THE REGISTERED TRUSTEES OF THE PREFECTURE APOSTOLIC OF IBADAN v. MABINUORI ADEGBOYEGA AARE LATOSA & ORS (2019)

THE REGISTERED TRUSTEES OF THE PREFECTURE APOSTOLIC OF IBADAN v. MABINUORI ADEGBOYEGA AARE LATOSA & ORS

(2019)LCN/13672(CA)

(2019) LPELR-48118(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of July, 2019

CA/IB/75/2016

JUSTICE

JIMI OLUKAYODE BADA justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO justice of The Court of Appeal of Nigeria

Between

THE REGISTERED TRUSTEES OF THE
PREFECTURE APOSTOLIC OF IBADANAppellant(s)

AND

1. MABINUORI ADEGBOYEGA AARE LATOSA
(The Head and Mogaji Aare Latosa Family)
2. IBRAHIM AROWOLO AARE LATOSA
3. MADAM NIMOTA AARE LATOSA
(For and on behalf of the Aare-Latosa Family)Respondent(s)

RATIO

WHETHER OR NOT A PRELIMINARY OBJECTION MUST BE CONSIDERED FIRST BEFORE THE ISSUES RAISED BY PARTIES

I wish to state at this stage that the settled position of the law commands that before the consideration of the issues raised by parties in their Briefs of Argument, a Preliminary Objection where filed need to be given prominence. The reason for this is that where it succeeds, there may be no need going into the issues contended as the appeal would have been terminated in limine. The Supreme Court in STATE VS. OMOYELE (2017) 1 NWLR (PT. 1547) 341 AT 358 359 PARAS H B held thus:
The age-long practice in this Apex Court is that where the Preliminary Objection has been raised challenging the competence of the appeal, for instance on ground that the Notice of Appeal or Ground of Appeal is incompetent, the Court is first of all to consider and dispose of the Preliminary Objection ..
I shall therefore consider the Preliminary Objection first, before I later consider the merit of the appeal if need be .
See also JIMIJAJA VS. C.O.P. RIVERS STATE (2013) 6 NWLR (PT. 1350) 225; NEPA VS. ANGO (2001) 15 NWLR (PT. 737) 627; OKUMODI VS. SOWUNMI (2004) 2 NWLR (PT. 856) 1 AND UDENWA VS. UZODINMA (2013) 5 NWLR (PT. 1346) PG. 94 AT 111 PARAS D E. PER OJO, J.C.A.

DUTY OF THE COURT IN DETERMINING WHETHER A GROUND OF APPEAL IS ONE OF LAW, MIXED LAW, AND FACTS OR FACTS

The determination of whether a ground of appeal is one of law, mixed law and facts or facts simpliciter is not always an easy one. In taking the decision whether a ground of appeal includes questions of law alone or of facts or mixed law and facts, it is important to thoroughly examine both the ground of appeal and its particulars provided. This is because mere labeling of a ground of appeal as one of law or error in law or misdirection may not necessarily be so as it could be a misnomer in actual sense. The difference between a ground of law and a ground of mixed law and facts can be narrow. See UNITED BANK FOR AFRICA LTD. VS. STAHLBAU GMBH & CO. LTD. (1989) 3 NWLR (PT. 110) 374 AND OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT. 23) 484. Where it is evident the lower Court misunderstood the law or misapplied the law to the facts which are already proved or admitted, the ground in any of these two instances will qualify as a ground of law. On the other hand, if the complaint is on the manner in which the Court evaluated the facts before applying the law, such ground is of mixed law and fact. Thus, it is the main grouse or the reality of the complaint embedded in the ground that determines what it involves and not the label, designation or tag given to it.
On the principles guiding classification of a ground of appeal as one of law, or of fact or of mixed law and fact, the Supreme Court in AUGUSTINE NJEMANZE VS. JOHN NJEMANZE (2013) 8 NWLR (PT. 1356) PG. 376 AT 393 395 PARAS H C held thus:
“This Court for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles can be summarized in the following manner:
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal amisunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of law, it is a ground of mixed law and fact.
(iv) A ground which raises a question of pure fact, is a ground of fact.
(v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.
(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
(vii) Where the lower Court approached the constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
(viii) Where the lower Court or tribunal applying the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
(ix) Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the Appeal Court will assume that there has been a misconception of the law. This is a ground of law.
(x) Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.
(xi) Where the Court of Appeal finds such application to be wrong and decided to make its own findings such findings made by the Court of Appeal are issues of fact and not of law.
(xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the ground of appeal alleging such misdirection by the lower Court of Appeal is ground of law not of fact.
(xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a ground of fact (which requires leave for an appeal to a Court of Appeal or a further Court of Appeal). PER OJO, J.C.A.

WHETHER OR NOT THE RIGHT TO AN APPEAL IS CONSTITUTIONALLY REGULATED BY SOME STATUTE

In resolving this issue, recourse must be made to the Constitution which confers jurisdiction on the Courts.
In ECOBANK VS. HONEYWELL FLOUR MILLS PLC. (2018) LPELR 45124 SC, the Supreme Court held thus:
The law is trite that the right to appeal against the judgment or decision/order of a Court is constitutional and/or regulated by some statute. It is therefore within the province of the law that the exercise of such right must be within the bounds of the enabling law. That right is not exercised at large. A constitutional right of appeal must be exercised within the bounds of the Constitution.
Section 241(1) of the Constitution of the Federal republic of Nigeria 1999 (as amended) provides for where appeals are of right from the decisions of the Federal High Court or High Court of the State or FCT. It provides thus:
241(1) An appeal shall lie from the decision of the Federal High Court of a High Court to the Court of Appeal as of right in the following cases:
(a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the Ground of Appeal involves questions of law alone, decisions in any civil proceedings.
Section 242(1) of the Constitution (supra) provides that subject to the provisions of Section 241 of the Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court of a State or FCT to the Court of Appeal with leave of the Federal High Court, High Court or the Court of Appeal.
The provision of Section 241(1) of the Constitution quoted above is clear and unambiguous. It allows for an absolute right of Appeal against the final decisions of the Federal High Court or a High Court of a State or FCT. Section 241(1)(b) allows an appellant to appeal to the Court of Appeal as of right on grounds of law on any decision of the lower Court (Civil or Criminal).
However by virtue of Section 242(1) appeals against interlocutory decisions must be with the leave of the Court except on grounds of law alone. PER OJO, J.C.A.

WHETHER R NOT THE DECISION TO GRANT OR REFUSE AN APPLICATION FOR EXTENSION OF TIME TO FILE PROCESSES OUT OF TIME IS DONE AT THE DISCRETION OF THE COURT

The law is settled that a decision to grant or refuse an application for extension of time to file processes outside the time limited by law is a call for the exercise of the discretionary powers of a Court which must be exercised both judicially and judiciously. See OLADELE VS. AROMOLARAN II (1991) 3 NWLR; OGOLO VS. OGOLO (2006) ALL FWLR and SANNI VS. AGARA (2010) 2 NWLR (PT. 1978).
To act judicially simply means to consider the interest of both parties to an application and weigh them in order to arrive at a fair or just decision. To act judiciously is to exhibit or show wisdom, good sense and sound reasoning in the assessment of the parties interests and arriving at a decision on the peculiar facts and circumstances of a case. PER OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The Respondents as Claimants instituted proceedings via the Originating Summons Procedure against the Appellant at the Oyo State High Court sitting in Ibadan in SUIT NO: I/430/2012 on the 12th of May 2012 wherein they sought the determination of the following questions:
1) Whether the Claimants are not entitled to an order to re-enter the demised premises and determine the lease as stated in clause 4(a) in the lease agreement registered as No. 5 page 5 in volume 373 attached as Exhibit A herein and take possession of the premises, the lease hold interest on the land in dispute having expired.
2) Whether the failure of the Defendant to renew the rent as stated in clause 2(a) in the lease agreement does not entitle the Claimants to an order of forfeiture against the Defendant.
3) Whether the Claimants are entitled to the money as rent unpaid since the expiration of the original rent on the lease agreement and also entitled to damages.

They sought the following reliefs:
i) A declaration that the Defendants failure to renew the rent in the lease

agreement for an unequivocally period of more than forty (40) years after the expiration of the original rent has led to the forfeiture of the entire lease on the land in dispute.
ii) An order of forfeiture of the lease agreement for failure of the Defendant to comply with the terms of the lease agreement.
iii) An order that the Defendant should vacate the demised premises for the Claimants.
iv) The sum of N100,000,000.00 (One Hundred Million Naira) being damages for breach of the lease agreement.
v) An order that the Claimants should re-enter and take possession of the demised property from the Defendant upon the Defendants breach of the terms of the lease agreement.
vi) Perpetual Injunction restraining the Defendant by themselves, their agents, privies, servant, workmen whatsoever name so called from living, worshipping, using and doing or performing any activities in whatever name or manners on the land in dispute.

The Respondents case before the lower Court is that pursuant to a Deed of Indenture dated 22nd of February,1960 the Appellant entered into a lease agreement with the accredited members of their family.

By virtue of that agreement, the Appellant was led into an undisturbed possession of their land measuring approximately 5.663 acres. The Appellant paid the sum of ??56.13 for the initial rent of 10 years with effect from 20th February 1960 but they have since then made several unsuccessful attempts to recover the outstanding rent.

The Respondent emphasized that rent on the demised premises has been left unpaid since after the payment of the initial ??56.13 yearly payment for the first ten years which expired on 22nd February 1970. That they caused their Solicitor, Messrs Olujimi & Akeredolu to write a one month notice of their intention to re-enter the land as required of them in the lease agreement but that in spite of the letter, the Appellant has refused to vacate the premises.

The Appellant did not file a counter affidavit in opposition to the originating summons. He however filed a Preliminary Objection containing four (4) grounds with a written address on the 25th of November 2013. See pages 164- 168 of the record.

After taking arguments on the processes filed by parties, the lower Court delivered its judgment on the 2nd of

December 2015. The Court granted reliefs (i), (ii), (iii), (iv), (v) and (vi) of the Respondents claim in the originating summons. With respect to relief (iv) it awarded N5,000,000 as damages for breach of the lease agreement.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal on the 11th of December 2015 predicated on six (6) grounds. See pages 281 -285 of the Record. The Record of Appeal was duly transmitted to this Court on the 1st of March 2015. The Appellant seeks an order setting aside the judgment of the lower Court and an order dismissing the claimants claim in its entirety.

Parties filed and exchanged Briefs of Argument. The Appellants Brief was filed by Jude O. Ebiteh Esq. on the 14th of April 2016. A Notice of Preliminary Objection and the Respondents Brief of Argument were filed by Oluwagbemiga Olatunji Esq. on the 1st of July 2016 but deemed properly filed on the 2nd of May 2019. Appellants Counsel filed an Appellants Reply Brief on the 8th of October 2018 which was deemed as properly filed and served on the 2nd of May 2019.

Two issues were identified for the resolution of this

appeal in the Appellants Brief. The two issues contained at paragraphs 3.2 and 3.3 of the brief are as follows:
1) Whether having regard to the circumstances of this case, the refusal of the trial Court to grant the Appellant’s application for extension of time within which to file its counter-affidavit to the originating summons and to deem as properly filed the counter-affidavit already filed by the Appellant holding same to be an attempt to arrest the judgment of the Court has not occasioned a miscarriage of justice in this matter. (Based on grounds 3 and 6.)
2) Whether the Respondent has fulfilled the condition precedent to the filing of the action for forfeiture which is the giving of one month’s notice in writing to the lessee. (Based on grounds 1, 2, 4 and 5 of the Notice of Appeal.

In the Respondents Brief which contains a Notice of Preliminary Objection argued at pages 6 13 of the brief, Learned Counsel to the Respondent formulated two issues for determination to wit:
1) Whether the Respondent has fulfilled the condition precedent to the institution of the action against the Defendant/Appellant before the Lower

Court to entitle them to the relief sought and obtained from the Lower Court.
2) Whether the application for extension of time to file Counter-affidavit and to deem the Counter-affidavit filed as properly filed which was filed after the parties have argued for and against the originating summon and judgment having been reserved was rightly dismissed and have not occasioned any miscarriage of justice.

On the 2nd of May 2019 when this appeal was argued, Learned Counsel representing both parties adopted and relied on their respective briefs of argument. While the Appellants Counsel argued in favour of allowing the appeal, Counsel representing the Respondent submitted in favour of the dismissal of same.

I must mention at this point that the issues formulated for determination by the Appellant and Respondents are similar. I shall adopt the issues formulated by the Appellant with some modification in phraseology.

My issues for determination are:
1) Was the lower Court right when it refused to grant the Appellants application for extension of time to file counter affidavit to the originating summons.
2) Does the one

month Notice in Exhibit D fulfill the requirement for re-entry as provided in clause 4 of the Deed of Indenture in Exhibit A.

225; NEPA VS. ANGO (2001) 15 NWLR (PT. 737) 627; OKUMODI VS. SOWUNMI (2004) 2 NWLR (PT. 856) 1 AND UDENWA VS. UZODINMA (2013) 5 NWLR (PT. 1346) PG. 94 AT 111 PARAS D E.

It is for the above reason that i shall proceed to dispose of the Preliminary Objection raised by the Respondent first.
The grounds for the Preliminary Objection are:
1) Grounds One, Two, Three, Four and Five of the Notice of Appeal are grounds of mixed law and facts upon which the Appellant ought to have sought the leave of this Honourable Court to Appeal.
2) Two issues formulated by the Appellant were therefore formulated from incompetent grounds of Appeal.
3) Grounds Two, Four and Five are incompetent being an appeal against an interlocutory ruling dated 30th October 2012 for which the Appellants would also require leave of Court to Appeal.
4) The entire Notice of Appeal and the issues formulated therein were therefore incompetent.

The Grounds of Appeal as contained in the Notice of Appeal are:
GROUND ONE
The Learned trial Judge erred in law and misdirected himself on the facts when he granted the declaration to the effect that the

Defendant’s (Appellant’s) failure to renew the rent in the lease agreement for an unequivocal period of more than forty (40) years after the expiration of the original rent has led to the forfeiture of the entire lease on the land in dispute and granted an order of forfeiture of the lease.
GROUND TWO
The Learned Trial Judge erred in law and misdirected himself when he failed completely to make any findings or any pronouncement on the issue of the validity of Exhibit D (the purported one month notice) attached to the Originating Summons.
GROUND THREE
Learned Trial Judge erred in law and misdirected himself when he dismissed the Defendants/Appellants application for extension of time within which to file its counter affidavit to deem as properly filed the counter affidavit already filed to the originating summons holding that same was an attempt to arrest the judgment of the Court and as such an abuse of Court process.
GROUND FOUR
The Learned Trial Judge erred in law and misdirected himself on the facts when he held that the issue of the validity of Exhibit D, the one month notice issue by the Claimant has already

fallen under issue estoppel by ruling earlier delivered in the matter on 30/10/12 by Honourable justice Bolaji-Yusuf as he then was now JCA thereby failing to pronounce on it.
GROUND FIVE
The Learned Trial Court erred in law and misdirected itself when it dismissed by its ruling dated 30/10/12 the Preliminary Objection raised by the Defendant/Applicant by its motion on notice dated 25/5/12 to the effect inter alia that the suit was premature and that the suit was not one that can be commenced by the originating summons.
GROUND SIX
The judgment is against the weight of evidence.

In a nutshell, the Counsel to the Respondents contends that all the Grounds of Appeal are based on mixed law and facts for which leave of Court is required but not obtained. He argued that this being so all the issues submitted for determination by the Appellant are incompetent. He argued further that Grounds 2, 4 and 5 are also incompetent for the reason that they are based on an interlocutory decision for which leave is required and not sought. He therefore urged us to hold that the issues for determination and the entire Notice of Appeal are

incompetent.

It is the position of the Appellants Counsel that all appeals against the final decision of the lower Court do not require the leave of Court whether or not they are based on mixed law and fact. He submitted that leave is only required where the grounds are of mixed law and fact or of fact alone in appeals from interlocutory decisions. He opined that since Grounds 2 and 4 do not arise from an interlocutory decision no leave is required.

(PT. 110) 374 AND OGBECHIE VS. ONOCHIE (1986) 2 NWLR (PT. 23) 484. Where it is evident the lower Court misunderstood the law or misapplied the law to the facts which are already proved or admitted, the ground in any of these two instances will qualify as a ground of law. On the other hand, if the complaint is on the manner in which the Court evaluated the facts before applying the law, such ground is of mixed law and fact. Thus, it is the main grouse or the reality of the complaint embedded in the ground that determines what it involves and not the label, designation or tag given to it.
On the principles guiding classification of a ground of appeal as one of law, or of fact or of mixed law and fact, the Supreme Court in AUGUSTINE NJEMANZE VS. JOHN NJEMANZE (2013) 8 NWLR (PT. 1356) PG. 376 AT 393 395 PARAS H C held thus:
“This Court for quite long, has set out some of the criteria for distinguishing a ground of law from that of mixed law and fact. Some of these principles can be summarized in the following manner:
(i) First is the thorough examination of the grounds of appeal in the case to see whether they reveal a

misunderstanding by the lower Court of the law, or a misapplication of the law to the facts already proved or admitted.
(ii) Where a ground complains of a misunderstanding by the lower Court of the law or misapplication of the law to the facts already proved or admitted, it is a ground of law.
(iii) Where a ground of appeal questions the evaluation of facts before the application of law, it is a ground of mixed law and fact.
(iv) A ground which raises a question of pure fact, is a ground of fact.
(v) Where the lower Court finds that the particular events occurred although there is no admissible evidence before the Court that the event did in fact occur, the ground is that of law.
(vi) Where admissible evidence has been led, the assessment of that evidence is entirely for the Court. If there is a complaint about the assessment of the admissible evidence, the ground is that of fact.
(vii) Where the lower Court approached the constitution of a legal term of art in a statute on the erroneous basis that the statutory wording bears its ordinary meaning, the ground is that of law.
(viii) Where the lower Court or tribunal applying

the law to the facts in a process which requires the skill of a trained lawyer, this is a question of law.
(ix) Where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found, the Appeal Court will assume that there has been a misconception of the law. This is a ground of law.
(x) Where the conclusion of the lower Court is one of possible resolutions but one which the appeal Court would not have reached if seized of the issue, that conclusion is not an error in law.
(xi) Where the Court of Appeal finds such application to be wrong and decided to make its own findings such findings made by the Court of Appeal are issues of fact and not of law.
(xii) Where the Court of Appeal interferes in such a case and there is a further appeal to a higher Court of Appeal on the application of the facts, the ground of appeal alleging such misdirection by the lower Court of Appeal is ground of law not of fact.
(xiii) A ground of appeal which complains that the decision of the trial Court is against evidence or weight of evidence or contains unresolved contradictions in the evidence of witnesses, it is purely a

ground of fact (which requires leave for an appeal to a Court of Appeal or a further Court of Appeal)

I shall therefore at this point proceed to examine each ground of Appeal and categorize them in accordance with trite principles of law.

I agree with Counsel to the Respondent that Grounds One and Two are grounds of mixed law and fact as they complain about evaluation/non-evaluation of facts and application of the law at the lower Court. Both grounds also contain complaint against the final decision of the lower Court. Ground Three is completely a ground of law as the complaint of the Appellant is on the misunderstanding of the law relating to an application for extension of time to file a counter affidavit. It is also against an interlocutory decision of the lower Court even though incorporated in the final judgment. Ground 4 is a ground of law as it is a complaint on the decision of the lower Court in its judgment that the issue of validity of Exhibit D is covered by the doctrine of issue estoppel. It is a complaint against the final decision of the lower Court. Ground Five is a ground of mixed law and fact and a complaint on a

ruling delivered on 30th of October 2012 on the Appellants Motion on Notice dated 25th May 2012. Ground Six is the omnibus ground.

The next thing is to consider what the law says on when leave is required with respect to grounds of law and mixed fact and fact alone. In resolving this issue, recourse must be made to the Constitution which confers jurisdiction on the Courts.
In ECOBANK VS. HONEYWELL FLOUR MILLS PLC. (2018) LPELR 45124 SC, the Supreme Court held thus:
The law is trite that the right to appeal against the judgment or decision/order of a Court is constitutional and/or regulated by some statute. It is therefore within the province of the law that the exercise of such right must be within the bounds of the enabling law. That right is not exercised at large. A constitutional right of appeal must be exercised within the bounds of the Constitution.
Section 241(1) of the Constitution of the Federal republic of Nigeria 1999 (as amended) provides for where appeals are of right from the decisions of the Federal High Court or High Court of the State or FCT. It provides thus:
241(1) An appeal shall lie from

the decision of the Federal High Court of a High Court to the Court of Appeal as of right in the following cases:
(a) Final decision in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance;
(b) Where the Ground of Appeal involves questions of law alone, decisions in any civil proceedings.
Section 242(1) of the Constitution (supra) provides that subject to the provisions of Section 241 of the Constitution, an appeal shall lie from the decisions of the Federal High Court or a High Court of a State or FCT to the Court of Appeal with leave of the Federal High Court, High Court or the Court of Appeal.
The provision of Section 241(1) of the Constitution quoted above is clear and unambiguous. It allows for an absolute right of Appeal against the final decisions of the Federal High Court or a High Court of a State or FCT. Section 241(1)(b) allows an appellant to appeal to the Court of Appeal as of right on grounds of law on any decision of the lower Court (Civil or Criminal).
However by virtue of Section 242(1) appeals against interlocutory decisions must be with the leave of the Court

except on grounds of law alone.
Now, applying the law to the grounds of appeal, Grounds One and Two being of mixed law and fact and based on the final decision of the lower Court are appeals as of right for which no leave is required. Ground Three though an appeal against an interlocutory decision is grounded in law and as such no leave of the lower Court or this Court is required. Ground Four is of law and against the final decision of the lower Court for which no leave is required. Ground Five is of mixed law and fact and against an interlocutory decision. It requires leave of Court. There is no evidence before us that such leave was sought and obtained. I therefore agree with the Respondents Counsel that Ground 5 is incompetent and should be struck out. Ground Six is the omnibus ground and being against the final decision of the lower Court does not require leave.
I therefore hold that Grounds One, Two, Three, Four and Six are competent grounds of Appeal. Ground five is incompetent and it is hereby struck out. I further hold that all the issues formulated for determination by the Appellant are competent as they are linked to competent

grounds of appeal. The Notice of Appeal is also competent.

I am compelled to remind parties for the umpteenth time that the expression grounds of mixed law and facts is not a term of arts. It is not a magic word that can automatically convert a ground of appeal from one classification to another. The manner an Appellant labels a ground of appeal does not necessarily bring out the class of ground it belongs. It behoves on a Court to critically examine the ground with its particulars to arrive at a decision of which class the ground belongs.

I wish to also add that it is now settled that if only one of the grounds of appeal in an appeal is found to involve a question of law that is valid, that ground alone can sustain the appeal. See NWAOLISAH VS. NWABUFOH (2011) 14 NWLR (PT. 1268) 600 AT 625 PARA F; DAIRO VS. UNION BANK OF NIGERIA PLC & ANOR. (2007) 16 NWLR (PT. 1059) PG. 99 AND MOHAMMED VS. OLAWUNMI (1990) 2 NWLR (PT. 133) 458.

My conclusion on this preliminary objection is that Grounds 1, 2, 3, 4 and 6 are competent. Ground 5 is incompetent and struck out. All Appellants issues for determination are competent.

I will now go to a consideration of the substantive Appeal.

ISSUE 1
Was the lower Court right when it refused to grant the Appellants application for extension of time to file a counter affidavit to the Originating Summons.

The suit at the lower Court was initiated as an originating summons by the Respondent against the Appellant. The Appellant who was duly served with the originating process and represented by Counsel did not file a counter affidavit but a Notice of Preliminary Objection. The originating summons was duly argued and adjourned for judgment. However before judgment could be delivered the Appellants Counsel filed an application for extension of time to file a counter affidavit to the originating summons. The application is at pages 237 240 of the record. The reason for the delay as contained in paragraph 2(xii) of the affidavit in support of the motion is as follows:
(xii)That the Defendants failure to file a counter affidavit to the claimants originating summons was caused by the former Counsels mistake, negligence or inadvertence as he did not work according to

Defendants instruction.

On the said application, the trial judge held as follows:
I find reliance placed on the way and manner this case was handled by the former Counsel to the Defendant as the major reason for this application untenable in law.

He went on further at pages 277 278 to hold as follows:
Another angle to the application filed by Mr. Ebiteh for the Defendant is the timing of it. The application was filed at a time when the matter was adjourned for judgment. It is therefore clear that intendment of the application is to ensure that the judgment is not delivered and to see that the hearing is commenced de novo. Much as it is the inalienable right of parties to an action to be heard by the Court, the Court is however not a slave of time that must wait indefinitely for a party to decide when to come to present his case.
This is so as to delay hearing of a case deliberately or re-open it at the whims and caprices of any litigant will amount to an abuse of Court process which in turn will ultimately defeat the justice of the case. In the instant case, the application of the Defendant if

granted will definitely amount to allowing the Defendant to arrest the judgment of the Court in this matter.

Appellants Counsel while arguing this issue submitted that the application was merely for extension of time to file a Counter Affidavit to the Originating Summons and did not include any prayer requesting the Lower Court to stop, postpone or suspend its judgment. He submitted further that all the Appellant desired was for the lower Court to take the facts contained in its Counter Affidavit into consideration and decide the case on its merit based on the affidavit evidence from both parties. He relied on the Supreme Court case of CHUWKWU VS. OMEHIA (2012) 6 SCNJ 596 AT 612 to submit that the affidavit evidence which the Appellant prayed the Lower Court to consider disclosed enough cogent, and compelling reasons why the Appellant failed to take the necessary step within the time prescribed.

It is his further submission that the failure of the Appellant to file a Counter Affidavit was completely that of the former counsel which sins should not be visited on the litigant. He urged us to take cognizance of the fact that the Appellant

disengaged Chief Balogun as soon as it came to his knowledge that he was not handling his matter well. He relied on the case of LONG JOHN VS. BLAKK (1998) 5 SCNJ 81 and MR. MUFUTAU AKINPELU VS. EBUNOLA ADEGBORE (2008) 4 SCN 220. He further relied on the case of FAYOSE VS. STATE (2009) 10 WRN 62 AT 77 to support his argument that a new Counsel taking a case from another counsel should be allowed to make amendments necessary for the success of the case. Citing the case of NWANKWO VS. NWANKWO (1993) 6 SCNJ 84, he submitted that it is now accepted law that any application the purpose of which is to enable the Applicant place its case before the Court should be granted by the Court unless it can be shown to have been made mala fide or when it will cause in justice to the other party. He argued further that the overriding principle for extension of time is fair hearing and that there cannot be fair hearing unless the two parties are heard.

He finally urged us to decide the case between the parties on its merit after granting the Appellants application for extension of time within which to file the Counter Affidavit and deeming as properly filed the

Counter Affidavit already filed in the matter or alternatively send the matter back to the Lower Court for retrial.

For his part, learned Counsel for the Respondent argued that the Appellants application at the Lower Court filed after close of address on both sides and at a time when the matter was adjourned for judgment is an abuse of Court process. He submitted that the law that a litigant should not be punished for the mistakes of his Counsel is not without exception as there is a presumption of authority of Counsel to control the conduct of its clients case and a litigant who deliberately allowed counsel to conduct his case to his detriment may be punished. He submitted that the deliberate insistence of the Appellants previous Counsel to argue his objection instead of filing a Counter Affidavit cannot amount to an error/sin of Counsel which should not be visited on the litigant. He argued that in as much as it is within the rights and duties of a new Counsel taking over a case from another Counsel to be allowed to make an amendment necessary for the success of the case, such a Counsel does not have the right to request the Court

to reverse its earlier proceedings or steps legally taken so far because they do not favour his client.

He finally submitted that the grant of the application for an extension of time to file Counter Affidavit in this case would not only occasion in justice to the Respondent but would also lead to the lower Court assisting the Appellant to conduct its case to the detriment of the Respondent.

It is to be noted that the said Appellants application to file its Counter Affidavit was filed four years after the filing of the Originating Summons. It is also important to note that the previous Counsel presented arguments in law based on a Notice of Preliminary Objection. It should also be further noted that the said application was brought by a new Counsel after argument on the Originating Summons and Preliminary Objection had been taken and the matter adjourned for judgment.
The law is settled that a decision to grant or refuse an application for extension of time to file processes outside the time limited by law is a call for the exercise of the discretionary powers of a Court which must be exercised both judicially and judiciously. See OLADELE VS. AROMOLARAN II

(1991) 3 NWLR; OGOLO VS. OGOLO (2006) ALL FWLR and SANNI VS. AGARA (2010) 2 NWLR (PT. 1978).
To act judicially simply means to consider the interest of both parties to an application and weigh them in order to arrive at a fair or just decision. To act judiciously is to exhibit or show wisdom, good sense and sound reasoning in the assessment of the parties interests and arriving at a decision on the peculiar facts and circumstances of a case.

It is on record that on the 12th of August, 2015, Jude O. Ebiteh Esq. of Counsel who took over from Chief Alli Balogun as Counsel representing the Appellant applied to the Lower Court for an order extending the time within which the Appellant may file a Counter Affidavit to the Originating Summons. As at this date, parties had adopted their respective addresses and the matter adjourned for judgment. I wish to observe that the situation in this appeal is not that the Appellant approached the lower Court having defaulted in filing its Counter Affidavit and Written Address simpliciter. The reality is that the Originating Summons had been argued and adjourned for the delivery of judgment. The

Appellant who had all the time to file a Counter Affidavit containing facts in defence of the case chose to file a Preliminary Objection. He made his choice and suddenly woke up from his profound slumber to bring this application on the ground that it was a mistake of his former Counsel. Let me quickly say that the conduct of the Appellants Counsel in adopting a particular procedure which he thinks is proper for his client cannot be said to be a mistake, negligence or sin of Counsel which should not be visited on the litigant. While a new Counsel taking over a case can apply for an order of amendment necessary for the case, such Counsel cannot rightly request the Court to reverse its earlier proceedings or steps legally taken so far because it does not seem to favour his client or that he would have done otherwise. I am therefore unable to agree with the Appellants Counsel that the failure of the Appellant to file a Counter Affidavit in the present circumstance is a sin of Counsel which should not be visited on the litigant. Surely there is a world of difference between mistakes, human error or simple clerical errors on one hand and the

ineptitude of Counsel on the other hand. For the avoidance of doubt it is worth pointing out that the principle of law that a litigant should not be punished for sin of his counsel has its limitations and cannot be used as a safe haven to cure mistakes especially the indolence of Counsel. I am afraid this principle cannot avail the instant Appellant. This Court and indeed any Court of law will not under the guise of not visiting sins of Counsel on the client condone ineptitude, incompetence or lack of due diligence on the part of Counsel. It is obvious from the record that the situation in this appeal is not that of mistake but incompetence and/or ineptitude of Counsel. The Appellant who is at the receiving end of the ineptitude of his Counsel and was present in Court at all material times ought to have been more alive to his interest by following up the handling of his matter.
In the case of PRUDENT BANK PLC & ORS. VS. OBADAKI (2010) LPELR 9200 this Court had this to say:
While it is the position of the law as settled in a plethora of cases that the sin of counsel should not be visited on the litigant the rule

is not without exceptions. Where was the Applicant all along? Besides, if it is always the case that sins of Counsel should not be visited on the litigant, then it would be that the Courts will be encouraging tardiness of Counsel any delay in the prosecution of cases.
Consequently, no infraction will be penalized. Mistake of Counsel is not a magic wand and the Courts will never condole lack of diligence on the part of litigants. A litigant equally has the responsibility to be vigilant in respect of its matters before the Court and that it is not guilty of inordinate delay.

Let me quickly address the Appellants complaint that he has been denied fair hearing. Fair hearing means trial conducted according to all the legal rules formulated to ensure that justice is done to the parties in the case. A party complaining that he has been denied the right to fair hearing should remember that in a Civil case a balance has to be struck between the Respondents right to have their case heard expeditiously and the Appellants right to put across his defence to the suit. I note from the record that the Appellant was afforded every opportunity to put

across its defence but failed to take advantage of that opportunity. He cannot now turn around to complain that he was denied fair hearing.
The fair hearing principle entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is not for the weakling, the slumber, the indolent or the lazy litigant. It is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The fair hearing principle cannot be unduly invoked by this Court in favour of an Appellant to the disadvantage of the Respondent. This Court has a duty to balance the interest of both parties. The Appellant who refused to take advantage of the fair hearing process, cannot now backpedal to accuse the Court of denying him fair hearing. By this application the Appellant wants to have a second bite at the cherry. That would not be justice to the Respondent.
I am in total agreement with the reasoning of the lower Court at page 276 of the record that the right of the Counsel initially briefed by the Appellant to defend the action on his behalf is sacrosanct and forms part of his right to conduct

his case before a Court to the best of his ability regardless of the possibility that another Counsel may have adopted greater or better skills in the conduct of the same case. The Appellant made his choice of Counsel. His decisions remain binding on him. There is no valid reason given by the Appellant for his failure to file his Counter Affidavit within time and I so hold.
The inevitable conclusion on this issue is that the Lower Court was right when it refused the application for extension of time to file a Counter Affidavit to the Originating Summons made on behalf of the Appellant. The application was rightly dismissed. This issue is resolved against the Appellant.

ISSUE NO. 2
Does the one month notice in Exhibit D fulfill the requirement for re-entry as provided in Clause 4 of the Deed of Indenture in Exhibit A.

Clause 4 of the Deed of Indenture at pages 9 10 of the record provides thus:
(a) If the rent hereby reserved or any part thereof shall be unpaid for Twenty One (21) days after becoming payable (after one months notice in writing to that effect has been given to the tenant by the landlords, it shall be

lawful for the landlords at any time thereafter to re-enter upon the demised land or any part thereof in the name of the whole and thereupon this demise shall absolutely determine but without prejudice to the claim which the landlord may have against the tenant hereunder.

The Respondents heavily relied on Exhibit D at pages 18 19 of the record as fulfilling the one month requirement stipulated in the above clause. They contend they are entitled to the orders of forfeiture and re-entry granted by the lower Court. The contention of the Appellant is that Exhibit D does not satisfy the one month notice requirement and as such the Respondents have not fulfilled the condition precedent.

The Appellants Counsel drew our attention to Exhibit D attached to the originating summons and urged us to observe that it was not addressed to the Appellant but to The Registered Trustees of S. S. Peter & Paul. He further urged us to note that the tenant in Exhibit A who is also a party to this suit is The Registered Trustees of the Perfecture Apostolic, and hold that Exhibit D does not qualify as a notice to the

Appellant as required by Exhibit A.

Learned Counsel to the Appellant submitted further that the Lower Court failed to examine and pronounce on the validity of Exhibit D in contradistinction to the way and manner it examined Exhibit A which failure culminated into its coming to a wrong decision.

In the final analysis he urged us to hold that Respondents did not fulfill a vital condition precedent to the institution of the suit at the lower Court which makes it premature and incompetent.

Learned Counsel to the Respondent referred us to paragraphs 13 and 14 of the Affidavit in support of the Originating Summons at page 5 of the record to support his claim that Messrs Olujinmi & Akeredolu served Exhibit D on the Appellant but that in spite of the service, the Appellant refused to vacate the premises. He emphasized that the Appellant did not reply Exhibit D and did not deny its service. His position is that there is no evidence on record that the Appellant was not served with Exhibit D and having failed to controvert the deposition in the affidavit in support of the Originating Summons by filing a Counter Affidavit all paragraphs in the affidavit

must be deemed admitted. He relied on the case of NIGERIA NAVY VS. GARRICK (2006) ALL FWLR (PT. 315) 45 AT 79. He finally urged us to hold that the Respondent fulfilled the condition precedent and therefore entitled to the order of forfeiture.

I have observed from the record that the only way the Appellant responded to the Originating Summons was by filing a Preliminary Objection on the 25th of May, 2012 in which he challenged the process on the ground of incompetence. His objection was overruled on the 30th of October, 2012. See pages 83 95 of the record.

After the Ruling of 30th of October, 2012, the Appellant filed yet another Preliminary Objection with a Written Address pursuant to Order 39 Rule 1 of the Oyo State High Court (Civil Procedure) Rules 2010 and the inherent jurisdiction of the Court. See pages 164 168 of the record. Grounds (i) and (iv) of the Preliminary Objection is relevant to this issue and it reads thus:
(i) The Lease Agreement relied on has internal mechanism for the settlement of dispute arising from it. (Clause 4 of the Lease Agreement)
(iv) This action is premature and should be dismissed

with substantial cost.

It is again necessary to put it on record that the Appellant did not file any affidavit in support of its Preliminary Objection. The only other process filed by the Appellant is a Further Written Address upon receipt of the Respondents address in opposition to the Preliminary Objection. On the 22nd June, 2015 when the Originating Summons came up for hearing, learned Counsel to the Respondents moved his application and adopted his Written Addresses filed in support. Appellants Counsel responded by relying on his address filed in support of the Preliminary Objection and the Further Address filed by him. See pages 190 192 of the record.
With the above background, I cannot agree more with the Lower Court that since the Appellant did not file any Counter Affidavit to challenge the facts deposed to by the Respondents in their affidavit in support of their Originating Summons, it is at liberty to believe the facts as presented by the Respondents. The law is settled that the consequence of failure to file a Counter Affidavit in response to an affidavit in support so as to challenge or controvert the depositions in

the adverse partys affidavit is that it is deemed that the failing party has accepted the facts deposed to in the affidavit in support. Put succinctly, an unchallenged and uncontroverted fact in an affidavit is treated as established. See CONTROLLER NIGERIA PRISON SERVICE VS. ADEKANYE (1999) 10 NWLR (PT. 623) 400 and AYOOLA VS. BARUWA (1999) 11 NWLR (PT. 628) 595.
The affidavit in support of the Originating Summons is regarded as the Statement of Claim while the Counter Affidavit is the Statement of Defence. The implication is that it is the affidavit filed by the respective parties that is considered in the determination of the case. See ETIM VS. OBOT (2010) 12 NWLR (PT. 1207) 108 AT 171; INAKOJU VS. ADELEKE (2007) ALL FWLR (PT. 353) PAGE 3 AT 75; PORT AND CARGO HANDLING SERVICE COMPANY LTD & ORS. VS. MIGFO (NIGERIA) LTD & ANR. (2012) 18 NWLR (PT.133) PG. 609 and NNPC & ANR. VS. FAMFA OIL LTD (2012) 17 NWLR (PT. 1328) PG. 148 AT 189. Where a Respondent intends to rely on facts to rebut the averments raised in an Applicants supporting affidavit such facts must be set out in a Counter Affidavit. Where this is not done, the

averments in the supporting affidavit have not been controverted.

In paragraphs 13 and 14 of the affidavit in support of the Originating Summons, the Respondents deposed that they wrote a letter to the Appellant intimating her of their desire to re-enter the leased land. In paragraph 15 of the same process, the Respondent deposed further that the Appellant still occupies the leased premises and has not paid its arrears or rent/debt owed to their family. My view is that the Appellant who did not file any Counter Affidavit has no factual defence to the Respondents claim and I so hold. Paragraphs 13, 14, 15 and indeed all the remaining paragraphs of the Respondents affidavit in support of the Originating Summons are deemed admitted and constitute unchallenged evidence upon which the lower Court rightly acted.

I agree with the Lower Court that Exhibit A attached to the Respondents affidavit is a valid lease entered into between the Respondents family and the Appellant. The said Exhibit A identified the parties and the property involved in clear terms. Regrettably, the Appellant did not deny receipt of Exhibit D as alleged in the affidavit in

support. Exhibit D is a notice to the Appellant. Although the name of the Appellant is wrongly stated on the notice there is no doubt that its contents are directed to the Defendant/Appellant. This is because the fact of possession of the property is not in dispute. To my mind, the argument of Appellants Counsel that Exhibit D was addressed to S. S. Peter and Paul which is neither the Appellant nor a juristic person is of no moment. The inscription of the name or an address in a notice in a manner different from its juristic name does not make such notice defective. The Courts have held a wrong description of the name of a legal entity is a misnomer which can be corrected in cases where a juristic person is addressed in its non-juristic name. See MAERSK VS. ADDIDE INVESTMENT LTD (2002) 4 SC (PT. 11) PAGE 157; MINISTRY OF CO-OPERATIVE & COMMUNITY DEVELOPMENT GOMBE STATE & ORS. VS. GUARANTEE TRUST BANK PLC & ANR. (2018) LPELR 44091 CA.

Since the fact of the receipt of Exhibit D by the Appellant is not denied, I find Exhibit D to be a valid notice to the Appellant in compliance with the Lease Agreement.

Issue No. 2 is also resolved against the Appellant.

Having resolved the two issues against the Appellant my conclusion is that this appeal lacks merit and should be dismissed. Appeal is therefore dismissed. I affirm the judgment of the Lower Court in SUIT NO: I/430/2012 delivered on the 2nd of December, 2015.
I award N100,000 costs in favour of the Respondent against the Appellant.

JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of My Lord FOLASADE AYODEJI OJO, JCA just delivered.
My Lord has dealt with the issues in this appeal adequately and I agree with the reasons given therein as well as the conclusion reached.
Having also read the record of appeal and the briefs of argument filed and exchanged by the parties, I am also of the view that this appeal lacks merit and it is also dismissed by me.
I abide by the consequential order made in the said lead Judgment including order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Folasade Ayodeji Ojo, JCA.
My learned brother has comprehensively resolved

the two issues raised for determination in this appeal against the Appellant. I agree with My Lord’s reasoning for so finding and the conclusions thereon. I have nothing else to add. I therefore find and hold that this appeal has no merit. It is accordingly dismissed.
I abide by the consequential order made therein including the order on costs.

Appearances:

Jude O. EbitehFor Appellant(s)

Oluwagbemiga Olatunji with him, S.O. Tolani AjaiFor Respondent(s)

Appearances

Jude O. EbitehFor Appellant

AND

Oluwagbemiga Olatunji with him, S.O. Tolani AjaiFor Respondent