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  • Majekodunmi vs. A.I.B. Ltd
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  • 2005-04-11
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Majekodunmi vs. A.I.B. Ltd

MR. ADEMOLA MAJEKODUNMI

MRS. BOLA MAJEKODUNMI

V

AFRICAN INT. BANK LTD.

COURT OF APPEAL

( LAGOS DIVISION )

DALHATU ADAMU JCA ( Presided )

PIUS OLAYIWOLA ADEREMI JCA (Read the Lead Judgment)

MUSA DATTIJO MUHAMMAD JCA

 CA/L/117/99

THURSDAY 13TH, MAY, 2004

ACTION - Guaranteed debt - Action for recovery of - Whether principal debtor a necessary party to - Effect of non-joinder of

ACTION - Parties - Reason a person is joined to a suit

CONTRACT - Guarantor of a debt - Liability of - When arises

COURT - Abuse of court process - Meaning of

DEBT RECOVERY - Guaranteed debt - Action for recovery of - Whether principal debtor a necessary party to - Effect of non-joinder of 

DEBT RECOVERY - Guarantor - Liability of - When arises

FAIR HEARING - Provisions for in the constitution - Construction of Non-negotiability of strict compliance to

JURISDICTION - Lack of - Cases conducted without jurisdiction Effect of


MORTGAGES - Charge - Mortgagee thereunder - Rights of in the charged property

MORTGAGES - Deposit of title deeds simpliciter without written documentation or oral words - Type of right thereby created

MORTGAGES - Equitable charge - Sale of property thereunder - Place of Governor’s consent in the transaction

MORTGAGES - Equitable mortgagor who wishes to redeem mortgaged property - Obligations of

MORTGAGES - Mortgagor - Rights available to

PRACTICE AND PROCEDURE - Joinder of parties - Reasons a person may be joined to a suit

WORDS AND PHRASES - ‘Abuse of court process’ - Meaning of

Issues:

1.              Whether in the circumstances of the case before the trial court and given the pleadings and the evidence adduced the non-joinder of Ile-Oluji Cocoa Products Company Limited was fatal to the hearing of the claim before the court.

2.              Whether in the circumstances of this case, the evidence led before the trial court sustained the judgment given by the court.

3.              Whether without prejudice to the preliminary objection herein and/or in the alternative to the said preliminary objection, the proceedings before the trial court constituted an abuse of process of court and whether the suit was caught by the doctrine of estoppel per rem judicata.

4.              Whether considering the totality of the proceedings before the trial court, the appellants were afforded a fair hearing.

5.              Whether a judgment creditor enforcing a court ordered power of sale contained in an equitable mortgage is required to file a motion for leave to attach the immovable property, subjectmatter of the equitable mortgage, before executing the judgment of the court and whether the failure to obtain the Governor’s consent vitiates the sale transaction.

Facts:

The plaintiff/respondent had advanced a loan to a third party, IleOluji Products Company Limited, which loan was guaranteed by the defendants/appellants. The appellants deposited the deeds in respect of property at No. 36A and 36B, Mainland Way, Dolphin Estate, Ikoyi - Lagos.

The plaintiff/respondent instituting the action in the court below sought the following reliefs:

1. The sum of N13,719,346.45 (thirteen million seven hundred and nineteen thousand three hundred and forty six naira fortyfive kobo) being the sum owed to the plaintiff by IIe-Oluji Cocoa Products Company Limited as at 29th December, 1995 on a loan facility of N6,000,000 (six million naira) granted by the plaintiff to the Ile-Oluji Cocoa Products Company Limited on 28th May, 1992 at its request in the plaintiff’s ordinary course of business as a banker, and which sum Ile-Oluji Cocoa Products Company Limited has failed, refused and/or neglected to repay despite repeated demands and the repayment of which the defendants guaranteed by way of a deposit of Title Deeds to 36A and 36B, Mainland Way, Dolphin Estate, Ikoyi, Lagos.

(2)           Interest on the said sum of N13,719,346.45k (thirteen million seven hundred and nineteen thousand three hundred and fortysix naira forty-five kobo) at the rate of 21% per annum from 30 th December, 1995 until the satisfaction of any judgment

which may be entered herein

AND/OR

(3)           An order of sale of:

(a)           The property lying and situate at 36A Mainland Way Dolphin Estate, Ikoyi, Lagos, more particularly contained in the Deed of Sub-Lease dated 23rd July, 1992  and registered as No. 96 at page 96 in Volume 1931  at the Lands Registry, Lagos and

(b)           Plot 36B Mainland Way, Dolphin Estate, Ikoyi, Lagos more particularly contained in the Deed of Sub-Lease dated 22nd July, 1992 and registered as No. 94, at Page 94  in Volume 1931 at the Lands Registry, Lagos.

Pleadings were filed and exchanged between the parties. The defendant/appellant after entering a conditional appearance brought an application dated 15th October, 1998 seeking an order dismissing the plaintiff’s claim in its entirety on the grounds that the suit is an abuse of court process and is caught by the doctrine of estoppel per rem judicata and/or issue estoppel and all other known heads of estoppel.

After hearing arguments of counsel on both sides, the learned trial Judge in a reserved ruling delivered on 15th January, 1999 dismissed the application as lacking in merit.

Dissatisfied with the ruling, the defendant/appellant lodged an appeal against it and brought another application filed and dated 10th February, 1999 , seeking an order of the court to join as co-defendants, Ile-Oluji Cocoa Products Company Limited. Arguments of counsel on both sides were heard by the trial Judge who in a ruling delivered on 26th February, 1999, refused the application. Again dissatisfied with this ruling, the appellant appealed to the Court of Appeal. The appeals were consolidated and an amended notice of appeal encompassing all the grounds of appeal contained in the three original notices of appeal earlier filed, was filed on the 3rd of June, 2002.