Unity Bank Plc. V. Mr. Edward Bouari (2008)

LAWGLOBAL HUB Lead Judgment Report

OGBUAGU, J.S.C

This is an appeal against the decision of the Court of Appeal, lbadan Division (hereinafter called “the court below”) delivered on 9th May, 2002 allowing the appeal of the Respondent and dismissing the Cross-Appeal of the Appellants in respect of certain findings of the trial court. Dissatisfied with the said decision, the Appellants, have appealed to this Court on eleven (11) Grounds of Appeal. Without their particulars, they read as follows:

“1. The Court of Appeal erred in law by allowing the appeal of the respondent when the Court of Appeal had been deprived of its jurisdiction to entertain the appeal of the respondent by the invalid and incompetent Amended Notice of Appeal of the respondent which was filed out of time without an order of the Court of Appeal extending the time to file it out of time.

2. The Court of Appeal erred in law by not resolving the issue of its jurisdiction to entertain the appeal that was raised by the application of the appellants of February 13th, 2002 for leave for further address on the issue of jurisdiction and Notice of Preliminary objection of March 26th, 2002 challenging the competence of the Court of Appeal to grant extension of time to the respondent to regularize the invalid Amended Notice of Appeal as the application for leave for further address on the issue of jurisdiction was never taken before the delivery of judgment.
3. The Court of Appeal erred in law by dismissing the cross appeal of the appellants without consideration and finding on the issues of law that were raised therein that the donee of the power of the attorney or his personal representative ought to have been joined in the action in which the respondent challenged the competence of the donee of the power of attorney to execute the deeds of legal mortgage by virtue of the power of attorney.
4. The Court of Appeal erred in law by dismissing the cross appeal of the appellants without consideration and finding on the issues of law that were raised therein that the donee of the power of attorney had been held out by the donor of the power of attorney as having the authority of the donor to execute the deeds of the legal mortgage and the respondent never joined issue with the appellants on this point of law.
5. The Court of Appeal erred in law by not making finding on the issue that the amended Notice of Appeal of the respondent is invalid and incompetent under Order 6 rule 3(a) Court of Appeal (Amendment) rule 1984 on the ground that all the issues that are involved in all the Grounds of Appeal did not feature in the pleading of the respondent and they were not canvassed at the court below.
6. The Court of Appeal erred in law by not considering and making finding on the issue that was raised by the Appellants in the appeal that it will be an open fraud and injustice to allow the 1st appellant to loose (sic);N7 million as shown by Exhibit D2 and the respondent and his company to escape with 7 million.
7. The Court of Appeal erred in law when it held as follows…….In conclusion I hold that in view of the above consideration the findings of the learned trial judge about the plaintiff and his brothers being directors of the Trans Atlantic Co. Ltd. at the time of the mortgage transaction and the conclusion or decision based thereon are perverse and this court should necessarily interfere. It is the defence assertion that the plaintiff and his brothers were directors/shareholders of Trans Atlantic Co. Ltd at the time of the mortgage transaction and it is the duty of the defence to prove it through a document like exhibit D3 from Registrar of companies. It was not enough to prove that the plaintiff/and or his brothers were at one time or the other director of the company. They have to prove that they were directors of the company at the time of the mortgage transaction in exhibits P6 and DI. This they failed to do. The result is that I resolve this issue in favour of the plaintiff/appellant
8. The Court of Appeal erred in law when it held as follows:”………There is no indication of when he became the director or when he acquired his shares. There is also no other member of the Bouari family as one of the directors. It was therefore “wrong for the learned trial judge to proceed on the assumption that because of William Bouari’s directorship all male children of Lutfallah Bouari were directors. Furthermore there is no indication of when William Bouari became a director. Was he a director as at the time the property in dispute was mortgaged There was no evidence in that respect and the onus was on the defence to establish that at the time Exhibits D6 and DI were executed William Bouari was one of the directors” .
9. The Court of Appeal erred in law by holding that there was no evidence of any transaction between the Trans Atlantic Co. Ltd. and the 1st appellant when the statement of account Exhibit 02 shows that Trans Atlantic Co. Ltd. is indebted to the 1st appellant in the sum of =N=7 million.
10. The Court of Appeal erred in law when it held as follows”……There is ample evidence in support of this finding and conclusion and the point needs no further discussion. The finding is also consistence (sic) with the customary law of Ibadan where the property is situated or the law in Lebanon as testified to by the plaintiff. And it is settled law that until a person who owns a landed property dies his children cannot dispose of the property without his authority or consent. And any purported sale, pledge or mortgage of a property by a person who is not owner will be caught by the principle of nemo dot Qua (sic) non habet and such transaction will be null and void”.

II. The Court of Appeal erred in law when it held as follows……”It is my conclusion therefore that in 1963 and 1968 when the mortgage transaction (sic) were made the owner of the properties in dispute was still alive and in the absence of any authority to do so in the power of Attorney Exhibits P3 or any other authority Emile Bouari either acting alone or in conjunction with other children of the Lutfallah Bouari had not the power to mortgage the property in dispute”.

The claims of the Respondent as appears at paragraph 38 of his Statement of Claim at pages 36 and 37 of the Records, read as follows:

“(i) Declaration that the purported mortgage of the plaintiffs family property known and described as No. 80 Lebanon Street, and No. 30 Oba Adebimpe Street, Gbagi, Ibadan if any is unlawful, illegal null and void and of no effect.

(ii) Declaration that the said plaintiffs family property known and described as No. 80 Lebanon Street, and No. 30 Oba Adebimpe Street, Gbagi, Ibadan can not be mortgaged or charged for indebtedness or liability of any individual or institution without the knowledge and consent of members of the family.

(iii) Declaration that the purported mortgage of the property known as 80, Lebanon Street, and or 30 Oba Adebimpe Street, Gbagi, Ibadan or any part thereof is ultra vires, the power of Attorney dated 5th November, 1962 and registered as 56/56/564 and is therefore unlawful, wrongful, ineffectual, null and void.

(iv) An Order directing the 1st defendant/respondent to release the title deed of the said plaintiffs family property known as No. 80, Lebanon Street and No. 30 Oba Adebimpe Street, Gbagi, Ibadan or any other document relating thereto, to the plaintiff forthwith.

(v) Declaration that the defendants can not dispose of the plaintiffs family property known as No. 80 Lebanon Street, and No. 30 Oba Adebimpe Street, Gbagi, Ibadan without complying with the provisions of the Land Use Act, 1978 and the Auctioneers Laws of Oyo State.

(vi) Injunction restraining the defendants by themselves their agents, servants and or privies otherwise howsoever from selling or disposing of, the plaintiffs family property known as No. 80 Lebanon Street and or No. 30 Oba Adebimpe Street, Gbagi, Ibadan or in anyway interfering with the plaintiffs family or their agents possession thereof.

The Appellants who were the defendants filed a Statement of Defence which appears at pages 40 and 41 of the Records. After hearing evidence and addresses of learned counsel for the parties, the learned trial Judge – Arasi, J. in a considered Judgment delivered on 3rd October, 1997, dismissed all the claims/reliefs of the Respondent except relief No (i). His Lordship, concluded thus:

“In the result, and for all the reasons earlier stated by me, it is my judgment that the plaintiff partially succeeds in his claim against the defendants. I hereby make the following orders;

(a) Declaration that the purported mortgage of the property known as 80, Lebanon Street, Gbagi, Ibadan or any part thereof is ultra vires the Power of Attorney dated 5th November, 1962 and registered as 56/56/564 and is accordingly unlawful.