United Bank For Africa Plc & Anor. V. Mrs. Ugoenyi & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment)

This appeal arose from the judgment of the High Court of Kaduna State, presided over by Hon. Justice Umaru Adamu, delivered on 07/10/2004 in suit No. KDH/KAD/813/95 in which the respondents, as plaintiffs, sued the appellants/defendants for certain reliefs. The first respondent was substituted for the original first respondent, Timothy Ugoenyi.

As collated from the available records, the facts of the case are straight forward. The original first respondent was a customer of the first appellant bank. The second respondent was the son of one Tanko Auta (deceased) who executed a deed of legal mortgage in respect of his property being at No. 58 Makaranta Road, Angwan Yelwa, Kaduna in favour of the first appellant for banking facilities it granted to the original first respondent. He, Tanko Auta, deposited his title documents to the property with the first appellant.

Unfortunately, Tanko Auta died before the original first respondent could liquidate his indebtedness to the first appellant. Due to the non-liquidation of the debt, despite repeated demands, the first appellant instructed the second appellant to auction Tanko Auta’s mortgaged property. In the course of putting up an auction to achieve that, the respondents commenced an action against the appellants and claimed for: a declaration that the said mortgage had been determined, a declaration that the respondents were entitled to a release of the title documents to the mortgaged property and an order of injunction restraining the appellants and their servants from selling, assigning or disposing of the property, see page 19 of the printed record. Subsequently, the respondents applied for and obtained both ex parte and interlocutory injunctions restraining the appellants from selling, assigning or disposing of the property pending the determination of the motion on notice and the substantive suit respectively.

The appellants joined issues with the respondents on their suit by filing an amended statement of defence and counter-claim. In their counter-claim, first appellant claimed for a repayment of the sum of N514,002.60k the respondents were owning it, 21% and 10% pre and post judgment interests respectively and an order that it was entitled to dispose the mortgaged property, see page 41a of the record.

The matter went to trial. Three witnesses, including both respondents, testified for the respondents and they were duly cross-examined by the appellant’s counsel. The respondents closed their case on 06/06/2002, see page 72 of the record.

Thereafter, the appellants opened their case, on 28/07/2004, by calling a witness, Mr. A.A. Chilaka, who testified – in-chief, as DW1, and the matter was adjourned to 28/07/2004 for cross-examination. On that 28/07/2004, the witness could not be cross-examined because the respondents’ counsel asked for a stand down for his principal in Chambers to do that. The appellants’ counsel did not concede to the application for a stand down and the matter was further adjourned to 28/09/2004 for cross-examination of the appellants’ witness. On that 28/09/2004, the appellants, their counsel and the witness were not in court. The respondents’ counsel applied for the evidence of the witness, DW1, to be expunged and for the case to be adjourned for judgment, see page 95 of the record. The lower Court granted the application – expunged the evidence of DW1 and adjourned to 7/10/2004 for judgment. The court delivered its judgment on that 7/10/2004 and granted the respondents’ claims, on page 101a of the record, in the following terms:

“Consequently, I hereby give judgment in favour of the plaintiff in terms of the plaintiff statement of claim. I order as follows:-

1. I declare that mortgage in favour of the Defendant relating to the 2nd plaintiff property known and called No. 58 Makaranta Street, Sabon Yelwa Kuduna South has been determined and elapsed and is no longer, subsisting.
2. I declare that plaintiffs are entitled to the release and possession of the document title over said property.
3. I grant order of perpetual injunction restraining the Defendant, his servant and or agent from selling, assigning, disposing in any manner whatsoever interfering or disturbing the peaceful and quite (sic) possession by the plaintiff of the said property No. 58 Makaranta Street, Sabon Yelwa Kaduna South.

Judgment entered in favour of the plaintiffs.

Sgd: Umaru Adamu

Judge 7/10/2004”

Being dissatisfied with that judgment, the appellants appealed to this court. They promptly filed a notice of appeal, on 15/11/2004, hosting eight grounds of appeal contained on pages 102 – 109 of the record.

On 09/03/2011, the appeal, eventually, came up for hearing. There was evidence, from the register of the court, that the respondents’ Counsel was served with the appellants’ brief of argument on 11/04/2006 and with a hearing notice on 23/02/2011 for the proceedings of that day 09/03/2011. Despite the said service of those processes, both the respondents and their counsel were absent from court on that 09/03/2011. Consequent upon that service, learned counsel for the appellants, O.J. Opawale, Esq., moved the appellants’ motion on notice that the appeal be heard on the appellants’ brief of argument since the respondents failed to file their brief of argument. The court granted the application.

Sequel to the grant of that application, learned counsel for the appellants informed the court that the appellants’ brief of argument was deemed filed on 18/03/2006. He adopted the said appellants’ brief of argument as representing his arguments in support of the appeal. He urged the court to allow the appeal.