Mr. Olorunsola Olademo V. Lagos Building Investment Co. Ltd (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

Paul Adamu Galinje, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of Dada J. of the Lagos State High Court which was delivered on the 25th day of October, 2006. By a specially endorsed writ of summons dated and filed on the 14th of October, 2003 and a statement of claim of even date, the Respondent who was the claimant at the lower court claimed the following reliefs:-

“1 The sum of N5,567,224.33 (Five Million, Five Hundred and Sixty-seven Thousand Two Hundred and Twenty-four Naira and Thirty-three Kobo Only), being outstanding balance as at 30th June, 2003 comprising both the principal and accrued interest of the Mortgage Loan granted to the Defendant.

2. Interest on the said sum at the rate of 21% per annum from 1st July, 2003 until final liquidation of the indebtedness.
3. A declaration that the Plaintiff is entitled to immediate possession and or right of sale of the property known and situate at No.11 Adewale Adedeji Street, Ilamose Estate, Ejigbo, Lagos State, shown on Survey Plan No.SJA/551/87/L and covered by Certificate of Occupancy registered as N0.36, at Page 36, Volume 1990 D at the Lands Registry, Alausa, Ikeja, Lagos State and for an order in that respect.”

In reaction to the Respondent’s claims, the Appellant as Respondent filed a statement of defence on the 6th April, 2004.

Issues having been joined the matter was set down for trial. The Respondent called one witness only, while the Appellant testified in person. Thereafter, parties written addresses were adopted. In a reserved and considered judgment, the lower court upheld the Respondent’s claims in the following words:-

“The claimant has proved with the help of the Defendant himself, the outstanding balance of N3,896,992. 67 as at 30th July, 2004. Judgment in this sum is accordingly hereby entered in favour of the claimant. Interest on the said judgment sum at 21% per annum from 30th August, 2004 till today is hereby also granted. The right of the claimant on the mortgaged property also accrues on the commission of the breach of the fundamental term of the agreement. Claimant’s prayer on this relief also succeeds. This is however subject to the Defendant paying the judgment sum hereby ordered to be recovered within 90 days where upon the claimant shall deliver up the certificate of occupancy in its possession to the Defendant forthwith.

It is against this judgment that the Appellant has brought this appeal. His notice of appeal dated 30th October, 2006 contains three grounds of appeal which I reproduce hereunder without their particulars:-

‘(1) The learned trial Judge erred in law in deciding that the Respondent proved the rate of interest used in calculating the debit balance of the Appellant.

(2) The learned trial Judge erred in law and misdirected herself when she held that the Respondent charged compound interest in order to arrive at the amount claimed.

(3) The learned trial Judge erred in law when she held that the mere deposit of a certificate of occupancy by the Appellant entitled the Respondent to the immediate possession of the Appellant’s property situate at 11, Adewale Adedeji Street Ilamose Estate, Ejigbo, Lagos State when the mortgage term was fifteen (15) years’.

Parties filed and exchanged briefs of argument. Appellant formulated three issues for the determination of this appeal. These issues are reproduced hereunder as follows:-

“1. Whether the learned trial Judge was right in holding that the Respondent has proved with the help of the Appellant himself, the outstanding balance of N3,896,992.67 as at 30th July, 2004.

2. Whether the learned Trial Judge was right in holding that the Respondent charged compound interest to arrive at the amount claimed without any evidence to that effect from the Respondent.
3. Whether the learned Trial Judge was right in holding that the Respondent was entitled to the immediate possession of the Appellant’s property before the expiration of the mortgage term of fifteen years when the contract document between the parties placed before the court did not envisage such a situation. ”

Two issues are formulated for the Respondent and they read as follows:-

“1. Whether the Appellant is indebted to the Respondent on the Mortgage Loan and what is the quantum in terms of principal amount and the interest.