Olanrewaju Ojuawo V. United Bank For Africa Plc Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the leading Judgment)

This appeal is against the judgment of the Oyo State High Court, presided over by Afolabi Adeniran, J. delivered on 22nd July, 2005. Wherein, the trial court dismissed the claim of the plaintiff now Appellant. The Appellant naturally dissatisfied with the judgment, appealed against same on 22nd day of August, 2005; vide his Notice of Appeal containing Nine (9) Grounds of appeal.

The background facts are that, the plaintiff in the lower court was a guarantor to his late wife who took a loan from the 1st defendant for the sum of N200,000.00, mortgaged his landed property at Olubadan Avenue Oluyole Estate, Ibadan. The borrower and the mortgagor were living in Ibadan. The debtor died in 1991. After the death of his wife, the plaintiff (her husband) made inquiry as to his wife’s indebtedness to the then 1st defendant (now 1st respondent) at her branch office at Molete, Ibadan but, he alleged that he did not receive any useful information after which he wrote a letter showing his intention to settle the debt.

The 1st defendant then wrote a letter to the plaintiff informing him that she had sold the mortgaged property; the letter was dated 30th November, 1992. The plaintiff/appellant alleged that the property was secretly sold in bad faith and not by public auction. It was alleged that the 1st defendant with a view to deceive the plaintiff/appellant published the Notice of Auction sale of mortgaged property in the Herald Newspaper published in Kwara State, whereas Daily Sketch and Tribune Newspapers were published in Ibadan where the mortgaged property is, so also where the debtor and mortgagor were resident.

The 1st defendant was restrained by the court from transferring title in respect of the mortgaged property to the 2nd defendant. It was alleged that the 2nd defendant swore to an Affidavit that he bought the property personally, but in the Statement of Defence stated that one Oyewumi bought the house for him at Public Auction on the 2nd November, 1992.

From the appellant’s nine grounds of Appeal, five (5) issues were distilled for the determination of the appeal. They are as follows:

“1. Was the learned trial Acting Chief Judge right in dismissing the plaintiff case which remained unchallenged and on the face of many contradictions and unpleaded facts in the defendants evidence (Grounds 1, 2, 5 and 9)

2. Was the learned trial Acting chief judge right in not entering judgment for the plaintiff when the second defendant who alleged to have purchased the mortgaged property by public auction did not give evidence to buttress his averment in his pleadings (Grounds 3 and 8)
3. Whether the mortgaged property was validly sold by the 1st defendant to the 2nd defendant without obtaining prior Governor’s consent (Ground 5) in accordance with Section 22 of LAND USE ACT and paragraph 18 of the Mortgaged Deed Exhibit ‘A’.
4. Was the learned trial Acting Chief Judge right in not considering the strict observance of the Auctioneers Law in respect of the sale by Public Auction as alleged in this case (Ground 7)
5. Whether the learned trial Acting Chief Judge right in not holding that the Mortgaged property was sold in bad faith, by private treaty and by collusion (Ground 4)”.

On his part, the 1st respondent did not formulate any issue for the determination of the appeal.

On the 2nd respondent’s part, five (5) issues were raised for determination by this court.

“(i) Whether in view of the pleadings and evidence the learned trial judge was right in dismissing the plaintiff’s claim against the defendants.

(Covers grounds 1, 2, 6 and 9).

(ii) Whether a party who has not testified personally but called evidence in support of his pleadings is entitled to have a claim not made out against him dismissed.

(Covers grounds 3 and 8).

(iii) Whether it is necessary to obtain the Governor’s consent before an auction sale can be carried out in respect of mortgaged property.