3PLR – NATHANIEL AYODELE OGINNI V. INTERNATIONAL MERCHANT BANK LIMITED AND ANOTHER
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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NATHANIEL AYODELE OGINNI
V.
INTERNATIONAL MERCHANT BANK LIMITED AND ANOTHER
COURT OF APPEAL (IBADAN DIVISION)
WEDNESDAY, 8TH DECEMBER, 1993.
CA/I/M.214/92
3PLR/1993/77 (CA)
OTHER CITATIONS
[1994]3 N.W.L.R. PART 330 PG.89
BEFORE THEIR LORDSHIPS
ALOMA MARIAM MUKHTAR;
ISA AYO SALAMI;
SYLVANUS ADIEWERE NSOFOR.
BETWEEN
NATHANIEL AYODELE OGINNI
AND
- INTERNATIONAL MERCHANT BANK LIMITED
- DAVID B. ONI-ORISAN
REPRESENTATION
Chief Aderemi Adesina for the Applicant
MAIN ISSUES
PRACTICE AND PROCEDURE – EQUITY
PRACTICE AND PROCEDURE
PRACTICE AND PROCEDURE – APPEAL
MAIN JUDGMENT
Lead Judgement: Delivered by Mukhtar JCA
The applicant was a plaintiff in the court below and sought the following reliefs:-
(i) A declaration that the purported loan agreement between the plaintiff and the 1st Defendant is null and void.
(ii) A declaration that the purported Deed of Mortgage between the plaintiff and the 1st Defendant is null and void.
(iii) A declaration that the proposed sale of the plaintiff’s property situate at Block 1 Plot 9 Ogun State housing Corporation Estate, Otta the subject matter of this suit by the 2nd Defendant acting on the instructions of the 1st Defendant is unlawful and is in bad faith.
(iv) A declaration that the rate of interest of 11% contained in the Deed of Mortgage dated 14th January, 1983 and registered as No 1 at page 1 in volume 214 of the Ogun State Lands Registry, Abeokuta does not represent the intention and agreement of both parties thereto and is therefore void and of no effect.
(v) A declaration that the rate of interest of 21/2% above the 1st Defendant’s prime rate as stipulated in clause 4(b) of the loans agreement between the plaintiff and the 1st Defendant dated 10th May, 1982 does not represent the intention and agreement of both parties and is therefore void and of no effect.
(vi) A declaration that the only rate of interest applicable to the loan granted the plaintiff by the 1st defendant is that stipulated by the Central Bank of Nigeria from time to time for loans of not more than N100,000.00 to finance construction of residential buildings.
(vii) An order that the 1st Defendant accepts from the plaintiff payment of the value of no more than N100,000.00 wherefore the plaintiff is willing to pay a sum of N15,000.00 to the 1st Defendant or into court until the actual amount payable is determined.
At the end of hearing of the case the learned trial Judge gave judgement in favour of the plaintiff and made the following orders: In the circumstance as the plaintiff’s claim succeeds and it is ordered:-
(1) That the rate of interest of 11% contained in the Deed of Agreement, Exh 11 is illegal and unenforceable.
(2) Both the loan agreement and the Mortgage Instrument are based on illegal consideration and are therefore unenforceable.
(3) I am satisfied that the only rate of interest applicable to the loan granted to the plaintiff by the defendant is that stipulated by the appropriate guidelines issued by that body.
(4) The plaintiff has asked for an order that the amount due from him should be calculated on the basis of these guidelines and I have no hesitation in granting that order
Accordingly, to the extent stated above the plaintiff’s case succeeds and there will be judgement in favour of plaintiff in accordance with his Writ of summons. On the other hand the Counter Claim fails and it is dismissed.
In the course of the hearing of the case before Craig C J (as he then was) the plaintiff moved an application for interim injunction, after which the learned Chief Judge made the following order:-
“The plaintiff has made an offer to deposit the sum of N15,000.00 into Court as part payment of his indebtedness to the 1st Defendant. That offer has been accepted and it is ordered that the plaintiff shall within 7 days deposit into court the said sum of N15,000.00.”
The 1st Defendant before Sofolahan J later moved an application for:
“An order for the sum of N15,000.00 paid into court by the plaintiff payable to the Defendant/Applicant be paid over to the 1st defendant/applicant pursuant to the judgment delivered in this matter dated the 14th November, 1985.”
Upon being served with the above motion the plaintiff filed his own application on notice seeking for:
“An order granting leave to plaintiff/Applicant to withdraw from the court the sum of N15,000.00 being money paid into the court by the plaintiff/Applicant on 29/4/85 following the order of the court made in this suit on 3/4/85.”
Sofolahan J refused the application in the following terms –
“On the whole it appears that both sides have one hurdle or the other to clear and until that is done the judgment of Craig C J remains,. Therefore, for the meantime, the sum of N15,000 remains in court as ordered, whilst the status quo of both parties remain until the court’s order is fulfilled. To my mind, this is what equity demands.
It is the refusal of the supra application that the plaintiff appealed against. The 1st Defendant/Respondent moved the application for an order for the sum of N15,000.00 paid into court by the plaintiff payable to the 1st Defendant/Applicant to be paid over to the 1st Defendant/Applicant pursuant to the judgement delivered in the matter dated 14th November, 1985 In the ruling Odubuyi J considered all the evidence before him and granted the application in the following terms:-
“I am satisfied that the condition precedent i.e the calculation of the amount owed by the plaintiff on the interest rate ordered by the court which is 6% has been fulfilled and the hurdle has been cleared. I have no hesitation then in ordering that the 1st defendant/bank is entitled to the sum of N15,000.00 deposited into court by the plaintiff the purposes of which is to off set part of the loan granted him by the bank and this sum should be released to the 1st defendant/bank The sum of N124,158.17 is the outstanding balance due to be paid by the plaintiff to the 1st defendant/bank. I hereby direct the plaintiff to pay this sum to the 1st defendant/bank.
The plaintiff pending the determination of this appeal has come to this court for the following orders:-
(1) The order staying execution of Mr. Justice Jacob O A Sofolahan sitting in the High Court of ogun State, Court No 4 Abeokuta given on 8/5/90 by which order the sum of N15,000.00 was to remain in custody of the court pending the fulfillment of the order contained in the judgment of Mr. justice Babasanya Craig C J in this suit.
(2) The order staying execution of the High court of Ogun State No 1 Ota given on 1/6/92 releasing to the 1st Defendant/Respondent said sum of N15,000 deposit and ordering the plaintiff to pay the sum of N124.17
The application is supported by an affidavit and further affidavit sworn to by one Babatunde Ocloo. The respondent also filed a counter affidavit sworn to by one Godspower Obukaejeta.
When the applicant moved the application, he informed the court that they were not appealing against the substantive judgement in the case but the rulings of the lower courts. He argued that subsequent ruling should not have emanated from the judgement because the defendant filed a counter claim and they filed a defence to the counter claim which was dismissed. He further submitted that they have good and substantial grounds, and have disclosed exceptional circumstances in their affidavit, he placed reliance on the case of Okafor v Nnaife (1987) NSCC Vol 18 part 1194 (1987) 4 NWLR (pt 64) 129; Utilgas Ltd v Pan Africa Bank Ltd 1974 NSCC vol 9 393 and Ogunlade v A Adeleye (1992) 8 NWLR (pt 260) 409.
Learned Counsel for the Respondent in opposing the Application submitted that the Applicants supporting affidavits do not disclose special circumstances to warrant the granting of the application. The relevant paragraphs in the supporting affidavit reads as follows:-
- That the plaintiff informs me and I verily believe that he does not have sufficient cash or movable property to satisfy the orders of the lower court and if execution is levied it will lead to execution against his movable property the subject matter of this suit which will be difficult to get back in the even of the plaintiff succeeding in his appeal especially if such immovable has by then been sold in the course of such execution.
The above deposition is, I believe the exceptional circumstance referred to by counsel.
The said deposition was attacked by paragraphs 5,6,7 and 8 of the Respondent’s counter affidavit as follows:-
- That paragraphs 9,12 and 13 are not correct and at best a figment of the Plaintiff/Applicant’s imagination which in no way represent the factual situation.
- That the 1st defendant is one of the highly reputable banks in this country and as such is quite capable of making available the sum of N139,158.17 being the total debt due from the applicant should he succeed in his appeal.
- That the applicant is quite capable of liquidating his total indebtedness to the respondent as he is a man of substantial means.
Learned Counsel for the Respondent has submitted that poverty is not a ground for granting the order for stay, and that there is no substantial and arguable grounds of appeal. I agree completely with learned counsel that poverty per se is not a ground for granting such application. See Nwanosike v Udosen (1993) 4 NWLR (pt 290) page 284. The requirements of the law that the applicant must disclose special circumstances to warrant the grant of stay in order to avoid the situation of depriving a judgement creditor of reaping the fruits of his victory or to cause him unnecessary delay in doing so must be met. Likewise the grounds of appeal must be arguable and substantial ones. See Deduwa v Okrodudu 1974 46 C 21; Utilgas v Pan African Bank supra A hard look at the grounds of appeal does not show that they contain substantial and arguable grounds to warrant the exercise of this court’s discretion in favour of the applicant. This is a court of equity and good conscience, and the law enjoins us to exercise our discretionary power judicially and judiciously as require by law when considering and application for stay of execution, and this court will do just that See Vaswani Trading Co v Savalakh & co (1972) 12 SC 77 and Nwabueze Nwosu (1972) 4 NWLR (pt 88) page 2571 We must also strive to be equitable to ensure that a party is not stripped naked of his rights, or deprived of the fruits of his judgement because of some flimsy and unreasonable excuses.
Learned counsel for the Respondent submitted that the authorities relied upon by learned Counsel for the applicant are not on all fours with the present application, as the res to be preserved in this case is money which can be refunded in the event of the appeal succeeding. He referred to Nwanosike v Udensoh (1993) 4 NWLR Part (290) 684. I have taken judicial notice of the fact that at a bank as established and reputable as the 1st Respondent has the resources to pay whatever amount it is ordered to pay in the event of the success of the appeal. Moreover a res like money cannot be destroyed. In view of the above arguments and reasoning there are no fears to be entertained concerning the preservation or return of the res, should the appeal succeed, so the refusal of the application cannot cause injustice to the Applicant. Rather, it will deprive the Respondent of the fruit of their litigation for no just cause. The application is therefore dismissed with N500 costs to the Respondent.
Cases referred to in the judgment:
Balogun v Balogun (1969) 1 All NLR R 349
Deduwa v Okorodudu (1974) 6 S C 21
Madukolu v Nkemdilim (1962) 2 SCNLR 341
Martins v Nicanmar Food co Ltd & Anor (1987) 2 NWLR (pt 74) 75
Nwabueze v Nwosu (1988) 4 NWLR (pt 88) 257
Nwanosike v Udosen (1993) 4 NWLR (pt 290) 284
Okafor v Nnaife (1987) 4 NWLR (pt 64) 129
Oye vs Gov Oyo Sate (1993) 7 NWLR (pt 306) 437
Utilgas Nig and Overseas Gas Co Ltd v. P.A.B Ltd. (1974) 10 S.C 105 (1974) NSCC Vol 9 393
Vaswani Trading Co v Savalakh & Co (1972) 12 SC 77
