Legalpedia Citation: (2011) Legalpedia (SC) 12191

In the Supreme Court of Nigeria

HOLDEN AT ABUJA

Thu Dec 15, 2011

Suit Number: SC. 350A/2002

CORAM

DAHIRU MUSDAPHER , JUSTICE, SUPREME COURT

PARTIES

MR SEGUN BABATUNDE APPELLANTS

BANK OF THE NORTH LTDA.T. AYANTUNDEALHAJA BAMIDELE ADEPATE RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/Appellant mortgaged the house of six flats to the United Bank for Africa, llorin for a loan of N70, 000.00. The bank auctioned and sold the property of the Plaintiff. Apparently distressed by the sale of the building with six flats, the Plaintiff/Appellant sued the Respondents claiming various declaratory and injunctive reliefs. In the considered judgment of the trial court, the learned trial judge found for the Plaintiff/Appellant. The three Defendants/Respondents were dissatisfied with the judgment of the trial court and appealed against same to the lower court. The Court of Appeal allowed the appeal and accordingly set aside the judgment of the trial court. Dissatisfied, the Plaintiff/ Appellant filed this appeal.

HELD

Appeal dismissed.

ISSUES

Whether the sale of the appellant’s property by the 2nd respondent to the 3rd respondent on the instructions of the 1st respondent was null and void having failed to comply with the mandatory provisions of the Auctioneers Law cap 10 Laws of the Northern Nigeria as applicable to Kwara state. Whether having regard to the provisions of the Delegation of Powers (Ministry of Lands, Survey and (Environment) Notice No 8 of 1975 of Kwara State) the approval by the Commissioner for Lands dated 25/10/76 in relation to Exhibit 6 dated 27/10/76 was valid. Whether Exhibit 7 dated the 18th day of September 1978 is null and void and of no effect whatsoever as the consent of the appropriate authority was not obtained before the execution of same. Whether having regard to the Deed of Legal Mortgage (Exhibit 1) executed between the appellant and the United Bank for Africa Ltd, the sale of the appellant’s property by the 1st and 2nd respondents was valid.

RATIONES DECIDENDI

A COURT MUST RESPECT THE SANCTITY OF CONTRACT BY PARTIES.

“A court of law must always respect the sanctity of the agreements reached by parties. It must not make a contract for them or rewrite the one they have already made themselves” JSC PARTIES ARE BOUND BY THEIR CONTRACT.
“Written contract agreement freely entered into by the parties is binding on them. A court of law is equally bound by the terms of any written contract entered into by the parties.” PER ADEKEYE JSC ALLEGATION OF FRAUD IN CIVIL CASES; HOW PROVED
“Under Nigeria Law of Evidence – any allegation of fraud must be proved beyond reasonable doubt”

NATURE OF A MORTGAGEE

“A mortgagee – the 1st respondent in this appeal – is not a trustee of a power f sale for the mortgagor. It is a power given to him for his own benefit enabling him to protect the mortgage debt.”

EXERCISE OF MORTGAGEE’S POWER OF SALE

“If a mortgagee exercises his power of sale bona fide for the purpose of realizing his debt and without collusion with the purchaser, the court will not interfere even though the sale be very disadvantageous to the mortgagor, unless the price is so low as in itself to be evidence of fraud.”

MORTGAGE FOR A MORTGAGEE TO PASS A GOOD TITLE OF THE MORTGAGED PROPERTY THE POWER OF SALE MUST HAVE ARISEN AND BECOME EXERCISABLE

“Before a mortgagee can pass a good title to a purchaser free from the equity of redemption – the right to exercise the power of sale under a mortgage must have arisen, the mortgage debt must have fallen due. Any purchaser who bought a property sold by a legal mortgagee in exercise of his power of sale under a mortgage upon a default in repayment of a loan by the mortgagor is not a trespasser. Hence, once the precondition of notice of sale is given to the mortgagor by the mortgagee or his agent, preceded by a notice of demand of repayment of money lent to the mortgagor and the mortgagee proceeds to sell in good faith, subsequent purchaser in good faith gets a good title and a court will not intervene in the sale only because the sale did not meet with the satisfaction of the mortgagor.”

INTERPRETATION OF CONTENTS OF A CONTRACT – THE COURT MUST GIVE EFFECT TO THE INTENTIONS OF THE PARTIES

“The Court of law is bound to give effect to the intention of the parties when they entered into a contract or agreement well spelt out in the document they had executed and it is not within the mandate of a court of law to go outside it with the importation of a law with fresh conditions before what the parties had agreed to would be implemented. Going that contrary way would in effect be a re-writing of a contract for parties by the Court which would be interloping into what did not concern it. See Owoniboys Technical Services Ltd. V. U.B.N. (2003) 15 NWLR (Pt. 844) 545; UBN Ltd. V. Ozigi (1994) 3 NWLR (Pt. 333) 385; Dalek (Nig.) v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402.”

ALLEGATION OF CRIME IN CIVIL PROCEEDINGS – ALLEGATION OF CRIME IN CIVIL PROCEEDINGS MUST BE SPECIFICALLY PLEADED

“It is indeed well settled that any allegation of crime in a civil proceeding must be pleaded and the particulars of such crime must be expressly pleaded.”

CASES CITED

Dalek v. OMPADEC (2007) 7 NWLR (pt. 1033) 402|Nneji v. Zakhem Con [2006]12 NWLR (pt. 994) 297|ACB ltd v. Ihekwoaba [2003] 16 NWLR (pt. 846) 249

STATUTES REFERRED TO

None.|

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