VICTOR N. CHUKWUOKEKE v. NIGERIA AGRICULTURAL CO-OPERATIVES & RURAL DEVELOPMENT BANK LIMITED & ORS
(2018)LCN/11915(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/YL/14/2016
RATIO
COURT AND PROCEDURE: DECLARATORY RELIEFS
“It is trite law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. A declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. The plaintiff must plead and prove his claim for declaratory reliefs without relying on the evidence called by the defendant. Declaratory reliefs are not granted even on admission by the defendant. See Anyanru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR-864 SC page 64 – 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929 SC and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184 CA page 25 26.” PER JAMES SHEHU ABIRIYI, J.C.A.
COMMERCIAL LAW: THE POWER OF SALE
“The power of sale is bestowed upon a mortgagee for his own benefit. It therefore follows that if the mortgagee exercises the power of sale bona fide without corruption or collusion with the purchaser or with reckless impropriety as to tantamount to fraud the Court will not interfere. See Intercity Bank Plc vs. F. & F. F. (Nig) Ltd (2011) 17 NWLR (Pt. 742) 347 at 360 – 361.
Any person who has been caused loss by an unauthorised or improper or irregular exercise of the power of sale shall have his remedy in damages against the person exercising the power of sale. See Ihekwoaba vs. A.C.B. Ltd (2003) 6 SCNJ 326 at 342.” PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES:
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
VICTOR N. CHUKWUOKEKE – Appellant(s)
AND
1. NIGERIA AGRICULTURAL CO-OPERATIVES & RURAL DEVELOPMENT BANK LTD.
2. MUHALLI ENTERPRISES NIGERIA LTD.
3. ALHAJI SULE GARBA YOLA – Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment delivered on 13th May, 2013 in the High Court of Taraba State holden at Jalingo.
In the High Court (the Court below), the Appellant as plaintiff by an originating summons claimed against the Respondents as defendants for the following:
1. A DECLARATION that the 1st Defendant has no legal right/or power of sale arising from the loan transaction between her and the Plaintiff.
2. A DECLARATION that the purported exercise of the power of sale by the 1st Defendant over the landed property of the of the plaintiff is null and void.
3. A DECLARATION that the 2nd Defendant being an agent of the 1st Defendant, lacked the competence to auction off the landed property of the Plaintiff in view of her principals lack of power to so exercise the power of sale in the said transaction.
4. A DECLARATION that the 2nd Defendant who was not licensed under the Auctioneers Law of Taraba State cannot validly conduct an auction sale over the landed property of the Plaintiff which is situate within Taraba State.
5. A DECLARATION that the purported auction sale of the Plaintiffs landed property situate behind the SSS State headquarters, situate within the Jalingo Urban Designated Area by the 2nd Defendant to the 3rd Defendant on the 28th October, 2010 is illegal, void and of not (sic) effect whatsoever, same having been tainted with fraud, malice and collusion between the 1st & 2nd Defendants on the one hand and the 3rd Defendant on the other hand.
6. AN ORDER setting aside the purported sale of the Plaintiffs landed property situate behind the SSS State Headquarters, situate within the Jalingo Urban Designated Area by the 2nd Defendant to the 3rd Defendant on the 28th of October, 2010 as same is illegal, null and void and of no effect whatsoever.
7. AN ORDER of perpetual injunction restraining the Defendants, whether by themselves by their servants, assigns, agents or any other person(s) acquiring interest, title or any other rights over the property through them from tampering with or taking possession of and/or interfering with Plaintiffs ownership of his landed property situate behind the SSS State Headquarters, Jalingo under any guise whatsoever.
The facts of the case are simple and short. They are as follows: The 1st Respondent granted the Appellant a loan of One Million Eight Hundred Thousand Naira (N1, 800, 000.00). The loan was to be repaid in three years from the date of draw down. The Appellant surrendered his customary right of occupancy to the 1st Respondent as a collateral and a deed of legal mortgage was executed between the Appellant and the 1st Respondent. The Appellant defaulted in repayment of the loan and accrued interest. At the request of 1st Respondent, the 2nd Respondent auctioned the mortgaged property. The 3rd Respondent bought the property at the auction sale.
Aggrieved by the sale of the property, the Appellant took out the originating summons against the 1st and 2nd Respondents. With the leave of Court the 3rd Respondent was later joined in the action.
The objection by Respondents to the originating summons procedure was dismissed by the Court below.
After considering the affidavit evidence before it and addresses of learned counsel for the parties, the Court below dismissed the action of the Appellant.
The Appellant immediately proceeded to this Court by a notice of appeal dated and filed on 28th June, 2013. The notice of appeal contains thirteen grounds of appeal numbered one to fourteen. Although there is no ground twelve, when the appeal came up for hearing learned counsel for the Appellant claimed that he was abandoning the non existent ground twelve.
From the thirteen grounds of appeal the Appellant presented the following seven issues for determination:
ISSUE NO. 1
WHETHER the learned trial Judge was right in law to have considered and acted on the counter-affidavit of the Respondents, regard being had to the fact that same is fundamentally defective in law?
This issue is distilled from Ground One of the Notice of Appeal.
ISSUE NO. 2
WHETHER regard being had to the mandatory and strict provisions of the Land Registration Law of Taraba State, Cap. 75, the learned trial Judge was right in law to have considered Exhibit 4 annexed to the counter affidavit of the Respondents and further construed same to be a legal mortgage?
This Issue is distilled from Grounds Two and Three of the Notice of Appeal.
ISSUE NO. 3
WHETHER the learned Judge was right in law to have held that under the law of contract, the Appellant is bound by the terms of Exhibit 4 annexed to the counter affidavit of the Respondents and also forbidden from challenging its validity, regard being had to the non registration of the said Exhibit 4 as mandatorily required by law?
This Issue is distilled from Grounds Four and Five of the Notice of Appeal.
ISSUE NO. 4
WHETHER the auction of the landed property of the Appellant conducted by the 2nd Respondent is valid in law?
This Issue is distilled from Grounds Six, Seven and Eight of the Notice of Appeal.
ISSUE NO. 5
WHETHER the learned trial Judge was right in law to have considered and acted on Exhibits N6, N9 & N11 annexed to the counter affidavit of the Respondents, regard being had to the strict provisions of the law?
This Issue is distilled from Grounds Nine, Ten and Eleven of the Notice of Appeal.
ISSUE NO. 6
Was the learned trial Judge right in law to have dismissed the claims of the Appellant as being without merit?
This Issue is distilled from Ground Thirteen of the Notice of Appeal.
ISSUE NO. 7
WHETHER the learned trial Judge was right in law to have refused to consider all the weighty and fundamental issues of law raised in the suit by the Appellant, on the ground that the authorities cited by his Counsel were not made available to the Court.
This Issue is distilled from Ground Fourteen of the Notice of Appeal.
On their own part, the Respondents submitted the following three issues for determination:
1. WHETHER THE RESPONDENTS COUNTER AFFIDAVIT CONTAIN (SIC) LEGAL ARGUMENT AND CONCLUSION IN CONTRAVENTION OF SECTION 115 (2) OF THE EVIDENCE ACT 2011 AS AMENDED. GROUND 1.
2. WHETHER THE BURDEN IS ON THE 1ST RESPONDENT TO OBTAIN THE CONSENT OF THE GOVERNOR ON EXHIBIT N4. GROUNDS 2, 3, 4, 5, 6 & 14.
3. WHETHER THE AUCTION SALE CARRIED OUT BY THE 2ND RESPONDENT IS VOID AND OF NO LEGAL EFFECT. GROUNDS 7, 8, 9, 10 & 11 & 13.
Arguing issue 1, learned counsel for the Appellant submitted that the suit number endorsed on the counter affidavit was TRST/38/2010 instead of TRSJ/38/2010 which was the number of the suit.
It was also submitted that 1st and 2nd Respondents are artificial persons yet it was deposed in the counter affidavit that they went to the office of Respondents counsel and gave the information contained in the counter affidavit.
Apart from these, paragraphs 3(a), (c), (d), (e), (f), (o) (p), (r), 5 and 6 are arguments and conclusions and are therefore in breach of Section 115 (2) of the Evidence Act. It was submitted that if these paragraphs of the counter affidavit were struck out, there would have been nothing left to controvert the affidavit evidence of the Appellant.
Issues 3 and 4 were argued together. On these issues, it was submitted that the 1st Respondent was not entitled to sell the mortgaged property under the loan transaction Exhibit N4 being a registrable instrument that was not registered. It was submitted that the implication of not registering Exhibit N4 was that no mortgage agreement was in existence.
It was further submitted that the consent of the Governor ought to have been first sought and obtained before the purported deed of mortgage Exhibit N4 was executed. The Court was referred to Section 22 of the Land Use Act and Savannah Bank (Nig) Ltd vs. Ajilo (1989) 1 NWLR (Pt. 97) 305.
It was nowhere stated in the counter affidavit, it was pointed out, that the consent of the Local Government Chairman of Jalingo Local Government Council was first sought and obtained before Exhibit N4 was purportedly executed.
It was submitted that there was no valid and subsisting mortgage transaction between the Appellant and the 1st Respondent which was capable of conferring on the 1st Respondent the power of sale. Therefore the 1st Respondent lacked the power in law to authorise the 2nd Respondent to auction the property.
The sale, it was submitted, was void and without any legal justification.
On issue 5, it was submitted that the 2nd Respondent not being a registered auctioneer in Taraba State lacked the competence to conduct any auction sale within Taraba State. The Court was referred to Section 4(1) of Auctioneers Law Cap. 13 Laws of Taraba State.
On issue 6, after referring the Court to Section 19 of the Auctioneers Law, it was submitted that the 2nd Respondent did not issue seven days notice or beat drums in Jalingo to announce the proposed auction. The failure to do so, it was submitted, was a fundamental defect which rendered the sale null and void.
The Court was referred to Taiwo vs. Adegboro (2011) Vol. 200 LRCN. 72.
It was further submitted that there was outright collusion between the 2nd and 3rd Respondent to deprive the Appellant of his landed property because the property which was valued at Six Million Naira (N6 Million) by the Estate valuers was sold to the 3rd Respondent at Three Million Naira (N3 Million).
On issue 7, it was contended that since the Respondents did not amend the counter affidavit after the Appellant had amended the originating summons it means the amended originating summons remained unchallenged.
Therefore the Court below erred when it dismissed the action of the Appellant.
On the last issue for determination, learned counsel for the Appellant submitted that the Court below glossed over the Appellants challenge to the competence of the counter affidavit and the exhibits annexed thereto. It was further submitted that the Court below also failed to consider the case of Savannah Bank (Nig) Ltd vs. Ajilo (1989) 1 NWLR (Pt. 97) 305 and other cases cited by learned counsel for the Appellant on the ground the authorities were not furnished to the Court.
This, it was submitted, amounted to a denial of fair hearing.
On Respondents issue 1, learned counsel for the Respondents submitted that the counter affidavit of the Respondents at page 44 to page 49 of the record of appeal is not defective and does not contain any legal arguments. Paragraphs 3 (a, (f), (o), (p), (r) 5 and 6 were responses to the Appellants originating summons, it was submitted. That in any case the Appellant has not shown how the facts deposed to are legal arguments and conclusions; it was argued. The Court was referred to Bamaiyi vs. State (2001) 4 SC (Pt. 1) 18 at 32. The counter affidavit, it was submitted, has not contravened Section 115 of the Evidence Act.
It was submitted that the 1st and 2nd Respondents are artificial persons and failure to mention the persons who came and informed the deponent is not fatal to the counter affidavit. The objection to the suit number on the counter affidavit ought to have been raised at the Court below, it was submitted.
It was submitted that the fact that the counter affidavit was not amended did not mean that the action was undefended.
Appellant, it was submitted, was only raising technical issues and that the days when technicalities were used to defeat substantial justice were gone.
On Respondents issue 2, learned counsel for the Respondents submitted that Exhibit N4 as seen on pages 57 – 64 of the record of appeal is a deed of mortgage.
It was the intention of the Appellant and the 1st Respondent, it was submitted that the customary certificate of occupancy shall be given to the 1st Respondent as a collateral. It was submitted that when the parties have executed the deed of mortgage, they are bound by it. We were referred to Babatunde vs. Bank of the North (2011) 12 SC (Pt. V) 1 at 8.
The burden is on the Appellant, it was submitted, to seek for and obtain the Governors consent to the mortgage. The Court was referred to Owoniboys Tech. Services Ltd vs. Union Bank of Nigeria Ltd (2003) 7 SC 165 at 178.
The appellant having failed to seek the consent of the Governor cannot hide under technicalities and allow his sin to be visited on the 1st Respondent, it was submitted.
It was submitted that since the Appellant and the 1st Respondent willingly entered into the agreement, it was not the duty of the Court to make a contract for them. The Court was referred to Owoniboys vs. Union Bank Ltd (supra).
The Appellant, it was submitted, had failed to redeem the property. There was therefore nothing left for the 1st Respondent than to auction the Appellants property, it was submitted.
On Respondents issue 3, learned counsel for the Respondents submitted that the 2nd Respondent complied with the rules governing an auction sale as provided for in the Laws of Taraba State.
Section 4 (1) of the Auction Law of Taraba State, it was submitted, does not apply to this case because the 2nd Respondent is a registered auctioneer under the Companies & Allied Matters Act. It was submitted that since the 2nd Respondent is duly registered, it is not bound by the Taraba State Auctioneers Law since its registration under the Companies and Allied Matters Act supercedes the registration under the Auctioneers Law of Taraba State.
The Appellant, it was submitted, had been put on sufficient notice of the auction sale which was not challenged. The Court was referred to Exhibit C at page 33 of the record of appeal.
Although learned counsel for the Appellant formulated seven issues, he argued issues 1, 3 , 8. He did not argue issue 2, which he presented for determination but argued issue 8 which he did not present for determination.
I will therefore rather determine the Appeal on the three issues formulated by the Respondents.
It is clear from the claim of the Appellant before the Court below that the main reliefs sought are declaratory in nature. It is trite law that declaratory reliefs are not granted as a matter of course and on a platter of gold. They are only granted when credible evidence has been led by the plaintiff or person seeking the declaratory relief. A declaratory relief will be granted where the plaintiff is entitled to the relief in the fullest meaning of the word. The plaintiff must plead and prove his claim for declaratory reliefs without relying on the evidence called by the defendant. Declaratory reliefs are not granted even on admission by the defendant. See Anyanru vs. Mandilas Ltd (2007) 4 SCNJ 288, Chukwumah vs. S.P.D.C (Nig) Ltd (1993) LPELR-864 SC page 64 – 65, Matanmi & Ors vs. Dada & Anor (2013) LPELR-19929 SC and Akinboni & Ors vs. Akintope & Ors (2016) LPELR-40184 CA page 25 26.
I am surprised that learned counsel for the Appellant noticed that the counter affidavit of the Respondents had suit No. TRST/38/2010 instead of suit No. TRSJ/38/2010 and he kept quiet only to make it an issue on appeal. The appeal Court cannot entertain such a complaint. The complaint ought to have been made at the Court below. As learned counsel for the Respondents pointed out if the complaint was made at the Court below the necessary correction would have been made or effected.
The primary duty of any Court is to do substantial justice. An appellate Court has a duty to do substantial justice between the parties before it and not to be bugged down by technicalities. The wheel of justice will no longer be allowed be clogged with technicalities. See Shuaibu vs. Nigeria Arab Bank Ltd (1998) LPELR-3067 SC page 18 -19 and Akpan vs. Effiong Bob & 4 Ors (2010) LPELR-376 SC.
Learned counsel for the Appellant knew that the error in the number of the suit in the counter affidavit was a mere typographical error.
That is why he was dumb on it. I am disappointed that learned counsel for the Appellant will make this typography error a complaint on appeal. It is this attitude of Appellants counsel that instigated learned counsel for the Respondents to note that the Appellant was concerned with technicalities which the Courts over the years have frowned at. I agree entirely with learned counsel for the Respondents that the Appellants complaint on the minor typography error is a pursuit of technicalities rather than substantial justice. This must be deprecated by the Court.
Learned counsel for the Appellants has also argued that 1st and 2nd Respondents could not have given information contained in the counter affidavit since they are artificial persons. Again I agree entirely with learned counsel for the Respondents that as artificial persons or creatures of the law, they act through human beings. The failure to mention the person/s through whom they provided the information is not fatal to the counter affidavit.
Learned counsel for the Appellant further argued that since the Respondents failed to amend the counter affidavit after the Appellant had amended the originating summons it means that the amended originating summons stands unchallenged.
Certainly that cannot be. If the Respondents found that there was nothing to react to after amendment of the originating summons, they were not bound to amend the counter affidavit for the sake of it.
Learned counsel for the Appellant has further contended that the failure of the Court below to consider Appellants challenge to the counter affidavit and the case of Savannah Bank (Nig) Ltd vs. Ajilo (1989) 1 NWLR (Pt. 97) 305 and some other authorities was a breach of the Appellants right to fair hearing. With due respect to learned counsel for the Appellant, the failure to consider a case or cases cited by a party is not a breach of that partys right to fair hearing. This is because for a principle of law there is a plethora of authorities. A Court may simply ignore the authorities cited and rely on similar or other authorities it considers relevant or on all fours on the issue. In this case, the Court below relied on the Supreme Court decision of Chidoka vs. F.C.F.C. Ltd (2013) 5 NWLR (Pt. 1346) 144 to resolve the argument of learned counsel for the Appellant in respect of Exhibit N4 on the effect of non registration of the agreement between the parties. See judgment of the Court below at page 200.
Learned counsel for the Appellant further submitted that paragraphs 3(a), (c), (d), (e), (f), (o), (p), (r) 5 and 6 of the counter affidavit offend Section 115 of the Evidence Act because they are legal arguments and conclusions. I have gone through the said paragraphs of the counter affidavit and in my view they are not legal arguments and conclusions. Paragraph 6 was the basis for the objection which the Respondents raised as to the procedure of originating summons adopted by the Appellant in this case. It is therefore not offensive to Section 115 of the Evidence Act.
Issue 1 is therefore resolved against the Appellant and in favour of the Respondents.
Where parties have agreed upon the conditions for the formation of a contract and those conditions are embodied in a document then the parties are bound by the terms and conditions set down in the document. See Owoniboys Tech. Services Ltd vs. Union Bank of Nigeria Ltd (2003) 15 NWLR (Pt. 844) 545 at 588.
An instrument which is registrable but not registered can be tendered and admitted to establish evidence of transaction. See N.D.I.C.C. vs. Etokhana (2009) All FWLR (Pt. 467) 111 at 118 and Lekwanwa vs. Ukaegbe (2009) All FWLR (Pt. 469) 539 at 549.
The deposit of a document of title will create in equity a charge upon the property to which the document relates. See Yaro vs Arewa Construction Ltd & 2 Ors (2007) 17 NWLR (Pt. 1063) 333 at 369.
Even if the parties did not execute Exhibit N4 the mere deposit of the customary title by the Appellant with the 1st Respondent would have created an equitable charge upon the property to which the title document relates to the extent of the Appellant who made the deposit. This is because it is a well established rule of equity that a deposit of document of title without writing or word of mouth will create an equitable charge upon the property to which the document relates to the extent of the person who makes the deposit. See Usenfowokan vs. Idowu (1975) 5 U.I.L.R. 39.
Although Exhibit N4 described the transaction between the parties as a mortgage, learned counsel for the Appellant contended that it was a pledge.
That is a mere distinction without a difference. The deposit of the title document by the Appellant as a collateral created in equity a charge upon the property to which the title document relates. There was therefore no basis for the complaint that it was a pledge and not a mortgage. That does not discharge the Appellant from liability.
Learned counsel for the Appellant complained about the sale of the property on the ground that the consent of the Governor or Chairman of the Local Government was not sought and obtained. With due respect to learned counsel for the Appellant, Exhibit N4 is evidence of the transaction between the parties. To enter into such an agreement or contract the 1st Respondent did not need the consent of the Governor or the Chairman of the Local Government. See N.D.I.C. vs. Etokhana (supra) and Owoniboys Technical Services Ltd vs. Union Bank of Nigeria Ltd (supra).
In any case where consent to alienate is required, it is the holder of the statutory right in this case the Appellant that will seek the consent in writing. See Savannah bank (Nig) Ltd. vs. Ajilo (1989) 1 NWLR (Pt. 97) 305 at 328.
Issue 2 is also resolved against the Appellant and in favour of the Respondent.
The power of sale is bestowed upon a mortgagee for his own benefit. It therefore follows that if the mortgagee exercises the power of sale bona fide without corruption or collusion with the purchaser or with reckless impropriety as to tantamount to fraud the Court will not interfere. See Intercity Bank Plc vs. F. & F. F. (Nig) Ltd (2011) 17 NWLR (Pt. 742) 347 at 360 – 361.
Any person who has been caused loss by an unauthorised or improper or irregular exercise of the power of sale shall have his remedy in damages against the person exercising the power of sale. See Ihekwoaba vs. A.C.B. Ltd (2003) 6 SCNJ 326 at 342.
Learned counsel for the Appellant contended that the 2nd Respondent was not licensed under the Auctioneers Law of Taraba State to carry out the sale. But the Respondents counsel contended that the 2nd Respondent was registered under the Companies And Allied Matters Act, as a licensed auctioneer and could carry out the sale. I agree with the learned counsel for the Respondents that the 2nd Respondent being a licensed auctioneer under the Companies And Allied Matters Act was competent to sell the property.
The Appellant has argued that the Respondents did not issue notice of the sale as required by Section 19 of the Auctioneers Law. Although the Appellant denied, that notice of the sale was pasted on the wall of the property sought to be sold before the sale, he did not deny the deposition in the Respondents counter affidavit that the auction sale had been advertised in the Daily Trust a Newspaper circulating in the country.
I do not therefore agree with Appellants counsel that the sale was not advertised.
Issue 3 is also resolved against the Appellant and in favour of the Respondent.
All three issues having been resolved against the Appellant and in favour of the Respondents, the appeal is dismissed.
Respondents are awarded N100, 000.00 costs which shall be paid by the Appellant.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the opportunity of reading in draft form the leading judgment in this appeal just delivered by my learned Brother, James Shehu Abiriyi, J.C.A.
I am at one with His Lordship for the reasons stated in the said leading judgment that the appeal is devoid of merit and also dismiss it. I abide by the consequential orders made therein including that of costs.
SAIDU TANKO HUSSAINI, J.C.A.: I agree.
Appearances:
J. A. Oguche, Esq. For Appellant(s)
U. D. Silas, Esq. For Respondent(s)
