Segun Babatunde & Anor V. Bank Of North Ltd. & Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

OLUFUNLOLA OYELOLA ADEKEYE, JSC,

By an order of this court made on the 10th of October 2011, the two appeals SC.350/2002 – Mr. Segun Babatunde v. Alhaja Bamidele Adepate & 2 Ors and SC.350A/2002 – Mr. Segun Babatunde v. Bank of the North and 2 Ors were consolidated with the consent of the counsel to the parties. The two appeals emanated from the same judgment of the trial court delivered on 3/12/99 and the contents of the Record Books are identical.

The brief facts of the case were that Mr. Julius Babatunde now deceased and substituted with the present appellant, Mr. Segun Babatunde, was a customer of the Bank of the North at the Muritala Mohammed Road Branch, Ilorin. He operated the current account No.400634. He was granted an overdraft facility of N12,000.00 on the 26th of October 1976. A Deed of Legal Mortgage was executed between the Bank and the customer to this effect. The collateral was a landed property of the customer at Mala Road, Isale Asa, Ilorin on which was erected a house containing four flats, of three bedrooms each. The land was covered by an Alienation permit No. 1120 dated 10-3-76 and issued by Ilorin Local Government. The Bank of the North increased the overdraft facility to N30,000.00 in September 1978. Another Deed of Legal Mortgage was executed based on that same collateral which was simply up stamped. The plaintiff/appellant’s case was that he bought an adjoining land which was covered by an Ilorin Local Government Customary Right of Occupancy No.248 dated 2nd June 1980 an area of 929.030 square meters. He erected a building of six flats of three bedrooms each besides the other building. In 1982, he mortgaged the house of six flats to the United Bank for Africa, Ilorin for a loan of N70,000.00. On the 4th of November 1992, an auctioneer, acting on behalf of the Bank of the North advertised for sale the building of six flats at Isale Asa Area, off Sabo Line, Ilorin. On the same day, Auction Notice was pasted on the building declaring that it would be disposed through public auction the next day the 5th of November 1992. The plaintiff/appellant was communicated about the sale of the building on the 30th of March 1993. On the 6th of April, the 3rd defendant/respondent, who purchased the building, served notice to vacate on the plaintiff/appellant’s tenants. Apparently distressed by the sale of the building with six flats which was a collateral for the mortgage to the United Bank for Africa for a loan, the plaintiff/appellant sued the respondents at the High court, Ilorin for the under mentioned reliefs: –

(1) Declaration that the 1st and 2nd defendants have no right to sell or advertise for sale the plaintiff’s house containing six flats at Isala Asa Area, off Sabo line, Ilorin, covered by Ilorin Local Government Customary Right of Occupancy No.248 dated 2nd June 1980 since the said house was not pledged as security on a deed of legal mortgage dated 26th October 1976 and the one dated 18th September 1978 between the plaintiff and the 1st defendant.

(2)A declaration that any sale or transfer of the plaintiff’s house of six flats at Isale Asa Area off Sabo line, Ilorin by the 1st and 2nd defendants to the 3rd defendant is illegal, null and void.

(3)An order to set aside the sale or transfer and any agreement thereto of the plaintiff’s house of six flats at Isale Asa Area, off Sabo line, Ilorin by the 1st and 2nd defendants to the 3rd defendant.

(4) A sum of N100,000.00 as damages for trespass committed by the defendants jointly and severally on the plaintiff’s house.

(5) A perpetual injunction restraining the defendants, their agents, servants and privies from further act of trespass on the plaintiff’s house.

(6) A declaration that the purported sale of the plaintiff’s house of six flats at Isale Asa Area, off Sabo Line, Ilorin carried out by way of public Auction on the 5th of November 1992 is invalid, null and void since the said sale was not in accordance with the Auctioneers Law, Cap 10 Laws of Northern Nigeria 1963 as applicable to Kwara State.

(7) A declaration that the two deeds of legal mortgage between the plaintiff and the 1st defendant has no valid consent and that the purported consent letter attached to it is not a consent required by the Land Use Act 1978.

(8) An order to nullify the two deeds of legal mortgage between the plaintiff and the 1’t defendant for not complying with the mandatory provisions of the Land Use Act 1978.

In the considered judgment of the trial court delivered on the 3rd day of December 1999, the learned trial judge found for the plaintiff/appellant, granted all the declarations and orders sought, and further awarded N50,000.00 as damages for trespass. The three respondents were dissatisfied with the judgment of the trial court. The 1st and 2nd respondents – The Bank of the North and A.T. Ayantunde (the Auctioneer) filed a separate notice and grounds of appeal against the decision of the trial court. The appeal was heard as No. CA/IL/44/2000. In the judgment of the lower court delivered by Patrick Ibe Amaizu, JCA on the 18th of October 2001, the lower court allowed the appeal and accordingly set aside the judgment of the trial court. The appellant, Mr. Segun Babatunde being aggrieved by the judgment of the lower court, lodged the appeal No. SC.350A/2002 to this court.

The 3rd respondent, Alhaja Bamidele Adepate filed a separate Notice and grounds of appeal. In another judgment of the lower court delivered by W.S.N. Onnoghen, JCA (as he then was) on the same 18th of October 2001, the appeal was allowed and the judgment of the trial court was set aside. The appellant being dissatisfied with this second judgment of the lower court appealed to this court in the appeal No. SC.350/2002. I shall now consider the two consolidated appeals. Since the events in the appeal No. 350A2002 preceded and actually led to the sale of the property to Alhaja Bamidele Adepate in appeal No. SC.350/2002, it is right and proper and for ease of reference to first consider appeal. No. SC.350A/2002. APPEAL NO. SC.350A/2002

In this appeal, the appellant adopted and relied on the brief filed on 13/1/03 in which four issues were formulated for determination as follows:-