Compulaw - 1st Indigenous Digital Law Library

Brief

Order of court
Commencement of action
Practice and procedure
Rights of parties
Jurisdiction of court
Costs
Breach

Facts

The appellant filed an action in Suit No. M/135/87 against the respondent in the High Court of Borno State, sitting at Maiduguri claiming;

1
A declaration that the purported deed of legal mortgage in respect and covered by certificate of occupancy No. BO/3131 and known as International Airport Hotel Maiduguri and situate along Kano Road, Maiduguri, registered in favour of the defendant is illegal, null and void and no effect whatsoever.
2
An order perpetually restraining the defendant, its agents, servants or privies from auctioning, selling or in any way disposing of the property by certificate of occupancy No. BO/3131 in pursuance of or under the deed of legal mortgage, illegally and unlawfully registered in favour of the defendant at the Lands Registry, Maiduguri.
3
A declaration that the plaintiff is not owing the defendant the sum of N333, 210.85 or any sum whatsoever.”

The action suffered protracted delay principally due to the failure of the appellant to conclude his evidence. Consequently, the trial court struck out the suit for want of diligent prosecution. In striking out the suit, the trial court awarded costs of N500.00 against the appellant with an order that same be paid before the suit could be relisted. However, rather than complying with the said order of court and get the suit relisted, the appellant filed another action in suit No. M/177/94 in which he repeated the reliefs sought in the earlier suit.

Upon the second suit coming up for hearing, counsel for the respondent raised a preliminary objection to the competency of the suit on the ground that the costs awarded in M/135/87 had not been paid. Consequently, the trial court struck out the suit with costs of N500.00 against the appellant to be paid before any further step is taken in the case. The appellant then abandoned both suits M/135/87 and suit M/177/94 and filed another fresh action in suit No M29/95 in which he repeated the reliefs sought in the previous suits. Thereafter, the respondent proceeded with the sale of the appellant’s property by auction.

Aggrieved with the respondent’s action of sale of his property, the appellant commenced a fresh action in suit No. M/147/95 challenging the auction sale. The appellant followed the fresh suit with a motion on notice. No. M/94m/95 seeking to set aside the sale of his property during the pendency of suit No. M/29/95. After taking argument on the said motion, the trial court dismissed same and struck out suit No. M/147/95.

Dissatisfied with the decision of the trial court, the appellant appealed to the Court of Appeal which dismissed the appeal. The appellant then further appealed to the Supreme Court contending in the main that the Court of Appeal was in error by affirming the decision of the trial court which did not consider the merit of suit No. M/147/95 before striking out same.

Shugaba V. UBN Plc (1999) CLR 10(h) (SC)

Brief

Facts

Issues