MR. Tolulope Odebiyi V. Wema Bank PLC & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Lagos State delivered on the 26th day of May 1998 by Adeniyi J. wherein the Plaintiff’s claim was dismissed.

The Appellant herein had as Plaintiff filed a writ of Summons dated 24-3-1992 at the trial court against the Defendants (now Respondents) and as per the amended statement of claim filed on 8-12-1992 sought the following reliefs in paragraph 28 therein:

(i) Declaration that the purported “Sale” by “Auction” of the property known as Plot 21, Block X Dideolu Estate, Victoria Island, Lagos by the 2nd defendant on 11th November, 1991 in the purported execution of the judgment Debt and Costs awarded in Suit LD/1248/84 is ultra vires, invalid, null and void and of no effect.

(ii) Alternatively, an order setting aside the aforesaid purported sale of the Plaintiffs land in issue.

(iii) An order of perpetual injunction to restrain the Defendants from acting as if there had been a due sale of the Plaintiffs interest in the property covered by Certificate of Occupancy No. 8/8/1982G in due execution of the judgment debt and costs in Suit LD/1248/84.

(iv) An order of mandatory injunction compelling the Defendants jointly or severally to release to the Plaintiff the title deed of his property.

(v) Judgment for the amount of N336,961.33K (being the difference between N820,326.39 paid by the Plaintiff to the 1st Defendant and N483,365.06 being the actual judgment debt) or being the overpayment on the sum of N820,326.39K with 25% interest per annum from 5th March 1992 till judgment and thereafter till the sum is liquidated.”

The salient facts of this case as gleaned from the record is that on 7-3-1986, the first Respondent obtained judgment against the Appellant in the High Court of Lagos State in suit NO LD/1248/84. Wherein the Appellant is to pay the sum of N300,000 with interest at the rate of 10.5% per annum from February 1982 till 7th March 1986 and thereafter at the rate of 4% per annum until final payment.

The said judgment sum was however not paid by the Appellant and on the 15-12-89, the 1st Respondent applied for and obtained an order for issuance of writ of attachment and sale of the Appellant’s property at Plot 21, Block 10 situate at Maroko, Victoria Island, Lagos. The said property was eventually sold by public auction conducted by the 2nd Respondent on 11-11-1991 and Certificate of Sale was issued on 30-12-1991.

However in March 1992, the Appellant approached the 1st Respondent with a proposal for him to sell the same property himself to enable him pay the longstanding judgment debt awarded in favour of the 1st Respondent in March 1986. He was in the process of doing so, having contacted some potential buyers when he was told by an officer of the 1st Respondent that the property has already been sold and the title document released to the buyer.

Incensed with the new development, he then filed this action in the trial court claiming the reliefs as earlier reproduced in this judgment. The Respondents variously filed their statement of defence. At the hearing of the suit, the Appellant testified personally and called one other witness. The 1st Respondent called two witnesses in defence.

The 2nd Respondent gave evidence for himself and for the 1st Respondent. The 3rd Respondent testified personally and also called one other witness, while the 4th Respondent also gave evidence personally. In a judgment delivered by the trial court on 26-5-1998, the Appellant’s claim was dismissed. His discontentment with the said judgment led to his filing a Notice of appeal containing five grounds of appeal. It is dated the 27th day of May 1998.

The five grounds of appeal are set out below: