Alhaji Kayode Salami V. Wema Bank Nigeria Plc & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

RAPHAEL CHIKWE AGBO, JCA,

Late Alhaja Amudat S. Salami was the mother of the appellant. She was the owner of a property situate at Plot 3, Daddy Adediran Street, Ire Akari Estate Isolo, Lagos State. She was a customer of the 1st respondent. She took overdraft facilities from the 1st respondent and secured same with a legal mortgage of her property statute at Plot 3 Daddy Adediran Street, Ire-Akari Estate Isolo, Lagos State. The mortgage Deed tendered at the trial as exhibit “D3” was executed on 27th November, 1989 while the contested document containing the Governor’s consent to mortgage property is dated 27th August, 1979. The sum secured ex-facie exhibit “D3” was N62,000.00. By a letter dated 22nd March, 1985 the 1st respondent foreclosed the mortgage subject only to Alhaja Salami paying within one month the sum of N118,809.41. Alhaja Salami proceeded against the 1st and 2nd respondents in suit No. ID/453/85 on their advertising the property for sale. She obtained an injunction against the 1st and 2nd respondents restraining them from selling the mortgage and property. She thereafter sought from the 1st respondent a further loan to complete her project to enable her defray her indebtedness to the 1st respondent from rent that would accrue from the mortgaged property after full development. The 1st respondent declined to negotiate with her unless she determined her suit against it. Alhaja Salami discontinued her suit. The 1st respondent did not extend further credit to her but instead proceeded to the sale of the mortgaged property the subject matter of this case. The sale was effected to the 3rd respondent on 27th July 1990. Not satisfied with the transaction Alhaja Salami proceeded to the High Court of Lagos State and filed the suit the subject matter of this appeal.

However, before the suit could proceed to hearing she died and was substituted by the appellant who is one of her children.

In his further amended statement of claim the appellant as plaintiff claimed of the respondents as follows:

“(a) A declaration that the purported sale by auction of the deceased’s landed property situate at Plot 3, Daddy Adediran Street, Ire-Akari Estate, Isolo is null and void being contrary to the provisions of the Land Use Act, 1978 and the Sale by Auction Law of Lagos State.

(b) AND ORDER setting aside the sale of the deceased’s landed property situate at Plot 3, Daddy Adediran Street Ire-Akari Street, Isolo on the ground inter alia that the alleged sale by auction was fraudulently contrived and carried out.

(c) AN ORDER OF UNJUNCTION restraining the defendants, their servants, privies from executing in favour of the 3rd defendant or any person any document tending to pass title, give possession or transfer ownership of the said building to the buyer or any person.

ALTERNATIVELY

AN ORDER setting aside any document executed by the 1st defendant in favour of the 3rd defendant and the Registration of the 3rd defendant title in the Lands Registry, Lagos.

d. AND FOR SUCH relief as the Honourable Court may deem fit to make.”

All the parties filed and exchanged pleadings. The 3rd defendant now 3rd respondent counter-claimed against the plaintiff now appellant as follows:

“(i) Possession of the property lying and situate at Plot 3, Daddy Adediran Street, Ire-Akari Estate, Isolo.

(ii) The sum of N6 million as damages for trespass.

The alternative prayer against 1st and 2nd defendants was discontinued. The case went to trial. The plaintiff called evidence to prove his case. The 3rd defendant called evidence in defense and in proof of his counter-claim. The 1st and 2nd defendants did not call evidence. At the conclusion of evidence the parties filed written addresses. In a considered judgment the court below granted the 3rd defendant’s prayer in the counter claim for possession. Not being satisfied with the judgment the plaintiff filed this appeal.