Owena Bank Nigeria Ltd. & Anor V. Solnik Nigeria Ltd. & Anor (2002)

LawGlobal-Hub Lead Judgment Report

OKUNOLA, J.C.A.

This is an appeal against the ruling of the High Court of Justice, Ado Ekiti dated 3rd November, 1999 presided over by Aladejana, J. The facts which led to this appeal arose from an application of the plaintiffs/respondents dated 18th February, 1998 seeking an order of the lower court to commit the defendants/appellants for contempt for disobeying the order of the Benin Division of the Court of Appeal (hereinafter referred to as the court) dated 11th July, 1990 not to sell the 2nd plaintiff/respondent’s house at Ado Ekiti.

It will be recalled that in the original substantive action before the lower court respondent was second plaintiff while Solnik Nigeria Limited was first plaintiff. The claim of the said two plaintiffs is that:-

(i) There was no mortgage agreement between them and defendants, now appellants.

(ii) Interest payable by plaintiffs on the loan they took from defendant should be the original rate at which the loan was taken.

(iii) Determination of the real indebtedness of plaintiffs.

The defendant filed a counter claim.

In its judgment the lower court held that there was a mortgage agreement between the parties; that interest should be at the rate stipulated by the bank from time to time and an order that the property of the plaintiffs should not be sold but defendants got judgment for N403,766.07 as per their counter-claim. The plaintiffs appealed against the judgment and prayed for a stay of the execution of the judgment of the lower court. The Appeal Court granted a stay on the condition that first plaintiff deposited the judgment-debt into an interest yielding account in the name of first defendant. In respect of the second plaintiff, however, the Court of Appeal ordered that the judgment be stayed pending the determination of the Court of Appeal in the appeal before it but first plaintiff defaulted as it did not deposit the judgment/debt in any bank as ordered. In consequence the Court of Appeal vacated the order not to execute the judgment of the lower court. Thus, relying on the said vacation order, defendants sold the property of second plaintiff but not of the first plaintiff. Consequently, second plaintiff brought an action to commit defendants for contempt for selling second plaintiff’s property. In the end the lower court found defendants liable for selling second plaintiff’s property PENDENTE LITE.

According to the lower court, the order of the Court of Appeal Benin Division (The subject of complaints leading to the contempt proceeding) was to the effect that the respondents were granted a conditional stay of execution which was not complied with and later vacated by a subsequent order of the same Court of Appeal, Benin Division dated 4th March, 1991.

Consequently, the appellant sold the mortgaged property. Thus, in the said ruling of the lower court dated 3rd November, 1999 the court held that the order of the Court of Appeal Benin, Division given on 4th March, 1991 had vacated the earlier order of the same court given on 11th July, 1990 and that the appellant is not liable for any contempt but that it was wrongful of the appellant to have sold the mortgaged property. The lower court consequently ordered that the appellant return the mortgaged property to status quo ante the sale.

It is against the aspect of the ruling on the wrongful sale of the mortgaged property and the return of same to status quo ante the sale that the appellant has appealed to this court while the respondent cross-appealed on part of the ruling that the appellant is not liable for contempt of court.

From the ground of the main appeal, the appellants formulated a sole issue for determination in this appeal, viz:

Whether or not the lower court was right in holding that the appellant resorted to self-help in selling the mortgaged property.

Both learned counsel to the parties filed their brief of argument in respect of the main appeal. In the same breadth learned counsel to the respondent/cross-appellant also filed his brief of argument in respect of the cross-appeal to which the appellant/cross-respondent also replied. Both learned counsel to the parties adopted their respective briefs and addressed us viva voce to highlight some points in respect of their briefs.