MR. OLORUNSOLA OLADEMO V. LAGOS BUILDING INVESTMENT CO. LTD (2010)

MR. OLORUNSOLA OLADEMO V. LAGOS BUILDING INVESTMENT CO. LTD

(2010)LCN/3750(CA)

In The Court of Appeal of Nigeria

On Thursday, the 29th day of April, 2010

CA/L/68/2008

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

MR. OLORUNSOLA OLADEMO Appellant(s)

AND

LAGOS BUILDING INVESTMENT CO. Respondent(s)

RATIO

WHETHER OR NOT FACTS ADMITTED NEEDS NO PROOF

Facts admitted need no proof.
In Jasha v Umar (2003) 13 NWLR (Pt.838) 465 at 482 paragraph H, this court per Ba’aba J.C.A held:-
‘It is elementary principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof’.
See Uwegba V Attorney General, Bendel State (1986) 1 NWLR (Pt. 16) 303, Edokpolo & Co. Ltd V Ohenhen (1994) 7 NWLR (Pt.358) 511, Ajuwon V Akanni (1993) 9 NWLR (Pt.316) 182. PER GALINJE, J.C.A.

THE BURDEN OF PROOF IN CIVIL CASES

WHETHER OR NOT THE COURT OF APPEAL TAKES JUDICIAL NOTICE OF, THAT INTEREST RATES ARE DEPENDENT ON THE POLICY OF THE CENTRAL BANK

However, it is a well known fact which this Court takes judicial notice of, that interest rates are dependent on the policy of the Central Bank. No interest rate is static and this is the more reason why the Respondent had a duty to prove concisely how it came by the interest chargeable on the loan it advanced to the Appellant.
In Kwajaffa v. Bank of the North (2004) 5 SC (pt. 1) 103 at 134, lines 34-42, the Supreme Court, per Pat-Acholonu J.S.C. said:-
“The matter is not made easy by their claiming that they agreed on the interest rate of 13% when there was no such clause in the Deed of Legal Mortgage and when it is a well-known fact which this Court takes judicial notice of that interest rates are dependent on the policy on the Central Bank. No interest rate is static. It is not immutable. It varies depending on the nature of Government policy which follows the state of the economy.” PER GALINJE, J.C.A.

Paul Adamu Galinje, J.C.A. (Delivering the Leading Judgment):This is an appeal against the decision of Dada J. of the Lagos State High Court which was delivered on the 25th day of October, 2006. By a specially endorsed writ of summons dated and filed on the 14th of October, 2003 and a statement of claim of even date, the Respondent who was the claimant at the lower court claimed the following reliefs:-
“1 The sum of N5,567,224.33 (Five Million, Five Hundred and Sixty-seven Thousand Two Hundred and Twenty-four Naira and Thirty-three Kobo Only), being outstanding balance as at 30th June, 2003 comprising both the principal and accrued interest of the Mortgage Loan granted to the Defendant.
2. Interest on the said sum at the rate of 21% per annum from 1st July, 2003 until final liquidation of the indebtedness.
3. A declaration that the Plaintiff is entitled to immediate possession and or right of sale of the property known and situate at No.11 Adewale Adedeji Street, Ilamose Estate, Ejigbo, Lagos State, shown on Survey Plan No.SJA/551/87/L and covered by Certificate of Occupancy registered as N0.36, at Page 36, Volume 1990 D at the Lands Registry, Alausa, Ikeja, Lagos State and for an order in that respect.”
In reaction to the Respondent’s claims, the Appellant as Respondent filed a statement of defence on the 6th April, 2004.
Issues having been joined the matter was set down for trial. The Respondent called one witness only, while the Appellant testified in person. Thereafter, parties written addresses were adopted. In a reserved and considered judgment, the lower court upheld the Respondent’s claims in the following words:-
“The claimant has proved with the help of the Defendant himself, the outstanding balance of N3,896,992. 67 as at 30th July, 2004. Judgment in this sum is accordingly hereby entered in favour of the claimant. Interest on the said judgment sum at 21% per annum from 30th August, 2004 till today is hereby also granted. The right of the claimant on the mortgaged property also accrues on the commission of the breach of the fundamental term of the agreement. Claimant’s prayer on this relief also succeeds. This is however subject to the Defendant paying the judgment sum hereby ordered to be recovered within 90 days where upon the claimant shall deliver up the certificate of occupancy in its possession to the Defendant forthwith.
It is against this judgment that the Appellant has brought this appeal. His notice of appeal dated 30th October, 2006 contains three grounds of appeal which I reproduce hereunder without their particulars:-
‘(1) The learned trial Judge erred in law in deciding that the Respondent proved the rate of interest used in calculating the debit balance of the Appellant.
(2) The learned trial Judge erred in law and misdirected herself when she held that the Respondent charged compound interest in order to arrive at the amount claimed.
(3) The learned trial Judge erred in law when she held that the mere deposit of a certificate of occupancy by the Appellant entitled the Respondent to the immediate possession of the Appellant’s property situate at 11, Adewale Adedeji Street Ilamose Estate, Ejigbo, Lagos State when the mortgage term was fifteen (15) years’.
Parties filed and exchanged briefs of argument. Appellant formulated three issues for the determination of this appeal. These issues are reproduced hereunder as follows:-
“1. Whether the learned trial Judge was right in holding that the Respondent has proved with the help of the Appellant himself, the outstanding balance of N3,896,992.67 as at 30th July, 2004.
2. Whether the learned Trial Judge was right in holding that the Respondent charged compound interest to arrive at the amount claimed without any evidence to that effect from the Respondent.
3. Whether the learned Trial Judge was right in holding that the Respondent was entitled to the immediate possession of the Appellant’s property before the expiration of the mortgage term of fifteen years when the contract document between the parties placed before the court did not envisage such a situation. ”
Two issues are formulated for the Respondent and they read as follows:-
“1. Whether the Appellant is indebted to the Respondent on the Mortgage Loan and what is the quantum in terms of principal amount and the interest.
2. Whether the Respondent is entitled to immediate possession of the Appellant’s property pledged as security for the mortgage loan.”
Before I consider the submissions of learned counsel on their respective issues, I wish to set out briefly the facts relevant to this appeal. On or about the 12th February 1996, the Appellant applied to the Respondent for a mortgage loan of N1,500,000.00 (One Million Five Hundred Thousand Naira) to enable him complete his building at Adewale Adedeji Street, Ejigbo, Lagos State. As part of the terms and conditions for granting the loan, Appellant pledged as security for the loan, his property at No. 11 Adewale Adedeji Street and registered as No.36/36/1990D at the Lands Registry, Ikeja, Lagos State. By internal memo dated the 25th of April, 1996, the Respondent approved the loan of application. The application form which contains the terms of the  Agreement between the parties stipulates that the loan was to be repayable over a period of 15 (fifteen) years at N27,459.18 per months until the final liquidation of the indebtedness. The Appellant defaulted in payment of the monthly installment on the reason that the property that was to be developed with the loan had not been completed as such the rent from the property which would have been used for the payment of the loan was not available. After repeated demands for repayment of the loan by the Respondent failed, the latter instituted this action at the lower court.
The issues formulated by the Appellant’s counsel for the determination of this appeal are much more comprehensive than those issues formulated for the Respondent. I will therefore adopt the three issues as formulated by the Appellant in determining this appeal.
Mr. Kingsley Essien, learned counsel for the Appellant, who settled the Appellant’s brief of argument, submitted on issue one that the learned trial Judge was wrong to have held that the Respondent had with the help of the Appellant proved that the outstanding balance due to the Respondent as at the 30th of July, 2004 was N3,896,992.67 counsel submitted that the passbook contained entries made by the Respondent which were challenged by the Appellant who demanded a conclusion is the Appellant’s passbook. In a further argument, learned comprehensive statement of account to enable him reconciles his account through exhibit ‘D4’. According to the learned counsel, the Respondent failed to adduce evidence in support of the amount claimed to have been due as at 30th of June, 2003 or the rate of interest used in arriving at the said amount as the statement of account which was pleaded was tendered and rejected. Learned counsel therefore contended that pleadings are mere averments and it required evidence on the part of the claimant to prove the facts pleaded or else those facts will be deemed abandoned. In aid, learned counsel cited Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182 at 200 paragraphs F-G; UBN Ltd v. Sepok Ltd (1998) 12 NWLR (Pt. 578) 439 at 541.
Finally on this issue, learned counsel argued that the Respondent cannot increase the interest rate over and above the rate agreed by the parties when the loan was secured without communicating its intention to do so to the Appellant. On this the authority in UNB v. Ozigi (1991).1 NWLR (Pt. 176) 667 at 697 paragraph E, 697 to 698 paragraphs H-B was cited.
On this issue, Mr. Gbade Akinwunmi, learned counsel for the Respondent, who settled the Respondent’s brief of argument submitted that the learned trial Judge is perfectly right in holding that the Respondent has proved with the help of the Appellant the outstanding balance of N3,896,992.67 as at 30th July, 2004. According to the learned counsel, the Respondent’s averment at paragraph 5 of the statement of claim dated 14th October, 2003 that the principal sum of N1,500,000.00 has continued to attract interest at the rate of 21% per annum was affirmatively admitted by the Appellant in his testimony at page 126, paragraph 5.2 of the record and that same is contained in the application for Mortgage Loan Form executed by parties and Internal Memorandum in which the loan was approved. The Appellant therefore has not denied the loan. In a further argument, learned counsel submitted that the Respondent is entitled to charge interest on any loan advanced by it and that in the event of a claim of interest, to succeed, such interest must have been claimed in the writ and the statement of claim and evidence must be led in support of the claim.
Learned counsel says that this is precisely what the Respondent has done in the instant case as reflected in paragraphs 5 and 8 (2) of the statement of claim and that exhibit 3 confirms that there was indeed an agreement to pay interest on the loan facility granted to the Appellant. In support, Learned counsel cited the following authorities:-
(i) Internal Trust Bank Plc v Kauta Hairu Co. Ltd (2006) All FWLR (Pt,292) 116 at 124-124 paragraphs G-A, C & G.
(ii) MECL Ltd v Agility & Brothers Enterprises Ltd (2006) All FWLR (Pt. 298) 1289 ratio 1 & 2.
(iii) Hassom Nig. Ltd V Trade Bank Ltd (2006) All FWLR (Pt. 310) 1730 ratio 1.
Now, it is common ground between the parties that the Respondent is a company licenced to carry on the business of Mortgage Banking in Nigeria and that the Appellant is an employee of Union Bank of Nigeria Plc. It is equally common ground between the parties that the Appellant being a customer to the Respondent entered into an agreement with the Respondent in which he pledged his property situate at No. 11 Adewale Adedeji Street, lIamose Estate, Ejigbo Lagos for a mortgage loan of N1,500,000.00,which loan was approved and released to the Appellant. (See paragraphs 1, 2, 3 and 4 of the statement of claim, and paragraph 1 and 2 of the statement of defence) since the parties have mutually agreed to the fact stated hereinabove, there is therefore no need to call evidence to prove them. Facts admitted need no proof.
In Jasha v Umar (2003) 13 NWLR (Pt.838) 465 at 482 paragraph H, this court per Ba’aba J.C.A held:-
‘It is elementary principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof’.
See Uwegba V Attorney General, Bendel State (1986) 1 NWLR (Pt. 16) 303, Edokpolo & Co. Ltd V Ohenhen (1994) 7 NWLR (Pt.358) 511, Ajuwon V Akanni (1993) 9 NWLR (Pt.316) 182. The Appellant denied part of the averment contained at paragraph 5 and totally denied paragraph 6 of the statement of claim. These two paragraphs are hereunder reproduced for easy of reference thus:-
“5. sequel to paragraph 3 above, the plaintiff disbursed to the Defendant the sum of N1,500,00.00  (One million and five hundred thousand Naira Only). As at 30th June, 2003, the sum of N5,567,224.33 (Five million five hundred and sixty seven thousand, two hundred and twenty-four Naira, thirty-three kobo Only) was outstanding against the Defendant’s Account with the Plaintiff, being the unpaid principal and accrued interest thereon, and same has continued to attract interest at the rate of 21% per annum therefrom.
Defendants statement of Account reflecting this position will be tendered and relied upon at the trial of this suit.
6. Inspite of repeated demands by the Plaintiff, the Defendant has failed, refused and or neglected to settle his indebtedness to the Plaintiff. Plaintiff will rely on their various letter of demand”,  The Appellant’s denial of the averment hereinabove reproduced is contained at paragraphs 2, 3 and 4 of the statement of defence and so produce them hereunder as follows:-
“2. In reply to paragraph 5 of the statement of claim, the defendant admits the portion that states that the sum of N1,500,000.00 was disbursed to him as a mortgage loan, but seriously denies that the amount outstanding in the account as at 30th of June, 2003 was N5,567,224.33 and puts the Plaintiff to the strictest proof thereof.
3. In further reply to paragraph 5 of the statement of claim, the defendant denies the purported interest and puts the plaintiff to the strictest proof.
4. In reply to paragraph 6 of the statement of claim, the defendant denies the allegation contained in the said paragraph and states as follows:
(1) That by letter dated 12th February ,1996  the defendant applied for a mortgage loan of 1.5 million repayable over fifteen (15) years.
(2) Repayment of the loan was to be from the proceeds of rent accruing from the property.
(3) Due to staggered disbursement of the loan by the plaintiff in three instalments, the amount borrowed could not complete the property.
(4) Rather than release the loan in one instalment to facilitate bulk purchase of materials, the plaintiff released the sum of N800,000.00 on the 27th of June, 1996, N350,000 on the 4th of September 1996 and the third instalment on the 20th January, 1997”.
It is trite that any averment denied must be proved and in doing so, parties are bound by their pleadings.

It is also settled that the burden is on that party, whether plaintiff or defendant who substantially asserts the affirmative of the issue. Indeed, subject to the scale of evidence preponderating, the burden of proof rests on that party who would fail if no evidence at all, or no further evidence, as the case may be, were given on either side. Civil cases are decided on a balance of probabilities, based on preponderance of evidence. See Lewis & Peat (N.R.L) Ltd V Akhimien (1996) 1 All NLR (Pt.1) 460.
In this case the bond of contention is the rate of interest chargeable on the facility that was granted to the Appellant and whether he had defaulted. It is therefore the responsibility of the Respondent to prove the rate of interest chargeable on the loan and the balance outstanding against the Appellant.
The usual way of proving a debt is by putting in the statement of account or secondary evidence where it is admissible. See Olorunfemi V N.E.B Ltd (2003) 5 NWLR (Pt.812) 1 at 24-25 paragraphs H-A. The only witness for the Respondent in his evidence put the total indebtedness of the Appellant to the Respondent at N5,567,224.33 as at 30th of June, 2003. This figure is made up of the principal and the interest. This evidence supports the Respondent’s claim at the lower court.
Although, the Appellant did not disclose how much of the loan that was outstanding against him as at 30th of June, 2003, in his written statement, under cross-examination he made statement, under cross examination he made the following admission thus:-
“As at the time of the institution of his (sic) action, June 2003, the balance was N4,026,992.67 as at 30th May, 2003. The entries in the passbook were made by the Bank and I duly protested it and
“As at the time of the institution thus:-
“As at the time of the institution of his (sic) action, June 2003, the balance was N4,026,992.67 as at 30th May, 2003. The entries in the passbook were made by the Bank and I duly protested it and Respondent at Nos, 567,224.33 as at 30th of June 2003. The entries in the passbook were made by the Bank and I duly protested it and wrote a letter for a comprehensive statement. I protested I can produce the evidence.”
By a letter dated 20th January, 2004, the appellant requested for a comprehensive statement of account from the Respondent to enable him reconcile his account in the Respondent’s books. The statement of account requested was between 1st June, 1996 to 31st December, 2003. However in the judgment of the lower court, the learned trial Judge held as follow:-
“Claimant has urged the count to grant judgment on the outstanding in Exhibit ‘D8’ which stood at N4,096,992.67 as at 30th May, 2003. Defendant admitted that the entries in the said exhibit were correct though he claimed they were all made by the bank to which he wrote a letter for a comprehensive statement of account. One wonders what other statement of account is needed when the Defendant had exhibit ‘D8’ which was being regularly up-dated by the claimant on the Defendant’s presentation. I hold that Exhibit ‘D8’ suffices as statement of the true state of affairs between the parties”.
It is on the above reason the learned trial Judge entered judgment for the Respondent for N3,896,992.67 being the balance outstanding against the Appellant as at 30th July 2004 as reflected in the last entry in exhibit ‘D8’.
From the evidence available before the lower court, I have failed to see where the Appellant unequivocally admitted that the entry in exhibit 08 is correct. It is because the appellant did not agree with the figures therein, which he said were entered by the bank, he wrote to the respondent demanding for a comprehensive statement of account.
The learned trial judge was therefore wrong to have entered judgment on a document which was subject of dispute between the parties. Not only that, the Respondent pleaded a figure of N5,567,224.33 standing against the Appellant as at 30th of June, 2003 the Appellant under cross examination gave a figure of N4,026,992.67 as the amount standing against him as at 30th of June, 2003 an amount which he disagrees. Exhibit ‘D8’ contained a separate amount of N3,896,992.67 which is also subject of dispute. Because of these discrepancies, the Respondent had a duty to lead evidence in prove of the actual amount standing against the Appellant.
In Olorunfemi v. N. E. B. Ltd (Supra) at page 24 paragraph E-G, Musdapher J.C.A, as he then was, said: –
“In any event, there is no statement of account, the only evidence which one might say credible is the all (sic) contained in exhibit ‘9’ which put the total indebtedness and interest as at 31/7/1993 at the sum of N724,828 and the evidence of PW1 that as at the end of the year 1993, what was outstanding was N463,725.86. Clearly, there is doubt and confusion as to how much the respondent was owing Alpha as at the time of filing the writ.”
In the instant case, the Respondent attempted to tender in evidence the Appellant’s statement of account which was rejected. There was no further step taken by the Respondent to reconcile the various figures given as the outstanding debt against the Appellant. I am therefore of the firm view that there was no basis for the judgment of the lower Court.
Although the Respondent pleaded in the statement of claim that the agreed interest between the parties is 21% of the principal sum, the Deed of Legal Mortgage contains no such figure. However, it is a well known fact which this Court takes judicial notice of, that interest rates are dependent on the policy of the Central Bank. No interest rate is static and this is the more reason why the Respondent had a duty to prove concisely how it came by the interest chargeable on the loan it advanced to the Appellant.
In Kwajaffa v. Bank of the North (2004) 5 SC (pt. 1) 103 at 134, lines 34-42, the Supreme Court, per Pat-Acholonu J.S.C. said:-
“The matter is not made easy by their claiming that they agreed on the interest rate of 13% when there was no such clause in the Deed of Legal Mortgage and when it is a well-known fact which this Court takes judicial notice of that interest rates are dependent on the policy on the Central Bank. No interest rate is static. It is not immutable. It varies depending on the nature of Government policy which follows the state of the economy.”
While this Court recognizes the right of money lenders and banking institutions to recover their accumulated interest charges as part of the debt due to them by debtor customers, such interest rates must be publicly displayed to their customers and when the need arise, must be proved strictly. See Nigerian Merchant Bank Plc v. Aiyedun NWLR (Pt.176) 677.
In F.B.N. Plc v. Uwada (2003) 2 NWLR (Pt. 805) 485, where the Appellant contended that it had a right under a written agreement to charge interest on the overdraft, but failed to produce in evidence the instrument which it claimed evidenced the transaction, and the rates chargeable within the period, this Court, per Oduyemi J.C.A. held: –
“S.15 of the Banking Act which came into operation on 7th February, 1969 mandates all licensed Banks to charge as the rate of interest on advances, loans, credit facilities or paid on deposits only rates linked to minimum rediscount rate of the central Bank subject to stated minimum and maximum rates of interest which were approved shall be the same for all banks subject to the proviso in sub-section (i) –
This is what is commonly called the Central Bank Guidelines… It is clear that not only had the appellant failed to show that it had a right to charge the interest which it charged on the overdraft; it is obvious that whatever rate was being charged by the Appellant on the overdraft has not been linked to the Central Bank guidelines rate of interest as required by law. The charge of interest was therefore unlawful”.
In the instant case not only was the interest of 21% reflected on the Deed of Legal Mortgage there was totally no evidence that the interest was in accordance with the Central Bank Guidelines, therefore find that the Respondent failed to prove the interest rate plus the principal sum outstanding against the Appellant as at the 30th June, 2003.
For the reasons I have advanced on this issue, same is resolved in favour of the Appellant. The ground upon which this issue is distilled is hereby allowed.
On issue two, Kingsley Essien of counsel to the Respondent submitted that the learned trial Judge descended into the arena of contest and made a case for the Respondent when he held that it is common practice that banks are entitled to charge compound interest. According to the learned counsel, the issue of compound interest was neither pleaded nor given in evidence by the Respondent. It is the submission of learned counsel that in civil cases, the Courts do not make cases for parties. In aid learned counsel cited UTC v. Nwokoruku (1993) 3 NWLR (Pt. 281) 295 at 308 paragraph E; Ajayi v. Texaco Nigerian Limited & Ors (1987) 3 NWLR (Pt. 62) 577. Babale v. Abdukadir (1993) 3 NWLR (Pt. 281) 253 and UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385 at 402 paragraph D.
In the judgment of the trial Court at page 146 paragraph 2 lines 10-14 of the record, the trial Judge held: –
“The calculation of counsel for the Defendant on the interest element is a simple interest one. It is however common practice that even where there is no express agreement, the Bank is entitled to charge compound interest on the basis that there is a custom to that effect or that the customer has impliedly consented where without protest, he allows his account to be debited.”
There is no evidence linking the interest of 21% charged to the Central Bank Guidelines. It is only when evidence is given that interest is charged according to the Central Bank Guidelines, then notice will be taken about its own static nature and whether such interest is compound interest. I therefore agree with the learned counsel for the Appellant that none of the parties gave evidence that the Respondent charged compound interest, as such the lower Court embarked on a voyage of discovery and this is not permissible in law. The law is very well settled that a Court does not make for a party a case which a party has not made for himself. The learned trial Judge had clearly descended into the arena of contest and the dust raised there from did becloud her vision and this has resulted to a miscarriage of justice. This issue is therefore resolved in favour of the appellant and the ground from which it is formulated is accordingly allowed.
The 3rd issue is whether the learned trial Judge was right in holding that the Respondent is entitled to the immediate possession of the Appellant’s property before the expiration of the mortgage term of fifteen years when the contract document between the parties placed before the Court did not envisage such a situation.
On this issue, Kingsley Essien, learned counsel for the Appellant argued that for the Respondent to be entitled to such a relief there must have been an express agreement to that effect between the parties. According to the learned counsel, the Respondent did not place any document before the Court to prove that parties ever agreed
that before the expiration of the mortgage period, the Respondent would take possession of the Appellant’s property even if he defaulted in monthly payments.

In reply, Mr. Gbade Akinwumi, learned counsel for the Respondent submitted that the security over the loan granted by the Respondent to the Appellant is the Mortgage over the property known and situate at No. 11 Adewale Adedeji Street, Ejigbo, Lagos State. In a further argument, learned counsel submitted that the Appellant committed a fundamental breach of the agreement between the parties when he defaulted in strict adherence to the monthly installmental payments of the mortgage loan at the rate of N27,459.18 per month. Learned counsel contended that the breach of the agreement between the parties entitled the Respondent to the immediate possession of the Appellant’s property. In aid learned counsel cited Bank of the North v. Gana (2006) All FWLR (Pt. 296) 862; Onadeko v. U.B.N. Plc (2006) All FWLR (Pt. 301) 1872 at 889 paragraph C.
The Deed of Legal Mortgage which was executed by parties herein stipulates conditions governing the loan that was advanced to the Appellant. At paragraph 9, the following conditions are set out as follows: –
“PROVIDED ALWAYS and it is hereby declared that the power of sale hereby conferred shall not be exercised unless and until one of the following events shall have happened viz:
“(a) Notice requiring the payment of the principal sum payable hereunder or par thereof has been served on the Borrower and default has been made in payment for the sum demanded after such service; or
(b) Some interest under these presences is in arrears and unpaid for one calendar month after becoming due; or
(c) There has been a breach of some provision contained in these presence and on the part of the Borrower to be observed and performed other than and besides the covenant for payment of the said principal sum and interest.
This Deed of Legal Mortgage executed by the Appellant in favour of the claimant was listed as additional copy of document to be relied upon at the trial by the Respondent, yet it was not tendered in evidence, simply because the Appellant had indicated during the pretrial conference that he would raise objection to its admission. Clearly as it is, there is nothing in support of the trial Courts decision that the Respondent is entitled to the immediate possession of the Appellant’s property before the expiration of the mortgage term, even though the Appellant admitted in his evidence at page 109 of the record that he had defaulted in the payment of N27,459.18 monthly instalment.
The Appellant at page 6 paragraph 414 also suggested that the amount standing against him as at October 30th, 2003 would have been N2,416,407.84 if the agreed interest of 21% had been employed in the calculation of his indebtedness.
The failure of the Respondent to tender the Deed of Legal Mortgage in evidence is fatal to its case, as that document is the contract executed by the parties.
The documents tendered by the Respondent at the trial are: –
1. Defendants Application letter dated 12/2/86
2. Copy of the Certificate of Occupancy No. 36/36/1990.
3. Completed application form for mortgage loan and internal memorandum of approval.
4. Claimant’s final demand letter dated 28th July, 2003.
These documents were marked exhibits 1, 2, 3 and 4. None of the exhibits is an agreement duly executed by the parties. In a transaction such as the one in dispute in the instant case, parties are normally judged by the terms and conditions of the contract which they enter into. Mr. Kingsley Essien referred to exhibit 3, which is application for mortgage loan as an agreement between the parties. I do not think so. An application for loan is not the same as agreement between the parties. An application can be refused by the party to which it is made to without reference to the Applicant, while the terms and conditions of an agreement are binding on both parties, a breach by one party can give rise to sanction by the other party. In Alhaji M.U. & Sons Ltd v. L.B.N. Plc, (2006) 2 NWLR (Pt. 964) 288 at 297-298 paragraph G-A had this to say: –
“In modern banking, transactions are strictly documented and terms of the transactions are explicitly stated. With regard to grant of overdraft facility, there must be a letter of offer stating the terms of the facility granted i.e interest rate, the duration of payment and the security for payment and there must be acceptance by the applicant by the applicant accepting the terms as contained in the offer. In the instant appeal, nothing has been placed before the lower Court to show that the appellants have accepted the offer of overdraft facility of N100,000.00 from the respondent.”
In the instant appeal, Exhibit ‘3’ are the completed application form and the internal memorandum of approval which stated thus: –
“(1) N1,500,000.00 mortgage loan approved.
(2) N27,459. 18 monthly repayment approved.
(3) Interest at 21%.
(4) Repayment with immediate effect.
(5) Write letter of loan approval.
(6) Issue mortgage passbook.
(7) Write allottee on perpetuity of Insurance and Estate Supervision fee.”
This document does not constitute a contract between the parties which conveys conditions for payment and in event of failure to pay or where there is default in installmental payment, what will follow. In the absence of any agreement by the parties that the Respondent is entitled to immediate possession before the expiration of the tenure of the loan so advanced to the Appellant, I am of the firm view that the lower Court was wrong in making the order for immediate possession of the Appellant’s property by the Respondent and so I hold. For the reasons I have set out herein, I also resolve this issue in favour of the Appellant.
Having resolved all the three issues in favour of the Appellant, this appeal shall be and it is hereby allowed. The judgment of the lower Court is hereby set aside and quashed. In its place, the Respondent’s action at the lower Court is hereby dismissed.
The Appellant is entitled to cost of this appeal, which I assess at N30, 000.00.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had critically, albeit I was privileged to have read, before now, the lead judgment in draft just delivered by my learned brother, Galinje, J.C.A., dispassionately, appraised the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the records of appeal, as a whole.
Having concurred with the reasoning and conclusion reached ill the lead judgment, I have no hesitation whatsoever in adopting them as mine. The appeal is accordingly hereby allowed by me. The judgment of the lower court, dated 25/10/06, is hereby set aside. The suit is dismissed. I abide by the consequential order of cost of N30,000.00 awarded in favour of the Appellant.

REGINA OBIAGELI NWODO, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother, Galinje J.C.A. My lord has dealt extensively with the Issues formulated for determination in this appeal.
I adopt the reasonings therein and hold that there is merit in this appeal. Appeal succeeds and I abide by the consequential Orders therein inclusive of order as to cost.

Appearances

Mr. Kingsley EssienFor Appellant

AND

Mr. Gbade AkinwumiFor Respondent