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LAWSON NNAMDI CHUKWU & ANOR v. HON. LOLO STELLA C. CHUKWU & ORS

(2018) LPELR-45482(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of August, 2018

CA/OW/243/2017


Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria


Between

1. LAWSON NNAMDI CHUKWU
2. L. A. S. CHUKWU & SONS NIG. LTD. - Appellant(s)

AND

1. HON. LOLO STELLA C. CHUKWU
2. MR. MODESTUS O. OBIWURU
(By his Attorney Bartholomew Okafor)
3. UNION BANK OF NIGERIA PLC. - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on commercial law.

FACTS:
This appeal is against the judgment of the Imo State High Court sitting at Owerri, delivered on the 26th day of January, 2017.

The suit from where this appeal emanated was commenced by the 1st & 2nd respondents as 1st & 2nd plaintiffs at the trial Court wherein they sought for the grant of some reliefs with respect to a landed property/building known and referred to as Plot 178 "E" New Owerri, Imo State. The dispute between the parties is with regard to the landed property.

The 1st & 2nd respondents stated that the 3rd respondent advanced loan to one Chief L.A.S. Chukwu (now deceased) and the said loan was secured with the property. The 1st & 2nd respondents stated that the late Chief L.A.S. Chukwu was unable to fully liquidate the entire loan sum before he died. Thus, the 3rd respondent employed the services of the law firm of B. F. Omidina & Co. to recover the loan, among others. They stated that in the discharge of their duty, the said B. F. Omidina & Co., made a proposal to the estate of the late Chief L.A.S. Chukwu to exercise an option to buy the property at the rate of N5,791,747 (Five Million Seven Hundred and Ninety One Thousand, Seven Hundred and Forty Seven Naira), which represented the outstanding balance of the unliquidated loan sum. The 1st & 2nd respondents further stated that the said proposal was made to the first wife of the said Late Chief L.A.S. Chukwu, his first son (the 1st appellant herein) and the second wife of the deceased, who is the 1st respondent herein.

The 1st respondent stated that all other  persons to whom the proposal was made, rejected the same except her. She stated that she did not only accept the offer but made the payment promptly as proposed and agreed by the parties. Furthermore, it was the case of the 1st & 2nd respondents that the money paid for the purchase of the property was sourced from the 2nd respondent, who also charged N500,000.00 monthly interest thereon from the 1st respondent. The 1st respondent stated that a month after the payment was made and acknowledged by the 3rd respondent, the title deed to the said property was not released to her by the 3rd respondent, despite all efforts exerted and mounted by her. Thus, this suit was brought to compel the 3rd respondent to fulfill the agreement it had with the 1st respondent, by executing a proper and valid transfer agreement in favour of the 1st respondent; compel the 3rd respondent to release the title document to the 1st respondent, and claim for damages against the 3rd respondent for failing to release the title deeds in respect of the property to her.

During the course of proceedings in the case, the Appellants applied and were joined as defendants by the order of the High Court. Consequently, they filed their statement of defence and counter claimed. The appellants' case was that the property belonged to the 2nd appellant and not personal estate of Late Chief L.A.S. Chukwu. They stated that the property was mortgaged for a loan and the loan having been over-paid, they requested for the reimbursement of the over paid sum of N1,500,000.00 (One Million, Five Hundred Thousand Naira), deed of release in respect of the mortgage agreement and return of the title documents to the 2nd appellant, which is the rightful owner of the property. The appellants stated and led evidence to establish that the 1st respondent who paid off the remainder of the loan sum, is not a member of the 2nd appellant's company nor a director, and she was also not authorized to discharge the debt of the 2nd appellant's with the 3rd respondent. Thus, the appellants regarded the payment made by the 1st respondent as gratuitous and also dissociated themselves from the transaction between the 1st & 2nd respondents and 3rd respondent. Therefore, the appellants contended and led evidence in a bid to establish that the 1st & 2nd respondents have no right whatsoever to the property and the 3rd respondent lacked the power to transfer any interest in the property to any other person other than the 2nd appellant, especially on the fact that the mortgage on the property was not foreclosed.

The 3rd respondent on its own part entered its defence against the 1st & 2nd respondents' suit but did not contest the appellants' counter claim. The 3rd respondent's defence against the 1st & 2nd respondents claim was that the law firm of B. F. Omidina & Co. which allegedly entered into "OPTION TO BUY" agreement with the 1st respondent was merely appointed as a debt collector and nothing more. The 3rd respondent stated and/or was consistent in stating that, they did not authorize the law firm or any other person or organization to sell the property. This is more so when the appellants already made payment of the sum of N1,500,000.00 in a bid to defray the outstanding loan sum, coupled with their pleas for waiver of interest and considerations being given thereto. The 3rd respondent also stated that the mortgage on the property was not foreclosed and in that circumstance, there could not have been authorization for it to be sold by them. And in the event, that the property is to be sold, the sale would have been by public auction and not by private arrangement/treaty. With regard to the payment made by the 1st respondent, the 3rd respondent stated that the payment was made into the account of the 2nd appellant in the normal course of business transaction and there was nothing attached to the payment to suggest that it was made by another person or party for a different purpose. In addition, the 3rd respondent stated that the mandate given to the Law Firm of B. F. Omidina & Co. to recover outstanding debts from its debtors was for three months and the stated period had already elapsed when the law firm allegedly entered into the option to buy agreement with the 1st respondent. Finally, the 3rd respondent contended that there was no documentary evidence adduced by the 1st respondent to establish the fact that the property was transferred or sold to her, and that the option to buy agreement contained no clause transferring interest in the property to the 1st respondent. Thus, the 3rd respondent stated that the proper party entitled to be given the title document is the 2nd appellant and no one else.

The trial Court found majorly in favour of the 1st & 2nd respondents and entered judgment in their favour. The Court also entered judgment partially in favour of the monetary claim in the counter-claim of the appellants. The appellants were thoroughly dissatisfied with the decision of the High Court and thereby appealed against same to the Court of Appeal.

ISSUES:
The Court determined the appeal on a sole issues, thus:
"Whether the lower Court in granting the claims of the 1st and 2nd respondents, was right and the decision being sustainable, having regard to the lower Court's evaluation of the evidence adduced in relation to the pleadings. (Put differently, whether the 1st & 2nd respondents proved their case and were thus entitled to a favourable judgment)."

DECISION/HELD:
On the whole, the Court found the appeal to be meritorious and it was accordingly allowed. Consequently, the part of the judgment of the Imo State High Court in favour of the 1st & 2nd respondents, wherein the High Court validated the sale of the Property by the Law Firm to the 1st respondent and the consequential orders in respect thereof were set aside by the Court of Appeal and thus the claims of the 1st and 2nd respondents were thereby dismissed.

In its place, judgment was thereby entered for the appellants in terms of their counter-claim. In specific terms, judgment is entered in favour of the appellants in the following terms.
"1. It is hereby declared that the 2nd appellant's indebtedness to the 3rd respondent has been settled and the legal mortgage executed between the parties is accordingly discharged.
2. The 3rd respondent is hereby ordered to release the title documents of Plot 178, Housing Area E, New Owerri (the mortgaged property) to the 2nd appellant for onward transmission to the Estate of Late Chief L.A.S. Chukwu.
3. The 3rd respondent is hereby ordered to refund to the 2nd appellant the sum of N1.5 Million Naira being excess money which was paid by the 2nd appellant and the receipt duly acknowledged by the 3rd respondent bank.
???Costs in the sum of N50,000.00 was awarded against the 1st & 2nd respondents and in favour of the appellants."


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