ADARAN OGUNDIANI V. O.A.L. ARABA & ANOR
August 4, 2025ANYASINTI UMUNNA & ORS V. ANIMUDU OKWURAIWE & ORS
August 4, 2025Legalpedia Citation: (1978-06) Legalpedia (SC) 71611
In the Supreme Court of Nigeria
Thu Jun 15, 1978
Suit Number: SC. 92/1976
CORAM
SOWEMIMO, JUSTICE, SUPREME COURT
IDIGBE, JUSTICE, SUPREME COURT
ANIAGOLU, JUSTICE, SUPREME COURT
PARTIES
BARCLAYS BANK OF NIGERIA LTD
APPELLANTS
ALHAJI ADAM BADEJOKO ASHIRU
CHIEF A.O. ORESANYA
CHIEF OSIKOYA ARAWO LAWSON ARABA
RESPONDENTS
AREA(S) OF LAW
DEED OF MORTGAGE – CONDITION PRECEDENT TO ITS EXECUTION – LAW OF CONTRACT – NON EST FACTUM – APPEAL – BANKING – JUDGMENT
SUMMARY OF FACTS
The Plaintiff/Respondent a trader obtained overdraft facilities from the Defendants/Appellants (his Bankers), deposited his title deeds and signed Memoranda of Deposit of Title Deeds. Being unable to settle the overdraft, a legal mortgage was executed on his behalf and his properties sold.
HELD
The Court held that the Appeal succeeds for the reasons already stated in regard to our observations on (1) Order X rule 11 of Cap. 116 aforesaid, (2) the doctrine of lis pendens and (3) the principles for the award of declaratory judgments. The majority judgment of the Western State Court of Appeal in CAW/50/74 dated the 21st day of May, 1975, together with the order for costs are hereby set aside. This court hereby affirms the judgment and orders of the High Court of Western State holden at Ijebu-Ode (Olu Ayoola, J.), in Suit HCJ/16/71 dated the 14th day of June, 1972. The defendants/appellants shall have costs against the plaintiff/respondent, in the Court of Appeal assessed and fixed at N160 and in this court assessed and fixed at N340.
ISSUES
Whether or not the declaratory judgment is an equitable remedy and whether the court should be guided by equitable principles in making the award
RATIONES DECIDENDI
BINDINGNES OF THE DECISION OF A COURT
“…Where a litigation is pending between a plaintiff and a defendant, as to the right to a particular estate, the necessities of mankind require that the decision of the court in the suit shall be binding, not only on the litigant parties, but also upon those who derive title under them by alienation made pending the suit; whether such alienees had, or had not, notice of the pendins g proceedings….” Per C. Idigbe J.S.C.
DOCTRINE OF LIS PENDENS
“The doctrine of lis pendens does not apply to every suit. It applies to a suit in which the object is to recover or assert title to a specific property; the property, however, must be real property, for the doctrine has no application to personal property” Per C. Idigbe, JSC.
CASES CITED
Jared v. Clements (1903) 1 Ch. 428
Bellamy v. Sabine (1857) 26 LJ (N.S.) Equity Reports, 797 at 803
Culpepper v. Aston 2 Ch. Cas. 115
So in Sorrell v. Carpenter 2. P. Wms. 487
Kinsman v. Kinsman has (1831) 1 Russ & M. 617; 39 E.R. 236
Chapman v. Michaelson (1908) 2 Ch. 612; affirmed in (1909) 1 Ch. 238
Hordern-Richmond Limited v. Duncan (1947) K.B. 545 at 552
STATUTES REFERRED TO
High Court Law, Cap. 44
Law of England Application Law Cap. 60 of the Law of Western Nigeria, in Volume 3 of the 1959 Edition of the Laws of Western Nigeria
Halsbury Laws of England, 3rd Edition, Vol 36 P. 476 Para 723
Judicature Act 1925
Property and Conveyancing Law Cap. 190, 1959 Edition of the Laws of Western State
