Akpan Sunday Akpan V. Union Bank of Nigeria Plc Anor (2002)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

Akpan Sunday Akpan, the appellant in this appeal, was sued as 2nd defendant, with the Union Bank of Nigeria Plc as 1st defendant by Anthony Oscar Okon the plaintiff/ respondent, in suit No. HU/186/94, filed in the Akwa Ibom State High Court, Uyo Judicial Division, on 14th June, 1994.

Prior to the events culminating in the aforesaid suit, the 2nd defendant/appellant was the owner of the property, consisting of a bungalow lying and situate at No.4 Ewet Street, Uyo, which is covered by a certificate of occupancy No. UY/745/82 registered as 57/57/225 at the Lands Registry, Uyo, Akwa Ibom State (hereinafter referred to as the property in dispute or mortgaged property). As a collateral for a loan facility granted to him by the 1st defendant/ respondent bank, the 2nd defendant/appellant mortgaged the property in dispute to the former, that is, the 1st defendant/respondent bank, under a deed of legal mortgage, dated 30th August, 1984, registered as 5/5/240 at the Lands Registry, Uyo, made between the 2nd defendant/appellant as mortgagor and the 1st defendant/respondent as mortgagee. By virtue of clause 6 of the Deed of Legal Mortgage, the mortgagee is entitled to sell the mortgaged property in the event of default in the repayment of the mortgage debt.

Apparently, on being intimated by the bank of his indebtedness under the loan, the 2nd defendant/appellant disputed the debt and in furtherance thereto, filed an action, to wit, suit No. HU/52/93 on 6th April, 1993, against the 1st defendant/respondent bank to challenge his alleged indebtedness. That suit was eventually struck out on 21st July, 1994, for want of diligent prosecution.

Meanwhile, in the exercise of its power of sale under the mortgage deed, the 1st defendant/respondent on 23rd of April, 1993, advertised in the Punch Newspaper, the property in dispute for sale, through a public auction slated for 26th April, 1993, and in the public auction conducted on that day, the plaintiff/respondent purchased the property in dispute for a consideration of N220,000.00 (Two hundred and twenty thousand Naira only). On receipt of the amount the 1st defendant/respondent used the sum of N14,889.12 to defray the outstanding mortgage debt and credited the account of the 2nd defendant/appellant with the balance.

The plaintiff/respondent after being given the certificate of occupancy and deed of legal mortgage relative to the property in dispute and assured of the deed of assignment, took steps to recover possession of the property. To this end, through his solicitor, he served a notice of intention, dated 9th May, 1993, to recover possession on 2nd defendant/appellant, who in reaction thereto through a letter by his solicitor challenged the plaintiff/respondent’s claim to title of the disputed property contending that there was a pending motion to relist his suit No. HU/52/93, which was struck out on 21st July, 1994.

It is in the foregoing circumstances that the plaintiff/respondent, by an originating summon, filed in court on 14th June, 1994, commenced the action predicating the instant appeal posing for determination in the said summons several issues, which as paraphrased are whether the 1st defendant/respondent bank was the legal mortgagee of the property in dispute; if the power of sale had crystallised in its favour, whether the sale of the property by public auction had validly divested the 2nd defendant/appellant of the title to the mortgaged property and vested same on the plaintiff/respondent. The summons then concluded with the following prayers:

“1. A declaration that the exercise of the power of sale by the 1st defendant as legal mortgagee of the property at No.4 Ewet Street, Uyo, Akwa Ibom State of Nigeria, is legal and valid.

2. A declaration that the plaintiff is the owner of property, lying and situate at No.4 Ewet Street, Uyo, Akwa Ibom State, No. 44/745/82, and registered as 57/57/225 at the lands registry at Uyo, Akwa Ibom State of Nigeria, by virtue of purchase of the said property, at a public auction carried out by the 1st defendant on the 26th of April, 1993.
3. An order granting possession of the said property at No. 4 Ewet Street, the capital city of Uyo, Akwa Ibom State of the Nigeria, to the plaintiff.
4. An order directing the 1st defendant to credit the plaintiff’s accounts with the 1st defendant, with the interests accruable on the sum of N220,000.00(Two hundred and twenty thousand Naira only) presently, in the custody of the 1st defendant, calculated at the prevailing banking interest rate or such other rate as the court may deem fit, until this action is finally determined.”

In support of the originating summons, the plaintiff/respondent filed:

a) An affidavit dated 14th June, 1994, sworn to by him with exhibits A to F.

b) A further affidavit of 4th March, 1996, with exh. A. In its defence, the 1st defendant/respondent filed:-

a) A counter-affidavit sworn to by its advances officer, Nkereuwem Dickson Akpabio.

b) An additional counter-affidavit sworn to by John Dickson Ekwere, a legal practitioner for the defendant/respondent with exh. A-D.

On his part, the 2nd defendant/appellant relied on:-