Compulaw - 1st Indigenous Digital Law Library

Brief

Lis pendis
Brief writing
Supreme court decisions

Facts

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 defendant 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 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).

TThe 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 29/1/91. It is against this ruling of the trial court that the appellant is appealing to this court.

Issues

a
Whether the learned trial Judge should not have set aside the sale of a...

Oshinowo V. NBN Ltd (1998) CLR 10(b) (CA)

Brief

Facts

Issues