Vera Ezomo V. New Nigeria Bank PLC & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA, J.C.A.

At the High Court of Justice, Benin City, the appellant as plaintiff took out a writ against the respondents as defendants jointly and severally for the following reliefs –

(1) A declaration that the 1st defendant failed and/or neglected to give NOTICE in writing and serve the plaintiff that his mortgaged or legal charge property known as the Royal Estate Ugbor Road, Benin City was to be sold as required by law and so the purported sale to the 2nd defendant is null and void.

(2) A declaration that the 1st defendant being the mortgagee exercised his power of sale mala fide and without reasonable caution and so failed to obtain a proper price from the 2nd defendant and thus rendering the purported sale null and void and of no effect.

(3) A declaration that the said mortgaged property was sold by the 1st defendant to the 2nd defendant during the pendency of suit No. B/1/85 between the 1st defendant and the plaintiff which went on appeal to the Court of Appeal on 22nd August 1991 and so caught by the principle of LIS PENDENS and thus rendering the purported sale null and void and of no legal effect.

(4) One million naira (N1,000,000.00) being special and general damages “for trespass committed by both defendants when they broke the plaintiff s closed (sic) and entered into his premises known as Royal Estate Ugbor, Benin City.

(5) An order of permanent injunction restraining the 2nd defendant, his servants and/or agents from further entering on the plaintiff’s mortgaged property known as Royal Estate Ugbor Road, Benin City.

The plaintiff went on later to file a Statement of claim dated 12th June 1995 which by leave of court underwent amendments finally culminating in the filing of a THIRD AMENDED STATEMENT OF CLAIM dated the 9th April 1997 upon which issues were joined by the consequential amended statement of defence of the 1st and 2nd defendants dated the 5th May 1997 with respect to the 1st defendant whilst from the records the date of the 2nd defendant’s Amended statement of defence is not indicated but there is indication that it was filed on the 28th November 1997.

Briefly the facts as can be gleaned from the records are that the appellant, a Medical Doctor, by a “legal charge” dated 18th August 1977 obtained an overdraft /loan of N50,000.00 to enable him develop a hospital Off Ugbor Road Benin City. Following an alleged default on the part of the appellant to repay the said loan, the 1st defendant Bank took out a writ in court and obtained judgment against the appellant in the sum of N161,524.66 inclusive of interest at 13% arising from the said overdraft. On the 2nd August 1991 the appellant who was dissatisfied with the judgment referred to, filed a Notice of Appeal against the said judgment. The appellant contended that while this appeal was pending at the Benin Division of the Court of Appeal, the 1st respondent executed on 7th October 1992 in favour of the 2nd respondent a Deed of Transfer of the said appellant’s property as contained in the legal charge/mortgage dated 18th August 1977. The said transfer was said to have been made by the 1st respondent to the 2nd respondent after the former had purportedly sold to the latter the said charge/mortgaged property by private treaty for the sum of N120,000.00.

The appellant’s appeal earlier referred to was dismissed on the 19th January 1995 for want of prosecution. The appellant has further contended that the property, the subject matter of the suit was sold/transferred by the 1st respondent to the 2nd respondent while the appeal was still pending and therefore the doctrine of “LIS PENDENS” applies. The appellant further contended that the 1st respondent Bank failed and/or neglected to give Notice in writing to the appellant that his mortgage or legal charge property was to be sold as required by law. The appellant further contended that the 1st respondent exercised his power of sale mala fide and without reasonable caution and so failed to obtain a proper price from the 2nd respondent, thus rendering the purported sale null and void. The respective amended statements of defence of the 1st and 2nd respondents earlier referred to substantially denied these averments. The case then proceeded to be heard. The appellant gave evidence but called no witness.

The 1st respondent called two witnesses while the 2nd respondent gave evidence but called no witnesses. The respective counsel for the parties addressed the court and the learned trial Judge Idahosa J. in his judgment of the 26th May 1999 found in favour of the respondents. It is in respect of this judgment that the appellant by a Notice of Appeal dated 26th July 1999 appealed to the Court of Appeal.

When this appeal came up for hearing on the 19th January 2006, D.A. Alegbe Esq counsel for the appellant adopted and relied on the Appellant’s Brief of argument dated 28th February 2003 and deemed filed on the 13th March 2003. He also adopted and relied on the Appellant’ Reply Brief dated 21st February 2005 and deemed filed on the 17th May 2005. He urged this court to allow the appeal and set aside the decision of the High Court. Counsel for the 1st respondent A.O. Eghobamien adopted and relied on the 1st respondent’s Brief of argument dated 16th June 2003 and deemed filed on the 8th December 2003. He also referred to the 1st respondent’s Notice of preliminary objection filed on the 18th June 2003. He went on to say that the 1st respondent has argued the brief in two parts.

The 1st part is the preliminary objection while the 2nd part is the main brief. He abandoned the first ground of objection contained on pages 3 and 4 of the 1st respondent’ brief while retaining the rest of the argument on the preliminary objection. He urged this court to dismiss the appeal and affirm the judgment of the lower court. On his part counsel for the 2nd respondent F.O. Orbih Esq adopted and relied on the 2nd respondent’s brief dated 4th March 2004. He also drew the attention of the court to a Notice of preliminary objection filed along with the 2nd respondent’s brief. He abandoned grounds 1 and 2 of the said Notice of preliminary objection and the arguments attendant thereto while retaining the rest of the argument and urged this court to dismiss the appeal and affirm the decision of the High Court below.

I shall now proceed to deal with the preliminary objections incorporated in the respective briefs of argument of the 1st and 2nd respondents. In support of the proposition that a preliminary point of law can be raised in the respondent’s brief the 1st respondent relied on AJUDE V. KELANI (1985) 3 NWLR PA RT 12 page 48 at page 257 paragraphs C-H. The 1st respondent has stated on page 2 of it’s brief of argument that it has filed a separate and independent motion raising the preliminary objection in accordance with the decisions in NSIRIM V. NSIRIM (1990) 3 NWLR PART 138 page 297 paragraphs A-B; SAVANNAH BANK NIG PLC V. PMS LTD (1990) 10 NWLR PART 621 page 160 at page 164 paragraph D-G and SOFOLAHAN V. FOLAKIN (1999) 10 NWLR PART 621 page 86 at 97 paragraphs D-F and in further compliance with order 3 Rule 15 of the Court of Appeal Rule 2002 the motion has been filed more than three days preceding the scheduled hearing of the appeal. With the abandonment of the first ground of objection tagged issue 1 on pages 3 and 4 of the 1st respondent’s brief the next and only issue of objection and tagged issue 2 on pages 5-7 of the 1st respondent’s brief of argument is whether particulars (iii) and (v) pursuant to ground 2 of the appellant’s Notice of Appeal arise from the ground of appeal. Counsel submitted that where a ground of appeal is supported by particulars such particulars must relate to or arise from that ground. Where a single particular fails in this respect the entire ground of appeal is liable to be struck out because the court will not carry out a surgical procedure on the grounds of appeal. The following cases were referred to in support –