Olufunmilayo a. Odutola & Anor. V. First Bank of Nigeria Ltd. & Anor. (2000)
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ONALAJA, J.C.A.
By a writ of summons filed at the High Court of Ogun State Ijebu Ode judicial division the plaintiffs now Appellants/Applicants in this ruling prayed the said court as follows:-
“(1) An order directing the 1st Defendant to furnish to the Plaintiffs a proper Statement of account showing the interests on the sum borrowed by the 2nd Plaintiff from the said 1st defendant and secured by a deed of Legal Mortgage dated 30th January, 1988 and registered as No.2 at page 2 in Volume 293 of the Register of titles formally kept at the Lands Registry Ibadan now at ABEOKUTA.
(2) An order of perpetual injunction restraining the defendants, their servants, agents and or privies or however from taking any steps or any further steps towards selling by public auction or by any other means disposing of the 1st Plaintiff’s property known as No. 6 Ejirin Road Mobalufon Ijebu Province, Ogun State”.
After service of the writ of summons on the 1st and 2nd Defendants now referred to in this ruling as Defendants/Respondents, pleadings were filed, exchanged and delivered. The case proceeded to trial with the testimonies for the applicants and respondents taken after which in a considered Judgment delivered by MRS. MABOGUNJE J. on 30th October, 1996 she dismissed all the claims of the appellants in their entirety.
Being dissatisfied applicants timeously filed an appeal to the Court of Appeal by filing their notice of appeal wherein they raised four grounds of appeal and in accordance with the rules of this court they furnished the particulars. The notice of appeal is marked as Exhibit ‘B’ in the supportive affidavit to this motion.
Applicants thereafter sought orders of injunction and restraining the 1st Respondent from charging or continue to charge interests on the sum borrowed by 2nd applicant from 1st Respondent from the High Court which in a considered ruling dated the 28th day of July, 1999 was refused by the High Court.
Notwithstanding the refusal by the Lower Court/High Court the applicants brought a motion on notice pursuant to Sections 16 and 18 of the Court of Appeal Act 1976 and Order 3 rule 3(4) of the Court of Appeal Rules 1981 (as amended) and under the inherent jurisdiction of this court and sought the under- mentioned reliefs:-
(a) An order of injunction restraining the respondents whether by themselves, servants, agents and or privies or howsoever from taking or causing to be taken any steps in advertising for sale or taking any steps or further steps towards selling by public auction or by any other means or disposing of the 1st appellant’s/applicant’s property known as No.6 Ejinrin Road, Mobalufon, Ijebu Ode, Ogun State pending the hearing and determination of the appeal herein.
(b) An order restraining the 1st respondents from charging or continuing to charge interests on the sum borrowed by the 2nd Appellant/Applicant from the 1st Respondent from the date of the judgment herein delivered on 30th October, 1996 pending the hearing and determination of the appeal herein”.
Applicants filed a supportive affidavit of 18 paragraphs with documents marked as Exhibits A to E. The motion was filed on 3rd August, 1999.
In reply, Respondents filed a counter affidavit of 13 paragraphs filed on 5th October, 1999 to which applicants filed reply affidavit of 13 paragraphs, on 26th November, 1999.
Upon the matter coming up for argument in the course of argument the learned counsel for Respondents gave an undertaking that pending the determination of the appeal in this Court the Respondents shall not take steps to sell by public auction or alienate 6, EJINRIN ROAD, MOBALUFON IJEBU ODE OGUN STATE the mortgaged property.
With the undertaking given by the learned counsel for the Respondents, prayer or relief one is granted with the consent of the parties.
The parties are now at daggers drawn in respect of relief (b) sought in this application, and the ruling is going to turn out on this issue (b) supra.
Learned Senior Advocate for the applicants relied on paragraph 13 of the supportive affidavit of 2nd August, 1999 in which it was deposed and admitted in the counter affidavit that the principal sum had already been paid being after reconciliation between the parties with mutual agreement of the parties the sum of N200,000.00 (Two Hundred Thousand Naira) paid by the applicants was full satisfaction and full settlement of the principal sum and chargeable interest. It is therefore unconscionable and being a court of equity to allow interest to be continuous contrary to the mutual agreement of finality of satisfaction and settlement of principal and interest. So he urged this court to grant prayer (b), by restraining 1st Respondent in particular from charging further interest pending the final determination of the appeal in this court.
The learned counsel for the Respondents pressed the court to reject and refuse prayer (b) In support reliance was placed on paragraphs 5, 10 and 13 of the counter affidavit when the issue of interest was not in the claim that was dismissed by the lower courts. The applicants have no legal rights to protest therefore as no legal interest has been established, which legal right must be established before a grant of injunction as decided in Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt. 145) at 506 at 513. So court to refuse prayer (b) as no legal interest has been established.
In reply on law learned Senior Advocate for Applicants submitted that applicants are the owners of the current account with 1st respondent which is a transaction in banking practice of creditor and debtor and by continuous charging of interest on the said account, now unlawfully, as there was final and full settlement raised legal interest to which applicants are entitled to protect. The mortgaged property is owned by the 1st Applicant which is now threatened with foreclosure there could be no further evidence of sufficient legal interest and legal rights which enures to the benefit of the applicants with legal right to protect the mortgaged property. Therefore court should reject the contention of the Respondents and grant prayer (b) sought by the Applicants.
It is trite law that a plaintiff like the present Applicants whose entire claims were dismissed by the lower court can still bring an application for injunction which is akin or tantamount to an application for stay of execution of the judgment after lodging an appeal, the only inhibition on the appellant/applicant is that the application must first of all be brought in the trial court before the application in the Court of Appeal. The Applicants adopted the proper procedure as shown in Exhibit E being the ruling of the lower court which refused to grant similar prayers now sought in this court. In confirming the jurisdiction of this court to entertain this application. I rely on the celebrated case of Y.P.O. Shodeinde v. Registered Trustees of the Ahmadiyo Movement in Islam. (1980) 1-2 SC 163 applied in Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt 102), page 122 SC, Engineering Enterprises, v. A.G. Kaduna State (1987) 2 NWLR (Pt57) page 381 SC. United Agro Venture Ltd. v. First City Merchant Bank Ltd. (1998) 4 NWLR (Pt 547) page 546 CA. To sustain the injunction, there must be valid, substantial and arguable grounds of appeal as the injunction is not granted as a matter of course. This makes me to look critically and in depth at Exhibit B and the grounds of appeal which in my assessment and opinion raised substantial and arguable grounds of appeal. By crossing this hurdle this court has jurisdiction to adjudicate whether to exercise its judicial discretion to be exercised judicially and judiciously to grant or refuse the application.
From the foregoing the ruling is going to be decided on a narrow compass as it is on an interlocutory application.
Being an interlocutory application let me reiterate the now established attitude of this court that it must warn itself and advert its mind that it must not unwittingly decide the very same matter or issue which is yet to be dealt with in the substantive case before it at the interlocutory stage. SCC Nigeria Ltd & Anor (by his next friend Friday Ukanwoke) v. Our Line Ltd. Universal Insurance Co Ltd (1995) 5 NWLR (Pt. 395) page 364 at 372. Egbe v. Onogun (1972) 1 All NLR (Pt. 1) page 95 at98 SC D.O. Orji v. Zaria Industries Ltd. & Anor (1992) 1 NWLR (Pt. 216) page 124 CA. Chief Reginald P.P. Abbey Hart & 4 ors (for themselves and as representing the entire Captain Hart’s Major Hours of Bonmy) v. TSKJ Nig. Ltd. & 3 OR5. (1997) 8 NWLR (Pt. 517) page 424 at 431 and 432 CA. Igwebuike Chibuzo Obi & Two Ors (For themselves and behalf of the beneficiaries of the Estate of Late Senior Chief Zacheus Okwukaelo Obi (deceased) v. Senator Onyeabo Obi & anor (1998) 4 NWLR (Pt. 544) page 51 CA.
Using the above authorities as the guide and the applicable principle, I shall now proceed to consider the contentions of the parties whether by acting judicially and judiciously the application should be granted or refused.
Applicants relied heavily on paragraphs 9, 10 and 11 of the supportive affidavit which are hereby referred to as follows:-
“9. That we have paid to the 1st Respondent the sum of N200,000.00 which the 1st Respondent offered to accept and did accept as full satisfaction of our indebtedness after the commencement of this suit. A copy of the cheque of N200,000.00 issued in favour of the 1st Respondent and our letter informing the trial court of the payment of the said sum are attached herewith and marked “D” and ”D1″ respectively.
10.That despite the payment of the said N200,000.00 in full satisfaction of the Appellants/Applicants’ indebtedness to it the 1st Respondent has continued to charge interests on the mortgage account to our detriment and loss.
11. That it will be unjust and injurious to us if the 1st Respondent continues to charge interests on the mortgage account after the payment of the said sum of N200,000.00 and after an appeal has been lodged against the judgment of the trial court”.
On the part of the Respondents, their learned counsel relied heavily on paragraphs 5, 10, and 13 of the counter affidavit which for ease of reference are hereby set out under:-
“(5) That Kayode Omotosho Esq., of counsel handling this matter informed me and I verily believe him that the concessionary offer made to them was independent of the Applicant’s case in Court and that they were asked to make the payment by 6th day of July, 1993 or before 31st of July, 1993.
(10) That Kayode Omotoso of counsel further informed me and I verily believe him that there was no relief restraining the right of the 1st defendant under the Mortgage Deed tendered in evidence by the 1st defendant under the Mortgage Deed tendered in evidence by the 1st plaintiff as Exhibit to continue to charge interest as agreed by the parties under the Deed. The lower Court had no pronouncement on this Issue as the Court would not have given what was not claimed. The 1st Plaintiff has no right to stop the 1st Defendant from charging interest.
13) That it was the belief of the Defendants that the offer of N200,000.00 made to the Plaintiffs was not acceptable and that was why they did not act within the time limit having personally served the said letter on 1st Plaintiff/Applicant upon his call at the 1st Defendant’s Head Office in Lagos. The Offer was considered as having been rejected.
That from the foregoing one was to decide and infer that the Applicants have no legal rights to protect as none was established. To grant an injunction the party seeking the injunction must establish the legal right as a condition precedent, thus applicants failed woefully to establish their legal rights the failure is bound to result in the dismissal of the application as decided in Morohunfola v. Kwara State College of Technology (1990) 4 NWLR (Pt.145) 506 at 513. Therefore learned counsel for Respondents, urge this court to reject prayer (b) of the application. In response learned Senior Advocate for Applicants maintained as earlier reflected in his contention above in this ruling that with the operation of the account by the Applicants with 1st Respondent upon which interest was being continuously charged and which interest is being challenged raised sufficient legal right.
As 1st Applicant’s mortgage property is being threatened with fore closure, this created legal right and with equitable remedy of redemption against forfeiture of the mortgaged property raised sufficient legal right in 1st Applicant which when threatened can be protected with an order of injunction.
Above, the issues of law and facts raised in this matter in deciding and resolving whether to grant or refuse the prayer of injunction the dictum in the case of (Icon Ltd. (Merchant Bankers) v. FBM (Merchant Bankers) Ltd. (1995) 6 NWLR pt 401 page 370 at 377 is instructive as follows:-
“At the interlocutory stage issues that would be canvassed at the appeal stage, ought not to be heard, argued by counsel and decisively commented upon by the Court.
The Court has to concern itself as to whether there exist favourable conditions that would enable it to grant the application if not, refuse it”.
(Italics supplied).
So as not to decide unwittingly the manner in the substantive appeal the issue of interest based upon the fact that a sum of N200,000.00 was paid on a common ground but the contestable issue being whether or not it was full and final settlement thereby leading to cessation of chargeable interest or continuous charge of interest applying ICON LTD case supra made in my assessment sufficient existence of favourable conditions that enabled me to grant the application to grant an injunction against the 1st Respondent from charging further interests on the sum borrowed by the 2nd appellant/applicant pending the hearing and determination of the appeal in this court.
In the consideration a hard look at this ruling will show that no comments about the merits or demerits of the matter to be considered in the substantive appeal has been considered, this step was deliberate and done advisedly so as not to prejudge or pre-empt the substantive appeal.
In the circumstance Respondents having consented to prayer (a) by giving undertaking in the terms of the said prayer and with prayer (b) granted with effective date from the day of this ruling that acting judicially and judiciously each party or parties shall bear the cost of this appeal.
Other Citations: (2000)LCN/0661(CA)
