UNITED BANK FOR AFRICA PLC V MUSA & ANOR

UNITED BANK FOR AFRICA PLC V MUSA & ANOR


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT JOS

ON WEDNESDAY, 25TH APRIL, 2018


Appeal No: CA/J/85/2014
CITATION:

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

UNITED BANK FOR AFRICA PLC

(APPELLANT)

AND

ALHAJI ISHAKU MUSA
ALHAJI YAKUBU USMAN

(RESPONDENTS)


PRONOUNCEMENTS


A. APPEAL
1. Grounds of Appeal – Where grounds of appeal and issues for determination must be formulated

“Reading through the records of appeal, particularly the pleadings of parties in the lower Court and the judgment appealed against, this Court agrees with the Counsel to the first Respondent that the third issue for determination raised and argued by Counsel to the Appellant in this appeal is not one arising from the judgment appealed against. A judgment of Court is like any other document and it is settled law that in interpreting a document, the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani Vs Bosi (2006) 11 NWLR (Pt. 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Nigerian Army Vs Aminun-Kano (2010) 5 NWLR (Pt. 1188) 429. It is also trite that the ratio decedendi in a case represents the legal reasoning or principle or ground upon which a case is decided; it is the pronouncement of the court on the issue joined that can, and does embody the resolution of the court. Any observation or comment by the court which, though made in pronouncing the resolution, is not necessarily involved in the resolution or essential to it is obiter dictum – UTC Nig. Ltd Vs Pamotei (1989) 2 NWLR (Pt 103) 244, Ebere Vs Onyenge (2000) 2 NWLR (Pt. 643) 62, Ibrahim Vs Fulani (2010) 17 NWLR (Pt. 1222) 241, Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404.
Now, reading pleadings of the parties and the judgment of the lower Court as a whole, it is obvious that the parties did not join issues on whether the first Respondent had repaid his entire indebtedness arising from the overdraft facility that he obtained from the Appellant and it was his case was that he had only repaid part of it and that the lower Court found that out of the sum of N3.86 Million demanded by the Appellant as the indebtedness as at 2005, the first Respondent only made payments totaling N1.75 Million. It is clear that the statement of the lower Court that by paying the sum of N1.75 Million, the first Respondent had repaid the overdraft facility can only be a passing comment in view of the above finding. Reading through the judgment, the basis for the grant of the claims of the first Respondent was not whether or not he had repaid the overdraft facility, but that the property sold by the Appellant was not the property used as collateral for the overdraft facility obtained. The lower Court said thus:

“It is proved by the plaintiff that it was his residential house that he mortgaged and even if he failed to repay the overdraft, it will be the residential house mortgaged that would be auctioned and not the Filling Station.”
The records show that it was upon this finding that the lower Court granted the declaratory relief sought by the first Respondent. It is elementary that an appeal and the issues formulated for determination in an appeal must be directed at the raison d’entre, the ratio decedendi, of the judgment appealed against, and not at every passing comment made by the Court in the judgment – Pharma Deko Plc Vs NSITFMB (2011) 5 NWLR (Pt. 1241) 431, Peterside Vs Wabara (2011) 6 NWLR (Pt. 1243) 328, Onafowokan Vs Wema Bank Plc (2011) 12 NWLR (Pt. 1260) 24, Estisione H. (Nig) Ltd Vs Osun State Government (2012) 14 NWLR (Pt 1321) 540. The third issue for determination formulated by the Appellant, being directed at a passing comment of the lower Court, is incompetent and will not be countenanced by this Court.”Per ABIRU, J.C.A. read in context

B. CONSTITUTIONAL LAW
2. Right to Fair Hearing – Instances when a party cannot claim to have been denied fair hearing

Circumstance where a party cannot be heard to complain of being denied the right to fair hearing

“The concept of fair hearing adumbrated under the first issue for determination is the same as fair trial and it entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice, audi alteram partem and nemo judex in causa sua – Emerah Vs Chiekwe (1996) 7 NWLR (Pt. 462) 536, Okeke vs Nwokoye (1999) 13 NWLR (Pt. 635) 495.

Fair hearing postulates that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule -Otapo Vs Sunmonu (1987) 2 NWLR (Pt. 58) 587, Gakus Vs Jos International Breweries Ltd (1991) 6 NWLR (Pt. 199) 614, Olumesan Vs Ogundepo (1996) 2 NWLR (Pt. 433) 628.

This right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground – Nwokoro Vs Onuma (1990) 3 NWLR (Pt. 136) 22 at 35, Iwuoha Vs Okoroike (1996) 2 NWLR (Pt. 429) 231, Olufeagba Vs Abdur-Raheem (2009) 18 NWLR (Pt. 1173) 384. It is perhaps to underscore the inviolability of this right of a party to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Hence, fair hearing is not only a common law right but also a constitutional right – Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt 622) 290, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt. 1187) 348, Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175.
The right to fair hearing does not however exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt. 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt. 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt. 1307) 45. The question whether a party has been afforded an opportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case and the test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial – Action Congress of Nigeria Vs Lamido (2012) 8 NWLR (Pt. 1303) 560 and Eastern Breweries Plc, Awo Omamma Vs Nwokoro (2012) 14 NWLR (Pt 1321) 488. The complaint of the Appellant in the instant case is that the lower Court denied it the right to file its final written address and that it was entitled to this right despite the fact that it did not call evidence. Now, address of counsel forms part of a party’s case and failure to hear the address of a party, however overwhelming the evidence on one side, taints the trial because in many cases, it is after the addresses that the Court finds that the law on the issue fought is not in favour of the evidence. The totality of a case heard entails not only the evidence but also the addresses of counsel. Thus, the Courts have held that the denial of a party’s Counsel of the opportunity of addressing the Court, where established and proved, is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing – Obodo Vs Olomu (1987) 3 NWLR (Pt. 59) 111, Salami Vs Odogun (1991) 2 NWLR (Pt. 173) 291 at 301, Oyekan Vs Akinrinwa (1996) 7 NWLR (Pt. 459) 128, First Bank of Nigeria Plc Vs Ejikeme (199 ) 7 NWLR (Pt 462) 597, Duba Vs Saleh (1997) 1 NWLR (Pt.488) 502, Eagle Construction Ltd Vs Onibugadu (1998) 1 NWLR (Pt. 533) 231, Kalu Vs State (2011) 4 NWLR (Pt 1238) 429, Kubau Vs Rilwanu (2014) 4 NWLR (Pt. 1397) 284. The right is available to a party even where it fails to lead evidence and it is not foreclosed by failure of a party to file pleadings – Ironbar Vs Federal Mortgage Finance (2009) 15 NWLR (Pt. 1165) 506.

The question that arises is whether the Appellant was denied its right of addressing the lower Court? From the case made out by the Appellant itself, it refused and/or declined to attend Court and to participate in the trial proceedings despite notification of all the dates to his Counsel. It was not in contest that its Counsel was on notice of the proceedings of the 8th of July, 2013 and was aware that at the conclusion of the proceedings on that day, the lower Court adjourned the matter to the 8th of August, 2013 for adoption of addresses of the parties without specifying the order of filing of addresses. The Court did not sit on the 8th of August, 2013 and the matter was further adjourned to the 11th of September, 2013 for adoption of addresses and Counsel to the Appellant was notified of the adjourned date. As at the 11th of September, 2013, the first Respondent, as the plaintiff, and the Appellant and the second Respondent, as first and second defendants respectively, had not filed any written address. Counsel to the first Respondent and Counsel to the second Respondent were present in Court on that day while Counsel to the Appellant was absent and there is nothing on the records of appeal showing that Counsel to the Appellant communicated with the lower Court to explain his absence.
?Counsel to the first Respondent and Counsel to the second Respondent informed the Court that they were waiving their right of address and urged the lower Court to adjourn the matter for judgment and the lower Court granted their prayers and adjourn the matter till the 23rd of October, 2013 for judgment. The lower Court did not make any order foreclosing or waiving the Appellant’s right of final address on the 11th of September, 2013 and its Counsel still did not file a written address before the date fixed for judgment. The lower Court delivered its judgment on the 23rd of October, 2013. Counsel to the first Respondent stated in his brief of arguments that Counsel to the Appellant attended the lower Court on the date of judgment, and this fact was not disputed by the Appellant, and it was not the case of the Appellant that his Counsel requested the lower Court for time on that day to file a written address in the matter and his request was refused by the lower Court.
Counsel to the Appellant had between the 8th of July, 2013 and the 23rd of October, 2013, a period of one hundred and seven days, to file a written address if he so desired. Or if we take it that the time for the Appellant to file a written address was to start to count after the first and second Respondents had filed their addresses because it did not call evidence, as contended by its Counsel, its Counsel still had between the 11th of September, 2013 when the first and second Respondent waived their right of address and 23rd of October, 2013, a period of forty two days to file a written address and he failed to do so. The Rules of Court gives a party only twenty-one days to file a written address if he so desires. It is only an unreasonable person with a skewed mentality and sense of reasoning that will say that the Appellant was denied its right to file a written address in these circumstances – Eze Vs Federal Republic of Nigeria (2017) 15 NWLR (Pt 1589) 433.
Counsel to the Appellant seemed to suggest that parties cannot waive their right of final addresses. Nothing can be farther from the truth. It is trite law that an individual may renounce or waive a law made for his special benefit or protection. This is encapsulated in the maxim quilibet potest renunciare juri pro se introducio -Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt. 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt. 1375) 488, Ediru Vs Federal Road Safety Commission (2016) 4 NWLR (Pt 1502) 209. In Ariori Vs Elemo (1983) 1 SCNLR 1, Eso, JSC put the point thus: “When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such a right. The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice. The extent to which he has forgone his right would be a matter of fact and each case will depend on its peculiar facts. … A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.” The assertion of the Appellant that it was denied its right to final written address is not only lame but completely unfounded, very frivolous and absolutely untrue. The Appellant had every opportunity to present a final written address, if it so desired. It obviously chose not to do so. There was no violation of its right to fair hearing.”Per ABIRU, J.C.A. read in context

C. EVIDENCE
3. Burden of Proof – Effect of failure of the Defendant to prove his case

Whether failure of defendant to prove his case alleviates the burden on plaintiff

“On the second issue for determination, the records of appeal show that the Appellant did not lead any evidence at the trial in support the averments in its pleadings. It is trite that pleadings do not amount and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them – Oguejiofor Vs Siemens Ltd (2008) 2 NWLR (Pt 1071) 283 and Nika Fishing Co. Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings – Dingyadi Vs Wamako (2008) 17 NWLR (Pt. 1116) 395. Where a defendant fails to prove the averments in his pleadings, he did not take the necessary steps to join issues with the claimant in respect of the averments in the statement of claim and the statement of claim remains unchallenged and the oral evidence of the claimant is deemed sufficient proof of his case – Asika Vs Atuanya (2008) 17 NWLR (Pt. 1117) 484. Also, the effect of the Appellant’s failure to call evidence in defense of the claims against it at the trial is that it is presumed to have admitted the case made against him by the first Respondent -Okoebor Vs Police Council (2003) 12 NWLR (Pt 834) 444, Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt. 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316. The law however is that this does not, on its own, translate to automatic victory for the first Respondent against the Appellant. This is because a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claimant to prove his claim – Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt. 960) 160 and Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt. 1057) 218. This is particularly more so, as in the instant case, where the first Respondent sought for a declaratory relief because declaratory reliefs are not granted either based on admissions or default of defence – Akaninwo Vs Nsirim (2008) 9 NWLR (Pt. 1093) 439 and Olubodun Vs Lawal (2008) 17 NWLR (Pt. 1115) 1. The law is that in view of the failure of the Appellant to lead evidence, the onus on the first Respondent against the Appellant would be discharged on minimal evidence as there is no evidence to put on the other side of the imaginary scale – Adewuyi Vs Odukwe (2005) 14 NWLR (Pt. 945) 473. The lower Court still has a duty to evaluate the evidence led by the first Respondent to see whether it met the minimal requirements necessary for him to succeed – Neka B.B.B. Manufacturing Co. Ltd Vs African Continental Bank Ltd (2004) 2 NWLR (Pt. 858) 521, Okoye Vs Center Point Merchant Bank Ltd (2008) All FWLR (Pt. 441) 810, Francis Vs Citec International Estate Ltd (2010) 16 NWLR (Pt. 1219) 243, Ahmed Vs Central Bank of Nigeria (2013) 11 NWLR (Pt. 1365) 352.”Per ABIRU, J.C.A. read in context

D. DOCUMENT INTERPRETATION
4. Construction of Documents/Instruments – Fundamental rule of interpretation of instrument, document or agreement

Cardinal rule of interpretation of instrument, document or agreement

“It is settled law documents must be construed and interpreted in the light of the circumstances in which they are drawn up – Ogbonna Vs The Attorney General of Imo State (1992) 1 NWLR (Pt. 220) 647. It is also settled law that where the terms of a contract are contained in a series of documents, the contents of the documents must be interpreted together and harmoniously so that the various parts of the documents are not brought into conflict to their natural meaning – Royal Exchange Assurance (Nig) Ltd Vs Aswani Textile Industries Ltd (1991) 2 NWLR (Pt. 176) 639, Central Bank of Nigeria Vs Igwillo (2007) 14 NWLR (Pt. 1054) 393, Agbareh Vs Mimra (2008) 2 NWLR (Pt. 1071) 378.”Per BIRU, J.C.A read in context

E. MORTGAGE
5. Power of Sale – Effect of the failure of a mortgagee to seek a foreclosure order before exercising his power of sale

“…Additionally, this Court deems it pertinent to make a point, though the issue was not raised by the parties. From the entire evidence led before the lower Court, no deed of legal mortgage was executed by the first Respondent and the Appellant over either the Petrol Filling Station or even over the residential building behind the Petrol Filling Station in actualization of the terms of the overdraft facility granted to the first Respondent by Exhibit A. None of the witnesses testified on the existence of such a deed of legal mortgage and none was tendered in evidence. Thus, the security held by the Appellant as collateral for the overdraft facility was in reality an agreement to create a legal mortgage and the law is that such an
agreement creates only an equitable mortgage in favour of the Appellant – Kadiri Vs Olusoga (19 6) SCNLR 150, British and French Bank Vs Akande (1961) WNLR 277 and Union Bank of Nigeria Plc Vs Fajebe Foods Ltd (1998) 6 NWLR (Pt. ) 380.

It is settled that though an equitable mortgage gives the equitable mortgagee an immediate power of sale, foreclosure and all other remedies open to a legal mortgagee, once the equitable mortgagor defaults, an equitable mortgagee must seek an order of Court to foreclose the mortgage before he can proceed to exercise the powers – Ogundiani Vs Araba (1978) 6-7 SC 55, Okuneye Vs First Bank of Nigeria Plc (1996) 6 NWLR (Pt. 457) 749, Bank of the North Ltd Vs Akintoye (1999) 12 NWLR (Pt. 631) 392, Federal Mortgage Bank of Nigeria Vs Adesokan (2000) 11 NWLR (Pt. 677) 108, Union Bank of Nigeria Plc Vs Taylor (2005) 15 NWLR (Pt. 947) 27. In other words, before the Appellant could exercise a power of sale over the subject of the mortgage, be it the Petrol Filling Station or the residential building, it was incumbent on it to first approach the trial Court to obtain an order to foreclose the equitable mortgage. There was no evidence before the lower Court that the Appellant obtained such an order before proceeding to sell Petrol Filling Station. This omission to obtain the order also rendered the sale of the Petrol Filling Station wrongful and illegal.”Per ABIRU, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY OLUMUYIWA ABIRU, J.C.A.


This appeal is against the judgment of the High Court of Borno State delivered by Honorable Justice A. G. Kwajafa in Suit No M/133/2006 on the 23rd of October, 2013. The action in the lower Court was commenced by the first Respondent, as plaintiff, against the Appellant and the second Respondent, as first and second defendants respectively. The claims of the first Respondent were for a declaration that the sale of his Petrol Filling Station situate at Brikuthi Ward, Damaturu Road, Biu by the Appellant to the second Respondent was null and void, damages in the sum of N1 Million and perpetual injunction restraining the Appellant and second Respondent from interfering with his use of the Petrol Filling Station.

The case of the first Respondent on the pleadings was that he obtained an overdraft facility from the Appellant in the sum of N1.5 Million and that the terms of the overdraft facility were contained in a letter of offer which he accepted on the 7th of May, 2001. It was his case that the Appellant wrote to him sometimes in 2005 stating that his total indebtedness on the overdraft was N3, 863,759.40 and consequent on which he made payments to the tune of N1.75 Million and applied to the Appellant for an interest waiver and that the Appellant invited him for a meeting to discuss an amicable settlement of the outstanding sum. It was his case that he attended the proposed meeting but was informed by the officers of the Appellant that the meeting could not hold and that they would contact him and that he thereafter travelled out of the State and returned on the 12th of September, 2006 to find Police Officers at his Petrol Filling Station threatening to throw out his workmen.

It was the case of the first Respondent that, upon enquiries, he was informed by the Area Commander, Police Command Biu that the Appellant had sold the Petrol Filing Station by auction to the second Respondent and that he was to vacate the premises. It was his case that he never used the Petrol Filling Station as collateral for the overdraft facility, but rather he used his property consisting of a four bedroom flat and an eleven bedroom apartment with appurtenances covered by Certificate of Occupancy No BO/20808 which is situated behind the Petrol Filling Station and that it was the Valuation Report of this property carried out sometime in July 1997 that he submitted to the Appellant. It was his case that the Appellant did not serve him with a notice of demand and/or informed him of his indebtedness, after the several payments he made, before selling his Petrol Filling Station.

The case of the Appellant on the pleadings was that by a letter dated the 19th of January, 2000, it offered the first Respondent a revolving credit facility of N1.5 Million on certain conditions which were accepted by the first Respondent. It was its case that by a deed of legal mortgage dated the 17th of October, 1994 executed between them and which was duly registered as No 846 at Page 846 in Volume 11 (Miscellaneous) at the Land Registry Office in Maiduguri, the first Respondent had earlier mortgaged his property covered by Biu Local Government Customary Certificate of Occupancy No 1109/89 in its favour and that the first Respondent also deposited the original of Borno State Certificate of Occupancy No BO/20808 with it. It was its case that by a letter dated the 7th of May, 2001, it offered the first Respondent an overdraft facility of N1.5 Million on conditions that were accepted by the first Respondent and that the first Respondent fully utilized the facility.

It was the case of the Appellant that it, at various times and by its officers and agents and by various means including letters and periodic statements of account, notified the first Respondent on the state of his indebtedness, made demands for payment of the debt and notified him of its intention to sell the mortgaged property. It was its case that as at 31st of March, 2005 the first Respondent’s indebtedness stood at N3,863,759.40 and that the first Respondent was notified of this position and he acknowledged the indebtedness through various means. It was its case that it published a notice of auction of the mortgaged property in the Nigerian Tribune Newspaper of 18th of April, 2006 and that the notice of auction was also posted in all nooks and crannies of Biu and that as at 27th of April, 6, the indebtedness of the first Respondent stood at N4,857,512.74. It was its case that the mortgaged property was sold by public auction on the 27th of April, 2006 to one Alhaji Kabiru AbdulRahman as the highest bidder for the sum of N8.3 Million and that it invited the first Respondent to come and collect a bank cheque of the excess sum, after deducting the indebtedness and that the first Respondent decline collecting the bank cheque.

The second Respondent denied the case of the first Respondent on the pleadings and it was his case that Alhaji Kabiru AbdulRahman transferred the Petrol Filling Station to him after purchasing it by public auction from the Appellant and that he made enquiries before making the purchase and was shown all the necessary documents and notices, including the advert in the Nigerian Tribune Newspaper of the 18th of April, 2006, the letters of demand, the acknowledgement of the indebtedness by the first Respondent, original certificate of occupancy No BO/20808 and a valuation report of the Petrol Filling Station.

The matter proceeded to trial and in the course of which the first Respondent called three witnesses and tendered documents in proof of his case and the second Respondent called one witness in proof of his defence. Counsel to the Appellant did not personally attend Court for the trial and his brief was held by Counsel to the second Respondent. The Appellant led no evidence at the trial in proof of the facts alleged on its pleadings. At the conclusion of the case of the second Respondent on the 8th of July, 2013, the matter was adjourned to the 8th of August, 2013 for adoption of the written addresses of Counsel to the parties. The records of appeal show that the matter did not come up on the 8th of August, 2013 but on the 11th of September, 2013 and on which day neither the Appellant nor his Counsel was in Court. Counsel to the first Respondent noted that neither the Counsel to the Appellant nor the Counsel to the second Respondent had filed a written address to enable him respond thereto and he applied that the matter be adjourned for judgment since the parties had shown no intention to file final written addresses. The records show that the Counsel to the second Respondent conceded to the request and urged the lower Court to adjourn the matter for judgment. The lower Court granted the request of Counsel and it adjourned the matter to the 23rd of October, 2013 for judgment. The lower Court thereafter entered judgment granting the claims of the first Respondent, save for the general damages asked for.

The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal containing seven grounds of appeal against it and the notice of appeal was filed on the 6th of December, 2013. This Court deemed the records of appeal as properly compiled and transmitted on the 3rd of June, 2015. The Appellant, with leave of the Court, amended his notice of appeal and the amended notice of appeal containing nine grounds of appeal was deemed properly filed on the 25th of April, 2017. In arguing the appeal before this Court, Counsel to the Appellant filed an amended brief of arguments dated the 25th of October, 2016 on the 13th of March, 2017 and which was deemed properly filed on the 25th of April, 2017. In his response, Counsel to the first Respondent filed a brief of arguments dated the 2nd of May, 2017 on the 3rd of May, 2017. The second Respondent did not file a brief of arguments and did not thus contest the appeal. At the hearing of the appeal, Counsel to the Appellant and Counsel to the first Respondent relied on and adopted the arguments in their respective briefs of arguments as their oral submissions in the appeal.

Counsel to the Appellant formulated four issues for determination in the appeal and these were:

i. Whether the Appellant’s fundamental right to fair hearing was breached when it was denied an opportunity to file a final written address before the delivery of judgment.

ii. Whether the learned trial Judge was right to have held that the first Respondent had proved his case on a preponderance of evidence entitling him to the reliefs sought.

iii. Whether the learned trial Judge was right to have held that the first Respondent had repaid the overdraft facility granted him by the Appellant.

iv. Whether the judgment of the lower Court is against the weight of evidence.

In arguing the first issue for determination, Counsel stated that it was settled law that the right of final address after the conclusion of trial is a constitutional right that cannot lightly be denied any party to a proceedings and that the denial of the right amounts to a breach of a party’s right to fair hearing and which can nullify the entire proceedings and he referred to the case of Sigbenu Vs Imafidon (2009) 13 NWLR (Pt 1158) 231. Counsel stated that, based on the erroneous argument of Counsel to the first Respondent that the Appellant who did not call evidence was not entitled to a right of address, the lower Court adjourned the matter for judgment after Counsel to the first Respondent and Counsel to the second Respondent waived their respective right of address. Counsel stated that the argument of Counsel to the first Respondent was not backed any statute or law and that the position is that by provisions of the Rules of the High Court of Borno State, a party who did not call evidence was entitled to a right of address and the Rules require that the party who calls evidence was to first address the Court before the party who did not call evidence and he referred to the case ofIronbar Vs FMF (2009) 15 NWLR (Pt. 1165) 506.

Counsel stated that by the provisions of the Rules of Court, the second Respondent who called evidence was to first address the Court, followed by the first Respondent and then the Appellant and that the confusion was caused by the lower Court when it adjourned the matter of the 8th of July, 2013 for adoption of written addresses without specifying the order of filing the addresses. Counsel stated further that by the provisions of the Rules of Court, which used the word “shall”, a party to a proceeding has not the option of waiving his right of address and that the filing of written address is mandatory cannot be waived and that, in any case, the Appellant did not agree to waive its right of address. Counsel stated that the lower Court ought to have adjourned the matter on the 11th of September, 2013, after the Counsel to the first Respondent and Counsel to the second Respondent waived their right of address, to enable the Appellant exercise its right of address. ounsel stated that the lower Court was in error in adjourning the matter for judgment without allowing the Appellant to exercise its right of address and that the judgment must of necessity be a nullity and he referred to the case of Onwuka Kalu Vs The State (2011) 4 NWLR (Pt 1238) 429. Counsel urged the Court to resolve the issue in favour of the Appellant.

On the second issue for determination, Counsel stated that the principal relief sought by the first Respondent in his claims was for a declaratory order that the sale of his Petrol Filling Station by the Appellant to the second Respondent was null and void and that it was predicated on two legs – namely (i) that it was his residential property that was used as collateral for the overdraft and not the Petrol Filling Station and (ii) that the Appellant sold the Petrol Filling Station to the second Respondent. Counsel stated that the first Respondent had the onus of proving his case on the preponderance of evidence and he is required to prove his case by credible evidence on the strength of his case and he cannot rely on the weakness of the defence and that the onus does not shift until the first Respondent has established the fundamentals of his claims and he referred to the cases of Odum Vs Uganden (2009) 9 NWLR (Pt. 1146) 281 and Oladipo Vs Moba LGA (2010) 5 NWLR (Pt. 1186) 117. Counsel stated that it is settled law that the best evidence is documentary evidence and that the contents of a document cannot be varied by oral evidence and he referred to Section 128 (1) of the Evidence Act 2011 and the case of Ogundepo Vs Olumesan (2011) 18 NWLR (Pt. 1278) 54.

Counsel stated that the first Respondent pleaded and led evidence on the contract document between him and the Appellant in respect of the credit facility and that the said document was tendered as Exhibit A and that it was written in the document, under the sub-heading “Security” that the first Respondent agreed to secure the overdraft facility by a “legal mortgage over your filling station located at Biu Borno State …”. Counsel stated that the contents of the document cannot be varied by oral evidence and that the first Respondent has not denied the document and that it was too late for the first Respondent to attempt to dodge his obligations under the contract that was validly and voluntarily entered into by him. Counsel stated that the first Respondent had the responsibility to tender the title documents for the Petrol Filling Station as well as the deed of legal mortgage to show that it was not the Petrol Filling Station that he used as collateral and that the first Respondent failed to tender any of these documents but rather produced in evidence as Exhibit F a valuation report of the residential property that was prepared in 1997 before Exhibit A was entered into in 2001.

Counsel stated further that the assertion of the first Respondent that the Appellant sold the Petrol Filling Station to the second Respondent was incorrect and that the evidence led by the second Respondent was that the Petrol Filing Station was sold to one Alhaji Kabiru AbdulRahman and not directly to the second Respondent. Counsel stated that the only evidence led by the Appellant on the assertion of the sale of the Petrol Filling Station to the second Respondent was what he was told by the Police Area Commander and that this was hearsay evidence and that the first Respondent did not call the Police Area Commander as a witness. Counsel stated that the decision of the lower Court to shift the onus on the Appellant to lead evidence showing that it was the Petrol Filling Station that was used as a collateral for the facility has no basis in law since the first Respondent failed woefully to discharge the burden of proof on him to warrant an answer from the Appellant. Counsel stated that the first Respondent failed to prove his case on a preponderance of evidence so as to be entitled to the reliefs sought and he urged the Court to resolve the issue for determination in favour of the Appellant.

In arguing the third issue for determination, Counsel stated that nowhere in the pleadings did the first Respondent plead or assert that he had fully repaid the credit facility he obtained from the Appellant. Counsel stated that the case of the first Respondent, both on the pleadings and in the evidence, was that after he was informed by the Appellant that his indebtedness had risen to N3,963,759.40, he made three payments totaling N1.75 Million and that the payment tellers tendered as Exhibits B, C and D confirmed the payments and that this left an outstanding sum of N2,113,759.40 on the indebtedness. Counsel stated that in fact the Appellant admitted under cross examination that he was still indebted to the Appellant and that as such the finding of the lower Court that the first Respondent “had repaid the overdraft facility” was clearly made in error and it is liable to be set aside. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.

In arguing the fourth issue for determination, Counsel repeated his arguments under the second and third issues for determination and stated that the judgment of the lower Court in favour of the first Respondent cannot be sustained.

Counsel concluded his arguments by urging the Court to find merits in the appeal, allow same, set aside the judgment of the lower Court, enter judgment dismissing the appeal and striking out the claims of the first Respondent before the lower Court.

Counsel to the first Respondent adopted the four issues for determination formulated by Counsel to the Appellant. In arguing the first issue for determination, Counsel stated that where a party to a suit has been accorded a reasonable opportunity of being heard and fails or neglects to attend the sitting of the Court or boycotts same without any satisfactory explanation, that party cannot thereafter be heard to complain about lack of fair hearing and he referred to the cases of Magna Maritime Services Ltd Vs Oteju ( 5) All FWLR (Pt. 270) 1995, Eke Vs Ogbonda (2007) 1 MJSC 160 and Emadago Vs Wichindu (2014) All FWLR (Pt. 710) 1391. Counsel stated that the Appellant was afforded the opportunity to present his final address but it neglected to take advantage of it in that the Appellant was aware that the matter was adjourned from the 8th of July, 2013 to the 8th of August, 2013 for the parties to file their written addresses and that when the Court did not sit on the 8th of August, 2013 and it was further adjourned to the 11th of September, 2013 for adoption of addresses, all the parties were served with hearing notices and the Appellant did not file any written address.

Counsel stated that the Appellant was also aware that the matter was adjourned on the 11th of September, 2013 to the 23rd of October, 2013 for judgment and still it did not do anything and that Counsel to the Appellant was present in Court on the 23rd of October, 2013 and the judgment was delivered in his presence. Counsel stated that the Appellant cannot thus be heard now to complain of lack of fair hearing because it had adequate information of the dates of adoption of addresses but, by its conduct, opted out of filing of its written address and he referred to the case of Finbank (Nig) Ltd Vs Yusunab (Nig) Ltd (2014) All FWLR (Pt. 710) 1351. Counsel stated that the argument of Counsel to the Appellant that parties cannot waive their right to file final addresses is totally misconceived as the provision used in the relevant Rules of Court is “may” and not “shall” and that even if the word used was “shall”, parties were still at liberty to waive the right. Counsel urged the Court to resolve the issue for determination in favour the first Respondent.

In arguing the second issue for determination, Counsel stated that the first Respondent led clear and credible evidence in his testimony and that of his Estate Valuer that what he gave as security for the overdraft facility was his residential property behind the Petrol Filling Station covered by certificate of occupancy No. BO/20808 and which was professionally valued by Bamise & Associates and that the valuation report was tendered as Exhibit F. Counsel stated that the evidence led by the first Respondent was in line with the contents of the terms of the overdraft facility as contained in Exhibit A which read under the sub-heading “Security” thus: “legal mortgage over your Filling Station located at Biu Road Borno State covered by Certificate of Occupancy No BO/20808 professionally valued by Bamishe & Associates in July 1997 …” Counsel stated that the evidence led by the first Respondent was unchallenged and was not met by any contrary evidence from the Appellant and it was sufficient to discharge the minimal onus of proof on the first Respondent in the circumstances a n d h e r e f e r r e d t o t h e c a s e o f T h e Administrator/Executors of the Estate of General Sani Abacha Vs Eke-Spiff (2009) All FWLR (Pt 467) 1.

Counsel stated that first Respondent proved his entitlement to the declaratory relief sought and he urged the Court to resolve the second issue for determination in favour of the first Respondent.

On the third issue for determination, Counsel stated that the argument of Counsel to the Appellant on the issue showed a clear misconception of the judgment of the lower Court as there were findings made by lower Court in judgment affirming that the first Respondent paid the sum of N1.75 Million out of the demanded sum of N3.86 Million and that it was not the case of the first Respondent that he had repaid the entire debt. Counsel stated that the issue of repayment or non-repayment of the debt was not a material basis for the decision of the lower Court and that the decision was based on the finding on whether it was the Petrol Filling Station or the residential building behind the Petrol Filling Station that was used as collateral for the overdraft facility and as such the issue of repayment or non-repayment did not form part of the ratio decidendi of the judgment and he referred to the case of Savannah Bank of Nigeria Ltd Vs Pan Atlantic Shipping and Transport Agencies Ltd (1987) 1 SC 198.0 Counsel stated that the statement of the lower Court that the first Respondent had repaid the facility was a passing comment which is not binding in view of the specific findings made in the judgment and it thus, cannot be appealed against and he referred to the cases of Salami Vs Wema Bank of Nigeria Plc (2010) All FWLR (Pt. 552) 1709 and Kupolati Vs Oke (2009) All FWLR (Pt. 486) 1858. Counsel urged the Court to resolve the third issue for determination in favour of the first Respondent.

In arguing the fourth issue for determination, Counsel adopted his arguments canvassed under the second issue for determination and he urged the Court to resolve the issue for determination also in favour of the first Respondent. Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.

Reading through the records of appeal, particularly the pleadings of parties in the lower Court and the judgment appealed against, this Court agrees with the Counsel to the first Respondent that the third issue for determination raised and argued by Counsel to the Appellant in this appeal is not one arising from the judgment appealed against. A judgment of Court is like any other document and it is settled law that in interpreting a document, the document must be read as a whole, and not parts in isolation, and that the different parts of the document must be interpreted in the light of the whole document and an effort must be made to achieve harmony amongst its different parts – Unilife Development Co Ltd Vs Adeshigbin (2001) 2 SCNJ 116, Mbani Vs Bosi (2006) 11 NWLR (Pt. 991) 400, Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) 1 SCNJ 375, Nigerian Army Vs Aminun-Kano (2010) 5 NWLR (Pt. 1188) 429.

It is also trite that the ratio decedendi in a case represents the legal reasoning or principle or ground upon which a case is decided; it is the pronouncement of the court on the issue joined that can, and does embody the resolution of the court. Any observation or comment by the court which, though made in pronouncing the resolution, is not necessarily involved in the resolution or essential to it is obiter dictum – UTC Nig. Ltd Vs Pamotei (1989) 2 NWLR (Pt 103) 244, Ebere Vs Onyenge (2000) 2 NWLR (Pt. 643) 62, Ibrahim Vs Fulani (2010) 17 NWLR (Pt. 1222) 241, Odunukwe Vs Ofomata (2010) 18 NWLR (Pt 1225) 404.

Now, reading pleadings of the parties and the judgment of the lower Court as a whole, it is obvious that the parties did not join issues on whether the first Respondent had repaid his entire indebtedness arising from the overdraft facility that he obtained from the Appellant and it was his case was that he had only repaid part of it and that the lower Court found that out of the sum of N3.86 Million demanded by the Appellant as the indebtedness as at 2005, the first Respondent only made payments totaling N1.75 Million. It is clear that the statement of the lower Court that by paying the sum of N1.75 Million, the first Respondent had repaid the overdraft facility can only be a passing comment in view of the above finding. Reading through the judgment, the basis for the grant of the claims of the first Respondent was not whether or not he had repaid the overdraft facility, but that the property sold by the Appellant was not the property used as collateral for the overdraft facility obtained. The lower Court said thus:

“It is proved by the plaintiff that it was his residential house that he mortgaged and even if he failed to repay the overdraft, it will be the residential house mortgaged that would be auctioned and not the Filling Station.”

The records show that it was upon this finding that the lower Court granted the declaratory relief sought by the first Respondent. It is elementary that an appeal and the issues formulated for determination in an appeal must be directed at the raison d’entre, the ratio decedendi, of the judgment appealed against, and not at every passing comment made by the Court in the judgment – Pharma Deko Plc Vs NSITFMB (2011) 5 NWLR (Pt. 1241) 431, Peterside Vs Wabara (2011) 6 NWLR (Pt. 1243) 328, Onafowokan Vs Wema Bank Plc (2011) 12 NWLR (Pt. 1260) 24, Estisione H. (Nig) Ltd Vs Osun State Government (2012) 14 NWLR (Pt 1321) 540. The third issue for determination formulated by the Appellant, being directed at a passing comment of the lower Court, is incompetent and will not be countenanced by this Court.

It is the view of this Court that there are two issues arising for determination in this appeal and these are:

i. Whether, on the facts and circumstances of this case, the lower Court breached the Appellant’s right to fair hearing in the conduct of the proceedings leading to the judgment.

ii. Whether, on the facts and circumstances of this case, the lower Court was correct when it held that the first Respondent led credible evidence to sustain his claims as to be entitled to judgment.

This appeal will be resolved on these two issues for determination and the issues will be considered seriatim.

The concept of fair hearing adumbrated under the first issue for determination is the same as fair trial and it entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice, audi alteram partem and nemo judex in causa sua – Emerah Vs Chiekwe (1996) 7 NWLR (Pt. 462) 536, Okeke vs Nwokoye (1999) 13 NWLR (Pt. 635) 495.
Fair hearing postulates that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule –Otapo Vs Sunmonu (1987) 2 NWLR (Pt. 58) 587, Gakus Vs Jos International Breweries Ltd (1991) 6 NWLR (Pt. 199) 614, Olumesan Vs Ogundepo (1996) 2 NWLR (Pt. 433) 628.

This right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground – Nwokoro Vs Onuma (1990) 3 NWLR (Pt. 136) 22 at 35, Iwuoha Vs Okoroike (1996) 2 NWLR (Pt 429) 231, Olufeagba Vs Abdur-Raheem (2009) 18 NWLR (Pt. 1173) 384. It is perhaps to underscore the inviolability of this right of a party to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Hence, fair hearing is not only a common law right but also a constitutional right – Bamgboye vs University of Ilorin (1999) 10 NWLR ( t 622) 290, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt. 1187) 348, Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175.

The right to fair hearing does not however exist in absolute terms. The concept of fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing – Independent National Electoral Commission Vs Musa (2003) 3 NWLR (Pt. 806) 72, Dantata Vs Mohammed (2012) 8 NWLR (Pt. 1302) 366, National Films & Video Censors Board Vs Adegboyega (2012) 10 NWLR (Pt. 1307) 45. The question whether a party has been afforded an opportunity to exercise his right of fair hearing depends upon a careful consideration of the facts and circumstances of each case and the test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial – Action Congress of Nigeria Vs Lamido (2012) 8 NWLR (Pt. 1303) 560 and Eastern Breweries Plc, Awo Omamma Vs Nwokoro (2012) 14 NWLR (Pt 1321) 488.

The complaint of the Appellant in the instant case is that the lower Court denied it the right to file its final written address and that it was entitled to this right despite the fact that it did not call evidence. Now, address of counsel forms part of a party’s case and failure to hear the address of a party, however overwhelming the evidence on one side, taints the trial because in many cases, it is after the addresses that the Court finds that the law on the issue fought is not in favour of the evidence. The totality of a case heard entails not only the evidence but also the addresses of counsel. Thus, the Courts have held that the denial of a party’s Counsel of the opportunity of addressing the Court, where established and proved, is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing – Obodo Vs Olomu (1987) 3 NWLR ( t. 59) 111, Salami Vs Odogun (1991) 2 NWLR (Pt. 173) 291 at 301, Oyekan Vs Akinrinwa ( 996) 7 NWLR (Pt. 459) 128, First Bank of Nigeria Plc Vs Ejikeme (1996) 7 NWLR (Pt 462) 597, Duba Vs Saleh (1997) 1 NWLR (Pt.488) 502, Eagle Construction Ltd Vs Onibugadu (1998) 1 NWLR (Pt. 533) 231, Kalu Vs State (2011) 4 NWLR (Pt 1238) 429, Kubau Vs Rilwanu (2014) 4 NWLR (Pt. 1397) 284. The right is available to a party even where it fails to lead evidence and it is not foreclosed by failure of a party to file pleadings – Ironbar Vs Federal Mortgage Finance (2009) 15 NWLR (Pt. 1165) 506.

The question that arises is whether the Appellant was denied its right of addressing the lower Court? From the case made out by the Appellant itself, it refused and/or declined to attend Court and to participate in the trial proceedings despite notification of all the dates to his Counsel. It was not in contest that its Counsel was on notice of the proceedings of the 8th of July, 2013 and was aware that at the conclusion of the proceedings on that day, the lower Court adjourned the matter to the 8th of August, 2013 for adoption of addresses of the parties without specifying the order of filing of addresses. The Court did not sit on the 8th of August, 2013 and the matter was further adjourned to the 11th of September, 2013 for adoption of addresses and Counsel to the Appellant was notified of the adjourned date. As at the 11th of September, 2013, the first Respondent, as the plaintiff, and the Appellant and the second Respondent, as first and second defendants respectively, had not filed any written address. Counsel to the first Respondent and Counsel to the second Respondent were present in Court on that day while Counsel to the Appellant was absent and there is nothing on the records of appeal showing that Counsel to the Appellant communicated with the lower Court to explain his absence. Counsel to the first Respondent and Counsel to the second Respondent informed the Court that they were waiving their right of address and urged the lower Court to adjourn the matter for judgment and the lower Court granted their prayers and adjourn the matter till the 23rd of October, 2013 for judgment. The lower Court did not make any order foreclosing or waiving the Appellant’s right of final address on the 11th of September, 2013 and its Counsel still did not file a written address before the date fixed for judgment. The lower Court delivered its judgment on the 23rd of October, 2013.

Counsel to the first Respondent stated in his brief of arguments that Counsel to the Appellant attended the lower Court on the date of judgment, and this fact was not disputed by the Appellant, and it was not the case of the Appellant that his Counsel requested the lower Court for time on that day to file a written address in the matter and his request was refused by the lower Court.

Counsel to the Appellant had between the 8th of July, 2013 and the 23rd of October, 2013, a period of one hundred and seven days, to file a written address if he so desired. Or if we take it that the time for the Appellant to file a written address was to start to count after the first and second Respondents had filed their addresses because it did not call evidence, as contended by its Counsel, its Counsel still had between the 11th of September, 2013 when the first and second Respondent waived their right of address and 23rd of October, 2013, a period of forty two days to file a written address and he failed to do so. The Rules of Court gives a party only twenty-one days to file a written address if he so desires. It is only an unreasonable person with a skewed mentality and sense of reasoning that will say that the Appellant was denied its right to file a written address in these circumstances – Eze Vs Federal Republic of Nigeria (2017) 15 NWLR (Pt 1589) 433.

Counsel to the Appellant seemed to suggest that parties cannot waive their right of final addresses. Nothing can be farther from the truth. It is trite law that an individual may renounce or waive a law made for his special benefit or protection. This is encapsulated in the maxim quilibet potest renunciare juri pro se introducio –Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt. 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt. 1375) 488, Ediru Vs Federal Road Safety Commission (2016) 4 NWLR (Pt 1502) 209. In Ariori Vs Elemo (1983) 1 SCNLR 1, Eso, JSC put the point thus: “When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such a right. The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice.

The extent to which he has forgone his right would be a matter of fact and each case will depend on its peculiar facts. … A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.” The assertion of the Appellant that it was denied its right to final written address is not only lame but completely unfounded, very frivolous and absolutely untrue. The Appellant had every opportunity to present a final written address, if it so desired. It obviously chose not to do so. There was no violation of its right to fair hearing. The first issue for determination is resolved against the Appellant.

On the second issue for determination, the records of appeal show that the Appellant did not lead any evidence at the trial in support the averments in its pleadings. It is trite that pleadings do not amount and cannot constitute evidence and for averments in pleadings to be useful, evidence must be led on them – Oguejiofor Vs Siemens Ltd (2008) 2 NWLR (Pt 1071) 283 and Nika Fishing Co. Ltd Vs Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509. Where a party fails to adduce evidence in support of his pleadings, he is deemed to have abandoned the pleadings – Dingyadi Vs Wamako (2008) 17 NWLR (Pt. 1116) 395. Where a defendant fails to prove the averments in his pleadings, he did not take the necessary steps to join issues with the claimant in respect of the averments in the statement of claim and the statement of claim remains unchallenged and the oral evidence of the claimant is deemed sufficient proof of his case – Asika Vs Atuanya (2008) 17 NWLR (Pt. 1117) 484. Also, the effect of the Appellant’s failure to call evidence in defense of the claims against it at the trial is that it is presumed to have admitted the case made against him by the first Respondent –Okoebor Vs Police Council (2003) 12 NWLR (Pt 834) 444, Ifeta Vs Shell Petroleum Development Corporation of Nigeria Ltd (2006) 8 NWLR (Pt. 983) 585 and Okolie Vs Marinho (2006) 15 NWLR (Pt 1002) 316.

The law however is that this does not, on its own, translate to automatic victory for the first Respondent against the Appellant.

This is because a claimant must succeed on the strength of his case and not rely on the weakness of the defence and the absence of a statement of defence or evidence led by the defendant does not exonerate the responsibility on a claimant to prove his claim – Harka Air Services Ltd Vs Keazor (2006) 1 NWLR (Pt. 960) 160 and Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt. 1057) 218. This is particularly more so, as in the instant case, where the first Respondent sought for a declaratory relief because declaratory reliefs are not granted either based on admissions or default of defence – Akaninwo Vs Nsirim (2008) 9 NWLR (Pt. 1093) 439 and Olubodun Vs Lawal (2008) 17 NWLR (Pt. 1115) 1. The law is that in view of the failure of the Appellant to lead evidence, the onus on the first Respondent against the Appellant would be discharged on minimal evidence as there is no evidence to put on the other side of the imaginary scale – Adewuyi Vs Odukwe (2005) 14 NWLR (Pt. 945) 473. The lower Court still has a duty to evaluate the evidence led by the first Respondent to see whether it met the minimal requirements necessary for him to succeed – Neka B.B.B. Manufacturing Co. Ltd Vs African Continental Bank Ltd (2004) 2 NWLR (Pt. 858) 521, Okoye Vs Center Point Merchant Bank Ltd (2008) All FWLR (Pt. 441) 810, Francis Vs Citec International Estate Ltd (2010) 16 NWLR (Pt. 1219) 243, Ahmed Vs Central Bank of Nigeria (2013) 11 NWLR (Pt. 1365) 352.

The question that arises is whether the lower Court was correct when it found that the first Respondent led sufficient evidence to sustain his claims.

The gravamen of the case of the first Respondent against the Appellant was that the property auctioned by the Appellant by reason of his failure to fully liquidate his indebtedness, his Petrol Filling Station, was not the property he used as collateral for the credit facility and that the property he used was the residential building behind the Petrol Filling Station. The first Respondent led evidence as the first plaintiff witness and he testified that when he negotiated for the credit facility, he offered his house behind his Petrol Filling Station as collateral and that the Manager of the Appellant inspected the building and requested for the valuation report of the building and which he provided and that the Manager found the building adequate to support his request.

He gave evidence that the terms of the credit facility were then reduced into writing and that he accepted the terms and he was given the credit facility and he tendered the letter containing the terms as Exhibit A. Exhibit A stated, in part, under the sub-head “Security” thus:

“Legal Mortgage over your filling station located at Biu Borno State covered by C. of. O. No BO/20808 professionally valued by Bamise & Associates in July 1997 at OMV N2.508m and FSV of N1.881m obtained for N2,000,000.00.”

There was no evidence that any deed of legal mortgage was executed by the parties in furtherance of this term of the overdraft facility. The first Respondent led evidence that it was the residential house behind the Petrol Filling Station that was covered by Certificate of Occupancy No BO/20808 and not the Petrol Filling Station. The second plaintiff witness was a Mr. Baiyewu Samson Anan, a staff of Bamise & Associates and he testified that his firm carried out a valuation of the residential building behind the Petrol Filling Station, and not of the Petrol Filling Station, and he confirmed that residential building was covered by Certificate of Occupancy No BO/20808 and it measured 519.25 square meters and he tendered the valuation report as Exhibit F. A read through Exhibit F shows clearly that it was in respect of a residential building, behind the Petrol Filling Station, consisting of one four bedroom apartment, three No three bedroom apartments and one two bedroom apartment. The report stated that the building had an Open Market Value (OMV) of N2, 508,600.00 and a Forced Sale Value (FSV) of N1.881,450.00 and the report was prepared by Bamise & Associates in July 1997.

When the contents of Exhibit A on security for the overdraft facility are read along with the unchallenged evidence of the first and second plaintiff witnesses and the contents of the valuation report, Exhibit F, which was referred to and quoted with exactitude in Exhibit A, it is clear that the property referred to as security for the overdraft facility was the residential building behind the Petrol Filling Station which was valued in Exhibit F. This is not a case of altering the contents of Exhibit A by parole evidence, as submitted by Counsel to the Appellant, but one of interpreting the contents of Exhibit A in the light of the valuation report, Exhibit F, referred to and quoted with exactitude by Exhibit A itself. Exhibit A specifically stated that the property used as security was the one “professionally valued by Bamise & Associates in July 1997 at OMV N2.508m and FSV of N1.881m”. Exhibit F was the valuation report and it stated that the property so valued was the residential building behind the Petrol Filling Station and not the Petrol Filling Station. This fact was confirmed by the unchallenged oral evidence of the first Respondent.

It is settled law documents must be construed and interpreted in the light of the circumstances in which they are drawn up – Ogbonna Vs The Attorney General of
Imo State (1992) 1 NW R (Pt. 220) 647. It is also settled law that where the terms of a contract are contained in a series of documents, the contents of the documents must be interpreted together and harmoniously so that the various parts of the documents are not brought into conflict to their natural meaning – Royal Exchange Assurance (Nig) Ltd Vs Aswani Textile Industries Ltd (1991) 2 NWLR (Pt. 176) 639, Central Bank of Nigeria Vs Igwillo (2007) 14 NWLR (Pt. 1054) 393, Agbareh Vs Mimra (2008) 2 NWLR (Pt. 1071) 378. When the content of Exhibit A under the sub-head “Security” is read along with the contents Exhibit F, the inevitable conclusion is that it was the residential building behind the Petrol Filling Station that was used as collateral for the overdraft facility and not the Petrol Filling Station itself. The first Respondent did not create any interest in favour of the Appellant over his Petrol Filling Station. The sale of the Petrol Filling Station by the Appellant in satisfaction of the indebtedness of the first Respondent was thus wrongful and illegal and the order of the lower Court declaring the sale as null and void was on firm ground and cannot be tampered with by this Court.

Additionally, this Court deems it pertinent to make a point, though the issue was not raised by the parties. From the entire evidence led before the lower Court, no deed of legal mortgage was executed by the first Respondent and the Appellant over either the Petrol Filling Station or even over the residential building behind the Petrol Filling Station in actualization of the terms of the overdraft facility granted to the first Respondent by Exhibit A. None of the witnesses testified on the existence of such a deed of legal mortgage and none was tendered in evidence. Thus, the security held by the Appellant as collateral for the overdraft facility was in reality an agreement to create a legal mortgage and the law is that such an agreement creates only an equitable mortgage in favour of the Appellant – Kadiri Vs Olusoga (1956) SCNLR 150, British and French Bank Vs Akande (1961) WNLR 277 and Union Bank of Nigeria Plc Vs Fajebe Foods Ltd (1998) 6 NWLR (Pt. 554) 380.

It is settled that though an equitable mortgage gives the equitable mortgagee an immediate power of sale, foreclosure and all other remedies open to a legal mortgagee, once the equitable mortgagor defaults, an equitable mortgagee must seek an order of Court to foreclose the mortgage before he can proceed to exercise the powers – Ogundiani Vs Araba (1978) 6-7 SC 55, Okuneye Vs First Bank of Nigeria Plc (1996) 6 NWLR (Pt. 457) 749, Bank of the North Ltd Vs Akintoye (1999) 12 NWLR (Pt. 631) 392, Federal Mortgage Bank of Nigeria Vs Adesokan (2000) 11 NWLR (Pt. 677) 108, Union Bank of Nigeria Plc Vs Taylor (2005) 15 NWLR (Pt. 947) 27. In other words, before the Appellant could exercise a power of sale over the subject of the mortgage, be it the Petrol Filling Station or the residential building, it was incumbent on it to first approach the trial Court to obtain an order to foreclose the equitable mortgage. There was no evidence before the lower Court that the Appellant obtained such an order before proceeding to sell Petrol Filling Station. This omission to obtain the order also rendered the sale of the Petrol Filling Station wrongful and illegal. The second issue for determination is resolved in favour of the first Respondent.

In conclusion, this Court finds no merit in the appeal. The appeal is extremely frivolous and totally misconceived. The Appellant failed to utilize the opportunity presented by the lower Court to partake in and make its case at the trial. This appeal is an attempt to do a repair job and it was predicated on tenuous and baseless arguments. The appeal fails and it is hereby dismissed. The judgment of the High Court of Borno State delivered by Honorable Justice A. G. Kwajafa in Suit No M/133/2006 on the 23rd of October, 2013 is affirmed. The first Respondent is awarded the costs of the appeal assessed at N100, 000.00. These shall be the orders of this Court.

ONYEMENAM, J.C.A.

I have been privileged to read before now the lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the reasoning and conclusion as contained in the lead judgment that the appeal is unmeritorious. I too dismiss the appeal for same reasons.

I affirm the judgment of the High Court of Bomb State delivered on 23rd October 2013 by A. G. Kwajafa, J. in Suit no. M/133/2006.

I abide by the order as regards to costs.

WILLIAMS-DAWODU, J.C.A.

I have had the privilege to preview the draft of the lead Judgment delivered by my learned brother, HABEEB ADEWALE ABIRU, JCA. I agree with the reasoning and conclusion reached therein.

Consequently, I find the appeal unmeritorious, it is hereby dismissed and the Judgment of the Court delivered October 23rd 2013 below is affirmed.

I make no order as to cost

Appearances:

Leo M. Ebi For Appellant(s)

B. K. George- for 1st Respondent

N. U. Mustapha – for 2nd Respondent For

Respondent(s)