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.
It is clear from all that I have been saying that prayer (one) 1 cannot be granted. It is accordingly hereby dismissed.”
Dissatisfied with this decision the appellants appealed to this Court on three grounds of appeal. The grounds of appeal are:-
“Ground One
The learned trial Judge erred in law in holding at an interlocutory stage of proceedings in effect, that the plot of land No. 2A, Alkali Road, GRA, Kaduna was already sold when this was a main issue in the substantive case.
Particulars
(1) In the case of Dr. Ogbonnaya v. Adapalm Ltd (1993) 5 NWLR (Pt.292) 147 (1993) 6 SCNJ (Pt. One) P.23 at 32 the Supreme Court had held that the trial High Court must always avoid prejudging a substantive issue at an interlocutory stage of any proceeding.
The sale notice was obviously inadequate and both the filing of the writ and the purported sale of the house had taken place on the 12/8/96.
“Ground Two
The learned trial High Court erred in law by holding that the doctrine of lis pendens does not apply in this matter.
Particulars
(1) On page 5 of the ruling, the learned trial Judge had remarked “…by what magic is the defendant/respondent supposed to know that a writ of summons had been filed against him by the doctrine of lis pendens…”
(2) By so doing the learned trial Court had ignored the submissions of the appellants – applicants’ counsel, that the doctrine of lis pendens is not based on notice to the other party – that it is enough that the writ had been filed.
Ground Three
The learned trial High Court erred in law by failing to apply a dispassionate consideration of the evidence properly submitted for the determination of the true issues before the court and thereby came to a wrong decision in its ruling.
Particulars
(1) The trial Court wrote about ‘magic’ in its ruling, when there was no cause whatsoever for doing so.
(2) The trial Court also held that the applicant had not proved that it had repaid the bank loan in its ruling, when this was a main issue in the substantive case.
(3) See the decision of the Supreme Court in Polycarp Ojogbue v. Ajie Nnubia (1972) 6 SC 227.”
The appellants in their brief formulated three issues for determination. The issues are: –
“(1) Whether having regard to Exhibit ‘A’…. The Honourable learned trial Judge was right in holding that the doctrine of lis pendens does not apply until the writ of-summons had been served upon the respondent?.
(2) Whether having regard to Exhibit ‘A’…… The Honourable learned trial Judge was right in not granting an order of injunction restraining the respondent from disposing of the landed property?.
(3) Whether particularly having regard to the fact that the respondent (sic) annexed any legal evidence in support of their counter-affidavit, the Honourable learned trial Judge was right in holding that the property sold and/or dismissing the motion for interlocutory injunction?.
The respondent, in its brief identified two issues for determination. Having regards to the grounds of appeal filed, I am of the opinion that neither the issue formulated by the appellants nor those formulated by the respondent are apt for the determination of the appeal. I believe the following issues will effectively dispose of the appeal:-
(1) Whether or not the trial Judge was right in holding that the doctrine of lis pendens does not apply?.
(2) Whether or not the trial Judge has decided the main issue in the substantive case while considering the motion for interlocutory injunction?.
The appellants in their brief submitted that from the circumstances of the case, the doctrine of lis pendens applied ever before the writ of summons was served on the respondent bank and that want of actual notice of the pendency of the suit does not prevent the doctrine from operating. The case of Bamgboye v. Olusoga (1996) 3-4 MAC 82, (1996) 4 NWLR (Pt. 444) 520 was referred to in support of the submission. It was submitted that when the sale purportedly took place, the suit was already in existence. It was further submitted that the purported sale was done malafide and with the constructive knowledge that there was a pending litigation. It was also submitted that the mere averment that the property was sold without exhibiting any evidence of sale is not enough. See Okeke v. Attorney General of Anambra State (1992) 1 NWLR (Pt.215) 60.
The respondent in its brief submitted that when the sale of the property took place there was no service of the writ on the respondent and that service must first be effected before the respondent would become aware of any pending suit. It was also submitted that failure to serve a process where obligatory is not an irregularity but fundamental. It was submitted that service of court processes are foremost in the preliminary steps taken in any suit and all cases that were conducted in the absence of such service were held to breach the rules of natural justice. It was finally submitted that since the respondent was not served with the writ of summons, the actions of the respondent were carried out properly, legitimately and with the backing of the law.
It is the contention of the respondent that it was never served with the writ of summons when it sold the property in question and as such the doctrine of lis pendens does not apply. The doctrine of lis pendens is derived from the Latin Maxim ‘pendente lite nihil innovetur’ which means nothing should change during the pendency of an action. The purpose of the doctrine is to force either of the parties to a litigation to preserve the subject-matter of the litigation. See Adaran Ogundiani v. O. A. L. Araba (1978) 6-7 SC 55; Okafor v. A.G. Anambra State (1988) 2 NWLR (pt. 79) 736; and Alakija v. Abdulai (1998) 6 NWLR (Pt. 552) 1. In Ogundiani v. Araba (supra) the Supreme Court stated the scope and operation of lis pendens at pages 78 that: –
“The doctrine of lis pendens prevents the effective transfer of rights in any property which is the subject-matter of an action pending in court during the pendency in court of the action. In its application against any purchaser of such property the doctrine is not founded on the equitable doctrine of notice – actual or constructive – but upon the fact that the law does not allow to litigant
parties or give to them, during the currency of the litigation involving any property rights in such property (i.e. the property in dispute) so as to prejudice any of the litigating parties.”
It could be seen that a person who buys property during pendency of litigation in respect of the property, though without actual notice and for valuable consideration bought for himself a litigation and the purchase will be set aside. The question now is – does the doctrine of lis pendens apply to our present case. The respondent’s contention is that it was not served with the writ of summons and as such it was not aware of the pendency of the suit whereas the appellants’ contention is that it is not material that the respondent was not aware of the pendency of the suit as long as the suit was pending when it sold the property.
The importance of service of a writ of summons cannot be overemphasized. In Craig v. Kanseen (1943) 1 All ER 108 Lord Greene, M.R. stated at page 113 that:
“…It is beyond question that failure to serve process where service of process is required, is a failure which goes to the root of our conception of the proper procedure in litigation. Apart from proper ex-parte proceedings, the idea that an order can validly be made against a man who has had no notification of any intention to apply for it is one which has never been adopted……”
Moreover, a court can only be competent to adjudicate over a matter only when all the conditions precedent for its having jurisdiction are fulfilled. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348 (1992) 1 All NL 587 where Bairamian F. J. stated at page 595:-
“(A) Court is competent when-
(1) it is properly constituted as regards number and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(3) the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided. The defect extrinsic to the adjudication.”
It could be seen from the authorities that service of a writ of summons on the defendant is fundamental. Where the defendant has not been served the court is not competent to adjudicate over the matter and where it does adjudicate the proceedings are a nullity: See Skenconsult (Nig) Ltd v. Godwin Senkody Ukey (1981) 1 SC 6. Nnamdi, J.S.C. stated at page 26:
“The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
It is therefore my considered opinion that where a defendant has not been served with the writ of summons and has no knowledge, actual or constructive, that he has been sued by a plaintiff, cannot be said to be aware of the existence of a suit against him. And where he sold a property before he is served with the writ of summons, it cannot be said that he sold the property during the pendency of the suit. As far as he is concerned, the suit does not exist as such it could not be pending.
I will now consider the evidence adduced before the lower Court to determine whether or not the respondent was served with the writ of summons before it sold the property. From the endorsement on the writ of summons, the writ was paid for on 12/8/96. It was dated 16/8/96 and the defendant was not served until 18/8/96.
The learned trial Judge also found: –
“The property was sold on 12/8/96 and the respondent were served with the writ on the 18th of August, 1996.”
This finding of fact has not been challenged by the appellants. I therefore find that the respondent was not served with the writ of summons on the date it sold the property and a fortiorari the doctrine of lis pendens does not apply. My answer to the first issue for determination is therefore negative.
The second issue is whether the trial Judge has decided the main issue in the substantive case while considering the motion for interlocutory injunction. The appellants submitted in their brief that the trial Judge erred in law in holding at the preliminary stage of the case that the land in dispute had already been sold when the main issue to be determined in the substantive suit is whether or not the land had been sold. It was submitted that a court should never determine the substantive issue at the stage of interlocutory injunction. The following cases were cited in support of the above submission:- Alao v. Commissioner of Police (1987) 4 NWLR (Pt. 64) 1994; Nortune v. Gambo (1978) 3-4 SC 54.
In an application for the grant of interlocutory injunction pending the determination of the substantive claim, the judge has a duty to ensure that he does not in the determination of the application determine the same issues that would arise for determination in the substantive suit as it is not proper for the court at that stage to express any opinion as to such rights as such an opinion might give the impression that the court has made up its mind on the substantive issue for trial before it. See A.C.B. Ltd v. Awogboro (1996) 3 NWLR (Pt. 437) 383; Orji v. Zaria Ind. Ltd (1992) 6 NWLR (Pt. 216) 124. The Court should also desist from making orders touching on substantive issue at interlocutory stage. See Ojukwu v. Military Governor of Lagos State (1986) 3 NWLR (Pt. 26) 39 Nnaemeka Agu, J.C.A. (as he then was) said at page 45: –
“I cannot over emphasise the need of trial Judges in interlocutory rulings desisting from making any findings which may prejudice the substantive case. It is true that if the above findings were rightly made and allowed to stand, they have completely knocked the bottom out of substantive suit.”
See also Akapo v. Hakeem-Habeeb (1992) 6 NWLR (Pt. 247) 266; Kotoye v. Saraki (1994)7 NWLR (Pt.357) 414 and Egbe v. Onogun (1972) 1 All NLR (Pt.1) 95. Where a relief in an interlocutory matter has the same substratum with the relief in the substantive suit, the court should refrain from granting it. The appropriate course, the court should take, is to refuse the application and accelerate the hearing of the substantive suit.
The question now is has the learned trial Judge decided the main issue of the substantive case at an interlocutory stage when he held that the land in dispute has already been sold? In his ruling, this is what the trial Judge said: –
“In any case, I have 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.”
I have at the very beginning of this judgment reproduced in its entirety the appellants’ claim in the substantive suit. Briefly put, the appellants are asking for a declaration that the 1st appellant’s father had cleared all his outstanding loan, well before June 1991 or in the alternative a declaration that any claim, the defendant (i.e. the respondent) may have against the appellants has become statute barred and as a result the respondent should be ordered to release the title documents for plot No. 2A Alkali Road, Kaduna to the appellants. Above is the summary of the appellants’ substantive claims. They are seeking for a declaration that the 1st appellant’s father has paid the loan or in the alternative, a declaration that the respondent’s claim is statute-barred. The claim has nothing to do with the sale of the house and as such the trial Judge’s findings that the house has been sold has in no way determined the main issue in the substantive suit at an interlocutory stage. The sale of the house is not an issue in the substantive claim.
It is not in dispute that the property in question has been sold on 12/8/96. The appellants, in their affidavit in support of the motion, admitted that they heard that the property has been sold. It was averred in paragraph 13 of the affidavit in support:
That thereafter news had reached the plaintiff of an attempted public auction sale by the defendant which had only taken about 1 minute of bell ringing and whispering by some three or four persons on the premises of the said house at about the said 10am on the 12/8/96.”
The above averment is in accord with the respondent’s averment in paragraph 10 of its counter-affidavit where it was stated that the property was sold on 12/8/96. The said paragraph 10 reads: –
“That the sale of the mortgaged property took place on the 12th day of August, 1996 after same was duly advertised publicly on papers to the knowledge of all parties in this suit, as per Exhibit B attached to the affidavit in support.”
The learned trial Judge was therefore right in holding that the property has been sold on 12/8/96. It is trite that when a court is asked to restrain a party from doing an act pending the decision in a matter before it, but the act has been done, no order to restrain will be made. An interlocutory injunction is not a proper remedy for an act which has already been concluded and will not be granted, even if the act complained of is irregular. See Ajewole v. Adetimo (1996) 2 NWLR (Pt. 431) 391; A. G. of Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) 396 and John Holt Nig. Ltd v. Holt of Africa Workers Union of Nigeria and Cameroon (1963) 2 SCNLR 383. Since the house has been sold, the court can no longer grant an interlocutory injunction restraining the sale of the said house. It has already been sold. The court does not act in vain.
In conclusion, the appeal lacks merit and is dismissed. I affirm the decision of Abiriyi J. The respondent is entitled to cost which I assess at N2,500.
Other Citations: (2000)LCN/0829(CA)