Nigerian Agricultural Co-operative Bank Limited Vs Mr. Lewechi Ozoemelam (2016)

LAWGLOBAL HUB Lead Judgment Report

NWALI SVLVESTER NGWUTA, J.S.C.

By way of Originating Summons issued on 14/12/1998 in the Registry of the High Court of Justice of Kaduna State, Kaduna Judicial Division, the Respondent (then Plaintiff) raised the following questions:

1. Whether the refusal of the defendant in this suit to release the title documents in respect of Plot No. Katuru Road, Sabon Tasha, Kaduna does not amount to a breach of the agreement entered into between the plaintiff and the defendant.
2. Whether the plaintiff is entitled to a refund of the money he paid to the defendant if the defendant is no longer interested in giving effect to the agreement entered into by both parties.”

Upon the anticipated favourable answers to the two questions posed, the plaintiff prayed the Court for:

“An order of Court compelling the defendant to release forthwith to the plaintiff all the title deeds in its possession in respect of plot No. 2, Katuru Road, Sabon Tasha, Kaduna.

ALTERNATIVELY:

An order of Court compelling the defendant to refund to the plaintiff all the monies paid to the defendant Bank by the plaintiff as reflected in

1

annexure 6 and 7 attached to the supporting affidavit together with general damages for breach of the agreement between the plaintiff and the Bank.”

Below is a brief summary of the facts leading to the suit in the trial Court. The Respondent (then plaintiff) bought a piece of property from a third party, one Apolus Chikezie, his predecessor-in-title. After the Respondent had taken possession of the property, he became aware of the fact that his predecessor-in-title had mortgaged the property to the appellant, then defendant. The Respondent paid off the outstanding debt and the accrued interest and thereafter demanded the release of the title deeds to him.

Rather than release the title deeds to the Respondent, the defendant (now appellant) demanded some form of authorisation from his predecessor-in-title before the documents could be released to him.

Aggrieved, the Respondent, as plaintiff, took out the Originating Summons reproduced above.

The appellant (as defendant) was duly served and the matter was fixed for hearing on 1/2/1999. The appellant did not respond to the processes served on it and was neither present in Court nor represented

2 by Counsel on the date fixed for hearing, 1/2/1999. There was no excuse for the absence of the appellant/Counsel in Court on 1/2/1999. The trial Court on oral application of Counsel for the respondent (then plaintiff) heard the matter on the day it was fixed for hearing ,1/2/1999 in absence of the appellant (as defendant) and reserved its ruling to 19/2/1999. The ruling was not delivered as scheduled but was eventually delivered on 28/5/1999.

On 21/12/2000, the Respondent attached the property of the appellant in execution of the judgment in his favour. On 28/12/2000, the appellant filed a motion on notice praying the trial Court for enlargement of time within which to apply to set aside the judgment of 28/5/1999, an order to set aside the judgment or order staying execution of the judgment, particularly sale of appellant’s vehicle and or order to release the said vehicle to the appellant before or at the hearing of the application.