Rasaq Oluwafemi Akano V. First Bank of Nigeria Plc & Anor (2003)

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VICTOR AIMEPOMO OYELEYE OMAGE, J.C.A. 

This is the background facts of this appeal. The predecessor of the appellant in the court below was the defendant at the hearing which held at the High Court Oyo State, it held in Ibadan in 1998. The present named appellant was substituted by the order of court on 5/2/2002. The predecessor of the appellant was the late Nurudeen Akano. Akano entered into a mortgage agreement with the First Bank of Nigeria Plc. By the mortgage deed, he was advanced the sum of N19,560.00 as a loan. The mortgage agreement is registered as No.36, at page 36 in Volume 2775 in the Land Registry, Ibadan, dated 12th October, 1987.

By or around 1995, the appellant as defendant in the court below had not repaid his debt to the bank, whereupon the bank sold the building property at No.E9/2066 Kumapayi Avenue, Ibadan to one Yetunde Olunloyo. The said house was the collateral for the loan granted by the First Bank to Akano. After the purchase of the said house by Olunloyo and after receiving an instrument of transfer from the bank, of the title to the property of the house which is registered as No.16, at page 16 in Volume 3166, at the lands office at Ibadan, the said purchaser did not get possession of the said house.

Incidentally, Akano was living in the said house. As Olunloyo, the purchaser did not get possession of the house she commenced action, whereupon, the said Olunloyo suing by her father as next of kin, issued a writ of summons against Akano in which the First Bank was cited as the first plaintiff and Olunloyo the second plaintiff. In the suit, Olunloyo sought the following declarations;

“(a) A declaration that under and by virtue of a deed of legal mortgage dated 12th October 1987, and registered as number 36/36/2775 of the Land Registry in the office at Ibadan, the 1st plaintiff has the power as mortgagee to sell by public auction or otherwise the property covered by the said legal mortgage.

(b) A declaration that, the 1st plaintiff having validly exercised its statutory powers under the legal mortgage, passed good title to the 2nd plaintiff.

(c) A declaration that by virtue of the deed of transfer dated 26th day of May, 1995 and registered as number 16/16/3166 of the land registry in the office at Ibadan, the 1st plaintiff had validly transferred its interest in the property covered by the deed of legal mortgage registered as Number 36/36/2775 in Ibadan to the 2nd plaintiff.

(d) An order granting possession of the storey building lying, situate and being at E.9/2066 Kumapayi Avenue, Off Iwo Road, Ibadan, covered by a deed of transfer dated 26/5/95 and registered as No.16/16/3166. Ibadan presently being occupied by the defendant to the 2nd plaintiff.

(e) An order that the defendant as a tenant in possession should pay rent to the 2nd defendant from the date of transfer to the date when possession is given.”

Pleadings were exchanged in the court below. In conclusion, the court gave judgment against the defendant when he granted all but one of the declaration sought. The fifth relief sought by the plaintiff was modified and allowed. The defendant was aggrieved and dissatisfied with the decision; he filed twenty three grounds of appeal and formulated five issues. The appellant abandoned grounds 9 and 11 when he did not formulate any issue on them. The five issues are rather lengthy, it will not do to paraphrase them and they need to be stated in full in order to have a comprehension of the issues, and complaints of the appellant. Thus issue one is:

“1 Whether the learned trial Judge was right and properly evaluated the evidence before the court in finding that the plaintiffs actually adequately and properly exercised their alleged power of sale on 7/11/94 by selling the defendants property particularly when there was credible and probable oral and documentary evidence before him, which indicated the contrary position.

2.Whether the learned trial Judge was right and exercised his discretion judiciously and judicially in granting declaratory and other related reliefs sought by the plaintiffs particularly when it was not reasonably and adequately proved before him that the plaintiffs had complied with the relevant and applicable statutes including (the Evidence Act, the land instrument registration law, the auctioneers law, the property and conveyancing law, the natives lands acquisition law and the Land Use Act ,1978) with respect to the transaction/circumstances placed before the court.

3.Whether the learned trial Judge has by his judgment declaring the alleged auction sale of 7/11/94 and the alleged subsequent transfer of property by the deed of transfer (exhibit P.11) valid and sustainable, adequately satisfied, conformed to and upheld the constitutional provision forbidding and leasing against the peremptory and arbitration and forfeiture of a citizens proprietory interest legal and equitable in immovable property.

(4) Whether the learned trial Judge was right in not holding that the plaintiffs were sufficiently estopped/precluded by receipts of payments from the defendant on 11th and 28th November, 1994, and 9th December, 1994 in respect of the loan/mortgage transactions between them from asserting or contending at the trial that the defendants mortgaged property had been sold/auctioned on 7/11/94, pursuant to their power of sale under the alleged mortgage transaction?