Alex Finance & Mortgage Nigeria Limited & Anor V. Cecilia Ukonu (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDULKADIR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment delivered on 25/9/2008 by Hon. Justice A.A. Nwobodo of the Enugu Judicial Division of the Enugu State High Court of Justice granting the reliefs sought by the respondent in the trial court.

The Respondent as the then Plaintiff commenced an action against the Defendants (now Appellants) at the High Court of Justice, Enugu State (hereafter simply referred to as “the lower court”) by a writ of summons filed on 28/7/98. The original 27 paragraph Statement of Claim filed on 28/7/98 was later amended and refiled on 29/9/2005 wherefore the Plaintiffs sought the following reliefs:

a. “A declaration that the transaction between the plaintiff and the 1st defendant in all the circumstances of the case was intended to be and was a loan transaction which ought to comply with the stipulations of the money lenders law with repayment of the loan and interest thereon secured by an equitable mortgage.

b. A declaration that the charge or equitable mortgage transaction ought to have been executed through appropriate conveyance procedure, and, that being an equitable charge or mortgage transaction, the mutual rights of the parties ought to have been secured as by law ordained, and, particularly the plaintiff’s equity of redemption and equitable right to redeem ought not to have been fraudulently trampled by the defendants.

c. A declaration that the transaction between the plaintiff on the one hand and the 1st and 2nd defendant on the other was irredeemably contrary to the money lenders law, the illiterate protection law and the proper conveyance law, practice and procedure.

d. Declaration that the 1st and 2nd defendants’ conduct in their dealings with the plaintiff contravened the money lenders law whereby the 1st and 2nd defendants forfeited their right to enforce payment of the balance of the loan given to the plaintiff.

e. Declaration of plaintiff’s statutory right of occupancy to the property in dispute.

f. An order setting aside the purported sale of the said property; namely No. 9 Kenyata Street, Uwani Enugu, variously to the 1st defendant, 2nd defendant, 4th defendant or any other purchasers whatsoever for illegality.

g. N15 million damages for fraud and trespass and 5% interest on the judgment debt until liquidated.

h. An order setting aside the purported powers of Attorney and for the 1st and 2nd defendants to return the plaintiff’s documents of title still in their custody.

i. An injunction restraining the defendants whether by themselves, their servants, agents or privies or otherwise however from interfering with plaintiff’s right of property over the buildings and premises at No. 9 Kenyatta Street, Uwani, Enugu.

At the trial court, the 1st defendant (now 2nd Appellant) filed a twelve (12) paragraph statement of defence dated 6/4/2000 and filed on 29/6/2004. The 2nd defendant (now 1st Appellant in this appeal) had a ten (10) paragraph statement of defence dated 6/4/2000 and filed on 29/6/2004. The 4th defendant (now 2nd Appellant) had a thirteen (13) paragraph statement of defence dated 16/6/13 and filed on 27/7/99. See pages 96-103 of the record. The 1st and 3rd defendants are parties in this appeal.

Issues were formulated, argued and settled by the parties through their respective legal representatives. “The plaintiff called two witnesses to prove her case at the trial while the 1st & 2nd defendants called two (2) witnesses in defence”