S.O. Odulaja Black And White Hotel Limited V. Wema Bank Limited & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Lagos State sitting in Ikeja delivered on 6th of July, 1990. The Appellants as Plaintiffs had filed a Writ of Summons and thereafter filed a Statement of Claim. These two processes were later amended. The Plaintiffs/Appellants sought the following reliefs:

“1. A declaratory that the Deed of Mortgage dated 13th March, 1985 made between the 1st and 2nd Plaintiffs of the one Part and the 2nd Defendant of the other is null and void on the ground that the 2nd Defendant is (sic) not validly consent to the said transaction.

2. Alternatively, an order against the Defendants jointly and severally setting aside the sale of the said landed property of the 1st Plaintiff situate and know as No: 53 Coker Road, Ilupeju Lagos State by the 1st and 2nd Defendants.
3. Alternatively, an order against the Defendants jointly and severally setting aside the sale of the landed property of the 1st Plaintiff situate at and known as 53 Coker Road Ilupeju Lagos State by the 1st Defendant.
4. An order against the 4th and 5th Defendants from taking possession of being or remaining in occupation of or otherwise interfering with the 1st Plaintiff’s possession of the said property.
5. A declaration that the purported sale of the Duplex House and landed property situate lying and being at 61, Coker road to the 4th and 5th Defendants for the sum of N482,000.00 is illegal and void ab initio.
6. A declaration that the said sale to the 4th and 5th Defendants by Public Auction on 21st day of March, 1989 was an under value of the prevailing market price and was therefore in BAD FAITH and the sale should be set aside.”

The Respondents as Defendants filed their Statement of Defence. The Appellants thereafter filed a motion on notice praying for:

“(1) An order of interlocutory injunction restraining the Defendants, their servants, agents or Privies from committing any further act or acts of trespass and damage to the house and premises situate lying and being at No: 61, Coker Road Ilupeju Lagos, Lagos State or any part thereof.”

“(2) For such further Order or Orders as this Honourable Court right deem it fit and proper to make in the circumstances.

In support of this motion was a 32-paragraph affidavit. The learned trial Judge, refusing the Appellants’ prayers, gave his considered ruling held as follows:

“The 4th and 5th Defendants shall be allowed to move into the house undisturbed subject to this (sic) conditions:

1. That the 4th and 5th Defendants shall not materially alter any part of the building (sic) the determination of the substantive case; for security purposes, however, the fence surrounding the house can be altered
2. Or rebuilt (sic) if need be. Secondly, since it is said there is another tenant in the premises, whose tenancy is seamred (sic) through the Plaintiffs, such tenancy, when it expires, shall not be renewed by anyone but the place shall revert into the…..

It is also further ordered that for this possession of the building which is being granted to the 4th and 5th Defendant, pending this suit the 4th and 5th Defendants shall enter into a written undertaken to pay reasonable rents to the Plaintiffs should they and the 1st and 2nd Defendants lose in the substantive case. Such undertaken shall be given and filed in the court with (sic) 14 days from today.”

The Plaintiffs/Appellants were dissatisfied with this Ruling hence this appeal. The Appellants filed their notice and four Grounds of Appeal on 23rd of July, 1991. Also in their amended notice, filed two more grounds. The Appellants filed their brief on 5th of May, 2001 and articulated three issues for determination. They are as follows:

“(1) Whether the learned trial Judge was right in issuing a mandatory order dispossessing the Appellants of possession in favour of their adversary in a ruling refusing an order of interlocutory injunction when the question of possession is one of the matters to be resolved upon the trial of the substantive suit.

(2) Whether the learned trial judge was right in granting the 5th and 6th Respondents a relief they did not request for.

(3) Whether in the light of the affidavit evidence before court and its findings regarding who was in possession the trial judge was right in holding that the balance of convenience titled against the Plaintiffs such as enabled him to dismiss their application for injunction.”

The Respondents filed their Respondents’ brief and articulated only one issue for determination.