ISSUES

Whether the third respondent could be declared entitled to the auctioned property by virtue of a Deed of Assignment after the counter claim in respect of the same property had been dismissed?

Whether there was proper notice, public and personal, before the auction sale was conducted in particular was Section 19 of the Auctioneers Law, Cap. 12, Laws of Eastern Nigeria, 1961, (Auction Law) waived, or could it be waived by the appellant?

What is the effect of non-compliance with the notice provision?

Whether the allegations of fraud or lack of good faith on the part of the first respondent and alleged collusion and or complicity between the chairman of the first respondent and the third respondent were proved by the appellant?

FACTS

The plaintiff (appellant) had in 1981 mortgaged his building known as No 133 Aba-Owerri Road, Aba, to the first defendant bank (respondent) by virtue of a Deed of Mortgage (Exhibit 'B') as security for a loan of N60,000. The loan was repayable within 12 months. The plaintiff did not repay the loan for more than six years after the debt became due. The first respondent sent relevant notices and statements of account to the appellant. On 30 January, 1988, the appellant saw a publication in the Nigerian Statesman Newspaper whereby the second respondent (auctioneer) had advertised the mortgaged property for sale on behalf of the first respondent 1 February, 1988. The appellant was unable to stop the auction sale. He then contended that there had been no auction sale for want of proper notice. The first respondent had pasted notice on the building and other public places in addition to the publication in the newspaper as required by Exhibit 'B'. Several people attended the auction sale including the appellant, his brother and agent who bid for the property. The third respondent, the mother of Chief Kalu, the Chairman of the Board of Directors of the first respondent, was the highest bidder and the property was duly sold to her and a deed of assignment executed in her favour.

The trial Judge dismissed plaintiff's claims.

Aggrieved, the plaintiff appealed to the Court of Appeal. In a unanimous judgment, the appeal was dismissed. The plaintiff had now further appealed to the Supreme Court.

HELD

Majority judgment by Kutigi, Uwais, Ogundare and Uwaifo, JJSC. Tobi, JSC, dissenting

1.      On the nature of relationship between appellant and first respondent

The relationship between the appellant and the first respondent was contractual and governed by Exhibit 'B', the Deed of Legal Mortgage. That being so, extrinsic evidence could not be accepted to vary the terms agreed upon.

2.      On being lawfully bound by contract

Persons of full age and sound mind are bound by any agreement lawfully entered into by them. Clause 7 of Exhibit 'B' above gave the first respondent the right to sell the mortgaged property if the plaintiff failed to repay the loan on the due date without any further consent of the plaintiff. By Clause 8, the appellant also waived his rights to be given any notice under any statute or customary law. The agreement specifically provided that the plaintiff had waived his right to any notice of sale under Section 19 of the Auction Law. The first respondent was thus not bound to have given the appellant any further notice of the proposed sale.

3.      On non-pleading of fraud

Since fraud was not specifically pleaded and no evidence led on it, it was a non-issue in the case. The appellant failed to specifically plead fraud or collusion and, even where he alluded to them, he furnished no particulars. He also led no evidence to prove any of the allegations.

4.      Per Tobi, JSC dissenting

A counter-claim, though related to the principal action, is a separate and independent action and our adjectival law requires that it must be filed separately. The separate and independent nature of a counter-claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as

profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law, a counterclaim is a cross action with its separate pleadings, judgment and costs.

Obiter dictum This Court should in appropriate cases rise to the aid and support of mortgagors to declare such (waiver) clauses as against human conscience and public policy.

A.O. Obianwu, Esq. and Uche Nwokedi, Esq. and C.A. Chuka-Nnodi, Esq. for the appellant.

Ben Anachebe Esq. and A.A. Okapala Esq. for respondent 1 & 2.

Chief Chris Uche and K.O. Ojike, Esq., A. Dimuye Esq. and A.A. Akpamgo, Esq. for respondent 3.

The following cases were referred to in this judgment:

Nigeria

Abekhe v NDIC (1995) 17 NWLR (Part 406) 228

Abowabe v Adesina 12 WACA 18

Adegbenro v A-G (1962) All NLR 428

Adejumo v Ayantegbe (1999) All NLR 468

Adekunle v Adeboye (1992) 2 NWLR (Part 223) 305

Adeniji v Onagoruwa (2000) 1 NWLR (Part 639) 1

Adetoro v Ogo Oluwa Kitan Trading Co Ltd (2002) 9 NWLR (Part 771) 157

Adimora v Ajufo (1988) 3 NWLR (Part 80)1

Alhaji Balogun v Alhaji Libaran (1988) 6 SCNJ 71

Alhaji Wada v Chief Alkali of Birnin Kebbi (1962) All NLR (Part 2) 783

Ariori v Elemo (1983) 1 SCNLR 1

Arize v NNPC (1991) 1 NWLR (Part 166) 258

Awoyale v Ogunbiyi (No 2) (1986) 2 NWLR (Part 24) 626

Awojugbagbe Light Industries Ltd v Chinukwe (1995) 4 NWLR (Part 390) 379

Ayoola & others v Folawiyo & others (1942) 8 WACA 39

Bank of the North Ltd v Aliyu (1999) 7 NWLR (Part 612) 622

Bank of the North Ltd v Alhaji Muri (1998) 2 NWLR (Part 536) 153

Bendel Insurance Company Ltd v Edokpolor and Company Ltd (1986) 4 NWLR (Part 118) 725

Biode Pharmaceutical Industries Ltd v Adsell Ltd (1986) 5 NWLR (Part 46) 1070

Broadine Entertainment Ltd v Monetary Maritime Corporation (1995) 9 NWLR (Part 417) 1

CCB (Nig.) Ltd v Onwuchekwa (2000) 3 NWLR (Part 647) 65

Chief Ojikutu v The Agbonmagbe Bank Ltd (1964) 2 All NLR 277

Chief Oseni v American International Insurance Company Ltd (1985) 3 NWLR (Part 11) 229

Chief Registrar High Court of Lagos State v Vamos Navigation Ltd (1977) 1 SC 33

Chinda v Amadi (2002) 7 NWLR (Part 767) 505

Cooperative and Commerce Bank (Nig.) Ltd v Onwuchekwa (2000) 3 NWLR (Part 647) 65

Dama v Lion of Africa Insurance Co (1970) NNLR 84.14

Egangbedo v The State (1989) 4 NWLR (Part 113) 57

Egbunike v ACB Ltd (1995) 1 NWLR (Part 375) 34

Ekaete v Nigeria Housing Development Society Ltd (1973) 6 SC 183

Ekpenyong v Nyong (1975) 2 SC 71

Elendu v Ekwoaba (1998) 12 NWLR (Part 578) 320

Elliot Saville and Company v Mallam Lansari (1957) NNLR 165

Emaphil Ltd v Odili (1987) 4 NWLR (Part 67) 915

Emecheta v Ogueri (1997) 8 NWLR (Part 516) 323

Ezeafulukwe v John Holt Ltd (1988) 2 NWLR (Part 432) 511

Fabunmi v Agbe (1985) 1 NWLR (Part 2) 299

Federal Mortgage Bank of Nigeria v Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Part 591) 333

Fojule v Federal Mortgage Bank of Nigeria (2001) 2 NWLR (Part 697) 384

Garba v State (1999) 11 NWLR (Part 627) 422

Haruna v Savannah Bank of Nigeria (1995) 2 NWLR (Part 377) 326

High Grade Maritime Services Ltd v First Bank of Nigeria Ltd (1991) 1 NWLR (Part 167) 290

His Highness, Oba Omoborunola II v The Military Governor of Ondo State (1998) 14 NWLR (Part 584) 89

Honika Sawmill (Nig.) Ltd v Hoff (1994) 2 NWLR (Part 326) 252

Ihekwoaba v African Continental Bank Ltd (1998) 10 NWLR (Part 571) 590

Ikeanya v ACB Ltd (1991) 7 NWLR (Part 205) 626

Ikoku v Oli (1962) 1 SCNLR 307

Ikpeazu v ACB Ltd (1965) NMLR 374

Ipinlaiye II v Chief Olukotun (1996) 6 NWLR (Part 451) 148

Kpansanagi v Shabako (1993) 5 NWLR (Part 291) 67

Liadi Giwa v Bisiriyu Erunmilokun (1961) All NLR 294

Macaulay v NAL Merchant Bank Ltd (1990) 4 NWLR (Part 144) 283

Majekodunmi v Co-operative Bank Ltd (1997) 10 NWLR (Part 524) 198

Makinde v Akinwale (2000) 2 NWLR (Part 645) 435

Mbeledogu v Aneto (1996) 2 NWLR (Part 429) 151

Moses Ola and Sons Ltd v Bank of the North Ltd (1992) 3 NWLR (Part 229) 377

Motunwase v Sorungbe (1988) 5 NWLR (Part 92) 90

Nigerian Housing Development Society v Mumuni (1977) 11 NSCC 65

Nigerian Maritime Services Ltd v Afolai (1976) 2 SC 79

Nigerian Ports Authority v CGFC (1974) 11 SC 81

Nsirim v Omuma Construction Co Ltd (1994) 1 NWLR (Part 318) 1

Nwokoro v Onuma (1999) 9 SCNJ 63

Nzom v Jinadu (1987) 1 NWLR (Part 51) 533

Obikoya v Wema Bank Ltd (1991) 7 NWLR (Part 201) 119

Odua Investment Ltd v Talabi (1991) 1 NWLR (Part 170) 761

Odulaja v Haddard (1973) 11 SC 35

Odunsi v Bamgbala (1995) 1 NWLR (Part 374) 641

Oduye v Nigeria Airways Ltd (1987) 2 NWLR (Part 55) 126

Ogbonna v A-G, of Imo State (1992) 11 NWLR (Part 270) 647

Ogbubunjo v The State (1996) 6 NWLR (Part 452) 78

Oguchi v Federal Mortgage Bank Ltd (1990) 6 NWLR (Part 156) 330

Ohiaeri v Akabeze (1992) 2 NWLR (Part 22) 1

Okeke v Agbodike (1991) 14 NWLR (Part 638) 218

Okhuarobo v Aigbe (2002) 9 NWLR (Part 771) 29

Okufunmise v Falana (1990) 3 NWLR (Part 136) 1

Olale v Ekwelendu (1989) 4 NWLR (Part 115) 326

Olatunde v Obafemi Awolowo University (1998) 5 NWLR (Part 549) 178

Ole v Ekede (1991) 4 NWLR (Part 167) 569

Omegabank (Nig.) Plc v OBC (2000) 16 NWLR (Part 794) 483

Onwugbufor v Okoye (1996) 1 NWLR (Part 424) 252

Oparaji v Ohanu (1999) 9 NWLR (Part 618) 290

Opebiyi v Oshoboja (1976) 9-10 SC 195

Opeola v Opadiran (1994) 5 NWLR (Part 344) 368

Osagbe v Ojo (1994) 6 NWLR (Part 349) 131

Oyegbola v Esso West Africa Ltd (1966) 1 All NLR 17

Salami v NAL Merchant Bank of Nigeria Ltd (1990) 2 NWLR (Part 130) 106

Sanusi v Daniel (1956) SCNLR 288

Taiwo v Adegboro (1997) 11 NWLR (Part 528) 224

UBN v Ozigi (1994) 1 NWLR (Part 333) 400

UBN v Penny-Mart Ltd (1992) 5 NWLR (Part 240) 228

UCA (Nig.) Ltd v Fasheyitan (1998) 11 NWLR (Part 573) 179

Umaru v Abdul-Muttallabi (1998) 11 NWLR (Part 573) 247

Ume v Okoronkwo (1996) 10 NWLR (Part 477) 133

Union Bank of Nigeria Ltd v Professor Ozigi (1991) 2 NWLR (Part 176) 677

Union Bank of Nigeria Ltd v Ugwu, FCA/E/176

Union Bank of Nigeria Ltd v Ozigi (1994) 4 NWLR (Part 333) 385

Union Bank of Nigeria Ltd v Ugwu FCA/E/176

Union Beverages Ltd v Owolabi (1988) 1 SC 233

Usenfowokan v Idowu (1969) NMLR 77

Vanderpuye v Gbadebo (1998) 3 NWLR (Part 541) 271

Woluchem v Gudi (1981) 5 SC 291

Foreign

Bexwell v Christie (1996) 1 Cowp. 395

Davis v Symons (1934) Ch 442

Frewen v Hays (1912) 106 LT 516

Haddington Island Quarry Co Ltd v Huson (1911) AC 722

Mason v Armitage (1806) 13 Ves 25

Nelthorpe v Pennyman 14 Ves 517

Phillips v Rajaiye (1961) LLR 15

Pinnock v Ollivant & Co Ltd 2 WACA 164

Re Vendervell's Trusts (No 2) [1974] 3 All ER 205

Tamakloe v The Basel Trading Company Ltd (1940) 6 WACA 231

Thomas Pinnock v G.B. Ollivant 2 WACA 165

Twining v Morrice (1788) 29 ER 182

The following statutes were referred to in this judgment:

Auction Law of Eastern Nigeria 1963: Ss 19; 19(1)

Companies and Allied Matters Act 1990: S 417

Conveyancing Act 1881: Ss 20; 21(1); 21(2)

Evidence Act: Ss 134; 136; 138

The following rules were referred to in this judgment:

High Court Civil Procedure Rules 1988 of Imo State: Order 25 rule 22

Kutigi, JSC (Delivered the Leading Judgment):- In the High Court of justice holden at Aba, the plaintiff claims against the defendants jointly and severally as follows:-

"(a) A declaration that the defendants are not entitled to sell the plaintiff's property situate at and called No 133 Aba -Owerri Road, Aba.

(b)     An order to set aside any purported sale of the said property made by the defendants on 1 February, 1988, or thereabout as being illegal and a nullity and damages for the wrongful act.

(c)     An order of the Honourable Court for a review of the account of the plaintiff in the first defendant bank to determine the amount (if any) outstanding against the plaintiffs.

(d)     An injunction to restrain the defendants by themselves, their servants or agents from selling or purporting to sell the plaintiff's aforesaid property."

Pleading were ordered, filed and exchanged. These were further amended by leave of court. The first and second defendants filed a joint Statement of Defence while the third defendant filed a separate Statement of Defence.

At the hearing, the plaintiff gave evidence and called three witnesses. Two witnesses testified on behalf of the first defendant while the second defendant testified for himself. He called no witnesses. The third defendant also testified but called no witnesses.

The facts may be summarised thus:-

The plaintiff (mortgagor) had in 1981 mortgaged his building known as No. 133 Aba-Owerri Road, Aba, summarised to the first defendant (Mortgagee) by virtue of a Deed of Mortgage (Exhibit 'B' in the proceedings) as security for a loan of N60,000. The loan was repayable within twelve (12) months. The plaintiff defaulted in complying with the terms of Exhibit 'B' and did not repay the loan for more than six years after the debt became due. Upon continued default by the plaintiff the first defendant/Bank sent relevant notices and statements of account to the plaintiff as evidenced by Exhibits 'G', 'H', 'H1' and 'H2' in the proceedings. When the first defendant first wanted to sell the house in 1982, it was stopped by the payment of N21,000 by the plaintiff. Then on 30 January 1988, the plaintiff saw a publication in the Nigerian Statesman Newspaper whereby the second defendant (auctioneer) had advertised the mortgaged property for sale on behalf of the first defendant/Bank. The auction sale was scheduled to take place on Monday 1 February 1988 at 8am. The plaintiff said he was able to raise the sum of N96,000 from friends which he took to the first defendant in payment of the mortgage debt so as to stop the auction sale but without success. This was denied. His contention also that there was no auction sale because there was no notice to that effect was equally denied. The first defendant said in exercise of its power of sale under Exhibit 'B', it gave notice of the intended sale by conspicuously pasting notice on the building and other public places in addition to the publication in the newspaper (Exhibit 'A'). That several people attended the auction sale including the plaintiff, his brother and agent who bidded for the property. The third defendant who also attended the public auction bidded. She was the highest bidder, and the property was duly sold to her and a deed of assignment executed in her favour as per Exhibit 'K'.

At the conclusion of hearing, Counsel on both sides addressed the court and in a considered judgment, the learned trial Judge dismissed plaintiff's claims.

Aggrieved by the judgment of the trial court, the plaintiff appealed to the Court of Appeal holden at Port-Harcourt. In a unanimous judgment, the appeal was dismissed. The plaintiff had now further appealed to this Court from the decision of the Court of Appeal.

The parties filed and exchanged briefs of arguments which were adopted and relied upon at the hearing of the appeal during which additional oral submissions were made by learned Counsel.

In the plaintiff/appellant's brief, the following issues have been set down for determination in the appeal:-

(1)     Having rightly held that the award made by the trial court in favour of the third respondent was without jurisdiction, was the Court of Appeal right to proceed to declare the third respondent the title holder of the rights, title and interest of the unexpired term of lease based on Exhibit 'B'?

(2)     Was the Court of Appeal right to have raised the question of waiver, thereby stating that Section 19 of the Auctioneers Law of Former Eastern Nigeria Laws, 1961 Vol. I, does not apply due to waiver in Clause 8 of Exhibit 'B'?

(3)     Was the Court of Appeal right to hold that Exhibits 'H-H2'. notices dated 15 May 1981 and 30 May 1985 were valid demand notices in respect of a proposed sale in 1988?

(4)     Is the decision of the Court of Appeal that there was an auction sale on 1 February 1988, correct and sustainable in the light of the pleadings and evidence before that court.

(5)     Does the manner in which the Court of Appeal resolved the issue of fraud and lack of good faith on the part of the first respondent show an appreciation of the appellant's complaints before the Court.

(6)     Was the Court of Appeal right not to have made any findings on issue whether Chief Orji Uzo Kalu was Chairman of the first respondent's Bank at the material time and whether the sale to his mother, the third respondent, was not against public policy?

These issues will be taken one by one.

Issue (1)

The contention here is that the Court of Appeal having rightly held that the so called counterclaim of the third defendant was bad in law and that the award made by the trial court in that regard was made without jurisdiction, the Court of Appeal was wrong when it somersaulted and proceeded to declare the third defendant the title holder of the rights, title and interest of the unexpired term of the lease based on Exhibit 'B' (the Deed of Legal Mortgage) between the plaintiff and the first defendant.

I say, straight away that this contention is baseless. All that the Court of Appeal said on page 281 of the record is this:-

"After a cool calm view of the facts there is much force in the contention of the appellant that invalid counterclaim was placed before the court; therefore any award by the learned trial Judge based on it was without jurisdiction. I am in complete agreement with the contention of the appellant so the award made on page 116 of the record of appeal having been made without jurisdiction is struck out.

Be that as it may, the claim in paragraph 24 of third respondent's Amended Statement of Defence was unnecessary and superfluous having had a Deed of Assignment legally and validly executed in her favour she was a title holder of the rights, title and interest of the unexpired term of the lease based on Exhibit 'B'."

By no stretch of imagination can it be said that the Court of Appeal has somersaulted in the above passage of its judgment. The Court of Appeal clearly struck out the third defendant/respondent's counterclaim and then proceeded to state the legal consequence flowing from the Deed of Assignment (based on

Exhibit 'B') already executed in favour of the third respondent. That is not making an award to the third defendant. The issue therefore fails.

Issues (2), (3) & (4)

These issues will be taken together. They deal with the main question of whether there was proper notice, public and personal, before the auction sale was conducted in the instant case.

The plaintiff contends that the Court of Appeal erred by holding that by virtue of Clause 8 of Exhibit 'B' (the Deed of Legal Mortgage), the plaintiff had waived his rights to be given notice of sale by the first defendant/Bank, when waiver as a special defence was not pleaded and when waiver was raised suo motu by the Court of Appeal and without giving the plaintiff a hearing. He said the Court of Appeal also failed to consider the provisions of Section 19 of the Auctioneers Law of Imo State of Nigeria a failure that has occasioned a failure of justice. It was also contended that the Court of Appeal erred when it held that Exhibits 'H'-'H2' constituted sufficient notice of sale by the first defendants to the plaintiff when in fact the property was sold 3 years after the notices had expired, the plaintiff was thus denied the opportunity to redeem his property because no fresh notice was served on him. It was further contended that the findings of the Court of Appeal that there was an auction sale was perverse because of material discrepancy in the evidence of witnesses which was never resolved.

It was common ground that the relationship between the plaintiff and the first defendant is contractual and governed by Exhibit 'B', the Deed of Legal Mortgage. That being so, extrinsic evidence will generally not be accepted to vary the terms agreed upon (see for example U.B.N v Ozigi (1994) 1 NWLR (Part 333) 400. I think the under mentioned clauses or provisions of Exhibit 'B' are relevant in the determination of this appeal as a whole:-

Now this deed witnesseth as follows:-

"1.     . . . The Borrower hereby convenants with the Bank to repay to the Bank the said sum of N60,000 (sixty thousand Naira) . . .on demand or within twelve (12) months from the date the first instalment of the overdraft was withdrawn by the Borrower . . . provided that failure to pay any instalment makes the whole balance outstanding due and payable

5.      The Borrower hereby further covenants with the Bank as follows-

v.      A demand for payment or any other demand or any notice under this security may be made or given by...any officer of the Bank by letter served personally upon the Borrower or sent by post addressed to the Borrower at the address as given in this security or at the last known place of abode or business of the Borrower...

7.      The Bank may at any time after the day appointed for the payment of this loan and without any further consent of the Borrower sell the mortgaged property or any part or parts thereof either together or in parcels and either by public auction or private contract . . .

8.      The Borrower hereby expressly waives his rights to be given notice by the Bank under Section 20 of the Conveyancing Act, 1881, or under any law or custom in operation in any part of the Federal Republic of Nigeria before the sale of the mortgaged property." (My emphasis.)

The learned trial Judge had found in his judgment on pages 109-110 that the following facts were not in dispute (and there was no appeal against the findings):-

"(a) That the plaintiff obtained a loan in 1981, from the first defendant which was reserved for repayment on property, formerly known as 85 Aba-Owerri Road, but now No. 133 Aba-Owerri Road, Aba.

(b)     That the loan was made refundable within 12 months (that is 1982).

(c)     That in 1982 the first defendant wanted to sell the mortgaged property due to the plaintiff's default in repaying the loan

(d)     That first defendant later changed its mind when plaintiff paid some money.

(e)     That between 1982 and 1988 (that is six years), plaintiff was still owing the mortgage debt to the first defendant.

(f)     That as at 1 February 1988, the mortgage debt had not been repaid in full.

(g)     That on 1 February, 1988, the property was sold to the third defendant."

Later on in the judgment he also found as a fact (and I agree with him) that:-

"(h) The demand notices Exhibits 'H', 'H1' and 'H2' dated 15 May, 1981, 28 March 1984 and 30 May 1985 had satisfied the requirement of notice of intention to sell the mortgaged property; and

(i)      The sale took place at an auction sale in which many people gathered and participated in bidding along with the third defendants."

It is trite law that persons of full age and sound mind are bound by any agreement lawfully entered into by them. Clause 7 of Exhibit 'B' above gave the first defendant the right to sell the mortgaged property if the plaintiff failed to repay the loan on the due date without any further consent of the plaintiff. By Clause 8 of Exhibit 'B', the plaintiff also waived his rights to be given any notice under any statute or customary law. The Court of Appeal was thus plainly giving effect to the agreement entered into by the plaintiff himself and nothing else when it said the plaintiff had waived his right to any notice of sale under Section 19 of the Auctioneers Law of Eastern Nigerian. The first defendant/Bank was thus not bound under the lease (Exhibit 'B') to have given the plaintiff any further notice of the proposed sale after the demand notices Exhibits 'H', 'H1' and 'H2'.

The plaintiff also contended in paragraph 21(c) of the Amended Statement of Claim that "the auction sale did not comply or conform to Auction Law of Eastern Nigeria 1963, and shall therefore contend at the trial that the purported sale of the said property is invalid in law and therefore of no effect."

But the plaintiff in his pleadings has failed to state the facts relied upon which render the auction sale not to have complied or conformed with the law. In other words the plaintiff did not state the facts which took the sale outside any statutory provision or provisions, since a party cannot set out the conclusion of law in his pleadings (see Liadi Giwa v Bisiriyu Erunmilokun (1961) All NLR 294; Re Vendervell's Trusts (No 2) [1974] 3 All ER 205; Ayoola & others v Folawiyo & others (1942) 8 WACA 39). It is also trite law that evidences given on matters not pleaded goes to no issue and ought to be disregarded by the court (see Makinde v Akinwale (2000) 2 NWLR (Part 645) 435). It is sufficient to conclude here that both the trial High Court and the Court of Appeal found that the first defendant in exercise of its power of sale under Exhibit 'B' gave notice of the intended sale by conspicuously pasting notices on the building and other public places in addition to the publication in the newspaper (Exhibit 'A').

These issues are therefore resolved against the plaintiff.

Issues (5) & (6)

These issues are founded on allegation of fraud or lack of good faith on the part of the first defendant and alleged collusion and or complicity between the chairman of the first defendant and the third defendant.

The simple answer here is that the plaintiff did not in his pleadings specifically plead fraud or collusion and even where he alluded to them, he furnished no particulars. He again led no evidence whatsoever to prove any of the allegations. For example in his evidence he told the Court that the third defendant who purchased the property was the mother of the chairman of the first defendant. Was that enough to prove collusion and or fraud between the first defendant and the third defendant without more? Certainly not! The plaintiff's story was disbelieved by the trial court as well as the Court of Appeal. It will serve no useful purpose here repeating him all over again. There was no obligation on the part of the Court of Appeal to have made a finding on one Chief Orji Uzo Kalu who was not a party to the case. As I said, since fraud was not specifically pleaded and no evidence led on it, it is a non-issue in the case. There was thus nothing to be resolved by the Court of Appeal.

These issues also fail.

Before I conclude I want to stress the fact that this is a case in which the evidence revealed that the plaintiff and his brother were present at the venue of the sale and indeed participated in the bidding. The plaintiff who allegedly had N96,000 with him, bidded and offered only N70,000 for his property. Clearly therefore he was not interested in redeeming his property. When the property was sold for N110,000 he said it was under valued, or that there was fraud and or collusion etc. The plaintiff clearly in my view has no case.

All the issues having been resolved against the plaintiff, the appeal must fail. It is accordingly dismissed with N10,000 costs to each set of the defendants/respondents.

Uwais, CJN:- I have had the opportunity of reading in draft the judgment read by my learned brother, Kutigi, JSC. I entirely agree with his reasoning and conclusions.

I accordingly hereby dismiss the appeal with N10,000 costs to each set of the respondents against the appellant.

Ogundare, JSC:- I had the advantage of reading before now the judgments of my learned brothers, Kutigi, and Uwaifo, JJSC. I agree with Kutigi, JSC, that this appeal lacks merit. I adopt in its entirety the reasoning of my learned brother, Uwaifo, JSC, on the application of Section 19 of the Auctioneers Law, Cap. 12 Laws of Eastern Nigeria, 1961, and the effect of Section 21(1) of the Conveyancing Act, 1881, (England) an Act of general application applicable to Abia State at all times relevant to these proceedings. I have nothing more to add.

I too dismiss the appeal and abide by the order for costs made by my learned brother, Kutigi, JSC.

Uwaifo, JSC:- The facts of this case are very simple. There is no dispute that the appellant took a loan of N60,000 from the first respondent bank. He could not repay the loan together with the interest in full, As at 29 January 1988, he was owing the sum of N106,338. The loan transaction was secured with his property at No. 133 Aba-Owerri Road, Aba, upon a deed of legal mortgage, Exhibit 'B'. The loan was to have been repaid in 1982 in terms, of Clause 1 of the deed of mortgage but was still owing six years on. Clause 7 of the deed gave the first respondent the power to sell the property to repay the loan "at any time after the day appointed for the repayment of this loan and without any further consent of the Borrower. Clause 8 contains the waiver made by the appellant as to his right to be given notice. . . under any law or custom. . . before the sale of the mortgaged property."

However, in spite of Clause 8 of Exhibit 'B', the first respondent demanded repayment of the loan and gave notice of its intention to sell as per Exhibits 'H', 'H1' and 'H2', the last of which was dated 30 May 1985, when the indebtedness was some N68,863,99. In my view, the appellant cannot be heard to complain that notice was not given when the debt rose to N106,338. Nor can he be heard to say that the notices given not having been acted upon, the first respondent had waived its right to rely on them. In the first place, it is enough that the first respondent gave notice of demand at all. Secondly, there was no obligation under the deed of mortgage to give notice since the appellant by Clause 8 had waived his right to be given such notice.

I do not intend, from what I have said above, to undermine the protection which equity gives to a mortgagor at the hands of an unconscionable mortgagee despite the mortgage terms when the latter is shown to have acted unreasonably: see Thomas Pinnock v G.B. Ollivant 2 WACA 165 at 168. In the present case no such unreasonableness on the part of the first respondent has been shown. On the contrary, it gave the appellant ample opportunity to repay his debt and redeem his mortgaged property. He failed to do so.

The only serious issues to be considered in this appeal are: (1) whether Section 19 of the Auctioneers Law, Cap. 12, Laws of Eastern Nigeria, 1961, applicable in Abia State was waived by the appellant by operation of Clause 8 of Exhibit 'B'; (2) whether such a statutory provision can be waived; (3) what is the effect of non-compliance with the provision. The provision of Section 19 reads thus:-

"No sale by auction of any land shall take place until after at least seven days' public notice thereof made at the principal town of the district in which the land is situated and also at the place of the intended sale. The notice shall be made not only by printed or written documents, but also by beat of drum or such other method intelligible to uneducated persons as may be prescribed as the divisional officer of the district where such sale is to take place may direct, and shall state the name and place of residence of the seller."

Although some aspect of this provision have become anachronistic owing to socio-political changes, it cannot be denied that the purpose of the provision is for the mortgagee to give adequate notice to the public of the proposed sale. It is not a notice intended to be given to the mortgagor. This is to ensure that a true public auction, where everyone interested in the property may have the opportunity to bid for it, is conducted for a fair deal, devoid of unconscionable bargain through connivance or collusion. This is not a notice which can be waived by the mortgagor. Actually, it does not lie with him to do so as it is not meant for him. The court below was therefore in error to have held that the waiver contained in Clause 8 of Exhibit 'B' extended to Section 19. There is absolutely no connection between the two. The former is a waiver of a private right of the mortgagor. The latter is to ensure that the auction, to borrow the words of Lord Mansfield in Bexwell v Christie (1776) 1. Comp. 395 at 396; 98 ER 1150, is not "a fraud upon the sale, and upon the public."

The evidence clearly is that Section 19 was not complied with. In paragraphs, 13 and 14 of the amended Statement of Claim, it was pleaded:-

"13. On Saturday 30 January, 1988, the plaintiff saw a publication at page 190 of the Statesman Newspaper of that day headed 'Auction Notice' advertising the plaintiff's said house for sale. The advertisement was inserted by the second defendants on behalf of the first defendant.

14.     The said advertisement hereby pleaded put the date of sale of the plaintiff's house for Monday 1 February, 1988, at 8am."

In their amended Statement of Defence, the first and second defendants, in paragraph 14, admitted the above quoted paragraphs 13 and 14. That shows that Section 19 of the Auctioneers' Law which requires not less than seven days of such public notice before the sale was not complied with.

There is however evidence that an auction sale took place at the premises although the appellant denied this in these terse words. "On 1 February 1988 at about 10am. I did not notice any auction sale carried out at the premises of the mortgaged property. In other words, no auction sale of the property was done." He called two witnesses to support this. But the second respondent, the auctioneer, said there was an auction sale. Two defence witnesses confirmed this. In particular, DW2, Okonkwo O.I. Aguago, said:-

"I know the plaintiff who was my landlord. On 26 January 1988 there was a poster at Aba. On 1 February 1988 I saw people converge at the premises of the property in dispute making offers to buy the property and my landlord the plaintiff was there in their midst. I was there when the auctioneer knocked his hammer for one woman after she had made some offers. I witnessed the sale to the third defendant of the property in dispute."

He was not challenged as to being a tenant of the appellant. The evidence as to poster is not one to be countenanced as the fact was not pleaded.

The third respondent who bought the property testified inter alia:-

"I arrived at the venue before 9am. The first person I saw at the venue who wanted to buy offered N80,000. Somebody offered N90,000 while others offered N95,000. At first I offered N100,000 before I offered N110,000. When I offered N110,000 there was no higher offer by anybody in the crowd. Then the auctioneer knocked his hammer for me - an indication that I have bought it."

This is the witness the appellant said acted as a front for the chairman of the Board of Directors of first respondent bank, one Chief Orji Uzor Kalu, being his mother.

I do not think it has been denied that the third respondent is the mother of the said Chief Kalu. It is not also disputed that Chief Kalu was the chairman of the board of Directors of the bank. But I think a few matters ought to be put right. First, what gave rise to the auction sale was not the making of the Chairman, Board of Directors. It was the failure of the appellant to settle his indebtedness with the bank. Second, auction sale attracts all and sundry. It affords an opportunity for anyone able to meet the challenges of an auction sale to participate in it unless he is precluded by any regulation, agreement, undertaking or by virtue of his special position in relationship with the transaction from so participating.

There is no evidence that the third respondent acted as a front for the said Chief Kalu. It is not enough to allege that she is the mother of Chief Kalu, the Chairman of the Board of Directors of the first respondent. It must be proved that she acted as his front and that he used his position to the detriment of the appellant. She would seem to have gone to participate in the auction sale like any other person with the intention of a real bidder. She said she went there in her own right and the two courts below accepted that fact. After all, an auction is a manner of selling or letting property by bids at a place open to the general public, usually to the highest bidder by public competition. The prices which the public are asked to pay are the highest which those who bid can be tempted to offer by the skill and fact of the auctioneer under the excitement of open competition: See Frewen v Hays (1912) 106 LT 516 at 518 PC per Lord McNaghten.

However, there are certain acts which will affect the proper conduct of an auction sale. These are improper or fraudulent acts which are likely to prevent the property put up from realising its fair value. Collusion or want of good faith is an obvious one: See Haddington Island Quarry Co Ltd v Huson (1911) AC 722 at 727; Ekaete v Nigeria Housing Development Society Ltd (1973) 6 SC 183 at 198. It is also recognised as another, any act which is likely to "chill" the sale, for example, the solicitor in a cause in which property is sold biding for it; See Nelthorpe v Pennyman 14 Ves. 517; 33 ER 619 per Lord Eldon, LC, who said: "It would be a very wholesome rule to lay down, that the solicitor in the cause should have nothing to do with the sale; as the certain effect of a bidding by the solicitor in the cause is that the sale is immediately chilled". See also Mason v Armitage (1806) 13 Ves 25; 13 ER 204 at 208. As Lord Mansfield said in Bexwell v Christie (1996) 1 Cowp. 395 at 396; 98 ER. 1150:

"The basis of all dealings ought to be good faith; so, more especially in these transactions, where the public are brought together upon a confidence that the articles set up to sale will be disposed of to the highest real bidder."

I have held that Section 19 of the Auctioneers' Law was not complied with. The effect of this would have been perhaps that an important condition for, what I might call, a popular auction sale not having been met, the sale would be held invalid. But a provision of another statute, Section 21(1) of the Conveyancing Act, 1881, applicable in Abia State, has interplayed with Section 19 of the Auctioneers' Law. It provides:-

"Where a conveyance is made in professed exercise of the power of sale conferred by this Act the title of the purchaser shall not be impeached on the ground that no case has arisen to authorise the sale, or that due notice was not given or that the power was otherwise improperly or irregularily exercised, but any person damnified by an unauthorised or improper or irregularly exercise of the power shall have his remedy in damages against the person exercising the power."

This is obviously to protect a bona fide purchaser who merely purchased under irregular circumstances as no purchaser who is tainted with fraud or collusion can be expected to benefit from this provision. Equity will intervene since as said by Sir Lloyd Kenyon, MR, in Twining v Morrice (1788) 29 ER 182 at 184,

"It is not every contract which is entered into that a court of equity will carry into execution."

In Sanusi v Daniel (1956) SCNLR 288, the Federal Supreme Court per Jibowu Ag, FCJ, after considering Section 21(2) of the Conveyancing Act in almost similar situation as this case observed at page 291 thus:-

"The appellant's complaint is against an irregular exercise of the power of sale on the ground that there was a contravention of Section 19(1) of the Sales by Auction Ordinance. It seems to me that the title of the second respondent cannot be impeached since the property was conveyed to him, and that the appellant's remedy is in damages against the first respondent as provided by Section 21(2) of the Conveyancing Act, 1881."

Section 19(1) of the Sales by Auction Ordinance is in pari materia with Section 19(1) of the Auctioneers' Law. The property in question has been duly conveyed to the third respondent following the auction sale. Nothing has been shown to have been done by her to attract the intervention of equity to deny her the right to the property.

For these reasons I too will dismiss this appeal as my learned brother, Kutigi, JSC, has done in his judgment which I had the opportunity to read in advance and do agree with. I abide by the costs as assessed by him.

Tobi, JSC (Dissenting):- The appellant is the plaintiff. He is the mortgagor. The first respondent is a commercial bank. It is the mortgagee. The second respondent is the auctioneer of the first respondent. The third respondent is the purchaser of the mortgaged property.

By virtue of the lease dated 5 April 1987, and registered as No 35 at page 35 in Volume 124 of the Lands Registry, Owerri, the appellant became owner of the property which is the subject of the litigation. As a customer of the first respondent, appellant applied for and was granted a loan of N60,000 in 1981. In consideration of the loan, appellant mortgaged the leasehold property to the first respondent.

The appellant and the first respondent entered into a Deed of Legal Mortgage. Exhibit 'B' is that deed. By Clause 1 of Exhibit 'B' appellant and first respondent agreed that the loan will be paid within a period of twelve months or on demand. There was a breach of Exhibit 'B'. The first respondent by Exhibits 'H' and 'H2' demanded the sum owed. Exhibit 'H2' stated specifically that if the sum of N68,883,99 was not paid, the property will be disposed of.

The appellant could not pay the sum demanded in Exhibit 'H2'. On Saturday, 30 January 1988, appellant saw an advertisement in The Statesman News paper offering the property for sale by public auction. The Statesman Newspaper is Exhibit 'A'. On Monday, 1 February 1988, the property was sold to the third respondent. The appellant said that he made frantic and last minute efforts to pay the loan but to no avail.

He filed an action asking for two reliefs:-

"(a) A declaration that the defendants are not entitled to sell the plaintiff's property situate at and called No. 133 Aba Owerri Road, Aba

(b)     An order to set aside any purported sale of the said property made by the defendants on 1 February, 1988, or thereabout as being illegal and a nullity and damages for the wrongful act."

The matter went to trial. The Judge dismissed the appellant's claims. He went to the Court of Appeal. That court also dismissed his appeal. He has come here.

Briefs were filed and exchanged. The appellant formulated the following issues for determination:-

(1)     Having rightly held that the award made by the trial court in favour of the third respondent was without jurisdiction, was the Court of Appeal right to proceed to declare the third respondent the title holder of the rights, title and interest of the unexpired term of lease based on Exhibit 'B'?

(2)     Was the Court of Appeal right to have raised the question of waiver, thereby stating that Section 19 of the Auctioneers Law of Former Eastern Nigeria Laws, 1961, Vol. 1 does not apply due to waiver in Clause 8 of Exhibit 'B'?

(3)     Was the Court of Appeal right to hold that Exhibits 'H'-'H2', notices dated 15 May 1981 and 30 May 1985 were valid demand notices in respect of a proposed sale in 1988?

(4)     Is the decision of the Court of Appeal that there was an auction sale on the 1 February, 1998, correct and sustainable in the light of the pleadings and evidence before that court?

(5)     Does the manner in which the Court of Appeal resolved the issue of fraud and lack of good faith on the part of the first respondent show an appreciation of the appellant's complaints before that court?

(6)     Was the Court of Appeal right not to have made any findings on issue whether Chief Orji Uzo Kalu was Chairman of the first respondent's Bank at the material time and whether the sale to his mother the third respondent was not against public policy?

The first and second respondents formulated the following issues for determination:-

"i. Whether the first respondent satisfied relevant conditions precedent and was entitled to exercise its power of sale within the context of the mutual deed of legal mortgage.

ii. Whether there was a valid auction sale of the mortgaged property resulting in the transfer of title by the first respondent to the third.

iii. Whether the appellant's several allegations or insinuation of fraud, collusion, bad faith and breach of public policy in the circumstances of the auction sale were sustainable and proved within the purview of the pleadings and available evidence."

The third respondent formulated the following issues for determination:-

"1.     Whether the title acquired by the third respondent to the property in question was dependent upon her counterclaim or upon the Deed of Assignment being Exhibit 'K' executed in her favour.

2.      Whether the Court of Appeal was right in holding that the appellant is deemed to have waived his rights to any notice by virtue of Clause 8 of Exhibit 'B' signed by the appellant.

3.      Whether there is any justification to disturb or interfere with the concurrent findings of fact of both the High Court and the Court of Appeal on the issues of (a) validity of the demand notices (b) validity of the auction sale, and (c) non-proof of the allegation of fraud and collusion."

Learned Counsel for the appellant, Mr Obianwu, submitted on Issue No 1 that the Court of Appeal having held that there was no valid counterclaim, the court was wrong in law to have made an award in favour of the third respondent, since it was not the case made on the pleadings by either party, nor was there any such evidence and the third respondent did not ask for the said prayer. Contending that the court is not a charitable organisation to award largesse, Counsel cited Ekpenyong v Nyong (1975) 2 SC 71 at 80; Chief Registrar High Court of Lagos State v Vamos Navigation Ltd (1977) 1 SC 33 at 41 and Union Beverages Ltd v Owolabi (1988) 1 SC 233 at 246-247. Learned Counsel submitted that the court was wrong in decreeing title to the third respondent based on Exhibit 'B', who was not a party to the Deed. He cited Ezeafulukwe v John Holt Ltd (1988) 2 NWLR (Part 432) 511 at 522. On the binding nature of pleadings, Counsel cited Osagbe v Ojo (1994) 6 NWLR (Part 349) 131.

On Issue No 2, learned Counsel submitted that the Court of Appeal erred in law by holding that by virtue of Clause 8 of Exhibit 'B', the appellant waived his rights to give notice by the Bank under Section 20 of the Conveyancing Act, 1881, or any law or custom in operation in Nigeria. It was the submission of Counsel that waiver, being a special defence, must be specially pleaded. Citing Abowaba v Adesina 12 WACA 18 and Order 25 rule 22 of the High Court Civil Procedure Rules, 1988 of Imo State, applicable in Abia State, learned Counsel contended that if the respondents wished to rely on Exhibit 'B' as constituting waiver, they ought to have pleaded the effect of the document. He also contended that the court was wrong in raising the issue of waiver suo motu, without hearing the appellant, a procedure that has prejudicially affected the judgment. He cited Umaru v Abdul-Muttallabi (1998) 11 NWLR (Part 573) 247 at 260.

Learned Counsel submitted that the sale of the property did not comply with Section 19 of the Auctioneers' Law, which required the giving of 7 days public notice made at Aba the principal town of the district where the mortgaged property is situate. Counsel cited Pinnock v Ollivant and Co 2 WACA 164, and Union Bank of Nigeria Ltd v Ugwu FCA/E/176 delivered on 26 November 1986. Learned Counsel pointed out that by virtue of Clause 8 of Exhibit 'B', what the appellant waived was his right to be given notice by the first respondent before the sale of the mortgaged property but not to a 7 days notice to the public, public notice of an intended genuine auction sale.

On Issue No 3, learned Counsel submitted that the Court of Appeal was in error when it held that Exhibit 'H' sufficiently gave notice of demand to the appellant to pay the mortgage loan. Counsel argued that having not acted on the last notice issued on 30 May 1985, the first respondent cannot subsequently wake up from slumber three years later and proceed to exercise its power of sale without giving a fresh notice of demand and showing the appellant's indebtedness as at January, 1988. The first respondent, Counsel submitted, by not acting on Exhibits 'H' and 'H2' had waived its right to do so. He cited once again Pinnock v Ollivant and Co (supra). He argued that the case of Chief Ojikutu v The Agbonmagbe Bank Ltd (1964) 2 All NLR 277 referred to by the Court of Appeal in holding that Exhibits 'H', 'H1' and 'H2' are valid demand notices, is inappropriate as the case was one in which notice of foreclosure had been given. Counsel urged the court to set aside the conclusion of the Court of Appeal on Exhibits 'H' and 'H2' on the ground that it is perverse.

On Issue No 4, learned Counsel submitted that the finding of the Court of Appeal that there was an auction sale is perverse and since it is based on the evaluation of evidence, this Court can re-evaluate the evidence of the witnesses.

He cited Motunwase v Sorungbe (1988) 5 NWLR (Part 92) 90 at 105; Ume v Okoronkwo (1996) 10 NWLR (Part 477) 133 at 144; Onwugbufor v Okoye (1996) 1 NWLR (Part 424) 252 and Awoyale v Ogunbiyi (No. 2) (1986) 2 NWLR (Part 24) 626. Counsel also examined the evidence of DW1 and PW3 as they related to whether there was an auction sale.

On Issue No 5, learned Counsel contended that the first respondent did not act in good faith and as such it was inequitable to allow the purported sale of the appellant's property to stand. It is the law that a mortgagee can only exercise his powers of sale if only he acted bona fide; and the same would be liable to be impeached if there is any evidence of bad faith, Counsel contended. He enumerated six incidents of what he regarded as bad faith on pages 18-20 of his brief.

On Issue No 6, learned Counsel submitted that the Court of Appeal was in gross error when it failed to make any finding on the issue whether Chief Orji Uzoi Kalu was the Chairman of the first respondent's bank at the material time and whether the sale of the property to his mother, the third respondent, is not liable to be impeached being against public policy. He argued that since the averment that Chief Orji Uzor Kalu, the Chairman of the first respondent's bank at the material time was the son of the third respondent was not denied, this Court should admit it in evidence. He cited Honika Sawmill (Nigeria) Ltd v Hoff (1994) 2 NWLR (Part 326) 252 at 265; Ohiaeri v Akabeze (1992) 2 NWLR (Part 22) 1; Odulaja v Haddard (1973) 11 SC 35 and Nigerian Maritime Services Ltd v Afolai (1976) 2 SC 79 at 81. Counsel urged the court to reverse the finding of the two courts that Chief Orji Uzor Kalu was Chairman of the first respondent at the time the action was already pending in court on the ground that it is perverse. He cited Ogbubunjo v The State (1996) 6 NWLR (Part 452) 78 at 88. Counsel urged the court to allow the appeal.

Objecting to the appellant's application for substitution, learned Counsel for the first and second respondents, Mr Anachebe, submitted that there is substantial legal distinction between a dissolved company as opposed to a company undergoing liquidation as the respondent bank. In the case of a dissolved company, it loses its legal personality upon dissolution and can no longer sue or be sued as in the case of dead human being. He cited Opebiyi v Oshoboja (1976) 9-10 SC 195; Nzom v Jinadu (1987) 1 NWLR (Part 51) 533.

In the case of a company undergoing liquidation, or in respect to which a provisional liquidation has been appointed, the sick company does not lose it legal personality prior to its dissolution. All that is required prior to institution of legal proceedings or continuation of pending legal proceedings is merely leave of court enabling fresh proceedings to be filed or for the pending proceedings to be continued against the company in respect of which a provisional liquidator has been appointed, Counsel argued. He cited Section 417 of the Companies and Allied Matters Act 1990, and the following cases: Opebiyi v Oshoboja (supra), Nzom v Jinadu (supra), and Cooperative and Commerce Bank (Nigeria) Ltd v Onwuchekwa (2000) 3 NWLR (Part 647) 65.

Learned Counsel for the first and second respondents submitted on Issue No 1 that Exhibit 'B', being a written contractual document speaks for itself and the parties/court will not be permitted to impute/propound extrinsic or extraneous interpretation to it. He cited Union Bank of Nigeria Plc v Professor Ozigi (1994) 3 NWLR (Part 144) 385 at 400; Macaulay v NAL Merchant Bank Ltd (1990) 4 NWLR (Part 144) 283; Salami v NAL Merchant Bank of Nigeria Ltd (1990) 2 NWLR (Part 130) 106; Bank of the North Ltd v Aliyu (1999) 7 NWLR (Part 612) 622 and Obikoya v Wema Bank Ltd (1991) 7 NWLR (Part 201) 119. Relying on Oguchi v FMBN Ltd (1990) 6 NWLR (Part 156) 330 at 343 and Nigerian Housing Development Society v Mumuni (1977) 11 NSCC 65, learned Counsel submitted that even though by virtue of Clause 7 of Exhibit 'B', there is no need for further recourse to the appellant upon his default in repayment. It is nevertheless settled law that once a mortgage debt had fallen due even if any stipulated notice to sell the mortgaged debt had not been given, the sale will nevertheless not be impeached. He submitted that by Clause 8 of Exhibit '8' the appellant waived his right to be given any statutory notice including under the Conveyancing Act, 1881, or any other law. He cited Adeniji v Onagoruwa (2000) 1 NWLR (Part 639) 1 in respect of the evaluation, interpretation and adoption of relevant portions of Exhibit 'B'.

In reply to the submission of learned Counsel for the appellant on pleading waiver as a special defence, Counsel submitted that there is no such provision in Order 25 rule 22 of the High Court (Civil Procedure) Rules, 1988. He submitted in the alternative that having not objected to the admission of Exhibit 'B', the appellant could no longer take objection on appeal to the evaluation of the exhibit. He cited Abowaba v Adeshina 12 WACA 18. Counsel however conceded that the requirement for special plea arises where waiver is to be imputed orally by conduct or vide an ambiguous document sought to be relied upon by the defence in such situation as might take the opposite party by surprise as opposed to situations as the instant where the documents containing the waiver clause is unequivocal, pleaded and admitted as documentary evidence by both parties to it. He cited Mbeledogu v Aneto (1996) 2 NWLR (Part 429) 157; Odua Investment Ltd v Talabi (1991) 1 NWLR (Part 170) 761 and Arize v NNPC (1991) 1 NWLR (Part 166) 258.

Referring to paragraph 21(c) of the Amended Statement of Claim and page 96 of the address of Counsel at the trial court, where he referred to Section 19 of the Auctioneers Law in relation to the appellant's statutory right, learned Counsel submitted that there was no argument in the trial court in respect of right of the public to 7 days notice, an issue which was never canvassed in the lower courts. He submitted that the appellant cannot enforce or take benefit of a contractual or statutory right/provision made in favour of a third party, in this case, the public. He cited UBN v Penny-Mart Ltd (1992) 5 NWLR (Part 240) 228 and Ikpeazu v ACB Ltd (1965) NMLR 374. On the issue of not pleading waiver, learned Counsel submitted that the appellant cannot suffer any prejudice or miscarriage of justice as he admitted being aware of the terms of Exhibit 'B', including Clause 8.

Learned Counsel submitted that failure of the mortgagee to give statutory or contractual notice cannot vitiate sale of the mortgaged property to an innocent purchase. He cited Nigerian Housing Development Society v Mumuni (1977) 11 NSCC 65. Such failure to give contractual notice where necessary can only entitle the mortgagor to damages for breach of contract. He cited Pinnock v Ollivant & Co Ltd 2 WACA 164. Counsel distinguished the facts of Pinnock v Ollivant & Co (supra) from the facts of this case.

In response to the submission of Counsel for the appellant on Exhibits 'H' and 'H2', learned Counsel contended that the allegations that several payments were lodged by the appellant into the account to settle the loan were not pleaded. Besides, the appellant did not disclose the source of that piece of information including vide Exhibit 'G' (the Statement of Claim), which the appellant disputes in its entirety, Counsel argued. Since the appellant did not dispute that the time for repayment had become due necessitating exercise of right of sale by the first respondents, the court is entitled to rely on interpretation and evaluate contents of agreement or documents placed before it and not embark on voyage of discovery of extraneous meanings/imputations, however ingeniously reasoned, unless the wordings of the agreement are ambiguous as to compel the court to ascertain the intention of the parties, learned Counsel argued. He cited Oparaji v Ohanu (1999) 9 NWLR (Part 618) 290; Oduye v Nigeria Airways Ltd (1987) 2 NWLR (Part 55) 126 and Obikoya v Wema Bank Ltd (1991) 7 NWLR (Part 210) 119.

On Issue Nos. 2 and 3, learned Counsel submitted that failure on the part of the appellant to specifically plead the allegations of fraud, collusion, bad faith and breach of public policy against the respondents in the circumstances of the auction sale and proved at the trial are prejudicial to the case of the appellant who has now raised the issues on appeal. Citing Section 138 of the Evidence Act and the cases of Nsirim v Omuma Construction Co Ltd (1994) 1 NWLR (Part 318) 1 and Okufunmise v Falana (1990) 3 NWLR (Part 136) 1 at 16, learned Counsel submitted that allegations of crime inclusive of fraud, and collusion made in civil cases must be proved beyond reasonable doubt. Since the allegations of fraud or collusion were not pleaded and particulars furnished or evidence in support adduced, the court should discountenance any allusion to allegation of fraud or collusion by the appellant in his brief. Urging the court to expunge any evidence adduced in support of the allegations at the trial, Counsel cited Makinde v Akinwale (2000) 2 NWLR (Part 545) 435; Opeola v Opadiran (1994) 5 NWLR (Part 344) 368; Adejumo v Ayantegbe (1999) All NLR 468; Adegbenro v A-G (1962) All NLR 428. Counsel also submitted that the appellant ought to have specifically pleaded bad faith and that it is insufficient if he pleaded that an act was done "without just cause". He cited Alhaji Wada v Chief Alkali of Birnin Kebbi (1962) All NLR (Part 2) 783.

Learned Counsel took time to deal with the allegations of fraud, collusion, bad faith and breach of public policy made by appellant at pages 18-20. He responded to all the allegations from pages 20-25 of his brief. He cited the following cases: Ikeanya v ACB Ltd (1991) 7 NWLR (Part 205) 626; Bendel Insurance Company Ltd v Edokpolor and Company Ltd (1986) 4 NWLR (Part 118) 725; Ole v Ekede (1991) 4 NWLR (Part 167) 569; Ekaete v Nigerian Housing Development Society Ltd (1973) 6 SC 183; Alhaji Balogun v Alhaji Libaran (1988) 6 SCNJ 71; Garba v State (1999) 11 NWLR (Part 627) 422; Makinde v Akinwale (2000) 2 NWLR (Part 645) 435; Woluchem v Gudi (1981) 5 SC 291 and Adekunle v Adeboye (1992) 2 NWLR (Part 223) 305. He urged the court to dismiss the appeal.

Learned Counsel for the third respondent, Chief Uche, submitted on Issue No 1 that the issue raised by the appellant in his issue number 1 is nothing but a storm in a tea cup. Counsel contended that the counterclaim was properly filed. He cited Ogbonna v Attorney-General of Imo State (1992) 11 NWLR (Part 270) 647 at 675. Counsel submitted that the title acquired by the third respondent to the property was not dependent upon her counterclaim but by virtue of the Deed of Assignment validly transferring title to her. Counsel argued that once a power of sale becomes exercisable and it is exercised, the subsequent purchaser acquires valid title and once a valid assignment has been made by the mortgagee to a third party bona fide and for valuable consideration, the title cannot be impeached. He cited Awojugbagbe Light Industries Ltd v Chinukwe (1995) 4 NWLR (Part 390) 379.

Learned Counsel submitted on Issue No 2 that the appellant's waiver of the right to be given notice by the first respondent under Section 20 of the Conveyancing Act, 1881, was not raised suo motu by the court. He contended that the first respondent raised the issue at pages 9 and 11 of its brief. Citing the cases, of Olatunde v Obafemi Awolowo University (1998) 5 NWLR (Part 549) 178 at 195; Mbeledogu v Aneto (1996) 2 NWLR (Part 429) 151 at 167; Haruna v Savannah Bank of Nigeria (1995) 2 NWLR (Part 377) 326 at 339 and clause 8 of Exhibit 'B', learned Counsel submitted that appellant waived his right to the notices.

Counsel contended that since Exhibit 'B' embodied the terms of the contract in a written document, extrinsic evidence would not be admissible to add to, vary, subtract from, or contradict the terms of such written instrument. Parties were presumed to have intended what they said in a document so that the words must be construed as they stand. He cited Union Bank of Nigeria Ltd v Ozigi (1994) 4 NWLR (Part 333) 385 at page 389. If a mortgagee exercises his power of sale bona fide for the purpose of releasing his debt and without collusion with the purchaser, the court will not interfere even though the sale is disadvantageous unless the price is so low as in itself to be evidence of fraud, Counsel argued. He cited Bank of the North Ltd v Alhaji Muri (1998) 2 NWLR (Part 536) 159; learned Counsel submitted that even where an auction sale is made without the requisite publicity or notice, the mortgagor will only be indemnified by the mortgagee in damages, rather than being a ground for setting aside the sale. He cited Majekodunmi v Co-operative Bank Ltd (1997) 10 NWLR (Part 524) 198; Sanusi v Daniel (1956) NSCC 85 and Oguchi v Federal Mortgage Bank Ltd (1990) 6 NWLR (Part 156) 330.

On Issue No 3, learned Counsel submitted that Issues Nos. 3, 4 and 5 and 6 of the appellant's brief for determination are all issues of concurrent findings by both the Court of Appeal and the trial High Court which this Court will not ordinarily disturb or interfere. He cited Elendu v Ekwoaba (1998) 12 NWLR (Part 578) 320 at 339; UCA (Nigeria) Ltd v Fasheyitan (1998) 11 NWLR (Part 573) 179 at 187; Okeke v Agbodike (1991) 14 NWLR (Part 638) 218 and Vanderpuye v Gbadebo (1998) 3 NWLR (Part 541) 271. On the allegation that the third respondent's son was the Chairman of the first respondent, learned Counsel submitted that apart from the fact that the allegation was very vague, the appellant did not prove it. He cited Sections 134 and 136 of the Evidence Act and the cases of Moses Ola and Sons Ltd v Bank of the North Ltd (1992) 3 NWLR (Part 229) 377 at 391; Kpansanagi v Shabako (1993) 5 NWLR (Part 291) 67 and Ikeanyi v ACB Ltd (1991) 7 NWLR (Part 205) 626 and 640.

On the allegation of fraud, learned Counsel submitted that where fraud is alleged, it must be specifically pleaded and particulars of the fraud given and where the commission of a crime like fraud is in issue, the party alleging must prove it beyond reasonable doubt. He cited Ikoku v Oli (1962) 1 SCNLR 307 and High Grade Maritime Services Ltd v First Bank of Nigeria Ltd (1991) 1 NWLR (Part 167) 290 at 294. Counsel pointed out that neither did the appellant in his pleadings specifically plead the particulars of the alleged fraud nor did he have any concrete proof of his allegations, thus the Court of Appeal had no hesitation in concurring with the findings of fact of the trial court on the issue.

Learned Counsel contended that the property was not sold at undervalue, pointing out that the exercise of the power of sale by an auction sale is not meant or expected to be a bonanza for the defaulter. To Counsel, if a mortgagee exercises the power of sale bona fide for the purpose of realising the debt, the court will not interfere even though the sale is disadvantageous to the mortgagor.

It was the submission of learned Counsel that the first and second respondents acted in good faith in the auction sale and the third respondent also bought the property in good faith. To him, there was nothing to show bad faith irrespective of the unsubstantiated accusations of the appellant. The first respondent, Counsel argued, was entitled to conduct the sale in such a manner conducive to their benefit and not for the benefit of the appellant. Citing Moses Ola and Sons Ltd v Bank of the North Ltd (supra), learned Counsel submitted that the only obligation incumbent on a mortgagee exercising his power of sale is that he should act in good faith. A mortgagee exercising his power of sale whether under an expressed or statutory power is entitled to conduct the sale in such a manner as he may think conducive to his benefit unless the deed contains any restrictions as to the mode of exercising the power, Counsel argued.

On the issue of efficacy of demand notice tendered as Exhibits 'H' and 'H2', learned Counsel submitted that the notices did not abate and there was no waiver whatsoever. The first respondent, Counsel contended, was not bound to make any concessions or to suspend the exercise of its power of sale since no consideration moved from the appellant and there was no binding agreement between the parties in that regard. Referring to Clause 7 of Exhibit 'B', learned Counsel argued that the clause provided that the Bank may sell the mortgaged property after the date appointed for repayment. He cited Emecheta v Ogueri (1997) 8 NWLR (Part 516) 323 on the issue of waiver by the appellant.

Dealing with the issue of contradictions in the evidence of witnesses, learned Counsel submitted that in normal course of events, it is expected that witnesses may not always speak of the same fact or event with equal and regimented accuracy. He contended that the contradictions in the evidence in question are not only unsubstantial but are also immaterial. He cited Egangbedo v The State (1989) 4 NWLR (Part 113) 57 at 83 and Nwokoro v Onuma (1999) 9 SCNJ 63 at 66 and 67. On the evaluation of evidence of witnesses, Counsel pointed out that the decision of the Court of Appeal was not based on the credibility of witnesses and so the appellant cannot complain. He cited His Highness, Oba Omoborunola II v The Military Governor of Ondo State (1998) 14 NWLR (Part 584) 89 at 91. Counsel, like his colleague for the first respondent, dealt with the sanctity of Exhibit 'B' and cited the case of Union Bank of Nigeria Ltd v Ozigi (1994) 4 NWLR (Part 333) 385 at 389. He urged the court to dismiss the appeal.

Learned Counsel for the appellant in his reply brief submitted that the leave that is required under Section 417 of CAMA is for proceedings of action pending or instituted at the Federal High Court. He cited FMBN v NDIC (1999) 2 NWLR (Part 591) 333. He also submitted that the facts of the case of CCB (Nigeria) Ltd v Onwuchekwa (2000) 3 NWLR (Part 647) 65 are distinguishable from the facts of this case. He cited Abekhe v NDIC (1995) 17 NWLR (Part 406) 228. Counsel finally submitted that the application for substitution before this Court is properly made. To him, it will serve no useful purpose to continue with the proceedings against a company (i.e. the first respondent) that is on the verge of being dissolved when the provisional liquidator statutorily empowered to stand in its place is available.

Let me take the preliminary objection as to substitution. I entirely agree with learned Counsel for the appellant that Section 417 of the Companies and Allied Matters Act, 1990, leave requirement is only applicable to the Federal High Court. That was the decision of this Court in Federal Mortgage Bank of Nigeria v Nigeria Deposit Insurance Corporation (1999) 2 NWLR (Part 591) 333, where Ogundare, JSC, said at page 365:

"In any event, what is prohibited by Section 417 except with leave of court, is an action or proceeding pending or instituted in the Federal High Court for that is the meaning of the word "court" as used in the section -see Section 650 of the CAMA. I think, therefore, that the court below was in error when it held that leave was required before the plaintiff could proceed with its motion against the respondent in the High Court of Lagos State."

It is clear that the application was not made to the Federal High Court. Learned Counsel for the first and second respondents stated at page 1 of the respondents' brief in opposition to the appellant's application for substitution that the "application for substitution of the first defendant on record by NDIC is premised on the appeal to the Supreme Court filed pursuant to leave of the Court of Appeal granted on 25 June 1997 . . ." The objection therefore fails.

Let me take first the issue of counterclaim. The Court of Appeal said at pages 280 and 281 on the counterclaim:

"In seeking the amendment third respondent sought leave to amend her Statement of Defence without prayer to set up a counterclaim. In his judgment the learned trial Judge treated the said paragraph as a counterclaim. Appellant has attacked the treatment of paragraph 24 aforesaid as a counterclaim as erroneous in law as in brief of argument and the grant of the relief based upon it as legally incorrect and be set aside. A counter-claim to quote from Bairamien, JSC, in Oyegbola v Esso Wa (1966) 1 All NLR 170 is a weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action. The counterclaim must be directly related to the principal claim but not outside of and independent of the subject matter of the claim. There is no doubt that paragraph 24 of third respondent's amended Statement of Defence was not emphatic that the claim was by way of counterclaim as stated in Order 25 rule 16 supra. . .Be that as it may, the claim in paragraph 24 of third respondent's amended statement of defence was really unnecessary and superfluous having had a deed of assignment legally and validly executed in her favour she was a title holder of the rights, title and interest of the unexpired term of the lease based on Exhibit 'B'."

The Court of Appeal held that the counterclaim was incompetent. That is the clear implication of what the court said at page 281 and 282:-

"In conclusion, all the issues raised by the appellant in his appellant's brief of argument were all resolved against the appellant for the reasons given in this judgment as a consequence of which the appeal of the appellant is, dismissed as after due consideration of the law all the issues are found to be unmeritorious except the issue of incompetent counter-claim raised against the third respondent." (My emphasis.)

The procedure for setting up a counterclaim is well established in law. It is the usual practice to commence a counterclaim immediately after the defence. It could be on the same page with the defence or on a fresh or separate page. There is no rule of the thumb. It depends upon the state of the individual pleadings. The important thing is that it should follow immediately after the defence and that is the meaning of the conjunction "and" found in most Rules of Court.

By our practice, a counterclaim is clearly marked "counterclaim" and the defendant, who in his apparently changed status of plaintiff, avers in numbered paragraphs his claim which finally ends in the relief or reliefs sought. A counterclaim, though related to the principal action, is a separate and independent action and our adjectival law requires that it must be filed separately. The separate and independent nature of a counter-claim is borne out from the fact that it allows the defendant to maintain an action against the plaintiff as profitably as in a separate suit. It is a weapon of defence which enables the defendant to enforce a claim against the plaintiff as effectually as an independent action. As a matter of law, a counterclaim is a cross action with its separate pleadings, judgment and costs. It is almost in a world of its own. But a counterclaim cannot be inconsistent with the plaintiff's claim in the sense that it cannot erect a totally different case from that of the plaintiff. See Oyegbola v Esso West Africa Ltd (1966) 1 All NLR 17; Nigerian Ports Authority v CGFC (1974) 11 SC 81; Biode Pharmaceutical Industries Ltd v Adsell Ltd (1986) 5 NWLR (Part 46) 1070; Fabunmi v Agbe (1985) 1 NWLR (Part 2) 299; Phillips v Rajaiye (1961) LLR 15; Elliot Saville and Company v Mallam Lansari (1957) NNLR 165; Emaphil Ltd v Odili (1987) 4 NWLR (Part 67) 915 at 938.

What is the procedure or arrangement adopted in the third respondent's amended statement of defence? The third respondent's amended statement of defence which is on pages 43-51 contains 24 paragraphs. In paragraph 24, the last paragraph, the third respondent averred:-

"Wherefore the third defendant claims against the plaintiff as follows:-

(a)     A declaration of this Honourable Court that the third defendant is the lawful owner of No 133, Aba/Owerri Road, Aba, by virtue of the Deed of Assignment registered as No 42 at page 42 in Volume 419 of the Land Registry, Owerri.

(b)     An order of the plaintiff to give up possession of the said premises.

(c)     An order for the payment by the plaintiff over the third defendant of all the rents paid or payable in respect of the premises since 1 February 1988 to date."

What did the learned trial Judge say about the so-called counterclaim? He came to the following conclusion and ordered as follows at page 116 of the record.

"On the third defendant's counterclaim, it is yet uncertain what amount the plaintiff has collected as rents on the property from 1 February 1988 till date. This Court cannot make an order based on uncertainty. I hold that third defendant is the lawful owner of the property at No 133.Aba/Owerri Road, Aba with effect from 1 February 1988. I hereby order the plaintiff to give up vacant possession of the said No 133 Aba-Owerri Road, Aba, to the third defendant on or before 3 August, 1992. In the final result, the plaintiff's claims are hereby dismissed."

It is clear from the first two sentences that the learned trial Judge had problem with the claim for rent. But that is not an important point for the purposes of this appeal. The important point is what the Court of Appeal said about the so-called counterclaim? At the expense of prolixity and for the needed emphasis, I should say that the Court of Appeal regarded the counterclaim as incompetent, and I entirely agree with that court.

It is clear from the procedure adopted by the third respondent that paragraph 24 alone does not qualify as a counterclaim. I have not come across a counter-claim of only one paragraph. Although the law does not provide for a minimum number of paragraphs in a counterclaim, I am pretty certain in my mind that one paragraph cannot in law make a counterclaim. Is it possible for the single paragraph to narrate the story of the counterclaim as well as the relief sought? I think not. I therefore agree entirely with the Court of Appeal when that court came to the conclusion that the counterclaim is incompetent.

A counterclaim is a conspicuous process which must be clearly donated by the Statement of Defence. It is not a secret or obscure document which the court and the plaintiff must use due diligence and strength to locate in the Statement of Defence. On the contrary, it is one clear process which the court and the plaintiff can easily identify. Even a plaintiff who is a layman, in the sense that he is not a lawyer, can easily identify a counterclaim as it is clearly written on the face of the pleadings of the defendant. In my humble opinion, paragraph 24 does not constitute a counterclaim.

The pitch of the submission of learned Counsel for the appellant is that since the Court of Appeal held that the counterclaim is incompetent, it lacked the jurisdiction to give judgment in favour of the third respondent. Dealing with paragraph 24 of the third respondent's amended statement of defence, the Court of Appeal said at page 281 of the record:

"Be that as it may, the claim in paragraph 24 of the third respondent's amended statement of defence was really unnecessary and superfluous having had a deed of assignment legally and validly executed in her favour she was a title holder of the rights, title and interest of the unexpired term of the lease based on Exhibit 'B'."

By the above, the Court of Appeal relied on Exhibit 'K' and not on the counter-claim and that was the court's apparent basis for the final order dismissing the appeal of the appellant. Although the court did not specifically mention Exhibit 'K', it is the deed of assignment from the first respondent to the third respondent, which the court mentioned above.

There is one crucial aspect and it is the submission of learned Counsel for the appellant that the Court of Appeal granted the third respondent relief she did not claim. Learned Counsel submitted at page 7 of the appellant's brief:-

"The appellant submits that having held that there was no valid counter-claim, the Court of Appeal erred in law to have made an award in favour of third respondent, since it was not the case made on the pleadings by either party nor was there any such evidence and the third respondent did not ask for the said prayer. This was, with respect, a gratuitous award made without jurisdiction. A court, it has been decided, is not a charitable organisation to award largesse. It is without power to award to a claimant what he did not claim."

In view of the fact that I have dealt with the first leg of the submission as it relates to the counterclaim, I will not repeat myself. I should rather take the issue of the Court of Appeal making an award which was not claimed in favour of the third respondent. I do not intend to take the issue from the point of view of the counterclaim but I should take the issue from the finding and conclusion of the Court of Appeal on paragraph 24 of the amended Statement of Defence. That is the relief paragraph. It is the paragraph that the Court of Appeal held to be "unnecessary and superfluous." The court therefore did not rely on the paragraph. The court, as I have said, relied on Exhibit 'K' to give judgment in favour of the third respondent.

In view of the fact that the court pronounced paragraph 24 of the amended Statement of Defence as "unnecessary and superfluous," there was no relief available to the third respondent. This is because paragraph 24 which contained Exhibit 'K', by the pronouncement of the Court of Appeal, no more existed. Accordingly the Court of Appeal had no jurisdiction to make the following order as it affected the third respondent:-

"The appeal is dismissed, the claims of the appellant are dismissed like the decision of the lower court in its entirety. Having dismissed the appeal the respondents are entitled to costs. Acting judicially and judiciously, I fix the costs as follows. . . I also award the sum of N1,500 in favour of the third respondent against the appellant."

What is the legal implication of the above order as it relates to the third respondent? The legal implication is clear when the final order of the trial Judge is taken. Since I have reproduced the order above, I should not repeat it. The legal implication of the order of the Court of Appeal, when taken together with the order of the trial Judge, is that the third respondent is the lawful owner of the property at No 133, Aba/Owerri Road, Aba, with effect from 1 February 1988, and that the appellant must give up vacant possession of the said property to the third respondent on or before 3 August 1992. I hold that the Court of Appeal had no jurisdiction and competence to give the above order after coming to the conclusion that paragraph 24 of the amended statement of defence is unnecessary and superfluous and that the counterclaim is incompetent.

I should like to correct an error on the part of the appellant before I leave the issue of the counterclaim and paragraph 24. Counsel claimed at page 8 of his brief that the Court of Appeal said that the counterclaim was "unnecessary and superfluous." With respect, the court did not say such a thing. The Court of Appeal held that the counterclaim is "incompetent." The court also held that paragraph 24 of the amended Statement of Defence was "unnecessary and superfluous;" not the counter-claim.

Let me take Exhibit 'B'. It is the Deed of Legal Mortgage between the first respondent and the appellant. The first issue is whether the waiver clause in Exhibit 'B' was duly pleaded? Clause 8 of Exhibit 'B' provided as follows:-

"The borrower hereby expressly waives his right to be given notice by the Bank under Section 20 of the Conveyancing Act, 1881, or under any Law or Custom in operation in any part of the Federal Republic of Nigeria before the sale of the mortgaged property."

Dealing with the above, the Court of Appeal said at pages 271 and 272 of the record:-

"In Exhibit 'B' Clause 8 supra the appellant herein expressly waived his right to be given notice by the Bank under Section 20 of the Conveyancing Act 1881 or under any law or custom in operation in any part of the Federal Republic of Nigeria before the sale of the mortgaged property. . . Applying the decision in Ariori v Elemo (1983) 1 SCNLR 1, such waiver is permissible, it is only a constitutional right like fundamental right of fair hearing that a waiver is not permissible. So with respect, Section 19 of Cap. 12 supra does not apply due to waiver in Clause 8 of Exhibit 'B'."

Although learned Counsel for the first and second respondents argued at page 8 of his brief that waiver need not be pleaded, he argued with the same breath at page 15 that the appellant's contention that the first respondent was held to have waived exercise of its right of sale of the mortgaged property, a contention inherent in the definition of waiver, was not pleaded and therefore this Court should not countenance it. And so, when the issue goes against the first respondent, his client, he contends that waiver need not be pleaded and when he uses the same principle of law against the appellant, he takes the opposite view. While the point is conceded that an advocate should be sensitive and loyal to his client's case, such sensitivity and loyalty should not exceed required boundaries, particularly the duty the advocate owes the court to present the law correctly, even if it is against his client.

What is the position of the law pleadings in respect of the defence of waiver? Waiver as an equitable defence must be specifically pleaded by the defendant. See Abowabe v Adesina 12 WACA 18; Dama v Lion of Africa Insurance Co. (1970) NNLR 84.14 It is elementary law that parties are bound by their pleadings and facts not pleaded will go to the no issue. In other words, evidence on facts not pleaded will not avail the party relying on the evidence. See Chinda v Amadi (2002) 7 NWLR (Part 767) 505; Okhuarobo v Aigbe (2002) 9 NWLR (Part 771) 29; Adetoro v Ogo Oluwa Kitan Trading Co Ltd (2002) 9 NWLR (Part 771) 157; Omegabank (Nigeria) Plc v OBC (2000) 16 NWLR (Part 794) 483.

A related point is that since waiver was not pleaded, it was not available to the Court of Appeal to raise it suo motu and resolve it suo motu. While a court has the jurisdiction to raise an issue suo motu, it has no jurisdiction to resolve it suo motu. In our adversary system of adjudication, a court of law should be most reluctant to raise issues suo motu. When it does that, the parties must be given an opportunity to react to the issue before a decision is taken. The Court of Appeal did not follow this procedure. The court was in serious error for not giving the right to Counsel to react to the issue of waiver which it raised suo motu.

There is yet another point in respect of the defence of waiver and the point raised by learned Counsel for the appellant. It is that, assuming the defence of waiver is available to the respondents (without so conceding). The appellant only waived his rights to notice to him. This is quite a brilliant submission. Clause 8 in Exhibit 'B' is very clear on that. I can quote the wordings here at the expense of prolixity:

"The appellant herein expressly waived his right to be given notice by the Bank under Section 20 of the Conveyancing Act 1881."

By Clause 8 of Exhibit 'B', the appellant can only waive his right to the statutory notice under the Auctioneers Law of Former Eastern Nigeria, 1963. He cannot waive the right to notice of members of the public or third parties who will be interested in the auction sale. After all, it is good law that a party cannot waive the legal right of members of the public because the right does not belong to him. One can not waive a right that belongs to some other person or persons.

Learned Counsel for the appellant relied heavily on Section 19 of the Auctioneers Law of Former Eastern Nigeria. The section provides in part:

"No sale by auction of any land shall take place until after at least seven days public notice thereof made at the principal town of the district in which the land is situated and also at the place of the intended sale. . ."

The rationale behind Section 19 is to ensure that interested members of the public participate in the auction sale, and not a few persons. It is one section which is designed to stop any collusion amongst the mortgagee, auctioneer and or buyer, relevantly in this appeal, the first, second and third respondents, respectively.

By the provision, a minimum of seven days notice is required to be issued to the members of the public. What happened in this case? Did the first respondent satisfy the statutory notice of seven days in Section 19? If not, why not?

Exhibit 'A' is the notice of intention to sell the property. It is the Statesman Newspaper publication of Friday, 30 January 1988. There is evidence that the auction sale was fixed for Monday. 1 February, 1988. This gave a notice of only two days, as opposed to the seven days minimum notice.

The Court of Appeal held that Section 19 of the Auctioneers Law of Former Eastern Nigeria was not applicable because of the waiver Clause No 8 of Exhibit 'B'. I have held that the waiver clause in Exhibit 'B' cannot be invoked because waiver was not duly pleaded by the respondents, and even if duly pleaded, the waiver in Exhibit 'B' did not extend to members of the public. Flowing from that, I am of the firm view that Exhibit 'A' clearly breached the provision of Section 19 of the Auctioneers Law.

In Pinnock v Olivant and Co (1934) 2 WACA 164 (supra), the claim was to set aside a sale made by the first defendants GB Olivant and Company Limited as Mortgagee-Vendors to the second defendant, of certain land at Naswam under the power of sale in a Deed of Mortgage granted by the plaintiff to the first defendants, and for redemption. The ground upon which the claim was based was that the sale was effected without one calendar month's previous notice being given to the plaintiff of the intention to exercise the power of sale as stipulated in the Deed of Mortgage. Graham Paul, J, delivering the leading judgment of the West African Court of Appeal, stressed the importance of public notice. He said at page 166:

"There was no notice given either to the public in general or to the mortgagor in particular of this proposed sale. I think that the most important point of the appellant's case was not put forward by his Counsel."

In his concurring judgment, Kingdom, CJ, said at page 168:-

"Equity has always aimed at protecting a mortgagor from unreasonable treatment at the hands of a mortgagee at a time when his necessities may have placed him at the mercy of the mortgagor; and has looked with jealousy upon any attempt to contract or oppose its interference on behalf of the mortgagee in the present case appears to me to be wholly reasonable."

What comes out from Pinnock is the following: (1) The need for the public to be notified of the sale of mortgage property. (2) The need on the part of the court to protect the mortgagor from unreasonable treatment by the mortgagee; treatment which could be likened to a conduct of Shylock in the literature play of Merchant of Venice. And the relevant evidence here on the unreasonable treatment is the so-called waiver Clause 8 of Exhibit 'B'. A person who is in desperate need of money to execute a project can agree to any terms, including Clause 8 in order to obtain his facility. All he needs is money and he can do anything to get the loan, even the most cruel conditions. This Court should in appropriate cases rise to the aid and support of mortgagors to declare such clauses as against human conscience and public policy. I do hope that day will come. This case does not provide that opportunity.

Learned Counsel for the first and second respondents made all efforts to distinguish the facts of this case from those of Pinnock. He was quick in saying that Pinnock is a case of persuasive authority. Much as I appreciate his efforts, I am firmly of the view that Pinnock came out excellently on the need to give the public notice and that, in my view, applies adequately to the issue in this appeal. I had earlier made the point that if the waiver clause in Exhibit 'B' is functional; it is clearly restricted to the appellant's right to notice and not the right of the public to notice. I entirely agree with learned Counsel that Pinnock, being a decision of the West African Court of Appeal, is a persuasive authority. I allow myself to be persuaded by the authority and I am hereby persuaded and therefore adopt the decision as it relates to notice to members of the public. It is a sound judgment.

In the unreported case of Union Bank of Nigeria Ltd v Ugwu, FCA/E/176 delivered on 26 November 1986, Kolawole, JCA, dealt with Section 19 of the Auctioneers Law Cap. 12, Laws of Eastern Nigeria. He said:-

"The other aspect of the plaintiff's plea is that the sale on the 5th January, 1974, was made without publication as required by law. I am of the view that any public auction must be conducted in accordance with the Auctioneers Law Cap. 12 of Laws of Eastern Nigeria. Where the mandatory provisions of the law are not complied with, it is my judgment that any sale conducted on 5 January, 1974, did not comply with Sections 19, 20 and 21 of the Auctioneer Law."

In Chief Oseni v American International Insurance Company Ltd (1985) 3 NWLR (Part 11) 229, the Court of Appeal held that the auction sale not having been conducted in accordance with the provisions of Sections 19 and 20 of the Sales By Auction Law of Lagos State in that the notice of auction sale published in the issue of Concord Newspaper of 28 February 1984, fell short of the requirement of, at least, seven days notice before the sale as provided by law, was not valid.

In Taiwo v Adegboro (1997) 11 NWLR (Part 528) 224, the Court of Appeal held that where there is non-compliance with Section 19 of the Auctioneers Law of Kwara State in the sale of mortgaged property by auction which requires that seven days notice be given after the notice of sale is pasted, the sale is invalid.

In Ihekwoaba v African Continental Bank Ltd (1998) 10 NWLR (Part 571) 590, the Court of Appeal held as follows: (1) The requirement of Section 19 of the Auctioneers Law, Cap. 12, Laws of Eastern Nigeria, 1963, to the effect that no sale by auction of any land shall take place until after at least seven days' public notice thereof made at the principal town of the district which the land is situated and also at the place of the intended sale is mandatory. (2) When a public notice of an auction sale of land is given, it must be allowed to last at least seven days before the sale takes place. Thus no sale can validly take place within less than seven days from the day the public notice is put out both at the principal town of the district in which the land is situated and the very place the land intended to be sold is.

And finally, in Fojule v Federal Mortgage Bank of Nigeria (2001) 2 NWLR (Part 697) 384, the Court of Appeal held that by virtue of Section 19 of the Auctioneers Law of Northern Nigeria no sale by auction of any land shall take place until after, at least, seven days public notice thereof made at principal town. This provision of the law, the court held, is very clear and unambiguous and there is no lacuna in the provision to be filled by reference to any other law.

Although all the above decisions are merely of persuasive authority, like Pinnock, I adopt the decisions as they relate to the construction or interpretation of Section 19. They have stated the correct position of the law. Did the appellant plead the Auctioneers Law of Former Eastern Nigeria? He did in paragraph 21(c) of the Amended Statement of Claim. The appellant averred:-

"The plaintiff states that the purported auction sale did not conform with the Sales of Auction Laws of Eastern Nigeria 1963 and shall therefore contend at the trial that the purported sale of the said property is invalid in law."

In my view, paragraph 21(c) clearly pleads, not only the Law, but the effect of the Law on the sale of the property to the third respondent. This is in conformity with the law of pleading, which requires that relevant documents by their very nature are invariably material facts which should be pleaded.

In Ipinlaiye II v Chief Olukotun (1996) 6 NWLR (Part 451) 148, lguh, JSC, said at page 166:-

"Consequently, where the contents of a document are material, it shall be sufficient in any pleading to aver the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material such as in cases of libel."

I will find it extremely difficult to agree with the view that because Section 19 of the Law is not specifically pleaded, evidence cannot be heard in respect of the non-compliance with the section as it relates to the giving of seven days notice. With the greatest respect, that will be too abstract and technical for my liking. This Court has come of age or arrived at an age where it must do substantial justice in the enforcement of the judicial process. And what is more, the respondents did not aver in their pleadings that paragraph 21(c) is not adequate pleading. As a matter of fact, Counsel for the first and second respondents used the sub-paragraph and applied it in his argument. In my view, this Court is not competent to raise the issue suo motu without giving the appellant the opportunity to react to it. The case law is in great proliferation. Let me save my time in citing some.

The aspects of doing substantial justice and the respondents not raising the issue apart, I do think that that technical position is in line with the trend or flow of the case law. I say this because this Court had even taken a step further by holding that documentary evidence need not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. In Odunsi v Bamgbala (1995) 1 NWLR (Part 374) 641, Adio, JSC, said at page 667 and I quote him in extenso:

"The complaint of the appellant was that Exhibits 'D1'-'D4' were not pleaded by either of the parties and should, therefore, not have been admitted or used for the purpose of deciding any issue in the case. There was substance in the submission, made for the respondents, that only material facts should be pleaded in pleadings and that as the plaintiffs pleaded the payment of annual rents by the father of the defendant and led evidence to that effect, Exhibits 'D1'-'D4' were admissible. The legal position is that documents in support of facts pleaded need not be pleaded and they can be tendered in support of facts pleaded. See Monier Construction Co v Azubuike (1990) 3 NWLR (Part 136) 74."

In Ipinlaye II v Chief Olukotun (1996) 6 NWLR (Part 453) 148, this Court rightly took the same position. lguh, JSC, said at page 166:-

"Documentary evidence, however, needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded.

The appellant averred in paragraphs 13, 14 and 22(a) as follows:-

"13. On Saturday 30th January 1988, the plaintiff saw a publication at page 10 of the Statesman Newspaper of that day headed "Auction Notice" advertising the plaintiff's said house for sale. The advertisement was inserted by the second defendant on behalf of the first respondent.

14.     The said advertisement hereby pleaded put the date of sale of the plaintiff's house for Monday 1 February, 1988, at 8 a.m.

22(e) The Plaintiff states that the alleged power of sale of the first defendant was improperly and unreasonably exercised."

Paragraphs in pleadings are not read in isolation but read together to obtain the total story of the parties. Giving a community reading to the above paragraphs together with paragraph 21(c) make me to come to the inescapable conclusion that the appellant pleaded the non-compliance with the Auctioneers Law, pleadings which form the legal basis for the following evidence:-

PW1 with the National Archive, Enugu, said in evidence-in-chief:-

"It is part of our duty at the Archive to keep custody of the Nation's newspapers. I had the opportunity of keeping copies of Statesman Newspaper of 30/1/88. This is the newspaper at page 10 Publication of the Advert by the Auctioneer. This is the Publication."

The Statesman publication of 30 January 1988 was thus admitted as Exhibit 'A'. Exhibit 'A' is the advertisement duly pleaded in paragraph 14 of the Amended Statement of Claim. And what is the content of Exhibit 'A'? The appellant, as PW2 said in evidence-in-chief at page 61:-

"On Saturday 30 January 1988 I came across a publication in Statesman at page 10 advertising the mortgaged property for sale by the first defendant on behalf of the first defendant on Monday morning of 1 February 88."

The above evidence is the basis for the pleading in paragraph 13 of the Amended Statement of Claim.

The averments in paragraphs 13 and 14 gave rise to paragraph 22(a). I can still go further. It is the averment in paragraph 22(e) that results in the averment that the purported auction sale did not conform to the Auctioneers Law of Eastern Nigeria. This is clearly underscored in Exhibit A which gave only two days notice to the public, the two days being Saturday and Sunday, were not working days.

Let me pause here to make a point that learned Counsel for the first and second respondents was wrong when he submitted that bad faith and collusion were not pleaded. Paragraph 22(c) pleaded bad faith while paragraph 22(d) pleaded collusion.

I should now take the issue of bad faith canvassed by appellant, the opposite of good faith, apparently canvassed by the respondents. Learned Counsel for the appellant enumerated a number of actions taken by the respondent or events which he submitted constituted bad faith. He dealt with the specific actions and events from page 12 of his brief. I will take them in turn.

On the issue of demand notices, learned Counsel submitted that there was bad faith on the part of the first respondent in that it accepted payments up to 2 August 1988, and waited for three years only to suddenly advertise for the sale of the property, without affording the appellant the opportunity to redeem his property. To learned Counsel, this cannot be sanctioned by a court of equity and it smacks of fraud.

With respect to learned Counsel, I do not agree with him. In the first place, the issue of demand notices is not well taken. The mere fact that the first respondent waited for three years before he took action from the last date when the appellant made payment in liquidation of the mortgage loan, has nothing to do with the principle of equity. I ask: where has the first respondent violated the principle of equity, and which principle or maxim specifically? If anything, I see first respondent doing equity, if I can use that language unguardedly. By the three years, there was a lull, which in my view, was to the advantage of the appellant in terms of liquidation of the mortgage loan. I do not see any bad faith at all.

Learned Counsel said at page 12 of the brief the following: It smacks of fraud" What smacks of fraud? Is it fraud on the part of the first respondent for not issuing a fresh notice three years after Exhibit 'H2'? I am surprised how Counsel has forced the criminal offence of fraud to a civil matter which is not in any way related to fraud. I do not see any fraudulent action on the part of the first respondent. And what is more, fraud, as a crime must be specifically pleaded and proved. In United African Company Ltd v Taylor (1936) 2 WACA 70 at 71, the Judicial Committee of the Privy Council said:-

"In the opinion of their Lordships there is no rule which is less subject to exception than the rule that charges of fraud and a fortiori charges of criminal malversation (sic) or felony, against a defendant ought not to be made at the hearing of an action unless, in a case where there are pleadings, those charges have been definitely and clearly alleged so that the defendant comes into court prepared to meet them."

See also Tamakloe v The Basel Trading Company Ltd (1940) 6 WACA 231; Usenfowokan v Idowu (1969) NMLR 77; Fabunmi v Agbe (1985) 1 NWLR (Part 2) 299; Adimora v Ajufo (1988) 3 NWLR (Part 80) 1.

The appellant did not specifically plead fraud in his Amended Statement of Claim. Of course, he did not give evidence on it. Even if he had given evidence, the evidence should have been to no issue. This is because evidence not born out from the pleadings will not be admitted. The contention of learned Counsel on fraud therefore fails.

Dealing with Exhibit 'A', learned Counsel submitted that the publication and the timing of sale was to make it impracticable to redeem the property. Citing Davis v Symons (1934) Ch. 442, learned Counsel submitted that Exhibit 'A' is no more than "a device to fetter the right of redemption." It does not appear that Counsel for the first and second respondents on the one hand, and Counsel for the third respondent, on the other, responded to this very important submission.

Let me analyse Exhibit 'A'. The notice was given on Friday, 30 January 1988 and the auction sale was fixed for Monday, 1 February 1988. This gave only two days notice to the public and the two days were Saturday and Sunday. I take judicial notice of the fact that the first respondent does not open for business on Saturdays and Sundays and accordingly, proof is not necessary. After all, Saturdays and Sundays are work-free days in Nigeria. See Section 73 of the Evidence Act.

A number of questions arise from this careful arrangement and or fixture. Why was notice to the public given in a weekend of Friday? Why was the sale fixed for the following Monday? Why was the notice for sale not given on a Friday, why was the sale not fixed for the following Friday to satisfy Section 19 of the Auctioneers Law? I still have questions galore but I can stop here.

There is evidence that the appellant made desperate efforts on Monday, 1 February 1988, the day of the sale, to make payments but to no avail. He said at page 61 of the record:

"The sale was to be carried out by second defendant on behalf of the first defendant on Monday morning of 1 February 1988, I went to the first defendant/bank with the sum of N96,000 to pay to stop the sale, but the first defendant refused to accept the payment saying they had instruction not to accept payment from me at that time which came from the head office. Subsequently, I proceeded to the Head Office at Enugu. Before going there, I left the premises of the first defendant/bank to 133 Aba/Owerri Road, the mortgaged property, where one of my tenants told me that the auctioneer and one woman came, inspected the property and left. I later found out that the people who came were the second and the third defendants."

The second respondent, the auctioneer, in his evidence-in-chief, said at page 78 of the Record:

"I had to make a physical inspection of the property to assure myself that it was the one marked out for sale. On arrival, I saw the plaintiff who greeted me and told me he was making a frantic effort to pay off the debt to the first defendant. After one week I waited in vain without the plaintiff coming to pay anything. On 25 January 1988 the plaintiff's property was advertised for sale which was published on 30 January 1988."

The evidence of the second respondent confirms that of the appellant that he made frantic efforts to redeem the property. The difference in the evidence however is that while the evidence of the appellant was that he made frantic efforts on the day of the sale, that of the second respondent was that he told him of the frantic effort on another day.

The evidence of the appellant in respect of the efforts he made to pay the sum of N96,000 and the refusal of the first respondent to accept same is consistent with paragraphs 15, 16 and 17 of the Amended Statement of Claim. The paragraphs averred:-

"15. The plaintiff in a state of panic met most of his friends and relatives including Mr John Oguefiofor who in sympathy raised the sum of over N 96,000 for him.

16.     By 7:30am on Monday 1 February, 1988, the Plaintiff was at the first defendant's Milverton Avenue Aba Branch to pay in the money in order to stop the advertised auction sale. He went with Mr. John Oguejiofor.

17.     But to the plaintiff's shock, both the cashiers and accountant in the bank refused to accept the money from him informing the plaintiff that they had instruction not to accept any money from him. The Plaintiff managed to get in to see the manager who confirmed that they had instructions from above not to accept payment from him. He advised the plaintiff to go and meet the auctioneer - second defendant."

In apparent answer to the above paragraphs, paragraphs 19 and 20 of the first and second respondents' statement of defence averred:-

"19. Paragraphs 15 and 16 of the Statement of Claim are irrelevant and an after-thought intended to whip up undue sympathy and prejudice to vitiate a sale which has already taken place. The plaintiff will be put to the strictest proof of the averments set out in the said paragraphs 15 and 16.

20.     Paragraphs 17, 18 and 19 of the Statement of Claim are cooked up and hearsay and the Plaintiff will be put to the strictest proof thereof."

Paragraph 19 is evasive. It did not specifically deny the truth of the averments in paragraphs 15 and 16. The law is trite that traverse or denials of specific facts pleaded in the statement of claim must be specific and not general or evasive. See Olale v Ekwelendu (1989) 4 NWLR (Part 115) 326.

The averment in paragraph 20 of the first and second respondents' statement of defence is that paragraph 17 of the Amended Statement of Claim is hearsay. With respect, this is not correct. There is no hearsay in paragraph 17. In his evidence, Lawrence Obikube, Advances Officer of the first respondent said unequivocally at page 82:-

"It is not correct that plaintiff brought N96,000 to the first defendant/bank before the sale to offset the debt."

This evidence is not pleaded. It cannot be accommodated in the evasive paragraph 19. That apart, the evidence is inconsistent with the evidence of PW2 who corroborated the evidence of the appellant that he gave him the sum of N96,000.

Witness said at page 73:

"I then gave the plaintiff the sum of N96,000. Afterwards, plaintiff came back to me with the money saying that the first defendant refused to accept payment of the money from him."

The learned trial Judge did not deal with this important area of the efforts by the appellant to save the property from sale. He did not find it necessary to do so most probably because of the conclusion he arrived at in respect of Exhibit 'A', when he said pages 112 and 113:

"It follows from foregoing that what is necessary before sale is the Demand Notice. The advertisement notice appears irrelevant. Once a demand for repayment is made and if no payment is made after elapse of a reasonable time, the mortgagee can proceed with the sale of the mortgagor's property . . . Accordingly the Notice Exhibit 'A' in this case is valid and cannot vitiate the sale."

With respect, that is not the position of the law. Pre-sale demand notice to a mortgagor is quite different and distinct form notice to the public advertising for the sale of a mortgaged property. While the 'H' group of exhibits covered the former, Exhibit 'A' covered the latter. In my view, Exhibit 'A' has to comply with Section 19 of the Auctioneers Law to be valid. I have said so a couple of times. I therefore sound repetitive but that is for emphasis.

In sum, Exhibit 'A' was made in bad faith. I entirely agree with learned Counsel for the appellant that Exhibit 'A' was "a devise to fetter the right of redemption." Exhibit 'A', in my opinion, was a fait accompli in so far as the redemption of the mortgaged property is concerned. A mortgagor has a legal right to redeem a mortgaged property which is not yet liable to an auctioneer's most unfriendly hammer, and the mortgagee has a corresponding duty to open his doors for the mortgagor to redeem the property. A mortgagee who out-smarts or cunningly out-plays a mortgagor in the process of redemption of a mortgaged property will not be allowed by equity to sell the mortgaged property at his pleasure. This is because he has cruelly not considered the pains of the mortgagor in parting with his property in circumstances that are not legal. A mortgagee has no legal right to block the passage of redemption of a mortgaged property before auction. In other words, a mortgagee cannot place a clog on the mortgagor's wheel of redemption. Redemption of the property is a legal right to the mortgagor which he is entitled to exercise in law until the property is auctioned. Putting it in another language, the mortgagor's right of redemption is open till the sale of the property unless the deed of mortgage provides otherwise or to the contrary. It is clear to me that the first respondent did not act in good faith in its entire management of the purported sale of the mortgaged property as evidenced by Exhibit 'A'.

And that takes me sequentially to the contention of the appellant that the third respondent was the mother of the Chairman of the first respondent Learned Counsel for the appellant submitted that the respondents did not deny that the purchaser of the property was the mother of the Chairman of the first respondent. What is the state of the pleadings? Paragraph 18 of the Amended Statement of Claim averred thus:

"From the bank, the plaintiff hurried home at about 8:10am, where he was informed that a man and a woman drove to the premises, hovered around and left. One of the tenants of the house told the plaintiff that the man who came to the premises, was the second defendant and that the woman with him was the mother of one Chief Kalu who was the Chairman of the board of Co-operative and Commerce Bank of Nigeria Limited - first defendant.

In answer to paragraph 18, the third respondent averred in paragraph 8 of the Amended Statement of Defence:-

"The third defendant vehemently denies paragraph 18 of the Statement of Claim, and states that she never at any time came back to the premises with the second defendant before the sale. The said paragraph 18 is merely designed and fabricated to becloud issues and whip up underserved sympathy. The Plaintiff conspicuously did not state the identity of the informant, and how his informant knew the second and third defendants, and knew the children of the third defendant. The said paragraph is only an after-thought."

I agree with learned Counsel for the appellant that the averment in paragraph 18 of the Amended Statement of Claim that the third respondent is the mother of Chief Kalu who was the Chairman of the first respondent, was not specifically denied by the third respondent. As it is, paragraph 18 is in two arms. The third respondent denied the first arm but did not deny the second arm. Although the third respondent denied in paragraph 14 of the Amended Statement of Defence that she acted as a front to the actual man who wanted to acquire the property, she did not specifically deny the averment that she acted as a front for Chief Orji Uzor Kalu, her son who was the Chairman of the first defendant's board of directors at the material time.

In my view, the denials are not specific but highly evasive. I expected the third respondent to deny that Chief Orji Uzor Kalu is not her son, if that was the correct position. She did not, rather she said at pages 87 and 88 of the record:-

"It is not true that one Kalu Orji used me as a front to buy the property . . . I know Chief Kalu Orji. It is not true that as at February, 1988, my son Chief Kalu Orji was the Chairman of the Board of Directors of the first defendant/Bank. It is true that he (Chief Kalu Orji) was once the Chairman of the Board of Directors of the first defendant/Bank. That was in 1989. He assumed office as Chairman of Board of Directors in April, 1989, and served in that capacity for three months only. It is not true that he (Chief Orji) was in 1988 Chairman of Board of Directors of first defendant/bank."

I have carefully gone through the Amended Statement of Defence of the third respondent and I cannot place my hands on any averment vindicating the above evidence. Both paragraphs 8 and 14 of the Amended Statement of Defence of the third respondent did not aver to the fact that Chief Kalu is the son of the third respondent. Similarly, there is no averment to the effect that Chief Kalu was the Chairman of the Board of Directors in April, 1989, and served in that capacity for only three months and that he was not Chairman of the first defendant in 1988.

Since parties are bound by their pleadings and evidence which is at variance with the pleadings go to no issue; the averment of the appellant in paragraph 18 of the Amended Statement of Claim remains unchallenged. The law is that evidence not challenged is admissible. See Egbunike v ACB Ltd (1995) 1 NWLR (Part 375) 34: Odunsi v Bamgbola (1995) 1 NWLR (Part 374) 641; Broadine Entertainment Ltd v Monetary Maritime Corporation (1995) 9 NWLR (Part 417) 1.

There is another fairly curious aspect in respect of Chief Kalu and the Chairmanship of the first respondent. Lawrence Obikude, who gave evidence (see page 80 of the Record) as the first defendant did not know Chief Kalu. He was questioned under cross-examination whether he knew Chief Kalu. He replied at page 83:-

"I do not know him. Neither do I know the Chairman of Board of Directors of the first defendant/bank. I know only about the management. I have not heard of him nor had any personal contact with him."

Under cross-examination, witness admitted that he was employed in the Bank in 1979 and that at the time he gave evidence, he had served the bank for about seven years. He gave evidence in 1992, precisely on 11 May 1992. Between 1979 and 1992 is thirteen years and not seven years. I am not pursuing that. It is fairly curious that somebody holding the position of advance officer does not know the name of the Chairman and any director of the Bank. I expect an office attendant to know the name of the Chairman. Assuming that Chief Kalu was not the Chairman at the material time, I expected witness to say so and tell the court the name of the Chairman at the material time. I am not pursuing that aspect.

What then is the legal implication of the sanctity of paragraph 18? The legal implication is clear. Both the sale and the purchase were not bona fide but mala fide, unconscionable and against public policy. Equity will certainly frown upon a sale of property in an organisation in which a son is the head to a mother. I do not want to say more.

Let me take Exhibit 'F'. This is the instruction of the first respondent to the second respondent to sell the mortgaged property. Learned Counsel for the appellant submitted that the document had surreptitiously, cleverly and criminally the names cut off of the directors of first respondent, so as to shield Chief Orji Uzor Kalu.

I do not think I will consider the submission in favour of the appellant. Although first and second respondents averred to Exhibit 'F' in paragraph 16(b) of their Amended Statement of Defence, the appellant cannot in law use that paragraph to introduce the commission of offence. It is the law that before the appellant can legitimately raise the issue, he must plead it in his statement of claim with material particulars. Crime as an offence punishable by law must be specifically pleaded and proved. He ought to plead who committed the offence. He did not do that. He merely alleged in his brief that the names of the directors of the first respondent were cut off to shield Chief Orji Uzor Kalu. This is a most unfortunate allegation. I think the appellant went too far in making such allegation without pleading and proving same. Accordingly, I hereby reject the invitation of the learned Counsel for the appellant to look at Exhibit 'F'.

One contention of learned Counsel for the appellant is that the property was sold for a ridiculously low price. In an auction sale, the mortgagee, who has a major interest in the property, is entitled to promote and take care of his interest in the sale. In an auction sale, the interest of the mortgagee is paramount and as long as the sale is conducted bona fide, a mortgagor has no legal basis to complain in respect of, or about a low price. Auction sale by its very commercial nature presupposes some reduction of the market price value as dictated by the price index. The auctioneer, in order to dispose of the goods, should attract the public by a lower price. As long as the price is not ridiculously low or grossly undervalued as to suggest a possible fraud or collusion amongst the mortgagee, the auctioneer and the buyer, the mortgagor has no legal ground to complain. See Ekaete v Nigerian Housing Development Society Ltd (1973) 6 SC 183; Union Bank of Nigeria Ltd v Professor Ozigi (1991) 2 NWLR (Part 176) 677; Bank of the North Ltd v Alhaji Muri (1998) 2 NWLR (Part 536) 153. A price for goods in an auction sale cannot compete favourably with the current market value of the goods. The issue therefore fails.

Let me return to Exhibit 'B' to make one important point. Both Counsel for the respondents proffered very powerful and brilliant arguments based on the sanctity of contract. Exhibit 'B', being a contractual document. They cited a number of decisions of this Court and other courts to the effect that a court of law must read and interpret only the content of the contractual document and must not add to, or subtract from it. This is an elementary principle of law but is that the issue before this Court?

With respect, that is not the issue. The issue is whether Exhibit 'B', in the first place, can be invoked in this matter or whether it was properly invoked in the light of all the circumstances surrounding it as indicated above in this judgment. There is a clear distinction between the two issues for the purposes of dealing with the live issues in this appeal and we must keep the distinction straight.

The law of sale by auction or auction sale protects the purchaser and that is the basis of the principle of law that a mortgagor's right essentially is in damages. The law has an important qualification and it is that the purchaser must have bought the mortgaged property in good faith, that is bona fide and not in bad faith that is mala fide. The sympathies of the law on the purchaser will vanish the moment the court comes to the conclusion that the purchaser bought the property in bad faith. Bad faith on the part of the purchaser is a matter of fact to be deducted from the totality of the purchasing or buying conduct of the purchaser. Bad faith taints or better still, destroys a mortgage sale and therefore the property in the sale.