Union Bank Of Nigeria Plc V. Chief Orok Ironbar Esq. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment)

There were three defendants in the suit but the 2nd and 3rd defendants reported dead were struck off the case. At the instance of the then 1st Defendant the 2nd Defendant as its agent, published in a National daily, the following notice of sale by public auction:

“On the instruction of the Union Bank of Nigeria Headquarters No.40 Marina Lagos to sell by public Auction the mortgagors property at 75 Egerton Street Calabar registered as Number 28 at page 28 in volume 194 of the register of deeds, kept at the Lands registry office at Calabar (CRS) the lease and property of Eniang Effiom Offiong used to secure the indebtedness of Nyamata. Enterprises (Nig) Ltd will at the instance of the unpaid mortgagee the UBA(PLC) be sold by public auction on Tuesday 12th December, 1995 at 0800 hrs. Prompt.

This sale is subject to the approval or disapproval of the mortgagee, payment is strictly by Bank draft at the fall of the Auctioneer’s Hammer made payable to the Union bank of Nigeria (Plc). for further detail contact:

Nse Sam M. Ojukwu Licensed Auctioneer Phone: 0821227450.”

The Respondent /Cross-Appellant took part in the auction through his agent, the 3rd Defendant who did not disclose that he acted for a principal. The Auctioneers Hammer fell at the 3rd defendant’s bid for N800 000. However the Appellant/Cross-Respondent did not approve for the sale but disapproved same and refused the demand of the Respondent/Cross-Appellant to hand over the property to him. An attempt was made at amicable segment of the dispute arose from the Appellant/Cross-Respondent’s refusal to release the mortgaged property to the Respondent/Cross-Appellant. The attempt failed where upon the Respondent/Cross-Appellant approached the High Court of Justice, Cross River State setting at Calabar for redress by way of originating summons. At the instance of the Respondent/Cross-Appellant the Learned Trial Judge Ibok J. ordered pleadings in the matter which then proceeded as if it was commenced by a writ of summons.

In his statement of claim the Respondent/Cross-Appellant, then Plaintiff claimed in paragraph 31 thereof the following reliefs against the Appellant/Cross- Respondent who was the defendant.

(1) “Specific performance compelling the 1st and 2nd Defendants to hand over to the plaintiff the property purchased by public auction being No 75 Egerton Street Calabar registered as No 28 at page 28 in volume 194 of the lands Registry office, Calabar.

(2) Balance of paid sum and interest calculated on the paid sum by Plaintiff’s creditor which latest calculation shall be founded upon at the trial as it is still affracting interest, less the purchase price of N800.000.00.

(3) Compelling the Defendants to hand over to the Plaintiff all rents that have accrued on the property since the sale by auction in December, 1995.

(4) Injunction restraining the 1st and 2nd Defendants, their servants, agents and assigns from disturbing the Plaintiff’s possession and enjoyment of the property.

(5) All necessary documentation to conclude and register the sale to be prepared and costs covered by the 1st and 2nd Defendant.”

At the stage of pleading the names of the 2nd and 3rd Defendants had not been struck off the suit. The Appellant/Cross-Respondent, then 1st defendant, in its amended statement of defence, denied in its entirety the claim against it, indicating, inter alia, that it would contend at the trial that the entire auction transaction was by reason of the established illegalities and irregularities flawed and unenforceable by either the Plaintiff or the 3rd defendant. It would contend further that the Respondent as Plaintiff lacked locus standi in the suit and that the action is incompetent. There was a reply filed by the Plaintiff Respondent. There is no indication that the 2nd and 3rd defendants whose names had not been struck off the suit then filed any statement of defence jointly or separately.

The trial proceeded and at the conclusion the learned trial Judge, in a reserved Judgment concluded as follows: