CONOIL PLC v. ALHAJI MOHAMMED INUWA DUTSE (2016)

CONOIL PLC v. ALHAJI MOHAMMED INUWA DUTSE

(2016)LCN/8293(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of March, 2016

CA/K/451/2013

RATIO

PRACTICE AND PROCEDURE: AMENDMENT; LAID DOWN CIRCUMSTANCES WHERE AMENDMENT WILL NOT BE GRANTED

There is no law that encourages multiplicity of actions against the same opponents with facts or subject-matters that are the same even where the causes of action arise at different times. The fact that a cause of action or new facts have come up after an original suit has been filed in same suit having same parties and subject-matter does not call for the filing of a fresh suit. This has been taken care of by the law and practices of our Courts through amendments. The Court has laid down circumstances where amendment will not be granted. See ABASI V. LABIYI (1958) WNLR 12, POPOHUNDA V. OLUWASOLA (1999) 3 NWLR (PT. 596) 531; and OYENUGA v. PROVISIONAL COUNCIL OF THE UNIVERSITY OF IFE (1965) NWLR 349. Thus, the primary purpose of amendment is to bring in line new facts with the existing ones. In OKOLI V. AJOSE (1994) 8 N.W.L.R. (Pt.362) 300 AT 312, the purport of amendment of pleadings was explained thus:
“The object of the amendment of pleadings is to enable the parties to alter their pleadings so as to ensure that the litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief or remedy already claimed; but rather on the basis of the true state of the facts or the true relief or remedy which the parties really and finally intend to rely on or to claim…
Sometimes the litigant may find it necessary to revise his own pleading to re-state or re-frame his case, before the action proceeds to trial in order to bring out ‘the rear question inÂ controversy’ between the parties.”
Where however the application for amendment to bring in new facts or to fit them in is refused, there is need for the abatement and discontinuance of the original since the fresh case will necessarily incorporate and embody all fresh and current facts.
?Nevertheless, the Respondent failed to tow this line of action but went ahead to file suit K/30/2013 while suit K/142/2008 was never discontinued against the Appellant. There is obviously a multiplicity of suits herein and it does not matter that the cause of action arose or crystalized at different times. In IREPODUN-IFELODUN LOCAL GOVERNMENT v. BALEMO (2007) LPELR-8439(CA), the Court in other decisions had abundantly tackled the issue involved in this case when it held variously as follows: “… Of course from the authorities of FOKO VS. FOKO, SOLANKE VS. SOMEFUN Supra, the Supreme Court has held that amendment can be made by introducing a new cause of action or substituting a fresh one for the original provided the facts in the additional new cause are substantially same with that of which the plaintiff has already claimed relief which is exactly the scenario that has been created in the instant case. …Where you can see your way, without risk of failure of justice, to allow the cause to be decided on its full merits, every Court of justice is bound to do so. … It would therefore be most unconscionable for the parties if the plaintiffs/Respondents are deprived of the incorporation of the claim and reliefs sought in the amendment. The filing of a new suit on the cause of action, which according to the Appellants arose after joining of issues, would tantamount to waste of judicial time and money and indeed make room for multiplicity of actions, which is incompatible with the intendment, and spirit of Order 26.
…It goes to show that the incorporation of a new cause of action in the course of an amendment has not been absolutely prohibited by the Rule. By parity of reasoning, it would appear that where an amendment incorporates a cause of action which might have been anticipated at the time the original writ of summons was issued or that the cause of action sought to be incorporated by way of amendment arose out of the same set of facts or transactions’ it would be desirable to incorporate it to the original suit so as to be tried and the issues in controversy determined at once…”
See also FOKO V. FOKO (1968) NMLR 441, AND OLU SOLANKE v. G. SOMEFUN & ANOR. (1974) 1 S.C 141, OGWUMA ASSOCIATED COMPANIES LTD V. I.B.W.A. (1988) 1 NWLR 659, IPADEOLA V. OSHOWOLE (1987) 3 NWLR (PT.59) 18 AT 33. per. UWANI MUSA ABBA-AJI, J.C.A

PRACTICE AND PROCEDURE: ORIGINATING SUMMONS PROCEDURE; WHEN SHOULD AN ORIGINATING SUMMONS PROCEDURE BE ADOPTED

It is advisable that where the facts are not contentious, Originating Summons procedure should be adopted. In FAMFA OIL LTD. V. A.G. FEDERATION (2003) 18 NWLR (PT.852) 453, it was held:
“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for declaration of his interest It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights.” per. UWANI MUSA ABBA-AJI, J.C.A

LAND LAW: SUBLEASE; WHETHER THE OPTION TO RENEW IN THE SUBLEASE CREATED AN ESTATE CONTRACT

In BATA NIGERIA LTD v. GEORGE (1985) LPELR-21153(CA), it was held that “The option to renew in the sublease created an estate contract which in the particular circumstances of this case the respondent has not taken up.” similarly, in ADEJUMO v. DAVID HUGHES AND COMPANY LTD (1989) LPELR-20454 (CA), Per AKPATA, J.C.A., held:
“It is also stated in Halsbury’s Law of England, 4th Edition, Vol 27, paragraph 113, page 92, cited by Mr. Davies, that:
‘A tenant who wishes to exercise an option to renew must conform with the condition in the lease as to its exercise, and those conditions will be strictly construed.” per. UWANI MUSA ABBA-AJI, J.C.A

LAND LAW: MESNE PROFIT; THE PURPOSE OF A MESNE PROFIT

It was held in ODUTOLA V. PAPERSACK (NIG.) LTD (2006) NWLR (PT.1012)470. that ‘mesne profit’ is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such tenant gives up possession. 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 therefore he must pay over to the true owner as compensation for which he has committed. I must stress that the learned Counsel to the Appellant misconceived what mesne profit means as same cannot be liquidated like rent. In AYINKE v. LAWAL (1994) 7 NWLR (PT.356) 263, it was held as follows:
“…while rent is liquidated and operative during the subsistence of a tenancy, mesne profits are unliquidated and only start to run when the tenancy expires and the tenant holds over. Mesne profits are generally calculated on the yearly value of the premises and a landlord is certainly not bound to use the rent payable during the tenancy as a yardstick in his determination of mesne profits.”
see OSARAWU V. EZEIRUKA (1978) G – I S.C 135, AHMED DEBS AND OTHERS V. CENICO NIGERIA LTD. (1986) 3 NWLR (PART 32) 846 AT 55A MARINE & GENERAL ASSURANCE COMPANY LTD. V. ROSSEK & ANOR (1986) 2 NWLR (PART 25) 750 AT 763. Where the rent represents the fair value of the. premises, mesne profits shall be assessed at the amount thereof; but where the real or actual value of the premises exceeds the reserved rent, then of course, mesne profits are assessed at such higher rate or figure. See CLIFTON SECURITIES LIMITED V. HUNTLEY (1943) 2 ALL E.R. 283.
Mesne profits may therefore be equated with fair, real or actual value of the use and occupation of premises during the period the premises is held over by a person in wrongful possession thereof. They are not necessarily commensurate with the rent reserved in the expired lease since the value of the premises might either have increased or, indeed, fallen during the tenancy. See AYINKE v. LAWAL (SUPRA). Being unliquidated and based on the fair open market annual value of the premises, the rate of mesne profits are at large; their assessment is not necessarily based on the reserved rent and the tenant who holds over is liable to pay to the landlord the fair or actual value adjudged by the Court to be due for use and occupation of the premises. See ADEBANJO V. TENESSE NIGERIA INC. (1974) 2 S.C.1. per. UWANI MUSA ABBA-AJI, J.C.A

JUSTICES:

UWANI MUSA ABBA-AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

CONOIL PLC – Appellant(s)

AND

ALHAJI MOHAMMED INUWA DUTSE – Respondent(s)

UWANI MUSA ABBA-AJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Kano State High Court, holden at Kano in Suit No. K/30/2013, delivered on 30/5/2013 by Hon. Justice Tani Yusuf Hassan (as he then was), wherein the Claims of the Respondent for determination of leaseholdwere granted.

The Respondent’s Claims at the lower Court against the Appellant vide the Originating Summons dated and filed on 17/1/2013 contained at pages 2-4 of the records were as follows:
1. A declaration that the defendant’s tenancy at the demised premise situate along Zaria/Kano-Maiduguri road, Kano,
expired 28th February, 2012 and by effluxion of time. 2. A declaration that the Defendant is by virtue of clause 2(f) of the indenture dated 9th April, 1973 and entered into between the plaintiff and the Defendant duly bound to give possession including the building erected thereon to the plaintiff upon the expiration of its lease on February 28, 2012.
3. An order mandating the Defendant to give possession of the demised premises including the building erected thereon at Kano, Zaria/Kano-Maiduguri Road with

all the appurtenance without let or hindrance to the plaintiff,
4. A declaration that the Defendant having failed to deliver possession of the demised property to the plaintiff by February 2012, the plaintiff is entitled to the mesne profit on a pro-rata basis from the Defendant from March 2012 until possession is finally given to him by the Defendant.
5. An order directing the Defendant to pay mesne profit to the plaintiff on pro-rata basis from March 2012 until possession is finally given to the plaintiff by the Defendant.

The facts of the case are that the Respondent herein, who was the plaintiff at the lower Court granted lease on a bare land to the Appellant upon which the Appellant built its Gyadi Gyadi Petrol Service Station at the Kano/Zaria-Maiduguri Road, Kano. The Appellant used to pay the rent as well as ex gratia payments in lieu of appointment of the Respondent as a dealer of the station. Sometime in April 2008 when the rent fell due, the Respondent filed a suit No. K/142/2008 against the Appellant to recover possession of the developed property, mesne profit and the ex-gratia payment in lieu of his dealership appointment. While

the matter was pending, the parties commenced negotiation and reached agreement on the rent for five (5) years at N1 million per annum, Ex-gratia payment in lieu of dealership appointment for five (5) years at N120,000.00 per annum and the Appellant to pay the Respondent’s Counsel professional fee for instituting the action against the Appellant at N600,000.00. The Appellant accordingly paid the Respondent a total sum of N5.6 million for the agreed 5 years rent and ex-gratia payment to cover the period of 1st March 2007 to 28th February 2012 and the Respondent’s Counsel’s professional fee in the sum of N600,000.00 minus VAT amounting to N570,000.00. The terms of settlement in the above regard were prepared and the Appellant and its Solicitor signed the engrossed copies and sent them to the Respondent and his Counsel to execute the same to enable parties and their counsel adopt same in Court as Terms of Settlement. The Respondent and his Counsel after collecting all the payment stated above from the Appellant refused and reneged from signing the engrossed copies of the Terms of Settlement. The Respondent and his Counsel also failed/refused to abate suit NO.

K/142/2008 and the case had ever since been pending. In 2012, the Appellant indicated interest to renew its rent but the Respondent through his counsel wrote the Appellant asking them to vacate. This is without resort to clause I of the indenture, clause 5 of the engrossed terms of settlement agreed upon in 2008 and clauses 5(a) & (b) of the indenture.

After written addresses were adopted, the trial Judge delivered his judgment on 30/5/2013 in favour of the Respondent as contained at pages 147-157 of the records. The Appellant, dissatisfied with the said judgment, appealed vide a Notice of Appeal dated and filed on 10/6/2013, wherein 5 Grounds of Appeal were raised as herein under reproduced without their particulars:
GROUND OF APPEAL:
GROUND 1:
The learned trial judge erred in fact when he held:
“In the instant case the facts of the case were not in dispute. The defendants counter affidavit relates mainly to the suit No. K/142/2008 which is not the issue before the Court and which case has been taken over by event on the mutual agreement of the

parties to extend the tenancy for another 5 yeans and which was done and it is the agreement that expired on the 28/2/2012 which is the matter for determination before the Court…”
GROUND 2:
The learned trial judge erred in fact when she held that:-
“The counter affidavit of the defendant did not in any way challenge the affidavit of the plaintiff in support of the originating summons”.
GROUND 3:
The learned trial judge erred in law and fact when he held that:-
“Since the issue in this case is whether the defendant is dully bound by clause 2(f) of the indenture dated 9th April 1973 between the plaintiff and the defendant to deliver possession to the plaintiff at the expiration of tenancy the action is appropriately commenced by originating summons”.
GROUND 4:
The learned trial judge erred in fact when he held that:-
“It follows therefore that -since it is the mutual agreement of the parties that the extended tenancy which commenced on 1/3/2007 to expire 20/2/2012 time has become of essence at the expiration of the tenancy on 28/2/2012, most especially as the

plaintiff indicated his interest not to renew the leasehold to the defendant”.
GROUND 5:
The learned trial judge erred in law when he held that:-
“As the defendant is still in possession of the demised premises despite the expiration of its tenancy on the 28th February 2012, the plaintiff is entitled to mesne profit from March 2012 until possession is finally given to the plaintiff by the defendant.”

In accordance with the Rules of this Court, the Appellant filed his Brief of Argument dated and filed on 20/11/2014, settled by Charles Asogwa, Esq, wherein he formulated 3 issues for the determination of the appeal to wit:
1. Whether suit No, K/30/2013 heard and determined by the trial Court was not an abuse of Court process, a similar claim having been pending and undetermined in suit No, K/142/2008 and whether the said suit No. K/30/2013 was a proper case to be determined under originating summons.
2. Whether by virtue of Exhibit J.O.1 ? being the indenture dated 9/4/1973 and Exhibit g being the terms of settlement, all between the Appellant and Respondent, the Appellant’s leasehold in the Conoil Filling

Service station situate at Kano-Zaria/Kano Maiduguri Road Kano, time was of essence to warrant the order of the trial Court that the leasehold expired on 28/2/2012 and possession be given to the Respondent.
3. Whether the judgment of the trial Court that the Appellant shall pay the Respondent mesne profit from March 2012 until possession is finally given by the Appellant is not vague and undeterminable.

The Respondent filed his Brief of argument dated 30/12/2014 but deemed properly filed on 3/2/2015; settled by Abdulhafees D. Khalid, Esq., wherein he formulated 3 issues of the determination of the appeal:
i. Whether instituting this suit at the lower Court vide an originating summons during the ‘pendency’ of Suit No. K/142/2008 was an abuse of Court process? (Ground 1 & 2)
Ii. Whether the leasehold of the appellant was not validly determined in line with the agreement of parties?
(Ground 3, 4)
iii. Whether there is any ambiguity in the order for mesne profits ordered against the appellant? (Ground 5).

The Appellant consequently filed a Reply Brief dated 6/7/2015 and filed on 9/7/2015.
?
At the hearing of the appeal on

2/2/2016, Counsel to the Appellant adopted his Brief of Argument and the Reply thereof and prayed this Court to allow the appeal while the learned Counsel to the Respondent adopted his Brief and urged the Court to dismiss the appeal.

I shall formulate 2 issues for the determination of this appeal:
1. Whether instituting this suit at the lower Court vide an originating summons during the ‘pendency’ of suit No. K/142/2008 was an abuse of Court process.
2. Whether the leasehold of the Appellant was not validly determined and a proper order made against the Appellant.
ISSUE ONE:
Whether instituting this suit at the lower Court vide an originating summons during the ‘pendency’ of Suit No. K/142/2008 was an abuse of Court process.

It is submitted by the learned Counsel to the Appellant that filing another suit where there is an existing suit between the same parties and of same subject matter is an abuse of Court process. He submitted that while suit K/142/12008 was pending, the Respondent went ahead to file suit K/30/2013, which is an abuse of Court process. He cited

SEVEN UP BOTTLING CO. VS. ABIOLA AND SONS BOTTLING CO. LTD. (1996) 7 NWLR (PT.463) 714, CHRISTIAN OUTREACH MINISTRIES INC. V. COBHAM (2006) 15 NWLR (PT.1002) 283 AT 4, PAVEX INTERNATIONAL CO. LTD. V. IBWA (1994) 5 NWLR (PT. 347) 685, OKORODUDU V. OKOROMADU (1977) 3 SC 21 AT 32 LINES 4-14, ALHAJI MUHAMMADU MAIGARI DINGYADI & 1 ORS. V. INEC & 2 ORS. (2010) VOL 42 (PT.2) NSCQR 666 AT 738. It is argued that in determining abuse of Court process, the contents of the two suits must be considered. He quoted AGWASIN V. OJICHIE (2004) 10 NWLR (PT.882) 613. He contended that the two suits are the same and suit K/30/2013 should have been dismissed.
He relied on UNIFAM IND. LTD. v. OCEANIC BANK INT’L (NIG) LTD (2005) 3 NWLR (PT.911) AT 83.
?
It is further contended that where there are hostile and contentious issues in a suit as in the present one, the proper method for commencement is by writ of summons. He relied on DOHERTY v. DOHERTY (1969) NMLR 24. He argued that Clause 2(f) of Exhibit JO1 cannot be determined in isolation of the other clauses. Thus, documentary evidence is a hanger to oral testimony. He relied on CAMEROON AIRLINES V. OTUTUIZU (2011)

VOL. 45 (PT.2) NSCQR 962 AT 985 PARAS C-D, KINDLEY V. A.G. OF GONGOLA STATE (1988) 2 NWLR (PT. 77) AT 473. He argued that the trial Court failed to heed to the provision of Order 38 Rule 8(2),(3) of the Kano State High Court (Civil Procedure) Rules, 1989. He prayed this issue be resolved in his favour.

The Respondent’s learned counsel on the other hand has conceded that although the two suits K/142/2008 and K/30/2013 are similar and the former subsists, the cause of action in the latter crystalized in 2012, hence are not simultaneously actionable nor constitute abuse of Court process. He relied on B.G.D.C. & DC v. CIA MAR SI ISOLA SPETSAI (1962) NSCC VOL.2, UKACHUKWU V. UBA (2005) 18 NWLR (PT. 956) 1 @ 63 PARA C-G.

On the adoption of Originating Summons in the suit against the Appellant, he settled that there is no dispute between the parties herein that cannot be conveniently settled and resolved by both the available affidavit and documentary evidence. He maintained that as a matter of fact, the averments in the affidavit to the originating summons were never challenged nor controverted but rather corroborated by Paragraphs 3(a)-(y) of the

Appellant’s Counter affidavit. Thus, the Court can rely on it. He cited SECTION 75 OF THE EVIDENCE ACT, 2011, OYEWINLE V. IRAGBIJI (2014) ALL FWLR (PT. 731) 1536 @ 1576, NASIR V. CSC, KANO STATE (2010) 5 NWLR (PT. 1190) 253 @ 267. It is thus his argument that the documents before the Court will not admit of any oral evidence to resolve any conflicts in the affidavit evidence. He relied on NNWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY (1990) 2 NWLR (PT. 135) 688 @ 718, 7UP BOTTLING COMPANY PLC V. LAGOS STATE INTERNAL REVENUE BOARD (2000) NWLR (PT. 650) 565 @ 615 PARAS E-G, OYEFESO v. OMOGBE (1991) NWLR (PT.187) @ 614 – 615 PARAS F-F. It is his submission that the Originating Summons process does not contemplate absence of factual dispute but substantial dispute. He relied on JIMOH v. OLAWOYE (2003) 10 NWLR (PT. 828) P.307, PP 346-348 PARAS F-E. He urged that this issue be resolved in his favour.

It is the Appellant’s case that there was an abuse of Court process when the Respondent while suit K/142/2008 was pending went ahead to institute suit K/30/2013 whose parties and subject-matter are the same or similar. In the instant appeal, it is evident

that that while suit K/142/2008 was pending, suit K/30/2013 was again instituted which are of same parties and subject matter. Having read the facts, reliefs, the parties, and subject-matter in the two suits above, it is apparent that they are the same save that of course, the causes of action arose at different times. Besides, it has been conceded by the Respondent’s Counsel at paragraphs 3.2-3.3 that the parties and subject matter are the same save that the cause of action in suit K/142/2008 fell due in 2007 while that of suit K/30/2013 crystalized in 2013. Where there is multiplicity of suits on same parties and subject-matter, it constitutes an abuse of Court process. The Supreme Court Per Chukwuma-Eneh, JSC in UMEH v. IWU (2009) 8 NWLR (PT.1089) 225 held that abuse of Court process simply in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using Court process as obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due administration of justice. See also OKORODUDU

v. OKOROMADU (1977) 3 SC 21.

relief or remedy already claimed; but rather on the basis of the true state of the facts or the true relief or remedy which the parties really and finally intend to rely on or to claim…
Sometimes the litigant may find it necessary to revise his own pleading to re-state or re-frame his case, before the action proceeds to trial in order to bring out ‘the rear question inÂ controversy’ between the parties.”
Where however the application for amendment to bring in new facts or to fit them in is refused, there is need for the abatement and discontinuance of the original since the fresh case will necessarily incorporate and embody all fresh and current facts.
?Nevertheless, the Respondent failed to tow this line of action but went ahead to file suit K/30/2013 while suit K/142/2008 was never discontinued against the Appellant. There is obviously a multiplicity of suits herein and it does not matter that the cause of action arose or crystalized at different times. In IREPODUN-IFELODUN LOCAL GOVERNMENT v. BALEMO (2007) LPELR-8439(CA), the Court in other decisions had abundantly tackled the issue involved in this case when it held variously as follows:

“… Of course from the authorities of FOKO VS. FOKO, SOLANKE VS. SOMEFUN Supra, the Supreme Court has held that amendment can be made by introducing a new cause of action or substituting a fresh one for the original provided the facts in the additional new cause are substantially same with that of which the plaintiff has already claimed relief which is exactly the scenario that has been created in the instant case. …Where you can see your way, without risk of failure of justice, to allow the cause to be decided on its full merits, every Court of justice is bound to do so. … It would therefore be most unconscionable for the parties if the plaintiffs/Respondents are deprived of the incorporation of the claim and reliefs sought in the amendment. The filing of a new suit on the cause of action, which according to the Appellants arose after joining of issues, would tantamount to waste of judicial time and money and indeed make room for multiplicity of actions, which is incompatible with the intendment, and spirit of Order 26.
…It goes to show that the incorporation of a new cause of action in the course of an amendment has not been absolutely

prohibited by the Rule. By parity of reasoning, it would appear that where an amendment incorporates a cause of action which might have been anticipated at the time the original writ of summons was issued or that the cause of action sought to be incorporated by way of amendment arose out of the same set of facts or transactions’ it would be desirable to incorporate it to the original suit so as to be tried and the issues in controversy determined at once…”
See also FOKO V. FOKO (1968) NMLR 441, AND OLU SOLANKE v. G. SOMEFUN & ANOR. (1974) 1 S.C 141, OGWUMA ASSOCIATED COMPANIES LTD V. I.B.W.A. (1988) 1 NWLR 659, IPADEOLA V. OSHOWOLE (1987) 3 NWLR (PT.59) 18 AT 33.

There is also the issue of the impropriety of the use of Originating Summons by the Respondent to institute this suit at the trial Court. It must be observed that this suit is for recovery of premises upon the determination of a lease agreement founded on contract between the parties as evidenced by the documentary evidence contained especially in pages 8-15 of the records. It is advisable that where the facts are not contentious, Originating Summons procedure should be adopted. In

FAMFA OIL LTD. V. A.G. FEDERATION (2003) 18 NWLR (PT.852) 453, it was held:
“The very nature of an originating summons is to make things simpler for hearing. It is available to any person claiming interest under a deed, will or other written instrument whereby he will apply by originating summons for the determination of any question of construction arising under the instrument for declaration of his interest It is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to their existence in the dealings of the parties to the suit. In such a situation, there is no serious dispute as to facts but what the plaintiff is claiming is the declaration of his rights.”

In the instant appeal, it is the construction of the said contract or lease agreement that this Court is called to consider. I cannot see the disputes or contentions in this case that cannot be resolved by the documents herein available and the evidence of witness is not indispensable. The Apex Court on this stated in EZEIGWE v. NWAWULU (2010) 4 NWLR (PT. 1183) 159 S.C that originating Summons procedure is adopted where the sole or principal question

at issue is, or is likely to be that of the construction of a written law or of any instrument made under any written law; or where there is likely to be no or any substantial dispute of law or of any deed, will, contract or other document or some other question relevant to the determination of the issue in controversy.

The proper procedure for the institution of the suit was adopted. This issue therefore cannot be sustained and same is resolved against the Appellant.
ISSUE TWO:
Whether the leasehold of the Appellant was not validly determined and the proper order made against the Appellant.

It is the submission of learned Counsel to the Appellant that by Exhibits JO1 and 3, the leasehold between the parties was not determined on 28/2/2012. That since the Respondent failed to execute Exhibit 3, time ceased to be of essence to determine the leasehold on 28/2/2012 by virtue of the subsistence of clause 1 in Exhibit JO1 which empowers the Appellant with an option to renew at a rent to be mutually agreed and clause 5(a)(b) which empowers the parties to arbitration where

agreement on rent fails. He relied on OPARA V. D.S. (NIG) LTD (1995) 4 NWLR (PT.390) 440 AT 459. Again, that for time to be of essence under Exhibit 3, the lease from 1/3/2007-28/2/2012, must be created by deed which is not the case here.
Therefore, that Exhibit JO1 created a continuous renewable lease with an option of renewal to the Appellant.

Similarly, it was contended that the judgment of the trial Court that the Appellant shall pay mesne profit from March, 2012 until possession is vague, which Courts are warned against. He relied on ADMIN/EXECUTORS V. EKE SPIFF & 3 ORS. (2009) 37 NSCQR 364 AT 396. He contended that the Respondent did not plead material facts regarding rents accruable as well as mense profit and that he who asserts must prove, and special damages must be specifically pleaded.
He relied on NEWBREED v. ERHOMOSELE (2006) 26 NSCAR 47 At 71, 72, XTOUDOS LTD. v. TATSEI (2006) 26 (PT. 11) 1185 AT 1204, ADECENTRO LTD. V. O.A.U. (2005) 22 (PT I) NSCQR 161 AT 181. He urged this Court to resolve this issue in his favour and allow the appeal by setting aside the judgment of the trial Court.

On this

issue, it is the submission of the Respondent’s learned Counsel that the leasehold was validly determined since the parties are in agreement that the leasehold was only renewable for a tenure of 40 years granted to the Respondent by the Kano State Government, whose duration ended in 2012. Also, that there is a valid and subsisting lease in Exhibit JO1 with all the ingredients of a lease and subsequent renewal does not diminish its potency. He relied on INTERNATIONAL TEXTILE INDUSTRIES LIMITED V. ADEREMI (1999) 8 NWLR (PT.614) P. 268 @ 311, UNITED BANK FOR AFRICA PLC V. TEJUMOLA & SONS LIMITED (1988) NSCC (PT.1) 945; (1988) 2 NWLR (PT.79) 662. He maintained that the clause to renew was to be made 3 months before the expiration of the lease which the Appellant failed. He relied on AGBAJE v. BANKOLE (1971) 1 ALL NLR 225. Again, that the renewal option was within the lifespan of the certificate of occupancy granted to the Respondent in 1972, which disentitles the Appellant from a renewal. Thus, that the lease was determined by the spirit and letter of Exhibit JO1.

It is his view that the order of mesne profit made by the trial Court is founded in law.

More so, that the Respondent’s originating summons was unchallenged and should be relied on. He cited Section 75 of the Evidence Act, 2011, OSENI v. BAGULU (2009) 18 NWLR (1122) 164 SC. He stated that there are facts justifying the grant of mesne profit by the trial Court and on the meaning of mesne profit, he relied on AFRICAN PETROLEUM LIMITED V. OWODUNNI (1991) 8 NWLR (PT.210) P.391 @ 417 PARAGRAPH G. UMENYI V. EZEOBI (1990) 3 NWLR (PT. 140) 621 CA, UDIH V. IZEDONMWEN (1990) 2 NWLR (PT. 132) 357 CA, HALSBURY’S LAWS OF ENGLAND (4TH EDITION) AT VOLUME 27 PAGE 197 PARAGRAPH
255. He submitted that in the absence of specific amount stated, this Court can make an order under SECTIONÂ 15 OF THE COURT OF APPEAL ACT that the mesne profit to be paid by the Appellant is N1,000,000.00 per annum or the pro rata value of the last annum rent. He urged that this issue be resolved in his favour and the appeal dismissed.

The crux here is whether the leasehold of the Appellant was validly determined. It is to be noted that the leasehold agreement between the Appellant and the Respondent was entered into since 9/4/1973 and guided by

Exhibit JO1l herein “the Indenture” particularly contained at pages 8-12 of the records. It is on record that before the institution of this suit, there have been several renewals and agreements between the parties spanning from 1973 to 2012. On the determination and termination of the leasehold, it is pertinent to observe that the option and right of termination of the lease was vested in both the Subleasor and the Sub-leasee herein the Respondent and Appellant respectively.
Thus, Clauses 4(d)& (e) of the Indenture must be resorted to which provide as follows at page 10 of the records:
4 (d) “The sublessee may terminate this sublease at any time by giving to the Sublessor at least three (3) calendar months’ notice of its intention to do so and in such an event this sublease shall absolutely determine at the expiration of such period of notice PROVIDED that the obligations of the subleasee in the event of such termination shall be in accordance with the provisions of clause 2(f) hereinbefore appearing and without prejudice to the right of the Subleasor to retain any advance rental already paid to him.”
4(e) “That the subleasor will on the

written request of the subleasee made three(3) calendar months before the expiration of the term hereby created and if there shall not at the time of such request be any existing breach or non-observance of any of the covenant on the part of the subleasee hereinbefore contained subject always to the consent of the appropriate Ministry of Government first being had and obtained at the expense of the sublease grant unto the Subleasee a lease of the demised premises for the remainder of the term of the above certificate of occupancy… day from the expiration of the term hereby granted at a rent to be mutually agreed by the parties hereto and subject otherwise to like covenants and provided as are herein contained (except this covenant for renewal),”

Before this Court at page 13 of the records is “RE: LETTER OF EXPRESSION OF INTENTION/OPTION TO RENEW CONOIL’S LEASESHOLD INTEREST ON LAND UPON WHICH CONOIL FILUNG STATION KANO-ZARIA/KANO-MAIDUGURI ROAD, KANO” dated
20/3/2012 that sought for the option to renew the leasehold by the Appellant. In response at page 14 is the Respondent’s letter of disinterestedness to renew the lease and

demand for possession dated 27/4/2012. Further, at page 15 is the Respondent’s “7 DAY NOTICE TO OCCUPIER OF OWNER’S INTENTION TO APPLY TO RECOVER POSSESSION” dated 12/10/2012.
By virtue of Clause a(e) of Exhibit JO1, the Respondent is bound to “grant unto the Subleasee a lease of the demised premises for the remainder of the term of the above certificate of occupancy …day from the expiration of the term hereby granted at a rent to be mutually agreed by the parties hereto and subject otherwise to like covenants and provided as are herein contained (except this covenant for renewal).” Construed therefore is that granting the option for renewal to the Appellant is not subject to any covenant contained in the Indenture. Further, it is also subject to “the remainder of the term of the above certificate of Occupancy” which was to expire and lapse in 2012.
Thus, the renewal option was within the lifespan of the Certificate of Occupancy granted to the Respondent on 9/11/1972 as evidenced on page 8 of the records containing the Certificate of Occupancy granted to the Respondent by the Kano State government. This automatically implies that the option for

renewal could no longer be exercised since the 40 years lifespan of the Certificate of Occupancy had lapsed in 2012, that is, from 9/11/1972 to 8/11/2012.

Again, the option to renew was to be “made three(3) calendar months before the expiration of the term hereby created”. Thus, the Appellant should have written to the Respondent 3 months before the actual renewal date of 28/2/2012, being in December, 2011. It is therefore inferable that this was to be made in December, 2011 and not on 20/3/2012, when it was actually made by the Appellant’s Solicitor. In BATA NIGERIA LTD v. GEORGE (1985) LPELR-21153(CA), it was held that “The option to renew in the sublease created an estate contract which in the particular circumstances of this case the respondent has not taken up.” similarly, in ADEJUMO v. DAVID HUGHES AND COMPANY LTD (1989) LPELR-20454 (CA), Per AKPATA, J.C.A., held:
“It is also stated in Halsbury’s Law of England, 4th Edition, Vol 27, paragraph 113, page 92, cited by Mr. Davies, that:
‘A tenant who wishes to exercise an option to renew must conform with the condition in the lease as to its exercise, and those conditions will be strictly

construed.”

From the foregoing, there was a valid determination of the leasehold between the Appellant and the Respondent since on 28/2/2012 by virtue of Exhibit 3 at page 70 of the records. This being the case, the Appellant was bound to deliver up possession to the Respondent at most 7 days after 28/2/2012. But since he is still in possession even up to this moment, the Respondent is entitled to mesne profit.

Although it is contended by the learned Counsel to the Appellant that the trial Court made a vague order with regard to the payment of mesne profit, he did not cite any authority to assert that mesne profit must be specifically pleaded and I am yet to see one since it is unliquidated. It was held in ODUTOLA V. PAPERSACK (NIG.) LTD (2006) NWLR (PT.1012)470. that ‘mesne profit’ is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such tenant gives up possession. 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 therefore he must pay over to the true owner as compensation for which he

has committed.

I must stress that the learned Counsel to the Appellant misconceived what mesne profit means as same cannot be liquidated like rent. In AYINKE v. LAWAL (1994) 7 NWLR (PT.356) 263, it was held as follows:
“…while rent is liquidated and operative during the subsistence of a tenancy, mesne profits are unliquidated and only start to run when the tenancy expires and the tenant holds over. Mesne profits are generally calculated on the yearly value of the premises and a landlord is certainly not bound to use the rent payable during the tenancy as a yardstick in his determination of mesne profits.”
see OSARAWU V. EZEIRUKA (1978) G – I S.C 135, AHMED DEBS AND OTHERS V. CENICO NIGERIA LTD. (1986) 3 NWLR (PART 32) 846 AT 55A MARINE & GENERAL ASSURANCE COMPANY LTD. V. ROSSEK & ANOR (1986) 2 NWLR (PART 25) 750 AT 763.

Where the rent represents the fair value of the. premises, mesne profits shall be assessed at the amount thereof; but where the real or actual value of the premises exceeds the reserved rent, then of course, mesne profits are assessed at such higher rate or figure. See CLIFTON SECURITIES LIMITED V. HUNTLEY

(1943) 2 ALL E.R. 283.
Mesne profits may therefore be equated with fair, real or actual value of the use and occupation of premises during the period the premises is held over by a person in wrongful possession thereof. They are not necessarily commensurate with the rent reserved in the expired lease since the value of the premises might either have increased or, indeed, fallen during the tenancy. See AYINKE v. LAWAL (SUPRA). Being unliquidated and based on the fair open market annual value of the premises, the rate of mesne profits are at large; their assessment is not necessarily based on the reserved rent and the tenant who holds over is liable to pay to the landlord the fair or actual value adjudged by the Court to be due for use and occupation of the premises. See ADEBANJO V. TENESSE NIGERIA INC. (1974) 2 S.C.1.

Although the Respondent ought to have abated or discontinued suit K/142/2008 after the institution of suit K/30/2013 or that the trial Court should have dismissed suit K/30/2013, I shall by the provision of Section 15 of the Court of Appeal Act, order that suit K/142/2008 be discontinued against the Appellant.

Nevertheless, since suit K/30/2013 is encompassing of the current facts and disputes and seems to bring in fine all the disputes of the parties, discontinuing suit K/30/2013 will not meet the justice of this case. It is therefore trite that it is not every slip or error in judgment that will inevitably cause it to be set aside. See ALLI V. ALESINLOYE (2002) 6 NWLR (PT.660) 177 AT 213. Thus, the 2 issues are resolved against the Appellant.

The judgment of the Kano State High Court, holden at Kano in Suit No.K/30/2013, delivered on 30/5/2013 by Hon. Justice Tani Yusuf Hassan, (as he then was) is hereby upheld. Consequently, the appeal fails and is hereby dismissed. Thus, the Appellant shall pay to the Respondent from 28/2/2012 the sum of N1,000,000.00 (One Million Naira) to 28/2/2016 being N4,000,000.00 (Four Million Naira) and calculated pro rata monthly as time passes on. I make no order as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.:
I have had the advantage of a preview of the erudite judgment prepared and delivered by my learned brother, UWANI MUSA ABBA AJI, JCA, with which I entirely agree with both the

reasonings and conclusion, that the appeal lacks merit, and be dismissed. I abide by the order made, including that on cost.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.:
I have had the privilege of reading before now the Judgment of my learned brother Uwani Musa Abba Aji ICA and am in agreement that the appeal of the Appellants against the Judgment of the lower Court fails. I also dismiss it with the orders as made in the lead Judgment.

Appearances

CHARLES ASOGWA, ESQ. For Appellant

AND

ABDULHAFEES D. KHALID, ESQ. For Respondent