Co-operative & Commerce Bank Plc & Anor. V. Jonah Dan Okoro Ekperi (2007)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the judgment of the court of Appeal holden at Port Harcourt in appeal no CA/PH/42/97 delivered on the 26th day of April, 2001 in which it set aside the decision of the High Court of Imo State holden at Aba in suit no. A/413/89 delivered on 17th December, 1990.

On the 9th day of October, 1989, the respondent as plaintiff instituted an action against the appellants, as defendants at the Aba Judicial Division of the High Court of Imo State in which he claimed the following reliefs:-

1. A declaration that the plaintif did not mortgage his property known as and called plot 9 in block 25 Aba or 180 Jubilee Road, Aba in respect of the overdraft facility of N20,000.00 granted him by the first defendant.
2. A declaration that the first defendant fraudulently falsified current account no. 253 maintained by the plaintiff at the Aba main branch to the detriment of the plaintiff.
3. A declaration that the purported sale or auction of the plaintiff’s house and property situate at Aba and known as plot 9 in block 25 or No. 180 Jubilee Road, Aba by the first defendant to the second defendant was fraudulent, collusive, in bad faith, is improper, illegal, null and void and of no effect whatsoever.
4. An order of court setting aside the purported sale or auction of the plaintiff property known as and called Plot 9 in block 25 or No. 180 Jubilee Road, Aba.
5. An order that the first defendant do release forthwith the property leased in respect of plot 9 in block 25 or No. 180 Jubilee Road, Aba, deposited by the plaintiff before the Nigerian Civil War with the first defendant for safe keeping.
6. An order of court that the first defendant withdraws forthwith from lands registry Owerri the purported mortgage registered as no.6 at page 6 in volume 257 of the lands registry in the office at Owerri.
7. The sum of N500,000.00 being general damages for embarrassment, mental torture and loss (If business caused the plaintiff by the purported sale or auction of the said plot 9 in block 25 or No. 180 Jubilee Road, Aba by the first defendant to the second defendant.”

There is no disputing the fact that a banker/customer relationship exists between the 1st appellant and the respondent in the course of which the respondent deposited his title deeds in respect of his property at plot 9 in block 25 or No.180 Jubilee Road, Aba with the 1st appellant for safe keeping, before the outbreak of the Nigerian Civil War. The title deed continued to be in the custody of the 1st appellant after the said war. As the banker/customer relationship between the parties continued, 1st appellant, at the request of the respondent granted credit facilities to the respondent on two occasions of N10,000.00 each, making a total credit facility of N20,000.00. This has not been disputed by the parties. There is also no disputing the fact that in the course of that banker/customer relationship, the respondent requested the 1st appellant to open letters of credit on his behalf for which respondent contends he used the title deed as security for the transaction and that 1st appellant duly opened the letters of credit and the transaction was successfully concluded and the charge discharged. The respondent contends that he never used the title deed as security for the credit facility of N20,000.00 and that the said facility was unsecured. He does not deny owing the money but simply contends that his title deed in issue were never mortgaged to the 1st appellant as security for the said facility of N20,000.00 but for the letters of credit which transaction was duly completed and the parties discharged.

The first appellant on the other hand maintains that the mortgage was for the N20,000.00 credit facility as clearly stated in the mortgage deed, exhibit 9 while the respondent countered that he only signed a blank mortgage deed for the 1st appellant in relation to the letters of credit transaction. In any event, the respondent did not repay the credit facility of N20,000.00 despite repeated demands as a result of which the property, subject of the alleged mortgage, was advertised and sold by public auction. It was the 2nd appellant who bought it at the sale resulting in the action by the respondent, which he lost at the High Court. Upon appeal to the Court of Appeal, the decision of the High Court was set aside resulting in the instant appeal to this court.

In the appellants’ brief of argument signed by learned counsel for the appellants, ANN N. MUOMA Esq (MRS) and deemed, filed on 9/7/03 the following issues have been identified for determination:

“(a) Whether there was a valid contract (deed) of mortgage between the respondent as mortgagor and the 1st appellant as mortgagee

(b) Whether the respondent was indebted to the 1st appellant at the time the said mortgage was foreclosed and the mortgage property sold to the 2nd appellant

(c) Whether the allegation of fraud was proved against the 1st appellant by the respondent on the standard of proof stipulated by section 138(1) of the Evidence Act

(d) Whether the 2nd appellant obtained a good title under the mortgage sale by the 1st appellant

(e) Whether the power of sale under the contract or deed of mortgage was validly exercised by the 1st appellant.”

However, in the respondent’s brief of argument filed on 3/4/06 by E.O. ONYEMA Esq of counsel for the respondent, there is a notice of preliminary objection to the competence of the appeal.

The grounds of the said objection are stated as follows:-

“(a) That the sole ground of appeal contained in the notice of appeal initiating the appeal does not arise from or relate to the judgment of the Court of Appeal, which is appealed against.