RASAQ OLUWAFEMI AKANO v. FIRST BANK OF NIGERIA PLC & ANOR
In The Court of Appeal of Nigeria
On Monday, the 2nd day of June, 2003
SAKA ADEYEMI IBIYEYE Justice of The Court of Appeal of Nigeria
VICTOR AIMEPOMO OYELEYE OMAGE Justice of The Court of Appeal of Nigeria
FRANCIS FEDODE TABAI Justice of The Court of Appeal of Nigeria
RASAQ OLUWAFEMI AKANO (Substituted for Nurudeen Akano) Appellant(s)
- FIRST BANK OF NIGERIA PLC
2. YETUNDE OLUNLOYO (Suing by her next of kin DAVID ADESOKAN OLUNLOYO) Respondent(s)
VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. (Delivering the Leading Judgment): This is the background facts of this appeal. The predecessor of the appellant in the court below was the defendant at the hearing which held at the High Court Oyo State, it held in Ibadan in 1998. The present named appellant was substituted by the order of court on 5/2/2002. The predecessor of the appellant was the late Nurudeen Akano. Akano entered into a mortgage agreement with the First Bank of Nigeria Plc. By the mortgage deed, he was advanced the sum of N19,560.00 as a loan. The mortgage agreement is registered as No.36, at page 36 in Volume 2775 in the Land Registry, Ibadan, dated 12th October, 1987.
By or around 1995, the appellant as defendant in the court below had not repaid his debt to the bank, whereupon the bank sold the building property at No.E9/2066 Kumapayi Avenue, Ibadan to one Yetunde Olunloyo. The said house was the collateral for the loan granted by the First Bank to Akano. After the purchase of the said house by Olunloyo and after receiving an instrument of transfer from the bank, of the title to the property of the house which is registered as No.16, at page 16 in Volume 3166, at the lands office at Ibadan, the said purchaser did not get possession of the said house.
Incidentally, Akano was living in the said house. As Olunloyo, the purchaser did not get possession of the house she commenced action, whereupon, the said Olunloyo suing by her father as next of kin, issued a writ of summons against Akano in which the First Bank was cited as the first plaintiff and Olunloyo the second plaintiff. In the suit, Olunloyo sought the following declarations;
“(a) A declaration that under and by virtue of a deed of legal mortgage dated 12th October 1987, and registered as number 36/36/2775 of the Land Registry in the office at Ibadan, the 1st plaintiff has the power as mortgagee to sell by public auction or otherwise the property covered by the said legal mortgage.
(b) A declaration that, the 1st plaintiff having validly exercised its statutory powers under the legal mortgage, passed good title to the 2nd plaintiff.
(c) A declaration that by virtue of the deed of transfer dated 26th day of May, 1995 and registered as number 16/16/3166 of the land registry in the office at Ibadan, the 1st plaintiff had validly transferred its interest in the property covered by the deed of legal mortgage registered as Number 36/36/2775 in Ibadan to the 2nd plaintiff.
(d) An order granting possession of the storey building lying, situate and being at E.9/2066 Kumapayi Avenue, Off Iwo Road, Ibadan, covered by a deed of transfer dated 26/5/95 and registered as No.16/16/3166. Ibadan presently being occupied by the defendant to the 2nd plaintiff.
(e) An order that the defendant as a tenant in possession should pay rent to the 2nd defendant from the date of transfer to the date when possession is given.”
Pleadings were exchanged in the court below. In conclusion, the court gave judgment against the defendant when he granted all but one of the declaration sought. The fifth relief sought by the plaintiff was modified and allowed. The defendant was aggrieved and dissatisfied with the decision; he filed twenty three grounds of appeal and formulated five issues. The appellant abandoned grounds 9 and 11 when he did not formulate any issue on them. The five issues are rather lengthy, it will not do to paraphrase them and they need to be stated in full in order to have a comprehension of the issues, and complaints of the appellant. Thus issue one is:
“1 Whether the learned trial Judge was right and properly evaluated the evidence before the court in finding that the plaintiffs actually adequately and properly exercised their alleged power of sale on 7/11/94 by selling the defendants property particularly when there was credible and probable oral and documentary evidence before him, which indicated the contrary position.
2.Whether the learned trial Judge was right and exercised his discretion judiciously and judicially in granting declaratory and other related reliefs sought by the plaintiffs particularly when it was not reasonably and adequately proved before him that the plaintiffs had complied with the relevant and applicable statutes including (the Evidence Act, the land instrument registration law, the auctioneers law, the property and conveyancing law, the natives lands acquisition law and the Land Use Act ,1978) with respect to the transaction/circumstances placed before the court.
3.Whether the learned trial Judge has by his judgment declaring the alleged auction sale of 7/11/94 and the alleged subsequent transfer of property by the deed of transfer (exhibit P.11) valid and sustainable, adequately satisfied, conformed to and upheld the constitutional provision forbidding and leasing against the peremptory and arbitration and forfeiture of a citizens proprietory interest legal and equitable in immovable property.
(4) Whether the learned trial Judge was right in not holding that the plaintiffs were sufficiently estopped/precluded by receipts of payments from the defendant on 11th and 28th November, 1994, and 9th December, 1994 in respect of the loan/mortgage transactions between them from asserting or contending at the trial that the defendants mortgaged property had been sold/auctioned on 7/11/94, pursuant to their power of sale under the alleged mortgage transaction?
(5) Whether the learned trial Judge was right in holding that the plaintiffs had adequately discharged the burden of proof which lay upon them having particular regard to the reliefs sought by them and the thrust tenor of the pleadings and all the oral and documentary evidence offered and adduced before the court by the plaintiff and defendant? i.e. Whether the plaintiffs had adduced sufficient evidence before the court to entitle them to a grant of declaration of title to land and the ancillary reliefs thereto.”
In the brief of the 2nd respondent, there is contained a notice of preliminary objections to the hearing of the appeal. The objections are founded on four issues viz;
(1) That the subject matter of the appeal is personal to the original appellant Nurudeen Olayiwola Akano and therefore did not survive him.
(2) That Rasaq Olufemi Akano cannot lawfully be substituted for Nurudeen Olayiwola Akano to prosecute this appeal without a valid letter of administration. Nurudeen Olayiwola Akano having died intestate.
(3) Additional grounds of appeal filed by the appellant cannot be lawfully argued in the brief of argument without the leave of the court of appeal.
(4) That the appeal is incompetent because more than one issue is raised in each of the issues raised from the grounds of appeal.
Subject to, and in addition to the preliminary objection raised by the respondent to the hearing of the appeal the respondent for mulated the following issues:
“(1) Whether the 1st respondent by the legal mortgage exhibit P.1 has the power to sell the property of the appellant at E.912066 Kumapayi Avenue, Offlwo Road, Ibadan by public auction.
(2) Whether the power under the said legal mortgage was validly exercised on 7/11/94.
(3) Whether the respondents were entitled to judgment having regard to the evidence adduced at the trial and documents tendered.
(4) Whether valid title has been passed to the 2nd respondent who was the bona fide purchaser.”
There is no record of the brief of the First Bank of Nigeria Plc, who was the 1st plaintiff in the court below. The appellant filed a reply brief. I will refer and relate to its contents as the occasion
arises. The preliminary objection raised by the respondent does not comply with the provisions of the rule of the Court of Appeal Order 3, rule 15, but the objection raised issues of law and the jurisdiction of the court that it can be said that it depletes the judgment of this court to ignore the issues raised in the preliminary objection. I will comment on the preliminary objection after I have considered the issues formulated by the appellant.
In the appellant’s brief, issues 2 and 4 allegedly founded on grounds 1,2,7,17 and 18 are not founded on issues arising from the judgment of the court. The entire issues formulated by the appellant in this appeal are wordy, inelegant and wooly. Issues 2 and 4, contain several issues most of which did not derive from the judgment of the court below. Just as the court below is bound by the evidence tendered before it, so is an appellant is, and should be bound to base the grounds of appeal and issues on matters on which the court below has ruled. See Bennet Ifediorah & 4 Ors. v. Ben Ume & Ors. (1988) 2 NWLR (Pt.74) 5,16; Labiyi v. Anretiola & 4 Ors. (1992) 8 NWLR (Pt.258) 139. Issues 2 and 4 in the appellant’s brief contain issues which did not derive from the judgment of the court. Infact issue 2, contains defences on law which the appellant could have raised in the court below, but which now can not be raised on appeal. The printed record shows that leave of court was granted to the appellant to file additional grounds of appeal but no leave was granted to the appellant to raise a fresh issue as contained in issues 2 and 4 of the appellant. The appellant failed to obtain the leave of the court to argue fresh grounds of appeal not canvassed as a defence in the court below.
It is settled law, that, an appellant who seeks to argue additional evidence in his grounds of appeal must ask for leave of court to so argue it specifically. See Obioha v. Duru (1994) 8 NWLR (Pt. 365) 631; (1994) 10 SCNJ 48. In this case, there is not only a failure to ask specifically for leave to argue additional evidence, contained in the grounds of appeal there is a failure to seek the leave of court to adduce additional and fresh evidence in the defence made in the appellants brief, which defence were not made in the court below, even where the evidence in the grounds are of law. The grounds and issue are therefore incompetent. See Amusa Opoola Adio v. The State (1986) 2 NWLR (Pt. 24) 581; Alhaji L. Ajuwon & Ors. v. Madam A. Adeoti (1990) 2 NWLR (Pt. 132) 271 at 283. Issues 2 and 4 of the appellants brief are struck out for incompetence.
I now proceed to comment on the preliminary objection raised by the respondent in grounds 1-4.
The said preliminary objection failed to comply with the Court of Appeal Rules. Order 3 rule 15 of the Court of Appeal Rules, other rules made in 2000, prescribes thus “a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the ground of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.” Sub rule 15 of the rules provides thus “if the respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent”. At the hearing of the appeal the respondent made no reference to or made a move to argue the notice of preliminary objection even as it is contained in the brief only. I have not seen in the file any requisite notice as directed in the provisions of Order 3, rule 15. The rules of court are made to be observed and honoured in observation. Therefore, where notice of such preliminary objection has not been given, attractive as the grounds of objections are, in the instant appeal, they will not be entertained. See Osuji Okoro Oforkire & Anor. (for and on behalf of the family of Awo Omamma) v. John Maduike & 5 Ors. (2003) 5 NWLR (Pt.812) 166; Okolo v. U.B.N. Ltd. (1998) 2 NWLR (Pt.539) 618. The preliminary objection was responded to by the appellant in his reply brief. Can that reply be deemed to be a waiver of a right to be served notice of the preliminary objection within 3 days? My view is that there is a failure to comply with a fundamental provisions of the rules of court which cannot be compromised upon by the parties. In the result, the notice of preliminary objection of the respondent is refused, and it is struck out. See Arewa ile Plc. v. Abdullahi & Brothers Musawa Ltd. (1998) 6 NWLR (Pt. 554) 508.
There are two issues to be considered in the appellant’s brief.
Issues 1 and 4. The two issues deal with complaints that the trial court did not properly evaluate the evidence of the witnesses before him and that the learned trial Judge failed to give proper construction to the documents tendered. In conclusion, the appellant in issue one asked the court to hold that the conclusion reached by the trial court from the totality of evidence oral and written did not derive from the evidence. He urged the court to intervene and arrive at a different conclusion. The receipt of evidence, evaluation of the evidence and the ascription of weight to the evidence tendered in the High Court is the function of the court below, which falls within the jurisdiction of the said court, it is not the function of the Court of Appeal to take up the duty of evaluation of evidence tendered in the court below.
Except the conclusions reached by the court below do not derive or flow from the evidence received, an appellate court will not intervene in the findings of fact made by the lower court. See Omoborinola v. Military Governor Ondo State (1998) 14 NWLR (Pt. 584) 89; (1998) 12 SCNJ 11; Wahabi Aigbosho Sijuola Olanrewaju v. Governor of Oyo State (1992) 11- 12 SCNJ at 105 -106 and also (1992) 9 NWLR (Pt. 265) 335. The complaints made by the appellant in issue one are on the pleadings of the parties in the court below. The appellant quoted paragraph 22 and 23 of the respondent’s statement of claim in the court below, and paragraphs 12, 13, 19 of the defendant statement of defence, the evidence in support of the said pleadings were not stated by the appellant to support the quoted pleadings.
This renders the aspect of the appeal unarguable because pleadings do not constitute evidence. In the submission on the evidence made by the appellant on the facts of the case before the court since it is in substance founded on the same facts as in the respondents brief, I deem it expedient in this event to consider the appellant’s issues one, three and five with the issues formulated by the respondent.
The issues formulated in this appeal by the respondent are in my view cogent, precise and directly relevant to the grounds of appeal filed by the appellant which reflect the issues determined in the judgment of the court below. I prefer it, and will now proceed to determine this appeal on the combination of the two sets of issues of the appellant and of the respondent.
Besides the foibles in the appellant’s issue one which I recorded above the appellant questioned in his issue one the decision of the court below to hold that exhibit 1, the legal mortgage gave to the 1st plaintiff the power of sale of the property at E9/2066 Kumapayi Avenue, Iwo Road, Ibadan. In his issue one, the respondent also presented the question and argued it in the positive. In considering the issue, and the issue whether the power of sale of the said property under the legal mortgage exhibit P. 1, it is inevitable to go into the facts of the case. It is not in dispute that one Nurudeen Akano the proprietor of an unregistered company obtained a loan of N19,560.00 from the First Bank of Nigeria Plc, sometime in 1987.
To secure the loan the said Nurudeen Akano, the defendant in the court below entered into a mortgage agreement with the said Bank, by which he conferred on the said bank a right to sell the building property at E9/2066 Kumapayi Avenue, if the borrower failed to repay the borrowed sum within a stipulated time. It is the respondent evidence in the court below, that the sum borrowed accumulated interest. That the respondent wrote several letters to the appellant to go and pay its debt, but no reply was received from the appellant.
The respondent said in particular, the First Bank Plc, wrote to inform the defendant that it would foreclose the legal mortgage and sell the property used as security. The now appellant did not deny receipt of the letter.
The respondent averred that the First Bank Plc, employed the services of an auctioneer who deposed that he went to see the defendant in the court below, and informed the late predecessor in interest of the appellant that unless the said defendant paid the mortgage sum and interest his said house would be sold. The said defendant in the court below did not deny this. The evidence of PW.2, the auctioneer in the court below showed that the sale of the said property was advertised in the Vanguard Newspaper. With the set of facts produced as evidence in the court below, did the mortgagee not have a right to foreclose the legal mortgage, and was the sale of the property of the appellant not properly done? The Property and Conveyancing Law, 1959, regulates the operation of a mortgage transaction made in Ibadan, Oyo State. Under the law, a legal mortgage may be created by assignment of the term of years in a deed of conveyance or on a certificate of occupancy, since that is the quantum of interest in the occupier of land, under the provisions of the Land Use Act, 1978. In a legal mortgage deed, as in the instant appeal, the unexpired interest in the mortgaged property is assigned or deemed to be assigned by law to the mortgagee with a covenant for reassignment upon liquidation of the debt to the mortgagor. In the instant appeal, the evidence in the court below shows that the covenant above is inserted in the mortgage deed exhibit P.1 tendered in court. In any case, the provisions in the mortgage deed entitle the mortgagor to a right of redemption upon payment of the mortgage loan. In the face of the existence of the above conditions where the mortgagor failed to pay the loan within time and the mortgagee forwarded notice of demand of the loan from the mortgagor who fails to pay the loan within the time specified, the mortgagee is entitled to foreclose the equity of redemption of the mortgage and sell the mortgaged property. In the instant appeal, the evidence in the court below is that the mortgagor now the appellant received several letters of demand from the mortgagee; the First Bank of Nigeria Plc., to go and pay the loan but the appellant did not respond.
The auctioneer employed to effect the sale of the property contacted the defendant/appellant to inform him of the decision of the mortgagee to sell the mortgaged property, within 31 days, the proposed sale of the house was advertised, in the Vanguard Newspaper and the appellant still did not react; the position of the law is that the sale of the mortgaged house was properly done under the law after due notices have been issued to the mortgagor now the appellant. It is settled law that it is not the duty of the mortgagee to protect the interest of the mortgagor in the exercise of his right of sale. The mortgagee is therefore not a trustee of the power of sale for the mortgagor. Per Lord Salmon in Cuckmere Bricks Co. Ltd. v. Mutual Finance (1971) 2 All ER at 633, and 643. The issue to be considered is whether the power to sell has accrued.
In the instant appeal, the evidence tendered in the court below is that the loan of N19,500.00 with interest granted to the appellant in 1987 had become due for full payment in 1998. Particularly when the borrower refused to respond to the notices of demand of payment. In the circumstance of the above, the right to foreclose is properly exercised. Unless it can be shown that the mortgagee has acted in bad faith, nothing else done in the exercise of the power of sale will vitiate the sale. See Bank of the North Limited & Anor. v. Haruna Aliyu (1999) 7 NWLR (Pt. 612) 622 at page 634 – 635; Nigerian Advertising Services Ltd. v. U.B.A. Plc. (1999) 8 NWLR (Pt. 616) 546. Once therefore the preconditions of (1) notice of sale is given to the mortgagor by the mortgagee or his agent, preceded by a notice of demand of repayment of money lent to the mortgagor, and (2) The mortgagee proceeds to sell in good faith, the subsequent purchaser in good faith gets a good title, and the court of law will not intervene in the sale only because the sale did not meet with the satisfaction of the mortgagor.
In the instant appeal, the various complaints of the mortgagor on which he filed grounds of appeal, and formulated issues in diverse ways in his brief include, dissatisfaction with the price received for the house and the sum of three hundred thousand naira that the house was sold for. The allegation of the tendering in the court below of the photocopy of the mortgage deed, and the alleged failure of the auctioneer to conduct the sale of the said house at the scene, are issues which the appellant should have sought the leave of court to argue, since they constitute fresh evidence in the Court of Appeal. I have dealt with these above, but it is pertinent to record that an innocent purchaser is not bound to enquire whether the right to sell the mortgage property has arisen, See Nigerian Advertising Services Ltd. v. U.B.A. Plc Supra, there is therefore no particular need to tender in court the mortgage deed, when a purchaser in good faith seeks possession of the sold property.
In answer therefore to the issues contained in the respondent’s brief, I say that the mortgagee had a power of sale in the mortgage deed between the First Bank Plc, and the appellant. The right to sell had accrued to the First Bank Plc, due and credible notices were issued by the First Bank Plc, and its agents to the appellant. The sale was conducted, in a proper manner by a public auction about which evidence shows the defendant appellant had advance notice.
In the event, the purchaser had transferred to her, a good title. The respondent was therefore entitled to the declaration ordered by the court below.
In conclusion, I resolve the entire viable issues against the appellant and dismiss the appeal. I therefore affirm the judgment of the court below and the declaration made.
There will be costs to the respondent against the appellant in the sum of N10,000.00.
SAKA ADEYEMI IBIYEYE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, Omage, JCA. I entirely agree with his reasoning and conclusion with particular regard to the fact that the sale of the mortgaged property situate at E.9/2066 Kumapayi Avenue, Off Iwo Road, Ibadan effected by the mortgagee (the 1st respondent) to the purchaser (the 2nd respondent) on the basis that the mortgagor (the appellant) failed to meet his contractual obligation to repay the loan sourced from the mortgagee within a specified period. From the available circumstances, I too could hardly find any vitiating trait such as bad faith in the manner the 1st respondent exercised its power of foreclosure of the legal mortgage and the eventual sale of the said mortgaged property. The power of foreclosure and eventual sale of the property in issue are indeed well set out in the legal mortgage (exhibit P.1). It is therein stated, inter alia, that in the event of the mortgagor failing to pay up the loan or the remaining part of the loan recourse would be made to disposing of the mortgaged property. That was, indeed, what the 1st respondent did and the appellant could hardly fault its exercise of the power of sale. In these circumstances, the 1st respondent transferred a good title to the 2nd respondent. I too find no merit in the appeal and I dismiss it. I abide by the further consequential orders made in the leading judgment including costs.
FRANCIS FEDODE TABAI, J.C.A.: I agree.
Ademola Lajide, Esq.For Appellant
Chief K. A. Balogun (with him, A. R. Daramola)For Respondent