DUROJAIYE v. FBN PLC (2022)

DUROJAIYE v. FBN PLC

(2022)LCN/16384(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, April 28, 2022

CA/IL/35/2021

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

ADEBAYO OLATEJU DUROJAIYE APPELANT(S)

And

FIRST BANK NIGERIA PLC RESPONDENT(S)

RATIO:

POSITION OF LAW ON EQUITY

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State delivered on 24th June, 2020 by S. T. Abdulkadir J.

The genesis of this appeal is that the Appellant obtained a loan facility from F.B.N. PLC. A Mortgage was executed over his property covered by C of O No KW 4632 which was deposited as collateral for the loan.

The Appellant paid off the loan in 2001. His land certificate was returned to him but the respondent did not execute a deed of release against the Mortgaged property.

After several efforts made by the Appellant, nothing was done. The Appellant opted for a loan with Oceanic Bank. At the conclusion end of the loan the Bank discovered that there was still a lien on the property. The Appellant sued the Respondent for the following reliefs in Plateau High Court in Suit No PLD/J296/2008:
1. A declaration that the refusal of the defendant to release the charge held over the Plaintiff’s property covered by KWARA STATE GOVERNMENT CERTIFICATE OF OCCUPANCY No. KW 4632 is unjustifiable and illegal.
2. The sum of N8,500 (Eight Thousand Five Hundred Naira) only being the amount deducted by Oceanic Bank Plc. From the Plaintiff’s Account No. 31001005320 for search conducted on Kwara State C of O No. KWA4632.
3. An order of the Hon. Court for the sum of Twenty Million Naira only as compensation for damages done to the Plaintiff business, interest and reputation.
4. 10% interest on the sum found due to the plaintiff from the date of judgment till final payment.
5. Cost of this action.
Pleadings were ordered and the plaintiff filed a statement of claim.

At the end of the trial, the learned trial Judge delivered his considered judgment and granted the reliefs sought thus:
“In the light of the foregoing, I find and hold that the plaintiff has proved his claim against the defendant on the balance of probabilities and entitled to judgment. The plaintiff is therefore entitled to all reliefs 1, 2, 4, and 5 of the claim.
As regards the claim for damages, the plaintiff is entitled to relief no. 2 which is the sum of N8,500 which is special damages specifically proved in evidence.
As regards general damages claimed in relief no. 3, it is trite law that the plaintiff must mitigate his claim for damages in the circumstances, I hereby award damages in the sum of N8,000,000 (Eight Million naira) only plus the cost of the action.

The Respondent here was dissatisfied with the judgment and appealed to this Court Jos Division. Judgment was delivered and the Court held that the appeal was without merit. The appeal was therefore dismissed on 30th March, 2017. The Respondent paid the damages awarded to the Appellant herein.

The Appellant again filed a suit against the Respondent in Kwara State High Court in Suit No. KWS/225/2019 claiming the following:
1. A DECLARATION that the non-issuance and or perfection of a Deed of Release with the Bureau of Lands, Ilorin, Kwara State, in favour of the Claimant in respect of his property situate at Ijagbo, Kwara State with Certificate of Occupancy number KW 4632 is negligent and unjustifiable.
2. A DECLARATION that the failure to issue and or perfect a deed of release at the Bureau of lands, Ilorin Kwara State and lift the CHARGE on the Claimant’s property covered by Certificate of Occupancy number KW 4632 despite the Court of Appeal’s judgment against the defendant, is contemptuous and a flagrant disregard for law.
3. AN ORDER compelling the Defendant to prepare forthwith a deed of release of the Mortgage in favour of the Claimant, and perfect same with the Bureau of Lands, Ilorin Kwara State.
4. An Order compelling the Defendant to pay to the Claimant, the sum of N500, 000 000 (Five Hundred Million Naira) as general damages for wanton embarrassments, disgrace and disdain that the non-preparation/perfection of the deed of release has caused him before the general public.
5. 10% of the judgment sum from the date of judgment to final liquidation.

Pleadings were exchanged. The Respondent filed his defence and also a Preliminary Objection. This Preliminary Object was argued and the learned trial Judge delivered his Ruling. In the ruling the learned trial Judge held as follows:
In view of the foregoing having regard to the judgment in SUIT NO. PLD/J296/2008 between the parties, the claimant is estopped by the doctrine of res judicata to institute this action against the defendant.
Finally without hesitation, I find merit in the objection raised by the defendant/objector, this honourable Court lacks jurisdiction to entertain or adjudicate on the claimant’s suit, which is hereby dismissed in its entirety.”

The Appellant was dissatisfied and filed a notice with four (4) grounds on 7th July, 2020. The Appellant’s brief was filed on 18th October, 2021. The Appellant’s reply brief was filed on 22nd November, 2021 but deemed properly filed and served on 21st January, 2022. The Appellant articulated two (2) issues for determination by this Court thus:
1. Whether considering the new set of fact before the trial Court, the Learned Trial Judge was right to have dismissed the Appellant’s case while relying on the principle of Res Judicata and whether the Learned Trial Judge was right to have held that this case was an abuse of Court process. Culled from grounds 1 and 4 of the Notice of Appeal.
2. Whether the Learned Trial Judge was right when he held that the Appellant ought to have enforced the judgment by preparing a Deed of Release by himself when he was not the one that created it in the first place and whether the Learned Trial Judge was right to have held that the Appellant has not utilized the legal right available to enforce the Judgment. Culled from grounds 2 and 3 of the Notice of Appeal.

The Respondent filed its brief on 5th November, 2021. The Respondent articulated two (2) issues as well. It is thus:-
1. WHETHER THE LEARNED TRIAL JUDGE WAS NOT RIGHT WHEN HE HELD THAT THE CASE OF THE APPELLANT WAS CAUGHT BY RES JUDICATA HAVING REGARDS TO THE DECISION IN SUIT NO: PLD/J296/2008 DELIVERED BY THE PLATEAU HIGH COURT OF JUSTICE, JOS DIVISION AND WHETHER THE LEARNED TRIAL COURT WAS NOT RIGHT WHEN IT HELD THAT THE APPELLANT’S CASE IS AN ABUSE OF COURT PROCESS.” (GROUNDS 1 AND 4)
2. WHETHER THE LEARNED TRIAL COURT WAS NOT RIGHT WHEN IT RESISTED THE APPELLANT’S INVITATION TO SHIFT ON THE RESPONDENT THE BURDEN OF DEREGISTRATION OF CHARGE CREATED BY THE APPELLANT ON HIS PROPERTY COVERED BY CERTIFICATE OF OCCUPANCY NO: KW4632 AND WHETHER THE LEARNED TRIAL COURT WAS NOT RIGHT TO HAVE HELD THAT THE APPELLANT’S COMPLAINT OF POST-JUDGMENT EVENTS IS SELF INFLICTED. (GROUNDS 2 AND 3).

I will utilise the issues donated by the Appellant even though the two sets of issues are almost the same.
ISSUE 1
The learned Counsel to the Appellant submitted that the learned trial Judge was wrong when he held that the Appellant’s case was caught up by the doctrine of Res Judicata. He argued that the conditions for the application of the principle must all be present before the Court can rely on it. See the case of JIMOH VS AKANDE (2009) 1-2 SC PT. 1 PG 116 where the condition are stated:
“The pre-conditions for its application are settled as a party relying on it has to show inter alia.
“(1) That the identity of the parties and/or their privies in the previous case and the present case are the same.
(2) The issues and subject matter (i.e identity of cause of action) litigated upon in the previous case and the present case are the same.
(3) There must be a valid Judgment of a Court of competent jurisdiction on the point or subject matter.
(4) If the action concerns land (as here) there must be evidence that the land in the previous case is the same as in the present case.”
Each of these requirements must be proved and it is not a matter to be drawn by inferences. Once any of the requirements is not proved the defence of res judicata may be at large and is inapplicable. See INNOCENT IBERO & ANOR. V. UNTE-OHANA (1993) 2 NWLR (PT. 277) 510, IJALE V. LEVENTIS CO. LTD (1965) 2 SCNLR 386, AGBASI V. OBI (1998) 1-2 S.C. 28; (1998) 2 NWLR (PT. 536) 1, IKE V. UGBOAJA (1993) 6 NWLR (PT. 301) 539 AT 554-556 AND OLORIEGBE V. OMOTESHO (1993) 1 NWLR (PT. 270) 386 AT 396-397.
See DZUNGWE VS. GBISHE (1985) 2 NWLR (PT. 8) AT 528, BAMISHEBI VS. FALEYE (1987) 2 NWLR (PT. 54) AT 51, UDO VS. OBOT (1989) 2 NWLR (PT. 95) AT 59, NKANU VS. ONUM (1977) 5 SC 11, YOYE VS. OLUBODE (1974), (PT. 2) 118.”

Counsel argued that the issues in the previous suit in Plateau State and the present suit are not the same. Counsel continued that this present suit was premised on continuous negligence on the part of the Respondent who has refused or neglected to execute the deed of release to remove the lien on the Appellant’s property.

The Appellant’s Counsel referred the Court to the second claim of the Appellant:
“A declaration that the failure to issue and or perfect a Deed of Release at the Bureau of Lands, Ilorin, Kwara State and lift the charge on the Claimant’s property covered by Certificate of Occupancy number Kw 4632 despite the Court of Appeal’s judgment against the Defendant is contemptuous and a flagrant disregard for the Law.”

Counsel also argued that the Appellant was forced to institute this suit when the Counsel to the buyer of the property wrote a letter demanding his money back. The new buyer when he couldn’t register the sale because the Respondent had not lifted the lien on the property. The Appellant had to refund N65m being the sale price. Counsel believes that this is the only way to ventilate his grievances. See OJUKWU VS. YARADUA 2009 4-5 SC (PT 1) 13 AT PG 73, R.C.A.P. NIG LTD VS. GOVERNOR, OYO STATE, 2009 ALL FWLR PT. 458 326 AT 335, ABUBAKAR VS BEBEJI OIL & ALLIED PRODUCT LTD 2007 ALL FWLR PT 362 1855 AT 1887 PARAS F-C where the Supreme Court per Mukthar CJN (as he then was) held thus:-
“a cause of action is defined in Stroud’s Judicial Dictionary as set out in the case of SAVAGE & ORS VS UWECHIA 1972 3 SC 214 AT 221 by FATAYI WILLIAMS JSC (as he then was) is the entire set of circumstances giving rise to an enforceable claim. See also S.P.D.C.N VS. NWAWKA 2003 FWLR (PT 144) 506; ADESOKAN VS ADEGOROLU 1997 3 NWLR PT 493 AT 261.”
A cause of action arises where a party alleges that a duty owes to him in law has been breached by another party. We rely on the case of U.I.T.H.M.B. VS AJIDE (2005) W.R.N. (113) AT 144.”

Counsel believes that the Respondent had continued in his negligence and contemptuous of the judgment of the Court in PLD/296/2008. To raise the doctrine of estoppel per rem judicata and for it to apply, it must be proved that:
“(a) The parties
(b) The issues and
(c) The subject matter
In the previous action were the same as those in the action in which the plea is raised. Once these ingredients are established, the previous judgment estops the Plaintiff from making any claim contrary to the decision in the previous case. See ODJEWEDJE VS. ESHANOKPE (1987) 1 NWLR (PT.52) AT 633, EZEANYA VS. OKEKE (1995) NWLR (PT. 388) AT 142, DOKUBO VS. OMONI (1999) 8 NWLR (PT.616) AT 647.”

The remedy the Appellant is seeking in this appeal is for the embarrassment suffered by the Appellant in the form that the buyer described the Appellant is a fraudster and demanded the sale price of the property back. Counsel finally urged the Court to resolve this issue on behalf of the Appellant.

In response, the Respondent’s Counsel submitted that after the judgment in Suit No PLD/J/296/2008, the Appellant set in motion and realized the damages of Eight Million Naira(N8.m) because the other parts of the judgment has been complied with i.e. the Respondent had prepared and forwarded to the Appellants the deed of release in the course of settlement during the trial. Counsel referred to the letter of the Appellant’s Counsel acknowledging being in receipt of the unregistered and undated deed of release. Vide letter of 11th March, 2009 at page 122 of the Record of Appeal.

Counsel referred the Court to the Supreme Court case of ADEYEMI-BERO VS. LAGOS STATE DEVELOPMENT PROPERTY CORP (2012) LPELR 20615 where the Court described what Res Judicata is:
“By “res-judicata” it means “a thing adjudicated.” In other words has been definitely settled by judicial division.”
See also OGBOLOSINGHA VS BAYELSA STATE 1 EC (2015) LPELR 24353 where the Court defined Res judicata: “For a plea estoppels per res-judicata to succeed, the party relying therein must establish the following requirement or pre-condition namely:
a. That parties or their privies are the same in both the previous case and the present proceedings.
b. That the claim or issues in dispute in both actions are the same.
c. That the res or the subject matter of litigation in the two cases in the same.
d. That the decision relied upon to support the pleas of estoppels per rem judicata is valid, subsisting and final.
e. That the Court that gave the previous decision relied upon to sustain the plea is a count of competent jurisdiction. See also OLEKSANDR & ORS V. LONESTAR DRINLING CO. LTD (2015) LPELR – 24614 (SC) AND ZUBAIR V. KOLAWOLE (2019) LPELR – 46928 (SC).

Counsel argued that the trial Judge was right when he held that:
(1). The parties, in PLD/J296/2008 are the same with this appeal.
(2). Judgment on the merit has been obtained in PLD/J296/2008.
(3). The prayers of the Appellant are the same in Suit No. PLD/J/296/2008.

Counsel submitted that the Appellant should have explored the avenues of execution of the judgment already obtained rather than instituting a new case.

Counsel referred the Court to S.72 66 of the Sheriffs and Civil Process Act Cap S.6 LFN 2004.

Counsel re-iterated that the Appellant should have resorted to enforcing judgment if he thinks that any part of the judgment has not been complied with:
The above provisions have been judicially blessed by this Court in several decisions including but not limited to the cases of REGISTERED TRUSTEES OF NIGERIAN ASSOCIATION OF MEDICAL HERBALIST & ORS VS GAMBARI (2015) LPELR – 40739 AT 6, MOFUNANYA V. NWADIOGBU (2017) LPELR – 43079 AT 24 AND NOAH & ORS V. INTERSTELLA COMMS. LTD & ORS (2021) LPELR – 53264 AT 75.

The Court was therefore right to hold that the present suit by the Appellant was an abuse of Court process as the parties, the issues and the subject matter are the same with the Case PLD/J/296/2008. See KADURU VS EWYISI (2015) ALL FWLR PT. 781 PG 1531 where the Supreme Court held;
“To determine whether an abuse of the process of Court has occurred, the Court will consider the content of the process filed in the first suit and compare them with those filed in the second one in order to ascertain whether they are aimed at achieving the same purpose.”
See also DINGYADI VS INEC (2010) ALL FWLR PT. 550 PG 1204 where the Supreme Court held:
“The term “abuse of Court process” connotes simply the misuse of Court process and it includes acts which otherwise interfere with the course of justice. Clearly, the acts includes where without reasonable ground, a party institutes frivolous, vexatious and oppressive actions and also by instituting multiplicity of actions or i.e. seeking a favourable Court to entertain a matter. It also includes depriving the Court of its jurisdiction.”

Counsel thereafter urged the Court to resolve this issue on behalf of the Respondent.

ISSUE 2
The learned Counsel to the Appellant submitted that the Respondent paid the damages awarded but failed to or neglected to execute the deed of release. The Appellant argued that this failure necessitated the Appellant filing this second suit to ventilate his frustration. Counsel referred the Court to the reasoning of the trial Court where he held:
“I find it bizarre that the Claimant having obtained judgment, and which the Defendant refuses or neglect to comply to execute a deed as ordered, the Claimant is entitled to enforce obedience to the judgment he obtained on his own, hitherto prepare the deed or endorsement of the instrument in accordance with the terms of the judgment, the Claimant instead sat back, hoping that the lien on his property will be lifted, I have no difficulty in saying that the Claimant has not utilized the legal right available to enforce the judgment, so the issue of continuous negligence and post judgment even is self inflicted.”

Counsel submit that it is not the duty of the Appellant to prepare the deed of release. Counsel argued that the only avenue open to the Appellant is to approach the Court to ventilate his grievance that the Respondent failed to prepare the deed of release.

Counsel therefore, urged the Court to resolve this issue in favour of Appellant and allow this appeal.

In response, the Respondent’s Counsel referred the Court to S.22(1) of the Land Use Act Cap L5, LFN 2004 which provides as follows:
“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained…” (Underlined ours)

It is the duty of the Appellant to as per the provision above to seek and obtain the Governors consent before the Mortgage, UGOCHUKWU VS CO-OP, COMMERCE BANK LIMITED (1996) 6 NWLR PT. 456 PG 524, SIMM COMPUTER RESOURCES LIMITED VS FIRST INLAND BANK PLC (2016) LPELR 40493.

Counsel noted that it is absurd for the Respondent to be the one to discharge or lift the charge created. The Appellant has the responsibility to go and register the deed of release. The only duty the Respondent has is to prepare the deed of release which the Respondent had done. The Respondent had prepared the deed of release which they had forwarded to the Appellant during the pendency of the Suit in PLD/J/296/2008. See ODU’A INVESTMENT COMPANY LIMITED VS. JOSEPH OBADEY (2016) LPELR 41391.

Counsel finally urged the Court to resolve this issue in favour of the Respondent and dismiss this appeal.

RESOLUTION
The Appellant had a subsisting judgment from Plateau State in Suit No PLD/J/296/2008 which was also affirmed by the Jos division of this Court. The Court granted the Appellant all the reliefs sought. The Respondent also paid the damages awarded the Appellant by the Court.

The only vexed issue I see in this present case is the question of the lien on the Appellant’s property which was previously mortgaged to the Respondent.

I have combed the Record of Appeal and found that indeed the deed of release had been executed and forwarded to the Appellant vide the acknowledgment letter on page 122 of the Record of Appeal. The letter is recapped – for case of reference:
11th March, 2009
KADE OGUNDERE & ASSOCIATES
Barristers and Solicitors
42/14 Masalacin Juma’a Street,
Jos.
Dear Sir,
“WITHOUT PREJUDICE”
RE: MR. DUROJAIYE O. ADEBAYO
VS
FIRST BANK OF NIGERIA PLC
PLD/J296/08
We are in receipt of your letter and 3 copies of the attached unregistered/undated DEED OF RELEASE in respect of MR. DUROJAIYE O. ADEBAYO’s landed property covered by Kwara State’s Certificate of Occupancy No. KW4632.
While we commend your efforts at getting out the said Deed of Release within the short period of your intervention, we write to state that the damage already done to our client’s business interest and reputation has left him with no option than an instruction for us to demand for the sum of N15,000,000.00 (Fifteen Million Naira only) in full and final settlement of his claim against your client.
Yours faithfully,
Pp: FELIX OLA AKINYEMI & CO.
…..
AKINYEMI FELIX ESQ

The Appellant’s Counsel who wrote the letter on his behalf acknowledges this letter. He stated that he was in receipt of “Unregistered/undated deed of release. What more does the Appellant want? The Appellant has once again instituted an action in Kwara State in Suit No. KWS/225/2019 against the Respondent demanding for lifting of the lien on his property. Who has the duty of registering this deed of release? I believe the Court should take cognisance of the normal run of business. The Appellant is duty bound to take his undated/unregistered deed of release to the deeds registry of Kwara State and facilitate the registering of this deed of release. We all know that equity aids the vigilant and not the indolent.
The Respondent had referred to the obligations of the Appellant as per the requirements before any business on landed property can be perfected. One of them and an important one is the consent to mortgage which the Appellant ought to have obtained before the mortgage to the Respondent.
It is that same consent to mortgage granted by the Governor that would also be required in registering the deed of release. This document can only be obtained by the Appellant who wishes to mortgage his property. The Respondent has no responsibility to obtain consent to mortgage for a property the Appellant intended to mortgage or had mortgaged.
I am certain that the Appellant and his Counsel are aware that only the Appellant can apply and obtain the Governor’s Consent to Mortgage. The Appellant can register the deed of release comfortably as he alone can provide the requirements needed for registering this deed. In the normal run of business, the mortgagee releases the mortgage deed, the Certificate of Occupancy and the deed of release to the mortgagor when he fully pays his indebtedness.
It is actually the duty of the mortgagee to work hard at registering the deed of release.

The learned trial Judge held in his judgment that the present suit that culminated in this appeal is an abuse of the process of Court. See OGAR VS IGBE (2019) LPELR 48998 where EKO Justice Supreme Court dearly stated:
“The concept of abuse of Court process, relying on numerous decided authorities, is imprecise. It involves circumstances and situations of infinite variety and conditions. This common feature of abuse of judicial process, as this Court held in R- BENKAY (NIG) LIMITED VS. CADBURY (NIG) LIMITED (2012) LPELR 7820, is the improper use of judicial process to interfere with the due administration of justice multiplicity of actions on the same subject matter against the same opponent on the same issues is one of them. So also litigating or re-litigating over the same issue which, by operation of law and on the principle of Res judicata, a party is barred or estopped from re-opening also is an instance of abuse of judicial process.
Specifically in R-BENKAY VS. CADBURY (Supra). It is stated that taking out a process where there is no law supporting it or where the action is premised on frivolity or recklessness are all instanced of abuse of judicial process. Since the subsequent action is what the plaintiff is estopped from engaging in by his re-litigating on an issue already litigated between himself and the defendant, it is that subsequent action that is regarded as the abuse of judicial process.”
This case is on all fours with the instant appeal. The Appellant in PLD/J/296/2008 asked for reliefs that were similar to the ones in the suit in the lower Court. The parties are the same, the subject matter and the issues are the same.
The Appellant in PLD/J/296/2008 and in KWS/225/2019 asked for the same reliefs primarily from the Respondent to execute a deed of release and register it. These issues have been litigated and the Appellant brought it up again. The judgment of the PLD/J/296/2008 has been complied with. The Respondent has executed a deed of release which was forwarded to the Appellant. Vide the acknowledgment letter on page 122 of the Record of Appeal.
The Appellant in the Court below had claimed that he sold the property and the buyer couldn’t register the transfer due to the lien. The Appellant said he had to refund the money to the buyer who had written the Appellant calling him a fraudster.
I find it difficult to believe that the Appellant had not taken out time to register the deed of release already forwarded to him. Even the buyer and his lawyer paid the sale price of Sixth-five Million Naira (N65m) without conducting a search in the deeds registry. Both the Appellant and the buyer found out the status of the property after money had exchanged hand.

Like I said earlier or in this judgment, equity helps the vigilant not the indolent. In A.G. RIVERS STATE VS. UDE (2006) LPELR 626 MUSTAPHER JUSTICE SUPREME COURT (as he then was) held:
“It is elementary law that the rules or principles of equity do not assist an indolent party who fails to pursue his right diligently and within a reasonable time. Where this happens, the Courts regard such delay or indolence of the party either as fatal to his case or as amounting to a waiver of his right under the maxim that equity helps only the vigilant.”
The Appellant in this appeal has indeed abused the process of this Court by filing this Suit No KWS/225/2019 in that, the parties, subject matter and the issues are one and the same. The issues litigated in the PLD/J/296/2008 are the same issues being canvassed. The Respondent has nothing outstanding to the Appellant. The undated/unregistered deed of release had already been forwarded to the Appellant.

This appeal is unmeritorious. It is dismissed. I affirm the judgment of the lower Court in holding that the suit in the lower Court is abusive of the Court process.

Cost to the Respondent is assessed at N200,000.00 (Two Hundred Thousand Naira).

ISAIAH OLUFEMI AKEJU, J.C.A.: I agree that the appeal lacks merit and I dismiss it. I abide by the consequential order.

KENNETH IKECHUKWU AMADI, J.C.A.: I have read in advance the draft of the lead judgment of my learned brother, UZO I. NDUKWE-ANYANWU, JCA. I agree with his Lordship that this appeal is unmeritorious. It is hereby dismissed. I abide by the consequential orders made therein.

Appearances:

O. M. OBARO, ESQ. For Appellant(s)

YUNUS LAMBO AKANBI, ESQ. For Respondent(s)