African Continental Bank Ltd. & Ors V. Simon U. Ihekwoaba & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C. 

By a writ of summons issued in suit No. HOW/243/87 in 1987 in the High Court of Imo State, the plaintiffs who are now respondents before us sued the 1st and 2nd defendants claiming various orders and a declaration. In the course of the proceedings plaintiffs sought and obtained an order of court joining the 3rd, 4th and 5th defendants. Pleadings were ordered, filed and exchanged and with leave of court, amended. By paragraph 27 of their amended statement of claim, the plaintiffs finally claimed:

“(1) An order setting aside the purported sale, on 3rd June, 1987, by 1st and 2nd defendants to 3rd defendant of the property of the plaintiffs situate at No.5 Christ Church Close, Owerri covered by deed of mortgage dated 21st December, 1982 and registered as No.55 at page 55 in volume 289 in the Lands Registry at Owerri, Imo State.

(2) A declaration that the purported statutory certificate of occupancy dated 1st December, 1987 granted by 4th defendant to the 3rd defendant was void irregularly issued and accordingly void.

(3) N650,000.00 (Six hundred and fifty thousand Naira) damages for wrongful and fraudulent exercise of power of sale by the 1st defendant whereby the plaintiffs were forced to incur legal and other expenses in connection with the prosecution of this case and in defending an action instituted by the 3rd defendant against the plaintiffs in suit HOW/118/88.

(4) An order of injunction restraining the 1st and 2nd defendants, their servants or agents from selling the said property and the 3rd defendant from taking possession thereof otherwise than through proper exercise of power of sale.”

Meanwhile in suit No. HOW/118/1988 the plaintiff (Chukwumaeze Anele) sued the African Continental Bank Ltd., that is, the 1st defendant in HOW/243/87, the 2 plaintiffs in that suit (that is, Simon Ihekwoaba and Mrs. Caroline Ihekwoaba) and 8 other persons all as defendants claiming:

“1. Declaration that by virtue of auction sale dated 3/6/87 at Owerri the plaintiff is entitled to the STATUTORY CERTIFICATE OF OCCUPANCY dated 1/12/87 and registered as 82/82/179, Owerri in respect of the property with premises lying and situate at No.5 Christ Church Close, Owerri within jurisdiction with an annual value of N10.00 (Ten Naira).

2. Possession of the said property with premises lying and situate at No.5 Christ Church Close, Owerri.
3. Order of the court for the 4th to 11th defendants to pay rent of N150.00 (One hundred and fifty Naira) per month or whatever monthly rent they paid previously to their former landlord to the plaintiff with effect from 3/6/87 or in the alternatively pay same to court until the substantive suit is finally determined.
4. Order of the court for 2nd or 3rd defendant or both to pay over to the plaintiff such rent, if any received from any of 4th to 11th defendants as from the said 3/6/87 or pay same into court until the substantive suit is finally determined.
5. Failing 1, 2, 3 and 4 above, an order of the court for the 1st defendant to return the whole of the purchase money to the plaintiff with special and general damages assessed at N100,000.00 (One hundred thousand Naira).”

By a motion brought by the 2nd and 3rd defendants in suit No. HOW/118/88 who are plaintiffs in suit HOW/243/87 leave of court was sought, and obtained, to join the 3rd defendant in suit No. HOW/243/87, that is, Chief Okaka Mbadugha as a co-defendant in suit No. HOW/118/88. Pleadings were also filed and exchanged in this suit.

On the application of learned counsel for the plaintiffs in suit No. HOW/243/87 who are 2nd and 3rd defendants in suit No. HOW/118/88, the two actions were consolidated for hearing by order of court. By the same order the plaintiff in suit No. HOW/118/88 became the plaintiff in the consolidated suit while the defendants in that action, that is, HOW/118/88 remained defendants in the consolidated suit. The 4th and 5th defendants in suit No. HOW/243/87 remained defendants in the consolidated suits. At the trial of the consolidated suit, evidence was led on both sides in support of the facts pleaded by each party. At the conclusion of trial and after addresses by learned counsel for the parties, the learned trial Judge in a considered judgment adjudged as follows:

“1. It is hereby declared that by virtue of the auction sale conducted on 3rd June, 1987, the statutory certificate of occupancy issued in favour of the plaintiff and registered as No. 82 at page 82 in volume 179 of the Lands Registry, Owerri in respect of the property with the premises situate and lying at No.5 Christ Church Close, Owerri, Imo State was validly issued and registered.

2. It is hereby ordered that the plaintiff is entitled to immediate possession, of the property together with all appurtenances situate and lying at No.5 Christ Church Close, Owerri, Imo State formerly registered as No. 42/42/678 but now registered as No. 82/82/179 at the Lands Registry Owerri, Imo State.
3. The claim by the plaintiff against the 1st defendant for return of the whole purchase money to the plaintiff is hereby dismissed.
4. The claim by the plaintiff against the 1st defendant for special and general damages is also dismissed.
5. All the reliefs claimed of (sic) the 2nd and 3rd defendants in suit No. HOW /243/87 are hereby dismissed.”

The 2nd and 3rd defendants in the consolidated suit who were plaintiffs in HOW/243/87 were naturally displeased with the judgment of the trial court and appealed to the Court of Appeal which latter court by majority decision, (Uwaifo and Katsina-Alu JJCA, as they were then; Nsofor JCA dissenting) allowed the appeal, set aside the judgment of the trial High Court and adjudged as hereunder:

“1. An order setting aside the sale on 3 June, 1987 of the property at No.5 Christ Church Close, Owerri subject matter of a deed of mortgage registered as No. 55 at page 55 in volume 289 in the Lands Registry in the office at Owerri having been conducted on an irregular auction and the sale is accordingly invalid, null and void.

2. A declaration that the statutory certificate of occupancy No. 82 at page 82 in volume 179 in the Lands Registry in the office at Owerri issued in favour of the 3rd respondent by the 4th respondent on December 1, 1987 was irregularly issued and without foundation, and accordingly invalid, null and void.”

The 1st and 2nd defendants in suit No. HOW/243/87 appealed to this court against the said judgment with leave of this court. The plaintiff in suit No. SC.118/88 who is 3rd defendant in suit No. HOW/243/87 also appealed to this court. An attempt was also made at the oral hearing of this appeal by the 4th and 5th defendants in HOW/243/87 to appeal but the attempt was unsuccessful; they did not take part in the Court of Appeal. All the other defendants in suit No. HOW/118/88 did not appeal neither did they take part in the appeal in the Court of Appeal. As things stand the parties to this appeal are the 1st to 3rd defendants in HOW/243/87 as appellants and the plaintiffs in that suit as respondents. They shall hereinafter be so referred to.