HERITAGE BANK LIMITED v. ADEBISI ODENEYE AINA & ORS
(2018)LCN/12137(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 14th day of November, 2018
CA/L/807M/2013
RATIO
COURT AND PROCEDURE: ORIGINATING SUMMONS
“Originating summons is a mode of commencement which as a process has its own peculiarities which are geared towards expeditious determination of the cause of parties which cause is not burdened by facts that are likely to be in dispute. See MOSES v ERUWA (2013) LPELR – 21168 (CA); INAKOJU & 7 ORS v ADELEKE & ORS (2007) LPELR 1510 (SC); DAPIANLONG v DARIYE (Supra). The overriding phrase is ‘…facts are not in dispute or there is no likelihood of them being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument…In general terms, it is used for non-contentious actions…’ In MACAULEY & ORS v ATA & ORS (2013) LPELR – 20883(CA), YAKUBU, JCA stated at pages 19-21 as follows: ‘The law is settled and has remained firm that the procedure of commencing an action by the mode of originating summons/motion was designed to deal with question of simple construction of documents and/or statues or on the determination of facts which ex facie are not hostile and contentious between the parties. That is, it is to enable simple matters to be settled by the Court without the expense of bringing an action in the usual and common way by the issuance of writ of summons. Hence, in matters which involve serious questions or disputations/controversies, it is best that such matters be determined by settling of pleadings by the parties to ventilate their positions fully in respect of the claim…The efficacy and usefulness of originating summons is its simplicity and straightforwardness in timeously dealing with and disposing off non-contentious suits, so that filing of pleadings is avoided or obviated…'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
HERITAGE BANK LIMITED Appellant(s)
AND
1. ADEBISI ODENEYE AINA
2. IYABODE ODENEYE-FASHINA OSHO
3. ODEWALE ODENEYE
4. ADEBODE ODENEYE
(Suing as Administrators of the Estate of Gabriel Adesanya Odeneye) Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This is an appeal flowing from the judgment of the High Court of Lagos State (coram IPAYE, J) delivered on the 11th day of June 2013, wherein the lower Court granted all the claims of the Respondents. The Appellant then dissatisfied with the judgment filed a Notice of Appeal on 17th June, 2013 later amended on 1st March, 2016 on four grounds.
The facts of the case is that the property at No. 134/136, Broad Street, Lagos belonged to late Gabriel Adesanya Odeneye who had a lease agreement in 1958 with G. Cappa who in turn transferred the lease to Henry Stephens & Sons Ltd in 28th September, 1975 who in turn transferred same to African Continental bank which was acquired by Afribank and later Enterprise bank and now Heritage bank successively. At the expiration of the said lease the estate had filed an action against Enterprise bank but on learning about the change of name they withdrew the earlier suit and re-filed against the Appellant.
The Respondents had written notice of increase in rent, but all the correspondences were ignored hence they filed an action in the High Court for forfeiture and possession of the property as the legal representatives. The Court granted all their claims and the Appellant was dissatisfied and filed this appeal.
The parties in compliance with the Court of Appeal rules filed their respective briefs. The Appellant filed a brief on 17th May, 2016, deemed on 13th October, 2016. Wherein two issues were formulated thus:
1. Whether the learned trial judge has jurisdiction to adjudicate over the property in dispute in respect of which no letters of administration was granted to the Respondents?
2. Was the learned trial judge right that commencement of the action by the Respondents by way of originating summons procedure proper in view of the contentious nature/facts of the case?
While the Respondent’s brief is filed on 21st December, 2016, deemed 9th January, 2017 wherein he adopted the two issues for determination formulated by the Appellant.
ISSUE 1
The Appellant contended that the lower Court wrongly assumed jurisdiction over the action commenced by originating summons procedure in that property, and that the said property was not listed in the letter of administration granted the Estate of Gabriel Adesanya Odeneye. He submitted that the issue of jurisdiction can be raised for the first time on appeal. He relied on OLORIODE & ORS v OYEBI & ORS (1984) 15 NSCC 286; EZOMO v OYAKHIRE [1985] 1 NWLR (PT 2) 195.
For the effect of nullity of the judgment he relied on the following cases; OLOBA v AKEREJA [1988] 3 NWLR (PT 84) 508; A.G LAGOS STATE v DOSUNMU [1989) 3 NWLR (PT 111) 552; EBHODAGHE v OKOYE [2004] 18 NWLR (PT 905) 242; DAPIANLONG v DARIYE [2007] 8 NWLR (PT 1036) 332; MADUKOLU v NKEMDILIM (1962) 1 ALL N.L.R. (PT 4) 587; WESTERN STEEL WORKERS LTD v IRON & STEEL WORKERS UNION [1986] 3 NWLR (PT 30) 617; AKINFOLARIN & ORS v AKINNOLA [1994] 3 NWLR (PT 335) 659; ADEYEMI v OPEYORI (1976) 9-10 SC 31.
Appellant referred to the Respondents originating summons of 9th March, 2012 filed on 12th March, 2012 together with supporting affidavits and attached exhibits especially Exhibit AO1 the letters of administration at page 8-14 of the record which did not include the property at 134/136 Broad Street Lagos, he further referred to paragraph 3 of the supporting affidavit and that this exhibit AO1 gave them legal capacity to file the action and it amounted to the absence of locus standi on the Respondents part to file the action as parties are not competent before the Court. He relied on KLIFCO v PHILLIP HOLZMAN AG & ANOR [1996] 3 NWLR (PT 436) 276; BARRISTER JULIUS EBUZO ONYENUCHEYA v MILITARY ADMINSTRATOR OF IMO STATE & 2ORS [1997] 1 NWLR (PT 482) 429.
He further submitted that the judgment is a nullity. He relied on TIMITIMI & ORS v CHEF AMABEBE & ORS (1953) 14 WACA 374; NANA NYARKO v NANA AKOWUAH (1954) 14 WACA 426. The Respondent counsel submitted on the contrary that the issue argued by the Appellant is not one of jurisdiction that the affidavit had disclosed that they were administrators of the estate of late Odeneye and had exhibited some exhibits and that whether the Respondent obtained additional letters of administration to cover the property is an issue of fact which ought to have been raised in the lower Court and no issues with the Respondent on whether the Respondents had any property in dispute and as a result, and no further evidence was advanced by the Respondents in proof of their status as administrators of the estate. He submitted it is not sufficient for the deponent to make sweeping denials and that uncontroverted facts in an affidavit are deemed as admitted.
He relied on UNIBIZ LTD v CBL [2005] 14 NWLR (PT 994) 47; OGUNSOLA v USMAN (2003) FWLR (PT 180) 1465. He argued that the Appellant is aware and acknowledged in a counter affidavit to the originating summons of 8th Feburary, 2013 that the family of the Gabriel Adesanya Odeneye are entitled to the property. He relied on AIRTEL NETWORKS LTD v GEORGE [2015] 4 NWLR (PT 1448) 60. He referred to Section 2(1) of the Administration of Estates Law of Lagos and that in this matter, the Respondents are personal representatives of the Odeneye and therefore they possessed the locus standi to commence this suit. He referred to OKONYIA v IKENGAH [2001] 2 NWLR (PT 697) 336.
The Respondent further submits that the issue before the lower Court is a lease dispute and all evidence in the lower Court shows that the Appellant accepted the Respondent as lessor and no issue challenging title was raised at the lower Court at all. He relied on the following cases SPDCN LTD v AMADIN [2010] 13 NWLR (PT 1210) 82; BOB MANUEL v WEST [2008] 12 NWLR (PT 1120) 603.
RESOLUTION
The claim before the lower Court is as follows:
1. A Declaration that by virtue of the Deed of lease made on 19th November, 1958 and the Deed of transfer of the leasehold interest, made on 28th July, 1975, the defendant became a lessee of the applicants from 28th July, 1975.
2. A Declaration that by the conduct of the defendant in failing to take any step after the receipt of the letters dated 22nd June, 2011, 2nd September, 2011 and statutory notice dated 19th October, 2011 the right of forfeiture under clause 4(i) of the leasehold agreement made on 19th November, 1958 has arisen for the claimants to exercise.
3. An Order directing that the leasehold interest of the defendant as a lessee of the claimants under the deed of transfer of leasehold interest made on 28th July, 1975 be forfeited.
4. An Order directing the defendant to deliver up possession of the property at 134/136 Broad Street, Lagos to the claimants.
The Appellant contended that lower Court lacked jurisdiction and that the Respondent lacked locus standi to institute the suit on the premise that the property was not listed in the letter of administration of estate of Gabriel Adesanya Odeneye. While the Respondent submits that this issue has nothing to do with jurisdiction and same was smuggled in and in addition it was not raised in the lower Court although findings made upon the issue which are facts were not appealed upon.
The starting point is whether this issue is a jurisdictional issue. It is trite that once jurisdiction is mentioned it must be taken and disposed of before the main appeal. See OSHATOBA v OLUJITAN [2000] 5 NWLR (PT 655) 159 at 171 – 172; ECOBANK NIG LTD v ANCHORAGE LEISURES LTD & ORS (2016) LPELR 40219 (CA).
Furthermore in the case of OLUBEKO v AWOLAJA & ANOR (2017) LPELR – 41854 (CA) this Court relying on the apex Court’s decision in UGU v TABI [1997] 7 NWLR (PT 513); OKONIYA v IKENGA [2001] 2 NWLR (PT 697) 336 at 362 held that the term personal representatives means the executor or administrator whether acting with regard to personal or real property of a deceased. It goes further to hold in that case that the fact that they were issued letters of administration does not divest them of being the personal representatives of the deceased. The provisions of Section 15(1) of Administration of Estate Law, Lagos State with regards to interest provides that all causes of action subsisting after the death of the deceased shall survive against or for the benefit of the deceased’s estate. In this case the Respondents were armed with a letter of administration at page 8 -11 of the record which listed the names of the Respondents and all properties of the deceased except this one, they had averred in their claim in this case was the supporting affidavit which determines jurisdiction and locus in paragraph 3 of the originating summons at page 4 of the record that:
“The 1st, 2nd, 4th Applicants and I are the children of Gabriel Adesanya Odeneye (hereinafter called the deceased). We are also the administrators of the deceased?s estate by virtue of letters of administration granted on 11th November, 1993 and Order of Honourable Justice Inumidun-Akande of the High Court of Lagos State, Lagos General Civil Division (as she then was) made on 2nd July, 2007. Copies of the letters of administration and Court order herewith attached and marked as Exhibit AO1.”
The Appellant in its counter affidavit in paragraph 5 stated that they were not in a position to admit or deny the paragraph hence no issue was joined on it neither any challenge to the documents frontloaded which could be verifiable at the Lagos State High Court. The law as today has been clearly and firmly stated in a host of cases that a personal representative has a locus to sue to protect the estate. Little wonder in Courts when a party dies he is substituted by either the children or wife or by a nominated person to carry on litigation. No one waits for the letters of administration before the continuation of the case. It is in the wisdom and intendment of the estate law for there to be preservation of such estate that has been demonstrated by our Courts in Nigeria.
In AIRTEL NETWORKS LTD v GEORGE (Supra) the issue under resolution was aptly thrashed out while considering the application of Section 3(1), (2) & (3) of the Administration of Estates Law of Lagos State which devolves real estate of a deceased person on his personal representatives, therefore in the case at hand having disclose their link as administrators of the estate they possess the locus standi to commence this suit. This Airtel case is on all fours with the facts of this case.
Moreover, a close look at the lease under dispute in paragraph 1 shows that:
“…THIS LEASE… BETWEEN GABRIEL ADESANYA ODENEYE OF 26 IDUMAGBO AVENUE LAGOS NIGERIA…where the con so admits shall include his heirs, administrators and assigns) of the one part AND…”
This shows the intention to include the deceased and after his death, his administrators amongst others. In the light of the circumstances of this case especially paragraph 4 of the supporting affidavit the Respondents qualify as those included as successors and administrators as described therein. The Appellant cannot now challenge the Respondents having contracted to be bound by the lease agreement.
Locus standi is a general principle of law that is simply explained as capacity to sue. See ADETONO & ANOR v ZENITH INTERNATIONAL BANK PLC (2011) LPELR – 8237.
Upon a close examination of the case in the lower Court:
1. A Declaration that by virtue of the Deed of lease made on 19th November, 1958 and the Deed of transfer of the leasehold interest, made on 28th July, 1975, the defendant became a lessee of the applicants from 28th July, 1975.
2. A Declaration that by the conduct of the defendant in failing to take any step after the receipt of the letters dated 22nd June, 2011, 2nd September, 2011 and statutory notice dated 19th October, 2011 the right of forfeiture under clause 4(i) of the leasehold agreement made on 19th November, 1958 has arisen for the claimants to exercise.
The above claims are for declarations on the lease and the forfeiture of the lease, it has nothing to do with the ownership of the property. The lower Court gave due consideration at page 122 of the record that:
The defendant has not denied that it is the sublease/tenant on the subject property and I so hold I must therefore answer question No: 1 in the affirmative in favour of the claimants.
There was no appeal against this finding. On the whole, I find that the Respondents has the locus standi to sue and the issue of jurisdiction is not in issue.
I therefore resolve issue 1 in favour of the Respondents.
ISSUE 2
The Appellant herein questioned the legality of the Respondents in commencing the action by originating summons though declaratory reliefs is appropriate in deserving cases and that this case is not. He cited NATIONAL BANK PLC v ALAKIJA (1978) 9-10 SC 59; DOHERTY v DOHERTY (1964) NMLR 144; UNILAG v AIGORO [1991] 3 NWLR (PT 179) 3676; ORIANWO v ORIANWO [2000] 5 NWLR (PT 707) 516 at 323; PETERS v JACKSON (2001) 49 WRN 118 at 137.
Appellant referred to paragraphs 12 to 15 of the supporting affidavit and paragraphs 10 to 20 & 22 to 25 of its counter affidavit and maintained that the issues can only be determined or resolved by calling evidence and that there was no further counter affidavit except a reply and that the averments were not proved. He relied on ODUMERU v ADENUGA [2000] 12 NWLR (PT 682) 466.
The Respondents submitted in reply that the lower Court made specific finding of facts based on the documentary evidence before the Court on all points raised above, and that the facts before the Court was sufficient to determine the reliefs claimed by the Respondents which findings were not appealed against by the Appellant and that it is trite that such findings must be taken as settled. He referred to OLEKSANDR v LONE STAR DRILLING CO LTD [2015] 9 NWLR (PT 1464) 337; CGG NIG LTD v AMINU [2015] 7 NWLR (PT 1459) 577.
He posits that from the counter affidavit filed by the Appellant, the Appellant received letters and the subsequent notices from Wemimo Ogunde & Co but ignored them. He referred to letters Exhibit AO5, AO6, AO7, R8 & R9. Respondents submitted that the cases cited were distinguishable from the case at hand, as by virtue of Order 3 Rule 5 of the High Court of Lagos Rules, 2004 which was applicable at the time this suit was instituted ought to be commenced by originating summons especially as the facts were not in contest. He relied on JEV v IYORTYOM (2014) ALL FWLR (PT 747) 749; NWOSU v IMO STATE ENVIRONMENTAL SANITATION AUTHORITY [1990] 2 NWLR (PT 135) 688. He referred to Section 67 of the Registered Land Law Cap R1 Laws of Lagos State, 2003 and Exhibit AO5 – AO8 demanding for the payment of rent and intimating the Appellant of the increase in rent, that it showed a clear breach of the provisions of the lease and that as such, the Respondents were entitled to seek an order of forfeiture. He cited OLONADE v SOWEMIMO [2014] 14 NWLR (PT 1428) 472.
RESOLUTION
Originating summons is a mode of commencement which as a process has its own peculiarities which are geared towards expeditious determination of the cause of parties which cause is not burdened by facts that are likely to be in dispute. See MOSES v ERUWA (2013) LPELR – 21168 (CA); INAKOJU & 7 ORS v ADELEKE & ORS (2007) LPELR 1510 (SC); DAPIANLONG v DARIYE (Supra). The overriding phrase is ‘…facts are not in dispute or there is no likelihood of them being in dispute and when the sole or principal question in issue is or is likely to be one directed at the construction of a written law, Constitution or any instrument…In general terms, it is used for non-contentious actions…’
In MACAULEY & ORS v ATA & ORS (2013) LPELR – 20883(CA), YAKUBU, JCA stated at pages 19-21 as follows:
“The law is settled and has remained firm that the procedure of commencing an action by the mode of originating summons/motion was designed to deal with question of simple construction of documents and/or statues or on the determination of facts which ex facie are not hostile and contentious between the parties. That is, it is to enable simple matters to be settled by the Court without the expense of bringing an action in the usual and common way by the issuance of writ of summons. Hence, in matters which involve serious questions or disputations/controversies, it is best that such matters be determined by settling of pleadings by the parties to ventilate their positions fully in respect of the claim…The efficacy and usefulness of originating summons is its simplicity and straightforwardness in timeously dealing with and disposing off non-contentious suits, so that filing of pleadings is avoided or obviated…”
The affidavit and counter affidavit when put side by side are largely not in dispute. The lease is a legal document for a time span, it is a contractual agreement which binds successors in title, assigns, in the original lease, which was for 99 years, it is within these terms that all others who have been tenants for different periods which qualify as assigns come under. Happily there is no dispute as to the property, it is the same head lease which also puts the Appellant as a tenant, what is in dispute is whether they paid rents a consideration/condition that guarantees their possession. This then determines whether the lease is to be forfeited as an important condition therein has been breached.
In the light of the above analysis there is no major conflict which goes to the foundation of the action and this transcends to the suit being determined by deducing inference from the affidavits filed. See DIRECTOR SSS v AGBAKOBA [1999] 3 NWLR (PT 595) 31; DIN v AG FED [1986] 1 NWLR (PT 17) 417; KEYAMO v HOUSE OF ASSMBLY, LAGOS STATE [2002] 18 NWLR (PT 799) 605.
The crucial paragraphs of the affidavit are 4, 5, 6, 7, 12 & 15 and the counter affidavit are paragraphs 10, 11, 12, 13, 14, 15, 19, 20, 23, 24 & 25 nowhere did they dispute that rents had been paid. In fact it admitted that it became impracticable. The affidavit and counter affidavits are reproduced below:
AFFIDAVIT IN SUPPORT OF ORIGINATING SUMMONS
I Odewale Odeneye, Male, Christian, Nigerian of 7, Onitire Street, Itire, Mushin, Lagos do hereby make oath and state as follows:
1)I am a hotel entrepreneur living and doing business within Lagos State.
16
2)I am the 3rd Applicant in this suit and I am conversant with the facts deposed to herein. I have the consent of the other Applicants to so depose.
3)The 1st, 2nd, 4th Applicants and I are children of Gabriel Adesanya Odeneye (hereinafter called the deceased). We are also the Administrators of the deceased?s estate by virtue of letters of administration granted on 11th November, 1993 and Order of Honourable Justice Inumidun-Akande of the High Court of Lagos State, Lagos General Civil Division (as she then was) made on 2nd July, 2007. Copies of the letters of administration and Court order are herewith attached and marked as Exhibit A01.
4)The Respondent is a Public Limited Company duly incorporated pursuant to the relevant Nigeria Laws to carry on banking business in Nigeria. The Respondent was formed following the merger of many banks including African Continental Bank Plc.
5)By virtue of a lease dated 19th November, 1958 registered as title No. L03292 at the Land Registry, Lagos, the deceased entered into a lease agreement (duly executed) with G. CAPPA PLC for the term of ninety-nine years at a yearly rent of {300 (Three Hundred Pounds). The lease agreement is herewith attached and marked Exhibit A02.
6)G. CAPPA PLC paid rent for the first thirty-five years of the ninety-nine years, lease agreement which expired on 2nd November, 1993 and consequent upon which no other sum of money was paid in respect of the lease.
7)The 1st, 2nd Applicants and I thereafter caused several letters to be written through our Solicitors, Ademola & Co of 8 Moloney Street, Lagos to G. CAPPA PLC notifying it of its failure to pay the annual rent since 1993 but no response was got from G. CAPPA PLC.
8)Based on the deposition in Paragraph 7 above, the 1st, 2nd Applicants and I instituted an action against G. CAPPA PLC in suit No. LD/1222/94 wherein our claim was for an order of forfeiture of the lease for breach of covenant to pay rent and possession of the land and buildings theron.
9)After the suit was instituted, G. CAPPA PLC failed to enter appearance and also failed to file a defence to the action.
10)As a result of G.CAPPA’s failure to enter appearance to file a Statement of Defence, a motion praying for final Judgment in default of appearance and defence was filed.
11)On 9th December, 1994, the Honourable Court Coram: A.R.A. Sahid J. (Rtd) entered final Judgment in our favour. The lease to G. CAPPA PLC was forfeited and possession of the estate granted to us. Copy of the Ruling is herewith attached and marked Exhibit AO3.
12)Thereafter, the Applicants discovered that the Defendant is presently in possession of the land and we instructed our Solicitors to file Suit No. M/1068/2010 to eject the Defendant as unknown persons. The Originating Summons and the Affidavit in support is attached and marked EXHIBIT AO4.
13)It was only after the Defendant filed a Counter-affidavit and Written Address in Opposition to our Originating Summons that the judgment obtained in Suit No: LD/1222/94 had been set aside by an Order of Court and the suit had been discontinued.
14)Further to paragraph 13 above, we also discovered that G. Cappa Limited on 24th January, 1972 divested its interest in the demised property to Henry Stephens & Sons Limited, who further transferred its leasehold to the Respondent on 28th July, 1975.
15)As a result of Paragraph 13 above, the Claimants instructed their Solicitors to discontinue Suit No. M/1068/2010 as the judgment of Justice A.R.A. Sahid of the Lagos State High Court which is the foundation of the suit had been set aside.
16)By virtue of Clause 4(ii)(a) of the Lease Agreement made on 19th November, 1958, our Solicitors wrote a notice of revision of rent to the Defendant wherein we proposed an upward review of the rent. The letter dated 22nd June, 2011 is attached and marked Exhibit AO5.
17)After the letter dated 22nd June 2011 was written and received by the Defendant, the Defendant effected a name change from Spring Bank Plc to Enterprise Bank Limited. As a result of this name change, our Solicitors wrote another letter to the Defendant proposing an upward review of rent dated 2nd September, 2011. The letter dated 2nd September, 2011 is attached and marked Exhibit AO6.
18)The Defendant failed to respond to any of these letters which compelled the Claimants to instruct our Solicitors to issue a statutory notice of intention to forfeit the lease to the Defendant. The statutory notice is attached and marked Exhibit AO7.
19)The Defendant has been occupying the property without paying any rent to the Claimants or even seeking our approval to do so. The Defendant has denied the Claimants the opportunity of earning income from the property.
COUNTER-AFFIDAVIT TO THE ORIGINATING SUMMONS DATED 9/03/12
I, Emeka Agina, Male, Adult, Christian, Nigerian citizen of 143, Ahmadu Bello way, Victoria Island, Lagos do hereby make oath and declare as follows:
1.That I am a staff in Corporate Services Department (Branch Development) of the Respondent herein and by virtue of my position I am conversant with all the facts of this suit.
2.That I have the consent and authority of the Respondent to depose to this counter-affidavit.
3.That except as otherwise expressly stated, all facts deposed to herein are within my personal knowledge, information and belief.
4.That I have been shown the copy of the Originating Summons dated the 9th day of March, 2012 and filed on the 12th day of March, 2012 together with the Affidavit in support and written address and have also read same.
5.That I honestly believe the Defendant is not in the position to either admit or deny paragraphs 1, 3, 7, 8, 9 and 10 of the said affidavit.
6.That paragraphs 14, 16, 17 of the said affidavit are correct.
7.That paragraphs 18 and 19 of the said affidavit are not correct.
8.That, by its letter dated the 20th day of April, 2011, the Respondent responded to the Applicants? Solicitors? letter dated the 8th day of April, 2011 rejecting the applicants offer for sale. Attached herewith and marked Exhibit R1 is the said letter of the 20th day of April, 2011.
9.That, by its letter dated the 7th day of November, 2012; the Respondent responded to the Applicants’ Agent’s letter dated the 2nd day of November, 2012 informing the Applicants of this pending action before this Honourable Court. Attached herewith and marked Exhibit ‘R2′ is the said letter of the 7th day of November, 2012.
10.That the Respondent has always paid its rent to the Applicants until it become impracticable to pay same as a result of the emergence of different factions in the Applicants’ family and different conflicting demands.
11.That the Respondent forwarded a cheque of N1,500,000.00 (One Million Five Hundred Thousand Naira) via a letter dated the 4th October 2002 through their Solicitors, Idigbe & Idigbe to the Applicants through their solicitors, Bayo Adelaja & Co being payment of rent from 1993 to 2003. Attached herewith is the said letter marked Exhibit ‘R3’.
12.That Bayo Adelaja & Co, the Applicant’s Counsel referred to in paragraph 11 above, forwarded a letter dated 4th October, 2002 to the Applicants accepting and acknowledging the payment of rent from 1993-2003. The said letter is hereby attached and marked Exhibit ‘R4’.
13.That the Respondent by its letter dated the 19th day of February, 2004 forwarded a cheque in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) to the Applicants through their counsel, Bayo Adelaja & Co, being rent for year 2004. The said letter is hereby attached and marked Exhibit ‘R5’.
14.That the Respondent by a letter dated the 19th day of November, 2004 forwarded a cheque in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) to the Applicants through their Counsel Bayo Adelaja & Co, being rent for year 2005-2006. This said letter is hereby attached and marked Exhibit ‘R6’.
15.That the Respondent by its letter dated the 19th day of March, 2007 forwarded a cheque in the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) to the Applicants through their Counsel, Bayo Adelaja & Co, being rent for year 2006-2007. The said letter is hereby attached and marked Exhibit ‘R7′.
16.That various factions have now emerged in the family of late Gabriel Adesanya Odeneye with different positions and demands.
17.That several lawyers and an agent representing different positions and factions in the family have written different letters to the Respondent/Applicant. Attached herewith and marked Exhibits R8, R9 and R10 are the letters by the law firms of Taiwo Odumosu Chambers, Ayetenny & Associates and Wemimo Ogunde & Co.
18.That whilst some were asking for a review of the rent, others were offering the property for sale.
19.That it has become impracticable to pay the rent due to the depositions contained in the preceding paragraphs.
20.That the Respondent is willing and ready to pay the outstanding rent as soon as the Applicants? family put its house in order.
21.That granting an order of forfeiture against the Respondent will subject the Respondent to unnecessary hardship.
22.That I know as a fact that the Respondent is entitled to relief from forfeiture.
23.That the facts surrounding the subject matter of this suit are contentious.
24.That this matter cannot be effectively decided by merely interpreting a document.
25.That evidence is required to be led to determine the rights of the parties herein.
26.That the Respondent will be prejudiced by this order for forfeiture of lease of the property if granted.
27.That I depose to this affidavit in good faith believing its contents to be true and in accordance with the Oaths Law.
Furthermore, the said payments has not been said to be made to any of the personal representatives or appointed as the representative. In summary, there is no iota of conflict in the affidavit, just only what I would term excuses for inability to pay the rents. The lower Court found that no move was made to pay same into Court as he who comes to equity must come with clean hands. See AIKABELI v AP PLC (2004) LPELR – 12510(CA); JACK v A.G RIVERS STATE & ORS (2013) LPELR 2286 (CA); TOTAL UPSTREAMS NIGERIA v AIC LIMITED & ORS (2015) LPELR -25388 (CA).
The finding of the lower Court on this has not been appealed against lending credence that the Appellant is crying wolf where there is none. Having taken from the original lease which had the forfeiture clause he did nothing in avoiding this; the mere mention of conflicts in affidavit does not determine the mode of commencement.
The lower Court had no difficulty finding that the Appellant had unequivocally admitted the elements of breach in paragraphs 12 to 15 of the counter affidavit and was in flagrant breach of clause 4 (1), Exhibit AO2. In the light of this the Appellant has not appealed this therefore what then is the dispute or contentions herein, having admitted virtually all. The Appellant stated as follows:
10. That the Respondent has always paid its rent to the Applicants until it become impracticable to pay same as a result of the emergence of different factions in the Applicants’ family and different conflicting demands.
19. That it has become impracticable to pay the rent due to the depositions contained in the preceding paragraphs.
The above amounts to an unequivocal admission of none payment.
The lower court made specific finding of facts based on the documentary evidence before the court and the facts before the court was sufficient to determine the reliefs claimed by the Respondents which findings were not appealed against by the Appellant. It is trite that such findings must be taken as settled. See the case of OLEKSANDR v LONE STAR DRILLING CO LTD [2015] 9 NWLR (PT 1464) 337 where the Supreme Court per KEKERE-EKUN, JSC held that:
“It is settled law that a decision of a Court of competent jurisdiction not appealed against remains valid, subsisting and binding between parties and is presumed to be acceptable to them…”
See alsoUMAR ISA v CPC & ORS (2013) LPELR 22376 (CA).
The Appellant ignored all demands and this amounted to consent to any action taken.
The lower Court rightly held at page 125, lines 1 to 19 that:
Even if this Court accepts the facts as deduced on the counter affidavit it is certain that same is insufficient to anchor the exercise of the Court’s discretion in favour of the defendant and I so hold.
I say this for the dual reasons that the defendant has failed to show a nexus between the law firm of Bayo Adelaja & Co and the Court appointed administrators of the estate of late Gabriel Adesanya Odeneye, the lessor herein. Thus, the defendant has failed to discharge the burden of proof, that the Bayo Adelaja & Co are agents of the claimants and that the firm acted at the behest of the claimants or that the sums of money paid to the law firm were for the account of the claimants herein and I so hold. I must also add that the sub lessee was at liberty to have approached the Court vide a stakeholder’s interpleader summons with a view to paying the due rent into Court pending the determination of the rightful persons entitled to the rent. This would have insulated the defendant from liability in view of the apparently competing claims made by persons other than the Court appointed administrators of the deceased’s estate and I so hold. Finally, I need to add that the Court not being Santa Claus is not in a position to grant a relief which has not been sought. The defendant on all her processes before the Court has not sought for a relief from forfeiture of the lease and I so hold.
Therefore, in the light of the above, the lower Court was perfectly in order when she upheld the procedure.
I therefore resolve this issue in favour of the Respondents.
On the whole this appeal lacks merit and same is hereby dismissed. The judgment of the lower Court, coram IPAYE, J is hereby affirmed. Costs of N100,000 (one hundred thousand naira) is awarded against the Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgement written by my learned brother Abimbola Osarugue Obaseki-Adejumo, JCA in this appeal, I am in complete agreement, for the reasons set out therein that this appeal is devoid of any merit whatsoever and deserved to be dismissed.
The appeal, from the record of unchallenged and uncontroverted facts. which are also evidence, contained in the Originating Summons filled by the Respondents against the Appellant before the High Court, it’s evident, was brought by the Appellant to further delay meeting its contractual obligation to pay rents on the property it had used for many years and frustrate the Respondent from enjoying the fruits of a well-deserved judicial victory.
I join the lead judgement in dismissing the appeal in all the terms set out.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I agree.
Appearances:
Kolawole Uzamat with him, Omodele Fatodun (Miss)For Appellant(s)
O.A.R. Ogundele, SAN with him, Faleye, Esq.For Respondent(s)
