Alhaji Buraimoh Oladapo & Anor V. Bank of the North Ltd & Anor (2000)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J.C.A.

In the court below, the appellants who were plaintiffs made the following claims as per the writ of summons:-

(i) A declaration that the two buildings of the plaintiffs which stand on the land sub-leased to them by Emile Bouari on 5th May, 1980 and which is registered as No. 38 in volume 2295 of the Register of Deeds Ibadan are not part of any land or buildings mortgaged to the 1st defendant.

(ii) An order setting aside the purported sale by public auction of plaintiffs buildings which are at Ibuowo corner, Gbagi, facing New Court Road, Ibadan by the 1st defendant to the 2nd defendant as improper unlawful, and null and void.

(iii) Injunction restraining the defendants, their agents, successors and privies from laying claim to or in any way interfering with the quiet enjoyment of plaintiff’s sublease.

Pleadings were exchanged by parties on the order of the court. The plaintiff’s claim at the lower court was predicated on a sublease of a land entered on 15/5/80 between the plaintiffs and one Emile Bouari and which will expire in year 2000. Two buildings housing 50 shops worth N5 million were constructed on the land by the plaintiffs. The said buildings were sold to the 2nd defendant by the 1st defendant, even though the plaintiffs were not indebted to the 1st defendant, and the plaintiffs have asserted that the sale can only be subject to the equitable interest of the plaintiffs.

The defendants jointly denied the case of the plaintiffs, stating that Lutfallah Bouari is the lessor of the property situate at No. 30, Oba Adebimpe Street, Ibadan by deeds of lease dated 27/7/33 and 27/7/93 and 6/7/53, and which Lutfallah Bouari mortgaged to the 1st defendant by deeds of legal mortgage dated 6/12/68 and 20/ 3/63, to secure the account of Trans Atlantic Co. Ltd. Emile Bouari endorsed the deeds of legal mortgage that Lutfallah Bouari executed in favour of the 1st defendant. The defendants pleaded fraud in respect of the sublease granted in favour of the plaintiffs by Emile Bouari which is in fraud of the right of the 1st defendant as a mortgagee. The defendants have asserted that the plaintiffs are not owners of the property called Ibuowo Coner.

Both parties adduced evidence which were evaluated by learned trial Judge, who at the end of the day dismissed the plaintiff’s case in its entirety. Dissatisfied with the judgment the plaintiffs appealed to this court on five grounds of appeal. Learned counsel for the parties exchanged briefs of argument in pursuance to Order 6 rules 2, 4 and 5 of the Rules of this court of 1981 as amended and the briefs of argument were adopted by counsel at the hearing of the appeal. Issues for determination were formulated in the appellant’s and respondent’s brief of argument. In the appellant’s brief of argument are the following issues:-

1. Whether heavy reliance placed on the evidence of the D.W.2 in arriving at a conclusion and defeating the claims of the plaintiffs was not erroneous in law in the light of the evidence before the court.
2. Whether the failure of the learned trial Judge to make a finding on the validity of Exhibits J and K was in order in the circumstances and whether his failure to do so has occasioned a miscarriage of justice.
3. Whether the judgment is not against the weight of evidence.

A notice of preliminary objection was raised in the respondents’ brief of argument and learned counsel for the respondents moved the objection at the hearing of the appeal. It was his submission that the learned counsel for the appellants conceded the notice of preliminary objection in paragraph (3) of the appellants’ reply brief of argument. The respondent’s objections are predicated on the grounds of appeal which he has attacked as being incompetent.

It is thus imperative that I reproduce the grounds of appeal at this juncture.

They read:-

1. The learned trial Judge erred in law when he relied heavily on the evidence of D.W.2 in holding that:

“The implication of this fact is that the buildings or shops allegedly owned by the plaintiffs are on the parcel of land described as Gbagi IV(12) mortgaged to the 1st defendant by Exhibits ‘J’ and ‘K’.

Particulars of error

(a) Although D.W.2 maintained in his evidence-in-chief that Exhibit ‘A’ is within Exhibit ‘C’ this witness under cross-examination agreed that there are portions of the land contained in Exhibit ‘A’ that encroach on Exhibit ‘C’.