Bulet International Nigeria Limited & Anor V. Dr. Mrs. Omonike Olaniyi & Anor (2017)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The 1st respondent in this appeal, DR, MRS. OMONIKE OLANIYI, was a customer of the 2nd respondent, C.B. VENTURES Ltd. She had a deposit of N15 million with them. The property in dispute located at Plot 2370 Cadastral Zone A6 Maitama District of the Federal Capital Territory (FCT) Abuja, covered by Certificate of Occupancy No. FCT/ABU/PL.344 was allocated to the 2nd appellant, MUSA GARBA IZAM. He developed it by constructing an 8-bedroom duplex thereon. He put in the 1st respondent, BULET INTERNATIONAL NIG. Ltd. as his tenant. Somewhere along the line, Musa Izam became indebted to C.B. Ventures Ltd. He agreed to sell the property to C.B. Ventures to offset his liability to them. C.B Ventures, in turn, later became indebted to Dr. Olaniyi. In part payment of its indebtedness, it assigned the property to her. A Deed of Assignment (Exhibit P10) was executed between Dr. Olaniyi and C.B. Ventures Ltd. The deed was duly registered as No. FCC III at page III Vol. 8 at the Lands Registry, Abuja. When the 2nd appellant failed to apply for the consent of the Minister for Lands

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and Survey to the assignment, as required by Section 22 of the Land Use Act, the 2nd respondent, through its solicitors, filed the application for consent. The appellant, Bulet International Nig. Ltd., as a tenant in the property was duly notified of the change of ownership and was requested to pay its rent thenceforth to Dr. Olaniyi, the new owner. The refusal of Bulet International Nig. Ltd. to acknowledge her as the new owner and its refusal to pay rent to her caused her to institute an action against it before the High Court of the Federal Capital Territory (FCT) Abuja vide a writ of summons and statement of claim dated 27th October, 1997. After the institution of the suit, the 1st appellant applied to join the 2nd appellant and 2nd respondent as co-defendants. They were so joined. The 1st respondent was granted leave to file an amended statement of claim to reflect the joinder.

By Paragraph 19, her amended statement of claim dated 16th December, 1997, she sought the following reliefs against the appellants and 2nd respondent:

(a) Immediate peaceable possession of Plot 2370 situate and being at Cadastral Zone A6 Maitama District, Abuja covered

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by Certificate of occupancy No. FCT/ABU/PL.344.

(b) Payment by the defendant to the plaintiff or the appropriate authorities of all due rates or levies made by relevant or appropriate organs.

(c) Payment by the defendant to the plaintiff or the appropriate authorities of all electricity and water bills already consumed up to the date of handing over possession to the plaintiff.

(d) Perpetual injunction restraining the defendant from continuing occupation of the said premises.

(e) Damages for use and occupation or mesne profits as follows:

(i) From March 1996 – 28- February 1997 – N1.5 million

(ii) From March 1997 till possession is delivered -N2.5million per annum or the current rental value of the property.

(f) An order of the Honourable Court directing the defendant to put the house and its premises in a tenantable position before vacating same. In the alternative, paying the plaintiff a sum equaling the sum paid or required to be paid to put the property in a tenantable position.

The 1st and 2nd defendants in the suit (the appellants herein) filed an amended statement of defence and counter claim dated

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27th February, 1998. In paragraph 19 they counter-claimed as follows:

(i) A declaration that the purported assignment of the expired term of the leasehold property in dispute situate at Maitama Abuja, property of 2nd defendant to C.B. Ventures Limited and from the latter to the plaintiff is invalid and of no effect and does not pass any title in the plaintiff.

(ii) The said invalidity is premised on facts stated in Paragraphs 5 (i), (ii), (iii), (iv) and (v) and Paragraph 10 (a) – (c) of the Amended Statement of Claim (sic: defence).

(iii) The defendants will rely on all documents, letters, and etc., pleaded in the said Amended Statement of Defence.

The 1st respondent filed a reply to the statement of defence and defence to the counter claim. The 2nd respondent, C.B, Ventures Ltd. did not file any pleadings. The appellants’ defence to the suit was based on several factors. Some of those factors were pleaded in Paragraphs 4, 5, 10 and 21 of the Amended Statement of Defence and Counter claim as follows:

“4. The defendant deny Paragraph 5 of the statement of claim and aver that the purported assignment of Musa Garba Izam’s interest in the

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said property to C.B. Ventures Ltd, was conditional on the fulfilment of certain conditions to wit calculating and waiving the rate of interest and the sale, even if beyond N10 million to the 3rd defendant, conditions which the Bank did not fulfil.

5. In further answer to the said statement of claim, the defendants aver that the purported assignment was vitiated by irregularities perpetrated by the Managing Director, Chief Executive of Commerce Bank Plc, who is now facing a 56 count charge at the Failed Banks Tribunal Lagos presided over by Edokpayi, J. in that:

(i) The application for consent of the Honourable Minister, Federal Capital Territory was not signed by the 2nd defendant.

(ii) No consideration was entered in the agreement to assign between 2nd and 3rd defendant.

(iii) The consideration stated in the application for consent to assign to the Honourable Minister stated N5.2 million instead of N10 million.

(iv) The said approval to assign dated 19th July, 1995 was not sent to Musa Garba Izam but to one Chukwuma Nwachukwu Ume & Co. Box 2848, Abuja, a person unknown to Izam.

10. In answer to Paragraph 10 of the statement

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of claim, the defendants aver that:

(a) C.B. Ventures Limited not having any interest in Izams property, it passed no interest to the plaintiff: nemo dat qoud non habet;

(b) Neither Commerce Bank Plc, nor its subsidiary C.B. Ventures Limited, being distressed institutions under the regulatory organs of the Central Bank of Nigeria and Nigerian Deposit Insurance Corporation can pay the plaintiff N15 million or any part of it as against all other customers of Commerce Bank plc.

(c) The defendants did not receive not was it served the required statutory notice.

21. The defendants will also at the trial contend: –

i. That because of the irregularities attendant to the said assignment agreement, the application to assign anal the non performance of conditions precedent, there is no valid assignment of Izams interest to C.B. Ventures Limited.

ii. That by virtue of paragraph 14 (i) above no interest in the said property passed to the plaintiff nemo dat quod non habet.

iii. That there is no contractual relationship between the plaintiff and the Defendant nor 2nd defendant.

iv. Urge the Court to grant the counter

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claim.

The 1st respondent reacted to paragraph 4 of the Amended Statement of Defence and counter claim in Paragraph 2 of her reply thereto as follows:

“2 The plaintiff in specific reply to Paragraph 4 of the statement of defence and counter claim avers that the Deed of Assignment signed by the 2nd defendant did not specify any condition to be fulfilled before same is registered in any event no waiver of rate of interest and the sale was never discussed or agreed upon as alleged or at all as there was no basis for it at all.

Both sides led evidence and tendered exhibits in support of their respective positions. At the conclusion of the trial, the trial Court in a considered judgment delivered on 9th October, 2002 entered judgment in favour of the plaintiff/1st respondent as follows:

“In view of all the foregoing findings and my earlier holdings, I am of the view that the plaintiff has, by a preponderance of evidence, established her case against the defendants in the case and accordingly I hereby enter judgment for her and order the 1st and 2nd defendants to immediately make arrangements to deliver the

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possession of plot No. 2370 Cadastral Zone A6 Maitama District, Abuja covered by Certificate of Occupancy No. FCT/ABU/PL.344 to the plaintiff. The 1st and 2nd defendants are also perpetually restrained from continuing to occupy the said premises. I also award damages to the plaintiff against the 1st defendant in the following manner for the use and occupation of the said property.

(i) From March 1996 28th February 1997 N1.5 million per annum.

(ii) From March 1997 till possession is delivered 1.5 million per annum.

I also order the 1st defendant to put the property in a tenantable position before handing over same to the plaintiff. I have for the reason given earlier refused to grant the counter claim of the defendants and I accordingly dismiss same.

The appellants were aggrieved by this decision and appealed to the Court of Appeal, Abuja Division, which on 26th October, 2005 dismissed same and upheld the decision of the trial Court. The appellants are still aggrieved and have further appealed to this Court vide their Amended Notice of Appeal dated 6th February, 2007 containing six grounds of appeal.

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The parties duly filed and exchanged their respective briefs of argument.

The appeal first came up for hearing on 30/1/2017. On that day, A.B ANACHEBE, SAN adopted and relied on the appellants’ brief filed on 5/3/2007 in urging the Court to allow the appeal. In the course of oral adumbration, it was discovered that there were some discrepancies in the pagination of the record vis a vis references thereto in the appellants’ brief, as the record had two or more page numbers on each page. The appeal was adjourned to 6/3/2017 to enable counsel reconcile the pagination of the record. On the said 6/3/2017, leaned senior counsel for the appellants moved a motion on notice filed on 28/2/2017 for leave to use the recompiled record of appeal filed on 28/2/2017 for the hearing of the appeal, leave to amend the appellants’ brief and a deeming order in respect of the proposed amended appellants’ brief. The application was allowed in part. It was ordered that the recompiled record may be used in respect of its corrected pagination only. Any process not forming part of the original record of appeal was excluded. Particular reference was made to a purported

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original notice of appeal not contained in the earlier record. The applications for leave to amend the appellants’ brief and for a deeming order were refused on the ground that the amendments sought to be made did not relate to the pagination of the record. Thereafter, O.I. OLORUNDARE, SAN adopted and relied on the respondents’ brief, which was deemed filed on 14/10/2016 in urging the Court to dismiss the appeal.

The appellants distilled 3 issues for the determination of this appeal as follows:

1. Whether the 2nd respondent was entitled to surreptitiously apply for statutory consent to assign without prior recourse to the 2nd appellant on whom the duty is vested.
2. Whether the burden of proof of non-fulfilment by the 2nd appellant of agreed pre-condition(s) to valid assignment (as comprised in Exhibit P10) has been discharged against the backdrop of the state of pleadings.
3. Whether the 2nd respondent being a wholly-owned subsidiary of Commerce Bank Plc., is entitled to own or transfer interest in the res in favour of the 1st respondent in the aftermath of the liquidation of Commerce Bank Plc. and statutory takeover of its

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assets by CBN/NDIC.

The respondents also formulated 3 issues thus:

l. Whether the 2nd respondent was entitled to apply for consent to assign his property in view of the 2nd appellant’s Exhibit P10 (or P1H) and after the 2nd appellant had derived some benefits

2. Whether there was any condition apparent on Exhibit P10 or (P1H) to be fulfilled before it could be registered to become a valid assignment
3. Whether CB Ventures Limited under the law has a legal capacity of its own and was capable of entering into contract.

Though differently worded, the issues formulated by both parties are substantially similar. The appeal shall be determined on the issues formulated by the appellants. Both parties have argued Issue 1 and 2 together. I shall adopt the same approach in the resolution of the appeal.

Issues 1 and 2

It is the contention of learned counsel for the appellants that the transfer of title by the 2nd appellant in favour of the 2nd respondent was inchoate until the statutory consent of the Minister for Lands and Survey had been obtained, as required by Section 22 of the Land Use Act. He submitted that it is the duty

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of the holder of the statutory right of occupancy to apply for the said consent and that in the instant case, it was the duty of the 2nd appellant, as assignor to apply for the consent. He submitted that the remedy of the assignee in the event of improper or unreasonable refusal to apply for consent is an order for specific performance. He referred to Sosan V H.F.P. Engineering Ltd. (2004) 3 NWLR (Pt.861) 546 @ 577 A B. He submitted that in the instant case, the statutory consent to Exhibit P10 was sought and obtained without recourse to the 2nd appellant. He contended that there was no pleading alleging that the 2nd appellant had been approached or had refused to apply for consent. He contended that the 2nd respondent circumvented the 2nd appellant in the application for consent deliberately, as it had not fulfilled the agreed preconditions for the assignment. The said pre-conditions, according to learned counsel, which were pleaded in paragraph 4 of their statement of defence and counter claim (reproduced earlier), included a determination of the precise amount owed and a waiver of interest on the debt.

Learned counsel submitted that as a

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result of a petition to the Ministry of Land, Planning & Survey when it was discovered that an application for consent had been made, the Honourable Minister instructed the Deputy Director of Lands to withdraw the approval given and to identify those responsible. He argued that the directive showed that the Minister was misled into granting consent to the transaction. He maintained that it is only an assignor or a legal practitioner representing him who can apply for consent. He submitted that the applicable procedure was not followed in this case. He referred to the evidence of PW2 under cross-examination confirming the correct procedure (even though he had stated otherwise in his evidence in chief) and submitted that both lower Courts ought to have taken his testimony into consideration before reaching their conclusions. He submitted that Exhibit P1 (G) addressed to the 2nd appellant and referring to his application for consent reveals a misrepresentation of facts since he was not involved in the application at all. Learned counsel conceded that where an assignor unreasonably withholds his consent, the assignee may apply but must disclose in his

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application the reason why he and not the assignor is making the application. He referred to: Adetuyi V Agbojo (1997) 1 NWLR (Pt. 484) 705 @ 718; Ugochukwu V Cooperative & Commence Bank Ltd. (1996) 6 NWLR (Pt. 456) 524 @ 540.

He submitted that the 2nd respondent did not file any pleading in answer to the assertion that there were pre-conditions to be fulfilled and argued that the implication of such default of pleading is that there was no duty on the 2nd appellant to prove the assertion. He relied on Section 75 of the Evidence Act (now Section 123 of the Evidence Act, 2011) and Honika Sawmill Ltd. V Hoff (1994) 2 NWLR (Pt. 326) 252; Okoebor V Police Council (2003) 12 NWLR (pt. 834) 444 @ 473 A & 476 C; Ogunjomo V Ademolu (1995) 4 NWLR (pt. 389) 245 @ 268 G. He noted that the 1st respondent also failed to deny the assertion in her reply to the statement of defence and defence to counter claim. He referred to paragraph 10 of the 1st respondent’s amended statement of claim and contended that by the said pleading, she had confirmed the incompleteness of the assignment by acknowledging that the 1st respondents director, one Alhaji Isa, confirmed

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meeting with 2nd appellant who confirmed having problems with the 2nd respondent and Commerce Bank Relying on the provisions of Sections 132 (1) (b) and (2) of the Evidence Act (now Section 128 (b) & (2) of the Evidence Act, (2011), he argued that although Exhibit P10 is in writing and the general rule is that no oral evidence may be given to contradict, alter, add to or vary an agreement for the disposition of property which has been reduced to writing, the circumstances of this case present an exception to the rule on the ground that the Deed of Assignment is vitiated by the non-fulfilment of the pre-conditions thereto by the 2nd respondent. He submitted that the default of pleadings by the 2nd respondent and the failure to address the issue in her reply by the 1st respondent constitute admission of the facts pleaded by the 2nd appellant and there was no duty on it to lead evidence in proof of the uncontroverted facts.

He submitted that having failed to challenge the assertion of unfulfilled pre-conditions, the learned trial Judge was wrong to have held that the 2nd appellant failed to lead evidence in respect of paragraph 4 of his statement of

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defence and on that ground deemed the averment abandoned. He submitted that the learned trial Judge erroneously placed the burden of proof on the appellants despite the fact that issues were not joined on the pleadings with regard to the unfulfilled conditions. He submitted, relying on Nigerian Bottling Co. Plc. V. Okwejiminor (1998) 8 NWLR (Pt.561) 295 @ 306 C E, that the position of the law is that issues for determination in a suit are fixed by the pleadings. In his view, the finding of the learned trial Judge was perverse in the circumstances. He contended further that the learned trial Judge was wrong to speculate as to whether or not pre-conditions could be inferred from the assignment. He submitted that misplacement of the burden of proof usually leads to a miscarriage of justice. See: P.H.M.B. Vs Ejitagha (2000) 11 NWLR (Pt.677) 154 @ 160 F. He argued in similar vein with regard to the Court’s finding that Exhibit P1 (i) was an afterthought. He submitted that both Exhibits P1 (i) and P13 were written before the inception of the suit and that even if they are contradictory, it is not for the Court to pick and choose or to speculate on them. On

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the circumstances in which this Court would interfere with concurrent findings of the lower Courts, he cited the following authorities:

Igwego Vs Ezeugo (1992) 6 NWLR (Pt. 249) 561 @ 576 E G; Ezeonwu V Onyechi (1996) 3 NWLR (pt.438) 499 @ 526 C E; Onwudiwe V. F.R.N. (2006) 10 NWLR (pt.988) 382 @ 415 F; Eholor V. Osayande (1992) 6 NWLR (pt.249) 524 @ 539 E F. He submitted that special circumstances have been shown in this case to warrant interference by this Court with the concurrent findings of the Courts below.

In opposition to the submissions of learned counsel for the appellants, learned counsel for the respondents argues that the 2nd respondent was entitled to apply for consent to assign, as it did to perfect the deed of assignment between it and the 2nd appellant. He submitted that the 2nd appellant voluntarily signed Exhibit P10 (P1H). He submitted further that in the petition he wrote to the Hon. Minister of the FCT on 27/5/96, after being contacted by the 1st appellant on the persistence of the 1st respondent on the need to be recognized as the new landlord, the 2nd appellant categorically stated that he sold

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the property to the 2nd respondent for a consideration of N10 million. That by an earlier letter dated 27/3/1995 addressed to the Chairman/Chief Executive of Commerce Bank Plc., he informed him that he had retrieved his title documents in respect of the property in dispute and that he was forwarding them to the 2nd respondent for its retention (refers to Exhibit P13 at page 256 lines 12 – 15 of the record). He noted further that the 2nd appellants petition to the Honourable Minister of the FCT was investigated and when confronted with Exhibit P10, he (2nd appellant) confirmed his signature thereon (refers to paragraph 2 of Exhibit P5 at page 228 of the record). He observed further that on Exhibit P10 (P1H) the 2nd appellant agreed with the 2nd respondent that consent for the assignment had been obtained (refers to clause 4 of Exhibit P10 at page 238 of the record) and admitted under cross-examination that he sent the certificate of occupancy to the 2nd respondent. He submitted that in light of all the facts stated above, and in the absence of any allegation that his signature was forged or that he did not sign Exhibit P10, it was inconceivable for the 2nd

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appellant, a University graduate who had worked for the Government for 30 years, to turn around and state that he did not apply for consent and that the assignment should be declared invalid on the basis of unknown and unstated pre-conditions purportedly unfulfilled. On the implication of the signature of a person of full age and discretion on a document, he referred to: Okoli V. Morecab Finance (Nig) Ltd. (2007) 14 NWLR (Pt.1053) 37 @ 74 75 E A.

He submitted further that documentary evidence is the best form of evidence and it is used as a hanger with which to assess oral evidence. He referred to: Olujinle V Adeagbo (1988) 2 NWLR (Pt.765) 238 @ 254. He referred to Exhibit P11, a document made by the 2nd appellant wherein he admitted that he had sold the property, subject matter of this suit to the 2nd respondent for a consideration of N10 million. He submitted that the document amounts to an admission against interest and should be so treated. He argued that in light of the said document, it was clear that the 2nd appellant had divested himself of title to the property and that the fact is corroborated by Exhibit P10 wherein it is

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stated:

The Assignor has agreed (the previous requisite consent having been obtained) with the Assignee for the sale of the above mentioned property with the structures and development therein

On the unwholesomeness of the 2nd appellants attitude of having taken a benefit under the transaction and later contending that the Minister’s consent obtained was improper, he relied on: A.G. Rivers State V. A.G. Akwa Ibom State (2011) 8 NWLR (Pt.1248) 31 @ 186 187 E-A; Chidoka V. F.C.F.C. Ltd. (2013) 5 NWLR (pt.1346) 144 @ 163 B G; W.C.C. Ltd. V. Batalha (2006) 9 NWLR (Pt.986) 595 @ 615 D E; Adetuyi V. Agbojo (1997) 1 NWLR (Pt.484) 705 @ 718 A C; Ugo Chukwu V. Cooperative & Commerce Bank (Nig.) Ltd. (1996) 6 NWLR (Pt.456) 524 @ 542.

He submitted that in the circumstances of this case, it was proper for the 2nd respondent to apply for the Ministers consent in the face of the 2nd appellants recalcitrance and refusal to take the necessary action. He submitted that it has always been the position of our Courts that a grantor having sold his land and derived some financial benefit

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under the transaction, as in the present case, cannot and should not be allowed to derogate from the grant. That he must not seek to take away with one hand what he had given with the other. He referred to: Ogbeide Vs Osifo (2007) 3 NWLR (Pt.1022) 423 @ 446. He submitted that the Court has a duty to do substantial justice and would not allow a party to use the provisions of any statute as an engine of fraud. He referred to: Chieke Vs Olusoga (1997) 3 NWLR (Pt.494) 390 @ 403 – 404.

Learned counsel argued that apart from the fact that the 2nd appellant admitted in Exhibit P10 that the Minister’s consent had been obtained, the appellants have not shown that they have suffered any miscarriage of justice by the 2nd respondents application for the said consent. He argued that contrary to the appellants’ contention that their pleading in Paragraph 4 of their statement of defence regarding pre-conditions to be fulfilled before consent to assign could be applied for was unchallenged and therefore no issue joined thereon, the 1st respondent specifically denied the appellants’ assertion in Paragraph 2 of her reply to the statement of defence. He submitted

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that in the circumstances, issue had been joined on the existence of the pre-conditions and the onus was on the appellants to prove tie existence of those conditions, He submitted that there is no appeal against the finding of the learned trial Judge to the effect that no evidence was led to prove the pre-conditions. He argued that the Court was right when it held that the pleading in respect of the pre-conditions without evidence led to support it was deemed abandoned. He noted that having regard to the following facts: that the 2nd appellant voluntarily forwarded the certificate of occupancy in respect of the property and the tenancy agreement between it and the 2nd appellant to the 2nd respondent for its retention vide Exhibit p13, that by Exhibit P14 he duly informed the 1st appellant of the change of ownership of the property in view of Exhibit p10 executed in favour of the 2nd respondent and also advised on the need for the 1st appellant to enter into a new tenancy agreement with the 1st respondent the contention that there were conditions to be fulfilled before the request for consent could be made has been thoroughly debunked. He argued that there was

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nothing surreptitious in the application for consent in view of the overwhelming acts of the 2nd appellant transferring the property to the 2nd respondent.

He argued that none of the alleged pre-conditions was apparent on the face of Exhibit P10 and no separate evidence of such conditions was tendered at the trial. Relying on Section 132 of the Evidence Act (now Section 128 of the Evidence Act, 2011), he submitted that oral evidence will not be allowed to vary the content of a written document. He also referred to: U.B.N. V. Ozigi (1995) 3 NWLR (pt.333) 385 @ 400. On the whole, he urged the Court to dismiss the appeal.

Having carefully considered the submissions of both learned counsel in respect of the first two issues, the grouse of the appellants is clear. The validity of the Deed of Assignment (Exhibit P10) executed between the 2nd appellant and the 2nd respondent is being challenged on the ground that the consent of the Honourable Minister of the FCT to the transaction was obtained surreptitiously behind the 2nd appellant’s back and that the transaction is void for non-fulfilment of agreed pre-conditions, such as waiver of

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interest.

The first issue that arises for consideration is whether there was an intention by the 2nd appellant to divest himself of his interest in the disputed property. The facts, which are not in dispute, are that at a point in time the 2nd appellant, Musa Garba Izam, was indebted to CB Ventures Ltd. When he was unable to settle his indebtedness, he sold his property at Plot 2370 Cadastral Zone 46, Maitama District Abuja to the bank in lieu. The property was previously mortgaged to Federal Mortgage Finance Ltd. In furtherance of the transaction, he addressed a letter dated 27/3/1995 (Exhibit P13) to the Chairman/CEO of Commerce Bank Plc. stating inter alia:

“Dear Dr. Adekanye,

YOUR PROPERTY AT ABUJA

I wish to thank you once again for the able and compassionate way you resolved the issues relating to the joint venture trade between CB Ventures and ourselves. In fact I can never find words appropriate enough for conveying to you my sincere appreciation of the role you played to settle the matters involved to the satisfaction of both parties.

I am happy to inform you that I have retrieved the original title documents in

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respect of the property at Plot 2370 Cadastral Zone A6 Maitama District, Abuja from the Federal Mortgage Finance Limited.

I am hereby forwarding same to CB Ventures for their retention.

Exhibit P10 is the deed of assignment dated 20th July, 1995 between MALLAM IYUSA GARBA IZAM (assignor) on the one hand and CB VENTURES Ltd. (assignee) on the other. By the said deed, the assignor assigned to the assignee all that parcel of land together with the structures thereon known as Plot 2370 and situate at Cadastral Zone A6 Maitana District Abuja delineated in Survey Plan annexed to the Certificate of Occupancy No. FCT/ABU/IL 344 for all the residue (unexpired) of the term of 99 years initially granted.” It was duly signed, sealed and delivered by parties thereto and registered as No.68 at page 68 in Vol. C of the Lands Registry, Abuja, FCT. As rightly observed by the Court below, by Exhibit P10, the 2nd appellant had sold the unexpired term of years of his interest in the property to C.B Ventures Ltd. The fact that he had sold the property to C.B Ventures Ltd. was further confirmed in Exhibit P1 (I), a petition dated 27/5/1996

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addressed to the Honourable Minister of the FCT, wherein he stated in paragraph 1 thereof:

“I had sold the above named property to C.B, Ventures Limited at a consideration of N10, 000, 000.00 (Ten Million Naira Only).”

Sections 22 (1) and 26 of the Land Use Act provide:

“22. (1) It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained.

26. Any transaction or any instrument which purports to confer on or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void.”

From the above provisions, no alienation of the interest of the holder of a statutory right of occupancy in respect of a piece or parcel of land will be valid unless the consent of the Governor (or in the case of the FCT, the Honourable Minister) has been sought and obtained. See: Ugochukwu Vs Cooperative and Commerce Bank Ltd. (1996) 6 NWLR (Pt.456) 524; Owoniboys

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Technical Services Ltd. vs Union Bank of Nig. Plc. (2003) 15 NWLR (Pt.844) 545. It is also the law that it is the holder of a statutory right of occupancy that has the duty to apply for the Governor’s (or Ministers) consent in respect of the land he wishes to transfer, assign, mortgage, etc. See: Mbanefo V. Agbu (2014) 6 NWLR (Pt.1403) 238; Owoniboys Technical Services Ltd. V. Union Bank of Nig. Ltd. (supra).

In the instant case, the issue is not whether or not the Minister’s consent was obtained. It is clearly stated in Exhibit P10 as follows:

The Assignor has agreed (the Previous requisite consent having been obtained) with the assignee for the sale of the above mentioned property with structures and development thereon

The 2nd appellants complaint is that there was no recourse to him before the consent was obtained and that he was deliberately by-passed in the process because the 2nd respondent had failed to fulfil agreed pre-conditions upon which the assignment in Exhibit P10 was contingent. Now, both the trial Court and the Court below held that the appellants failed to lead any evidence in support of

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the pleading on the issue of pre-conditions. In this appeal, they maintain that in the absence of any pleading by the 1st respondent specifically challenging the assertion in the Statement of Defence that there were pre-conditions, the averments were deemed admitted and there was no further duty on them to prove same.

Firstly, it is not correct to state that the 1st respondent did not react to the pleading regarding pre-conditions. In Paragraph 2 of her Reply to Statement of Defence and Counterclaim of the 1st and 2nd defendants at page 42 of the record, she averred as follows:

2. The plaintiff in specific reply to Paragraph 4 of the statement of defence and counter claim, avers that the Deed of Assignment signed by the 2nd defendant (MUSA GARBA IZAM) did not specify any condition to be fulfilled before same is registered in any event no waiver of rate of interest and the sale was ever discussed or agreed upon as alleged or at all as there was no basis for it at all.

The plaintiff/1st respondent clearly and specifically joined issue with the appellants on the existence of alleged pre-conditions. The law is settled that whoever

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desires any Court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. It is also trite that in civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the Court would be given if no evidence were produced on either side, regard being had to any presumptions that may arise on the pleadings. See Sections 131, 132 and 133 of the Evidence Act 2011. In the instant case, the appellant had the burden of establishing in the first place the specific pre-conditions said to have been agreed upon by the parties. The onus would then shift to the opposing party to disprove the fact. It should also be borne in mind that the appellants had filed a counter claim in which they were seeking declaratory reliefs. A declaratory relief is never granted on the basis of admission or default of pleading. The party seeking declaratory reliefs has the burden of establishing his entitlement to such reliefs. He must succeed on the strength of his own case and not on the weakness of the defence, if any, See: Wallersteiner

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Vs Moir (1974) 3 ALL ER 217 @ 251; Dumez Nig. Ltd V. Nwakhoba (2008) 18 NWLR (Pt.1119) 361; Bello V. Eweka (1981) 1 SC (Reprint) 63; Emenike V. PDP (2012) 12 NWLR (Pt.1315) 556. In the instant case, there was no further pleading in answer to Paragraph 2 of the plaintiffs reply and defence to counter claim. No evidence was led to support the bare pleading in paragraph 4 of the statement of defence. The learned trial Judge was therefore right in holding that the pleading was deemed abandoned.

Secondly, there was a finding by the trial Court, which was rightly upheld by the Court below that not only was the 2nd appellants complaint regarding the application for consent duly investigated, the consent given was not withdrawn. Indeed, as observed by the Court below, PW5, a director in the Ministry of Lands and Survey testified that approval had been given for the transaction between the 2nd appellant and the 2nd respondent. Thirdly, it is the law that where a judgment, or any other judicial or official proceeding, contract or any grant or disposition of property has been reduced to the form of a document or series of documents, oral evidence will not be allowed to contradict, vary, add to, or subtract

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therefrom. See Section 128 of the Evidence Act, 2011, except where fraud, illegality or other exceptions set out in sub-paragraph 1 (a) to (e) are established. See: Anyanwu v. Uzowuaka & Ors (2009) 13 NWLR (Pt.1159) 445; Fortune International Bank Plc V. Pegasus Trading Office (GMBH) & Ors. (2004) 4 NWLR (Pt. 863) 369, where it was held that the exceptions only permit evidence which will not be inconsistent with the terms of the relevant contract or document; Ezemba V. Ibenema (2004) 14 NWLR (Pt.894) 617; Macaulay V. NAL Merchant Bank (1990) 4 NWLR (Pt.144) 283. Exhibit P10 was duly signed by the 2nd appellant. There are no pre-conditions stated in Exhibit P10. The agreement also states categorically that the consent of the Minister had been obtained. The lower Court held at page 378 of the record:

A deed of assignment is a written document, which allows for no amendment except by another deed. The appellant has tendered oral evidence to contradict the contents of a written deed of assignment, which submission is wrong and unacceptable in law, because it is settled law of evidence that parole evidence is not admissible to vary or

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contradict, add to or deduct from a written document.

The view expressed represents the correct position of the law. Besides, the 2nd appellant is bound by the contents of Exhibit P10 signed voluntarily by him. He cannot resile from it. Under cross-examination he testified that he is a graduate who has spent over 30 years in Government service. In the case of Blay Vs Pollard (1930) 1 KB 682 @ 633 referred to in: Okoli V Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt.1053) 37 @ 74 75 E A, Scruthon, LJ observed:

” … It would be very dangerous to allow a man over the age of legal infancy to escape from the legal effects of a document he has, after reading it, signed in the absence of an express misrepresentation by the other party of that legal effect.”

See also: Allied Bank of Nig. Ltd, Vs Akabueze (1997) 6 NWLR (Pt.509) 374 @ 403 – 404: Egbase Vs Oriareghan (1985) 2 NWLR (Pt.10) 884.

In effect, the 2nd appellant failed to prove that Exhibit P10 is invalid. I agree with the lower Court where it held at page 376 of the record that the 2nd appellant, Izam, did not at any time deny that he sold the land

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in dispute together with the house thereon to CB Ventures Ltd. and that the complaints of the 2nd appellant are unfounded. Again, the finding of the Court below cannot be faulted. The 2nd appellant did not establish any fraud or misrepresentation before the trial Court. Both Courts below found that there was a clear intention by the 2nd appellant to dispose of his interest in the said property to CB Ventures Ltd. in lieu of the debt of N10 million, which he owed. Having voluntarily entered into and taken the benefit of the agreement between himself and CB Ventures Ltd., equity will not allow him to seek to avoid his obligation thereunder by challenging the legality of the transaction. See:Inyang V. Ebono (2002) 2 NWLR (pt.751) 284 @ 333 – 334; Okechukwu Vs Onuorah (2000) 12 SC (pt.II) 104; B.B. Apugo & Sons Ltd. Vs OHMB (2016) 6 SC (Pt.II) 32 @ 113 & 120. Moreover, the 2nd appellant has not shown that he has suffered any miscarriage of justice. In the circumstances, I resolve both issues against the appellants.

Issue 3

Whether the 2nd respondent being a wholly owned subsidiary of Commerce Bank Plc. is entitled to own or transfer

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interest in the res in favour of the 1st respondent in the aftermath of the liquidation of Commerce Bank Plc. and statutory takeover of its assets by CBN/NDIC.

It is contended on behalf of the appellants that the 2nd respondent was a subsidiary of Commerce Bank plc. That the CB in the acronym “CB Ventures Ltd. stands for Commerce Bank. That Commerce Bank Plc, was a distressed bank and that with effect from 23/9/1996, it had been taken over by the Central Bank of Nigeria (CBN). It is further contended that the 2nd respondent lacked the legal capacity to own or transfer any rights or interest in the res to the 1st respondent without the consent/authority of the CBN. Relying on Sections 423 and 424 of the Companies and Allied Matters Act (CAMA) Cap. C20 Laws of the Federation of Nigeria 2004, learned counsel submitted that CB Ventures Ltd., being a business or investment established by Commerce Bank Plc. from depositors funds is directly a chose-in-action, business or investment of the failed bank to which the Banks shareholders were entitled, notwithstanding its presumed separate corporate existence. He submitted that pursuant

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to Section 425 (1) (b) & 2 (a) of CAMA, which vests the liquidator with power to carry on the business of the distressed bank or sell its properties, only the liquidator (NDIC in the instant case) has the power to arrange for the sale of the assets and pay dividends to its creditors.

He also referred to Sections 36 & 38 of the Banks and Other Financial Institutions Act (BOFIA) 1991 Cap. 83 LFN 2004. He referred to Exhibit D6 (a letter showing that Commerce Bank Plc. had been taken over by the CBN) to the effect that upon the takeover of the bank, the Board of Directors was dissolved and a Transitional Supervisory Board was appointed to take over its assets, records and properties. He submitted that the assets and properties comprise 90% equity in the 2nd respondent company. He submitted that the respondents failed to join issue in their pleading on the issue of distress and liquidation of Commerce Bank Plc. and its takeover by CBN and NDIC and argued that the 2nd respondent being a wholly owned subsidiary of the bank, funded from shareholders funds, suffered the same fate. He submitted that the veil of incorporation was lifted by the tendering

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of Exhibit D4 (the Memorandum and Articles of Association of CB Ventures Ltd.).

In reply, learned counsel for the respondents submitted that once incorporated, a limited liability company acquires its own separate legal personality and has the power to sue and be sued in its corporate name, and shall also have the power of a natural person of full capacity. He referred to Sections 37 & 38 of CAMA. He submitted that once formed, no matter the structure of its shareholding, a subsidiary company is independent of the parent company. See: Union Beverages Ltd. Vs Pepsi Cola International Ltd. (1994) 4 NWLR (Pt.330) 1@ 6. He submitted that no evidence was led at the trial Court as to the meaning of the acronym CB Ventures Ltd. and it is therefore wrong for learned counsel to speculate that CB used in CB Ventures Ltd. stands for Commerce Bank. He submitted that the evidence given by their witness, DW4, a staff of the Corporate Affairs Commission to the effect that CB Ventures Ltd. is entitled to transact business on its own behalf without reference to anybody, is at variance with their contention that controlling shares in the company is synonymous with

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ownership. He submitted that since no evidence was given on Exhibits D4 and D5 at the trial, learned counsel cannot use his brief of argument as an avenue to adduce such evidence. He noted Further that another witness called by the appellants, DW6 confirmed in his testimony that Exhibit D6 relates to Commerce Bank Plc. only. While asserting that the 2nd respondent, as a limited liability company, had the legal capacity to enter into the contract with the 1st respondent, he noted that even by the appellants pleading in paragraph 3b of their statement of defence, Commerce Bank Pc. was taken over in February, 1996 and therefore the assignment of the property on 29th July 1995 took place long before the demise of the bank.

Learned counsel argued that not only did the 2nd appellant sign Exhibit P10, which states that the necessary consent had been obtained, he also admitted in Exhibit P11 that he had sold the property to the 1st respondent. He contended that in the circumstances, he has no business querying the application for consent. He submitted that no live issue on the lifting of the veil of incorporation was raised at the trial and no leave was sought

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to raise it as a fresh issue before this Court. He submitted, relying on FDB Financial Services Ltd. V. Adesola (2000) 8 NWLR (Pt. 668) 170 @ 183 184, that in order to lift the veil of incorporation there must have been an a allegation of fraud or impropriety against Commerce Bank Plc. and that the 2nd respondent was used as a facade or conduit pipe by the bank to defraud. He noted that in his testimony, the 2nd appellant stated that he did not have any business dealing with Commerce Bank Plc. He submitted that in the absence of evidence before the Court, the veil of incorporation of Commerce Bank which was not a party to the proceedings could not be lifted. He argued that Exhibit D6 referred to by learned counsel for the appellants is not a winding up order by or upon application to a Court for the appointment of a provisional liquidator or receiver/manager but that it is merely a letter from the office of the Deputy Governor of CBN addressed to one Okey Udeze informing him of his appointment as an Executive Director of Commerce Bank Plc. He urged the Court to resolve this issue against the appellants.

The appellants complaint under

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this issue is in relation to the assignment of the property in dispute by the 2nd respondent to the 1st respondent. In resolving issues 1 and 2 earlier, I held that the 2nd appellant had fully divested himself of whatever interest he had in the property in dispute. In the circumstances, I agree entirely with learned counsel for the respondents that he had no further interest in the res to protect. He is therefore a busybody with regard to the assignment between the two parties. Furthermore, the Issue of lifting of the veil of incorporation of Commerce Bank Plc. was never an issue at the trial Court. It is a fresh issue being raised for the first time before this Court. No leave has been sought or obtained either from this Court or the Court below. The submissions in this regard are accordingly discountenanced. See: C.G.G. (Nig.) Ltd. V. Aminu (2015) 7 NWLR (Pt.1459) 577; Sani Abdullahi V. The State (2013) 11 NWLR (Pt.1366) 435; Godwin V. C.A.C. (1998) 14 NWLR (Pt.584) 162.

The concept of corporate personality was established a long time ago in the case of Salomon Vs Salomon & Company Ltd. (1897) AC 22 to the effect that a company is a legal entity

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distinct from its members. It has a distinct legal personality and is capable of suing and being sued in its corporate name. A company is a different person altogether from the subscribers to the memorandum and is neither an agent nor trustee for them. It also has the capacity to enter into any agreement in its corporate name. See: Marina Nominees Ltd. V. F.B.I.R. (1986) NWLR (Pt.20) 48; Afolabi & Ors. V. Western Steel Works Ltd. & Ors. (2012) 17 NWLR (Pt.1329) 286. See also Section 37 & 38 of the CAMA. A subsidiary company has its own separate legal personality. In general, the acts of a subsidiary company cannot be imputed to the parent company and vice versa. See: Union Beverages Ltd. V. Pepsi Cola International Ltd. & Ors. (supra). The lower court was right when it held that the liquidation of Commerce Bank Plc. could not and did not affect transactions validly entered into by the 2nd respondent. The Court held, and I agree, that the closure of Commerce Bank Plc. by the CBN did not affect the corporate existence of the 2nd respondent and it is therefore not susceptible or subject to being acquired by the Transitional Supervisory Board of the CBN. I also agree with both lower Courts that in any event, the transactions involving the 2nd respondent took place before the

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liquidation of Commerce Bank Plc.

The lower Court observed that the issue regarding the take over of the properties of CB Ventures Ltd, under the provisions of BOFIA 1991 by the Transitional Supervisory Board of the CBN was a fresh issue that did not arise from the judgment of the trial Court and ought to have been struck out. Although it went ahead to determine the issue in order to avoid multiplicity of actions, I am of the considered view that the findings in that regard constitute obiter dicta, as the issue was not properly before the Court. It cannot therefore be the subject of a ground of appeal. The submissions in this regard are also discountenanced. See: Oleksandr & Ors. Vs Lonestar Drilling Co. Ltd. & Anor. (2015) 9 NWLR (Pt.1464) 337; Obatoyinbo vs Oshatoba (1996) 5 NWLR (Pt.450) 531: Oni vs Fayemi (2008) 8 NWLR (Pt.1089) 400 @ 427. This issue is accordingly resolved against the appellants.

In conclusion, I find this appeal to be devoid of any merit. It is accordingly dismissed. The judgment of the Court of Appeal, Abuja Division delivered on 26th October, 2005 affirming the judgment of the High Court of the Federal

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Capital Territory, Abuja delivered on 9th October, 2002 and all the orders made therein, is affirmed.

There shall be costs of N1,000,00 against each of the appellants in favour of the 1st respondent.

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SC.226/2015