United Bank for Africa Plc & Ors V. Mrs. Olatohun Ayinke(2000)

LawGlobal-Hub Lead Judgment Report

ONNOGHEN, J.C.A. 

T

his is an appeal against the judgment or the High Court of Justice of Kwara State sitting in Ilorin Judicial Division in suit No. KWS/299/94 delivered by Hon. Justice J.A. Ibiwoye on the 17th day of February, 1999 in favour of the respondent.

In paragraph 16 of the Statement of Claim at page 13 of the record of proceedings, the respondent, as Plaintiff claimed against the appellants as follows:

“16. WHEREOF the Plaintiff claims jointly and severally from the Defendant (sic)

(i) A declaration that the purported sale of the plaintiffs house lying and situate at Kulende, behind Goodwill Hotel on 28/11/94 by the 2nd Defendant acting on behalf of the 1st Defendant is illegal, unconstitutional, null and void.

(ii) An order selling aside the sale of the said house.

(iii) A declaration that the purported Mortgage of the Plaintiff’s house by the 3rd Defendant to the 1st Defendant without her knowledge or consent is illegal unconstitutional and null and void.

(iv) A perpetual injunction restraining the Defendants by themselves their agents, or any other person however from doing anything whatsoever in respcct of the said building.

(v) Damages of fifty Thousand Naira (50,000.00) for the unlawful act and embarrassment caused to the plaintiffs person”.

The facts of the case as can be gathered from the evidence and that the 3rd Defendant, now late was a customer of the 1st Appellant at its Osogbo branch where he enjoyed credit facilities which as at the time material to the institution of the action amounted, together with accumulated interest, to the sum of N340,432.79.

As security for the credit facilities the 3rd Defendant executed a Deed of Mortgage in favour of the 1st Appellant over a property covered by Statutory Right of Occupancy No. 5194. The Deed of Mortgage is Exhibit ‘D3’. The 3rd Defendant also deposited a Certificate of Occupancy No. KW5194 as well as the Deed of Conveyance both in respect of the same properly with the 1st Appellant. The 3rd Defendant defaulted resulting in the 1st Appellant engaging the services of the 2nd Appellant to auction the said properly.

Following the publication of the Notice of auction and the eventual auction of the property, the Respondent instituted the action claiming that the property used as security belongs to her not the 3rd Defendant and that she only gave the documents to the 3rd Defendant who was her senior brother to keep for her which he later used to secure his loan with the 1st Appellant without the knowledge, authority or consent. She tendered a purchase receipt for the land as Exhibit 1; site plan as Exhibit 2; building plan as Exhibit 3 and a booklet of receipts 1981 – 1993 as Exhibits 4 – 22. She told the court that she bought the land from one Alhaji Sule Tahiru and obtained a receipt.

At the conclusion of the trial the learned trial Judge found for the plaintiff – now Respondent. Being dissatisfied with the judgment, the Appellants have appealed to this court on six grounds of appeal out of which learned Counsel for the Appellant Alhaji MOH’D Surajudeen O. Adegboye has formulated four issues in his brief of argument for the determination of the appeal.