Union Bank Of Nigeria Plc & Ors. V. Alhaji Ganiu Ajibola Ogunsiji (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Lagos State, presided by Hon. Justice Y.A. Adesanya, delivered on the 22nd of April, 2004. The Appellants were the Defendants at the lower court, while the Respondent was the plaintiff.

The Plaintiff/Respondents claim against the Defendants/Appellants jointly and severally as per his writ of summons and statement of claim both dated 01/03/96, are for:

(1) The sum of N1,500,000 (One Million, Five Hundred Thousand Naira) being money paid to the Defendants (all and singular) by the Plaintiff upon a consideration that has wholly failed and the said sum is repayable to the Plaintiff.

(2) Interest on the said sum of N1,500,000 (One Million, Five Hundred Thousand Naira) at the rate of 60% per annum from 19th day of March, 1993 until judgment is given in the matter and thereafter at the rate of 6% per annum until the whole amount/debt is finally liquidated.

(3) N1,000,000 (One Million Naira) damages for breach of contract made between the Plaintiff and the Defendants (all and singular) on 19th March, 1993 and 11th May, 1993 respectively.

The background facts are that, the 1st Appellant is a Bank registered under the laws of the Federal Republic of Nigeria, carrying out all banking activities. One Alhaji Ajibade Babatola (Mortgagor) mortgaged some of his property with the 1st Appellant (Mortgagee) by depositing the Title Deeds of his property and he defaulted. By consent judgment and/or settlement between the Mortgagor and Mortgagee in an unknown suit to the Respondent (Suit No. ID/620/88), the Mortgagor empowered the 1st Appellant to sell all the property deposited on the Mortgage and use the proceeds of the sale to offset the loan taken by the Mortgagor.

The 1st Appellant as Mortgagee with the assistance of 2nd Appellant as Auctioneer issued Auction Notice for the sale of the property of the defaulting Mortgagor. The Auction was successfully carried out and the Respondent herein was the successful purchaser. A Purchase Agreement (Exhibits D1 and D2) was duly executed between the 1st and 2nd Appellants as Sellers of the one part, and the Respondent as purchaser of the other part.

The Respondent was referred to Chief T.A. Ezeobi S.A.N, solicitors to the Appellants (Mortgagee) in order to collect prepared Deed of Assignment and the Original Title Deed of the property. The Respondent exchanged several correspondences with the 1st Appellant through Chief T.A. Ezeobi S.A.N, their solicitor. When Chief T.A. Ezeobi finally delivered what was to be the Original Title Deed of the property purchased’ it was found to be a wrong Title Deed rerating to another property other than the one purchased by the Respondent. The error in the Title Deed delivered to the Respondent was confirmed by the 1st Appellant and the Defendant’s witness during the trial. When it was clear that the 1st Appellant was not in possession of the original Title Deed of the property they sold to the Respondent, the Respondent as Plaintiff instituted this action to recover money paid to the 1st Appellant for a consideration, which had totally failed. Judgment was entered in favour of the Respondent. Dissatisfied with the decision of the court, the Appellants filed this appeal.

By their Notice of Appeal dated 28th April, 2004 filed on the same date, and containing six grounds of appeal, from which the Appellant distilled three issues for determination of this court.

The issues are:-

(1) Whether the learned trial Judge was right in holding that the 1st Defendant, Union Bank of Nigeria Plc. sold the subject property to the Plaintiff as the owner thereof through the 2nd Defendant as its agent and that the contract of sale pursuance to which the plaintiff sued was made between the 1st Defendant and the Plaintiff (Grounds 1, 2, 3 and 4 of the Notice of Appeal).

(2) Whether the trial court correctly assessed and evaluated the evidence before the court (Ground 6 of the Notice of Appeal).

(3) Whether the learned trial Judge was right in failing to consider and follow binding precedents cited to the court on the issue of privity of contract which was the very foundation of the defence case (Ground 5 of the Notice of Appeal).