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  • Songhai Limited vs. United Bank for Africa
  • 189
  • 2004-01-12
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Songhai Limited vs. United Bank for Africa

SONGHAI LIMITED

V

UNITED BANK FOR AFRICA

HASSAN ABDRULRAHMAN ESQ

TEUTON INDUSTRIES NIGERIA LIMITED

HON. ATTORNEY GENERAL KADUNA STATE

THE GOVERNOR KADUNA STATE

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided )

MAHMUD MOHAMMED, JCA ( Read the Lead Judgment )

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

CA/K/152/2001

THURSDAY, 11TH JULY, 2002

APPEAL - Findings of fact by trial court on credibility of witnesses Attitude of appellate court thereto

COURT - Findings of fact by trial court on credibility of witnesses Attitude of appellate court thereto

EVIDENCE - Burden of proof - When defendant may rely on weakness of plaintiff’s case

EVIDENCE - Proof - Burden of proof - Burden thereupon to prove When shifts

EVIDENCE - Proof - Declaratory reliefs - Need to prove - Whether can be granted on admission or default of pleadings

EVIDENCE - Proof - Facts pleaded but not proved by the opposing party - Whether a party is bound to disprove same

EVIDENCE - Witnesses - Credibility of witnesses - Attitude of appellate court to findings of trial court thereon

LAND LAW - Trespass - Action in trespass - In whose favour it will succeed

LAND LAW - Trespass - Definition of

MORTGAGE - Mortgage debt - How discharged

MORTGAGE - What amounts to

PRACTICE AND PROCEDURE - Defendant - When may rely on weakness of plaintiff’s case

Issues:

1.             Whether or not the appellant proved by its evidence that it was not indebted to the 1st respondent.

2.             Whether or not section 149(d) of the Evidence Act and the case of Saraki vs. Societe General Bank is applicable in the instant case.

3.             Whether or not the honourable Judge erred when he held that “I think the 3rd defendant’s counter-claim succeeds”.

4.             Whether or not the sale and the sum awarded for trespass was valid.

5.             Whether or not the honourable Judge erred by not considering the alternative relief of the appellant.

Facts:

The appellant was a customer of the 1st respondent bank at its Kaduna North Branch. In the course of the relationship between the appellant and the 1st respondent, the appellant obtained a loan from the 1st respondent bank and secured that loan by mortgage and debenture deeds executed on some named properties of the appellant including No. 8 Degel Road, GRA, Kaduna. In order to recover the outstanding loan, the 1st respondent exercised its power under the relevant provisions of the mortgage and debenture deeds and appointed the 2nd respondent receiver and manager over the assets of the appellant in order to facilitate the recovery of the loan. In the exercise of his power as receiver and manager, the 2nd respondent sold the appellant’s property at No. 8 Degel Road, GRA, Kaduna to the 3rd respondent for the sum of N5,000,000.00 which the 3rd respondent duly paid before proceeding to perfect its title with the 4th and 5th respondents. The appellant which was not happy with the steps taken by the 1st respondent against it towards the recovery of the outstanding loan, filed this action at the lower court against all the 5 respondents basing its claim principally on the fact that it was not indebted to the 1st respondent at all; as such the sale of its property by the 2nd respondent to the 3rd respondent was illegal, null and void. The 3 rd respondent counter-claimed against the appellant. At the conclusion of the hearing in the case, the learned trial Judge dismissed the appellant’s claim in its entirety but granted the counter-claims of the 3rd respondent against the appellant. The appellant was not happy with the judgment of the trial court against it, hence this appeal.