Union Bank Of Nigeria Plc V. Awmar Properties Limited (2018)
LAWGLOBAL HUB Lead Judgment Report
OLABODE RHODES-VIVOUR, J.S.C.
The respondent as plaintiff filed a suit under the undefended list at a High Court of the Federal Capital Territory, Holden at Abuja, claiming the following reliefs:
- An Order of Court directing the defendant to pay to the plaintiff the sum of N300,000,000 (Three hundred Million Naira) only being the amount paid by the plaintiff, to the defendant, as consideration for the auction sale of Yaman Fuel Filling Station and which sale is voided for want of title cum physical possession to the plaintiff.
- 20% as interest thereon per annum from the date of judgment until final liquidation.
The Writ of Summons under the undefended list was supported by a 24 paragraph affidavit deposed to by Alhaji Abdulazeez Yakubo Sambo, a Director in the plaintiffs company. Annexed to the affidavit are seven exhibits.
On 28th January, 2016, the High Court granted the plaintiff leave to issue and serve the Writ of Summons and other processes on the appellant/defendant, outside the jurisdiction of the trial High Court.
On receipt of the Writ of Summons, the appellant/defendant entered conditional appearance on 3 March, 2016 and filed a Notice of Intention to defend the suit with a 31 paragraph affidavit showing cause deposed to by Adepoju Oginni, an employee in the commercial Department of the defendant bank. A further affidavit showing cause for leave to defend was filed on 14th March, 2016.
The Notice of intention to defend the action was brought under Order 22 Rule 3(1) of the Federal Capital Territory Abuja High Court Civil Procedure Rules, 2004 and it reads:
“Take Notice that the defendant intends to defend the action filed by the plaintiff under the undefended list Procedure and that the defendant has a good and reasonable defence to the suit.”
The above shows that the entry of conditional appearance was moonshine.
The defendant entered conditional appearance.
This is an appearance under protest and usually means an appearance to object to the Court’s jurisdiction to hear the case.
After the entry of conditional appearance, learned counsel for the defendant at no time objected to the Court’s jurisdiction. Proceedings proceeded.
The appearance of the defendant to the proceeding in the High Court was thus unconditional. The above explains why the entry of conditional appearances was worthless.
The learned trial judge considered the affidavit before him and in a well-considered judgment delivered on 12th May, 2010 entered judgment for the plaintiff/respondent. This is what the learned trial judge had to say:
“Cases heard on the undefended list are for the plain and straightforward and not for the devious and crafty who engage in the unhelpful game of baseless and worthless denials fishing and browsing all over the place for a defence that does not exist. This Court will not lend its effort in aid of such reprehensible and ignoble conduct. Banks should be instruments of growth and progression and not machinery of oppression and exploitation. I find the depositions in the affidavit of defence to be absurd, puzzling and totally empty of merit. For all the foregoing reasons this action succeeds.
Leave to defend is refused. Final Judgment is hereby entered for the Plaintiff on the following terms;
(i) The defendant Bank, Union Bank PLC, is hereby ordered to pay to the plaintiff the sum ofN300,000,000 (Three hundred Million Naira only) being refund of money had and received from the plaintiff under a contract of sale of landed property to the plaintiff by the defendant, to wit, Yaman Fuel Filing Station, located at Plot 499, Tafawa Balewa Way Area 5 Garki, Abuja, the consideration for which has totally failed.
(ii) The defendant shall pay post judgment interest on the above judgment debt at the rate of 10% per annum from the date of judgment until final liquidation.
(iii) Plaintiff shall, upon payment of the judgment debt, release to the defendant all the title documents received from it in regard to the subject matter of action.”
Dissatisfied with the judgment. The appellant filed an appeal. It was heard by the Court of Appeal, Abuja Division. That Court affirmed the decision of the trial High Court when it said in the concluding paragraph of the judgment:
“In the result, I hold that this appeal is devoid of any merit and was only brought to delay and to continue to keep and trade with the N300 Million purchase price paid by the respondent, whilst the appellant suffers no less in that regard.
There is no fairness in this. I dismiss the appeal and affirm the judgment of the trial Court delivered on 12th May, 2016. N75,000 costs to the respondent.”
The appeal is against that judgment. Briefs of argument were filed and exchanged by counsel. Learned counsel for the appellant, Professor T. Osipitan, SAN filed the appellant’s brief on 11 August 2011, while learned counsel for the respondent, S. O. Zibiri SAN filed the respondent’s brief on 28th August, 2017.
A Reply brief was filed on 28th November, 2017 but deemed properly filed and served on 7th February, 2018.
Learned counsel for the appellant formulated three issues for determination from his second Notice and grounds of appeal filed on 7th June, 2017. They are:
- Was the Court of Appeal right when it held that the trial High Court did not violate appellant’s right to fair hearing when the trial High Court Suo Motu raised issue of forfeiture of purchase price paid by the respondent and resolved same against the appellant, without affording the appellant any hearing on the issue
- Was the Court of Appeal right given the circumstances of the case, when it decided that
transfer of the property coupled with physical possession are crucial ingredients of the purchase or sale agreement, between appellant and the respondent
- Was the Court of Appeal right when it held that the conflicts in affidavit evidence of the appellant and respondent can be resolved with the aid of documentary evidence without calling oral evidence to resolve the conflict in an undefended list application
Learned counsel for the respondent also formulated three issues for determination:
- Was the appellants right to fair hearing breached in this case
- Did the appellant put the respondent in physical possession of the property and whether physical possession of the property was not crucial to the sale
- Was the Court of Appeal not right in holding that there was no conflict in the affidavit of the parties as to the issue of physical possession of the property and even if there were, were there no sufficient materials before the trial Court to resolve such conflict
After examining the issues formulated by counsel, I am satisfied that they ask the same questions.
I shall in the circumstances consider the issues formulated by learned counsel for the appellant in resolving this appeal.
At the hearing of this appeal on 7th February, 2018, learned counsel for the appellant Professor T. Osipitan, SAN adopted the appellants brief filed on 11th August 2017 and the Reply brief filed on 28th November, 2017 but deemed properly filed and served on 7th February, 2018 and urged this Court to allow the appeal. Mr. S. O. Zibiri SAN learned counsel for the respondent adopted the respondent’s brief filed on 28th August, 2017 and urged this Court to dismiss the appeal.
THE FACTS ARE THESE
Yaman Fuel Filling Station was legally mortgaged to the appellant as security for various loans obtained by Yaman Nigeria Limited from the appellant. In a bid to recover Yaman Nigeria Limited’s indebtedness, the appellant exercised its right of sale. The respondent magnified its interest, and liaised with M. S. Shehu & Brothers Ltd., a Government Licensed Auctioneer. Negotiations got underway culminating in an agreed sum of N300 Million for the Yaman Filling Station. The respondent accepted the offer and paid the sum of N300 Million in four installments as follows: 150 Million on
23 November, 2015, N60 Million on 26 November, 2015, N10 Million 27 November, 2015 and N80 Million on 27 November, 2015 into account No. 0034137201 furnished to it (the respondent) by the appellant. Relevant title documents were given to the respondent. The respondent requested for physical handover of the property. The appellant was unable to deliver physical possession of the Filling Station to the respondent. This was due to the fact that Yaman Nigeria Limited resisted being disposed of its filling station.
The respondent came to Court because he has been unable to obtain physical possession of the Filling Station, and the sum of N300 Million paid for the station was not returned. This suit under the undefended list is for recovery of the purchase price by the respondent for the Filling Station (i.e. 300 Million) plus interest.
Order 23 Rules of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules provides for the undefended list. It states that:
- Whenever application is made to a Court for the issue of a Writ of Summons in respect of a claim to recover a debt, liquidated money demand or any other claim and the application is supported by an
affidavit setting forth the grounds upon which the claim is based and stating that in the deponents belief there is no defence thereto, the Court shall, if satisfied that there are good grounds for believing that there is no defence thereto enter the suit for hearing in what shall be called the “Undefended List” and mark the Writ of Summons accordingly and enter thereon a date for hearing suitable to the circumstances of the particular case.
The procedure under the Rules referred to above are designed to prevent delay in cases where the plaintiff has a clear case and the defendant has no defence. So, where the plaintiff satisfies the Court with affidavit evidence which the defendant cannot answer, the Court would enter judgment for the plaintiff thereby avoiding a full blown trial with the usual expense, frustrations and delay. On the other hand if the defendant files an affidavit which discloses a defence on the merit, he would be granted leave to defend by the Court, and if there are material conflicts in the affidavits of both parties, the suit would be taken out of the Undefended List and placed on the general cause list for a hearing in the
in the well-known way. It prevents worthless and sham defences. See: M.C. Investment Ltd & Anor v. C.I. & C.M. Ltd (2012) 6 SC (Pt. 1) p. 188, Gambo v. Ikechukwu & Ors. (2011) 10 SC P.1, International Bank Ltd v. Brifian Ltd. (2012) 5 SC (Pt. II) p. 190, Nkwo Market Community Bank (Nig.) Ltd v. Obi (2010) 4-7 SC (Pt. 1) p. 30.
ISSUES 1 & 2
- Was the Court of Appeal right, given the circumstances of the case when it decided that transfer of the property coupled with physical possession are crucial ingredients of the purchase or sale agreement between appellant and the respondent.
- Was the Court of Appeal right when it held that the conflicts in affidavit evidence of the appellant and respondent can be resolved with the aid of documentary evidence without calling oral evidence to resolve the conflict in an undefended list application.
It is necessary at this stage that I reproduce relevant extracts from the affidavits before the trial Court.
Affidavit in support.
- That sometimes in November, 2015 the plaintiff company got information through one Mikhail Hamzat its property manager that Yaman
Fuel Filling Station was in the market for sale by public auction.
- That the plaintiff company upon this information made further enquires and confirmed that the said Yaman Fuel Filling Station was for sale at the instance of the defendant Bank.
- That the plaintiff company was able to link up with one Messrs M. S. Shehu & Brothers Limited a Government Licensed Auctioneer and the defendants authorized agent or official auctioneer in the said sale.
- That through the said M. S. Shehu & Brothers Limited, the plaintiff went into negotiation and after exchange of letters of offer and acceptance, the defendant agreed to sell to the plaintiff the said Yaman Fuel Filling Station for three hundred million Naira (300,000,000) only. Attached and marked Exhibits “A” and “A1” is the defendant’s letter of offer dated November 19, 2011 and plaintiff’s letter of acceptance dated November 19, 2015 respectively.
- That the defendant did by its letter of November 19, 2015 give the plaintiff up till Monday November 23, 2015 to pay the agreed purchase price of N300,000,000 (Three hundred million Naira) only.
That at the instance and or instruction of the defendant Bank, the plaintiff was given an Account No. 0034137201 (Yaman Nigeria Limited) being the defendants customers account upon which a facility was granted leading to the sale.
- That in compliance with the defendant’s directive, the plaintiff made different transfers/lodgments into the said Account No. 0034137201 provided to it by the defendant until a total of N300,000,000 (Three hundred Million Naira) only was lodged into the said account. Attached are marked Exhibits “B”
“B1” “B2” and “B3” are evidence of transfer to wit: for 23/11/2015
(N10,000,000) and 27/11/2015
- That by the plaintiffs letter of 27th November, 2015, to the defendant the plaintiff formally informed the defendant on the payment of the total sum of N300,000,000 (Three hundred Million Naira) only. The said letter is attached herewith as Exhibit C.
- That upon completion of the total purchase price and signing of relevant documents the plaintiff did by its letter of December 8, 2015 requested for physical
handover of the property as the defendant and was assured the plaintiff of immediate physical possession upon purchase. The said letter is attached herewith and marked Exhibit D.
- That pursuant to the said payments, the defendant confirmed payment of the total sum of N300,000,000 (Three hundred Million) only paid into the defendants customers (Yaman Nigeria Limited)s Account No. 0034137201 vide the defendants letter of December 11, 2015 to Yaman Nigeria Ltd of which a copy was made available to the plaintiffs company. A copy of the said letter is attached herewith and marked Exhibit E.
- That upon notifying the defendants company of the sale the plaintiff was assured of vacant possession within a week.
- That upon receipt of Exhibit D i.e. letter from the plaintiff to the defendant demanding for physical possession, the defendant made attempt at delivering possession but to the dismay and chagrin of the plaintiff, the physical handing over became an impossible task as the defendant’s customer Yaman Nigeria Limited the owners of the Yaman Fuel Filling Station the subject of the sale resisted and chased the
defendants staff and the plaintiffs staff away with thugs.
- That the plaintiffs discreet enquires had revealed that there has been a disagreement between the defendant bank and Yaman Nigeria Ltd, its customer which was never disclosed to the plaintiff before the plaintiff agreed to purchase the said property from the defendant.
- That since 27th November, 2015 when the plaintiff paid a total sum of N300,000,000 (Three hundred Million Naira) only into the account given to it by the defendant, has been denied physical possession.
- That the plaintiffs recent discovery has revealed that there is a suit pending between the defendant and its customer Yaman Nigeria Ltd in suit No. CV/546/45 wherein the defendant is being challenged on its claim of the customer i.e. Yaman Nigeria Limited . of which the defendants sale to the plaintiff is being challenged. Attached and marked Exhibit F is the Court process with respect to suit No. CV/546/15 (Yaman Nigeria Limited and Union Bank of Nigeria Plc).
- That the defendant had deceived the plaintiff into believing that its customers (Yaman Nigeria
Ltd) the owner of the property the subject of the aborted sale was in the know and was part of the sale.
- That the sum of N300,000,000 only paid into the account provided by the defendant are monies the plaintiff had to source from Banks, sister and subsidiary companies and interest have continued to run for every day that passes by and it will amount to double jeopardy for the plaintiff to continue to be paying interest for a property that could not be handed over to it commercial activities to pay back to the borrowers.
The affidavit in support reveals that the respondent paid the appellant N300,000,000 (Three hundred Million Naira) for a Filling Station, but that after payment and to this day he has not been given physical possession of the Filling Station. Since he has been unable to obtain physical possession he wants his money returned to him with interest.
What does the appellant say to this, or what is the appellants defence.
The appellant deposed in his affidavit showing cause as follows:
- The depositions contained in paragraph 12, 14, 15, 16, 17, 18, 19, 22 and 23 of the said affidavit are false.
Yaman Nigeria Ltd., (the customer) is a customer of the defendant with Account No. 0034137201.
- The customer obtained several facilities from the defendant in June, 2014.
- The facilities were secured by various properties including the property in contention lying, situate and being at Plot No. 499, Talawa Balewa Way, Area 5, Abuja.
- A deed of Legal Mortgage was executed between the customer and the defendant to cover the defendant’s exposure. A copy of the Deed of Legal Mortgage is attached and marked as Exhibit U.I.
- The facility account failed as the customer neglected and refused to liquidate its indebtedness in accordance with the agreement of parties despite several demand for payment.
- The defendant’s right of sale pursuant to the Legal Mortgage consequently arose.
- The defendant thereafter put up the property in contention for sale to recover the customer’s indebtedness to her.
- In response to paragraph 12, 14 and 17 of the plaintiff’s affidavit I know as a fact that the plaintiff made an offer to purchase the property in contention sometime in November, 2015.
The plaintiff was immediately made aware that the defendant’s title was a result of a Deed of Legal Mortgage.
- The plaintiff conducted its relevant due diligent search and was aware that the defendant’s title was predicated on a Deed of Legal Mortgage and that the defendant’s customer was in active possession of the property in contention.
- In response to paragraph 16 of the plaintiff’s affidavit, there was no disagreement between the defendant and its customer prior to the sale of property in contention.
- Contrary to paragraph 19 of the plaintiff’s affidavit, the defendant at no material time deceived the plaintiff of its source of title to the property in contention.
- During the due diligent search conducted by the plaintiff, the defendant showed the plaintiff correspondence exchanged between the defendant, the customer and solicitors representing the defendant which indicate the customers acknowledgment of its indebtedness to the plaintiff. The correspondence are attached and marked as Exhibits U2, U3, U4 and U5.
- By the Legal Mortgage executed between the defendant and its customer, the customer waived its right to notice prior to sale of the property.
That notwithstanding the defendant gave notice of sale to the customer vide its personal letters and letters written by its solicitors.
- The plaintiff being fully aware of the status of the property in contention agreed to purchase the property at the rate of N300,000,000 Million Naira only.
- To satisfy the purpose of sale of the property in contention being liquidation of the defendants customers indebtedness, the plaintiff was instructed to credit the customers account No. 0034137201 with the sum of N300,000,000 million only.
- Given that the customer was still in physical possession of the property in contention the defendant did not contract/covenant to deliver vacant possession to the plaintiff who was aware of the circumstance of sale.
- Pursuant to the plaintiffs request vide letter dated 4 December, 2015 the defendant handed over the following documents to the plaintiff vide letter dated 7th December, 2015; the customer’s Original Certificate of Occupancy registered as 5068/5068/26 Counterpart Copy of the Deed of Legal Mortgage registered as No. FC. 3/3/35/FCT and four copies of duly executed Deed
of Assignment assigning the unexpired residue of the mortgage property to the plaintiff. The letters dated 4 and 7 December, 2015 are attached and marked as Exhibits U6 and U7. A copy of the Certificate of Occupancy is attached and marked as Exhibit U8.
- The plaintiff lost possession of the property in contention after being put in peaceful possession by the defendant.
- There is evidence of offer, acceptance and consideration as well as exchange of title documents which remains in the plaintiff’s possession.
- The defendant is not indebted to the plaintiff as the contract between parties remains valid, subsisting and is binding.
- The defendant has a reasonable and good defence to the plaintiff’s claims.
It is clear after reading the appellant’s affidavit that the appellant received the sum of N300,000,000 million naira from the respondent, and it still has custody of the said sum. Yaman Nigeria Ltd (the customer of the appellant) whose Filling Station was sold to the respondent by the appellant is challenging the sale in suit No. CV/540/15. Since the owner of the Filling Station has gone to Court to challenge the
sale, the respondent cannot be expected to wait for the outcome of that suit, after paying the sum of N300,000,000 million for it.
Nowhere has the appellant justified holding on to the respondents N300,000,000 million. Learned counsel for the appellant observed that the affidavits conflicted especially on the issue of promised vacant possession of the property, submitting, that as a result of the conflict the Court of Appeal ought to have allowed the appeal and ordered transfer of the case to the general cause list. He observed that the contradictions which were not resolved cannot be resolved by documents, Reliance was placed on Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) p.737.
On whether the transfer of the property coupled with physical possession are crucial ingredients of the purchase or sale Agreement between the appellant and the respondent, learned counsel for the appellant observed that the appellant did not covenant with the respondent to transfer physical possession of the property to the respondent. He urged the Court to resolve both issues in favour of the appellant.
Learned counsel for the respondent observed that the Court of Appeal was right in holding that there was no conflicts in the affidavit of the Parties. On issue two he submitted that physical possession of the property by the respondent was crucial to the sale agreement between the parties, but the appellant failed to hand over physical possession to the respondent. He observed that the appellant only approbated and reprobated on this issue.
He urged the Court to resolve both issues in favour of the respondent.
Where facts deposed to in an affidavit are controverted on a crucial and material issue a trial Court ought to invite the parties to call oral evidence. See: Akinsete v. Akindutire (1966) 1 ANLR p.147
When such situation arises under the undefended list the Court should transfer the case to the General cause list for trial in the usual way.
The conflict in this matter is on the issue of promised vacant possession.
Did the appellant promise the respondent vacant possession of the Filling Station once the respondent pays the purchase price of N300,000,000 The appellant says he never promised the respondent vacant possession while the
respondent says he was promised vacant possession.
Paragraphs 12, 14 and 15 are detailed depositions in support of the application that the appellant promised the respondent immediate physical possession and that the respondent and appellant’s staff were chased away when they tried to gain physical possession the filling station from Yaman Nigeria Ltd.
The appellant denied paragraphs 12, 14 and 15 in its affidavit. It deposed this:
- In response to paragraphs 12, 14 and 17 of the plaintiffs affidavit, I know as a fact that the plaintiff made an offer to purchase the property in contention sometime in November, 2015. The plaintiff was immediately made aware that the defendants title was a result of a Deed of Legal Mortgage.
The above amounts to a bare denial.
Depositions in an affidavit denying a fact should be robust. If I may ask if the appellant did not promise the respondent vacant possession of the filling station why did staff of the appellant go to the filling station and try to obtain physical possession for the respondent, but were chased away by staff of Yaman Nigeria Ltd.
The conduct of the appellant does not reflect that of a person that did not promise the respondent vacant possession of the filling station. I am satisfied on the affidavits before the Court that the appellant promised the respondent vacant possession of the filling station but was unable to fulfill that promise because of the legal challenge mounted by Yaman Nigeria Ltd.
Even if there are conflicts in the affidavit on whether the appellant was to yield vacant possession to the respondent, that is not the respondent’s case. The respondent wants his money back. So long as the suit between Yaman Nigeria Ltd and the appellant remains unresolved by the Courts, the respondent cannot obtain possession and he should not be expected to wait indefinitely. Justice demands and common sense dictates that since consideration has failed woefully the appellant should return the sum of N300 Million paid to it by the respondent with interest.
Before I conclude, I ask the question, what is the purpose of buying property if the purchaser is never given possession. Possession does not necessarily have to be a term in the contract of sale, it is implied. In suit No. CV/546/15, Yaman Nig. Ltd challenges the sale of its filling station by the appellant to the respondent. The respondent is not a party in the suit. The Court may declare the sale invalid. While the suit remains unresolved would it be right to allow the appellant hold on to the respondent’s N300,000,000 using it as it likes. If this is allowed, there would a fundamental defect in judicial proceedings akin to the Stone Age.
There are no conflicts in the affidavit that should be resolved before the respondent gets his money back. There is thus no reason whatsoever to transfer this case to the General cause list. The defence put up by the appellant is designed to delay and frustrate the respondent from his money while the appellant continues to trade with it.
There is no merit in the affidavit of the defence. Once consideration fails as it has in this case, the appellant should satisfy the Court why he is entitled to hold on to the
purchase price paid by the respondent forever. This, he has failed to do. In fact there is no explanation to justify such inverse reasoning. Leave to defend was quite rightly refused by the trial Court and affirmed by the Court of Appeal.
Both Courts below were correct. Issues 1 and 2 are resolved in favour of the respondent.
Interest on the sum of N300,000,000.
In Harbtts Plasticine Ltd v. Wayne Tank & Pump Corporation Ltd (1970) 1 ALL ER p.225
Lord Denning M.R. said:
“It seems to me that basis of an award of interest is that the defendant has kept the plaintiff out of his money and the defendant has had the use of it to himself. So he ought to compensate the plaintiff accordingly.”
If the case is of a commercial nature and money should have been paid sometime ago, but was not paid, it ought to carry interest. A person deprived of his money must be compensated.
The respondent made a case for interest in paragraph 22 of his affidavit in support, when he deposed to the fact that he sourced for the N300 million from Banks, sister and subsidiary companies.
There can be no doubt that the sum of N300 Million obtained by the respondent from banks etc, attracts interest. The transaction is of a commercial nature and the appellant has kept the respondent out of his money and the appellant, a bank has had the use of the money for itself. The Naira has for a long time been unstable. It continues to swing around with every gust that blows. An interest of 10% seems reasonable to me.
I must observe that this appeal is against the concurrent findings of fact of the two Courts below. The law is long settled that the top Court would not upset concurrent findings of fact except the findings are perverse, or were not supported by credible evidence, or there was miscarriage of justice or some principle of law, or violation of procedure. See:
Gundiri & Anor v. Nyako & 6 Ors (2012) 11-12 SC p.62 Dakolo v. Dakolo (2011) 6-7 SC (Pt. III) p.104.
Egunjobi v. Federal Republic of Nigeria (2012) 12 SC (Pt. IV) p.148.
Concurrent findings of fact were very well established that the respondent paid the appellant N300,000,000 (Three hundred Million Naira) as purchase price for a filling station. This fact is not denied.
Since there has been failure of consideration, the respondent is entitled to have the purchase price returned to him with interest.
Was the Court of Appeal right when it held that the trial High Court did not violate appellants right to fair hearing when the trial High Court Suo Motu raised the issue of forfeiture of purchase price paid by the respondent and resolved same against the appellant without affording the appellant any hearing on the issue.
In the judgment of the trial Court, the learned trial judge said: (see page 250 of the Record of Appeal). It is evident from the above that:
- The defendant has not denied that it still has custody of the sum of N300,000,000 it received from the defendant under a contract of sale of a Petrol Filling Station.
- It has not denied that Yaman Nigeria Ltd whose filling station it purportedly sold to the plaintiff is challenging the purported sale in Court.
- It has not denied and it cannot be heard to deny that sale of the filling station has failed, in that the owner has gone to Court to challenge it.
- It has not stated why, under the contract of sale the
plaintiff should forfeit the contract price as the deal has failed.
Further on in the judgment, the learned trial judge said:
“On the whole, what good reason does the defendant have for refusing to refund the plaintiffs money Put differently, on what basis does the defendant expect the plaintiff to forfeit his investment of N300,000,000 By the way, to whom is he expected to forfeit it Is he forfeiting it to the state Is it not to the very defendant in whose custody the money is deposited So, does it mean that the defendant bank wants to keep plaintiff’s money while the legal battle over its right of sale of the property rages in another Court What will happen should Yaman win that case Has the defendant bank spared a thought on that This is even overstretching the point. What is important is that the consideration for the contract has failed on account of the plaintiff’s inability to take possession of the property from its owner because the owner thinks that the defendant ought not to have sold it.”
Learned counsel for the appellant observed that the learned trial judge raised the issue of forfeiture of N300 Million paid
by the respondent to the appellant suo motu, contending, that the issue of forfeiture was not raised in the respondents affidavit in support of the writ of Summons under the undefended list. He also observed that the issue of forfeiture was not raised in the appellant’s processes but only arose in the judgment for the first time.
He observed that the issue of forfeiture of the sum of N300 million was resolved in favour of the respondent without affording the appellant any hearing. Relying on: Akere v. Gov. of Oyo State (2012) 12 NWLR (Pt. 1314) p.240, P.D.P. v. Okorocha (2012) 15 NWLR (Pt. 1323) p. 205.
Learned counsel observed that the appellant’s fundamental right was breached by the trial Court. He urged this Court to resolve the issue in favour of the appellant.
Learned counsel for the respondent observed that learned counsel for the appellant interpreted the way the learned trial judge used the word “forfeit” out of con. He submitted that the point the learned trial judge was making was that it would be unjustifiable for the appellant to refuse to refund the respondent’s money after failing to hand over physical
possession of the property. He further observed that even if the word forfeit was used by the trial judge in the sense the appellant is painting it to have been used, it did not occasion any miscarriage of justice against the appellant. He submitted that the decision of the trial Court was not based on forfeiture.
Concluding, he submitted that the refusal of the appellant to refund the purchase price was a deprivation of the respondent’s right to its money which was not based on failure of the respondent to perform its contractual obligation but due to failure of the appellant to do so.
He urged this Court to uphold the position of the Courts below and resolve this issue in favour of the respondent.
Suo Motu means on his own motion. It occurs where a judge decides an issue without given counsel a hearing and proceeds to render a decision. See: Uzoho v. National Council on Privatization (2007) All FWLR (Pt. 394) p.370
Section 36 of the Constitution provides for fair hearing. This is a mandatory provision that must be complied with by the Courts when determining the civil or criminal rights, obligations of a person. He must be heard.
Audi Altaram Partrem means please hear the other side. Fair hearing indeed has its origins in the Old Testament. Even the Lord Almighty gave Adam an oral hearing after he ate the forbidden fruit. Once a party shows that he has been denied a fair hearing and it is found to be correct. A breach of his right to a fair hearing has occurred and the trial or proceedings would be declared a nullity. See: Isiyaku Mohammed v. Kano N.A. (1968) 1 ALL NLR p.42 Akande v. State (1988) 3 NWLR (Pt. 85) p. 681 F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) p.652, Oje v. Babalola (1991) 4 NWLR (Pt. 185) p. 267.
What did the Court of Appeal say on the use of the word forfeiture by the trial judge The Court of Appeal said:
“It is Crystal clear from above, that the trial Court used the word forfeiture only to mean that the respondent should not lose the N300 million he paid to the appellant, when he could not have physical possession of the property the subject of the sale agreement. This is the fundamental aspect of the claim raised by the respondent, and it is the amount of money that the appellant wants to retain even though
the respondent has no physical possession of the property. In other words, the issue of the refund of the N300 million is the central theme of the claim before the trial Court and so the non-refund (the forfeiting of it by the respondent in the language of the Court) cannot be an issue raised a fresh suo motu by the trial Court.
All the arguments canvassed thereby are wooly. As a result there was no denial of fair hearing occasioned at all in that respect.”
Two examples of “to forfeit” and “forfeiture” can be explained. It all depends on the con in which it is used.
For example in Real Property, where a lease agreement is legally binding on the parties, and the customary tenant, or leasee exhibits conduct that shows he is claiming ownership of the subject matter (i.e. the land). That is to say he denies the lessor or overlords title, such conduct amounts to a misbehavior for which the lease is liable to be forfeited without the parties given a hearing. The judge should not come to that conclusion suo motu. It is so obvious that forfeit as used by the judge has been interpreted out of con.
What the trial judge is saying in his judgment is that if the appellant is allowed to keep the purchase price for the filling station without the respondent not having physical possession of the filling station it would amount to the respondent losing or forfeiting N300 million, he (the respondent) paid to the appellant. Forfeiture was never an issue in this case. The respondent cannot be allowed to loose both ways. No fresh issue was raised by the use of the word forfeiture. This is not raising an issue suo motu.
The Court of Appeal was correct in finding that the appellant was not denied fair hearing.
In the end, this appeal is dismissed. The judgment of the Court of Appeal is affirmed.
It is hereby ordered that:
(a) The appellant bank, Union Bank PLC shall pay to the respondent the sum of N300,000,000 (Three hundred Million Naira) being refund of money received by the appellant from the respondent for the Filling Station at Plot 499 Tafawa Balewa Way Area 3, Garki, Abuja.
(b) Interest on the judgment shall run from 12th May, 2016 (the date of the judgment of the trial Court) at the rate of 10% until final liquidation.
(c) Upon the payment of the judgment debt and
interest the respondent shall release to the appellant all the title documents received from the appellant on the subject matter of the action.