OLORI MOTORS & COMPANY LTD VS UNION BANK OF NIGERIA PLC

CORAM

I. L. KUTIGI JUSTICE, SUPREME COURT

PARTIES

1. OLORI MOTORS & COMPANY LTD.

2. PRINCE MORRISSON OLORI

3. PRINCE A. OHARISI

APPELLANTS

UNION BANK OF NIGERIA PLC

RESPONDENTS

AREA(S) OF LAW

INTERLOCUTORY APPEAL – DOCTRINE OF LIS PENDIS

SUMMARY OF FACTS

Judgment was entered in favour of the Plaintiff against the Defendants in the sum of N7,9949.273.00 and N84,710.00 with interest. The Defendant filed Notice of Appeal simultaneously with motion for stay of execution and paid for service. The plaintiff was not served and levied execution on some of the mortgage property. The defendant application to the High Court to set aside the execution and was granted but was also dismissed on appeal.

HELD

The Supreme Court held by majority of 3:2 that the doctrine of lis pendis cannot apply because the respondent had no notice of the pending appeal or the motion for stay of execution.

ISSUES

Whether the lower court was right when it dismissed the appellant’s application to set aside the sale of the appellants’ mortgaged property during the pendency of the appeal against the decision of the lower court and a motion for stay of execution of the said judgment.

RATIONES DECIDENDI

EXECUTION OF JUDGEMENT WHILE THERE IS A STAY OF EXECUTION

“I think in matter like this where it is sought to show that execution of judgment took place while an application for stay of execution had already been brought, the argument must be that in spite of that application, the execution creditor went ahead with the execution. In my respectful view the argument cannot be tenable without clear evidence that the execution creditor was aware as a fact of the pendency of that application in order to give the desired effect to the admonition ..” Per Uwaifo JCA in Pavex Int. Co. Ltd V. I.B.W.A. (1994) 5 N.W.L.R. (Pt. 347) 685 at 696. Quoted by I.C. PATS ACHOLONU, JSC