HAJIYA HAUWA TANKO V. KADUNA NORTH LOCAL GOVERNMENT
In The Court of Appeal of Nigeria
On Thursday, the 9th day of May, 2002
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
MAHMUD MOHAMMED Justice of The Court of Appeal of Nigeria
JOSEPH JEREMIAH UMOREN Justice of The Court of Appeal of Nigeria
HAJIYA HAUWA TANKO Appellant(s)
KADUNA NORTH LOCAL GOVERNMENT Respondent(s)
MAHMUD MOHAMMED, J.C.A. (Delivering the Leading Judgment): The dispute between the parties in this appeal started before the High Court of Justice of Kaduna State at Kaduna where the Appellant as the Plaintiff by a Writ of Summons instituted an action against the Respondent which was the Defendant and claimed as follows in paragraph 16 of her Amended Statement of Claim:-
“Where of the Plaintiff claim against the Defendant as follows: –
1. (a) An order against the Defendant to account to the Plaintiff in the sum of N60, 000.00 for the year 1995 being money(s), rent(s) or the like derived from such renting.
(b) An order directing the Defendant to account to the Plaintiff in respect of all money(s), rent(s) or the like that will accrue or find their way into the Defendant’s hands in respect of the restaurants forming part of Mando Motor Park Inn at the rate of N60, 000.00 per annum or as they- may appreciate for the remaining 7 years (1996-2002) i. e N420, 000.00 more.
(c) The Plaintiff claims the sum of N480, 000.00 as damages (particulars already specified in the body of the claim). For unlawful seizure of the two (2) restaurants by the defendant.
2. The sum of N100, 000.00 as damages for trespass.
3. A declaration that the purported revocation of the lease agreement between the Plaintiff and the Defendant vide defendant’s letter of 25th August, 1995 and 31st August, 1995, is wrongful, unlawful, illegal, null and void and of no effect whatsoever and howsoever.
4. The sum of N435, 500.00 as damages being loss of profit or earnings for the unlawful and illegal dispossession of the Plaintiff of the physical possession of Mando Motor Park Inn by the Defendant from 8th September, 1995 – June 1996 (i. e 297 days x 1500 = N435, 500.00) and thereafter N1, 500.00 per day until possession is delivered to the Plaintiff.
5. An order of perpetual injunction restraining the Defendant either by itself, agents, servant and or otherwise howsoever from intimidating, harassing or disturbing the Plaintiff’s quiet possession of the remaining part of Mando Park Inn.”
Pleadings were duly filed and exchanged between the parties after which the matter proceeded to hearing before Ja’afaru J. where the Plaintiff was the only witness who testified in support of her claims.
At the end of her evidence, the plaintiff was vigorously cross-examined by the Defendant’s counsel before closing her case in the course of the presentation of which 7 documentary exhibits including the Lease Agreement executed between the parties, were tendered and received in evidence.
Although the Defendant in the case had filed its Amended Statement of Defence in which a number of defences including alleged breaches of covenants in the Lease Agreement by the Plaintiff were raised, no witnesses were called by the Defendant to establish these defence inspite of several adjournments granted to the Defendant. Even the opportunity to address the trial court on the evidence led by Plaintiff in support of her claims was not utilised by the Defendant up to the time the matter was finally adjourned for Judgment. In his Judgment delivered on 6/11/97, the learned trial Judge found that the Plaintiff had proved her case of breach of contract against the Defendant to be entitled to Judgment in her claims for damages. However, the learned trial Judge Suo motu applied the principle of mitigation of damages and awarded the Plaintiff the sum of N60, 000.00 as damages. Part of the Judgment at pages 83 – 84 of the record of this appeal reads:-
“I find that that claim has been proved. It is a minimum proof required as there is no contradicting evidence. Instead there is an admission.
The plaintiff is entitled to be placed to a position she would have been had there been no breach.”
The learned trial Judge instead of applying this correct finding and statement of the law to the facts proved before him, turned round on his own without any plea from the Defendant to impose on the Plaintiff the duty to mitigate her hardship or loss arising from the breach of the contract in assessing damages as follows:-
“By Exhibit I, the Plaintiff is a yearly tenant. It is her duty to mitigate her loss or hardship. I am inclined to award the sum of N60, 000.00 only for the claims set out in paragraph 16(1) (c) & (4) of the Amended Statement of Claim.”
Although there is no positive order dismissing the Plaintiff’s claims for damages for trespass, injunction and specific performance in the Judgment, it is clear that the learned trial Judge had deemed the claim for specific performance as abandoned while the claim for injunction and trespass as having failed. It is against this Judgment that the Plaintiff, whom I shall henceforth refer to as Appellant in this Judgment while the Defendant as the Respondent, had appealed to this court. The Notice of Appeal filed by the Appellant contained 7 grounds of appeal.
In line with the rules of this court, brief of argument was duly filed and served on behalf of the Appellant. Although the Appellant’s brief of argument was duly served on the Respondent, up to the time this appeal came up for hearing before this court on 11/4/2002, no Respondent’s brief of argument was filed and served on behalf of the Respondent. Consequently, in accordance with Order 6 Rule 10 of the rules of this court, the appeal was heard on the Appellant’s brief of argument alone and in the absence of the Respondent which was served.
In the Appellant’s brief of argument, the following 3 issues were identified for the determination of this appeal. The issues are:-
“1. Whether the Lower Court was right in its assessment and award of damages by awarding to the Appellant a paltry sum of N60, 000.00 in disregard of the contents of the heads of claims contained in items 1(c) and 4 of the Amended Statement of Claim, the evidence accepted by it and in the light of the principle applicable to a case of this nature.
2. Whether the Lower Court was right in refusing the Appellant’s claim in trespass in the light of the cases and evidence presented before it.
3. Whether the Lower Court was right in refusing to grant to the Appellant remedy of perpetual injunction in the circumstances of this case.”
Before proceeding to resolve these issues it may be necessary to state even though briefly the facts of the case. By a Lease Agreement executed on 14/7/92 between the Appellant described as the ‘tenant’ and the Respondent described as the ‘Landlord’, the Appellant was granted lease of the property known as the Mando Park Inn comprising of two restaurants and twenty rooms for a term of ten years. Thus, the Appellant as the tenant was using the restaurants to sell food while the twenty rooms were being used as lodging providing accommodation for which the Appellant was charging N100. 00 per night. Barely after two years or so from the commencement of the lease, was the Appellant forcefully ejected from the demised premises by the officials of the Respondent which later wrote to the Appellant, letters terminating the Lease Agreement. Thus in order to enforce her right under the Lease Agreement, the Appellant went to the trial court and claimed the reliefs as contained in the Amended Statement of Claim earlier quoted in this Judgment.
The first issue for determination is whether the Lower Court was right in its assessment of damages having regard to the evidence adduced by the Appellant in proof of her claims particularly reliefs 1(c) and 4 which the Lower Court found proved. Learned counsel to the Appellant referred to these items of reliefs and submitted that they are in the nature of special damages which required strict proof and as such the Lower Court cannot make its own individual assessment but that it must act strictly on the evidence before it. The case of DUMEZ NIGERIA LTD V. OGBOLI (1972) ALL NLR (2ND ED.) 244 AT 253 was relied upon in support of this argument. That since the Appellant had by her evidence proved her claims for damages in reliefs 1(c) and 4, the Lower court ought to have granted those reliefs particularly when the principle of mitigation of damages applied by the Lower Court in assessing the damages awarded to the Appellant is not applicable in this case as it was not raised and proved in the defence of the Respondent in line with the case of KOSILE V. FOLARIN (1989) 3 NWLR (PT. 107) 1 AT 16. Furthermore, learned counsel observed that as the issue of mitigation of damages was raised suo-motu by the Lower Court without affording the parties a hearing, the decision of the Lower Court based on such assessment cannot stand particularly when the decision in the case of AJUWONV. AKANNI (1993) 12 SCNJ 33 AT 44 is taken into consideration. That as the claim of the Appellant in item 4 of the reliefs flows from the claims for specific performance, the need to mitigate any loss does not arise by virtue of the decision in BAKARE V. L. S. C. S.C.(1992) 10 SCNJ 173 AT 202. Learned counsel further pointed out that the award of damages made to the Appellant in this case did not at all place the Appellant to the position she would have been had there been no breach of the Lease Agreement. Counsel therefore urged this court to set aside the award of damages which was based on wrong principles and award the correct damages proved to the Appellant.
In the resolution of this issue on the assessment of damages, it is very important to note that it is a fundamental principle of our law on damages that in the event of a breach of any contract, the Plaintiff is entitled to be placed, so far as money can do it, in the same position as he would have been in, had the contract been performed.
See: ROBINSON V. HARMAN (1848) 1 EX.850, 855 AND PIEDMOUNT PLYWOODS V. GOLDEAC (NIG) LTD (1992) 8 NWLR (PT. 260) 481 AT 491. See also Mcgregor on Damages 14th Edition paragraphs 9-10 at pages 7-8 on the object of award of damages. Where the contract is a Lease Agreement as in the present case where the tenant or lessee is evicted from the whole property, the normal measure of damages is the value of the unexpired term which will be calculated as the rental value of the premises less the contractual rent which would have fallen to be paid in the future. See: WILLIAMS V. BURRELL (1845) 1 C.B. 402.
In the present case, having regard to the specific nature of the type of damages claimed by the Appellant in her relief 1(c) and 4 which the Lower Court found proved and which were far less than the unexpired term, the observation of Nnaemeka-Agu JSC in the case of KOSILE V. FOLARIN (1989) 3 NWLR (PT. 107) 1 AT 12 where he said: –
“Where the Plaintiff pleads the special damage with particularity and gives some evidence of it and the Defendant does not challenge or contradict the evidence given, he has discharged his onus of proof and, unless the evidence is such a quality that no reasonable tribunal can accept it, it ought to be accepted.
This is because where evidence called by the Plaintiff in a civil case is neither challenged nor contradicted his onus of proof is discharged on a minimal of proof. See NWABUOKU V. OTTIH (1961) 1 ALL NLR 487.” is also very relevant.
The relief claimed by the Appellant under paragraph 16 0) (c) of the Amended Statement of Claim relates specifically to the income derived from the operation of the 2 restaurants and was sufficiently particularised in paragraph 8 of the Amended Statement of Claim. Similarly, the relief claimed by the Appellant under paragraph 16(4) of the Amended Statement of Claim relates to the income derived from the operation of the Mando Park Inn where the Appellant pleaded sufficient particulars of earning of N1500.00 per day for 297 days. It is quite clear from the record of the trial court that the Appellant led credible and unrontroverted evidence in support of these reliefs which the trial court itself had accepted, and found as proved. What calls for determination now is whether the Lower Court was justified in not awarding these reliefs proved by the Appellant in her evidence on the ground of mitigation of damages.
The law on mitigating of damages is indeed trite. It is true that in cases where damages are claimed as in the present case, the Plaintiff has a duty not to increase the damages recoverable by him by his own voluntary and unnecessary act. See: ADMIRALTY COMMISSIONERS V. SS AMERIKA (1917) A.C 38. It is also true that the law imposes on the Plaintiff in such cases a duty to do all in his power to minimize his loss, otherwise anything which must be ascribed to his failure to do so is not recoverable from the Defendant. See: BRITISH WESTINGHOUSE CO. LTD V. UNDERGROUND ELECTRIC RAILWAY LTD (1912) A. C 673. But that duty is to act reasonably as stated in PAYZU LTD V. SAUNDERS (1919) 2 K.B. 581. However, as it is always a question of fact whether a person has acted reasonably or not, it is always necessary to raise the issue of the duty to mitigate and failure to discharge that duty in the pleadings so that the court of trial could go into it and there express its opinion as to whether or not the Plaintiff would, on the facts of a particular case, be adjudged to have reasonably breached that duty. In otherwords, the onus of proof on the issue of mitigation of damages is on the Defendant and if he failed to discharge that burden, the damages proved by the Plaintiff will be awarded. See: GARNACGRAIN CO. V. FAURE & FAIR CLOUGH LTD (1968) A. C. 1130 AND KOSILE V. FOLARIN (1989) 3 NWLR (PT.107) 1 AT 9 AND 16. Thus, in the instant case, the Defendant/Respondent having failed to discharge the onus of proof that the Plaintiff/Appellant was required to mitigate damages and had failed to do so, the specific damages claimed by the Appellant in her reliefs 3 and 4 which had been proved by evidence accepted by the trial court, must be awarded.
Looking at this issue from another angle, it is quite clear that taking into consideration that the Respondent as the Defendant at the court below did not raise and prove the issue of mitigation of damages before that court, it was wrong for the learned trial Judge to have allowed it to surface in his Judgment and to rely on it in denying the Appellant her reliefs 3 and 4 of her claims which the Lower Court itself found to have been proved. The role of the trial court is that of an unbiased umpire between the parties and this role should not be abandoned so as to make the court a party to the litigation.
See: BAKAREV. L.S C.S.C. (1992) 8 NWLR (PT. 262) 641 AT 693. In the instant case, the trial court had no business in making a case for the Respondent in the absence of any defence raised by the Respondent to the Appellant’s claims. Issue 1 is therefore resolved in favour of the Appellant.
The second issue is whether the Lower Court was right in refusing the Appellant’s claim in trespass in the light of the cases and evidence presented before it. It was argued for the Appellant on this issue that since the Lease Agreement between the parties was on the basis of the possession of the demised premises by the Appellant, the Lower Court having held her forceful ejection unlawful, her claim for damages for trespass ought to have succeeded if the case of FOREIGN FINANCE CORPORATION V. L.S.P.D.C & ORS (1991) 5 SCNJ 52 AT 72, 74 – 75 is taken into account since the Appellant had the right to the possession of the premises.
It is indeed the law that a claim for trespass to land being generally rooted in exclusive possession, all a Plaintiff needs to prove is that he has exclusive possession or the right to such exclusive possession of the land in dispute, but once a Defendant claims to be the owner of the land in dispute, the Plaintiff must prove a better title to succeed in claim for trespass. This is because a Landlord who collects rents from his tenants in respect of his piece or parcel of land is clearly in dejure possession of such land even though he is not in physical possession or defacto possession thereof. See: ANYABUNSI V. UGWUNZE (1995) 6 NWLR (PT. 401) 255 AT 268. In the instant case from the evidence before the trial court, the Appellant was not at all in possession of the demised premises having been earlier forced out by the agents of the Respondent who infact had already rented out the two restaurants part of the Mando Park Inn to a third party who was already in occupation. It is also clear from the evidence on record that even the Appellant regarded the Respondent as the owner of the demised premises. Therefore, the question as to who was in possession of the Mando Park Inn and the two restaurants following the revocation of the Lease Agreement between the Appellant and the Respondent by the Respondent was not at all in doubt. For this reason, the decision of the Lower Court that the Appellant’s claim for trespass had failed is quite in order and must be upheld by this court.
The third and last issue for determination in this appeal is whether the Lower Court was right in refusing to grant to the Appellant remedy of perpetual injunction in the circumstances of this case. In support of this issue learned counsel to Appellant observed that the basis of the refusal of the Appellant’s claim for injunction by the trial court was that it erroneously regarded the Appellant’s claim for specific performance as having been abandoned while it was not actually the case.
That all the Appellant was required to show in order to succeed in her claim for perpetual injunction is the existence of a legal right which was worth protecting against the adversary in order to prevent the reoccurrence of the wrong complained of. The cases of ONWUKA& ORS V. EDIALA (1989) 1 NWLR (PT. 96) 182 AT 210 AND AKAPO V. HAKEEM-HABEEB & ORS (1992) (PT. 1) 7 SCNJ 119 AT 137 were relied up on.
It is indeed a fundamental principle for the grant of injunction that the application will always be granted to support a legal right.
See: MONTGOMERY V. MONTGOMERY (1965) P. 46. Therefore, the most important precondition of an applicant is to show that he has a legal right which is threatened and ought to be protected as was the case in OJUKWU V. GOVERNOROF LAGOS STATE (1986) 3 NWLR (PT.26) 39. Thus, it follows that the court has no power to grant an injunction where the applicant has not established a recognizable legal right which requires protection from unlawful invasion by another. See: AKAPO V. HAKEEM-HABEEB (1992) 6 NWLR (PT. 247) 266 AT 289.
In the instant case, the relief of injunction claimed by the Appellant in relief 5 of her reliefs claimed in the Amended Statement of Claim is in the following terms:-
“An order of perpetual injunction restraining the Defendant either by itself, agents, servants and/or otherwise howsoever from intimidating, harassing or disturbing the Plaintiff’s quiet possession of the remaining part of Mando Park Inn.”
It is quite plain from the above relief that the right or legal right which the Appellant was seeking the protection of by the order of perpetual injunction being sought, was the alleged right to quite possession of the remaining part of the Mando Park Inn, the possession of which at the time the Appellant filed the Amended Statement of Claim containing this relief on 23/7/96, was already with the Respondent whose agents had already ejected the Appellant out of the premises, the subject of the Lease Agreement which had also been revoked by the Respondent by its letters to the Appellant dated 29/8/95 and 31/8/95 Exhibit 3A and 3 respectively. Thus, not being in possession of the Mando Park Inn on 23/7/96, the Appellant had failed to show the existence of a legal right worth protecting by an order of perpetual injunction being sought. Also the Appellant having specifically claimed for damages for the breach of Lease Agreement in respect of the Mando Park Inn by the Respondent, this certainly means the Appellant had elected to regard the respective rights of the parties under the Lease Agreement as having been brought to an end. The perceived legal right in respect of the possession of the Mando Park Inn therefore no longer existed with the Appellant to warrant any protection by an order of perpetual injunction.
For the foregoing reasons therefore, I hold that the Lower Court’s refusal to grant the Appellant the relief of perpetual injunction was quite in order as the Appellant had already been intimidated, harassed and forced out of possession of the demised premises even before the relief was sought.
In the result this appeal succeeds in part. The appeal against the award of damages of N60, 000.00 only to the Appellant by the Lower Court having succeeded is hereby allowed. The award in this respect is hereby set aside. In place of the award set aside, there shall be substituted an award granting the damages claimed in full by the Appellant in her relief No. 1(c) in respect of the two restaurants in the sum of N480, 000.00 and relief No.4 in respect of the Mando Park Inn, in the sum of N435, 500.00 which had been proved respectively.
However, the appeal against refusal of damages for trespass and order of perpetual injunction having failed is hereby dismissed.
There shall be N3000.00 costs to the Appellant against the Respondent.
ISA AYO SALAMI, J.C.A.: I read before now the judgment just delivered by my learned brother Mahmud Mohammed, JCA and agree entirely with the reasoning contained therein and the conclusion arrived thereat.
I propose to observe, however, purely as a matter of emphasis, that the measure of damages recoverable in cases of breach of contract has been laid down ever since the case of Hadley v. Baxendale 9 Exch 354, 156 E.R. 151 which has been considered and followed in Omonuwa v. B.A. Wahabi Trading as B.A. Wahabi & Sons (1976) 4 SC 37, 42, Swiss-Nigerian Wood Industries Ltd vs. Daniele Bogo (1970) L.R. COMM. 423, 430 – I, Gregoire Agbaje v. National Motors Ltd (1970) 2 A.L.R. COMM 266, 273, Stephen Okongwu v. NNPC (1989) 4 NWLR (Pt.115) 319, Gunter Ruble v. Nigerian Maritime Services Ltd (1971) 2 All NLR (Pt. II) 231, 236 – 237. In consideration of damages, as a result of a breach of contract, the measure is that of the injury flowing naturally from the breach and suffered in direct consequence of violation.
The damages recoverable are the losses reasonably foreseeable and foreseen by the parties at the time of the contract.
It is, in this respect, that damages recoverable can properly be called special. The expressions special damages and general damages are therefore inappropriate in describing damages for the purpose of award of damages in breach of contract matters. In this regard Coker, JSC, in Daniele Bogo’s case (supra) at 431 said:- action in trespass but such possession must be clear and exclusive: Revett v. Brown (1828) 5 Bung R 7 and Oyebanji v. Okunola (1968) NMLR 221. On the facts of this case, the plaintiff who was incidentally a tenant on the property in issue was successfully ejected apparently on the instruction of her landlord. It is settled that a landlord though not in actual possession of the property is nevertheless in constructive possession: Anyabunsi v. Ugwunsi (1995) 6 NWLR (Pt.401) 255. In the circumstance, can the tenant maintain an action in trespass against the landlord? I do not think so. The law in this regard is to the effect that where two persons claim to be in possession of the same parcel of land the law ascribes possession to be in the party, who can establish title. See Odunsi v. Kuforiji 19 NLR 7 and Archibong Efuna v. M.E. Adekunle (1961) 5 ENLR 55. Since the presumption of law is that possession, which is the basis for action in trespass, is in the person having title to the land, the appellant, a tenant cannot maintain an action against the respondent in whom the possession is presumed to be. The action for trespass against her landlord in this respect is not maintainable because she has no title.
As the claim for trespass has failed an order of injunction could not be granted. It is a fundamental rule that a court will only grant an injunction to protect or support a legal right- Montgomery v. Montgomery (1967) P.46. Oke & others v. Aiyedun (1986) 2 NWLR (Pt.23) 548; Oladimeji v. Oshodi (1968) 1 All NLR 417 and Olayioye v. Oso (1969) 1 All NLR 281. The court will exercise this jurisdiction only where there is a legal right cognisable by it to protect the violation of such right. The case for injunction was for the same reason not made out.
For this reason and the fuller reason contained in the lead judgment of my learned brother, Mahmud Mohammed, JCA, I also allow the appeal in part. I endorse all the consequential orders including the order of costs contained in the judgment of my learned brother Mohammed, JCA.
JOSEPH JEREMIAH UMOREN, J.C.A.: I have had a preview of the judgment of my learned brother, Mahmud Mohammed JCA., just delivered. I am in agreement with his reasoning and conclusion that the appeal succeeds in part and I hereby allow that part of the appeal that succeeds and also dismiss the appeal against refusal of damages for trespass and order of perpetual injunction.
I abide by all consequential orders in the lead judgment including order as to costs.
I.B. ODIGIEFor Appellant
Respondent absent and not representedFor Respondent