Afribank Nigeria Plc. V. Alhaji Muraina Adeniyi Alade (2000)

LawGlobal-Hub Lead Judgment Report

OMAGE, J.C.A.

In his amended statement of claim, in the Court below, the plaintiff now Respondent in this appeal claimed as follows:-

“1. A declaration that the plot of land No. 826, which situates at No. 25 Link Road Nassarawa Quarters Gyadi Gyadi-Kano, which land is covered by a certificate of occupancy number LKN/CON/RES/81/471 on mortgage to the defendant, now Appellant in this appeal is not subject to, and does not confer on the defendant/appellant any statutory right of sale. That the defendant does not possess any right on the said property.

2. A declaration that the plaintiff/respondent is still the statutory occupier of the said landed property.
3. Perpetual injunction restraining the defendant now appellant from selling the landed property, and
4. General damages of N150,600 for loss of job, delay caused and unlawful refusal to hand over the plaintiff certificate of occupancy to the mortgage bank.”

The defendant in its statement of defence in the Court below, counter -claimed against the plaintiff “for an order of court to foreclose the property of the plaintiff, and for enforcement of the provision of the legal Mortgage which the Respondent executed in favour of the Appellant to secure a housing loan, and for which he has failed to make payment, thereby erasing the interest of the plaintiff/respondent from the property and conferring right of power of sale to the defendant/appellant. The Appellant also claimed in, the alternative the sum of N170,743.87 being money due and owed to the appellant by the respondents as at 10th December, 1991.” The counter-claim averred that the plaintiff has failed to make the said payment due despite repeated demands. The Court below dismissed the counter-claim, and entered judgment for the plaintiff by a declaration that the plaintiff is the legal owner of the property covered by the certificate of occupancy No. LKN/CON/RES/81/471. The claims of the plaintiff for general damages, and loss of job were refused. The Court also adjudged premature the plaintiff’s claim for a return of the certificate of occupancy. The defendant was dissatisfied with the judgment of the Court below, it filed one original ground of appeal, and seven additional grounds from which he distilled the four issues for determination as follows:-

“1. Whether or not the appellant’s right of foreclosure in respect of the respondent’s property situate at plot No.826, house No. 25, Link road Hausawa or Nassarawa Quarters Gyadi, Gyadi-Kano and covered by certificate of occupancy No.LKN/CON/RES/81/471 had arisen regard been had to the testimony of PW 1. The Respondents at page 35 of the printed record and Exhibits A, D, E and H at pages 76, 99, 106 – 118 and 102 of the printed record respectively?.

2. Whether the trial lower Court’s finding of fact conclusions and inferences that the Respondent’s claim is for a declaration that he was not indebted to the Appellant in any sum were right regard been had to the fact that they were inconsistent with facts, as disclosed by the Respondent’s testimony as PW1 and the respondent’s amended statement of claim?.
3. Whether the trial lower Court was right to have introduced extraneous consideration in interpreting the contractual relationship between the appellant and the respondent in utmost disregard of the evidence on the record?.
4. Whether the decision of the trial Court is not perverse and against the weight of evidence regard been had to its failure to consider relevant and established facts and his eventual error in evaluating evidence that resulted in his arrival at a wrong conclusion.”

For his formulated issues for determination, the Respondent in his brief submitted as follows:-

“(a) Whether the Appellant was right to have advertised the respondent’s property for sale under a public auction when the Appellant failed to ascertain the specific amount the respondent was owing?.”

(b) Whether the appellant was right to have charged interest rates higher than the 8% which was agreed upon, when the appellant granted housing loan facility of N45,000 to the respondent in 1983?.

(c) Whether it was right for the appellant to have urged the lower Court to give judgment in its favour against the Respondent when the counter-claim filed by the Appellant against the respondent was not proved on the preponderance of evidence as required by the law?

(d) Whether there was an enforceable legal Mortgage which the appellant, could fall back on in view of the contention of the Respondent that he did not sign the original copy of the deed of legal mortgage and no formal demand notice was given to him by the appellant before his house was advertised for sale by public auction and when there was no evidence to show either that the statement of accounts were sent to the respondent what is the effect of an unproved counter-claim filed by the appellant?”

Before I consider the arguments in the issues formulated, I wish to determine the appropriateness of the issues formulated by the Respondent in his brief. The appropriateness of the issues formulated by the Respondent is necessary because the rule must be embraced and observed that in the absence of a cross-appeal, the issues formulated by the respondent as indeed the issues distilled by the Appellant must be founded on the ground of appeal filed. See Emeghara v. Health Mgt. Board, Imo State (1987) 2 NWLR (Pt.56) P. 330. In this instant, I start with issue one of the Respondent’s brief. At the hearing of the appeal, the Respondent’s counsel informed the court that issue one is distilled from Appellant’s ground of appeal number 6. It reads thus: “The learned trial High Court erred in law when it held at page 58 of the printed record as follows:-

“Apart from the pleading there was no proof of any statement of the account showing either the amount of the loan actually granted to the plaintiff, the total amount paid by the plaintiff as instalmental payment and the balance remaining unpaid.”

There is nothing in the above ground of appeal of the appellant, or for that matter in any of the grounds of appeal which raised the issue of advertisement of respondent’s property as prepared in the respondent’s issue (A). Issue (a) in respondent’s brief is not founded on any ground of appeal filed in the Appellant amended notice of appeal filed on 8/12/99. No leave of the court has been granted to the Respondent to formulate the issue, and the Respondent did not file a cross-appeal in the Court below. His argument in the brief on issue A in the Respondent’s brief will not be countenanced Odife v. Aniemeka & 2 Ors. (1992) 7 NWLR (Pt.251) at 25. Issues B,C,D and A formulated by the Respondent in his brief do not directly answer to the numbered issue propounded in the appellant’s brief, but they will be considered where they are relevant to the ground of appeal filed by the Appellant, or to the issues formed by the Appellant. This is not the correct way to respond to issues on an appeal. The Respondent’s issues always never answer directly to the ground of appeal filed. In this appeal, the issue formulated by the appellant in his brief and those in the respondent’s brief are so awkwardly phrased that to describe the issue as inelegant is generous.

They were worse. I will however attempt to unravel the knot. The Appellant’s issue one is whether or not the Appellant’s right of foreclosure in respect of the Respondent’s property at 25 link road in Kano had arisen, regard being had to the testimony of PW1 at page 25 of the printed record and Exhibits A, D, E and H on the pages cited. The question must be asked, what did PW1 say on page 35 of the record? The Appellant did not supply the line or paragraph of page 35 relevant to his issue on appeal. However, the said page 35 contains the testimony of PW1 in the Court below, since the issue under consideration is on the question as to whether a valid contract of mortgage exists, the testimony of PW1 relevant thereto is as follows:-