Barclays Bank Of Nigeria Ltd. V. Alhaji Adam Badejoko Ashiru & Ors. (1978)

LawGlobal-Hub Lead Judgment Report

IDIGBE, J.S.C 

In the High Court of the Western (now Ogun) State, holden at Ijebu-Ode, the plaintiff/respondent brought an action against the defendants/appellants (Barclays Bank of (Nigeria) Ltd.), and the second and third defendants/respondents for the following claims:-

“(1) A declaratory judgment that the Deed of Mortgage, .registered as No. 3 at Page 3 in Volume III in the Lands Registry, Ibadan in respect of the property situate at No. 30 Ishoku Street, Ijebu-Ode, purported to be executed by the plaintiff or on behalf of the plaintiff……. in favour of the first defendants sometime in 1970 or thereabout is irregular, null and void and of no effect, on the grounds of (a) non est factum and or (b) that conditions precedent to the purported execution thereof were not complied with in law and in fact.

(2) A declaratory judgment that any sale or disposition alienation of the property described in the said deed of mortgage referred to in claim (1) above made by the first defendants to the second defendants on or about the 30th day of January, 1971, is null and void and of no effect.

(3) A declaratory judgment that the deed of mortgage registered as No. 12 at Page 12 in Volume 1321 in the Lands Registry. Lagos in respect of the property situate at No. 46 Akpata Street, Shomolu, purported to be executed by the plaintiff or on behalf of the plaintiff……… in favour of the first defendants sometime in 1970 or thereafter is irregular, null and void and of no effect, on the grounds of (a) non est factum and or (b) that conditions precedent to the purported execution thereof were not complied with in law and in fact.

(4) A declaratory judgment that any sale or disposition or alienation of the property described in the said deed of mortgage referred to in claim (3) defendant on or about 6th March, 1971, is null and void and of no effect.

(5) A declaration that the judgment of the Supreme Court of Nigeria in Appeal No. S.C. 362/66 dated the 19th day of December, 1968, in effect determined the relationship of the customer and Bankers as between the plaintiff and the first defendants respectively, whereby the first defendants are not entitled to charge or claim any further interests on the account of the plaintiff as it stood on the date of the said judgment.”

On the 19th day of June, 1972, the High Court holden at Ijebu-Ode dismissed the above claims; but an appeal from the decision of the High Court to the Western State Court of Appeal (hereafter referred as “the Court of Appeal’) was by a majority judgment of that court allowed. (Court of Appeal judgment of 21st May, 1975, in Suit CAW/50/74 refers). This appeal is from the said judgment of the Court of Appeal. This appeal concerns the first four claims.

The facts which from the background to these proceedings may be summarised thus: Between 1951 and 1959 the plaintiff, then actively engaged in trade obtained overdraft facilities from the defendants/appellants who were his bankers upon deposit of his title deeds for the properties described in claims (1) and (3) above (i.e. the land and buildings at 30 Ishoku Street, at Ijebu-Ode and at 46 Akpata Street, Shomolu (now in Lagos State), with the defendants/appellants, and in respect of this transaction he later signed “Memoranda of Deposit of Title Deeds” of the 22nd day of January, 1957, and 26th January, 1959, in favour of the defendants/appellant. In Suit J/18/63, the defendants/appellants (as plaintiffs) claimed from the plaintiff/respondent (as defendant):-

(a) A declaration that clause 2 of the Memorandum of Deposit of Deeds dated the 22nd January, 1957…………… made between the plaintiff of the one part and the defendant on the other is a binding contract upon the defendant.

(b) An order for specific performance by the defendant of the said contract.

(c) For damage amount to the sum of N3,670.3.9d; and

(d) ………..

The High Court, holden at Ijebu-Ode (Oyemade, J., as he then was) on the 4th day of February, 1965 delivered its judgment in favour of the defendants/appellants; parts of the said judgment read:-