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AMSEL LIMITED & ANOR v. UNION BANK OF NIGERIA PLC

(2017) LPELR-42980(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of September, 2017

CA/L/607/2014


Before Their Lordships

HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria

MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria


Between

1. AMSEL LIMITED
2. SIR (CHIEF) PETER NSEK - Appellant(s)

AND

UNION BANK OF NIGERIA PLC - Respondent(s)


Summary

INTRODUCTION:
This appeal borders on the Law of Mortgage.
FACTS:
This is an appeal against the Judgment of the High Court of Lagos State wherein the Court gave judgment in favour of the Respondent who was Defendant at the trial Court. 

The Appellant as Claimant, by a writ of summons filed on the 19-5-2009 claimed against Respondent the following Reliefs:
WHEREFORE;
(a) A declaration that the Defendant's refusal to remove the credit risk management report in order to enable Oceanic Bank Plc to refinance the Claimants indebtedness to the Defendant was unlawful and in bad faith and was intended to clog the Claimants equity of redemption.
(b) A declaration that the Defendant has no right in law to continue to clog the Claimant's equity of redemption by continuing to frustrate the Claimant's effort to get other Banks to refinance the Claimants' indebtedness to the Defendant.
(c) A declaration that it is inequitable for the Defendant to frustrate Claimants' efforts to get Oceanic Bank Plc to refinance the loan and then trial Court instead allowed all the reliefs sought by the Respondent in proceed to foreclose the Claimant's right to redeem mortgaged property. 
(d) AN ORDER of the Hon. Court directing the Defendant to remove the negative surveillance report placed against the name of the 1st Claimant and on its account in order to allow Oceanic Bank International Plc or any other Bank to re-finance the Claimant's financial Obligations to the Defendant.
(e) AN ORDER of injunction restraining the Defendant from unlawfully selling and or otherwise disposing of any of the Securities by which the mortgage was secured or in any manner whatsoever encumber the Claimant's equity of redemption.

The Respondent as Defendant also Counter-claimed against the Claimant vide an Amended Statement of Defence and Counter Claim dated the 1st February 2011, to wit: 
(a) The sum of ???101,842,628.56 being the debt owed to the Counter-Claimant by the Defendant to the Counter-Claim by virtue of a loan facility granted by the Counter-Claimant to the 1st Defendant and guaranteed by the 2nd Defendant but which the Defendants to the Counter-Claim failed to repay despite several demands by the Counter-Claimant. 
(b) Interest on the aforesaid sum of ???101,842,628.56 at the rate of 25% per annum up till the date of judgment and thereafter at the rate of 6% per annum until the entire judgment is fully satisfied.
(c) A declaration that the Counter-Claimant's right of sale of the 2nd Defendant to the Counter-Claim's property at No. 14 Jimoh Faronbi Drive, Ire-Akari Estate, Isolo, Lagos being the property used to secure the facility granted to the 1st Defendant to the Counter-Claim has arisen and exercisable as the Counter-Claimant has fulfilled the conditions precedent for the exercise of the said rights.
(d) A declaration that the Defendants to the Counter-Claim have created an enforceable equitable mortgage in favour of the Counter-Claimant in respect of the 2nd Defendant to the Counter-Claim's undeveloped property at Ikotun by virtue of the deposit/execution of Memorandum of deposit of the original title deed of the said property at Ikotun as security for the facility granted to the 1st Defendant to the Counter-Claim by the Counter-Claimant. 
(e) An order granting leave to the Counter-Claimant to sell immediately the 2nd Defendant to the Counter-Claim's undeveloped property at Ikotun in order to enforce the aforementioned securities and to realize the principal amount plus all accrued interest thereon found to be owed to the Counter-Claimant by the Defendants to the Counter-Claim in (a) above. 

At the conclusion of trial, the trial Court delivered a well considered judgment against the Claimant while granting all the reliefs claimed by the Defendant/Counter-Claimant. 

The Appellants, being miffed by the Judgment of the trial Court, have brought this Appeal.

ISSUES:
The appeal was determined on the Appellant's issues viz:
1. Whether the Appellants suffered miscarriage of justice by reason of the fact that the Judgment of the lower Court was delivered outside the ninety days after conclusion of evidence and final address allowed by the 1999 Constitution of the Federal Republic of Nigeria (As Amended) and if so, whether the judgment of the lower Court is a nullity or ought to be set aside. (Ground one).
2. Whether contrary to the holding of the lower Court, there was sufficient evidence before the lower Court to show that the Respondent frustrated the efforts of the Appellants at refinancing the 1st Appellant's indebtedness to the Respondent and if so, whether it amounts to a clog on the Appellants' equity of redemption. (Ground Two)
???3. Whether the trial Judge was right in holding that the Respondent could not be compelled to create a second lien on the mortgage "if it felt" that the valuation of the property was too low  to bear two debts when in fact there was no valuation Report at all before the lower Court to inform that decision. (Ground Three)  
4. Whether the finding of fact by the learned trial Judge that the Respondent was charging the 1st Appellant interest at the commercial rate of 25% per annum as against the rate of interest mutually agreed to by the parties, supports the holding of the trial Court that the high rate of interest was not responsible for the frustration of 1st Appellant's business and does not constitute a clog on the Appellants' equity of redemption. (Ground Four)
5. Whether there are exceptions to the holding of the learned trial Judge that Appellant's failure to file a defence to the Respondents Counter Claim amounted to lack of defence to the Counter Claim on the part of the Appellants and if so whether the Appellants' case come within the exceptions. (Ground Five)

DECISION/HELD:
In a unanimous decision, the appeal was dismissed for lack of merit.


Read Full Judgment