CHIEF HENRY OGUGUA v. ALHAJI L. A. JIMOH
(2018)LCN/12082(CA)
In The Court of Appeal of Nigeria
On Monday, the 22nd day of October, 2018
CA/L/555/2010
RATIO
INTERPRETATION: MEANING OF MESNE PROFIT.
“One of the differences between mesne profits and damages for use and occupation is the date of commencement. While mesne profits begin to run from the date of service of the process for determining the tenancy, damages for use and occupation start to run from the date of holding over the property. It is therefore the duty of the Court to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. It has been held that while previous rent may not be conclusive, it may sometimes be a guide. See; Ayinke v. Lawal & Ors (1994) 7 WLR (Pt. 356) 263. Generally, a claim for mesne profits is based on trespass by the defendant in occupation and it is inappropriate in respect of lawful occupation as a tenant, it can only be maintained when the tenancy been duly determined and the tenant becomes a trespasser. Therefore, in any situation where a tenancy is created by operation of law, the status of trespasser will not arise, until the tenancy has become duly determined according to law. See; Omotesho v. Oloriegbe (1988) 4 WLR (Pt. 87) 225; Ayinke v. Lawal (supra).” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
EVIDENCE: WHERE EVIDENCE REMAINS UNCONTROVERTED
“The holding by the Court below is in tandem with the uncontroverted piece of evidence of the PW1 (supra). I affirm it and hold that the tenancy was properly and lawfully determined and vested the trial Tribunal with the jurisdiction to entertain the action vide Woluchem v. Gudi (1981) 5 S.C, Ebba v. Ogodo (1984) 1 S.C.N.L.R. 372, Lawal v. Bandu (1977) 8 – 9 S.C. 83 to the effect that findings amply supported by credible and uncontroverted evidence which was believed and accepted by the Court below should not be disturbed by an appellate Court as the said findings were not shown to be perverse or unreasonable.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
CHIEF HENRY OGUGUA Appellant(s)
AND
ALHAJI L. A. JIMOH Respondent(s)
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):
The appeal is from the decision of the High Court of Justice of Lagos State (the Court below) upholding the decision of the rent Tribunal of Lagos State (the trial Tribunal) for the recovery of possession of plot 1777 located at 7th Avenue, Festac Town, Lagos from the appellant who was at all material times tenant thereat to the respondent.
In summary, the appellant was a rent paying tenant on yearly basis in a residential accommodation at the premises of the respondent, his landlord. The appellant was alleged to have run into arrears of rent for over three (3) years. He was allegedly served a notice to quit and for recovery of possession. The appellant had covenanted with the respondent that in event he was in arrears of rent for 21 days the respondent could enter the demised premises and determine the tenancy. The appellant had sub-let the demised premises to third parties (sub-tenants) without the consent of the respondent. The respondent determined the tenancy and sued for recovery of possession and for payment of arrears of rent together with mesne profits.
The appellant rested his case on the evidence led by the respondent. The respondent opted not to address the trial Tribunal on the evidence he had proffered in the case. The appellant indicated to the lower Tribunal that he would address it on the evidence tendered by the appellant. The trial Tribunal refused the appellant’s request. It entered judgment for the respondent for possession of the rented premises comprising a 4 bedroom duplex and a 2 room boys-quarters on the grounds of breach tenancy covenant, personal use and nuisance.
The trial Tribunal also ordered the appellant to pay mesne profits at the rate of N250,000 per annum and a ‘prorata rate of N20,833.33 a month from 01.05.2003 until possession is finally given up’.
The appellant was dissatisfied with the judgment of the trial Tribunal and appealed against it at the Court below. After hearing arguments in the appeal which bore on the refusal of the trial Tribunal to allow the appellant address it after he rested his case on that of the respondent; the case being an abuse of the process of the trial Tribunal; the prematurity of the notice to quit which the appellant argued deprived the trial tribunal of the jurisdiction to entertain the case; the order of the trial Tribunal referring the appellant, a legal practitioner, to the Nigerian Bar Association Disciplinary Committee for discipline; the misconception of the tenancy agreement on the length of notice for the determination of the tenancy; and breach of covenant on default in the payment of rents as well as subletting; and the judgment of the trial Tribunal being against the weight of evidence the Court below resolved in its judgment that the appeal had no merit and dismissed it.
The appellant was not satisfied with the judgment of the Court below and filed a notice of appeal with nine (9) grounds of appeal challenging the said decision.
In a brief of argument filed on 13.09.11, but deemed as properly filed on 04.06.14, the appellant framed the following issues for determination:
5.1 ISSUE 1
Whether failure to file a counter affidavit to the Preliminary Objection supported by an affidavit does not amount to admission of facts deposed in the affidavit and, if so whether oral denial of content of such an affidavit by counsel from the bar is sufficient to counter the content of the affidavit and is it lawful for counsel to tender document from the bar in counter to an exhibit in an affidavit?
5.2 ISSUE 2
Whether failure to terminate the tenancy of the Defendant at anniversary date did not make the said notice ineffective in law, and if so, was jurisdiction conferred on the Tribunal?
5.3 ISSUE 3
Was the Plaintiff, now the respondent entitled to Mesne Profit when the notice to quit was bad in law?
5.4 ISSUE 4
Whether it is the Purport of Order 17 Rule (16) (1) MAGISTRATE COURT (CIVIL PROCEDURE) RULES OF LAGOS STATE 2004, that a defendant who decides to rest his case on that of the Plaintiff will lose his right to final address of the Court both in point of fact and law?
5.6 ISSUE 5
Having made a finding of fact that the trial Tribunal Chairman read into an exhibit before her what it did not contain, and relied on the non existent fact as the bases for her Judgment whether the Court below should not have set aside the entire judgment as biased?
5.7 ISSUE 6
Is it trite Law that a tenant cannot sublet a property held of a Landlord without written consent of the Landlord where the agreement between the parties does not stipulate for consent before subletting?
5.8 ISSUE 7
Was it correct for the Court below to hold that because an issue had been referred to Disciplinary Committee of the Nigerian Bar Association, the High Court, in its appellate jurisdiction is precluded from investigating the correctness or otherwise of the Fact/issue placed before it and was the Court below right to raise the issue that the matter had been sent to Disciplinary Committee Suo motu.
5.9 ISSUE 8
Was the entire Judgment of the Court below not against weight of evidence in all the circumstances and as such bound to be set aside
In arguing the issues (supra) chronologically, the appellant contended on issue 1 (supra) that the Court below should have upheld his submission that the trial Tribunal was wrong in relying on a document, a certified true copy of an order of the High Court of Lagos State, tendered from the Bar by respondent’s learned counsel to counter the affidavit evidence of the appellant that the case in litigation at the trial Tribunal was the same as the case pending at the High Court of Justice of Lagos State and thus the case in hand constituted an abuse of the process of the Court; and that had the respondent wanted to dispute that fact he should have filed counter affidavit showing the case at the High Court of Lagos State had been discontinued, not to seek to establish the discontinuance of the case by way of a certified true copy of the order of the High Court of Justice of Lagos State containing the discontinuance of the said case which was tendered from the Bar; therefore the appellant urged that his affidavit evidence was unchallenged and established the allegation of abuse of process as the case at the trial Tribunal was the same as the case at the High Court of Justice of Lagos State and entitled the trial Tribunal to dismiss the case before it; and that having not done so, the Court below was wrong in holding that the trial Tribunal rightly overruled the preliminary objection placing reliance on the cases of Okafor v. A.-G., Anambra State (1991) 6 NWLR (pt. 200) 659 at 681, Ogoejeofo v. Ogoejeofo (2006) 1 S.C. (pt. 1) 162, Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 156 at 188 – 189, Egbuna v. Abimbola (1978) 2 S.C. 39 at 40.
It was further argued that the claim of the respondent that he filed counter affidavit challenging the preliminary objection is not borne out by the record of appeal (the record) and should not be countenanced; and that the record does not contain the notice of discontinuance showing the judgment of the Court below upholding the judgment of the trial Tribunal that a notice of discontinuance was tendered in evidence is not supported by the record; therefore the case of the respondent should be struck out for being null and void ab initio.
The appellant argued issues 2 and 3 together to the effect that since the notice to quit sought to terminate the tenancy on 30.04.03, when it should have terminated on 10.05.03, the condition precedent to vest the trial Tribunal with the jurisdiction to entertain the case was not met and rendered the decision by the Court below affirming the decision of the trial Tribunal a nullity; as, the initial occupation of the premises by the appellant was lawful.
The appellant further argued that even if he was holding over the premises, he became a statutory or protected tenant qua the landlord and unless possession thereof was voluntarily given up by him, the respondent could not wrest it from him save by an order made by the trial Tribunal or the Court below for possession against him after due notice to quit served at the end of the current term of the tenancy together with notice of intention to apply for recovery of possession; and that the tenancy subsisted, jettisoning the claim for mesne profits which can only be maintained when the tenancy has been lawfully determined and the tenant becomes a trespasser placing reliance on Sections 15 and 16 of the Rent Control and Recovery of Premises Law of Lagos State and the cases of African Petroleum Ltd. v. Owodunni (1991) 8 NWLR 319 at 419, Madukolu and Anor. v. Nkemdilim (1962) All NLR 587 at 597.
It was also argued by the appellant that the respondent did not prove breach of the tenancy agreement by the appellant; and that the issuance of the quit notice implied refusal to take further rent.
The appellant referred to Order 17 Rule 16(1) of the Magistrate Civil Procedure Rules of Lagos State 2004 vis–vis Section 1(3) and 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (1999 Constitution) to argue on issue 4 (supra) that the Court below should not have upheld the decision of the trial Tribunal which denied him the right to final address after the close of the case on the footing that the respondent elected not to address the trial Tribunal and thus the appellant had nothing to respond to, therefore the Court below was wrong to have endorsed the said holding of the trial Tribunal which had infringed the appellant’s constitutional right to fair hearing.
It was also argued that to the extent that Order 17 Rule 16(1) would deny a defendant the right to final address on the basis that the claimant did not address the trial Tribunal, it is inconsistent with the fair hearing provision in Section 36(1) of the 1999 Constitution and should be declared so and voided citing in aid the cases of Ekpeto v. Wanaogho (2004) 11 – 12 SC 201 at 208 – 209, U.B.A. Plc v. Achoru (1990) 6 NWLR (pt. 156) at 254, Salu v. Egeibon (1994) 6 NWLR (pt. 348) 23, Ziideeh v. River State Civil Service Commission (2007) 1 ? 2 SC 1 at 13.
The appellant argued on issue 5 (supra) that since the trial Tribunal?s holding in page 182 of the record that the tenancy agreement, Exhibit A, provided that each party was entitled to give the other 3 months notice to determine the tenancy created by it and that Exhibit A had an express covenant not to sublet the premises without the written consent of the landlord when the tenancy agreement, Exhibit A, did not state so as found by the Court below, in its judgment in page 337 of the record, the Court below should have held that the trial Tribunal committed a fraud by reading into Exhibit A what was not there which is enough to vitiate the judgment of the trial Tribunal; and that of the Court below upholding it, therefore the entire judgment should be set aside as it is founded on non-existent facts citing in aid the case of Ntuk v. N.P.A. and Ors. (2007) 5 – 6 SC 1.
The appellant argued on issue 6 (supra) that to the extent that the Court below held that even though the tenancy agreement did not contain a clause prohibiting the subletting of the demised premises by the appellant, the appellant was bound not to sublet the premises on the plank that to do so would infringe the proprietary rights of the respondent over the demised premises, the Court below erred as the legal position is that in the absence of the express covenant in the tenancy agreement prohibiting a tenant to sublet the demised premises the said covenant cannot be implied in a tenancy and that subletting the demised premises does not affect the proprietary rights of the landlord citing in aid Woodfall on Landlord and Tenant Vol.1, 27th Edition at page 821, Amos Brothers and Co. Ltd. v. British West African Corporation 14 WACA 220, Black’s Law Dictionary 8th Edition edited by Brayan A. Garner at page 1203.
The appellant argued on issue 7 (supra) that the Court below was bound to pronounce on the issue canvassed by the appellant and replied to by the respondent on the propriety of referring the conduct of the appellant’s learned counsel to the Bar disciplinary committee and having not done so the Court should pronounce on the issue based on the materials contained in paragraphs 10.1 to 10.4 in page 234 of the record citing in aid the cases of Are v. Ipaye (1986) 8 NWLR (pt. 29) 416 at 418, Obisi v. Chief of Naval Staff (2004) 5 SC (pt. 1) 136 at 145, EIMSkip Limited v. Exquisite Industries Nig. Ltd. (2004) 1 SC (pt.11) at 17.
The appellant argued on issue 8 (supra) that the Court below should not have upheld the judgment of the trial Tribunal which was against the weight of evidence in that after the respondent had closed his case, the trial Tribunal allowed the respondent to re-open the case without the leave of the trial Tribunal which made the respondent to bring an application for possession among other reliefs therefore the Court below should not have upheld the decision of the trial Tribunal which was based on facts brought into the case after the close of the case without the leave of the trial Tribunal contrary to Order 17 rule 16(4) of the Magistrate Civil Procedure Rules 2004.
The appellant further argued that rules of Court are meant to be obeyed; that had the respondent sought and obtained the leave of the trial Tribunal to adduce additional evidence the appellant would have called evidence in rebuttal; and that the absence of leave denied the appellant the right to fair hearing and as such rendered the judgment of the trial Tribunal a nullity and that of the Court below liable to be set aside.
The appellant also argued that the Court below was in error in holding that there was no proof of the claim before it when the respondent stated in the last paragraph of page 157 of the record as well as the first paragraph of page 169 and pages 256, 306 and 397 thereof that the respondent had closed his case and could not lead further evidence therefore the procedure followed by the Court below denied the appellant his right to fair hearing citing in aid the case of U.B.A. Ltd. v. Ngozi Achoru (1990) 6 NWLR (pt.150) 254 to the effect that fair hearing lies in the procedure followed, not in the correctness of the decision; and that in the event the appeal against an order for possession succeeds the appellant should be restored to possession of the demised premises citing in aid the case of Pan Brothers Limited v. Landed Property Ltd. and Ors. (1962) 2 ANLR 22; and it is based on the submissions (supra) that the appellant advocated for the appeal to be allowed as the judgment of the Court below upholding the judgment of the trial Tribunal is ‘either null and void, ill conceived and or against the weight of evidence’.
The respondent argued contrariwise in his brief of argument filed on 12.10.11, but deemed as properly filed on 04.06.12, by Sections 111 and 112 of the Evidence Act, the Court below was right in upholding the order of the trial Tribunal accepting in evidence a certified true copy of the ruling of the High Court of Lagos State discontinuing the action filed before it by the respondent against the appellant from the Bar to refute the allegation that the action as pending and constituted an abuse of the process of the trial Tribunal as the said ruling is a public document and serves as a notice to the whole word and could be tendered from the Bar as sufficient proof of its contents thereof; therefore it was unnecessary for the respondent to file counter affidavit in the circumstances vide Obadina Family and Ors.v. Ambrose Family & ors (1969) 1 NMLR 24 (incomplete citation), Co-operative and Commerce Bank (Nig.) Ltd. v. Godwin Odogwu (1990) 3 NWLR (pt.140) 646 at 656 and Nzekwu v. Nzekwu (1989) 2 NWLR (pt.104) 373 at 404.
The respondent also argued in the brief that the appellant was in arrears of rent for over one year and by dint of the clause in the tenancy agreement authorizing the respondent to enter upon the demised premises or any part thereof and put an end to the tenancy in such circumstances the Court below was right in upholding the decision of the trial Tribunal that the respondent validly determined the tenancy after serving the appellant the notices, Exhibits H and J in pages 147 and 150 of the record, respectively, did not violate Section 15 of the Rent Control and Recovery of Premises Law of Lagos State as the parties are bound by the terms of their contract as held in the case of Udih v. Izedonwen (1990) 2 NWLR (pt.132) 357 at 365.
It was further argued that since the respondent lawfully terminated the tenancy in terms of the tenancy agreement, the appellant became a trespasser on the demised premises and cannot ask for Mesne profits as rightly held by the trial tribunal and affirmed by the Court below citing in assistance the case of Metal Construction (W.A.) Ltd. v. Aboderin (1998) 8 NWLR (pt. 563) 538 at 546; that Order 17 Rule 16(1) of the Magistrate Court Procedure Rules 2004 was properly invoked by the trial Tribunal and rightly affirmed by the Court below as the respondent did not address the trial Tribunal as to call for a reply from the appellant.
The respondent further argued that the covenant not to sublet the demised premises is implied in a tenancy agreement and its violation by the appellant in this case was a fundamental breach of the contract, therefore the Court below was right in holding in page 338 of the record that the appellant had voluntarily vacated the demised premises and his counsel had sublet the same for two years and pocketed the rent. So the trial Tribunal was wrongly accused of bias by the appellant; more so, the appellant did not substantiate the alleged bias.
The respondent also argued that the Court below made a finding that the appellant was in arrears of rent for 3 years and had even moved out voluntarily from the premises and that the appellant’s learned counsel acting or purporting to act on a power of attorney had sublet the premises and pocketed the money which conduct the appellant’s learned counsel was referred to the Legal Practitioners Disciplinary Committee by the Court for discipline leading to the subsequent derobing of the appellant’s learned counsel.
The respondent further argued that throughout the proceedings at the trial Tribunal the appellant by express or implied conduct kept away from the proceedings, so the appellant who was given the opportunity to be heard should not complain of breach of the right to fair hearing under Section 36 of the 1999 Constitution read with Order 17 Rule 16(1) of the Magistrate; consequently, the respondent solicited for the dismissal of the appeal.
The reply brief filed on 01.02.11, but deemed as properly filed on 04.06.14 referred to page 76 of the record where the respondent showed that apart from one sub-tenant, the appellant’s learned counsel acted for the appellant to put in possession, the other sub-tenants came through property agents at the instance of the appellant whose tenancies were still subsisting at the time and subsequently struck out, the record of which was furnished by way of affidavit evidence at the Court below in the consideration of the preliminary objection on jurisdiction filed by the appellant at the Court below, when what counsel for the respondent tendered at the trial Tribunal was a Certified True Copy (C.T.C.) of the notice of discontinuance from the Bar as indicated in page 296 of the record.
The reply brief added that page 265 of the record contained the enrollment order of another lower Court instead of the Court below, therefore the Court below should not have relied upon it to evict the appellant and his sub-tenants from the demised premises showing the ‘respondent relied on this fraudulent manoeuvre to evict the appellant and his sub-tenants’; consequently, ‘the case of the respondent which has been characterized by misrepresentations of facts and as such manifestly devoid of truth’; therefore the judgment should be set aside, so ended the reply brief.
There was no new argument or point arising from the respondent’s brief for a reply brief to address. The reply brief merely re-emphasized some facts. It does not comply with Order 19 Rule 5(1) of the Court of Appeal Rules 2016 (rules of the Court). It is hereby not countenanced vide Zenith Plastics Industries Ltd. v. Samotech Limited (2018) 8 NWLR (pt. 1620) 165 at 177 – 178 to the effect that the function of a reply brief is to refute the new arguments or new issues in the respondent’s brief.
The issues submitted by the appellant for determination in the appeal are apt. I would be guided by the said issues in the discussion. The issue of discontinuance of the action could only be settled by tendering in evidence, a certified true copy of the order or ruling of the High Court of Lagos State to that effect as that is the only acceptable mode of proving the existence of the record of a Court of law by secondary evidence under Sections 85, 87(a), 89(e) and (f), 90(1)(c), 102(a)(iii), 104, 105 and 106(ii) and (iii) of the Evidence Act, 2011 (Evidence Act). Section 105 thereof stipulates that –
“copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.” (My emphasis).
The operative phrase in Section 105 of the Evidence Act is ‘produced’. Something (document, in particular) is said to be produced when it is brought in response to a request or in reaction to an allegation vide Black’s Law Dictionary (Eighth Edition) 1245.
The Supreme Court case of Ogbunyiya and Ors. v. Okudo and Ors. (1979) 12 N.S.C.C. 77 at 82 stated that ?to produce? means to bring forward or to bring out or to put on stage within the con of public documents under the relevant provisions (supra) of the Evidence Act. Tendering a certified true copy of the order or ruling of the High Court of Justice of Lagos State containing the order of discontinuance of the action in question would, in my modest view, tally with the definition of ‘produced’ in Section 105 of the Evidence Act.
Since the genuineness of a public document such as a certified true copy of the record of a Court of law is presumed under Sections 146 and 147 of the Evidence Act, the tendering in evidence of a certified true copy of the record of the High Court of Lagos State embodying the order of discontinuance of the action was appropriate and sufficed to establish that the action was so discontinued vide Daggash v. Bulama (2004) All FWLR (pt. 212) 1666, Anyakora v. Obiakor (1990) 2 NWLR (pt. 130) 52, Anatogu v. Iweka (1995) 9 S.C.N.J. 1, Progressive Action Congress v. INEC (2009) All FWLR (pt. 478) 260, Isibor v. The State (1970) 1 All NLR 248, Ogbunyiya v. Okudo (1979) 1 All NLR 105, Magaji v. Nigerian Army (2005) All FWLR (pt. 257) 1511 at 1531, Aregbesola v. Oyinlola (2009) All FWLR (pt. 472) 1147.
The Court below was therefore right in holding that the trial Tribunal rightly admitted the certified true copy of the order of the High Court of Justice Lagos from the Bar. The Court below was also right in endorsing the holding of the trial Tribunal that the said certified true copy of the order discontinuing the action said to have been an abuse of the judicial process by the action pending at the trial Tribunal was no longer pending at the material time to render the action at the trial Tribunal an abuse of the judicial process.
Clause (i) of the tenancy agreement in page 199 of the record of appeal (the record) covenanted as follows –
”That if the rent hereby reserved or any part thereof remains unpaid for 21 (Twenty One) days after becoming payable and due or any covenant on the part of the tenant herein contained shall not be performed, and remain unperformed for a period not exceeding 21 days after prior written notice to the Lessee to remedy such default, then and in any of the said cases it shall be lawful for the Lessor at anytime thereafter to re-enter upon the property or any part thereof and thereupon this tenancy shall absolutely determine but without prejudice to the right of action of the Lessor in respect of any breach of the covenants on the part of the Lessee herein contained.”
The trial Tribunal believed the evidence of the two witness called by the respondent vide part of its judgment in page 182 of the record. The evidence of the PW1, the Estate Surveyor and valuer, believed by the trial Tribunal is in pages 154 – 157 of the record. The relevant portion thereof with respect to the determination of the tenancy is in pages 154 – 155 of the record as follows –
‘The defendant is our tenant and a yearly tenant. When he moved in for the first time as a new he paid for 2 first 2 years the sum of N200,000 per annum for the period 1/8/98 to 30/4/2000. He paid N400,000 totally for the first two years. Yes at the expiration of the first two years he renewed the tenancy. He paid N200,000 for the renewed tenancy, covering 1/5/2000 – 30/4/2001. He further renewed again and paid N250,000 per annum for 1/8/2001 – 30/4/2002. At the end of that period he did not further renew the tenancy. His last payment of rent is 30/4/2002.
When he failed to renew, our Office issued a Quit Notice dated 28/10/2002 which I personally served on him. I served on him the Original copy of the Quit Notice. It was a six months Quit Notice. At the expiration, he did not quit. When he did not quit, we then issued a 7 days notice which I personally served.
At the expiration of the 7 days notice he did not quit. The two notices signed by Mr. Fabiyi Isaac. They were both addressed to Chief Henry Ogugua. If I see copies of the said notices that I served I will be able to identify them
Counsel applies for all exhibits. Witness identified Exhibits ‘B’ and ‘C’ as the copies of the notices which she personally served.
The defendant is a bad tenant because he does not pay his rents as at when due. Also he gave us a bounced cheque for the payment of the rent for 1/8/01 – 30/4/02.
As I speak now he has not paid for more than 3 years. That should be N750,000. The defendant is our client in respect of the property in issue.
When a client pays for rents in respect of a property we issue a receipt. We did issue receipts for those payments. No it is not true that the defendant has paid his rents to us up to date.
”… I wish to say that with respect to the six months notice dated 25/10/2002 I served it the next day at about 9am at his premises – the property in issue while the 7 days notice dated 19th June 2003 was served on the defendant the same day being 19/6/2003 at about 4p.m. at his premises personally by me.”
The trial Tribunal held that from the evidence for the respondent (which includes the excerpt (supra)) the tenancy was properly determined. It held that the statutory duration of the notice of quit was three (3) months.
The Court below while agreeing with the trial Tribunal held by way of correction that the statutory notice to quit had duration of six (6) months as it was a yearly tenancy and that on the evidence proffered by the respondent the statutory period of notice and all the notices required to determine the tenancy were properly and duly served on the appellant as required by Sections 14(1)(c) and 15 of the Rent Control and Recovery of Premises Law of Lagos State even when the appellant was in breach of clause on rent by being in arrears for three years which deferred the tenancy.
The holding by the Court below is in tandem with the uncontroverted piece of evidence of the PW1 (supra). I affirm it and hold that the tenancy was properly and lawfully determined and vested the trial Tribunal with the jurisdiction to entertain the action vide Woluchem v. Gudi (1981) 5 S.C, Ebba v. Ogodo (1984) 1 S.C.N.L.R. 372, Lawal v. Bandu (1977) 8 – 9 S.C. 83 to the effect that findings amply supported by credible and uncontroverted evidence which was believed and accepted by the Court below should not be disturbed by an appellate Court as the said findings were not shown to be perverse or unreasonable.
Mesne profits and when an action for it would lie as well as the basis for the award thereof were restated in the case of Abeke v. Odunsi and Anor. (2013) 13 NWLR (pt.1370) 1 at 27 per the lead judgment prepared by his Lordship Ariwoola, J.S.C., as follows –
“What is mesne profits? This expression simply means intermediate profits – that is, profits accruing between two points of time, that is between the date when the defendant ceased to hold premises as a tenant and the date he gives up possession. As a result. the action for mesne profits, ordinarily does not lie unless either the landlord has recovered possession or the tenant’s interest in land has come to an end or the landlord’s claim is joined with a claim for possession. See; Ahmed Debs & Ors v. Cenico Nigeria 1986) 3 NWLR (Pt.32) 846; LPELR 183/1984 per Oputa, JSC. In Bramwell v. Bramwell (1942) 1 KB 370; (1942) 1 All ELR 137 at 138, Goddard L.J had earlier described the expression “mesne profits’ as follows:
“Only another term for damages for trespass arise, damages which from the particular relationship of landlord and tenant.”
One of the differences between mesne profits and damages for use and occupation is the date of commencement. While mesne profits begin to run from the date of service of the process for determining the tenancy, damages for use and occupation start to run from the date of holding over the property. It is therefore the duty of the Court to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. It has been held that while previous rent may not be conclusive, it may sometimes be a guide. See; Ayinke v. Lawal & Ors (1994) 7 WLR (Pt. 356) 263.
Generally, a claim for mesne profits is based on trespass by the defendant in occupation and it is inappropriate in respect of lawful occupation as a tenant, it can only be maintained when the tenancy been duly determined and the tenant becomes a trespasser. Therefore, in any situation where a tenancy is created by operation of law, the status of trespasser will not arise, until the tenancy has become duly determined according to law. See; Omotesho v. Oloriegbe (1988) 4 WLR (Pt. 87) 225; Ayinke v. Lawal (supra).
With the holding that the tenancy was duly determined which has been affirmed by me, the holding-over of the premises by the appellant entitled the respondent to an award of mesne profits in the circumstances of the case as borne out by the uncontroverted evidence for the respondent showing particularly that the notice to quit was good in law. I do not disturb the said award accordingly.
Order 17 Rule 16(1) of the Magistrate Court (Civil Procedure) Rules of Lagos State 2004 (Order 17 Rule 16(1) of the rules) reads as follows –
“the party of whom the burden of proof lies shall be entitled to address the Court at the commencement of the case, his opponent shall, provided there is any case to meet, announce whether he intends to adduce evidence or not, if he announces that he does not intend to call evidence, the party beginning shall be entitled to address the Court for a second time, for the purpose of summing up his evidence and his opponent shall have a right of reply.”
Order 17 Rule 16(1) of the rules makes provision for right of final address upon close of the case showing it does not violate Section 36(1) of the 1999 Constitution on fair hearing and is on that basis not inconsistent with any of the provisions of the 1999 Constitution and cannot be declared unconstitutional, null and void, in my modest opinion.
It is clear in the record that the respondent as the claimant opted not to address the trial Tribunal after he closed his case.
The appellant indicated he would address the trial Tribunal. The request was turned down on the ground that there was nothing for the appellant to reply to. The Court below agreed with the trial Tribunal. A reply in terms of address means to say or write something as an answer to somebody/something or to do something as a reaction to something that somebody has said or done vide Oxford Advanced Learners Dictionary (7th Edition) page 1238.
It has to be recollected that both the trial Tribunal and the Court below had stated in the record that the order of the High Court containing the notice of discontinuance was tendered from the Bar at the trial Tribunal and admitted in evidence. The record shows the appellant resisted the tendering from the Bar of the certified true copy of the order of the High Court of Lagos State containing the discontinuance of the action. The appellant cannot therefore approbate and reprobate on the issue at the same time.
Moreover, the appellant prepared and transmitted the record of appeal on 03.02.10 and obtained an order of the Court to depart from the Rules of the Court and rely on the bundle of documents for the appeal on 19.04.10 and cannot be heard to maintain that the order of discontinuance was non-existent. Since there was nothing to reply to, a reply was otiose or unnecessary in terms of Order 17 Rule 16(1) of the rules (supra).
Both the appellant and the respondent were therefore on equal footing or level playing ground as none of them addressed the trial Tribunal after the appellant rested his case on the respondent?s case. Being a straight-forward and one-way action of landlord and tenant in a Tribunal of limited jurisdiction (inferior Court) the Court below was right in holding that the trial Tribunal rightly dispensed with final address by the appellant in the case vide Ekanem and Ors. v. Akpan and Ors. (1991) 8 NWLR (pt. 211) 616 at 632 following the Supreme Court case of Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (pt. 67) 787 to the effect that addresses are designed to assist the Court arrive at justice in a case and that when the facts are straight forward and in the main not in dispute, the trial Judge would be free to dispense with final addresses. The issue is therefore resolved against the appellant.
It is true the trial Tribunal misconstrued the tenancy agreement, Exhibit A, when it held that it provided 3 months notice to determine it.
The error was, however, corrected on appeal by the Court below which held the length of notice was six (6) months for the yearly tenancy in Exhibit A, the tenancy agreement. The said correction by the Court below which supersedes and cancels out the erroneous findings made by the trial Tribunal correlates with Exhibit A, the tenancy agreement, and is therefore supported by the evidence. With the said correction on appeal by the Court below which prevails over the erroneous finding of the trial Tribunal the contention of the appellant on the issue is spent and rendered largely academic. I would affirm the decision of the Court below correcting the said error of the trial Tribunal.
Woodfall on Landlord and Tenant (1978 Edition) states in page 460 aptly that a covenant not to sub-let without licence from the landlord is an express covenant. Exhibit A, the tenancy agreement, did not contain the covenant not to sublet as an express covenant. The case of Oki and Anor. v. Akel 19 N.L.R. 94 at 95 following the old English cases of Avnsby v. Woodward 6 B and C 519 ? 108 English Reports 542 ? 543 and Goodwright Walter v. Dairds 2 Cowper 804 – 98
English Reports, 1371 illustrates the position that a lessee’s covenant not to under-let without the consent of the lessor is in the category of express covenants.
The case of Amos Brothers and Co. Ltd. v. British West African Corporation (1952) 14 W.A.C.A. 220 at 223 Verity C.J., delivering the judgment of the Court (Foster-Sutton, P., Verity, C.J., and Coussey, J.A.) while interpreting Section 4 of the Increase of Rent (Restriction) Ordinance (Cap.93) to the effect inter alia that a tenant not expressly prohibited in writing from sub-letting could sub-let the demised premises held that –
”It is in my opinion clear therefore in the first place that at the date of the sub-letting there being at that time no express prohibition in writing, the appellants (sub-tenants) became entitled to be deemed tenants of the respondents for the purposes of the Ordinance (Cap.93) and entitled to the protection afforded by that Ordinance.”
There is a similar provision in Section 9 of the Rent Control and Recovery of Residential Premises Law Cap.167 Laws of Lagos State (Rent Control Law) 1994, then applicable to the case, which states-
‘Where a landlord at any time lets any premises and his tenant not being expressly prohibited in writing from subletting, sublets such premises or any part thereof, the sub-tenants of such premises or any part thereof shall be deemed for the purpose of this Law to be tenants of the landlord.’ (My emphasis).
Accordingly, I agree with the appellant that there being no express covenant in writing prohibiting the appellant from sub-letting the demised premises the Court below was wrong in agreeing with the trial Tribunal that the covenant not to sub-let was implied in the contract; likewise, the holding by the Court below up-holding the decision of the trial Tribunal that the appellant had breached the covenant not to sub-let the premises without permission from the respondent which was not one of the express covenants of the tenancy agreement, Exhibit A.
The Court below reasoned that a covenant not to sublet affects proprietary rights of the landlord. In the first place there was no such covenant in Exhibit A, the tenancy agreement, to warrant the said holding. At any rate, even if there was such a covenant, tenancies deal with possessory rights, not right to exclusive ownership or proprietary rights, as rightly argued by the appellant who properly placed reliance on Black’s Law Dictionary 8th Edition page 1203.
The net result is that although the Court below erred by upholding the holding of the trial Tribunal that the sub-letting of the demised premises by the appellant breached the covenant not to sub-let and that the said covenant affected the proprietary rights of the respondent as landlord, the error per se would not lead to a reversal of the decision of the Court below in that the earlier holding that the tenancy was duly determined on grounds of default in the payment of rents contrary to one of the express covenants of the tenancy agreement, Exhibit A, and the requisite service of the statutory notices on the appellant sustained the decision of the Court below; all the more so, the sub-tenants who should have benefitted from the outcome of the contention that the premises were lawfully sub-letted to them without offending the tenancy agreement, Exhibit A, were not parties in the action which was fought in personal capacity.
The conduct of the appellant’s learned counsel was referred to the Disciplinary Committee of the Nigeria Bar Association (N.B.A.), a domestic body, empowered to investigate and if necessary discipline erring legal practitioners. It is trite that domestic bodies authorized to decide issues properly placed before them should not be faced with the parallel exercise of judicial powers by an adjudicating authority. The domestic channel must be exhausted first or allowed to run its full course vide Eguamwense v. Amaghizemwen (1993) 9 NWLR (pt. 315) 1.
The Court below was therefore right in upholding the refusal of the trial Tribunal to adjudicate on the conduct of the appellant?s learned counsel which it had referred to the domestic body of the N.B.A., for disciplinary action. Accordingly, the trial Tribunal could not be accused of failing to pronounce on the issue in the circumstances.
It is clear in the record that the Court below correctly held that the trial Tribunal relied on the evidence before it to arrive at its decision against the appellant on the determination of the tenancy due to breach of the covenant on rent by the appellant who had allowed the rent to fall due for about three (3) years contrary to the rent clause that stipulated time limit of 21 days upon pain of automatic termination of the tenancys by the respondent under clause (i) of the tenancy agreement, Exhibit A, in page 199 of the record.
The other finding on the appellant vacating the premises on his own was not part of the evidence given for the respondent at the trial Tribunal. It was based on materials in a motion on notice filed and moved after the appellant closed his case and could not have been evidence in the case vide by analogy the case of Ayinde v. Salawu (1989) 3 NWLR (pt.109) 297.
There is therefore force in the contention of the appellant that the Court below was wrong in upholding the holding of the trial Tribunal giving effect to the materials in the said motion paper as basis to find that the appellant had voluntarily vacated the premises. Evidence or materials not allowed to be contested under cross-examination hardly carry weight vide Ikaria v. State (2014) NWLR (pt. 1387) 639.
Discounting the preceding finding, the judgment of the trial Tribunal upheld by the Court below was still supported by the evidence to the effect that the breach of the covenant for payment of rent by the appellant automatically determined the tenancy and the subsequent service of the requisite notices on the appellant put a death knell to the tenancy without ado, in my modest view. Findings of fact supported by credible evidence, as in this case, will hardly be disturbed by an appellate Court.
The sub-tenants left behind in the premises by the appellant were not parties in the personal action in this case and cannot benefit or be protected by an order of the trial Tribunal, therefore the Court below was right in holding that the trial Tribunal rightly restored or put the respondent in possession of the demised premises.
In the final analysis, I find the appeal unmeritorious and hereby dismiss it and affirm the decision of the Court below (Idowu, J.) upholding the judgment of the trial Tribunal. The appellant shall pay N100,000 costs to the respondent.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read the lead judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA, and I am in agreement with the judgment.
The decision of the trial Tribunal upheld by the lower Court was supported by evidence to the effect that the breach of the Covenant for payment of rent by the Appellant terminated the tenancy and this finding will not be overturned by this Court.
For this forgoing, I also hold that this appeal is unmeritorious and accordingly dismissed. The judgment of the lower Court is hereby affirmed. I abide by the order as to costs.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I have had the privilege of reading in draft, the lead Judgment delivered by my learned brother, Joseph Shagbaor Ikyegh, J.C.A.
The Judgment just delivered in my view has dealt with the core issues which the Appellant has raised, and by an act of delicate “judicial penciling”, has clinically excised issues on which the Rent Tribunal and the lower Court erred and which are not germane to the determination of the appeal which was dismissed.
I have nothing to add and I agree with the reasoning and decision reached in the lead Judgment.
I abide with the consequential order as to costs.
Appearances:
Mr. P. E. AgbaFor Appellant(s)
Mr. F. E. AgbebeFor Respondent(s)
