First Bank Of Nig. Plc & Anor V. Ndarake & Sons (Nig) Ltd. & Anor (2008)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
This is a ruling delivered against the Defendants/Appellants by the High Court of Akwa Ibom State, holden at Ndiya Ikot Imo, Ikono Judicial Division presided over by Abraham J. on 6/6/2006 in Suit No. HKN/26/2005. The facts leading to this appeal are as follows:
The First Bank Plc. granted credit/loan facilities to Ndarake & Sons (Nig) limited which were secured by three separate deeds of legal mortgage covering three separate properties and registered in the Lands Registry, Calabar. After drawing down on the loan facility, Ndarake & Sons (Nig) Limited defaulted on the payment of the loan together with interest. The Bank wrote several demand letters to the company but the latter replied pleading for time to settle its indebtedness to the Bank. When it became apparent that the company was unwilling to repay the loan and the accumulated interest, the Bank instructed its auctioneer to auction the mortgaged properties. Following an advertisement in the Pioneer Newspaper of Monday, 9th May, 2005 one of the mortgaged properties situated at Itu Udo (Itudoh) Ibioho Ibom was auctioned to one Mr. Mandu Hassey Odom. After the said sale the Plaintiffs/Respondents commenced Suit No. HT/41/2005 on 11/7/2005 at the High Court, Ikot Ekpene. It was later transferred to Ikono Judicial Division and given Suit No. HKN/26/2005. The respondents also filed a motion for interlocutory injunction against the sale of the three mortgaged properties pending the determination of the suit. The motion was opposed by the appellants who filed a counter-affidavit. After hearing arguments on the motion, the court delivered its ruling on 6/6/2006 restraining the appellants from selling any of the mortgaged properties pending the determination of the suit. It is against this ruling that the appellants appealed.
There were four grounds contained in the Notice of Appeal from which three issues were formulated as follows:
i) Whether the learned trial Judge did not err in law when he ordered an interlocutory injunction against a concluded sale of a property.
ii) Having regard to the fact that the plaintiff/respondent admitted the facts contained in the Counter-Affidavit and Further Counter-Affidavit filed by the appellants whether the trial Judge was not wrong in granting the order of injunction restraining the appellants, an unpaid mortgagee, from exercising its power of sale under the deeds of mortgage.
iii) Whether the trial Judge was not wrong in refusing to accept as admitted the unchallenged affidavit evidence of the appellants to the effect that the plaintiffs/respondents were indebted to the 1st appellant under the mortgage deeds.
An application dated 14th August, 2007 which was filed on 29/8/2007 for extension of time to file the Appellants’ brief and to deem same as duly filed was heard and granted on 27/9/2007. Since the Respondents failed to file the Respondents’ brief a further application to hear the appeal on the appellants’ brief alone was granted on 7th September, 2008. Thereafter, the appeal was adjourned to 22/9/2008 and 21/10/2008 for hearing. The appeal was heard on 21/10/2008 without the respondents filing any brief.
The appeal arose from the interlocutory decision of the lower court which granted an order restraining the appellants from selling the mortgaged properties until the final determination of the substantive action. That suit is yet to be determined by the High Court. In view of the fact that the substantive action is yet to be dealt with only the first issue has arisen for determination.
Learned counsel submitted that an injunction cannot lie to restrain a concluded act and cited the case METRO GAS LIMITED v. EFERAKEYA (2001) FWLR (Pt. 39) 1442 at 1454 in support of the submission. He referred to the prayers in the motion for interlocutory injunction and the counter-affidavit by the appellants filed on 9/2/2006 especially paragraphs 15 & 16 of the said counter-affidavit which were not controverted and argued that the appellants duly established the fact that the property at Itu Udoh, Ibiono Ibom was sold before the suit was commenced. That being the case, learned counsel maintained, the trial court restrained a completed act which is not allowed by law. He referred to the following cases to buttress his argument: AJEWOLE v. ADETIMO (1996) 2 NWLR (Pt. 431) 391; OCHOMA v. IDEOZU (2001) FWLR (Pt. 51) 1875; JOHN HOLT NIG. LTD. v HOLT AFRICAN WORKERS UNION (1963) 1 ALL NLR 319. He urged this court to allow the appeal since the plaintiffs did not deny knowledge of the sale.
In the motion filed on 11/7/2005 the applicants now respondents prayed for the following reliefs:
1. An order of interlocutory injunction restraining the 1st respondent, its agents, servants and privies from auctioning, selling or attempting to sell the properties of the applicants pending the hearing and determination of the substantive suit.
2. An order granting the applicants, its agents, servants and privies continuous free and unimpeded access to their following properties:
i) One residential building of (4) four flats and 2 (two) storey buildings of 6 (six) flats, both at No. 20 Nto Etuk Idem Street, Off Church Road, Ikot Ekpene Urban, Akwa Ibom State.
ii) Petrol Station consisting of (2) two pumps in good condition and one storey building (warehouse and office complex) at Itudoh, along Ikot Ekpene, Calabar Highway, Ibiono Local Government Area.
iii) An Estate with one storey building and (8) eight bungalows on (4) four acres of land opposite Ibiono Ibom Local Government Secretariat, Okoita, Ibiono Ibom Local Government Area pending the hearing and determination of the substantive suit.
In paragraphs 15 and 16 of the counter-affidavit dated 9/2/2006 filed in opposition to the motion, Aniekan Etuk, deposed to the following facts:
“15. That the mortgaged property at Itu Udo, Ibiono Ibom had since been sold by auction to one Mr. Mandu Bassey Udom, to the knowledge of the applicants before the commencement of this suit in exercise of the power of sale conferred on the 1st respondent in the dead (sic) of Legal Mortgage.
16. That the auction was widely publicised in the Pioneer Newspaper, May 9, 2005 attached as Exhibit “B” to the motion papers herein.”
The Respondents did not controvert or challenge the facts deposed to in paragraph 15 of the counter-affidavit. They were also aware that the mortgaged properties had been advertised in the Pioneer Newspaper of 9/5/2005 since the 2nd applicant/respondent deposed in paragraph 10 of the affidavit in support of the motion for interlocutory injunction that –
“10. That on the 4th day of July, 2005, while on a business trip to Calabar, I got a call from a friend who informed me of an advertisement (Public Notice) of an auction sale of applicants’ properties. This advertisement is contained in the PIONEER NEWSPAPER dated Monday, May 9, 2005…”
The properties listed in the advertisement are the same properties contained in the prayers sought in the motion.
Learned counsel argued and I agree with him that since the facts deposed to in paragraph 15 of the counter-affidavit have not been challenged or controverted in a further affidavit filed by the respondents, the only conclusion I can reach is that the facts stated in the said paragraph 15 of the counter-affidavit have been established. The Supreme Court held in STATE v. COMISSIONER FOR BOUNDARIES (1996) 37 LRCN 603 at 613 that
“If a party deposes to certain facts in an affidavit, his adversary who wishes to dispute the facts so stated, has a duty to swear to an affidavit to the contrary, otherwise the facts deposed to shall be regarded as duly established”
Kutigi, JSC (as he then was) captured the situation as has been played out in the present case when he stated in ATTORNEY-GENERAL, ONDO STATE v ATTORNEY-GENERAL, EKITI STATE (2001) 17NWLR (pt 743) 706 at p. 749 that-
“I shall mention too that the plaintiff did not find it necessary to file a further and or better affidavit in respect of anything deposed to by the defendant in its counter-affidavit and or further counter-affidavit. The proper and only conclusion therefore is that the defendants’ story remained unchallenged and uncontroverted.”
The factual situation in this case is that the appellants had sold the property at Itu Udo before the suit was commenced. The law on the issue is as clear as crystal and it is that an interlocutory injunction is not a remedy for restraining an act which has already been concluded. See: JOHN HOLT NIG. LTD. v HOLT AFRICAN WORKERS UNION (1963) 1 ALL NLR 319; AJEWOLE v ADETIMO (1996) 2 NWLR (Pt. 431) 391; METRO GAS LTD. v EFERAKEYA (2000) 14 NWLR (Pt. 686) 1. The only remedy available to the respondents was for an action to set aside the sale already concluded and not for an interlocutory injunction.
The appeal as it relates to the interlocutory injunction restraining the 1st Respondent/Appellant from auctioning, selling or attempting to sell the parcel of land together with the developments made thereon situated at Itu Udo, Ibiono Ibom (formerly Itu) Local Government Area of Akwa Ibom State of Nigeria, has merit and it is hereby allowed. The order restraining the 1st Respondent, First Bank Plc, its agents, servants and privies from auctioning, selling or attempting to sell the said property is hereby set aside with N20,000.00 costs in favour of the Appellants against the Respondents.
Other Citations: (2008)LCN/2991(CA)
