Mrs. Abioia Osibowale (Nee Taiwo) V. Carribean Finance Ltd. & Ors (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

STANLEY- SHENKO ALAGOA J.C.A (Delivering the Leading Judgment)

In the High Court of Justice Ibadan Oyo State of Nigeria, the Appellant as plaintiff claimed against the Respondents as Defendants) as per paragraph 31 of the Further Amended Statement of Claim amended pursuant to an order of Court made on the 4th May 1999 and fired on the 5th May 1999 as follows:-

(i) An order setting aside the purported sale of the Plaintiff’s house situate at SW8/616B NTC Road, Oke Ado Ibadan by the 1st and 2nd Defendants to the 3rd Defendant on the grounds of ,fraud, irregularity and lack of good faith.

(ii) An order setting aside the Deed of Assignment registered as No. 56 at page 56 in volume 3247 of the Lands Registry in the office at Ibadan which was executed by the 1st and 2nd Defendant in favour of the 3rd respect of Plaintiff’s house situate at SW8/616B NTC Road Oke Ado Ibadan.

(iii) Declaration that the plaintiff had liquidated the only loan of N35, 000.00 advanced to him by the 1st Defendant and in respect of which plaintiff mortgaged to the 1st Defendant the Plaintiff’s property covered by deed of conveyance registered as No. 15 at page 15 in volume 208 of the Lands Registry in the office at Ibadan.

(iv) A declaration that the purported sale of the Plaintiff’s house situate at SW8/616B NTC Road Oke Ado Ibadan by the 1st and 2nd Defendants is wrongful, illegal, null and void.

(v) Injunction restraining the Defendants, their agents, privies or persons claiming, through them from interfering with Plaintiffs possession of the said house.

(vi) N10, 000.00, damages against the Defendants for the purported sale of the’ said house by the 1st and 2nd Defendants to the 3rd Defendant.

(vii) Declaration that the title, documents registered as. No. 15 at page 15 in Volume 208 of the Lands Registry in the office of Ibadan in respect of the plaintiff property situates at SW8/616B NTC Road Oke-Ado Ibadan is wrongfully detained by the Defendants and should be returned to the Plaintiff.

(viii) 15, 000.00 being general damages for the said Deed in spite of plaintiffs repeated demands.

What can be gleaned from the further amended statement of claim at pages 5-7, of the Record of Appeal is briefly set out below as follows –

The then Plaintiff (now Appellant) maintained an account No. 0100151 with the 1st Defendant a registered financial institution at its place of business at No. 8 Lagos Bye Pass Oke-Ado Ibadan. Sometime in June 1990, he applied for a loan of N45, 000.00 for which he was paid only N35, 000.00 by cheque on the 21st August 1991. The 1st Defendant went on to prepare a deed of legal mortgage in respect of the sum of N35, 000.00 loan which the Plaintiff collected and signed but the said Deed was not registered and a copy was not given to the Plaintiff despite repeated demands; The plaintiff then gave as security for the said loan on his account No. 0100151 the original title deed of his property situate at SW8/6168 NTC Road Ibadan registered as No. 15 at page 15 in volume 208 at the Lands Registry Ibadan to the 1st Defendant and fully Paid fully all the amount outstanding on his said account No. 0100151 on the 28th September 1992 and did not open any other account.

The position as now stated notwithstanding the 1st Defendant withheld Plaintiff’s original title deeds, refusing to release same despite repeated demands. The 2nd Defendant who was then Executive President to the 1st Defendant informed him to the Plaintiff’s surprise that he had not liquidated his loan and was in the habit of visiting plaintiff in his house to threaten and embarrass him that he would sell Plaintiff’s house. Plaintiff therefore instituted legal action in suit No. I/422/96 through his former counsel Mr. Jide Alao when it became clear the Defendants would not release his original title deeds to him, in which action plaintiff claimed damages for the unlawful detention of his original title documents of his property by the Defendants. The Suit was however struck out for absence of both litigating parties from Court.

From a search conducted at the Lands Registry Ibadan, the Plaintiff discovered that the 1st Defendant registered a deed of legal mortgage dated the 27th July 1992 and registered same as No. 2 at page12.in volume 3074 of the Lands Registry office Ibadan with the Plaintiffs’ signature fraudulently fixed on the said, document either, by the 1st Defendant or her agents or servants. Plaintiff at no time applied for any additional loan from the 1st Defendant neither did he receive any loan beside the, loan obtained on the 21st August 1991 which loan he had since liquidated.