Ndaba Nigeria Limited & Anor. V. Union Bank Of Nigeria Plc & Ors. (2007)

LawGlobal-Hub Lead Judgment Report

AGUBE, J.C.A.

By this application dated the 6th day of October, 2006 the applicants pray this court for the following reliefs:

1. An Order restraining the respondents, their agents, servants or privies from carrying out foreclosure against the appellants’/applicants’ properties at No. 13 Borgu Crescent, Adewole Estate, Ilorin, Ndaba Nigeria Limited, Apata Yakuba, Ilorin, Pategi in Pategi Local Government Area of Kwara State or any other property belonging to the appellants’/applicants’ pending the determination of their appeal pending before this Honourable Court.
2. An order of injunction restraining the respondents. their agents, servants or privies from selling the appellants’/applicants’ machines removed from their workshop at Apata, Ilorin on 23rd January, 2004 pending the determination of their appeal pending before this Honourable Court.

In support of the application the applicants have deposed to an affidavit of twenty-six (26) paragraphs. Annexed to the affidavit are two exhibits marked A and B. Exhibit A is the notice of appeal against the decision/judgment of the Federal High Court, Ilorin. Presided by Honourable Justice Chukwura Nnamani which judgment was delivered on the 14th day of July, 2006.

Exhibit B on the other hand is the ruling of the Federal High Court granting a conditional stay of execution of the judgment in the substantive suit.

In opposition to the application the respondents swore to two counter-affidavits on the 12th day of October, 2006 and 13th October, 2006 respectively. For the affidavit of 12th October, 2006 it was of fifteen paragraphs and was deposed to by one Ganiyu Omotayo Saad, the Advances Officer of the 1st respondent with exhibits A & B annexed thereto. Exhibit A is a Deed of Appointment of the 2nd respondent as Sales Agent for the 1st respondent to sell the Chattels (Machines) mortgaged to the 1st respondent by the 1st appellant/applicant in lieu of the loan facilities granted the said applicant.

On the other hand, exhibit B is the Deed of Chattel Mortgage created over the Chattel (Machines), which the appellants/applicants mortgaged to the 1st respondent as security for the facilities granted to the 1st appellant/applicant.

The second counter-affidavit dated and filed on the 13th October, 2006 was deposed to on behalf of the 2nd respondent by one Mr. Ndubuisi Ogbodo, the Area Legal Officer of the Ilorin office of the 1st respondent. It is a seven-paragraphed affidavit with exhibits A and B, the Deeds of Legal Mortgage and the Chattel Mortgage respectively and exhibit C – a document titled “Reply to the objection and the statement of defence of 1st and 3rd defendants” dated 16th day of November, 2004 filed by the present applicants in suit No. FHC/IL/CS/7/2004, annexed thereto.

In view of the contentious nature of the application this court ordered parties to file their written addresses, which they obliged. Accordingly, on the 11th of December, 2006 when the application was to be heard, Salamatu Araga (Mrs.) for the applicants adopted the applicants written address filed on the 6th of November, 2006 and prayed the Honourable Court to grant the applicant’s application.

S. A. Bello, Esq., with him B. Ayodeji, Esq., and M. T. Adeshina, Esq., for the 1st and 3rd respondents on their part relied on the reply address which is dated 14/11/2006 but filed on 15/11/2006 and their counter-affidavit dated 13/10/2006 which they sought to adopt and prayed the court to dismiss the application.

As for A. Bamidele, Esq., the learned counsel/2nd respondent, while adopting the address dated and filed on 13/11/2006 he intimated the court of the receipt of a reply address dated 8/12/2006 and filed on the 11th December, 2006 by the appellants/applicants in reaction to some of the issues raised in the 2nd respondent’s address.

Learned counsel/2nd respondent then noted that by the records of the court of 18/10/2006 parties were directed to file written addresses within 21 and 15 days respectively from the appellants to the respondents.

He then submitted that the 2nd respondent having fulfilled his part of the obligation, the reply filed and served on them that morning by the applicants did not meet the dateline imposed by the court on 18/10/2006 and accordingly urged the court to discountenance the issues raised in the said applicants’ address.

In respect of the application, he urged the court to dismiss same. As an alternative to the earlier prayer that the court should disregard the reply filed on the 8th of December, 2006 he submitted that should this court be minded to look at the said reply, the first argument at page 2 paragraph 4 thereof is a repetition of the argument in the applicants main address.

Further references were made to page 3 (last paragraph) on the second point, made by the applicants, submitting that the assertion in the above paragraph was not true but that the 2nd respondent is not invoking the court to pronounce on the substantive suit. According to learned counsel/2nd respondent, the applicants have by their paragraphs 11(iv) and (vi) admitted that the appellants created a legal and Chattel Mortgage in favour of the 1st respondent (bank). It is to that effect that the 2nd respondent merely exhibited the Deed of Chattel Mortgage (exhibit B) to the counter-affidavit of the 2nd respondent filed on 12th October, 2006, counsel submitted.

He finally urged that the entire arguments of applicants counsel should be discountenanced and the application dismissed, the applicants having accepted that Legal and Chattel Mortgages were created in favour of the 1st respondent.

It would appear from the facts of the case, the addresses of counsel and the respective affidavits of the parties that the appellants/applicants were granted loan facilities totaling N15,012,776.35k by the 1st respondent in 1999. As a collateral the appellants/applicants entered into several m0l1gage agreements and the landed property at No. 13 Borgu Crescent, Adewole Estate, Ilorin, Pategi in Pategi Local Government Area Kwara State and the premises of the 1st appellant/applicant at Apata Yakuba Area, Ilorin were accordingly mortgaged.

Equally mortgaged under a chattel mortgage in respect of the loan are the machines in the 1st respondent’s workshop.

Sometime in 2003, sequel to the appellants’/applicants’ inability to repay the loan, the 1st respondent through the other respondents attempted to exercise the power of sale as conferred on her by the mortgage deeds but the 1st appellant/applicant rushed to court after the removal of the machines and filed suit No. FHC/IL/CS/16/2003 against the 2nd respondent and others. Following the lack of diligent prosecution on the pal1 of the appellants according to the respondents, the lower court struck out the case on two occasions the last, which was on the 14th day of July, 2006.

On the part of the appellants/applicants another suit No. FHC/IL/CS/7/2004 wherein they claimed damages of N62,385,000.00 for the packing of all the machines found in the applicants workshop and custodying same in the 1st respondent’s premises, was further filed but the court declined jurisdiction.

Thereafter, the appellants/applicants filed a motion dated 7th August, 2006 for the trial court to restrain the respondents from carrying out the sale of the said machines pending the determination of the appeal which they filed against the decision of the lower court declining jurisdiction.

In his ruling the lower court held:

“Having been very familiar with this case including efforts for out of court settlement and other circumstances that can be seen from the record of proceedings such as having struck out this matter twice for non-diligent prosecution by the plaintiff/applicant and considering the argument put by counsels. This morning, I must say that it is in the interest of justice to grant the stay. Accordingly stay of execution is hereby ordered pending appeal. Again I must say that it is equally in the interest of justice to grant this stay conditionally. Accordingly, the court orders that applicant deposit the sum of N15 million Naira being the amount he admitted owing with the Registrar of the Federal High Court, Ilorin, who will in turn put it into an interest yielding account in one of the reputable commercial banks, pending appeal. The deposit must be done within one week. ”

In his address counsel has cited section 16 of the Court of Appeal Act which empowers this court to grant an interim, order of injunction or any injunction which the court below is authorized to grant and further referred to Orders 1 rule 19(7) and 3 rule 3(3) of the court of Appeal Rules, 2002 which also provide for a similar application which was refused by the court below to be made to this court within fifteen days after the refusal by the lower court; to submit that the conditional stay of execution by the court below is tantamount to a refusal of the application.

The reason according to counsel is that it was impossible for the appellants/applicants to deposit the sum of N15 million within one week. He then submitted that this court has power to grant injunction pending appeal since by the provisions of the laws above cited the court has the discretionary powers to grant or refuse an application for injunction.

Placing reliance on the cases of Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257 at 266: Deduwa v. Okorodudu (1974) 6 SC 21 at 25: he enumerated the circumstances under which this court can exercise its discretion to grant injunction or stay of execution pending appeal.

On the special circumstances as enumerated in the above cases the learned counsel posited that there is a pending appeal and unless the injunction is granted the applicants right to appeal against the lower court’s decision would be paralyzed and the res destroyed with the consequent inability of the parties to return to the status quo even if the appeal succeeds.

Relying again on Akeem & Ors. v. University of Ibadan (2002) FWLR (Pt.85) 221 at 235; (2001) 15 NWLR (Pt. 736) 352 paragraphs C – D he urged the court to preserve the res and grant the application as the applicants notice of appeal discloses arguable grounds of appeal which borders on the jurisdiction of the lower court to adjudicate on the case.

Referring to paragraphs II(viii); 21(ii) and 24 of the affidavit in support of the motion he noted that the machines removed from the 1st applicant’s premises and kept in 1st respondent’s premises were worth N50 million and that it would not be in the interest of justice to allow the 1st respondent to keep those machines which were worth more than the debt owed her as at March, 2006, more so as the 1st respondent through the Advances Officer has deposed in her counter-affidavit that the machines were not worth more than N1 million.

Citing again the case of Yusuf v. Edun (2005) All FWLR (Pt.252) 241 at 557; (2005) 16 NWLR (Pt. 950) 34, which followed Martins v. Nicannar Foods Ltd. (1988) 2 NWLR (Pt.74) 75, he asserted that there is the need for the preservation of the machines which could be sold at a reasonable price and the balance paid to the appellants after settlement of the debt when the appeal may have been determined.

Referring again to paragraph 18(ii) and (iii) of the affidavit in support he submitted that special circumstance has been disclosed to warrant the grant of the application as the 2nd respondent has been appointed to sell the mortgage property and throw out Mrs. Zainab Ebun Buraimoh a wife to the late 2nd applicant, who cannot afford to rent a new house for herself and children and cannot be adequately compensated for all the agony and financial expenses suffered in the interim if the application is not granted.

Relying finally on the authorities of Obeya Memorial Hospital v. A.-.G, Federation & Anor (2004) All FWLR (Pt. 232) 1580 at 1600 para. D. (SC); (987) 3 NWLR (t.60) 325; Ajomale v. Yaduat & Anor (No.2) (2003) FWLR (Pt. 182) 1913 at 1928 para. H (SC); (991) 5 NWLR (PU91) 266, on the protection of the plaintiffs’ right against injury which would not be adequately compensated and on the balance of hardship or convenience he argued that there would be more hardship on the dwellers of the house which is sought to be sold or foreclosed than the 1st respondent would suffer in waiting for the determination of the appeal. He finally, urged the court to grant the application.

Replying to the appellants’ /applicants’ address the learned counsel for the 1st and 3rd respondents after giving a brief gist of the case noted that the present application is the same as was granted by the lower court and that the only reason given by the applicants in their address is that it is practically impossible for the applicants to deposit the sum of N15 million in court within one week of the ruling.

Learned counsel for the 1st and 3rd respondents then submitted that the only issue for determination in this application is whether the applicants as mortgagors who defaulted in the payment of the mortgage debt, are entitled in law to restrain the 1st respondent, as an unpaid mortgagee from the exercise of her power of sale of the mortgaged properties, and her other rights under the terms of the chattel mortgage and the Deed of Legal Mortgage.

For this question which he answered in the negative he relied on the authorities of Nigerian Housing Development Society Ltd. v. Mumuni (977) NSCC Vol. 11 page 65 at 73; 1977) 2 SC 57 which held that an unpaid mortgage will not be restrained on the exercise of his power merely because the mortgagor had no money to pay, and Bank of Baroda v. Panesar (986) Ch. 75 where it was held that if money due under a debenture is payable on demand, the debtor is not entitled to any time to raise the money if it was not at hand.

Learned counsel further placed reliance on the cases of Intercity Plc v. Feed & Food Farms (Nig.) Ltd. & Ors. (2002) 3 WRN 146 at 156 – 160 (2001) 17 NWLR (Pt.742) 374 where the Court of Appeal, Kaduna Division adopted Mumuni’s case supra and quoted with approval Fisher and Lightwood’s Law of Mortgages, 9th Edition by E.L.G. Tyler at page 367 and Premier Breweries Ltd. v. Anere Construction Co. Ltd. (1987) 3 NWLR (Pt. 62) 688 at 695 CE, where similar application of this nature was made and the debtor as in this case entitled to some money, to submit that the 1st respondent cannot be deprived of the amount due him more so as the applicants have not complained of the order of the lower court nor prayed this court to waive the deposit of N15 million and that same be varied.

The second submission of the learned counsel to the 1st and 3rd respondents was to the effect that the ruling of the Federal High Court dated the 3rd October, 2006 in suit No. FHT/IL/08/17/2004, which granted conditional stay of execution was an exercise of the court’s discretionary powers and that on the authority of “Practice and Procedure of the Supreme Court” etc. at paragraph 60: 18 (on page 740), by Akinola Aguda, this court will not interfere in any way with the trial Judge’s exercise of his discretion in matters of his discretion and powers.

He finally prayed the court to refuse the application because according to him a grant of same would amount to departing from the terms of the chattel mortgage and deed of legal mortgage, which parties entered into voluntarily.

On the part of the learned counsel Abdulwahab Bamidele, Esq., who happens to be the 2nd respondent it was contended that the appellants/applicants did not exhibit the entire record of proceedings of the lower court which warranted the order of 3rd October, 2006 exhibit B to the appellants/applicants affidavit.

It was also submitted that injunctive orders are granted entirely at the court’s discretion which must be exercised judiciously and judicially upon the applicants showing compelling facts upon which the judgment must be stayed. In this case learned counsel submitted, the applicants failed to show in their affidavits such facts but merely presented facts in support of the substantive case thereby inducing this Honourable Court to make pronouncements on the substantive case contrary to the decision in the case of Total (Nig.) Plc v. V.I.I.R.A. (2004) 7 NWLR (Pt. 873) 446.

Making reference again to the case of Standard Trust Bank Ltd. v. Contract Resources (Nig.) Ltd. (2001) FWLR (Pt. 72) 1939; (2001) 11 NWLR (Pt.725) 518 he observed that the appellants/applicants were granted conditional stay in the lower court and are turning round to ask for injunction rather than for a review or variation of the terms and conditions imposed in the first order. This court, he asserted cannot grant him a review of conditions imposed by the lower court under section 18 of the Court of Appeal Act, on the authority of Oyeti v. Somkun (1963) All NLR 349; (1963) 2 SCNLR 320 and Construzioni Generali Farsura Cogelar SPA v. N.P.A. (1972) NSCC 706; (1972) 2 SC 107 because according to him his prayers in the motion dated 6/10/2006 are different from the ruling of 3/10/06 and therefore constitute abuse of court process.

Turning to the issue of injunctions, he submitted further on the authorities of Dyktrade Ltd. v. Omnia (Nig.) Ltd. (2000) 12 NWLR (Pt. 680) 1 that injunctions are granted to applicants with identifiable legal right that should be protected but that in this case the applicants have not shown any legal right apart from impecuniosity and hardship as can be gleaned in paragraphs 17 and 18(i) – (iv) of their affidavit in support. Counsel further referred us to paragraphs 7 and 8 of the affidavit in support and paragraph 11(iii), (iv), (v), (vi) thereof as against paragraphs 5, 6 and 7 of the 2nd respondent’s counter-affidavit together with exhibits A and B thereto and submitted that it is settled that impecuniosity by itself cannot ground a stay of execution and that the 2nd respondent has exercised the right of sale as contained in the mortgages.

He reemphasized, citing the case of Akana v. F.B.N. Plc (2004) 8 NWLR (Pt. 875) 318 that the 1st respondent being a mortgagee is not a trustee to the appellants in the exercise of her power of sale of the mortgaged property and should do its best to protect itself under the mortgage agreement and the court would not interfere except where such powers were improperly exercised which remedy would be an action in damages. See Nigerian Advertisement Service Ltd. v. U.B.A. Plc (1999) 8 NWLR (Pt. 616) 546 referred.

Placing reliance again on the case of Deduwa v. Okorodudu (supra), Standard Trust v. Contract Resources (supra), and Sulu-Gambari v. Bukola (2004) 1 NWLR (Pt. 853) 122 learned counsel in sum submitted as follows:

1. That the applicants have not shown that the 1st respondent exercised her power of sale wrongly,

That the position highlighted above is a special circumstance that weighs against the grant of the application,

3. That the applicants have the duty to establish balance of convenience in their favour to induce the grant of the application but they have failed to do so.
4. That the justice of the case was adequately and appropriately considered when the conditional stay was granted and the order for payment of the N15 million into an interest yielding account made.
5. That the enforcement of the above order would not destroy the res of the case, render the appeal nugatory or foist a situation of fair accompli such that the parties cannot return to the status quo ante.
6. That it would be inequitable for the applicants to stall the execution of the lower courts judgment.

On the whole he urged the court to dismiss the application but that if the court were minded to exercise its discretion under section 18 of the Court of Appeal Act, it should be limited to varying the conditional stay of execution of the judgment of the lower court in a manner that serves the justice and peculiar facts of their case.

In his reply to the addresses of the respondents counsel, the learned counsel for the appellant on the submission by the respondents that the applicants have represented the application for stay of execution, submitted that the applicants/appellants prayed for an order of injunction pending appeal and not stay of execution and that by section 16 of the Court of Appeal Act, this court can make interim orders or grant any injunction which the lower Court would have granted. Referring this time around to Akukalia v. The Military Governor of Anambra State & 6 Ors. (1986) 5 NWLR (Pt. 41) 275 at 280 para. F, he reiterated that the grant of conditional stay amounted to a refusal of the application.

On the citation of the case of Nigerian Housing Development Society Ltd. v. Mumuni (supra), he noted that in that case the right of sale had been exercised and the suit was for the buyer of the property to be restrained whereas in our instant case the property had not been sold.

On the submission by the 2nd respondent/counsel at pages 4 and 5 of his address, he noted that it tended to lure the court into the arguments in the substantive appeal and relying on Akeem & Ors. v. Unibadan (2002) FWLR (Pt. 85) 221 at 237; (2001) 15 NWLR (Pt. 736) 352 he submitted that the law does not allow that at this stage of the proceedings.

He finally urged the court to grant the appellants/applicants application.

Now, section 16 of the Court of Appeal Act, Cap. 75, Laws of the Federal Republic of Nigeria, 1990 which is one of the statutes under which this application is brought states thus:-

16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal …and may make an interim order or grant any injunction which the court below is authorized to make or grant Order 1 rule 19(7) of the Court of Appeal Rules upon which the application is further predicated provides as follow’s:-

“(7) The court shall have powers to make orders by way of in functions or the appointment of a receiver or manager and such other necessary orders for the protection of property or persons pending the determination of an appeal to it even though no application for such an order was made in the court below.”

Order 3 rule 3(3) of the rules on the other hand stipulates that:-

“(3) Where an application has been refused by the court below an application for a similar purpose may be made to the court within fifteen days after the date of the refusal.”

The combined effect of the provisions of the Court of Appeal Act and Rules cited is that this court has the discretion to grant injunctions pending appeal before it just like a court of first instance and where a court of first instance refuses an application for an injunction the appellant/applicant has the discretion/option to reapply to the Court of Appeal for a similar purpose rather than appeal against the refusal to grant same by the lower court, provided that the similar application is made within fifteen days after the refusal of the application by the lower court.

In Oyeti v. Somekun (1963) 1 ANLR 355 at 356 – 357; (1963) 2 SCNLR 320, Ademola, CJN had cause to construe Order vii, rule 37 of the Supreme Court Rules, and section 24 of the Supreme Court Act, 1960 which are in pari materia with Order 3 rule 3(3) and section 18 of the Court of Appeal Rules and Act.

The applicant in that case had moved the court and prayed for a stay of execution of the judgment obtained against him in the High Court of Western Nigeria pending the determination of the appeal before the Supreme Court. The High Court had earlier granted him a stay on conditions, which were unsatisfactory to him as in our instant case.

Mr. Moore for the respondent raised a preliminary objection on the ground that the application was misconceived as he thought that the proper course for the applicant to take was an appeal against the order of the High Court.

The learned law lord after considering the provisions of the Supreme Court Rules and Act as earlier highlighted held as follows:

“We are of the view that whilst proceedings by way of appeal to this court may be a remedy in such cases, it is not the only remedy. The provisions of section 24 of the Federal Supreme Court Act, dealing with stay of execution, are worthy of consideration. They state:

“24. ….

….

…

“It appears to us that the power of this court under section 24 of the Act is in no way fettered by the fact that a previous application to the High Court has been granted in the High court; an applicant may, if he so desires, seek more favourable conditions in the Supreme Court, if he thinks the conditions laid down by the High Court are onerous or, for any other reason are found unreasonable.”

The dictum of Ademola, CJN in the above case, was adopted by Coker, JSC who read the lead judgment of the apex court in Construzioni Generali Farsura Cogefar; SPA v. Nigeria Ports Authority & Anor (1972) 7 NSCC 706; (1972) 12 SC 107 when he emphasized thus:-

“While the Supreme Court has the necessary jurisdiction under section 24 of the Supreme Court Act of 1960, to make an order of stay of execution at the instance of the party who had sought the order for stay in the lower court … ”

By these authorities it would appear that the appellants/applicants can come to the Court of Appeal to re-seek an order of stay of execution on more liberal terms since they complain in their affidavit and submissions that it was impossible for them to raise N15 million within one week as ordered by the lower court.

In other words, they need not come by way of appeal for the conditions to be varied under section 18 of the Court of Appeal Act.

The above position not withstanding, the applicants contend that they are not seeking for stay of execution but for injunction to restrain the respondents from foreclosing the mortgage property and selling same, pending the determination of the appeal before us. Thus they rely on section 16 of the Court of Appeal Act, Cap. 75, 1990, which generally confers on this court the power to grant any injunction which the court below is authorized to grant.

If we go by the provisions or section 16 of the court of Appeal Act, Order 1 rule 19(7) of the Courts Rules and Order 3 rule 3(3) thereof, the application had been made to the lower court and granted.

It is therefore not true as contended by the learned appellants/applicants counsel that the application in the court below was refused.

The complaint of the applicants in the circumstance of this case should ordinarily be by way of appeal for a review of the conditions for injunction as granted by the lower court and this application ought to be dismissed for constituting an abuse of court process.

However, in view of the provisions of section 18 of the Court of Appeal Act which states thus:-

18. An appeal under this part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with the rules of court.”

this court, in line with the dicta of Ademola, CJN and Coker, JSC in the cases earlier cited can entertain this application for injunction which is an indirect way of calling for a review of the conditional stay of execution granted by the lower court.

See S.T.B. Ltd. v. Contract Resources (No.2) (2001) FWLR (Pt.72) 1939 at 1949; (2001) 11 NWLR (Pt.725) 518 per Fabiyi, JCA who cited Oyeti v. Somekun & C.G.F.G.S.P.A. v. N.P.A. (supra) to hold that:

“Where a Judge has granted a conditional stay of his judgment, as in this case, a further application can be made under section 18 of the Court of Appeal Act to vary same with terms and conditions it deems .fit and necessary. The terms may differ from the ones imposed by the trial court. The circumstance of the case may warrant the Court of Appeal to vary or annul the terms imposed by the court. ”

Some eyebrows may be raised particularly as the applicants did not predicate their application under section 18 of the Court of Appeal but rather under section 16 which provides for injunction rather than stay of execution. The answer had long been provided by Idigbe, JSC (of blessed memory) in Shodeinde & Ors. v. The Registered Trustees of Ahmadiyya Movement-In-Islam (1980) 1 – 2 SC 163; (1983) 2 SCNLR 284.

In that case the learned law lord at page 181 said:

“What then is the position regarding an application for an injunction pending appeal? It does appear to me that the position can be any different. I find considerable support in the judgment of Cotton, L.J. in Polini v. Gray (Ibidem at p. 446). As the learned Judge said, there is “no difference in principle between staying the distribution of a fund to which the court has held the plaintiff not to be entitled and staying execution of an order by which the court has decided that plaintiff is entitled.”

In this case the quarrel of the learned counsel for the respondents is that the court of first instance having granted the conditional stay, the applicants would have either appealed or specifically brought the application under section 18 of the Court of Appeal Act for a review of the onerous conditions so imposed by the lower court. This, with the greatest respect, cannot be the current position of the law. By a long line of decided cases it has been established that in claims and applications for equitable reliefs as in this case the courts have been liberal in their interpretation of the provisions of our rules and laws. See for instance Williams v. Snowden (1886) W.N. 124 where an equitable right to specific performance appearing incidental to the cause of action was granted even though not claimed. See again Borrowers v. Delany L.R.I.R. 124 where a lease was rectified even though rectification was not claimed.

In the Nigerian case of Juliana Obi v. Victor Adolphy & Ors. (1973) 3 E.C.S.L.R. 703, Oputa, J., (as he then was), following the principles laid down in the two English cases above cited held that where the prayers in a motion paper have been inelegantly drafted such that the gravamen of the relief is not reflected, a court of equity has the power to grant an equitable relief which has not been specifically claimed but the right which is incidental appears in the proceedings.

By extension, where a motion fails to pray for a particular relief but prays in general terms, “for such further order or other orders as this Honourable Court may deem fit to make in the circumstances,” as in our instant case, this court may under such prayer grant appropriate relief as if it had been expressly prayed for. See Laibru Ltd. v. Building & Civil Engineering Contractors Ltd. (1962) 1 All NLR 387 held 9; (1962) 2 SCNLR 118 and Nimanteks Associates Ltd. & Anor v. Marco Construction Co. Ltd. & 9 Ors. (1987) 2 NWLR (Pt. 56) 267 at 269 held 11 & 12.

Against this background, we shall now proceed to consider the motion filed by the appellants/applicants on the merits.

It has long been settled by a plethora of authorities both at the apex and intermediary courts of the land that an applicant seeking an order of injunction to restrain a successful party from enjoying the fruits of his judgment must furnish the court with special and exceptional reasons why such a judgment should be suspended pending appeal. He must also show that the balance of convenience is in his favour and that there are strong and arguable grounds of appeal which are not frivolous. The rationale behind this principle of law is always that courts are not in the habit of depriving a successful litigant of the fruits of his judgment or locking up funds to which prima facie he is entitled. See Nwabueze v. Nwosu (1988) 4 NWLR (Pt. 88) 257 SC and Balogun v. Balogun (1969) 1 All NLR 349.

The learned counsel has aptly enumerated the special circumstances under which an order of injunction pending appeal may be made which are:-

1. Where the subject matter (res) of the dispute will be destroyed if the injunction is not granted.
2. Where a situation of complete helplessness would be foisted on the court especially the Court of Appeal.
3. Where execution will paralyze in one-way or the other, the exercise of the litigant’s constitutional right of appeal.
4. Where the order of the court would be rendered nugatory.
5. Where execution would provide generally a situation in which whatever happens to the case and in particular even if the appeal succeeds in the Court of Appeal, there would be no return to the status quo ante.

The question to be answered in our instant case is whether the applicants have shown that such exceptional circumstances exist so as to warrant the grant of their application. The answer can be found only from the depositions in their affidavit in support of the application.

On the first criterion which is whether the res or subject matter would be destroyed, the deponent Miss Victoria Osasona on behalf of the applicants stated in paragraph 21(i) – (iii) thus: –

(i) That on 2/8/2006 Mr. Mumuni Abdul informed me and I verily believe him that if this application is not granted the 1st respondent will sell the 2nd plaintiff’s house at 3 Pategi Kwara State and 1st appellant/applicant’s premises at Apata Yakuba, Ilorin before the determination of the case.

(ii) That the amount the plaintiffs were claiming in this case is much more than the sum of N26 million being owed the 1st respondent by the 1st applicant.

(iii) That it would work great hardship on the 1st applicant and the estate of the late 2nd plaintiff if the 1st respondent is allowed to seize all the mortgaged properties before the determination of the appeal.”

On the question of complete state of helplessness being foisted on the Court of Appeal if the execution is carried out, see paragraph 23 of the affidavit in support wherein it is stated that the 1st respondent will sell all the applicants machines in their custody at give away prices if the application is not granted.

This same reason would take care of criterion (3) which is that the order(s) of the Court of Appeal would be rendered nugatory should the appeal eventually succeed. See paragraph 19 of the said affidavit. As to whether the execution will paralyze the applicant’s constitutional right to appeal see paragraphs 17 and 18(i-iv) where the applicants complain of poverty but have not stated that their right of appeal will be paralyzed.

On the inability of parties to return to status quo ante should the appeal succeed, see the averments already highlighted in paragraphs 21, 23 & 24 of the supporting affidavit. Now in granting or refusing this application, I am minded to first consider whether the ground of appeal contained in the notice of appeal marked exhibit A to the affidavit of the applicants is arguable and substantial. That ground states together with its particulars thus:

“Ground One:

The learned trial Judge misdirected himself when he did not properly consider section 251 of the 1999 Constitution, which gives the Federal High Court concurrent jurisdiction on the matter. Particulars of misdirection

The learned trial Judge did not properly consider the fact that the matter emanated from a banker/customer relationship. That the Commissioner of Police as a Federal Government Agency is involved in the matter.”

It has been held in Vaswani Trading Co. Ltd. v. Savalakh & Co. (1972) 12 SC 77, that if there are chances of the applicants succeeding on appeal then application for a stay or injunction pending appeal may be granted. See Shoge v. Musa (1975) 1 NMLR 133.

Again where an appeal genuinely raises an issue of jurisdiction an injunction pending appeal will be granted. See Martins v. Nicanner Food Co. Ltd. (1988) 2 NWLR (Pt. 74) p. 75 (SC); Adefulu v. Oyesile & Ors. (1989) 5 NWLR (Pt. 122) 377.

In our instant case, the applicants have genuinely raised the issue of jurisdiction if it is proved in due course that the court below which struck out the substantive suit for want of jurisdiction to adjudicate on same, actually had the jurisdiction to entertain the suit.

In our determination of this application the nature of the subject matter or the res also has to be taken into consideration. Here the res in the case are houses and machinery, which are not perishable. They could depreciate through wear and tear but I dare say that in the circumstance of this case, since the widow and children of the 2nd applicant (now deceased) are living in the house and are complaining of hardship and impecuniousity following the demise of the 2nd plaintiff/appellant/applicant, it would be most unconscionable to throw them out to the elements. The respondents can await the outcome of this appeal without the house and the machineries being obi iterated.

As for the sale of machinery the applicants insist that they are worth more than N50 million Naira whereas the respondents assert that they can only be valued at N1 million Naira if sold. I hold the view that the value of the machinery can better be determined upon the hearing of either the substantive case or appeal and not at this interlocutory stage. It is therefore in the interest of justice to preserve the machinery, until the final determination of the appeal or the substantive suit so that even jf they are sold, a fair price can be arrived at. (See Unilag v. Dada & Ors. (1971) 1 U.I.L.R 344; Util Gas Nig. & Overseas Co. Ltd. v. Pan African Bank Ltd. (1974) 10 SC 195.

On the balance of convenience, there is no doubt that on the authorities cited by the learned counsel for the 1st and 3rd respondents the law is settled that applicants as mortgagors who defaulted in the settlement of their mortgage debt may not be entitled in law to restrain the mortgagees from exercising their right of sale.

However, this is an interlocutory application pending the hearing and determination of the substantive appeal and I shall resist the temptation of being dragged into pronouncing on the substantive issues in the appeal. Accordingly, I shall discountenance all the submissions of counsel on the issue formulated by counsel for the 1st and3rd respondents and indeed learned 2nd respondent/counsel in that respect as well as their counter-affidavits which in the main raise issues which ought to be resolved by oral evidence at the trial court or at the hearing of the appeal.

See Dantata v. Consolidated Resources (2005) All FWLR (Pt. 280) 1474 at 1493 – 1494, paras. F – A, where Sa’aba, JCA delivering the lead judgment of this Court of Appeal, Kaduna Division succinctly stated the position of the law as follows:-

“it is the law that the trial court as well as an intermediate appellate court should desist from making positive pronouncement touching on the substantive issue. University Press Ltd. v. I.K. Martins (Nig.) Ltd (2000) FWLR (Pt. 5) 722 SC; (2000) 4 NWLR (Pt.654) 584.

In this case all the averments in the counter-affidavits of the respondents center on the exercise of their right to sale of the mortgage property.

In Nigerian Advertising Services & Anor v. U.B.A. Plc & Anor (1999) 8 NWLR (Pt. 616) 546 the facts were that the 1st appellant took a loan sometime in 1972 which loan was secured with the 2nd appellant’s property. Upon the failure to liquidate the loan despite repeated demands the 1st respondent bank sold the mortgaged property and the appellants instituted the action to set aside the sale on the ground that they had made available the sum of N1.2 million bank draft to the 1st respondent for the redemption of the mortgaged property. The case was dismissed and on appeal to the Court or Appeal, it was variously held: –

1. That once the mortgagee exercises his bonafide right of sale for the purpose or realizing his debt without collusion with the purchaser the court will not interfere even if the sale is disadvantageous unless the price is so low that fraud can be inferred from the low price.
2. That in the exercise of such power of sale a mortgagee is under a duty to take reasonable care to obtain a true value of the property.
3. That the right of a mortgagor who has been damnified by improper or irregular exercise of a m0l1gagee’s right of sale is in damages against the person who exercised the power. See Nigerian Housing Dev. Society Ltd. v. Mumuni supra at 607; Okonkwo v. CCB. (Nig.) Plc (1997) 6 NWLR (Pt. 507) 48; Majekodunmi v. Co-op. Bank Ltd. (1997) 10 NWLR (Pt. 524) 198.
4. That a mortgagee will not be restrained on the exercise of his power of sale merely because the mortgagor objects to the manner the sale is arranged or because the mortgagor has commenced a redemption action but he will be restrained if the mortgagor pays the amount claimed by the mortgagee into court. See Mumuni’s case supra at page 52 (SC).

In this case however, the power of sale is yet to be exercised as the respondents have merely seized the mortgaged property when the action commenced in the lower court. If the sale had been effected, definitely this court’s hands would have been tied as injunction generally does not lie to restrain completed acts.

Learned counsel for the 2nd respondents has contended on the authority of Dyktrade Ltd. v. Omnia (Nig.) Ltd. (2000) 12 NWLR (Pt. 680) 1 at 12 paras. C – F that the applicants have not shown any identifiable legal right that should be protected by the grant of an injunction. I beg to differ with the greatest respect with such submission as the applicants sued in the lower court and brought the application thereat which was conditionally granted. They have the equity of redemption of the mortgaged property and in their paragraphs 17 and 18 of the affidavit in support Mumuni Abdul and Mrs. Zainab Buraimoh are mentioned as child and wife of the late 2nd appellant/applicant. See also paragraph II (i-ii) of the affidavit in support, where the said Abdul informed the deponent, and she verily believed same that he is one of the children of the 2nd plaintiff and one of the directors of the 1st applicant/company.

The averments of the Advances Officer in paragraph 10 of the counter-affidavit of 12th October, 2006 is neither here nor there and the question of Corporate Affairs Commission Form CAC 7 disclosing Mumuni as Director does not arise at this juncture. Such an issue should either be raised at the court of 1st instant or in the substantive appeal.

In the case of Ejikeme v. Okonkwo (1994) 8 NWLR (Pt. 362) 266 which was quoted in the Nigeria Advertising Services Ltd. case supra at page 556 paragraphs C – E, it was held that the right to redeem is so inseparable an incident of mortgage that it cannot be taken away either expressly or by implication nor can such redemption be limited to time or a particular person. The right is said to continue until the mortgagor’s title is extinguished or the interest destroyed by sale either under process of court or by the mortgagee.

See Halsbury’s Laws of England, Fourth Edition Re-Issue vol. 32 at page 149, paragraph 307 where the mortgagor’s equity of redemption is defined inter alia:

“Incident to every mortgage is the right to redeem, a right which is called his equity of redemption, and which continues not withstanding that he fails to pay the debt in accordance with the proviso for redemption. This right arises from the transaction being considered a mere loan of money secured by a pledge of the estate.”

Since the said Mumuni Abdul and Mrs. Zainab Ebun Buraimoh are both beneficiaries and successors-in-title to the 2nd applicants estate, their equity of redemption of the mortgagee property subsists until this case is finally determined in favour of the respondents. The applicants therefore have sufficient interest or legal right to be protected by injunction.

On the whole, I am of the view that even though poverty by itself is not a ground for stay of execution of a judgment or grant of injunction pending appeal, some special circumstances have been disclosed in the affidavit of the applicant to warrant a grant of injunction or stay of execution of the lower court’s judgment pending the appeal now before this court.

In the circumstance, until the determination of this appeal, which must be prosecuted within three months by the appellants, failing which the respondents shall exercise their right of sale of the mortgage property as enshrined in the mortgage deeds executed by the parties. I hereby order as follows:

1. That this application is meritorious and is hereby granted.
2. That the respondents either by themselves, their agents, servants or privies are hereby restrained from foreclosing the appellants/applicants property at No. 13 Borgu Crescent Adewole Estate, Ilorin, Ndaba Nigeria Ltd., Apata Yakuba, Ilorin, Pategi in Pategi Local Government Kwara State or any other property belonging to the appellants/applicants.
3. That the respondents, their agents, servants or privies are restrained from selling appellants/applicants machines removed from their workshop at Apata Yakuba, Ilorin on 23rd January, 2004.
4. That I make no order as to costs.

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Other Citations: (2007)LCN/2265(CA)