MRS. VERONICA OLOJEDE & ANOR V. MR. ADEOLA A.B. OLALEYE & ANOR (2012)

MRS. VERONICA OLOJEDE & ANOR V. MR. ADEOLA A.B. OLALEYE & ANOR

(2012)LCN/5541(CA)

In The Court of Appeal of Nigeria

On Thursday, the 5th day of July, 2012

CA/AE/19/2010

RATIO

TENANCY: CATEGORIES OF TENANCY

In resolving this issue, I wish to state that there are various categories of tenancy under our laws and they include:

(1) Contractual tenancy

(2) Statutory tenancy

(3) Tenancy at sufferance;

Contractual tenancy is the usual or common one that involves agreement between the landlord and tenant written or oral on the terms and conditions of the tenancy. A statutory tenancy is a creation of statute for the benefit of the tenant and does not depend on the will or acceptance of the landlord or on the existence of a contractual tenancy.

Tenancy at sufferance results from initial lawful occupation or possession either by contractual tenancy or license given by the owner or person entitled to the right of occupancy of premises and owners when the tenancy or license expires and the tenant or licensee holds over possession.

See: FARAJOYE v. HASSAN (2006) 16 NWLR (PT. 1006) PG. 487 PARAS A-D; PAN ASIAN – AFRICAN CO-LTD. NATIONAL INSURANCE CO (1992) FNR 360- (1982) 9 S.C. AFRICAN PETROLEUM V. OWODUNNI (1991) 1 NWLR (PT. 210) 391 ODUYE V. NIG. AIRWAYS (1987) 2 NWLR (PT. 55) 126. EZENWA v. OKO (1999) 14 NWLR (PT. 637) 95. PER SOTONYE DENTON-WEST, J.C.A

WORDS AND PHRASES: MEANING OF A TENANT

This Court and even the Supreme Court have defined and explained the meaning of a tenant in a number of cases to mean any person occupying any accommodation on payment of rent and includes a sub-tenant. See: ELOICHIN NIG LTD V. MBADIWE (1986) 1 NWLR (PT.14), (1986) 1 S.C 99, MARTHA UDUSEGBE V. JULIUS TUGBA (2010) LPELR- CA/B/80/1998. The Supreme Court in the case of ODUYE V. NIG AIRWAYS LTD (1987) NWLR (PT. 55, (1987) 4 S.C 202 held thus:

“Tenant includes a sub-tenant or any person occupying any premises whether on payment of rent or otherwise but does not include a person occupying premises under a bonafide claim to be the owner of the premises” PER SOTONYE DENTON-WEST, J.C.A

EVIDENCE: WHETHER A SUMMONED WITNESS IS PROHIBITED FROM TENDERING DOCUMENTS NOT PLEADED

It is my firm view that when a witness is summoned by an order of a court to appear and give evidence in a suit, such a witness is not prohibited from tendering relevant documents provided that such documents although may not have been pleaded but facts in respect of the documents must have been pleaded.

See: ALHAJI BABATUNDE THANNI & ANOR V. SEBALEMOTU SAIBU & ORS (1977) 2 SC 89 at 114; UAC LTD V. SAKA OWOADE, 13 WACA 207; IPINLAIYE V. OLUTOKUN (1996) 6 SCNJ 74 at 87.

Furthermore, in cross-examination, it is proper to receive a document in evidence even though not covered by pleadings in order to contradict witness. See: IPINLAIYE V OLUTOKUN (SUPRA) SECTIONS 199 209 & 210 EVIDENCE ACT. PER SOTONYE DENTON-WEST, J.C.A

EVIDENCE: EFFECT OF FAILURE OF A PARTY TO OBJECT TO AN INADMISSIBLE EVIDENCE

I wish to state it categorically clear that it is incumbent and it is a duty imposed on a party/his counsel to object immediately where and when inadmissible evidence is produced in evidence. Where such other party or opponent fails or neglects to object to its admissibility at the trial, he cannot thereafter object to its admissibility. Moreover, where the evidence complained of is admissible under certain conditions and the opposing party fails to object or by implication consented to its admissibility or the evidence was properly used for the purpose of cross-examination, notwithstanding that the condition precedent for its admissibility is not complied with, he cannot be heard to raise objection to its admissibility on appeal, See: AKUNNE V. EKWUNO (1952) 14 WACA 59; OLUKADE V. ALADE (1976) ALL NLR 56 at 61-62; ETIM V. EKPE (1983) 3 SC 12 at 36-37; AGAGU V. MIMIKO (2009) ALL FWLR (PT.462) 1122 at 1170 -1171 PARAS D-B. PER SOTONYE DENTON-WEST, J.C.A

JUDGMENT: NATURE OF A DECLARATORY JUDGMENT

The power to make binding declarations of right is discretionary and wide, so it is to be liberally exercised and exercised judicially and judiciously depending on the fact and circumstances of each case. See: ODUOYE V. LAWAL (SUPRA) at 464. PARAS A-G: IBENEWEKA V. EGBUNAM (1964) l WLR 219; ELEONU V. EKWOABA (1998) 12 NWLR (PT.578) 320; FASANYA V. ADEKOYA (2000) 15 NWLR (Pt.689) 22. PER SOTONYE DENTON-WEST, J.C.A

EVIDENCE: REQUIREMENT FOR SUCCESS OF A PLAINTIFF’S CASE

It is now a celebrated legal principle that a plaintiff or a claimant must succeed on the strength of his evidence and not on the weakness of the defendant. However, apart from the proof of his case, it is permissible for him to adopt the evidence of the defendant which supports his case. PER SOTONYE DENTON-WEST, J.C.A

APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH FINDINGS OF THE TRIAL COURT

JUSTICES

SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

Between

1. MRS. VERONICA OLOJEDE
2. MRS. OLAYINKA OIAYIWOLA Appellant(s)

AND

1. MR. ADEOLA A.B. OLALEYE
2. UNITED BANK FOR AFRICA Respondent(s)

SOTONYE DENTON-WEST, J.C.A (Delivering the Leading Judgment): The Appellants being the defendants at the trial lower court were sued by the plaintiffs herein, whilst the Respondents claiming some declaratory reliefs via their amended statement of claim; thus:
(i) A declaration that the 1st plaintiff is entitled to quiet and peaceable occupancy in respect of the property situate, lying and being at Olojede close, Off Ikere Road, Ado-Ekiti mortgaged to the 2nd plaintiff vide a legal mortgage registered as No. 30 at page 30 in volume 327 at the Lands Registry, Akure covered by a Certificate of Occupancy registered as No. 55 page 55, in volume 250 of the Lands Registry Office, Akure, which was assigned to the plaintiff by a Deed of Assignment, dated 3rd November, 2000 and registered on 20th November, 2000 as No.32 at page 32 in volume 1 at Lands Registry Office, at Ado-Ekiti.
(ii) A declaration that the purchase or transfer of the property situate, lying and being at Olojede Close, Off Ikere Road, Ado-Ekiti mortgaged to 2nd plaintiff Plc, vide a legal mortgage registered as No. 30 at page 30 in volume 327 at the Lands Registry, Akure covered by a Certificate of Occupancy, Registered as No. 55 at page 55 in volume 250 of the Land Registry Office, Akure and assigned by a Deed of Assignment dated 3rd November, 2000 and registered on 20th November, 2000 as No. 32 at page 32 in volume 1 at Lands Registry Office at Ado-Ekiti to the 1st plaintiff was lawful valid, regular.
(iii) A declaration that the defendants no longer have any proprietary, legal right or any interest over the property situate, lying and being at Olojede Close, Off Ikere Road, Ado-Ekiti mortgaged to the 2nd plaintiff Plc, vide a legal mortgage registered as No. 30, Page 30 in volume 250 of the Lands Registry Office, Akure and covered by a Deed of Assignment dated 3rd November, 2000 and registered on 20th November, 2000 as No. 32 page 32 in volume 1 at Lands Registry Office at Ado-Ekiti. The 1st defendant’s husband having failed to redeem it before it was lawfully transferred to the 1st plaintiff.
(iv) The 1st plaintiff claims possession of the property situate, lying and being at Olojede Close, Off Ikere Road, Ado-Ekiti mortgaged to 2nd plaintiff vide a legal mortgage registered as No.30 at page 30 in volume 327 at the Lands Registry, Akure covered by a Certificate of Occupancy registered as No.55 at page 55 in volume 250 of the Lands Registry Office, Akure and covered by a Deed of Assignment dated 3rd November, 2000 as No. 32 at page 32 in volume 1 at Lands Registry Office at Ado-Ekiti being the rightful owner to the exclusion of the defendant, her privies, agents or any other person whatsoever claiming title or possession through the defendants.
(v) The sum of N518, 000,00 (Five Hundred and Eighteen Thousand Naira) as special damages as follows:
i) N468, 000.00 (Four Hundred and Sixty-Eight Thousand Naira) as arrears of rent from the building/property situate, lying and being at Olojede Close, off Ikere Road, Ado-Ekiti mortgaged to 2nd plaintiff Plc, vide a legal mortgage registered as No.30 at page 30 in volume 327 at the Lands Registry, Akure and formerly covered by a Certificate of Occupancy registered as No. 55 at page 55 in volume 250 of the Lands Registry Office, Akure, and now covered by a Deed of Assignment dated 3rd November, 2000 as No.32 at page 32 in volume 1 at Lands Registry Office at Ado-Ekiti from October, 2000 to November, 2003.
ii) N50,000.00 (Fifty Thousand Naira) as cost of prosecuting Suit No:ADRT.137/2001.
iii) N6, 000.00 (Six Thousand Naira) per month as mesne profit for the 3 bedroom and N3, 000.00 (Three Thousand Naira) each for each of the two boys quarters in respect of property/building described in paragraph 24(5)(i) above from November, 2003 till possession is given up to the plaintiff.
The sum of N2, 000,000,00 (Two Million Naira) as general damages suffered by the plaintiff as a result of the refusal of the defendants to yield up possession of the building property situate, lying and being at Olojede Close, off Ikere Road, Ado-Ekiti, mortgaged to 2nd plaintiff, vide a legal mortgage registered as No. 30 at page 30 in volume 327 at the Lands Registry, Akure and formerly covered by a Certificate of Occupancy registered as No.55 at page 55 in volume 250 of the Lands Registry Office, Akure and now covered by a Deed of Assignment dated 3rd November, 2000 as No. 32 at page 32 in volume 1 at Lands Registry Office at Ado-Ekiti.
v) An order directing the defendants, their agents, privies or anybody claiming through them to vacate and yield up possession of the building/property situate, lying and being at Olojede Close, off Ikere Road, Ado-Ekiti mortgaged to 2nd Plaintiff vide a legal mortgage registered as No. 30 at page 30 in volume 327 at the Lands Registry, Akure covered by a Certificate of Occupancy registered as No.55 at page 55 in volume 250 of the Lands Registry Office, Akure now covered by a Deed of Assignment dated 3rd November, 2000 and registered on 20th November, 2000 as No.32 at page 32 in volume 1 at Lands Registry office at Ado-Ekiti.
(vi) An order of perpetual injunction restraining the defendants their privies, agents, servants or any person whatsoever from interfering with the plaintiff’s lawful and peaceable possession of the building/property situate, lying and being at Olojede Close, off Ikere Road, Ado-Ekiti mortgaged to 2nd plaintiff vide a legal mortgage registered as No.30 at page 30 in volume 327 at the Lands Registry, Akure covered by a Certificate of Occupancy registered as No.55 at page 55 in volume 250 of the Lands Registry Office, Akure and covered by a Deed of Assignment dated 3rd November, 2000 and registered on 20th November, 2000 as No.32 at page 32 in volume 1 at Lands Registry Office at Ado-Ekiti.
Pleadings were duly filed and exchanged by the parties and the matter went for full trial, at the end of which the lower court delivered its judgment on 14th May, 2007 granting all the reliefs claimed before it except reliefs 5(ii) and (iv).
The defendants being dissatisfied with the said judgment appealed to this Court vide Notice of Appeal dated and filed on 28th June, 2010 containing nine (9) grounds of appeal.
The appellants filed their joint brief of argument dated 23rd February, 2011 and filed on 24th February, 2011 but deemed properly filed on 21st June, 2011. The Appellants from the 9 grounds of appeal identified six (6) issues for determination and they are:
(1) Whether the learned trial judge was not wrong when he ordered the Appellants to pay rent and mesne profit to the 1st Respondent when there was no evidence on record establishing landlord and tenants relationship between the Appellants and the 1st Respondent. (Ground 2).
(2) Whether the failure of the 1st Respondent to call the auctioneer who purportedly sold the property in dispute through auction as a witness is not fatal to the 1st Respondent’s case and is not tantamount to withholding of evidence. (Ground 3).
(3) Whether the learned trial judge was not wrong when he held that the evidence of the “2nd plaintiff witness” is not hearsay evidence. (Ground 4).
(4) Whether the learned trial judge was not wrong when he admitted Exhibits A, B, C, D, E, I, J-J5, K and N and attached probative value to them in his judgment.
(5) Considering the totality of evidence led and Exhibits tendered whether the judgment of the learned trial judge was not wrong and against the weight of evidence adduced before him. (Ground 5).
(6) Whether the non-signing of the writ of summons by the 1st Respondent counsel does not rub the learned trial judge the jurisdiction to adjudicate on the suit and renders the whole proceedings a nullity. (Ground 7).
The 1st Respondent in his Brief of Argument dated 6th October, 2011 and filed on 7th October, 2011 identified the following four (4) issues for determination:
(i) Whether from the state of pleadings and evidence on record it cannot properly be said that there existed a landlord and tenant relationship between the first Respondent and the first Appellant warranting the grant of arrears of rent and mesne profit in favour of the first Respondent and against the first Appellant.
(ii) Whether the failure of the first Respondent to call the auctioneer who sold the mortgaged property is fatal to the first Respondent’s case and is tantamount to withholding of evidence.
(iii) Whether evidence of second plaintiff’s witness was hearsay evidence.
(iv) Whether the learned trial judge was wrong by admitting Exhibits A B, C, D, E, J3-J5, K and N where there was no objection against same by the Appellants’ learned counsel and attaching probative value to them.
(v) Whether the judgment of the learned trial judge was against the weight of evidence.
The 2nd Respondent filed its own Brief of Argument dated 8th May, 2012 and filed on 9th May, 2012 but deemed properly filed on 9th May, 2012 and formulated the following five (5) issues:
(a) Whether by the state of pleadings and evidence led in this matter-the learned trial judge was not right in awarding arrears of rent and mesne profit.
(b) Whether the failure of the 2nd Respondent to call the auctioneer as a witness amounts to withholding of evidence and therefore fatal to the 1st Respondent’s case.
(c) Whether the evidence of the 2nd plaintiff’s witness is hearsay evidence.
(d) Whether the admission of Exhibits A, B, C, D, E, I- J-J5 K and N and ascribing probative value to same by the learned trial judge was wrong in law.
(e) Whether the judgment of the learned trial judge was against the weight of evidence.
The issues herein raised by the Appellant, 1st Respondent and 2nd Respondent tilt to one dimension. Therefore, for the intents and purposes of this appeal, the issues as formulated by the Appellants will be considered except the sixth issue in which no argument is proffered and is deemed abandoned.
ISSUE 1:
Whether the learned trial judge was not wrong when he ordered the Appellants to pay rent and mesne profit to the 1st Respondent when there was no evidence on record establishing Landlord and tenants relationship between the Appellants and the 1st Respondent.
The learned counsel for the Appellants, Adeboye Sobanjo Esq., submitted that the 1st Respondent in relief (v) of his reliefs endorsed on the amended statement of claim dated 18th day of January, 2006 at pages 76 and 77 of the Record of Appeal claimed as follows:
The sum of N518,000.00 (Five Hundred and Eighteen Thousand Naira) as special damages as follows:
(i) N468, 000.00 (four Hundred and Sixty Eight Thousand Naira) as arrears of rent from the building/property from October, 2000 to November, 2003.
(ii) N6,000.00 (Six Thousand Naira) per month as mense profit for the 5 bedroom apartment, N5,000.00 (Five Thousand Naira) per month as mesne profit for the 3 bedroom and N3, 000,00 (Three Thousand Naira) each for each of the two boys quarters in respect of property/described in paragraph (5)(i) above from November, 2003 till possession is given up to the plaintiff. The counsel submitted that the 1st Respondent claimed reliefs (v)(i) and (iii) as special damages as endorsed in the said Amended Statement of Claim. More so that the Respondents in paragraph 3 and 4 of the aforesaid Amended Statement of Claim at page 39 of the record described the 2nd Appellant (then 2nd defendant) as “a child to one Richard Olojede the husband of the 1st Defendant” while the 1st Appellant was described as “a wife to one Olojede Richard now deceased, who mortgaged his building being and situate at Olojede Close, off Ikere Road, Ado-Ekiti to the 2nd plaintiff.
It was submitted that no paragraph of the Amended Statement of Claim where the Appellants were described as tenants by the 1st Respondent and there is also no where in the Respondent’s pleading where it was pleaded that there are tenants occupying the building the res in this appeal , or that any rent was being paid to the Appellant.
It was further submitted that albeit the 1st Respondent in his evidence in chief at page 80 lines 27-34 of the record, adduced evidence as to how he engaged the services of lawyers to give tenants in the building in dispute quit notices. That the 1st Appellant is one of the tenants and other tenants were paying rent to the 1st Appellant.
The learned counsel argued that the evidence of the 1st Respondent in respect of the 1st Appellants being his tenants having not been pleaded and being at variance with his pleadings goes to no issue. Also that there was no evidence at all before the lower court to show that there exists between the 1st Respondent and Appellants Landlord and tenant relationship to warrant the lower court making an order compelling the Appellants to pay arrears of rent and mesne profit to the 1st Respondent.
The learned counsel referred to the case of DEBS V. CANICO LTD (1986) 3 NWLR (PT.32) PAGE 846 at 952 where the Supreme Court per Oputa, JSC (as he then was) held thus:
“Rent is operative during the subsistence of the tenancy, while mesne profit starts to run when the tenancy expires and the tenant holds over”
He therefore submitted that from the above decision, it is crystal clear that before the 1st Respondent could be entitled to the award of arrears of rent and mesne profit from the Appellants, he must prove with cogent and credible evidence that there is subsistence of tenancy, that the tenancy was declaimed and the Appellant held over. The 1st Respondent who claimed to have written notice to quit to the Appellant did not tender any notice throughout the trial before the lower court.
Furthermore, that since the 1st Respondent claimed the arrears of rent and mesne profit as special damages in relief (v) (i) and (iii) of the reliefs as endorsed on the Amended Statement of Claim, it is incumbent on the 1st Respondent to specifically plead same and strictly prove it.
That the 1st Respondent failed woefully to specifically establish before the lower court that he is entitled to arrears of rent and mesne profit as special damages. That the evidence of the 1st Respondent on page 81 lines 4-10 are speculative and court of law including this Honourable Court does not act on speculation. The counsel referred the court to IKENTA BEST (NIG) LIMITED v. A.C RIVERS STATE (2008) ALL FWLR (PT.417) 1 AT 36 PARA B.
The learned counsel submitted on this issue that from the totality of evidence adduced by the parties before the lower court, there is no evidence on record to support the decision of the learned trial court at page 170 paragraph 5(i) and page 170 paragraph s(iii) of the record of appeal and we therefore urged this court to hold that the learned trial judge was wrong in awarding special damages in arrears of rent and mesne profit in favour of the 1st Respondent when there was no credible evidence before the court to warrant it. This court was urged to resolve this issue in favour of the Appellants.
In response to issue 1 above, the learned counsel for the 1st Respondent Emmanuel Bamidele Omotoso Esq., submitted that the inference that could be drawn from paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18 of the Amended Statement of Claim on pages 70-79 of the record is that the 2nd Respondent exercised its right of sale over the subject matter in dispute as mortgaged property and that the 1st Respondent emerged the highest bidder and purchaser of the mortgaged property vide an auction sale and to prove that he was the purchaser and owner of the subject matter in dispute, the 1st Respondent tendered the following exhibits:
Exhibit B: Receipt issued by the auctioneer
Exhibit C: Original Certificate of Occupancy
Exhibit D: Legal Mortgage
Exhibit E: Deed of Assignment with the Governor’s consent.
More so, that the 1st Respondent took possession of the 5 bedroom duplex since year 2000 and he referred to page 81 of the record. Then he asked the lower court to eject the Appellants whom he referred to as the tenants.
The learned counsel argued that Appellants’ counsel could not discredit the first Respondent or weaken his evidence at the lower court but rather strengthened the evidence and the legal consequence is that the Appellants admitted the evidence of the first Respondent. The counsel further submitted that it is not in dispute that Late Richard Ajisafe Olojede mortgaged the subject matter of this suit to the second Respondent.
Also, according to the counsel, it is not in dispute that the said Late Richard Ajisafe Olojede did not fully repay the loan he took from the 2nd Respondent and the 2nd Respondent had all the title documents to the subject matter in dispute in its possession. The counsel argued that if a mortgagee exercises his power of sale bonafide for the purpose of realizing his debt and without collision with the purchaser, the court will not interfere even though the sale is disadvantageous unless the price is so low as in itself to be evidence of fraud. He referred to the case of OKONKWO V. C.C.B (NIG) PLC (1997) 6 NWLR (pt.507) 48 AT PAGE 60 PARAS G.H.
The counsel also submitted that it is a trite law that a dispute as to volume of indebtedness is not a valid ground known to law such as can be relied upon to prohibit a mortgagee from exercising his right of sale.
He referred to AYANLERE V. F.M.B (NIG) LTD (1998) 11 NWLR (PT.575) 621 at 628 PARAS B-C.
According to the learned counsel, upon the valid sale of the mortgaged property by the 2nd Respondent to the 1st Respondent, the latter was entitled to immediate possession and the 1st Appellant became the tenant of the 1st Respondent, the bonafide purchaser of the mortgaged property. Consequently, Landlord and tenant relationship was impliedly created between the 1st Respondent and 1st Appellant. The 1st Respondent went further on page 81 of the record and said thus:
“The 3 bedroom apartment will attract N148, 000.00 per annum. The two bedroom occupant as part of the bedroom duplex will effect N36, 000.00 per annum. If I have taken possession of the 5 bedroom deplete(sic) since year 2000. I would have completed the building and it would have attracted N60, 000.00 per annum. I have not been able to realize any rent from the properties since 18/9/2000 because the tenants are still there and they failed to suit(sic)”.
The learned counsel argued that the granting of arrears of rent and mesne profit in favour of the 1st Appellant is unassailable and cannot be faulted. Further, that the trial judge granted the 1st Respondent a sum of N468, 000.00 as arrears of rent and N4,000.00 as mesne profit (pages 215-216 of the record) being amount payable by the Appellant for the use and occupation of the mortgaged property after it had been sold to the Respondent. He referred to the case of OYEBANJI B.M.S LTD V. U.B.A PLC (2001) 6 NWLR (PT.708) 80 at 89 PARAS B-C Per Oguntade, JCA (as he then was) had this to say:
“It is true that there was no evidence of an estate surveyor on the annual rental value for the year 1992-1994. But there was evidence for the year 1991/92. I think that what the trial judge did was to use common sense to deduce the likely rental value for 1992-1994 given the general upward swing of rents on a yearly basis using the rents for 1992-1994 as the base line. I do not think this was a wrong thing to have done”.
In response to the learned counsel to the Appellant’s submission that there is no where in Amended Statement of Claim where the Appellants were described as tenants by the 1st Respondent, the learned counsel submitted that parties are only required to plead material facts and not evidence. That there are sufficient material facts in the Amended Statement of Claim to support the relationship of tenant and Landlord between the 1st Appellant and the 1st Respondent.
The counsel finally submitted on this issue that the case of DEBS V. CANICO LTD (1986) 3 NWLR (PT.32) 846 at 952 cited by the Appellants’ counsel has no relevance with the instant case and he urged this Honourable court to resolve this issue in favour of the Respondents. In their own response, the learned counsel for the 2nd Respondent Femi Sarumi, Esq., submitted that by the community reading of paragraphs 4, 5, 6, ,7 ,8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of the Amended Statement of Claim, the property, the subject matter of this suit, was mortgaged to the 2nd Respondent by the husband and father of the Appellants respectively and which property was sold to the 1st Respondent by public auction. In his attempt to take possession of the property, the 1st Respondent intimated the 1st Appellant of the sale of the property to him and upon her refusal initiated proceedings against her before the Rent Tribunal in Suit No: ADRT/137/2001. In response to these material allegations of facts, the appellants, by paragraphs 3, 4, 5, and 6 of the Amended Statement of Defence at pages 61 – 64 of the record did not dispute the fact that their husband and father respectively, redeemed the mortgage before his death as to entitle them to a return of the certificate of occupancy. That in fact, the Appellants, rather than dispute the issue of repayment, avers in paragraph 5 of the Amended Statement of Defence as follows:
“The 1st Defendant avers that her husband was sick for about 8 years and was bedridden for about 6 years before he died and this was to the knowledge of officials of 2nd plaintiff and this protracted and terrifying sickness was responsible for the inability on his part of trieve (sic) two document on his landed property in custody of 2nd plaintiff but it is not only the 2nd plaintiff that had custody of Richard Olojede property documents after his death, the others did not act like 2nd plaintiff to take undue advantage of this documents in their possession”.
The learned counsel submitted that by the above averment, it is crystal clear that the Appellants failed to dispute repayment of the overdraft facility having admitted their husband and father respectively took the facility. He further submitted that the said failure was foundation of the sale of the property as averred in paragraphs 6(a), (b), (c), (d), (e), 7, 8, 9, 10, 11 and 12 of the Amended Statement of Claim. That by paragraphs 16, 17, and 18 of the Amended Statement of Claim, the 1st Respondent contended that he notified the 1st Appellant of the sale of the property and upon her refusal to deliver possession, he instituted an action against her before the Rent-Tribunal. The Defendant admitted her appearance before the Rent-Tribunal by paragraph 13 of the further Amended Statement of Defence.
In line with the above pleadings, the 1st Respondent and his witness gave impeccable evidence of not only the indebtedness of Richard Olojede, the sale of the property to the 1st Respondent by Public auction, the purchase price and the change of ownership by the execution and registration of the Deed of Assignment. They equally and importantly gave credible evidence of steps taken by the 1st Respondent to secure possession including the service of quit notice on the 1st Appellant and other tenants in the property and the institution of action against the 1st Appellant. It is equally on record that the 1st Appellant failed to yield possession up till the time of institution of this action. They tendered relevant documents in support of their evidence.
That the evidence of the 1st Respondent in respect of the above facts was not challenged under cross-examination but further confirmed them. He referred to pages 78 – 81 of the records.
The learned counsel submitted that in his evidence on the rental value of the property, the 1st Respondent gave evidence at pages 80/81 of the records as follows:
“The property has three buildings:
One three bedroom
One two bedroom
One duplex (sic) of 5 bedrooms uncompleted.
The ground floor of the duplicate (sic) is occupied by a tenant.
The 3 bedroom apartment will attract N48, 000.00 per annum while the 2 bedroom will attract N36, 000.00 per annum”.
The learned counsel further submitted that the above piece of evidence was not challenged by the Appellants under cross-examination that the learned trial judge was right in accepting this figure as the appropriate rent payable in respect of the property having regards to the unchallenged evidence that the 1st Appellant and other tenants have refused to vacate the said premises despite knowledge of sale and service of quit notice on them. He therefore urged this court to resolve this issue in favour of the 2nd Respondent.
RESOLUTION OF ISSUE ONE:
In resolving this issue, I wish to state that there are various categories of tenancy under our laws and they include:
(1) Contractual tenancy
(2) Statutory tenancy
(3) Tenancy at sufferance;
Contractual tenancy is the usual or common one that involves agreement between the landlord and tenant written or oral on the terms and conditions of the tenancy. A statutory tenancy is a creation of statute for the benefit of the tenant and does not depend on the will or acceptance of the landlord or on the existence of a contractual tenancy.
Tenancy at sufferance results from initial lawful occupation or possession either by contractual tenancy or license given by the owner or person entitled to the right of occupancy of premises and owners when the tenancy or license expires and the tenant or licensee holds over possession.
See: FARAJOYE v. HASSAN (2006) 16 NWLR (PT. 1006) PG. 487 PARAS A-D; PAN ASIAN – AFRICAN CO-LTD. NATIONAL INSURANCE CO (1992) FNR 360- (1982) 9 S.C. AFRICAN PETROLEUM V. OWODUNNI (1991) 1 NWLR (PT. 210) 391 ODUYE V. NIG. AIRWAYS (1987) 2 NWLR (PT. 55) 126. EZENWA v. OKO (1999) 14 NWLR (PT. 637) 95.
This Court and even the Supreme Court have defined and explained the meaning of a tenant in a number of cases to mean any person occupying any accommodation on payment of rent and includes a sub-tenant. See: ELOICHIN NIG LTD V. MBADIWE (1986) 1 NWLR (PT.14), (1986) 1 S.C 99, MARTHA UDUSEGBE V. JULIUS TUGBA (2010) LPELR- CA/B/80/1998. The Supreme Court in the case of ODUYE V. NIG AIRWAYS LTD (1987) NWLR (PT. 55, (1987) 4 S.C 202 held thus:
“Tenant includes a sub-tenant or any person occupying any premises whether on payment of rent or otherwise but does not include a person occupying premises under a bonafide claim to be the owner of the premises”
It is obvious from paragraphs 3 and 4 of the plaintiff’s Amended statement of claim at page 39 of the record, the 2nd Appellant (then 2nd Defendant) was described as a child to one Richard Olojede the husband of the 1st Defendant while the 1st Appellant was described as the wife to one Olojede Richard now deceased, and who mortgaged his building now disputed and being situate at Olojede close, off Ikere Road, Ado-Ekiti to the 2nd Plaintiff. What this means, in essence is that the 1st and 2nd Appellants in this appeal have been in occupation of the property as descendants of the deceased mortgagor, late Richard Olojede. Besides, there is nothing on record to show that the 1st Respondent tendered any tenancy agreement or showed that any oral agreement of tenancy existed, neither was there any notice to quit tendered. Be that as it may, the Appellants could not have been tenants to any person and the inference is that they have been in occupation of the property as the owners and from the pleading of the Respondents and evidence led at the lower court, I cannot see and I cannot deduce that the appellants ever paid or were paying rents to the 1st Respondent or even to any other person. I therefore hold that the Appellants were not tenants and no landlord/tenant relationship existed between them and the 1st Respondent to justify the claim contained in reliefs v (i) (ii) (iii) of the Amended Statement of Claim.
While arrears of rent is the total rent payable in respect of a property which a tenant occupies, but has not been paid. Mesne profit on the other hand, is used to describe the sum to a landlord from the time his tenant gives up possession. Mesne profits are the rents and profits which a trespasser has, or might have received or made during his occupation of the premises and which therefore he must pay over to the true owner as compensation for which he has committed. See: ODUTOLA & ANOR V. PAPER SACK NIG LTD (2007) VOL. M.J.S.C. 129 AT 149 PARAS A-B (SC), AFRICAN PETROLEUM LTD v. OWODUNNI (SUPRA)- DEBS V. CENLCO NIGERIA LTD (1986) 3 NWLR (PT.32)846.
In OSAWARU V. EZEIRUKA (1978) 5-7 S.C (REPRINT) 91, The Supreme Court per ANIAGOLU J.S.C. held thus:
“The rents due up to that date were arrears and not mesne profits. The amounts due after that date would properly be termed “mesne profit” since the tenancy had been determined by that date and any further occupation by the appellant after that date was a holding over which technically was a trespass but of a kind answering specially from particular relationship of landlord and tenant. In arrears of rent claim the tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent the landlord is not challenging the continued occupation of the premises by the tenant, indeed, he concedes that the tenant is validly and legally in possession.
But in a claim for mesne profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. See Butterworth’s words and Phrases Legally Defined, 2nd Edition P: 251) The word ‘Mesne’ was derived from the Latin word “Medius” meaning middle, intervening or intermediate (See Earl Jowitt’s: The Dictionary of English Law, 1959 Edition P. 11670). And so a landlord in claiming for “mesne profits” is claiming for the profits intermediate from the date the tenant ought to have been given up possession and the date he actually gives up possession. It is therefore damages for trespass the measure of which is the amount the tenants had been paying as rent for the corresponding period when he was lawfully in occupation as a tenant”
I have perused through the Amended statement of claim and I cannot see where an amount of money was stated to be the rent which the Appellants have been paying or any amount being owed as rent, and to who except the purported claims of the 1st Respondent. I therefore hold that the claim as per v (i) (iii) should fail for being toothless. In essence, the trial lower court was wrong to have granted the said claims. I therefore resolve this issue in favour of the Appellants.
ISSUE 2:
Whether the failure of the 1st respondent to call the auctioneer who purportedly sold the property in dispute through auction as a witness is not fatal to the 1st Respondent’s case and is not tantamount to withholding of evidence. (Ground 3)
In his submissions, the learned counsel for the appellants argued that the Supreme Court in OKONKWO V. CO-OPERATIVE AND COMMERCE BANK (NIG) PLC (2003) FWLR (PT 154) page 457 at 496 PARAS A-B defined auction as follows:
“An auction is a manner of selling or letting property by bids at a place open to the general public, usually to the highest bidder by public competition. The prices which the public are to pay are the highest which those who bid can be tempted to offer by the skill and task of the auctioneer under the excitement of open competition”.
He submitted that the evidence of the 1st Respondent from the record of appeal from pages 78 to 79 was that he went to the auctioneer’s office when he saw the advert for sale of the property in dispute and he was told that the property would be sold by public auction on 18th September, 2000. He also said that he was at the premises of the property in dispute on that day and the auctioneer rang his bell from the main road to the location of the auction and that policemen were brought to the scene were not pleaded.
He also said he was the highest bidder and bought the property at the auction price of (1, 200,000.00) One Million, Two Hundred Thousand Naira and was issued with a receipt by the auctioneer. Also that the auctioneer brought policemen and there are many people at the auction.
However, the 1st Appellant who stays in one of the buildings that constitute the property in dispute in her evidence before the lower court at pages 101 – 102 of the record of appeal vehemently rebutted the evidence of the 1st Respondent that he bought the property through auction. She also said that the 1st Respondent initially told her that he knew nothing about the property but he later said that it was somebody else that bought the property, and they just wanted to use him. The 1st Appellant was not cross-examined on this line of evidence. The counsel submitted further that the summary of the evidence of the 1st Appellant was that the property was not sold by auction or sold at all. That the Appellants in paragraph 11 of their further Amended statement of Defence at page 62 of the record also denied the fact that the action ever took place and adduced evidence to that effect. He argued that it is the 1st Respondent that asserted that he bought the property through an auction sale, which fact the Appellants vehemently denied, it is incumbent on the 1st Respondent who pleaded in paragraphs 9, 10 and 11 of the Amended statement of claim of page 40 of the record of Appeal to discharge the onus of proof placed on him by law and cannot be said to have discharged the burden on the face of the evidence of rebuttal by the Appellants to entitle him to his reliefs or to warrant the burden shifting to the Appellants contrary to the holding of the learned trial judge of the lower court at page 156 of the record. He argued further that going by the totality of the evidence adduced by parties before the lower court, it could not be convincingly stated that there was sale by auction of the property in dispute on the 18th day of September, 2000 notwithstanding Exhibits “A” and “B” and the only person that could clear the cloud on the sale of the property in dispute is the auctioneer that sold the property. He therefore submitted that they are not oblivious of the general rule that no particular number of witness is required for proof of any fact unless expressly prescribed by law but where a witness who could give credible evidence is left out, the court is entitled to invoke the provision of section 149 (d) of the Evidence Act against the party.
More so, the auctioneer is a vital witness that could in the circumstance of this case throw light on whether there was an auction sale or not.
That Exhibit B is not a conclusive proof that the 1st Respondent bought the property in dispute through public auction.
The learned counsel submitted that failure of the 1st Respondent to call the auctioneer who is a vital witness in the case at the lower court amount to withholding of evidence and he urged this court to invoke section 149 (d) of the Evidence Act against the 1st Respondent. He referred to the case of AGBI V. OGBEH (2006) ALL FWLR (PT 329) PAGE 941 at 978 where the Supreme Court held thus;
“Where the evidence of a vital witness is withheld by the party who ought to call such witness, the court could invoke the provision 149 (d) of the Evidence Act which provide, inter alia, that the court may presume “that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it?
He finally urged this Court to hold that failure of the Respondents particularly the 1st Respondent to call the auctioneer as a witness in this case is fatal to the case before the lower court, and that it is tantamount to withholding the evidence of the auctioneer and in consequences resolve this issue in favour of the appellants.
The learned counsel for the 1st Respondent submitted that Auctioneers’ Law does not make public auction mandatory. That a mortgagee exercising his power of sale is not under a duty to sell the mortgaged property by public auction. He referred to OYEBANJI B.M.S. LTD V. U.B.A. PLC (2001) 6 NWLR (PT 708) 80 at 88 Paras D-E.
Further, that the 1st Respondent and his evidence before the lower court on pages 78-82 of the record tendered the auctioneer’s receipt issued to him and same was admitted and marked Exhibit “B”. He argued that if the Respondents had had any question for the auctioneer they were at liberty to apply for a subpoena to testify before the lower court. This they have failed to do and that a party is not bound to call a host of witness in proof of his case. He referred to EZEDIGWE V. NDICHIE (2001) 12 NWLR (PT 726) 37 at 62 paras E-F.
The learned counsel submitted that the failure to call the auctioneer is not fatal to the 1st Respondent’s case. The 1st Respondent being a truthful witness whose evidence was not challenged or discredited under cross-examination, the court was bound to act and did act on same. He referred to UBN PLC V. GOVERNMENT ANAMBRA STATE (2001) 12 NWLR (PT 726) 155 at 17 C Paras F-H
The Counsel further argued that the Respondents obtained Governor’s consent to the transaction, published notice as contained in Exhibit A as required by Section 19 of the Auctioneer’s Law Cap 9, Laws of Ondo State, as applicable to Ekiti State which stipulates that no sale can validly take place within less than seven (7) days from the day the public notice is published. More so, Exhibit K shows that the deceased i.e. Late Richard A.Olojede, was still owing the 2nd Respondent at the time the mortgaged property was sold and referred to page 85 of the Record.
More so, that the Appellants only described the auction sale as fraudulent in their Further Amended Statement of Defence on pages 106-109 of the record but failed to give the particulars of fraud, and failed to prove fraud.
In response to the learned Counsel for the Appellant’s submission in paragraph 6.10 of page 8 of their Brief of Argument to the effect that failure to call the auctioneer who is a vital witness amounted to withholding of evidence, the counsel submitted that the learned counsel for the Appellant went off track as the law talks of evidence that could be produced, not witness. He referred to the cases of CBN V. AMIKA (2000) 13 NWLR (PT 683) 21 at 34-35 paras A-H, OGBODO V. THE STATE (1987) 3 S.C. 497 at 526
The learned Counsel further referred to the case of EZEDIGWE V NDICHIE (Supra) at page 62 paras D-E per FABIYI JCA thus:
“The Appellants maintained that this Court should invoke the provisions of Section 149 (d) of the Evidence Act against the respondent as according to their Counsel, the respondent failed to call certain witnesses to buttress his stand of out-right sale to him. I strongly feel that the appellants went off the track as the law talks of evidence that could be produced, not witnesses to prove his case. One truthful witness, as called by the plaintiff/respondent could suffice”
The learned Counsel finally urged this court to resolve this issue in favour of the respondents.
On his own part, the learned Counsel for the 2nd Respondent submitted that it is beyond controversy from the records that the Respondents did not call the auctioneer who carried out the sale of the property to the 1st Respondent by public auction. It is not equally in controversy that the Respondents gave evidence of the sale particularly the investigation conducted prior to the sale, the purchase price, the issuance of purchase receipt and change of ownership by the execution and registration of the Deed of Assignment. The Respondent equally tendered Exhibits A, B, C, D, and E respectively to drive home the fact of sale of the mortgaged property by public auction.
The learned counsel submitted that it is now settled that under the rules of pleadings, a pleader who has pleaded more than he strictly needs to have pleaded may disregard the unnecessary or surplus averments and rely on other averments. He referred to IGWE V. ALVAN IKOKU COLLEGE OF EDUCATION OWERRT (1994) 8 NWLR (pt.363) 459.
The learned counsel further submitted that the failure of the Respondents to call the auctioneer as a witness in this matter is not in any way fatal to their case and will not by any stretch of imagination amount to withholding his evidence and that section 149 (d) of the Evidence Act which is applicable to this matter forms part of the provisions of burden of proof which must not be used to shift the general burden of proof normally incumbent on the plaintiff. More so, that section 149(d) of the Evidence Act will only arise in a proper case against a party in a proceeding who withholds the particular piece of evidence if he fails to call any other evidence on the issue. The presumption is not because he fails to call any other evidence on the issue because he did not lead any evidence on the issue. He referred to BELLO V. KASSIM (1969) NWLR 148 at 152.
The counsel submitted more that the presumption raised by section 149(d) does not arise in this matter because the evidence the auctioneer could have given if called was the evidence of sale of the property by public auction particularly the date of sale, the purchase price, attendance, the purchaser, the mode and manner of payment and the evidence of these facts was given orally and documentarily. The 2nd Respondent and his witness led evidence on these issues and abundantly that if the auctioneer was called, he could not have given better evidence. The 1st Respondent, in support of his oral testimony tendered Exhibits A, B, C, D and E which bother on the sale and documents of title in respect of the property and these documents were tendered without objection.
The learned counsel finally submitted that the authorities cited by the Appellants on this issue are not relevant to the peculiar facts of this matter and should therefore be distinguished. More so, that there is nothing stopping the Appellants from calling the auctioneer as a witness on subpoena and having failed to utilize the said advantage, the Appellants cannot use same to void the sound and impeccable judgment of the lower court.
This court was urged to hold that the presumption raised by section 149(d) of the Evidence Act is not applicable to this matter and failure to call the auctioneer was not fatal to this case.
RESOLUTION OF ISSUE TWO:
The plank of Section 149(d) of the Evidence Act is to the effect that a court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume.
(d) That evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it; It is a clear provision of the above section without any elements of absurdity or ambiguity that the presumption is in respect of withheld evidence and not withheld witnesses as canvassed by the Appellant’s counsel,
This court in EZEDIGWE V. NDICHIE (2001) 12 NWLR (PT 726)37 at 62 PARAS D-E for FABIYI, JCA held thus:
“The appellants maintained that this court should invoke the provisions of S. 149 (d) of the Evidence Act against the respondent as according to their counsel, the respondent failed to call certain witnesses to buttress his stand of out-right sale to him. I strongly feel that the appellants went off the track as the law talks of evidence that could be produced, not witnesses. A plaintiff does not need to call a host of witnesses to prove his case. One truthful witness as called by the plaintiff/respondent, could suffice”
Thus, it is unambiguous from the above holding that no particular number of witnesses is required for a plaintiff or claimant to prove his case. One important and truthful witness is enough to establish a case. See EZEDIGWE V. NDICHE (SUPRA) Section 179 of the Evidence Act. The 1st Respondent in his evidence at the trial lower court at pages 78 – 82 of the record tendered the auctioneer’s receipt issued to him which was admitted and marked Exhibit B with even no objection from the Appellant’s counsel. Also the 1st Respondent tendered Exhibit A being notice of the sale published in a daily Newspaper and taking into consideration the time of the publication and the time of the sale. I think that the provisions of SECTION 19 OF THE AUCTIONEERS LAW CAP 9 LAWS OF ONDO STATE as applicable to Ekiti State which stipulates that no sale can validly take place within less than seven (7) days from the day the public notice is published, was not contravened. More so, the witness tendered Exhibit ‘K’ which no doubt showed that the deceased (late Richard A, Olojede) was still owing the 2nd Respondent as the mortgaged property was sold. See page 85 of the record.
I agree with the learned counsel for the 1st Respondent that a mortgagee exercising his power of sale which has arisen and has become exercisable is not mandated under the law to sell by public auction but I append that the following must be complied with:
(a) There was evidence of a deed of legal mortgage transaction.
(b) The mortgage has failed to redeem the mortgaged property within the prescribed time.
(c) Power of sale has arisen and become exercisable.
(d) The mortgagor or successors in title has been demanded to repay the loan by a notice or a letter.
(e) The mortgagor or the successors in title has been notified of the sale.
See: OYEBANJI B.M.S LTD V. U.B.A PLC (2001) 6 NWLR (PT.708) 80 at 88 PARAS D.E.

It is an age long legal principle that presumption as in section 149(d) Evidence Act can only arise in a proper case against a party in a proceeding who withholds the particular piece of evidence if he fails to call any other evidence on the issue.
See: BELLO V. KASSIM (1969) NWLR 148 at 152.
It therefore means that the court is to presume, without any proof that evidence which could be produced by a person and is not produced by that person but withheld by him would go against that person who withholds such evidence. Thus, the court must be satisfied:
(1) That the evidence exists;
(2) That it could be produced;
(3) That it has not been produced and;
(4) That it has been withheld by person who could produce it; See: MUSA V. YERIMA (1997) 7 NWLR (PT.511) PER OGUNDARE, JSC (PT.38) PARAS E-G.
I therefore hold that failure of the Respondent to call the auctioneer does not amount to withholding of evidence and cannot be so presumed.
This issue is hereby resolved against the Appellants.
ISSUE 3:
Whether the learned trial judge was not wrong when he held that the evidence of the 2nd plaintiff witness is not hearsay evidence.
The learned counsel submitted that the learned trial judge in his judgment held at page 156 of the record of appeal held thus:
“The law is clear that hearsay evidence is the evidence of the third party who comes to say that they ay they say”.
He argued that the court in SUNTAI V. TUKUR (2003) FWLR (PT.157) PAGE 1128, Per Nzeako, J.C.A at 1144 PARAGRAPH F held thus:
“Hearsay evidence is defined as evidence of a fact not actually perceived by a witness with one of his own senses but proved by him to have fun stated by another. It is sometimes being referred to as a second-hand evidence.
The court further at pages 1144-1145 paragraphs H-A stated what Constitutes hearsay evidence as:
“A piece of evidence is a hearsay if it is  evidence of the contents of a statement not called to testify, it if is intended and not merely the fact the statement was made, it is hearsay and inadmissible in evidence”.
He further argued that the “2nd plaintiff witness” evidence-in-chief is at pages 83 to 86 of the record of appeal while his cross-examination.
The witness who came to court on subpoena and testificandum tendered various documents and under cross-examination at pages 86 of the record, he said that he was not one of the actors leading to the sale of the property to the Respondent (1st plaintiff). The witness mentioned one Mr.Ehindero who he said was in charge of debt recovery. Further that the said Mr. Ehindero as at that time was still with the Bank. He also mentioned one Vincent Okoma, who he said left the bank voluntarily, The counsel submitted that it is Mr. Ehindero who has the knowledge of what transpired and led to the purported sale of the property in dispute and not the “2nd plaintiff witness” who merely came to court to say what he heard or gathered from the Bank’s record. Further, that the learned trial judge did not properly evaluate the evidence of this witness to determine whether it is hearsay or evidence or not before coming to the conclusion that the evidence was not hearsay evidence. The counsel argued further that the trial judge at page 156 of the record stated as follows:
“In  my humble view, given evidence and tendering documents from the official records of a bank by a subpoena officer of the bank on facts in issue will not amount to hearsay evidence and therefore the evidence of PW2 is admissible and properly admitted”.
The learned counsel submitted that if the trial judge had taken into consideration the evidence of the witness as reviewed at line 18 at page 156 of the record to the effect thus:
“That he was speaking from the record of the   Bank” and come to a conclusion as laid down in the case of SUNTAI V. TUKUR (SUPRA) that the evidence of PW2 was a hearsay evidence because the evidence of him with one of his own senses but proved by him to have been seen and done by Mr. Ehindero and Vincent Okoma who were not called as witnesses.
He further submitted that the issue before the lower court was whether the property in dispute was sold to the 1st Respondent through auction sale or not and the witness under reference adduced evidence that he was not part of the sale. The witness tendered documents not to prove that those documents exists but that the contents of the documents tendered as exhibits through him are true i.e. that the husband of the 1st Appellant owed his Bank and it was the debt that culminated into the sale of the property in dispute.
More so, that hearsay evidence is inadmissible and it needs not to be controverted before it is expunged from the record of the court. He referred to the case of BUHARI V OBASANJO (2005) 2 NWLR (PT.910) 241 at 435. Hence, the evidence of PW2 being not admissible in law should be expunged by this Honourable court.
The learned counsel finally submitted that if the lower court had not relied on the evidence of this witness, the learned trial judge would have realized another decision and dismissed the case of the Respondents. He therefore urged this court to resolve this issue in favour of the Appellants.
In response, the learned counsel for the 1st Respondent submitted that one, S.A Awe, a banker and an employee of the 2nd Respondent gave evidence on pages 83-87 of the record for the 1st Respondent although erroneously referred to as “the second plaintiff’s witness” by the learned trial judge. That it is not in dispute that he was competent to give evidence for either of the Respondents. That what is in dispute is the nature of the evidence given by him and whether same is legally admissible. Similarly, that the witness admitted that he was not a party to the auction sale. He however identified the following documents which were already tendered and admitted as exhibits before the lower court viz:
Exhibit ‘C’ Legal mortgage
Exhibit ‘D’ – Certificate of Occupancy
On the argument and submission of the learned counsel to the Appellants on pages 9 -10 of the record to the effect that the issue before the lower court was “whether the property in dispute was sold to the 1st Respondent through auction sale or not”, the counsel submitted that this was not the only issue for determination before the lower court, that other issues for determination included to mention but a few:
– Whether there was a legal mortgage between Late Richard A. Olojede and the second Respondent,
– Whether Late Richard A. Olojede was indebted to the second Respondent as at the time of sale.
– Whether the auction sale was fraudulent
– Whether Olumide Olojede wrote on behalf of Late Richard Olojede family to the 2nd Respondent.
The counsel submitted that S.A. Awe evidence is not hearsay evidence on the following grounds:
(i) He testified that he was a staff of the 2nd Respondent as Debt Recovery Officer.
(ii) He came to tender and identify some documents relating to the mortgaged property and auction sale.
(iii) Even though he was not an eye witness to all the details of the transaction and sale of the mortgage property he was not a stranger to the document. The counsel referred to the case of MISS OJO V. DR. GHARORO & ORS (2006) ALL FWLR (PT.316) 197 at 222-223 where a doctor, the head of the operation team but not an eye witness to all the details of the operation gave evidence based on case notes. He was said not to be a stranger to the documents and his evidence was not held to be hearsay. The complaint that the evidence of the witness does not attract the most probative value not being an eye witness was therefore dismissed by the Supreme Court.
(iv) The witness gave evidence that he succeeded Mr, Ehindero as the Debt Recovery Officer of the 2nd Respondent whilst Vincent Okuma had left the 2nd Respondent.
(v) The witness did not merely come to say what he heard or gathered from the Bank’s record but actually came to tender in evidence the followings:
(a) Exhibit I – Valuation Report – Page 84 of the record.
(b) Exhibit J-J5 – Letters of demand for repayment of loan – page 85 of the record.
(c) Exhibit K – Statement of Account – Page 85 of the record,
(d) Exhibit M-MI – Letters from Late Richard Olojede family,
The counsel referred to the case of CHIEF IGUNBOR & ORS V. CHIEF UGBEDE OBIANKE & ORS (1997) 9 & 10 SC 179, where the Supreme Court held that the admission of documents tendered by a witness who was not the maker despite the fact that the makers were available but not called as a witness was proper and valid and that the learned trial judge was wrong to have expunged same from the record. More importantly in this case, the counsel argued that the learned counsel to the Appellants did not object to the admission of same, thus, the documents tendered by the witness are relevant and admissible.
He finally urged this Honourable Court to uphold the humble view of the trial judge as expressed on pages 201-202 of the record and hold that the evidence of S.A Awe is not hearsay evidence, thereby resolving this issue in favour of the 1st Respondent.
The learned counsel for the 2nd Respondent in his own response submitted that the evidence of the 1st Respondent’s witness (Mr. S.A. Awe) under cross-examination gave rise to this issue. He placed on record, for the purposes of clarity that the said witness was a staff of the 2nd Respondent but came to give evidence on subpoena. That the relevant portion of his evidence under cross-examination as contained at page 86 of the record is to the following effect:
“I am not one of the actors leading to the sale of the property to the plaintiff. The officer who was in charge of debt recovery then was Mr. Ehindero. Mr. Ehindero is still with the bank but not in that position now. He was the debt recovery officer, then as the head of that selling of the Akure Branch. That is the position I am occupying now. I heard of the Vincent Okoma but by te(sic) time I came to Akure Branch he has left the Bank. He was in the department of debt recaving(sic) with Mr. Ehindero. He was not dismissed from the bank. He left the bank voluntarily. To the best of my knowledge, this was not friction between him and the bank. I joined the Loans Recovery Unit in February, 2005. The customers file contains all the transaction between the bank and customer” (Page 86 lines 14-25 of the record).
The counsel submitted that from the above evidence, it is clear that the said witness gave evidence as the substantive Head of Recovery Unit of the 2nd Respondent from the records in the custody of the 2nd Respondent. Further, that it is a great misconception that the only competent witness who can give evidence of the transaction relating to the account of Richard Olojede, the level of his indebtedness and payment to otherwise of same and the eventual sale of his property by public auction is Mr. Ehindero the former occupant of the seat of the Head of Recovery Unit of the 2nd Respondent. The witness who gave evidence in this matter is a competent witness and the evidence he gave was not hearsay as he gave same from the records in the custody of the Bank. More so, the mere fact that a bank staff was not around when a customer’s bank account was opened is not enough to prevent the staff from testifying or giving evidence on the customer’s account. He referred to the cases of KATE ENTERPRISES LTD V. DAEWOO NIG LTD (1985) 2 NWLR (PT.5) 155; ISHOIA v. SGB (NIG) LTD (1997) 2 NWLR (PT.488) 405. All quoted with approval in SALEH V. BANK OF THE NORTH (2006) ALL FWLR (PT.B10) 1600 at 1602/1603. On the strength of these authorities, the counsel argued that the said witness was capable of giving evidence, which cannot by any imagination be referred to as “Hearsay Evidence” and he urged the court to so hold. He further submitted that it is a misconception of law that tendering of documents and/or identification of documents will amount to hearsay. That apart from the oral testimony of the 1st Respondent’s witness, he equally tendered and identified documents that have been tendered without objection, He tendered Exhibits F & F1, G, H, I, J, J5, K M, & M1, N and identified Exhibit D, C, and E already tendered in evidence. That Exhibits F and F1 are the subpoena issued on the witness to come and give evidence, Exhibit H is the Valuation Report, Exhibit K is the Statement of Account and Exhibit H, J-Js, L, M and N are letters.
The counsel submitted that tendering of Exhibits F and F1 could not have been hearsay as they are documents served on him by the registry of the lower court. Exhibit G, H, J-J5 and L are letters written to and written by the 2nd Respondent. They are letters in the custody of the Bank to which the witness has an access to as the Head of Recovery Unit, According to the counsel, the witness is competent to tender and identify these Exhibits without reference to Mr. Ehindero as the said Exhibits are not personal documents of Mr. Ehindero. He therefore urged the court to hold that the oral testimony of the witness is not hearsay and sustain same and prayed the court to resolve this issue in favour of the 2nd Respondent.
RESOLUTION OF ISSUE THREE:
It is a general legal principle that where a witness gives evidence on a vital fact relying on information by another person, the evidence amounts to hearsay and would have no evidential value. The hearsay would not be that of an eye witness. See: JADI V. AJIBOLA (2004) ALL FWLR (PT.220) 1273, (2004) 16 NWLR (PT.898) 91; BUHARI V. OBASANJO (2005) ALL FWLR (PT258) 1504; (2005) 2 NWLR (pT.910) 241 OLAFAFEMI V. AYO (2009) ALL FWLR (PT.452) 1111 AT 1154 PARA C.
The Supreme Court in the case of SUNTAI V. TUKUR (2003) FWLR (PT.157) 1128 AT 1144 PARA F held thus:
“Hearsay evidence is defined as evidence of a fact not actually perceived by a witness with one of his own senses but proved by him to have been stated by another. It is sometimes being referred to as a second hand evidence”.
The court further held at pages 1144-1145 paragraphs H-A as follows:
“A piece of evidence is a hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify, if it is intended to prove the truth of the statement and not merely the fact the statement was made, it is hearsay and inadmissible in evidence”.
From the above, it can be reasoned that it is only evidence intended to prove the truth of the contents of a statement which evidence is given by another who is not the maker, that is hearsay. However, if the evidence by such other person is intended to show that the statement was in fact made, it does not amount to hearsay. See SUNTAI V. TUKUR (SUPRA).

As a matter of law, documentary evidence can be admitted in the absence of the maker. See: IGBODIM V. OBIANKE (1976) 9- 10 SC 179. After all, relevancy is the key of inadmissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the court attaching probative to it. That is the point I am making. Basically, therefore, admissibility and weight, to be attached to the document admitted are two different things, See: AYENI V. DADA (1978) 3 SC 35; OMEGA BANK (NIG) plc v. O.B.C LTD (2005) 8 NWLR (PT.928) 54.
The evidence of the 2nd plaintiff’s witness is contained at pages 83-86 on the record and the basis of his evidence is that he was not one of the actors leading to the sale of the property to the Respondent (1st Plaintiff). He mentioned one Mr. Ehindero who he said was in charge of debt recovery. He further said that the said Mr. Ehindero as at that time was still with the Bank and that he is now the Head of Recovery Unit of the 2nd Respondent. See page 86 lines 14-25 of the record.
The said 2nd plaintiff’s witness identified as one S.A. Awe is a banker and an employee of the 2nd Respondent bank. See pages 83-87 of the record.
He tendered Exhibits F, FL, G, H, I, J-J5, K, M & M1, N and identified Exhibits D, C and E already admitted in evidence. Exhibits F and Fl are the subpoena issued on him to give evidence, exhibit H is the Valuation Report, Exhibit K is the Statement of Account and Exhibits G, H, J-J5, L, M and N are letters written to and written by the 2nd Respondent and which letters are in the custody of the Bank. See pages 79,80,84,85 of the records.
It is no doubt that the 2nd plaintiff’s witness identified as S.A Awe was an employee of the Respondent Bank at the time of the suit and was the Head of the Recovery Unit of the Bank, the documents tendered through him are to my mind the official documents of the Bank which belong to no individual employee of the Bank.
The bank is a juristic person which acts through agents/natural persons such as the 2nd plaintiff’s witness as referred in this appeal.
This court in the case of MR. S. ANAJA V. U.B.A (2010) LPELR CA/J/66/2002 held thus:
“It is not controverted that the documents in question had been pleaded and are relevant to the case. It is correct, as submitted by counsel for the appellant, that DW1 who tendered them, was not the maker,and the makers had not been called to enable the appellant to cross-examine them.
However, the Respondent bank as a juristic person, can only act through natural persons. Any servant or agent of a company such as the Respondent bank, can give evidence and tender document to establish any transaction it entered into or the activities it had undertaken. The servant or agent may not of necessity have to be the one who actually took part in the transaction or activity, for the company. His evidence is admissible, relevant and not hearsay…” See: KATO V. DAEWOO (1985) 2 NWLR (PT.511) 116.
I therefore find it out of place to hold that the learned trial judge was wrong when His Lordship held that the evidence of the 2nd plaintiff’s witness was not hearsay evidence. In essence, I resolve this issue against the Appellants.
ISSUE 4:
Whether the learned trial Judge was not wrong when he admitted Exhibits A, B, C, D, E I, J, – J5, K, and N attached probative Value to them in his Judgment.
The learned Counsel for the appellant submitted that many of the documents admitted by the learned trial judge during the trial were admitted with the consent of the former counsel that represented the Appellants during trial and where evidence is by error or otherwise admitted, it is the duty of the trial court to expunge it in giving its judgment and if it fails to do so, the Appeal Court will reject such evidence and consider the case in the light of the legally admitted evidence.
The Learned Counsel conceded to the fact that wrongful admission of inadmissible evidence is not of itself a ground for the reversal of any decision. Similarly, the wrongful exclusion of admissible evidence is not itself a ground for the reversal of any decision. Also, that whether an appellate Court will reverse a decision based on wrongful admission of documents will depend on whether the evidence wrongfully admitted would have effect of changing the decision if those documents are expunged or excluded by the court. He therefore submitted that if Exhibits “A” “B”, “C”, “D” “E” “I” “J”, “K” “N” are excluded or expunged from the record, the decision reached by the trial court would be different.
The Counsel submitted that Exhibits “A” which was tendered and admitted by consent of counsel was claimed to be a placed advertisement in the Daily Times of Monday, the 11th day of September, 2000, the time purportedly stipulated for the sale of the property in dispute, is not in law admissible on the ground that it failed to satisfy the provision of Section 116 of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria 2004. The Section provides thus:
“The court shall presume the genuineness of every document purporting to be the official to Gazette of Nigeria or of a State or the Gazette of any part of the common wealth or to be a Newspaper or journal or to be a copy of the resolutions of the National Assembly printed by the Government printer, and of every document purporting to be a kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.”
The learned Counsel submitted that there is nothing on record to show that Exhibit “A” came from the custody of the Publisher of Exhibits “A” or the Register of Newspapers. Also that there is nothing on record to show that Exhibit “A” is a copy of the 11th day of September, 2000 Edition of Daily Times Newspaper it was purported to be. He referred to: RODERICK ONEH V. VERONICA OBI & ORS (199) 7 NWLR (Pt.611) page 487 at 499 where this Honourable Court held as follows:
“It is firmly established, that if a document is wrongly received in evidence before the trial court, an appellate court, has the inherent jurisdiction to exclude it, although counsel at the lower court did object to its going in”
On Exhibit “B” which is a receipt issued by the auctioneer that sold the property in dispute, the counsel referred to paragraphs 7 and 11 of the Amended Statement of Claim at page 41 of the record where the 1st Respondent pleaded as follows:
(i) “The 1st plaintiff avers that being satisfied with his findings as stated above, he contacted the advertised/appointed auctionee, Johnson Oluwaseyi Ajayi of 42, Oyemekun Road for conditions of sale.
(ii) The 1st plaintiff avers that immediately after he was declared to be the successful bidder with his offer of N7, 200,000.00 (One Million-Two Hundred Thousand Naira) through Owena Bank Draft with No. DD/24 No. 001719/424 (1662935) on 18th September, 2000 after which the said auctioneer issued the plaintiff with a receipt are pleaded and will be relied upon”
The counsel submitted that going by the pleading of the 1st Respondent, the receipt he pleaded is the receipt issued to him by Johnson Oluwaseyi Ajayi of 42, Oyemekun Road and did not anywhere in his pleading pleaded any receipt issued by “Johnson Oluwaseyi Ajayi, debt collector AND AUCTIONEER of 44 Adegbola Street, Akure,” and he did not anywhere in the record explain the dissimilarity between the receipt pleaded and the receipt tendered by him and admitted in evidence as Exhibit “B”.
The Counsel submitted that a party is bound to tender a document pleaded by him and cannot tender a document different from the one pleaded. He referred to the case of HASHIDU V. VOJE (2004) ALL FWLR (PT 228) PAGE 662 and 680 – 681 PARAGRAPHS H-A held thus:
“Where a party in any proceeding specifically pleaded certain documents to establish his case, he cannot be allowed during the trial to rely on other documents different from those specifically pleaded as the latin maxim, “expressio unius est exclusion alterius “applied.”
The counsel submitted that Exhibit “B” being different from the name and address of the auctioneer the 1st Respondent pleaded, is not admissible in law notwithstanding that it was admitted by consent of the learned counsel that represented the Appellant at that stage of the trial and urged the Court to so hold.
On Exhibits “C”, “D” and “E” which are Certificate of Statutory Right of Occupancy, Deed of Legal Mortgage and Deed of Assignment, the counsel argued that the three exhibits are public documents covered by section 109 (b) of the evidence Act and that the trial Judge wrongly admitted the mentioned three exhibits and held that at page 163 of the record that the exhibits are not public documents because the documents are original copies of duly registered copies of Certificate of Occupancy, Deed of Legal Mortgage, and Deed of Assignment respectively that came into the hands of a private person.
The counsel further submitted that sections 96 and 97 (i) (e) and (f) of the Evidence Act relied upon by the learned trial Judge at pages 161 and 162 of the record do not support his Lordship’s holding at page 163 of the record that once the original copies of registered documents came into the hands of a private person, the original copies seize to be public documents.
The Counsel argued that the provisions of Section 96 and 97 of the Evidence Act, do not make original of a public documents like Exhibits “C” “D” and “E” admissible. The counsel argued further that he is in disagreement with the trial Judge’s holding at page 162 lines 10 and 12 of the record that by the provision of Section 97 (e) of the Evidence Act, where the document is a public document, primary evidence of it can be used and that by Section 97 (0 only the Certified True Copies of it can be used or admitted as secondary evidence. He submitted that there is nothing in Sections 97 (e) and 97 (f) of the evidence that support the holdings of the learned trial judge.
The Counsel further submitted that Section 97 (e) of the Evidence Act provides that it is only the Certified True Copy of a public document that is admissible in law while Section 97 (f) talking about the original of a document that its Certified True Copy is permitted by the Evidence Act or any other law in force in Nigeria.
He referred to the cases of: ANATOGU V. IWEKA 11 (1995) 8 NWLR (PT 415) PAGE 547 at 571; and LAWSON v. AWFANI CONTINENTAL COMPANY NIG LTD (2000) FWLR (PT.109) PAGE 1736 AT 1757 – 1759 PARAGRAPH F-B where the court made it succinctly clear that only the Certified True Copies of public documents are admissible in evidence.
The counsel however submitted that in the event that this Honourable court holds that both the Original and Certified True Copies of Exhibits C, D, and E are admissible, that there are no foundation laid before Exhibits C, D, and E, were admitted by the lower court. Also that since the 1st Respondent is not the maker of the exhibits, the exhibits become documentary hearsay that cannot be attached any weight by any court of law. He referred to the case of ONIMOLE V. ADEFOLABI (2008) ALL FWLR (PT.438) PAGE 324 at 339 PARAGRAPH H-B
On Exhibits “I’, “J-J5”, K and “N” tendered by the 1st Respondent who was issued with subpoena ad testificandum, the learned counsel submitted that subpoena is defined in the Black’s Law Diction dry, 8th Edition at page 1467 as “writ commanding a person to appear before a court or other tribunal, subject to a penalty for failing to comply”. That the same dictionary defined subpoena ad testificandum as “a subpoena ordering a witness to appear and give testimony” while subpoena duces tecum is defined as a subpoena, ordering the witness to appear and to bring specified documents, records or things”
The learned counsel argued that PW 2 before the lower court was subpoenaed by the 1st Respondent via Exhibit ‘F’ which is subpoena ad testificandum to appear before the court and give testimony, that there is nothing on record to show that the PW2 was issued another subpoena apart from Exhibit “F”. Furthermore, that a party who wishes to command a witness to appear before a court or tribunal to give testimony and produce document in his custody is bound in law to issue such a witness both subpoena ad testifrcandum and subpoena duces tecum. That, it is surprising that PW2 who was subpoenaed through subpoena ad testificandum testified before the lower court and Exhibits “I”, ‘J-J5’, “k” and “N” were tendered and admitted through him by the lower court.
The counsel submitted that albeit the Exhibits referred to above were admitted without objection, the exhibits remain inadmissible since the exhibits are not admissible in law and it is the legal duty of the lower court to expunge it from its record but since the lower court failed to do this, this court is urged to do so.
He referred the court to the case of ONOCHIE V. ODOGWU (SUPRA) Finally on this issue, the learned counsel submitted that the consideration and weight given to the exhibits unjustifiably tilted the scale of justice of the lower court in favour of the Respondents and thereby occasioned miscarriage of justice against the Appellants. He therefore urged the court to expunge Exhibits “A”, “B”, “C”, “D”, “E”, “I”, “J-J5” and “N” and resolve this issue in favour of the Appellants.
On his own part, the learned counsel for the 1st Respondent submitted that it is not in dispute that the Appellants learned counsel did not object to the admissibility of any of the aforementioned documents as exhibits before the lower court.
He submitted that Exhibit ‘A’ which is an original copy of Daily Times Newspaper of 11th September, 2000 is relevant to the fact in issue and was pleaded in paragraph 5 of the Amended Statement of Claim. He referred to page 71 of the record. The appellants according to the Counsel neither denied the existence of the Daily Times Newspaper in Nigeria nor the publication of the notice of sale but only stated thus:
“Daily Times is an international art as the Daily Times is an epileptic newspaper that is not well circulated in Ekiti State in particular and in Nigeria in general.”(Page 63 of the record).
The counsel submitted that the publication of the notice of sale in Daily Times Newspaper of 11th September, 2000 was not in issue but what was in issue between the parties was whether the Newspaper was well circulated in Ekiti State and Nigeria. Also, that Section 116 of the Evidence Act is not applicable to the instant case because the said Newspaper was not tendered to prove its contents. Notably, that the requirement for certification was to the authenticity of a Newspaper is a requirement for the presumption of genuineness by Section 116 of the Evidence Act, that it is when the issue of proper custody is raised that would require such authentication from the National Library, More so, that Exhibit ‘A’ is relevant and admissible pursuant to Section 5 (a) and 6 of the Evidence Act, to show that adequate notice of sale was given by the auctioneer and in as much as its admissibility was not challenged before the lower court, it could not be challenged on appeal. He cited the case of ROZEN INVESTMENT LTD & ANOR V. NDIC (2007) ALL FWLR (PT.843) 823 at 852 – 3 PARAGRAPH C-A
The learned counsel submitted more that the lower court did not determine the issue of adequate notice in its judgment and there is no way that admissibility of Exhibit “A” could have occasioned a miscarriage of justice in this case.
On Exhibit “B” which is a receipt issued by the auctioneer that was engaged by the 2nd Respondent, that the document is legally admissible and relevant. Also, that the learned counsel to the appellants did not object to the tendering of same despite the purported minor discrepancies he observed in the pleading and evidence of the PW1.
He submitted that the direct oral evidence of PW1 on page 79 of the record to the effect that he purchased the mortgaged property for the sum of N1.2 Million is admissible and PW2, S.A. Awe, staff of the 2nd Respondent, in his evidence put the purchase price at N1.2 Million that there is no dispute as to the actual price the mortgaged property was sold. The counsel argued further that the minor discrepancy in the name of the auctioneer is of no moment as to upturn the decision of the lower court. That the difference between Johnson Oluwaseyi Ajayi and Johnson Oluwasuyi Ajayi can be described as a MISNORMER and the appellant’s learned counsel did not cross-examine the PW1 on this material point and this suggests that the discrepancy is not material and urged the court to so hold.
On Exhibit “C”, “D” and “E” which are Certificate of Statutory Right of Occupancy, Deed of Legal Mortgage and Deed of Assignment, the learned counsel submitted as follows:
Exhibit ‘C’ which is the original copy of the Certificate of Statutory Right of Occupancy issued in favour of Late Richard Ajisafe Olojede and that learned Appellant’s Counsel relied on Section 97 of the Evidence Act which deals with the categories of secondary evidence of public documents admissible in evidence. He argued that the learned counsel did not however cite and refer to the definition of public documents in the Evidence Act in order to demonstrate or show that Exhibits C, D, and E are indeed public documents, copy of which required certification to be admissible in evidence, Further that Section 109 of the Evidence Act defined public documents as follows:
109. The following documents are public documents:
(a) Documents forming acts or records of courts
(i) Of the sovereign authority
(ii) Of official bodies and tribunals and
(iii) Of public officers, legislature, judicial and executive, whether of Nigeria or elsewhere”.
Exhibit ‘C’ is an original copy of the Certificate of Occupancy issued in favour of Richard A. Olojede and for his private use and he is the only one entitled to the certificate and can make use of it as the owner, He therefore submitted that the document is for Richard A. Olojede’s private use and the said Richard was not a public officer when issued with the document. So the document can be tendered like any other private and secondary evidence. He referred to the case of ONIMISI UKANA V. COMMISSIONER OF PUBLIC B/S (1995) 8 NWLR (PT 416) 705 at PAGE 717-719
The learned counsel further submitted that Section 93 of the Evidence Act stipulates that the contents of documents may be proved either by privacy or secondary evidence and Section 97 (2) (e) of the Evidence Act only stipulates that in case of public documents, the only type of secondary evidence permissible is a Certified True Copy of the document and no other. Further down, that Exhibit ‘C’ was tendered to establish the fact that it was made and NOT to establish by evidence the truth of the contents. That Section 112 of the Evidence Act only made Certified True Copies of public documents admissible “in proof of the public documents or parts of the public documents of which they purport to be copies”. He submitted that the argument of the appellants’ Counsel, that Exhibit ‘A’ need be certified is untenable and same should be discountenanced.
On Exhibits “D” and “E”, he adopted his submissions on Exhibit ‘C’ that they are not public documents and are therefore admissible by virtue of Section 93 of the Evidence Act.
On Exhibits ‘I’, ‘J-J5’, ‘K’ and N, he submitted that the mere fact that subpoena ad testificandum was issued and served on PW2 did not debar PW2 from tendering any relevant document. He finally submitted that Exhibits “I”, “J” – “J5”, “K” and “N” are relevant and legally admissible and so he urged the court to resolve this issue in favour of the 1st Respondent.
The Counsel for the 2nd Respondent in his own response, submitted that the documents pleaded and tendered in the suit at the trial lower court are contained and referred to at pages79,80, 84 and 85 of the records.
And by paragraph 5 of the Amended Statement of Claim and paragraph 13 of further Amended Statement of defence, issue was joined on the extent of circulation of Daily Times i,e. Exhibit “A” and not whether the auction sale was advertised therein. That there is no dispute as to the fact of publication and Exhibit ‘A’ was duly and properly admitted in evidence.
On proper custody as in Section 116 of the Evidence Act, the Counsel submitted that it is not applicable to the admissibility of Exhibit ‘A’. Further, that the presumption raised by Section 116 of the Evidence Act in respect of the genuineness of the two sets of documents recognized by the said section and the said presumption is rebuttable. He argued further that by paragraphs 7 and 11, of the Amended Statement of Claim the plaintiff avers as follows:
i. The 1st plaintiff avers that being satisfied with his findings as stated above, he contacted the advertised/appointed auctioneer Johnson Oluwaseyi Ajayi of 42, Oyemekun Road for conditions of sale.
ii. The In plaintiff avers that immediately after he was declared to be successful bidder with his offer of N1,200,000.00 he paid the mortgage(sic) through its appointed auctioneer, the auctioned price of N1,200,000.00 (One Million Two Hundred Thousand Naira) through Owena Bank draft with No. DD/24, No.: 00171 9/424 (166 – 2935) on 18th September, 2000 after which the said auctioneer issued the plaintiff with a receipt. A copy of the bank draft and the receipt are pleaded and will be relied upon”.
The counsel submitted, that there is nothing in the above pleadings, that the receipt pleaded is receipt issued to him by Johnson Oluwaseyi Ajayi of 42, Oyemekun Road, Akure. The receipt pleaded in the matter is “a receipt” issued by the auctioneer and there is nothing in the above pleadings to show that the receipt issued to the 1st Respondent is the receipt in the name of Johnson Oluwaseyi Ajayi. More so, that the Appellants who had every opportunity to challenge and object to the admissibility of the receipt are now reading meanings to same. Their quarrel is the difference in the middle name, and the address. They are however not contesting the fact that a receipt was pleaded and the said receipt was issued in favour of the 1st Respondent setting forth the amount and purpose. That the 1st Respondent tendered the receipt he pleaded in his Amended Statement of Claim. The amount and the purpose are consistent with the pleadings and evidence on record. He therefore urged the court to retain the admissibility of the documents.
The Counsel submitted further that Exhibits “C”, “D” and “E” are public document which were not only pleaded but tendered without objection. While Exhibit ‘C’ is wholly prepared and issued by public officer, Exhibits “D” and “E” are registered by public officers. Exhibit “D” and “E” are public documents by virtue of their registration and the procurement of governor’s consent notwithstanding the fact that they are documents made between two private Persons.
He submitted that Exhibit ‘C’ is the original copy of the Certificate of Occupancy issued to Richard Oloyede by the then Ondo State Government and is admissible under Section 96 of the Evidence Act.
Also that Exhibit “D” and “E” are counterparts of the Deed of Legal Mortgage and Deed of Assignment and are admissible by virtue of Section 94 (3) of the Evidence Act and that the admissibility of the said documents does not require elaborate foundation once pleaded. Also that the Appellants have failed to inform the court the foundation required for the admissibility of the said Exhibits and there is nothing in Section 9(e) of the Evidence Act which makes the Certified True Copy of a public document only admissible.
Furthermore, the counsel argued that the objection of the Appellants to the admissibility of Exhibits ‘I’, ‘J-J5’ and ‘N’ borders on the competence of the plaintiff’s witness to tender same in evidence. The said witness gave evidence on subpoena and he tendered the subpoena (Exhibits F and F1). And that the competence of a party to tender a document which is admissible for all purposes goes to weight to be attached to the said document and not on the admissibility of same. He finally submitted that in the absence of objection from the Appellants to the admissibility of the said exhibits in law, the learned trial judge was right in admitting them in evidence.
RESOLUTION OF ISSUE FOUR:
It is a very clear principle of law that admissibility of a piece of evidence is different from the weight to be attached to it. In the case of HARUNA YUNUSA SAYEED & ANOR V. PATRICK IBRAHIM YAKOWA & ANOR (2012) LPEL – SC. 21/2012. The Supreme Court held thus:
“In MOTANYO V. ELINWA (1994) 7 NWLR (Part 356) 252 at 260 this court, Per kutigi, JSC (as he then was) emphasized the distinction in the following terms:
“The High Court therefore acted properly when it admitted the documents in evidence. It must be noted at once that the legal admissibility of a piece of evidence is one thing, while the weight the court would attach to such evidence after it has been admitted is quite another thing. Similarly, the competence of a particular person to give evidence in a particular proceeding is a different thing from what weight the court will give to the evidence of such a witness. In BUHARI VS INEC (2008) 19 NWLR (PART 1120) 246 this court, Per Tobi, JSC at PAGES 414-415 re-emphasized this distinction between the admissibility of a documentary evidence and the assessment of its probative value. At page 414, he said: “There is a clear dichotomy between admissibility of document and placing probative value on it. While admissibility is based on relevance, probative value depends not only on relevance but also on proof. An evidence has probative value if it tends to prove an issue.” An (sic) continuing at page 415, he said: “Second, the witnesses who tendered the documents were not the maker and so cannot be cross-examined on the contents of the documents.
As cross-examination plays a vital role in the truth searching process of evidence procured by examination-in-chief it relates to authenticity or veracity of the witness, a court of law is entitled not to place probative value on evidence which does not pass the test of cross-examinations… ” See also OSIGWELUM vs INEC (2011) 9 NWLR (PART 253) 425 at 451.’ Per Tabai, JSC (PP.23-25, PARAS F-A).
For easy reference, may I relist the documents in contention to wit:
Exhibit A:-Daily Times Newspaper of 11/9/2000, page 21 thereof.
Exhibit B:-Receipt issued by the auctioneer to the 1st Respondent.
Exhibit C:-Original Certificate of Occupancy
Exhibit D:-Original Copy of the legal Mortgage
Exhibit E:-Original Copy of the Deed of Assignment
Exhibit I:-Original Copy of the Valuation Report
Exhibit J-J5:-Original Copy of Letters of Demand
Exhibit K:- Statement of Account
Exhibit N:- Letter written by Late Richard Olojede’s Solicitor to the 2nd Respondent. See pages 79, 80, 84,85 of the Records of Appeal.
Having listed the documents as above, may I state my firm view that the fact that a document has been admitted in evidence; with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. In law of evidence, relevancy comes before weight. Relevancy which propels admissibility, is invoked by the trial judge immediately the document is tendered. At that stage, the judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage, the judge is involved in the evaluation of the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts. See: MUSA ABUBAKAR V. E.I CHUKS (2008) ALL FWLR (PT.408) 207 at 221 PARAS F-G.

More so, what controls admissibility of a document is relevancy and whether it was pleaded, once these are satisfied, the document or thing is admissible. See: THIRWELL V. OYEWUMI (1990) 4 NWLR (PT.144) 384: UMOGBAI V AIYEMHOBA (2002) ALL FWLR (PT.132) 192; TORTI V. UKPABI (1984) 1 SCNLR 214; NITEL PLC v. AYU (2008) ALL FWLR (PT.411) 904 at 918 PARAS C-D.
Having stated the above, I shall now go ahead to consider the above listed Exhibits as admitted by the learned trial judge.
On Exhibit ‘A’, which is Daily Times Newspaper of 11/9/2000 page 21 thereof, I wish to state that for a document of this nature to be presumed to be genuine, it must be proved by the party tendering it to have been produced from the proper custody of the person directed by law to keep it to show its genuineness. See Section 116 of the Evidence Act.
This Honourable Court in RODERICK ONEH V. VERONICA OBI & ORS (1999) 7 NWLR (PT.611) PAGE 487 at 499 held thus:
“By the provision of Section 116, a document such as Exhibit ‘F’ is admissible if produced from proper custody which in this case will be publishers of Newspapers or registrar of Newspapers.”
However, it has been held by our apex court that as long as proper custody of public documents is pleaded and are relevant, See: TORTI V UKPABI (1984) SC 370 at 392.
In the light of Section 116 of the Evidence Act, it is my firm view that presumption of genuineness of the document of this nature is the point here and not relevance and admissibility. The presumption in my opinion is a rebuttable one since evidence will still be led to prove the genuineness or otherwise. Therefore, the learned trial judge was in order in admitting Exhibit ‘A’ and attaching value to it since it is contained in the pleading of the parties. On Exhibit ‘B’, which is a receipt issued by the auctioneer that sold the property in dispute, it is a legal principle that for a document to be a receipt, it must be a document whereby the receipt or payment of money is acknowledged or expressed. See: ETAJATA & 2 ORS V. OLOGIBO & ANOR (2007) ALL FWLR (PT.386) 584 at 620, PARAS C-D.
The pleading of the 1st Respondent and the direct oral evidence of PW1 on page 79 of the record shows that he purchased the mortgaged property for the sum of N1.2 Million from the auctioneer, one ‘Johnson Oluwaseyi Ajayi’ of 42, Oyemekun Road, Akure. The crux of the Appellants’ argument here is that the 1st Respondent did not plead any receipt issued by “Johnson Oluwaseyi Ajayi Debt Collector and auctioneer of 44, Adegbola Street, Akure. It is clear from the records that it was only one receipt and that is Exhibit ‘B’ that was tendered during the trial and it was all to the effect that the 1st Respondent bought the auctioned mortgaged property and he was issued Exhibit ‘B’ as evidence of payment. I hold that the discrepancy in the name and address of the auctioneer is of no moment. It is an irregularity and does not make it irrelevant.
On Exhibits ‘C’, ‘D’ and ‘E’ which are Certificate of Statutory Right of Occupancy, Deed of Legal Mortgage and Deed of Assignment, the learned trial judge in his judgment at page 163 of the record admitted these Exhibits on the ground that they are not public documents because the documents are original copies of duly registered copies of Certificate of Occupancy, Deed of Legal Mortgage, and Deed of Assignment respectively, that came into the hands of a private person. Sections 96 and 97(1)(e) and (f) of the Evidence Act with due respect, are not supportive of this holding of the learned trial judge at page 163 of the record. A community reading of Sections 96 and 97 of the Evidence Act do not make originals of public documents like Exhibits ‘C’, ‘D’, ‘E’ admissible.
Section 97(e) of the Evidence Act provides that it is only the Certified True Copy of a public document that is admissible in law while Section 97(f) of the Act is in respect of original of a document that it is certified true copy is permitted by the Act or any other law in force in Nigeria, to be given in evidence.
At this point, one may ask what constitutes a public document?
Public documents are:
(a) Documents forming the acts or records of the acts:
(i) of the sovereign authority;
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;
(b) Public records kept in Nigeria of private documents.
See: SECTION 109 OF EVIDENCE ACT.
Thus, Exhibit ‘C’, ‘D’ and ‘E’ are public documents by virtue of the above provision of the Evidence Act and it is the Certified True Copies that are admissible although they are relevant,
The Appellants’ contention against the admissibility of Exhibits I, J-J5, K and N borders on the competence of PW2 to tender the said Exhibits in evidence. It will be recalled that the said witness gave evidence on subpoena and he tendered the subpoena as Exhibits ‘F’ and ‘F1’, I state here that the competence of a party to tender a document which is admissible for all purposes, goes to weight to be attached to the said document and not on the admissibility of same. It is my firm view that when a witness is summoned by an order of a court to appear and give evidence in a suit, such a witness is not prohibited from tendering relevant documents provided that such documents although may not have been pleaded but facts in respect of the documents must have been pleaded.
See: ALHAJI BABATUNDE THANNI & ANOR V. SEBALEMOTU SAIBU & ORS (1977) 2 SC 89 at 114; UAC LTD V. SAKA OWOADE, 13 WACA 207; IPINLAIYE V. OLUTOKUN (1996) 6 SCNJ 74 at 87.
Furthermore, in cross-examination, it is proper to receive a document in evidence even though not covered by pleadings in order to contradict witness. See: IPINLAIYE V OLUTOKUN (SUPRA) SECTIONS 199 209 & 210 EVIDENCE ACT.
On the whole, in respect of this issue, I wish to state it categorically clear that it is incumbent and it is a duty imposed on a party/his counsel to object immediately where and when inadmissible evidence is produced in evidence. Where such other party or opponent fails or neglects to object to its admissibility at the trial, he cannot thereafter object to its admissibility. Moreover, where the evidence complained of is admissible under certain conditions and the opposing party fails to object or by implication consented to its admissibility or the evidence was properly used for the purpose of cross-examination, notwithstanding that the condition precedent for its admissibility is not complied with, he cannot be heard to raise objection to its admissibility on appeal, See: AKUNNE V. EKWUNO (1952) 14 WACA 59; OLUKADE V. ALADE (1976) ALL NLR 56 at 61-62; ETIM V. EKPE (1983) 3 SC 12 at 36-37; AGAGU V. MIMIKO (2009) ALL FWLR (PT.462) 1122 at 1170 -1171 PARAS D-B.
In view of the above, I am obliged to resolve this issue against the Appellants.
ISSUE FIVE:
Considering the totality of evidence led and exhibits tendered whether the judgment of the learned trial judge was not wrong and against the weight of evidence adduced before him.
The learned counsel for the Appellants submitted on this issue that an omnibus ground of appeal implies that the judgment of the trial court cannot be supported by the weight of the evidence adduced by the successful party, or the trial judge either wrongly accepted, evidence or the inference he drew, or conclusion he reached based on the accepted evidence cannot be justified. That an omnibus ground also implies that there is no evidence which if accepted would support the finding of the trial court. He referred to the case of ENGINEER EMMANUEL OSOLU v. ENGINEER UZODINMA OSOLU & ORS 14 NSCQR PT.II 750 at 776.
The counsel submitted that the reliefs of the Respondent before the lower court are as contained at page 43-46 of the Amended Statement of Claim dated the 18th January, 2006 and that it is trite that he who asserts must prove and it is incumbent on the 1st Respondent to prove all the averments in the said Amended Statement of Claim (pages 39-46 of the record) before he can be entitled to the judgment of the lower court and the Respondent did not discharge the onus placed on him to warrant the judgment of the lower court being delivered in his favour.
He further submitted that there is no credible evidence on the record of appeal to show that the property in dispute was sold by auction by the 2nd Respondent’s auctioneer to the 1st Respondent. That there is also no credible evidence on record that anybody including the officer of the 2nd Respondent witnessed the sale of the property. More so, the auctioneer who purportedly auctioned the property and who is a vital witness in the absence of any other person who witnessed the auction was not called as a witness. The PW2 who was subpoenaed adduced evidence to the fact that he was not instrumental to sale of the property and those that he mentioned that knew about the loan taken by the deceased husband of the 1st Appellant and the purported sale of the property in dispute, were not called as witnesses.
He submitted further that the evidence of 1st Respondent on pages 78- 88 of the record of appeal did not prove that the property was sold through auction or sold at all. The letter written by the 2nd Respondent’s lawyer commissioning the auctioneer to sell was not tendered.
He submitted also that the Appellants particularly the 1st Appellant in her evidence at pages 101 of the record and in their pleadings denied and rebutted the fact that the property in dispute was sold through auction or sold at all. In fact, that the 1st Appellant contended that no notice was pasted on the house or anywhere else. He referred to page 101 of the record, The 1st Appellant also at page 102 of the record said that she knew nothing about the sale of the property in dispute and that it was somebody else that bought the house and that they just wanted to use him.” The Appellant was not cross-examined on the issue.
He submitted that the learned trial judge as an arbiter did not place both the evidence of the 1st Respondent and his witness on the one hand and the evidence of the Appellants on the other hand on the imaginary scale of justice and determine where the scale of justice tilts and there is no where in the record where the learned trial judge properly evaluated the evidence of witnesses in the case to arrive at his conclusion.
It was further argued that a judge as an arbiter in deciding whether a certain set of facts given in evidence by the other party after a summary of the facts must put the two sets of facts on an imaginary scale weight one against the other, then decide upon the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the appropriate law to it, if that law supports it bearing in mind the cause of action, he will then find for the plaintiff. If not, the plaintiff’s claim will be dismissed.
It was also argued that before a judge can find for the plaintiff the totality of the evidence must be considered and the judge must weigh the conflicting evidence adduced by both parties and then draw his conclusion. It was submitted that the learned trial judge did not weigh the evidence adduced by both the Appellants and the Respondents on the imaginary scale of justice before coming to a conclusion that the Respondents’ case succeeded. That the evaluation of evidence done by the learned trial judge is on whether the 1st Appellant’s husband, was owing the bank as at the time the property in dispute was purportedly sold and not whether the property was sold through auction or sold at all forgetting the fact that the case before it was not a case of setting aside the sale of the property in dispute.
On the whole, this court was prayed to allow this appeal and reverse the decision of the trial lower court which was reached, without justification in view of the evidence before the court.
On his own part, the counsel for the 1st Respondent prayed this court not to interfere with the findings of the lower court. That it is a trite law that an appellate court should not interfere with the findings of the trial court unless the findings are not supported by pleadings and/or evidence or are perverse. He referred to the case of NWADIOGBU V. NNADOZIE (2001)12 NWLR (PT727) 315 at 330 PARAS G-H, 335 PARAS B-C.
He submitted that the learned trial judge properly evaluated the evidence before the court before arriving at the decision. Further, that PW1 gave evidence on pages 78-82 of the record to the effect that there was a public auction sale whereat he emerged the highest bidder and he paid the sum of N1.2 million and a deed of assignment was executed between him and the 2nd Respondent and he tendered the following documents:
(i) Daily Times Newspaper of 11/9/2000
(ii) The auctioneer’s receipt
(iii) Certificate of Occupancy in respect of the property in dispute
(iv) Deed of legal mortgage
(v) Deed of Assignment
It was submitted that the evidence of PW2 above was not challenged under cross-examination by the Appellants’ counsel. Also, PW2 gave evidence and acknowledged the sale of the property by the 2nd Respondent to the 1st Respondent by corroborating the evidence of PW1 in every material particular to this case. He also tendered a copy of the letter written by one Olumide Olojede a representative of late Richard Olojede’s family to the 2nd Respondent, making a proposal for the repayment of Late Richard Olojede’s debt. The letter was tendered as Exhibit ‘L’ and page 85 of the record was referred to. The Appellant’s counsel was argued to have supported the case of the Respondents under cross-examination of the PW2 (pages 85-87 of the record).
It was submitted that what the first defence witness only had to say was that the 2nd Respondent did not give a satisfactory statement of account of her late father, but she did not dispute the fact that their late father was indebted to the 2nd Respondent. That it is trite law that a dispute as to volume of indebtedness is not a valid ground known to law such as can be relied upon to prohibit a mortgagee from exercising his right of sale. The case of AYANLERE V. F.M.B (NIG) LTD (1998) 11 NWLR (PT.775) 621 at 628 PARAS B-C was referred to.
It was also submitted that the 1st defence witness on page 100 of the record confirmed the signature of his late father on Exhibit ‘D’ as the mortgager and the 2nd defence witness under cross-examination on page 103 of the record also confirmed the signature of her late husband on Exhibit ‘D’ as the mortgager. Also, Olumide Olojede who was the 3rd defence witness on page 110 of the record, according to him, he was the first son of his late father, Richard Olojede he acknowledged that he was the author of Exhibit ‘L’. The learned counsel finally submitted that the learned trial judge properly evaluated the evidence before the court in arriving at the decision and need not be disturbed by this court. He urged the court to resolve this issue in favour of the 1st Respondent and also dismiss the appeal and affirm the judgment of the lower court. The learned counsel for the 2nd Respondent submitted on this issue that the learned trial judge properly evaluated the evidence and took pains to make findings of fact in respect of the under listed issues that arose from the pleadings of the parties and the evidence led by both parties in support of same:
(i) The indebtedness of Richard Olojede to the 2nd Respondent;
(ii) The redemption of the mortgage or otherwise;
(iii) The auction sale, and
(iv) The various exhibits tendered.
The counsel submitted that it is trite that an appellate court will not tamper with the findings of fact made by a trial court and that the reason for this principle of law is obvious as the trial judge had a rare advantage of hearing the witnesses, and assess their demeanors. He referred to SALEH V. BANK OF THE NORTH LTD (2006) ALL FWLR (PT310) 1600.
Further, he submitted that except the findings of the trial court is not supported by evidence or findings are supported with inadmissible evidence in law or the findings are perverse, the appellate court cannot interfere. He referred to the cases of OGIBU V ANI (1994) 7 NWLR (PT.355) 128 OGBECHIE V. ONOCHIE (1985) 2 NWLR (PT.23) 484.
The learned counsel submitted that the 1st Respondent and his witness gave impeccable evidence of the indebtedness of Richard Olojede and the creation of a legal mortgage over the property, the subject matter of this matter, his inability to redeem the mortgage prior to his death, the sale of the mortgaged property to the 1st Respondent and the various attempts to takeover possession from the 1st Appellant. That the evidence of 1st Respondent and his witness on these issues remained uncontroverted. The 2nd Appellant confirmed that she does not know when her father got the loan but knew that her father was doing business with U.B.A. That she got confirmation from the father that he was owing U.B.A and advised her father to sell some of his properties. She never shed light on the type of properties sold by her father, the date and amount of sale and the amount paid by his father to the 2nd Respondent but later learnt from the same father that he had paid. He referred to page 98 of the records. He urged the court to resolve this issue in favour of the 2nd Respondent and prayed the court to disallow the appeal and affirm the judgment of the lower court.
RESOLUTION OF ISSUE FIVE:
The reliefs of the Respondent before the lower court and as contained at page 43-46 of the Amended Statement of Claim dated the 18th day of January, 2006.
It is trite that he who asserts must prove and in this appeal, it is incumbent on the 1st Respondent who was the plaintiff at the trial lower court to prove all the averments and the said Amended Statement of Claim before he can be entitled to the judgment of the lower court.

Before proceeding to resolve this issue, may I state that a declaratory judgment is a remedy for the determination of a justifiable controversy where the plaintiff is in doubt as to his legal right. It is also a binding adjudication of the rights and status of litigants even though no consequential relief is awarded. See: ODUOYE V. LAWAL (2003) 3 NWLR (PT.807) 467. PARAS F.G.
The power to make binding declarations of right is discretionary and wide, so it is to be liberally exercised and exercised judicially and judiciously depending on the fact and circumstances of each case. See: ODUOYE V. LAWAL (SUPRA) at 464. PARAS A-G: IBENEWEKA V. EGBUNAM (1964) l WLR 219; ELEONU V. EKWOABA (1998) 12 NWLR (PT.578) 320; FASANYA V. ADEKOYA (2000) 15 NWLR (Pt.689) 22.

Furthermore, it is trite law that an appellate court should not interfere with the findings of the trial court unless the findings are not supported by pleadings and/or evidence or are perverse. See: NWADIOGBU V. NWADOZIE (2001) 12 NWLR (PT.727) 315 at 330 PARAS G-H, 335 PARAS B-C.
PW1 gave evidence on pages 78-82 of the record to the effect that there was a public auction sale where he emerged the highest bidder. He then paid the sum of N1.2 million and a Deed of Assignment was executed between him and the 2nd Respondent. He tendered the following documents:
(i) Daily Times Newspaper of 11/9/2000
(ii) The auctioneer’s receipt
(iii) Certificate of Occupancy in respect of the property in dispute
(iv) Deed of legal mortgage
(v) Deed of Assignment
PW2 also gave evidence and acknowledge the sale of the property by the 2nd Respondent to the 1st Respondent. He tendered a copy of letter written by one Olumide Olojede a representative of Late Richard Olojede’s family to the 2nd Respondent making a proposal for the payment of late Richard Olojede’s debt.
The letter was tendered and admitted as Exhibit ‘L’. See page 85 of the record.
DW1 on her part, only stated that the 2nd Respondent did not give a satisfactory statement of account of her late father, but she did not dispute the fact that their late father was indebted to the 2nd Respondent. See pages 99-100 of the record.
DW1 and DW2 on pages 100 and 103 respectively confirmed the signature of the Late Richard Olojede on Exhibit ‘D’. DW3, (one Olumide Olojede) on page 110 of the record stated that he was the first son of the late Richard Olojede and he acknowledged being the author of Exhibit ‘L’.
On evidence of DW1 at page 99 on the non-satisfactory nature of the statement of account, it is my view that provided a loan is established to have been borrowed giving rise to a debt now being owed, a dispute as to volume of indebtedness is a non valid ground known to law to prohibit a mortgage from exercising his right of sale. See: AYANLERE V. F.M.B (NIG) LTD (1998) 11 NWLR (PT.775) 621 at 628 PARAS B-C.
In view of the above, I hold that the findings of facts by the trial court were based on the evidence before the court except relief 5(i) and (iii) granted and awarded by the learned trial judge. I am therefore obliged to resolve this issue partly in favour of the Appellants.
Finally, I hold that from the resolutions of the issues above that this appeal scales through, in terms of issue one and fails in terms of other issues.
In sum, the judgment of the lower court delivered on 14th May, 2007 is hereby partially affirmed to the extent that the Appellants are not in any way liable to pay rent nor mesne profits to the first Respondent, nor any monetary claim except the claim for possession of the said property in dispute. The Appellants are accordingly given six (6) months to vacate and deliver up possession of the said the building/property situate, lying and being at Olojede Close, off Ikere Road, Ado-Ekiti mortgaged to 2nd Plaintiff vide a legal mortgage registered as No. 30 at page 30 in volume 327 at the Lands Registry, Akure covered by a Certificate of Occupancy registered as No.55 at page 55 in volume 250 of the Lands Registry Office, Akure now covered by a Deed of Assignment dated 3rd November, 2000 and registered on 20th November, 2000 as No.32 at page 32 in volume 1 at Lands Registry office at Ado-Ekiti to the 1st Respondent from the date hereof.
There is no order as to cost.

CHIDI NWAOMA UWA, J.C.A.: I had the advantage of reading before now the draft of the judgment delivered by my learned brother Sotonye Denton West, JCA.
The issues have been dealt with in detail by his Lordship. I agree with his reasoning and conclusion arrived at and have nothing to add.
I also allow the appeal in part and abide by the order made as to costs in the leading judgment.

TOM SHAIBU YAKUBU, J.C.A.: My Lord, SOTONYE DENTON WEST, JCA., had obliged me with the draft of the judgment of this court which he has just delivered. All the issues in the appeal were comprehensively and painstakingly addressed in the said judgment to my satisfaction, such that I have nothing more useful to add to it.
I, therefore agree entirely with the reasoning and conclusion reached by my Lord that the appeal succeeded only in respect of Issue 1 but failed woefully on issues 2, 3, 4 and 5.
I abide by the consequential order in respect of the delivery up of possession of the property, the subject matter of this appeal by the appellants to the 1st respondent within six (6) months and the order as to costs contained in the lead judgment, accordingly.

Appearances

Adeboye Sobahjo, Esq.,For Appellant

AND

Gbenga Alabadan, Esq., with Jesumiseun Adewunmi, Esq., for the Respondents.
Tope Kolawole, Esq., for the 2nd Respondent.For Respondent