in the exercise of its right of sale under the mortgage, conveying title to 3rd Respondent, Appellant can only have himself and the weired legal strategy he adopted (played a hide and sick game) to blame for losing the property to the Respondents.

It appears to me that the money expended by Appellant in the pursuit of the case and his appeal, would have been enough to settle the genuine claim, outstanding on the mortgage, had the Appellant committed himself to prompt determination of the case he filed to determine the actual legal interest payable on the loan facility.

The law would not allow the Appellant to freely enter into a contract, take advantage of it but escape his own responsibility to the contract, by resiling to fulfill his part of the bargain. In the case of AG RIVER STATE VS. AG AKWA IBOM STATE (2011) 8 NWLR (Pt. 1248) 31, the Supreme Court said:
“Where parties have entered into a contract or an agreement voluntarily and there is nothing to show same was obtained by fraud, mistake, deception, or misrepresentation they are bound by the provisions or terms of the contract or agreement. This is because a party cannot ordinarily resile from a contract or agreement just because he later found that the conditions of the contract or agreement are not favourable to him… Moreover, a Court of law must respect the sanctity of agreement reached by parties, where they are in consensus ad iden as regards the terms and conditions freely and voluntarily agreed upon by them und expressed in written form.” See also the unreported decision of this Court in the case of AGROVET SINCHO PHAM LTD AND ANOR VS. ESTATE OF ENGINEER DAHIRI (CA/K/205/2009) delivered on 8/02/2013 (page 23 – 24 thereof).

By up holding the Counter Claim of the 3rd Respondent in the suit at the Lower Court, the trial Court was simply living true to its responsibility of enforcing the mortgage agreement, which Appellant had with the 1st and 2nd Respondents, of which right of sale the said Respondents exercised and sold the property to the 3rd Respondent. I can therefore not fault the handing of the case by the trial Court.

For this and the more elaborate reasons in the well researched and articulate judgment of my learned brother, ABIRU JCA, I too dismiss the appeal, except the issue of general damages, and abide by the consequential orders, therein.

Appearances

Mr. A. U. Mustapha with A. O. AhmadFor Appellant

AND

No appearance for the first and second Respondents
Mr. Kabir Momoh with Nathan Dandien for the third RespondentFor Respondent