Access Bank Plc V. Trilo Nigeria Company Limited & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment)

In the Plaintiff’s Joint Statement of Claim filed before the Kano State High Court dated the 13th September, 2006, the plaintiffs, now the Respondents in this appeal, claimed against three Defendants, of whom, one was Global Bank Plc, but, later taken over by Intercontinental Bank Plc, and which, in turn, was bought over by the present Appellant, i.e. Access Bank Plc; the following:

“1. An order setting aside the purported sale of 2nd Plaintiff’s property covered by Certificate of Occupancy No. LKN/RES/98/35 to the 3rd Defendant for being unlawful, irregular, null and void.

2. An order that the sale of the 2nd plaintiff’s landed property covered by Certificate of Occupancy No. LKN/RES/98/35 by the 1st Defendant at the cost of N12 Million was a breach of the 1st Defendant’s statutory and fiduciary duties to the 2nd plaintiff.
3. An order that the sale or the purported sale of the 2nd Plaintiff’s property covered by Certificate of Occupancy No. LKN/RES/98/35 by the 1st Defendant at Gross under value was unlawful, void and of no effect whatsoever.
4. N35 Million damages against the 1st Defendant being the forced sale value of the 2nd plaintiff’s property irregularly sold by the 1st plaintiff to the 3rd Defendant.

IN THE ALTERNATIVE

N35 Million special damages against the 1st Defendant

5. An order that the 1st plaintiffs account with the 1st Defendant has been unnecessarily debited by the 1st Defendant.
6. A declaration that the purported sate of the 2nd Plaintiff’s property situate at No. 2B Borno Avenue, Kano and covered by Certificate of Occupancy No. LKN/RES/98/35 is null and void and of no effect whatsoever.
7. A declaration that the purported sale of the 2nd Plaintiff’s property by the 1st Defendant is not in accordance with the law.
8. A declaration that the purported sale of the property in dispute is also null and void because it is contrary to the terms of the mortgage agreement between the 1st and 2nd plaintiffs and the 1st Defendant.
9. An order that the purported sale of the 2nd Plaintiff’s property by the 1st Defendant to the 3rd Defendant was conducted in Bad Faith and was a Sham and/or made fraudulently.
10. An order that the 2nd Plaintiff’s property ought to have been sold for at least N35 Million and not N12 Million considering inflationary trend and the fact that Landed Property appreciates with time.
11. An order restraining the 1st Defendant from selling, transferring or disposing the Landed Property belonging to the 2nd plaintiff to the 3rd Defendant or any other person for any value below N35 Million as stated in the valuation report submitted to the 1st Defendant by the valuers appointed by her.
12. An order that the 1st plaintiff’s account with the 1st Defendant ought to be in credit.
13. An order that the 2nd Defendant ought to pay all the Lease rentals for the 10 months the 5 Trucks were leased to the 2nd Defendant by the 3rd Defendant.
14. And for further or other order as this Honourable Court may deem fit to make in the circumstance.”

The 1st and 3rd Defendants filed an Amended Statement of Defence wherein the 3rd Defendant counter-claimed as follows:

“(a) That the plaintiffs be ordered to give to him possession of the proper covered by Certificate of Occupancy No. LKN/RES/98/35 situate at Bornu Avenue Nasarawa, Kano in view of the fact that he is the lawful owner of the said property otherwise the bailiffs of this Honourable Court should be ordered to break into the said property and deliver possession of same to the 3rd Defendant.

(b) Any other order(s) this Honourable Court may deem fit to make in the circumstance.”

The Respondents filed a Reply to the 1st and 3rd Defendants’ Statement of Defence and Counter Claim. The 2nd Defendant did not traverse any of the issues raised in the Plaintiffs’ Joint statement of claim.

The averments in the 1st and 3rd Respondents’ pleadings before the lower Court revealed that the 1st Respondent secured a loan of N15 million from the Appellant with a collateral furnished by the 2nd Respondent. The property is covered by certificate of occupancy No. LKN/RES/98/35. A third party Deed of Legal Mortgage over the property covered by Certificate of Occupancy No. LKN/RES/98/35 was executed. Before the loan was granted, the Appellant engaged the services of Jide Taiwo & Co. (Estate Surveyor & Valuers) to value the said property. The Valuation was carried out by Jide Taiwo & Co. on 22/5/2001, and on 24/5/2001, the Estate Surveyor submitted the Valuation Report Certificate to the Appellant, a copy of which was given to the 1st Respondent.

The Valuation Report mentioned that the Open Market Value of the property was N45 million while the Forced Sale Value was N35 Million. It was further averred that owing to the business deals the Respondents and the Appellant had over the leasing and sale of the Respondents’ 5 Trucks that were purchased by them, the sum of N29 Million was realized, which amount was over and above the N15 Million loan granted to the Respondents by the Appellant, the loan, agreement was liquidated.

Despite that, the Appellant purportedly sold the landed property belonging to the 2nd Respondent to the 3rd Defendant in the suit at the lower Court. It was equally averred that there was no auction sale and the sale was conducted contrary to the terms of the loan agreement. It was alleged that the sale was in Bad Faith, marred by irregularities, that the Statutory Notices required under the Mortgage Agreement and the Auctioneers Law have not been served by the Appellant on the 1st and 2nd Respondents and that no notice or demand notice as required by law before the purported Auction or Sale was carried out.

It was also pleaded that the purported sale was made at gross under value and that fraud can be inferred from the purported sale. It was specially pleaded that the sale was fraudulent and in collusion. Several issues bordering on fraud, breach of fiduciary duty, lack of service of certain notices were raised in the pleading; and several documents were pleaded by the Respondents.

The length and breadth of the record of this appeal did not indicate where hearing was conducted in the proceedings before the lower Court. It is quite revealing that no oral evidence was adduced by the Plaintiffs now the Defendants in the proceeding rerating to the sale of the 2nd Respondent’s property. All I could deduce from the judgment of the lower Court and the written addresses of respective Counsel for the parties before it, was that the Exhibits admitted in the proceeding were tendered with the consent of respective Counsel from the Bar. No trial or hearing whatsoever was conducted by the trial Court, but the parties via their respective Counsel formulated the issues for determination and addressed the Court therein.