LawPavilion Online


Back

CHIEF (DR.) J. E. B. AKINSELURE & ANOR v. MRS. OLAJUMOKE AYENI & ORS

(2018) LPELR-43481(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of January, 2018

CA/L/505/2010


Before Their Lordships

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria


Between

1. CHIEF (DR.) J. E. B. AKINSELURE
2. HERITAGE BANK LIMITED - Appellant(s)

AND

1. MRS. OLAJUMOKE AYENI
2. MERIT MOTORS LIMITED
3. TREASURY AND FINANCE COMPANY LIMITED
4. LARRY AYENI - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Mortgage.

FACTS:
This is an Appeal against the Judgment of Hon. Justice O. A. Adefope-Okojie delivered on 13/10/2009 in the Ikeja Judicial Division of the High Court of Lagos State.

Suit No. ID/672/1994 which led to the Appeal was initially instituted by (1) Dipo Ayeni (now substituted on his demise with his wife, Mrs. Olajumoke Ayeni (z) Merit Motors Limited and Treasury and Finance Company Limited as Plaintiffs. The Writ of Summons and Statement of Claim was then against a sole Defendant - OWENA BANK (Nigeria) PLC which metamorphosed into Heritage Bank Limited. The  1st Appellant, Chief (Dr.) J. E. B. Akinselure was joined as Co-Defendant and because he filed a Counter-Claim against the Claimants became a Defendant Counter-Claimant in the High Court. The 4th Respondent, Mr. Larry Ayeni was substituted for his father, Pa Isaiah Ayeni who was joined in the High Court as 4th Defendant.

The 1st Respondent to Appeal was/is for all intents and purposes the Executive chairman of the 2nd and 3rd Respondents. ???The 1st to 3rd Respondents were customers of the 2nd Appellant (i.e. 1st Defendant) and they all operated separate Bank Accounts with the 2nd Appellant. The 1st Respondent used his property at No. 17B, Sule Abuka Crescent, Opebi, Ikeja as collateral for credit facilities offered to the 2nd Respondent Company. The 1st Respondent further provided the property known as No. 9, Adepele Street, Ikeja belonging to his father, the 4th Respondent (i.e. 4th Defendant to Counter-Claim) as further collateral for the said loan with the 4th Respondent standing as surety/guarantor to the Deed of Mortgage executed between the 2nd Appellant and the 2nd Respondent in respect of the said loan.

The 3rd Respondent subsequently authorized the 2nd Appellant to alternate funds between the Accounts of 2nd and 3rd Respondents whenever the need arises. That is whenever there is a cheque drawn on the Account of the 3rd Respondent and there is insufficient fund to honour the cheque, the cheque can be honoured on the Account of 2nd Respondent and vice versa. The 2nd Respondent paid fully the said loan facility given to it by the 2nd Appellant while the 3rd Respondent was unable to liquidate its debt to the 2nd Appellant.The 2nd Appellant then transferred the debt balance in the Account of the 3rd Respondent to the Account of the 2nd Respondent and subsequently sold both 1st Respondent's property (i.e. 17B, Sule Abuka Crescent, Opebi, Ikeja) and the 4th Respondent's property (i.e. No. 9, Adepele street, Ikeja) to the 1st Appellant in the exercise of its power of sale under the mortgage. The Respondents thereafter filed an action at the High Court of Lagos State claiming against the Appellants as contained in their 3rd Further Amended writ of summons and statement of claim.

The Court dismissed the Respondents' case before same could be proved on the 29th November 2001 without the liberty to relist same on grounds of lack of diligent prosecution. The Court also refused the application brought by the Respondents seeking leave to re-open their case and call further witnesses in proof thereof and seeking to join the 4th Respondent as co-Plaintiff. The Court however, joined the 4th Respondent not as co-Plaintiff but as Defendant to counter-claim having dismissed the Plaintiffs/Claimants (Now Respondents) case. ???Initially, the Appellants (Defendants) filed separate Statement of Defence to the Respondents' claim that was dismissed for lack of prosecution. However, the 2nd Defendant (1st Appellant) in addition by his further Amended Statement of Defence of 01/06/2000 Counter-Claimed against the Respondent. In response to the above, the Respondents filed a Defence to Counter-Claim dated 20/10/2000. The Appellant led evidence in proof of his case while the Respondents later by leave of Court cross-examined the Appellants, witnesses and relied on the evidence given by the 4th Respondent prior to his been joined as 4th Defendant to counter-claim. The parties filed written Addresses after close of evidence.

The Court having heard the parties concluded that the claim of the 2nd Defendant/Counter-Claimant (1st Appellant) succeeded in part. Dissatisfied with the portion of the Judgment that declared the sale of the property of the 4th Respondent - Defendant to counter- claim at No. 9, Adepele Street, Ikeja as unlawful, null and void, the Appellants appealed against same.

ISSUES:
The Court of Appeal determined the appeal on the sole issue raised and couched by the Respondents as follows:
"Whether having regard to the evidence before the Court, there was a valid sale of the property known as No. 9, Adepele Street, Ikeja to the 1st Appellant which would entitle the 1st Appellant to a declaration of title to same".

DECISION/HELD:
On the whole, the Court of Appeal found no merit in the appeal and accordingly dismissed same.


Read Full Judgment