3PLR – BANK OF THE NORTH LTD. V. AKINTOYE

POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS

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BANK OF THE NORTH LTD.

V.

AKINTOYE

COURT OF APPEAL

ILORIN DIVISION

CA/IL/17/99

3PLR/1999/27  (CA)

OTHER CITATIONS

12 NWLR (Pt. 631) 392

 

BEFORE:

MURITALA AREMU OKUNOLA

PATRICK IBE AMAIZU

WALTER SAMUEL NKANU ONNOGHEN

REPRESENTATION

Abdulrazaq Abudulkareem. Esq. – for the Appellant

Akin Akintoye, Jnr., Esq.- for the Respondent

MAIN ISSUES

APPEAL- Fresh case on appeal- Preliminary objection to ground of appeal
LAND LAW- Mortgage- · Enforcement of contract

TORT-Whether the various advertisements to sell mortgaged property by auction amounted to defamation of the mortgagor’s character

EQUITABLE MORTGAGE-deposit of a deed which cannot be accounted for in any other way is taken as part performance of a contract to create a legal mortgage even when not a word about a contract has been said.

MORTGAGE-A mortgagee’s power of sale or foreclosure whether affected because the amount under the mortgage agreement is in dispute.

EVIDENCE- section 132 of the Evidence Act, whether oral evidence is allowed to add to, vary or contradict a written document

Lead Judgement Delivered by Amaizu JCA

This is an appeal against the judgment of Ibiwoye J. Delivered on the 15th day of May. 1997, in Kwara State High Court, holden at Ilorin Judicial Division. It necessary in order to appreciate the issues raised in the appeal to recapitulate briefly, the facts of the case that gave rise to the appeal. They are as follows:

The 1st Appellant is a Commercial Bank with Headquarters at No. 2 Zaria Road Kano. It has branches all over the country, including one at Muritala Mohammed Way, Ilorin. The Respondent is lawyer. He is an external Solicitor for the 1st Appellant at all material time. He also operates a current account with the 1st
Appellant.

Sometime in 1975, the 1st Appellant granted a loan of N10, 000 to the Respondent. In order to secure the loan, the Respondent mortgaged his properties situate and lying at No.26, Sulu Gambari Road, Ilorin. The
Respondent in his capacity as the external solicitor for the 1st Appellant prepared the mortgage deed. He also obtained the Governor’s consent covering the mortgage transaction as is required by the Land Use Act 1978.

Later, the Respondent obtained another loan of N50, 000 also, from the 1st Appellant. According to the Respondent, it was an unsecured friendly loan. He was however instructed by the 1st Appellant, after the loan was obtained to upstamp the earlier mortgage to N55, 000 by another deed.

He complied with the instruction. The Respondent emphasised that the Governor’s consent was not obtained after the upstamping. When the Respondent defaulted in repaying the second loan, the 1st Appellant instructed the 2nd Appellant, a licensed auctioneer to issue auction notices in the Newspapers  and Television, advertising the sale was advertised, the Respondent filed this suit claiming against the  Appellants jointly and severally as follows:

1. Declaration that the Defendants are not indebted to the 1st Defendant.
2. Declaration that the Defendants are not entitled to sell, by auction, or in whatever manner the Plaintiff’s properties situate. Lying and being at No. 26 Sulu Gambari Road, Ilorin, as advertised in  the auction notice and announced on Television NTA Ilorin on 13/10/92 between 7.25 and 7.30pm  without compliance with the provisions of the law.
3. Declaration that the advertised auction notice and the subsequent announcement on NTA Ilorin on 13/10/92 by the Defendants purporting to sell the Plaintiff’s property at 26 Sulu Gambari Road. Ilorin  is defamatory of the Plaintiff, unlawful and of no effect.
4. Injunction restraining the Defendants by themselves, their agents, servants/privies from selling, disposing or tampering with the Plaintiff’s properties situate, lying and being at 26 Sulu Gambari  Road Ilorin covered by Certificate of Occupancy No.14 170.
5. The sum of N5,000,000 (Five million Naira) being damages suffered by the Plaintiff as a result of the Defamatory Acts of the Defendants arising from the published notice and public announcements on  the television on 13/10/92 and THE HERALD of 19/10/92, purporting to sell by auction the  Plaintiff’s properties at 26 Sulu Gambari Road, Ilorin.
6. The sum of N500,000 with 35% interest being accrued professional legal fees due to the Plaintiff as result of various legal services rendered to 1st Defendant uptill June 1992.

Pleading were duly filed and exchanged by the parties. At the trial the Respondent gave evidence and called  four witnesses. The Appellants filed a joint statement of defence and called one witness.

It is the Respondent’s case that having the 1st loan of N10,000 on which a mortgage was secured, the title  deed of the property should have been returned to him. He contended that the second loan of N50,000 was  unsecured as the upstamped mortgage deed covering it does not contain the Governor’s consent as is  required b law. The Respondent observed that at the time the 1st Appellant advertised and published the  auction notice at public places, including the print and electronic media, the 1st Appellant was owing him  over N150,000 by way of professional fees. He however admitted that he defaulted in repaying the second  loan N50.000.

The 1st Appellant on the other hand denied owing the Respondent legal fees. It however admitted this it has  not paid for services of the Respondent in respect of:

1. Recovery of debt from Yakubu Anifowose, a customer, because there was no agreement between them on what it owed the Respondent
2. The suit between it and a customer one Salui Olayemi because the Respondent’s will could not be traced.

After, hearing the parties and their witness and listening to the addresses of counsel, the learned trial judge  entered judgment for the Respondent ad follows:

1. It hereby delivered that the Defendants are not entitled to sell by auction or in whatever manner the Plaintiff’s properties situate, lying and being at 26. Sulu Gambari Road, Ilorin as advertised in the  auction notice and announced on Television NTA Ilorin on 13/10/92 between 7.25 and 7.30pm.
2. It is hereby declared that the advertised auction notice and the subsequent announcement on NTA Ilorin on 13/10/92 and the Herald Newspaper of 19/10/92 by the Defendants purporting to sell the  Plaintiff’s property at 26, Sulu Gambari Road, Ilorin is defamatory of the Plaintiff unlawful and of on
   effect.
3. The Defendants by themselves, their agents servants and/or privies are hereby restrained from selling disposing or tampering with the Plaintiff’s properties situate lying and being at 26 Sulu Gambari  Road, Ilorin covered by Certificate of Occupancy No.14170.
4. That the sum of N3 million (Three million Naira only) damages be paid to the Plaintiff for defamation.
5. That the sum of N150,000 (One hundred and fifty thousand Naira only) with 35% interest being accrued professional legal fees due to the Plaintiff as result of various legal services rendered to the  1st Defendant uptill June, 1992 be paid to the Plaintiff.

The appellants were dissatisfied with the above judgment. They have appealed to this court. The learned  counsel for the parties filed and exchanged their respective briefs of argument. Both briefs were adopted  and relied upon at the hearing of this appeal. The learned counsel for the Appellant formulated the  following issues for determination:-

1. Whether the learned trial judge was right in holding that the further facility of N50,000 granted by the Appellant to the Respondent based on the same security of landed property should have been  approached by a fresh legal mortgage and not by upstamping the one already claimed.
2. Whether the 1st Appellant has a valid legal mortgage empowering it to sell the mortgaged property where there has been a default of payment.
3. If the answer to the second issue is yes whether the Respondent’s alleged unpaid professional fees which arose quite independently of the mortgage debt are capable of stopping the 1st Appellant from  exercising its power of sale of the mortgaged property short of a full payment of the mortgage debt.
4. Whether the various advertisement to sell the Respondent’s mortgaged property by auction amounted to deformation of the Respondent’s character and whether the damages it sustainable?
5. Whether the Respondent has fulfilled the condition precedent for bringing an action to recover the entitlement to the N150,000 awarded him as unpaid professional fees?

The learned counsel for the Respondent on the other hand formulated three issues which were adequately  covered by the issues identified by the Appellants. I will determine the appeal on the first four issues  formulated by the Appellants. I consider it therefore not necessary to reproduce the issues formulated by the  Respondent.

The Respondent raised a preliminary objection in his brief of argument. The objection relates to grounds 4  and 6 of the Amended Notice of Appeal. He urged the court to strike same out. And a fortiori issue 4 which  emanates from the two ground. I consider it necessary to start with the above preliminary objection. This is  because, if the learned counsel for the Respondent is right in challenging the grounds, the grounds will be  struck out and also the issue formulated, therefrom.

The learned counsel for the Respondent in raising the objection referred to paragraph 12 of the statement of  claim. He reminded the court that the averment as to the high repute and integrity of the Respondent was  not denied by the Appellants in their Statement of Defence. He submitted that the unchallenged evidence  that the Respondent is a national figure of high repute is conclusive. He cited the cases of Obembe v.  Wemabod Estate Ltd (1977) 5 SC115 & Okupe v. Ifemembi (1974) 3SC 97 and others. The learned counsel
finally submitted that it is wrong for an Appellant court to entertain ground or ground of an appeal based on  admitted and uncontroverted facts at the lower court and upon which a decision has been reached. In his  view a ground appeal is incompetent when an Appellant, as in this case has no right to appeal against the  decision which the grounds of appeal attack. He cited the cases of Tsokwa Motors (Nig) Ltd v. Union Bank  Ltd (1996) 9 10 SCNJ 294 (1996) NWLR (Pt.471) 129 and Shuaibu v. Nig. Arab Bank (1998) 4 SCNJ q  (1998) 5 NWLR (Pt.55) 582

The reply if the learned counsel for the Appellant is that the objection is incompetent. He relied heavily on  the case of Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 at 287.

I observe that the preliminary objection was raised by way of motion on notice so that argument can be  heard on it. It was also argued at the oral hearing of this appeal. The law is that a preliminary objection to  the competence of a ground of appeal should be by motion on notice before the hearing of the appeal so  that arguments it can heard by the court. In the present case, the notice of objection is in the Respondents  brief of argument. The Respondent, however, did not indicate therein that leave to argue it will sought at  the hearing of the appeal. In addition the Respondent did not seek leave of the court to argue it at the oral  hearing. See Chief O. N. Nsirim supra. It follows that the preliminary objection is incompetent. This  however does not mean that this court will allow the Appellants to commence an entirely new case Chief  P.D.C Okenwa v. M.G Imo State & 6 Ors (1996) NWLR (Pt. 455) page 394.

I now to deal with the above issue. On issues one, it is the contention of the learned counsel for the  Appellants that where the parties have set out the terms of their contract in a written document as in a deed  of legal mortgage i.e. Ex 2 and D2, an extrinsic evidence is not admissible to add to vary from or contradict
the terms so agreed upon. He cited the case of Okonkwo v. C.C.B. (Nig) Plc. (1997) 6 NWLR (Pt. 507) 48  at 62. He referred to the contention that a fresh legal mortgage should have been taken in respect of the  further loan of N50,000 instead of upstamping the legal mortgage already existing in respect of the first  loan of N10,000. He submitted that if the recital in Ex D2 is read together with clause 3E in Ex 2, it would  have been obvious that there was no need for a fresh legal mortgage. He cited the case of Moses Ola & sons
(Nig) Ltd (1992) 3 NWLR (Pt.229) 337 at 389. In the learned counsels view the learned trial judge was  wrong to have relied on an oral evidence to contradict the terms agreed upon by the parties when he held as  follows:-

“Going by the evidence of PW4 it appears to me that the loan of N50,000 later taken by the Plaintiff should  have been approached afresh and not by upstamping a former deed of mortgage since the former loan has
been fully paid… Afterall, DW1 has admitted that the loan of N50,000 granted to the Plaintiff was a fresh  transaction which requires a fresh consent of the government.”

He relied on the case of UBN Ltd v. Ozigi (1994) 3 NWLR (Pt.333) 385 at 400. He contended that if there  is any disagreement between the parties to a writing agreement as to the terms of their agreement, the  authoritative and legal sources of information for the purpose of resolving the disagreement is the written  agreement itself. U.B.A Ltd v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150. Finally the learned counsel  submitted that it will be unconscionable for the Respondent to assert that a document he prepared, signed  sealed and delivered in which he acknowledged his intention to be unconditionally bound by the provisions  contained therein, is void. It is view that the court should not allow the Respondent to benefit for his  wrongful act. Solanke v. Abed (1962) 1 SCNL 371; (1962) NSCC 160.

The learned counsel for the Respondent contended in his brief of argument that the learned trial Judge was  right in holding that the parties should have prepared a fresh legal mortgage to cover the loan of N50,000.

He reminded the court that the loan of N10,000 which was covered by a legal mortgage, Ex D! In 1975,  was fully paid before the loan of N50.00 was granted. The further loan of N50,000 he submitted was a fresh  facility. To buttress his point, he referred to the following pieces of evidence of DW1-

(1)     “The Plaintiff settle the loan of N10,000. The Plaintiff was granted another loan of N10,000,000  which he applied for but only N50,000 was approved. Ex 1 is the application for the loan”

(2)     “When a loan is fully paid the mortgage agreement lapses and the mortgagor is entitled to the release  of his title documents.”

(3)     There is upstamping when there is an existing mortgage. Upstamping occurs when the customers  wants additional facility to what he was earlier enjoying.

However, money taken after the lapse of the  earlier one would take a fresh transaction that will require a fresh mortgage… The loan of N50,000
applied for by the Plaintiff in 1978 was based on a fresh transaction.

Finally, on this point, the learned counsel for the Respondent submitted that the Governor’s consent is  necessary to put life into Ex D2 and its absence is fatal to the document.

It is to be noted that the most essential nature of a mortgage is that it is a conveyance of a legal or equitable  interest in a property with a provision of redemption. That it upon repayment of the loan, the conveyance  shall become void or the interest shall be recovered.

The evidence before the lower court is that all material time to this suit the Respondent was the external  solicitor for the 1st Appellant. In that capacity, the prepared all documents in respect of the first loan of  N10,000 and the second loan of N50,000, now the subject of this appeal. It is argued that the fact that the  Respondent did not collect his title documents or ask the 1st Appellant to execute a deed of release after he  had fully repaid the first loan covered by Ex D1, is not prejudicial to his case and cannot be construed to  mean an intention to use same for future transaction. This would have been a very attractive argument, had  it not been for the fact that in law it is generally accepted that a mere deposit of a title deed which cannot be  accounted for in any other way, is taken as part performance of a contract to create a legal mortgage even
when not a word about a contract has been said such a deposit creates an equitable mortgage.

There is evidence to show that the Respondent is a very senior legal practitioner. Why then did not ask for  his title deed from the 1st Appellant? Or, as the external solicitor, why did he not prepare a deed of release  in respect of the mortgage document? I hold that the answer can be found in Exs D2 and 2.
It is instructive to examine the wordings of the recital to Ex D2 and clause 3E of Ex2. They are as follows:-

Recitals:

Whereas the mortgage had by a deed of legal mortgage described in the second schedule hereto by way of  legal mortgage the property described in the first schedule to secure an overdraft of N12,000.00 (Nigerian  currency) from the Bank.

And

Whereas the mortgagor and the Bank have agreed to increase the said overdraft of fifty-five thousand Naira  (N55,000) (Nigerian currency) on the same security of landed property but with increased improvements  and on the same terms and conditions, mutatis mutandis and in addition had hereby agreed.

Clause 3(e)

This security shall not be considered as satisfied or discharged by any intermediate payment of the whole or  part of the moneys owing as aforesaid but shall constitute to and be a continuing security to the bank  notwithstanding any settlement of account or other matter or thing whatsoever and shall be in addition to  and shall not operate so as in anyway to prejudice or effect the security create by any deposit which may  have already been made with the bank of the title deeds and writings relating to the said property or any
other securities which the Bank may now or at any time thereafter hold for or in respect of the moneys  hereby secured any part thereof.

It is the submissions of the learned counsel for the Respondent that the above provisions do not reflect and  cannot be deemed to reflect the true position of the transaction between the parties. I do not accept the  submission.

Under section 132 of the Evidence Act the only time an oral evidence is allowed to add to vary or  contradict a written document is when the evidence is adduced to prove.-

(a)     fraud, intimidation, illegality want of due executive etc

(b)     the existence of any separate oral agreement as to a matter on which the document is silent

©       the existence of any separate oral agreement constituting a condition on precedent to the attaching of  any obligation under any such contract etc.

(d)     the existence of any distinct substance oral agreement to rescind or modify any such contract

(e)     any usage or custom by which incidents not expressly mentioned in any contract are annexed to  contracts of that description etc.

The record of proceeding does not show that there is evidence suggesting the existence of any of above. In  the case of Chief B. A. Majekodunmi v. Co-operative Bank Ltd & Ors (1997) 10 NWLR (Pt.524) p. 198 it  was held that where parties to an agreement have set out the terms thereof in a written document, extrinsic  evidence is not admissible to add to vary or contradict the terms of the written instrument. My answer to  issue one in light of the contents of the recital clause 3E referred to above and other facts is in negative.

On issue 2, the learned counsel for the Appellant submitted that the original mortgage being a continuing  security what was needed was upstamp by Ex2 in view of the further facility granted. He placed reliance on  the case of Moses Ola and Sons Ltd. V. B.O.N. Ltd (1992) 3 NWLR (Pt. 229) 337 at 389.

The learned counsel for the Respondent on the other hand submitted that the perfection of Ex D2 was based  on an instruction which the 1st Appellant gave the Respondent two years after the happening of the event to  upstamp. The Respondent complied with the instruction inspite of protest in order not to appear dubious.

He finally submitted that it does not mean that the upstamping of the original” mortgage was proper.

As has been stated earlier in this judgment, the wordings of the mortgage deeds relating to the properties at  No. 26 Sulu Gambari Road, Ilorin are clear and unambiguous. It is therefore not necessary to add to or  subtract from them. In that case it can be said that the provisions of the Land Use Act 1978 were complied  with. It follows that the original mortgage being a continuing security what was needed was to unstamped.

There was no need to obtain a fresh consent of the Military Governor for the second mortgage. I answer  issue 2 in the affirmative. On the 3rd issue the learned counsel for the Appellants submitted that in order to  stop mortgage’s power of sale of the mortgage property, the sum owed must be paid in full. He relied on  N.H.D.S Ltd v. Mumuni (1977) 2 SC57; Okonkwo v. C.C.B. (Nig) Plc (1997) 6 NWLR (Pt.507) 48, Temco  eng. & Co. Ltd v. SBN Ltd. (1995) 5 NWLR (Pt.397) 607. The learned counsel further submitted that a  mortgage agreement is in dispute. Sabbagh v. The Bank of West Africa (1962) 2 All NLR 225. Finally on  this point, the learned counsel reminded the court that the Respondent did not deny owing the 1st  Appellant. In his view as the issue of non payment of the Respondent’s professional fees arose from a  distinct transaction the two should not have been lumped together.

On the other hand, the learned counsel for the Respondent contended that the question of combining the  two transactions in one suit was not canvassed in the lowers court. Consequently, it does not form part of  the judgment now appealed against. He added that courts do not condone multiplicity of actions. It is his
view that actions which are related and affect or concern the same parties may be joined in one suit.

I observe that it is not in dispute that the Respondent is indebted to the 1st Appellant in respect of the  second loan. What is in dispute is the amount of indebtedness. I agree with the submission that a  mortgagee’s power of sale or foreclosure cannot be affected merely because the amount under the mortgage
agreement is in dispute.

It is settled that in order to stop the power of sale of the mortgaged property, the amount owed must be paid  in full. Andrew Nweke Okonkwo v. Co-operative and Commerce Bank (Nig) Plc & Others Supra.

In the present case, the Respondent is of the view that as 1st Appellant is owing him over N150,000 it  should not have advertised the property for sale. The point has to be made that is no evidence in the record  to show the date on which the alleged debt was owed by the 1st Appellant. The due on which the alleged  debt of N150,000 was owed is important, because the law is that if the mortgage debt was not paid at any  time fixed for payment the mortgage in entitled to exercise his power of sale, the debt having deemed to
have become due and payable on that day, Nig Housing Dev. Soc. Ltd. V. Mumuni Supra.
Viewed from another angle, the law is that a person who seeks to enforce a contract must show that all the  conditions precedent have been fulfilled and that he performed all the terms which ought to have been  performed by him. Florence Coker v. Gabriel Ajewole (1976) 9 & 10 SC 50. The question then is, did the  Respondent in this case perform all the conditions precedent to his earning the professional fees of  N150,000?.

To answer the question one has to look at the evidence before the lower court. In paragraph 10, of the  Statement of Claim, the Respondent listed the names of the 1st Appellant’s Customers from whom he was  instructed to recover debts. It is common ground that the respondent was entitled to 10% of all recoveries.
It is also common ground that the Respondent was not to be paid for writing demand letters. The evidence  of the Respondent is that the 1st Appellant owed him N150,000 as professional fees. In answer to answer to  questions put to him on this point the Respondent replied as follows-

I believe that S. K. Dan Alhaji had fully paid his debt to the bank because I heard nothing again from the  bank. I am not aware that instruction was changed to Oniyangi & Co. I have no instructions in this respect  from the Bank. I do not know that S. K.l Dan Alhaji is still owing the bank up to N444,11,72.

Since I have  no contrary instructions from the Bank I cannot know how much was paid”.

On the other hand DW 1 denied that the Respondent was owed any professional fees. His evidence on this  is as follows-

I know on Alhaji Dan Alhaji who is also a customer for whom we asked the Plaintiff to recover our money.

When the Plaintiff failed to act, we referred the case to Oniyangi & Co.; who later obtained a judgment.

One R. R. Oyewo is another customer who also owed the Bank N42,000. The recovery was referred on the  Plaintiff who wrote the customer. His case is now before the court names read out to me as continued in  paragraph 10(4) of the Statement of Claim are all our customers. Their cases were referred to the Plaintiff  for recoveries but the Plaintiff failed to recovery any thing. Yakubu Anifowoshe was also a customer who  took us to court and the Plaintiff was asked to defend the Bank. We have not paid the Plaintiff for his services in this respect because of the disagreement on what to pay. The bill was submitted to us exhibit 24

Exhibit 24A is our reply. We used to pay 10% of any money recovered.
Continuing the witness said… it is true the Plaintiff defended us in the case of Saliu Oloyyemi v. Bank of the North. We could not trace  any bill submitted by the Plaintiff in respect of that case. We are not owing the Plaintiff any money.

There  was a letter dated 17/7/89 for the Plaintiff to the 1st Defendant. If I see the letter I can identify it. This is the  letter exhibit 8. The last paragraph of Exhibit 8 shows that the Defendant does not owe the Plaintiff any
money.

In my view the judgment of the learned trial Judge that

( 1)    “…there is abundant evidence adduced by the Plaintiff and the only witness called by the Defendants
that the 1st Defendant has no paid the Plaintiff some of his professional fees.

(2)     The only evidence stating the total sum of the indebtedness is that of the Plaintiff who put it at over  N150,000… And.

(3)     the submission of the learned counsel for the Defendant that the Plaintiff has failed to prove the  accrued professional fees is untenable in the face of the glaring evidence of DW.  cannot be justified by the above evidence. If anything, the evidence shows that the Respondent’s claim is uncertain and unliquidated.

Finally I observe that even if the 1st Appellant owed the Respondent N150,000 as he claimed, the 1st  Appellant has no right to transfer that money from the Respondent’s current account to his loan account.

This is because the basis of a bank’s agreement with its customer is that the accounts kept by that customer  should be kept separate. Ogundeji v. IBWA Ltd (1993) 2 NWLR (Pt.278) p.690. For the above reasons I
answer issue 3 in the negative.

On issue 4, it is submitted by the learned counsel for the Appellant that the exercise of power of sale by the  1st appellant under the mortgage deed cannot by any stretch of imagination amount to a defamation of the Respondent’s character. He placed reliance on the case of B.O.N Ltd v. Muri (1998) 2 NWLR (Pt.536) 253.

He reminded the court that the 1st Appellant issued the necessary demand notices before embarking on the  sale of the properties. He submitted that as it is common ground that the Respondent was indebted to the 1st  Appellant at the time of the publication he is not entitled to the N3 million awarded to him for damages to a  character he did not possess.

The learned counsel for the Respondent argued that as the learned trial Judge declared Exhs 2 & D void and  up helped the claim for unpaid professional fees the award of N3 million for defamation arising form  various advertisements of his property for sale cannot be faulted. He added that defence of justification is
therefore not available to the 1st Appellant. Finally, the learned counsel submitted that as the Respondent  had paid his debt before the offending publications the 1st Appellant is liable for libel as there was no basis
for such publications. He relied on Wema Bank v. Karunwi (1975) 1 SC 15.
An imputation which may tend to lower the Plaintiff in the estimation of right thinking members of society  generally, or expose him to hatred, contempt, or ridicule is defamatory of him. It is however a complete  defence to an action of libel that the defamatory imputation is true. According to Gatley on Libel & Slander  7th Edition, this is because the Plaintiff had no right to a character free from that imputation. And if he had  no right to it, he cannot in justice recover damages for the loss of it.

In the present case it is common ground that the Respondent did not pay the mortgage debt at the time it  was due and payable. The 1st Appellant was therefore entitled to exercise it’s power of sale under the  mortgage agreement. Consequently, the 1st Appellant is entitled to the defense of justification for the
offending publications. In that case the various advertisements to sell the Respondent’s mortgage properties  by auction can not amount to defamation of the Respondent’s character.

It follows therefore that the Respondent is not entitled to the award of N3 million for defamation. In the  light of the above I answer issue 4 in the negative. For the reasons adumbrated above, the appeal succeeds  and is allowed. The judgment of Ibiwoye j delivered on 15th day of May, 1997 is hereby set aside. I award  the Appellants #2,500.00 costs for this appeal and N2,000.00 for the trial in the lower court. The appeal is  allowed.

Okunola and Onnoghen JJCA both agreed with the lead judgement.