JOINT PROJECT DEVELOPMENT COMPANY & ORS v. ALHAJI LATEEF AKINLADE
(2014)LCN/6833(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of February, 2014
CA/L/22/08
RATIO
WORDS AND PHRASES: MENSE PROFIT
Mense profit is the rent and profit that a trespasser has or might have received or made during his occupation of the premises, and which he must pay over to the true owner as compensation for the tort he has committed – see Bolori V. Offorke (2010) LPELR – 3886 (CA) and Osawaru V. Ezeiruka (1978) NSCC (Vol. 11) 390, where the Supreme Court per Aniagolu, JSC, explained –
“In a claim for mense profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages, which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the Defendant ceased to hold the premises as a tenant and became a trespasser. – – The word “mense” was derived from the Latin word “Medius” meaning middle, intervening or intermediate – – – And so a landlord in claiming for “mense profit” is claiming for the profits intermediate from the date the tenant ought to have given up possession. It is, therefore, damages for trespass the measure of which is the amount the tenant had been paying rent for the corresponding period when he was lawfully in occupation as a tenant”. Per AMINA ADAMU AUGIE, J.C.A.
WORDS AND PHRASES: DAMAGES
General Damages are what the Court, in the exercise of its discretion, having perused the circumstances of the case, can grant. But the Courts are not allowed to grant double compensation to a party as EQUITY LEANS AGAINST DOUBLE PORTIONS.
Decidedly, where a Plaintiff recovers in full under Special damages for an injury, he cannot recover general damages for the same injury. NICON HOTELS V. N.D.C. LTD (2007) 13 NWLR (Pt.1051) 237. Per RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. JOINT PROJECT DEVELOPMENT COMPANY
2. CHIEF CHARLES ADEBIYI
3. PAUL OSAJI AND COMPANY Appellant(s)
AND
ALHAJI LATEEF AKINLADE Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): In February, 1986, the Respondent entered into a project finance development agreement with the 1st and 2nd Appellants for his property at No. 206, Muri Okunola Street, Victoria Island, Lagos. One of the Terms of the Agreement was that the Respondent would execute a Power of Attorney in their favour. He executed a Power of Attorney dated 15/4/1987, wherein Clause 7 states –
“It is hereby declared that the Power of Attorney shall be irrevocable during the currency of the lease which shall not exceed fourteen years”.
The 1st Appellant erected two detachable duplexes on the property – ‘A Wing’ and ‘B Wing’. Subsequently, the 2nd Appellant, who is the Managing Director of the 1st Appellant, informed the Respondent by a letter dated 24/6/1996 that –
“- – It has become necessary for us to dispose of our interest which is covered by the Power of Attorney dated 15/04/87. Our interest expires in the year 2002. Accordingly, we have received an offer – a copy of which is attached herewith for your consent. This payment due to you, which is 10% of the consideration, will be forwarded to you as soon as the arrangement is concluded”.
By a letter dated 24/6/1996, they made him an offer to buy out their “interest at a price not less than N1.6M”. The offer was to “remain open for only one week beginning 28/6/1996 in view of the pressures we have for the disposal”.
The 3rd letter to the Respondent on the subject, dated 12/7/1995, reads thus –
“Thank you for your letter of the 4th July, 1996 – – Unfortunately, we had a deadline of June 17 from the CBN to pay up our debt and can, therefore, not hold until month end as you requested. We have received various offers from N1.6M to N1.75M and we now have no choice but to conclude not later than Wednesday next week”.
The 1st Appellant accepted the 3rd Appellant’s offer, and its residue of 6 years was transferred to the Company, who put its Chairman in the A Wing of the property and leased out the B Wing to Mikado Nigeria Ltd. The 3rd Appellant later made moves to purchase the property from the Respondent for “N22m” which he rejected out rightly, and he made this known to the Appellants in a letter dated 6/8/2001; written by his Solicitors – Abudu, Daley & Co. It reads –
“…Our said client has passed to us your letter of April 02, 2001 wherein you mentioned that the Sublessee – Messrs. Paul Osaji & Co. offered to purchase our client’s property for an amount of N22,000,000.00. In the circumstance, he has firmly instructed us to inform you that it has never been his wish and it is still not his wish to sell the above property whatever the circumstances may be. He has also instructed us to inform you that once your interest expires in the year 2002; you will not be allowed to remain in occupation even for a day longer. We are of the view that the simple warning will be heeded moreso; when our client would not wish to entertain any discussion on the issue. Please be guided accordingly”.
The Appellants did not respond and his Solicitors wrote letters of reminders, including a letter dated 3/9/2003 to “The occupiers (Two Wings)” that reads –
“Please be informed that we wrote several letters to Joint Project Development Company – the Lessors of the above property to your good selves regarding expiration of the mandate which the owner of the property (Alhaji Akinlade) gave out to the said company ab initio. For your information, the development Agreement/sublease covered by Power of Attorney dated 15/4/87 expired in March 2002, As per the instruction given to us by the owner of the property – Alhaji Akintade we wrote to JPDC Limited informing the company to hand over the keys and the letter was signed receipted on 30/1/2002 by Charles Adebiyi & Co. As a matter of fact, we wrote other letters thereafter on the same subject but no response has been received up to now. We now feel obliged to let you know that since your lessors have no more right to lease out the above property to anyone except to hand over the keys, you are in law regarded as trespassers on the above property”.
When the said Occupiers – Mikado Nigeria Ltd., and “Unknown Persons” failed to vacate the property, the Respondent filed a Writ of Summons dated 21/10/2003 at the Lagos State High Court, wherein he claimed as follows –
1. An injunction to restrain the Defendants whether by themselves, their servants or agents or otherwise howsoever from entering, remaining and continuing to remain in occupation of the said property.
2. Possession of said property,
3. Mense profits at the rate of N3,000,000.00 per annum being estimated rents due from the 15th of April 2002 till possession is delivered up.
4. General damages
5. Costs.
6. Solicitors’ fees being the cost of N150,000.00.
Upon being served, the 1st and 2nd Appellants as 1st and 2nd Defendants filed a Memorandum of Appearance dated 3/11/2003. They later filed an Application to file their Statement of Defence out of time but failed to move it. In effect, they did not enter a defence at the lower Court. The 4th and 5th Defendants – Mikado Nigeria Ltd. & “Unknown Persons”, never made any representations. The 3rd Appellant, who was the 3rd Defendant, filed a Statement of Defence that was later amended on 8/2/2006. On 23/3/2005, the Lower Court advised the Respondent “to apply for a date for Pre-Trial Conference”, which he did.
After a number of adjournments devoted to the Pre-Trial Conference, the trial itself commenced on 17/2/2006; the Respondent testified as PW1 and tendered 12 documents [Exhibits A to G], He later called an Estate Surveyor, Raymond Chidun, who testified as PW2, The 3rd Appellant also called one of its Estate Surveyors, Kevin Ofili, who testified as DW1, and tendered 5 Exhibits. After the adoption of Final Written Addresses, the learned trial Judge, A. O. Taiwo, J., who presided over the Pre-Trial Conference, and heard the matter, delivered his Judgment on 13/10/2006, wherein he concluded as follows –
“- -The Claimant has proved his case and is entitled to some compensation for the holding over by the Defendants of his property at No. 206A & B Muri Okunolo Street, Victoria Island, Lagos. Judgment is hereby entered as follows – – -“.
Dissatisfied with the above decision, the Appellants appealed to this Court with a Notice of Appeal containing five Grounds of Appeal, and they distilled the following issues therefrom in their Brief prepared by Adeyinka Aderemi, Esq.-
1. Whether the handing over of keys of the property was a sine quo non for delivery of possession as held by the Lower Court considering the relationship between the parties and the entire facts of this case.
2. Whether by the totality of the pleadings and the evidence led during the trial the Appellants are liable to the Respondent for mense profit on ‘B Wing’ from April 2002 to September 2003 considering the fact that the Respondent has undisturbed possession and has regularized the tenancy of the 4th Defendant.
3. Whether the award of special and general damages against the Appellants on the same issue is proper in this suit and in law.
4. Whether the Lower Court has the jurisdiction to sit both as the Pre-Trial Conference Judge and the trial Judge in the same matter contrary to the provisions of the High court of Lagos State Civil Procedure Rules.
The Respondent, however, formulated the following three issues from the said Grounds of Appeal in his Brief of Argument prepared by Ajibola Dalley, Esq.-
1. Whether the trial judge was right to have held that the 3rd Defendant was in possession, either through its Chairman or his relative, of one of the Wings of the property known as No. 206A Muri Okunola Street, Victoria Island, Lagos, from April 2002 till date of Judgment.
2. Whether the trial Judge was right to have held on the preponderance of evidence that the 1st – 4th Defendants were liable to pay damages of N2,000,000.00 per annum in respect of the Wing of the property known as No.206A Muri Okunola Street, Victoria Island, Lagos, as occupied by the 4th Defendant,
3. Whether the Appellants are entitled to raise afresh without obtaining the leave of the Honouroble Court the issues of the Pre-Trial Judge’s competence to preside over the trial of the suit.
Apparently, apart from the Appellants’ Issue 4 and the Respondent’s Issue 3, all the other issues touch on the evaluation of the evidence by the Lower Court. But before we go there, we must first consider the issue of whether the Lower Court had jurisdiction to sit as the Pre-Trial Conference Judge and trial Judge, After all, a Court without jurisdiction automatically lacks the competence to try the case in the first place, and “it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity” – see P.E. Ltd. & Anor V. Leventis Tech. Co. Ltd. (1992) NWLR (Pt.244) 675 SC.
The Appellants contend that the entire proceedings at the Lower Court was an incurable nullity as the learned trial Judge had no jurisdiction to sit both as the pre-trial Judge and the trial Judge. They submitted that by the Practice Direction issued by the Hon. Chief Judge of Lagos State for the 2004 Rules of Court, the pre-trial Judge upon the conclusion of the pre-trial conference issues a pre-trial report and returns the case file back to the Administrative Judge, who will then assign the case file to another judge for the trial proper, thus, the Judge, who sits over the matter during pre-trial is not empowered by the Rules of the Lower Court and practice to sit on the same suit as trial Judge. They further submitted as follows at pages 21 to 22 of their Brief of Argument –
“The learned Judge at the Lower Court commenced pre-trial conference on 6/6/2005 (see page 43 of the records) and that was the only day the pre-trial conference held. The next adjourned date 24th June 2005 fell on the nationwide strike of the judicial workers. Other adjournment fell on the Women Judges Conference hence the Court did not sit. The next date the Court was stampeded to give a trial date by the Claimant’ Counsel the Respondent herein and the suit was adjourned for trial without any pre-trial conference report and the subsequent transfer of the case file to another Judge by the Administrative Judge. By this the learned trial Judge sat over the matter both as the pre-trial conference Judge and the trial Judge. This irregularity – – goes to the root of the jurisdiction of the learned Lower Court Judge to entertain the entire trial proceedings as the Lower Court with due respect lacked the jurisdiction to sit over the same matter upon which he sat as pre-trial judge”.
The Respondent, however, argued that the above assertion of the Appellants was not the subject of address or consideration by them in their final address before the Trial Court neither was it canvassed by them at the trial Court and as such was not subject for the consideration of the trial Court in its Judgment and that where an issue is to be raised for the first time on appeal, the party intending to raise such fresh issue must first seek and obtain the leave of Court otherwise the issue must be discountenanced by the Court, citing Ukpong C. Commissioner of Finance (2006) 19 NWLR (Pt.1013) 187, Owie V. Ighiwi (2005) 5 All NWLR (Pt.917) 184, and Jov V. Dom (1999) 9 NWLR (PT.620) 538. We were urged to strike out the entirety of their arguments on the said issue.
I agree with the Respondent, which is why I am not going into details of the Appellants’ arguments on the issue set out on pages 20 to 25 of their Brief. Suffice it to say that their arguments/submissions on same are of no moment; they did not complain about it or make it an issue at the Lower Court so as to give the Lower Court opportunity to consider the issue and pronounce thereon. What’s more, they cannot raise that issue in this Court without leave of Court because an appeal is an extension of the matter thrashed at the trial Court, and any issue sought to be introduced outside those determined by that Court becomes a new issue, which can only be raised on appeal with leave of Court – see Afribank Nig. Ltd. V. Ubana (2011) LPELR-CA/C/174/2010, which dealt with the issue of pre-trial conference, and wherein this Court per Akeju, JCA, held –
“- – A decision in relation to a Court as defined in Section 318(1) of the Constitution is a determination of the Court, which includes judgment, decree, order, conviction, sentence or recommendation. Thus, the Court of Appeal does not entertain a point, which the Lower Court had no opportunity to consider and render its decision – – – Issues 1 and 2 have no basis or foundation in this appeal being issues that were never placed before the Lower Court far adjudication and determination. A ground of appeal to be valid, appeal must have its root in the judgment appealed against while a competent issue must be distilled from a valid ground of appeal. A fortiori, an issue for determination must itself be firmly rooted in the judgment of the Lower Court – – An appellate Court cannot consider an issue or issues not decided by the Lower Court except where the leave of Court had first been sought and obtained. The treatment of such issue without leave of Court is a nullity and a futile exercise”.
Obviously, we cannot look into the question of whether the learned trial Judge could sit both as the pre-trial Judge and the trial Judge since it is a fresh issue and the Appellants did not obtain the leave of Court to raise it in this appeal. Thus, the said issue and the arguments thereon will be discountenanced by us.
We now come to the merit or otherwise of the appeal proper and their first bone of contention is that the Lower Court was wrong to hold as follows –
“The Claimant wrote to the two occupiers – – Thereafter there is no evidence to indicate when the 3rd Defendant actually handed over possession of the wing occupied by him. I am in agreement with – – learned counsel for the Claimant that until the keys are handed over the 3rd Defendant is still effectively in possession”.
They argued that the relationship between the Respondent and 1st Appellant was that of landowner and developer; that there was no exchange of keys between them at the commencement of their relationship; and that no term is stated in the Power of Attorney [Exhibit B] on how the delivery of possession of the property was to be given at the expiration of the donated years. They referred to the following paragraphs of the Amended Statement of Defence –
12. Subsequently, the 3rd Defendant’s Chairman moved his relative out of the ‘A Wing’ side of the property at the expiration of the sub lease term in March 2002. The 3rd Defendant aver that the ‘A Wing’ was vacant at the expiration of the term but the Claimant refused to take over vacant possession. The Defendants aver that they are not liable in damages to the Claimant particularly on the ‘A Wing’ either in mesne profits or general damages.
13. The Defendants further aver that in the unlikely event that there is any liability in damages, the Claimant refused to mitigate his damages by his refusal to take over the vacant possession timeously at the expiration of the term until when he later elected to do so. The Defendant aver that the Claimant has since taken possession of the ‘A Wing’ and had let it out to tenant while this suit was still pending.
14. The 4th Defendant, who remained in possession of the ‘B Wing’ in spite of the Quit Notice issued to it by the 3rd Defendant, has regularized his occupation of the apartment with the Claimant and a fresh tenancy has since commenced between the Claimant and 4th Defendant upon payment of the full consideration and arrears of rent. The Claimant is hereby put on notice to produce all documents and receipt by which he regularized the 4th Defendant’s tenancy.
And submitted that the Respondent did not rebut this part of their pleadings; that there was no reply to same and no contrary position was placed before the Lower Court that where an averment in a pleading is not challenged or where a mere sweeping denial was made by the other party, the facts pleaded remains unchallenged and admitted by the party in default, citing Olale V. Ekwelendu (1989) 4 NWLR (Pt.115) 325, Ajomale V. Yaduat (No.2) (1991) 5 NWLR (Pt.191) 266 and that their averment is buttressed by the admission of his Counsel during the only session of pre-trial conference on 6/6/2005 thus –
“We have since concluded negotiations with the 4th Defendant who had sub-let from Paul Osaji & Co. The 5th Defendant have vacated the premises. Therefore the issue of possession is no longer necessary. Between the period of 15th April 2002 and the vacation and renegotiation period which was earlier this year”
The Appellant then posed the following question at page 9 of their brief –
“- -In the face of the weighty admission and the above background coupled with the contradictory evidence given by the Respondent himself as PW1 under cross examination – – was the learned trial Judge right when he held that: ‘until the keys are handed over the 3rd Defendant (Appellants) are still effectively in possession’?
And further submitted as follows at pages 9 to 10 of the same brief that –
“The Lower Court relied heavily on the Respondent counsel’s argument premised on the decision of Adebajo V. Tennesse Nig. Inc. (1974) NSCC 88. – – The fact of this case is not on all fours with the facts of Adebajo’s case. In the above decision, the relationship was that of landlord and tenant. There was an exchange of the entrance key into the apartment at the commencement of the tenancy between the parties. At the expiration of the lease, the tenant held back the keys for about 10 months before he eventually handed the keys over to the landlord. This was the reason for the decision of the Court that until the entrance keys were returned the tenant is deemed to have retained possession of the apartment and is liable for use and occupation until the keys ore finally surrendered. The fact in the above decision is different from this present case; firstly, there was no exchange of keys between parties at the commencement of the relationship and till date no key has been delivered. Secondly, the Appellants by their pleadings asserted affirmatively and testified on oath that the 3rd Appellant vacated the A wing at the expiration of the term of the sub-lease. Thirdly, the counsel to the Respondent admitted to the fact that his client was already in possession of the entire premises – the subject matter at the pre-trial conference session. Fourthly, the Respondent himself under cross-examination as PW1 amongst his contradictory evidence stated that the A wing is vacant while he has regularized the occupation of the 4th Defendant who is in possession of the B wing till date. The learned trial judge did not consider this combination of facts and thereby misconceived the point when he ruled that actual act of surrender of the keys is what determines vacation of possession. The error of the said decision can be further seen if viewed from the fact that there was nothing placed before the Lower Court by the Respondent as to any form of written agreement between the parties as to the type of building that must be built on the subject matter. The parties we submit did not envisage any exchange of keys or delivery of keys between parties at the time the contract-finance development was being executed and this should not be the basis or criteria for delivery of vacant possession. We urge the court to resolve this issue in favour of the Appellants”.
The Respondent referred to paragraphs 13 and 14 of his pleadings and argued that the 3rd Appellant was still in possession of the property as at 3/9/2003, which DW1 confirmed under cross-examination; and that even if it vacated the property before the due date such steps were never proven or documented in any manner or form, citing F.C.D.A. v. NAIBI (1990) All NLR 475.
He submitted that the 3rd Appellant never handed over possession of the property, in any form, to him; that by not handing over possession to him, it is deemed to have retained possession of the wing occupied by its Chairman or relative; and that possession cannot exist in vacuo and can only be by way of transfer from one party to another and it never transferred possession to him, citing Adebajo V. Tennessee Nig. Inc. (supra). He further argued as follows –
“If we were to pursue the assumption that the 3rd [Appellant] had vacated the property – – we would not be empowered under any law whatsoever to take possession of the property without the requisite order of Court. Therefore the 3rd Appellant’s stance that we are to break the law and take possession of a property before the determination of the suit is at best misconceived, See Military Governor of Lagos State V. Ojukwu & Anor (1986) 1 N.S.C.C. wherein the Supreme Court stated – – that possession can only be obtained upon the subsistence of a valid Order of Court. Therefore – -possession of the wing of property occupied by the Chairman of the 3rd Appellant or his relative could only be obtained after Judgment of the Lower Court”.
Obviously, the key to resolving this issue lies in the answer to the question of who had to prove what in deciding when the Appellants vacated the property. First of all, it is a basic principle of law that – “he who asserts must prove” – see Famfa Oil Ltd. V. AG Fed. (2003) 9-10 SC 31. But it is also settled law that the burden of proof is not static in civil cases; it does have a way of shifting – see Zubairu V. Mohammed (2009) LPELR -51.24(CA) where Oredola, JCA, said –
“By Section 137 (of the Evidence Act) the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give Judgment if no evidence is adduced on either side. – – the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party – – and so the burden changes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By Section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on until all the issues in the pleadings have been dealt with. Thus, as firmly established, the standard of proof in civil cases – – is on the balance of probabilities or preponderance of evidence. Hence, where evidence adduced is loaded or tilted to one side and there is nothing forthcoming on the imaginary scale from the other side, the evidence proffered from the former will satisfy the requirement of proof’.
In this case, we need a time line to resolve this issue. In his letter of 6/8/2001 [Exhibit E], the Respondent made it clear that once its interest expires, the 1st Appellant “will not be allowed to remain in occupation even for a day longer”. In Exhibit F dated 30/1/2002, his Solicitors reminded the 1st Appellant that their interest in the said property “terminates in March 2002” and they also notified it that “after all necessary renovation has been carried out by [it] our firm will have to examine the property before the keys are handed over to us”. They also wrote Exhibit F1 dated 1/3/2002 and Exhibit F2 dated 10/1/2003, reminding the 1st Appellant that its interest “‘terminates on 30th March 2002”, and that the keys to the property should be handed over to the said Law Firm. In Exhibit F3 dated 28/8/2003, the said firm used stronger words, as follows – –
“We wish to re-iterate that your interests in the above property terminated on the 30th of March 2002, and despite several reminders you have refused or neglected to return the keys to the said property along with relevant documents. TAKE NOTICE that if you do not return the keys along with all documents within seven days hereof we shall use the force of law to eject any or all the occupiers and recover all that is due from you. A word is enough for the wise”.
They later wrote Exhibit G dated 3/9/2003 to “The Occupiers (Two wings) [reproduced above], wherein the Occupiers were told that “since your lessors have no more right to lease out the above property to anyone except to hand over the keys, you are in law regarded as trespassers on the above property”.
The Appellants have their own letters. Exhibit L dated 5/2/2002 is from the 1st Appellant to the 3rd Appellant, and it is a reaction to Exhibit F; it reads –
“We enclose herewith photocopy of a self-explanatory letter dated 30/1/2002 in respect of the above mentioned property. The property, as you know, is the subject of an assignment to yourself of our interest. Please, therefore, make the necessary arrangement to vacate and deliver up possession as required by the owner – -“.
Exhibit M is a Quit Notice dated 7/8/2001 addressed to “Mr. Mike Ojeme” –
“We Messrs Paul Osaji & Co., the managing agent to your Landlord on his behalf do hereby give you o notice to quit and deliver possession of 5-bedroom Duplex with 2-room domestic servant quarters and appurtenances situate at Plot 206A Muri Okunola Street, Victoria Island, Lagos, which you hold of him as tenant thereof on the 8th of February 2001”.
On whose side does the scale preponderate? The Lower Court held as follows –
“The standard of proof in civil cases is on the preponderance of evidence or the balance of probabilities. In determining either preponderance of evidence or the balance of probabilities in evidence, the Court is involving in some weighing by resorting to the imaginary scale of justice in its evaluation exercise. Furthermore, by virtue of S.137 of the Evidence Act, the burden is on the Plaintiff to show that he is entitled to the relief sought. Applying the above principles of law to the instant case, I find that the scale tilts move in favour of the Claimant for the following reasons –
1. The Claimant has been able to establish by Exhibits F, F1, F2, F3 and G that the Defendants were still in possession of the property known as No 206A and B Muri Okunola Street, Victoria Island, Lagos as at 3rd September, 2003.
2. The Defendants could not say conclusively how they gave up possession as the keys of the premises were never handed over to the Claimant.
3. The Defendants are still in constructive possession of Wing B of the premises. I am satisfied that Plaintiff is entitled to the possession of Wing B of the premises and is entitled to mesne profit in respect of the said wing from April 2002 to date”.
Now, the question before us is – when did the Appellants vacate the premises? They provided evidence showing that the 1st Appellant asked the 3rd Appellant “to make the necessary arrangements to vacate and deliver up possession”, however, that letter is dated 5/2/2002. There is also a Quit Notice from the 3rd Appellant to a tenant, but then again, the Quit Notice is dated 7/8/2001. When did they actually vacate and hand over possession to the Respondent?
The Respondent kept asking for the keys to the property; in Exhibits F, F1, F2 and F3, his Solicitors insisted the keys should be handed over to them. There is no evidence that the Appellants responded to the letters or complied, but they argued that the Lower Court relied heavily on [his] counsel’ argument premised on the decision of Adebajo V. Tennessee Nig,. Ltd., which is not on all fours with this case since “there was no exchange of keys between parties at the commencement of the relationship and till date no key has been delivered”. But they did say at page 7-8 of their brief that “it was not in contention at the Lower Court that the state of the subject matter when it was donated to the Respondent was that of a bare piece of land without any building or structure on the land”. How could there be an exchange of keys between parties then?
The Respondent and the 1st Appellant could never have exchanged keys; their relationship was that of landowner and developer, and the 1st Appellant, by a Deed of Assignment dated 1/7/1996 [Exhibit H], assigned all its rights, interest and title in and over the building it erected on the land to the use of the 3rd Appellant for “the unexpired residue of the term stated in the Power of Attorney [Exhibit B]”. As the Appellants put it at page 5 of their brief – the 3rd Appellant thereafter took vacant possession of the two wings and put the 4th Defendant at the Lower Court in the ‘B Wing’ for value via Exhibit J and K while the Chairman of the 3rd Appellant occupied the ‘A Wing’ for his family use”.
The issue of whether keys were exchanged has no bearing on this case, and the Appellants missed the point altogether. The Respondent provided evidence that showed that the 3rd Appellant was in possession of the property; he who asserts must prove, and the Appellants categorically said in their brief –
The Appellants by their pleadings asserted affirmatively and testified on oath that the 3rd Appellant vacated the A wing at the expiration of the term of the sub-lease.
It is the Appellants that asserted that the 3rd Appellant vacated the “A Wing” at “the expiration of the sub lease term in March 2002”, and they must prove it. The burden shifted to them to prove their assertion but there appears to be nothing on their side of the scale to outweigh that on the Respondent’s side, and the law is that where the evidence is tilted to one side and there is nothing on the imaginary scale from the other side, evidence proffered from that side satisfy the requirement of proof – see Zubairu V. Mohammed (supra).
The Appellants did not hand over any keys to the Respondent, and with no evidence to substantiate their assertion that the 3rd Appellant vacated the ‘A Wing’ when it said that it did, the Lower Court was right to conclude that –
“- – There is no evidence to indicate when the 3rd Defendant actually handed over possession of the wing occupied by him. I am in agreement with the submission of learned counsel for the Claimant that until the keys are handed over the 3rd Defendant is still effectively in possession”.
The case of the 4th Defendant in the other Wing is a little bit more complicated because it regularized its tenancy with the Respondent. The Lower Court held-
“As regards the A wing presently being occupied by a tenant who has entered into fresh agreement with the claimant, it is difficult from the available evidence adduced by the Claimant to determine when exactly he commenced the fresh tenancy with the 4th Defendant, but it is clear that it was the 3rd Defendant who subleased to the 4th Defendant”. – – – – As regards wing A (which the Claimant says he has now taken possession of) it is clear from Exhibit G that the Claimant had not entered into fresh tenancies agreement with the occupier as of 3rd September 2003 as the letter was addressed to the occupiers of the two wings. Therefore, it is my humble view that the Claimant is entitled to mesne profit in respect of this wing from April 2002 to September 2003 only as the Claimant has failed to establish when he entered into fresh agreement with the tenant”.
The Appellants referred us to Ige V. Akoju (1994) 4 NWLR (Pt.340) 535 and Eso V. Adeyemi (1994) 4 NWLR (Pt.340) 558, and submitted that the lower Court’s findings on when the Respondent regularized and entered into fresh tenancy agreement with the 4th Defendant is outside and a complete deviation from his pleadings and ultra vires the lower Court’s power, citing Adetoun Oladeji (Nig.) Ltd. v. N. B. Plc. (2007) 5 NWLR (Pt.1027) 415, where Niki Tobi, JSC, held that –
“It is not for the Court to make a case of its own or to formulate its own from the evidence before it and thereafter proceed to give a decision based upon its own postulation quite separate from the case the parties made before it”.
Furthermore, that what the Lower Court deduced from Exhibit G were mere speculation without credible pleading or evidence to corroborate it; that they put the Respondent on notice to produce evidence of the said regularization that would have provided credible evidence upon which the Court could have based its findings, but he refused to and it still found in his favour speculating heavily without any credible evidence supported with pleadings, citing Awaye Motors Co. Ltd. v. Adewunmi (1993) 5 NWLR (Pt.292) 236, Ilori V. Tella (2006) 18 NWLR (Pt.1011) 267; and further citing Udeagu v. Benue Cement Co. Pc. (2006) 2 NWLR (Pt.965) 600, we were urged to invoke the provisions section 149 (d) Evidence Act on the presumption of withholding evidence against him.
The Appellants further submitted as follows at page 14 of their brief –
“The Respondent by the Judgment of the Lower Court took advantage of the fact that [they] put the 4th Defendant at the Lower Court into possession and remained in possession of the B Wing after the expiration of the term granted in Exhibit B but subsequently in spite of the notice to quit issued by [them]. The Respondent regularized the tendency of the 4th Defendant during the pendency of the suit and on the other hand withheld the facts and documentary evidence of the said regularization which ought to have placed the facts before the Court as to what the 4th Defendant paid and what is outstanding. – – For there to be regularization of the 4th Defendant’s tenancy (a purported trespasser at the commencement of the suit at the lower Court, but who is now the Respondent’s lawful tenant till date), there must have been accord and satisfaction. No reasonable Claimant as owner of a property which occupation is lis pendite will settle with the sitting tenant who he claimed is a trespasser for some years and leave some years unsettled and outstanding. The Lower Court ought to have held the Respondent to his election”.
They also complained that the Lower Court did not consider its argument that it is against the rules of logic and common sense in real estate business for the Respondent to regularize the 4th Defendant’s tenancy whom he claimed was a trespasser without demanding and collecting mesne profits; and that –
“[He] wants this Court to hold that he left some years hanging or in vacuum without collecting money either as rent or for use and occupation then jumped to regularize the latter years. This at best is economized truth calculated at deceiving this Court. We ask that this Court should not be swayed by this cheap deception”.
They further argued that their defence of estoppel by conduct in relation to the wing occupied by the 4th Defendant was also swept under in its Judgment, wherein without any reason given by the lower court, it held as follows –
“Furthermore, the defence submit that the Claimant’s claim for mesne profit is caught by the operation of estoppel by conduct as relates to the B wing of the property. Learned counsel submitted that the 3rd Defendant after the issuance of Exhibit L1 was unable to take appropriate legal action to eject the 4th Defendant because the 4th Defendant claimed to have regularized its occupation with the Claimant. lt is my respective view that the issue of mitigation of damages and estoppel by conduct will not avail the defence in this case”.
They contend that in the face of PW1’s admission and their notice to produce, the defence of estoppel ought to avail them; and that the Lower Court is not permitted in law to go fishing for facts, which is within the Respondent’s exclusive possession, citing Ude V. Nwara (1993) 2 NWLR (Pt.278) 662 SC.
They urged this court to resolve this issue in their favours because –
‘They were made to believe that the tenancy of the 4th Defendant put in possession by them has been regularized by the Respondent with the appropriate atonement, which made the Respondent to change the position and status of the 4th Defendant from trespasser to lawful tenant”, and “that they were unable to take any further steps to effect the vacant possession of the said duplex because of the said regularization”
The Respondent conceded that he entered negotiations with the 4th Defendant at the Lower Court during the course of the proceedings, and that while being cross examined, he confirmed that sometime in 2004 he entered a fresh lease agreement with the said tenant effective from April 2004. But he insists that he is entitled to Damages for the period April 2002 to April 2004, and also argued that the Appellants did not provide credible evidence to prove their case that he has been fully paid the arrears of rent effectively from 2002.
To resolve this issue, we must divorce the Respondent’s case as it stood when he filed the suit from what transpired during the pendency of the suit. His Writ of Summons and Statement of Claim are both dated 21/10/2003 and the 3rd Appellants’ initial Statement of Defence is dated 15/3/2005. It is in its Amended Statement of Defence dated 8/2/2006 that it averred as follows –
“The 4th Defendant who remained in possession of the “B Wing” in spite of the Quit Notice issued to it by the 3rd Defendant, has regularized his occupation of the apartment with the Claimant and a fresh tenancy has since commenced between the Claimant and the 4th Defendant upon payment of the full consideration and arrears of rent. The Claimant is hereby put on notice to produce all documents and receipt by which he regularized the 4h Defendant’s tenancy”.
In the case of Gowon V. Ike-Okongwu (2003) 5 NWLR (Pt.515) 38 SC, which may not be on all fours with the situation in this case, the Supreme Court held-
“Just as the Plaintiff cannot he allowed to bring into his case an entirely fresh cause of action, which arose after the action had been started, a Defendant will not be allowed to raise by way at an amendment to the Statement of defences a counterclaim in respect of a cause of action that arose subsequent to the issue of the Writ – I think it is good sense. To bring in such a fresh cause of action, does not, viewed from any angle, constitute an amendment. It means what it is, starting a new cause of action, and one which did not accrue, and therefore could not have been sued upon, at the time the action was brought”.
Applying the same analogy to this case, the Appellants cannot be allowed to use something that arose after the Respondent had filed his suit against them as a defence to escape liability for what was on ground when the suit was filed.All the evidence point to the fact that at the time the Respondent filed the tenant his suit, the 3rd Appellant put in possession had not vacated the property, and what the Respondent did with the tenant thereafter is of no concern to us because an appeal is an invitation to this court to review the decision of the Lower Court on the case brought before it, and not what transpired thereafter.
The Lower Court did not need to look into when the Respondent entered into fresh tenancy agreement with the 4th Defendant, and even if it could have, it placed the burden of proof on the wrong party; it was the Appellants that brought up the issue, and the onus lay on them to provide the necessary proof, or basket of facts from which the lower court could fish from; as they put it. They were suggesting that the Respondent must have collected mense profits from the 4th Defendant, which covers the time he is claiming same from them, and they had to prove it; it is not for the Respondent to prove that he did not.
They have not provided any evidence to show that the Respondent had collected mense profit from the 4th Defendant that covers the time in question, and I know that this court would have castigated the Lower Court for allowing itself to act on nothing but speculation or conjecture if it had succumbed to their argument that “no reasonable Claimant as owner of a property, which occupation is lis pendite will settle with the sitting tenant who he claimed is a trespasser for some years and leave some years unsettled and outstanding”.
The Respondent’s claim was for possession, and at the time in question, the 3rd Appellant was in possession of both wings, and that is all there is to it. The Lower Court is right, and this issue is resolved in favour of the Respondent.
After finding that the Appellants were in possession, the Lower Court held that the Respondent is entitled to compensation and ordered as follows –
1. The 1st – 3rd Defendants are ordered to pay the sum of N2,000,000.00 per annum from April 2002 until possession is given up for use and occupation of the said premises known as wing B of No. 206A Muri Okunolo Street Victoria Island Lagos,
2. The 1st – 4th Defendants ore ordered to pay the sum of N2,000,000.00 for wing A No.206A Muri Okunola Street Victoria Island Logos, for use and occupation from April, 2002 to September 2003 only.
3. General damages of N20, 000.00 only is awarded to the Claimant.
4. Since the Claimant led no evidence as to Solicitor’s fees, no award is made for Solicitors fees in this case.
5. An Order of injunction is hereby granted restraining the 1st – 3rd Defendants from further trespassing on the property No.205A Muri Okunola Street Victoria Island – –
The Appellants’ quarrel with the awards made by the Lower Court are two-fold – that it awarded more than the Respondent asked for as mense profit, and that the order for mense profit granted together with that of general damages amounts to double compensation. Their third grouse that the Lower Court held that the defence of mitigation of damages will not avail them without giving reasons is hinged on the said tenancy that was regularized by the Respondent during the pendency of the suit, which as I said, is of no moment in this case.
Mense profit is the rent and profit that a trespasser has or might have received or made during his occupation of the premises, and which he must pay over to the true owner as compensation for the tort he has committed – see Bolori V. Offorke (2010) LPELR – 3886 (CA) and Osawaru V. Ezeiruka (1978) NSCC (Vol. 11) 390, where the Supreme Court per Aniagolu, JSC, explained –
“In a claim for mense profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages, which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the Defendant ceased to hold the premises as a tenant and became a trespasser. – – The word “mense” was derived from the Latin word “Medius” meaning middle, intervening or intermediate – – – And so a landlord in claiming for “mense profit” is claiming for the profits intermediate from the date the tenant ought to have given up possession. It is, therefore, damages for trespass the measure of which is the amount the tenant had been paying rent for the corresponding period when he was lawfully in occupation as a tenant”.
The Respondent herein claimed “mense profits at the rote of N3,000,000.00 per annum being estimated rents due from 15th of April 2002 till possession is delivered up”, and the Lower Court awarded him the sum of N2,000,000.00 per annum from April 2002 until possession is given up” in respect of wing B, and “the sum of N2,000,000.00 for wing A – – from April, 2002 to September 2003”.
The Appellants submitted that his claim for mense profits is a specie of special damages, which must be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of special damages being claimed against him to prepare his defence, citing Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt.943) 634; that mense profit is not presumed in law but are exceptional in character and connote specific item of loss which the plaintiff alleges is the economic rent for the use and occupation of his property; that the Respondent knew fully well that there are two wings to the said property, and made his claim for rent in the total sum of N3 million per annum as rent; that the inference of this claim on the face of the originating processes is that the total sum claimed per annum is N3 million for the entire property; that it is proper and trite in law for a Court of law to award a lower sum of money than that claimed by the Plaintiff, but a Court of law is not Father Christmas, and so, cannot grant over and above that which was claimed by the parties; that the combined effect of the lower Court’s order for the period between April 2002 and 2003 will show that the total sum of N4,000,000.00 was awarded for that year, which is N1 million over and above the Respondent’s claim; and that the Lower Court lacks the power to grant over and above the claim of the party.
We were urged to set aside the said Order because the award in respect thereof is over and above the amount as endorsed in the Statement of Claim, citing N.N.B Plc. V. Denclag Ltd. (2005) 4 NWLR (Pt.916) 607.
The Respondent argued, citing Marine and General Assurance Co. Ltd. v. Antonie Rossek & Anor (1986) All NLR 478 and Osawaru V. Ezeiruk (supra) that in evaluating the quantum of mense profits the Courts are clear an “value of rent per annum”, as the requisite threshold; and that the quantum of damages from April 2002 till Judgment is delivered would be the sums as assessed by the Lower Court based on the uncontroverted testimony of PW2.
Surely, this issue has to be resolved in favour of the Appellants because the law on the subject is iron-clad; and it is that “a Court may award less and not more than what the parties have claimed” – see Abenga v. Benue State Judicial Service Commission (2005) All FWLR (Pt.321) 1327, African Petroleum v. Aborisade & Anor (2013) LPELR-20362(CA), where Mbaba, JCA, held that -“It is the law- – that a Court is barred from making an award or granting a relief, outside what was claimed in the pleadings and proved by evidence at trial. This is because, being regulated by laws and principles relating to pleadings, and due to the need to be disciplined, predictable and act on evidence before it, the Court cannot afford to stray to play the comic role of a ‘father Christmas’, who doles out gifts, unsolicited, to whoever he delights to please”.
In this case, it is safe to say that the Respondent must have known what he was asking for when he claimed N3,000,000.00 as mense profit for his property, and the Lower Court exceeded that sum when it awarded N2,000,000.00 for each wing of the property, and thereby awarded him N4, 000,000.00 for both, which is N1,000,000.00 more than he claimed from the Court as mense profit. In the circumstances, the total sum awarded will not be allowed to stand.
The Appellants also complained about its award of special and general damages together. They submitted that though a Court can award both heads but Courts are always on the side of caution to avoid double compensation because where a Plaintiff recovers in full under special damages for an injury, he will not be entitled to recover under general damages for the same injury, citing Nicon Hotels v. N.D.C. Ltd. (2007) 13 NWLR (Pt.1051) 237.
They argued that the purpose for the damages is to put the Claimant in the position he would have been but for the happening of the Defendant’s act; that the position the Respondent would have been is the rent due to him; that awarding special and general damages amounts double compensation as he has been adequately compensated with the rent due for the period of their purported trespass, citing Gamboruma v. Borno (1997) 3 NWLR (Pt.495) 530.
The Respondent had nothing to say on the subject, and I will quickly say that I agree with the Appellants that the award of general damages in addition to the award of rent due to the Respondent during the period as mense profit offends the rule against “double compensation”, which prevents a party from claiming under two heads using different names – see Armels Transport V. Transco (Nig.) Ltd. (1974) 11- SC 237 and Tsokwa Motors (Nig.) Ltd. v. UBA Plc. (2008) 2 NWLR (Pt.1071) 347 SC, wherein the Supreme Court reiterated that –
“It has been repeatedly held by this Court that where a victim of an injury has been fully compensated under one head of damages, it is improper to award him damages in respect of the same injury under another head – – ”
The award of N20,000 as general damages to Respondent will not stand also.
At the end of day, the appeal succeeds in part. The decision of the Lower Court regarding possession is affirmed. The award of N2,000,000 each for use and occupation of both wings of the property is reduced to N1,500,000 each, and the award of N20,000.00 general damages to the Respondent is set aside. There will be no order as to costs.
RITA NOSAKHARE PEMU, J.C.A.: I have read in advance, the lead Judgment just delivered by my brother AMINA ADAMU AUGIE J.C.A. She has dealt eruditely with the issues and I adopt her opinion and conclusion as mine.
I shall however add a few words. A party may claim Special and General Damages in the same suit. Special Damages decidedly must be specifically pleaded and established. General Damages are what the Court, in the exercise of its discretion, having perused the circumstances of the case, can grant. But the Courts are not allowed to grant double compensation to a party as EQUITY LEANS AGAINST DOUBLE PORTIONS.
Decidedly, where a Plaintiff recovers in full under Special damages for an injury, he cannot recover general damages for the same injury. NICON HOTELS V. N.D.C. LTD (2007) 13 NWLR (Pt.1051) 237.
I allow the appeal in part, and the award of damages granted the Respondent is hereby set aside, while the Judgment of A. O. Taiwo J, delivered on the 13th of October 2006, whereby he gave possession to the Claimant is hereby affirmed.
There shall be no order as to costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read a copy of the lead judgment just delivered by my learned brother Amina Adamu Augie, JCA.
As usual she has thoroughly dealt with the issues in contention and effectively resolved them in line with applicable principles of law.
I am in complete agreement with the views expressed and the reasons given for the conclusions on the issues. I need however emphasize on the well settled law that a court must not grant to a party a relief which he has not sought and may not in fact desire. See EKPEYONG vs. NYONG (1975) 2 SC 71 and MAKANJUOLA vs. BALOGUN (1989) 3 NWLR (Pt.108) 192 and BHOJSON PLC VS. DANIEL KAIO (2006)5 NWLR (Pt.973) 330. In NEPA vs. AUWAL (2011) 5 NWLR (Pt.1241) 571 at 594 this court held per Okoro JCA, (as he then was) that
“A court of law has no jurisdiction to grant a relief not asked for by the Plaintiff. The court is not a Father Christmas and does not grant what a party does not ask for. Therefore, a party who desire a court to grant him a relief must ask for it. Where a party fails to ask for a relief from the court, no matter how sympathetic the situation may be, no relief shall be granted as sympathy has no place in the determination of disputes in the court.”
In the instant case, the Respondent’s claim in the Lower Court was for “mesne profit at the rate of N3 Million per annum being estimated rents due for 15/4/2002 till possession is delivered up but the Lower Court awarded him N4 Million at N2 Million for each wing of the property until possession is given up. This is clearly more than the Respondent’s claim and should not be allowed to stand.
For this and the fuller reasons detailed in the lead judgment. I too allow this appeal in part.
I abide by the consequential orders made in the lead judgment including that of costs.
Appearances
Adeyinka Aderemi, Esq. with Miss Yejide AkeredoluFor Appellant
AND
F. A. Dalley, Esq., with Mrs. O. A. OludeFor Respondent
