OLANREWAJU OJUAWO v. UNITED BANK FOR AFRICA PLC ANOR
(2013)LCN/6660(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of December, 2013
CA/I/176/2010
RATIO
CONSIDERATIONS IN SETTING ASIDE AN AUCTION SALE
By way of a little contribution, I think it is safe to say that when an auction sale has been carried out, the court will be very weary to set aside the sale where the court is satisfied as to the following facts:
- That the mortgagor did mortgage the property in dispute to the mortgagee;
- The loan or any installment has become payable;
- Notice of demand of repayment of the loan by the mortgagor has been made by the mortgagee;
- The power of sale under the mortgage agreement has arisen;
- A pre-condition of notice of sale is given to the mortgagor by the mortgagee or his agent;
- The power of sale was exercised and the title in the property passed to the purchaser.
See Gbadamosi v. Kabo Travel Ltd. (2000) 8 NWLR Pt. 668 part 243; Oguchi v. FMB (Nig.) Ltd. (1990) 6 NWLR part 156 p.330; Bank of the North v. Alhaji Mumuni Muri (1998) 2 NWLR part 536 p.153; Akande v. FBN (2004) 8 NWLR PART 875 P. 318; Agboola v. UBA Plc. 2 Ors (2011) LPELR-9353 (SC). Per OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
OLANREWAJU OJUAWO
(Substituted) Appellant(s)
AND
1. UNITED BANK FOR AFRICA PLC
2. KUNLE OYEDELE Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the leading Judgment): This appeal is against the judgment of the Oyo State High Court, presided over by Afolabi Adeniran, J. delivered on 22nd July, 2005. Wherein, the trial court dismissed the claim of the plaintiff now Appellant. The Appellant naturally dissatisfied with the judgment, appealed against same on 22nd day of August, 2005; vide his Notice of Appeal containing Nine (9) Grounds of appeal.
The background facts are that, the plaintiff in the lower court was a guarantor to his late wife who took a loan from the 1st defendant for the sum of N200,000.00, mortgaged his landed property at Olubadan Avenue Oluyole Estate, Ibadan. The borrower and the mortgagor were living in Ibadan. The debtor died in 1991. After the death of his wife, the plaintiff (her husband) made inquiry as to his wife’s indebtedness to the then 1st defendant (now 1st respondent) at her branch office at Molete, Ibadan but, he alleged that he did not receive any useful information after which he wrote a letter showing his intention to settle the debt. The 1st defendant then wrote a letter to the plaintiff informing him that she had sold the mortgaged property; the letter was dated 30th November, 1992. The plaintiff/appellant alleged that the property was secretly sold in bad faith and not by public auction. It was alleged that the 1st defendant with a view to deceive the plaintiff/appellant published the Notice of Auction sale of mortgaged property in the Herald Newspaper published in Kwara State, whereas Daily Sketch and Tribune Newspapers were published in Ibadan where the mortgaged property is, so also where the debtor and mortgagor were resident. The 1st defendant was restrained by the court from transferring title in respect of the mortgaged property to the 2nd defendant. It was alleged that the 2nd defendant swore to an Affidavit that he bought the property personally, but in the Statement of Defence stated that one Oyewumi bought the house for him at Public Auction on the 2nd November, 1992.
From the appellant’s nine grounds of Appeal, five (5) issues were distilled for the determination of the appeal. They are as follows:
“1. Was the learned trial Acting Chief Judge right in dismissing the plaintiff case which remained unchallenged and on the face of many contradictions and unpleaded facts in the defendants evidence (Grounds 1, 2, 5 and 9)
2. Was the learned trial Acting chief judge right in not entering judgment for the plaintiff when the second defendant who alleged to have purchased the mortgaged property by public auction did not give evidence to buttress his averment in his pleadings (Grounds 3 and 8)
3. Whether the mortgaged property was validly sold by the 1st defendant to the 2nd defendant without obtaining prior Governor’s consent (Ground 5) in accordance with Section 22 of LAND USE ACT and paragraph 18 of the Mortgaged Deed Exhibit ‘A’.
4. Was the learned trial Acting Chief Judge right in not considering the strict observance of the Auctioneers Law in respect of the sale by Public Auction as alleged in this case (Ground 7)
5. Whether the learned trial Acting Chief Judge right in not holding that the Mortgaged property was sold in bad faith, by private treaty and by collusion (Ground 4)”.
On his part, the 1st respondent did not formulate any issue for the determination of the appeal.
On the 2nd respondent’s part, five (5) issues were raised for determination by this court.
“(i) Whether in view of the pleadings and evidence the learned trial judge was right in dismissing the plaintiff’s claim against the defendants.
(Covers grounds 1, 2, 6 and 9).
(ii) Whether a party who has not testified personally but called evidence in support of his pleadings is entitled to have a claim not made out against him dismissed.
(Covers grounds 3 and 8).
(iii) Whether it is necessary to obtain the Governor’s consent before an auction sale can be carried out in respect of mortgaged property.
(Covers ground 5).
(iv) Whether there was compliance with Section 19, 20 and 21, of the auctioneer’s law, in the sale of the property in dispute. (Covers ground 7).
(v) Whether the learned trial judge was right in holding that the property in dispute was sold at a public auction.”
(Covers ground 4).
In arguing the appeal, the learned counsel to the appellant, Chief Niyi Akintola adopted and relied on his brief of argument dated 28th July, 2010, filed on 2nd August, 2010. The learned counsel alleged that the sale of the mortgaged property was by private treaty and not by public auction as alleged by the respondents. It was argued that the plaintiff gave evidence showing that no public auction was conducted in the premises of the mortgaged property and that no auction notices were pasted around the mortgaged premises or anywhere else in Ibadan where the property is located. PW4, one Major Florence Tinuola Olumo a retired Major in the Nigerian Army who was a tenant gave evidence to the effect that no auction sate took place in the house in question which she lived in, on 2nd November, 1992 or at any other time. She also gave evidence that no auction notice was pasted on the walls of the mortgaged property or in the area as alleged by the 1st Respondent as defendant.
It was argued that the evidence of the PW4 was not challenged, as she was never cross examined, which is fatal to the defence.
It was further argued that no public auction was conducted on 2nd November, 1992 in the premises of the mortgaged property nor auction notices pasted anywhere in Ibadan to that effect, also that the 2nd defendant failed to give evidence in support of his statement of defence, in which the evidence would go to no issue. It was argued that the pleadings must be supported by evidence.
It was submitted that the purported sale to the 2nd defendant now respondent was by private contract which Auctioneers Law Cap. 10 Laws of Oyo State 1978 forbade, that is, Section 24. It was the contention of the learned counsel that there was no auction sale carried out on 2nd November, 1992 as alleged. It was argued that there were discrepancies as to the type of building auctioned from the evidence of the defence witnesses and the 1st defendant the auctioneer. It was argued that there were contradictions as to who actually paid for the auctioned property, when it was auctioned and how much it was auctioned for.
On the second issue, it was argued that the 2nd respondent pleaded in paragraphs 3 and 4 of his statement of defence at page 134 of the printed records that he was outside the country when the auction sale took place, but asked Ojewumi and Co. to purchase any available property for him while in Exhibit ‘G3’ he swore to an affidavit that he bought the property and traveled thereafter. It was argued that the learned trial judge ought to have taken these contradictions into consideration in arriving at his decision. It was argued that averments in pleadings is not evidence and cannot be construed as such, see, HYACINTH NWACHUKWU NZERIBE v. DARE ENGINEERING CO. LTD. (1994) 9 SCNJ P. 161 at P. 172. And AJIKAWO v. ANSALDO NIG. LTD (1991) 2 NWLR (Pt. 173) P. 359 at p. 376.
On the appellant’s issue three, it was submitted that the purported sale of the mortgaged property by the 1st respondent to the 2nd respondent is null and void in that no Governor’s consent was obtained. Further, that the trial court did not properly apply Section 22 of the Land Use Act which states that, no alienation; transfer or sale of any land subjected to Right of occupancy without the Governor’s consent first had and obtained is valid. The purported sale was argued to have contravened Sections 22 and 26 of the Land Use Act and paragraph 18 of the Deed of Legal Mortgage Exhibit ‘A’ in that what took place was not a mere agreement, but a sale.
On his issue four, it was submitted that the Auctioneer who testified as DW2 failed to comply with Section 20 of the Auctioneers Law CAP 10, Laws of Oyo State by failing to produce a complete account of the sale verified on oath which he delivered to the Secretary of the Local Government, where the property is situated, specifying the price that was obtained for the sate. Further, that his failure to produce the papers sent to the Secretary of South West Local Government, Ibadan, Oyo State where the mortgaged property is, is a pointer that no Public Auction took place on 2nd November, 1992 as claimed by the defendants. It was argued that Exhibit ‘G3’ proved that the said mortgaged property was sold by private contract.
On his issue five, it was contended by the learned counsel to the appellant that the learned trial judge failed in his duty to consider whether the sale of the mortgaged property was validly carried out or not and failed to evaluate the evidence before the court. It was also alleged that the mortgaged property was not sold in good faith. It was argued that it was in evidence in the trial court that the Manager of Molete Branch of the 1st Defendant was relieved of his post and his appointment terminated, showing that the sale of the mortgaged property was by private arrangement. It was concluded that the trial court was wrong to have held that the evidence adduced by the plaintiff is not sufficient to establish any fraud or collision, when it is the law that evidence regarding low price is evidence of fraud, see, LAGOS METAL INDUSTRIES v. LAGUNJU (1966) NMLR P.70.
In response, the learned counsel to the 1st respondent Tomilade Adeniyi (Miss) for the 1st respondent did not formulate any issue but responded in the order the appellant argued his issues.
On issue one, it was submitted that the evidence of Tinuota Olumo should not be relied upon; as she was interested in buying the property she had occupied since 1985, but did not succeed in doing so. It was argued that the type of building and the amount paid were not pleaded but were issues that were raised in course of trial.
It was submitted that the 2nd defendant need not testify as long as he is satisfied with the evidence of the witnesses called, see, KOPEK CONSTRUCTION LTD. v. EKINSOLA (2010) 1 SCM 86 at 116 and SECTION 179 (1)(2) OF THE EVIDENCE ACT, 1990. Further, that the DW1, Mr. Bambe Samuel joined the 1st defendant bank in 1998 and would have access to the records of his employers, see, SALEH v. BANK OF THE NORTH (2006) 3 SCM, 195. It was contended that the time of sale and date of appointment were not raised in the trial court.
Further, that the plaintiff had testified that, he was based in Lagos and Ibadan and even though the Herald Newspaper is a National Newspaper published in Kwara, it is read all over the country, the argument of the learned appellant’s counsel was said to be baseless that the publication should have been daily Sketch or Tribune published in Ibadan.
It was submitted that letters of demand were written to the appellant, Exhibits ‘C’ to ‘C3’ and also Exhibits ‘E’ and ‘E1’, before the death of his wife without any response from any or both of them. It was submitted that the appellant visited the 1st Respondent after the property had been sold before he wrote Exhibit ‘B’.
Issues 2, 3 and 4 were argued together. It was submitted by the learned counsel that all the conditions required for the sale of a mortgaged property, were met before the sale, see, GBADAMOSI & ORS v. KABO TRAVELS LTD and ORS (2000) 8 NWLR (Pt. 668) 243 at PAGE 274; BANK OF THE NORTH v. MURI (1998) 2 NWLR (Pt. 536) 153 at 175 and OGUCHI v. FEDERAL MORTGAGE BANK (1990) 6 NWLR (Pt. 150) 330 at 343. It was the contention of the learned counsel that the Governor’s consent was not required in the present circumstances, see, SAVANNAH BANK LTD v. AJILO (1999) 1 NWLR (Pt. 97) 324 PARAGRAPH 510. Further, that the auctioneer complied with the law. It was also argued that the appellant who complained about the amount the property was sold for did not give evidence as to the value of the property as at the time of sale, see EKAETE v. NIGERIAN HOUSING DEVELOPMENT SOCIETY LIMITED & ANOR (1973) 6 S.C. 183 at 189.
Issue five was on evaluation of evidence by the trial court, which was faulted by the appellant. We were urged to dismiss the appeal and affirm the judgment of the trial court.
The learned counsel to the 2nd Respondent Kazeem A. Gbadamosi Esq. with Phillips B. D. Esq. in response adopted and relied on his brief of argument dated and filed on 7/12/12 in urging us to dismiss the appeal.
On his first issue, it was submitted that DW1 – Bamise Samuel a Recovery Officer, at page 113B, lines 9-20 gave evidence in respect of Exhibits ‘C’ – ‘C5’ to show the nonchalant attitude of the appellant following which the property was sold at Public Auction for the sum of N305,000.00 after advertisement in the Herald Newspaper a year after the death of the customer, the appellant’s wife. The auction Notice and the herald Newspaper were admitted in Evidence as Exhibits ‘D’ and ‘D2’, page 113D, lines 1-3 of the printed records. It was argued that the 2nd defendant was the highest bidder that bought the property. It was submitted that all the necessary conditions were fulfilled before the property was sold at a public auction to the 2nd respondent, through his agent Makanjuola Olatunji Ojewumi, see, ACB LTD v. IHEKWOABA (2003) 16 NWLR (Pt. 846) at 249, 265, 269-271.
On issue two, it was argued that there is no rule of law or practice that stipulates that a party must testify personally in a civil suit, as long as he dislodges the claim of the opposing party through his witnesses. It was argued that the, two witnesses called by the 2nd respondent were enough to show that the property was purchased at a public auction conducted on 2/11/12.
On issue three, it was argued that the appellant was granted Exhibit ‘G’ by the trial court, at the inception of this suit that is an interim injunction to prevent the 1st respondent from perfecting the title for the 2nd respondent pending determination of the Motion on Notice, page 14 of the printed records. It was argued that by the application, the appellant had acknowledged the sale of his property by auction sale.
On the fourth issue, it was the contention of the learned counsel to the 2nd respondent that the Appellant did not make out non-compliance with post auction sale requirement in the laws of Oyo State a ground to challenge the auction sale. It was submitted that no issue was raised nor pleaded challenging the auctioneer’s licence to carry out the auction.
On the fifth and last issue, it was submitted that the appellant’s issue has nothing to do with ground 4 of the Notice of Appeal. The learned counsel to the 2nd respondent reargued his submissions in respect of issues 1-4. We were urged to dismiss the fifth issue as well as ground 4 of the Notice of Appeal and uphold the judgment of the trial court.
It is observed that the 1st Respondent did not raise any issue(s) for, determination, the 1st respondent would be deemed to have adopted those formulated by the appellant in his brief which seems to be the sequence in which the arguments were headed in the 1st respondent’s brief of argument, see, AGBAI v. OKAGBUE (1991) 7 NWLR (Pt. 204) 391 at PAGES 421-422 and AYINLA v. ADISA (1992) 7 NWLR (Pt. 255) 566 at 572.
From the issues formulated by the parties I can identify a sole issue for the determination of this appeal, that is:
“Whether the mortgaged property was validly sold by the 1st defendant to the 2nd defendant and was the trial court right in dismissing the plaintiff’s case.”
The appellant had alleged that the mortgaged property was sold by private treaty and not public auction on 2nd November, 1992 in the premises of the mortgaged property in his pleadings and evidence before the trial court. In paragraphs 25, 29-31 of the Amended Statement of claim, the appellant averred that the 1st respondent was in breach of the terms of the mortgage Deed and that he was not notified of the sale of the property in question. Further, in paragraph 27 he enumerated the Newspapers he read and in paragraph 28 emphasised that there was no publication, (page 97 of the printed records). The PW4 (Major Florence Tinuola Olumo (Rtd) a tenant that lived in the building from 1985 said she was not aware of any auction sale in the premises on that day, that is 2/11/92.
In the defendants’ amended statement of defence and counter-claim, the respondents in paragraph 11 pleaded the letter they wrote to the appellant informing him that the property would be sold if he did not pay up the amount due on his late wife’s account and in paragraph 13 pleaded the 1st respondent’s auctioneer’s letter sent by post to the appellant. In paragraph 14, as a result of the letter, it was pleaded that the appellant visited the auctioneer in Lagos and in Paragraph 15 that the sale was advertised in The Herald Newspaper of 26th October, 1992 and that auction Notices were pasted on the walls of the property to be sold and other places in Ibadan.
The original plaintiff Chief Tiamiyu Ojuawo, PW5 who mortgaged his property to secure a loan for his wife who died in 1991, testified that he did not see any Notice pasted on the walls of the property but, the witness did agree that even though he restricted his Newspaper reading to only the Tribune, he operated his office between Lagos and Ibadan, Lagos was his base. It was not disputed that even though The Herald Newspaper was published in Kwara State, it is a National Newspaper read all over the country, see, paragraph 6 of the Appellant’s reply to the Statement of Defence of the 2nd defendant, page 137 of the printed records. This clearly shows that the Herald Newspaper is circulated not only in Lagos, but also in Ibadan and the rest of the Nation, which covered the location of the property in Ibadan that was auctioned.
The original appellant admitted the circulation of the Herald Newspaper in Ibadan and it is deemed that the 1st respondent proved the advertisement of the auction notice as contained in Exhibit ‘D’ the letter of the licensed surveyor, Akinyemi Adegoke dated 20/10/92 written to the let 1st Respondent’s Lending Control & Recovery Unit and Exhibit ‘D1’ a copy of the auction notice. The Herald Newspaper of 26th October, 1992 was tendered as Exhibit ‘D2’. See, AKIBU v. ODUNTAN (1992) 2 NWLR (Pt. 222) P. 210 at 226. Exhibit ‘D2’ was published a year after the demise of the 1st respondent’s customer.
The DW1 Bamise Samuel, a recovery officer testified that Exhibits ‘C’ to ‘C5’ were written to the appellant and his late wife (letters of demand) which were not responded to. Exhibit ‘E’ was another letter to the appellant reminding him of the indebtedness and need to repay the debt that was accumulating huge interests and permission to allow a firm of estate valuers into the property, the letter was clearly headed “Notice of Sale of Mortgaged Property at Plot 4, Block X 1 within Oluyole Estate, Ibadan Registered as 28/28/1980,” which is the property in question. The DW1 gave a full account of the procedure before the auction. These are advertisement in the Newspaper a year after the death of the customer, auction notice pasted on and around the mortgaged property.
The DW2 Makanjuola Ojewumi an Estate surveyor and valuer (even though recorded as DW1 by the trial court at P. 151 of the printed records) gave evidence to the effect that Exhibits ‘D’ and ‘D1’ (the letters the auctioneer Akinyemi Adegoke wrote to the 1st Respondent and the auction Notice were the means through which he became aware of the proposed auction of the appellant’s property. He testified that the 2nd respondent participated in the auction and was the highest bidder, page 151-152 of the records. The DW2 bought the property on behalf of the 2nd respondent who had before the auction asked him to source property for him to buy. The witness gave account of the auction and named Adegoke Adeyemi as the auctioneer, the description of the venue included the fact that there was a group of people at the venue. It was not a sale in private. The appellant did not call any witness that gave evidence to the contrary to show that what took place on 2/11/92 was a private sale, this tallied with the pleadings of the 2nd respondent.
The necessary conditions for auction sale of the property were fulfilled.
The appellant had alleged that the property was sold below the market value. There is no evidence on the appellant’s side that the property was as at 21/11/92 sold below its value. Even where a property has been sold below the market value at the time of sale, the court will not interfere unless it is so low as to show that there has been fraud, which has not been alleged. The appellant’s main contention is that he was not notified before the auction and that the sale was a private one. See, EKAETEH v. NIGERIA HOUSING DEVELOPMENT SOCIETY LTD (1973) 6 SC 183 and ACB LTD v. IHEKWOABA (2003) 16 NWLR (Pt. 846) P. 249 at 269-270 PARAS. H-B, 269 PARAS. D-G.
There is nothing on record to show that the 1st respondent acted in collusion with the 3rd respondent to dispose of the mortgaged property in an irregular manner without the required warning and notice to the appellant who used his property to secure the loan for his late wife.
In the present case, the 2nd respondent has not been shown to have been aware of any irregularity of non- compliance with the Auctioneer’s Law before and during the auction. The 2nd respondent’s title and right over the property he bought cannot be vitiated on sentiment. See, SANUSI v. DANIEL (1956) SCNLR 288; OKONKWO v. COOPERATIVE & COMMERCE BANK (NIG.) PLC (2003) 8 NWLR (Pt. 822) 347.
The appellant failed to lead evidence to show that the property had appreciated to the value he feels the property was worth and should have been sold for. The appellant has not placed anything on record to assist this court to hold that the property was undervalued and/or sold below the market value as alleged by the appellant. There is nothing on record to show the correct value, if at all, of the property if the purchase price of N305,000.00 was low as alleged by the appellant. See, AJADI v. OKENIHUN (1985) 1 NWLR (Pt. 3) 484. The appellant wrote Exhibit ‘B’ to the 1st respondent dated 25/11/92, after the auction had taken place on 2/11/92 asking for the confirmation of his indebtedness in view of settling same, the letter was belated. Precisely on 27/11/92 the 1st respondent wrote to the Auctioneer, Exhibit ‘H’ attaching (1) the Deed of assignment (4 copies) (2) Deed of lease dated 25/4/97 registered as 28/28/1980 at Ibadan, for onward transmission to the purchaser of the property.
The appellant also alleged that the 2nd respondent did not give evidence in the trial court, therefore that he had no evidence to support his pleadings which implies admitting the claim. It is on record that the respondents called witnesses in defence of the appellant’s claim. It is trite that where a party calls witnesses in respect of his case it is enough, he need not testify personally as long as his case has been adequately put forward by his witnesses. All parties in an action need not testify. In my humble view, the important thing is: is the evidence called in line with the pleadings, is it cogent, credible and direct on the points in issue? The two witnesses called by the respondents gave evidence as to the purchase of the property by the 2nd respondent through a public auction sale conducted on 2/11/92 which is the case of the respondents.
I agree with the argument of the learned counsel to the 2nd respondent that the appellant acknowledged that the auction sale of his property had been completed, for this reason the appellant had sought an interim order for injunction preventing the 1st respondent from perfecting the title for the 2nd respondent pending his motion on Notice, page 14 of the records, at the early stages of the present action, the writ of summons having been taken out on 11/1/93, while the order of interim injunction was granted in the trial court on 27/1/93, Page 14 of the printed records.
The Auctioneer’s licence was not an issue before the trial court, it was not pleaded by the appellant as plaintiff and no evidence was led in its support, compliance or non-compliance with post auction sale was also not an issue before the trial court and therefore cannot be determined in this appeal, as the issue does not arise as rightly argued by the learned respondents’ counsel.
The appellant had made heavy weather of whether the DW3 was the 2nd respondent’s agent who bought the properly on behalf of the 2nd respondent or whether the 2nd respondent paid for the property himself. In my humble view whether the 2nd respondent bought the property physically by himself on the day of the auction or through his agent it is immaterial. The issue is: was the sale a private sale or a public auction? This question has been answered and I hold the view that it was by public auction. Even if the purchase was through the DW3 the 2nd respondent’s agent, it is not enough to invalidate the sale. An agent steps into the shoes of his principal and acts like he were the principal.
In my humble but respectful view, the property was sold at a public auction that took place on 2/11/92. The trial court was therefore right to have dismissed the plaintiff’s case. I resolve the sole issue in favour of the respondents.
In the final analysis, I hold that the appeal lacks merit, I dismiss same. I affirm the judgment of the Oyo State High Court delivered on 22nd July, 2005 by A. Adeniran, J. I award costs of N50,000.00 (Fifty Thousand Naira) in favour of the Respondents.
HARUNA SIMON TSAMMANI, J.C.A.: I was privileged to read in draft the judgment delivered by my learned brother, C. N. Uwa, JCA.
I agree that the appeal lacks merit and that it be dismissed.
I accordingly dismiss same.
I abide by the order on cost.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my Lord Chidi Nwaoma Uwa, J.C.A.
By way of a little contribution, I think it is safe to say that when an auction sale has been carried out, the court will be very weary to set aside the sale where the court is satisfied as to the following facts:
1. That the mortgagor did mortgage the property in dispute to the mortgagee;
2. The loan or any installment has become payable;
3. Notice of demand of repayment of the loan by the mortgagor has been made by the mortgagee;
4. The power of sale under the mortgage agreement has arisen;
5. A pre-condition of notice of sale is given to the mortgagor by the mortgagee or his agent;
6. The power of sale was exercised and the title in the property passed to the purchaser.
See Gbadamosi v. Kabo Travel Ltd. (2000) 8 NWLR Pt. 668 part 243; Oguchi v. FMB (Nig.) Ltd. (1990) 6 NWLR part 156 p.330; Bank of the North v. Alhaji Mumuni Muri (1998) 2 NWLR part 536 p.153; Akande v. FBN (2004) 8 NWLR PART 875 P. 318; Agboola v. UBA Plc. 2 Ors (2011) LPELR-9353 (SC)It has not been shown in this appeal that any of the above indices were not satisfied in the matter on appeal. In the circumstances therefore, I see no reason to interfere with the judgment of the lower court.
For this reason and the fuller reasons given by my lord Chidi Nwaoma Uwa, J.C.A. in the lead judgment, I also hold that the appeal lacks merit. Same is therefore dismissed. I abide by the award of costs in the lead judgment.
Appearances
Chief Niyi Akintola – AppellantFor Appellant
AND
Tomilade Adeniyi (Mrs.) – 1st Respondent
Kazeem A. Gbadamosi Esq. with
Phillips B. D. Esq. – 2nd Respondent.For Respondent
