Diamond Bank Plc. V. Alhaji Usman Yahaya & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Benue State High Court, Makurdi Division delivered on 12/6/09 granting all the reliefs of the respondents herein who were the plaintiffs and dismissing the appellant’s counter claim. The appellant, being dissatisfied with the decision filed a notice of appeal dated 7/7/09 containing nine grounds of appeal.

The parties duly filed and exchanged briefs of argument, In the appellant’s brief dated 20/07/09 and filed on 22/07/09 settled by Amuwa Olatunde Esq., six issues were distilled from the grounds of appeal as follows:

1. Whether declarative reliefs could be granted by the learned trial Judge without oral evidence or affirmation of depositions on oath by the respondent and without tendering any document?
2. Whether the learned trial Judge was right to hold that pleadings constitute evidence?
3. Whether the learned trial Judge was right when he in error misconstrued all the documents tendered by the appellant to be that of the respondents?
4. Whether the learned trial Judge was right to say in his judgment that the appellant did not tender any document yet used the same documents “Exhibits A – M” to give judgment against the appellant?
5. Whether the learned trial Judge of the lower court was right to have set aside a valid sale covered by deed of legal mortgage when the remedy available to the mortgagors is in damages?
6. Whether the judgment of the lower court is not against the weight of evidence?

The respondents, in their brief settled by R.C. Ndefo Esq., dated 24/8/09 and filed on 25/9/09 distilled three issues from the grounds of appeal thus:

1. Whether the learned trial Judge was right in holding that this case could be determined based on the depositions filed by the parties without oral evidence.
2. Whether the learned trial Judge’s mistake of treating the document tendered in this case as having been tendered by the respondents rather than by the appellant, materially affected the judgment.
3. Whether the learned trial Judge was right in setting aside the sale of the mortgage property carried out without notice to the mortgagor, the 1st respondent.

The issues formulated by the parties are similar. I am of the view that the six issues formulated by the appellant could be condensed into three issues. The appellant’s issue 1 covers both issues 1 and 2. Issue 3 covers issues 3 and 4. Issues 5 and 6 could also be considered under one issue. The issues for determination therefore are:

1. Whether declarative reliefs could be granted by the learned trial Judge without oral evidence or affirmation of depositions on oath by the respondent and without tendering any document?
2. Whether the error of the learned trial Judge in treating Exhibits A – M tendered by the appellant as having been tendered by the respondents occasioned a miscarriage of justice?
3. Whether the learned trial Judge was right in setting aside the sale of the mortgaged property in the circumstances of this case.

The facts that gave rise to this appeal are as follows:

Sometime in 2003 the 2nd respondent, who is the son of the 1st respondent obtained a loan from the appellant. The 1st respondent gave his Certificate of Occupancy No. BN 1106 in respect of his petrol station to the 2nd respondent to use as collateral for the loan. Pursuant thereto a Deed of Legal Mortgage (Exhibit A) was executed by the parties. The 2nd respondent defaulted in repaying the loan. Several letters of demand were written to him to no avail. Purportedly exercising its powers under Exhibit A the appellant sold the mortgaged property by private treaty. Aggrieved by the sale of his property without notice to him the 1st respondent instituted an action

against the appellant before the Benue State High Court, Makurdi Division on 10/3/08. He subsequently amended the statement of claim by joining the 2nd respondent as co-plaintiff. By paragraph 11 of their amended statement of claim dated 28/7/08 they sought the following reliefs:

a. A declaration that the sale of the plaintiffs property covered by Certificate of Occupancy No. BN 1106 is null, void and of no effect whatsoever.

b. An order that the parties return to their status quo ante before the purported sale of the property and proper notice of sale or auction served on the plaintiffs.

c. An order that the defendants can only sell the property if after adequate notice of sale has been given to the plaintiffs and they fail to liquidate the balance.

The appellant filed an amended statement of defence and counter claim dated 23/9/08. In its counter claim it sought the following declaration:

“A declaration that the auction sale of Plot No. BN 1106 built as petrol station by the plaintiff is valid and legal.”

The respondents filed a reply and defence to the counter-claim dated 2/10/08.