In The Court of Appeal of Nigeria

On Wednesday, the 10th day of April, 2002





ALOMA MARIAM MUKHTAR   Justice of The Court of Appeal of Nigeria


IBRAHIM TANKO MUHAMMAD   Justice of The Court of Appeal of Nigeria


OLUDADE OLADAPO OBADINA   Justice of The Court of Appeal of Nigeria






  2. FRANCIS OGBE EHENCHE – Respondent(s)


MUKHTAR, J .C.A. (Delivering the Leading Judgment): As per the claim of the respondent, (the plaintiff in the lower court) in his amended statement of claim, which supercedes the writ of summons (see Lahan v. Lajoyetan (1972) 6 S.C. 190 he sought the following reliefs:-

18(a) An order setting aside the sale of the plaintiff’s premises covered by Certificate of Occupancy No. BN 2391 Makurdi on the ground that the purported sale was illegal and absolutely void.

(b) An order of perpetual injunction restraining the defendant from further purporting to sell off any property of the plaintiff without any court writ.

(c) One hundred thousand Naira (N100,000.00 as general damages for trespass and illegal sale of the plaintiff’s property.

The case of the plaintiff is that he entered a mortgage deed with the defendant in 1976 for an aggregate sum of N40,000 which was fully paid up in 1980. At a later period when he got a contract the defendant allowed the plaintiff to overdraw his company account, but this arrangement was outside the mortgage deed he executed in 1976. In January, 1998, the defendant purportedly sold the plaintiff’s property for the sum of N60,000 at an auction sale which the plaintiff claim was null and void.

In its defence the defendant denied most of the above allegations, but confirmed that a mortgage deed was entered into between the plaintiff and the defendant in 1976, for an overdraft, with property with Right of Occupancy No. BP 2391 as security. When payment in respect of the overdraft was not forthcoming and after so many demands, the defendant, after taking necessary steps under the law, auctioned the property, and realised the sum of N60,000, which was used to liquidate the debt owed by the plaintiff.

The defendant counter-claimed as follows in the amended statement of defence.

(12) That before the auctioning of the plaintiff’s said premises on 29/1/1992, the plaintiff’s account had been in debit up to the sum of N82,937.00.

That after the said sale the proceeds of the sale were applied towards the liquidation of the plaintiff’s indebtedness and incidental expenses connected with the sale leaving the debit balance of the plaintiff’s account at N22,937.00. The plaintiff’s statement of account and other related documents will be tendered at the trial.

(14) Whereof the defendant claims from the plaintiff (i) the sum of N22,937.00 and interest at the rate of 21% on same from 29/1/1992 until payment being the debit balance of the facility granted to the plaintiff; and (ii) an order compelling the plaintiff to quit the premises situate at No.9 Clerks Ward and covered by Benue State Government Certificate of Occupancy No. BP 2391 forthwith.

After pleadings were completed parties adduced evidence and counsel addressed the court. The learned trial Judge evaluated the evidence and at the end of the day, allowed the plaintiff’s claim and dismissed the defendant’s counter-claim.

Dissatisfied with the decision the defendant appealed to this court on four grounds of appeal.

The original notice of appeal bore only one Emmanuel S. Adom as the only respondent. On 17/9/97 learned counsel for the appellant filed an application for an order joining Francis Ogebe Eneche as the 2nd respondent in the appeal, amongst other orders sought. When the application was moved on 17/11/97, the following orders were made:-

“Court. Leave is granted to the applicant to file an amended notice of appeal as per exhibit ‘A’ attached within 14 days from today. Time appellant’s brief is extended to 14 days thereafter. Other orders in motion paper struck out.”

I believe with the above order allowing amendment to notice of appeal as exhibited and the said exhibit’ A’ bearing Francis Ogebe Eneche as respondent the order for joinder has been granted. The number of respondents thus became two.

As is the practice in this court learned counsel exchanged briefs of argument, which were adopted at the hearing of the appeal. Three issues for determination were raised in the appellant’s brief of argument. They are:-

(1) Whether the 1st respondent had proved non-compliance with the Auctioneer’s law by the auctioneer who had sold the property.

(2) Whether it was proper for the trial court to award the sum of N60,000.00 and interest thereon to the 2nd respondent when no claim for that sum was made or proved by the 2nd respondent.

(3) Whether the trial court’s refusal to grant consequential reliefs in respect of appellant’s counter-claim was proper.

Three issues were raised in the 1st and 2nd respondent’s brief of argument. As a matter of fact the 1st respondent adopted the issues in the appellant’s brief of argument i.e. the above issues and the issues raised in the 2nd respondent’s brief of argument are in pari materia with the above issues. I will commence the treatment of the issues with issue (1) supra. In canvassing argument under the issue, learned counsel for the appellant referred to paragraph (15) of the plaintiff/respondent’s amended statement of claim which relates to non-compliance with the Auctioneer’s Law, Cap. 10, Laws of Northern Nigeria, 1963, applicable to Benue State, which the learned trial Judge held was not complied with. The said paragraph (15) reads thus:-

“(15) The plaintiff will contend at the trial that the auction notice in the Concord Magazine of 27th-2nd February, 1992 and the auctions or commissions (sic) taken or done during the whole process of the purported auction sale were contrary to the relevant provisions of the relevant statutory laws and to that extent the purported auction sale was null and void.”

According to learned counsel the averment was denied in paragraph 8 of the appellant’s amended statement of defence, thus casting the evidential burden of proof of the averment in paragraph (15) of the statement of claim on the 1st respondent. Learned counsel for the 2nd respondent is of the same view in his own brief of argument. Learned counsel for the 1st respondent in his own brief of argument replied that the defendant/appellant did not discharge the legal burden of proof cast on it. A cardinal principle of law in civil litigation is that he who asserts must prove. See S. 135 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.

A party who claims against the other party must prove his assertion with cogent and credible evidence if he desires to succeed in his claim. It is after he has adduced such credible evidence in support of his claim that he will be said to have discharged the burden of proof placed on him by the law, and it is after he has discharged that burden, that the burden shifts to his opponents. See Fadlallah v. Arewa iles Ltd. (1997) 8 NWLR (Pt.518) 546; Okubule v. Oyagbola (1990) 4 NWLR (Pt.147) 723 and Nigerian Maritime Services Ltd. v. Afolabi (1978) 2 SC 79. This position of the law remains valid even if there is a denial of the assertion or claim in the opponent’s pleadings.

The situation where evidence in proof may be unnecessary is only where there has been admission of facts in the statement of defence. See Olubode v. Oyesina (1977) 5 SC 79. I will now look at the evidence adduced by the plaintiff/1st respondent in support or otherwise of the averment reproduced above. What may be considered as the relevant piece of evidence reads:-

“The auction sale was conducted on 30th January, 1992.

I saw the notice of sale on a Concord Magazine of 27th February – 2nd February, 1992. I received a communication from defendant that my property was sold … I am not aware if the sale was served on the Bureau of Lands and Survey or any Government. The proceeds of sale were never disclosed to the Government of the Bureau of Lands and Survey …..”

The P.W.2 testified thus inter alia.

“We became aware of the auction when we received the letter at p. 70 of exhibit A12 dated 21.9.92 … In practice, we are not required to be at the auction sale.

After the auction sale we are supposed to be notified of the sale. This is for information purposes. I am not aware of the time limit within which to notify the Bureau of Land about the auction sale. Even though a letter for consent was written on 21.9.92 it was not acted upon until we wrote to the plaintiff on 5.11.93″.

Now, with the above pieces of evidence, can it be said that the plaintiff/respondent proved his averment? Before attempting to answer this question I will reproduce a salient portion of the 1st respondent counsel’s address to the court, which can be found on page 79 of the printed record of proceedings, and which reads:”

There is undoubted evidence that the sale was conducted on 30th January, 1992. The plaintiff testified  that no notice was sent to the Bureau of Lands or any Government Department. This point was confirmed by P.W.2 who further testified that the proceeds of this sale were not sent to their office and that the (sic) first communicated (sic) they got from the defendant bank was the communication on page 74 of exhibit A12. That document does not purport to render account. The defendant bank was duty bound to show that the sale was conducted in accordance with the sections 19 and 20 of the Auctioneers Law. The defendant bank failed to discharge the evidential burden. The auctioneer was never called to establish that he complied with the said law. DW1 confirmed that he did not know if any account was rendered to any Government Department.”

In essence therefore the non-compliance is in respect of sections 19 and 20 of the Auctioneers Law which read as follows:-

(19)  No sale by auction of any land shall take place until after at least seven days’ public notice thereof made at the principal town of the district in which the land is situated and also at the place of the intended sale. The notice shall be made not only by printed or written documents, but also by beat of drum or such other method intelligible to uneducated persons as may be prescribed, or if not prescribed as the divisional officer of the district where such sale is to take place may direct, and shall state the name and place of residence of the seller.

Penalty: a fine of twenty pounds.

(20) Two days before any sale by auction shall take place, or within such shorter time as the divisional officer of the district where such sale is to take place, may, in special circumstances, authorise in his discretion, notice thereof in writing together with a catalogue of the goods or lands to be sold shall be delivered by the auctioneer to such divisional officer, specifying the place and time of which such sale begins, and within sixty hours after such sale verified by oath or affirmation of the auctioneer shall be delivered to the said divisional officer, specifying the price at which each lot shall have been sold.

Penalty: a fine of twenty pounds.

It is on record that it was the defendant/appellant that tendered exhibit C1 (National Concord), a National Newspaper of 22nd of January, 1992, which bears the Auction Notice of the proposed sale of the property of the plaintiff that was the subject matter of a mortgage. On page 21 of the Newspaper can be seen the following publication:


Notice is hereby given that the landed property here below at different locations in Makurdi township belonging to different persons mentioned there shall at the instance of unpaid mortgage, Union Bank of Nigeria Plc. be sold by public auction. Date: 30th January, 1992, Time: 10 a.m. prompt., Mr. Emmanuel S. S. Adorn

Plot situated at No.9 Clerk Ward,

Makurdi. Registered as No. 43/43 Vol. 1 (MISC) Makurdi…….

Conductor, Luke Okoye Enterprises (Nig.) Ltd., Govt. License/Auctioneer, No. 27, Oju Street, Wadata – Makurdi.

Although the plaintiff/respondent testified about the publication in a Concord Magazine of 27th, he did not produce the said magazine as exhibit, it was the appellant who tendered the National Concord which contained the notice of auction sale. In the same vein the respondents did not testify that drums were not beaten or as is done in the modem times that the proposed auction was not announced on radio or television. As for S. 20 of the Auctioneers Law supra, the respondent did not adduce evidence to show that the appellant failed to involve a divisional officer in the auction sale either before or after the sale as is expected of him under the said section 20 supra. There is, in fact nothing in the record of proceedings to confirm that PW.2 the said lands officer or the Director General whom he represents is the same as a divisional officer specified in S. 20 of the Auctioneers Law supra. In this wise, I am in full agreement with the submission of learned counsel for the appellant on the argument in connection with S. 20 of the Auctioneers Law. I also subscribe to the argument of learned counsel for the 2nd respondent in his brief of argument, that even if S. 20 of the Auctioneer’s law supra was not complied with, it was not fatal to the entire auction sale, as the 1st respondent was indebted to the appellant at the time his property was auctioned, and so, the appellant had the right of sale on the auctioned property. See the cases Assad Sabbagh & Anor. v. The Bank of West Africa (1962) 2 All NLR 1153; Eka-Eteh v. Nigeria Housing Development Society (1973) All NLR 646 and Sanusi v. Daniel & Ors. (1956) 1 FSC 93 relied upon by learned counsel. In view of the above arguments, I am satisfied that the plaintiff/respondent did not discharge the burden of proof placed on him by the law, and so my question above has been answered. The cases of Commissioner of Police ‘D’ Department & Anor. v. Jimoh Oguntayo (1993) 7 SCNJ (Pt.1) 66, (1993) 6 NWLR (Pt.299) 259 and Nelson Olorunnimbe Gbafe v. Prince Frank Gbafe & Ors. (1996) 6 SCNJ 167, (1996) 6 NWLR (Pt.455) 417 relied upon by learned counsel for the appellant is of assistance.

It is my view that, having not proved his case as required by law, the burden of proof cannot shift to the respondents. Besides, it is on record that the appellant produced evidence in support of its case, as is shown by exh. C1 which proved the compliance with S. 19 of the Auctioneers Law supra. It is instructive to note that the said exh. ‘C1’ confirms that the said seven days notice required by the law was complied with. The learned trial Judge thus erred when he held in his judgment as follows:-

“The final conclusion I reach on this issue is that the auction sale conducted on 30th January, 1992, wherein the property of the plaintiff No. BP 2391 Makurdi was sold to the second defendant was not properly and regularly conducted as required by the Auctioneers Law of Benue State. I declare the purported sale illegal and absolutely void and of no effect.”

For the foregoing reasoning issue No. (1) supra is resolved in favour of the appellant, and so grounds of appeal Nos. (1) and (2) to which the issue is related succeed.

I will now proceed to the second issue for determination. In arguing this issue learned counsel for the appellant referred to Order 47 r. 1 of the Benue State High Court (Civil Procedure) Rules, Edict No. 29 1988 which states:-

“Subject to particular rules, the court may in all causes and matters make any order which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”

It is the contention of learned counsel for the appellant that even though the above provision empowers the court to award consequential reliefs, such an award is subject to the principle of  law that a court is not a charitable institution which liberally gives to parties what they have neither claimed nor proved. He relied upon the case of Ekpeyong v. Nyong (1975) 2 SC 71. Learned counsel for the 2nd respondent has argued that there is ample evidence on record forming the basis for court to make the consequential award of N60,000. According to him the trial court was mindful of the peculiar circumstance of this case, which debarred the 2nd respondent from counter-claiming for the said amount against the appellant, and that one of the rationales for the provision of Order 47 r. 1 is to prevent multiplicity of actions. He referred to Nneji v. Chukwu (1988) 3 NWLR (Pt.81) 184.

It is a fact that the learned trial Judge in his judgment held as follows:-

“The second defendant has no valid claim against the plaintiff. His entire counter-claim is dismissed. I order the defendant bank to refund the second defendant the sum of N60,000 (sixty thousand naira only) being the purchase price of the said property plus interest. Since the defendant bank has used the rate of 21% as against the plaintiff, I order the same to be paid to the second defendant, that is, interest at the rate of 21% on N60,000 from the time of purchase to the time of payment.”

It is also a fact that neither the plaintiff/respondent nor the defendant/appellant claimed the above reliefs in their amended statements of claim and defence. What informed the above order seems inconceivable to me. I agree with learned counsel for the appellant that consequential reliefs cannot be granted in isolation, as same must flow from the relief proved, and the case of Ron. Justice Ademola v. Chief Herod Sodipo & Ors. (1992) 7 SCNJ 417, (1992) 7 NWLR (Pt.253) 251 he relied upon is apposite. I also endorse counsel’s submission that before consequential reliefs can be granted, the parties must be heard, and his reliance on the cases of Atanda v. Lakanmi (1974) 3 SC 109 and Okhideme v. Toto (1962) 1 All NLR 309. In the case on hand the parties were not heard on the above reliefs and given fair hearing before the reliefs were granted. The orders and reliefs were therefore wrong in law, and the learned trial Judge erred in granting the reliefs. It is my view that the reliefs and orders did not fall within the contemplation of Order 47 r. 1 above. The learned counsel for the 1st respondent found it unnecessary to respond to the argument in respect of the issue just treated in his brief of argument as according to him it did not affect the interest of his client. The treatment of the issue was thus based on the argument in the appellant’s brief of argument, and that in the 2nd respondent’s brief of argument.

In the light of the above argument the issue just discussed is resolved in favour of the appellant. The related ground of appeal No. (3) to which it is married succeeds.

On issue (3) supra, learned counsel for the appellant has contended that having nullified the sale of the 1st respondent’s and found as a fact that the 1st respondent was still indebted to the appellant the court ought to have made consequential orders related to the counter-claim. Learned counsel referred to Order 47 r. 1 of the Benue State High Court (Civil Procedure) Rules (supra). He further submitted that it is trite law that based on the evidence before the court, consequential orders may be granted, even if they are not claimed. He placed reliance on the cases of The Registered Trustees of the Apostolic Church v. Olowoleni (1990) 10 SCNJ 69, (1990) 6 NWLR (Pt.158) 514; Gegele v. Layinka & Ors. (1993) 3 SCNJ 39, (1993) 3 NWLR (Pt.283) 518; and First African Trust Bank Ltd. & Anor. v. Ezegbu & Anor. (1993) 6 SCNJ (Pt.1) 122, (1993) 6 NWLR (Pt.297) 1. Learned counsel for the 1st respondent has in his brief of argument, submitted that the refusal to grant consequential reliefs in respect of appellant’s counter-claim was justified and proper. This, according to him is in view of the various findings of the lower court. For instance, the one that reads thus:-

“Since the plaintiff has admitted his indebtedness on this account, I may only say that the debit balance standing against this account as at the time of the auction sale of the property was N82,931.23 because the last entry in this account in January, 1992, was on 18th December, 1991.”

It is learned counsel’s view that since the amount of the found indebtedness was more than what was claimed on the counter-claim, the court was without jurisdiction to award to the appellant more than what it claimed. He referred to the case of Ekpeyong v. Nyong (supra).

I will reproduce the judgment of the lower court in respect of the counter-claim hereunder. It reads:-

“In view of the judgment just delivered particularly in favour of the plaintiff, I refuse to grant prayer two of the counter-claim. With regards to prayer one, I leave the issue of the indebtedness of the plaintiff open as I have set the sale aside and declared it null and void.  The indebtedness, therefore, continues to run.”

This finding is obviously informed by the fact that the auction sale which is the gravaman of the case, had already been set aside.

Having set it aside, the amount owed to the appellant would have been the amount of indebtedness found to be owed by the respondent, and that amount far exceeded the amount claimed by the appellant in its counter-claim. It is settled law that parties are bound by their pleadings, and a court is bound by award that is claimed as relief in the pleadings. Although a court may award less than what is claimed, it cannot award more than the amount claimed in its pleadings. See Akanni v. Makanju (1978) 11-12 SC 13 and Okeowo v. Migliore (1979) 11SC 138. To have based its judgment or order on its finding would have meant granting a relief that would have been far more in excess of what the defendant/appellant had claimed, and this would have been an error. If on the other hand, the court granted the counterclaim as was claimed, then the amount awarded would have been far below the indebtedness, and that would make a nonsense of the whole exercise, since the auction sale had been set aside. I believe the finding of the court is consequential upon its finding on the auction sale. Apart from the principles of the law on reliefs, it is my view that commonsense dictates that the learned trial Judge should not have granted the relief sought in the counter-claim for the justice of the case wouldn’t have been met. In the light of the foregoing reasoning, I cannot fault the finding and judgment of the lower court on the counter-claim. I therefore resolve this issue in favour of the respondents and dismiss ground of appeal No. (4) to which the issue is married.

The end result is that the appeal succeeds in part. I hereby set aside the judgment of the lower court in as far as the main claim is concerned. I grant the reliefs sought in the notice of appeal. The reliefs are to allow the appeal and set aside the order of the trial court nullifying the sale of the 1st respondent’s property, and the order directing appellant to make a refund of the sum of N60,000.00 and interest thereon to the purchasers. I assess costs at N5, 000.00 in  favour of the appellant against the 1st respondent.


I.T. MUHAMMAD, J.C.A.: I have had the advantage of reading in draft the lead judgment delivered by my learned brother Mukhtar, J.C.A I am in full agreement that the appeal succeeds in part only. I abide by the consequential orders made in the lead judgment including order as to costs.


OBADINA, J.C.A.: I had a preview of the judgment of my learned brother, A M. Mukhtar, J.C.A, just delivered. I agree entirely with the reasoning and conclusion contained therein and abide by the orders made in the judgment.


Appeal allowed in part




  1. Eche AdahFor Appellant




Respondents absent and unrepresentedFor Respondent


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