Union Bank of Nigeria Plc V. Chief James J.a. Akinrinmade (1999)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A.

The facts of the case are that the Respondent is a Customer of the 1st Appellant allegedly operating a Personal Account No. 3161255768. On the 30/10/91 the 2nd Appellant on the instruction of the 1st Appellant advertised the Respondent’s personal building situate at No. 8, Offa Road, G.R.A., Ilorin for sale by auction by virtue of mortgage deeds dated 23/9/77 and 25/8/82 which the Respondent allegedly executed in respect of his indebtedness to the 1st Appellant.

The Respondent however contends that the 1st Appellant cannot sell his mortgaged property since he is not indebted to the 1st Appellant on account of his personal account No. 3161255768 which was not in debit as shown in Exhibit 5.

The 1st Appellant on the other hand contends that the Respondent at all times material to the case maintained two different personal accounts with numbers 3162290192 and 3162290206 under which he had enjoyed banking facilities from the 1st Appellant but that the Respondent later transferred these accounts to Rinso Ranch Ltd. through a Deed of Rectification dated 4/2/79 – Exhibit C. The 1st Appellant further maintained that the Respondent and Rinso Ranch Nig. Ltd. at various times obtained overdraft and loan facilities to the benefit of the Company and that the Respondent personally guaranteed the banking facilities obtained by the Company. The deed of guarantee is Exhibit 7. The name Rinso Ranch Ltd & Rinso Ranch Nig. Ltd. is used interchangeably in the Exhibits. It is my view that it refers to the same company.

However, due to the default of Rinso Ranch Nig. Ltd and the Respondent to liquidate the debt of Rinso Ranch Ltd. to the 1st Appellant, the 1st Appellant sought to exercise her right of sale under the Deed of Mortgage but the Respondent instituted this suit at the High Court claiming as follows:-

“(1) A declaration that the Defendants cannot as advertised in the Herald Newspaper of 30/1/91 auction the Plaintiffs building situate at No. 8, Offa Road, G.R.A., Ilorin by virtue of purported mortgage deeds dated 23/9/77 and 25/8/82 respectively or by any other means howsoever.

(2) A declaration that having not complied with Section 22 of the Land Use Act 1978 the Defendants are not entitled to auction the Plaintiff’s said building on 29/11/91 as advertised in the Herald Newspaper of 30/10/91 or at any other time.

(3) A declaration that the notice to auction the said Plaintiff’s building is null and void and of no effect.

(4) An injunction restraining the Defendants from auctioning the said Plaintiff’s building situate at No.8, Offa Road, G.R.A., Ilorin.

During the pendency of the action al the High Court, the 1st Appellant presented an application for leave to join Rinso Ranch Ltd. as a party to the action which application was opposed and eventually refused by the Court.

The 1st Appellant, however, counter claimed against the Respondent as follows:-

“Whereof the first Defendant/Counter-claimant claims against the Plaintiff as follows:-

(a) The first Defendant/Counter-claimant claims against the Plaintiff as mortgagor and guarantor of the Company’s debt to the first Defendant the sum of N856.378.35 (Eight Hundred and Fifty-Six Thousand, Three Hundred and Seventy Eight Naira, Thirty-Five Kobo) outstanding against the Company as at 1/11/91 arising out of an overdraft/loan facilities plus interest granted to the Plaintiff and/or the Company (as the case may be) by the first Defendant at the request of the Plaintiff and/or the Company and which was secured with the Plaintiffs said property and an agreement of personal guarantee executed by the Plaintiff in favour of the first Defendant and interest thereon at the prevailing Union Bank of Nigeria Plc prime lending rate until judgment is entered and thereafter 10% per annum until judgment debt is fully liquidated.”

At the conclusion of trial the learned trial Chief Judge Hon. Justice, T. A. Oyeyipo entered judgment for the Respondent and dismissed the counter claim of the 1st Appellant. Dissatisfied with the judgment delivered on 3rd July, 1997 the Appellants have appealed to the Court on seven grounds out of which learned counsel for the Appellants. Alhaji Moh’ d Syrajludeen O. Adegboye, formulated three issues for determination viz:-