Prince Abdul Rasheed A. Adetono & Anor. V4. Zenith International Bank Plc (2011)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

This interlocutory appeal is from the decision of the Court of Appeal Ibadan (i.e. lower court) which dismissed the appeal of the appellants against the decision of the trial court (i.e. Ota High Court) in this matter essentially on the ground of want of locus standi to maintain the action and the lack of the State High Court’s jurisdiction to entertain the matter as per Section 251(1)(e) of the 1999 Constitution as amended.

The instant appellants are the appellants in the lower court, being dissatisfied with the decision of the lower court they have by a Notice of Appeal filed on 11/4/2002 raised two grounds of appeal against the lower court’s decision. Parties have filed and exchanged their respective briefs of argument in accordance with the rules of this court.

The appellants in their brief of argument filed on 5/7/2007 have in it identified a sole issue for determination as follows:

“Whether the respondent has the locus standi to main an action in trespass against the appellants.”

The respondent is also the respondent in the lower court. In its respondent’s brief of argument filed on 8/4/2008, it has also raised for determination one issue as follows:

“Whether the respondents, the legal mortgagee of the subject-matter of this appeal has sufficient right and/or interest to maintain an action against the appellants for acts of trespass to the said property.”

The facts and circumstances central to the transaction in this matter are not disputed. Upon a credit facility granted by the 2nd appellant to Henley Industries Limited as security for the said credit facility, a Deed of Legal Mortgage has been executed in favour of the 2nd appellant over its property situated at Plot C.21/6 Agbara Estate, Ogun State. This arrangement covers the mortgagor’s plants and machinery affixed thereto.

The respondent, a banker has also granted credit facility to Henley Industries Limited which has been secured by a tripartite Mortgage Debenture over the property of John Edge & Co. Limited also situated at the Eastern Part of Plot C.21/6 Agbara Estate, Ogun State and particularly adjacent to the land over which the aforesaid legal Mortgage has been created in favour of the 2nd appellant. Henley Industries Limited on failing to repay the loan arising from the said credit facility granted to it, the 2nd appellant in accordance with its right pursuant to the aforesaid Deed of Legal Mortgage moved in and appointed the 1st Appellant as its Receiver over the mortgaged property. The 1st appellant has in the result taken actual possession of the property covered under the said Deed of Legal Mortgage.

It is the respondent’s case that the 1st appellant severally and unlawfully has encroached into the land and property that secured the loan granted under the mortgage Debenture to the respondent.

Consequently the respondent in the instant claim as plaintiff has sought the following reliefs in brevi manu.

1. An order of perpetual injunction.
2. An order for Account
3. Damages in Trespass.

It is on these facts that the parties herein have predicated their respective arguments in this appeal. It is to be noted that the crucial question in the preliminary objection contending that the trial court lacks the jurisdiction under Section 251(1) (e) of the 1999 Constitution as amended to entertain the instant case has been dropped in the appeal now before this court. The only issue now before this court revolves on the sole question of the locus standi of the plaintiff/respondent to maintain this action for trespass when as alleged by the defendants/appellants it is not in exclusive possession of the mortgaged property.

The appellants have argued that in the circumstances the court must have regard to the reliefs as claimed as per the writ of summons and the statement of claim in considering the plaintiff’s locus standi to sue in this matter; and particularly so in an action for trespass where the person suing must be in exclusive possession or have a right to immediate possession.

For so contending they rely on Amakar v. Obiefuna (1974) ANLR 109 per Fatai-William JSC (as he then was) and Olagbemiro v. Ajagungbade III (1990) 3 NWLR (Pt.136) 37 AT 55 PER Bello C.J.N. They also contend that by the finding of the trial court not otherwise challenged by the respondent that the person in possession at the time of the alleged trespass is not the mortgagee, upon which ground they have submitted that the interest of the mortgagee in the property qua mortgagee cannot suffice to give such a respondent the locus standi to sue for trespass when in actual fact he is not in exclusive possession of the mortgaged property. They also have even then alleged that the respondent’s interest as a mortgagee vis-a-vis the mortgaged property being a contingent right has not ripened as to constitute a vested interest to enable and so entitle the respondent to sue. They refer to the case of Wilson v. Oshin (2000) 9 NWLR (Pt.672) 442 at 461 in expatiation of the contingent state of the mortgagee’s (i.e. the respondent) interest at the time of the trespass. In the premises, they have urged the court to allow the appeal.