Witness to Justice

When a bank customer took a facility from the now defunct New Nigerian Bank in 1963, she appeared to fully understand the import of creating security or collateral over landed property as assurance of repayment of loans and facilities. Especially significant was the right of such a creditor or mortgagee to exercise the power of sale. Many years later, when the power had not just arisen but the rights clarified by the bank had become fully enforceable, the matter came to a head.

In the fullness of time, the original bank went defunct. Its successor bank, however, assumed the right to a satisfaction of the indebtedness and kept it alive on its books (albeit, without initial knowledge of the facility). Thankfully, the successor bank also came into possession of the title documents relating to the secured property. The property was then sold in a public auction, but the new owner – in seeking to take possession – met resistance from a daughter of the original mortgagor. The daughter maintained that her mother never informed her that the property was under mortgage.

This situation raised a curious position in law. Why did the bank wait so long before exercising its claim? Had the bank’s rights become stale? Had it lost its right of enforcement? The claimant – in an effort to not only resolve these queries, but to drag her perceived notion of justice out of the jaws of what appeared to be institutional bulldozing – sued the supposed buyer and the bank. Thus, the stage was set for ID/1453/2008 Mrs Christiana Omowunmi Dafe v Unity Bank Plc & Mrs Adebola Isola.

This brings us to the arena. While this commentator appeared for the bank, Adeniyi Quadri Esq. (present Chairman of the Ikeja Branch of the Nigerian Bar Association) appeared for Mrs. Isola. This was perhaps my earliest direct acquaintance with Her Lordship, Justice Josephine Efunkumbi Oyefeso.

The preliminary hearings (before the Late Hon. Justice Onyeabo) concluded and the matter was soon set down for trial before Honourable Justice Oyefeso. It is worth noting that this was also in the early days of the full appreciation and implementation of the new Lagos State High Court Civil Procedure Rules, which introduced front-loading of processes. Many courts were still rather unfamiliar with the new process.

The trial proceedings, involving the bank, Mrs. Isola, and the claimant (with a counterclaim filed by the bank), were handled with remarkable judicial poise. What could easily have become a long, drawn-out and gestating hearing was managed firmly and efficiently. Justice Oyefeso displayed a clear understanding of the position of the law on mortgages and the limits of possible availing defences, particularly the defence of a stale timeline and delay in recovery. Even when firm objections were raised during the trial proceedings, Her Lordship had her mind set on the matter. She sat through the entire case without unnecessary interjection. She was patient, and waited until every piece of evidence had been given. In fact, upon requiring further clarification from the claimant, she sought it, with pointed and neutral questions. Following this, as the very paradigm of an impartial jurist, one would be hard-pressed to determine what way – if at all – the response pushed her to lean.

No greater demonstration of her judicial quality came than at the judgment stage delivered on the 21st of December, 2011. Not only did she dismiss the claimant’s case for lacking merit, she showed a profound mastery of the technical issues surrounding mortgages, securities, collateral enforcement, and the principles that safeguard the integrity of commercial transactions. Her Lordship particularly demonstrated a subtle but masterful grasp of how an acknowledgement of indebtedness can revive an otherwise statute-barred claim – arising from a letter written by one of the original mortgagor’s children to the bank, inquiring about the loan (if written off), and the return of their mother’s (granted, now their) title documents.

While this was the act that ultimately prompted the acquiring bank to dig through their records and identify the dust-covered facility after 20 years, the bank did nonetheless exercise restraint by further availing the family an opportunity to repay the debt and retrieve the documents before proceeding with the sale. An equity of redemption, of sorts. Notwithstanding the potentially charged nature of such a dispute, Her Lordship equally displayed the balanced maturity of an unbiased adjudicator who would not be swayed by sentiment or extraneous considerations.

Nothing confirmed this more than when the claimant went on appeal. Again, the claimant (now, Appellant) futilely contended that even though the subject matter property was allegedly used as security (a mortgage) for an unpaid loan which her mother took from the bank, as she was not informed that there was any such mortgage in place, the bank (the 1st Respondent) could not exercise a power of sale over the said property. The Court of Appeal not only upheld the trial court’s decision but copiously referred to the first-instance opinion as evidence that the case was a non-starter from the beginning.

When Justice Oyefeso presided over matters before her, she left a lasting impression that endured long after the gavel fell. I appeared before her in a few cases, but it was this one in particular that brought me into close and memorable contact with her judicial mind. Even in other appearances, the same qualities shone through: patience, mastery of the law, and an unflinching commitment to justice. My lord admirably bore witness to justice – blindfolded, as an impartial arbiter, yet discerning and steady, attuned to the pulse of a just outcome, and willing to apply it accordingly.

When I heard that My Lord had passed, I was deeply saddened. The Bench has lost a diligent and principled jurist.

May her soul rest in perfect peace.

Folabi Kuti SAN