3PLR – BANK OF THE NORTH LIMITED V. ALHAJI A. A. ADEHI

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BANK OF THE NORTH LIMITED

V.

ALHAJI A. A. ADEHI

IN THE COURT OF APPEAL

[ABUJA DIVISION]

3PLR/2001/78  (CA)

 

OTHER CITATIONS

 

BEFORE THEIR LORDSHIPS:

DAHIRU MUSDAPHER, JCA (Presided)

ZAINAB ADAMU BULKACHUWA, JCA (Delivered the leading judgment)

ALBERT GBADEBO ODUYEMI, JCA

 

MAIN ISSUES

BANKING AND FINANCE – Right of lien over a property – whether a bank can claim same over a property for which it had given no consideration.

PRACTICE AND PROCEDURE – DAMAGES – Damages for libel – whether the trial court was right to have awarded damages for libel after rejecting the evidence of the plaintiff as deficient or unsatisfactory.

PRACTICE AND PROCEDURE – EVIDENCE – Allegation of fraud – standard of proof required where fraud is raised – whether trial court was right to hold that the withholding of the Certificate of Occupancy No. 304 by the appellant in this case was fraudulent.

TORT AND PERSONAL INJURY – Defamation – libel – duty of a plaintiff in a libel action to show that the publication complained of on the understanding of an ordinary person defamed him.

PRACTICE AND PROCEDURE – Non-payment of filing fees – whether renders a counter-claim incompetent or merely irregular – whether trial Judge was right to have dismissed the counter-claim on grounds of non-payment of filing fees without any evidence in support.

PRACTICE AND PROCEDURE – Counter-claim – where allegations contained in same is admitted by a party without filing a defence to the counter-claim – effect of.

 

MAIN JUDGMENT

ZAINAB ADAMU BULKACHUWA, JCA (Delivered the following judgment):

 

By a writ of summons dated the 11th day of September, 1996 the respondent as plaintiff initiated an action against the appellant and three others namely (1) Agricultural Credit Guarantee Scheme Fund; (2) Bank of the North Limited; (3) Mr. V. Uhiere; O. R. T. Briscoe Nigeria Limited, before the Idah High Court, Kogi State whereby he was claiming the following reliefs jointly and severally;

1. A declaration that the plaintiff is no longer indebted to the 2nd defendant since the defendants recommended and bought dilapidated and unserviceable John Deere Tractors for him and which tractors have failed woefully on the farm.
2. A declaration that the purported deed of legal mortgage dated the 19th day of January, 1984 in respect of the plaintiff’s plot situate at Central Motor Park, Ayangba covered by certificate of occupancy is illegal, null and void since it was obtained by deceit and fraud.
3. That in view of 1 and 2 above, the plaintiff is entitled to the following reliefs:

(a)     That the 2nd defendant has no right to sell the plaintiffs plot at the Central Motor Park, Ayangba as contained in the publication “Notice of Sale of Immovable Property”.

 

In Nigeria Voice – September 3rd, 1986 page 13 since the said publication is illegal, null and void.

(b)     A return of the plaintiff’s certificate of occupancy No. 304 of 17th April, 1979 since the 2nd defendant has failed to give the additional facility of N55,000.00 (fifty –five thousand naira) offered for its retention by the letter No. AWK/CHA/CAA/84 of 5th January 1984 which read thus:

“We shall be grateful if you could please obtain a letter of consent to mortgage certificate of occupancy No. 304 from Dekina Local Government to enable us draw up a deed of legal mortgage for consideration of N55,000.00 on the development of the plot”.

(c)     A return of the plaintiff’s certificate of occupancy No. DWD/52/74 in respect of the plaintiff’s plot at Oganaji.

(d)     an injunction restraining the 2nd defendant and or any of its agents from selling any of the plaintiff’s property until the determination of this suit.

 

4. That the plaintiff further claims the sum of N44,038.00 (forty-four thousand and thirty eight naira) made up as follows:

 

(a)     Special Damages of N24,038.00 (twenty four thousand and thirty and thirty-eighty naira).

 

(b)     General damages of N20,000.00 (twenty thousand naira) for the embarrassment, defamation of character and shock which the plaintiff suffered as a result of the defendant’s action.

 

Pleadings in the matter were duly filed and exchanged and the matter proceeded to trial.

 

The respondent’s case before the trial court is to the effect that in 1978 as a farmer he applied under the Agricultural Credit Guarantee Scheme Fund, for an Agricultural Loan through the Bank of the North (the 2nd defendant) which was approved and he was granted a loan of N50,000.00 (fifty thousand naira) under the scheme which was to be utilized for the purchase of one M.F. tractor and one B.D. tractor with other farming implements. The respondent in securing the loan used his certificate of occupancy No. DW/52/74 which covers his building at Oganaji Ayangba as collateral and a deed of legal mortgage between him and the 2nd defendant was created.

 

The 2nd defendant then directed the respondent to the 3rd defendant (a staff of the 1st defendant) on the choice of the agricultural machinery to be purchased by the loan. The 3rd defendant advised the respondent to buy John Deere Tractors and took him to R.T. Briscoe, Enugu where they bought 2 John Deere Tractors.

 

When the two tractors were to be taken to Ayangba where the respondent’s farm was situated from Enugu, one of the tractors broke down and had to be sent back to R.T. Briscoe, Enugu for repairs. Consequently the two tractors became non-functional and the respondent had to resort to hiring of tractors for the day to day running of his farm as a result of which he failed to pay back the loan.

 

He then applied for additional facility from the 2nd defendant of N55,000.00 (fifty-five thousand naira) to enable him purchase new effective tractors for his farm so as to off set his loan. He was asked to mortgage a property as collateral. The respondent then obtained certificate of occupancy No. 304 in respect of his storey building near the central motor park Ayangba and also a certificate of consent to mortgage the said property from the Dekina Local Government. On receipt of the certificate of occupancy the respondent gave it to the 2nd defendant as security for the additional facility. N2,000.00 (two thousand naira) was also debited from his account, as surveyors fees, for a surveyor to value the property to be mortgaged. The application for the additional facility was turned down by the 2nd defendant but the plaintiff’s certificate of occupancy No. 304 was not returned to him.

 

The 1st plaintiff denied asking the plaintiff to meet the 3rd defendant for the choice of the agricultural equipment to be purchased from the loan. The 3rd defendant contended that he did not recommend John Deere Tractors to the plaintiff and the decision to buy the tractors was that of the plaintiff alone. The 2nd defendant sought to show that the loan of N50,000.00 (fifty thousand naira) granted to the plaintiff by the 2nd defendant in 1974 was granted under the Agricultural Credit Guarantee Scheme and as the plaintiff has defaulted in the repayment of the loan, the 2nd defendant has the power to seize the certificate of occupancy No. 304 given for the additional facility which was refused.

 

The 2nd defendant also denied liability and counter-claimed for the sum of N75,000.00 (seventy-five thousand naira) being the unpaid balance of the plaintiff’s loan account as at October, 1986 and 13% interest on the account thereafter.

 

At the conclusion of the trial, the learned trial Judge Ochimana, J in a considered judgment partly found for the respondent by granting him some of the reliefs sought and dismissed the 2nd defendants counter-claim in its totality.

 

Aggrieved by this decision the 2nd defendant has now appealed to this court on a notice containing 12 grounds of appeal. The other parties having not appealed I shall hereafter refer to the 2nd defendant and the plaintiff as the appellant and the respondent respectively.

 

Pursuant to the rules of this court, the parties, through their respective counsel have filed and exchanged their written briefs of argument. Out of the 12 grounds of appeal the appellant has formulated the following issues for the determination of this appeal;

 

1. Whether having regard to the trial court’s holding that the respondent had failed to prove defamation there was yet any basis for assessing and awarding damages for libel?

 

2. Whether the lower court made findings that were not borne out by the facts and evidence before it and if so what are the consequences of its so doing?

 

3. Whether a case of negligence was made out against the appellant warranting the award of damages in the sum of N19,580.00 (nineteen thousand five hundred and eighty naira)?

 

4. Whether having regard to the outstanding indebtedness of the respondent to the appellant and the entire circumstances of the case, the appellant was not entitled to exercise the right of lien over certificate of occupancy No 304 deposited with it?

 

5. Whether the court was right to have ignored exhibit 23 the deed of legal mortgage on the ground that certificate of occupancy No. DW/52/74 was misleading?

 

6. Whether the court made findings on which issues were not joined and granted reliefs not sought?

 

7. Whether the order of court that the appellant should refund surveyors fees in the sum of N2,000.00 (two thousand naira) was proper in the circumstances?

 

8. Whether the dismissal of the counter-claim on the basis that no fees was paid therefore was proper.

 

The respondent on the other hand formulated the following issues from the grounds of appeal;

 

1. Whether or not the evaluation of the evidence by the trial court was perverse and thus caused any miscarriage of justice.

 

2. Whether a banker can exercise a right of lien over documents of security obtained not in the ordinary course of banking business and/or by deceit.

 

3. Whether or not the trial court rightly dismissed the counter-claim.

 

I had earlier shown that there were four defendants and one plaintiff before the lower court, however only the 2nd defendant-Bank of the North Limited felt aggrieved by the decision of the lower court and has now appealed, in essence the appeal to be determined now is between the 2nd defendant who will henceforth be referred to as the appellant and the plaintiff who will be referred to as the respondent.

 

The set of issues formulated by the parties being different, I am of the opinion that the issues that can determine this appeal which will encompass the two sets of issues can be set out as follows:

 

4. Whether there was any basis for the trial court to have assessed and awarded damages for libel.

 

5. Whether having regard to the circumstances of the case and the evidence adduced the appellant was right to have exercised right of lien over certificate of occupancy No. 304 deposited with it.

 

6. Whether based on the facts and the evidence adduced before it, the lower court was right to have assessed and awarded special damages to the respondent.

 

7. Whether the trial court was right to have dismissed the counter claim.

 

Issue one:

 

Whether there was any basis for the trial court to have assessed and awarded damages for libel.

 

On this issue it was the submission of the appellant that the learned trial Judge having made a finding at page 212 of the records of proceedings that the plaintiff had not adduced evidence to:

 

“prove that he was defamed and his estimation lowered in the eyes of right thinking members of the society”

 

The court was wrong to have at page 216 of the records considered and awarded damages for defamation, submitting that the judgment of a court must not only demonstrate in full a dispassionate consideration of the issues raised in the case but must also flow logically from such an exercise vide Polycarp Ojugbue & Anor. v. Ajie Nnubia & Ors. (1972) 1 All NLR (Part 2) 226, Adeyemo v. Arokopor (1988) 2 NWLR (Pt. 79) 703. Contending that one of the primary duties of a Judge before whom a matter is being adjudicated upon, is to make findings of fact from which his decision on any issue must logically flow, that a decision that does not reflect such deductive reasoning process is fundamentally flowed (Sic: flawed) and should not be allowed to stand.

 

That the court having held that the respondent had failed to prove defamation, the proper order the court would have made, was one dismissing the claim for defamation rather than one assessing damages for libel. Learned counsel to the appellant then urged us to set aside the award of N10,000.00 (ten thousand naira) for libel as there was no basis for the trial court to have made same.

 

In reply to the above issue, the respondent referring to paragraph 37 of the plaintiff’s/respondent’s pleading at page 32 of the records where the respondent pleaded shock and embarrassment pointing out that it was not controverted by the appellant both in his pleadings and testimony before the court.

 

Submitting that an averment which is neither denied or controverted by the other party is deemed proved and admitted-Palm Beach Ins. Co. Ltd. v. Bruhns (1997) 9 NWLR (Pt. 519) 80; section 75 of the Evidence Act.

 

That neither was the testimony of the respondent at page 156 lines 28-32 of the records to the effect that when he was shown a copy of the publication at the Attah’s Palace he was shocked and embarrassed, controverted by the appellant. Submitting further that the respondents claim of general damages of N20,000.00 (twenty thousand naira) was for the embarrassment and shock suffered by the respondent based on the surrounding circumstances of the case relating to the publication. That even if defamation was not proved, shock and embarrassment was proved and it cannot be rightly said that the trial court awarded damages for what it held not to have been proved. That this is not a situation where the decision of the trial court can be interfered with by an appellate court relying on the case of Abasi v. Onido (1998) 5 NWLR (Pt. 548) 89.

 

The finding of the trial court on which this issue is based is produced below:

 

“On the complaint by the plaintiff that by publication he was embarrassed, defamed and suffered shock, the learned defence counsel submitted that the plaintiff did not call witnesses to say what they felt about him after they read the publication. I agree with them that in a case of defamation of character plaintiff must call witnesses to testify as to what they think and feel about the plaintiff since the alleged defamatory matter was published. This has not been done and so no evidence to prove that plaintiff was defamed and his estimation lowered in the eyes of right thinking members of the society”.

 

– page 212 lines 2 – 11.

 

In an action for defamation (libel) it is always a question of fact whether or not the words complained of are defamatory in their natural and ordinary meaning, that is whether under the circumstances in which the words were published a reasonable man to whom the publication was made would be likely to understand them in that sense. In determining the above, it is necessary to take into account not only the actual words used but also the context in which they were used and the persons to whom they were directed. It follows therefore that evidence must be adduced by the person making the allegation to show that the understanding of an ordinary person on reading the publication is that they were defamatory against the person against whom they were made. Okafor v. Ikeanyi (1979) 3 – 4 S.C 99.

 

In the instant case the respondent had pleaded in paragraph 37 of his statement of claim thus:

 

“that while the plaintiff is expecting to be sued in court he was shocked and embarrassed when Idrisu Ibrahim of Idah Polytechnic came along with some of his friends to inform him in the Attah’s Palace Idah that his house is being auctioned for sale and that there is a publication to that effect in the Nigerian Voice of 3 September, 1986 at page 13, a copy of this Nigerian Voice would be founded at the trial”.

 

Having so averred it then falls on the plaintiff to call evidence to show that the said publication tend “to lower the plaintiff in the estimation of right thinking members of society generally, to cut him off from society, or to expose him to hatred, contempt or ridicule” – per Lord Atkan in Sim v. Stretch (1936) 52 TLR 669 at 671.

 

In the pleading the plaintiff has named one Idrisu Ibrahim of Idah Polytechnic as the person who drew his attention to the publication, the said Idrisu should have been called to testify as to his reaction to the publication and any other person who might have seen the publication. This was not done, only the plaintiff testified as PW2 that he was shocked and embarrassed on his reading the publication. The trial Judge was therefore in order on his finding

 

“……that in a case of defamation of character plaintiff must call witnesses to testify as to what they think and feel about the plaintiff since the alleged defamatory matter was published. This has not been done and so no evidence to prove that plaintiff was defamed and his estimation lowered in the eyes of right thinking members of the society”.

 

Having arrived at the above conclusion he had no business awarding damages for libel to the plaintiff/respondent. What the trial court should have done in the circumstances was to have dismissed the plaintiff’s claim under that head. For where plaintiff sets out to adduce evidence in proof of a claim for damages and the evidence being deficient or unsatisfactory is rejected by the court that should put an end to that claim – Badmus v. Abegunde (1999) 11 NWLR (Pt. 627) 493.

 

In the instant case the award of damages of N10,000.00 (ten thousand naira) for shock and embarrassment after a finding by the trial court that it has not been proved cannot stand and I hereby set it aside.

 

Issue Two

 

Whether having regard to the circumstances of the case and the evidence adduced the appellant was right to exercise the right of lien over certificate of occupancy No. 304 deposited with it.

 

The lower court at pages 210-214 of the records made the following finding;

 

“the question then whether the 2nd defendant was right to withhold certificate of occupancy No. 304 offered as security for additional facility which was not granted to him. In my view the 2nd defendant has no justification to withhold plaintiff’s certificate of occupancy No. 304 in so far as there was no deed of legal mortgage with the certificate and in so far as the additional facility was refused………. Since the 2nd defendant had not auctioned the plaintiff’s property at Oganaji to know if the sale would not satisfy the debt owed, it would be wrong of the 2nd defendant to say it has a right of lien”.

 

On the above finding it was the submission of the appellant that a banker’s right of lien arises over a customer’s property in his possession and remains in existence until the debt is settled. That the existence of that right is not dependent on the banker having conducted the sale of the property posted as security for the debt. Contending that, in the instant case, the respondent’s indebtedness to the appellant remains outstanding and the appellant is therefore entitled to withhold the respondent’s securities deposited with it pending the settlement of such indebtedness. That the appellant as a banker has a right of lien by virtue of the merchantile custom and the provision of exhibit 26. The general conditions applicable to current accounts and business relations with our clients-which states;

 

“in the absence of a contrary agreement, the bank should have right of lien or compensation on all securities that might be lodged with it in the name of the client and under any form whatsoever”.

 

The appellant further contends that for the trial court to state that the appellant has no right to withhold certificate of occupancy No. 304 as no legal mortgage was created in respect of it is to loose sight of the mechantile custom that form the basis of the bankers general right of lien over properties of customers deposited with them. The appellant urged the court to set aside the order on the appellant to return certificate of occupancy No. 304 to the respondent.

 

It is the respondent’s argument on this issue that the evidence as adduced by the parties before the lower court had shown that the respondent was asked by the appellant to obtain certificate of occupancy No. 304 in respect of his upstairs building to be used as security for the additional facility of N55,000.00 (fifty five thousand naira) that this additional facility having been refused, the logical thing should have been the return of the certificate of occupancy No. 304 to the respondent rather than exercising right of lien and retaining same.

 

Deducing from that fact, that the appellant in obtaining the certificate of occupancy No. 304 as security to a loan yet to be given was being fraudulent, as there was no intention on his part to grant the additional facility to the respondent.

 

The respondent with regards to this issue had averred the following in his statement of claim;

 

“25.   That the plaintiff was again constrained to approach the Bank of the North Ankpa for an additional facility to enable him purchase other tractors.

 

26. That the 2nd defendant instructed the plaintiff to obtain a certificate of occupancy for his upstairs (sic) building which he earlier rejected for the first loan of N50,000.00 (fifty thousand naira).

 

27. That it was agreed between the 2nd defendant and the plaintiff that the certificate of occupancy for his upstairs (sic) when obtained would be used as mortgage for the additional facility.
28. That with further reference to paragraph 27 above the plaintiff intensified efforts to get the certificate of occupancy for the additional facility which yielded success when he was granted the said certificate of occupancy.

 

The appellant as the 2nd defendant before the lower court averred as follows in his pleadings;

 

7. The defendant admits paragraphs 26 and 27 of the claim but avers that the additional facility sought could not be granted to the plaintiff as the maximum loan which can be granted to an individual under the Agricultural Credit Guarantee Scheme Fund is N50,000.00 (fifty thousand naira).

 

8. In answer to paragraph 30 to 36 of the claim, the defendant avers that the certificate of occupancy No. 304 was given to the defendant by the plaintiff to further secure the loan already granted; the defendant observed that the plaintiff was defaulting in paying the loan on schedule and it was within its right to safeguard its interest by asking for the said certificate of occupancy ; furthermore interest on the loan and the principal sum was over and above the value of the security given by the plaintiff. The defendant shall contend that the final approval for loan is given by the defendant’s head office and not at branch level.

 

Both parties having joined issues as above adduced evidence in line with their averments and the learned trial Judge in resolving them said as follows:

 

“The question then is whether the 2nd defendant was right to withhold certificate of occupancy No. 304 offered as security for additional facility which was not granted to him. In my view the 2nd defendant has no justification to withhold plaintiff’s certificate of occupancy No. 304 in so far as the additional facility was refused. I am inclined to believe the plaintiff that he was deceived to deliver the certificate to the 2nd defendant because the 2nd defendant is very much conversant with the banks borrowing or lending policy that a customer indebted to the bank cannot be granted additional facility. This being so, why was he not told when he applied for additional facility that he would not be granted it but wrote exhibit 9 dated 5th January, 1984 to plaintiff to obtain letter of consent to mortgage his certificate of occupancy No. 304 to enable the 2nd defendant draw up a deed of legal mortgage for a consideration of N55,000.00 (fifty – five thousand naira). If the 2nd defendant had no intention of tricking the plaintiff to surrender his certificate of occupancy No. 304 it would not have written exhibit 9- certificate of occupancy No. 304 was obtained by fraud and therefore improper and illegal”.

 

As was adduced by the parties at the lower court a deed of legal mortgage was entered into by the parties whereby the respondent was granted a loan of N50,000.00 (fifty thousand naira) by the 2nd defendant under the Agricultural Credit Guarantee Scheme Fund and the respondent offered his certificate of occupancy No. DWD/52/74 in respect of his building at Oganaji as security for the loan. When the tractors purchased under the loan agreement did not work and the respondent could not pay back the loan, he applied for an additional facility of N55,000.00. The 2nd defendant asked him to give additional security before his application for the additional facility could be considered. He offered the certificate of occupancy No. 304 as security for the additional facility but his application for the additional facility was refused in that he had not repaid the first loan granted to him. He then wrote requesting that the certificate of occupancy No. 304 be returned to him as the additional facility had been refused. The 2nd defendant failed to return the said certificate of occupancy and advertised that the property covered by the certificate of occupancy would be sold off at a public auction. The plaintiff then initiated this suit.

 

I have restated the above facts to show that there was an earlier loan agreement between the parties whereby for a loan of N50,000.00 (fifty thousand naira) the respondent gave his certificate of occupancy No. DWD/52/74 as security. It follows therefore that the first loan was secured. The additional facility requested for by the respondent and refused by the appellant was for N55,000.00 quite different from the first loan already granted and secured.

 

Here there are two mortgage agreements, in one consideration had been given and security tendered. In the other, the application for the loan has been refused even though security had been given. In such circumstance the logical thing would have been the return of the security for which no consideration was given.

 

There being two separate loan accounts the presumption is that they are to be separately kept, the banker has no right to either combine them or to transfer assets and liabilities from one account to another without reasonable notice of his intention to do so or without the consent of the customer – B & F Bank v. Opaleye (1962) 1 All NLR 26.

 

The bank can therefore not claim right of lien over a property for which it had given no consideration. The question might here be asked what happened to certificate of occupancy No. DW/52/74 on which the first loan is secured.

 

The learned trial Judge was therefore right to hold that the appellant was wrong to have withheld certificate of occupancy No. 304 offered as security for the additional facility which was not granted to the respondent particularly as the loan agreement was governed not by the usual banking rules but by the Agricultural Credit Guarantee Scheme Fund which is governed by its own set of rules – see exhibit 22.

 

The trial court was however wrong to have held that the withholding of certificate of occupancy No. 304 by the appellant was fraudulent, for fraud is a criminal offence and its proof is beyond reasonable doubt by the party alleging it – Felix Okoli Ezeonwu v. Chief Charles A. Onyechi & Ors. (1996) 3 NWLR (Pt. 438) 499; In Re: Otuedon (1995) 4 NWLR (Pt. 392) 655. In the instant case there was no evidence to show that the withholding of the certificate of occupancy No. 304 was fraudulent.

 

On this issue, I find that the appellant was wrong to have used the right of lien over the certificate of occupancy No. 304 and the respondent is therefore entitled to its return.

 

Issue Three

 

This issue is based on the evaluation of evidence and the award of special damages to the respondent by the trial court.

 

The respondent had claimed five reliefs and a total of N41,580.00 (forty-one thousand five hundred and eighty naira) as special and general damages as per his statement of claim – pages 33 – 34 of the records. He testified as PW2 – pages 150 – 163, called two other witnesses and 28 exhibits were tendered in the course of the proceedings.

 

In his testimony the plaintiff sought to show that he was granted a loan under the Agricultural Credit Guarantee Scheme of N50,000.00 (fifty thousand naira) by the 2nd defendant for the purchase of an MF 185 tractor, a David Brown tractor and other farming implements. To secure the loan he used his certificate of occupancy No. DW/52/74 with the Central Bank acting as guarantors to the loan.

 

The 2nd defendant then directed him to the 3rd defendant a staff of the 1st defendant at Enugu. The 3rd respondent then took the plaintiff to R. T. Briscoe (Nig) Limited, Enugu, the 4th defendant, where on his recommendation, R.T. Briscoe sold two John Deere Tractors to the plaintiff. On the maiden journey of the two tractors to Ayangba – where the plaintiff’s farm is situated – from Enugu both tractors developed faults, thereafter the respondent had to bring them back to Enugu for repairs which cost him a total of N19,580.00 (nineteen thousand five hundred and eighty naira). The tractors consequently failed and the respondent had to pack them and resorted to the hiring of tractors to do his farm work. He tendered receipts for the hiring of the tractors totalling N5,055.00 (five thousand and fifty-five naira).

 

The tractors bought from R. T. Briscoe, Enugu being dilapidated failed to do the work expected, and the plaintiff could therefore not pay back the loan. He then applied for an additional loan of N55,000.00 (fifty-five thousand naira) from the 2nd defendant and offered his certificate of occupancy No. 304 as security. His application was turned down having not repaid the first loan. He then requested for the return of the certificate of occupancy the 2nd defendant failed to return the certificate of occupancy and advertised in the Nigerian Voice of 3rd of September, 1986 that the property in respect of certificate of occupancy No. 304 was to be auctioned to recover the first loan, hence this action.

 

Two witnesses testified for the defendant and the 2nd defendant counterclaimed the sum of N75,000.00 (seventy five thousand naira) being the balance of the loan granted to the respondent in 1978 with accrued interest as at October, 1986 and 13% interest per annum thereafter. In their defence they denied that the respondent purchased the tractors on the recommendation of the 3rd defendant. That the initial mortgage was as contained in exhibit 23. Of note is the testimony of the DW2 at page 179 lines 26-33 where he said:

 

“…………..there is no provision in exhibit 23 empowering the 2nd defendant to retain any other collateral of the plaintiff other than the one covered by exhibit 23, but there are written and unwritten provisions under which the 2nd defendant is empowered to retain additional collateral of a customer other than the one covered by the deed of legal mortgage. In this particular case it is a written legislation which empowers the 2nd defendant to retain the plaintiffs certificate of occupancy”.

 

After address by counsel the trial court in a considered judgment, refused relief 43A holding “the plaintiff is liable to repay the loan of N50,000.00 (fifty thousand naira) less the amount he had already paid if any”. See page 213. It granted reliefs 43(B) (C) and (D) ordering the 2nd defendant to return the plaintiff’s certificate of occupancy No. 304.

 

It refused relief 43(E) as, “the debt or loan is still outstanding the court will not order a return of the security(ies) offered”. It also made an award of N21, 580.00 (twenty-one thousand five hundred and eighty naira) as special damages and N10,000.00 (ten thousand naira) as general damages to the plaintiff.

 

The trial court had endeavoured to consider all the issues placed before it and has gone into all the evidence before arriving at its decision.

 

Page 103

 

Findings of fact are the business of a trial court and an appellate court does not normally intervene unless they are found to be perverse or have occasioned a miscarriage of justice – Adamu Garba v. The State (1997) 3 NWLR (Pt. 492) 144; (1997) 3 SCNJ 68 Egbaran & Ors v. Akpotor & ors. (1997) 7 NWLR (Pt. 514) 559; (1997) 7 SCNJ 392.

 

Except as to the award of damages for defamation for which no evidence was adduced in support, which had earlier set aside and the award of N2,000.00 (two thousand naira) surveyors fees which in my view the appellant is not liable, for it was a pre-condition to the application for the grant of the additional facility to the respondent. I accordingly set it aside. The finding of the trial court on the retention of the certificate of occupancy No. 304 by the 2nd defendant, and the award of special damages totalling N21,580.00 (twenty-one thousand five hundred and eighty naira) supported by credible evidence is faultless and I hereby uphold it resolving that issue in favour of the respondent.

 

Issue 4

 

This issue is as whether the trial Judge was right to have dismissed the counter-claim.

 

The reason given by the trial court was that the 2nd defendant did not pay fees for the counter-claim thus rendering it incompetent. With all due respect to the learned trial Judge, non-payment of fees does not render a case incompetent but makes it an irregularity which could have been corrected by the payment of the correct fees. It might have been an omission or a mistake on the part of counsel while filing for the counter-claim or on the registrar not charging the correct fees, this, however, could have been rectified and no miscarriage of justice could have been occasioned – Odu’a Investment Company Limited v. Joseph Taiwo Talabi (1997) 10 NWLR (Pt. 523) 1.

 

The fact, however, that the counter-claim was filed together with the appellants statement of defence, which was part of and formed the basis of the whole trial the assumption would be that the correct fees were paid while filing the statement of defence and to an extension for the counter-claim.

Since there was no evidence before the trial court to show the correct fees chargeable on the filing of a counter-claim, the trial court was wrong to have held suo motu that the fees as paid by the appellant was for the filing of the statement of defence only.

 

The finding of the trial court that the counter-claim is incompetent is hereby set aside.

 

The respondent had admitted in his evidence and in his pleadings that he had not repaid the first loan of N50,000.00 (fifty thousand naira) that was granted to him by the 2nd defendant and in respect of relief 43(E) the trial court had made a finding that the loan is still outstanding against the respondent. The appellant having counter-claimed on this outstanding loan and the respondent having not filed a defence to the counter-claim, the appellant is entitled to judgment on it by virtue of the provisions of order 27 rules 2 & 9 of the Benue State High Court Civil Procedure Rules Edict 1988 applicable in Kogi state.

 

I hereby enter judgment for the appellant on the counter-claim, by virtue of our powers under order 3 rule 23(1) of the Court of Appeal Rules in the sum of N75,000.00 (seventy five thousand naira) as at October, 1986 and 6% interest per annum thereafter until the liquidation of the judgment debt.

 

In conclusion this appeal succeeds in part and I make the following consequential orders:

 

(1)     The appellant has no right of lien over respondent’s certificate of occupancy No. 304 and is hereby ordered to return same to the respondent.

 

(2)     The award of special damages to the respondent by the trial court totaling N19,580.00 (nineteen thousand five hundred and eighty niara) is hereby affirmed.

 

(3)     The award of N2,000.00 (two thousand naira) surveyors fees as special damages is set aside being a pre-condition to the application for the additional facility.

 

(4)     The award of N10,000.00 (ten thousand naira) general damages to the respondent for shock and embarrassment by the trial court is hereby set aside.

 

(5)     The finding by the trial court that the counter-claim is incompetent is hereby set aside and judgment is entered for the appellant on the counter-claim in the sum of N75,000.00 (seventy five thousand naira) as at October, 1986 and 6% interest per annum thereafter until the liquidation of the judgment debt.

 

Each party to bear his own costs.

 

DAHIRU MUSDAPHER, JCA: I have read before now the judgment of Bulkachuwa JCA just delivered and respectfully agree with the conclusion arrived at. I also agree with all the orders made therein.

 

ALBERT GBADEBO ODUYEMI, JCA: I have had the privilege of reading in advance, a copy of the judgment just delivered by my learned brother Bulkachuwa, JCA.

 

I am in entire agreement with the reasonings and conclusions in respect of each issue distilled for decision in this appeal and I adopt them as mine.

 

I agree that the appeal succeeds in part.

 

I abide by the consequential orders in their entirety.

 

Cases referred to in the judgment

Abasi v. Onido (1998) 5 NWLR (Pt. 548) 89.

Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703.

B & F Bank v. Opaleye (1962) 1 All NLR 26.

Badmus v. Abegunde (1999) 11 NWLR (Pt. 627) 493.

Egbaran v. Akpotor (1997) 7 NWLR (Pt. 514) 559; (1997) 7 SCNJ 392.

Ezeonwu v. Onyechi (1996) 3 NWLR (Pt. 438) 499; (1996) 2 SCNJ 250

Garba v. State (1997) 3 NWLR (Pt. 492) 144; (1997) 3 SCNJ 68

Odu’a Investment Company Limited v. Talabi (1997) 10 NWLR (Pt. 523) 1.

Ojugbue v. Nnubia (1972) 1 All NLR (Pt. 2) 226.

Okafor v. Ikeanyi (1979) 3 – 4 S.C 99.

Palm Beach Ins. Co. Ltd. v. Bruhns (1997) 9 NWLR (Pt. 519) 80.

Re: Otuedon (1995) 4 NWLR (Pt. 392) 655.

Sim v. Stretch (1936) 52 TLR 669.

Statute referred to in the judgment

Evidence Act, Cap. 112, Laws of the Federation of Nigeria 1990; s. 75.

Rules of court referred to in the judgment

Benue State High Court Civil Procedure Rules 1988; Or. 27 rr. 2 & 9.

Court of Appeal Rules, 1981 Or. 3 r. 23(1).