Andrew Nweke Okonkwo V. Cooperative & Commerce Bank (Nigeria) Plc & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

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 the 1st day of February 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 1st defendant bank to determine the amount (if any) outstanding against the plaintiff. “.

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

Pleadings were ordered, filed and exchanged. These were further amended by leave of court. The 1st and 2nd defendants filed a joint statement of defence while the 3rd 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 1st defendant, while the 2nd defendant testified for himself. He called no witnesses.

The 3rd defendant also testified but called no witnesses.

The facts may be summarized thus –

The plaintiff (mortgagor) had in 1981 mortgaged his building known as No. 133 Aba-Owerri Road, Aba to the 1st defendant (mortgagee) by virtue of a deed of mortgage (exhibit B in the proceedings) as security for a loan of N60,000.00. 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 1st defendant/Bank sent relevant notices and statements of account to the plaintiff as evidenced by exhibits G, H, H.1 and H.2 in the proceedings. When the 1st defendant first wanted to sell the house in 1982, it was stopped by the payment of N21,000.00 by the plaintiff. Then on 30th January, 1988, the plaintiff saw a publication in the Nigerian Statesman Newspaper whereby the 2nd defendant (auctioneer) had advertised the mortgaged property for sale on behalf of the 1st defendant/Bank. The auction sale was scheduled to take place on Monday 1st February, 1988 at 8.00 a.m. The plaintiff said he was able to raise the sum of N96,000.00 from friends which he took to the 1st 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 1st defendant said in exercise of its power of sale under exhibit B, it 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).

That several people attended the auction sale including the plaintiff, his brother and agent who bidder for the property. The 3rd defendant who also attended the public auction bidder. 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.