Abraham A. Younan & Ors. V. Professor Babatunde Williams & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

The Appellants are the Administrators and Executors of the Estate of late Chief Isaac Ojo Ajanaku and were the 3rd – 6th Defendants in an action filed by the Respondents at the Ibadan High Court of Oyo State, wherein they claimed a number of declaratory reliefs, including one that a Deed of Assignment dated 2/4/73 is not capable of transferring the absolute right, title and Interests in the property in dispute to Chief Ajanaku or his Successors in Interest. The Appellants however averred in their pleading that the said Chief Ajanaku became owner in possession of the property under the said Deed of Assignment; that he had exercised many acts of possession thereon by carrying out improvements on the property and letting it out to tenants without let or hindrance; and that the Respondents’ claim is statute barred.

This appeal turns on the issue of lack of fair hearing and it will be necessary to look at the proceedings in the lower Court In some detail. On 13/6/2002, the Respondents were granted an Application to amend their pleading and their counsel objected to the Appellants’ counsel’s application for an adjournment to correct their Statement of Defence. The lower Court ruled –

“The Application for an adjournment “to correct the errors to reflect their own Statement of Defence” made by Mr. Lawore is not only vague but also frivolous. It is refused. This case has been adjourned for hearing several times including today. It shall proceed to trial today”. (Italics mine)

The Respondents opened their case with the testimony of the 5th Respondent and the lower Court later adjourned the case to 14/6/2002. On 14/6/2002, the Registrar received a letter dated same day from Bandele Aiku & Co., seeking an adjournment “as Mr. Babatunde Aiku who is to handle this matter is away in Lagos to attend other official matters”. The Respondents’ counsel remarked that the person who signed the letter must have misled his principal into believing that the case is for mention when it is in fact for hearing but to give them the benefit of doubt suggested an adjournment to 24/6/2002, which the lower Court adjourned the case to for definite further hearing”. However, on 24/6/2002 the lower Court was informed that “Mr. B. Aiku is still at the Federal High Court”. The Respondents’ counsel, Alhaji Y. Agbaje SAN left “the matter to the discretion of the Court” and the lower Court ordered.

“It is now 12 noon. This case shall proceed to further hearing’.

The Said Respondent continued with his testimony and tendered more exhibits. The case was then “adjourned to 28/6/2002 & 1/7/2002 for further hearing”.

On 28/6/2002, Mr. Babatunde Aiku referred the lower Court to Order 26 rule 5 of the High Court Rules and argued that the case is not ripe for hearing as there was no properly Amended Statement of Claim before the Court. After hearing arguments on the issue, the lower Court ruled as follows _

“Order 26 rule 6, although mandatory, is not meant as a clog in the wheel of the progress of a suit the hearing of which had commenced so as to cancel the evidence that had already been put in. In this case, the amendment had been made and filed within fourteen days as provided by Order 26 Rule 4 so that the order for amendment is still valid. I therefore in the exercise of my discretion to grant an amendment extend the time Within which the Plaintiffs shall file a fresh amendment duly marked by seven days from today. Case is adjourned to 8/7/2002 for further hearing”. (Italics mine).

Mr. Aiku thereafter applied “for time to file a consequential Amended Statement of Defence”, and the lower Court then ordered as follows-

“The Amended Statement of Defence to the 3rd to 6th Defendants shall be filed within five days of the receipt of the Amended Statement of Claim. Case is adjourned 11/7/2002 for hearing at 12 noon”.

On 11/7/2002 the case was adjourned to 16/7/2002 for further hearing, but on 16/7/2002, the Registrar received another letter dated 12/6/2002, it reads-

” We apologize for the absence of counsel, Babatunde Aiku Esq. from Court on the last date the matter came up before this honorable Court as he was otherwise engaged at the Court of Appeal. We, however regret to inform the Court that the date to which the above matter was adjourned for mention is not convenient as counsel will be appearing before Honorable Justice Arasi sitting in Court no. 5 in a matter which had earlier been fixed for definite hearing since 6 June, 2002. In the circumstances, we crave the indulgence of this Hounorable Court to grant us an adjournment to enable our Babatunde Aiku, Esq. take up the conduct of the case, accordingly. Subject to the convenience of this Honorable Court, we suggest of the following dates, 2 or 5 August, 2002 for continuation of hearing – – ”

The record of the proceedings on 16/7/2002 is vital to this appeal, it reads.