Nigerian Advertising Services Limited & Anor V. United Bank for Africa Plc & Anor (1999)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A

In the court below the plaintiffs, (hereinafter referred to as the Appellants) took out a writ of summons against the first defendant (hereinafter called the 1st Respondent) and claimed against it the following reliefs:

1. a declaration that the purported sale of the plaintiffs’ property known and described as 52, Norman William Street, S. W. Ikoyi, Lagos is null and void and of no effect whatsoever.
2. a declaration that the purported sale of the plaintiffs’ said property by the defendant is not in accordance with the provisions of the law.
3. an order setting aside the purported sale of the said property by the defendant on the ground that the sale was fraudulent and/or made in bad faith.
4. a declaration that an offer of N1.3 Million had been made to the plaintiffs for their property by another person and this was communicated to the defendant and its solicitor Mr. Obembe before their purported sale of the same property for a lesser amount of N1.2 Million.
5. a declaration that the purported sale is also null and void because it was contrary to the terms of the Mortgage Agreement between the plaintiffs and the defendant.
6. a declaration that the defendants’ action of selling the plaintiffs’ property to unknown person in public, the plaintiffs who are very well known have thereby been subjected to embarrassment, ridicule and contempt and the plaintiffs claim N5 Million damages for libel/slander published to the buyer of the property and others and the purported sale be set aside.
7. an injunction restraining the defendant, its servants or agents from interfering with the said property until the determination of this suit.

Pleading were ordered, filed and exchanged between the parties. Suffice it to say that the 1st Respondent had counter-claimed for possession and mesne profits.

Briefly, the facts of this case as could be gleaned from the pleadings are that on or about 28/8/72 the property styled as No.52, Norman Williams Street, S.W. Ikoyi was employed by its owner Chief Anyibuofu Megafu, the 2nd plaintiff/appellant, to secure facility granted by the 1st defendant/respondent (United Bank for Africa PLC) to the 1st appellant (Nigerian Advertising Services Limited). When the 1st appellant failed to repay the loan despite repeated demands, the first defendant/respondent sold the mortgaged property in what it termed, the exercise of its power as a mortgagee. Aggrieved by the sale, the plaintiffs/appellants took out a writ of summons claiming the reliefs set out supra. As I have said above, the 1st defendant/respondent also counter-claimed seeking reliefs stated above. Both sides led evidence in proof of the averments in their respective pleadings. After taking the addresses of counsel on both sides, the lower court, in a reserved judgment, on 16th December, 1992, dismissed the appellants’ claims in their entirety and granted the 1st Respondent’s counter-claim for possession but refused that for mesne profit. In concluding its judgment, the lower court said and I quote:

“The plaintiff’s claims failed in their entirety and are hereby dismissed. Judgment is hereby entered for the defendant against the 2nd plaintiff as follows:

The 2nd plaintiff Chief Anyibuofu Megafu shall give up possession of the property situate at No.52, Norman Williams Street, S/W Ikoyi, Lagos on or before the 31st day of December, 1992.”

Dissatisfied with the said judgment the appellants filed a notice of appeal which contains three original grounds of appeal. Distilled from the said grounds of appeal and set out in their brief of argument are three issues for determination and they are in the following terms:

1. whether the learned trial judge was right in holding that upon the preponderance of evidence, the mortgaged property was sold on 28th April, 1989.
2. whether any purported sale of the mortgaged property after the presentation by the mortgagor of a bank draft for the full redemption of the mortgage was not malafide, fraudulent and invalid and
3. whether the learned trial judge was right in holding that the respondent had no duty to extend the time within which the appellants could re-deem the mortgage.

It is necessary to say that while this appeal was still pending before this court, Mrs. Bridget Okwesa who held herself out as the party Interested sought and obtained the order of this court on 18th October, 1993 to be joined as the 2nd Respondent. Her interest lies in the fact that she claimed to have bought the mortgaged property.

The appellants filed a joint brief of argument while each of the 1st and 2nd respondents filed separate reply brief. Discerned from the 1st respondent’s briefs are 6 issues which are set out hereunder:

1. whether on the plaintiffs/appellants writ of summons, pleadings and evidence it is open to them to dispute or deny the fact of the sale of the mortgaged property having taken place on 28th April, 1989 or at all events, before 11th May, 1989 (the date the bank draft for N1.3 Million was presented to the defendant/respondent).
2. whether the holding by the learned trial judge that the sale took place on 28th April, 1989 is at variance with defendant/respondent’s pleading and evidence.
3. whether in all the circumstances, taken into account particularly the combined import of the writ of summons, the pleadings and evidence, the learned trial judge erred in holding that, on the balance of probability, the sale of the mortgaged property took place on 28th April, 1989.
4. whether the Bank draft for N1.3 Million was not the proceed of the sale of the mortgaged property by the 2nd plaintiff/appellant to a person whose offer to buy the said property the 2nd plaintiff/appellant communicated to the defendant/respondent on 21st April, 1989.
5. whether it is open to the plaintiffs/appellants to raise on appeal the question of a sale of the mortgaged property having taken place after 11th April, 1989 and the validity of such sale when the issue was not raised, at all in the plaintiffs/appellants’ pleadings and evidence given at the trial and when the question was not addressed by counsel on both side nor a determination made on it by the learned trial judge. (The question of fraud raised in the Appellants’ brief being dependent on issue 5 stands or falls with it).
6. whether the defendant/respondent is under a legal duty to accede to the plaintiffs/appellants’ request for further four weeks extension of time to repay the debt after the “final” notice by the defendant/respondent dated 3rd April, 1989.

The 2nd Respondent the party interested also raised three issues for determination in her brief and they are as follows:

1. whether the learned trial judge was not correct in inferring the existence of a lawful sale to the 2nd Respondent of the mortgaged property on 28th April, 1989 or in any event before 11th May, 1989.
2. whether the assignment by the 1st Respondent to the 2nd Respondent of the mortgaged property pursuant to the exercise of its power of sale under the mortgage is vitiated or otherwise affected by the alleged or any default on the part of the 1st Respondent in the exercise of its said power of sale.
3. whether the learned trial judge was not correct in inferring the existence of a lawful sale to the 2nd respondent of the mortgaged property on 28th April, 1989 or in any event before 11th May, 1989.

All the issues formulated in the different briefs are interwoven. They point to a common goal. They pose the fundamental question; whether the mortgagee’s power of sale ever arose and if it arose, whether it was exercised bona fide for the purpose of realizing the debt owned it by the mortgagor without it being in collusion with purchaser. The answers to the afore-mentioned questions constitute the bottom line of the resolution of this appeal.

When the appeal came before us on 14/4/99 Mr. Uwechia learned counsel for the appellants referred to and adopted the brief of argument of the appellants. By way of emphasis, he submitted that from the entire evidence adduced before the lower court there was no justification for the finding that the sale of the mortgaged property took place and while placing reliance on the decision in A.C.B. v. Nbisike (1995) 8 NWLR (Pt.416) 725, he urged that the appeal be allowed, the judgment of court below be set aside and judgment entered in favour of the plaintiffs per their writ of summons. Mrs. Chukura learned counsel for the 1st Respondent referred to and adopted the brief of her client and urged that the appeal be dismissed.

Mr. Ajumogobia, of counsel for the 2nd Respondent referred to and adopted the brief of his client urging that the appeal be dismissed. Although there is a Respondent’s Notice of Intention to contend that the decision of the court below be affirmed on grounds other than those relied upon by the court below. Mr. Ajumogobia did not allude to it. He would seem to have abandoned it.

As I have observed earlier all the issues raised for determination are interwoven. Issue 1, 2, and 3 raised by the 1st Respondent are saying the same thing in so many words: indeed they are similar to issue 1 set up by the appellants and issues 1 and 3 put forward in the 2nd Respondent’s briefs.