➥ CASE SUMMARY OF:
Ali Pinder Kwajafa & Ors. v. Bank of The North Ltd (2004) – SC
by PipAr Chima
➥ COURT:
Supreme Court – SC.89/2000
➥ JUDGEMENT DELIVERED ON:
Friday, May 14, 2004
➥ AREA(S) OF LAW
Mortgage;
Capacity of minor;
Interest rate.
➥ NOTABLE DICTA
⦿ WHAT A PARTY MUST DO TO RAISE FRESH POINT ON APPEAL
Where a party seeks to raise a fresh point in the Supreme Court, he must: (a) obtain leave of the Supreme Court (b) ensure that the new points sought to be so raised involve substantial issues of substantive or procedural law which need to be allowed to prevent an obvious miscarriage of justice. (c) show that no further evidence is required to resolve the issue for determination. – Musdapher, J.S.C. Pinder v. North (2004)
⦿ EVALUATION OF EVIDENCE AND IMAGINARY SCALE
Now, on the valuation of evidence by a trial court, the law is settled. See Mogaji v. Odofin (1978) 4 SC 91 and Solomon v. Mogaji (1982) 11 SC 1. It is that before a court which evidence is adduced by the parties in a civil case comes to a decision as to which evidence it believes or accepts and which evidence it rejects, it should first of all put the totality of the acceptable testimony adduced by both parties on an imaginary scale; it would put the legal evidence adduced by the plaintiff on one side and that of the defendant on the other side and weigh them together. It will then see which is heavier, not by the number of the witnesses called by each party but by the quality or probative value of the testimony of those witnesses. See also Sha Jnr v. Kwan (2000) 8 NWLR (Pt. 670) 685. It is the pre-eminent duty of a trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate court which neither heard the witnesses nor saw them to observe their demeanors in the witness box. – Musdapher, J.S.C. Pinder v. North (2004)
⦿ PARTY CANNOT TAKE ADVANTAGE OF AN ILLEGALITY HE KNOWS
A party cannot resile from his obligation under a contract because he never followed what the law required; in essence he cannot take refuge from his contractual obligations on the pre of his own illegality in so far as the other party was not aware of the illegality at the time of the transaction. – Belgore, J.S.C. Pinder v. North (2004)
⦿ JUSTICE CANNOT BE METED TO SOMEONE WHO HAS HIS HANDS SOILED
This court being a court of justice is a temple of justice adhering to the symbol of a blindfolded woman with a scale on one hand and a sword on the other to render “justice” (not injustice), to all manner of people. Indeed the beauty and greatness nay the purity of justice, in all its consuming allure and essence is to ferret out from the mass of facts and law before it, relevant points in order to give remedy to anyone who comes for that. It is not justice meted to someone who does not deserve it when that person craving for it has his hand soiled, blemished, and besmirched. It is my view that the appellants cannot eat their cake and have it. I believe that it is not only the litigants in this case but millions of our country men with an abiding faith in the nature of our jurisprudence as practised in our courts’ who have access to the courts to seek justice not adulterated justice, or justice shrouded in clouds of euphemisms or where the court would wring its hands and declare that the case does follow a regular or laid down pattern that would benefit from justice founded on law and ethics. – Pats-Acholonu, J.S.C. Pinder v. North (2004)
⦿ SUPREME COURT JUDICIAL NOTICE ON INTEREST RATE
The matter is not made easy by their claiming that they agreed on the interest rate of 13% when there was no such clause in the deed of legal mortgage and when it is a well-known fact which this court takes judicial notice of that interest rates are dependent of the policy on the Central Bank. No interest rate is static. It is not immutable. It varies depending on the nature of Government policy which follows the state of the economy. – Pats-Acholonu, J.S.C. Pinder v. North (2004)
➥ PARTIES
APPELLANT
1. Ali Pinder Kwajaffa
2. Hussani M. Aliyu
3. Ali Pinder Kwajaffa Garage Ltd.
v.
RESPONDENT
Bank of The North Limited
➥ LEAD JUDGEMENT DELIVERED BY:
Musdapher, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
– O. Okeaya-Inneh, Esq.
⦿ FOR THE RESPONDENT
– P. Ishaku, Esq.
– G. S. Ogboji, Esq.
➥ CASE HISTORY
The facts before the trial court on which it relied and upheld by Court of Appeal, are that the first appellant clearly went to the respondent bank to borrow on mortgage. He dealt with the bank all along giving the impression that as alter ego of the third appellant he was the mouth and brain of that company. He brought in a certificate of occupancy belonging to his infant son. How the infant son carne about the title to the piece of land is never explained. The F son, not knowing what was all about, signed away the right of occupancy to procure the mortgage.
This is an appeal against the judgment of the Court of Appeal sitting in Jos, Plateau State delivered on the 9th of December, 1998, wherein the appeal of the appellants herein was dismissed, thus affirming the decision of the trial High Court of Borno State. The claim of the appellants, herein, as the plaintiffs, before the trial court as per paragraph 24 of the further amended statement of claim/and reply to counter-claim was in these terms, inter alia, a declaration that the purported deed of legal mortgage dated 13th October, 1982 between the parties to this case is void, ineffective and of no effect whatsoever.
➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED, WITH N10,000 COST]
I. Whether the Court of Appeal was right in law in affirming the decision of the trial High Court that the mortgage agreement between the 2nd appellant and the respondent was valid in law.
RULING: THIS ISSUE WAS STRUCK OUT.
I.A. I have in this judgment reproduced the summary of the issues submitted to the Court of Appeal by the appellants for the determination of the appeal. In the appeal aforesaid, the validity of the deed of legal mortgage was not an issue that was raised for determination. The general rule adopted in this court is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the Court of Appeal. See Okuojeror v. Sagay (1958) WRNLR 70; Pratt v. Haffner (1959) 4 FSC 82; Odesanya v. Ewedemi (1962) 1 All NLR 320. For any ground of appeal or any issue to be raised and argued at the Supreme Court, it should first have been raised and argued in the Court of Appeal, or with leave for the Supreme court. By logical extension, the general position is that an issue which is a fresh point entirely and not having been raised and argued in the Court of Appeal is not competent to be raised at the Supreme Court without leave. The rationale for this rule is that it is desirable for the Supreme Court to have the benefit of the opinions on such points in issue, of the Court of Appeal.
I.B. There was no appeal to the Court of Appeal challenging the dismissal of the appellants’ claim on the validity of the deed of the legal mortgage on the grounds that the 2nd appellant was a minor. The issue was decided by the trial Judge who ruled against the appellants and dismissed their claims. The observation made by the Court of Appeal could not under the circumstances be a competent issue for this court to consider.
I.C. In any event, the law is well settled, that an appeal to the Supreme Court must relate to the decision of he Court of Appeal and not that of the High Court. The Supreme Court has no jurisdiction to hear appeals from the decision of the High Court. Oduntan v. Akibu (2000) 13 NWLR (Pt. 685) 446. The case of the appellants as argued in the Court of Appeal must be consistent with the case on appeal to the Supreme Court. The Supreme Court will not allow a party to put up a different case from the case it had put up at the Court of Appeal without leave. The issue of the validity of the deed of legal mortgage as argued in the appellants’ brief is a fresh issue for which it was necessary to obtain leave of this court to raise it. No leave was obtained and as such the issue is not competent.
.
.
II. Whether the learned Justices of the Court of Appeal were right in law to have granted the 1st relief claimed by the respondent in the counter-claim.
RULING: IN RESPONDENT’S FAVOUR.
II.A. The Court of Appeal was right to have held that the trial Judge was in error to have granted the respondent’s first relief on the counter-claim merely because of the default of defence by the appellants, but the court correctly relied on the other documentary evidence on record to find that the respondent had proved the counter-claim.
.
.
III. Whether the learned Justices of the Court of Appeal were right in law to hold that the appellants were indebted to the respondents.
RULING: IN RESPONDENT’S FAVOUR.
III.A. The trial court and the Court of Appeal, that the appellants have not shown how they paid the loan account to which they admitted owing under exhibit J. The learned trial Judge accepted the evidence of DW1 to the effect that the zero balance showed in exhibit B indicated that the overdraft account was closed and the debit balance transferred to the loan account in the sum ofN487,375.52k. Thus the appellants were no longer owing on the current account but on the loan account. The question of the indebtedness of the appellants to the respondent on the loan account as mentioned above, is a concurrent finding of fact by the two lower courts.
.
.
IV. Whether the learned Justices of the Court of Appeal were right in law to hold that the learned trial Judge properly evaluated the evidence proffered in the case.
RULING: IN RESPONDENT’S FAVOUR.
IV.A. Most of the evidence before the trial court was documentary and at least in exhibit J, the appellants admitted owing the respondents and correctly, as found by the learned trial Judge and confirmed by the Court of Appeal, the appellants did not show that they had repaid the loan. As mentioned above, these are findings of concurrent and consistent facts made by the lower courts. I am not convinced that the findings are perverse or not made as a result of proper evaluation and appraisal of the evidence led and accepted.
➥ MISCELLANEOUS POINTS
⦿ ON THE DECEIT PLAYED BY THE 1ST APPELLANT
Now a proper examination and analysis of the 2nd appellants testimony in court demonstrate the subtleties and subterfuge employed by the 1st appellant to secure for himself immeasurable benefits from the transaction but he later saw it justifiable to rely on the same deceit and element of concealment or sleaze to tell the respondents to jump into the lake as the deal was manifestly illegal. It is manifestly evident that to all intents and purposes the father of the 2nd appellant was the defacto “owner” of the property. Why the 2nd appellant signed the document was not explained to him. As far as he was concerned that property i.e. the certificate of occupancy was really the father’s who used his position to secure the loan by relying on the certificate of occupancy for the mortgage which he turned round to repudiate. This seeming nefarious and ignoble act by which he seeks to take refuge by making a remarkable volte-face is as alarming as it is surprising. The appellants are asking this court to support the ignoble act and, effectively repudiate the deal they had undertaken. It is in my opinion, invidious on his part to use the under age of his son to repudiate the deed of mortgage he had entered. As at the time the 2nd appellant was giving evidence in court, he was already grown up then he never asked about the property for which he had the certificate of occupancy. The necessary inference is that the property although ostensibly for some sinister purpose was made out in 2nd appellants’ name, the 1st appellants really had the effective control and possession of the property which he used to secure a loan. It will be unjust for any tribunal of justice to lend a willing hand in using subterfuge to defeat the rights of another when the evidence shows that implicit in the deal and the act of the 1st appellant is an attempt to put a fast one on the respondent. I refuse to lend any hand in giving substance and credibility to this sort of questionable deal. – Pats-Acholonu, J.S.C. Pinder v. North (2004)
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
