ABDULLAHI UMAR BOLORI V. EMEKA OFFORKE
(2010)LCN/3834(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 2nd day of June, 2010
CA/J/143M/2005
RATIO
WORDS AND PHRASES: MEANING OF MESNE PROFITS
Mesne profits are the rents and profits which a trespasser has, or might have received or made during his occupation of the premises, and which he must, therefore, pay over to the true owner as compensation for the tort which he has committed. A claim for mesne -profits can only be made when the tenancy of the tenant has been duly determined and he becomes a trespasser. Odutola Vs. Papersack (Nig) Ltd (2006) 18 NWLR Pt. 1012 Pa 470. African Petroleum Vs. Owodunni (supra) Metal Construction (WA) Vs. Aboderin (1998) 8 NWLR Pt. 563 Pg 568. Ibile Holdings Ltd Vs. PDSS (2002) 16 NWLR Pt 792 Pg 117. PER UZO NDUKWE-ANYANWU, J.C.A.
LANDLORD AND TENANT: DISTINCTION BETWEEN RENT AND MESNE PROFIT
Rent is different from mesne profit. Rent is liquidated, mesne profits are not. Rent is operative during the subsistence of the tenancy whilst mesne profits starts to run at the expiration of the tenancy. It therefore means that an action for mesne profit does not lie unless either the landlord has recovered possession or the tenant’s interest in the land has come to an end or his claim is joined with the claim for possession. Agbamu Vs. Ofili (2004) 5 NWLR Pt. 867 Pg 540. It should be noted also that if a tenant is still in possession and the award of mesne profit is upheld, the mesne profit will be calculated up to the date he gives up possession. Agbamu Vs. Ofili (supra). PER UZO NDUKWE-ANYANWU, J.C.A.
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
UZO NDUKWE – ANYANWU Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
ABDULLAHI UMAR BOLORI Appellant(s)
AND
EMEKA OFFORKE Respondent(s)
UZO NDUKWE-ANYANWU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of Borno State High Court of Justice sitting in its appellate jurisdiction presided over by Justice U.B. Bwala and C.A. Mamza delivered on 30th September, 2004 wherein the Court reviewed the mesne profit awarded to the Appellant by the trial Court. It is against the review that the Appellant appealed to this Court.
I will adopt the statement of fact as captured by the Appellant.
(1) The Appellant rented out his plot of land to the Respondent for two years only at the rent of N50,000.00 per annum. (See Exhibit “A” and lines 5 to 22 page 5 of the record of proceedings.)
(2) At the expiry of the tenancy the Respondent held over the land for three years and denied the Appellant possession.
(3) During the three years the Respondent rented out the premises to a Company Impresit Bakolori Ltd at the rent of N300, 000.00 per annum.
(4) As a result of the wrongful held over of the land by the Respondent, the Appellant went to Borno State Rent Tribunal for recovery of possession and mesne profit for the three years, the Respondent wrongfully held over the land.
(5) Before the Rent Tribunal, the Appellant adduced evidence as to value of the land for three years the Respondent wrongfully held over at N300,000.00 per annum (see page 5-6 lines 24 – 100 of the record of the proceedings).
(6) The trial Court ordered possession to the Appellant with mesne profit and cost and the judgment was executed.
(7) The Respondent dissatisfied with judgment of the trial Court and appealed to High Court in its appellate jurisdiction.
(8) That Court below partially granted the appeal by reviewing the mesne profit awarded the Appellant to N50, 000.00 per annum for the three years.
(9) Dissatisfied with the decision of the Court below, the Appellant appealed to this Court.
The Appellant’s brief was settled by H.Y. Mshelia and filed on 15th December, 2006. In it he formulated one issue for determination viz:
“Whether in view of the Law and evidence adduced in this case the High Court was not wrong in reviewing the mesne profit the Appellant is entitled to N50,000.00 per annum.”
Appellant’s counsel submitted that the only issue in this appeal is the variation of the quantum of the mesne profit by the Court below. Counsel argued that there was evidence before the Court as to the value of the property which is more than N50,000.00 per annum as per the evidence of Prosecution witness 1.
“He subletted the premises to Impresit the premises without my consent at N300,000.00 per annum. There is a payment voucher, which he signed from Impresit. I can identify it by the heading of Impresit and the Defendant’s name on it.
Bello: I apply to tender the photocopy, as the Defendant could not produce the original.
Agbese: No objection.
Tribunal: Payment voucher No. 13149 dated 14th January 1999 issued by Impresit is admitted in evidence and marked exhibit B3. Payment Voucher Impresit Limited dated 10th December 1998 is Exhibit B4. Payment voucher dated 16th December 1998 No. 489 Exhibit B2.”
During cross examination the Prosecution witness 1 was not challenged as to the rent, the Defendant/Appellant collected from Impresit. Counsel submitted that in Law where a piece of evidence is not challenged in cross examination it stands uncontroverted and unchallenged and the Court can safely rely on it. Amayo Vs. Erinmwingboro (2006) 5 SCNJ Pq 1. Martchem Industries Nig. Ltd Vs. M.F. Kant West Africa Ltd (2005) 5 SCNJ Pg 235.
The counsel submitted that the court below was wrong when it held that the only evidence before the court on mesne profit is the rent agreed upon by the parties. African Petroleum Vs. Owodunni (1991) 11 SC where the Supreme Court held that –
“It is inequitable to allow a person benefit from his illegality. This means in effect that the Respondent having subletted the property at a rent of N300, 000.00 per annum during the period he illegally held over the property cannot be allowed to benefit from money illegally obtained.”
Counsel urged the Court to set aside, the variation made by the Court below from N900,000.00 by the trial Court to N150,000,00. Bunqe Vs. Rivers State (2006) 6 SCNJ Pg 48. Martchem Industries Nig. Ltd Vs. M.F.Kent West Africa Ltd (2005) 5 SCNJ Pg 235.
In reply learned counsel to the Respondent adopted the sole issue in this appeal in his Respondent’s brief filed on 13th February, 2007.
Counsel submitted that the Appellant is not entitled to mesne profits. Even if it can it should not be N995,000.00 as there is a maximum rent a landlord can demand and that which the Rent Tribunal can award.
Section 7(1) of the Rent Restriction Law CAP 122 Laws of Borno State 1994 provided:
“Subject to the provisions of this Law, it shall be unlawful for any landlord to:
(a) Receive or recover the increased rent of any premises to which the law applies; or
(b) Increase the rent- of any premises to which the law applies without an order of Court.”
Counsel argues that the purported mesne profit of N995,000.00 for 3 years is over the maximum rent fixed by government and as such cannot be awarded.
This amount of N995,000.00 was not awarded by the trial Court but cooked up by the Deputy Sheriff. See the case of Saleh Manouno (2006) ALL FWLR Pt. 332 Pg 1411 where the Supreme Court condemned the fraudulent manipulations of judicial process by the Deputy Sherriff of Courts.
Counsel urged the court to hold that the Lower court was right in awarding N50,000.00 a year as mesne profits.
Mesne profits are the rents and profits which a trespasser has, or might have received or made during his occupation of the premises, and which he must, therefore, pay over to the true owner as compensation for the tort which he has committed. A claim for mesne -profits can only be made when the tenancy of the tenant has been duly determined and he becomes a trespasser. Odutola Vs. Papersack (Nig) Ltd (2006) 18 NWLR Pt. 1012 Pa 470. African Petroleum Vs. Owodunni (supra) Metal Construction (WA) Vs. Aboderin (1998) 8 NWLR Pt. 563 Pg 568. Ibile Holdings Ltd Vs. PDSS (2002) 16 NWLR Pt 792 Pg 117.
Rent is different from mesne profit. Rent is liquidated, mesne profits are not. Rent is operative during the subsistence of the tenancy whilst mesne profits starts to run at the expiration of the tenancy. It therefore means that an action for mesne profit does not lie unless either the landlord has recovered possession or the tenant’s interest in the land has come to an end or his claim is joined with the claim for possession. Agbamu Vs. Ofili (2004) 5 NWLR Pt. 867 Pg 540. It should be noted also that if a tenant is still in possession and the award of mesne profit is upheld, the mesne profit will be calculated up to the date he gives up possession. Agbamu Vs. Ofili (supra).
In the present case the tenancy was for a term certain i.e 2 years. The tenant paid N100,000.00 for those 2 years. He has not paid any rent since the expiration of the 2 years certain on 20th February, 1999. On this date the tenant Emeka Offorke became a trespasser to the land he once rented.
Mesne profit is another term for damages for trespass arising from the particular relationship of landlord and tenant. Mesne profits are therefore the profit accruing from the date the Defendant ceases to hold the premises as a tenant to the date he gives up possession. The lower Court misdirected itself when it awarded N50, 000.00 as mesne profit. It should be noted that a claim for mesne profit is not, the same as a claim for arrears of rent which is liquidated damages. It therefore has to be established by its claimant.
The Appellant/Landlord claimed for mesne profits which he calculated as N300,000.00 being rent, the Respondent – Emeka Offorke collected from Impresit as a subtenant. It was proved that the tenant subletted the land illegally and collected N300,000.00 as rent per annum. Payment voucher of Impresit and receipt given to Impresit by Emeka Offorke Exhibits B1 – B4 were tendered in evidence unchallenged. The tenant cannot collect N300,000.00 for premises that he is a trespasser and does not make good of it to the landlord/Appellant.
He who goes to equity must go with clean hands. The tenant illegally subletted the Appellant’s premises to Impresit at N300,000.00 and wants the court to award N50,000.00 to the Appellant – landlord.
As earlier said in this judgment mesne profit are “the rents and profit which a trespasser has, or might have received or made during his occupation of the premises, and which he must therefore pay over to the true owner as compensation for the tort which he has committed. See Odutola Vs. Papersack Nig. Ltd (supra) African Petroleum Vs. Owodunni (supra) Mental Construction (W.A) Vs. Aboderun (supra), Ibile Holdings Ltd Vs. PDSS (supra).
In the instant case the landlord is entitled to N300,000.00 a year the tenant illegally collected for 3 years which amounts to N900,000.00. Also the cost awarded to the Appellant in the trial Court.
In sum, the sole issue formulated by the Appellant and adopted by the Respondent is resolved in favour of the Appellant.
This appeal is meritorious and therefore succeeds. The judgment and the order of the trial Court is affirmed. The Appellant is entitled to the sum of N905,000.00 being mesne profit accruing for 3 years and cost awarded to the Appellant at the trial Court.
I make no order as to costs.
ZAINAB A. BULKACHUWA, J.C.A.: I have had the privilege of reading the draft of the judgment just delivered by my learned brother Ndukwe-Anyanwu J.C.A. I am in complete agreement with the reasoning and conclusion reached therein, and adopt same in allowing the appeal. I abide by the consequential orders including orders as to costs.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the privilege of reading in advance, the judgment of my Lord JUSTICE U. N. ANYANWU, just delivered. I agree that the appeal has merit and I also allow it. I abide by the orders made therein.
Appearances
H. Y. Mshelia, EsqFor Appellant
AND
M. E. Oru, Esq.For Respondent
