Alhaji Aminu Altine & Anor V. Afribank Plc (2000)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD, J.C.A. 

The appellants herein were the plaintiffs at the lower Court.

They filed an action at the Kaduna High Court against the respondent claiming the following reliefs: –

“(1) A declaration that the plaintiff’s late father Alhaji Umaru Altine had cleared all of his outstanding loan at the defendant bank, well before June, 1991.

(2) Or in the alternative: A declaration that the defendant had failed to enforce any claim which they may have on the account at the High Court, Kaduna since October 1996, and as a result, that any claim which they may have against their said customers, have become statute – barred.

(3) That as a result, the defendant shall be ordered to release all of the plaintiff’s family title documents for plot No. 2A, Alkali Road, Kaduna previously mortgaged to the defendant.”

This writ of summons was paid for on 12th August, 1996 but it was not issued until 16th August, 1996. On the 15th day of August, 1996 the appellants filed a motion on notice asking for the following reliefs:-

“(1) An order granting an interim injunction, and thereafter a permanent injunction restraining the defendant and or their servants or agents or otherwise, from selling or purporting to sell the landed property of the plaintiff’s family at No. 2A, Alkali Road, GRA, Kaduna pending the determination of this case.

(2) An order amending the writ to include Northern General Contractors Limited as the 2nd plaintiff in this suit.”

(3) And for such further or other order as the Honourable Court may deem fit to make in the circumstances- of this suit.”

The motion was supported by a twenty-one paragraph affidavit. The Respondent filed a counter-affidavit of sixteen paragraphs. After hearing arguments and submissions from both the applicants’ and respondent’s Counsel, the trial Judge granted the prayer for joinder of Northern Contractors Limited as the second plaintiff. He however refused to grant the first prayer i.e. for interim injunction. In his ruling the learned trial Judge stated:-

“A careful perusal of the affidavit before me does not disclose to me what legal right of the applicant is in imminent (sic) of violation, neither is it shown anywhere that damages cannot adequately compensate (them) applicants. It is apparent that the property whose sale the applicants want restrained was mortgaged for a loan. Nothing has been exhibited before the court to show that the loan has been repaid. I agree with the learned Counsel for the respondent that Exhibit A attached to the affidavit in support cannot be such evidence, in view of Exhibit B which came much later in time.

In any case, I have my doubts about the correctness of granting an injunction for the sale of property which has already been sold. See Ogbonnaya v. Adapalm (supra) at page 33.

The principle of lis pendens relied upon by applicant’s Counsel is applicable in this case where the property had been sold before the respondent’s were served with the writ. As Mr. Makpu pointed out the property was sold on the 12/8/96 and the respondents were served with the writ on the 18th of August, 1996. It is immaterial that the writ was taken out on the 12/8/96 the same day the sale was conducted. As the writ had no magical power. The respondents could not have been aware of it until it was served on them.