AFRICAN CONTINENTAL BANK LTD. & ORS V. SIMON U.
IHEKWOABA & ORS
(2003) LPELR-203(SC)
In The Supreme Court of Nigeria
On
Friday, the 20th day of June, 2003
SC.114/1999
Before Their Lordships
MUHAMMADU
LAWAL UWAIS Justice of The Supreme Court of Nigeria
MICHAEL
EKUNDAYO OGUNDARE Justice of The Supreme Court of Nigeria
UTHMAN
MOHAMMED Justice of The Supreme Court of Nigeria
ANTHONY
IKECHUKWU IGUH Justice of The Supreme Court of Nigeria
DAHIRU
MUSDAPHER Justice of The Supreme Court of Nigeria
Between
AFRICAN
CONTINENTAL BANK LTD. - Appellant(s)
AND
SIMON U.
IHEKWOABA - Respondent(s)
Other Citations
A.C.B.
Ltd. v. Ihekwoaba [2003] 16 NWLR (Pt.846)249; (2003) 6 S.C (Pt.II)1; (2003) 6
S.C (Pt.II)1
Summary
By a writ
of summons issued in suit No. HOW1243/87 in 1987 in the High Court of Imo
State, the plaintiffs who are now respondents before us sued the 1st and 2nd
defendants claiming various orders and a declaration. In the course of the
proceedings, plaintiffs sought and obtained an order of court joining the 3rd,
4th and 5th defendants. Pleadings were ordered, filed and exchanged and with
leave of court, amended. By paragraph 27 of their amended statement of claim,
the plaintiffs finally claimed: "(1) An order setting aside the purported
sale, on 3rd June, 1987, by 1st and 2nd defendants to 3rd defendant of the
property of the plaintiffs situatet at No.5, Christ Church Close, Owerri
covered by deed of mortgage dated 21st December, 1982 and registered as No.55
at page 55 in volume 289 in the Lands Registry at Owerri, Imo State. (2) A
declaration that the purported statutory Certificate of Occupancy dated 1st
December, 1987 granted by 4th defendant to the 3rd defendant was void
irregularly issued and accordingly void. (3) N650,000.00 (Six hundred and fifty
thousand Naira) damages for wrongful and fraudulent exercise of power of sale
by the 1st defendant whereby the plaintiffs were forced to incur legal and
other expenses in connection with the prosecution of this case and in defending
an action instituted by the 3rd defendant against the plaintiffs in suit
HOW/118/88. (4) An order of injunction restraining the 1st and 2nd defendants,
their servants or agents from selling the said property and the 3rd defendant from
taking possession thereof otherwise than through proper exercise of power of
sale." Meanwhile, in suit No. HOW /118/1988, the plaintiff (Chukwumaeze
Anele) sued the African Continental Bank Ltd., that is, the 1st defendant in
HOW/243/87, the 2 plaintiffs in that suit (that is, Simon Ihekwoaba and Mrs.
Caroline Ihekwoaba) and 8 other persons all as defendants claiming: "1.
Declaration that by virtue of auction sale dated 3/6/87 at Owerri, the
plaintiff is entitled to the STATUTORY CERTIFICATE OF OCCUPANCY dated 1/12/87
and registered as 82/82/179, Owerri in respect of the property with premises
lying and situated at No.5 Christ Church Close, Owerri within jurisdiction with
an annual value of N10.00 (Ten Naira). 2. Possession of the said property with
premises lying and situated at No.5 Christ Church Close, Owerri. 3. Order of
the court for the 4th to 11th defendants to pay rent of N150.00 (One hundred
and fifty Naira) per month or whatever monthly rent they paid previously to
their former landlord to the plaintiff with effect from 3/6/87 or in the
alternative, pay same to court until the substantive suit is finally
determined. 4. Order of the court for 2nd or 3rd defendant or both to pay over
to the plaintiff such rent, if any received from any of 4th to 11th defendants
as from the said 3/6/87 or pay same into court until the substantive suit is
finally determined. 5. Failing 1,2,3 and 4 above, an order of the court for the
1st defendant to return the whole of the purchase money to the plaintiff with
special and general damages assessed at N100,000.00 (One hundred thousand
Naira)." By a motion brought by the 2nd and 3rd defendants in suit No.
HOW/118/88 who are plaintiffs in suit HOW/243/87 leave of court was sought, and
obtained, to join the 3rd defendant in suit No. HOW/243/87, that is, Chief
Okaka Mbadugha as a co-defendant in suit No. HOW/118/88. Pleadings were also
filed and exchanged in this suit. On the application of learned counsel for the
plaintiffs in suit No. HOW/243/87 who are 2nd and 3rd defendants in suit No.
HOW/118/88, the two actions were consolidated for hearing by order of court. By
the same order the plaintiff in suit No. HOW/118/88 became the plaintiff in the
consolidated suit while the defendants in that action, that is, HOW/118/8B
remained defendants in the consolidated suit. The 4th and 5th defendants in
suit No. HOW/243/87 remained defendants in the consolidated suits. At the trial
of the consolidated suit, evidence was led on both sides in support of the
facts pleaded by each party. At the conclusion of trial and after addresses by
learned counsel for the parties, the learned trial Judge in a considered
judgment ,adjudged as follows: "1. It is hereby declared that by virtue of
the auction sale conducted on 3rd June, 1987, the statutory Certificate of
Occupancy issued in favour of the plaintiff and registered as No. 82 at page 82
in volume 179 of the Lands Registry, Owerri in respect of the property with the
premises situated and lying at No.5 Christ Church Close, Owerri, lmo State was
validly issued and registered. 2. It is hereby ordered that the plaintiff is
entitled to immediate possession of the property together with all
appurtenances situated and lying at No.5 Christ Church Close, Owerri, Imo State
formerly registered as No. 42/42/678 but now registered as No. 82/82/179 at the
Lands Registry Owerri, Imo State. 3. The claim by the plaintiff against the 1st
defendant for return of the whole purchase money to the plaintiff is hereby
dismissed. 4. The claim by the plaintiff against the 1st defendant for special
and general damages is also dismissed. 5. All the reliefs claimed of (sic) the
2nd and 3rd defendants in suit No. HOW /243/87 are hereby dismissed." The
2nd and 3rd defendants in the consolidated suit who were plaintiffs in HOW/243/87
were naturally displeased with the judgment of the trial court and appealed to
the Court of Appeal which latter court by majority decision, (Uwaifo and
Katsina-Alu JJ.C.A, as they were then; Nsofor JCA dissenting) allowed the
appeal, set aside the judgment of the trial High Court and adjudged as
hereunder: "1. An order setting aside the sale on 3rd June, 1987 of the
property at No.5 Christ Church Close, Owerri subject matter of a deed of
mortgage registered as No. 55 at page 55 in volume 289 in the Lands Registry in
the office at Owerri having been conducted on an irregular auction and the sale
is accordingly invalid, null and void. 2. A declaration that the statutory
Certificate of Occupancy No. 82 at page 82 in volume 179 in the Lands Registry
in the office at Owerri issued in favour of the 3rd respondent by the 4th
respondent on December 1, 1987 was irregularly issued and without foundation,
and accordingly invalid, null and void." The 1st and 2nd defendants in
suit No. HOW/243/87 appealed to this court against the said judgment with leave
of this court.
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