Union Bank of Nigeria Plc V. Henry Tivde Adom & Anor (2002)

LawGlobal-Hub Lead Judgment Report

MUKHTAR, J .C.A.

As per the claim of the respondent, (the plaintiff in the lower court) in his amended statement of claim, which supercedes the writ of summons (see Lahan v. Lajoyetan (1972) 6 S.C. 190 he sought the following reliefs:-

18(a) An order setting aside the sale of the plaintiff’s premises covered by Certificate of Occupancy No. BN 2391 Makurdi on the ground that the purported sale was illegal and absolutely void.

(b) An order of perpetual injunction restraining the defendant from further purporting to sell off any property of the plaintiff without any court writ.

(c) One hundred thousand Naira (N100,000.00 as general damages for trespass and illegal sale of the plaintiff’s property.

The case of the plaintiff is that he entered a mortgage deed with the defendant in 1976 for an aggregate sum of N40,000 which was fully paid up in 1980. At a later period when he got a contract the defendant allowed the plaintiff to overdraw his company account, but this arrangement was outside the mortgage deed he executed in 1976. In January, 1998, the defendant purportedly sold the plaintiff’s property for the sum of N60,000 at an auction sale which the plaintiff claim was null and void.

In its defence the defendant denied most of the above allegations, but confirmed that a mortgage deed was entered into between the plaintiff and the defendant in 1976, for an overdraft, with property with Right of Occupancy No. BP 2391 as security. When payment in respect of the overdraft was not forthcoming and after so many demands, the defendant, after taking necessary steps under the law, auctioned the property, and realised the sum of N60,000, which was used to liquidate the debt owed by the plaintiff.

The defendant counter-claimed as follows in the amended statement of defence.

(12) That before the auctioning of the plaintiff’s said premises on 29/1/1992, the plaintiff’s account had been in debit up to the sum of N82,937.00.

That after the said sale the proceeds of the sale were applied towards the liquidation of the plaintiff’s indebtedness and incidental expenses connected with the sale leaving the debit balance of the plaintiff’s account at N22,937.00. The plaintiff’s statement of account and other related documents will be tendered at the trial.

(14) Whereof the defendant claims from the plaintiff (i) the sum of N22,937.00 and interest at the rate of 21% on same from 29/1/1992 until payment being the debit balance of the facility granted to the plaintiff; and (ii) an order compelling the plaintiff to quit the premises situate at No.9 Clerks Ward and covered by Benue State Government Certificate of Occupancy No. BP 2391 forthwith.

After pleadings were completed parties adduced evidence and counsel addressed the court. The learned trial Judge evaluated the evidence and at the end of the day, allowed the plaintiff’s claim and dismissed the defendant’s counter-claim.

Dissatisfied with the decision the defendant appealed to this court on four grounds of appeal.

The original notice of appeal bore only one Emmanuel S. Adom as the only respondent. On 17/9/97 learned counsel for the appellant filed an application for an order joining Francis Ogebe Eneche as the 2nd respondent in the appeal, amongst other orders sought. When the application was moved on 17/11/97, the following orders were made:-