Alhaji Balele Rafukka V. Ahmadi Kurfi (1996)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The appellant in this appeal was the owner of landed property known and called Rafukka Supermarket at Katsina covered by a statutory certificate of occupancy No. NC 2480 dated 30th December 1976. In order to secure loan and overdraft facilities, the appellant mortgaged this property to the Union Bank of Nigeria Plc., which as an unpaid mortgagee advertised and sold the property by public auction through an auctioneer to the respondent. The property was sold to the respondent at the cost of N200, 000.00 after complying with all the necessary requirements by a Deed of assignment duly executed and registered in the land registry at Katsina. Following the purchase of the property, the respondent applied for and was duly issued with a new statutory right of occupancy No. 4174 after the revocation of the appellant’s original certificate of occupancy No. 2480. The revocation of the appellant’s certificate of occupancy was duly communicated to the appellant. The respondent then orally and in writing requested the appellant to vacate the property and allow the respondent vacant possession. On refusal by the appellant to deliver possession of the property to the respondent, the respondent went to the lower court and filed an action asking for a number of reliefs including a declaration that the property was validly assigned to him by the Union Bank, that the appellant is no longer the holder of the right of occupancy No. 2480 as the right had been revoked by the Governor, that the appellant is now a trespasser on the said property and an order ejecting the appellant from the property.

After pleadings have been exchanged between the parties, the case went to trial before Sanusi J., of the Katsina State High Court of Justice. At the end of the trial, the learned trial Judge in his judgment delivered on 7/6/94 granted all the reliefs sought by the respondent as the plaintiff against the appellant who was the defendant in the action at the trial court. Aggrieved by the decision of the trial court, the appellant has now appealed to this Court. His notice of appeal dated 18th July, 1984 contains four grounds of appeal from which the following 3 issues were formulated in the appellant’s brief of argument.

1. “Whether or not the Bank has a valid title in respect of Rafukka Supermarket at Katsina to pass to the respondent and if the answer is yes whether or not all condition precedent to enable the said Union Bank pass a valid title to the respondent were satisfied by the Bank.
2. Whether or not the evidence adduced in this matter was properly evaluated by the trial Judge in view of the provision of Sections 53 and 74 of the Evidence Act as regard Exhibit B, a subsisting judgment between the Bank, the respondent’s root of title to the disputed Supermarket and the appellant.
3. Whether or not the Bank’s reopening the issue of the appellant’s indebtedness to it (Bank) is proper in law in view of the fact that the issue had been adjudicated upon in Suit No. KTH/29/89 which was tendered in this Suit as Exhibit ‘B’ which is still a subsisting judgment up till date.”

Identical issues but worded differently were also identified in the respondent’s brief of argument. The 3 issues in the respondent’s brief read:-

1. “Whether or not the Union Bank as unpaid mortgagee has a valid title pertaining to and in respect of Rafukka Supermarket at Katsina to pass to the respondent.
2. Whether or not there was a proper evaluation of the evidence adduced in this matter by the learned trial Judge before arriving at a just decision in this case.
3. Whether or not Estoppel per-rem judicata operates against the respondent in this suit in view of Exhibit ‘B’ tendered by the appellant in this matter.”

Having examined these issues as raised in the respective briefs of the parties to this appeal, I am of the view that the issues as identified in the appellant’s brief although not elegantly framed clearly arose from the 4 grounds of appeal filed by the appellant. I shall therefore proceed to determine this appeal on these issues.

Precisely put, the first issue is whether the Union Bank of Nigeria Plc, had a valid title to the property known and called as Rafukka Supermarket Katsina which the respondent could have acquired by the purchase of the property. It was argued in the appellant’s brief that he did not mortgage the property in dispute to the Union Bank and that the issue of his indebtedness to the Union Bank was decided by the High Court since 1989 in the Judgment Exhibit ‘B’ which shows that the appellant was not indebted to the Bank to warrant the Bank to sell the property in dispute to the respondent. That having regard to the finding in Exhibit ‘B’, the Union Bank had no title to Rafukka Supermarket which it could have validly passed on to the respondent by sale. It was pointed out in the appellant’s brief that since Exhibit ‘B’ is a piece of evidence which is neither contradicted nor challenged it must be accepted by the trial court. Three cases including the case of Linus Onwuka & Anor. v. Omagui; (1997) 3 NWLR (Pt. 230) 393 (1992) 3 SCNJ 98 were cited and relied upon in support of this submission. It was further argued that since the respondent is a privy in the case decided in Exhibit ‘B’, he was bound by the decision in that case having regard to the case of Akinfolarin V. Akinola; (1994) 3 NWLR (pt. 335) 739 (1994) 4 SCNJ (Pt. 1) 30 at 48 – 49 until that judgment is set aside on appeal by a court of competent jurisdiction. Learned counsel for the appellant concluded his argument by stressing that the respondent being a privy and successor in title to the Union Bank is bound by the decision in the judgment Exhibit ‘B’.

It was however submitted for the respondent that having regard to the evidence on record which had established that the loan on which the property in dispute was secured by mortgage with the Union Bank was outstanding as the result of which the Bank decided to exercise its power to sell the secured property and duly advertised the same for sale through auction, the purchase of the property by the respondent after complying with all necessary conditions duly conferred title on the respondent. The case of Okafor & Sons Ltd. v. Nigeria Housing Development Society (1972) NSCC 271 at 278 was cited in support of this argument. The respondent further pointed out that once the Union Bank as mortgagee has exercised its powers of sale, the purchaser who is the respondent in this case is not concerned to see whether an occasion has arisen which makes the power exerciseable or whether the power is properly exercised as any person such as the appellant if he is prejudiced by an improper sale has a remedy in damages against the person exercising the power. In support of this argument, the case of Oguchi v. Federal Mortgage Bank (Nig.) Ltd. (1990) 6 NWLR (Pt. 156) 330 at 343 was cited and relied upon by the respondent.

This issue of whether the Union Bank of Nigeria had title to the property in dispute which it could have passed on to the respondent was also raised at the lower court and the learned trial judge made a number of findings based on the evidence before him. The first finding was on the indebtedness of the appellant to the Union Bank. The learned trial Judge found that the appellant was duly granted loan and overdraft facilities by the Union Bank. That the loan and overdraft duly secured by the property in dispute through legal mortgage remained unpaid by the appellant after repeated demands by the Bank. That as at the time the appellant’s Rafukka Supermarket was sold by auction to the respondent on 1/12/89; the appellant was indebted to the Union Bank to the tune of N101, 460.00. That although the appellant denied being indebted to the Bank or mortgaging his landed property in dispute to it, he was not able to support this assertion by convincing evidence. The learned trial Judge’s conclusive finding on this issue at pages 13 – 14 of his judgment reads

“Thus in the light of the aforesaid, I am left with no colour of doubt in my mind that the defendant had mortgaged the landed property in question for the sum he was loaned by the Bank. The said mortgage has been valid one since all the prerequisite conditions of mortgage has been sought and obtained before the execution of the mortgage. The Bank therefore can and indeed has derived valid title of the land when the loan agreement became due and was defaulted by the defendant. Thereupon, the title of the land became duly transferred to the Bank regarding the said landed property. The Bank can therefore be legally right to transfer such title of the land to any purchaser upon the latter’s payment of the sum agreed by the Bank through any form of deed of sale through public auction or manner of sale.

On the plaintiff’s purchase of the said land as an innocent purchaser the title of the land can be said to have properly passed to him through his purchase of the said from the mortgagee i.e. Bank. Having not been shown to been aware that power of sale by the Bank has not become exercisable he can be said to have really acquired an unimpeachable title of the said land. See Oguchi’s case (supra).”

These findings and conclusions of the learned trial Judge are indeed fully supported by the evidence on record. The fact that the appellant mortgaged the property in dispute to the Union Bank in return for a loan and overdraft facilities is not at all in doubt as the Deed of mortgage executed by the parties was in evidence. The fact that the loan secured by the mortgage was not fully repaid by the appellant when, it became due is also in evidence through PW 2. Therefore, the Union Bank as an unpaid mortgagee duly armed with the documents of title to the property in dispute through the Deed of Mortgage, namely certificate of occupancy No. 2480, had all what was required for it to be able to transfer title to the property to the respondent. There is clear evidence from PW 2 at page 38 of the record that as the result of the appellant’s failure to pay his liability to the Bank, the Bank advertised the appellant’s property Rafukka Supermarket for sale by public auction. The respondent having shown an interest in the property by offering to purchase the same and duly purchased the same at an auction had indeed acquired a valid title to the property. There is no doubt that vesting a legal title in respect of landed property in a person is a matter of law. Being a matter of law entirely, its determination lies entirely within the exclusive domain of the learned trial Judge. See Gankon v. Ugochukwu; (1993) 6 NWLR (Pt. 297) 55 (1993) 6 SCNJ (Pt. 11) 263 at 273. Therefore in the present case, the conclusion reached by the learned trial Judge based on the evidence before him that the respondent had acquired a valid title to the property in dispute to justify granting him all the reliefs he asked for in the action is quite in order.

It is important to note that incident to every mortgage is a right of the mortgagor to redeem. This right is generally referred to as the right of redemption. The right to redeem is so inseparable an incident of a mortgage that it cannot be taken away even by an expressed agreement of the parties that the mortgage is not to be redeem or that the right is to be continued to a particular time or to a particular description of persons. The right continues unless and until the mortgagor’s title is extinguished or his interest is destroyed by sale either under the process of the court or of a power in the mortgage deed. Ejikeme v. Okonkwo; (1994) 8 NWLR (Pt. 362) 266 (1994) 9 SCNJ 131 at 140. Therefore in the present case the power of sale having been exercised in accordance with the Deed of Mortgage between the Union Bank and the appellant, the appellant’s title to the mortgaged property had been extinguished or destroyed by the sale of the property to the respondent.

Perhaps it is not out of place to remind the appellant that having mortgaged his Supermarket to the Union Bank to secure the loan granted to him, the Bank had a potent weapon of a mortgagee to exercise its power of sale on the only condition that it acts in good faith. Warner v. Jacob (1882) 20 Ch. D. 220 cited with approval by the Supreme Court in Eka-Eteh v. Nigerian Housing Development Society Ltd. (1973) 6 SC 183 at 198 is the authority for the preposition that –

“If it mortgage exercise his power of sale bona fide for the purpose of realising his debt, and without collusion with the purchaser, the court will not interfere, even though the sale is disadvantageous, unless the price is so low as in itself to be evidence of fraud.”

See also the decision of this Court in Oguchi v. Federal Mortgage Bank (Nig.) Ltd. (1990) 6 NWLR (Pt. 156) 330; Union Bank v. Ozigi (1991) 2 NWLR (Pt. 176) 677 and Moses Ola & Sons (Nig.) Ltd. v. Bank of the North Ltd. (1992) 3 NWLR (Pt. 229) 377. In the present case there is no complaint that the power of sale was not exercised bona fide or that it was exercised in collusion with the respondent as the purchaser or even that the price of N200, 000.00 at which the property was sold was so low as to suggest fraud. The only complaint of the appellant that based on the judgment Exhibit ‘B’ he was not indebted to the Union Bank at the time his property was sold to the respondent is not supported by the evidence on record. This is because although the judgment Exhibit ‘B’ decided that the appellant was indebted to the Union Bank to the tune of only N8,000.00 while the sum of N41, 290.00 as his counter claim was due to him from the Bank, the evidence of PW2 which was accepted by the trial court that the case in Exhibit ‘B’ was in respect of a different account from the account in respect of the present case was not refuted by the appellant. This Court being an appellate court will not interfere with the findings of a lower court unless such findings are perverse or would occasion miscarriage of justice. See Woluchem v. Gudi (1981) 5 SC 291 and Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432. Therefore in the resolution of this first issue for determination, I shall answer the question in the affirmative.

The second issue for determination is whether the evidence adduced at the lower court was properly evaluated by the learned trial Judge in line with Sections 53 and 74 of the Evidence Act as regard the judgment Exhibit ‘B’. It was argued for the appellant that in the resolution of the issues raised at the lower court, the learned trial Judge failed to properly evaluate the evidence contained in Exhibit ‘B’ regarding the state of the indebtedness of the appellant to the Union Bank against the evidence of PW 2. That since Exhibit ‘B’ is a judgment which had already decided the extent of the appellant’s indebtedness to the Bank, it is conclusive proof as against the parties and their privies, the respondent inclusive and this had made the evidence of PW 2 inadmissible. Relying on a number of cases including the case of Registered Trustees of the Apostolic Faith Mission & Anor. v. Umo Bassey James & Anor; (1987) 3 NWLR (Pt.61) 556 (1987) 7 SCNJ 167 at 180, learned counsel for the appellant urged this Court to evaluate the evidence in Exhibit ‘B’ which was ignored by the learned trial Judge.

However, for the respondent it was submitted that the learned trial Judge properly evaluated the evidence called by the parties including Exhibit ‘B’ before arriving at his decision. Learned counsel pointed out that the learned trial Judge duly considered the issues raised in Exhibit ‘B’ in his judgment. That in addition, he also considered the defence of illiteracy and the defence of non-est-factum raised by the appellant and rejected them. Referring to pages 15 and 16 of the judgment of the trial court where the issues raised in Exhibit ‘B’ were considered by the trial court and rejected, learned counsel urged this court to dismiss the claim of the appellant that the defence raised in Exhibit ‘B’ was not evaluated by the learned trial Judge. That the lower court having properly evaluated all the evidence before it in arriving at its decision, the need for this Court to again re-evaluate the evidence does not arise. Relying on the case of Imah & 1 Ors. v. Okogbe & 1 Ors (1993) 9 NWLR (Pt.316) 159 (1993) 12 SCNJ 57 at 77 among a number of cases cited by the respondent in his brief, learned counsel urged this Court not to disturb the findings of the lower court.

There is indeed a duty on the trial court to analyse the evidence of both sides of the dispute, gauge the credibility of the witnesses, ascertain whether or not grave contradictions exist in the evidence to warrant its belief or disbelief and then ultimately ascribe probative value to any piece of such evidence which the court deems deserving such value. This consideration of the evidence of the adversaries is a legal requirement which must be complied with by the trial Judge. The pendulum of the imaginary scale of justice must contain each and all of the competing sets of evidence, and wherever the balance tilts signifies that the set which has tilted the balance has more weight. See Balogun v. Agboola (1974) 10 SC 111 and Mogaji v. Odofin (1978) 4 SC 91. Did the learned trial Judge in the present case fail to consider Exhibit ‘B’ as part of the evidence put before him by the appellant as alleged in the argument of the appellant on this issue? The answer of course is in the negative having regard to record of the trial court. The defence raised by Exhibit ‘B’ was duly considered by the learned trial Judge at page 16 of the judgment were he said –

“In the instant case plea of estoppel per rem judicata relied on by the defendant cannot stand as the parties are different. See Exh. B which shows the parties to be Union Bank Nig. Ltd. v. Alhaji Balele Rafukka. In that case the subject matter is claim of a sum of money in Union Bank against the defendant in that case who is also a defendant in this case. I therefore hold that the plea cannot be sustainable.”

Clearly the learned trial Judge in his findings above had given reasons for not relying on Exhibit ‘B’ to defeat the claim of the respondent. In any case from the arguments of the appellant on this issue, all the appellant is saying is that having regard to the decision of the High Court in Exhibit ‘B’, he was not indebted to the Union Bank to justify the sale of his Rafukka Supermarket to the respondent by the Union Bank. However, apart from relying on the judgment Exhibit ‘B’ which the appellant described as conclusive, he did not lead positive evidence to show that the findings of the court in Exhibit ‘B’ was specifically related to the debt secured by the mortgage of his Rafukka Supermarket to the Union Bank in the present case.

Quite contrary in fact his case at the lower court was a complete denial of the existence of the loan and the Deed of Mortgage which he denied executing. In fact what the appellant is trying to do with Exhibit ‘B’ in this case is to transfer a finding of fact from one case to another which the law says he cannot do. See Odunsi v. Boulos (1959) 4 FSC 234 at 237 and Dike v. Nzeka II (1986)4 NWLR (Pt. 34) 144.

The attitude of this Court to findings of fact by a trial court is indeed well known. This Court as an appellate court has always maintained that it will not ordinarily disturb the judgment of a lower court that is based on findings of fact which are supported by the evidence accepted by the trial court. This is the attitude of the Supreme Court as well. See Salami v. Oke (1987) 4 NWLR (Pt. 63) 1; Anyanwu v. Mbara (1992) 5 NWLR (Pt. 242) 386 and Ekretsu v. Oyobabere (1992) 9 NWLR (Pt. 266) 438. Therefore in the instant case there is no justification for this Court to either re-evaluate the evidence or interfere with the findings of the learned trial Judge which findings are clearly based on the evidence before him.The third and last issue for determination in this appeal is whether the judgment Exhibit ‘B’ constituted a defence of res judicata in favour of the appellant against the respondent who was not a party in that case. It was argued for the appellant that in considering the defence of res-judicata in its judgment at pages 15 to 16 of the judgment, the trial court should have gone further to analyse as to whether the respondent was a privy to one of the parties in that case in connection with the sale of Rafukka Supermarket. Counsel referred to the case of Iyaji v. Eyigebe; (1987) 3 NWLR (Pt. 61) 523; (1987) 7 SCNJ 148 at 162 and argued that estoppels per rem judicata operates for or against not only the parties but also against privies in blood, title or interest. Learned counsel to the appellant contended that a careful examination of Exhibit ‘B’ shows that the claim was in relation to a loan allegedly granted to the appellant for which the Bank alleged that the appellant’s Supermarket was mortgaged to it. That since the judgment Exhibit ‘B’ to which the respondent is a privy shows that the appellant was not indebted to the Union Bank the respondent who derived his title to the property in dispute in the present case from the Union Bank is bound by the decision in Exhibit ‘B’ on the issue of the reasons for the sale of the property in dispute.

In the respondent’s brief however, it was contended that the necessary requirements for the application of the defence of res judicata have not been satisfied in the present case having regard to the decision in the same case of Iyaji v. Eyigebe (supra). That in the present case neither the parties nor the subject matter are same as those in the case in Exhibit ‘B’. As for the defence of issue of estoppels also raised by the appellant, learned counsel to the respondent referred to the part of the evidence of PW 2 under cross-examination at page 42 of the record and submitted that it is quite clear that the principle does not apply in the present case which was based on a different account from the account on which the case in Exhibit ‘B’ was based.

I have already quoted part of the decision of the lower court earlier in this judgment in which the lower court rejected the plea of res-judicata. The findings of the learned trial Judge in this respect, supported as they were by the credible evidence before him, I cannot see how his conclusion that the plea of estoppel per rem-judicata did not apply could be faulted. The Supreme Court in Aro v. Fabolude (1983) 2 SC 75 per Aniagolu, J.S.C. (as he then was) laid down the ingredients of the plea of res-judicata in these words –

“In civil cases, before the principle is applied, the res (the subject matter) in contention must be the same; the issue and the parties the same in the new case as in the earlier proceedings. Where any of the three matters is missing in the new case a plea of res-judicata will ordinarily fail (See Odua v. Nwanze (1934) 2 WACA 98 at 100 – 102.”

These requirements of establishing a plea of res-judicata were affirmed by the Supreme Court in its recent decision in the case of Falaye v. Otapo (1995) 3 NWLR (Pt. 331) 1 at 28.In the present appeal, there is no doubt at all that the res in the present case are not the same as the res in the case in Exhibit ‘B’. The parties in the present case are not the same either as the parties in the case in Exhibit ‘B’. Furthermore even the issues in the present case are not the same as the issues raised and determined in the case in Exhibit ‘B’. In other words while in the present case the principal issue is whether the respondent had acquired title to Rafukka Supermarket following the sale to him of the property by the Union Bank of Nigeria Plc., the main issue in the case in Exhibit ‘B’ is the recovery of the loan granted to the appellant by the Union Bank. While the parties in the case in Exhibit ‘B’ are the Union Bank and the appellant, the parties in the present case are the appellant and the respondent who indeed is not a privy to the Union Bank for the purpose of the case in Exhibit ‘B’ as argued by the appellant because the res in the two cases are not the same.

Similarly the issues in the present case relate mainly to the sale of Rafukka Supermarket Katsina to the respondent by the Union Bank while the issues in the case in Exhibit ‘B’ relate mainly to the issues of the appellant’s indebtedness to the Union Bank and his counter claim against the Bank. It is not difficult therefore to see that all the three ingredients for the application of the plea of res-judicata are not present in the instant case to warrant its application by the learned trial Judge or this Court in the appeal.

However, having regard to the arguments of the appellant in support of this issue, the appellant is also relying on issue estoppel to prevent the respondent and the lower court from relying on the evidence of PW 2 on the state of the appellant’s indebtedness to the Union Bank, the same according to the appellant having been raised and determined in the judgment Exhibit ‘B’. Issue estoppel applies when parties or their privies are prevented in a subsequent suit from relitigating an issue which had earlier on been adjudicated upon by a court of competent jurisdiction and which same issue comes incidentally in question in any subsequent proceedings. In other words issue estoppel applies to preclude a party from contending the contrary or opposite of any specific point which having once been distinctly put in issue has with certainty and solemnity been determined against him.

The ingredients necessary for the application of the plea of issue estoppel are:-

1. The parties in the present suit must be the same as in the previous proceedings.
2. The decision relied upon to support the plea of issue estoppel must be final.
3. And the same question must be for decision in both proceedings that is to say the question for decision in the current suit must have been decided in the earlier proceedings.

See Ezewani v. Onwordi (1986) 4 NWLR (Pt. 33) 27. Indeed in the present case, the question of the indebtedness of the appellant to the Union Bank was raised and determined in Exhibit ‘B’. The same question was also raised incidentally and determined in the present case in the course of the determination by the lower court if the power of sale in the Deed of Mortgage was rightly exercised by the Union Bank before the property of the appellant was sold to the respondent. The decision relied upon by the appellant in Exhibit ‘B’ is also a final decision. However it is quite clear as I have earlier found in this judgment that the parties in the present case are not the same as the parties in Exhibit ‘B’. Although the appellant has argued that the respondent in the present case is a privy to the Union Bank in the proceedings in Exhibit ‘B’, it is quite clear that having regard to the res and the issues determined in the case in exhibit’ B’ the respondent cannot be said to have any title or interest in that case to justify classifying him as a privy to the Union Bank. In other words the Bank is not a party to the present case and the respondent is not a privy of the Sank as the issue of title to the property in dispute was not an issue in the case in Exhibit ‘B’. PW 2 although an employee of the bank merely testified in this case as a witness for the respondent. He was not representing the Union Bank in the case as the Bank is not a party to the case. It is therefore wrong for the appellant to accuse the Union Bank of reopening the issue of his indebtedness in the present case in which the Bank is not even a party. It follows therefore that the necessary conditions for ‘the application of the plea of issue estoppel in favour of the appellant have not been met either. Consequently in the resolution of this issue, I hold the view that neither the plea of res-judicata nor the plea of issue estoppel is available to the appellant in the present case.

On the whole, I am of the firm view that the decision of the lower court which is the subject of this appeal is fully supported by the evidence on record. I do not therefore see any justification in disturbing that decision. This appeal has no merit and IT IS HEREBY DISMISSED. The decision of the Katsina State High Court in this matter delivered on 7/6/94 IS HEREBY AFFIRMED.

The respondent shall have one thousand naira (N 1,000.00) costs against the appellant.

Other Citations: (1996)LCN/0232(CA)