UNITY BANK. V BOUARI

Issue:

The property in dispute originally belonged to Lutafallah Bouari, a Lebanese by birth who settled in Nigeria sometime in 1923. He had four (4) children namely Emile, who was the eldest son; Edward who is the respondent in the appeal, William and Mrs. Odette Hereiki. Prior to his death in 1986, Lutafallah Bouari appointed Emile as his attorney to whom he donated powers, Exhibit P3 in November, 1962 by virtue of which powers Emile kept all the title deeds and other documents relating to their father's properties. There is nothing to show that during his life Lutafallah Bouari kept any money with the 1st appellant as his banker neither was he indebted to the 1st appellant in any way. On the 20th day of March, 1963, Emile executed a legal mortgage Exhibit P6 in respect of the property in issue in favour of 1st appellant to secure a loan transaction between the parties. There is no evidence that the other three (3) children of Lutafallah Bouari knew of the mortgage transaction until sometime in 1992 when tenants of the respondent's family residing in the properties saw auction notices Exhibit P5 fixed on some of the buildings on the land. A search at the Land Registry disclosed the existence of Exhibit P6 which bore a signature not belonging to Lutafallah NSCQR VOLUME 33 2008 Page 1299 Bouari but Emile. On the other hand, it is the case of the appellants that Edward, the present respondent; Lutafallah, Emile and William are members of the Board of Directors of Trans Atlantic Co. Ltd and that Trans Atlantic Co. Ltd is indebted to the 1st appellant as a result of which the property in issue was mortgaged to the 1st appellant to secure the account of Trans Atlantic Co. Ltd in which the Bouari family is alleged to have interests as directors. The indebtedness of the said Trans Atlantic Co. Ltd at the time of the institution of the action is said to have stood at over N7,000,000.00 (Seven Million Naira). At the conclusion of the trial, the trial court held as follows:- "In the result, and for the reasons earlier stated by me, it is my judgment that the plaintiff partially succeeds in his claim against the defendants. I hereby make the following orders:- Declaration that the purported mortgaged of the property known as N0. 80 Lebanon Street, Gbagi, Ibadan or any part thereof is ultra vires the power of attorney dated 5th November,, 1962 and registered as 56/56/564 and accordingly unlawful; All the other legs of the plaintiff's claim are hereby dismissed." The respondent was dissatisfied with the above judgment and appealed to the Court of Appeal which set same aside and entered judgment in favour of the respondent herein. The instant appeal before the Supreme Court is against that judgment.