➥ CASE SUMMARY OF:
K.A. Onamade & Anor. V. AFrican Continental Bank Ltd. (1997) – SC
by “PipAr” B.C. Chima
Supreme Court – SC.199/1990
(1997) 1 NWLR (PT.480) 123
➥ JUDGEMENT DELIVERED ON:
Friday, The 17th Day of January, 1997
➥ AREA(S) OF LAW
Governor’s consent for retransfer;
➥ NOTABLE DICTA
⦿ A PRELIMINARY OBJECTION WHICH IS NOT PURSUED IS ABANDONED
An issue or a preliminary objection in respect of which no argument is advanced in the brief of argument and therefore not canvassed before the court must be deemed abandoned. see Lemboye v. Ogunsiji (1990) 6 NWLR (Pt.155) 210 at 232; Ajibade v. Pedro (1992) 5 NWLR (Pt.241) 257; Are v. Ipaye (1986) 3 NWLR (Pt.29) 416 at 418. — Iguh, JSC.
⦿ MATTERS NOT PLEADED GOES TO NO ISSUE
At the trial, a party is bound by the pleadings and shall not be permitted to set up a different case. It is not open to a party to depart from his pleadings and put up an entirely new case. Matters not pleaded go to no issue and should not be admitted in evidence and, if admitted, should be ignored or discountenanced in the absence of an amendment of the pleadings. See Njoku and others v. Eme and others (1973) 5 S.c. 293; Okafor and others v. Okitiakpe (1973) 2 SC 49; EmegokWue v. Okadigho (1973) 4 SC.113 etc. — Iguh, JSC.
⦿ LAW IS NOT NECESSARY TO BE PLEADED IN PLEADINGS
I concede that it is not necessary to plead law before reliance can be placed on it. It is sufficient to plead material facts which will lead to a certain legal result, and once sufficient material facts have been pleaded, the inference to be drawn from such pleaded facts and the particulars of the law to be relied upon for such an inference need not be pleaded. See Vandervell’s Trust (No.2), White v. Vandervell Trustees Ltd. (1974) 3 All E.R. 205 at 213; Anyanwu v. Mhara (1992) 5 NWLR (Pt. 242) 386 at 398 etc. — Iguh, JSC.
⦿ ONLY WHEN ERROR IN JUDGEMENT OF COURT BELOW IS SUBSTANTIAL THAT APPEAL WILL BE ALLOWED
At all events, it is not every mistake or error in a judgment that will result in the appeal being allowed. It is only when the error is substantial in that it has occasioned a miscarriage of Justice that the appellate court is bound to interfere. See Onajobi v. Olanipekun (1985) 4 S.C. (Pt.2) 156 at 163; Oje v. Babalola (1991) 4 NWLR (Pt.185) 267 at 282; Ukejianya v. Uchendu (1950) 13WACA 45 at 46; Azuetonma Ike v. Ugboaja (1993) 6 NWLR (Pt.30 1)539 at 556; Ahiodun Famuroti v. Madam Agbeke (1991) 5 NWLR (Pt.189) 1; (1991) 6 S.CN.J. 54 at 64 etc. No miscarriage 1 of justice has been occasioned by the observation of the court below that the return of the title deeds to the 1st appellant during the pendency of the appeal had put an end to the dispute. — Iguh, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
I. Iguh, J.S.C.
⦿ FOR THE APPELLANT
Chief Y.A. Agbaje S.A.N.
⦿ FOR THE RESPONDENT
U. Afangide, Esq.
➥ CASE HISTORY
The facts of this case are not very much in dispute. In 1977, the 1st plaintiff obtained a loan from the defendant which was secured by legal mortgage over his landed property situate at Mokola, Ibadan.
In February, 1986, the plaintiffs entered into an agreement, Exhibit B, whereby the 2nd plaintiff was to pay the defendant the balance, then outstanding, under the loan agreement and the 1st plaintiff agreed that the documents of title in respect of the mortgaged property deposited with the defendant should be released to the 2nd plaintiff. On the 26th February, 1986, the 1st plaintiff by his letter, Exhibit A, forwarded to the defendant, the 2nd plaintiff’s cheque for N29,912.53, Exhibit J, being the outstanding balance in respect of the said loan. Attached to Exhibit A, also, were Exhibit B, a copy of an agreement between the two plaintiffs regarding payment of the said outstanding balance and a draft deed, Exhibit C, headed “Form of Receipt of Discharge of a Mortgage” which ex-facie is a draft deed of acknowledgment in respect of the receipt of the said N29,912.53 by the defendant coupled with a transfer of the rights and all the benefits of the aforementioned mortgage by the defendant to the 2nd plaintiff.
The defendant duly cashed the cheque Exhibit J but refused to sign the Deed of release, Exhibit C in the form prepared by the plaintiffs or release the 1st plaintiff’ s documents of title to the 2nd plaintiff. It is as a result of this refusal that the plaintiffs filed this action against the defendant.
Dismissing the application, the learned trial Judge held, inter alia, (i) That under the provisions of Section 22 of the Land Use Act, it is unlawful for the holder of a statutory right of occupancy to create a mortgage without the consent of the Governor. (ii) That under Section 26 of the Land Use Act, any transaction contravening the provisions of the Act is null and void.
The trial court dismissed the suit. An appeal was made by the Plaintiff to the Court of Appeal but appeal was dismissed.
This is a further appeal.
➥ ISSUE(S) & RESOLUTION
[APPEAL DISMISSED WITH N100 COST]
1. Whether having regard to the pleadings of the parties, the application for setting down for trial the plaintiffs/appellants’ preliminary point of law, the affidavits, counter affidavits the further affidavit, counter affidavits the further affidavit, and Exhibits attached thereto, the learned Justices of the Court of Appeal were not right in dismissing the appellants appeal in the court below.
RULING: IN RESPONDENT’S FAVOUR.
A. “No doubt, when a man by his words or conduct has led another to believe in a particular state of affairs or where it would be unconscionable for a party to be permitted to deny that which he has allowed or encouraged another to assume to his detriment, he will not be allowed to go back on it if it will be unjust and inequitable for him to do so. See Moorgate Mercantile Co. Ltd. v. Twitchings (1975) 3 All E.R. 314 at 323, Ives Investments Ltd. v. High (1967) 1 All E.R. 504 at 507 – 508. With respect, however, I can see no words or conduct on the part of the respondent in the present case which had led the appellants or either of them to believe in any particular state of affairs as a result of which they suffered any detriment. I am also unable to identify any act on the part of the respondent by which it allowed or encouraged the appellants to assume any particular posture to their detriment and for which it cannot be allowed to go back on as it would be unjust or inequitable so to do.”
B. “Learned counsel for the appellants also submitted that the respondent had acted in such a way as would make it fraudulent and unconscionable for it to set up its legal rights. With profound respect, no evidence of fraud or unconscionable conduct was led by the appellants against the respondent. It is significant that the issue of fraud was no where pleaded or raised by the appellants against the respondent before the trial court. It is also clearly not the basis on which the appellants’ preliminary point of law was argued. But this notwithstanding, it is settled law that an imputation of fraud must, to succeed, be pleaded with the utmost particularity. Indeed, no rule is more clearly established than that fraud must be distinctly alleged and proved and that it is not permissible to leave fraud to be inferred from the facts. See Davey Bras v. Garrett (1878) 7 Ch.D. 499. See too United Africa Co. Ltd. v. Taylor (1936) 2 WACA 70 at 71 and Usenfowokan v. Idowu and Salami (1969) 1 NMLR 77 at 81. I am in agreement with the court below that the alleged fraud against the respondent not having been pleaded, went to no issue and was clearly not established.”
2. Whether the provisions of Land Use Act 1978 apply in the matter and in effect whether Form of Release Form LUD (CH3) relied upon by the respondent as opposed to Exhibit C prepared by the second appellant for execution by the respondent is the appropriate form.
RULING: IN RESPONDENT’S FAVOUR.
A. “It is plain to me that the purport of Exhibits Band C is to confer on or transfer to the 2nd appellant, the rights of the respondent as a mortgagee under the mortgage. In other words, it purports to create a new mortgage in favour of the 2nd appellant or otherwise to transfer the rights and benefits under the relevant mortgage from the respondent to the 2nd appellant without the consent of the Military Governor of Oyo State first had and obtained. Such an arrangement, without doubt, is a contravention of the provisions of the Land Use Act. This is because a transfer of the rights and benefits of the respondent under the mortgage requires the Governor’s consent under Section 22(a) of the Land Use Act. Accordingly by virtue of the said Section 22 of the Act, Exhibit C is unlawful and by virtue of Section 26, it is null and void. In my view, the respondent cannot be estopped from refusing to be a party to the contravention of the Act. Indeed, the issue is well settled that no estoppel will be allowed which precludes the party against whom it is sought from asserting and bringing to the notice of the court, the statutory illegality of such actions and instruments which are sought to be validated by acceptance of the estoppel pleaded. See The Attorney-General of Bendel State v. The Attorney-General of the Federation and others (1981) 3 NCLR 1; (1981) 1 All NLR (Part 2) I at 82-83.”
B. “I entertain no doubt that the provisions of the Land Use Act, 1978 apply to the transaction in issue and that Exhibit C which was prepared by the appellants for execution by the respondent is inappropriate and in contravention of the provisions of the said Land Use Act. I agree entirely with both the trial court and the court below that the form of Release as presented in Exhibit C is unlawful and in contravention of the Land Use Act and that the respondent is not estopped from raising the obvious illegality surrounding the draft document in answer to the appellants’ claims. Issues 1 and 2 are therefore resolved against the appellants.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Sections 22, 26, Land Use Act.
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)