DR. VERONICA CHAKA v. MESSRS AEROBELL (NIGERIA) LTD (2012)

DR. VERONICA CHAKA v. MESSRS AEROBELL (NIGERIA) LTD

(2012)LCN/5163(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 21st day of February, 2012

CA/L/267/1994

RATIO

FUNDAMENTAL PRINCIPLES OF THE TWO CLASSES OF TENANCY

It is a trite fundamental principle, that there are two classes of tenancy: (i) contractual tenancy and (ii)statutory tenancy. See PAN ASIAN AFRICAN CO. LTD v. NICON (supra) 1; SULE v. NIG. COTTON BOARD (supra) 17; ODUYE v. NIG (supra) 126, respectively. In the case of ODUYE VS. NIG AIRWAYS LTD (supra) in particular, the Supreme Court was reported to have asserted, inter alia, that: When a person occupies premises lawfully he becomes a protected tenant qua a status arising from statutory tenancy, it would not matter he pays regular rent, subsidized rent or indeed, no rent. What is necessary is lawful occupation. It applies to public servant as well as parastatals, domestic servants as well as people paying commercial rent. It is certainly not a pleasant situation for the Landlord to harbor a tenant imposed upon him by statute. But then what is created is an anomalous situation where a person holds over and continues in possession of a premises contrary to the will of the landlord who strongly wants to turn him out. Per Eso, JSC at 141 paragraphs D – E. PER. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

THE POSITION OF THE LAW WHERE A STATUTORY TENANT NO LONGER HAS AN ESTATE

It is equally important to reiterate the trite principle, that the fact that a statutory tenant no longer has an estate notwithstanding. His status is no less than that of a contractual tenant, as far as his right of possession is concerned. This is absolutely so, because the tenancy of a statutory tenant derives its right and authority from the statute in question; as in the instant case, the Rent Control And Recovery Possession Premises Law (supra). See ROE VS. RUSSEL (1928) 2 KB (1952) AC 61 At 72 – 74; HILLER VS. UNITED DIARIES (LONDON) LTD (1934) 1 KB 57.Contrariwise, the true nature of a tenancy-at-sufferance vis-a-vis its relationship with other forms of tenancy is often misconceived. As alluded to above, a tenant who goes into possession of a premises on the basis of a contract with the landlord, or a valid agent thereof, is known as a contractual tenant. Such a tenant is entitled to hold on to the estate contracted upon in accordance with the terms and conditions thereof. However, once the contractual tenancy is determined (comes to an end) by efluxion of time, et al, and the tenant, for whatever reason, holds on the property without the landlords’ consent or agreement, then he becomes, what is known under the common law, a tenant-at-sufferance. Under the common law, a tenancy-at-sufferance takes the form of either a tenancy at will or a periodic tenancy. According to Megarry – A tenancy at sufferance arises where a valid tenancy, holds over without the landlord’s assent or dissent. Such a tenant differs from a trespasser in that his original entry was lawful, and from a tenant of will in that his tenancy exists, without the landlord’s assent. No rent, as such, is payable, but the tenant is liable to pay compensation for his use and occupation of the land. The tenancy may be determined (re terminated) at any time, and may be converted into a yearly or other periodic tenancy in the usual way, e.g. if rent is paid and accepted with reference to a year in circumstances where the parties intended there to be a tenancy. See A Manual of the Law of Real property, 6th edition, 1993 at 319; BLACK’S LAW DICTIONARY, 9th Edition, 2009, at 1604. PER. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

ON THE MEANING OF A STATUTORY TENANT

IN the case of PAN ASIAN AFRICAN CO. LTD VS. NATIONAL INSURANCE CORP. (NIG) LTD (19821 9 SC 1 at 13, the Supreme Court was reported to have aptly expounded the trite principle thus:
Put simply, the statutory tenant is an occupier who when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions. He has also been described as that anomalous legal entity . . . who holds the land of another contrary to the will of that other person who strongly desires to turn him out. Such a person will not ordinarily be described as a tenant.
Per Idigbe, JSC at 13. See also SHITTER VS. HERSH (1922) 1 KB 438 at 448. PER. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

THE PRINCIPLE OF THE LAW ON A CLAIM FOR MESNE PROFITS

FUNDAMENTAL DISTINCTIONS BETWEEN A CLAIM FOR RENT AND A CLAIM FOR MESNE PROFITS

JUSTICES:

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

DR. VERONICA CHAKA – Appellant(s)

AND

MESSRS AEROBELL (NIGERIA) LTD – Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Lagos State, Lagos Judicial Division, holden at Lagos, Coram the Hon. Justice A, O. Silva in Suit No. LD/1212/1992. The Judgment in question was delivered on September 21, 1994 in favour of the Respondent, against the Appellant. Dissatisfied with the said Judgment, the Appellant filed the instant appeal on September 22, 1994, in the Court below.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL:
It is evident from the records of appeal, that on 12/8/1992 the Respondent had caused a writ of summons to be filed in the court below seeking the following reliefs against the Appellant:
(1) Possession of all that apartment known as Flat 4 No. 9 Bornu Crescent Apapa in the Lagos Judicial Division of Lagos State.
(2) Mesne profit for use and occupation of the premises from 28th day of January 1991 at the rate of N50,000.00 per annum until vacant possession is delivered.
(3) Cost of this action assessed at N5000.00
GROUND FOR SEEKING POSSESSION
(i) SUBSTANCIAL RENOVATION
(ii) PERSONAL USE.
pleadings having been settled by the respective parties, the case eventually proceeded to trial. At the conclusion of which, the court below delivered a Judgment granting the Respondent’s claim to the following effect:
In the result, the Plaintiffs claims succeed.
The Defendant is ordered to vacate and give up possession of Flat No. 4 which she presently occupies at 9 Bornu Crescent, Apapa, to the Plaintiff on or before 30th September 1991.
It is further ordered (1) that the Defendant shall pay to the Plaintiff the sum of N58, 000 for use and occupation of the premises from 28th January 1997 to March, 1992 at the rate of N50, 000 per annum. (2) that the Defendant shall pay mesne profit to the Plaintiff at the rate of N50,000 per annum with effect from 1st April, 1992 until possession is given up.
I believe this is a fair rent for the Flat in that area of Lagos notwithstanding the opinion evidence of PW2 about current rental value of Flats in Apapa in 1994.
The Defendant’s counter claim fails and it is dismissed. I award N500 cost to the Plaintiff.
The Appellant’s notice of appeal, filed on 23/9/94, is predicated upon three grounds. Not unnaturally, the Respondent deemed it expedient to file a notice of cross-appeal on 20/12/94.
Both parties have filed and served their respective briefs of argument regarding the appeal and the cross-appeal in question. The Appellant’s brief of argument was filed on 24/8/95. The Respondent/Cross-Appellant’s brief was filed on 10/7/97. The Cross-Appellant’s Reply Brief was filed 14/11/01, but deemed properly filed on 15/01/02.
It should be observed, at this point in time, that on 06/12/11 when the appeal last came up for hearing the Appellant’s counsel was not in court. Thus, considering the age of the appeal, the court in its own wisdom deemed it expedient to deem the appeal as having been argued on the respective briefs of the parties. The appeal was accordingly reserved for delivery of judgment. See order 18 Rule 9(4) of the Court of Appeal Rules, 2011.
In the said brief thereof, the Appellant has formulated three issues for determination, viz:
i. whether having regards to the Provisions of Rent Control & Recovery of Premises Law No. 9 of 1976 of Lagos State, an assignee who has equitable interests in a land subject to tendency, can issue a valid Statutory Notice to Quit to the tenant.
ii. Whether a Statutory Notice issued by a landlord who is not a party to the suit can be used by an assignment of the property in proceedings for recovery of premises
iii. Whether Mesne Profits payable by Statutory Tenant can differ in terms from agreed provision of his original tenancy.
On the other hand, the Respondent has in the said brief thereof raised two issues for determination, to wit:
(a) Whether the Statutory Notice issued by a divesting Land Lord on his tenant cannot he effectively used by his successor-in-title or assignee who has completed the apartment of their agreed purchase price in recovery proceedings against the tenant.
(b) Whether or not a successor-in-title or assignee is entitled to an award of mesne profit from a tenant
after his tenancy has been validly determined by the previous owner but held over possession from the new owner.
It’s instructive to note, at this point in time, that the three issues raised in the Appellant’s brief of argument were argued together by the learned counsel.
The submission of the Appellant’s learned counsel on the three issues is to the effect, inter alia, that the subject of the appeal is covered by the provisions of the Rent Control & Recovery of Premises Law No. 9 of 1976 of Lagos State. It was contended, that it’s settled law that the Rent Control & Recovery of Premises Law (supra) recognizes two classes of tenants, contractual and statutory. For that proposition, reliance was placed on PAN ASIAN AFRICAN CO. LTD VS. NICON (1982) 9 SC1; SULE v. NIGERIA COTTON BOARD (1985) 2 NWLR (Pt.5) 17; ODUYE VS. NIGERIAN AIRWAYS (pt. 55)126 at 141, respectively.
According to the learned counsel, in each of the aforecited authorities, the Supreme Court relied on section 40(1) of the Rent Control & Recovery of Premises Law (supra) which defines the term ‘tenant’. Thus, it’s argued, that at the expiry of her tenancy contract, the Appellant had become a yearly statutory tenant. See AFRICAN PETROLEUM LTD V. OWODUNNI (1991) 8 NWLR (pt.210) 391 at 413, per Nnaemeka-Agu, JSC; THYNNE VS. SALMON (1948)1 KB 482 at 484: MOODIE VS. HOSE GOOD (1952) AC 61 at 72 – 74.
It was argued, that for the lower court to make an order for possession against the Appellant, the two statutory notices – (i) Notice to quit and (ii) Notice of Intention To Apply For Possession – must be issued from the landlord. In the present case, the said notice was allegedly not issued in the name of the landlord, who had the legal right to do so, but in the name of the Respondent who’s equitable interest in the property. Thus, the said notice is irregular, void and of no consequence. See AICEJU VS. SHONIBARE (196812 ALL NLR 159; AFRICAN PETROLEUMÂ Â LTD (1991) 8 NWLR (pt. 210) 319 at 414 paragraph H; PAN ASIAN AFRICAN CO. LTD v. NICON (1982) 9 SC 1; CANAS PROP. CO. LTD. v. K.L. TELEVISION SERVICES LTD (1970) 2 QB 433.
It was finally argued, that the award of the mesne profits by the lower court was manifestly inconsistent with the state of the law. The court has been urged to accordingly set aside the judgment in question.
As alluded to above, the Respondent has raised two issues in the brief thereof.
The resolution of the first issue raised in the Respondent’s brief allegedly calls for an examination of both the Rent Control And Recovery of Residential Premises Law (supra) and the Tenancy agreement between the parties. The provision of section 16 of the Rent Control Law (supra) was copiously referred to; to the effect that the length of notice to be given to a tenant shall depend on whether or not there is an express stipulation between the parties. In the instant case, the agreement was allegedly for a fixed term of one year certain, to the effect that the parties were both aware of the date of expiration of the agreement. See NWEKE VS. IBE (1974) 4 ECSLR 54.
It was contended, that having given notice of sale [of the property] to the Appellant, and the subsequent exemption of a sub-lease agreement for a fixed term of one year, and final determination of the said sublease agreement by the previous owner, the Respondent can commence a recovery action in its name. See OBIJURU VS. OZIMS (1985) 16 NSCC (part 1) 430 at 431.
The court has been urged to hold that the Respondent had the locus [standi] to institute the action against the Appellant.
Regarding the second issue, it was submitted that the sub-lease between the Appellant and her previous landlord has created a privity of estate between them, thus the benefit and burden must be shouldered by the Appellant. That, rent touches and concerns the land, thus it is a service incident to the tenant’s estate. See MEGARRY & WADE 4th edition, at 734; SPENCERS CASE (1586) 5 CORE 159; TOHNSON VS. DEBS (1936) 13 NLR 73: DEBS AND ANR VS. CHEICO (NIG) LTD (1986) 2 NSCC vol. 17 page 837 at 841 line 1.
It was finally argued, that the Respondent is entitled to claim mesne profit from the Appellant for the period of almost five years the latter held over the premises in question. See AFRICAN PETROLEUM LTD VS. OWODUNI (1991) 18 NWLR (pt. 210) 7 at 18 per Karibi-Whyte, JSC; MARINE & GENERAL ASSURANCE VS. ROSSEK & ANOR (1985) 1 NSCC Vol. 17 page 558 at 559.
I have amply considered the nature and circumstances surrounding the appeal, the submissions contained in the respective briefs of argument of the learned counsel vis-a-vis the record of appeal, as a whole. Most regrettably, however, none of the three issues formulated in the Appellant’s brief was indicated to have been distilled from any of the four grounds of appeal, contained at pages 93 -94 of the Record of appeal. It’s so obvious, that both issues 1 & 2 of the Appellant relate to ground 1 of the notice of appeal Likewise, issue 3 of the Appellant relates to ground 2 of the notice of appeal. Strangely, however, the 3rd ground of appeal has no bearing whatsoever to any of the three issues raised in the Appellant’s brief. Thus, that being the case, the said ground 3 of the notice of appeal is at large, deemed abandoned, and same is hereby struck out. Ground 4 of the notice of appeal is essentially an omnibus ground, it is not based on any particulars.
Having appreciated the fact that both issues 1 & 2 of the Appellant’s brief are related to ground 1 of the notice of appeal, it would amount to a proliferation of issues for the Appellant to argue them separately. For that reason, issue No. 2 must give way to issue No. 1.
In the circumstance, I would want to believe that both issues 1 & 3 of the Appellant should be adopted for the determination of the appeal. The said issues shall however be remembered as issues 1 & 2.
ISSUE NO. 1:
As alluded to above, issue No. 1 raises the vexed question of whether or not in view of the provisions of the Rent Control and Recovery of premises Law (supra), an assignee who has equitable interest in a land subject to tenancy can issue a valid statutory notice to quit to the tenant.
There’s no doubt that the Rent Control and Recovery of Residential Premises Law 1976 of Lagos State is germaine to the determination of the instant appeal. The laws was promulgated as Edict No. 9 of 1975 with a view to circumscribing the hitherto unlimited powers and rights of over bearing shylock landlords and thereby protect, as far as possible, the interests of endangered tenants. The main object of the law, as concisely captured in the heading thereof, is to the effect thus:-
“An Edict to control the Rent of Residential premises to establish the Rent Tribunals for Determination of Standard Rents, to provide for Recovery of possession and for purposes connected therewith.”
The provision of section 1(1) of the Rent Control and Recovery of Residential Premises Law (supra) is to the effect that –
(1) “This Edict (law) shall apply to all residential accommodation throughout Lagos State.”
The subject matter of this appeal is a residential accommodation, within the purview of section 40(1) of the law (supra) which defines accommodation to include:
residences so approved by the building approving authorities designated by the state as residences regardless of user, all buildings as residences as from the commencement of this [law] and all other buildings whether or not approved by the building approving authority but used as residences.
On the other hand, the term ‘premises’ has been defined by section 40(1) (supra) as –
“a house or building or any paint together with its gardens or other a appurtenances.”
The tenancy agreement entered into, on 04/04/90, between Epega & coy and the Appellant is contained on pages 9 – 12 of the Record. Paragraph 1 of the said agreement is to the following effect:
1. The Landlord agrees to let and the tenant agrees to take all apartments known as Flat A, No. 9, Bornu Crescent, Apapa, Lagos hereinafter referred to as the dent premises for a fixed term of one (1) year commencing the 28th January 1990, and expiring on the 27th January 1991, at the agreed rent of N8,000.00 (Net of withhol. Tax) payable in advance, (the receipt whereof the Landlord hereby acknowledges).
However, by paragraph 2 of the proviso to the agreement, it was mutually agreed by the Landlord and tenants that –
2. “The lease hereby created may also be determined before expiration by either party giving to the other (3) months notice in writing in that behalf which notice shall determine the tenancy at the expiration of the term hereby created.”
From the tenancy agreement alluded to above, there’s no doubt that the tenancy was expressly fixed to be a yearly tenancy.
By virtue of the Respondent’s averments, contained in the amended statement thereof, dated 02/02/94, the Respondent made it known to the Appellant that it intended to make personal use of the property as its staff quarters. The Respondent thus instructed its solicitors, Messrs Omotayo Adetona & Co. to-
(i) recover possession of the premises in accordance with the law vide its letter dated 16th January 1992.
(ii) process the application to Lagos State Government for consent by the Governor on the transaction which was abandoned by the former counsel Messrs Ibe Aniewelu & Co. The Plaintiff shall rely and found on a copy of the Deed of Assignment lodged with the Lagos State Government for this purpose which was consented to by the Honourable Attorney General and Commissioner for Justice on the 8th day, of November 1993.
In the statement of defence thereof, the Appellant not only denied the Respondent’s claim in its entirety, but also counter claimed against the Respondent.
Both the two fetters regarding the (i) Notice to Quit and (ii) the Notice of Intention to Recover Possession of the premises are contained at pages 13 & 92 of the Record. They were issued on 27/01/91 and 15/4/91, respectively, by Anienwelu of Ibe Anienwelu & Co. on behalf of Benjamin Obafemi-Epega, the previous owner of the property.
It is a trite fundamental principle, that there are two classes of tenancy: (i) contractual tenancy and (ii)statutory tenancy. See PAN ASIAN AFRICAN CO. LTD v. NICON (supra) 1; SULE v. NIG. COTTON BOARD (supra) 17; ODUYE v. NIG (supra) 126, respectively.
In the case of ODUYE VS. NIG AIRWAYS LTD (supra) in particular, the Supreme Court was reported to have asserted, inter alia, that:
When a person occupies premises lawfully he becomes a protected tenant qua a status arising from statutory tenancy, it would not matter he pays regular rent, subsidized rent or indeed, no rent. What is necessary is lawful occupation. It applies to public servant as well as parastatals, domestic servants as well as people paying commercial rent. It is certainly not a pleasant situation for the Landlord to harbor a tenant imposed upon him by statute. But then what is created is an anomalous situation where a person holds over and continues in possession of a premises contrary to the will of the landlord who strongly wants to turn him out.
Per Eso, JSC at 141 paragraphs D – E.Certainly, that’s the position in which the Appellant found herself in the present case. From the outset, when the tenancy agreement was entered into on 04/4/90 in question, the Appellant was a contractual tenant. However, at the expiration of the yearly tenancy, on 27/01/91, the Appellant automatically became a statutory tenant.
In the instant case, the Appellant having been given possession lawfully continues to enjoy the possession of premises given to her by the Respondent until either lawfully evicted by an order of court, or she voluntarily surrenders possession, as she becomes a statutory tenant after the expiration of the tenancy on 03/4/91. That’s indeed the position of the law. See ODUYE VS. NIG. AIRWAYS LTD (supra) 126; AFRICAN PETROLEUM LTD VS. OWODUNNI (supra) 391 at 413; THYNE VS. SALMON (supra) at 484: MODIE VS. HOSEGOOD (supra) at 72 – 74, respectively
Most especially, in the case of AFRICAN PETROLEUM LTD VS. OWODUNNI (supra), it was aptly held by the Supreme Court, thus:
This is because in Lagos State, the Rent c Control & Recovery of Residential Premises Law No. 9 of 1976 has given them protection and security of tenure. Unless he decided to give up possession voluntarily, possession of the premises can only be wrested from him to the court makes an order for
possession against him after due notices to quit and of intention to apply for possession for contractual tenants.
Who hold identical quantum of tenancy himself.
Per Nnaemeka-Agu, JSC at 413 paragraph E – F. See also AMERICAN ECONOMIC LAUNDRY LTD v. LITTLE (1951) 1 KB 400 at 406; SULE v. NIG COTTON BOARD (1985) 2 NWLR (pt. 5) 17.
It is equally important to reiterate the trite principle, that the fact that a statutory tenant no longer has an estate notwithstanding. His status is no less than that of a contractual tenant, as far as his right of possession is concerned.
This is absolutely so, because the tenancy of a statutory tenant derives its right and authority from the statute in question; as in the instant case, the Rent Control And Recovery Possession Premises Law (supra). See ROE VS. RUSSEL (1928) 2 KB (1952) AC 61 At 72 – 74; HILLER VS. UNITED DIARIES (LONDON) LTD (1934) 1 KB 57.Contrariwise, the true nature of a tenancy-at-sufferance vis-a-vis its relationship with other forms of tenancy is often misconceived. As alluded to above, a tenant who goes into possession of a premises on the basis of a contract with the landlord, or a valid agent thereof, is known as a contractual tenant. Such a tenant is entitled to hold on to the estate contracted upon in accordance with the terms and conditions thereof. However, once the contractual tenancy is determined (comes to an end) by efluxion of time, et al, and the tenant, for whatever reason, holds on the property without the landlords’ consent or agreement, then he becomes, what is known under the common law, a tenant-at-sufferance.
Under the common law, a tenancy-at-sufferance takes the form of either a tenancy at will or a periodic tenancy. According to Megarry –
A tenancy at sufferance arises where a valid tenancy, holds over without the landlord’s assent or dissent. Such a tenant differs from a trespasser in that his original entry was lawful, and from a tenant of will in that his tenancy exists, without the landlord’s assent. No rent, as such, is payable, but the tenant is liable to pay compensation for his use and occupation of the land. The tenancy may be determined (re terminated) at any time, and may be converted into a yearly or other periodic tenancy in the usual way, e.g. if rent is paid and accepted with reference to a year in circumstances where the parties intended there to be a tenancy.
See A Manual of the Law of Real property, 6th edition, 1993 at 319; BLACK’S LAW DICTIONARY, 9th Edition, 2009, at 1604

IN the case of PAN ASIAN AFRICAN CO. LTD VS. NATIONAL INSURANCE CORP. (NIG) LTD (19821 9 SC 1 at 13, the Supreme Court was reported to have aptly expounded the trite principle thus:
Put simply, the statutory tenant in an occupier who when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions. He has also been described as that anomalous legal entity . . . who holds the land of another contrary to the will of that other person who strongly desires to turn him out. Such a person will not ordinarily be described as a tenant.
Per Idigbe, JSC at 13. See also SHITTER VS. HERSH (1922) 1 KB 438 at 448.

In the instant case, as alluded to above, there is every cogent reason to believe that the tenancy agreement (pages 9 – 12 of the Record), entered into between the Appellant and Messrs Epega & Co. was a yearly tenancy. Regarding the type of notice that’s applicable in the circumstance, section 16 of the Rent Control and Recovery of Residential Premises Law (supra) has provided that:
1(1) where there is no express stipulation as to the notice to be given by either party to determine the tenancy the following period of time shall be given:
(a) In the cases of a tenancy at will or a weekly tenancy a weeks’ notice;
(b) In the case of a monthly tenancy, a months’ notice;
(c) In the case of a quarterly tenancy a quarter’s notice; and
(d) In the case of a yearly tenancy half a year notices.
Thus, in the instant case, section 1(1) (d) of the law (supra) is very much relevant. That’s to say, being a yearly tenancy, the landlord was required to give a-half year’s (6 months) notice to the Appellant to bring the tenancy to an end. The tenancy agreement (pages 9-12 of the Record) was evidently executed on 02/4/90 by Messrs Epega & Co. (Landlord’s, agent) and the Appellant. However, it was mutually agreed by the landlord and tenant (Appellant) that the tenancy would retrospectively take effect from 27/01/90.
The evidence of pw1, Mr. Victor Ifeanyi Odili, the chairman of the Respondent, was to the effect, inter alia, that the Appellant moved out of the premises, but held on to possession by leaving her sisters still in occupation.
Exhibit 9 i.e. the Deed of Assignment of the property was tendered vide the pw1.
The pw2, David Oyebode Adedeji, was an estate surveyor and valuer by profession, as well as the Managing Director of Messrs Epega & Co. He testified to the effect, inter alia, that the property, No. 9 Bornu Crescent Apapa was sold to the Respondent about March 1990. Consequently, he wrote to all the tenants in the house to that effect. However, a further lease of one year certain, which should expire on 27/01/91 (Exhibit 7), was executed between Messrs Epega & Co. and the Appellant. The Appellant refused to move out of the premises at the expiration of the one year term in question, despite the 6 months extension she was granted to enable her to look for a suitable alternative accommodation. Exhibit 9, the Deed of Assignment in question is to the effect, inter alia, that
“… The assignment therein dated 14th day of March, 1988 and registered on the 18th day of April 1988 under the title MO10689 commencing from the 28th day of May 1990 (the date of these present notwithstanding)”
Thus, in view of the notice of sale of the property duly given to the Appellant, and the subsequent execution of the sublease agreement for a fixed term of one year, there is every cogent reason for me to believe that the Respondent, as assignee of the said property, has the right to commence the recovery action in the name thereof.
Most importantly, by virtue of Exhibit 7, the covenants therein are binding not only on the landlord and tenant but also [any] person whom the property subsequently passes thereto. Undoubtedly, the terms ‘LANDLORD’ and ‘TENANT’ as couched in the tenancy agreement in question include ‘the successors-in little and assigns’ of both the landlord and tenant, respectively.
Therefore, there’s every cogent reason for me to uphold the submission of the Respondent’s learned counsel, to the effect that –
“It is a continuation of the action already commenced by the previous owner which has now been completed by the subsequent assignee once the assignee has completed the purchase price as revealed in evidence”.
As postulated above, the Respondent has been imbued with a locus [standi] to issue a notice to issue a valid notice to quit to the tenant, by virtue of the sale of the property in question thereto vide Exhibit 9. See OBIJURU VS. OZEMS (1985) 15 NSCC (part 1) 430
The answer to issue No 1 is undoubtedly in the positive, and same is hereby resolved against the Appellant.
Issue No. 2:
Issue No. 2 raises the question of whether mesne profits payable by a statutory tenant can differ in terms and conditions from agreed provisions of the original tenancy thereof. The 2nd issue in question is distilled from ground 2 of the notice of appeal.
As alluded to above, the contention of the Appellant (on this issue) is that the awarding of mesne profits by the lower court to the Respondent were manifestly inconsistent with the state of the law.
On the other hand, the Respondent contended that the Respondent was entitled to mesne profits for the five years the Appellant held over the premises.
It is trite, that the term ‘mesne’ (pronounced ‘meen’) literally denotes occupying a middle position or course; intermediate or intervening, especially in time of occurrence or performance; of or relating to a lord who holds land of a superior while himself having a tenant. See BLACK’S LAW DICTIONARY, 8th Edition 2004 at 1011.
However, the term ‘mesne profits’ denotes the profits of an estate received by a tenant in wrongful possession between two dates. See BLACK’S LAW Dictionary (supra) at 1246.

It is a trite principle, that a claim for mesne profits is essentially predicated upon trespass. Thus, as matter of principle, mesne profits is not normally awarded regarding lawful occupation as a tenant. However, mesne profits is maintainable in cases where the tenancy has been duly determined and the tenant is adjudged a trespasser. See AFRICAN PETROLEUM LTD VS. OWODUNNI (1991)18 NWLR (pt.210) at 7 – 18, wherein the Supreme Court held inter alia, thus:
“Because a claim for mesne “profits” is based on trespass and is in appropriate in respect of lawful occupation as a tenant, it can only be maintained when the tenancy has been duly determined and the tenant becomes a trespasser. In the circumstances of this case where a tenant is created by operation of law, the status of trespasser will not arise, until the tenancy is duly determined according to law. See OMOTESHO VS. OLORIEGBE (1988) 4 NWLR (Pt. 87) 225.
However, the lawful use and occupation of the land and premises implies on agreement to pay damages for such use and occupation of the land and premises. It is a quasi tenancy which the law recognizes. It is not based on accepted landlord and tenant relationship.
Per Karibi-Whyte, JCS at 420 paragraphs D – F.In the instant case, I have no difficulty, whatsoever, in appreciating the very obvious fact that the Appellant was a statutory tenant. She had entered into the premises lawfully as a tenant on the basis of the tenancy agreement (Exhibit 7).
Thus, it was a misnomer for the lower court to have awarded the mesne profits in favour of the Respondent. As authoritatively held by the Supreme Court in AFRICAN PETROLEUM LTD VS. OWODUNNI’S case (supra). It is a trite principle that –
A claim for mesne profits is in appropriate when the occupier is still a tenant. In this respect, a statutory tenant such as the defendant in this case, though merely a protected tenant, cannot properly be adjudged to be liable for mesne profits’ unless and until his tenancy has been duty determined according to law.
See AFRICAN PETROLEUM LTD VS. OWODUNNI (supra), per Karibi-whyte, JSC at 417 – 418 paragraphs H – A.

One of the fundamental distinctions between a claim for rent and a claim for mesne profits, is that while a claim for rent is liquidated, that for mesne profits is invariably un-liquidated. See DEBS VS. CENICO (1986) 3 NWLR (pt. 32) 846 at 851; NIGERIAN CONSTRUCTION AND HOLDINGS CO. LTD VS. OWOYELE (1988) 4 NWLR (pt. 90) 588.It should be reiterated, that where, as in the instant case, a tenant enters or remains upon a premises lawfully without an agreement or consent of the true owner, he will only be liable for damages for his use and occupation of the land or premises in question. As such, he shall not be liable to pay rent because in the absence of demise, he no longer has an estate. Afortiori, he shall not be liable to pay mesne profits’, because he is not an adjudged trespasser. See AFRICAN PETROLEUM LTD VS. OWODUNNI (supra) at 418 paragraph C per Nnaemeka-Agu, JSC thus:
So the defendant would be liable for damages for use and occupation. He could not be liable for mesne profits because the element of wrongful and tortuous occupation was absent. In the circumstances for the court of Appeal to have made an award as “mesne profits” for use and occupation was an error.
Indeed, it’s a well settled trite principle, that a claim for mesne profits starts to run from the date of service of the process for determining the tenancy. Contrariwise, a claim for damages for use and occupation starts to run from the date of holding over the property. Thus, it behoves 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.In the instant case, as postulated above, in the obvious absence of unlawful or tortuous occupation of the premises, the Appellant could not be adjudged trespasser. As such, she is not liable for mesne profits. Undoubtedly, she is liable to pay damages for use and occupation of the premises she held over. To use the Hon. Justice Karibi-whyte, JSC’s words –
The use of expression ‘mesne profits’ to describe the damages for use and occupation is a misnomer; and on error, which did not lead to o miscarriage of justice.”In ascertaining the amount that may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant (Appellant), the previous rent is merely a guide, albeit not necessarily conclusive.
In the instant case, the lower court has erred when it ordered the Appellant to pay N58,000.00 for use and occupation of the premises from 28/01/91 to March 1992, at the rate of N50,000.00 per annum, and for mesne profits at the rate of N50,000.00 per annum with effect from 01/4/92 until possession was given up.
Undoubtedly, the additional award of mesne profits is not only punitive, but rather outrageous, thus leading to a miscarriage of justice. As postulated above, the Appellant shall only be liable to pay damages for the use and occupation of the premises in question. Thus, issue No. 3 is resolved in favour of the Appellant.
Hence, in the light of the foregoing far-reaching postulations, I have come to the inevitable conclusion, that the instant appeal is partially meritorious, and it’s hereby allowed in part by me.
CONSEQUENTIAL ORDERS
Consequently, the decision of the lower court to the effect –
(i) That the Appellant shall vacate and give up possession of Flat No. 4 at No. 9 BORNU CRESCENT APAPA to the Respondent or on before 30/9/94, is hereby affirmed.
(ii) That the Appellant shall pay to the Respondent the sum of N58 000 for use and occupation of the premises from 28/01/91 to March. 1992 at the rote of N50.000.00 per annum, is hereby affirmed.
(iii) That the Appellant shall pay mense profits to the Respondent at the rate of N50 000.00 per annum, with effect from 01/4/92 until possession is given up, is hereby set aside.
There shall be no order as to costs.
THE CROSS-APPEAL:
As alluded to above, a notice of cross-appeal, dated 20/12/94, was filed against the part of the judgment of the court below in question. Rather, regrettably, the nomenclature of the parties in the substantive appeal has been erroneously maintained in the cross-appeal. Depicting Dr. Veronica (the Appellant in the substantive appeal) as Appellant and Messrs Aerobell (Nigeria) Ltd (the Respondent in the substantive appeal) as Respondent in the Cross-appeal, is outrageously erroneous, to say the least. This is a typical example of a bad drafting skill.
Be it as it may, the cross-appeal is predicated on a sole ground relating to the award of mesne profits by the lower court. The argument regarding the cross-appeal is contained at pages 11 – 14 of the Respondent’s brief, filed on 10/7/97. A sole issue has been equally formulated at page 11 of the said brief to the effect thus:
“Whether or not a judge has o discretion to exercise in awarding a claim when there is on unchallenged evidence of a professional before him.”
On the other hand, the Cross-Respondent’s argument regarding the cross-appeal is contained in the brief thereof filed on 14/11/01. A sole issue has been equally raised therein at page 2, viz:
Whether a judge faced with an opinion evidence of a witness who has financial occupational interests in the outcome of proceedings, and which evidence was based on speculations from a state of affairs of common public knowledge, has no discretion (even as a member of the public) but to accept the evidence because it was unchallenged.
Ironically, however, there is every cogent reason for me to hold that the cross-appeal is rather a wasteful academic exercise, for some very obvious reasons.
It is rather evident, that the sole issue of the cross-appeal has to do with mesne profits. And the said issue of mesne profits forms the fulcrum upon which the Appellant’s (cross-Respondent) issue No.3 and Respondent’s (cross-Appellant) issue No. 2 were based. Undoubtedly, the issue of mesne profits has already been determined by me under issue No. 2 in the main appeal. Thus, as alluded to above, to proceed to determine the cross-appeal on the merits would tantamount to embarking on a futile and wasteful academic exercise. The cross-appeal has become spent and rather nugatory. And I so hold.

K.B. AKAAHS, J.C.A.: I was privileged to have read the draft of the judgement of my learned brother, Saulawa JCA. He admirably dealt with the issues arising from the appeal and I agree with his reasoning and conclusion that the respondent as assignee of the demised premises is a successor-in-title to the original landlord and so is entitled to maintain an action for the recovery of the premises from the appellant and also claim damages from the appellant who became a statutory tenant on the expiration of the tenancy agreement. The learned trial judge could not award damages and mesne profits at the same time. To that extent the cross-appeal must succeed since the award of mesne profits must perforce be set aside.
Consequently I agree that the main appeal partially succeeds as the award for mesne profits is set aside. The award of damages at the rate of N50,000.00 per annum for the use and occupation of the premises stands.

RITA NOSAKHARE PEMU, J.C.A.: I have had the priviledge of reading in draft the opinion of my brother I.M.M. Saulawa J.C.A. and agree so fully with it that I think it unnecessary to add anything except to adopt his reasoning and conclusions and to add that he had dealt so extensively with the issues distilled from the Grounds of Appeal. There is no doubt that the Respondent has been vested with the necessary locus standi to issue a valid notice to quit to the tenant (as he rightly did), by virtue of the sale of the property in question thereto, vide Exhibit 9.
A cursory look at the covenants inherent in Exhibit 7, show that they bind not only the landlord and tenant but any person to whom the property devolves, as successor or-in-title and/or a n assignee.
I also abide by the consequential order made in the main appeal that the appeal succeeds in part and same is hereby allowed in part by me.
Regarding the Cross-Appeal, I subscribe to the opinion of my brother I.M.M. Saulawa J.C.A. that the Notice of Cross-Appeal dated 20/12/1994, and a fortiori the sole issue of the cross-appeal which has to do with mesne profits having been dealt with in the main appeal, to the effect that the additional award of mesne profits is not only punitive but outrageous (to which I agree). I adopt the reasoning of my brother Judge that the Appellant shall only be liable to pay damages for the use and occupation of the premises in question assessed at N50,000.00 per annum with effect from 01/4/92 until possession is given up.
Thus the Cross-Appeal is moribund and same is hereby dismissed.
There shall be no order as to costs.

Appearances

For Appellant

AND

Y. Buenyen Esq For Respondent