Bank wins 29-year Lagos property dispute

By Robert Egbe

AN IKEJA High Court has dismissed a 29-year-old Lagos property dispute brought against Union Bank Plc and two others by the family of the late Alhaji Kazeem Akanbi Ajibola.

Justice Doris Okuwobi held that the late Ajibola and four of his children who inherited the suit by substitution following his death, failed to prove that the bank did not legitimately acquire the property.

The judge, in a November 18 judgment, also dismissed the claimants’ allegation that the defendants conspired to acquire the property through Mr. J. T Bamkefa and Mr. Gerald O. Duru.

The first to fourth plaintiffs in the suit are: Miss Biodun Ajibola, Dr Rukayat Ajibola, Hakeem Ajibola and Kabiru Ajibola, suing on behalf of themselves and other members of the late Alhaji Kazeem Ajibola’s family.

The first to third defendants are: Union Bank, Mr. J. T. Bamkefa and G. O. Duru.

In the suit filed by the late Ajibola on September 27, 1990, the plaintiffs challenged Union Bank’s authority to sell a property located at No 26, Sopeju Street, Shogunle, Ikeja, Lagos to the third defendant.

The late Ajibola used the property as security for a loan from the bank on June 20, 1973.

Following his default in repayment and based on an agreement between Ajibola and Union Bank, the property was sold to Duru in an open auction sale in order for the bank to recover its money.

But, dissatisfied with the sale, the late Ajibola instituted the suit at the Ikeja High Court and after his death in the course of litigation, the plaintiffs inherited the suit by substitution.

The suit was first dismissed on technical grounds on March 20, 1996, but after a counsel ‘revived it in error’, it was dismissed again on September 17 2004.

The plaintiffs appealed the second dismissal, following which the Court of Appeal, Lagos Division, in a November 2016 judgement, ordered that the case be re-heard on its merits.

The case began de novo with Mr Patrick Mbanefoh Odozi defending the the case for the 1st and the second defendants.

In the course of the trial, the third Claimant, Hakeem Ajibola finished secondary school, attended university, went to the Nigerian Law School and joined the claimants’ team of counsel.

The claimants’ March 24, 1997 amended statement of claim sought a declaration that the legal mortgage of June 1973 does not confer a power of sale of the property in dispute on Union Bank and the sale to Duru through Bamkefa, was illegal.

They also sought an order directing Union Bank to surrender to them the title deeds to the property which was deposited with the bank by the mortgagor (the late Ajibola) in 1973.

But the defendants challenged the claims.

1. M. Odozi Esq., for Union bank Plc, contended that the claims were “speculative, frivolous and groundless. They are an abuse of process of court. The case of the plaintiffs should be dismissed with substantial costs.”

The lawyer submitted, among others, that the power of sale was properly exercised and the sale “cannot be defeated, vitiated or impeached in the circumstances.”

The 3rd defendant counter claimed for several reliefs, including N5million as compensatory damages for trespass and forcible dispossession of Duru from the property by the plaintiffs.

In the alternative, he also sought a refund and repayment to the third defendant the sum of N200,000 being the purchase price of the property, plus interest at 23 percent per annum effective from August 1990 until judgment date.

In her judgment, Justice Okuwobi addressed the plaintiffs’ claim of fraud.

The judge held: “The issue of collusion, conspiracy and fraud do not form part of the pleaded case of the claimants in their amended statement of claim. The allusion to such serious criminal offences cannot but be pleaded with particulars of the fraud given….I therefore find it of no moment the allegation of collusion, conspiracy and fraud made against the second and third defendants…”

The court also held that the mortgage legally conferred Union Bank with power to sell the property through Bamkefa to Duru.

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“The first defendant is entitled to keep the mortgage property as the mortgage was not discharged…” the judge held.

On the claim for perpetual injunction restraining the first defendant from selling the mortgaged property, the court upheld P. M.  Odozi’s argument in its entirety, that in order to stop the mortgagee’s power of sale of a mortgaged property, the amount owed must be paid in full.

Justice Okuwobi held: “The perpetual injunction now sought by the claimants when the loan was not fully paid by the claimants’ father…makes it impossible for this court to grant an injunction.

“On the whole, I find all claims of the claimant in this suit unproven, they fail and are hereby dismissed accordingly.”

The court also upheld Duru’s counter claim that he is the person entitled to the Right of Occupancy to the property.

The judge relied on, among others, the evidence of a defence witness (DW1) who watched the auction in which the property was bought by Duru.

Justice Okuwobi said: “’DW1’ was at the auction, he saw people bidding until when the auctioneer’s bell came down on the asking price of N200,000 which was made by the third defendant. He saw two auction notices and he signed the auctioneer’s register. He saw the third defendant give the auctioneer an Eko Bank cheque in the sum of of N100,000 being deposit on the sale of the house…”

“I find this proven. He (Duru) is entitled to the declaration sought.”

The judge, however, declined to grant the defendants N5m damages as compensation for trespass and forcible dispossession for want of evidence that the defendant ever took possession of the property.