Andrew Nweke Okonkwo V. Cooperative & Commerce Bank (Nigeria) Plc & Ors (2003)
LAWGLOBAL HUB Lead Judgment Report
L. KUTIGI, J.S.C.
In the High Court of Justice holden at Aba, the plaintiff claims against the defendants jointly and severally as follows –
“(a.) A declaration that the defendants are not entitled to sell the plaintiff’s property situate at and called No. 133 Aba-Owerri Road, Aba.
(b.) An order to set aside any purported sale of the said property made by the defendants on the 1st day of February or thereabout as being illegal and a nullity and damages for the wrongful act.
(c.) An order of the Honourable Court for a review of the account of the plaintiff in the 1st defendant bank to determine the amount (if any) outstanding against the plaintiff. “.
(d.) An injunction to restrain the defendants by themselves, their servants or agents from selling or purporting to sell the plaintiff’s aforesaid property.”
Pleadings were ordered, filed and exchanged. These were further amended by leave of court. The 1st and 2nd defendants filed a joint statement of defence while the 3rd defendant filed a separate statement of defence.
At the hearing, the plaintiff gave evidence and called three witnesses. Two witnesses testified on behalf of the 1st defendant, while the 2nd defendant testified for himself. He called no witnesses.
The 3rd defendant also testified but called no witnesses.
The facts may be summarized thus –
The plaintiff (mortgagor) had in 1981 mortgaged his building known as No. 133 Aba-Owerri Road, Aba to the 1st defendant (mortgagee) by virtue of a deed of mortgage (exhibit B in the proceedings) as security for a loan of N60,000.00. The loan was repayable within twelve (12) months.
The plaintiff defaulted in complying with the terms of exhibit B and did not repay the loan for more than six years after the debt became due. Upon continued default by the plaintiff the 1st defendant/Bank sent relevant notices and statements of account to the plaintiff as evidenced by exhibits G, H, H.1 and H.2 in the proceedings. When the 1st defendant first wanted to sell the house in 1982, it was stopped by the payment of N21,000.00 by the plaintiff. Then on 30th January, 1988, the plaintiff saw a publication in the Nigerian Statesman Newspaper whereby the 2nd defendant (auctioneer) had advertised the mortgaged property for sale on behalf of the 1st defendant/Bank. The auction sale was scheduled to take place on Monday 1st February, 1988 at 8.00 a.m. The plaintiff said he was able to raise the sum of N96,000.00 from friends which he took to the 1st defendant in payment of the mortgage debt so as to stop the auction sale but without success. This was denied. His contention also that there was no auction sale because there was no notice to that effect was equally denied. The 1st defendant said in exercise of its power of sale under exhibit B, it gave notice of the intended sale by conspicuously pasting notices on the building and other public places in addition to the publication in the newspaper (exhibit A).
That several people attended the auction sale including the plaintiff, his brother and agent who bidder for the property. The 3rd defendant who also attended the public auction bidder. She was the highest” bidder, and the property was duly sold to her and a deed of assignment executed in her favour as per exhibit K.
At the conclusion of hearing, counsel on both sides addressed the court and in a considered judgment, the learned trial Judge dismissed plaintiff’s claims.
Aggrieved by the judgment of the trial court, the plaintiff appealed to the Court of Appeal holden at Port-Harcourt. In a unanimous judgment, the appeal was dismissed. The plaintiff has now further appealed to this court from the decision of the Court of Appeal.
The parties filed and exchanged briefs of argument which were adopted and relied upon at the hearing of the appeal during which additional oral submissions were made by learned counsel.
In the plaintiff/appellant’s brief, the following issues have been set down for determination in the appeal –
(1.) Having rightly held that the award made by the trial court in favour of the 3rd respondent was without jurisdiction, was the Court of Appeal right to proceed to declare the 3rd respondent the title holder of the rights, title and interest of the unexpired term of lease based on exhibit B
(2) Was the Court of Appeal right to have raised the question of waiver, thereby stating that section 19 of the Auctioneers Law of Former Eastern Nigeria Laws, 1961 Vol. 1 does not apply due to waiver in clause 8 of exhibit B
(3.) Was the Court of Appeal right to hold that exhibits H – H H2, notices dated 15/5/81 and 30/5/85 were valid demand notices in respect of a proposed sale in 1988
(4) Is the decision of the Court of Appeal that there was an auction sale on the 1st February, 1998, correct and sustainable in the light of the pleadings and evidence before that court.
(5) Does the manner in which the Court of Appeal resolve the issue of fraud and lack of good faith on the part of the 1st respondent show an appreciation of the appellant’s complaints before that court.
(6) Was the Court of Appeal right not to have made any findings on issue whether Chief Orji Uzo Kalu was Chairman of the 1st respondent’s Bank at the material time and whether the sale to his mother the 3rd respondent was not against public policy
These issues will be taken one by one.
Issue (1)
The contention here is that the Court of Appeal having rightly held that the so called counter-claim of the 3rd defendant was bad in law and that the award made by the trial court in that regard was made without jurisdiction, the Court of Appeal was wrong when it somersaulted and proceeded to declare the 3rd defendant the title holder of the rights, title and interest of the unexpired term of the lease based on exhibit B (the Deed of Legal Mortgage) between the plaintiff and the 1st defendant.
I say straight away that this contention is baseless. All that the Court of Appeal said on page 281 of the record is this –
“After a cool calm view of the facts there is much force in the contention of the appellant that invalid counterclaim was placed before the court; therefore any award by the learned trial Judge based on it was without jurisdiction. I am in complete agreement with the contention of the appellant so the award made on page 116 of the record of appeal having been made without jurisdiction is struck-out.
Be that as it may, the claim in paragraph 24 of 3rd respondent’s amended statement of defence was unnecessary and superfluous having had a deed of assignment legally and validly executed in her favour she was a title holder of the rights, title and interest of the unexpired term of the lease based on exhibit B.”
By no stretch of imagination can it be said that the Court of Appeal has somersaulted in the above passage of its judgment. The Court of Appeal clearly struck-out the 3rd defendant/respondent’s counter-claim and then proceeded to state the legal consequence flowing from the Deed of Assignment (based on exhibit B) already executed in favour of the 3rd respondent. That is not making an award to the 3rd defendant. The issue therefore fails.
Issues (2), (3) & (4)
“These issues will be taken together. They deal with the main question of whether there was proper notice, public and personal, before the auction sale was conducted in the instant case.
The plaintiff contends that the Court of Appeal erred by holding “. that by virtue of Clause 8 of exhibit B(the Deed of Legal Mortgage), the plaintiff had waived his rights to be given notice of sale by the 1st defendant/bank, when waiver as a special defence was not pleaded and when waiver was raised suo motu by the Court of Appeal and without giving the plaintiff a hearing. He said the Court of Appeal also failed to consider the provisions of Section 19 of the Auctioneers Law of Imo State of Nigeria, a failure that has occasioned a failure of justice. It was also contended that the Court of Appeal erred when it held that exhibit H – H2 constituted sufficient notice of sale by the 1st defendant to the plaintiff when in fact the property was sold 3 years after the notices had expired, the plaintiff was thus denied the opportunity to redeem his property because no fresh notice was served on him. It was further contended that the finding of the Court of Appeal that there was an auction sale was perverse because of material discrepancy in the evidence of witnesses which was never resolved.
It was common ground that the relationship between the plaintiff and the 1st defendant is contractual and governed by exhibit B, the Deed of Legal Mortgage. That being so, extrinsic evidence will generally not be acceptable to vary the terms agreed upon (see for example U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385).
I think the undermentioned clauses or provisions of exhibit B are relevant in the determination of this appeal as a whole
” NOW THIS DEED WITNESSETH AS FOLLOWS:
- ………. THE Borrower hereby covenants with the Bank to repay to the Bank the said sum of N60,000.00 (sixty thousand Naira) …………… on demand or within twelve (12) months from the date the first installment of the overdraft was withdrawn by the Borrower ………………………………..
PROVIDED that failure to pay any installment makes the whole balance outstanding due and payable
- The Borrower hereby further covenants with the Bank as follows –
v. A demand for payment or any other demand or any notice under this security may be made or given by …..any officer of the Bank by letter served personally upon the Borrower or sent by post addressed to the Borrower at the address as given in this security or at the last known place of abode or business of the Borrower….
- The Bank may at any time after the day appointed for the payment of this loan and without any further consent of the Borrower sell the mortgaged property or any part or parts thereof either together or in parcels and either by public auction or private contract….
- The Borrower hereby expressly waives his rights to be given notice by the Bank under section 20 of the Convenyancing Act, 1881 or under any law or custom in operation in any part of the Federal Republic of Nigeria before the sale of the mortgaged property.
(Italicising supplied by me)
The learned trial Judge had found in his judgment on pages 109 110 that the following facts were not in dispute (and there was no appeal against the findings) –
“(a.)That the plaintiff obtained a loan in 1981 from the 1st defendant which was reserved for repayment on property, formerly known as 85 Aba-Owerri Road, but now No. 133 Aba-Owerri Road Aba.
(b.) That the loan was made refundable within 12 months (that is 1982).
(c.) That in 1982 the 1st defendant wanted to sell the mortgaged property due to the plaintiff’s default in repaying the loan.
(d.) That 1st defendant later changed its mind when plaintiff paid some money.
(e.) “That between 1982 and 1988 (that is six years), plaintiff was still owing the mortgage debt to the 1st defendant.
(f.) That as at 1st February, 1988, the mortgage debt had not been repaid in full.
(g.) That on 1st February, 1988 the property was sold to the 3rd defendant.”
Later on in the judgment he also found as a fact (and I agree with him) that –
“(h) The demand notices exhibits H, H. 1 and H.2 dated 15th May, 1981, 21st March, 1984 and 30th May, 1985 had satisfied the requirement of notice of intention to sell the mortgaged property; and
(i) The sale took place at an auction sale in which many people gathered and participated in bidding along with the 3rd defendant.”
It is trite law that persons of full age and sound mind are bound by any agreement lawfully entered into by them. Clause 7 of exhibit B above gave the 1st defendant the right to sell the mortgaged property if the plaintiff failed to repay the loan on the due date without I any further consent of the plaintiff. By Clause 8 of exhibit B, the plaintiff also waived his rights to be given any notice under any statute or customary law. The Court of Appeal was thus plainly giving effect to the agreement entered into by the plaintiff himself and nothing else when it said the plaintiff had waived his right to any notice of sale under section 19 of the Auctioneers Law of Eastern Nigeria. The 1st defendant/Bank was thus not bound under the lease (exhibit B) to have given the plaintiff any further notice of the proposed sale after the demand notices exhibits H, H1 and H2.
The plaintiff also contended in paragraph 21(c) of the amended statement of claim that “the auction sale did not comply or conform with Auction Law of Eastern Nigeria 1963, and shall therefore contend at the trial that the purported sale of the said property is invalid in law and therefore of no effect.”
But the plaintiff in his pleadings has failed to state the facts relied upon which render the auction sale not to have complied or conformed with the law. In other words the plaintiff did not state the
facts which took the sale outside any statutory provision or provisions since a party cannot set out the conclusion of law in his pleadings (see Liadi Giwa v.Bisiriyu Erinmilokun (1961) 1 SCNLR 337; (1961) All NLR 294; Re Vandervell’s Trusts (No.2) (1974) 3 All ER 205; Ayoola & Ors. v. Folawiyo & Ors. (1942) 8 WACA 39). It is also trite law that evidence given on matters not pleaded goes to no issue and ought to be disregarded by the court (see Makinde v. Akinwale (2000) 2 NWLR (Pt. 645) 435. It is sufficient to conclude here that both the trial High Court and the Court of Appeal found that the 1st defendant in exercise of its power of sale under exhibit B gave notice of the intended sale by conspicuously pasting notices on the building and other public places in addition to the publication in the newspaper (exhibit A).
These issues are therefore resolved ,against the plaintiff.
Issues (5) & (6)
These issues are founded on allegation of fraud or lack of good faith on the part of the 1st defendant and alleged collusion and or complicity between the Chairman of the 1st defendant and the 3rd defendant.
The simple answer here is that the plaintiff did not in his pleadings specifically plead fraud or collusion and even where he alluded to them, he furnished no particulars. He again led no evidence whatsoever to prove any of the allegations. For example in his evidence he told the court that the 3rd defendant who purchased the property was the mother of the Chairman of the 1st defendant. Was that enough to prove collusion and or fraud between the 1st defendant and the 3rd defendant without more Certainly not! The plaintiff’s story was disbelieved by the trial court as well as the Court of Appeal. It will serve no useful purpose here repeating him all over again. There was no obligation on the part of the Court of Appeal to have made a finding on one Chief Orji Uzo Kalu who was not a party to the case. As I said since fraud was not specifically pleaded. and no evidence led on it, it is a non-issue in the case. There was thus nothing to be resolved by the Court of Appeal.
These issues also fail.
Before I conclude I want to stress the fact that this is a case in which the evidence revealed that the plaintiff and his brother were present at the venue of the sale and indeed participated in the bidding. The plaintiff who allegedly had N96,000.00 with him, bidded and offered only N70,000.00 for his property. Clearly therefore he was not interested in redeeming his property. When the property was sold for N110,000.00 he said it was under valued, or that there was fraud and or collusion etc. The plaintiff clearly in my view has no case.
All the issues having been resolved against the plaintiff, the appeal must fail. It is accordingly dismissed with N10,000.00 costs to each set of the defendants/respondents.
SC.58/1998
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