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.