Commercial Law Index

The respondent bought a piece of property from a third party. After the respondent had taken possession of the property, he became aware of the fact that his predecessor-in-title had mortgaged the property to the appellant. The respondent paid off the outstanding debt and thereafter demanded the release of the title deeds to him. Instead, the appellant demanded some authorisation from his predecessor-in-title before the documents could be released to him. The respondent instituted a claim on this basis. The trial court judgment was in the respondent’s favour.

After the respondent attached the property the appellant filed an application praying for an order staying execution of the judgment, particularly the sale of the property and ordered release thereof; before hearing of the application. The trial court dismissed this application.

The appellant eventually appealed to this court asking for the same. The appellant urged this court to allow the appeal, set aside the ruling of the court below and grant an order directing the High Court to retain the amount deposited as per judgment.

This court held that the order sought to be stayed was made by the trial court and there was no appeal against that order to the Court of Appeal. That being the case, it was held that it would be a wasteful academic exercise to delve into the merit of the issue. Consequently the appeal was dismissed.