Chief S.B. Bakare Vs African Continental Bank Limited (1986)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C.

In this interlocutory appeal, the dispute is as to which of the parties, in the consolidated suit, will begin, in the trial of the suit. The Respondents – the African Continental Bank Ltd., hereinafter simply referred to as the Bank – contended, in support of the Ruling of the trial Judge, that on the state of the pleadings, the onus to begin was on the Plaintiff/Appellant, hereinafter called the Appellant. Upon a superficial appraisal of the matter in issue one might be tempted to regard the whole thing as a storm in a tea pot, but on a deeper assessment of the implications of the issue at stake, one, undoubtedly, will see that although the procedural issue is simple, yet the implications of that issue may have profound effect on the mode of the conduct, by each party, of the case to be put forward by the party.

The background facts behind the issue are that the plaintiff – a customer of the bank – was, and still is, indebted to the Bank, upon accommodations granted to him by the Bank, in a sum yet to be determined. A dispute having arisen as to what this total sum amounted to, the Appellant (Chief S. B. Bakare) took out the writ LD/711/75 claiming:

“(1) A declaration that the sum secured by the equitable mortgage of the properties comprised in Title No. LO 3439 was N273,000.00 plus interest thereon.

(2) A declaration that the sum secured by the equitable mortgage of the properties comprised in Title Nos. MO 1135, MO 0633, MO 6427 and MO 6428 was N70,000.00 plus interest thereon. (3) A declaration that the registration or entry of the mortgage (or purported mortgage) to secure the sums of N273,000.00 and N70,000.00 respectively in the Charges Register of the relevant Land Certificate is illegal.

(4) A declaration that the deed of mortgage made on or dated 30th June 1969 and registered under Title Nos. MO 1135, MO 0633, MO 6427 and MO 6428 is null and void and of no effect.

(5) An injunction restraining the defendant its servants and agents from selling or transferring or purporting to sell or transfer the Plaintiffs properties at 28 Queens Drive, Ikoyi, 42 Calcutta Crescent, Apapa, 20 Rhodes Crescent, Apapa, 14 Oyekan Road, Apapa and 12 Oyekan Road, Apapa.

(6) Rectification of the Register kept pursuant to the Registration of Titles Law by deleting all references to or relating to the equitable mortgage created by the deposit of the Land Certificate Nos. LO 3439, MO 1135, MO 0633, MO 6427 and MO 6428 from the Charges Register of each of the said Land Certificates.

(7) An Order that the defendant do deliver back to the Plaintiff the Land Certificates Nos. LO 3439 MO 1135, MO 0633, MO 6427 and MO 6428.”

The Bank took its own summons against the plaintiff in suit LD/1064/78 and claimed the following:

“The plaintiffs claim is for the sum of N4,636,349.41 (Four million six hundred and thirty six thousand three hundred and forty nine naira forty one Kobo) being money payable by the Defendants to the Plaintiffs for money lent by the Plaintiffs to the Defendants and for money paid by the Plaintiffs for the Defendants as Bankers to the Plaintiffs.

Particulars

Principal and interest due as at 7th September 1978 … N4,636,349.41 as per Statement of Account attached to the Statement of Claim.

AND the Plaintiffs claim the said sum of N4,636,349.41 and interest thereon at the rate of nine percent (9%) per annum agreed to be paid by the Defendants until judgment and at the rate of six percent (6%) per annum from the date of judgment until payment is fully made.