Owoniboys Tech. Services Ltd. V. Union Bank Of Nig. Ltd (2003)

LAWGLOBAL HUB Lead Judgment Report

O. EJIWUNMI, J.S.C.

The thrust of this appeal filed against the judgment of the Court of Appeal (Kaduna Division Coram, Ogebe, M. Mohammed and Muhammad, JJCA) was for the purpose of overturning the judgment of that court which had reversed the judgment of the trial court. In that court, the appellant had commenced this action against the respondent for the following claims as per par. 32 of its further amended statement of claim:

“(i) Declaration that the mortgages between the plaintiff and the defendant covering the plaintiff’s property situate, lying and being at Taiwo Road, Ilorin are illegal, unlawful, unenforceable and irregular.

(ii) An order setting aside the mortgages.

(iii) Alternatively, declaration that the defendant is not entitled to sell any property of the plaintiff without complying with the Land Use Act and Auctioneers Law applicable to Kwara State.

(iv) Declaration that the defendant is only entitled to charge on the plaintiff’s account interest at the rate prevailing when facility was granted to the plaintiff.

(v) Declaration that the debit balance in the account of the plaintiff is not a true and accurate reflection of the indebtedness of the plaintiff if any, to the defendant.

(vi) Injunction restraining the defendant by themselves their agents, servants and or privies or otherwise howsoever from selling the plaintiff’s property pursuant to the said mortgages.

(vii) Declaration that the deeds of mortgage registered as No. 122/122/1 and 45/45/6 respectively have been discharged by their incorporation in the deed registered as No. 94/94/8.

(viii) An order directing the defendant to pay to the plaintiff the sum of N500,000.00 or any amount the court may find the plaintiff entitled to recover from the defendant.”

Following further amended statement of claim filed by the appellant, the respondent also sought the leave of the court to file a further amended statement of defence, but that application was refused by the learned trial Judge. That refusal by the learned trial Judge to grant the prayer of the respondent became one of the grounds of appeal in the appeal filed against the judgment of the trial court. The decision of the court below in that regard has also been the question in this appeal. It will be considered later in this judgment under the appropriate issue raised thereon.

I will now refer briefly to what transpired during the trial of this matter in the High Court. The appellant called two witnesses namely, Isaiah Adeoti Adeniran a chartered accountant who gave evidence as PW1 and the PW2 was Alhaji (Dr) Aminu Ishola who described himself as the managing director of the appellant company. The respondent as defendant, called one witness in the person of Mr. Remi Okulaja, a staff of the respondent company. During the course of the evidence of these witnesses, a number of documents were admitted as exhibits. The evidence given by these witnesses disclosed that the appellant has been the customer of the respondent for some time. In 1973, the respondent granted through the appellant an overdraft facility in the sum of N50,000.00.The facility was increased in 1976 to N100,000.00 and subsequently to N200,000.00. As collateral to the loan facility, the appellant mortgaged its property situate at Oja-Iya, Taiwo Road, Ilorin. Before then when the first loan facility was made available to the appellant, it duly obtained the consent of the Kwara State Governor to mortgage the property to the respondent. There was however a failure of repayment by the appellant of the facility granted. The respondent, sometime in 1988 made a demand for the repayment. As the appellant did not comply, the respondent then advertised for the sale of the mortgaged property. As a result of that action taken by the respondent, the appellant sought to restrain the respondent from selling the said property through a motion ex-parte. This was granted by the learned trial Judge on the 22nd of April, 1992. This was followed by the present action, which is now the subject of this appeal. Upon those facts, the learned trial Judge after hearing addresses of counsel appearing for the parties delivered a considered judgment by which he granted all the claims of the appellant. As the respondent was dissatisfied with the judgment of the trial court, it appealed to the court below. Pursuant thereto, several grounds of appeal were filed. Following the hearing of the appeal, the court below allowed the appeal and the judgment of the trial court was set aside. This appeal is from that judgment of the court below. Briefs of argument were thereafter filed and exchanged. In the brief filed on behalf of the appellant, the following seven issues were identified for the determination of the appeal. The respondent did not set down issues on its own, but adopted the issues set down in the appellant’s brief. These are:

“1. Whether the court below was right to hold that additional grounds of appeal Nos. 10, 11, 12, 13 & 14 filed before it were competent and arguable when the grounds were filed in contravention of the rules of the court below.

2. Whether the court below was right to have held that additional ground No.13 filed before it was competent when the ground concerned an interlocutory ruling delivered more than 2 years before the ground was filed and no leave was sought nor obtained to argue same.
3. Whether the court below was right to have held that the principles of merger, of mortgages was inapplicable to exhibits 4, 5 and D1 and whether the further holding that the said exhibits were validly upstamped was not perverse.
4. Whether the court below was right to have held that the respondent could exercise the right of an unpaid mortgage when it did not file a counterclaim nor made out a case on the point.
5. Whether the court below was right to have held that the respondent was entitled to vary the rate of interest chargeably and whether without evidence the court could take judicial notice of the Central Bank monetary policy on which the parties did not join issue.
6. Whether the court below was right to have found that the appellant was indebted to the respondent when there was no counter-claim by the respondent and when the amount awarded to the respondent was never part of its claim at the trial.
7. Whether the court below was right to have set aside the well considered judgment of the trial court on all the issues agitated and in particular the issue of multiple entries in the appellant’s account when there was no credible evidence from the respondent on the point and whether the cost awarded was not excessive.”

Issue 1