Chief (Mrs) Eunice Akinyele V. Afribank Plc & Anor (2005)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABDULLAHI, J.C.A.

This is an appeal against the decision of the High Court of Justice, Kwara State, Coram Elela Habeeb J. delivered on the 4/12/2003, in which His Lordship refused to make the declarations that were sought and dismissed the Appellant’s case as lacking in merit. The Plaintiff now Appellant, was dissatisfied with the Judgment of the trial Court and on 11th day of December, 2003, lodged a Notice of Appeal containing 5 grounds of appeal against the said Judgment.

The facts of the case as can be gleaned from Record of Proceedings are as follows:- The appellant is a customer of the 1st Respondent at her Ilorin main branch, where she operates an account. Sometime in July, 1996, the Appellant applied for and was granted an overdraft of N1 million. In return, she mortgaged her property situate at Fogo Olorunhan Street, Ilorin, covered by a Customary Right of Occupancy to the 1st Respondent. The facility was later increased to N2 million.

Sometime as at the middle of 1998, the outstanding debit balance on the Appellant’s account was such that the 1st Respondent could no longer tolerate, whereupon it informed the Appellant of its intention to foreclose the mortgage. The Appellant however pleaded with the 1st Respondent for more time to pay the debt which request was granted. Another promise by the Appellant for the 2nd time to pay the debt did not materialize. The 1st Respondent then instructed the 2nd Respondent to carry out a public auction of the property. The 2nd Respondent, a licensed auctioneer made auction posters advertising the property for sale and pasted same in several places in Ilorin.

The Appellant filed an action at the High Court, Ilorin, alleging that the Respondent without any warning put an auction notice at the mortgaged properly while the 2nd Respondent asserted that he complied with all the requirement of the law relating to auction notice by pasting notice at the property in question and Afribank hall and Stadium Complex on 31st August, 1999.

The Plaintiff at the Court below now the Appellant in this Court filed an action, claiming the following reliefs:-

“Whereof the Plaintiff urges the Court to declare:-

(1) As illegal, null and void the purported notice of auction pasted by the 2nd Defendant or his agent at the house of the Plaintiff at No.5 Fogo Oluwahan Street off Stadium Road, Ilorin.

(2) As null and void any purported sale of the Plaintiff’s at No.5 Fogo Oluwahan Street Off Stadium road, Ilorin and to award (sic).

(3) General damages to the Plaintiff against the Defendant jointly and severally (or embarrassing the Plaintiff.”

The Defendants at the lower Court filed a joint statement of defence denying the claim of the Appellant and urged the lower court to dismiss the Plaintiffs claim in its entirety for lacking in merit. The lower court was not persuaded by the case advanced by the Appellant whereupon her case was dismissed in its entirety.

Dissatisfied with the Judgment of the lower court, the Appellant filed Notice of Appeal consisting of five Grounds of Appeal and sought from this court the following reliefs:-

(i) To allow the Appeal

(ii) To hold that the purported auction Notice Law has not been complied with the Auctioneers Law, Cap 14 Laws of Kwara State.