Union Bank Of Nigeria Plc. V. Helen Ezeiru (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Benue State High Court, Gboko Judicial Division, delivered on 18th January, 2005 in suit no GHC/49/2003. In a writ of summons dated and filed on 8th April, 2003, the Respondent herein, as the Plaintiff sued the Appellant, as the 2nd Defendant and one of her children, Mr. Chijioke Ezeiru, as the 1st Defendant.

By paragraph 19 of her Statement of claim the Plaintiff /Respondent sought for the following 5 reliefs against the Defendants jointly and severally. They are:-

(a) A declaration that the Plaintiff is the only bonafide person by virtue of the letters of administration in her name to enter into any transaction or deal in any manner with the said 3 plots.

(b) A declaration that the 1st Defendant’s act in mortgaging the said 3 plots is null and void same having being done without the consent and authority of the Plaintiff.

(c) An order directing the 2nd Defendant to return and hand over to the Plaintiff the Certificate of Occupancies in respect of plot No. 2475, 2291 and 267 situate in Gboko.

(d) An order of Court directing the 2nd Defendant not to attach any liability to the said 3 plots.

(e) An order of perpetual injunction restraining the 2nd Defendant from disposing of the said 3 plots by whatever form or dealing and tampering with them in any manner inconsistent with the interest of the Plaintiff.

The 2nd Defendant/ Appellant filed a defence to the action in which it denied all the material averments and allegations in the claim of the Plaintiff / Respondent. By way of a counterclaim, the 2nd Defendant/ Appellant also sought for a series of declaratory and injunctive reliefs against the Plaintiff /Respondent and the 1st Defendant. The Plaintiff /Respondent, as the 1st Defendant to the counterclaim and the 1st Defendant, as the 2nd Defendant to the counterclaim each filed a separate Defence to it.

Subsequent to this, the 2nd Defendant/counterclaimant/Appellant filed a joint reply to the separate defences to the counterclaim. Issues now having been duly joined, the matter went to trial.

At the trial, the Plaintiff/Respondent testified as PW1 wherefore she was led by Counsel to adduce both oral and documentary evidence. She did not call other witnesses. At the end of her cross-examination and re-examination she closed her case. For the defence, Mr. Bibi Ejembi was led by Counsel to give oral evidence as DW1. Also, as part of the defence, a series of bank and lands transaction documents were tendered and admitted in evidence.

At the end of the evidence of the parties respective learned Counsel filed and exchanged written addresses. The 1st Defendant and a son of the Plaintiff /Respondent filed a defence to the main suit but did not participate in any meaningful manner in the hearing of the matter, though he was intermittently represented by learned Counsel Mr. Adebayo.

In a considered judgment, the learned Trial Judge decided thus:-

“In the light of the fact that the 1st Defendant failed to show the title or interest he had in the three landed properties of stake before he entered into the said mortgage transaction and, having regard to the fact that the 2nd Defendant did not prove collusion between Plaintiff and 1st Defendant to defeat the mortgage transaction, as evidence on the point both in cross-examination of Plaintiff and DW1’s testimony at defence stage left the allegation stuck in the imagination of 2nd Defendant and unworthy of belief for being scanty and fanciful, I find Plaintiff’s suit against Defendants proved and hereby grant her all the reliefs sought in paragraph 19 of the Statement of claims (supra) against the Defendants”.