Alhaji Audu Shugaba V. Union Bank Of Nigeria Plc. (1999)

LAWGLOBAL HUB Lead Judgment Report

B. WALI, J.S.C

It is pertinent to set out the sequence of events in this case leading to the filing of action in the High Court of Borno State sitting in Maiduguri. Alhaji Audu Shugaba, the plaintiff/appellant is a customer of the defendant/respondent. On October 30th, 1987, the appellant filed suit No. M/135/87 in which he prayed for the following reliefs:-

“(a) A declaration that the purported deed of legal mortgage in respect and covered by certificate of occupancy No. B0/3131 and known as International Airport Hotel Maiduguri and situate along Kano Road, Maiduguri, registered in favour of the defendant is illegal, null and void and of no effect whatsoever.

(b) An order perpetually restraining the defendant, its agents, servants or privies from auctioning, selling or in any way disposing of the property covered by Certificate of occupancy No. BO/3131 in pursuance of or under the purported deed of legal mortgage, illegally and unlawfully registered in favour of the defendant at the Lands Registry, Maiduguri.

(c) A declaration that the plaintiff is not owing the defendant the sum of N333,210.85 or any sum whatsoever.”

It appears from the bundle of papers filed in this Suit pleadings were ordered and same were filed and exchanged. The trial proceeded and evidence of the appellant in support of his case was partly taken. The appellant’s evidence was being taken when he stopped coming to court for no apparent reason. As stated in the appellant’s brief before this court: “The case was part heard until it was struck out on 11th July, 1994 for want of diligent prosecution.” In striking out the suit the court awarded, costs of N500.00 to be paid before the suit could be relisted. The Ruling of the learned Judge in which she struck out the case and made the order stated in the appellant’s brief (supra) is contained on page 32 of the record of proceedings wherein it is stated-

…. I struck out this suit for lack of diligent prosecution. In respect of the costs sought for I hold the view that costs of N500.00 is appropriate in favour of the defendant and the same to be paid before any further step is taken towards relisting the suit, the suit is struck out with N500.00 costs.”

Instead of complying with order of the court by paying the N500.00 costs to get the suit relisted, the appellant filed another Suit No. M/177/94.

The filing of fresh suit to wit, No. M/177/94 was objected to by the Respondent on ground that the costs awarded in M/135/87 had not been paid when the step in filing the fresh action was taken, The learned trial judge agreed with counsel for the defendant when she stated in the drawn up order signed by her on 25th January, 1995, that-

“That an order is made refusing the application for interlocutory injunction and a further order is also made striking out the main suit No. M/177/94 now pending before this court as same is incompetent with the applicant failing or refusing to comply with the Court’s Order as to costs. There is also a cost of N500.00 to the respondent and same to be paid before any further step is taken in this case.”

The appellant abandoned both M/135/87 and M/177/94 and filed another fresh suit on 27th January, 1995 M/29/95 in which he repeated the reliefs sought for in the previous suits. He refused to comply with order of the court in M/177/94 to pay costs awarded therein before any further step is taken in the case.

It was after the drawn up order dated 25th January, 1995 copied on page 33 of the Record that the defendant proceeded with the sale by auction, of the appellant’s property the subject of this litigation. The sale by auction was carried out by the Respondent on 4th February, 1995.

Aggrieved with the Respondent’s action of sale by auction of the property the appellant yet commenced another action to wit. suit No. M/147/95 challenging the auction sale. He claimed as follows:-

“1. A Declaration that the purported Auction of the immovable property covered by Statutory Certificate of Occupancy No. B/3131 on 4/2/95 is Null and void ab initio.