Atiba Iyalamu Savings & Loans Limited V. Mr. Sidiku Ajala Suberu & Anor (2018)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The 1st respondent herein (plaintiff at the trial Court), as the owner of a business centre known as Amusement International Guest House Ltd., on 10th September 1996, secured a loan of N600,000.00 from the appellant. The facility was secured with his landed property situate at No. 11, Adamu Road, Off Taiwo Road, Ilorin, covered by a statutory Right of occupancy No. KW 7052. The parties duly executed a deed of mortgage wherein it was stipulated that the interest on the loan shall be per annum. It was the 1st respondent’s contention that not only had he repaid a total sum of N826,476.00 to the 1st respondent, he had in fact made an overpayment of N179,905.00 between October 1998 and March 1999. He set out in his pleadings the schedule of repayments. It was also the appellant’s contention that although the parties originally agreed that the loan would be repaid within one year, it was later agreed that the repayment would be extended beyond one year. The 1st respondent’s case was that notwithstanding fully liquidating the loan with the accrued interest,

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the appellant and the 2nd respondent sought to auction the mortgaged property by virtue of an auction notice published in the Tribune Newspaper of 2/2/1999. It was also the 1st respondent’s contention that notwithstanding an order for injunction obtained by him and served on the appellant and 2nd respondent on 9/3/1999, the 2nd respondent pasted an auction notice on the property on the instruction of the appellant.

By paragraph 18 of his Further Amended Statement of Claim dated 31/01/2003, which was deemed properly filed and served on 30/4/2003, the 1st respondent (as plaintiff) sought the following reliefs against the appellant and 2nd respondent (the auctioneer):

“Whereof the plaintiffs claims against the defendants as follows:

1. A declaration that the notice of sale by auction contained in the Nigerian Tribune Newspaper of 2/2/99 and the notice of sale by auction pasted on 11/3/99 are null and void.

PARTICULARS

(i) The two notices contravene the auctioneers Law.

(ii) Auction notice was pasted on plaintiffs building after a Court Order.

2. A declaration that the defendants are not entitled to auction the building of

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the plaintiff who does not owe the 1st defendant.

3. A declaration that non-disclosure of the plaintiffs statement of account and non-demand of a correct outstanding debt does not entitle the defendants to auction the plaintiff’s property.
4. A declaration that under the Money Lenders Law, the 1st defendant is not entitled to charge excessive interests on loans.
5. An injunction restraining the defendants, their agents, servant or privies from auctioning, selling or doing anything whatsoever with the said plaintiff’s landed property situate at No. 11 Adamu Road Off Taiwo Road, Ilorin.
6. An order that the defendant should refund to the plaintiff the overpayment N179,805.00 paid by him to the 1st defendant.
7. An order that the 1st defendant should release to the plaintiff his Certificate of Occupancy (C of O) No. KW 7052.”

The appellant filed an Amended Statement of Defence and counter claim wherein it was averred that the terms of the agreement for the credit facility were contained in a letter dated 10th September 1996 and that the 1st respondent accepted all the terms pursuant to which the facility was fully disbursed to him

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between 10th September 1996 and 28th October 1996. It was also its contention that the said terms included interest on the loan at the rate of 3% per month, service charge and all other legitimate dues as approved by the controlling authority and that the loan and charges were to be fully liquidated within 12 months. It was the further contention of the appellant that the sum of N80,661.99 paid by the 1st respondent on 28/10/1996 was in respect of a different facility. That as at 30th November 2000, the 1st respondent’s indebtedness to it stood at N861,110.00 and had risen to N1,466,802.00 by 31st May 2002. It was the appellant’s contention that the 1st respondent never disputed the amount of his indebtedness as stated in demand notices sent to him and that at a point in time, through his solicitors, he not only admitted his indebtedness but undertook to liquidate same by installment payments of N1,700.00 per day. It also asserted that the total amount of the loan re-paid by the 1st respondent is N655,550.00 only.