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MR. PETER OGUNTIFA & ANOR v. UNITED BANK FOR AFRICA PLC & ORS

(2018) LPELR-44168(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of April, 2018

CA/B/174/2005


Before Their Lordships

UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria


Between

1. MR. PETER OGUNTIFA
2. MR. MAKANJUOLA OGUNTIFA
(FOR THEMSELVES AND AS REPRESENTATIVES OF THE ESTATE OF LATE CHIEF SAMUEL OJO OGUNTIFA) - Appellant(s)

AND

1. UNITED BANK FOR AFRICA PLC
2. JOHNSON OLUWASEYI AJAYI
3. VICTOR OLUROPO OLUSANYA - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Right to Fair Hearing.

FACTS:
This is an appeal against the ruling of Hon. Justice T. O. Osoba of the High Court of Ondo State, Akure.

By an Amended Writ of summons together with an Amended Statement of Claim the Claimants/Appellants claimed against the Defendants/Respondents as follows:
(a) A DECLARATION that the Plaintiffs are entitled to the right of occupancy of the property situate at No. 30, Ibikunle Lane, Idi-Agba Titun, Akure, Ondo State and that the 3rd Defendant is not entitled to the right of occupancy.
???(b) A DECLARATION that the purported sale of the property situate at No. 30, Ibikunle Lane, Idi-Agba Titun, Akure, Ondo State by the 1st and 2nd Defendants on the 23rd August, 2002 is devoid of any legal basis and is contrary to laid down laws on the exercise of power of sale and auction sales as such is null and void and of no effect whatsoever.
(c) A DECLARATION that the Plaintiffs were not indebted to the 1st Defendant at the time of the auction sale as to have warranted the sale of the property situate at No. 30, Ibikunle Lane, Idi-Agba Titun, Akure, Ondo State to the 3rd Defendant.
(d) A DECLARATION that interest on the current Account No. 60101-4394 had ceased to run on the commencement of Suit No. AK/113/91 or alternatively on the 23rd June, 1993 when the Court ordered same in Suit No. AK/113/91.
OR
A DECLARATION that the interests on the Current Account No. 60101-4394 remain suspended during the period of the pendency of suit in respect of the indebtedness of the late Chief S. O. Oguntifa to the 1st Defendant.
(e) AN ORDER setting aside the purported sale of the property of the late Chief Samuel Ojo Oguntifa on the 23rd August, 2002 by the 1st and 2nd Defendants.
(f) AN ORDER of mandatory injunction compelling the 1st Defendant to make available to the Plaintiffs, the Statements of Account on the Current Account No. 60101-4394 domiciled with the Akure branch of the 1st Defendant from opening till date, to enable the Plaintiffs know the extent of the estate of the late Chief Samuel Ojo Oguntifa's indebtedness to the 1st Defendant.
(g) AN ORDER of perpetual injunction restraining the Defendants jointly and severally and in particular the 3rd Defendant from taking possession of the property of late Chief Samuel Ojo Oguntifa (or Plaintiff's property) situate at No. 30, Ibikunle Lane, Idi-Agba Titun, Akure, Ondo State pursuant to the purported sale carried out by the 1st and 2nd Defendants on Friday, 23rd August, 2002.
(h) The sum of N3m (Three Million Naira) being damages for trespass and the embarrassment caused to the Plaintiffs by the purported sale (and subsequent actions in respect of) the property situate at No. 30, Ibikunle Lane, Idi-Agba Titun, Akure, Ondo State.
???
Pleadings were duly filed and exchanged. The matter proceeded to trial. At the trial and in the course of the examination in chief of the 1st Claimant/Appellant, the Appellants' sought an adjournment to amend the pleadings to reflect additional facts. Not opposing the Appellants' application for adjournment, the 3rd Respondent's asked for cost and also made an oral application that the tenants on the property in dispute pay their rent to the Court registry pending the final determination of the matter.

The trial Court granted the Appellants' application for adjournment and also ordered that the rent accruing on the property in dispute be paid into the Court registry. Dissatisfied, appellants appealed to the Court of Appeal, contending that the trial Court delivered its ruling and granted the 3rd Respondent's application without inviting the Appellant's counsel to address it on the application.

ISSUES:
The following issues were considered for determination in the appeal:
(1) Whether the failure of the trial Court to hear the Appellants' counsel in respect of the interlocutory application made by the 3rd Respondent's counsel was not a breach of the Appellants' right of fair hearing, which renders the decision a nullity.
(2) Whether the learned trial Judge's repeated comments about the Appellants in the Court of proceedings on 16th February, 2005, to the effect that, "people take loans and then are unable to pay. They rush to the Court to seek a cover" were not prejudicial remarks and clear sign of prejudice against the Appellants.
(3) Whether the award of cost against the Appellants was not unconstitutional in the circumstances, being in breach of the Appellants' right to fair hearing and actuated by bias.
DECISION/HELD:
In the final analysis, the appeal was allowed and remitted to the Chief Judge of Ondo State for assignment to another Judge for hearing de novo.


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