Alhaji Buraimoh Oladapo & Anor V. Bank of the North Ltd & Anor (2000)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

In the court below, the appellants who were plaintiffs made the following claims as per the writ of summons:-

(i) A declaration that the two buildings of the plaintiffs which stand on the land sub-leased to them by Emile Bouari on 5th May, 1980 and which is registered as No. 38 in volume 2295 of the Register of Deeds Ibadan are not part of any land or buildings mortgaged to the 1st defendant.

(ii) An order setting aside the purported sale by public auction of plaintiffs buildings which are at Ibuowo corner, Gbagi, facing New Court Road, Ibadan by the 1st defendant to the 2nd defendant as improper unlawful, and null and void.

(iii) Injunction restraining the defendants, their agents, successors and privies from laying claim to or in any way interfering with the quiet enjoyment of plaintiff’s sublease.

Pleadings were exchanged by parties on the order of the court. The plaintiff’s claim at the lower court was predicated on a sublease of a land entered on 15/5/80 between the plaintiffs and one Emile Bouari and which will expire in year 2000. Two buildings housing 50 shops worth N5 million were constructed on the land by the plaintiffs. The said buildings were sold to the 2nd defendant by the 1st defendant, even though the plaintiffs were not indebted to the 1st defendant, and the plaintiffs have asserted that the sale can only be subject to the equitable interest of the plaintiffs.

The defendants jointly denied the case of the plaintiffs, stating that Lutfallah Bouari is the lessor of the property situate at No. 30, Oba Adebimpe Street, Ibadan by deeds of lease dated 27/7/33 and 27/7/93 and 6/7/53, and which Lutfallah Bouari mortgaged to the 1st defendant by deeds of legal mortgage dated 6/12/68 and 20/ 3/63, to secure the account of Trans Atlantic Co. Ltd. Emile Bouari endorsed the deeds of legal mortgage that Lutfallah Bouari executed in favour of the 1st defendant. The defendants pleaded fraud in respect of the sublease granted in favour of the plaintiffs by Emile Bouari which is in fraud of the right of the 1st defendant as a mortgagee. The defendants have asserted that the plaintiffs are not owners of the property called Ibuowo Coner.

Both parties adduced evidence which were evaluated by learned trial Judge, who at the end of the day dismissed the plaintiff’s case in its entirety. Dissatisfied with the judgment the plaintiffs appealed to this court on five grounds of appeal. Learned counsel for the parties exchanged briefs of argument in pursuance to Order 6 rules 2, 4 and 5 of the Rules of this court of 1981 as amended and the briefs of argument were adopted by counsel at the hearing of the appeal. Issues for determination were formulated in the appellant’s and respondent’s brief of argument. In the appellant’s brief of argument are the following issues:-

1. Whether heavy reliance placed on the evidence of the D.W.2 in arriving at a conclusion and defeating the claims of the plaintiffs was not erroneous in law in the light of the evidence before the court.
2. Whether the failure of the learned trial Judge to make a finding on the validity of Exhibits J and K was in order in the circumstances and whether his failure to do so has occasioned a miscarriage of justice.
3. Whether the judgment is not against the weight of evidence.

A notice of preliminary objection was raised in the respondents’ brief of argument and learned counsel for the respondents moved the objection at the hearing of the appeal. It was his submission that the learned counsel for the appellants conceded the notice of preliminary objection in paragraph (3) of the appellants’ reply brief of argument. The respondent’s objections are predicated on the grounds of appeal which he has attacked as being incompetent.

It is thus imperative that I reproduce the grounds of appeal at this juncture.

They read:-

1. The learned trial Judge erred in law when he relied heavily on the evidence of D.W.2 in holding that:

“The implication of this fact is that the buildings or shops allegedly owned by the plaintiffs are on the parcel of land described as Gbagi IV(12) mortgaged to the 1st defendant by Exhibits ‘J’ and ‘K’.

Particulars of error

(a) Although D.W.2 maintained in his evidence-in-chief that Exhibit ‘A’ is within Exhibit ‘C’ this witness under cross-examination agreed that there are portions of the land contained in Exhibit ‘A’ that encroach on Exhibit ‘C’.

(b) A reasonable deduction which the learned trial Judge failed to make on this is that a piece or parcel of land can only encroach on another when part or some part of the former is within the latter and some part of it is also outside and in such a situation one can not say that the former is within the latter.

(c) The admission by D.W.2 confirmed the case of the plaintiff that there is another parcel of land outside Exhibit ‘C’ described as Gbagi IV(12) which was mortgaged to the 1st defendant.

(d) As this finding of the learned trial Judge constitute a turning point in the judgment, it has occasioned a miscarriage of justice.

2. The learned trial Judge misdirected himself when he held that D.W.2 went through a lengthy and rigorous cross-examination but nevertheless he remained professionally consistent when in his evidence under cross-examination which in many respects contradicts his evidence-in-chief is properly analysed and evaluated it points to one irresistible conclusion that the witness was not a witness of truth and his evidence ought not to have been relied upon as the learned Judge did not defeat the case of the plaintiffs.
3. The learned trial Judge erred in law when he held that paragraphs 3 and 4 of the reply to the statement of defence were not tied down to any reliefs in the plaintiff’s statement of claim.

Particulars of error

(1) The said paragraphs constitute part of the plaintiff’s pleadings in support of their claim against the defendants.

(2) The averments in the said paragraphs if found proved by the court would go a long way in supporting claim number 2 of the plaintiffs since the purported sale of the plaintiff’s property was based on the existence of a purported mortgage deed between Lutfallah Bouari and the 1st defendant and that Emily Bouari derived his authority to execute the same through power of attorney tendered as Exhibit ‘D’.

(3) The said claim No.2 can conveniently stand on its own.

(4) The learned trial Judge erred in law when he held that there was no need to make findings on the validity of the legal mortgage Exhibits ‘J’ and ‘K’ purportedly executed between the 1st defendant and Lutfallah Bouari, an issue that was properly raised before the court.

Particulars of error

(a) The plaintiffs in paragraphs 2 and 4 of their reply to the statement of defence in response to paragraph 9(a) of the statement of defence joined issues with the defendants on the validity of the mortgage through which the 1st defendant purportedly derived its power of sale.

(b) The power of attorney that allegedly gave Emile Bouari the power to mortgage Lutfallah Bouari’s property to the 1st defendant as Exhibit ‘D’ through P.W.1 under cross-examination.

(c) The defendants had the opportunity of a further reply to the averments in paragraphs 3 and 4 of the plaintiff’s reply to their statement of defence which they did not utlise.

(d) The failure on the part of the defendants did not detract any thing from the plaintiff’s right to have a pronouncement on the issue by the court.

(e) The validity of the mortgage is inescapably attached to the right of sale purportedly exercised by the 1st defendant.

(f) It is trite law that a court of law has a duty to make a pronouncement on any issue properly raised before it no matter how small the effect it would have on the case before it.

(g) The refusal of the learned trial Judge to pronounce on this important issue has occasioned a manifest miscarriage of justice.

5. The judgment is against the weight of evidence.

Ground (1), of appeal was attacked on the ground that the issue raised in respect of that ground in the appellant’s brief of argument was not raised in the court below. His submission on this is that nowhere in the record did the learned Senior Advocate to the appellants address the court that it should not rely on the evidence of the Surveyor, D.W.2 in making finding on fact of the issue of identity of land. He relied on the case of Udza Uor v. Loko (1988) 2 NWLR (Pt.77) 430. The same argument was canvassed in respect of ground of appeal No. (2) and counsel further placed reliance on the cases of Ajuwon v. Adeoti (1990) 2 NWLR (Pt.132) 271. In the appellant’s brief of argument learned counsel for the appellants has submitted that objections to the grounds are misconceived and ought to be dismissed, as issues are not raised in counsel’s final address as postulated by the respondents, but on the state of pleadings backed by credible evidence. He relied on the case of Buraimoh v. Bamgbose (1989) 3 NWLR (Pt.109) 352, and further submitted that it is the duty of a trial court to properly evaluate the evidence before it. He placed reliance on the case of Akanmu v. Adigun (1993) 7 NWLR (Pt.304) 218, and further submitted that leave of this Court of Appeal was not necessary. I am in full agreement with learned counsel. An issue in the con of what is discussed is a point that has arisen in the pleadings of parties, which forms the basis of the dispute or litigation and which requires resolution by a trial court. In the course of making his case, a party makes assertions and allegations in his pleadings that must be supported by credible and cogent evidence, and in the process makes issues of them. It is the treatment of these that lead to decisions that may be attacked in grounds of appeal. See Ishola v. Ajiboye (1998) 1 NWLR (Pt.532) 71; Metal Construction (WA.) Ltd. v. Migliore (1990) 1 NWLR (Pt.126) 299, and Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546. Grounds of appeal are not predicated on matters other than pleadings and evidence, particularly not address of counsel. The complaints in grounds (1), (2) and (5) (supra) are on evidence and evaluation by the learned trial Judge, and are as such competent. The above arguments and principle of law applies to the objection on grounds (3) and (4). So, I hold that the grounds are competent and overrule the preliminary objection.

Now, the respondents formulated four issues for determination in their brief of argument, and the issues are attacked in the appellant’s reply brief, on the same grounds as those raised against the grounds of appeal in the respondent’s brief of argument. This objection again is not sustainable. At any rate, the issues are virtually the same as those raised in the appellant’s brief of argument which I have reproduced above, and which I am adopting for the treatment of this appeal, starting with issue (1) (supra). The gravemen of the appellant’s argument on this issue is that the learned trial Judge relied heavily on the evidence of D.W.2 which were riddled with contradictions. Learned counsel for the appellants in illustrating the contradictions referred to the evidence-in-chief of D.W.2 which reads:-

“The parcel of land in Exhibit ‘A’ is within the parcel of land in Exhibit ‘C’. There is no difference between the boundaries of land as shown in Exhibit ‘A’ and Exhibit ‘C’.”

Then his evidence under cross-examination reads:-

“There is no WC2367 which appears on Exhibit ‘A’ on Exhibit ‘C’. But there is PBS 385 and PBS 386 on Exhibit ‘C’. Yes the Western boundary on Exhibit ‘A’ is longer that the boundary on Exhibit ‘C’. The bigger length encompasses the smaller length – The Western part of Exhibit ‘A’ is longer-mainly than the longer side of Exhibit ‘C’ is within Exhibit ‘A’. The difference in the length of the Western side of Exhibit ‘A’ and the Western side of Exhibit ‘C’ is 4.29 metres. I do not know where the 4.29 metres which is between PBS 386 and WC 2367 comes from. There is no beacon marked BK in Exhibit ‘C’ marked BK 6888.

The Eastern boundary of Exhibit ‘A’ is longer than the Eastern boundary of Exhibit ‘C’ – by least 11 feet…

Yes, there is an area of land measuring 4.29 metres on the Western side of Exhibit ‘A’, 4.68 metres on the Southern side. About 4 meters on the Eastern side and about 41-42 metres on the Northern side which is within Exhibit ‘A’ but not in Exhibit ‘C’.”

I will now examine the two Exhibits i.e. Exhibits ‘A’ and ‘C’ very closely before delving into the arguments surrounding the exhibits and determine whether or not contradictions do exist. Exhibit ‘A’, is a Deed of Tenancy made on the 5th May, 1980 between Emile Bouari and (1) Buraimoh Oladapo and (2) Lasisi Ajiboye – the appellants. Whereas Exh. ‘C’ is a Deed made on 27th of July, 1933 between Adebesin Folarin, Banjoko da Silva, Eric Olaolu Moore, as executors of late B.C. Vaughan, and Lutfallah Bouari. It is on record that the said Lutfallah Bouari was the father of Emile Bouari who executed Exhibit ‘A’. It is a fact that the mark WC 2367 which appears in Exh. ‘A’ does not appear in Exh. ‘C’, but PBS 385 and PBS 386 which appear in Exhibit ‘A’ does not in Exh. ‘C’ but PBS 385 and PBS 386 which in Exh. ‘A’appear on Exh. ‘C’. I fail to see that the omission of WC 2367 is of any material significance, nor that the difference of 4.29 metres or thereabout on the size of the areas in Exh. ‘A’ and ‘C’ detracts from the fact that the buildings in dispute are within the area in the said Exhibits ‘A’ and ‘C’. I think what really matters is that the properties are within the portion of land that forms a part of Exh. ‘C’. As a matter of fact, the following portion of D.W.2’s evidence in chief butreses the above point.

“PBS is a government pillar (property survey) and it shows that the coordinate at PBS in Exhibit ‘C’ and Exhibit ‘A’ are the same. What BK shows is at the Coordinate of BK is within the property in Exhibit ‘C’.

The above piece of evidence was not debunked in the course of cross-examination, it thus remained good and credible evidence. It is settled law that a piece of evidence given by a witness in a hearing that is not challenged or debunked by the other party is a good and credible evidence which can be accepted as such and relied upon by a trial court before whom such testimony was given. See Nwabuoku v. Ottih (1961) 2 SCNLR 232; Ifeajuna v. Ifeajuna (1997) 7 NWLR (pt.513) 405, and Egbuna v. Egbuna (1989) 2 NWLR (pt.106) 106 at 773. On the heavy weather made of the contradiction in the evidence of D.W.2 by learned counsel for the appellants, I am of the view that this is tantamount to making a mountain out of a mole hill (so to speak), for in my view, whatever contradiction existed (if at all it did) is not material or grave as to affect the credibility of the witness or his evidence. The position of the law is that for any contradiction to have any consequence of affecting or vitiating a proceeding, it must be material as to have occasioned miscarriage of justice. It is not any minor contradiction in the evidence of witnesses that will be fatal to a judgment. See Okpokpo v. Uko (1997) 11 NWLR (Pt.527) 94, and Queen v. Ekanem (1960) 5 FSC 14.

Learned counsel for the respondent has submitted that the lower court did not rely on the evidence of D.W.2 in arriving at its decision on the issue of identity of land. He referred to portions of the judgment that dealt with certain aspects of the case. The excerpt of the judgment that is relevant to the discussion of this point will be found on page 92 of the printed record of proceedings, which I will reproduce below. It reads:-

“Furthermore, the plan attached to Exhibit ‘A’ described a piece of land as Area of part Gbagi IV(12) and IV(13) = 539, 506 sq. metres. Needless to say that it is incumbent on the plaintiff to link the larger area and the features of the larger area known as Gbagi IV 13 with the smaller area – part of which Exhibit ‘A’ claimed to have derived from.

In Onataire v. Onokpasa (1984) 12 SC 19 at 106 the Supreme Court held inter alia that evidence of the features that marked out the boundaries must be given to entitle the plaintiffs to the declaration they seek. ‘It is my view that it is not sufficient to produce a survey plan of an area without linking it with the larger area of which the smaller area is only a part. The smaller area must be related to the whole and evidence of acts of ownership must also be adduced’ per Coker J.S.C. at p. 106.

In any event, as far as the identity of the land in dispute is concerned the evidence of D.W.2, is uncontroverted and incontrovertible. As can be seen from the above excerpt of the judgment, the learned trial Judge considered and relied on other aspects of the case that required proof and which the appellants failed to establish. In other words, the appellants failed to discharge the onus placed on them by the law to prove the essential ingredients of his claim. It is towards this end that learned counsel for the respondents further contended that the lower court did not rely on the evidence of D.W.2 alone in reaching its decision that the appellants have not proved their claim, and under the principle of blue pencil Rule the appeal is liable to summary dismissal. He placed reliance on the case of Onifade v. Olayiwola (1990) 7 NWLR (Pt.161) 130. I agree. The position of the law is that in civil cases the standard of proof is on the preponderance of evidence and the balance of probability and this concept can not be over-emphasised. See Elias v. Omo-Bare (1982) 5 SC 25, Woluchem v. Gudi (1981) 5 SC 29, and Odulaja v. Haddad (1973) 11 SC 357. I refuse to subscribe to the submission of learned counsel that but for the evidence of D.W.2 which the learned trial Judge relied heavily and solely upon in coming to his conclusion the case would have been decided otherwise. As I have pointed out above the learned trial Judge properly appraised other pieces of evidence, on which he relied upon to dismiss the plaintiffs/appellant’s case. I do not see that he has relied more heavily than was necessary on the evidence of D.W.2, for he had an overview of the whole case i.e. the appellants and respondents, to wit the evidence adduced by the appellants to prove their case. That the appellants did not prove the identity of the land upon which layed the buildings in dispute, which was essential, in view of the dispute, is not an understatement. See Elias v. Omo-Bare (1982) 5 SC 25. In the absence of such evidence of identity by the appellants, the learned Judge had recourse to the evidence of D.W.2. To this end, I cannot fault the learned trial Judge when he said:-

“The greater part of the puzzle in this case seems to have been cleared by the evidence of D.W.2. The witness, Surveyor Olasupo Ariori was made to compare Exhibits ‘A’ and ‘C’ and after relating the categraphis similarities and differences between the two attached plans came to the conclusion that the coordinators of PB5 (property beacon) on Exhibits ‘A’ and ‘C’ are the same which implies that Exhibit’ A’ is within Exhibit ‘C’. This witness went through a lengthy and rigourous cross-examination, nevertheless, he remained professionally consistent.”

In the light of the above discussion and reasoning, I resolve issue (1) in favour of the respondents and so this court will not reverse the findings of the lower court as urged by learned counsel for the appellants. In the circumstance the cases of Ezeoke v. Nwagbo (1988) I NWLR (Pt.72) 616 etc. cited on page (4) of the appellant’s brief of argument will not apply. At any rate, even if there was such heavy reliance on the evidence of D.W.2, it is not every error committed by a lower court that will warrant the success of an appeal. For an error to lead to the reversal of a judgment it must be grave and crucial to the extent that it has occasioned a miscarriage of justice. See Fadlallah v. Arewa iles Ltd, (1997) 8 NWLR (Pt.518) 546; Ayoola v. Adebayo & Ors. (1969) 1 All NLR 159 and Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616. The ground of appeal to which this issue is married to lacks merit, and it is therefore dismissed.

On issue No. (2), learned counsel for the appellants submitted that the failure of the learned trial Judge to make a pronouncement on the validity of Exhibits J and K in the light of the evidence before him and the state of the pleadings was an error of law which occasioned a miscarriage of justice in the circumstances of the case. Learned counsel in his brief of argument reproduced the reliefs sought in their statement of claim, which are already reproduced in the earlier part of this judgment. The respondents in their statement of defence made the following averments:-

9. By deed of legal mortgage dated December 6th, 1968 and registered as No. 41 at page 41 in volume 1056 Lands Registry Ibadan and March 20th, 1963 and registered as No. 48 at page 48 in volume 615 Land Registry, Ibadan Lutfalla Bouari mortgaged the building that comprised in his lease hold interest to the 1st defendant to secure the account of the Trans Atlantic Co Limited and Attorney all the tenants in the buildings to the 1st defendant.

In reply to the statement of defence, the plaintiffs replied thus:-

3. With reference to paragraph 9 of the Statement of Defence, the plaintiffs avers Lutfallah Bouari never mortgaged his property to the 1st defendant. Lutfallah Bouari was not a director of Trans-Atlantic Co. Limited and the power of Attorney dated 5th November, 1982 and registered as No. 52 at page 52 in volume 564 of the register of deeds concerned only personal and not corporate interest.
4. The plaintiffs say that Lutfallah Bouari never executed any deed of legal mortgage in favour of the 1st defendant and Emile Bouari had no authority to do so or to endorse the same.

Learned counsel for the respondents has submitted that the appellants cannot impeach the deeds of legal mortgage Exhibits K and J because they are not parties to the deeds of legal mortgage and from their (relief 1) as endorsed in the Writ of Summons and statement of claim. Their contention is that the deeds of legal mortgage did not cover their own parcel of land and they did not tender in evidence a composite plan showing their own parcel of land covered by deed of legal mortgage. He cited the case of Qnatare v. Qnakpasa (1984) 12 SC 19. I think the following averment in the statement of claim will be of assistance in tackling these arguments. They are:-

20. Mr. Emile Boari has told the plaintiffs that he has not authorised any bank or anyone to sell the plaintiffs property and that the plaintiffs property was not mortgaged by him to 1st defendant.

It is on record that learned counsel for the appellants in his address in the lower court made a quick reference to Exhibits J and K, asserting that Emile Bouari the Mortgagor of the land in dispute had no right to mortgage the property, an act that resulted in the making of Exhibits J and K. A careful perusal of paragraph (20) of the statement of claim and the said relief (1) already reproduced (supra) shows a complete denial of the existence of the mortgage of the land or buildings thereon. In support of their paragraph (9) (supra) the respondents called D.W.1. an official of the 1st respondent who gave the following evidence and tendered Exh. J. and K:-

” …Trans Atlantic Company Limited is one of our customers. The account of Trans Atlantic is in debit to the tune of about 7 million Naira with the 1st defendant’s Bank. The account was secured with properties situated at No. 30, Oba Adebimpe Street and 80, Lebanon Street Gbagi, Ibadan. The Legal Mortgage was created as a result of overdraft facility we gave to Trans Atlantic Company Limited. The legal mortgage originated from Luftalla Bouari Luftalla Bouari became seised of the said properties by a grant from the Olubadan in Council in 1933 and 1953.”

I would like to relate the above piece of evidence with that of Edward Bouari, one of the heirs of Luftallah Bouari. He was P.W.1 and gave evidence under examination in chief that although his father who owned the land leased to the appellants was not a director of Trans Atlantic Company Ltd. he (P.W.) was a shareholder and a Director of Trans Atlantic company Ltd. Under cross examination, he also admitted that his late brother Emile Bouari was a director/shareholder, and in fact the founder of Trans Atlantic Company Ltd. A careful consideration of the above reproduced evidence and the evidence of D.W.1 reveals that there is a semblance between the two evidence in as far as the existence of Trans Atlantic Company, and the interest of the Bouari family in it is concerned. The company thus existed and the Bouari family was very much a part of it. A link between the two has therefore been established. It is also instructive to note at this juncture that it was the said Emile Bouari who was the founder of the said Trans Atlantic Company Ltd. who leased the land that is in dispute to the appellants as is evidenced by Exhibit ‘A’. Again, there is a correlation between the company and the land in dispute. Another piece of evidence that has helped to reinforce the respondent’s case is that of P.W.1, which was elicited under cross-examination on page 34 of the printed record of proceedings which reads-

“I had seen the auction notice pasted on the plaintiff’s property in 1992. And I phoned my late brother overseas – who told me that all these years he had mortgaged the property to Bank of the North without anyone knowing,”

Now, I will examine Exhibit ‘J’, the legal mortgage between Lutfallah Bouari and the 1st respondent. Exh. ‘J’ made on 20/3/63 and given as security states:-

“Whereas by a lease dated the 6th day of July, 1953 made between Igbintade Akanni the Olubadan of Ibadan for himself and on behalf of the Chiefs and people of Ibadan (hereinafter called the Lessor) of the one part and the Borrower of the other part and registered as No.40 at page 40 in volume 55 of the Lands Registry Ibadan (hereinafter referred to as the lease) the hereditament is described in the schedule hereto and intended to be hereby mortgaged (hereinafter referred to as the lease), the said hereditament described in the schedule hereto and intended to be hereby mortgaged (hereinafter referred to as ‘the said hereditaments’) were demised to the Borrower for the term of Ninety (90) years from the 1st day of July, 1952 .

2. In further pursuance of the said agreement and in consideration of the premises, the Borrower as BENEFICIAL OWNER and with the consent of the lessor hereby assigns unto the Bank ALL THAT the said hereditaments TO HOLD the same unto and to the use of the Bank and its assigns for the residue now unexpired of the term of years created by the lease. PROVIDED ALWAYS that if all the moneys therein before convenanted to be paid shall be paid accordingly, the said hereditaments and premises hereby mortgaged shall at the request and cost of the Borrower or the persons deriving title under him be duly re-assigned to the borrower or as he or they shall direct…

The schedule above referred to:

ALL THAT piece or parcel of land together with the buildings erected thereon situate at Gbagi IV (12) Ibadan in the Ibadan Province Western Nigeria which is more particularly described and delineated with its dimensions and abuttals on the plan attached to lease dated 27th day of July, 1933 and registered as No. 36 at page 36 in volume 353 of the Register of Deeds in the office at Lagos (now at Ibadan) and thereon coloured pink…”

The description of the property in the above schedule is the same in Exh. ‘K’. It is also to be noted that the land described above was merged with another land known as Gbagi IV (13) and according to the content of Exh. ‘A’ a part of Gbagi IV (12), mentioned in Exhibits ‘J’ and ‘K’ and a part of Gbagi IV (13) was leased to the appellants by Emile Bouari. The indenture dated 17/1/66 (mentioned in Exh. A) wherein parcel of land Gbagi IV(13) was demised to Lutfallah Bouari is not in evidence, even though attempt was made to admit it in evidence but it was rejected. However, as though to cause some confusion the following clause was drafted into Exhibit ‘A’. It reads:-

“AND WHEREAS the Landlord has merged the said parcel of land known as Gbagi (12) and Gbagi IV(13) into one parcel of land and has agreed to grant a sublease of part thereof to the Tenants upon the terms and conditions hereinafter.

Now, this deed witnesseth as follows:

1. In consideration of the rent herein after reserved and of the covenants and conditions of the part of the Tenants to be paid, observed and performed, the Landlord as Attorney for the said Lutfallah Bouari hereby demises unto the Tenant all that parcel of land being part of Gbagi IV(12) and Gbagi IV(13) of the Ibadan City layout along New Court Road, Ibadan …”

Before I further proceed with this issue I would like to make a comment on the Gbagi IV (12) and Gbagi IV(13), which according to the above reproduced clause is along New Court Road, which in my own understanding looks like the whole parcel of land in Exh. ‘A’ that forms part of the land in Exh ‘C.’ A close observation of Exhibit ‘A’ and ‘C’ shows that Animashaun’s property abutts the whole parcel of land in Exh. ‘A’, and with the same property abutting the same land to a certain extent in Exh. ‘C’ and with a gap between it and Lebanon Street (Gbagi Street) in Exh. ‘A’. The buildings in ‘dispute that are on the land in question are within Exh. ‘C’ and close to the New Court Roadside of it. This is confirmed by one of the appellants himself, who testified that their shops are opposite New Court Road, and Oba Adebimpe Street. In fact, the P.W.3 further testified thus:-

“There are 48 shops in the place. The shops are contained in 2 buildings which extended to New Court Road.”

I find it difficult to reconcile this piece of evidence with the position of the shops in Exh. ‘A’ vis-a-viz the distance between the marked shops and New Court Road. There is definitely a fairly wide gap between the position of the shops and Court Road. The building plan Exh. ‘F’ confirms the above evidence of P.W.3.

I think there is need to further examine Exh. ‘J’, the legal mortgage. The said mortgage, even though said to be between Lutfalla Bouari and the Bank of the North, was signed by Emile Bouari. It was executed thus:-

“Signed sealed and delivered by Emile Bouari the lawful Attorney for the within named Lutfallah Bouari by virtue of his power of Attorney dated the 3rd day of November, 1962 and registered as No. 56 at page 56 in volume 564 of the Land Registry Ibadan in the presence of:-”

The power of attorney was admitted in evidence as Exhibit ‘D’ by counsel for the respondents through P.W.1 under cross-examination. The counsel for the respondents contended in the lower court that there was no relief in the lower court by the Bouari family that Emile Bouari has acted ultra vires in respect of the power of Attorney. In his address, in the lower court, learned counsel for the appellants contended thus,

“Whereas Emile Bouari could sublease to the plaintiff using Exh. ‘D’ he could not use it in respect of Exhibits ‘J’ and ‘K’.

Learned trial Judge evaluated the evidence and reproduced averments in the reply to the statement of defence already reproduced above in this judgment, and upon a good consideration of both counsel’s address on the action of Emile Bouari in respect of Exhibit ‘D’ held as follows:-

“I hold in agreement with the learned counsel for the defendants that there is no need to make findings on this issue because there is no declaration or relief of the plaintiff tied to it.”

This holding is based upon the premise of the issue of whether or not he was competent to pronounce on the validity of the legal mortgage Exhibits ‘J’ and ‘K’. I fail to see that the supra finding is in error, when one actually looks at the appellant’s statement of claim and even the reply to the statement of defence at close range. As a matter of fact, when one considers the pleadings, against the backdrop of the fact that their case was that the Bouari family neither through Lutfallah, the original owner of the land nor Emile Bouari (his agent) mortgaged the property, one would be of the conviction that it cannot lie in their mouth to now change their tune and say that Emile Bouari acted ultra vires in mortgaging the property, and thus ask for a finding on the validity of the legal mortgages – Exhibits ‘J’ and ‘K’. The settled law is that a party cannot approbate and reprobate i.e. he cannot blow hot and cold at the same time. See Ude v. Nwara (1993) 2 NWLR (pt.278) 638 at 662-663 paras. F-C).

I am not unmindful of the fact that they had to make a detour after hearing the evidence of P.W.1 under cross-examination on the mortgage, already reproduced supra. In the light of the above discussions, and since I have not faulted the finding of the trial Judge on his omission to make a pronouncement on the validity of Exhibits ‘J’ and ‘K’ the following authorities cited in the appellant’s brief of argument are of any assistance. They are Udeze v. Chidebe (1990) 1 NWLR (supra), Metal Construction (W.A.) Ltd. v. Migliore (1975) 6-9 SC 163 and Union Bank of Nig. Ltd. v. Ozigi (1994) 3 SC No 42. In the light of the above discussions, the answer to the (supra) issue is in the negative and so grounds of appeal Nos (3) and (4) of the Grounds of appeal to which the issue is married have no merit and are hereby dismissed.

The last issue is, whether the judgment is not against the weight of evidence. Learned counsel of the appellants did not canvass any argument in respect of this issue but merely relied on the arguments in respect of the above issues. It therefore follows that there is nothing to offer in respect of this issue, apart from the submissions above. Having resolved issues (1) and (2) (supra) in favour of the respondents, this third issue is also resolved in favour of the respondents. I can hardly call the issue an issue, for it is a reproduced ground of the omnibus ground of appeal. In fact, I am inclined to strike out the issue, as no argument has been canvassed to cover it and it should be deemed abandoned. See Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257. The related ground of appeal is also struck out.

In the final analysis, the appeal fails in its entirety and it is hereby dismissed.

The judgment of the lower court is affirmed. The cost of N3,000.00 is awarded to the respondents against the appellants.

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Other Citations: (2000)LCN/0716(CA)