Mrs. Oluwaseun Agboola V. United Bank For Africa Plc & 2 Ors (2011)

LAWGLOBAL HUB Lead Judgment Report

ALOMA MARIAM MUKHTAR, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ilorin, Division which allowed the appeal of the defendants from the court of first instance. The plaintiff’s case in the High Court of Kwara State is in respect of a two storey building known as WO15 Sadiku Road, Kulende, Ilorin, which the 1st defendant/respondent sold by auction. The plaintiff bought the land upon which she built 30 rooms, from one Alhaji Sule Tahiru. The sale agreement was in the name of the appellant and was witnessed by her brother, the 3rd defendant who mortgaged the property to the 1st defendant, without her knowledge and consent since the documents were in his possession. She claimed the following reliefs against the defendants:-

(i) A declaration that the purported sale of the plaintiffs house lying and situate at Kulende, behind Goodwill Hotel on 28/11/94 by the 2nd Defendant acting on behalf of the 1st Defendant is illegal unconstitutional, null and void.

(ii) An order setting aside the sale of the said house.

(iii) A declaration that the purported mortgage of the plaintiff’s house by the 3rd Defendant to the 1st Defendant without her knowledge or consent is illegal unconstitutional null and void.

(iv) A perpetual injunction restraining the Defendants by themselves their agent or any other person howsoever in respect of the said building.

(v) Damages of Fifty Thousand Naira (N50,000.00) for the unlawful act and embarrassment caused to the plaintiff’s person.”

The 1st and 2nd defendants denied the case of the plaintiff. At the close of pleadings, the parties adduced evidence which were evaluated by the learned trial judge, who at the end of the day gave judgment in favour of the plaintiff, and granted the reliefs sought.

The defendants appealed to the Court of Appeal, Ilorin Division, which allowed the appeal thus:-

“On the whole it is my considered view that this appeal succeeds and is hereby allowed. The judgment of the Kwara State High Court of Justice in suit No. KWS/299/94 delivered on 17th February, 1998 by Hon. justice J.A. Ibiwoye is hereby set aside. In its place there shall be substituted the order dismissing suit No. KWS/299/94.”

The plaintiff is dissatisfied with the decision, and she has appealed to this court, originally on three grounds of appeal in the notice of appeal, which was amended twice with the leave of court. Along the line the original appellant /plaintiff who became deceased was substituted with one Mrs. Oluwaseun Agboola, who is now the appellant, with the leave of court. In compliance with the rules of this court the learned counsel for both parties exchanged briefs of argument, which were adopted at the hearing of the appeal, after they had been amended. The appellant also adopted her reply to the amended respondent’s brief of argument. In the 1st amended brief of the appellants which learned counsel adopted at the hearing of the appeal was raised the following issues for determination:-

“(i) whether the Appellant’s exhibit is inadmissible……

(ii) whether the learned court of Appeal Justices were right, in reversing the judgment of the learned trial judge on the ground that the appellant failed to prove her title to the property in dispute…….

(iii) Whether exhibit D2 (the Respondents deed of conveyance) is admissible in proof of payment of money in the absence of any averment in the statement of defence that money was paid or acknowledged. ………