African Continental Bank Ltd. & Anor. V. Ifeanyi Ajugwo (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court, Onitsha, Anambra State delivered by Hon. Justice P.A.C. Obidigwe on 3/6/2004 in Consolidated Suit Nos. O/118/90 and O/123/90 wherein he dismissed the claim in Suit N0. O/123/90 and granted the reliefs as prayed in Suit No. O/1818/90.

The plaintiff Ifeanyi Ajugwo, in the lower court in Suit NO. O/118/90 was substituted for his deceased father, Jerome B.C. Ajugwo. He is now the 1st Respondent in this appeal. His father Jerome Ajugwo was a current account customer with the 1st defendant (now the appellant) in her Onitsha branch. One S.B.C. Maduakolam, carrying on business under the name and style of Maduakolam and company was a friend of Respondent’s father. He also had a current account with the appellant. He borrowed money from the appellant and the Respondent’s father guaranteed the loan/overdraft and in the process mortgaged his landed property at Plot 8, Block 34 Nupe Settlement, otherwise known as N0. 2 Anambra Street Fegge, Onitsha and handed the documents of title, namely a Building lease and Assignment of lease to the Appellant and the transaction was evidenced by a Deed of legal Mortgage showing that the appellant will lend the sum of N15,000 to S.B.C. Maduakolam as the Borrower while the Respondent’s father was the mortgagor who guaranteed the loan.

Subsequently S.B.C. Maduakolam moved to Owerri and opened another account with the appellant’s branch there. The appellant later merged his account in Onitsha with that in Owerri branch. The Respondents father then applied to the appellant for the Demerger of the accounts and stoppage of further interest accruing on the loan account to enable him pay off the loan he guaranteed and recover his title documents. His request was granted by the 1st appellant upon certain conditions which he readily agreed to in writing. While he was making payments as agreed, the 1st appellant instructed an auctioneer to sell the mortgaged property and this was eventually done in spite of his efforts to show that he did not default in repayment of the loan within the time frame given by the 1st appellant. Consequently, he instituted Suit No. O/118/90 against the appellant at the Onitsha High Court wherein he claimed in the further amended statement of claim as follows:-

(a) A declaration that the plaintiff is entitled to the return of his father’s documents in respect of his landed property at No. 2 Anambra Street, Fegge Onitsha which said documents as herein above mentioned are dated the 4th of May 1973; and 27th August,1974.

(b) An order of court that the said documents be returned to the plaintiff forthwith.

(c) N500,000 (five hundred thousand naira) for breach of warranty and/or assurance for failure to return the said documents in respect of the said overdraft facilities heretofore mentioned which had been repaid.

25. Whereof the plaintiff claim in the alternative N100,000,000 (One hundred million naira) for his documents in respect of the landed property at N0. 2, Anambra Street, Fegge, Onisha, which documents the defendants are withholding.

In Suit N0. O/123/90 the plaintiff (Sydney Obi) who bought the auctioned property, claimed as follows:-

(a) Possession of the said leasehold property together with the building erected thereon known as and called Plot 8, Block 34, Nupe Settlement, otherwise called No. 2 Anambra Street, Fegge Onitsha.

(b) N5,000 (five thousand naira) general damages for defendants trespass on the said building and premises.

(c) Injunction restraining the defendant, his servants and/or agents from remaining on or continuing in occupation of the said plot and building erected thereon.

At the hearing of the two suits which where duly consolidated, each of the parties gave evidence and called no witness except for the 2nd defendant (Mr. P. A. Otugo) who neither appeared in court nor gave evidence.

At the conclusion of hearing, or 6/2/04 the learned trial judge in his judgment delivered on 3/6/04 dismissed the claimed in Suit No. O/123/90 but granted the plaintiffs (now respondent) claim in suit N0. O/118/90.

Being dissatisfied with the said judgment in O/118/90, the appellants filed a Notice of appeal containing seven grounds. In compliance with the Rules of this court, briefs of argument were subsequently filed and served. The appellant’s amended brief of argument dated 31/7/2009 and filed on 7/9/2009 was settled by Chief Chidube Ezebilo (SAN).