Alhaji Auwalu Etokhana V. Nigeria Deposit Insurance Corporation & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Federal High Court, Kano, delivered on 26th March 2010, by Hon. Justice Adamu Bello, in which he dismissed the claims of the Appellant. The Appellant, aggrieved, has appealed to this Court by a 5 ground Notice of Appeal, filed on 17th day of December 2012.

In prosecution of the appeal, the Appellant’s Counsel, Felix Jones Osimerha, Esq. filed on 31/3/14 the Appellant’s Brief of Argument, dated 28/3/14, formulating the following issues for the Court’s determination:

1. Whether from the totality of the documentary evidence the Honourable trial Court was right to rely on the viva voce evidence of DW1, Okeke Ikechukwu Thaddeus to contradict EXHIBIT ‘M’ (Sale Agreement between Progress Bank Ltd and Hajia Ralatu Oredola Dawudu) and EXHIBIT ‘GL’ (Kano State High Court, Director of Litigation letter to Appellant notifying him of the Sale of the property by the Court) to hold that there was a sale of the Appellant’s property at Hausawa Quarters, Kano covered by the Certificate of Occupancy No. LKN/RES/RC/82/59.

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(GROUND 2 of the Notice of Appeal).

2. Whether the Honourable Trial Court was not wrong in relying on the Unstamped Sale Agreement between Progress Bank Ltd and Hajia Raliatu Oredola Dawudu (EXHIBIT ‘M’) to hold that there was Sale of the Appellant’s property situate at Hausawa Quarters Kano, covered by the Certificate of Occupancy No. LKN/RES/RC/82/59. (GROUND 5 of the Notice of Appeal)
3. Whether from the totality of the evidence, the Honourable Trial Court was not wrong in refusing to set aside the sale of the Appellant’s property after finding that the Sale of the property was shrouded in secrecy, irregular, unlawful and outright illegal on the grounds that there was no relief for setting aside for illegal and unlawful sale and for the failure to join the purchaser of the property (GROUND 1 of the Notice of Appeal)
4. Whether the Honourable Trial Judge wrongly upheld the 1st Respondent’s predecessor’s resort to sale of the appellant’s property by the exercise of the power of sale under a covenant or stipulation in the Deed of mortgage after it has obtained judgment in the Court for the Debt, against the Appellant. (GROUND 4 of the Notice of

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Appeal)

5. Whether the Honourable Trial Judge was right in relying on the Exhibit ‘K’ ,’L’ and ‘G2’ to hold that the Appellant’s property situate at Hausawa Quarters, Kano covered by the Certificate of Occupancy No. LKN/RES/RC/82/59 was sold and the proceeds of N420,000.00 credited into the Appellant’s account with Progress Bank Ltd. (GROUND 3 of the Notice of Appeal)

The 1st Respondent, through his Counsel, Charles Asogwa, Esq. filed its Brief of Arguments on 8/4/15 but deemed as properly filed by leave of this Court on 15/4/15, formulating thereby 3 issues for the Court’s determination, as follows:

1. Whether there was a sale of the immovable property of the Appellant situate at No. 385 Hausawa Quarters Kano, covered by Certificate of Occupancy No. KN/RES/RC/82/59 and if there was a sale whether the sale of the said property was wrongful, illegal, null and void.
2. Whether EXHIBIT ‘M’ being sale agreement between Progress Bank Ltd. and Hajia Raliatu Oredola Dawudu is a document that must be stamped under the Stamp Duties Act 2004.
3. Whether the Honourable Trial Court wrongly upheld the 1st Respondent’s predecessor’s resort to sale of

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Appellant’s property by the exercise of the power of sale under a covenant or stipulation in the Deed of Mortgage after it has obtain judgment in the Court for the debt against the Appellant.

The 2nd Respondent was absent and unrepresented at the hearing of the appeal and filed no Brief of Argument.

At trial, the Appellant was the sole witness in proof of his case. The 1st and 2nd Defendants similarly called one witness each.

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The Appellant’s case, by his pleadings, is that he obtained a loan from his Banker, Progress Bank Nigeria PLC, Kano Branch (hereafter referred to as “the Bank”), to pay for two Fiat trailers from Incar Nigeria Ltd (Incar) on hire purchase, using as collateral, two of his properties at Plot 385 Hausawa Quarters, Kano and Plot 11 Naibawa Quarters, Zaria Road, Kano. The said vehicles were, unfortunately, seized by Incar, causing him to default in his repayment to the Bank, who then instituted an action for the recovery of the debt. While the case was pending, the Bank gave him an additional loan to prosecute the case which he had filed at the Lagos High Court against Incar. In the interim, the High Court of Kano State, before