African Continental Bank Limited & Anor V. Prince A.O. Awogboro & Anor (1996)

LAWGLOBAL HUB Lead Judgment Report

OGWUEGBU, J.S.C.

The plaintiffs instituted a civil action in the Ikeja Division of the High Court of Lagos State against the defendants claiming that the mortgage between the 1st plaintiff and the 1st defendant which is secured by landed property known as 27, Onayade Street, Ikorodu Road, Lagos State is still valid and subsisting and that the 1st defendant’s power of sale under the mortgage has not arisen.

The plaintiffs also prayed the court to declare that the proposed sale of the said property by the 2nd defendant at the instance of the 1st defendant is null and void as it is not in conformity with the terms and conditions of the mortgage. They are also seeking an order of perpetual injunction restraining the defendants and their agents from selling or dealing in any way with the property, No. 27, Onayade Street, Ikorodu Road, Lagos.

On 4:2:85 which was the same day the writ of summons was issued, the plaintiffs filed a motion on notice praying the court in the following terms:

“Restraining the defendants/respondents by themselves and/or their agents. servants or privies from selling or otherwise dealing any way (sic) whatsoever with the property of the applicants lying being and situate at No. 27. Onayade Street, Ikorodu Road. Lagos, Lagos State pending the hearing and determination of this action.”

The application was supported by an affidavit of twelve paragraphs deposed to by the 2nd plaintiff and a further affidavit of one Idowu Asero, a clerk in the Chambers of the plaintiffs counsel. The defendants filed a counter-affidavit. The application was opposed.

The facts of the case are that both plaintiffs/respondents are husband and wife. Both are directors of a company called Awosco A-Z Stores Ltd. This company is a customer of the 1st defendant. Awosco A-Z Ltd. enjoyed banking facilities from the 1st defendant bank. The 1st plaintiff secured the facilities with a deed of legal mortgage over property known as No. 27. Onayade Street. Ikorodu Road. Lagos. The company and the 1st plaintiff defaulted in their obligations to the 1st defendant. The 1st defendant gave the 1st plaintiff and Awosco A-Z Stores Ltd. notice of sale of the mortgage property. The 2nd defendant is the auctioneer engaged by the 1st defendant to carry out the sale.

The plaintiffs resisted the proposed sale by filing a writ of summons and the application for an order of interlocutory injunction which gave rise to this appeal.

The relevant paragraphs of the affidavit in support of the application are:

“2(c) That 27, Onayade Street, Ikorodu Road, Lagos is the joint property of the plaintiffs and the 2nd plaintiff’s share of the said property is not subject to the mortgage recited in I above.

3. That this action was instituted as a result of the publication inserted at page 6 of the Friday Edition of the Daily Times published on 1/2/85 a photocopy of which publication is attached hereto and marked Exhibit “AA”
4. That before the publication of Exhibit “AA” the defendants/respondents failed and neglected to issue and serve on the 1st plaintiff/applicant the requisite notice under the Mortgage Instrument pointing out the default that made any power of sale exercisable.
5. That 27. Onayade Street. Ikorodu Road. Lagos is the only family house jointly owned by my husband, 1st plaintiff/applicant and myself and untold hardship will be involved should the house be sold as there is no alternative place of accommodation for us and 1st plaintiff/applicant is presently out of the country.
6. That the intended sale of 27 Onayade Street, Ikorodu Road, Lagos will paralyse my entire family as some of my children do attend educational institutions within the nelghourhood of Fadeyi where the property is sited.
7. That I will suffer irreparable damages and loss and I will have no alternative place to live with my family if the respondents are not restrained forthwith from disposing of my property.”

The affidavit was deposed to by the 2nd plaintiff/applicant who is the wife of the 1st plaintiff. The counter-affidavit gave account of the loan and mortgage transactions and the failure of the 1st plaintiff and Awosco A-Z Stores Ltd. to honour their obligations under the mortgage. In paragraphs 13, 14 and 15 of the counter-affidavit, the 1st defendant deposed as follows:-

“13. By a letter of 15/12/83 the 1st defendant issued a further demand notice to the 1st plaintiff demanding compliance with certain repayment terms or have 27, Onayade Street, Ikorodu Road sold. A copy of this letter is herewith attached marked Exhibit “G”.

14. By its letter of 28/9/84 with respect to the 1st defendant’s posture to sell the said property. the company pleaded with the 1st defendant to stay action “on the sale of the property of Prince A.O. Awogboro.” A copy of this letter is herewith attached and marked Exhibit “H”.
15. That the company again wrote to the 1st defendant only on 13/1/85 signed by the 2nd plaintiff pleading for further delay in the sale 27,Onayade Street and no mention was made of any interest of the 2nd plaintiff as a joint owner of the property.”

The learned trial Judge granted the application. The defendants not satisfied with the decision of the learned trial Judge appealed to the Court of Appeal. Lagos Division. They lost in that court and have further appealed to this court. The plaintiffs who are the respondents in this court did not file the respondents brief. They did not appear and were not represented at the hearing of this appeal. Order 6. rule 9 of the rules of this court is clear on the failure of a respondent to file his brief of argument.

The appellants have identified the following issues for determination: