Akpan Sunday Akpan V. Union Bank of Nigeria Plc Anor (2002)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
Akpan Sunday Akpan, the appellant in this appeal, was sued as 2nd defendant, with the Union Bank of Nigeria Plc as 1st defendant by Anthony Oscar Okon the plaintiff/ respondent, in suit No. HU/186/94, filed in the Akwa Ibom State High Court, Uyo Judicial Division, on 14th June, 1994.
Prior to the events culminating in the aforesaid suit, the 2nd defendant/appellant was the owner of the property, consisting of a bungalow lying and situate at No.4 Ewet Street, Uyo, which is covered by a certificate of occupancy No. UY/745/82 registered as 57/57/225 at the Lands Registry, Uyo, Akwa Ibom State (hereinafter referred to as the property in dispute or mortgaged property). As a collateral for a loan facility granted to him by the 1st defendant/ respondent bank, the 2nd defendant/appellant mortgaged the property in dispute to the former, that is, the 1st defendant/respondent bank, under a deed of legal mortgage, dated 30th August, 1984, registered as 5/5/240 at the Lands Registry, Uyo, made between the 2nd defendant/appellant as mortgagor and the 1st defendant/respondent as mortgagee. By virtue of clause 6 of the Deed of Legal Mortgage, the mortgagee is entitled to sell the mortgaged property in the event of default in the repayment of the mortgage debt.
Apparently, on being intimated by the bank of his indebtedness under the loan, the 2nd defendant/appellant disputed the debt and in furtherance thereto, filed an action, to wit, suit No. HU/52/93 on 6th April, 1993, against the 1st defendant/respondent bank to challenge his alleged indebtedness. That suit was eventually struck out on 21st July, 1994, for want of diligent prosecution.
Meanwhile, in the exercise of its power of sale under the mortgage deed, the 1st defendant/respondent on 23rd of April, 1993, advertised in the Punch Newspaper, the property in dispute for sale, through a public auction slated for 26th April, 1993, and in the public auction conducted on that day, the plaintiff/respondent purchased the property in dispute for a consideration of N220,000.00 (Two hundred and twenty thousand Naira only). On receipt of the amount the 1st defendant/respondent used the sum of N14,889.12 to defray the outstanding mortgage debt and credited the account of the 2nd defendant/appellant with the balance.
The plaintiff/respondent after being given the certificate of occupancy and deed of legal mortgage relative to the property in dispute and assured of the deed of assignment, took steps to recover possession of the property. To this end, through his solicitor, he served a notice of intention, dated 9th May, 1993, to recover possession on 2nd defendant/appellant, who in reaction thereto through a letter by his solicitor challenged the plaintiff/respondent’s claim to title of the disputed property contending that there was a pending motion to relist his suit No. HU/52/93, which was struck out on 21st July, 1994.
It is in the foregoing circumstances that the plaintiff/respondent, by an originating summon, filed in court on 14th June, 1994, commenced the action predicating the instant appeal posing for determination in the said summons several issues, which as paraphrased are whether the 1st defendant/respondent bank was the legal mortgagee of the property in dispute; if the power of sale had crystallised in its favour, whether the sale of the property by public auction had validly divested the 2nd defendant/appellant of the title to the mortgaged property and vested same on the plaintiff/respondent. The summons then concluded with the following prayers:
“1. A declaration that the exercise of the power of sale by the 1st defendant as legal mortgagee of the property at No.4 Ewet Street, Uyo, Akwa Ibom State of Nigeria, is legal and valid.
- A declaration that the plaintiff is the owner of property, lying and situate at No.4 Ewet Street, Uyo, Akwa Ibom State, No. 44/745/82, and registered as 57/57/225 at the lands registry at Uyo, Akwa Ibom State of Nigeria, by virtue of purchase of the said property, at a public auction carried out by the 1st defendant on the 26th of April, 1993.
- An order granting possession of the said property at No. 4 Ewet Street, the capital city of Uyo, Akwa Ibom State of the Nigeria, to the plaintiff.
- An order directing the 1st defendant to credit the plaintiff’s accounts with the 1st defendant, with the interests accruable on the sum of N220,000.00(Two hundred and twenty thousand Naira only) presently, in the custody of the 1st defendant, calculated at the prevailing banking interest rate or such other rate as the court may deem fit, until this action is finally determined.”
In support of the originating summons, the plaintiff/respondent filed:
a) An affidavit dated 14th June, 1994, sworn to by him with exhibits A to F.
b) A further affidavit of 4th March, 1996, with exh. A. In its defence, the 1st defendant/respondent filed:-
a) A counter-affidavit sworn to by its advances officer, Nkereuwem Dickson Akpabio.
b) An additional counter-affidavit sworn to by John Dickson Ekwere, a legal practitioner for the defendant/respondent with exh. A-D.
On his part, the 2nd defendant/appellant relied on:-
a) A counter-affidavit sworn to by him on 30th June, 1996, with exh. A.
b) Reply of the 2nd defendant to the additional counter affidavit of the 1st respondent filed on 17/7/996, under questionable circumstances as will be shown later in this judgment.
The court below took arguments from all the counsel representing the parties and on 16th July, 1996, adjourned to 15th October, 1996, for judgment. In a considered and well researched judgment delivered on that date, 15th October, the learned trial Judge Udo, J., painstakingly, reviewed the affidavit evidence before him and submissions of counsel and found in favour of the plaintiff/respondent encapsulating his findings thus:-
“Consequently, I make the following declarations:-
1) The exercise of the power of sale by the 1st defendant as legal mortgagee of the property at No.4 Ewet Street, Uyo, Akwa Ibom State of Nigeria, is legal and valid.
2) The plaintiff is the owner of the property lying and situate at No.4 Ewet Street, Uyo, Akwa Ibom State, covered by certificate of occupancy No. UY/745/82 and registered as 57/57/205 at the lands registry at Uyo, Akwa Ibom State of Nigeria, by virtue of purchase of the said property, at a public auction carried out by the 1st defendant on the 26th of April, 1995.
3) I hereby, grant possession of the building at No.4 Ewet Street, Uyo, Akwa Ibom State to the plaintiff.”
The 4th relief of the originating summons was not granted. Aggrieved by the judgment, the 2nd defendant/appellant lodged the instant appeal with five grounds of appeal which shorn of their particulars, read as follows:-
Ground 1: Weight of evidence:
The judgment of the court is against the weight of affidavit evidence adduced at the trial.
Ground 2 Misdirection: The learned trial Judge misdirected himself and erred in law, when he held that the 2nd defendant/appellant did not file a further affidavit to show that at the time of the sale of the property (sic) was aware of the pendency of suit No. HU/52/93 and also that the indebtedness of the 2nd defendant/appellant had not fallen into a state of lapse or foreclosure thereby occasioning a miscarriage of justice.
Ground 3 Misdirection: The learned trial Judge misdirected himself on the evidence when he found that there was nothing to the knowledge of the 1st defendant/respondent inhibiting its exercise of the right of sale of 2nd defendant/appellant’s property at No.4 Ewet Street, Uyo.
Grounds 4 Error in law: The learned trial Judge erred in law, in not holding that exh. ‘A’ deed of assignment attached to the further affidavit of Anthony Oscar Okon that is, the plaintiff/respondent was not caught by the doctrine of lis pendens.
Ground 5 Misdirection: The learned trial Judge misdirected himself, when he held that the 2nd defendant did not however exhibit for his perusal the motion to re-list suit No. HU/52/93 and that he did not depose to the fact that the motion had been served on the 1st defendant/respondent and therefore, arrived at the conclusion that at the time of the assignment, there was no pendent lite in respect of the property now in litigation thereby, occasioning a miscarriage of justice.
In accordance with the practice of this court, parties by their counsel filed and exchanged briefs of argument. Arising from the five grounds of appeal, the 2nd defendant/appellant identified the following four issues for determination:-
i) Whether the judgment of the lower court can stand in view of the affidavit evidence before the court- (Ground 1).
ii) Whether the defendant/respondent (i.e.) the bank had knowledge of the pendency of the suit HU/52/93 at the time of conveyance of the property NO.4 Ewet Street, Uyo, Akwa Ibom State (Grounds 2 & 3).
iii) Whether the deed of assignment conveying appellant’s property No.4 Ewet Street, Uyo to the plaintiff/respondent was not caught by the doctrine of lis pendens – (Ground 4).
v) Whether at the time of the conveyance of the property No.4 Ewet Street, there was a motion on notice to relist the suit HU/52/93 pending and duly served on all the parties particularly the bank – (Ground 5).
In its brief, the 1st defendant adopted all the four issues identified in the appellant’s brief while the plaintiff/ respondent formulated two issues in his brief. These are:-
“1. Whether the learned Judge in arriving at his judgment, made a correct evaluation of the evidence brought before the court by all the parties to the case so as to sustain his findings of fact.
- Whether the appellant had discharged the burden of proving that there was a pending suit at the time that the legal mortgagee exercised its power of sale.”
The appeal was heard on 22nd April, 2002, when the learned Counsel for the respondents adopted their respective briefs and urged on the court to dismiss the appeal. Learned Counsel for the appellant was absent from the court and though duly served with a hearing notice there was no letter to excuse his absence. Having filed the appellant’s brief, the appeal was deemed argued on that brief pursuant to Order 6 rule 9(e) of the Court of Appeal Rules, Cap. 62, Vol. 4, Laws of the Federation of Nigeria, 1990.
In regard to the appellant’s first issue for determination which deals with weight of evidence, it was submitted in the appellant’s brief of argument that in attacking the decision of a trial court on weight of evidence what an appellant has to do is to show that there was evidence which if the trial Judge had adverted his mind to, he would have come to a proper conclusion. The case of Lion Buildings Ltd. v. shadipe (1976) Vol. 2 FNLR (Pt. 282) at 289; (1976) 12 SC 135was cited in support of the proposition. Reference was made to the appellant’s reply to the additional counter-affidavit of the 1st defendant/respondent bank in which appellant’s said reply it was averred, inter alia, that although the appellant’s suit No. HU/52/93 was struck out on 21/7/94, a motion to relist the suit was filed on 17/5/95 and duly served on all the parties. It was observed that despite the pendency of that motion, the 1st defendant/respondent bank proceeded to convey the property in dispute to the plaintiff/respondent as per the deed of assignment dated 9th November, 1995. It was therefore, submitted that the judgment of the court below was perverse when it held that the 2nd defendant/appellant did not file a further affidavit to show that at the time the 1st defendant/ respondent bank sold the property in dispute to the 1st defendant/respondent it (Bank) was aware of the pendency of suit No. HU/52/93. The case of Odiba v. Azege (1998) 61 LRCN at 4607 at 4607; (1998) 9 NWLR (Pt.566) 370, was cited as authority for the meaning of perverse decision as one which ignores the facts or evidence and when considered as a whole, amounts to a miscarriage of justice. It was stressed that this court has the power to intervene to make its own findings of fact, where the lower court has failed to do so based upon the preponderance of evidence adduced before the trial court. We were therefore, urged to re-evaluate the affidavit evidence before the court.
In its response to the appellant’s submissions, on the 1st issue for determination, the 1st defendant/respondent bank in its brief of argument submitted that to succeed on that issue distilled from an omnibus ground of appeal, appellant must show that there was no evidence before the lower court which if accepted would support the learned trial Judge of the inference which he made. In support of the submission, the following cases were cited Mba Nta v. Edemwede Anigbo (1972) 1 All NLR 510, 516; Onwuka v. Ediala (1989) 1NWLR (pt. 96) 182. It was submitted that the appellant in his submission has not even remotely contended nor complained that there was no evidence which if accepted would support the findings or inferences made by the learned trial Judge. It was contended that based on the 1st defendant/respondent’s counter affidavit and the additional counter-affidavit, there was abundant evidence before the court to support its findings. It was canvassed that the purported “reply of the 2nd defendant to the additional counter-affidavit of the 1st respondent” upon which the appellant is heavily relying is of no avail to him as the same was filed on 17th July, 1996, after conclusion of addresses by counsel on 16th July, 1996, and judgment adjourned to 15/10/96 by the learned trial Judge. The purported “reply” it was submitted was not properly before the court below and consequently was worthless, irrelevant and useless.
The court cannot act on evidence not before it, vide the cases of Ivienagbor v. Bazuaye (1999) 9 NWLR (Pt. 620) 552; Lekwot v. Judicial Tribunal on Civil and Communal Disturbances (1997) 51 LRCN 1840, (1997) 18 NWLR (Pt.515) 22. It was contended that in so far as the facts deposed to in the further affidavit filed by the plaintiff/respondent were not challenged, controverted or denied, they would be deemed admitted in law and ought to be acted upon by the court relying on the cases of Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) at 773; Alegbe v. Abimbola (1978) 2 SC 39; The State v. Commission for Boundaries Settlement, Oyo State (1996) 37 LRCN 603 at 613. Finally, it was submitted that the allegation of perversity canvassed by the appellant in his brief is half-heartedly, made without any basis. It was stressed that the court below was not in law entitled to manufacture evidence or speculate or rely on what was not properly established in affidavit evidence before it to found a decision as was decided by the Supreme Court in the case of Ebba v. Ogodo (1984) 1 SCNLR 372.
In the plaintiff/respondent’s brief, it is submitted on the 1st issue therein which relates to the appellant’s first issue that in the claim before the court, which was for a declaration of title to real property, the plaintiff/respondent was required to produce evidence to show that the 2nd defendant/appellant had been divested of the ownership of the property in dispute vide the case of Oyovbiare v. Omamurhomu (1999) 10 NWLR (Pt. 621) 23. It was contended that the plaintiff/respondent had discharged that burden by showing that he acquired the property in dispute in a duly advertised public auction pursuant to a legal mortgage between the 1st defendant/respondent and the appellant. It is the contention of the plaintiff/respondent that the 2nd defendant/appellant having alleged that he filed suit No. 00/52/93 against the 1st defendant/respondent bank and the latter having shown that the said suit No. HU/52/93 was served on it after the sale of the mortgaged property, the onus was on the 2nd defendant/respondent to prove the contrary, that is, that service of the writ of summons in suit No. 00/52/93 was effected before the auction.
Reference was made to the case of Gbegu v. Gbegu (1996) 6 SCNJ 167. It was submitted that the 2nd defendant/appellant failed to discharge this burden. It was contended that the purported affidavit reply by the 2nd defendant/appellant dated 17/6/96 is misleading as it was filed after arguments in the case were concluded and the case adjourned for judgment on 16/6/96. It was submitted that the purported piece of affidavit in question was slipped into the record and it is not evidence which the court can act upon. The following cases were cited:- Saidu v. State (1982) 4 SC 41 at 69; Ivienagbor v. Bazunye (1999) 9 NWLR (Pt. 620) 552.
The appellant’s first issue for determination complains about weight of evidence which is based on the omnibus ground of appeal. In Anachuna Anyaoke & Ors. v. Felix Adi & Ors. (1986) 3 NWLR (Pt. 31) 731 at 742 the scope and nature of an omnibus ground of appeal were explained by the Supreme Court when it observed:-
“It is true that an omnibus ground of appeal implies that the judgment of the trial court cannot be supported by the weight of evidence adduced by the successful party, which the trial court Judge either wrongly accepted or that the inference drawn or conclusion reached by the trial Judge based on the accepted evidence cannot be justified. It also implies that there is no evidence which if accepted would support the finding of the trial Judge. A further implication of the omnibus ground is that when the evidence adduced by the appellant is weighed against that adduced by the respondent, the judgment given in favour of the respondent is against the totality of the evidence adduced before the trial court.
See Chief Abah Ogbodu v. Daniel Adelugbe (1971) 1 ALL NLR 68 at 71; Mba Nta & Ors. v. Ede Nwede Anogbo (1972) 1 ALL NLR 510 – and Mogaji & Ors. v. Odofin & Ors. (1978) 4 SC 91 at 93…”
And in its later decision in Ezebilo Abisi & Ors. v. Vincent Ekwealor & Anor. (1993) 6 NWLR (Pt. 302) 643, the Supreme Court reiterated-
“when an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him.” Mogaji v. Odofin (1978) 3-4 SC 91 at 95-99.
In the instant appeal and as rightly pointed out in the 1st defendant/respondent’s brief, the appellant’s arguments misconceived the issue under consideration as no attempt was made to show that there was no evidence, which if accepted would support the finding of the learned Judge or that when the evidence adduced by him is weighed against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the court below. The pith of the appellant’s complaint under consideration is the non-appraisal by the court below of the appellant’s affidavit titled “reply of the 2nd defendant to the additional counter- affidavit of the 1st defendant”. An appeal against the decision of trial Judge would be allowed if such decision was based on an improper evaluation of evidence: Seismograph v. Akporuovo (1974) 6 SC 119 at 140. Where the trial Judge had failed to properly consider and evaluate the evidence adduced by both sides to the dispute, the Court of Appeal has a duty to consider and evaluate such evidence and make proper findings: Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35; Abusomwan v. Mercantile Bank (Nig.) Ltd. (1987) 3 NWLR (Pt. 60) 196. In the present appeal it is necessary to determine whether the affidavit evidence of the appellant in question was evidence properly before the court below to warrant evaluation by that court or this court. In this connection, I did observe in the introductory part of this judgment that the appellant’s affidavit evidence titled “reply of the 2nd defendant to the additional counter- affidavit of the 1st respondent” was filed on 17/7/96 under questionable circumstances and I indicated I would expatiate on this in this judgment. I now wish to do so by tracing how and at what stage of the proceedings that affidavit evidence came about. The plaintiff/respondent had in the supporting affidavit to his originating summons asserted, inter alia, that he acquired the property in dispute through a duly advertised public auction, and in a further affidavit filed on 4/3/96 exhibited a deed of assignment dated 9/5/95, bearing the Governor’s consent and duly registered in the plaintiff’s/respondent’s name. To challenge the auction sale of his property, the 2nd defendant/appellant in his counter-affidavit dated 30/6/95, claimed that he had filed a writ of summons in suit No. HU/52/93, against the 1st defendant/respondent.
In reaction to the 2nd defendant/appellant’s affidavit, the 1st defendant/respondent filed an additional counter-affidavit, dated 16/7/96, showing that the auction sale was concluded on 26/4/93, while it was served with the writ of summons in HU/52/93. On 5/5/93 and that the suit was struck out on 21/7/94 for want of diligent prosecution. It was at that stage that the parties addressed the court on 16/7/96 and the matter adjourned for judgment. It was the next day 17/7/96, after counsel had addressed the court that it dawned on the appellant’s counsel to smuggle or slip into the record of proceedings his reply to the additional counter-affidavit of the 1st defendant/respondent in which he deposed inter-alia that “a motion on notice dated 4/5/95 was filed in court on 17/5/95 seeking to relist the suit which said,
“Motion was duly served on the defendant/respondent in suit HU/52/93, inspite of this, the 1st defendant/ respondent still conveyed the property to the plaintiff on 9/11/96. The said motion on notice to re-list is hereby, attached and marked exh. ‘AB’.
In paragraph 2 of the said affidavit of the 2nd defendant/appellant, it was averred thus:-
“2. That I was served with a copy of the additional counter affidavit of the 1st defendant on record in court this morning being 16/7/96. The court by consent of all parties in this suit agreed that I should file this my reply after argument”. (Italicising for emphasis)
The alleged agreement by all the parties for the reply to be filed after argument is not borne out from the record. Undoubtedly, it was in realisation of this fact, that the appellant’s counsel filed before this court a motion on notice dated 24/11/2000 praying inter alia:-
“1. For leave to incorporate in the record of proceeding the following:-
‘That the learned trial Judge on the 16th day of July, 1996, upon application by appellant’s counsel directed the appellant to file on the following day being 17/7/96, a reply to additional counter affidavit of the defendant/ respondent i.e. Union Bank of Nigeria (Plc.) exhibiting the motion to relist the suit No. HU/52/93 after appellant’s reply and this was consented to by all the parties”.
In the supporting affidavit of that motion on notice filed in this court, the appellant herein, swore to inter-alia in paragraph 12 thereof:-
“12. That my solicitor informs me and I verily believe him, that the record of proceedings in this appeal does not contain the fact that the learned trial Judge granted leave to the appellant to file a reply to the additional counter affidavit of the bank, after concluding his argument whereby, he would exhibit the motion to re-list the suits which was struck out.”
Upon the motion on notice filed in this court coming before us, we directed that it be served on the learned Judge of the court below, who delivered judgment now the subject matter of this appeal. That order was carried out and the learned Judge Udoh, J. in his affidavit, filed on 13/7/2001, denied granting appellant’s counsel leave to file a reply to the additional counter-affidavit of the bank, upon the conclusion of address of counsel. On 28/1/2002, when the appellant’s motion filed on 16/1/2001 and an earlier identical one filed on 25/9/2000, came up for hearing, the appellant’s counsel was not in court, though he was in court on the last adjourned date, the motions in question were struck out, at the instance of the respondent’s counsel. The effect is that the affidavit evidence of the appellant, contained in the “reply of the 2nd defendant to the additional counter-affidavit of the 1st respondent” was not legal evidence before the court deserving to be evaluated. The facts sought to be controverted therein remain unchallenged that is to say that, suit No. HU/52/93 was struck out on 21/7/94, and there was no application to re-list same. The learned trial Judge was therefore, eminently justified when at pp. 54-55 of the record he held:-
” I had earlier found in this judgment that the 2nd defendant did not file a further affidavit challenging the affidavit of John Dickson Ekwere as to the following facts:-
1) That at the time of sale the 1st defendant had no notice of any pending suit between the 1st and 2nd defendant regarding the property at No.4 Ewet Street, Uyo.
2) …The position of the law is that the 2nd defendant is deemed to admit all the averments contained in the affidavit of John Dickson Ekwere. The court is duty bound to give positive expression to such admission unless it sees any legal reason to the contrary…”
That finding cannot be faulted. The conclusion I have arrived at is that, the complaint on weight of evidence is not made out. This conclusion is indeed far reaching and is sufficient to resolve the appellant’s remaining issues for determination in so far as those issues are substantially predicated on the reply to the additional counter affidavit of John Dickson Ekwere, which as elaborately discussed above, is demonstrably not legal evidence upon which the court below could have acted. I am however, prepared to consider the remaining issues for determination albeit briefly. In this regard, I consider it better and neater to deal with all of them together, since the issues overlap or dovetail one into the other.
In the appellant’s 2nd, 3rd and 4th issues for determination, it was submitted in the appellant’s brief that, from the affidavit evidence adduced at the trial, the defendant/respondent bank had knowledge of the appellant’s pending suit No. HU/52/93, when it sold at a public auction appellant’s property on 26/4/93 and conveyed same by a deed of assignment dated 9/11/95, that at the time of the conveyance of the property in dispute there was a motion on notice to re-list the suit No. HU/52/93, which was struck out and that the deed of assignment was caught by the doctrine of lis pendens thereby, rendering it ineffective. In support, the following cases were cited: Ajuwon v. Akanni (1994) LRCN 72 at 79; (1993) 9 NWLR (Pt.316) 182; Bamgboye v. Olusoga (1996) 4 NWLR(Pt.444) 520, (1996) 38 LRCN 864; Alakija v. Abdulai (1998) 6 NWLR (Pt.552) 1, (1998) 59 LRCN 3756 at 3759.
In the 1st defendant/respondent’s brief, counsel raised a preliminary objection contending that ground 2 of the ground of appeal is incompetent in so far as it contains allegation of error in law and misdirection in the judgment of the lower court and consequently, the issue for determination distilled from it is equally incompetent and ought to be struck out on the authority of Agundo v. Gberbo (1999) 9 NWLR (Pt. 617) 71 at 86. It was further contended that, ground 3 is not covered by issue 2 and as no issue is formulated on that ground it is deemed abandoned. In the alternative, it was submitted that from the facts of the case, the lower court rightly held that the appellant had not discharged the burden of proving that there was a pending suit at the time the property was sold to the plaintiff/ respondent. In regard to appellant’s issue No. 111, it was contended in the 1st defendant/respondent’s brief, that the court below rightly found from the evidence before it, that the deed of assignment dated 9/11/95, was not caught by the doctrine of lis pendens and finally adverting to the appellant’s issue No. iv, the contention was that at the time of the conveyance, there was no motion on notice to re-list suit No. HU/52/93 and that the appellant failed to discharge the burden of proving that assertion relying on the cases of Carribbean Trading and Fidelity Corporation v.NNP C (1991) 6 NWLR (Pt.197) 352; Imana v. Robinson (1979) 3-4 SC I; Ayinde v. Abiodun (1999) 8 NWLR (Pt. 616) 587; Elias v. Oma-Bare (1982) 5 SC 25.
In respect of the plaintiff/respondent’s issue No. 2 which embraces appellant’s issues Nos. II-IV, the plaintiff/ respondent was in agreement with the 1st defendant/respondent bank that the appellant had not discharged the burden of proving that there was a pending suit at the time the property was sold to the plaintiff/respondent and that the doctrine of lis pendens did not operate to affect the sale and eventual assignment of the property in dispute to the plaintiff/respondent. The case of Osagie v. Oyeyinka & Anor. (1987) 3 NWLR (Pt.59) 144 and Ikeanyi v. African Continental Bank Ltd. & Anor. (1991) 7 NWLR (Pt. 205) 626 were cited and relied on.
I think that the crux of the controversy is whether there was a pending suit at the time of the sale and eventual assignment of the property in dispute to the plaintiff/respondent to lead to the invocation of the doctrine of lis pendens. Before wading into that discussion, it is appropriate to dispose of the preliminary objections raised in the 1st defendant/respondent’s brief. They are two-firstly, that ground 2 of the grounds of appeal is bad for alleging error in law and misdirection. There is no doubt that our law reports are replete with a long line of cases in which it had been enunciated that a ground of appeal which alleges both error in law and a misdirection is incompetent. See the following cases to mention but a few:- Nwadike v. Ibekwe (1987) 4 NWLR (pt. 67) 718 at 744; Amadi v. Okoli (1977) 7 SC 57 at 58; Sylvanus Obi v. Chief Owolabi (1990) 5 NWLR (Pt. 153) 702. The present position is that such a ground is not necessarily incompetent if such a ground shows clearly what is complained of as error in law and what is complained of as a misdirection. See Aderoumnu v. Olowu (2000) 4 NWLR (pt. 652) 253; Nteogwuija v. Shoru & Ors. (1998) 10 NWLR (Pt. 569)267, 310 A careful scrutiny of the ground of appeal under consideration which had earlier been reproduced in this judgment makes it abundantly clear what it is complaining about. It is my judgment that the ground of appeal is quite in order and competent.
The second arm of the preliminary objection is that the arguments on issue 2 are confined to the complaint in ground 2 and did not extend to the complaints in ground 3. In brief writing, the practice has been evolved that when issues are formulated from related grounds of appeal, those issues and not the grounds of appeal form the basis of argument in the brief; see Adejumo v. Ayantegbe (1989) 3 NWLR (Pt. 110) 417 at 430; Agbai v. Okogbue (1991) 7 NWLR (Pt. 204) 391. Adverting to grounds 2 and 3 of the grounds of appeal both of which talk about the mortgagee’s exercise of its power of sale and whether there were inhibiting factors such as knowledge of a pending suit to prevent the exercise of the power of sale, I think that both grounds are related and are both related to the appellant’s issue No.2. This being so arguments advanced on the issue will invariably cover both grounds. I will overrule the preliminary objection.
As noted above, the bone of contention is whether at the time of the sale of the mortgaged property and the eventual assignment thereof to the plaintiff/respondent there was a pending suit in respect of the said property upon which the operation of the doctrine of lis pendens could be predicated. Black’s Law Dictionary, 6th Edition defines the term lis pendens as –
“A pending suit. Jurisdiction, power or control which courts acquire over property in litigation pending action and until final judgment.”
In words and phrases, Vol. 25A (1658) the term is defined in Pp. 12, 13 thus:-
Lis pendens means pending suit and begins from service of summons therein….
A suit in equity is not lis pendens until a bill had been filed and service….
Thus, the commencement of a suit by filing a bill does not constitute lis pendens until summons or subpoena has been served….
A suit in equity or common law does not become lis pendens until service of process ….”
The doctrine of pendente lite nihil innovateur which literally translates to – nothing should change during the pendency of an action affects a person who purchases property the subject matter of a litigation not because he is caught by the equitable doctrine of notice but because the law does not allow to litigants and give to them pending the litigation rights in the property in dispute so as to prejudice the opposing party. Thus, where a defendant alienates the property during the pendency of an action and the plaintiff succeeds the result of the judgment will overreach such alienation; Barclays Bank (Nig.) Ltd. v. Ashiiru (1978) 6-7 SC 99; Ogundiani v. Araba (1978) 1 LRN 280; Osagie v. Oyeyinka (1987) 3 NWLR (Pt. 59) 144; Bamgboye v. Olusoga (1996) 4 NWLR (Pt. 444) 520 at 532; Clay Industries (Nig.) Ltd. v. Aina (1997) 8 NWLR (Pt. 516) 208 at 233; Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339 at 356. In the case of Ikeanyi v. African Continental Bank Ltd. & Anor. (1991) 7 NWLR (Pt. 205) 626, the court held thus:-
“Where litigation is pending between a plaintiff and a defendant as to their rights over a particular estate, the decision of the court in the suit is binding not only on the litigant parties, but also on those who derive title under them by alienation made pending the suits whether such purchasers had, or had no notice of the pending proceedings. However, it must be shown that before the alienation of the property, the suit is in full prosecution in the sense that the defendant must have actually been served with or must be shown to be aware of the existence of the plaintiff’s summons.”
For a mortgagor to defeat a valid sale by a mortgagee on ground of lis pendens he must prove on balance of probabilities that at the time of the sale there was a pending suit against the mortgagee in respect of which he the mortgagee was served with the process of court for as the Supreme Court has stated in the case of Osagie v. Oyeyinka & Anor. (1987) 3 NWLR (Pt. 59) 144.
“…In the case of real purchase pendente lite, the plaintiff is to be held to strict proof of the pending suit and such a plaintiff will not be allowed to amend any flaws at the hearing.”
In the case in hand, it is common ground by all parties that the property in dispute was sold to the plaintiff/ respondent in a public auction conducted On 26th April, 1993, at the instance of the 1st defendant/respondent bank and the property conveyed to the purchaser as per the deed of assignment dated 9th November, 1995.
The 2nd defendant/appellant mortgagor alleged that at the time of the sale, he had a pending suit against the 1st defendant/respondent mortgagee bank. The burden of proof in civil cases rests upon the party whether plaintiff or defendant who substantially asserts the affirmative of the issue: Jack v. Whyte (2000) 6 NWLR (Pt.709) 266 at 277. The 2nd defendant/appellant having alleged the pendency of a suit at the time of the sale of the property in dispute, the burden was upon him to prove that there was such a pending suit and that the writ of summons in respect of the suit had been served on the defendant/respondent bank. See sections 135-137 and 139 Evidence Act. To this end, the appellant in his counter-affidavit sworn on 30th June, 1996, alleged in paragraphs 5 and 6 thereof that on 26/4/93, the 1st defendant/respondent bank purportedly sold the property in dispute to the plaintiff/respondent during the pendency of suit No. HU/52/93 he instituted on 6/4/93 against the 1st defendant/respondent the writ of summons of which was annexed to the motion as exh. B. There was no indication of service of the writ of summons on the 1st defendant/respondent bank.
In response to that assertion, the 1st defendant/respondent in the additional counter-affidavit of John Dickson Ekwere in paragraphs 4 and 7 thereof averred that the writ of summons in suit No. HU/52/93 was served on the 1st defendant/respondent, on 5/5/93 long after the property in question had been sold at the public auction on 16/4/93 and that the suit was eventually struck out on 21/7/94 for want of diligent prosecution. From the state of affidavit evidence of the parties, the 2nd defendant/appellant had not established as he was expected that at the time the property in dispute was sold, the writ of summons in suit No. HU/52/93 was served on the 1st defendant/respondent bank or that the bank was aware of the pendency of that suit. It was not controverted that the suit in question was struck out on 21/7/94.
Learned Counsel to the appellant has in his brief of argument referred to the appellant’s affidavit dated 17/7/96 captioned “reply of the 2nd defendant to the additional counter-affidavit of the 1st defendant” in which he denied that the writ of summons in suit No. HU/52/93 was served on the 1st defendant/respondent after the public auction and also alleged that though the suit was struck out on 21/7/94, he had on 17/5/95 filed a motion to relist that suit which motion was duly served on the 1st defendant/respondent without exhibiting copy of the affidavit of service. In my consideration of the first issue for determination I expressed the view that the appellant’s affidavit referred to as the “Reply of the 2nd defendant to the additional counter-affidavit of the 1st defendant having been filed on 17/7/96 after final address of counsel and adjournment for judgment was not evidence upon which the court could act. A judge cannot by examining documents outside the court act on what he considers he has discovered on an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure: Onibudo v. Akibu (1982) 7 SC 60 at 62; Ivienagbor v. Bazuaya (1999) 9 NWLR (Pt. 620) 552 at 561; Rabbo Damina v. The State (1995) 8 NWLR (Pt.415) 513 at 532.
I am in complete agreement with learned respondent’s counsel that the appellant had not discharged the burden cast upon him of proving that at the time of the sale of the mortgaged property there was a pending suit the processes of which had been served on the defendant/respondent bank mortgagee. I am therefore, unable to hold that the sale of the property in dispute and the conveyance by deed of assignment dated 9/11/95 to the plaintiff/respondent was caught by the operation of the doctrine of lis pendens as vigorously canvassed on behalf of the appellant.
In the light of the foregoing, this appeal lacks merit. It is accordingly dismissed with costs to the plaintiff/respondent and 1st defendant/respondent assessed respectively at N3,000 and N2,000.
Other Citations: 2002)LCN/1219(CA)