AKANMODE v. FIRST BANK OF NIGERIA PLC (2018)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of March, 2018

CA/A/133/2017

Before Their Lordships

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria


Between

RICHARD AKANMODE –Appellant

AND

FIRST BANK OF NIGERIA PLC –Respondent

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ABUBAKAR DATTI YAHAYA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the FCT, presided over by Hon Justice I. U. Bello (CJ) delivered on the 28th September 2016 in Suit No. FCT/HC/CV/2500/2013.

The case of the plaintiff, now the respondent is that at various times, the defendant, now the appellant, applied for and was granted several loans, including one for N20 million, to enable the appellant to purchase a four bedroom (all en-suite), semi-detached duplex house 26, 6921 Road, Gwarimpa II Estate Abuja. All the loans and the entire credit facilities plus accrued interest granted to the respondent (making a total outstanding indebtedness of the appellant to the respondent) were secured by means of a mortgage of the said four bed-room house at Gwarimpa II Estate Abuja. A deed of Legal mortgage was executed. Upon maturity of the credit facilities and the total indebtedness, the appellant failed to liquidate the debt as at when due, despite several demands, meetings and promises to pay. The respondent thereafter, wrote him a letter in August 2012 informing him of his total indebtedness as at the 31st of July 2012 and requested him to settle all his debts immediately. The appellant continued to fail to pay his debts. The respondent thereafter, instructed its lawyers to write the appellant informing him of his indebtedness and its intention to exercise its powers of sale of the mortgaged property as a secured creditor. The lawyers so wrote, informing him of the total indebtedness to the respondent in the sum of N59,143,851.18k as at 30th September 2012. The appellant paid no heed to all the entreaties. The respondent therefore approached the High Court of the FCT (the trial Court) via Originating Summons, filed on the 5th of April 2013, seeking for the determination of the following question:
Whether the plaintiff is entitled to an Order for sale of the property known and described as a four (4) bedroom (all en-suite) semi-detached duplex house 26, 6921 Road Gwarimpa II Estate Abuja (herein called mortgaged property”) the defendant debtor mortgagor having defaulted in the payment of and or having failed to liquidate and settle his outstanding indebtedness to the plaintiff his secured creditor and the mortgagee of the said mortgaged property?

And if the answer is in the affirmative, then the plaintiff/respondent as a secured creditor mortgagee is entitled to an Order for sale of the mortgaged property thus:
1. A declaration that the defendant, a debtor and mortgagor, has defaulted in the repayment, settlement and/or liquidation of the banking facilities to wit personal home loan mortgage facility, term loan and overdrafts (plus accrued interest) granted the defendant by the plaintiff a secured creditor and mortgagee of the defendant’s mortgaged property securing the said banking facility (plus all accrued interest).
2. An Order of this honourable Court that the plaintiff, a secured creditor and mortgagee of the defendant, sell by private treaty or public auction the property known and described as a four (4) bedroom (all en-suite) semidetached duplex house 26, 6921 Road, Gwarimpa II Estate Abuja (herein called Mortgaged Property”) mortgaged by the defendant to the plaintiff to secure the outstanding banking facilities (Plus accrued interest) obtained by the defendant from the plaintiff and the outstanding indebtedness of the defendant to the plaintiff.

The originating summons was supported by an affidavit and exhibits. The appellant filed a preliminary objection on the 17th November 2014, to the Originating Summons, the point of challenge being that as the issues are contentious, the commencement should have been by way of a writ of summons, not Originating Summons. He later, on the 10th of February, 2015, filed a counter-affidavit to the originating summons. The trial Judge considered the preliminary objection and dismissed it. He granted the reliefs prayed for in the originating summons. Being dissatisfied, the appellant filed two grounds of appeal. They are:
1. The learned trial judge erred in law when he held that the action is well initiated by the Originating Summons taken out by the plaintiff.
2. The judgment of the trial Court is against the weight of evidence.

In the appellant’s brief settled by Mr. E. B Mesele, filed on the 8th of December 2017 but deemed filed on the 11th December 2017, one issue for determination was suggested-
Whether the trial Court could, by Originating Summons, properly dispose of a matter that is highlyand manifestly contentious between parties without calling for pleadings.
The respondent’s brief was settled by Mr. O. P. Asimegbe and filed on the 20th of December 2017. In it, a similar single issue was suggested thus:
Whether the trial Court was right to have disposed of this matter by Originating Summons. 
I adopt the Issue suggested by the appellant. The second ground of appeal is deemed abandoned as no Issue was formulated out of it.

THE ISSUE FOR DETERMINATION
Whether the trial Court could, by Originating Summons, properly dispose of a matter that is highly and manifestly contentious between parties without calling for Pleadings.

Learned counsel for the appellant referred to Order 1 Rule 2(2)(a) – (b) of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 2004 and submitted that originating summons procedure is employed for non-contentions and legal disputes – EJURA Vs. IDRIS (2006) ALL FWLR (pt. 318) 646; U.B.A Vs. EKPO (2003) 12 NWLR (pt. 534) 333 and KEYAMO Vs. HOUSE OF ASSEMBLY, LAGOS STATE (2003) FWLR (Pt. 146) 925. He argued that the preliminary Objection filed by the appellant,

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challenged the use of Originating Summons, because the figure representing the amount the appellant owes the respondent is seriously contested and that no statement of account was furnished to the appellant, nor produced in Court to show what amounts the appellant had paid on the loan and how much is outstanding. He referred to OSUNBADE Vs. OYEWUNMI (2002) ALL FWLR (pt. 368) 1004; OSSAI Vs. WAKWAH (2006) ALL FWLR (pt. 303) 239 and DAGOGO Vs. ATTORNEY-GENERAL RIVERS STATE (2002) ALL FWLR (Pt. 131) 1956.
Learned counsel submitted that it is obvious from the language of the respondent, that the sole issue was interpretation of the documents put before the Court, and that the intention of the respondent is to sell off the appellant’s property without resolving issues as to how much was paid and how much was outstanding on the loans agreement.
He contended therefore, that the action was wrongly commenced by an originating summons and that the trial Court should have ordered pleadings for a full trial – OSUNBADE vs. OYEWUNMI (SUPRA); N.D.P. Vs. INEC (2007) ALL FWLR (Pt. 358) 1124 and EMEZI Vs. OSUAGWU (2005) ALL FWLR (Pt. 259) 1891. He referred to paragraphs 19, 21, 22, 24, 25 and 26 of the counter-affidavit to the originating Summons and argued that they disclose issues in controversy warranting and removing the case from the realm of originating Summons. He urged us to resolve the Issue on behalf of the appellant and set aside the judgment of the trial Court.
In opposing the appeal, learned counsel for the respondent, referring to Order 1 Rule 2(2)(a)(i) and (ii) and (b) of the High Court Rules of Procedure of the trial Court and FASHEUN MOTORS LTD Vs. U.B.A LTD (2000) 1 NWLR (Pt. 640) 190 at 194, submitted that when the main issue is one of construction of a written law, instrument, deed, will, contract or some question of law where there is no dispute of facts, an originating summons is the right mode of commencing an action. He argued that when the record is perused, no contentious issues of facts would be found since the appellant did not dispute either directly or indirectly, exhibit B019 at pages 51 – 52 of the record, which is a final demand letter of the outstanding indebtedness of the appellant – OMIDIJI Vs. FEDERAL MORTGAGE BANK (2002) FWLR (Pt. 103) 393 at 413; INAKOJU Vs. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 at 485; and FAMFA OIL LTD Vs. AG FEDERATION (2003) 18 NWLR (pt. 852) 453 at 461.
Learned counsel submitted also, that there is no doubt that an equitable mortgage has been created on the mortgaged property in favour of the respondent, by the deposit of the title documents and an agreement to create a legal mortgage – OGUNDIANI Vs. ARABA (1978) ALL NLR 155 at 177; YARO Vs. AREWA CONSTRUCTION LTD (2008) ALL FWLR (Pt. 400) 603 at 634 and exhibits B01 – B015. He argued that the appellant did not address the core issue of the indebtedness but went along in search of technical justice, which could not pay him any dividend in view of the decisions in LAWAN ABDULLAHI & ORS Vs. TUKSHAHE KARA & ORS. LPELR (2014) 308/2001 (SC) and BELLO Vs. RINGIM (1991) 7 NWLR (Pt. 206) 575. He urged us to dismiss the appeal.
Now, the judiciary has always maintained an attitude of simplifying procedures so that actions can be decided expeditiously with minimum costs in litigation. The adage is that justice delayed is justice denied. So in all cases where it is possible to speed up the process and arrive at a decision without sacrificing the merit, procedures are followed as handmaids. This is one of the main reasons why Originating Summons have been provided for by the various authorities enacting or drafting Civil Procedures in the Courts. One of these, is to be found in Order 1 Rule 2(2) of the High Court of the Federal Capital Territory Abuja, (Civil Procedure) Rules 2004, which states
Order 1 Rule (2) – Proceedings may commence by Originating Summons where-
(a) the main issue is, or is likely to be one of construction-
(i) of a written law, or of an instrument made under any written law; or
(ii) of any deed, will, contract or other document or some other question of law, or
(b) there is unlikely to be a substantial dispute of law.

Therefore, a plaintiff may commence an action in Court by way of an Originating Summons, where the issue he seek to have resolved, is one of the construction or interpretation of a written law, an instrument, a deed, a will, contract or some other question of law, where there is no, or there is unlikely to be, any substantial dispute of an issue of fact, between him and the defendant –KEYAMO Vs. L.S.A (SUPRA) and FAMFA OIL LTD Vs. A.G. FEDERATION (SUPRA).

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In INAKOJU Vs. ADELEKE (2007) 4 NWLR (Pt. 1025) 423 at 483, the Supreme Court held that-
“The very nature of an Originating Summons is to make case simpler for hearing, It is available to any person claiming interest under a deed, will or other written instrument, whereby he will apply by originating summons, for the determination of any question of construction, arising under the instrument for declaration of his interest.
The Originating Summons is usually supported by an affidavit and frequently, with documents exhibited to the affidavits which serve as the evidence of the plaintiff. The defendant if he contests, will then file a counter affidavit and exhibit documents he wishes the Court to see. The Court will evaluate the evidence and if satisfied that there are no contentious issues or serious dispute of facts, then it would entertain the Originating Summons and then pronounce on the merit. But once there are serious disputes or likelihood of disputes, then the Originating Summons procedure would not be appropriate. In such a case, the trial Court would do well, to order pleadings so that there will be a full trial –EGBARIN Vs. AGHOGHOVBIA (2003) 16 NWLR (Pt. 846) 380, and A.G. ADAMAWA Vs. A.G. FEDERATION (2005) 15 18 NWLR (Pt. 958) 581.
In the instant case, learned counsel for the appellant at paragraph 4.12 of the brief submitted thus
“It is obvious from the language of the Respondent that the sole issue was interpretation of the documents put before the Court” (Emphasis mine).
So the appellant had himself conceded that the trial Court was enjoined as a sole issue, to interpret the documents placed before it. That alone, is sufficient for this Court to hold that the mode of commencement of the action by way of Originating Summons, is in order, since that is the requirement of Order 1 Rule 2 of the Civil Procedure Rules of the trial Court.
The Interpretation that the trial Court was invited to do, was to answer the question whether the respondent is entitled to an Order for the sale of the mortgaged property, as an unpaid creditor, the appellant having defaulted in settling the debts he owes. It is when this question is answered, by interpreting the documents placed before the Court, that the other reliefs can come to play.
The respondent as plaintiff, had filed an affidavit in support.
Exhibits B01- B015 and B019 were produced before the Court, to support the position. Exhibit B019, to be found at pages 51 52 of the record, is a letter from the lawyers of the respondent to the appellant, informing him of his total indebtedness in the sum of N59,143,851.18k as at 30th September 2012. The letter demanded the liquidation of this amount by 9th November 2012 (the letter was written on 29th October 2012), otherwise the respondent will proceed for the recovery of the debt, in addition to its power of sale as a secured creditor mortgagee of the property securing the facilities. This is also the ambit of the depositions in paragraphs 18, 19, 20 and 21 of the affidavit in support of the Originating Summons, apart from the other paragraphs detailing how the debt came to be incurred by the appellant, the creation of the equitable mortgage and his failure to pay as at when due.
The appellant filed a Notice of Preliminary Objection to the action (pages 67 – 69) of the record. In the particulars of the Ground of the Objection, the appellant stated that he had made “numerous and total payments on account of the loan, yet the plaintiff failed, neglected and/or refused to avail the Court these facts”. He also stated that “there is no evidence of a drawdown of the said credit facilities secured by the mortgaged property.” These points are also part of the depositions contained in the appellant’s counter affidavit to the Originating Summons. Specifically, they are paragraphs 19, 21 and 24 of the said counter-affidavit. By paragraph 23 of the counter-affidavit, the appellant had admitted being served with the letter of demand for the sum of N59,143,851.18k from the lawyers of the respondent.
The appellant seems to be making a double speak. At one breadth, he claimed to have made numerous payments on account of the loan, on another, he said there is no evidence of a draw-down of the credit facilities, secured by the mortgaged property. If he did not draw down any moneys, then why was he making numerous payments on account of the loan?
Again, the appellant only stated that he paid numerous sums on account of the loan. As between the appellant and the respondent, who would lose if reference is made to the affidavits and the exhibits? Clearly it is the appellant because he did not state the exact amount of these numerous payments on account of the loan. When did he make the payments? Where are the receipts or acknowledgment of the said payments? Or did he make them without any form of documentation? If the appellant had produced documents in proof of the said numerous payments or had even deposed to them in an affidavit, it might have disclosed some controversy or even serious contentious issues, in the face of the depositions and exhibits produced by the respondent. As it is, the affidavit in support of the originating Summons and the exhibits produced to the Court by the respondent, are the only prima facie evidence of the agreement between the parties, the legal mortgage and the outstanding amount unpaid by the appellant in respect of the entire transactions. The trial judge had a cloth covering his face, a sword on one hand and a scale on the other. That is not the symbol of a magician. It is a symbol that he weighs the issues before him, takes a decision without caring or knowing who is who before him. There is no way, in the circumstances of this case, that the trial judge would know how much the appellant paid in satisfaction of the various loans he secured from the respondent. There was nothing to compare by the Court, to see any controversy, let alone serious controversial issues of facts. Once the respondent had sworn to the affidavit in support of the Originating Summons and produced the documents of the loan, the amounts on them and the outstanding sums demanded for, the ball had shifted to the Court of the appellant, to disclose if he paid any amount, when and how much. This is because originating summons are normally heard and determined by the consideration of the summons itself, the affidavit in support, exhibits, a counter-affidavit, a further affidavit if any, and exhibits – DANLADI Vs. DANGIRI (2015) 2 NWLR (pt. 1442) 124. 

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In the instant case, the appellant danced around in an evasive manner, to the facts deposed to by the respondent and the exhibits produced. Such evasive negative pregnancy, does not meet the specific depositions in the affidavit in support of the originating Summons, and the appellant is therefore deemed to have accepted same – NWOGO Vs. NJOKU (1990) 3 NWLR (Pt. 140) 570; OKONKWO Vs. C.C.B. (NIG) LTD (2003) 8 NWLR (Pt. 822) 347 and U.B.A. Vs. ACHORU (1990) 6 NWLR (Pt. 156) 254.
When there is a deposit of titled documents with a clear intention that they should serve as security for a loan granted; when there is an agreement to create a legal mortgage in respect of a facility; or when there is a mere equitable charge of the mortgagor’s property, then an equitable mortgage is created. See OGUNDIANI Vs. ARABA(1978) All NLR 1165 at 177. 
The affidavit in paragraph 7, shows support of the Originating that the appellant is a Summons at customer and debtor/mortgagor to the respondent. Paragraph 7 shows that the appellant sometime in mid year 2008, applied for and obtained a personal home loan in the sum of N16 million and a loan agreement was executed. Paragraphs 8, 9 and 10 show that the appellant forwarded to the respondent, a letter of offer made to him to purchase a four – bedroom semi-detached duplex No. 26, 6921 Road Gwarimpa II Estate Abuja (the mortgaged property) for N20 million and the respondent made this payment on his behalf for that amount. The cheque is Exhibit B04. The appellant had also obtained other credit facilities from the responderit such as home -refurbishing loan of N10 million and personal loan of N5 million – Exhibits B012 & B013. paragraph 13 shows that all the credit facilities granted by the respondent to the appellant and the total indebtedness of the appellant, were by agreement of the parties, to be secured by a mortgage on the mortgaged property. Paragraphs 14 and 15 show that this was done, and the appellant deposited all the title documents of the mortgaged property with the respondent, as an equitable mortgage, to secure the diverse credit facilities/loans plus interest, the appellant obtained from the respondent. Paragraphs 15, 17 and 19 show that the appellant failed and neglected to pay his outstanding indebtedness, despite repeated demands. Paragraph 21 shows the position of the respondent that it is entitled to realize the mortgaged property and to exercise its right/power of sale of the mortgaged property.
Paragraph 16 of the counter-affidavit to the Originating Summons is an admission by the appellant, that all the loans/credit facilities were consolidated and secured in one mortgage agreement. Apart from general and evasive traverse, the appellant did not specifically show how much he has paid, and whether he had liquidated the entire indebtedness, to show the Court that the respondent no longer had the right to exercise any power of sale of the mortgaged property. In this vein therefore, it is crystal clear, that the learned trial judge was perfectly in order when he threw away the Preliminary Objection for lack of any disclosure of contentious issues or an air of friction in the proceedings. He was also correct, when he answered the question posed in the Originating Summons in favour of the respondent, having interpreted the documents before him. The Sole issue is answered in favour of the respondent and against the appellant.
I echo the words of Oguntade JCA (as he then was) in FASHEUN MOTORS LTD Vs, U.B.A. LTD (SUPRA) at page 199, when he said in similar circumstances that
“It seems to me that this Appeal is a ploy by the Appellant to waste time. It is a worthless Appeal.” 
The appellant, instead of facing the issue of his indebtedness and seeking a way to negotiate with the respondent regarding interest and time for payment, is employing delaying tactics and evasive actions which in the
long run, may be to his serious disadvantages.
This appeal is totally unmeritorious and I dismiss it. I affirm the judgment of the trial Court delivered on 28th September 2016 in Suit No. FCT/HC/CV/2500/2013.
N75,000 costs to the respondent against the appellant.
PETER OLABISI IGE, J.C.A.: I agree.
TANI YUSUF HASSAN, J.C.A.: I had the opportunity of reading the lead judgment of my learned brother, Abubakar Datti Yahaya, JCA. My learned brother has adequately dealt with the issue in this appeal. I have nothing useful to add.
I also dismiss the appeal for lacking in merit. I abide by the order as to costs.

Appearances

Ngozi Orieki (Miss) –For Appellant

AND

O. P. Asimegbe, with him, H. A Danjuma –For Respondent

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