Alhaji Tukur Mohammed V. Alhaji Abubakar Abdulkadir & Ors (2007)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the judgment of U. Adamu J (now retired) of Kaduna State High Court of Justice (the lower court) delivered on 11th day of March 2003. The first respondent herein as plaintiff at the lower court, sued the respondents herein as co defendants and sought the under mentioned declaratory and injunctive reliefs as per his Amended Statement of Claim dated 10th of January, 1997. The reliefs are;

1.) A declaration that the purported sale of the plaintiff’s property situate at No 3 Kachia Road Shopping Centre, Kaduna South, Kaduna covered its by Certificate of Occupancy No 6500 carried out sometimes in June 1992 without the knowledge or consent of the plaintiff is unlawful null and void illegal, and contrary to existing Federal Legislations and contrary to the Deed of Legal mortgage, in that;

(a) The exercise of sale is conditional upon compliance with the mandatory provisions of Land Use Act.

(b) No consent was obtained until the 3rd of May 1994 after the plaintiff had liquidated the loan account to which the property was tied.

(c) Even the consent obtained had been reversed by the Military Administrator of Kaduna State.

(d) Consequently, at the time of the said transfer the 1st defendant no longer had any right or title over the said property to transfer to the 2nd Defendant.

2. A declaration that the said exercise of power of sale was vitiated by overt acts of bad faith and or fraud in that:-

(a) The property was not sold for its market price.

(b) No proper valuation was carried out so as to ascertain the true worth of the property.

(c) No licensed auctioneer was appointed as required under the Auctioneer’s Law, Cap (sic) to carry out the auction.

3. A declaration that the Deed of Legal mortgage was void on account of the fact that at the inception of the transaction, there was no deposit of the Certificate of Occupancy.
4. A declaration that with the payment of the principal loan in the sum of N=1.8m vide a cheque of N=3.6m on 4/2/94 the property purportedly mortgaged stood released from the terms of the mortgage deed and the balance which consists on only interest elements can only be recovered through an action instituted in court.
5. On account of Declarations in 1,2,3 and 4 herein, an order setting aside the purported sale of the afore described property.
6. A declaration that the 2nd Defendant based on the foregoing and on the maxim NEMO DAT QUAD NON HABETAT did not and can not acquire any title to the plaintiff’s aforesaid property on the ground that all steps leading to the purported sale was vitiated by the Defendant’s breaches of statutory pre-conditions and the Deed of legal Mortgage covering the property.
7. A perpetual injunction restraining the Administrator of Kaduna State from cancelling or purporting to cancel the plaintiff’s Certificate of Occupancy No 6500 dated the 21st day of September 1978 or granting or purporting to grant a right of occupancy in the name of the 2nd Defendant or in the name of any other person so long as the basis of the purported transfer is predicated on any purported transfer of title from 1st Defendant to the 2nd defendant.
8. An order of injunction restraining the 4th Respondent acting in the name of the Administrator of Kaduna State from granting the 2nd respondent or purporting to grant him a right of occupancy

over the said property and if already granted, an order setting aside the said grant.

9. An order of injunction restraining the Defendants particularly the 2nd Defendant, from taking possession of the afore described property or from using any court or tribunal to secure the said possession on the ground that the 2nd Defendant purported right is null and void in as much as it is based on any transaction between him and the 1st Defendant or on the Deed of Legal Mortgage.

On the other hand, the 1st and 2nd Defendants filed their Joint Statement of Defence where they made the under mentioned counter-claim:-

a. “The sum of N=3,734,809.76K being outstanding balance in the plaintiff’s account into the 1st Defendant as at 27/9/96.

b. Compound interest at the rate of 21% per annum from 27/9/96 to date of judgment and thereafter, interest to accrue at the rate if 10% until liquidation of the entire judgment debt.

c. An order directing the plaintiff to return forthwith, the original copy of the Certificate of Occupancy No 6500 to the 1st Defendant.”

The facts of the case which gave rise to this appeal are simply summarized as follows:- The 1st respondent herein, was a customer of the 2nd respondent Bank and was granted credit facilities by the 2nd respondent on his request for the sum of N=310,000. In that regard, the 1st respondent tendered and deposited as security to the loan, a Certificate of Occupancy covering a landed property situate and lying at plot No 3, Kachia Road Shopping Complex, Kaduna South, Kaduna in favour of the 2nd respondent by way of Deed of Legal Mortgage. The 1st respondent was unable to liquidate the indebtedness to the 2nd respondent despite repeated demands on him to settle the loan and threats of realization of the mortgaged property. Consequently, the 2nd respondent placed advertisement in a national daily newspaper ‘The Reporter’ for the sale of the mortgaged property by public auction fixed for 5th June 1992. The said property was later sold to the appellant herein, by public auction two days after necessary notices of auction were advertised and served on the 1st respondent. The property was sold to the appellant/2nd defendant at a cost of N=3.7 million.

After the auction sale, the 2nd respondent/defendant applied for consent of assignment of title which was granted by the Governor of Kaduna State to the 1st defendant. It was at that stage, that in 1994 the 1st respondent petitioned the Military Administrator of Kaduna State in relation to the sale of the said property to the appellant/2nd defendant. The Military Administrator there upon directed the 3rd respondent to postpone further action on the perfection of assignment pending the outcome of a suit instituted by the 1st respondent/plaintiff. In otherwords, the 1st respondent (as plaintiff) sued the 2nd respondent and the appellant as 1st and second defendants respectively, while the Hon. Attorney General of Kaduna State and Director General Bureau of Land and Survey and Controller Planning, were also joined in the suit as nominal parties as 3rd and 4th Defendants respectively (now the 3rd and 4th respondents.) At a protracted trial, two witnesses were called by the plaintiff/1st respondent to prove his claims while the 1st defendant (2nd respondent) also called two witnesses. The 3rd and 4th defendant ( 3rd and 4th respondents) jointly called only one witness. In the end, the learned trial judge found in favour of the plaintiff and granted all the reliefs sought by the plaintiff/1st respondent.

Dissatisfied with the decision of the trial court, the appellant/2nd defendant appealed to this court on six grounds of appeal as set out below with their particulars:-

GROUNDS OF APPEAL

1. The learned trial judge erred in law when he Held as follows:- The letter dated 11/5/94 Pages 85 of Exhibit 32 directed for with-

Holding the issues of consent to the 2nd Defendant by the 4th defendant. With this Letter it seemed that no transfer and any Prior alienation was effected in favour of The 2nd defendant by the 4th defendant.

PARTICULARS

(a) The letter of 11/5/94 under reference in the above finding of the trial Court albeit contained in Exhibit 32 (i.e the relevant file in the Lands Registry) was not demonstrated in evidence and admitted as Exhibit to warrant the court to place reliance on same.

(b) The Bureau for Lands and Survey had by a letter dated 3/5/94 and in reaction to an application for consent made by Savannah Bank of Nigeria Ltd approved the assignment of right of occupancy in respect of the property covered by certificate of occupancy No. 6500 in favour of the appellant.

(c) The letter of 11/5/94 relied upon by the trial Court merely put on hold further transaction in relation to the assignment pending the outcome of the petition written by the 1st Respondent and the impending suit in court.

(d) The letter of 11/5/94 was not intended to and did not have the effect of reversing the administrative steps already taking (sic) in the process of perfecting the assignment of title in respect of the disputed property to the Appellant.

(e) The trial Court placed reliance on extraneous events and evidence to arrive at the finding of fact that no prior transfer of title was effected in favour of the appellant.

2. The trial court misdirected itself in law in relying on the ipsi dixit of the 1st Respondent to come to the conclusion/finding that the sale of the property at the cost of N=3.7 million was outrageous and below the market price.

PARTICULARS

(a) The issue of proper market value of property is one of expert evidence.

(b) Exhibit 26 which the 1st Respondent relied upon to support his allegation of under value is prime-facie destitute of necessary data to quality (sic) same for an expert evidence in contradistinction to Exhibit 29 tendered by the appellant.

(c) Under value in itself is not sufficient to vitiate auction sale in the absence as it were of evidence of collusion between the mortgagor and the Mortgagee.

3. The learned trial judge misdirected himself on the facts when he held thus “indeed I can not pronounce the fact that the plaintiff’s title to the property had been extinguished or destroyed by the sale of the property in dispute to the 2nd Defendant by the 1st Defendant.”

PARTICULARS

(a) The above finding is not supported by any iota of evidence.

(b) Oral and documentary evidence abound to the effect that as at June 1992, the 1st Respondent

was indebted on the mortgage transaction consequent upon which the Mortgagee auctioned the mortgaged property.

4. The trial court erred in law when it applied the ratio decidendi in the case of RAFUKKA VS KURFI (1996) 6 (PT 1) page 235 at 243 E-F, to the facts of this case.

PARTICULARS

(a) As at August 1992, when the 1st Respondent presented a cheque for N=2million to the Mortgagee, the mortgaged property had been auctioned to the Appellant in June 1992 and so there was no longer any equity to be redeemed.

(b) The right of equity of redemption subsists and enures to the benefit of the mortgagor until same is extinguished by the conduct of exercise sale under the mortgage deed by public auction.

5. The Learned trial judge misdirected himself on the facts when he held that there are sufficient evidence from both side (sic) establishing facts that there is violations of conditions provided in the auction Law.

PARTICULARS

(a) There are no pieces of evidence on both side establishing violations of the provision of the Auctions Law save the issue of insufficiency of the days required under the Law.

(b) The trial Court failed to avail itself with the preponderance of case law to the effect that non compliance with strict requirements of auction Law shall not affect the right and title of third party who purchased in an auction sale.

(c) There were ample documentary evidence before the lower Court in way of correspondence on the issue of the sale of the mortgaged property between the Mortgagor and the Mortgagee such as to put the Mortgagor sufficiently on Notice as to the auction sale of the mortgaged property.

6. The learned trial judge misdirected himself in law when he applied the ratio decidendi in the case of DANGOTE v. CSC PLATEAU STATE (2001) FWLR 1639 AT 1663 to the facts of this case.

PARTICULARS

(a) The facts and circumstances surrounding the Dangote’s case are quite different and distinct from the facts of the instant case.

(b) Dangote’s case revolves around the special procedure provided for seeking remedy of the enforcement of fundamental human right.

(c) The instant case borders on the effect of not complying strictly with the 7 days notice required for an auction sale.

(d) There are plethora of case Law which have treated such non-compliance as an irregularity and therefore not capable of vitiating the sale.

The learned senior counsel for the 1st respondent obtained leave of this court to file Notice so that the judgment of the lower court now being appealed against, is confirmed by this court on facts other than those relied upon by the learned trial judge. The grounds in the first respondent’s Notice are as follows:-

(a) That the purported sale of the property. In issue by the 2nd respondent to the 2nd Defendant/appellant was from the totality of the evidence available to the court a gross under value of the true worth of the property so as to be evidence itself of fraud and collusion between the parties.

(Relief No 2 of the Amended Statement of Claim.)

(b) That the purported sale of the property itself was a breach of the fundamental covenants of the Mortgaged Agreement, Exhibit 1, in that the sum of money claimed upon which the property was purportedly sold was false and a misrepresentation of the indebtedness of the 1st respondent’s debt (Reliefs 1 and 4 of the Amended Statement of Claim.

I intend to deal with the two points raised in the Notice when treating the issues proposed by the two learned counsel. But before doing so, I wish to pause and reflect on some submissions made on page 30 of the 1st Respondent’s Brief of Argument on the said Notice. Thereon, the learned senior counsel submitted that there was nowhere in the printed record that the learned trial judge made the lack of notice for sale by auction in accordance with the Auctioneer’s law as the basis for setting aside the auction sale. The learned counsel buttressed that point when he referred to page 166 of the record, where the learned trial judge held as follows:-

“Clearly, the question of failure to meet the requirement in a statute is question requiring extensive evidence from both sides. Indeed there is sufficient evidence from both sides establishing facts that there is a violation of condition provided in the Auctioneers’ Law specifically Sections 19 and 20 of same where statute provides that certain things must be complied with client must not infact violate such mandatory requirement. I wish to in this circumstances (sic) rely on Dungote Vs. Plateau State (sic) (2001) FWLR 1639 at 1663.”

He further contended that that trial court did not base the success of the plaintiff’s case on the non-compliance with the Auctioneers Law, as there was no findings or order that the failure to comply with the Auctioneers Law vitiated the purported sale. Rather, the sale was set aside according to the learned senior counsel for the 1st respondent, on other grounds.

The learned silk therefore frowned at the appellant’s senior counsel’s decision to make the issue of non-compliance with the Auctioneer’s Law as one of his grounds of appeal.

Permit me to observe at this stage, that the basis on which the Notice was filed by the 1st respondent is that the property was sold on gross under valued price, as would smack of the offence of fraud and collusion and also in breach of the covenants as well as for those other reasons. He wanted the lower court’s judgment affirmed by this court on reasons in addition to those other facts it relied on in setting aside the sale. It would appear to me that by so asking, the learned silk for 1st respondent is trying to eat his cake and have it. To my mind, he can either depend on the judgment upon facts relied upon by the trial judge, or to reject those facts and rely upon other grounds. I am of the view that the purport of a Notice to affirm judgment, simply suggests that the reasoning of the trial court in the judgment appealed against is correct and ought to be retained, but the respondent who filed such Notice feels strongly about it and is somehow not comfortable with the conclusions reached therein, but inspite of its correctness, he would want that judgment retained by adopting or accepting his reasons in his Notice to affirm. See John v. Anyaduba and ors Vs. Nigeria Renowned Trading Company Ltd (1960) All NLR 169. It is trite law, that a party who wants a judgment affirmed on grounds other than those relied upon by the trial court can not at the same time rely upon the grounds relied upon by the trial judge to have the judgment affirmed. See American Cyanamid Company Vs. Vitality Pharmaceuticals Ltd (1991) SCNJ 42 at 52. In the instant case, the 1st respondent’s counsel is from his submissions relying on grounds other than those relied upon by the trial court in his relief and at the same time he wants the said judgment affirmed by this court on those other ground in addition to those relied upon by the lower court. This I am afraid he can not do.

At any rate, in the event that I am wrong in my opinion or reasoning above, I will still consider the points contained in the Notice when treating the issues for determination raised in the briefs of argument as I said earlier.

Briefs were filed and exchanged by some of the parties.

The appellant’s briefs of Argument dated 3/6/2004 was deemed filed on 18/1/2005. The appellant also filed Appellant’s Reply Brief of 28/4/2000; which was dated 16/5/2006. The 1st Respondent upon being served with Appellant’s Brief, filed his Brief of argument on 7/2/2006. The 2nd Respondent did not file brief of argument. Similarly, the 3rd and 4th Respondents who are nominal parties also did not file any brief of argument.

In the Appellant brief of argument, three issues were proposed for the determination of the appeal which are reproduced below:-

1. Whether the failure to comply with the seven days notice for the publication of auction sale vitiates the said sale so to render same null and void (Relates to Ground 5 and 6.)
2. Whether the reliance by the trial Court on extraneous evidence and events in reaching the purported findings of facts was proper in law (Lifted from Grounds 1 and 2).
3. Whether it was proper for the trial court to hold and treat the equity of redemption as enuring to the benefit of the 1st respondent even after the conduct of the auction sale of the mortgaged property in June 1992 (Related to grounds 3 and 4).

The 1st respondent in his brief of argument also formulated three issues for determination which read thus;-

(a) Whether as held by the learned trial judge Hon. Adamu J. the plaintiff’s equity of redemption was available and property utilized to redeem the charged properly as the mortgagor’s title had not been extinguished or destroyed by the purported auction of the mortgaged property (Grounds 3 and 4 of the Notice of Appeal).

(b) Whether in arriving at a decision to grant the plaintiff all the reliefs sought, the learned trial judge relied on inadmissible, extraneous, or untested evidence (Ground 1) and

(c) Whether the failure by the unpaid mortgagee to comply with the conditions precedent set out in the Auctioneer’s Law before purporting to auction property, vitiated the entire exercise (Grounds 5 and 6.)

A close look at the issues raised by the parties in the two Briefs of argument will convince oneself that Issue No.1 in the appellant’s brief is similar to Issue 3 raised in the 1st Respondent’s brief. Issue 2 raised by the appellant also tallies with issue 2 in the 1st Respondent’s brief, while Issue 3 in the appellant’s brief is similar to the 1st issue formulated by the 1st respondent.

I will approach this appeal by considering the issues raised in the appellant’s brief of argument. They do not only encapsulate all the issues contained in the 1st respondent’s brief but have also covered all the grounds of appeal filed.

But before embarking on the treatment of the issues, I deem it pertinent to state that the 1st Respondent in his Brief raised preliminary objection challenging the competence of all the six grounds of appeal filed by the appellant in his Notice of Appeal which I copiously reproduced in the fore paragraphs of this judgment. However, before I deal with the merit of the preliminary objection, I deem it necessary to pause and reflect on what transpired in the court on 1/11/2006 when the parties argued this appeal before us. On that day, Mr Yunus Usman SAN of learned Senior counsel to the appellant urged this court to discountenance the preliminary objection raised in the 1st respondent’s brief of argument on the ground that the latter did not file any notice of Preliminary Objection as required by the provisions of Order 3 Rule 15 (1) of the Court of Appeal Rules 2002. He also on such submission, relied on the cases of Fasher Industrial and Property Executive Aviation Services Ltd and 2 Ors (2006) 6 NWLR (Pt.975) 1 at 13 Para D-E; Livestock Feeds v. Funtua (2005) 17 NWLR (Pt.995) 501 at 561 Para A-H.

He further submitted that where Preliminary Objection is raised in respondent’s brief, the notice has to be argued. He submitted that in the present case, the 1st respondent’s senior counsel did not argue the preliminary objection raised in his brief of argument. He prayed that the purported preliminary objection be dismissed or struck out by this court. In his response, Mr J.B. Daudu SAN, urged this court to discountenance the submissions of the appellant’s counsel on the preliminary objection and to consider his Preliminary objection since the appellant has filed a Reply’ to his preliminary objection. He relied on the authorities of Tom v. Ameh (1992) NWLR (Pt.217) 306 at 316 and Oji Vs. Zaria industries Ltd (1992) 1 NWLR (Pt.216) 124 at 148.

Since Order 3 Rule 15 (1) of the Rules of this court is the pivot on which the appellant’s complaint on the preliminary objection revolves, I think it is helpful for a better appreciation and appraisal of the complaint, to set down the provisions of the Rules below:-

Order 3 Rule 15(1) of the Court of Appeal Rules 2002 reads thus:-

15(1) – A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registrar within the same time.”

By the provision of the above mentioned/quoted rules, where a party has preliminary objection to raise against competence of any grounds of appeal, he must give the appellant three days notice before the objection is heard. See Offorkire v. Maduike (2003) 5 NWLR (Pt.812) 166 at 178. In considering a preliminary objection, the core point to begin with is the propriety of raising a preliminary objection in the brief of argument without filing of formal notice thereof, at least three days before the hearing of the appeal and without proffering oral argument on it as in this instant case. It is not in dispute that in this case the 1st respondent did not file any notice of preliminary objection not to talk about giving three clear days notice. The 1st respondent merely raised it in his brief of argument. Again, when the appeal came for oral argument the said learned counsel did not orally argue it before he argued his appeal. In accordance with the rule in Nsirim Vs. Nsirim (1990) 3 NWLR (pt.138) 285 at 297, a preliminary objection must always be argued before the main appeal even if raised in the brief. Again from the decisions in plethora of decided authorities of this court and of the apex court, the provisions of Order 3 Rule 15(1) must always be mandatorily complied with, See cases of Livestock Feed Plc VS. Funtua (supra); Also in the case of FIPDC Nig Ltd vs. EAS Ltd (supra) where the present learned senior counsel for the appellant, Yunus Usman SAN who incidently acted as counsel for the respondent fell into that trap, in that he argued his preliminary objection contained in his respondent’s brief without filing notice of preliminary objection. This court discountenanced his preliminary objection on ground of non-compliance with this court’s Rule. See also Bayero Vs. Mainasara and Sons Ltd (2006) 8 NWLR (Pt.982) 391, However, in the case of Beecroft Vs. Cudjoe & Ors (2006) 8 NWLR (pt.983) 557 Jos Division of this court per Nzeako JCA, in considering the purport of the rule in question, held that where a respondent failed to comply with the said rule, the court has the discretion to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it deems fit. See also Uko Vs. Ekpengany (2006) 5 NWLR (pt.972) 70 at 90.

Well, in the first place, I have read the two cases of Tom v. Ameh (supra) and Orji Vs. Zaria Industries Ltd (supra) cited and relied on by the learned senior advocate of Nigeria Mr. J.B. Daudu for the 1st respondent while replying the appellant’s senior counsel’s arguments challenging the propriety of the preliminary objection raised in the first respondent’s brief of argument without filing prior notice and/or without proffering oral argument before arguing the appeal.

Mr. Daudu SAN, has apparently conceded to the fact that he did not argue the objection he raised in the brief of argument he filed on behalf of the 1st respondent. It would appear to me that in some decided cases it had earlier been held that a respondent must raise preliminary objection by separate notice which he has to file and cannot raise any preliminary objection in his brief of argument without filing Notice to that effect. With time however, the law developed on the procedure of raising in the Brief of Argument, preliminary objection to hearing of appeal or challenging the competence of grounds of appeal. It is now allowable for a party wishing to raise preliminary objection to raise same in his brief of argument.

Such procedure has now been adjudged to constitute due compliance with the requirements of Order 3 Rule 15(1) of this Court’s Rules. But where the party chooses to raise his preliminary objection in his brief of argument alone, he must seek and obtain leave of court to move such objection at the oral hearing or while arguing the appeal. Where such leave of the court to move the objection is not sought and obtained, the objection is deemed abandoned and is incompetent and should be discountenanced and struck out by the court. See Nsirim Vs. Nsirim v. Arewa il Plc v. Abdullahi and others (1998) 6 NWLR (Pt.554) 508; Tiza Vs. Begha (2005) 15 NWLR (pt.949) 616; EBN Ltd Vs. Halilco (Nig) Ltd 2006) 7 NWLR (Pt.950) 568; Aremo II Vs. Adekanye (2000) 2 NWLR (Pt.644) 257;

As I posited above, at the hearing of this appeal on 1/11/2006, Mr. J.B. Daudu SAN did not apply or seek leave of this court to move his preliminary objection which he merely incorporated in his brief of argument, before the hearing of the appeal. The stand of the law now is that his failure to do so would tantamount to this court deeming his preliminary objection to have been abandoned. See Tiza Vs. Begha (supra Arewa ile Ltd Vs. Abdullahi supra) Ajide Vs. Kelani (1985) 3 NWLR (Pt.12) 248; Fawehinmi Vs. NBA (No.1) (1989) 2 NWLR (Pt.105) 495; Magit Vs. University of Agriculture Makurdi (2005) 19 NWLR (Pt.959) 211 at 238/239; Salami Vs. Mohammed (2000) 9 NWLR (pt. 673) 4691 Nisirim Vs. Nsirim (supra).

In a most recent Supreme Court decision of Onochie Vs. Odogwa (2006) 6 NWLR (Pt.978) 65, Ogbuagu JSC had this to say at page 79.

“I note that at the hearing of this appeal, the learned counsel for the respondents did not apply/seek leave of the court before the hearing of the appeal to move the said objection. The consequence is that the preliminary objection is deemed by the court as having been abandoned …

the preliminary objection is accordingly struck out”.

Having said so, I am inclined to uphold the submission of the learned senior counsel for the appellant, that the preliminary objection filed by the 1st respondent having not been moved by him at or before the hearing of the appeal, ought to be deemed abandoned and as a corollary, it ought to be discountenanced. I accordingly do so and strike it out.

This brings me to the consideration of the issues raised by the parties. When doing so, I will consider the appellant’s issues for determination seriatim.

Issue No I

On this issue, the appellant queries whether failure to comply with the seven days notice for the publication of auction sale vitiates the auction sale as would render it null and void. The learned counsel for the appellant conceded that the notice of the auction sale as contained in “The Reporter” newspaper (Exhibit 20) published on 3rd June 1992 was short of seven days as required by Section 19 of Auctioneers Law Cap 11, Law of Kaduna State since the notice was published on 3rd June, 1992 while the sale took place on 5th June 1992. It is however the submission of the learned appellant’s counsel, that there were other forms of publications of the notice of sale which did not default the 7 days notice requirements. He cited or referred to those publication such as the hand bill exhibited as Exhibit 19 and other correspondences exchanged between the 1st and 2nd respondents herein, in relation to the auction sale of the mortgaged property which were also tendered in evidence and marked as Exhibits 3, 10, 11, 12, 13, 14, and 15.

According to the learned silk, a close look at all these pieces of exhibits clearly demonstrates that the parties (i.e. 1st and 2nd respondents) have extensively discussed the issues of the sale of the mortgaged property such that he (1st respondent) could not claim ignorance of the issue of the sale of the property up to the end of March, 1992. He added that the 2nd respondent had even accepted to extend the dead line for the proposed steps to be taken before to the auctioning of the property to the end of April, 1992 as requested by the 1st respondent, vide his letter for extension of time for the sale, issue tendered in evidence as Exhibit 15. To further emphasise on this point, the learned silk for the appellant referred to the last sentence of Exhibit 12 where he has earlier on sought the extension of the sale of the mortgaged property of the March, 1992 which said request was accepted by the 2nd Respondent, vide its letter dated 16/4/92 marked as Exhibit 15. By these series of correspondences exchanged between the 1st and 2nd respondents, submitted the learned appellant’s counsel the 2nd respondent had given sufficient notice to the 1st respondent on the issue of sale of the said mortgaged property by public auction. The learned silk cited and relied on these submission to the cases of African Continental Bank Ltd Vs. Ihekwoaba (2003) 16 NWLR (pt.846) 249 C-D, 270 and 271 E-F; Majekodunmi Vs. Cooperative Bank Ltd (1997) 10 NWLR (Pt.534) 195 at 217 F-G; First Bank of Nigeria Plc Vs. Fashar (2000) 6 NWLR (Pt.662) 573 at 583 D-F.

The learned counsel concluded his submissions on this issue, by arguing that the law is now settled that auction sale conducted in breach of the 7 days statutory notice is merely irregular and such irregularity will not vitiate the sale, adding that the remedy available to the mortgagor, like the 1st respondent herein, is to sue for damages and not for an order setting aside of the sale. He argued that the reliance by the lower court on the case of Dangote Vs. Civil Service Commission, Plateau State (2000) 9 NWLR (Pt. 217) 132 at 152 in holding that the provisions of Sections 19 and 20 of the Auctioneers Law must be followed and complied with strictly is erroneous. He finally urged this court to hold that even if there were non- compliance with the provisions of the Auctioneers Law, that non compliance would not vitiate the auction sale of the mortgaged property in question.

In his responce, Mr J.B. Daudu SAN argued that the law is not very clear on the issue of non compliance with prior 7 days notice in auction sale adding that each case must depend on its own peculiarity.

The learned 1st respondent’s counsel admitted however, that there are divergent judicial opinions as to where a breach of or non-compliance with the provisions of the Auctioneers Law renders the auction void or is a mere irregularity. He referred to the decisions of this court in Fojule v. FMBN & ors (2001) FWLR (Pt.36) 893; Majekodunmi v. Cooperative Bank Ltd (1997) 10 NWLR (Pt.524) 217/218; UBA Plc v. Okeke (2004) 2 NWLR (Pt. 872) 393 at 411.

The learned senior counsel for the 1st respondent also conceded that the Supreme Court in their recent cases differed from the decisions of this court he cited above. Okonkwo v. CCB Plc and 2 ors (2003) 8 NWLR (Pt.822) 347 and ACB Ltd v. Ihekwoaba & Ors (supra)

The learned silk tried to distinguish Okonkwo’s case from the decisions of the Court of Appeal cited supra and when doing so he made effort to highlight an alleged conflict in the lead judgment of Kutigi, JSC (now Chief Justice of Nigeria) with the contributory judgment of Uwaifo JSC and gave detailed reasons which he perceived as conflicting the leading judgment. I am however not ready to go into details of the alleged conflict in the light of the decision of Supreme Court on the status of ‘Concurring Judgment’ in the case of Nwance v. FCDA (2004) 13 NWLR (Pt.889) 128 where it was said per Tobi JSC as below:-

“A concurring judgment in my view, has equal weight with the leading judgment. A concurring judgment complements edifices and adds to the leading judgment. It could at times be an improvement of the leading judgment when the justices add to it certain aspects which the writer of the leading judgment did not remember to deal with. In so far as a concurring judgment performs some or all the above functions, it has equal force with or as the leading judgment in so far as the principles of stare decisis are concerned.

However a concurring judgment is not expected to deviate from the leading judgment.

A concurring judgment, as the name implies must be in agreement with the leading judgment. A concurring judgment which does its own way outside the leading judgment is not a concurring judgment but a dissenting judgment.” (Emphasis mine)

Thus, if the concurring judgment of Uwaifo JSC truly conflicts or contradicts the leading judgment of the Kutigi JSC (now CJN), then it becomes a dissenting judgment which does not therefore have the force of the leading judgment as would mandatorily be binding on me. The simple position I find myself in is that, the leading judgment is binding on me going by the principle of stare decisis even if it is truly in conflict with the concurring judgment as is unevaluated by the learned silk.

In reply to the above submissions by the 1st respondent’s counsel, the learned senior counsel for the appellant however submitted in his Appellant’s Reply Brief, that the auction sale was valid even if any fraud was committed by the bank i.e 2nd Respondent as long as the appellant was not a party to the fraud. He relied on Gbadamosi v. Kabo Travels Ltd (2000) 8 NWLR (Pt.668) 243. He added that there was even no pleadings that the appellant had any notice that the power of sale had become exercisable before the auction date because the mortgagor had refused to pay after due notice. See African Continental Bank Ltd v. Ihekwoaba (2003) 16 NWLR (Pt.846).

On this issue, the point revolves on the provisions of Section 19 of Auctioneers Law of Kaduna State. The said provisions provide that a notice of sale by auction should be given seven days before the sale of the mortgaged property. It is not in dispute that in the instant case only two days notice was given before the sale instead of seven days. Several decisions of this court abound where it was held that where the provision of Section 19 of the Auctioneers Law is not complied with, as in this appeal, the sale is rendered invalid. Some of these decisions are those relied on by the learned silk for the 1st respondent supra.

For instance, in Fojule Vs. FMBN & Ors (supra) this court said at page 893 as follows:-

“It was held by the court in the case of Taiwo v. Adegbenro (1987) 11 NWLR (Pt. 528) 222 that where there is non-compliance with Section 19 of the Auctioneers Law of Kwara State in the sale of a mortgage property by auction which requires that seven days notice be given after the notice of sale is rendered invalid. In the present case notice of intended sale was given on 28/3/92 whereas the property was sold to the 3rd defendant on 30/3/92 barely two days notice. This is grossly inadequate and therefore invalid.”

Again, when interpreting Section 19 of Auctioneers Law, this court in FMB Plc v. Babatunde (supra) held at page 393 that by Section 19 of the Auctioneers law of Northern Nigeria, Cap 10, for a notice of auction sale to be valid there must be at least seven days notice before the sale is carried out and where the notice falls short of this requirement the auction sale ought to be set aside. Similarly in the recent case of UBA Plc v. Okeke (supra) this court affirmed its earlier decisions in Federal Mortgage Bank of Nigeria v. Babatunde (1991) 12 NWLR (PT.632) at page 692; International Merchant Bank Plc v. Sambo Petroleum Company. Ltd (2000) 15 NWLR (Pt.690) 232; Fojule Vs. FMBN (supra) Oseni v. African International Company Ltd (1983) 3 NWLR(Pt.11) 229; Nwobodo v. Onoh (1984) 1 SCNLR 1 and University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 and held that where seven days notice was not given the sale is rendered void and as one conducted without the required statutory notice and that it is a cadit quaestio.

But in the case of Majekodunmi Vs. Cooperative Bank Ltd (supra) the Ibadan Division of this Court while considering the provisions of Sections 19, 20 and 21 differed with its previous decisions cited above and held thus:-

” although there was non-compliance with the provisions of Sections 19, 20 and 21 of the Auctioneers Law in their strict sense in the auction sale of 28/4/86, such non-compliance should not be allowed to affect the interest or title of the 2nd respondent as the bona fide purchaser of the property ….. it is also trite that the wrongfulness of sale by mortgages does not necessarily render the sale invalid and a bona fide purchaser from the said auction (in the present case the 2nd respondent) is protected under the Property and Conveyance Law.”

There is however further development in the law in that regard, in that the Supreme Court has started to give liberal approach on non-strict compliance with the provisions of the Auctioneers Law by mortgagee or auctioneers, especially with regard to the position of innocent 3rd purchaser of mortgaged property where the provisions of the Auctioneers Law (especially Sections 19, 20 and 21) are not strictly complied with. In the case of Okonkwo Vs. CCB (Nig) Plc (supra) the Supreme Court had held that irregularities from auction sale by way of lack of statutory notice, to the mortgagor and sale of the property at a low price per se may not vitiate sale of Mortgaged property for keeps as property had passed in the sale from the mortgagee to the property. As I said above the learned counsel for the 1st respondent had also relied on the decision of this court in Fojule Vs. FMBN and Others (supra) also reported in (2001) 2 NWLR (pt.697) 384, wherein it was held per Amaizu JCA that non-compliance with the provisions of section 19 of the Auctioneers Law by giving seven days notice before the auction sale is conducted rendered the sale invalid. With due deference to the learned senior advocate of Nigeria for the 1st respondent, that judgment of this court was appealed against to the Supreme Court by the 3rd defendant in that case Alhaja K. F Ibiyeye and the said decision was reversed in the most recent decision of Alhaja K.F. Ibiyeye Vs. Fojule and Other (2006) 2 SCNJ 1 also reported in (2006) 4 SCM 44, In that case the apex court considered the provisions of section 19 of the Auctioneers law Cap 10 of Law of Northern Nigeria and also its previous decisions in ACB Vs Ihekwoaba (supra) and Okonkwo Vs. CCB Nigeria Plc (supra) and had this to say at page 59 of the latter citation.

“It is not in dispute that section 19 of the Auctioneers law Cap 10 of Law of Northern Nigeria 1963 applicable in Kwara State also applied to this case.

This section requires that there must be seven days notice given before any landed property is sold by auction. In this case the property concerned was sold after 2 days notice. There was therefore noncompliance with the law. What then is the remedy or consequences of this? The Law of Property (Edict) Law of Kwara State Cap 128, section 123, which clearly applied to this case Provision similar in all respect with the above and in similar circumstance were considered by this court in the cases of Okonkwo Vs. Cooperative & Commerce Bank (Nig) Plc and ACB Ltd Vs. Ihekwoaba and in both cases, the court held that where the sale is not tainted with any fraud or collusion, and the buyer bought in good faith and is not aware of any irregular circumstances surrounding the sale or anything likely to affect the propriety of the sale, the sale must be valid and subsisting. I am bound by this decision and I accordingly apply it to the instant appeal. I find that there is no fraud or collusion on the facts of this case proved against the appellant and there was nothing affecting the propriety of the auction sale to the appellant in this appeal. I am therefore of the view that section 123 of Law of property (edict) Law provides sufficient protection to the appellant in respect of the auction sale and the purchase of the property concerned.”

The above mentioned case is in all fours with the present appeal, hence I also accordingly apply it to the instant appeal.

The law is now settled that in sale by auction, the purchaser is protected, in that mortgagor’s right is essentially in damages.

Again, in the recent case of Ihekwoaba Vs. African Continental Bank Ltd (2003) 6 SCNJ 326, the Supreme Court on page 342, while interpreting Section 21 (1) of the Conveyancing Act of 1888(England), which is in pari material with Section 21(1) of the Auctioneers Law of Kaduna State, held thus;

“By virtue of Section 21 (1) of the conveyancing Act 1888 (England), statute of General application applicable in Imo State at all time relevant to this case the title of the 3rd appellant to the property could not be impeached by the irregularity in the auction sale.”

I think it is pertinent to point out at this stage, that the learned 1st respondent’s counsel also tried to highlight some antecedents that featured in the leading judgment of Kutigi JSC (now CJN) and the concurring judgment of Uwaifo JSC with regard to the fact that in Okonkwo’s case the alleged breaches were not pleaded and established as found by Kutigi JSC as in this instant case whereas Uwaifo JSC in his concurring judgment opined that sufficient particulars of the infractions on the Auctioneers Law were pleaded. In any case, I think the 1st respondent’s counsel’s grouse on the issue of absence or presence of pleadings has been settled in that in the recent decision of the apex court in Ihekwoaba where the infractions against the auctioneers Law such as the absence of seven days notice were both pleaded and proved. It is pertinent to note that in the instant case there is no atom of evidence led by the plaintiff/1st respondent at the trial showing that the Appellant, as a third party and innocent purchaser of the disputed property, had any notice or information that the power of sale did not become exercisable especially in view of the fact that the power of sale had become exercisable even before the date of the auction because the mortgagor refused to pay after series reminders and demands in writing to settle his debt but had failed to do so. For example part of Exhibit 2 a letter titled “Re-Demand Notice on Your Real Estate Loan reads inter alia:-

“The management of this Bank is therefore once more, calling on you to do all within your power in ensuring that a workable repayment arrangement is presented to us for consideration within the demand period… ”

Also, part of Exhibit 8 another letter for “Demand for settlement of indebtedness” written by the second respondent to the 1st respondent reads as follows:-

“Whereof, we demand you to settle the total sums outstanding in your account with our client.

TAKE NOTICE THEREOF, that unless you clear the total sums outstanding in your account or a substantial part thereof on or before the 30th of August 1991, we shall not hesitate to effect our client’s instruction by instituting legal action against you in order to recover sums with continuing thereof interest AND THAT WITHOUT FURTHER NOTICE FROM THE CHAMBERS”.

Again, by Exhibit 10 dated 16/1/92, 1st respondent was informed by the 2nd respondent that the latter got a buyer of the property on an offer of N=4million which transaction would be by treaty rather than by public auction and he was given up to 31/1/92 to settle his debt, failing which the offer made would be accepted. Then on 22/2/92 another letter, Exhibit 1, was also written to the 1st respondent, reminding him of the earlier letter i.e. Exhibit 10 which was not replied to by him (1st respondent) given him yet another extension of dead line to 29/2/09 within which to settle the liability or else steps would be taken to realize the mortgage. The 1st respondent vide Exhibit 12 objected to the sale of the property at N=3.7million, which he regarded as not fair, hence he promised to find a buyer with a better offer. By Exhibit 13 the 1st respondent informed the 2nd respondent of his preference to offer the property for sale to 2nd respondent the Bank unless it had no interest in it. In Exhibit 15 also, the 2nd respondent intimated the 1st respondent that it had extended its notice of sale to 30/4/92. All these exhibits clearly show that the 1st respondent was put on notice as to what would happen if he failed to settle the liabilities he owed the 2nd respondent. The recent Supreme Court’s decisions clearly held that breach in giving seven days notice before sale of mortgaged property amounts to mere irregularity which will not vitiate the sale or render it null and void.

By the contents of the exhibits I mentioned above, the 1st respondent and the 2nd respondent thoroughly discussed the issue of sale of the disputed property and the 1st respondent can not now be heard saying or complaining that he was not put on notice about the sale of his property due to his failure to settle his liabilities. Thus, a careful appraisal of the facts of this case and the antecedents which led to the auction sale show that there was no bad faith in the sale conducted even though made two days after the notice. I am therefore bound to follow the three Supreme Court decisions which held that breach of section 19 of the Auctioneers Law would not render the sale null and void, but that it is a mere irregularity which would not vitiate the sale and could only be remedied through claim of damages. The first issue is therefore answered in the affirmative.

Issue 2

This issue queries whether the trial court’s court reliance on extraneous matter in reaching its findings of facts is proper. The point referred to in this issue is the trial court’s reference to a letter dated 11/5/94 and basing its finding on same which said letter was contained in Exhibit 32 to the effect that no transfer or any prior alienation of title was effected in favour of the appellant by the 4th respondent. It is the submission of the learned appellant’s senior counsel that the fact that Exhibit 32 (the contents of the file contained on pages 234 to 305 of the printed record) was tendered in evidence was not a licence warranting the trial court to comb the said file (the exhibit) and use any material therein without demonstration of same in evidence. He referred to the case of Wilcox v. Queen (1961) 2 SCNL 296 or (1961) NSCC 274, Nteogwuce v. Otuo (2001) 16 NWLR (Pt.738) 58 at 75 D-F; He argued that, what the trial court did was investigation which was not its duty adding that the court’s duty is simply to decide between the parties on the basis of what has been demonstrated and tested by examination and cross examination on document. It is not the duty of the court to make enquiry into the case by examination of documents.

See Adike Vs. Obiakeri (2002) 4 NWLR (pt.755) 573.

The learned appellant’s senior counsel went further to argue that even in that respect, if the trial court in its effort to ascertain what had transpired at the Bureau of Lands and Survey, it would have seen on pages 64 and 69 of Exhibit 32 as reproduced on pages 282 and 286 of the Record, that the Bureau of Land of Survey had already issued consent to assign to the disputed property the appellant and were processing a certificate of occupancy in favour of the Appellant even before the 1st respondent complained about the said auction sale of the property in question. He added that had the trial court considered pages 282 to 286 of the Record and married same with the letter dated 11/5/94 on which it solely placed its conclusion, it would have come to the conclusion that the said letter merely placed on hold the consent already given or issued for the assignment of the disputed property to the appellant.

Another example he gave as the trial court’s reliance on ‘extraneous evidence’ (sic) is the trial court’s alleged acceptance of the ipsi dixit of the 1st respondent as evidence to reach its finding that the sale of the disputed property at the cost of N=3.7million was outrageous and above the market value. He argued that the issue of value require expert evidence and the 1st respondent was not shown to be an expert in area of valuation of property. He said both the appellant and the 2nd respondent have called experts to give their opinions on the value of the disputed property and valuation reports were tendered in evidence by the experts called by them and marked Exhibits 29 and 26 respectively. He said that the trial court ought to have accepted the Valuation Report tendered by the appellant Exhibit 29, which contained the analysis and data on which such report was based and reject that tendered by the 1st respondent i.e Exhibit 26 which was merely a Valuation Certificate devoid of any basis which the opinion was reached or based. See Universal Trust Bank Vs. Awanija Enterprises Ltd (1994) 5 NWLR (Pt.348) 56 at 77 E-F and a book “The Law Relating to Evidence by Aguda 1st Ed. Page 114 item 9.03. The learned appellant’s counsel further submitted that the trial judge did not make any attempt to compare the two experts evidence or the exhibits tendered by them i.e Exhibits 26 and 29, but it instead relied on the ipsi dixit of the 1st respondent in arriving at its conclusion that the price of N=3.7million at which the property ‘was sold was outrageous and below the market value’. According to him, that was a wrong approach to the issue. It was finally submitted by the learned silk for the appellant on this issue, that auction sale at under value alone is not enough to vitiate the exercise of a mortgagee’s power of sale. It must be shown that the sale was made at a fraudulent or gross under value, and according to the learned counsel, no finding of fact’ was made by the lower court as no evidence of fraud was led by the 1st respondent. He cited and relied on the case of Eka Ete Vs. Housing Development Society Ltd (1973) 6 SC 183 at 198. He urged that this issue be resolved in his favour.

Replying, the learned senior counsel for the 1st respondent submitted that the crux of the matter is that Exhibit 32 (the file tendered by 4th Respondents’ counsel) seeks to establish the facts that the Governor had withheld his consent by the letter dated 11/5/2005) contained in the file. He argued that, that fact could even be deemed to have been admitted by the learned counsel for the 2nd defendant/appellant in paragraph 18 of his Statement of Defence in reply to the plaintiff’s/1st respondent’s deposition in paragraph 24 of his Amended Statement of Claim. Similarly, the 3rd and 4th defendants also admitted same in paragraph 6 (d) of their joint statement of Defence. The learned silk went further to submit that the state of the pleadings was to the effect that there was no doubt that absence of consent as required by Section 22 of the Land Use Act was no longer an issue between the parties, it having been admitted. He cited Omega Bank of Nigeria Plc Vs. OBC Ltd (2002) 16 NWLR (Pt.794) 483 at 515. He argued that what the learned counsel for the appellant regarded as “extraneous evidence” was in fact an issue settled in the pleadings which required no more proof, adding that, the said document was validly admitted in evidence by the trial court, hence the trial court must peruse it without any choice. See Tangent Traditional Council Vs. Faura (2001) 17 NWLR (Pt.742) 293 at 330; Omega Bank Nig Plc Vs. OBC Ltd (supra) at page 52; Fatunwa Vs. Adibi (2004) 17 NWLR (Pt.903) 544 at 567; Odogwe v. Onochie (2002) 8 NWLR (Pt.769) 254 at 282; Musa Vs. Christlies Plc (2000) 12 NWLR (Pt.679) 145 at 154.

The learned silk for the 1st respondent finally concluded his submission on this issue by arguing that since the document in question was properly before the lower court, the court was bound to examine same and act upon it accordingly. He said once a document is accepted in evidence by a trial court the paramount question to agitate the court’s mind is whether such a document is relevant and if so, the court is duty bound to consider and act on it. On this remark, he urged that the issue be resolved against the appellant.

My understanding of this issue raised by the appellant, is that his complaint is twofold. That is to say, his grouse is (a) that the lower court should not have gone into Exhibit 32 and base its finding on the letter dated 11/5/94 without its attention being specifically drawn to it and (b) the trial court should not have relied on and act on the ipsi dixit of the plaintiff (1st respondent, which he regarded or called “extraneous evidence” in arriving at its conclusion that the value of N=3.7 million on which the mortgaged property was sold to the Appellant (2nd defendant) was an under value. In resolving the two points I will approach them serially. Before doing so however, I will first of all address the issue of pleadings raised by the 1st respondent’s learned senior counsel. In doing so, I deem it apposite to reproduce the relevant depositions by the parties in their pleadings.

In paragraph 24 of the Amended Statement of Claim the plaintiff/1st respondent deposed as follows:-

“It will be contended at the hearing of this suit that the 2nd defendant did not acquire any title or right over the disputed property either at the time of the purported enforcement of the power of sale or at anytime thereafter for the following reasons:-

(a) ….

(b) There was no consent issued or purportedly issued until the 3rd May 1994 and the Deed of assignment purportedly executed between the 1st and 2nd defendants on the 4th of May 1994 was ineffectual, null and void as the plaintiff had since the 4th of February 1994 liquidated and discharged the loan against the property in dispute this effectively utilizing the equity of redemption which attaches to all mortgage transactions to restore his title to the property.

(c) It is averred that the Military Adminstrator of Kaduna State (who is the appropriate authority to grant and issue consents under the Land Use Act except when he delegates) by a letter dated 11th May 1994 directed to the 4th defendant to withhold the grant of consent in this matter which at his the following implications.

(i) That there is no consent on the power of sale or assignment till date.

(ii) That the purchaser is yet to acquire any title until the consent is granted.

(iii) That no property has passed until the statutory requirements are fulfilled,”

In his reply to the above averment, the 1st Appellant as the 2nd defendant, deposed in Paragraph 18 of his Statement of Defence as below:-

“In further response to the said Paragraph 24 (a to d), the first defendant avers that as at 4/2/94, when the plaintiff issued a cheque in its favour, the mortgaged property has since been realized and the 2nd defendant has acquired interest on same.”

Similarly the 3rd and 4th defendants in their Joint Statement of Defence averred in paragraph 6 (d) as follows:-

“The Military Administrator following these appeals from the plaintiff wrote to the 4th defendant asking him to suspend the consent to assign granted the 2nd defendant until the issues raised by the plaintiff in his letter of appeal is resolved.” (emphasis supplied).

On close gleening of the above pleadings filed and exchanged by the parties, my stance is that the averment by the appellant on Paragraph 18 of the Joint Statement of Defence could by no stretch of imagination, be regarded as admission of the plaintiff’s (1st respondent’s) deposition in paragraph 24 of his Amended Statement of Claim. The deposition by the plaintiff/1st respondent is to the effect that the appellant did not acquire title or right over the disputed property as at the time it was sold to him because there was no Governor’s consent issued to him. But in its responce vide Paragraph 18 of its Statement of Defence, it is saying that, when the 1st respondent issued the cheque to it, the property had been realized and the 2nd defendant (appellant) had already acquired interest. This averment, in my view, though not verbose as the plaintiff’s deposition under reference, can not be regarded as a general denial. It is also not evasive or ambiguous to make it inadmissible. With due deference to the learned silk for the 1st respondent, this instant situation differs completely from the situation in Omega’s case because in that case the appellant did not say anything to counter very serious allegations in some vital paragraphs in the statement of claim which attracted some consequences provided by law, hence this court deemed the unchallenged averments to have been admitted. This is not the case here.

Now coming to the trial court’s alleged reliance on what the, learned silk for the appellant referred to as ‘extraneous evidence’, it is not in dispute that Exhibit 32 (the file from Bureau of Land and Survey) was pleaded and later admitted in evidence after due legal process was followed and without any objection. The appellant’s counsel is not saying that Exhibit 32 (the file) was not admissible. Admittedly, the learned counsel for the 3rd and 4th defendants/respondents who tendered it, did not refer the trial court to that particular page in the file. Would that then be a reason why the trial court should discard the file (Exhibit 32) completely? I think not. Documents tendered before a trial court are certainly meant for scrutiny or examination by the court. They are not tendered merely for sake of tendering but for purpose of examination and evaluation. A trial court has the onerous duty of considering all documents placed before it in the interest of justice. It has a duty to closely examine documentary evidence placed before it in the course of its evaluation and comment or act on it. See Omega Bank Nig. Plc Vs. OBC Ltd (supra), As I posited above, though the trial court was not pinned down to a particular page by the 3rd and 4th defendant/respondent, the trial court could refer to the document in question. The trial court therefore in my view, did not act ultra vires its powers when it referred to the letter in question and acted on it. I should not be understood to be saying that the conclusion it drew on it is correct or that its evaluation or ascription of probative value to the said letter is wrong or correct at this stage. All I am saying is that the letter in the file (Exhibit 32) referred to by the trial court is not “extraneous evidence” as named by the learned appellant’s counsel. By referring to and acting on the letter, the trial court should not be regarded to have embarked on “investigation” or on “enquiry” into the case by its consideration of the said letter in the file which was exhibited before it.

On the lower court’s reliance on the ipsi dixit of the plaintiff/1st respondent, it is trite law in our common law system, that ipsi dixit of a plaintiff or testimony of a plaintiff is admissible evidence and a trial court is bound to consider, act, evaluate and ascribe probative value to it. It could not be regarded as “extraneous evidence” as the appellant’s counsel named or tagged it. But whether the lower court was correct in its evaluation of the ipsi dixit is another matter that will be addressed later by me. All I am saying here and now is that the ipsi dixit evidence is relevant, admissible and could be acted on by a trial court under the common law system. My answer to this point is therefore that the evidence referred to by the appellant’s counsel as “extraneous evidence” are actually relevant and admissible evidence and not extraneous matters, hence the trial court could refer, consider or rely on them in its findings of fact but whether such finding of facts or conclusion drawn from it is correct is another matter. This issue is therefore partly resolved against the appellant.

Issue 3

On the third issue for determination raised by the appellant, it was submitted by the learned silk that there is no dispute that as at June, 1992 when the 1st respondent’s mortgaged property was auctioned, the said first respondent was indebted to the 2nd respondent, hence the right to exercise the power of sale based on the mortgaged transaction had arisen. He buttressed this point by referring to alleged confirmation by the said 1st respondent under cross examination that as at December 1992, the payment he made was not sufficient to liquidate the debt. It was also submitted by the learned appellant’s senior counsel that as at 5th June, 1992 when the auction sale of the disputed property was conducted which of course predated December 1992, the 1st respondent was indebted to the 2nd respondent. Again by Exhibit 15, a letter dated in April, 1992, the 1st respondent was given up to 30th April, 1992 within which to liquidate his indebtedness or else his property would be sold by public auction but up to the 5th June 1992, he failed to comply by settling off his debt. To that extent, as at 5/6/92 when the mortgaged property was auctioned, there remained the indebtedness of the 1st respondent to the 2nd respondent, then the equity of redemption stood extinguished and the conduct of sale of the mortgaged property by public auction was therefore lawful. For these reasons, the learned counsel further argued, that the trial court was in error to have held that equity of redemption was still extant after the conduct of the sale in June, 1992.

Also on the issue of payment of N=1.2million made by 1st respondent subsequent to the conduct of the auction sale in which the appellant bought the said property, the learned silk submitted on behalf of the appellant, that such payment was incapable of reviving the equity of redemption which had already been extinguished by virtue of the conduct of the sale on 5th June, 1992. He further argued that the authority of Rafukka VS. Kurfi (1996) 6 NWLR (pt.153) 235, which was relied on by the trial court was for reasons he highlighted above, wrongly applied. He finally urged that the issue be answered in his favour.

In his reply to the above submissions of the appellant’s counsel, the learned counsel for the 1st respondent submitted that the 1st respondent’s equity of redemption was not extinguished by the conduct of a purported auction sale for the reasons that the Governor had refused approval and consent hence the Bank (i.e 2nd Respondent) should refund the purchase price to the appellant (2nd defendant). Secondly, he submitted that the law is settled that all transactions in respect of land such as assignment of right of occupancy, mortgages, sale of property arising from the mortgagee’s exercise of his power of sale, lease etc are caught up by Section 22 of Land Use Act which made the acquisition of Governor’s consent a condition precedent to the validity of the transaction. See Savannah Bank of Nigeria Ltd Vs. Ajilo (1989) 1 NWLR (Pt.97) 305, FMBN. Vs. Babatunde (1999) 12 NWLR (Pt.632) 683 at 691.

Thirdly, according to the learned 1st respondent’s counsel, there was uncontroverted evidence in the matter that Governor’s consent had been withheld and therefore the 1st respondent’s equity of redemption could not be said to have been extinguished by the purported auction sale which was inchoate, premature and devoid of the legal effect capable of extinguishing 1st respondent’s interest. He cited Majekodunmi v. Cooprative Bank (1997) NWLR (Pt.524) 198 at 215. The learned counsel further submitted that the trial judge was correct in his finding that with the payment of the principal loan sum of N=1.8million vide a cheque of N3. million on 4/2/94 the property purportedly mortgaged stood released from the terms of the ‘mortgage deed’ as such payment has established the extinguishment of any inchoate rights the appellant might have acquired at the disputed auction sale.

The learned senior advocate concluded his submission on this issue by arguing that the materials qualifying the 1st respondent for reliance of the withheld Governor’s consent were adequately pleaded and evidence led thereon. He said further, that the issue is misconceived and argued that the auction sale in itself was not conclusive of the divestment of the 1st respondent of his title to the property in dispute. He said the appellant’s stake is inchoate by force of statute and extinguishable where the 1st respondent chooses to exercise his equity of redemption within this period, adding that the property was correctly adjudged by the trial court to have reverted to the 1st respondent. He urged me to also resolve this issue in his favour.

In the first place, it must be noted that by the Mortgage Deed, Exhibit 1, the property in dispute was mortgaged in the sum of N=310,000. Also vide Exhibit 2, the 1st defendant/2nd respondent notified the 1st respondent/plaintiff of his indebtedness to it to the tune of N=5,074,467.31k as at 16th March, 1991 and implored on him to settle his indebtedness.

The 1st respondent under cross examination stated on page 44 of the printed record as below:-

“As at December 1992 the payment, I made was not sufficient to liquidate the debt.”

Again, by Exhibit 15, the plaintiff/1st respondent was informed categorically by the 2nd respondent, that he was given up to 30/4/1992 to pay up his indebtedness to the bank failing which, his mortgaged property was going to be sold by public auction without further recourse to him. This shows he was aware of the consequence if he failed to set off his debt. Exhibits 19 and 20 are further information about the then impending auction sale also communicated to the 1st respondent in addition to other correspondences between him and 2nd respondent regarding the auction sale. Thereafter, up to the 5th day of June, 1992, there was no evidence of payment made by the 1st respondent to liquidate the loan. Therefore, by 5/6/92 when the mortgaged property was auctioned, the 1st respondent remained indebted to the 2nd respondent. A lot of decided cases abound showing that right to redeem can not be taken away even by an expressed consent by parties that the mortgage is not to be redeemed 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 of the property either through execution of court order or of a power in the mortgage deed as in this case. See Ejimeme v. Okonkwo (1994) 8 NWLR (Pt.362) 266. It is trite law that where a mortgagee exercised his power of sale bona fide for the purpose of realizing his debt and without collusion with the purchaser, the court will not interfere unless the price is so low as in itself to be evidence of fraud. The cardinal prerequisite is that the mortgagee acts in good faith. See Rafukka v. Kurfi (supra) Eka -Eteh Vs. HDS Ltd (supra) Union Bank Plc Vs. Professor Ozigi (supra). In the instant case there is no evidence of fraud adduced or proved by the plaintiff/1st respondent against either the 2nd defendant/appellant or the 1st defendant/2nd respondent. In the light of these decided authorities cited above, I am of the firm view that the 1st respondent’s equity of redemption was extinguished by the sale of the disputed property by auction sale as at the 5th of June 1992.

The learned senior advocate representing the 1st respondent stressed the point, that the Governor did not grant his consent which is a pre condition for the validly of such transaction hence the respondent equity of redemption could not be extinguished especially in view of the Exhibits 19 and 20 and also by virtue of the provisions of section 22 of Land Use Act. As for the payment of N1.2million made by the 1st respondent and as held by lower court, rightly in my view too, after the sale was conducted the equity of redemption could not be revived. The trial court’s reliance on the case of Rafukka v. Kurfi (supra) in its finding when setting aside the auction is therefore misplaced.

With regard to the issue of alleged absence of Governor’s consent raised by the learned 1st respondents senior counsel, I think that issue is also misconceived, if the joint pleading of the 3rd and 4th defendants/respondents is closely examined especially Paragraph 6 (d) of their joint statement of defence.

It was averred therein, that it was following the appeals from the plaintiff (1st respondent) that the Military Administrator directed the 4th defendant to suspend the consent to assign granted the 2nd defendant until the complaints by the plaintiff (1st respondent) was resolved. This clearly shows that the consent was already granted but further, action was stayed for the processing of certificate of occupancy until the complaint in his petition was resolved. The Governor only suspended the issuance of certificate of occupancy to the Appellant in 1994 because of the pendency of the suit challenging the propriety of the auction sale. In Awojugbabge Light Industries Ltd v. Chinukwu (1993) 1 NWLR (Pt.270), it was held on page 609, that where there was execution of a mortgage deed before Governor gave his consent contrary to the requirement of Section 22(1) of Land Use Act, the instrument can not for reason of such failure to obtain prior consent of the Governor render the document or instrument invalid. Similarly, in Solanke Vs. Obed (1962) 1 All NLR, the Supreme Court when interpreting Section 11 of the Land and Native Right Act, which is in pari materia with Section 22 of the Land Use Act, also held that it is inequitable to deprive a purchaser for value without knowledge of his right to a property, simply for want of consent to assign. Now even if as at the time the appellant bought the auctioned property notice to sell was not given to the mortgagor by the mortgagee or that there was non-compliance with the provisions of Auctioneers Law/Act, the purchaser would be deemed to have acquired unimpeachable title in as much as he is not aware that the power of sale by the mortgagee has not become exercisable.

Prior execution of mortgage deed before an approach is made to the Governor for his consent is not illegal. See Okonkwo v. CCB Nig Plc (supra). See also Gbadamosi Vs. Kabo Travels Ltd (2000) 8 NWLR (Pt.668) 243.

In the instant case, there is no evidence adduced to show that the appellant as an innocent, 3rd party purchaser had any notice that power of sale had not become exercisable. I think the decision of the Supreme Court in Solanke’s case is a clear answer to or correction of the decision of this court in the cases of Majekodunmi Vs. Cooperative Bank (supra) Savannah Bank of Nigeria Ltd v. Ajilo (1989) 1 NWLR (Pt.97) 305 and FMBN v. Babatunde (1999) 12 NWLR (Pt.632) 683 heavily relied on by the learned senior counsel for the 1st respondent on the issue of failure to obtain Governor’s consent. Thus, in the light of the above analysis and the exposition of the present position of the law made by me above, it is my decision that the trial judge is in error in his finding that the equity of redemption has enured in favour of the 1st respondent even after the mortgaged property was validly sold by way of auction sale. The issue is therefore resolved in favour of the appellant.

I will now consider some points raised in the Notice filed by the 1st respondent which were not addressed by me when treating the issues for determination supra. I will begin by considering the grouse of the 1st respondent that the property was sold on under valued price. Here, the 1st respondent is alleging that the mortgagee did not take reasonable precaution so as to obtain the actual market value of the said property at the time it was sold. He also felt that the sale was not carried out bona fide. He relied on the decisions of Cuckmere Brick Co. Vs. Mutual Finance (supra); Nig Advert Services Ltd Vs. UBA Plc (1999) 8 NWLR (pt.616) 54G at 557 and Okonkwo Vs. CCB (Nig) Ltd (197) 6 NWLR (Pt.507) 48. The learned silk submitted that as at February 1992 the Bank had already reached a deal to sell the property at N=3.7million but the said property was on 5/6/92 sold at the price of N3.7million which said price he regarded as gross and fraudulent undervalue.

He cited Exhibit 26 a Valuation Certificate which valued the property at N=14.5 million and compared it with Exhibit 29 another valuation certificate which valued the same property at N=4million but preferred Exhibit 29 prepared by the witness called by him.

It is clear from this first leg of the 1st respondent Notice, that he is complaining that the alleged under valued price the property was sold smacks of fraud. The 1st respondent, as plaintiff, nowhere pleaded the particulars of fraud alleged in his pleading as required by law. He merely stated in his pleading that “at the hearing it will be contended that the price itself for which the property was allegedly sold amounted to fraud against the interest of the plaintiff.” He went further to seek “a declaration that the said exercise of power of sale was vitiated by overt acts of bad faith and/or fraud.” It is settled law, that third party’s title to property bought in an auction sale can not be disturbed, impeached or interfered with unless it is proved that he personally connived or colluded with the mortgagee in fraudulent manner. All what is required is for the mortgagee to act honestly and in good faith. Once a mortgagee exercises his right of sale bona fide for the purpose of realizing his debt as in this case, and without collusion with the ultimate purchaser, the court will not interfere or impeach the sale even if the sale is disadvantageous unless, the price is so hopelessly low as would manifest evidence of fraud. See Eka Eteh v. HDS Ltd (supra); Nigeria Advert Service Ltd v. UBA Plc (1999) 8 NWLR (Pt.616) 546. See also Ihekwoabe v. ACB Ltd (supra) Okonkwo Vs. CCB(supra).

As it is noted by me earlier, two valuation certificates were tendered one by each party, i.e plaintiff (1st respondent) and 2nd respondent. i.e Exhibits 29 and 26 respectively through their respective expert witnesses. The learned trial judge based his findings on the ipsi dixit of’ PW1, the plaintiff and held that the price of N=3.7 million at which the disputed property was sold was “outrageous and below the market value”. The learned trial judge did not however base such finding on any evidence that there was fraud, collusion or connivance which had influenced the sale of the property at what he called ‘a gross under value’. In the case of Eka Ete v. Housing Development Society Ltd (supra) the Supreme Court held on page 198 as follows:-

” We think it is now beyond controversy that under value alone is not enough to vitiate the exercise of a mortgagee power of sale. It must be shown that the sale was made at a fraudulent or gross under value. Indeed, it is well established that, if a mortgagee exercises his power of sale bona fide for the purpose of realizing his debt and without collusion with the purchaser, the court will not interfere even though the sale be very disadvantageous, unless the price is so low as in itself to be evidence of fraud.”

Relying on the decisions in plethora of decided cases highlighted above, I am of the firm view that since no particulars of fraud were provided in the pleadings and also no evidence was led to prove same, it will not be correct to say that the sale of the said property to the appellant by the 1st defendant/2nd respondent was proved to be made on gross undervalued price especially in view of the fact that there was no evidence of collusion or fraud perpetrated by the said parties.

On the second leg of the Notice, the 1st respondent complained that the sale of the property was a breach of the fundamental covenants of Exhibit 1, the Mortgage Agreement, in view of the allegation that the sum claimed upon which the property was sold was false and a misrepresentation of the indebtedness of the 1st respondent. The 1st respondent submitted rightly in my view, that a party who is dissatisfied with the sale of property by an unpaid mortgagee on a gross under valued price, has a duty to prove that the mortgagee did not take reasonable caution as to obtain the true market value of the property at the time of the sale. See Cuckmere Brick v. Mutual Finance (supra). The 1st respondent in an effort to prove the breach of the covenants i.e. Exhibit I, argued that the plaintiff/1st respondent was aware that the indebtness of the mortgage was secured only for N=1.8million vide Exhibit 24 and that there was evidence vide Exhibit 7, that the sum of N425,000 was paid into his account in liquidation of the mortgage load. He said despite such payment, the Bank i.e 1st defendant/2nd respondent, had as at February 1992 took steps to sell the property for the sum of N3.7million vide Exhibit II despite his rejection of the offer or sale price of N=3.7million as per his letter Exhibit 12. For that reason, it was submitted that as at February 1992 the Bank had already struck a deal to sell his property at N=3.7million in June 1992 which he regarded as a gross and fraudulent undervalue in the light of the valuation certificate Exhibit 26 in which PW 2 a chartered surveyor and valuer called by him who valued it at N=14.5million which said valuation could not match the valuation in Exhibit 29 tendered by DW 2 called by 1st defendant/2nd respondent in terms of quality, superiority and professionalism, adding that no evidence was led by the appellant or 2nd respondent/1st defendant to contradict PW 2 or to impeach the quality of Exhibit 26 which valued it at N=14.5 million. He cited the case of A-G of Oyo State Vs. Fair Lakes Hotel Ltd (1989) 5 NWLR (Pt.121) 225 at 291.

The learned silk opined that the example he gave above is a manifestation of fraudulent gross under value in view of the disparity between the amount at which the property was sold i.e N=3.7million and the valuation in Exhibit 26 i.e N=14.5 million. He urged me to set aside the sale since it is settled law that fraud is in itself a vitiating factor of auction sale.

The other aspect of breach of fundamental covenants’ of the mortgage is misrepresentation of the indebtedness. Here the 1st respondent’s senior counsel is suggesting that the sum of N=5.7million indebtedness claimed against him is false. He said by the testimonies of PW1 and DW2 and Exhibit 4, the Bank was, claiming N=5million or thereabout as the principal loan and accrued interest. But in another breath the learned silk submitted that the issue at stake is not one of dispute of the amount due under the mortgage deed, but a case of clear misrepresentation of the sum due. He cited and relied on Onidyi v. FMB (2001) 13 NWLR (pt.731) 646; Afegbai v. A-G of Do State (2001) 14 NWLR (pt.733) 425 AT 464. The learned silk went further to argue that there must be demand for payment i.e statutory notice under Section 125 of the Property and Conveyancing Law, for the immediate payment of the mortgage money. See Section 67 if the Conveyancing and Law of Property Act 1881 and the case of Union Bank Ltd Vs. Ozigi (supra).

Now, firstly on whether the Bank had exercised reasonable precaution as to obtain the market of the property it is instructive to note that the 2nd respondent engaged in series of correspondences demanding that the mortgagor should settle his indebtedness right from August 1991. See Exhibit 2 which he replied vide Exhibit 3. By Exhibit 8 dated 12/8/91 the bank wrote a letter for demand to the 1st respondent in which his indebtedness of N=5,0774,467 as at 19/2/91 was stated and wherein it demanded settlement on or before August 30th 1991 or else legal action would be instituted against him to recover same with continuing interest. Exhibit 10 dated 16/2/92 is also another letter for demand of repayment of the debt which then stood at N=5,371,845:00 due for settlement of the debt and also conveying a warning that the property was going to be auctioned if the debt was not settled by 31/1/92. Then by Exhibit II dated 20/2/92, the bank still wrote the 1st respondent reminding him about the debt settlement and extending the dead line for settlement of the debt to 29/2/1992 and also the offer of N=3.7million made by a proposed purchaser was intimated to him. The 1st respondent then responded in Exhibit 12 rejecting the offer of N3.7 million as it was to him, very unfair. He then promised to get a buyer with a higher offer. He also proposed an offer of N=8million and sought further extension of the dead line.

Before then, the 1st respondent had earlier written to the Bank vide Exhibit 13 expressing his willingness to sell the property to it, if it had interest or else he would place it for sale in open market. By Exhibit 15 the deadline for the sale was extended further to 30/4/1992.

It is pertinent to note that in all these exchanges of correspondences, there was no time the 1st respondent protested to the amount outstanding against him which covered both the principal loan and the occrued interests, he being an experienced and professional banker. DW1, in his testimony in court stated “at that time up to February 1991 he did not repay the loan while interests continued to accrue on the principal sum to the tune of N=5,075,345.14.” From the above demonstrations of steps taken by the Bank before it embarked on the sale of the mortgaged property, I do not think it is correct to say that reasonable precautions were not taken by the Bank

to obtain the market value of the property. The 1st respondent when informed about the offer of N=3.7 million, he rejected it and promised to get another buyer but after he was given more time he did not come up with any buyer with a better price, but merely asked the Bank to buy it. I also do not see how fraud or collusion is manifested by the decision of the bank to auction the property to a buyer at N=3.7 million. His suggested price of N=8million could have been accepted by the Bank if he had brought an offer or to meet such price because at least, it will be able to off set the amount owed by the 1st respondent, instead of N=3.7million which obviously could not fully set off the loan owed by the 1st respondent.

Coming to the issue of allegation of collusion leading to gross and fraudulent undervalue in the price the property was sold, the two valuation certificates one each tendered by the two adverse parties were made the core issue on the said under valuation. It is lamentable that the learned trial judge failed to consider and evaluate the two valuation certificates i.e Exhibit 26 and 29 before arriving at his conclusion that the sale of the property at N=3.7million as testified by the PWI the plaintiff, was gross under value. Having not done so, this court though an appellate court is in the same position as the trial court to evaluate the two exhibits vis a vis the ipsi dixit of the plaintiff. Exhibit 26 tendered by the plaintiff dated in February 1992, valued the price of the property to N=14.5 million and such was the advice given to the 1st respondent on the value of his property by his own valuers. Despite such advice, the plaintiff in less than one month from the date of Exhibit 26, wrote a letter to the Bank dated 30/3/1992 i.e Exhibit 12 in which he proposed N8million as the price of the property. The inference that can be drawn from this, is that either Exhibit 26 did not exist as at the time he wrote Exhibit 12 or that he himself regarded the valuation of the property by his own valuers as outrageous and for that reason he himself discarded it and thereupon fixed his own value at N=8million. It has not been shown that he is a professional surveyor and also he did not state on what basis he fixed and offered N=8million, as the value of his property. I have closely examined Exhibit 26 and it did not contain any details and analysis on the basis on which the PW2 arrived at N=14.5million as the market value of the disputed property as at the time he issued same or inspected the property. The author of Exhibit 26 simply stated the value and remarked “structural and other details relating to the property may be supplied on demand.” He did not give further details even when he was called to testify at the trial court as PW2.

Conversely, Exhibit 29, the valuation certificate tendered by the 2nd defendant through its witness DW2, contained detailed data and analytical information on which the valuers based their opinion on its page 3, as to how they arrived at N=4million as the sale value of the property while the open market value was therein fixed at N=5.4 million. It also contained all the necessary description of the property and the sketches of the entire building. In the light of the above, I am inclined to reject the expert opinion given in Exhibit 26 and accept the valuation provided in Exhibit 29 for being thorough, analytical and more professionalized than Exhibit 26 which provided no detailed analysis and information and/or description of the land and also the author of it failed to state the basis on which he gave his estimated cost of the property.

For these reasons, I am of the view that contrary to the finding of the lower court that the auction sale of the property of N=3.7million is a gross under value, I hold the view that such valued price was not so low as would lead to setting aside the sale, moreso, in view of my finding above that allegation of fraud had not been particularize in the pleading and proved by credible evidence in relation to the conduct of the sale. The law is trite, that criminal allegation must be proved beyond reasonable doubt as required by Section 138 of the Evidence Act. See also UBA Plc VS. Ayinde (2000) 7 NWLR (Pt.663) 83 at 102 Again, even if there was irregularity in the conduct of the sale, that would not be sufficient to warrant the setting aside of the said sale. The only remedy open to the plaintiff/1st respondent is claim of damages against the 1st defendant/Bank.

Thus, for the reasons I gave above I have not seen any valid and cogent reasons given in the Notice as would enable me affirm the decision of lower court “other than those given by it.

I refuse to act on the Notice for it is devoid of any merit. I regard the submission on the alleged failure to give notice of the loan specifically to the 1st respondent as mere academic exercise. Since in all the correspondences the sum of N=5.7million was meant to cover the principal loan and accrued interest.

In summation, I have held above that there was no dispute that as at the 5/6/92 when the auction sale was conducted, the 1st respondent was indebted to the bank to the tune of over N5=million which said indebtedness comprised of the loan he collected and accrued interest. As at the 5/6/92 when the mortgaged property was auctioned, the equity of redemption was, not available or did not enure to the plaintiff/1st respondent. Although only two days notice was given before the sale, instead of the 7days as required by section 10 of the Auctioneers law, such sale would not be vitiated or set aside as non-compliance with the statute could only attract claim of damages against the bank.

Again on the issue of securing Governor’s consent before the execution of mortgage as enjoined by the provisions of Section 22 of Land Use Act 1978, that condition or requirement has now been down played by the Supreme Court in the interpretation given to Section 22 of the Act in its recent decisions wherein it was held that it is inequitable to deprive a purchaser for value of his right to a property for want of prior consent of Governor. Also as I held earlier there was no evidence of fraud, collusion or connivance between the appellant and the 1st defendant/2nd respondent. All these and other reasons given earlier in this judgment led to my resolution of the three but one issues for determination raised in this appeal in favour of the appellant. The other issue I partly resolved against him will not change the conclusion I reach that the lower court was erroneous in its decision as per page 168 of the record as below.

“Upon the evidence presented by both parties before me by witnesses of both parties and the consideration of the facts contained in the pleadings and addresses of the counsel I am satisfied with the facts the plaintiff has satisfactorily proved his claim on the balance of probability. Consequently I hereby enter judgment in favour of the plaintiff as against the defendants in this case ….. ”

Contrary to the above finding of the lower court, I am of the view that the decision is not supported by evidence to justify the grant of the reliefs sought by the plaintiff in the suit.

In conclusion, I adjudge this appeal meritorious. It is accordingly allowed by me. The decision of the lower court delivered on 11th March 2003 in Suit No. KDH/KAD/439/94 is for reasons stated above, hereby set aside. All the claims made by the 1st respondent/plaintiff are accordingly dismissed. Costs which follow events assessed at N=10,000, is awarded to the appellant against the 1st respondent only.

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Other Citations: (2007)LCN/2194(CA)