Matthew Okechukwu Enekwe V. International Merchant Bank Of Nigeria Ltd. & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

The appellant is the plaintiff. He is the registered owner of plot No.3, Julius Bala Crescent, Legislators Quarters, Jos. The Certificate of Occupancy bears No. BP 3785. The appellant is also the Chairman and Managing Director of Crystal Star Associates and Company Limited.

The plot was mortgaged to the 1st respondent as collateral for a loan advanced to Crystal Star Associates and Company Limited. Between 1987 and 1990 the 1st respondent, the mortgagee, made several attempts to realise their security. The first attempt was made between June and July 1987. The property was advertised for public auction because of the default on the part of the appellant to redeem the mortgage.

The 1st respondent decided to sell the property. Appellant quickly ran to court to stop the sale. That was in suit No. PLD/J 197/87. The suit was assigned to Soluade, J. It was dismissed for want of diligent prosecution.

On 16th February, 1988 the appellant filed two motions in suit No. PLD/J197M2/88. The first one was on notice for an injunction against 1st respondent from selling the property. The second one was ex parte for an interim injunction against 1st respondent from selling the property. The two motions came before Uloko, C.J., although the suit pending before Soluade, J., was neither reassigned nor withdrawn. On 23rd February, 1988, Uloko, C.J., granted the interim injunction ex parte. He made an order restraining the 1st respondent from selling the property. The Chief Judge did not give a date for the hearing of the motion on notice. And so, it was a one way affair, the affair of the appellant as the 1st respondent was shut out of the litigation. And so was it; badly so.

There seems to be a general agreement on the above facts although there could be infinitesimal areas of disagreement. There is, however, a very loud area of disagreement. Let me state it quickly. It is the case of the appellant that while the ex parte order of Uloko, C.J., was valid and subsisting, the 1st respondent sold the properly to the 3rd respondent who in turn resold it to the 2nd respondent. The 1st respondent has a different version of the matter. It is this, on 7th March, 1988, the motion No. PLD/J197M5/87 was struck out for want of diligent prosecution. Similarly, on 8th March 1988, the Court of Appeal dismissed the motion No. CA/J18M/88 also filed by the appellant to restrain the 1st respondent from selling the property pending on a purported appeal filed before the Court of Appeal as same was abandoned. With this development, 1st respondent sold the property to 3rd respondent who in turn sold it to the 2nd respondent on 7th September, 1989 when it appeared that “all the flurry of actions instituted by the appellant had abated.” In other words, the case of the 1st respondent is that there was no subsisting or pending order when the property was sold. And so they parted ways, materially too.

Aggrieved by the sale, the appellant filed an action. He asked for two declaratory reliefs as follows:

“(1) A declaration that the 1st defendant herein has no interest whatsoever in the property for the time being.

(2) A declaration that the purported sale of the property of the 1st defendant to the 2nd and 3rd defendants is/are unlawful, null and void and of no effect whatsoever.”

The 1st respondent counter-claimed for the sum of N102,109.5 being outstanding balance on the balance of Crystal Star Associates and Company Limited. The 2nd respondent counter-claimed for possession of the property.

The High Court dismissed the claim of the appellant and struck out the counter-claims and held that the suit was an abuse of the court process. On appeal, the Court of Appeal dismissed the appeal and cross-appeal.

The appellant has come to this court. Brief were filed and duly exchanged. The appellant formulated three issues for determination:-

“1. Whether the sale of the appellant’s property was valid during the pendency of a restraining order.

2. Whether the Court of Appeal was right in raising new (sic) suo motu.
3. Whether the Court of Appeal was right in dismissing the appeal.”

The respondents also formulated three issues for determination:-