Union Homes Savings & Loans Limited V. Cpl Industries Limited (2009)

LawGlobal-Hub Lead Judgment Report

R.C. AGBO, J.C.A.

The respondent was indebted to the appellant. The appellant, aggrieved at the reluctance of the respondent to pay the sums owing, approached the Federal High Court in a winding up proceeding to wind up the respondent. The appellant and respondent negotiated a settlement which was reduced into writing and by consent of both parties made the judgment of the trial court. The terms of this settlement bear reproduction hereunder:

“TERMS OF SETTLEMENT

The parties hereby agree to settle this suit as follows:

1. The parties agree that the sum due and owing to the Petitioner from the respondent is N40,000,000.00 (Forty Million Naira).

2. The respondent shall pay the said sum of N40,000,000.00 (forty million naira) in the manner hereinafter appearing.

(i) N15,000,000.00 (Fifteen Million Naira) shall be paid on the execution of these presents.

(ii) The balance sum of N25,000,000.00 (Twenty-five Million Naira) shall be paid in six equal monthly installments of N4,166,666.66 with effect from 30th December 2000 terminating on 31st May 2001.

3. In the event that the respondent defaults in the payment of any installment the whole amount then outstanding shall immediately become due and payable.

4. On the payment of the total amount the petitioner would unconditionally and no costs to the respondent execute a Deed of Release in respect of the Deed of Mortgage over the Respondent’s property.

5. These terms shall be made judgment of court.”

The respondent could not keep to the terms of repayment. It negotiated with the appellant and agreed to pay interest on the sum owing for the forbearance of the appellant from recovering the total sum owing at once. The respondent continued to have difficulties in paying the judgment debt. The judgment debt was supposed to have been paid up by 31st May 2001. On 30th October 2002 the appellant caused a writ of fifa to issue. On 9/1/03 a writ of attachment was executed against the respondent’s movable property. The property were however not sold but remained in the custody of the Sherriff of the Federal High Court. On 21-6-03 the respondent completed paying N40 million. On 1-9-03 the appellant, purporting to act on compassionate grounds, applied to the Federal High Court to release to the respondents its movable property in the custody of the court. The court obliged and released the goods. The respondents approached the appellant claiming to have discharged the judgment debt and demanding the release by the appellant in consonance with the terms of the consent judgment the respondent’s title documents and execute a deed of release in respect of respondent’s mortgaged property. The appellant balked and demanded payment of the agreed interest before it could prepare a deed of release of the mortgaged property. The respondent then by a summons for release of title documents filed on 16/12/2004 sought the help of the Federal High Court to force the appellant to prepare a deed of release of the respondent’s mortgaged property. Affidavit evidence was placed before the trial court by both parties. Both parties presented written addresses to the court which in a considered ruling adjudged the application as follows:

“I have considered the facts of this case. I have also considered the submissions of learned counsel. Equally considered are the authorities referred to by them. What happened in this case was there was a consent judgment delivered by my learned brother GUMEL J. on 11th December 2000 wherein the parties agreed that the sum due and owing to the petitioner from the respondent is N40,000,000.00 perhaps out of an oversight the judgment did not make any mention of interest. The judgment debtor/applicant had paid this sum of N40,000,000.00 as evidenced by Exhibits BB and CC-CC7. Upon completion of the payment of the N40,000,000,00 the judgment debtor was expecting by the plaintiff/judgment creditor to release the Title Documents to its property and also to execute a Deed of Release in respect of the Deed of Mortgage over the property. As I said earlier the judgment of Gumel J. of 11th December 2000 did not say anything about interest and since it is a consent judgment the only inference is that the issue of interest is waived. It is therefore my opinion that the defendant/judgment debtor have complied with the judgment of 11th December 2000 by paying the N40,000,000.00 there is no justification on the part of the plaintiff to continue withholding its Title Documents relating to its property the subject of the legal Mortgage. It is absolutely unfair. The case had been decided and so the parties have no alternative than to comply with the order of the court. The judgment debtor having paid the sum of N40,000,000.00 the plaintiff is bound to release the Title Documents to them as ordered by the court as per paragraph 5 of the judgment. In view of the foregoing I hold that the applicant herein is entitled to the relief sought in this application. The application is therefore granted as prayed.”

Not being satisfied with this ruling the appellant has filed this appeal. Briefs of argument were filed and exchanged. From the four grounds of appeal the appellant formulated the following three issues for determination: