Vera Ezomo V. New Nigeria Bank PLC & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
At the High Court of Justice, Benin City, the appellant as plaintiff took out a writ against the respondents as defendants jointly and severally for the following reliefs –
(1) A declaration that the 1st defendant failed and/or neglected to give NOTICE in writing and serve the plaintiff that his mortgaged or legal charge property known as the Royal Estate Ugbor Road, Benin City was to be sold as required by law and so the purported sale to the 2nd defendant is null and void.
(2) A declaration that the 1st defendant being the mortgagee exercised his power of sale mala fide and without reasonable caution and so failed to obtain a proper price from the 2nd defendant and thus rendering the purported sale null and void and of no effect.
(3) A declaration that the said mortgaged property was sold by the 1st defendant to the 2nd defendant during the pendency of suit No. B/1/85 between the 1st defendant and the plaintiff which went on appeal to the Court of Appeal on 22nd August 1991 and so caught by the principle of LIS PENDENS and thus rendering the purported sale null and void and of no legal effect.
(4) One million naira (N1,000,000.00) being special and general damages “for trespass committed by both defendants when they broke the plaintiff s closed (sic) and entered into his premises known as Royal Estate Ugbor, Benin City.
(5) An order of permanent injunction restraining the 2nd defendant, his servants and/or agents from further entering on the plaintiff’s mortgaged property known as Royal Estate Ugbor Road, Benin City.
The plaintiff went on later to file a Statement of claim dated 12th June 1995 which by leave of court underwent amendments finally culminating in the filing of a THIRD AMENDED STATEMENT OF CLAIM dated the 9th April 1997 upon which issues were joined by the consequential amended statement of defence of the 1st and 2nd defendants dated the 5th May 1997 with respect to the 1st defendant whilst from the records the date of the 2nd defendant’s Amended statement of defence is not indicated but there is indication that it was filed on the 28th November 1997.
Briefly the facts as can be gleaned from the records are that the appellant, a Medical Doctor, by a “legal charge” dated 18th August 1977 obtained an overdraft /loan of N50,000.00 to enable him develop a hospital Off Ugbor Road Benin City. Following an alleged default on the part of the appellant to repay the said loan, the 1st defendant Bank took out a writ in court and obtained judgment against the appellant in the sum of N161,524.66 inclusive of interest at 13% arising from the said overdraft. On the 2nd August 1991 the appellant who was dissatisfied with the judgment referred to, filed a Notice of Appeal against the said judgment. The appellant contended that while this appeal was pending at the Benin Division of the Court of Appeal, the 1st respondent executed on 7th October 1992 in favour of the 2nd respondent a Deed of Transfer of the said appellant’s property as contained in the legal charge/mortgage dated 18th August 1977. The said transfer was said to have been made by the 1st respondent to the 2nd respondent after the former had purportedly sold to the latter the said charge/mortgaged property by private treaty for the sum of N120,000.00.
The appellant’s appeal earlier referred to was dismissed on the 19th January 1995 for want of prosecution. The appellant has further contended that the property, the subject matter of the suit was sold/transferred by the 1st respondent to the 2nd respondent while the appeal was still pending and therefore the doctrine of “LIS PENDENS” applies. The appellant further contended that the 1st respondent Bank failed and/or neglected to give Notice in writing to the appellant that his mortgage or legal charge property was to be sold as required by law. The appellant further contended that the 1st respondent exercised his power of sale mala fide and without reasonable caution and so failed to obtain a proper price from the 2nd respondent, thus rendering the purported sale null and void. The respective amended statements of defence of the 1st and 2nd respondents earlier referred to substantially denied these averments. The case then proceeded to be heard. The appellant gave evidence but called no witness.
The 1st respondent called two witnesses while the 2nd respondent gave evidence but called no witnesses. The respective counsel for the parties addressed the court and the learned trial Judge Idahosa J. in his judgment of the 26th May 1999 found in favour of the respondents. It is in respect of this judgment that the appellant by a Notice of Appeal dated 26th July 1999 appealed to the Court of Appeal.
When this appeal came up for hearing on the 19th January 2006, D.A. Alegbe Esq counsel for the appellant adopted and relied on the Appellant’s Brief of argument dated 28th February 2003 and deemed filed on the 13th March 2003. He also adopted and relied on the Appellant’ Reply Brief dated 21st February 2005 and deemed filed on the 17th May 2005. He urged this court to allow the appeal and set aside the decision of the High Court. Counsel for the 1st respondent A.O. Eghobamien adopted and relied on the 1st respondent’s Brief of argument dated 16th June 2003 and deemed filed on the 8th December 2003. He also referred to the 1st respondent’s Notice of preliminary objection filed on the 18th June 2003. He went on to say that the 1st respondent has argued the brief in two parts.
The 1st part is the preliminary objection while the 2nd part is the main brief. He abandoned the first ground of objection contained on pages 3 and 4 of the 1st respondent’ brief while retaining the rest of the argument on the preliminary objection. He urged this court to dismiss the appeal and affirm the judgment of the lower court. On his part counsel for the 2nd respondent F.O. Orbih Esq adopted and relied on the 2nd respondent’s brief dated 4th March 2004. He also drew the attention of the court to a Notice of preliminary objection filed along with the 2nd respondent’s brief. He abandoned grounds 1 and 2 of the said Notice of preliminary objection and the arguments attendant thereto while retaining the rest of the argument and urged this court to dismiss the appeal and affirm the decision of the High Court below.
I shall now proceed to deal with the preliminary objections incorporated in the respective briefs of argument of the 1st and 2nd respondents. In support of the proposition that a preliminary point of law can be raised in the respondent’s brief the 1st respondent relied on AJUDE V. KELANI (1985) 3 NWLR PA RT 12 page 48 at page 257 paragraphs C-H. The 1st respondent has stated on page 2 of it’s brief of argument that it has filed a separate and independent motion raising the preliminary objection in accordance with the decisions in NSIRIM V. NSIRIM (1990) 3 NWLR PART 138 page 297 paragraphs A-B; SAVANNAH BANK NIG PLC V. PMS LTD (1990) 10 NWLR PART 621 page 160 at page 164 paragraph D-G and SOFOLAHAN V. FOLAKIN (1999) 10 NWLR PART 621 page 86 at 97 paragraphs D-F and in further compliance with order 3 Rule 15 of the Court of Appeal Rule 2002 the motion has been filed more than three days preceding the scheduled hearing of the appeal. With the abandonment of the first ground of objection tagged issue 1 on pages 3 and 4 of the 1st respondent’s brief the next and only issue of objection and tagged issue 2 on pages 5-7 of the 1st respondent’s brief of argument is whether particulars (iii) and (v) pursuant to ground 2 of the appellant’s Notice of Appeal arise from the ground of appeal. Counsel submitted that where a ground of appeal is supported by particulars such particulars must relate to or arise from that ground. Where a single particular fails in this respect the entire ground of appeal is liable to be struck out because the court will not carry out a surgical procedure on the grounds of appeal. The following cases were referred to in support –
ORAKWUTE V. OMOLU (1998) 7 NWLR PART 557 page 266 at 274 page F-G; HONIKA SAWMIL NIG. V. HOLT (1994) 2 NWLR PART 326 page 252. Counsel submitted that in the instant case, particulars (iii) and (v) formulated in support of ground 2 of the appellant’s Notice of Appeal do not relate to or arise from the said ground and should therefore be struck out and if the particulars are struck out then the entire ground of appeal must be struck out as the court will not undertake a surgical exercise. He went further to say that even if the particulars stood on their own, the said particulars do not arise from the judgment of the trial Judge. He referred to ABDULLAHI V OBA (1998) 6 NWLR PART 554 page 420 at page 428 paras D-E.
On his own part, the 2nd respondent’s counsel having abandoned grounds 1 and 2 of his preliminary objection, what are left for consideration are grounds 3 , 4 and 5 of the objection, grounds 3 and 4 of which he has treated together whilst treating ground 5 of the objection first. On the said ground 5 which states that the issue of non compliance with the provisions of S. 19(1) of the Auctioneer’s Law does not arise from any ground of appeal and consequently the argument ought to be discountenanced by this Honourable court, counsel has submitted that there is no ground of appeal or complaint relating to the failure of the 1st respondent to comply with S.19( 1) of the Auctioneer’s Law as argued under issue 3 of this ground of appeal. Counsel submitted that an issue in an appeal must be based on a competent ground of appeal and that where an issue does not flow from a ground of appeal then it is incompetent. He referred to ALBERT OJELADE & ANOR V. SADATUE ATOKE SOROYE (1998) 5 NWLR PART 549 at page 284 particularly at page 300 paras B-C. Counsel has further submitted that order 3 Rule 2(4) of the Rules provides that no ground which is vague or in general terms shall be permitted and that any ground which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent and that a cursory look at the Notice of Appeal will reveal that items (a) – (f) do not qualify as grounds of appeal as they are all vague and in general terms. He went on to say that where there are no grounds of appeal properly couched, any venture by an aggrieved party to attack a judgment or ruling is an exercise in futility. He relied on SOCIETE GENERALE BANK (NIG) LTD & ANOR V. FESTUS OLABODE AINA (1991) NWLR PART 619 page 414 at 424 paragraph E and that a good and competent ground of appeal must constitute a complaint against the decision appealed against. He relied on CHRISTOPHER V. NWAJI V. COASTAL SERVICES (NIG) LTD (1999) 11 NWLR PART 628 page 614 at 658 paras G-H.
Counsel went on to submit further that assuming but without conceding that items (a) – (f) contained in the Notice of Appeal are grounds of appeal they would still be incompetent as they do not contain any particulars. He relied on the following cases-
REV DAVID WINDIBIZIRI & 2 ORS V. HASTEY NJILA & 2 ORS (2002) FWLR PART 132 page 96 at page 110 C-F; EBENEZER NWOKORO & 5 ORS V. TITUS ONUMA (1999) 12 NWLR PART 631 page 342 at page 352 paragraph D. He further submitted that items(a) – (f) of the Notice of appeal cannot even qualify as competent particulars in so far as they are not particulars of grounds of appeal. Particulars, he said cannot have a life of their own independent of a competent ground of appeal. In the circumstances issue 1 in Appellant’s Brief of argument does not flow from any ground of appeal properly so called and it is therefore incompetent and should be struck out. He relied on ROWLAND UNAKALAMBA V. CHARLES EZE (2002) FWLR PART 104.
Counsel submitted that there is no ground of appeal complaining that the Notice given to sell the appellant’s property was defective neither was there any complaint in the grounds of appeal against the alleged refusal of the learned trial Judge to apply and/or uphold the principle of waiver to the Notice of sale. The argument on waiver ought not to be entertained by this Honourable court in the circumstances.
Counsel relied on SOCIETE GENERAL BANK LTD & ANOR V. FESTUS OLABAODE AINA (Supra). Counsel further contended that “waiver” as argued by the appellant’s counsel constitutes a new issue and that being the case the leave of this Honourable court ought to be sought and obtained before the appellant could validly argue the same.
He relied on ISHOLA OLUSEGUN LAWSON V. AFANI CONTINENTAL CO. (NIG) LTD & ANOR (200) FWLR PART 109 page 173. Counsel therefore urged this court to discountenance the argument on waiver appearing on pages 11-12 of the appellant’ s brief of argument.
Replying on the prelimiinary objection of the 1st and 2nd respondents, the appellant in his reply brief submitted that the aim of particulars of grounds of appeal alleging error or misdirection is to highlight the complaint against the judgment on appeal. Particulars, he said are not to be made independent of the complaint in a ground of appeal but ancillary to it. It is the particulars that ensure that the grounds of appeal are sufficiently set out. He relied on the following cases- OSASONA V. AJAYI (2003) 14 NWLR PART 894 page 527 at 545 paras E-H; GLOBE FISHING INDUSTRIES LTD. V COKER (1990) 7 NWLR PART 162 page 265 at page 300 paras F-G.
Counsel further submitted that it is the law that a ground of appeal and its particulars must be compatible. He relied on SHAIBU V. NAICOM (2002) 12 NWLR PART 789 page 116 at 130 paras A-D for this submission.
Counsel submitted that the particulars being objected to are quite compatible with ground 2 of the appellant’s grounds of appeal which deal with the Notice to sell appellant’s property. Counsel went on further to say that it is now settled that a good ground of appeal which alleges error or misdirection in law to be valid must fulfill the following conditions –
(a) Quote a passage in the judgment where the misdirection or error in law is alleged to have occurred.
(b) Specify the nature of error in law or misdirection and give full and substantial particulars of the alleged error or misdirection.
He relied on SILENCER & EXHAUST PIPES CO. v. FARAH (1998) 12 NWLR PART 579 page 624 at page 635 paras B-C. He submitted that ground 2 of the Grounds of appeal meet those requirements.
On the issue of section 19(1) of the Auctioneer’s Law, counsel submitted in reply that it is erroneous to argue as was done by the 2nd respondent that it is one of the particulars of ground 2 of the appellant’s grounds of appeal.
He contended that this only came by way of submission of counsel on issue 2 which this court is at liberty to accept or reject. Counsel went further to say that it is the law that particulars need not always be separately set out but may be embodied or incorporated in the grounds of appeal itself provided the ground of appeal is so framed as to leave no one in doubt as to the error complained of. He relied on OSASONA V. AJAYI (Supra) page 545. Counsel submitted that in the instant case the error of law complained of is so embedded in the ground that it leaves no one in doubt as to the error complained of. Counsel urged the court to dismiss the arguments on the preliminary objections of the 1st and 2nd respondents.
It is clear that issue 2 of the 1st respondent’s objection as well as what are referred to as Grounds 3 and 4 of the 2nd respondent’s objection relate to Ground 2 of the appellant’s notice of appeal and the said Ground 2 of the appellant’s Notice of appeal together with the attendant particulars of error are reproduced from page 139 of the records as follows –
GROUND 2 – The learned trial Judge, Idahosa C.O.J., seriously erred in law when he held that the 1st defendant gave NOTICE to sell the plaintiffs property in a letter dated 9/9/83 long before the court action in SUIT NO. B/1/85 and also that the said court action constituted enough notice.
PARTICULARS OF ERROR
(i) Parties in their pleadings joined issue on the doctrine of NOTICE, vide paragraph 9 of the 3rd Amended Statement of claim and paragraphs 3 and 8 of the 1st defendant amended statement of defence.
(ii) Parties also joined issue on it in the evidence subsequently adduced in support of the statement of claim and defence, vide the evidence of plaintiff vis-a-vis the evidence of one EGHOBAMIEN, 1st defendant’s Accountant who testified on its behalf on 7/10/98.
(iii) If NOTICE was given on 9/9/83 before the 1st defendant went to court in Suit No. B/1/85 to recover first the amount due under the legal charge, the 1st defendant had waived its right to exercise of its power of sale and fresh NOTICE would be necessary thereafter to sell under the legal charge.
(iv) Notice must be in writing and served.
(v) The Notice referred to at page 17 of the judgment of the learned trial Judge and accepted as such was incredibly defective.
It is now settled on the authorities that a ground of appeal and its attendant particulars must be compatible.
What that means is that they must be in harmony with one another. See SHAIBU V. NAICOM (Supra). See also MAIDARA V. HALILU (2000) 13 NWLR PART 684 page 257; 2000 FWLR (PART 19) page 433 at page 437.
The question now is whether particulars (iii) and (v) are compatible with their parent ground – ground 2 of the Notice of appeal.
What Ground 2 is saying simpliciter is that the learned trial Judge could not have been right when he regarded the 1st respondent Bank’s letter to the appellant dated 9th September 1983 as good notice to the appellant that it wanted to sell the appellant’s property covered by the “legal charge” long before the court action in Suit No. B/1/85 in which in 1991 the 1st respondent obtained judgment against the appellant. What particular (iii) to ground 2 of the Notice of appeal says is that by the Notice given on the 9th September 1983 before the 1st respondent went to court in Suit No. B/1/85 the first respondent Bank had waived its right to exercise its power of sale and that it would require fresh notice to sell the property under the legal charge. Particular (v) is only supportive of particular (iii). I do not therefore see the point being made by the respondents that particulars (iii) and (v) are neither related nor arise from Ground 2 of the Notice of Appeal. In the same vein the issue of “waiver” which the respondents have made heavy weather of only flows naturally from the argument put forward by the appellant that with the defective Notice of 9th September 1983, 1st respondent had waived its power of sale and would need fresh notice. Therefore the contention of the 2nd respondent that “waiver” as argued by the appellant’s counsel constitutes new issue and that being the case, the leave of court ought to be sought for an obtained before the appellant can validly argue same is untenable.
The same argument goes with respect to the use of the word “defective” as is referable to the letter of 9th September 1983 as not constituting good notice. It should also be noted that there is nothing sacrosanct about particulars to a ground of appeal as the ground of appeal can stand alone provided it is couched in such language as to import no doubt at all as to the error in law complained of. See OSASONA v. AJAYI (Supra). This in other words means that the ground should not be vague, unclear or too general but must be clear, precise and definite otherwise it is liable to be struck out. See OSAWARU V. EZEIRUKA (1978) 6-7 S.C. 135 at 137; SARAKI V. KOTOYE (1990) 4 NWLR PART 143 page 144.
Let me say without any fear of contradiction that ground 2 of the Notice of appeal even without the particulars complained about which I have no reasons to fault as they are proper, is clear, precise and definite and leave no one in doubt about the error in law complained about and the argument that it should be struck out is untenable and unsupportable and the said arguments put up by the respondents ought to be and are hereby dismissed.
Ground 5 of the preliminary objection canvassed by the 2nd respondent only is that there is no ground of appeal or complaint relating to the failure of the 1st respondent to comply with S. 19(1) of the Auctioneers Law.
Counsel for the appellant has contended that this only came by way of submission of counsel and was never a particular to any ground and I agree with that submission.
Having said this the preliminary objections of the 1st and 2nd respondents have no merit and are hereby dismissed.
It is now time to go to the merits of the appeal proper.
Flowing from the grounds of appeal contained in the Notice of appeal the appellant has formulated the following three issues for the determination of this court –
(a) Was the property in exhibit “C” sold while litigation touching it was pending?
(b) Whether the 1st defendant/respondent gave NOTICE to the plaintiff/appellant as required by law before the property contained in exhibit “C” was sold.
(c) Whether the learned trial Judge was right in holding that the valuation Report (Exhibit “K”) has no weight and evidential value since the maker of the document could not give evidence.
These issues are to be found on page 5 of the appellant’s brief of argument. The 1st respondent has on page 8 of its brief of argument also adopted the issues as formulated in the appellant’s brief of argument. The 2nd respondent on the other hand has formulated the following three issues on pages 5 and 6 of his Brief of argument for the determination of this court –
(1) Whether or not the learned trial Judge was right in holding that the doctrine of Lis Pendens was inapplicable to the facts and circumstances of this case.
(2) Whether or not the learned trial Judge was right in holding that there was sufficient notice to the appellant (mortgagor) before the sale of the mortgaged property.
(3) Whether or not the learned trial Judge was right in holding that exhibit K has no weight and evidential value since the owner could not be called as a witness.
It will thus be seen that even though the issues as formulated by the 2nd respondent are somewhat differently couched, they are in complete harmony with the issues as formulated by the appellant and adopted by the 1st respondent. It is on this premise that I now want to deal with the issues using those formulated by the appellant as my guide and I accordingly adopt them.
ISSUE 1 – Was the property in exhibit “C” sold while litigation touching it was pending. This issue is distilled from ground 1 of the Notice and Grounds of appeal at page 134 of the records. Exhibit “C” referred to here is the legal charge or mortgage dated the 18th August 1977 between the appellant and the 1st respondent Bank. This issue simpliciter is to the effect that the sale of the property covered by exhibit “C” was made “pendente lite” i.e. while action in court was still pending and is therefore caught by the doctrine of lis pendens. This is the contention of the appellant. Throwing more light on this development, the appellant stated that in Suit No. B/1/85, judgment was given to the 1st respondent in the sum of N161,524.66 plus interest on the 31st October 1985. The appellant being dissatisfied with the said judgment lodged an appeal to the Court of Appeal, Benin Division on the 22nd August 1991.
On the 10th April 1992 the 1st respondent purportedly obtained Governor’s consent to sell the appellant’s property contained in exhibit “C” with which the loan was secured. On the 7th October 1992, the 1st respondent executed in favour of the 2nd respondent a Deed of Transfer admitted in those proceedings as exhibit “B”. The appellant’s appeal that was pending in the Benin Division of the Court of Appeal was dismissed on the 19th February 1995 for want of prosecution. Thus the sale and subsequent transfer of the appellant’s property on the 7th October 1992 was made while litigation touching the same was still pending on appeal and it does not matter that the appellant failed to ask for a stay of execution of judgment as the 1st respondent was aware of the pendency of the appeal. Appellant has contended here that the law is perfectly well settled that any sale of land in dispute while litigation touching it is pending is caught in the web of the doctrine of LIS PENDENS and any conveyance made pursuant to and in furtherance of the sale in those circumstances is void against the appellant or mortgagor and ought not to operate to transfer title to the purchaser (i.e. The 2nd respondent). The appellant has further contended that in line with the Supreme Court decision in AJUWON & ORS V. AKANNI & 10 ORS (1994) 14 LRCN 72 at pages 84, 86-87 for the doctrine to apply the party invoking it must plead it. He had it pleaded in his 3rd Amended Statement of Claim at pages 3,4,5,6,7,8,9,10, 11 and 12 and which are contained at pages 41-44 of the records and both the 1st and 2nd respondents joined issues on this in their respective pleadings as borne out by the records. The appellant further submitted that the doctrine of LIS PENDENS also affects a purchaser who buys property the subject matter of litigation during the pendency of such litigation. He relied on the Supreme Court case of CLAY INDUSTRIES NIG. V. AINA (1997) 52 LRCN ratio 15 at page 2038. Appellant went further to submit that it is not a defence that a purchaser was unaware at the time of the existence of a suit touching the property at the time of the purported sale and so the sale of the appellant’s property by the 1st respondent to the 2nd respondent while the case was on appeal is null and void and of no effect. Counsel relied on the following cases – OSAGIE v. OYEYINKA (1987) 1 NWLR PART 59 page 144. ALLIED BANK PLC v. BRAVO W.A. LTD. (1996) 3 NWLR PART 72 page 714 Appellant submitted that the observation of the learned trial Judge in which he concluded that the claim against the appellant by the 1st respondent was to recover money and did not assert title over property and so the doctrine of LIS PENDENS does not apply is faulty, because the money being demanded by the 1st respondent had been secured by the appellant’s landed property in the legal charge (exhibit “C”) and the said money cannot be divorced from the property of the appellant. He went further to submit that the essence of exhibit “C” is that it stands for the loan as collateral such that it is either the loan is paid or the property is forfeited. The money and the landed property are therefore one and the same as the money is indeed mortgage money. The appellant said that in his Notice of appeal he had stated that he was appealing against the whoe decision which included the decision in the 1st respondent’s claim and the appellant’s counter claim. Exhibit “C” he said, was in the earlier case admitted as Exhibit “F” and it was canvassed that the loan was secured by the said legal charge over the appellant’s landed property. It was therefore unnecessary for the trial Judge to hold that the appellant did not appeal against the counter claim in that there was one judgment dated the 28th May 1991 in both claims. The appellant further submitted that the covenant to repay the loan on mortgage money when due has to be visited by serving Notice on the mortgagor hence section 125(1) of the Property and Conveyancing Law Vol.5 of the Laws of Bendel State 1976 was incorporated into the Legal charge (EXHIBIT “C”) clause 10(a) to which both parties were signatories. This was an express provision. The appellant referred also to paragraph 5 of the 1st respondent’s amended statement of defence where the 1st respondent unequivocally admitted that he had knowledge of the pending appeal having received a copy of the Notice of appeal and thus he knew of the pending appeal before sale and subsequent transfer of the appellant’s property. He therefore urged the court to hold that the doctrine of LIS PENDENS applied.
On its part 1st respondent submitted that the doctrine of Lis Pendens is aimed at preserving the subject matter of litigation by either of the parties to the said litigation and it applies to tangible and intangible Res. He relied on the following authorities – MAJEKODUNMI V. CO-OP BANK LTD (1997) 10 NWLR PART 524 page 198; OGUNDIANI V. ARABA (1978) 6 & 7 S.C. 55; KIGO NIG LTD V.HOLMAN BROS NIG. LTD (1980) 5-7 S.C. 60 at 73, OKAFOR V. A.G. ANAMBRA STATE (1988) 2 NWLR PART 79 page 736 at 739; DOMA V. OGIRI (1997) 1 NWLR PART 481 page 322 at 353. Counsel further submitted that the doctrine of Lis Pendens does not apply to every suit. It applies only to a Suit in which the object is to recover or assert title to a specific property which must be real property and the doctrine does not apply to personal property. He relied on the following cases COMBINED TRADE LTD. V. A.S.T.B. LTD (1995) 6 NWLR PART 404 page 709 at 717; BARCLAYS BANK OF NIG. LTD V. ASHIRU & ORS (1978) 6-7 S.C. 99 at 128. The question according to the 1st respondent is whether there was a pending appeal as at the date of the sale of the appellant’s property by the 1st respondent against a suit in which the object is to recover or assert title to a specific property (land). To answer the question, 1st respondent has submitted that one had to look at the claim contained in the pleadings filed by the parties herein in Suit No. B/1/85 which was admitted as Exhibit “J”. The 1st respondent’s claim in that suit was for the sum of N161,524.66.being overdraft facilities and bank charges and interest standing against the current account of the now appellant while the appellant’s counter claim was for –
(i) The sum of N38,944.19 as expenses incurred by the defendant as a result of the failure of the plaintiff to complete the hospital building.
(ii) The sum of N310,055.81 as general damages for breach of contract.
(iii) The return of the defendant by the plaintiff of the deed of conveyance which the defendant gave to the plaintiff as security so as to enable the defendant to look for another bank to refund the money given to the defendant and the new bank to complete the building of the hospital.
Thus there were two Suits in B/1/85 – the respondents’ Suit and the appellant’s counter claim being tried together at the end of which the 1st respondent’s claim succeeded while the counter claim of the appellant failed and was dismissed.
Being dissatisfied the appellant filed a Notice of appeal dated 22nd August 1991 against the judgment entered in favour of the 1st respondent while there was no appeal against the decision of the trial court dismissing the counter claim of the appellant. 1st respondent contended that it was erroneous for the appellant to state in his Notice of appeal that he was appealing against the WHOLE DECISION which included the decision in the 1st respondent’s claim and the appellant’s counter claim.
The arguments canvassed by the 2nd respondent’s counsel was very much in line with those of the 1st respondent save to further submit that the doctrine of Lis Pendens was never intended nor was it made to operate to nullify the sale of property that is the subject of litigation.
He relied on BUA V DAUDU (1999) 12 NWLR PART 629 page 73 where it was stated thus-
“If a third party outside the litigation choses to purchase a property subject of litigation from one of the litigants during the currency of litigation, he does so at his own risk. If it turns out that the person from whom he bought had no title or was adjudged at the end of the pending action to be the owner, he takes as he finds. Where the defendant alienates during the pendency of the suit, the result of the judgment if the plaintiff succeeds will overreach such alienation.
If the transferor of the property to the purchaser loses the suit the purchaser loses it too.”
As has earlier been stated, the doctrine of Lis Pendens is aimed at preserving the subject matter of litigation during the pendency of an action in court. We have noted that there is a plethora of cases to this effect. Blacks Law Dictionary 7th Edition page 294 refers to Lis Pendens a latin expression which when translated into English simply means “a pending law suit”.
It went on to throw more light by stating that it is the jurisdiction, power, or control required by a court over property while a legal action is pending. According to the 1st respondent the relevant question is whether there was a pending appeal as at the date of the sale of the appellant’s property by the 1st respondent to the 2nd respondent against a suit in which the object is to recover or assert title to a specific property which property is land.
What are the bare facts? The 1st respondent claimed in Suit No. B/1/85 the sum of N161,524.66 being overdraft facilities and bank charges and interest standing against the account of the appellant. The appellant in the same suit – B/1/85 counter-claimed against the 1st respondent for –
(i) The sum of N38,944.19 as expenses incurred by the appellant as a result of the failure of the 1st respondent to complete the hospital building.
(ii) The sum of N310,055 .81 as general damages for breach of contract.
(iii) The return to the appellant by the 1st respondent of the deed of conveyance which he the appellant gave to the plaintiff as security so as to enable the appellant to look for another bank to refund the money given to the appellant and the new bank to complete the building of the hospital.
Judgment was given in favour of the 1st respondent on the 28th May 1991 while the appellant’s counter-claim in the same Suit No. B/1/85 failed and was dismissed.
On the 2nd August 1991 the appellant who was dissatisfied with the judgment referred to above filed a Notice of appeal a copy of which was served on the 1st respondent who admitted service of same in its amended statement of defence dated 5th May 1997. This admission which is contained in paragraph 5(a) of the said Statement of Defence reads as follows –
“It is admitted that the plaintiff through the solicitor – Suru Akele Esq filed a Notice of Appeal which was numbered as CA/B/160/94 in the Court of Appeal in Respect of the judgment in Suit No. B/1/85 dated 28/5/91”
In the Notice of Appeal it was clearly stated that the appeal was against the whole decision which included not only the 1st respondent’s claim but the counter-claim of the appellant. This was the nature of the appeal pending before the Court of Appeal. It is this appeal that was still valid and subsisting in the Court of Appeal until it was dismissed on the 19th January 1995. Earlier on, precisely the 7th October 1992 while this appeal was still pending before the Benin Division of the Court of Appeal the 1st respondent executed in favour of the 2nd respondent a Deed of Transfer of the appellant’s property contained in exh. “C” – the legal charge/mortgage dated 18th August 1977 after the 1st respondent had purportedly got the Governor’s assent to sell the property of the appellant which assent was given on the 4th April 1992. As has been stated earlier, the 1st respondent categorically admitted in paragraph 5 of its Amended Statement of Defence of its awareness of the pending appeal filed by the appellant against the decision of the trial Judge in Suit No. B/1/85 and it would not have mattered whether or not the appellant brought a formal application for stay of execution of the lower court’s judgment in Suit No. B/1/85. That argument is merely academic.
I shall now proceed to consider the argument put up by the 1st respondent that the claim of the 1st respondent against the appellant was to recover money and did not assert title over the property and so the doctrine of LIS PENDENS does not apply. This argument appears unsound to me because it should be clear from the nature of the transaction between the appellant and the 1st respondent that the money and the mortgaged property are one and the same and inseparable, the money being demanded by the 1st respondent in its claim before the court having been secured by the appellant’s landed property as covered by exhibit “C” the legal charge.
Perhaps I should also comment briefly on the case of. BUA v. DAUDU (supra) relied on by the 2nd respondent in support of the contention that the doctrine of Lis Pendens was never intended nor was it made to operate to nullify the sale of property that is the subject of litigation. The dictum in that case cited by learned counsel in the 2nd respondent’s brief and earlier reproduced here is self defeatist when examined a bit more critically. Even the last sentence in that dictum which states as follows – “If the transferor of the property to the purchaser loses the suit the purchaser loses it too” is instructive enough. The purchaser of a property that is the subject of litigation should always be prayerful that the litigation when concluded is in favour of the person he purchased that property from. If the outcome of the litigation is not in that person’s favour, then the purchaser of the property gets nothing.
It is clear from the foregoing therefore that the property in exhibit “C” was sold to the 2nd respondent by the 1st respondent while litigation was pending. Issue No. 1 is therefore decided in favour of the appellant against the 1st and 2nd respondents.
ISSUE NO.2 – is as to whether the 1st defendant/respondent gave NOTICE to the plaintiff/appellant as required by law before the property contained in exhibit “C” was sold. This issue is distilled from Ground 2 of the Notice of appeal. The appellant contends that exhibit “L” which is a letter from the appellant’s Solicitors B.A. Alegbe & Co. to 1st respondent for information about the foreclose and sale of his property was received by the 1st respondent who failed to reply to it, and that there is nothing in exhibit “E”- TO SHOW THAT Notice of foreclosure was served on the appellant before sale. The 1st respondent merely applied for and obtained the consent of the Governor to sell the property. He submitted that section 125(1) of the Property and Conveyancing Law Cap 129 Law of Bendel State of Nigeria 1976 applicable in Edo State requires that a mortgagee (Respondent Bank) must give Notice to the mortgagor (Appellant) requiring payment. This provision of the law, he said, was incorporated into the legal charge (Exhibit C) thus making it an express provision which ought to have been complied with by the 1st respondent being a statutory provision. Section 192 of the same law he said mandatorily requires that Notice must be in writing and served and that the power of sale shall not be exercised unless and until three months thereafter. He relied on DAROCHA V. HUSSAIN (1958) 3 FSC 81 at page 92. He submitted that DW3 Mary Eghobamien, Branch Accountant of the 1st respondent Bank, Mission Road Branch Benin City admitted that Exhibit “L” was received in their office and the said Exhibit “L” was tendered through her.
Appellant further contended that even though the 1st respondent insisted that it gave notice to the appellant before the sale of his property, the said Notice was not produced by the 1st respondent until the close of the case and it could be inferred that Notice before sale of appellant’s property was not given to him. He therefore urged the court to hold that no notice of sale was served on the appellant before the property was sold, and so the sale was void. Appellant went on to say that the purported Notice referred to in the judgment of the High Court at page 119 of the record is a letter dated 9th September 1983 as contained in Exhibit “J”,
He submitted that this notice is defective in that –
(1) It has not become due and so premature.
The legal charge came into existence on the 18th August 1977 and this notice referred to was served about five years later.
(2) The Notice gave 30 instead of 90 days Notice. He relied on EWAN V. A.C.B LTD (1986) 1 QLRN 229 ratio 5 at Page 230.
(3) After service of the said purported Notice the 1st respondent Bank failed to proceed to exercise its power of sale THREE months thereafter but resorted to court action in 1985 – three years later to recover the mortgage money. This suit lasted 7 years (1985-1991). This is clearly a waiver. He relied on ODU’ A INVESTMENT COMPANY LTD.V. TALABI (1997) 10 NWLR PART 523 1 at 6 ratio 6,7, and 8.
Counsel submitted that where a mortgagee entitled to the exercise of power of sale waived the default, a fresh notice is necessary. He relied on VIATONU V. ODUTAYO & ANOR which relied on the English case of TOMMEY V. WHITE 3 HLC 49. Appellant submitted that in this case now under consideration in this appeal no fresh notice was written and served before the 1st respondent rushed to obtain the Governor’s consent to sell the appellant’s property contained in exhibit “C”. There was neither a notice nor an advertisement by the 1st respondent Bank to the appellant.
The case of ETIM V. QUEEN (1964) All NLR 38 at 45 was relied upon. Appellant further submitted that section 19(1) of the Auctioneer’s Act Cap 187 or Auctioneer’s Law, Law of Bendel State 1976 requires 7 days Notice and advertisement at the principle town of the distinct in which the land concerned is situate as advertisement before sale could help to get a better price. He relied on EITM V. QUEEN (Supra). This he said, was not complied with. Counsel relied on the case of A.A. FOJULE V. FEDERAL MORTGAGE BANK OF NIGERIA & 2 ORS (2001) 2 NWLR PART 697 page 384 to contend that auctioneer’s notice to sell mortgage property which is less than 7 days renders the sale invalid. In the sale under consideration in this appeal before this court, there was no notice given to the appellant, a fact which was admitted by the 2nd respondent under cross examination. On its own part the 1st respondent submitted that proper notice was given to the appellant before the 1st respondent undertook the sale of the mortgaged property. Reference was made to a letter dated 9th September 1983 which states in part, “Please note that in our resolved determination to recover the sum outstanding we shall be left with no other alternative that (sic) to take steps to realize the security lodged if we still do not hear from you within the next 30 days”. Counsel submitted that the learned trial Judge accepted this position as correct and it had not been shown that the findings of the learned Judge was perverse which finding could be interfered with on appeal. Counsel further submitted that the Notice was not premature in that the letter of 9th September 1983 requiring the appellant to redeem his indebtedness predates suit NO.B/1/85 and appellant’s contention that the said notice is premature is therefore misconceived.
On the appellant’s contention that “the purported Notice gave 30 days instead of 90 days statutory notice for which the case of EWAN v. A.C.B. LTD (1986) QLRN 229 ratio 5 at 230 was relied upon by the appellant, the 1st respondent contended that the form in which a Notice is given is not material. What is material is the point of exercising the power of sale. It was contended by the 1st respondent that although it gave 30 days notice in 1983, it did not exercise its power of sale until 1992 and it cannot therefore be said that the Notice is defective when in actual fact the 1st respondent did not exercise its power until after 30 days. On the contention that the 1st respondent failed to sell the property three months after the Notice was effected the 1st respondent submitted that a demand Notice once given remains in force until the power of sale is exercised.
The following cases were relied upon:
OKONKWO V. C.C.B. (NIG) PLC (1997) 6 NWLR PART 48 at 65; OJIKUTU V. AGBONMAGBE BANK LTD & 2 ORS (1966) 2 All NLR 277. It is therefore immaterial whether or not the 1st respondent proceeded to exercise its power of sale three months thereafter. 1st respondent further submitted that the Notice contemplated by law is a notice demanding payment of money and not notice of intention to sell mortgaged property. He relied on BRUCE V. AFICAN & EASTERN TRADE CORP LTD (1928) 9 NLR 118. 1st respondent also further contended that suit No. B/1/85 itself constituted enough constructive notice upon the appellant to pay his debt. The cases of BOKINI V. JOHNHOLT & CO. LTD. (1937) 13 NLR 109 and ALLEN V. JOHNHOLT & CO LTD (1935) 12 NLR 13 were relied upon. On the failure of the 1st respondent to advertise 1st respondent contended that the sale was to be by private treaty and not public auction as stipulated under section 19(1) of the Auctioneer’s Law, Law of Bendel State 1976. Even so, a violation of section 19(1) of the Auctioneer’s Law is only punishable by a fine of N40.00 and there is no stipulation that the sale be set aside. On the contention that the 1st respondent did not bargain for a better price as a result of which the property was sold at a give away price the 1st respondent submitted that the obligation imposed by law on the 1st respondent is that he should act in good faith and to obtain not the best price but a proper price. The cases of TEMPO ENGINEERING CO LTD V. SAVANNAH BANK NIG LTD (1995) 5 NWLR PART 397 at 607 and IHEKWOABA V. A.C.B. (1980) 10 NWLR PART 571 at 590 were relied upon. 1st respondent further contended that sale of a mortgaged property at an undervalue 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 undervalue. It was further submitted that in the instant case, there is no evidence on record to show that there was collusion between the mortgagee and 2nd respondent or fraud on the part of the 1st respondent. The 1st respondent can therefore be taken to have acted in good faith by selling the property for a proper price of N120,000 pursuant to the valuation Report of the 1st respondent’s DW2 – Exh. M which assessed the value of the property at between N90,000 and N137,000.00. No evidence of fraud or collusion has been led by the appellant it was further contended and so the sale is proper. Reliance was placed by the 1st respondent on the following cases – VICTORY MERCHANT BANK V. PELFACO LTD (1993) 9 NWLR PART 317 at page 340. UNION BANK V. OZIGI (1991) 2 NWLR PART 176 page 677.
The 2nd respondent on his part contended that the appellant admitted while being cross examined that exhibit “E” was tendered through him during the trial in Suit No. B/1/85 and that was why the learned trial Judge had no hesitation in holding that the appellant was given sufficient notice before the sale of the mortgage property, 2nd respondent further submitted that the appellant’s argument that the Notice was premature was wrong because at all times material to the action, the appellant never met up with his obligation to repay the loan given him by the 1st respondent. He went further to say that clause 9 of exhibit “C” empowered the 1st respondent, “at anytime after the day appointed for the repayment of this loan and without any further consent of the borrower to sell the mortgaged property or any part or parts thereof either together or in parcels or either by public action or by private contract” In the light of clause 9 he submitted that notice could only be said to be premature if and only if it was issued before any instalment became due and payable under the loan agreement – exhibit “C”.
It was further contended by the 2nd respondent that the Property and Conveyancing Law does not prescribe 90 days notice, rather it only postpones the mortgagee’s exercise of its power of sale before the expiration of three months from the date of Notice. The rest of the argument of the 2nd respondent followed closely, those of the 1st respondent and it would only merely be repetitive and unhelpful to have to restate them here.
Exhibit “L” is a letter written by the appellant’s Solicitor to the 1st respondent and because of its importance I shall reproduce it as is contained on page 130 of the record.
It reads as follows –
RE: SALE OF PROPERTY PLEDGED AS SECURITY FOR OVERDRAFT/LOAN
Thank you for your letter ref. NNB/LDC/MB/320/36 of 21st December 1994 which was a reply to our earlier letter dated 5th December 1994. To enable us advise our client correctly and properly, we respectfully require the following particulars/information that is to say:
(a) The precise date the said property was sold.
(b) Whether the sale was by public auction or private treaty.
(c) Whether it was advertised before sale and for how long.
(d) Whether notice of foreclosure was served on our client before sale.
(e) An up to date comprehensive statement of our client account.
(f) Whether a deed of conveyance was executed in favour of the purchaser.
We do hope you would be good enough to furnish us with the particulars or information requested in paragraph 2 (a) – (f) above with minimum delay. This will help to bring this matter to a happy mutual termination without resort to litigation.
Looking forward keenly to hearing from you soonest.
Yours faithfully
BENSON A. ALEGBE ESQ.
B.A. ALEGBE & CO.
This letter Exhibit “L” was tendered through one Mary Eghobamien, Accountant at the Mission Road Branch of the 1st Respondent Bank. Going through the records, it does not appear that the 1st respondent on receipt of exh. “L” made a reply to it. Exhibit “E” is a letter from the 1st respondent to the appellant notifying the appellant of the sale of his mortgaged property. A combined reading of sections 125(1) and 192(1) of the Property and Conveyancing Law Cap 129 Vol. 5, Laws of Bendel State of Nigeria 1976 applicable in Edo State indicate that a mortgagee must give Notice to a mortgagor of intention to sell a mortgaged property and that such notice shall be in writing. Again there is nothing to show from the records that the letter to foreclose was served on the appellant before sale.
1st respondent has put up the argument that (1) Suit No. B/1/85 constitutes such good Notice (2) Letter dated 9th September 1983 as contained in exhibit” J” is good notice.
Section 192 (1) provides that “Any notice required or authorized to be served or given by this law shall be in writing” .
In the interpretation of statutes it is trite that words must be given their ordinary meaning. See the following cases- CHIEF GANI FAWEHINMI V. IMPECTOR GENERAL OF POLICE (2002) 7 NWLR PART 767 page 606 at 678 paragraphs. B-D.; AFRICAN NEWSPAPER V. FEDERAL REPUBLIC OF NIGERIA (1985) 2 NWLR PART 6 page 137; ATTORNEY GENERAL ABIA STATE V. ATT. GEN. OF THE FED. (2002) 6 NWLR PART 763, 264. Applying this principle of law, a law Suit -B/1/85 does not constitute such notice. The connotation of the word “shall” is mandatory. The learned trial Judge could not therefore have been right when he said in his judgment that Suit No. B/1/85 constituted good notice.
With respect to letter dated 9th September 1983 delays attributable to the 1st respondent which have already been highlighted in the body of this judgment certainly were enough to constitute a waiver for which a fresh notice became necessary.
Of “waiver” the Supreme Court in ODU’A INVESTMENT COMPANY LTD V. JOSEPH TAIWO TALABI (1997) 10 NWLR PART 523 page 6 said it is the intentional and voluntary surrender or relinquishment of a known privilege and/or right which implies a dispensation or abandonment by the party waiving of a right or privilege which at his option he could have insisted upon. See also ARIORI V. ELEMO (1983) 1 SCNLR 1. There was no notice to the appellant. All the other arguments that flow from this are of mere academic interest since the paramount consideration is the issue of Notice. I shall and do resolve issue NO.2 in favour of the appellant.
ISSUE NO.3 is as to whether the learned trial Judge was right in holding that the valuation report (exhibit “K”) has no weight and evidential value since the maker of the document could not give evidence. This issue is distilled from Ground 3 of the Notice of appeal and it deals with the production of the Valuation Report – Exhibit” K” which has to do with expert evidence. The appellant’s position here is that the learned trial Judge was wrong to have held that in as much as the qualification and experience of the maker of exhibit “K” were unknown, no credence, weight or probative value would be attached to it. The appellant submitted that exhibit “K” whose maker is dead, was admitted by consent of the three counsel in the case as it forms part of the agreed facts of the case requiring no further proof. Reliance was placed on section 75 of the Evidence Act, Laws of the Federation of Nigeria 1990. Appellant further submitted that admissibility of a piece of evidence is based on relevance and not on weight to be attached to it. Reliance was placed on MUHAMMED V. KAYODE (1997) 1 NWLR PART 530 page 584. For admissibility of documentary evidence reliance is placed on section 19 of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 and the case of INLAND CONTAINERS LTD V. B.C.T. CO LTD. (1997) 8 NWLR PART 517 page 505 at 507. The role of weight to be attached is stated in section 92(1) and (2) of the Evidence Act. The appellant went on to submit that the law is settled that a court is expected in all proceedings to admit and act only on evidence which is admissible in law. Exhibit,”K” not being inadvertently admitted, the court has a duty to act on it. Reliance was placed on ALADE V. OLUKADE (1976) 2 S.C. 183 at page 187. Counsel went on to say that the Supreme Court has in the case of CHIEF ETIM & ORS v. CHIEF EKPE & ANOR (1993) 3 S.C. 12 at 37-38 set out three documents which are inadmissible not withstanding the consent of the parties to their admissibility.
Appellant went on to say that DW2 averred that the maker of exh. “K” though late was an Estate Surveyor and valuer and that his evidence is relevant to this case and was admitted as expert evidence.
1st respondent has submitted that though exhibit “K” has been admitted by consent of the contending parties there is a distinction between admissibility and the ascription of probative value to the piece of evidence. AKIBU V. ODUNTAN (1992) 2 NWLR PART 222 at 210; A.G. OYO STATE V. FAIRLAKES HOTELS LTD (NO.2) (1989) 5 NWLR PART 121 at 225; AYENI V. DADA 1978 3 S.C. 35 at 61 were relied upon. It was contended for the 1st respondent that exhibit “K” being the valuation report of an expert, the expert must be called as a witness and he is expected to state his qualification, experience and reasons for his opinion and he should be cross- examined with a view to discrediting him as an expert. SHELL PET. DEV. CO. V. ISAIAH (1997) 6 NWLR PART 508 page 236 at 249 was relied upon. The 1st respondent went further to say that the evidence of an expert will amount to hearsay where such expert merely gives his opinion on a report and is not called as a witness and cross -examined. In that circumstance the learned Judge was right in not ascribing any value to exhibit “K” ,SHELL PETROLEUM DEVELOPMENT CO. OF NIG. LTD V. OTOKO (1990) 6 NWLR PART 159 at 693; WAMBAI V. KANO N.A. (1965) NWLR 15 at 17 were relied upon.
The 2nd respondent on his part submitted that section 75 of the Evidence Act, Laws of the Federation of Nigeria 1990 cited and relied upon by the appellant is inapplicable to the present situation and that even where situations are covered by the provisions of section 75 of the Evidence Act the court is empowered to require the fact admitted to be proved otherwise than by admission. He placed reliance on the proviso to section 75 of the Evidence Act. It would be unduly repetitive to reproduce the rest of the submission of counsel as they are adoptive of the reasoning by the 1st respondent.
In CHIEF BRUNO ETIM & ORS V. CHIEF OKON UDO E KPE & ANOR (1983) 3 S.C. 12 at page 36, the Supreme Court observed thus, “It is a cardinal rule of evidence and of practice in Civil as well as Criminal cases that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties not withstanding) for failing to satisfy some conditions or to meet certain criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception of evidence of a document or other evidence) see CHUWURA AKUNNE V. MATTHIA EKWUNO (1952) 14 WACA 59 the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission. See ALADE V. OLUKADE (1976) 2 S.C. 183 at 188-189; R. V. HAMMOND (1941) 3 All E.R. 318 ; R. V. PATHEL (1951) 2 All E.R. 29.
Such exceptions would among others include –
(i) Unregistered instrument required by law to be registered. See ABDALLAH JAMAL V. NAMIH SAIDI & ANOR (1933) 11 NLR 86 ELEKALI & ANOR V. FAWAZ (1940) 6 WACA 212; IDOWU ALASE & ORS V. ILU & ORS (1965) NWLR 66.
(ii) Unsigned deed of grant or copy thereof ABDUL HAMID OJO V. PRIMATE ADEJOBI & ORS (1978) 3 .S.C. 65
(iii) Unstamped instruments or document requiring to be stamped unless it may legally be stamped after execution and the duties ad penalities are paid. See ROUTLEDGE V. MC KAY (1954) 1 All E.R. 855 at 856; 1 WLR 615 at 617.
In the present case on appeal exhibit “K” does not fall into any of these exceptions and by consent of all the contending counsel for the parties it has been admitted. It has sailed through and been admitted because there is no doubt that it is relevant. Having been thus admitted, the lower court was bound to act on it. That the maker’s qualification and experience were not given and therefore no weight and no evidential value should be ascribed to the said exhibit “1(” does not represent the true position of the law. To shove aside exhibit “K” without taking a close and critical look at it to determine how much weight to ascribe to it was wrong moreso as it was brought to the court’s attention that its maker is late. A document once admitted should speak for itself. The assertion by DW 2 that he was a member of their profession long before him and that the land in dispute in Exhibit ‘K’ and exhibit “M” relate to the same land has not been denied by the respondent. The learned trial Judge was therefore wrong not to have placed any probative value on exhibit “K”. I shall and do therefore resolve issue No. 3 also in favour of the appellant. In all the appeal succeeds and is allowed. The judgment of Idahosa J. of the Benin High Court in Suit No. B/345/95 dated the 26th May 1999 is accordingly set aside. The appellant’s claims as per the 3rd Amended Statement of claim filed on the 14th April 1997 are hereby upheld. There shall be N5,000.00 costs against each of the 1st and 2nd respondents and in favour of the appellant.
Other Citations: (2006)LCN/2150(CA)
