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MR. G. OLAJIDE ASHCROFT Vs HERITAGE BANKING COMPANY LIMITED & ORS

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MR. G. OLAJIDE ASHCROFT Vs HERITAGE BANKING COMPANY LIMITED & ORS

Legalpedia Electronic Citation: [2018] legalpedia CA/L/774/2007

Areas Of Law:
Appeal, Court, Judgement And Order, Law Of Evidence, Mortgage, Practice And Procedure, Words And Phrases

Summary Of Facts:
In 1985, the Appellant and the 1st Respondent, then known as Societe General Bank Limited, executed a Deed of Mortgage in respect of a loan facility for the sum of N100, 000.00. The 1st Respondent disbursed the sum of N75, 000.00 and the tile documents of the Appellant’s building at Plot 34 Block 4, Oworonshoki, Bariga, Lagos, were deposited by the Appellant as security for the loan.

Upon the Appellant’s inability to meet with other prerequisites for the loan, the 1st Respondent failed to disburse the balance of the loan to the Appellant and consequently demanded the principal and interest on the loan disbursed from the Appellant. The Appellant repaid the sum of N15, 000 leaving the balance of N60, 000.00 plus interest on the said principal. The 1st Respondent subsequently commissioned the 2nd Respondent to carry out a public auction of the Appellant’s property used as security for the loan.

However, the 2nd Respondent rather than publish a notice of public auction of property situate at No. 16 Alabi Owoyemi Street, Oworonshoki, Bariga, Lagos published the said notice at No. 14 Alabi Owoyemi Street, Oworonshoki, Bariga Lagos and without carrying out any public auction on the said properties, the 2nd Respondent on behalf of the 1st Respondent purportedly sold the Appellant’s building to the 3rd Respondent, who eventually registered the sale in the Lands Registry of Lagos State.

The Appellant as Claimant hence instituted an action in the High Court of Lagos State, seeking a declaration that the power of sale of the 1st Defendant/Respondent under the Deed of Legal Mortgage has not arisen at the time of the purported sale and that the purported sale was in bad faith, wrongful, unlawful and void among other reliefs.

The 3rd Respondent as 3rd Defendant filed his statement of defence and counter claim against the Appellant seeking a declaration that he is the rightful owner of the property known as Plot 34, Block 4, Oworonshoki Scheme, Bariga Lagos, and an order of perpetual injunction restraining the Claimant/Appellant either by himself or his privies and agents from entering upon the property or in any was interfering with the use and enjoyment of the property by the 3rd Defendant or person claiming through him. The trial court dismissed the claims of the Appellant as Claimant while some of the counter claims of the 3rd Respondent as Defendant/Counter Claimant against the Appellant were granted. Irked by the judgement of the trial court, the Appellant has appealed to this court.

Held: 
Appeal Allowed

Issues For Determination:

Ø  Whether the court below properly evaluated the parties’ evidence and correctly reached the finding that the sale by public auction of the Appellant’s property was regular?

 

Ø  Whether having regard to the provisions of Section 21(2) of the Conveyancing and Law of Property Act, 1881, the sale by auction of the Appellant’s property to the 3rd Respondent was howsoever vitiated by non-compliance with Section 19(1) of the Sales by Auction Law of Lagos State?

Rationes:

RE-EVALUATION OF EVIDENCE – WHEN CAN AN APPELLATE COURT INTERVENE TO RE-EVALUATE EVIDENCE IN ARRIVING AT A CONCLUSION IN AN APPEAL BEFORE IT?
“The circumstances in which an appellate court can intervene varies from case to case and would ultimately depend on the peculiar facts of each case and therefore, such circumstances cannot be laid down with any tinge of exhaustive finality by the courts though some useful guides have been set down over the years by the courts. An appellate court will readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions drawn by the court below or a trial court on the proved facts before it do not flow from such proved facts or runs contrary to such prove facts and was thus perverse. See Obajimi V. Adeobi (2008) 3 NWLR (Pt 1075) 2 $p. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @p. 992; Mint Lodge Ltd. V. Ngei (2010) AIIFWLR (Pt. 506) 1806 @pp, 1820 -1821.” PER B. A. GEORGEWILL, J.C.A.

 

FACTS -FACTS ADMITTED BY PARTIES NEED NO FURTHER PROOF
“It is also the law that facts admitted by either party of the averments of the other party also need no further proof. It is equally well accepted that facts in a pleading of one party which are not specifically traversed but are generally or evasively traversed are also deemed as having been admitted by the other party. It is basic but a fundamental principle of law that parties are bound by their pleadings. See Hashidu V. Goje 2 EPR P.790 @p. 836. See also Oversea Construction Company Nig. Ltd. V. Creek Enterprises Nig. Ltd (1985) 3 NWLR (PT.407)40; Adesoji Aderemi V. Adedire (1966) NMLR 398; Nnameka Emegokwe V. James Okadigbo (1973) 4 SC 113; Woluchem v. Gudt (1981) 5SC 291; Imoha V. NIPOST (2001) 8 NWLR (Pt. 822) 308; Akpapuna & Ors V. Obi Nzeka & Ors, (1983) 2 SCNLR1, (1983) 7 SC 1; Omoboriowo v. Ajasin EPR (Vol. 3) 488 ® p. 511; Mama v. Akpabio (2008)17 NWLR (Pt. 1116) 225 @p. 309.” PER B. A. GEORGEWILL, J.C.A

 

PROOF – HE WHO ASSERTS MUST PROVE
My lords, it is settled law that it is he who asserts that must prove.” PER B. A. GEORGEWILL, J.C.A

 

EVALUATION OF EVIDENCE – DUTY OF COURTS IN THE EVALUATION OF EVIDENCE
“Now, the evaluation of relevant and material evidence and ascription of probative value to such evidence, both oral and documentary, are the primary functions, within the domain, of the trial court, which it is to be remembered and constantly kept in the mind of the appellate court, saw, heard and assessed the witnesses. It is to be noted that in carrying out evaluation of evidence, a very tough turf for the courts, a court is not to merely review or restate the evidence but is expected to critically appraise it in the light of the facts in issue, what is relevant, admissible and what weight to be attached. In other words, evaluation of evidence is much more critical, crucial and tasking than mere review of evidence. See Mogaji K Odofin ((1980) 4 SC (Reprint) 53; Ojokolo V. Alamu (1998) 9 NWLR (PL 565) 225; Guardian Newspaper Ltd V. Rev. AJeh (2011) 10 NWLR (Pt. 1256) 574 ®p. 582; Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458.” PER B. A. GEORGEWILL, J.C.A

 

DEED OF MORTGAGE – WHETHER THE CONTENTS OF A DEED OF MORTGAGE CAN BE GIVEN OR MODIFIED OR CONTRADICTED OR VARIED BY ORAL OR PAROL EVIDENCE
“Now, the terms and conditions of the Deed of Legal Mortgaged executed between the Appellant and the 1st Respondent over the Appellant’s property are as stated in Exhibit D2. In law the contents of a Deed of Mortgage cannot be given or modified or contradicted or varied by oral or parol evidence as the Deed being the primary evidence would have to speak for itself once properly pleaded and tendered and received in evidence before the court below. See Etim & Ors V. Ekpe & Anor (1983) NSCC 86 @ pp. 95-96; AG Oyo State & Anor V. Fairlakes Hotels Ltd. & Anor (1989) NWLR (Pt. 121) 255.” PER B. A. GEORGEWILL, J.C.A

 

SALE OF PROPERTY BY PUBLIC AUCTION – PROCEDURE FOR SALE OF PROPERTY BY PUBLIC AUCTION – SECTION 19(1) OF THE SALE BY AUCTION LAW 1973
“My lords, the law on sale of property by public auction seems fairly settled. By the provision of Section 19 (1) of the Sale by Auction Law 1973, it is provided thus:

 

19(1) No sale by auction of any land shall take place until after at least seven days public notice thereof has been given in the city of Lagos state, and also at the place of Intended sale. The notice shall be made not only by printed or written document, but also by beat of drum or such other method intelligible to uneducated persons as may be prescribed, or if not prescribed as the State Commissioner may direct, and shall state the name and place of the residence of the seller.” –PER B. A. GEORGEWILL, J.C.A

 

SALE OF PROPERTY BY AUCTION SALE – CONDITIONS FOR VALIDITY OF SALE OF PROPERTY BY AUCTION SALE
“On conditions for validity of sale of property by auction sale, this Court in Omidiji V. FMB (2001) 13 NWLR (Pt. 731) 646®p. 668 had opined inter alia thus:
For the purpose of supporting the validity of such auction sale, the burden is on the person exercising the right of sale or whose duty it is to ensure adequate notice to prove that the provision of as to notice was duly observed. Accordingly the responsibility placed upon an auctioneer who conducts a sale of property Is very strict, and this includes giving appropriate and sufficient notice of the Intended sale….the employment of an auctioneer to sell any property by public auction does not authorize him (auctioneer) in case the public auction proves abortive, to sell the property by private contract.…” –  PER B. A. GEORGEWILL, J.C.A

 

“SALE BY AUCTION”- MEANING OF “SALE BY AUCTION”
“Now, sale by auction is process by which goods, chattel or properties are sold by Auctioneers in the public by bidding and made over to the highest bidders. The provisions of Section 19(1) of the Sale by Auction Law of Lagos State are very clear and unambiguous and must therefore, be given their literal meaning without importing into the Statutes things not intended by the legislature, See FRN V. Osahon (2006) NWLR (PT. 973) @pp. 69 – 70, where the Supreme Court per Onnoghen, JSC (as he then was, now CJN) had opined inter alia thus:

 

Where the provisions of a statute are clear and unambiguous, effect should be given to them as such unless it would be absurd to do so having regard to the nature and circumstances of the case.
See also Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Awolowo V. Shagari (1979)6-9 S.C 51, Rabiu V. State (1980) 8-11 S.C. 130, (1981) 2 NCLR 293, A — G Bendel State v. A — G Federation (1981) 10 S.C 1, Owen a Bank v. N.S.E. Ltd. (1997) 8 NWLR (PI 515) 1, Adejumo v. Mil. Governor of Lagos State (1972) 3 S.C 45.” PER B. A. GEORGEWILL, J.C.A

 

INTERPRETATION OF “SHALL” IN SECTION 19 (1) OF THE SALE BY AUCTION LAW OF LAGOS STATE 1973 – WHETHER THE USE OF “SHALL” IN SECTION 19(1) OF THE SALE BY AUCTION LAW OF LAGOS STATE 1973, DENOTES MANDATORY REQUIREMENT
“It is my view, therefore, that the use of the word ‘shall’ in Section 19 (1) of the Sale by Auction Law of Lagos State 1973 renders the condition as to the prescribed ‘ at least seven days’ period as a very essential requirement of the law and thus not merely put in there for the fun of it. It is mandatory since in law the word ‘shall’ when used in an enactment denotes mandatory requirement. It must be complied with to render such an act or process competent. It neither allows nor permits short cuts. In Ugwu & Anor. V. Ararume & Anor. (2007) 6 SC (Pt. 1) 88, the Supreme Court in interpreting the meaning of the word “shall” when used in a Statute, had pronounced emphatically thus:

 

“Generally, when the word “shall” is used in a Statute, it is not permissive. It is mandatory. The word “shall” in Its ordinary meaning is a word of command, which is normally given a compulsory meaning because it is Intended to denote obligation”
See also Oraekwe V. Chukwuma (2012) 1 NWLR (Pt. 1389159 @p. 200 Abiodun v. A.G. Federation (2007) 15 NWLR (Pt. 1057) 359 @ p. 396″. PER B. A. GEORGEWILL, J.C.A

 

‘AT LEAST SEVEN DAYS’ NOTICE”- MEANING OF THE PHRASE ‘AT LEASTSEVEN DAYS’ NOTICE’
“The law also talks of ‘at least seven days’ before the sale by public auction shall take place. The onus of showing that this required notice was given is clearly on the 1st and 2nd Respondents, who issued the said notice, and not on the Appellant. It must be fully complied with since it is duty imposed by the Law. What then in least is the meaning of ‘at least seven days’ notice’? In law, it denotes a minimum of seven clear days. See Ishola V. Ajiboye (1995) 1 NWLR (PT.352) 50 @ p. 58where the Supreme Court per Bello CJN, had stated inter alia thus:

 

In its ordinary meaning the word “least” inter alia, means “a minimum” and the phrase “at least’1 means “qualifying an Expression of an amount or number, (so much or many) at any rate, if not more.” –  PER B. A. GEORGEWILL, J.C.A

PERVERSE DECISION- WHEN IS A DECISION PERVERSE?

“Having held that the public auction sale of the Appellant’s property on 23/10/1992 was irregular, it follows that the finding of the court below that the public auction sale of the Appellant’s mortgaged property was regular because the Appellant failed to prove that it was irregular was wrong and in grave error on the part of the court below, In my finding the court below failed to properly evaluate the evidence of the public notice of the auction as to the requirement of the law as to the period of ‘at least 7 days’ and therefore ; fell into a grave error, rendering the findings perverse and thus liable to be set aside, I hereby so set it aside without much ado! In Sogbamu V. Odunalya (2013) All FWLR (Pt. 700) 1247®p. 1307it was emphatically pronounced thus:

 

A decision is said to be perverse when it is speculative not being supported by evidence or reached as a result of either wrong consideration of evidence or wrong application of a principle of substantive law or procedural law and an appellate court can interfere with a decision of the trial court that is perverse.
See also Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 ® p. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 ®p. 992; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806 @pp, 1820-1821.” PER B. A. GEORGEWILL, J.C.A

 

PUBLIC AUCTION OF MORTGAGED PROPERTY – WHETHER AN IRREGULARITY OR NON COMPLIANCE WITH SECTION 19 (1) OF THE SALE BY AUCTION LAW OF LAGOS STATE 1973, CAN VOID A PUBLIC AUCTION OF MORTGAGED PROPERTY
“Now, on the pleadings, evidence led and the position of the law is the public auction of the Appellant’s mortgaged property by the 1st Respondent to the 3rd Respondent, though irregular, also void and if not void is there any remedy in law available to the Appellant? Having had a calm scrutiny of the pleadings and evidence as led by the parties and the conduct of the 3rd Respondent all through the transactions leading to the auction, sale to him of the Appellant’s property on 23/10/1992, and bearing in mind the succinct position of the law that a public auction of mortgaged property is not void merely for irregularity or non compliance with Section 19 (1) of the Auction law on the part of the mortgagee in conducting the sale without any evidence of fraud or collusion or bad faith, I hold that the auction sale of the Appellant’s mortgaged property to the 3rd Respondent by the 1st and 2nd Respondents on 23/10/1992, though irregular, was not void and thus remained valid. The court below was therefore, right when it held that the auction sale to the 3rd Respondent was valid and unimpeachable since the Appellant failed to prove any fraud or collusion or mala – fide against the 3rd Respondent.” PER B. A. GEORGEWILL, J.C.A

 

BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE- WHO IS A BONA FIDE PURCHASER FOR VALUE WITHOUT NOTICE?
“Who then is in law a bona fide purchaser for value and without notice? He is “one who buy’s something for value without notice of another’s claim to the item or of any defects in the seller’s title, one who has in good faith paid valuable consideration for property without notice of prior adverse claims. He is also termed good-faith purchaser; purchaser in good faith; innocent purchaser,” See the Blacks’ Law Dictionary, 7th Edition @p. 1249.” PER B. A. GEORGEWILL, J.C.A

 

SALE OF MORTGAGED PROPERTY BY AUCTION – FACTORS TO BE CONSIDERED IN VALIDATING A SALE OF MORTGAGED PROPERTY BY AUCTION
“In law therefore, in a sale of a mortgaged property by auction, if found to be irregular but without any fraud or collusion or mala fide as in the instant appeal, the mortgagor’s right lies essentially in damages against the mortgagee, Thus, the title of the purchaser to the property cannot be impeached by the irregularity in the auction sale. It is for this reason the court is very wary to set aside an auction sale where the circumstances show to the satisfaction of the court the following factors, namely: (a) that the Mortgagor did mortgaged the property in dispute to the Mortgagee; (b) that the loan or any installment has become payable; (c) that there is notice of demand of payment of loan from the Mortgagee to the Mortgagor; (d) that the power of sale under the mortgage agreement has arisen; (e) the pre – condition of notice of sale is given to the Mortgagor by the Mortgage or his agent; (f) the power of sale was exercised and the title in the property passed to the purchaser. See Gbadamosi V. Kabo Travels Limited (2000) 8 NWLR (Pt. 668) 243; Oguchi V. F.M.B. (Nig.) Ltd. (1990) 6 NWLR (Pt. 156) 330; Bank of the North V. Alhaji Mumuni Muri (1998) 2 NWLR (Pt. 536)153; Akande V. F.B.N (2004) 8 NWLR (Pt. 875)318.” PER B. A. GEORGEWILL, J.C.A

 

DAMAGES – REMEDY AVAILABLE TO A MORTGAGOR UPON AN IRREGULAR SALE OF A MORTGAGED PROPERTY BY PUBLIC AUCTION WITHOUT FRAUD
“The law as I have made copious reference to earlier in this judgment is that such a Mortgagor whose mortgaged property was irregularly sold by public auction but without any fraud or collusion or mala fide is still entitled to damages against the Mortgagee.” PER B. A. GEORGEWILL, J.C.A

 

EXPERT- WHETHER EXPERTS CAN BE REGARDED AS ‘PERSONS INTERESTED’
“My lords, the position of the law as regards documents made by persons who are merely expert with no personal or real pecuniary interest in the’ outcome of pending or anticipated litigation has been well settled in our law. Let me commence with the views of this court on this issue. In Apena V. Aiyelobi (1989) 1 NWLR (Pt.95) 85 ® p, 94this court had opined inter alia thus:

 

A Surveyor who prepares a survey plan in respect of land in dispute in a pending case and tenders it in evidence is not a ‘person Interested’ within the context of Section 90(3) of the Evidence Act. A Surveyor or any expert in any field of knowledge who makes a statement in any form in respect of a matter in court at any stage of the proceedings is generally regarded as a person who has no temptation to depart from the truth as he sees it from his professional expertise. There must be a real likelihood of bias before a person making a statement can be said to be a ‘person interested.

See also the decision of the apex court in Anyaebosi V. R, T. Briscoe Nig Ltd (1987) 6 SC 15 and see generally the following decisions, namely: Gbadamosl V. Kabo Travels Ltd (2000) 8 NWLR (Pt. 668) 243; HMS Ltd V. First Bank of Nig. Ltd(1991) 1 NWLR (Pt. 167) 290; Beamans Ltd V. Metropolitan Police District Receiver (1961) 1NLR 634; Muhammed V. Kayode (1997) 11 NWLR (Pt. 530) 584..” PER B. A. GEORGEWILL, J.C.A

 

FINDINGS OF A TRIAL COURT – STATUS OF THE FINDINGS OF A TRIAL COURT NOT APPEALED AGAINST
“It is the law that in the absence of any appeal against a finding of the trial court, such a finding is valid and remains rightly or regrettably if wrongly, the position as between the parties and therefore binding on them. I therefore, would let this aspect of this case rest in peace there being no appeal on it and shall no more on it! See Uwazurike V. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503. See alsoAbubakar V. Bebeji Oil & Allied Products Ltd (2007) 8 NWLR (Pt. 1066) 319.” PER B. A. GEORGEWILL, J.C.A

 

GENERAL DAMAGES – GENERAL DAMAGES NEED NOT BE PLEADED OR PROVED
“In law general damages need not be pleaded and or proved as it is presumed by law and its assessment is the duty of the Court and it refers to those damages, which flows naturally from the wrongful act of the Defendant. They are such as the court may give when the judge cannot point out any measure upon which they are to be measured except the opinion and judgment of a reasonable man. They are presumed to flow from the act complained of and proved and in appropriate and deserving cases shall be awarded to assuage the injury done to the successful Claimant against the Defendant, See Ijebu Ode Local Government V. Adedeji Balogun & Co (1991) 1 NWLR(Pt. 166) 36. See also Bello V. AG Oyo State (1986) 5 NWLR (Pt. 45) 828} UBN Ltd. V. Odusote Book Stores Ltd (1995) 9 NWLR (Pt. 421) 558.” PER B. A. GEORGEWILL, J.C.A

 

Statutes Referred To:

Conveyancing and Law of Property Act, 1881
Court of Appeal Act 2004
Evidence Act 2004
Interpretation Act, Cap 123, LFN, 2004
Sale by Auction Law, Laws of Lagos State 1973 Volume 6 Cap 126 Lagos state Laws 1973

 

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