Chief Davidson Okafor Ikeanyi Vs African Continental Bank. Ltd & Anor (1997)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C. 

This appeal came up for hearing on 18th November, 1996. After reading the record of appeal, the judgment of the courts below, the briefs of arguments filed by the parties to this appeal and hearing the oral arguments of counsel for the parties in amplification of their respective briefs, I found no merit in the appeal and dismissed it. I affirmed the decisions of the courts below and indicated that my reasons for the judgment would be delivered today. I now give and deliver those reasons.

The plaintiff who is the appellant in this court instituted a civil action in the High Court of the former Anambra State holden at Enugu against the defendants/respondents herein in Suit No. E/163/82. His claim against the defendants jointly and severally is for:

“an order of court setting aside the purported sale of his property numbered 37 Afubera Street, Modebe Layout, Onitsha by the 1st defendant to the 2nd defendant on the ground that the said sale was fraudulent, made in an irregular manner and in contempt of the court.”

Pleadings were filed and exchanged. After hearing evidence on the case, the learned trial Judge dismissed the plaintiff’s case whereupon he appealed to the Court of Appeal. Enugu Division. The court below dismissed his appeal. He is dissatisfied with the judgment of the court below and has further appealed to this court.

The facts briefly stated are that in 1977, the plaintiff used his property the subject matter of the suit leading to this appeal to secure a loan granted by the 1st defendant to Messrs. Nobgroup Motors Limited. A deed of legal mortgage was executed between the parties. It provided for a continuing security to cover both an initial advance of N60,000.00 as well as any future or subsequent advances to be made by the 1st defendant to the principal borrower (Nobgroup Motors Limited). When the borrower defaulted in payment, the 1st defendant issued several demand notices to both the borrower and the plaintiff. It eventually advertised the property for sale in the Daily Star issue of 14:10:80 and the Weekly Star issue of 27:9:81. The 1st defendant sold the property by public auction on 28:9:81. The property was sold and conveyed to the 2nd defendant by a deed of assignment (Exhibit “F”). The plaintiff thereupon instituted the action on the grounds stated above.

In the court of trial and at the address stage, learned counsel for the plaintiff Mr. Ifebunandu, abandoned the issue of fraud and the purported sale of the property in contempt of court. Counsel stated that he was relying on the issue of irregular sale only and the learned trial Judge considered this allegation alone in his judgment.

This court on 3:3:93 granted the plaintiff leave to appeal out of time and to raise a point of law not raised in the court of first instance and the court below. Three grounds of appeal were filed by the plaintiff numbered “A” to “C”. From the three grounds of appeal, four issues were formulated by the plaintiff as arising for determination in this appeal.

At the hearing of the appeal, learned plaintiff/appellant’s counsel informed the court that he had abandoned the arguments in respect of issue numbers three and four. Those issues were covered by grounds “B” and “c” of the grounds of appeal. The court struck out issue numbers three and four together with arguments based on them.

The court was left with issue numbers one and two which read.

“(i) Were the learned justices of the Court of Appeal right in not seeing any irregularity in the sale of the plaintiff/appellant’s property in the face of the finding by the learned trial Judge about shortness of time advertised for the sale without considering the case of Chief Oseni v. A.I.I.C. Ltd. (1985) 3 NWLR (Pt.11 ) 229 which is binding on them

(ii) Is the consideration of sections 19 and 20 of Anambra State Auctioneers Law Cap. 12 Laws of Anambra State not justified by the guidelines enunciated by the Supreme Court in Fadiora v. Gbadebo (1978) 1 L.R.N. 97 at 108

Ground “A” of the grounds of appeal from which the above two issues are formulated without its particulars reads:

“A. Error in Law:- The learned justices of the Court of Appeal erred in law when they held as follows:-