MS. B. A. BENSON v. MICROCRED MICROFINANCE BANK NIGERIA LIMITED
(2014)LCN/7271(CA)
In The Court of Appeal of Nigeria
On Thursday, the 12th day of June, 2014
CA/K/231/2012
RATIO
WHETHER PRELIMINARY OBJECTIONS CAN BE RAISED IN A BRIEF OF ARGUMENT WITHOUT A SEPARATE NOTICE
Ordinarily, it had earlier, in some cases in this court been held that the respondent must only raise the preliminary objection by separate notice and cannot raise it in the brief of argument. See; Oba J.A. Aremo II v. S.F. Adekanye & 2 Ors (2000) 2 NWLR (Pt. 644) 257 at 272, a decision of this court, (Benin Division).
However, the law has further developed on the procedure of making preliminary objection to hearing of appeal by the respondent. It is now permissible for the respondent to raise such preliminary objection in his brief of argument and this will not constitute non-compliance with the requirement of the rules as stated above. But when the objection is raised in the brief of argument, the respondent must seek and obtain leave of court to move his objection before oral hearing of appeal commences. See; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Okolo v. U.B.N. Limited (1998) 2 NWLR (Pt.539) 618; Arewa ile Plc. v. Abdullahi & Bro. (1998) 6 NWLR (Pt. 554) 508; Tiza v. Begha (2005) 15 NWLR (Pt.949) 616, (2005) 33 WRN 158 at 171.
When leave of court is not sought and obtained by the respondent to move the objection first, but merely raises it in the brief of argument and proceed to oral hearing of the appeal, such objection will be incompetent and will not be countenanced by the court. It should eventually be struck out. per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
A. A. WAMBAI Justice of The Court of Appeal of Nigeria
Between
MS. B. A. BENSON Appellant(s)
AND
MICROCRED MICROFINANCE BANK NIG. LTD. Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against part of the Judgment of Hon, Justice J.S Abiriyi of the High Court of Kaduna State delivered on the 4th of May 2012 in Suit No. KDH/KAD/838/2011.
The Appellant, as Plaintiff had, by her statement of claim before the lower Court, sought the following reliefs:
“(a) A declaration that there was a valid and subsisting five (5) years tenancy agreement dated 1st June, 2009 through 11th day of May, 2014, which was wilfully breached by the Tenant (the Defendant herein).
(b) A declaration that the Plaintiff herein (landlord) by virtue of the subsisting Tenancy Agreement dated the 1st day of June, 2009, is entitled to receive from the tenant (the Defendant) herein the sum of N60,792,018.00 (Sixty Million, Seven Hundred and Ninety-two Thousand, Eighteen Naira only) after allowing for inflation for the periods June, 2009 – May, 2011, including service charges being payment for accrued rent based on the tenor of the said Tenancy Agreement with effect from the 10th day of May, 2011 when the said rent is due for payment.
(c) An order of the Honourable Court compelling and or directing the Defendant herein as the Tenant to pay for the remaining three (3) years rent which accrued on the 10th May, 2011 which he failed and or neglected to pay same.
(d) Damages in the sum of N20,000,000.00 (Twenty Million Naira only)
(e) The legal cost of the suit.”
In proof of her claim the Appellant called one witness, the Respondent similarly called one witness. The trial Judge, following the conclusion of evidence and exchange of written addresses, delivered Judgment, granting the 1st relief sought by the Appellant. He refused the 2nd and 3rd reliefs and granted the 4th relief for damages, however reducing the amount downwards.
Dissatisfied with the Judgment, the Appellant filed a Notice of Appeal on the 5th of June 2012. She filed an Amended Notice of Appeal, dated and filed on 12th September 2012 and which, by leave of the Court given on 8th of August 2013, was deemed properly filed. The parties exchanged Briefs of Argument. The Appellant’s Brief of Argument was settled by Abubakar Garga Gunda LP of Nafiu Baba Ahmed & Co, in which six issues for determination were raised, while the Respondent’s Brief of Argument was settled by Dele Olaniyan of Dele Olaniyan & Co., raising therein a single issue for the Court’s determination.
The Respondent’s Counsel, at the hearing of the appeal, directed the court’s attention to his Preliminary objection filed to the hearing of the appeal, arguments in respect of which he had incorporated in his Brief of Argument. If the Preliminary Objection is granted and the Court finds there to be no substance to the appeal, the same, he urged, should be struck out.
Before proceeding to the determination of the main appeal, it is necessary therefore to consider the Preliminary Objection.
The Preliminary Objection of the Respondent is for the following:
“1. An order striking out grounds 1 and 2 of the Notice of Appeal and issues 1 and 2 formulated therein for being incompetent.
2. An order striking out grounds 3, 4, 5 and 6 of the Notice of Appeal and issues 3, 4, 5 and 6 formulated therein for being incompetent.
3. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.”
And take notice that the grounds of the said objection are as follow:
“1. That grounds 1 and 2 of the Notice of Appeal do not flow from the judgment of the trial Court.
2. That issues 3, 4, 5 and 6 in the appellant’s brief of argument were not distilled from the grounds of appeal.”
The arguments proffered by the Respondent in support of the Preliminary Objection, as contained on Pages 4-6 of the Respondent’s Brief of Argument, are that the Appellant did not appeal against the whole judgment of the lower court but only a part. The Appellant can only thus file grounds of appeal in respect of that portion of the Judgment appealed against. In addition, the grounds of appeal must also relate and flow directly from that portion of the judgment. Grounds 1 and 2 are, in consequence, incompetent and should be struck out. Issues 1 and 2 formulated from those grounds are therefore also incompetent, having no leg to stand on and should also be struck out.
Counsel submitted further that Issues 3-6, distilled from Grounds 3-6 of the Notice of Appeal do not relate to those grounds and are thus incompetent. Also, the grounds of appeal from which no issue is distilled, should be deemed abandoned and these grounds and their issues, together with the entire appeal, should be struck out.
The response of the Appellant’s counsel in his Reply Brief is that the Preliminary objection is not properly before the Court as the same did not comply with Order 10 Rule 1 of the Court of Appeal Rules 2011. Having failed to file a separate Notice of objection, the objection is incompetent and should be dismissed. He cited the case of Moyosore v Governor Kwara State (2012) 5 NWLR Part 293 Page 242 and Onwugbufor v Okoye (1996) 1 NWLR part 424 Page 252, the latter case on the principle that court fees must be paid in respect of each relief claimed and that the Court will not entertain a relief claimed without payment of the prescribed fees.
Order 10 Rule 1 of the Court of Appeal Rules 2011 provides as follows:
A Respondent intending to rely upon a Preliminary Objection to the hearing of the Appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the Registrar within the same time.
No objection shall be taken to the hearing of an appeal on the ground that the mounts (sic) fixed by the Registrar of the Court below under Order 8 Rule 2(b) of these Rules were incorrectly assessed.
If the Respondent fails to comply with this Rule, the Court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the Respondent or may make such other order as it thinks fit.
The Notice of Preliminary Objection filed in this case by the Respondent is dated 21st January 2014 but was filed on the 5th day of March 2014. The Appellant’s Brief of Argument was filed on 2nd of May 2013 while the Respondent’s Brief of Argument was filed on the 2nd of May 2013. Hearing of the appeal was on 29th April 2014.
It is clear that at the time of the filing of the Respondent’s Brief of Argument in which the Preliminary Objection was raised, a separate Notice of Preliminary Objection had not been filed. What then is the position of the law?
The Courts have taken different postures on this question. In the case cited by the Appellant’s Counsel of Moyosore v Governor, Kwara State (2012) 5 NWLR Part 1293 Page 242 the 4th and 6th Respondents incorporated their notices of preliminary objection and the argument thereof in their Respondent’s brief. His Lordship, Mbaba JCA held, at Page 270 Para C-H as follows:
“It is normal and usual for any Respondent who intends to raise and rely on a preliminary objection against the hearing of an appeal, or any part thereof to file a separate Notice of the Objection and thereafter include the argument thereof in his Respondent’s brief.
In the case of P.D.P. vs. Senator Dahiru B. Gassol and Ors (unreported decision of this Court) in suit No. CA/YL/312/2011 delivered on 13/9/2011, where the respondent made a similar attempt to give notice of preliminary objection to some issue/ ground of appeal, this Court held that that amounted to an attempt to smuggle in an objection to the hearing of the appeal and dismissed the objection for conflicting with Order 10 Rule (1) of this Court Rules…
Since the alleged preliminary objection by the 4th and 6th Respondents was not filed separately, I do not therefore think the objection by the 4th and 6th Respondents is competent, to warrant any due consideration by this court. It is accordingly dismissed.”
A contrary position was however taken in the case of Equity Bank of Nigeria Ltd v Halilco Nigeria Ltd (2006) 7 NWLR Part 980 Page 568 at 579-581 Para H-A, where the Court of Appeal, per Ariwoola JCA (as he then was) reading the lead Judgment, held as follows:
“Before I proceed to the merit of this case, I like to deal first as I should, with the preliminary objection raised by the respondent.
See; N.N.B. Plc. v. Imonikhe (2002) 5 NWLR (Pt. 760) 294, Adetoro v. Ogo-Oluwa kitan Trading Company Limited (2002) 9 NWLR (Pt. 771), Ikyernum v. Iorkumbur (2002) 11 NWLR (Pt. 777) 52, Excel Plastic Industry Limited v. First Bank Plc. (2005) 11 NWLR (pt. 935) 59, (2005) 37 WRN 109.
Generally, there is procedure to follow in the rules of this court by the respondent desirous of raising preliminary objection to hearing of an appeal. Order 3 Rule 15(1), Court of Appeal Rules, 2002 provides as follows:
3(15) (1) “A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out grounds of objection, and shall file such notice together with twenty copies thereof with the registrar within the same time.”
From the record of proceedings in this appeal, there is no where the respondent gave a prior notice of its preliminary objection to the appellant. The above requirement no doubt is mandatory on the respondent, requiring the filing of a notice of preliminary objection separately and keeping twenty (20) copies of such notice with the registrar of court. Ordinarily, it had earlier, in some cases in this court been held that the respondent must only raise the preliminary objection by separate notice and cannot raise it in the brief of argument. See; Oba J.A. Aremo II v. S.F. Adekanye & 2 Ors (2000) 2 NWLR (Pt. 644) 257 at 272, a decision of this court, (Benin Division).
However, the law has further developed on the procedure of making preliminary objection to hearing of appeal by the respondent. It is now permissible for the respondent to raise such preliminary objection in his brief of argument and this will not constitute non-compliance with the requirement of the rules as stated above. But when the objection is raised in the brief of argument, the respondent must seek and obtain leave of court to move his objection before oral hearing of appeal commences. See; Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; Okolo v. U.B.N. Limited (1998) 2 NWLR (Pt.539) 618; Arewa ile Plc. v. Abdullahi & Bro. (1998) 6 NWLR (Pt. 554) 508; Tiza v. Begha (2005) 15 NWLR (Pt.949) 616, (2005) 33 WRN 158 at 171.
When leave of court is not sought and obtained by the respondent to move the objection first, but merely raises it in the brief of argument and proceed to oral hearing of the appeal, such objection will be incompetent and will not be countenanced by the court. It should eventually be struck out.
“In the instant case as I stated earlier, the respondent merely raised the preliminary objection in the brief of argument without having given prior notice in writing to the appellant. The respondent also failed to call the attention of this court to the objection before the oral hearing of the appeal. In other words, it neither sought nor obtained leave of court to move the objection.
In the circumstance, the objection raised in this appeal is therefore incompetent and is liable to be discountenanced.Accordingly, the objection is struck out.”
Similarly, in the case of Agbaka v Amadi (1998) 7 SC Part 11 Page 18 at 20 when the Supreme Court was faced with a like situation, Counsel to the Appellant contended that the Respondent’s Counsel raised a preliminary objection to the grounds of appeal in their brief of argument but did not file any notice of preliminary objection as enjoined by the Court of Appeal Rules. He submitted that the Court below was in error in taking the objection without the Respondent filing a notice of preliminary objection. He cited the case of Nsirim v Nsirim (1990) 3 NWLR Part 138 Page 285 at 297 (also cited in the case of Moyosore Supra).
His Lordship Ogwuegbu JSC, delivering the Lead Judgment, at Page 24 lines 15- 23 held as follows:
“The purpose of giving notice of preliminary objection is to give the adversary an opportunity of reacting to the objection and to avoid any surprise. Where the objection was argued in the Respondent’s brief as in this case and the brief was served on the Appellants who had opportunity to react to it even when they amended their grounds of appeal and brief of argument and they did not do so, I think it will be stretching Order 3 Rule 15 too far to insist on the filing of notice in this particular case.”
Following this decision, the Court of Appeal in the case of Aroyinkeye v Awoyinka (2005) All FWLR Part 240 Page 1 at 18 Para B – G per Mika’ilu JCA held as follows:
“Now the question is whether it is proper for the respondent to raise preliminary objection on the grounds of appeal and or their particulars in the brief of argument of the respondents as done in this case. Undoubtedly, Order 3, rule 15(1) of the Court of Appeal Rules, 2002, has provided that a respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing. This has therefore provided for the requirement of notice of preliminary objection. However, considering the case of Nsirim vs. Nsirim (1990) 5 SCNJ 174 and Agbaka & 3 Ors vs. Amadi & Anor (1998) 2 ALR 137, I will have to agree with the averments of the learned counsel for the respondent that’s that in the circumstances, hearing the preliminary objection is proper. In Agbaka & 3 Ors vs. Amadi & Anor (supra) at page 144, the apex Court has made it explicitly clear that the purpose of giving notice of objection is to avoid any surprise. It held that where the objection was argued in the respondents’ brief and the brief was served on the appellants who had the opportunity to react to it, it will be stretching Order 3, rule 15, too for to insist on the filing of notice. The said decision though under the provisions of Court of Appeal Rules 1982, is still operative as wording of provisions of Order 3, rule 15 of Court of Appeal Rules 2002, is still similar to the wording of the earlier rules. In our case, the respondents brief of argument with the said preliminary objection was filed on 30th May, 2002 and appellants’ reply brief was filed on 19th June, 2002, and in it the learned Counsel for the Appellant has reacted to the preliminary objection. He can therefore now not be heard to complain of notice. His complaint in this regard has no substance.”
In Minister, Works and Housing v Shittu (2007) 16 NWLR Part 1060 Page 351 at 370-371 Para C-A His Lordship Ariwoola JCA (as he then was) maintained the stance he took in Equity Bank of Nigeria Ltd v Halilco Nigeria Ltd (2006) 7 NWLR Part 980 Page 568 at 579-581 Para H-A.
His Lordship maintained that the Respondent is entitled to raise in his brief of argument a preliminary objection to the hearing of the appeal without filing a separate notice and that this will amount to compliance with the Rules of this Court.
In the instant case, the Respondent incorporated its Preliminary Objection in its Respondent’s Brief. Even though he filed a separate Notice of Preliminary Objection, the same was done after the briefs of argument were filed, though almost two months before the date of hearing. In line with the injunctions of their Lordships above, the Respondent’s Counsel, at the hearing of the appeal on 29th April 2014, directed the Court to the Preliminary Objection, arguments in respect of which he informed the Court had been incorporated in pages 4-6 of the Respondent’s brief. He requested the Court to determine the same before the hearing of the appeal.
From the state of the authorities, the law, I hold, has developed with regard to the attitude to be adopted by the Courts when Preliminary Objections are argued in the Respondent’s brief without a separate notice of same having been filed. It is now permissible for the Respondent to raise such Preliminary Objection in his brief of argument and this will not constitute noncompliance with the requirement of the rules, so long as the Respondent seeks the leave of court to move his objection before oral hearing of the appeal commences.
In the instant case, while it is true that the Notice of Preliminary Objection was filed after the Briefs of Argument had been filed, the Respondent having raised the objection in his Respondent’s Brief of Argument and sought leave of the court to have same determined before the appeal, this Court, I hold, can entertain the Preliminary Objection.
In order to determine the objection, it is necessary to set out the part of the Judgment complained of and the grounds of appeal.
The part of the judgment complained of, as stated in the Amended Notice of Appeal, is the following:
“(i) The measure and quantum of damages awarded by the trial Court.
(ii) The rejection by the Trial Court of the claims or reliefs in paragraph 21 (b) and (c) of the Statement of Claim.
(iii) In so far as there was no delivery of possession of the rented premises by the Respondent which retained the bunch of keys, the Respondent retained possession of the rented premises.”
The Grounds of Appeal are as follow:
Ground one:
The trial Court misdirected itself when it held:
“Although the Plaintiff did not plead fraud and prove same beyond reasonable doubt as required by law… it is very clear from the evidence before the Court that Exhibit 14 which the Defendant claims in the second agreement is doctored. And this is a big shame.”
PARTICULARS
“(i) Fraud is apparent on the face of the pleadings and the record of the Court.
(ii) There was no exhibit 14 as same was doctored by the Defendant and same was not expunged from the records.
(iii) Where exhibit 14 exists in the record of the court the said exhibit/document agreement was only doctored.”
Ground Two:
The trial lower Court misdirected itself when it held:
“The only agreement between the parties is exhibit 1, under this agreement the tenancy was for a period of five years commencing 1st June, 2009 to 23rd August, 2011 when the defendant vacated the rented property is less than 5 years.”
PARTICULARS
(i) That the lower trial Court on agreeing that the only agreement between the parties is Exhibit 1 failed and or neglected to interpreted the clear provisions envisaged in same.
(ii) The Defendant vacated the property by (sic)could not deliver possession of the Rented property to the plaintiff according to the express terms/provisions of the tenancy agreement signed by both parties.
(iii) The Defendant vacated the property earlier than agreed in the agreement dated 1st June, 2009 has no relevance to the possession of the property unless the parties agreed mutually to terminate the tenancy prematurely.
(vi) The judgment of the trial court was delivered on the 4th May, 2012 while the Defendant was still in active possession of the property in issue for the fact that as at the time the said judgment was delivered the bunch of keys to the property is still with the defendant.
(v) Till date the Defendant is in possession of the property.
Ground Three:
The trial lower Court erred in law when it held:
“It is the law that a Plaintiff most (sic) always take all reasonable steps to mitigate the loss to him caused by a Defendants wrong or breach … in the instant case, the Plaintiff ought to have collected the cheque and the key sent to her since August, 2011 by the Defendant and put-up the property for rent again.”
PARTICULARS
(i) The Plaintiff could not take possession while there is a valid agreement in force.
(ii)The Defendant at the time of taking the property were taken round the property inside out before the bunch of key was handed to them at the property.
(iii) It is not conventional to sent the bunch of key to the property vide UPS.
(iv) The Plaintiff could not mitigate her loss because she was at no time put in possession of the property notwithstanding the fact that the defendant may have vacated the property prematurely and not knowing the condition in which the property is could not take possession of same.
(v) As the Defendant were taken round the property at the commencement of the tenancy agreement. It is conventional that the same Defendant would have the guts to take the Plaintiff round the property to take inventory of the fittings and fixtures available which has not been done in the instant case.
Ground Four:
The judgment was against the weight of evidence:
PARTICULARS
(i) The trial lower Court failed and or neglected to take account of the express provisions of the only available document (Exhibit 1)/evidence tendered and admitted before it in entering judgment.
(ii) Exhibit 1, the Tenancy Agreement dated the 1st June, 2009 is/was the only available documentary evidence before the trial lower Court.
Ground Five:
Misdirection:
That the learned trial Judge misdirected himself in assuming that the rented premises were handed over to the Appellant on the 23rd of August 2011, and assessed damages awarded on that basis when there was no such handing over of the premises in the manner expressly stipulated in clauses 1(i) and (j) of Exhibit 1 of the Tenancy Agreement which was still subsisting and binding on the parties thereto to its full terms and effect.
PARTICULARS
(i) As rightly held by the learned trial Judge, the Tenancy Agreement Exhibit 1, was the only agreement subsisting and binding on the parties and same created a tenancy of 5 years commencing from 1st June, 2009.
(ii) There was never a handing over of the rented premises by the Respondent to the Appellant in the express terms and manner stipulated or envisaged by clauses 1(i) & (j) of Exhibit 1.
(iii) The Respondent’s attempt to forward the bunch of keys to the premises to the Appellant and to thereby unilaterally abandon the tenancy agreement was rebuffed by the Appellant who insisted on adherence to the terms of the tenancy agreement.
(iv) In the last sentence of his judgment the learned trial Judge confirmed the foregoing when he ordered that:
“Defendants shall deliver forthwith the keys to the property to the Plaintiff.”
(v) In the foregoing premises, the Respondent remained in possession of the premises and stood to be damnified to pay damages to the Appellant to put him in a position as if the contract had been fully performed by the Respondent.
(vi) The measure of damages should have been the value of the use of the property until such time as the lessor regains possession which in effect is the rent lost.
Ground Six:
Misdirection:
That the learned trial Judge misdirected himself in his assessment of the damages he awarded to the Appellant when he applied the principle of mitigation of damages when he should have applied the principle of restitution for pecuniary loss which is consequent of the breach of the tenancy agreement entered into by both parties,
(i) The Respondent unilaterally and blatantly breached the tenancy agreement mutually entered into by both parties and ought to bear the full legal consequences of his wrongful conduct.
(ii) The general principle of assessment of damages for breach of contract is that of restitution in intergram which denotes restoration to the previous condition or status quo as far as far as money can reasonably do so.
(iii) The Respondent should have been condemned to pay the outstanding agreed rent as contemplated in the tenancy agreement Exhibit 1 since he remained in possession of the rented premises as claimed in paragraph 21(b) & (c) of the statement of claim.
The reliefs sought from this Court are the following:
1. An order allowing the appeal.
2. An order of the court upholding Reliefs (b) and (c) contained in the writ of summons and the statement of claim.
3. An order varying the amount of damages awarded upward considering the express provisions of all the clauses of the tenancy agreement (Exhibit 1).
I uphold the contention of the Respondent that Grounds 1 and 4 of the Notice of Appeal did not form part of the decision of the lower court complained of by the Appellant in her Notice of Appeal.
The complaint of the Appellant in the said Notice is not against the weight of the evidence, neither is it about the fraud of the purported 2nd tenancy agreement. The lower court had distinctly found in favour of the Appellant on the issue of the authenticity of the 2nd Tenancy Agreement and held the document to be fraudulent and refused to act on it. The issue of fraud is therefore not a live issue, the court having decided in favour of the Appellant. This ground is thus merely academic and is not relevant to the reliefs sought. Grounds 1 and 4 are accordingly struck out.
The other grounds of appeal, I however hold, relate to the part of the decision appealed against.
Learned counsel to the Respondent has also argued that Issues 1 and 2 formulated from those grounds are therefore incompetent, having no leg to stand on, and should also be struck out. Further, that Issues 3-6, distilled from Grounds 3-6 of the Notice of Appeal do not relate to those grounds. Being incompetent, they also should be struck out.
To determine Respondent’s submissions, I set out the issues for determination raised by the Appellant. These are the following:
1. Whether on the pleadings and evidence adduced in support of the pleadings the plaintiff proved in exhibit 1 (the original tenancy agreement) the existence of a valid and subsisting enforceable tenancy contract to last for five (5) years between the parties.
2. Whether based on the pleadings the letter dated 29th of March, 2010 and the annexure thereto mutually being an essential element in contract could be inferred in the so-called subsequent agreement tendered and admitted as Exhibit 14 before the lower Court.
3. Whether the action of the agents for the defendant in scanning and or photocopying the signature page of the original tenancy agreement dated 1st June, 2009 and annexing same to the undated subsequent tenancy agreement does not amount to fraud.
4. Whether the measure and quantum of damages awarded by the lower Court was not unreasonably low in view of the evidence on record.
5. Whether the rejection by the trial Court of the claims or reliefs in paragraph 21 (b) and (c) of the Statement of Claim is proper considering the material evidence on the face of the record.
6. Whether the Respondent (who was the defendant) at the trial Court actually delivered possession of the rented property to the Appellant in view of the express provisions of the agreements entered between the parties.”
I again agree with learned Counsel to the Respondent that Issues 1, 2 and 3 above, formulated from these incompetent grounds are also liable to be struck out. I accordingly strike them out.
Issues 4, 5 and 6, I however hold, are competent and arise from the grounds of appeal filed, as relevant to the part of the judgment appealed against.
Issue No 6, I note, comes up for determination in deciding Issues Nos 4 and 5 above and is therefore superfluous, I hold. I shall have regard, in consequence, solely to issues numbers 4 and 5 raised by the Appellant.
Learned counsel to the Respondent has submitted that in the event that the court rules against his Preliminary objection, the single issue that arises for determination is the following:
(i) Whether the learned trial Judge was right in dismissing claim 21(b) & (c) endorsed on the Appellant Statement of Claim?”
This issue, being similar to the 5th issue raised by the Appellant, I shall adopt as the issues that arise for determination, the 4th and 5th issues raised by the Appellant, namely:
* Whether the measure and quantum of damages awarded by the lower Court was not unreasonably low in view of the evidence on record.
* Whether the rejection by the trial Court of the claims or reliefs in paragraph 21 (b) and (c) of the Statement of Claim is proper considering the material evidence on the face of the record.
These issues shall however be taken together.
In consideration of the issues, it is necessary to give the background facts leading to the appeal before this Court.
The case of the Appellant, as averred in her pleadings and the evidence led, are that the parties entered into a tenancy agreement on the 1st of June 2009, in respect of the property at No. 1 Kachia Road, Kaduna belonging to the Appellant. By the terms of the Agreement, the tenancy was for five years from 1st day of June 2009. The yearly rent fixed, net of taxes, was N13,800,000 (Thirteen Million, Eight Hundred Thousand Naira). In compliance with the Agreement, the Respondent paid N27,600,000 (Twenty seven Million, six Hundred Thousand Naira) for the first two years of the tenancy. The agreement stipulated that the rent payable for the remaining three years shall be made 21 days prior to the expiration of the first two years.
Sometime in 2010, the Respondent wrote to the Appellant for a change of the duration of the tenancy from five years to two years, seeking to discard the first page of the agreement and page 1 of the signature page. Subsequently, in May 2011, the Respondent sought for an extension of the first two years by two months at the sum of N2,300,000 (Two Million, Three Hundred Thousand).
The Appellant refused this request, as being a breach of the Tenancy Agreement, demanding that the Respondent pay for the remaining three years. The Respondent failed to pay the balance of the rent demanded, in consequence of which the suit was instituted.
The Appellant denied that there was any subsequent agreement, as alleged by the Respondent, contending that any such agreement is false and fraudulent. The Respondent, it said, is still holding on to the keys.
The account of the Respondent, however is that the lease agreement was changed from a tenor of five years to two years and that the agreement to change from five years to two years was entered into towards the end of February 2010 but was back-dated to read the date of the previous agreement, thereby invalidating the earlier agreement. The tenure of the current agreement is thus two years with an option to renew for another three years, the tenor being from 1st June 2009 to 31st May 2011.
The Respondent notified the Appellant of its intention not to renew the lease for the further term of two months and requested for extension for another two months in order to relinquish possession. The Respondent has since relocated and is no longer in possession of the premises. It forwarded the keys together with a cheque of N3,450,000.00 to the Appellant. The Appellant, however, returned the cheque, even though it retained the keys.
The issue that arose for determination before the trial Court was:
“Whether or not the 2nd agreement duty executed was the subsisting agreement between the parties, having varied and or altered the first agreement by mutual consent of the parties.”
The trial Judge, upon a review of the evidence and written addresses of both Counsels held that the Respondent had failed to prove that there was a second agreement between the parties.
He held that the second agreement had been doctored and that the only agreement between the parties is the Tenancy Agreement (Exhibit 1), which stated that the tenancy was for a period of five years commencing 1st June 2009. The Respondent, by vacating the property on 23rd August 2011, had breached the agreement and is liable for the breach. He held, however, that a Plaintiff must always take reasonable steps to mitigate the loss caused to him by a Defendant’s wrong. The Plaintiff ought to have collected the cheque and keys sent to her since August 2011 and put up the property for rent again. He considered the claim for rent for a period the Defendant was not in occupation, as unreasonable. He thereupon entered Judgment in the following terms:
“(a) It is hereby declared that there was a valid and subsisting five years tenancy agreement dated 1st June 2009 between the parties in this case which was breached by the Defendant.
(b) Defendant shall pay all outstanding rents for the period of 1st June 2009 to 23rd August 2011, when it vacated the Plaintiff’s property.
(c) Plaintiff is awarded N2 million (two million Naira) only damages for breach of the tenancy agreement.
Defendant shall pay N53,400 (Fifty Three Thousand, Four Hundred Naira) costs being costs of filing this to the property to the Plaintiffs.
Defendants shall deliver forthwith the keys to the property to the Plaintiffs.”
The Appellant’s Counsel has argued that the trial Judge acted on a wrong principle of law in arriving at the “paltry” sum awarded as he invoked the principle of mitigation of damages instead of the principle of restitution in integrum. Where there is a concluded binding contract, there is liability if it is terminated without justification as this will amount to breach of contract. The Appellant could not mitigate her loss as the Respondent did not relinquish possession of the property to the Appellant.
Furthermore, the trial Judge, having declared that there was a valid and subsisting five year agreement, should have awarded the reliefs claimed in Paragraph 21(b) and (c) of the Statement of Claim. By limiting the award for outstanding rents to the period 1st June 2009 to 23rd August 2011 when the Court held that the Respondent vacated the property, was erroroneus, as the Respondent is still in possession of the property. The attempt by the Respondent to forward the keys was refused by the Appellant as being an abandonment of the tenancy agreement. The Appellant has suffered damage as, before the Respondent took occupation, it demolished some part of the internal walls of the property to suit its banking business and which it had not restored. The award of damages should thus be altered to reflect the losses suffered.
The Respondent’s Counsel countered, by pointing out that the Respondent led evidence showing that it sent a cheque of N3,450,000 and the keys of the property to the Appellant who returned the same. The Appellant was under a duty not to increase the damages recoverable by him by his own voluntary and unnecessary act. Any act ascribed to the Appellant’s failure to do so is a bar to the claim for damages.
The fulcrum of the appeal before this Court is the Tenancy Agreement executed by both parties. This document was received in evidence by the trial Judge as Exhibit 1. This document, I note, is contained on Pages 19-25 of the Record of Proceedings.
The salient parts of the document, as affect the issues for determination, are set out hereunder:
“I, Ms. M. A. Benson of No. 156, Isa Kaita Road, Kaduna (hereinafter referred to as “the Landlord” which expression shall where the con so admits include our successors-in-title, assigns and representatives) by this deed sub-lease better particulars whereof are provided in the schedule hereto (hereinafter referred to as” the Demised premises”) to MICROCRED of 13, rue Dieumegard, 93400 Saint-Quen, Paris for and on behalf of MC Nigeria MFB limited under incorporation (hereinafter referred to as “the Tenant” where the con so admits include their successors-in-title, assigns and representatives) for a term of 5 (five) years with effect from 01 June 2009 at
(a) a yearly rent Net of Taxes of Naira 13,800,000.00 (Thirteen Million and Eight Hundred Thousand Naira Only) per annum for the first two years amounting to Naira 27,600,000.00 (Twenty Seven Million and Six Hundred Thousand Naira only), the receipt whereof the Landlord hereby acknowledge and
(b) for years 3, 4 and 5 the rent payable for three years 21 days before expiration of the two year (sic) period calculated based on the current rent plus the total inflation rate for first the two years pegged to the Central Bank of Nigeria’s annual rate of inflation not to exceed 20% per annum.
(a) If the Tenant shall be desirous of taking a lease of the demised premises for a further term of five (5) years from the expiration of the term hereby granted, notice of its desire must be given to the Landlord in writing six (5) calendar months before the expiration of the term hereby granted, and there is no subsisting breach of the Tenant’s convenants in the present lease contained, at the cost of the Tenant a lease of the demised premises for a further term of five (5) years to commence from and immediately after the expiration of the term hereby granted at a rent to be agreed but otherwise subject to the same covenants and conditions as in the present lease contained except this covenant for renewal.
Failing the dispatch of such notice or and terminate automatically and of right without need for any notice or formally on the part of the Tenant on the expiration of the term hereby granted.
(b) That if the demised premises or any part thereof shall at any time during the said term be destroyed or damaged by fire or earthquake or by reason of any defector any repair in the demised premises so as to be unfit for habitation and use, the rent shall be suspended for the period during which the demised premises is unfit for occupation by the Tenant so However that the Tenant will be liable to the rent payable if damage to the property arises from its negligence or willful act.”
The parties have cited a number of authorities.
In Obasuyi v Business ventures Ltd (2000) 5 NWLR part 658 page 668, cited by the trial Judge and which I consider apposite, the suit was for damages as a result of negligent driving by the Appellants. The Respondent in the High court had been awarded damages for loss of use of the vehicle. The Appellant unsuccessfully challenged this award at the Court of Appeal. Their appeal was however allowed by the Supreme Court. His Lordship Belgore JSC (as he then was), reading the Lead Judgment, at Page 683 Paragraphs E-G held as follows:
“In cases of this nature, it is always expected of the Plaintiff to mitigate the loss suffered due to negligence of the Defendant. It is incumbent upon him to get such damaged vehicle repaired at the earliest opportunity. This is the requirement of the law all over the world. It is not confined to Common Law, and it is based on common sense and reasonableness. To allow a party that is a victim of negligence time almost in perpetuity to leave his damaged object unrepaired and expect damages to be calculated against years rather than few days is giving a blank cheque to rake in undeserved compensation. The Respondent had got many vehicles, sixteen of them, there was no evidence that these vehicles were not running at profit or that the company had no access to bank to raise money for prompt repairs so as to mitigate loss. (See Linus Onwuka & Anor vs. R.I. Omogui (1992) SCNJ 98, 124). The claim for 262 days of loss of use is most unreasonable and the award of damages for that is unjustified. (See for persuasive effect the cases of British Westinghonee Electric Company Ltd vs. Underground Railways Company of London Ltd. (1912) AC. 673, Dredger Liestosch Company vs. Owners of Steamship Edison (1933) AC 449).
It is therefore clear that the only claim of damages maintainable is that of cost of repairs as submitted by Messrs. A.G. Leventis Ltd for N372,778.06 and nothing more.”
His Lordship Ogundare JSC, contributing, held, at Page 686 Paragraph E-F:
“It is settled that a Plaintiff is under duty to mitigate his damages and any neglect by him in this respect is a bar to a claim. The question what is reasonable for a Plaintiff to do in mitigation of his damages is however a question of fact, and not of law, in the circumstances of each case and the burden is on the defendant to show that the Plaintiff failed to mitigate his loss. Sowole v. Nigersol Construction (1970) NCLR 435. See also Onwuka v. Omgui (supra) and the cases cited therein.”
A case closer to the facts of this case is that of Reynolds construction Company Nigeria Ltd v Rockonoh Properties Company Ltd (2005) 10 NWLR Part 934 Page 615.
In that case, the Respondent alleged that following the expiry of the tenancy, the Appellant refused to restore the premises to its pre-tenancy condition. In consequence, the Respondent refused to accept the keys to the property and sued the Appellant for arrears of rent and mesne profits. The trial court refused the Respondent’s claim in its entirety for failure of the Respondent to mitigate its damages. The court of Appeal allowed the appeal against the trial court’s judgment. On a further appeal by the Appellant (Plaintiff) to the Supreme Court, the Court unanimously allowed the appeal.
Oguntade JSC reading the lead Judgment held at 638 Paragraph D-H:
The learned author of Halsbury’s Laws of England, 4th Edition, Vol. 12(1) at paragraph 1041 discusses the nature of a plaintiff’s duty to mitigate loss thus:
“The plaintiff must take all reasonable steps to mitigate the loss which he has sustained consequent upon the defendant’s wrong and if he fails to do so, he cannot claim damages for any such loss which he ought reasonably to have avoided. Where the plaintiff does mitigate his loss he cannot recover damages in respect of that avoided loss even if the steps he took to avoid the loss are characterized as being more than what was reasonably necessary. The duty only arises upon the commission of a tort or breach of contract.
And as to the standard of conduct required of the plaintiff, the same author writes at paragraph 1042 page 457:
“The plaintiff is required only to act reasonably and whether he has done so is a question of fact in the circumstances of each particular case and not a question of law. He must act not only in his own interest but also in the interest of the defendant and keep down the damages so far as it is reasonable and proper, by acting reasonably in the manner. One test of reasonableness is whether a prudent man would have acted in the same way if the original wrongful act had arisen through his own default.”
In the case cited by the lower Court, in justification of its decision, the Court of Appeal in Udeagu v Benue Cement Co. PLC (2006) 2 NWLR Part 96g Page 600 at 627 Paragraphs C-E, per Sanusi, JCA held:
“I must emphasise here and it is even trite law, that a Plaintiff must always take all reasonable steps to mitigate the loss to him caused by a Defendant’s wrong or breach. A Plaintiff cannot be allowed to claim or recover damages for any loss which he could have avoided but has failed through unreasonable action or inaction to avoid. In the instant case the claims he made, for example, on rentage of shop, salaries for four staff ought to have been mitigated by him but he failed to do so…He cannot therefore be allowed to wholly claim them. This issue therefore succeeds in part”
In the instant case, the undisputed facts are that the Respondent vacated the property on the 23rd August 2011 and forwarded the keys of the property to the Appellant with a cheque for N3,450,000.00. The Appellant’s agent received the same only to send them back.
As posed in the case of Reynolds Construction Company Nigeria Ltd v Rockonoh Properties Company Ltd Supra, would the Appellant have acted in the same way if the original wrongful act had arisen through her own default? The answer must be in the negative.
The Appellant cannot be allowed time, almost in perpetuity, to leave the object of the breach and, instead of mitigating her loss, expect damages to be calculated for a length of time that may have been avoided.
The lower Court was right, I hold, to have stated that the Appellant ought to have collected the cheque and the key sent to her since August 2011 and mitigated her loss by putting up the property for rent.
By refusing to accept the cheque and the keys sent by the Respondent and put the property up for lease, and then commencing an action claiming special damages for the losses incurred, are not the steps which a reasonable man would take.
The Appellant, I hold, is bound by duty to act not only in her own interest but also in the interest of the Respondent and keep down the damages so far as it is reasonable and proper.
I am in total agreement with the lower Court in its decision that the Appellant had failed to mitigate her loss. This, by the authorities above, are a bar to the Appellant’s claims in Paragraphs 21 (b) and (c) of the Statement of Claim.
While agreeing with the Appellant’s Counsel that the Appellant is entitled to damages for reversion of the property to the original state, this should have been claimed as special damage which would require strict proof. This was however not sought for and cannot be awarded under general damages. Indeed the lower Court, in spite of the failure of the Appellant to mitigate damages still proceeded to award general damages in the sum of N2 Million.
I find no error of law committed by the lower court or misdirection, and resolve both issues for determination in favour of the Respondent. Having so done, the appeal of the Appellant, I hold, lacks merit and is hereby dismissed. I affirm the Judgment of the lower Court. Costs of N50,000 are awarded in favour of Respondent.
ABDU ABOKI, J.C.A.: I have the opportunity of reading the draft judgment of my learned brother OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, and I agree with her reasoning and conclusions that this appeal lacks merit and be dismissed. I too affirm the judgment of the lower Court.
AMINA AUDI WAMBAI, J.C.A.: I have been privileged to read in advance the judgment of my learned brother, Oludotun Adebola Adefope-Okojie JCA and I entirely agree with his reasoning and conclusion. I also find that the appeal is bereft of any merit and dismiss same. I affirm the judgment of the lower court. I abide by the order of cost made in favour of the Respondent.
Appearances
MR. Abubakar Garga GundaFor Appellant
AND
MR. R. T. Adekoya and MR. Ali, holding the brief of Dele OlaniyanFor Respondent
