MR. TIMOTHY BABALOLA & ORS v. TRINITY REALITY LIMITED (2019)

MR. TIMOTHY BABALOLA & ORS v. TRINITY REALITY LIMITED

(2019)LCN/12696(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 12th day of February, 2019

CA/L/1143/2015

RATIO

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

1. MR. TIMOTHY BABALOLA
2. PASTOR SEGUN SMITH
3. INCORPORATED TRUSTEES OF BELIEVERS LOVEWORLD
(a.k.a. CHRIST EMBASSY) Appellant(s)

AND

TRINITY REALITY LIMITED Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment):

The appeal is against the decision of the High Court of Justice of Lagos State (the Court below) whereby it dismissed the appellants/cross respondents claims in respect of entitlement to leaseholds and granted N50,000 per month mesne profits as damages in favour of the respondent/cross-appellant while it dismissed the respondents/cross-appellants New – case for trespass.

The appellants/cross-respondents New – case was that the undisputed landlord of the property situate at No. 103 Bajulaiye Road Shomolu, Lagos, one late Mr. Emmanuel Sanyaolu, created multiple leases over the said property in favour of the 2nd appellant/2nd cross-respondent and on behalf of the 3rd appellant/3rd cross-respondent for a period of five (5) years in respect of the 1st (first) floor of the property commencing on 28.11.98, as well as property development of the plot of land with the 1st appellant/1st cross-respondent for 12 years from 06.02.1999; the 3rd appellant/3rd cross-respondent as a beneficiary of the lease granted to the 2nd appellant/2nd cross-respondent by the late Emmanuel Sanyaolu in respect of the 1st (first) floor of the property, negotiated and became the beneficiary of the lease covering the entire property granted to the 1st appellant/1st cross-respondent and also the unspecified number of years created by the same late Mr. Emmanuel Sanyaolu in favour of the Redeemed Christian Church of God; and that the 1st appellant/1st cross-respondent New’s lease of 12 years for the entire property commenced upon the expiration of the 2nd appellant/2nd cross-respondent New’s lease in respect of the 1st (first) floor of the property as well as on the expiration of the lease of the Redeemed Christian Church of God.
New

It was also the appellants/cross-respondents New – case that pursuant to the multiple leases covering over 20 years in respect of the entire property for the different leases created in favour of the 1st appellant/1st cross-respondent, 2nd appellant/2nd cross-respondent, the Redeemed Christian Church of God and the 3rd appellant/3rd cross-respondent became the beneficiaries of these leases and the 3rd appellant/cross-respondent was put into possession by the late Emmanuel Sanyaolu.

That the respondent/cross-appellant made several attempts to undermine the lease after the death of Mr. Emmanuel Sanyaolu by threatening to pull down the property and has been disturbing the 3rd appellant/3rd cross-respondent New’ s peaceful possession of the property alleging that the late Mr. Emmanuel Sanyaolu did not have the authority to create the multiple leases which the appellants/cross-respondents have resisted; that the respondent/cross-appellant also alleged that the lease is void, as Mr. late Emmanuel Sanyaolu, did not have the consent of principal members of the family to lease the property; upon which the respondent/cross-appellant counter-claimed general damages of N2 million for trespass and special damages of N50,000 per month from January 1, 2008 until possession is given up by the appellants/cross-respondents plus an order of perpetual injunction against the 3rd appellant/3rd cross-respondent from trespassing or continuing to trespass on the disputed premises.

The Court below heard the evidence for and against the claim and counter-claim and considered the written submissions for and against the case and arrived at the decision dismissing both the claim and counter-claim, but it, however, awarded the respondent/cross-appellant damages of N50,000 per month from 01.08.11 until possession is given up by the appellants/cross-respondents in favour of the respondent/cross-appellant.

Not satisfied with the judgment the appellants/cross-respondents filled a notice of appeal with sundry grounds of appeal contained in volume II of the record of appeal (the record).

New.

The appellants/cross-respondents New- brief of argument was filed on 14.12.16. It was contended in the brief that the parties having admitted that the legal title of the disputed property is in the name of late Mr. Emmanuel Sanyaolu, the documents relied upon by the respondent/cross-appellant to prove their ownership of the disputed property which did not emanate from the late Mr. Emmanuel Sanyaolu, nor the Administrators, Executors, privies and/or assigns of the late Mr. Emmanuel Sanyaolu, the persons through whom the respondent/cross-appellant derived title to the property as stated in page 724 of the record read with the preceding pages 488 New – 491 of the record had no title to pass to the respondent/cross-appellant under the maxim nemo dat non habet.

It was therefore contended that the Court below erred when it held that the documents of title, particularly Exhibit D4, proved the respondent/cross-appellant New’ s title to the disputed property, more so Exhibit D4, which is undated and unregistered and did not have the consent of the Governor of Lagos State as required by the Land Use Act 1978 bears inconsistent clauses and terms and is unregistered and did not establish the respondent/cross-appellantNew ?s case on its strength; accordingly, it was urged that the Court below should have dismissed the respondent/cross-appellantNew ?s counter-claim citing in support the cases of Salubi v. Nwariaku (1997) 5 NWLR (pt. 505) 442 at 466 New ? 467. Okhuarobo v. Aigbe (2002) 9 NWLR (pt. 771) (no pagination), Ukaegbu v. Nwololo (2009) 12 WRN 1 at 13 New ? 14, Amankra v. Zankley (1963) A.N.L.R. 304 at 307 or (1963) 3 N.S.C.C. 243 at 246.

The appellants/cross-respondents also submitted that the respondent/cross-appellant led contradictory evidence on how it derived title to the disputed property maintaining that it bought it from a Mrs. Adetobi Ademosu, a Mrs. Elizabeth

Odutan, a Mrs. Kehinde Olabisi Oke and a Miss Esther Sanyaolu contrary to Exhibit 6, the notice to quit, vide page 578 of the record, showing the respondent/cross-appellant did not establish that it derived title to the property from a Mrs. Susannah Sanyaolu, therefore the appellants/cross-respondents urged that the inconsistency should have been resolved in their favour.

It was argued in the brief by the appellants/cross-respondents that the special damages of N50,000 per month from January, 2008 till the date possession is given up which was awarded by the Court below to the respondent/cross-appellant was not pleaded and not strictly proved, therefore upon dismissing the leg of counter-claim of trespass in its judgment in page 825 of the record it was wrong for the Court below to award the said damages in its judgment in page 826 of the record citing in support the cases of G.K.F. Invt. Ltd. v. Nigeria Telecomm. Plc (no citation) at page 50, Okhuarobo v. Aigbe (supra) at 29, Kodilinye v. Odu (2003) 36 WRN 175, Kofi v. Kofi (1933) 1 WACA 336, Okulate v. Awosanya (2000) 1 WRN 65, Ukaegbu v. Nwololo (2009) 12 WRN 1 at 13 New ? 14, Adedeji and Sons Motors

Ltd. v. Immeh (1996) NWLR (pt.465) 240 at 247.

It was argued in the brief that the consensus evidence was that the late Mr. Emmanuel Sanyaolu was the landlord of the appellants/cross respondents and had created multiple leases over his property in their favour which facts are supported by the judgment of the Court below to the effect that the appellants/cross-respondents were not trespassers on the disputed property; consequently mesne profits should not have been awarded against the appellants/cross-respondents as mesne profits is a sum due to the landlord from the time his tenant ceases to hold the premises as tenant to the time such tenant gives up possession; more so, a claim for mesne profits is based on trespass and is inappropriate in respect of lawful occupation of land as tenant and can only be maintained when the tenancy has been duly determined and the tenant becomes a trespasser citing in support the case of Debs v. Cenico Nig. Ltd. (1986) 6 S.C. 125, African Petroleum Ltd. v. Owodunni (1991) 11 New ? 12 S.C. 203.

It was also argued that there was no proof of privity of contract, nor privity of Estate, established between the

appellants/cross-respondents and the respondent/cross-appellant did not derive its ownership of the property from the former landlord or his privies or assigns; nor did the relationship of landlord and tenant exist between the parties; and that the respondent/cross-appellant did not pray for mesne profits in its counter-claim; consequently, it was urged that the Court below was wrong in awarding the N50,000 monthly damages as mesne profits.
New ?
It was argued that evidence of landlord and tenant relationship was established between the late Mr. Emmanuel Sanyaolu which tenancy relationship was subsisting and, also, that the late Mr. Emmanuel Sanyaolu made other lease agreements with third parties over part of the property in Exhibits C4 and C5 evidenced by handwritten receipts, Exhibits C1, C2 and C4 as well as the explanation of the CW1 under the examination that the multiple leases were to run one after the other vide page 625 of the record showing the first 5 years lease would have expired in July, 2006 as the 1st appellant could not take possession of the 1st (first) floor of the property evidenced by the receipt dated 08.06.01, Exhibit C1, on the ground

that the same landlord created another lease in favour of the Redeemed Christian Church of Christ and until the Redeemed Christian Church of God paid off in 2001, the 2nd appellant/2nd cross-respondent could not take possession of the property in respect of the 1st (first) floor and that it is only after the expiration of the lease, Exhibit C4, dated 28.11.98, that the 2nd lease, Exhibit C5 dated 06.02.99, would begin to run showing the multiple leases would expire with the last lease in 2018; and that the oral evidence of the CW1 on the 3 year duration of the lease augmented the lacuna in Exhibit C2, the lease agreement, which the landlord collected money from the Redeemed Christian Church of Christ.
New ?
It was added in argument that the Redeemed Christian Church of Christ was refunded the money paid to the late Mr. Sanyaolu for the lease created for it to develop the property and was paid off on 10.06.2001; that taking into consideration the 3 years subsisting lease which would expire in New ?2021New ?, the fact that the appellants/cross-respondents were in undisturbed possession of the first lease, only the landlord or the representatives of his estate

can challenge the tenancy rights of the appellants/cross-respondents.

It was also argued that where there is uncertainty on the commencement of a lease the date may be ascertained in order to regard it certain vide Bosah and Ors. v. Oji (2002) 6 NWLR (pt.762) 137 at 159; but that in the present case the commencement date of the leases are certain followed by the possessory rights gotten by the appellants/cross-respondents showing they are lawful tenants in the property and since the respondent/cross-appellant is not claiming through the representatives of the Estate of the landlord it has no civil rights and obligations and that no locus standing to challenge the tenancy/possessory rights of the appellants/cross-respondents.
New ?
It was argued that the sole witness of the respondent/cross-appellant stated under cross-examination that Exhibit 4 was executed by Mrs. F. Adetobi Ademosu, Mrs. Elizabeth Oduntan, Mrs. Kehinde Olabisi Oke and Miss Esther Sanyaolu, whereas the notice to quit, Exhibit 6 dated 23.11.05, showed the property was sold by one Susanah Abebi who died several years ago before Exhibit C6 was made showing the judgment is against the weight

of evidence; more so, the Court below erred in the circumstances by holding that Exhibit D4 was valid; showing the respondent/cross-appellant did not discharge the onus of proof of the counter-claim citing in supportDabup v. Kolo (1993) 9 NWLR (pt. 317) 254 at 281.

Consequently, the appellants/cross-respondents urged that the failure of the Court below to evaluate the evidence adduced before it entitled the Court to review those facts and draw inferences from the facts proved at the Court below citing in support the case of Onwuchuruba v. Anthony (1993) 5 NWLR (pt.185) 199 New ? 200; upon which the appellants/cross-respondents advocated that the appeal being meritorious should be allowed.
New ?
The respondent/cross-appellantNew ?s brief was filed on 25.05.17, but deemed as properly filed on 15.01.18. It was contended in the brief that there are five possible ways of proving title to land – by traditional evidence; by acts of ownership extending over a sufficient length of time which acts are numerous and positive enough to warrant the inference that they are owners; by acts of long possession and enjoyment of the land in dispute; by the production of

the documents of title which must be authenticated; and by proof of possession of connected or adjacent land in circumstances rendering it probable that the owners of such connected or adjacent would in addition be the owners of the land in dispute vide Elegushi v. Oseni (2005) 14 NWLR (pt.945) 348.

It was then contended that in the instant case, the Deed of Assignment contained in pages 265 New ? 268 of the record was executed in favour of the respondent/cross appellant when it purchased the property in dispute from Emmanuel Sanyaolu branch of the larger Sanyaolu family showing it was conveyed by Miss Esther Sanyaolu along three other members of the family for herself and on behalf of all the children of the late Emmanuel Sanyaolu to the respondent/cross-appellant; while the appellants/cross-respondents were tenants occupying the said premises New ?purportedlyNew ? leased to them by the late Emmanuel Sanyaolu; that the suit was originally commenced against New ?the Estate of Sanyaolu, Trinity Realty Ltd. and Alhaji A. A. SoluadeNew ? vide pages 103 New ? 104 of the record showing the appellants/cross-respondents were on one side against the

Sanyaolu family which owned the property and had transferred the title to the respondent/cross-appellant.

It was further argued that upon the application of the appellants/cross-respondents, the names of the 1st and 3rd defendants at the Court below were struck out because of the impossibility of serving the originating processes on the 1st defendant and the subsequent demise of the 3rd defendant; therefore having applied that the name of the 1st defendant be struck out, being the Estate of Sanyaolu family who the appellants/cross-respondents New ?purportedlyNew ? leased the property from, it would suffice to say that the appellants/cross-respondents could not have contested the sale of the property to the respondent/cross-appellant vide page 295 of the record, nor did the appellants/cross-respondents claim membership of Sanyaolu family and, also, ownership of the disputed property, save their claim of multiple leases which according to them are subsisting.

It was contended that the Court below correctly used the Deed of Assignment between Sanyaolu family and the respondent/cross-appellant as proof of purchase or equitable interest in the

property vide page 824 of the record; that only members of Sanyaolu family, not the appellants/cross-respondents, strangers to the family and tenants of the family, could challenge the sale of the property to the respondent/cross-appellant as the appellants/cross-respondents, as tenants, cannot challenge or deny the title of the landlord citing in support Section 170 of the Evidence Act and the case of Coker v. Adeyemo (1968) ANLR 17 at 20 and Agusto v. Joshua (1962) 1 ANLR 310 and Section 6(6) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution).

It was contended that the Court below held in part of its judgment in pages 825 New ? 826 of the record that the appellants/cross-respondents were lawfully on the property as tenants up to July, 2011, so they were not trespassers, but that having failed to vacate the property after the demise of the tenancy they held over the property, the respondent/cross-appellant was entitled to mesne profits or damages for the use and occupation of the property.
New ?
It was also argued that the special damages were claimed and proved strictly on the evidence of the N50,000 monthly rental

value vide pages 747 New ? 751 of the record and, therefore the Court below should have awarded the special damages citing in support the cases of Julius Berger (Nig.) Plc v. Mrs. Dolapo Ogundehin (2014) 2 NWLR (pt. 1391) 388, Okoneye v. Lagos City Council (1973) 2 CCHCJ 38, Anglo-Cyprian Trade Agencies Ltd. v. Paphos Wine Industries Ltd. (1951) 1 All E.R. 873 at 875, Musa v. Yerima (1997) 7 NWLR (pt.511) (no pagination), Newbreed Organization Ltd. v. Erhomosele (2006) 5 NWLR (pt. 974) 499, Sarau v. Iyanda (2003) 13 NWLR (pt. 729) 1, NEPA v. Inameti (2002) 11 NWLR (pt.778) 397, A.N.C.E. Ltd. v. Co-operative Bank Plc (2004) All FWLR (pt.209) 1039, Obasuyi v. Business Ventures Ltd. (1995) 7 NWLR (pt.406) 184 at 195 New ? 196, Chukwu and Ors. v. Akpelu (2014) 13 NWLR (pt.1424) 359, Agi v. Access Bank Plc (2014) 9 NWLR (pt.1411) 121 at 161.

It was further argued that having claimed damages, it was immaterial that the Court below described it as damages for trespass or mesne profits; and that having found that the purported lease had expired, the respondent/cross-appellant was entitled to damages which the Court below rightly awarded.

It was argued that save the findings made by the Court below in pages 815 New ? 824 of the record that the late Mr. Emmanuel Sanyaolu was family head of the larger Sanyaolu family and that his agreements with the appellants/cross-respondents remained valid until voided by order of Court at the instance of the person affected, the review of the case of the parties and the evaluation of evidence adduced by both sides was properly done by the Court below vide pages 815, 819, 821 and 824 of the record; that there was unassailable evidence that the property in dispute was family property of the children of Madam Susannah Sanyaolu and not just that of Mr. Emmanuel Sanyaolu that granted the multiple leases to the appellants/cross-respondents and having so found, the case of the appellants/cross-respondents should have collapsed at the Court below, therefore the complaint against the evaluation of evidence by the Court below is unfounded and the appeal should be dismissed.

The respondent/cross-appellantNew ?s brief then dwelt on the cross-appeal in relation to the holding of the Court below in pages 822, 823, 824 and 825 of the record in which the Court below held that the late

Emmanuel Sanyaolu was Family Head of the larger Sanyaolu family and that his agreements with the appellants/cross-respondents on the multiple leases remained valid until New ?avoidedNew ? by an order of the Court at the instance of the person affected.

It was also argued that their lease expired in July, 2011 which was not based on the case of the appellants/cross-respondents as pleaded in paragraphs 6 and 12 of the 1st amended statement of claim in pages 545 to 548 of the record to the effect that the late Mr. Emmanuel Sanyaolu was the undisputed landlord of the property in dispute and paragraphs 4, 5, 8 and 10 of the claimantsNew ? reply to the defence in pages 290 New ? 294 of the record which maintained the plea that the property in dispute belonged solely to the late Emmanuel Sanyaolu who entered into the multiple lease agreements in that capacity and not on behalf of the larger Sanyaolu family.

It was argued that it was not the appellants/cross-respondentsNew ? case that the late Emmanuel Sanyaolu was entitled to sell or that he had sold as head of the larger Sanyaolu family; consequently, it was contended that the Court below wrongly

changed the case of the respondent/cross-appellant and that had the Court below not done so it would have nullified the multiple leases and exposed the appellants/cross-respondents as trespassers on the property and damages would have been awarded from January, 2011 which the Court below had reckoned as the expiry tenure of the multiple leases; upon which the respondent/cross-appellant urged that the main appeal be dismissed and the cross-appeal allowed.

The appellantsNew ? reply brief was filed on 22.08.17, but deemed as properly filed on 15.01.18. It was argued in the reply brief that the pleadings/counter-claim of the respondent/cross-appellant was to the effect that the appellants/cross-respondents were trespassers on the property, not that there existed a Landlord/Tenant relationship upon which premise evidence was given in the case and that the Court below having found that the respondent/cross-appellant does not have legal title but an equitable interest cannot in the same breath award special damages or New ?damages for use and occupationNew ? in favour of the party who never proved legal title citing in support the cases of Osuji v. Ekeocha

(2009) 6 New ? 7 SC (pt.11) 112 New ? 133, Ativie v. Kabel Metal Nig. Ltd. (2008) 5 New ? 6 SC (pt.11) 63, 67, Amadi v. Chinda (2009) 4 New ? 5 SC (pt.11) 17; therefore it was contended that the action of the respondent/cross-appellant which was founded on trespass cannot be converted into a landlord/tenant issue.

It was contended in the reply brief that the respondent/cross-appellantNew ?s case was not based on landlord and tenant relationship, therefore the cases (supra) cited on the issue are irrelevant; that the allegation that the property is family land presupposes that the land was acquired under customary ownership and under customary law, payment of purchase price as well as letting the purchaser into possession of the premises in the presence of witnesses would constitute the requirements of valid sale of land under customary law citing in support the cases of Agboola v. U.B.A. Plc and Ors. (2011) (no citation) 43 at 87, Chukwuma v. Ifeloye (2008) 12 SC (pt.11) 291.

It was also argued that the interest of respondent/cross-appellant in the property is equitable, therefore the Court below should not have awarded damages in its

favour; more so special damages cannot be inferred but must be particularised and that the Court below cannot on its own juxtapose a different relief sought to an isolated evidence adduced before it citing in support the case of Akinkugbe v. Ewulum Holdings Ltd. and Anor. (2008) 4 SC 138; upon which the appellants/cross-respondents urged for the appeal to be allowed and the cross-appeal dismissed.

The Court below dismissed the claim against the appellants/cross-respondents in part of its judgment in page 822 of the record on the ground that the appellants/cross-respondents had no standing to challenge the sale of family land to the respondent/cross-appellant by some other members of Sanyaolu family without the consent of the head of the family as the appellants/cross-respondents is not a member of the family; and that at any rate such sale was only voidable at the instance of a member of the family. There is evidence in the record to support the above findings that indeed some members of Sanyaolu family sold the property to the respondent/cross-appellant in October 2005 per Exhibit D4, the Deed of Assignment.

I agree with the Court below that only a member or members of Sanyaolu family can challenge the sale but timeously. Likewise, the multiple leases made by Emmanuel Sanyaolu, the head of the family of Sanyaolu without the consent of the other members of the family which made the multiple leases merely voidable and could only be challenged and set aside by member(s) of the family by order of Court vide the Supreme Court case of Udengwu v. Uzuegbu and Ors. (2003) 13 NWLR (pt. N836) 136 at 155 where it was held New ?
New ?It is only a member of a family whose land has been alienated without the necessary consent that can, in an appropriate action, contest that sale or that can bring an action to protect the interest of the family: see Kwesi Manko v. Bonso (1936) 3 WACA 62; Yesufu Esan v. Bakare Faron (1947) 12 WACA 135; Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392. See also Olowosago v. Adebanjo (1988) 4 NWLR (Pt. 88) 275; Okpala v. Ibeme (1989) 2 NWLR (Pt. 102) E 208. It is not open to a stranger to do so. In the present case, the extraneous issue as to the validity of the sale by Dominic was not a fact which the two Courts below should have entertained, let alone introduced into this case by themselves.New ?

See further Aiyeola v. Pedro (2014) 13 NWLR (pt.1424) 409 at 443, Fayehun v. Fadoja (2000) 6 NWLR (pt.661) 390, Ekpendu v. Erika (1959) SCNLR 186, City Property Development Ltd. v. A.-G., Lagos State (1976) 1 SC 71, Solomon v. Mogaji (1982) II SC 1, Lukan v. Ogunsusi (1972) 5 SC 40, Adedibu v. Makanjuola 10 WACA 33, Usiobaifo v. Usiobaifo (2005) 3 NWLR (pt.915) 665 following Alli v. Ikusebiala (1985) 1 NWLR (pt.4) 630.

The Court below held in its judgment in page 824 of the record that the Deed of Assignment, Exhibit D4, was evidence of contract of purchase of the property and carried with it equitable interest in the property in favour of the respondent/cross-appellant, and that the failure to obtain the GovernorNew ?s consent does not render the agreement between the parties illegal.
I agree with the said holding and would refer to the case of Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (pt. 390) 379, where the Supreme Court (sitting as a Full Court: Bello, C.J.N., Kutigi, Ogundare, Ogwuebgu, Onu, Adio and Iguh, JJ.S.C.) unanimously held that Section 22(1) of the Land Use Act does not prohibit the holder of

a statutory right of occupancy in entering into some form of negotiations which may end with a written agreement to transfer or alienate land so long as such written agreement is understood and entered into subject to the consent of the Governor, therefore there will be no infraction of Section 22(1) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent and becomes binding and effective after the GovernorNew ?s consent had been given to the transaction.
The Supreme Court followed Awojugbagbe Light Industries Ltd. v. Chinukwe (supra) in the case of International ile Ind. (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (pt.614) 268 at 298 New ? 299, where the Apex Court held that –
New ?The position of S. 22 of the Act is clearly this: A holder of a right may enter into an agreement or contract, with a view to alienating his said right of occupancy. To enter into such an agreement or contract, he does consent of the Governor. He merely operates within the first stage on sale of an estate in land’ which stage ends with the formation contract for a sale constituting

an estate contract at best. But when he comes to embark on the next stage of alienating or transferring his right of occupancy which is done by a conveyance or deed, culminating in vesting the said right in the ‘purchaser’, he must obtain the consent of the Governor to make the transaction valid. If he fails to, then the transaction is null and void under S. 26 of the Act. In my view, it is necessary to bear these two stages clearly in mind.
I think the distinction between an agreement to alienate land and the instrument by which the alienation takes place was sufficiently draw by this Court in Awojugbagbe Light Industries Ltd. v. Chinukwe (1995) 4 NWLR (pt.390) 379 in which the Privy Council case of Denning v. Edwardes (1961) A.C. 245 on a similar point was approved. Directing his mind to the issue, Iguh, J.S.C. observed at pages -U5-436:
I think it ought to be stressed that the holder of a statutory right of occupancy is certainly not prohibited by Section 22(1) of the Act from entering into some form of negotiations which may end with a written agreement for presentation to the Governor for his necessary consent or approval. This is because the

Land Use Act does not prohibit a written agreement to transfer or alienate land.
So long as such a written agreement is understood and entered into subject to the consent of the Governor, there will be no contravention of Section 22(1) of the Land Use Act by the mere fact that such a written agreement is executed before it is forwarded to the Governor for his consent. I agree entirely with Chief Williams, SAN that Section 22(1) prohibits transactions or instruments whereby the holder of statutory right of occupancy purports to alienate as a complete action, his right of occupancy by assignment, mortgage, transfer of possession, sublease or otherwise, the absence of the relevant consent of the Governor first and obtained notwithstanding.New ? (Emphasis mine)
Further, in Solanke v. Abed (1962) NSCC 160 at 162 New ? 163 the then Federal Supreme Court held that the relevant section of the Land Tenure Law of the then Northern Nigeria 1962 which stated that it shall be unlawful for an occupier of land to alienate his Right of Occupancy without the consent of the Governor did not provide any penalty for breach of the provision, nor would it appear

necessary in the interest of public policy for an agreement to alienate land to be treated as illegal. It was further held that public policy can be adequately safeguarded by the GovernmentNew ?s power of revocation and right of re-entry. In these circumstances the contract to alienate land itself was not illegal, but becomes perfect and complete to confer legal title upon obtaining the consent of the Governor for the transaction.
To buttress the point, the Supreme Court re-emphasised the effect of Section 22 of the Land Use Act (supra) in the case of Calabar Central Co-operative Thrift and Credit Society Ltd. and Ors. v. Ekpo (2008) 6 NWLR (pt.1083) 362 at 391 New ? 393 and 417 thus New ?
New ?Certainly, for a transaction of this nature to be valid, the parties to it must first enter into a binding agreement to alienate subject to the consent of the Governor, it is that consent that vests a valid title on the purchaser. See the cases of: Awojugbagbe Light Ind. Ltd. v. Chinukwe (1995) 4 SCNJ 162; (1995) 4 NWLR (Pt. 390) 379; International ile (Nig.) Ltd. v. Aderemi (1999) 8 NWLR (Pt.614) 268.New ?

Agreement to alienate land pending the consent of the Governor does not therefore make the transaction illegal. The transaction can be completed by obtaining the GovernorNew ?s consent, therefore the agreement, or Deed of Assignment, Exhibit D4, is not void ab initio.
It is the holder of a statutory right of occupancy that has the duty to apply for the GovernorNew ?s consent in respect of land he wishes to transfer, assign or mortgage or sublease vide Mbanefo v. Agbu (2014) 6 NWLR (pt.1403) 438, Owoniboys Technical Services Ltd. v. Union Bank of Nigeria Ltd. (2003) 15 NWLR (pt.844) 545 followed in Bulet International Nig. Ltd. and Anor. v. Olaniyi and Anor. (2017) 17 NWLR (pt.1594) 260, so where he fails to obtain the consent the transaction is not illegal until the consent is obtained. Equity will not allow the vendor who is to obtain the consent from the Governor for the transaction to escape the obligation of the transaction.
New ?
An equitable lease arises where there is an agreement to lease in writing which does not abide by the formal requirement of a deed. Because in equity, an agreement for a lease is as good as a lease. It is a principle of equity and fairness which has the

effect of saving a lease where the parties have attempted to create a legal estate but have not satisfied the formality of executing a deed once the lessee is let in possession upon collection of rent by the lessor vide Ogbonna v. Kaduna State Dev. And Property Co. Ltd. and Ors. (2014) 11 NWLR (pt.147) 185 following Okechukwu v. Onuorah (2000) 15 NWLR (pt.691) 597 to the effect that if the parties have signed a lease which is not in the form of a deed, the Court of equity may none-the-less decide that the lease should be enforced on ground of good conscience.

It was held by the Supreme Court in Bosah and Ors. v. Oji (2002) 6 NWLR (pt.762) 137 at 159 that a valid lease must disclose the identity of the parties, the extent and nature of the property, the rent paid, the period or duration of the lease, the covenants of the lease and the date of commencement which must be certain, but when it appears that an uncertain commencement date is stated in a lease agreement, the Court will consider whether the date can be ascertained in order to regard it as certain following Ekpanya v. Akpan (1989) 2 NWLR (pt.101) 86, Nlewedim v. Uduma (1995) 6 NWLR (pt.402) 382.

See also Odutola and Anor. v. Papersack Nigeria Limited (2006) 18 NWLR (pt.1012) 470.

The Court below found as a fact in its judgment in page 825 of the record supported by the evidence in the record that the lease of the appellants/cross-respondents expired in July, 2011 showing the 3rd appellants/cross-respondents whose lease was the last to expire did expire since July, 2011, therefore the Court concluded that he became a statutory tenant after the lease expired since July, 2011 and he still remained in occupation of part of the property.

The expression New ?mesne profitsNew ? is used to describe the sum of money due to a landlord from the time his tenant ceases to hold the premises as a tenant to the time such tenant gives up possession. In other words, it means intermediate profits or profits accruing between two points of time, that is between the date when the tenant ceases to hold the premises as a tenant and the date he gives up possession.
The expression also means the rent and profits, which a trespasser has or might have received or made during his occupation of the premises, and which he must pay over as compensation for the

tort which he has committed vide Debs v. Cenico Nigeria Ltd. (1986) 3 NWLR (pt.32) 846; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (pt.210) 391, Ayinke v. Lawal (1994) 7 NWLR (pt.356) 263.
The Supreme Court elaborated on the issue in Obijiaku v. Offiah (1995) 7 NWLR (pt.409) 510 at 523 New ? 534 thus New ?
New ?Mesne profits means an intermediate profit, that is, profits accruing between the date that the defendant/tenant ceases to hold the premises as a tenant and the actual date that he gives up possession. See Omotesho v. Oloriegbe, (1988) 4 NWLR (Pt.87) 225; and Udih v. Izedonmwem (1990) 2 NWLR (Pt.132) 357; mesne profits are awarded in place of rents where the tenant remains in possession after the tenancy agreement has run out or been duly terminated. See Nigerian Construction and Holding Co. Ltd. v. Owoyele (1988) 4 NWLR (Pt.90) 588. A Court has no power to award to a party that the party has not claimed. See Ekpenyong v. Nyong (1975) 2 S.C. 71. However, it was submitted for the respondent that the mistake of the learned trial Judge did not occasion a miscarriage of justice and this Court should not interfere with the

confirmation of the award made by the learned trial Judge. Though, at first, the learned trial Judge entered judgment for arrears of rent, what he, in any case, awarded to the respondent was described by him as mesne profits. I agree entirely with the aforesaid submission that there was no miscarriage of justice occasioned by the mistake as what was awarded was, in anycase, mesne profits. Success of a ground of appeal alone is not sufficient to warrant the reversal of a decision unless the error in law affects the decision in a way which is crucial to the decision. See Ayoola v. Adebayo & OJ’S. (1969) I All NLR 159 at p. 164.New ?
There is therefore a distinction between rent and mesne profits as well as how to determine mesne profits vide RuthlinzinterNew ?l Invest. Ltd. v. Ihezubor (2016) 11 NWLR (pt.1524) 409 at 435 New ? 436 as follows –
New ?The 1st appellant having stayed at the premises and the initial two year term expired without the lease being renewed or any new term being agreed upon, the landlord, is entitled only to claim a mesne profit being the amount claimable either when the landlord has recovered possession or the

tenant’s interest in the land has come to an end or his claim is joined with a claim for possession. In Ayinke v. Lawal (1994) 7 NWLR (Pt. 356) pages 263, the Supreme Court, per Iguh, J.S.C, opined that while rent is liquidated and operative during subsistence of a tenancy, mesne profits are unliquidated and only start to run when the tenancy expires and the tenant hold over.
In a claim for unliquidated damages, the plaintiff must lead evidence as to the damages as the quantum suffered by him. As stated in a plethora of cases, the amount of “mesne profit” is therefore not a fixed and ascertained amount and cannot be styled as “liquidated damages”. As I earlier expressed, liquidated damages means damages assessed before hand by the parties to an agreement or fixed by some statute. It is obvious that the amount of mesne profits to which the rightful owner of the property is entitled not fixed either by an agreement or by some statutes and depends on the result of the inquiry conducted by the Court with a view to ascertain the amount which the rightful owner of the property is entitled to get from the person in wrongful possession. Therefore the claim

for mesne profits is not a claim in respect of a debt, it requires oral evidence before the court for proof.New ?
Further, the Supreme Court held in Abeke v. Odunsi and Ors. (2013) 13 NWLR (pt.1370) 1 at 27 as follows –
New ?What is mesne profits? This expression simply means intermediate profits – that is, profits accruing between two points of time, that is between the date when the defendant ceased to hold the premises as a tenant and the date he gives up possession. As a result, the action for mesne profits, ordinarily does not lie unless either the landlord has recovered possession or the tenant’s interest in the land has come to an end or the landlord’s claim is joined with a claim for possession. See; Ahmed Debs & Ors v. Cenico Nigeria Ltd. (1986) 3 WLR (Pt.32) 846; LPELR183/1984 per Oputa, JSC. In Bramwell v. Bramwell (1942) 1 KB 370; (1942) 1 All ELR 137 at 138, Goddard LJ had earlier described the expression “mesne profits” as follows:
“Only another term for damages for trespass arise, damages which from the particular relationship of landlord and tenant.”
One of the differences between mesne profits and damages for

use and occupation is the date of commencement. While mesne profits begin to run from the date of service of the process for determining the tenancy, damages for use and occupation start to run from the date of holding over the property. It is therefore the duty of the Court to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. It has been held that while previous rent may not be conclusive, it may sometimes be a guide. See; Ayinke v. F Lawal & Ors (1994) 7 NWLR (Pt. 356) 263.
Generally, a claim for mesne profits is based on trespass by the defendant in occupation and it is inappropriate in respect of lawful occupation as a tenant, it can only be maintained when the tenancy has been duly determined and the tenant becomes a trespasser.New ?
The Court below then held in part of its judgment in page 825 of the record thus –
New ?The 3rd Claimant’s tenancy had expired, yes, so it becomes a statutory tenant – The 3rd Defendant entered the property on a lawful demise but continued in occupation after it expired. Trespass does not come in here at all and I

so hold. What the Defendant would be entitled to is not damages for trespass but mesne profits or damages for the use and occupation of the property. The claim for trespass must and does fail. It follows that the claim for injunction must also fail – RUNSEWE v. ODUTOLA (1996) 4 FWLR (Pt.441) 143.
The Defendant has also counter claimed for special damages in the sum of =N=50,000 per month from January 1, 2008 until possession is given up. As stated earlier, there is no trespass here. What the Defendant can get is mesne profits or damages for use and occupation. The law is trite that special damages must be strictly proved. Where a claimant pleads special damages and gives some evidence on it and the Defendant does not contradict or challenge the evidence given, the Claimant has discharged his onus of proof unless the evidence is of such quality that no reasonable Tribunal ought to accept it – KOSILE v FOLARIN (1989) NWLR (Pt. 107) 1. In the instant case, there is no averment countering the assertion of the Counter Claimant as to =N=50,000 claimed. It is not unreasonable and so I will accept it to run from when the lease expired in July 2011.”

The award was in reality not for special damages. It arose from the holding over of part of the property by the appellants/cross-respondents and the damages arising therefrom are perforce unliquidated as the law is prepared to infer or presume in the claimantNew ?s favour that the defendant cannot contend would surprise him at the trial (McGregor on Damages Fifteenth Edition 1758). See again Ayinke v. Lawal (1994) 7 NWLR (pt.356) 263 to the effect that unliquidated damages may be awarded as mesne profits, calculated by the rule of thumb of the Court as a reasonable arbiter.
The measure of damages awarded was not based on the assessment of the Court below but on the figure pleaded by the respondent/cross-appellant of the lease property. For a tenant holding over the tenancy the compensation which treated as mesne profits is unliquidated. It is within the discretion of the Court. In this case, the Court below abdicated its discretion by adopting the amount averred by the respondent/cross-appellant as New ?special damagesNew ?, when it is not special damages, as special damages are liquidated. The exercise of discretion here was

therefore wrongful, as it was not based on the input of the Court below, but on what the respondent/cross-appellant suggested as New ?special damagesNew ?. Being in the shoes of the Court below under Section 15 of the Court of Appeal Act, I would interfere with the award and reduce it to the moderate amount of N30,000 per month from July, 2011 to the date of delivery up of possession of the affected property by the appellants/cross-respondents.

In the result, I find no substance in the appeal and cross-appeal on liability, but find merit on the quantum of damages which I hereby vary from N50,000 per month to N30,000 per month and would award same against the appellants/cross-respondents in favour of the respondent/cross-appellant. Parties to bear their costs.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead judgment written by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA in this appeal and agree with the reasoning that the appeal and cross appeal are wanting in merit.

They are dismissed by me too in the terms of the lead judgement, for the reasons set out therein.
New ?
<br< p=””

</br<

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother JOSEPH SHAGBAOR IKYEGH JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the Judgment as mine with nothing further to add.

Appearances:

O. E. Okwara, Esqr.For Appellant(s)

Mr. A. OgunlanaFor Respondent(s)

Appearances

O. E. Okwara, Esqr.For Appellant

AND

Mr. A. OgunlanaFor Respondent