OLORI MOTORS LTD. V UBN

Issue:

The respondent, as the plaintiff at the Benin High Court, had sued the appellant, as the defendant claiming the sum of Eight million, thirty-one thousand, nine hundred and eighty three Naira (N8,031 ,988.00) being the balance due on overdraft and loan facilities (including interest) granted by the plaintiff to the defendant. It is important to add that the plaintiff had also sought an order of court empowering the plaintiff to sell the properties mortgaged to it by the defendant to secure the loan facilities. On 4-2-94, Aiwerioghene J. gave judgment in favour of the plaintiff. Respondents herein filed a notice of appeal and a motion on notice for stay of execution which were never served on the Plaintiff/Respondent. During the pendency of the Notice of Appeal and the motion for stay of execution, the Respondent went ahead to sell some of the mortgaged properties to cover the judgment obtained from the High Court. On 31/5/94 the 1st and 2nd Defendants filed an application to set aside the execution. The application was taken by Idahosa J who ruled in favour of the Defendants/Applicant by setting aside the sale carried out by the plaintiff on the 15th day of April, 1994. NSCQR VOLUME 26 2006 Page 170 The plaintiff was dissatisfied and brought an appeal before the Court of Appeal. The court below in a unanimans Judgment allowed the appeal and set aside the ruling of the High Court. The 1st and 2nd Defendants have appealed to the Supreme Court.