Otunba Mabayoje Oshinowo V. National Bank of Nigeria Ltd. (1998)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A.

The appellant as plaintiff sued the respondent in the High Court of Ogun State holden at Ijebu-Ode claiming (as per the writ of summons) as follows:

“1. A declaration that the deed of mortgage dated the 20th of July, 1983 from the plaintiff to the defendant and registered as No.37 at page 37 in volume 212 of the Land Registry Abeokuta is ineffectual and inoperative as the plaintiff never drew on the facility purportedly secured by the deed of mortgage.

or alternatively

A declaration that the said deed of mortgage is ineffectual and inoperative in that the debt, if any, secured by the deed of mortgage has not crystallized and has thus not become payable.

2. An order that the defendants do discharge the said mortgage and issue a deed of release in favour of the plaintiff.
3. Perpetual injunction restraining the defendant, its assigns, privies and agents from dealing with the property lying and being along Lagos/Ondo Road. Ijebu-Ode (otherwise known as Ijebu Ode Bye-pass) Ogun State and utilized in the said deed of mortgage either by way of sale, assignment, mortgage or lease.”

The defendant/respondent was served with the writ of summons containing the above claims (or reliefs) on 20/6/91 and it entered a conditional appearance through its counsel on 26/6/91. The plaintiff/appellant (hereinafter simply called “the appellant”) has also filed a motion on notice on 20/6/91 (the same date the writ was filed) for an order of interlocutory injunction restraining the defendant/respondent (also hereinafter simply called the respondent”) until the final determination of the action as per the relief in the writ (as reproduced above). The motion on notice was served on the respondent on 16/7/91. On the same date, the appellant became aware of an auction notice (or advertisement) for the sale of the property which was published on 16/7/91 in the National Concord newspaper (i.e. a day before the service of the motion on the said respondent). The appellant’s counsel on becoming aware of the notice (advertisement) publication promptly wrote a letter of warning or caution to the respondents counsel while also copying the auctioneer (see P.20 of the record). When the motion for interlocutory order of injunction came up for hearing on 1/8/91, the respondent swore to a counter-affidavit stating that the property, the subject matter (or res) in the suit had been sold since on 25/7/91 and as such there was nothing to be restrained. The appellant then filed another application on 9/9/91 for an order setting aside the purported sale on the ground that it was conducted pendente lite during the pendency of the motion for interlocutory injunction. The appellant also in the same subsequent application (or motion) sought for another order to restrain the respondent from executing any document of transfer of the property in favour of the purchaser pending the determination of the suit. The subsequent application was heard by the trial court which dismissed it in its ruling of 29/11/91. It is against this ruling of the trial court that the appellant is appealing to this court.

The appellant filed 3 (three) grounds of appeal with his notice of appeal from which the following three issues for determination are formulated in the appellant’s brief filed in accordance with the rules of this court and adopted and relied upon by his counsel at the hearing of the appeal on 1/6/98:-

“(a) Whether the learned trial Judge should not have set aside the sale of a property carried out during the pendency of motion on notice for interlocutory injunction to restrain the said sale particularly as the purported vendor had been served with a copy of the motion on notice for injunction.

(b) Whether the learned trial Judge was right in holding that the doctrine of lis pendens does not invalidate a sale of the property which is the subject-matter of an action pending in court during the pendency in court of the action but acts only to suspend the vesting of the title in the purchaser until the final determination of the action.

(c) Whether the non-joinder of the Ijebu-Ode Local Government, the purported purchaser of the subject-matter pendente lite, on the hearing of the application to set aside the sale was fatal to the application.

In its own brief which was also duly adopted and relied upon at the hearing of the appeal the respondent conceded to the above issues of the appellant which are replied to in the respondent’s brief. It is to be noted that although the respondent’s brief formulates its own two (2) issues which are different from those of the appellant as reproduced above, the arguments under the said two issues which are too brief and superficial attempt to reply to the appellant’s issues (in only 3 pages). Thus in my view the respondent’s brief herein does not substantially or materially answer all the points raised in the appellant’s brief and consequently does not comply with the provision of Order 6 rule 4(1) of the Court of Appeal Rules 1981- See Yahaya v. Oparinde (1997) 10 NWLR (Pt.523) 126. It is important and incumbent on the learned counsel representing the respondent to answer all the material issues of substance raised in the appellant’s brief and his failure to do so is a dis-service to his client. It is also a lack of diligence on the part of the counsel in the conduct of his client’s case at this level. Be that as it may, I will still in fairness to the party concerned consider the writ of the arguments in the said respondent’s brief under the issues as formulated and argued in the appellant’s brief in so far as they are relevant, clear and coherent.

In arguing the 1st issue, the appellant’s brief relies upon an affidavit of service (at page 17 of the record) which shows that the respondent had been served with the motion for interlocutory injunction on 16/7/91. It is argued in the brief that despite this notice (or service) of a pending motion the respondent still went ahead and sold the property (the subject matter of the dispute) on 25/7/98. It is pointed in the brief that this fact was admitted by the said respondent in paragraph 2 of its counter-affidavit filed in opposition of the motion on notice (see page 8A of the record referred to in the appellant’s brief). It is submitted in the said brief that by its action in selling the property in dispute when there was a pending motion, the respondent had acted unilaterally and illegally to the prejudice of the appellant/applicant and had also taken the law into its hand. The action is also said to be in bad faith and with a view to prejudicing the hearing or adjudication of the matter by the trial court – See the cases of Ezegbu & Anor v. First African Trust Bank Ltd. & Ors. (1992) 1 NWLR (Pt.220) 699 at 724 – 725. Governor of Lagos State v. Ojukwu (1986)1 NWLR (PU8) 621; Amadi Opara v. Godfrey Ihejirika (1990)6 NWLR (Pt.156) 291 at 304; Ajayi v. Union Bank of Nigeria Ltd. (1989)1 CLRQ 220 cited in the brief in support of the submission.

It is further submitted in the brief that a party to an action cannot or should not take any action during the pendency of the action (or motion as in the present case) that will overreach any decision the court may arrive at in the action or motion. Where such an illegal action or step is taken it becomes the duty of the court to reverse it. It is argued in the brief that in the present case the failure of the learned trial Judge to reverse or set aside the illegal sale even when an application for that purpose was made before him (see pages 10-10A of the record) was in error and has led to a miscarriage of justice. We are finally urged under the issue by the appellant to hold so and to allow the appeal.

The 2nd issue of the appellant which is on the doctrine or principle of lis pendens is in my view related to or akin to the 1st issue as set out above and can be conveniently treated together in this judgment even though it is treated separately in the said appellant’s brief. The gravamen of the appellant’s arguments or submissions under the issue is directed against the holding of the learned trial Judge that the sale of the landed properly in dispute which was carried out pendent lite when there was a motion on notice served on the respondent was proper and that the doctrine of lis pendens only operates to suspend or put in abeyance the vesting of the title to the purchaser pending the determination of the action (or motion).