MR. Gabriel Idowu Olawoye V. Alhaja K. A. Bello (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the Lagos State High Court Ikeja, delivered by HON. JUSTICE A. L. A. L. BALOGUN on the 25th day of March, 1993.

The appellant dissatisfied with the judgment of the trial Court filed a Notice of Appeal dated 7th day of April, 1993 setting out 5 grounds of appeal.

The brief facts of this appeal are that the Respondent who was Plaintiff at the trial Court approached the Court and by an Amended Statement of Claim sought the following reliefs:

“15.1. A declaration that by virtue of two deeds of Mortgage one dated the 11th day of November, 1977 and registered as No.78 at page 78 in volume 1666 Lagos and the other dated 7th day of February, 1978 and

registered as No. 48 at page 48 in volume 1690 Lagos respectively made between the defendant and Chief E.A. Oyemade and subsequently by virtue of a Public Auction Sale held on 7th day of February, 1984 the Plaintiff is the person entitled to a statutory right of occupancy in or over the building erected thereon situate, lying and being at No. 12 Kadiri Street (formerly numbered 6 Kadiri Street) Agege in the Ikeja Local Government Area of Lagos State which is more particularly described and delineated on Plan No. BD 251 dated 7th June, 1983 and attached to the foot of the Deed of Conveyance dated 13th November, 1975 and registered at No.43 at page 43 in volume 1530 of the Lands Registry in the office in Lagos.

2. An account of all rents and profits collected by the defendant in respect of the said property since 7th day of February, 1984 and payment of same to the Plaintiff.
3. An injunction restraining the Defendant, his agents and/or Servants from further collection of rent in respect of the said property.
4. Possession of the said property”

The Appellant mortgaged the property in question by 2 deeds of Legal Mortgage dated 7th day of February, 1978 and another dated 11th day of November, 1977 both duly registered. The Appellant defaulted in repayment to the financier and upon a Notice of Lender’s intention to exercise his power of sale in the two Deeds of Legal Mortgage, the financier finally instructed an Auctioneer who finally sold the property to the highest bidder (Respondent) and the Appellant (defendant) refused to yield up possession of the property thus the claim at the trial court.

The Respondent (Plaintiff) called 4 witnesses while the Appellant (Defendant) called 2 witnesses. The trial court found for the plaintiff and granted the reliefs sought. The Appellant alleged that the trial court granted unsolicited reliefs numbering 5. This aggrieved the appellant who filed the appeal setting out grounds of appeal in the Notice of Appeal. The Appellant’s brief is dated 12/8/03 filed on 9/9/2003 but deemed filed on 1/6/06 and a reply brief dated 10/11/14 filed on 12/12/14. The Respondents Brief is dated 16/5/11 filed on 25/5/11 but deemed filed on 16/11/2011.

The Appellant in his Appellant’s Brief formulated 5 issues for determination as follows:

1. Whether it was competent for the learned Trial Judge to have granted to the Plaintiff/Respondent reliefs not claimed nor sought by her in paragraph 15 of the 3rd Amended Statement of Claim.
2. Whether the Plaintiff/Respondent acquired any interest in the property the subject matter of the action in view of the major conflict between Exhibits P16 and D5.
3. Whether the lower court property (sic) evaluated the evidence adduced by the parties before arriving at its decision on this matter.
4. Whether a Mortgaged property in favour of a financier/money lender could be sold without the consent of the Governor of Lagos State first had and obtained as stipulated in Sub Sections 22 and 26 of the LAND USE ACT 1978.
5. Whether the Plaintiff/Respondent is protected by S.21 of the Conveyance Act 1881 due to the fact that Sub Sections 19 & 20 of Sale by Auction Law Cap 126 Laws of Lagos State of Nigeria 1973 were not complied with by the appointed Auctioneer.

The Respondent adopted the issues formulated by the appellant and the court shall also adopt same as issues for determination in this appeal.

ISSUE ONE:

Whether it was competent for the learned Trial Judge to have granted to the Plaintiff/Respondent Reliefs not claimed nor sought by her in paragraph 15 of the 3rd Amended Statement of Claim.

The Appellant in addressing this issue submitted that the reliefs sought by the Plaintiff are specifically provided at paragraph 15 of the 3rd Amended Statement of Claim which are recited at page 323 – 324 of the records of appeal but that the trial Judge in the judgment granted reliefs not sought for thereby making a case for the Respondent in not just granting what was not sought for but reframing the reliefs by an addition. This, the Appellant contends is beyond the trial Judge’s powers, he relied on:

(1) EKPENYANG & ORS V. EYANG & ORS (1975) 2 SC 77 at 80 – 81