AGBO & ANOR v. ACCESS BANK & ANOR (2020)

AGBO & ANOR v. ACCESS BANK & ANOR

(2020)LCN/14910(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, December 02, 2020

CA/E/110/2017

RATIO

APPEAL: RULE ON RAISING A NEW ISSUE FOR DETERMINATION ON APPEAL

As earlier pointed out, parties are not allowed to raise a new issue or alter the case made by them at trial without the leave of Court. See AKUNEZIRI VS OKENWA (2000) 15 NWLR (PT. 691) 526, NGIGE VS. OBI & ORS (2006) LPELR-12920 (CA) and ORJI VS FRN (2019) LPELR-46534 (SC). PER KAYODE OYEWOLE, J.C.A.
CONTRACT: BINDINGNESS OF AGREEMENTS ON PARTIES

Courts cannot make or rewrite contracts for parties. That being so, extraneous terms cannot be read into written documents between parties. See MEKWUNYE VS. IMOUKHUEDE (2019) LPELR-48996(SC), KAYDEE VENTURES LTD VS. THE HON. MINISTER FCT & ORS (2010) LPELR-1681(SC), OWONIBOYS TECH. SERVICES LTD VS. UBN LTD (2003) LPELR-2854(SC) and BABATUNDE & ANOR VS. BANK OF THE NORTH LTD & ORS (2011) LPELR-8249(SC). PER KAYODE OYEWOLE, J.C.A.
COMPANY LAW: CORPORATE ENTITY OF A COMPANY

That an incorporated entity has a separate and independent existence from the promoters thereof is a long settled position of the law. See SALOMON VS SALOMON & CO. LTD (supra). PER KAYODE OYEWOLE, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Between

1. MR. EMMANUEL AGBO 2. MANISTRONICS NIG. LTD APPELANT(S)

And

1. ACCESS BANK PLC 2. CHIEF VICTOR UMEH RESPONDENT(S)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division, holden at Enugu, delivered on the 14th December, 2016 by OZOEMENA, J.

The Appellants had instituted an action at the trial Court for the invalidation of the sale by the 1st Respondent to the 2nd Respondent of a property mortgaged by the 1st Appellant to the 1st Respondent as security for loan. The reliefs sought by the Appellants in the said action are as follows:
1. A declaration that the sale of the 1st Plaintiff’s property known as No. 39/41 Idodo Street, Achara layout, Enugu, with Power of Attorney registered as No. 71 at page 71 in Volume 1482 at the Lands Registry, Enugu, by the 1st Defendant to the 2nd Defendant is illegal, null and void.
2. A declaration that the deed of mortgage dated the 14th day of September, 2004 between the 1st Plaintiff and the 1st Defendant as well as the registration of same at the Lands Registry, Enugu, is invalid and of no effect whatsoever.
3. An order of Court setting aside the purported sale of the 1st Plaintiff’s

property known as No. 39/41 Idodo Street, Achara Layout, Enugu, and registered as No. 71 at page 71 in Volume 1482 at the Lands Registry, Enugu.

Parties joined issues on their pleadings and proceeded to trial where they adduced oral and documentary evidence. After taking the final addresses of the respective counsel, the learned trial Judge delivered a considered judgment dismissing the Appellants’ case for lacking in merit.

Dissatisfied, the Appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 17th January, 2017. At the hearing of the appeal, Chief Ugwunnadi the learned counsel for the Appellants adopted the Appellants’ brief filed on the 24th April, 2017 as well as their Reply brief filed on the 16th November, 2017 but deemed properly filed and served on the 27th October, 2020 as the arguments of the Appellants in furtherance of this appeal. While, for the Respondents, Mr. Udenze, their learned counsel adopted their brief filed on the 30th August, 2017 but deemed properly filed and served on the 27th October, 2020 as the arguments of the Respondents in contesting the appeal.

The Appellants distilled seven issues which were adopted by the Respondents. The said issues are hereby set out as follows:
1. Whether when the evidence led by the Appellants and evidence led by the Respondents at the trial Court are put in the imaginary scale of justice the balance of probabilities and weight of evidence is in favour of the Respondents as the trial Court held. (distilled from grounds 1 and 8 of the notice of appeal).
2. Whether where the Court has made a clear finding that the mortgaged property was sold at gross undervalue and that there were elements of fraud in the case, the trial Court can still validly in law allow the sale to stand by dismissing the Appellants’ case. (distilled from ground 2 of the notice of appeal).
3. Whether the trial Court was right in law to have regarded and treated the 1st and 2nd Appellants two different legal entities as one in dealing with the 1st Respondent in the transaction leading to this suit. (distilled from ground 3 of the notice of appeal).
4. Whether the trial Court was right in law to hold that the purported mortgage deed was valid when the so called mortgage deed was not consented to by

the Governor of Enugu State. (distilled from ground 4 of the notice of appeal).
5. Whether the trial Court was right in law to have dismissed the Appellants’ suit and uphold the sale of the so called mortgaged property by the 1st to 2nd Respondent, as against the clear finding of the trial Court that title in the property the subject matter of the case never passed from the 1st Appellant to the 2nd Appellant. (distilled from ground 5 of the notice of appeal).
6. Whether the trial Court was right to uphold the sale of the mortgaged property by the 1st to 2nd Respondents as against its findings that the 2nd Respondent was not a bonafide purchaser without notice. (distilled from ground 6 of the notice of appeal).
7. Whether the trial Court is not bound by law to resolve all issues raised by the parties one way or the other before dismissing the Appellants’ case. (distilled from ground 7).

My take off point shall be the fourth issue which challenges the validity of the deed of mortgage between the Appellants and the 1st Respondent and upon which the fate of the other issues rests. The said issue was formulated thus:

Whether the trial Court was right in law to hold that the purported mortgage deed was valid when the so called mortgage deed was not consented to by the Governor of Enugu State.

Arguing this issue, Chief Ugwunnadi submitted that the mortgage deed Exhibit 4 was not consented to by the Governor of Enugu State in compliance with Section 22 of the Land Use Act as the purported consent by a certain Ogbonna Ike in his capacity as Commissioner for Lands Enugu State fell short of the requirement of the said Section 22. He referred to UNION BANK PLC VS AYODARE & SONS LTD (2007) 4 KLR (PT 235) and SAVANNAH BANK (NIG) LTD VS AJILO (1989) 1 NWLR (PT 324).

The learned counsel further argued that although the Governor could delegate his powers under Section 22 of the Land Use Act, the fact of delegation, identity and capacity of the signatory to Exhibit 4 are matters of evidence which the Respondents ought to have pleaded and led evidence to prove. He added that the finding of the trial Court in the absence of such pleading and evidence amounted to speculation and referred to R. EJEZIE & ANOR VS C. ANUWU & ORS (2008) 4 SCNJ 113 at 1030.

Chief Ugwunnnadi further argued that the position taken by the trial Court that the Appellants could not be allowed to profit from their own wrongs was not applicable in view of the position taken by the Supreme Court in UNION BANK PLC VS AYODARE & SONS LTD (supra) and SAVANNAH BANK (NIG) LTD VS AJILO (supra). He argued that the appropriate position of the law is as stated in UNION BANK PLC VS AYODARE & SONS LTD (supra), which is the latest decision of the Apex Court on the subject. He urged the Court to hold that Exhibit 4 and all steps predicated on it are all null and void.

Contrariwise, Mr. Udenze submitted that the said Exhibit 4 was pleaded and relied upon by both sides but tendered by the Appellants who had the duty of rebutting the presumption of regularity it enjoyed pursuant to Sections 145 and 148 of the Evidence Act which duty could not be shifted to the Respondents as Appellants were attempting to do.

He submitted further that parties are bound by their pleadings and that the Appellants did not plead or contend any challenge to the status or capacity of the signatory to Exhibit 4 at the trial Court to necessitate any evidence to establish same.

He referred to TEMCO ENG. & CO. LTD VS S.B.N. LTD (1995) 5 NWLR (PT 397) 607 at 612. He submitted that the learned trial Judge was right in applying the position of the law as stated by the Supreme Court coram NWEZE, JSC in PHARMATEK PROJECT LTD VS TRADE BANK (NIG) PLC (2009) 4 WRN 18.

It was further argued that the contentions of the Appellants on the wordings of the consent in Exhibit 4 was not part of their case at the trial and could not be raised on appeal as a fresh issue without leave. He submitted that parties cannot be allowed to make inconsistent cases and referred to KANNIKE VS FAYOMI (2005) 9 WRN 183, GARBA VS GALADIMA (1993) 4 NWLR (PT 285) 72 at 84 and LUKE OKORO & ORS VS HILARY EGBUOH & ORS (2006) 6 SCNJ 258.

The learned counsel submitted that while the case of UNION BANK PLC VS AYODARE & SONS LTD (supra) did not specify the manner of consent, the circumstances here were different as the act of the Commissioner enjoyed a presumption of regularity. He submitted that cases are authority for facts considered therein and that the issue of a mortgagor who failed to secure consent seeking to rely on his wrong to have the

mortgage voided was not considered in UNION BANK PLC VS AYODARE & SONS LTD (supra). He conceded that the said point was considered in SAVANNAH BANK VS AJILO (supra) but that the decision therein was subsequently modified in later cases including UGOCHUKWU VS CCB (supra), AWOJUGBAGBE LIGHT INDUSTRIES VS CHINUKWE (1993) NWLR (PT 270) 379, OWONIBOYS TECHNICAL SERVICES LTD VS UNION BANK PLC (2003) 15 NWLR (PT 844) 545, OMOZEGHIAN VS ADJAROH (2006) 4 NWLR (PT 697) 33 and AGBABIAKA VS OKOJIE (2004) 15 NWLR (PT 897) 503.
He urged the Court to hold that Exhibit 4 was valid and proper.

The arguments of the Respondents introduced a few new points which ordinarily should have evinced a response from the Appellants in their reply brief. I scrutinized the Reply brief of the Appellants but the only whimper of a response on this issue was a declaration that there was nothing to be added to the arguments already canvassed.
However, this is one situation where much ought to have been said to diffuse the submission of the Respondents that the arguments canvassed herein on this issue were not covered by the pleadings upon which the litigation was fought at

the trial Court. The accepted position of the law is that an appeal being a continuation of the former suit and not the beginning of a new one, must be fought on the basis of the issues joined in the lower Court. See ADEGOKE MOTORS LTD. VS ADESANYA (1989) 3 NWLR (PT 109) 250 at 266 and AKPENE VS. BARCLAYS BANK OF NIGERIA LTD & ANOR (1977) LPELR-386(SC).
The Appellants must of necessity cross this hurdle before their submissions before this Court could be considered. A perusal of the pleadings of the Appellants at trial threw up paragraph 38 of the Statement of Claim as the only relevant averment. Therein the Appellants averred thus:
38. The Plaintiffs aver that the Deed of Mortgage between the 1st Plaintiff and the 1st Defendant was not consented to by the Governor of Enugu State.
In the Statement of Defence of the Respondents contained on pages 167-171 of the record of appeal, the Respondents joined issues with the Appellants in paragraph 20(e) thereof thus:
20 (e) All the over-draft facilities were secured by
(i) A tripartite Legal Mortgage over the plaintiff property known as No. 39/41 Idodo Street Achara Layout, Enugu with

Power of Attorney registered as No. 71 at page 71 in Volume 1842 of the Registry of Deed kept at the Land Registry Enugu. The Tripartite Legal Mortgage is registered as No. 74 at page 74 in Volume 1529 of the Registry of Deed kept at the Land Registry Enugu. This Tripartite Deed of Legal Mortgage will be relied on at the trial.
(ii) Full and Unconditional Personal Guarantee of the 1st plaintiff as the Managing Director of the 2nd plaintiff. This Personal and Unconditional Guarantee will be relied on at the trial.
(iii) All these facility and renewals was at the instance of the plaintiff by way of letters, all these letters will be relied on at the trial.
The Appellants filed a Reply to Statement of Defence which is on pages 234-236 of the record of appeal. Paragraphs 6 and 13 thereof are pertinent in this regard and are as follows:
6. The plaintiffs deny paragraph 3(f) (i) and state that the N5,000,000.00 granted vide application dated 26th October, 2006 was not covered by any mortgage. There is no tripartite legal mortgage as far as the transaction between the 2nd plaintiff and the 1st defendant is concerned the unexecuted deed of legal

mortgage does not apply to this transaction.
13. The plaintiffs deny paragraph 20(e) of the statement of defence and put the defendants to strict proof.
By the pleadings, the case of the Appellants was that there was no tripartite legal mortgage between the Appellants and the 1st Respondent, that the deed of legal mortgage executed between the 1st Appellant and the 1st Respondent was not consented to by the Governor of Enugu State, that the deed of legal mortgage between the 1st Appellant and the 1st Respondent did not apply to the loan granted to the 2nd Appellant and that the said deed was not even executed.
At trial, the 1st Appellant testified as PW1 and adopted two depositions on oath as part of his evidence in chief. In the first one deposed to on the 15th January, 2008, he was categorical in paragraph 44 thereof that the deed of mortgage between him and the 1st Respondent was not consented to by the Governor of Enugu State. In the second deposition made on the 20th June, 2008 he stated in paragraphs 5, 6 and 7 thus:
5. There is no tripartite legal mortgage executed amongst myself, the 2nd plaintiff and the 1st defendant over my

property No. 39/42 Idodo Street Achara Layout Uwani Enugu. The 2nd plaintiff has no title over my property No 39/41 Idodo Street Achara Layout Uwani Enugu and cannot mortgage same to secure a loan.
6. I did not apply or obtain any loan from the 1st defendant and did not mortgage my property No. 39/41 Idodo Uwani Enugu to secure a loan I am not a party to.
7. The purported legal mortgage does not apply to the transaction of N5,000,000.00 granted by the 1st defendant to the 2nd plaintiff. Sale of my property, No. 39/41 Idodo Street Achara Layout Uwani Enugu by private treaty does not arise. There is no right of sale, of my property in favour of the 1st defendant.
It is instructive that while the Appellants were practically ferreting out various possible challenges to the sale of the mortgaged property, they never raised any issue relating to the delegation of the power of the Governor under Section 22 of the Land Use Act or as regards any deficiency in the manner Exhibit 4 was consented to. In fact the argument of their counsel in the final address was that there was no Governor’s consent.
Before this Court, the Appellants tweaked their

earlier case and gave it a new identity different from what it was at trial. As earlier pointed out, parties are not allowed to raise a new issue or alter the case made by them at trial without the leave of Court. See AKUNEZIRI VS OKENWA (2000) 15 NWLR (PT. 691) 526, NGIGE VS. OBI & ORS (2006) LPELR-12920 (CA) and ORJI VS FRN (2019) LPELR-46534 (SC).
The new arguments now canvassed by the Appellants in their bid to disqualify Exhibit 4 without the leave of Court having been sought and obtained are incompetent and shall be discountenanced. I resolve the said issue against the Appellant and in favour of the Respondents.

Issues 3 and 5 shall be taken together. The said issues are:
Whether the trial Court was right in law to have regarded and treated the 1st and 2nd Appellants two different legal entities as one in dealing with the 1st Respondent in the transaction leading to this suit.
And
Whether the trial Court was right in law to have dismissed the Appellants’ suit and uphold the sale of the so called mortgaged property by the 1st to 2nd Respondent, as against the clear finding of the trial Court that title in the property

the subject matter of the case never passed from the 1st Appellant to the 2nd Appellant.

On these issues, Chief Ugwunnadi argued that the finding of the trial Court that the Appellants were one and the same for the purposes of the transaction had no basis in the pleadings and adduced evidence and therefore goes to no issue. He referred to AJOKE VS YESUFU OBA & ANOR (1962) ALL NLR 73, SALOMON VS SALOMON & CO. LTD (1897) AC 22 and KANO STATE OIL & ALLIED PRODUCTS LTD VS KOFA TRADING CO. LTD (1996) 3 NWLR (PT 436) 224.

He argued that the Appellants were two separate legal personalities with different obligations to the 1st Respondent. That while the loan transaction was strictly between the 2nd Appellant and the 1st Respondent, the mortgage deed Exhibit 4 was between the 1st Appellant and the 1st Respondent. He then submitted that contracts cannot confer rights or impose liabilities or parties who were strangers to it. He referred to REBOLD INDUSTRIES VS MAGREOLA & ORS (2015) 62 (PT) 1 NSCQR 427.

He submitted that Exhibit 4 made no reference to the 2nd Appellant and that the property of the 1st Appellant could not be sold for debts

owed by the 2nd Appellant. He further argued that from the findings of the trial Court, title in the property sold was not held by the 2nd Appellant, there was nothing the said 2nd Appellant could pass to the 1st Respondent in respect of the loan transaction and consequently, the 1st Respondent had no title to pass to the 2nd Respondent. He submitted that documents speak for themselves without any room to improve or vary the contents and urged the Court to consider the full purport of Exhibit 4. He referred to OLADAPO VS STANBIC IBTC PLC & ANOR (2014) LPELR 22449(CA), UDOGU VS OKI (1990) 5 NWLR (PT 153) 721-736 and DA ROCHA VS HUSSEIN (1985) SCNLR 280.

Contrariwise, Mr. Udenze argued for the Respondents that the findings of the trial Court accorded with the evidence adduced by the Appellants at trial that the Appellants although distinct acted in unison and that the evidence of the 1st Appellant as PW1 was that he deposited his title document as collateral for loan granted the 2nd Appellant by the 1st Respondent.

The learned counsel argued further that arguments unveiling the 2nd Appellant were canvassed at trial and urged the Court to consider

the arguments. He referred to Section 290 of the Companies and Allied Matters Act, Cap C20, Laws of the Federation 2004, FIRST BANK NIG. PLC VS EXCEL PLASTIC IND. LTD (2003) 13 NWLR (PT 837) 412 at 459-461 and ALELE VS OLU (2007) 7 NWLR (PT 911).

It was submitted by the learned counsel that the trial Court rightly uncovered the attempt by the Appellants to enjoy the benefits of the loan granted them without repayment thereby benefitting from their wrong. He referred toALHAJI FATAI ADEKUNLE TERIBA VS AYOADE TIAMIYU ADEYEMO (2010) 4-7 SC (PT 11) 1. He contended that allowing the Appellants get away with technicalities would stand justice on its head and referred to ARE VS SALIU (2005) 37 WRN 160 and IBRAHIM VS OSIM (1988) 6 SCNJ 203 at 220.

In the Reply brief, the Appellants reiterated their earlier submissions that there was no basis for lifting the veil as there was no fraud and that having held that title did not pass from the 1st Appellant to the 2nd Respondent, it was erroneous of the trial Court to have validated the transfer of title to him. Their learned counsel urged the Court to discountenance the cases referred to by his learned friend for the Respondents as inapplicable.

It is trite that parties are bound by the agreements freely entered into by them and the Courts will give not hesitate to give effect to the terms thereof. See UNION BANK OF NIGERIA VS PROF ALBERT OZIGI (1994) 3 NWLR (PT 333) 385 and A.G. FERRERO & CO LTD VS. HENKEL CHEMICALS (NIG.) LTD (2011) LPELR-12 (SC).
In interpreting the deed of mortgage herein, Exhibit 4, the learned trial Judge stated on page 365 (lines 20-22) of the record of appeal, thus:
Exhibit 4 reveals the fact of a legal mortgage involving both plaintiffs and the 1st defendant in different capacities under the same transaction. Both plaintiff, therefore equally share the risk and consequences of the transaction.
I have repeatedly gone through Exhibit 4 and cannot find support for the above stated assertion. Exhibit 4 is a deed of legal mortgage between the 1st Appellant and the 1st Respondent. The entire document made no mention of the 2nd Appellant or any loans or advances to be made to it by the 1st Respondent. It was a deed of mortgage to secure borrowings of the 1st Appellant. It is not the business of the Court to write contracts for

parties and extrinsic or parole evidence will not be permitted to vary the content of written documents between parties. See UNION BANK OF NIGERIA VS PROF ALBERT OZIGI (supra).
The misconception of the trial Court was further evident from its preliminary observation on page 364 of the record of appeal, (lines 14-19) as follows:
The loan agreement of 2004 was actually between the 1st plaintiff and the first defendant. The 1st plaintiff was the alter ego of the 2nd plaintiff. In taking out the loan of N10,000,000.00, the 1st plaintiff deposited his property No. 39/41 Idodo Street, Achara Layout Enugu (the mortgage property) to create legal mortgage. This legal mortgage stands as collateral security for the loan. The plaintiffs from time to time renewed and increased the over-draft for different tenors on the terms and conditions of the initial grant.
I believe the figure of Ten Million Naira was a typographical error but more importantly, Exhibit 4 fails to support the observation. The said document was to secure loans granted to the 1st Appellant and nothing therein suggests an extension to the 2nd Appellant.
The dispute between the parties

in the case before the trial Court was not for recovery of loan but as regards the exercise of the power of sale by of a mortgaged property by private treaty. The entire pleadings and testimony of the Appellants did not include any denial of the indebtedness of the 2nd Appellant to the 1st Respondent. The said loan was recoverable by several means including the personal guarantee of the 1st Appellant but the 1st Respondent cannot recover loans granted the 2nd Appellant through the exercise of the power of sale contained in Exhibit 4 unilaterally. Courts cannot make or rewrite contracts for parties. That being so, extraneous terms cannot be read into written documents between parties. See MEKWUNYE VS. IMOUKHUEDE (2019) LPELR-48996(SC), KAYDEE VENTURES LTD VS. THE HON. MINISTER FCT & ORS (2010) LPELR-1681(SC), OWONIBOYS TECH. SERVICES LTD VS. UBN LTD (2003) LPELR-2854(SC) and BABATUNDE & ANOR VS. BANK OF THE NORTH LTD & ORS (2011) LPELR-8249(SC).
That an incorporated entity has a separate and independent existence from the promoters thereof is a long settled position of the law. See SALOMON VS SALOMON & CO. LTD (supra). The parties to Exhibit

4 did not include the 2nd Appellant and the deed of mortgage entered into in the said Exhibit 4 by the 1st Appellant and the 1st Respondent did not include any clause securing any loan or advances made by the 1st Respondent to the 2nd Appellant. Extrinsic evidence cannot be permitted to vary the expressed contents of exhibit 4. See UNION BANK OF NIGERIA VS PROF ALBERT OZIGI (supra) and LEWIS VS. UBA (2016) LPELR-40661(SC).

The submissions of the Respondents that to agree with the position of the Appellants would make them benefit from their wrongdoing or stand the law on its head would appear to be totally misplaced. The 1st Respondent is not helpless in recovering the loan and advances made to the 2nd Appellant. The said loan carries the personal guarantee of the 1st Appellant and the said indebtedness was never denied nor was it contested in the entire trial. The 1st Respondent chose to recover the debt in a manner not covered by the agreement between the parties and cannot foist a fait accompli on the Court or canvass argument ad misericondium.

I therefore resolve these two issues in favour of the Appellants and against the Respondents.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Having come to the above conclusion, issues 1, 2 must inevitably follow the same course and be resolved in favour of the Appellants and against the Respondents while issue 7 has become academic and shall be discountenanced. This leaves issue 6 which is as follows:
Whether the trial Court was right to uphold the sale of the mortgaged property by the 1st to 2nd Respondents as against its findings that the 2nd Respondent was not a bonafide purchaser without notice.

On this issue, the Appellants faulted the failure of the trial Court to set aside the sale after finding that the 2nd Respondent was not a bonafide purchaser for value. Reference was made to ANIMASHAUN VS OLOJO (1990) 6 NWLR (PT 154) 111 at 121-123, OMOSANYA VS ANIFOWOSHE (1995) 4 FSC 94 at 99 and EKA-EKET VS H.N.D.S. LTD (1973) 8 NSCC.

The response of Mr. Udenze was that the trial Court did not hold that the 2nd Respondent was not a bona fide purchaser for value but simply held that the 2nd Respondent was not an innocent purchaser. Learned counsel contended that having been aware of the circumstances necessitating the sale, the 2nd Respondent was indeed not an innocent purchaser.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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He contended that the validity of Exhibit 10 was never challenged and that the sale having been conducted pursuant to the power of sale under a mortgage, the sale would not be set aside. He referred to Section 126 of the Property and Conveyancing Law Cap 100 1959 and a plethora of cases.
In his Reply brief, Chief Ugwunnadi reiterated his submissions.

As earlier pointed out, the deed of mortgage, Exhibit 4 was to secure loans granted to the 1st Appellant. Throughout the trial, the Respondents failed to adduce evidence of any such loan granted the 1st Appellant. The entire case of the Respondents was based on the false premise that Exhibit 4 extends to loans granted to the 2nd Appellant, a company with a separate legal existence. The basis for the exercise of the power of sale under Exhibit 4 was not established by the Respondents, the said sale and any other transaction tracing its foundation to the said sale cannot be sustained.

I therefore resolve this issue as well in favour of the Appellants and against the Respondents.
In totality, this appeal is meritorious and I allow it accordingly.
22

The Judgment of the trial Court is hereby set aside and consequently I hereby grant the reliefs of the Appellants as follows:
1. It is hereby declared that the sale of the 1st Appellant’s property known as No. 39/41 Idodo Street, Achara layout, Enugu, with Power of Attorney registered as No. 71 at page 71 in Volume 1482 at the Lands Registry, Enugu, by the 1st Defendant to the 2nd Defendant is illegal, null and void.
2. An order is hereby made setting aside the purported sale of the 1st Plaintiff’s property known as No. 39/41 Idodo Street, Achara Layout, Enugu, and registered as No. 71 at page 71 inVolume 1482 at the Lands Registry, Enugu.
3. Parties shall bear their respective costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privileged of being availed in advance the draft of the Lead Judgment of my Learned Brother, JOSEPH OLUBUNMI KAYODE OYEWOLE JCA, and I totally endorse the reasoning and conclusion that the defence of alibi raised by the Appellant succeeds as he adduced sufficient evidence to that effect.

The Appeal is meritorious and hereby succeeds. The judgment of the Trial Court is hereby set aside and consequently I hereby grant the reliefs of the

Appellants. Parties shall bear their respective costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that this appeal has merit. It is hereby allowed. I abide by the consequential orders made therein.

Appearances:

Chief U. Ugwunnadi For Appellant(s)

Mr. I. Udenze For Respondent(s)