S. O. ODULAJA VS WEMA BANK LTD

CORAM

TASLIM O. ELIAS, JUSTICE SUPREME COURT

PARTIES

S. O. ODULAJAN BLACK AND WHITE HOTEL LTD.

APPELLANTS 

1. WEMA BANK LTD.

2. DIRECTOR OF LANDS LAGOS STATE

3. MILITARY GOVERNOR OF LAGOS STATE

4. ATTORNEY GENERAL LAGOS STATE

5. MR. IGHODALO

6. MRS. IGHODALO

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiffs/Appellants instituted an action against the Defendants/ Respondents at the High Court of Lagos State seeking a declaration that the Deed of mortgage in respect of the property situate at No. 53 Coker Road, Ilupeju Lagos State, made between the 1st and 2nd Plaintiffs/Appellants of one part and the 2nd Defendant/Respondent of the other part, was null and void on the ground that the 2nd Defendant/Respondent did not validly consent to the said transaction and for an order setting aside the sale of the property in dispute by the 1st and 2nd Defendants to the 4th and 5th Defendants/Respondents. The Plaintiff/Appellant, thereafter, filed a motion on notice praying the trial Court to restrain the 4th and 5th Defendants/Respondents from committing further acts of trespass on the property in dispute. The trial Court refused the application and made an order allowing the 4th and 5th Defendants/Respondents to take possession of the property pending the determination of the suit in dispute on the conditions that they shall not materially alter any part of the property or renew the rent of the 1st Plaintiff/Appellant’s tenant who was in occupation after the expiry of the said rent and that the 4th and 5th Defendants/Respondents shall enter a written undertaken to pay rents to the Plaintiffs/Appellants if judgment was delivered in the favour of the Plaintiffs/Appellants. Dissatisfied with the ruling of the trial Court, the Plaintiffs/Appellants appealed to the Court of Appeal.

HELD

Appeal Allowed.

ISSUES

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.?

RATIONES DECIDENDI

EXERCISE OF DISCRETION – A COURT MUST EXERCISE ITS DISCRETION JUDICIOUSLY AND JUDICIALLY

“A court ought at all times to exercise its discretion judiciously and judicially. Offodile vs. Egwuatu (2006) 1 NWLR Pt. 961 pg. 421.” PER NDUKWE-ANYANWU JCA

ORDERS – WHETHER AN ORDER INCIDENTAL TO THE PRINCIPAL ORDER CAN BE GRANTED WHERE THE PRINCIPAL ORDER SOUGHT IS REFUSED

“Once the principal order sought in an action is refused, no order, incidental to the principal order can be granted. Awoniyi vs. Registered Trustees of the Rosicrucian order, AMORC (2000) 6SC pt. 1 pg . 103 ”. PER NDUKWE-ANYANWU JCA

EXERCISE OF DISCRETION – A PROPER EXERCISE OF DISCRETION SHOULD BE ACCORDING TO LAW AND NOT HUMOUR

“The courts have always cautioned that, a proper exercise of discretion should be according to law and not humour. The exercise of discretion should not be arbitrary, vague and fanciful but legal and regular. It must be upon facts and circumstances presented to the court, from which it must draw a conclusion governed by law. UBN Plc. Vs. Adjarho (1997) 6 NWLR Pt. 507 pa. 112.” PER NDUKWE-ANYANWU, JCA

EXERCISE OF DISCRETION – CIRCUMSTANCES WHERE AN APPEAL COURT CAN INTEREFERE WITH THE EXERCISE OF DISCRETION

“However/where the exercise of discretion tends to do injustice to one of the parties, the Appeal Court must employ its judicial sledge hammer to salvage the situation. Guda vs. Kitta (1999) 12 NWLR Pt. 629 pg. 21; Imani & Sons Ltd Vs. Bil Construction Co. Ltd. (1999) 12 NWLR Pt. 630 pg 254: Mohammed vs. COP (1999) 12 NWLR Pt 630 pg 331; Ehindimhen Vs. Musa (2000) 4 SC Pt. 11 pg. 160; Oyekanmi Vs. NEPA (2000) 12 SC.” PER NDUKWE-ANYANWU JCA

ORDERS OF COURT -THE COURT WILL NOT GRANT ORDERS NOT PRAYED FOR

“The court is not a father Christmas that grants orders not prayed for. See Oladunjoye vs Akinterinwa (2000) 4sc pt. 1 pg. 19. AGF vs A.I.C Ltd (2000) 6SC pt 1 pg 175. Dyktrade Ltd v Omni Nigeria Ltd (2000) 7 SC pt 1 pa 56 Agrotec Technical Services (Nig) Ltd vs Miit & Sons Ltd (2000) DSC pt. II pg. 1.,Badmus v Abegunde (2001) 3 WRN pg 40.” PER NDUKWE-ANYANWU JCA

EXERCISE OF DISCRETION– A COURT OF APPEAL CANNOT INTERFERE WITH A PROPER EXERCISE OF DISCRETION OF A LOWER COURT

“The discretion of the court cannot be questioned where it was exercised judicially and judiciously. Indeed the Court of Appeal will not interfere with a proper exercise of discretion of a lower court”. PER NDUKWE-ANYANWU, JCA

CASES CITED

STATUTES REFERRED TO

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