African Continental Bank Limited & Anor V. A. O. Awogboro & Anor (1990)

LawGlobal-Hub Lead Judgment Report

ADEMOLA, J.C.A.

This is an appeal against the interlocutory injunction granted by Olorunnimbe, J., sitting in the Lagos High Court, Ikeja Division in this matter, on the 13th January, 1986.

The 1st plaintiff/respondent was mortgagor to the 1st defendant/appellant. The 1st appellant had advanced money to the 1st respondent for his business and the 1st respondent has defaulted in the payment of the total amount owing standing now a little over a Million Naira. Whereon, the 1st appellant instructed the 2nd defendant an Auctioneer to sell the house which is the subject-matter of the mortgage, thereby exercising his power of sale under the Mortgage Deed to sell the property No. 27 Onayade Street, Ikorodu, Lagos.

The second respondent brought a motion restraining the defendants from selling the house; claimed an interest in the house in that the house is also her residence and that of her children as well as the 1st respondent who is her husband.

The learned trial Judge after listening to the parties made an interlocutory injunction restraining the Auctioneer that is the 2nd defendant and the 1st appellant from selling the property.

The appellants have appealed to this court against the Order so made. The appellants have set out the questions for determination in the brief filed as follows:-

(1) Whether on the affidavit evidence before the learned trial Judge, the plaintiffs had established any of the criteria known to law in Nigeria for grant of interlocutory injunction.

(2) Whether the learned trial Judge was right in declaring that there was a triable issue and that that was a basis for granting interlocutory injunction, without reviewing and evaluating the affidavit evidence before him and without even identifying the said triable issue.

(3) Whether the trial Judge was right in dealing with the question of balance of convenience and pronouncing thereon when the plaintiffs had not fulfilled the condition precedent of making out a prima facie case that they were entitled to the right of whose violation they complained.

(4) Whether in any event the learned trial Judge was right in exercising his discretion in favour of granting the interlocutory injunction despite the delay and lack of diligence on the part of the plaintiffs in prosecuting the same, after having obtained an interim injunction against the defendants.

The respondent has also filed a brief and set out the issues for determination in the following way:-

“The respondents submit that the issues for determination in this appeal are:-

Did the learned trial Judge correctly exercise his discretion judicially in granting respondents Interlocutory Injunction on the facts reported after a careful and painstaking appraisal of the 4 Affidavits presented by the parties to this appeal?

Did the conduct of the respondent show that the application for interlocutory injunction was not pursued diligently?”