OCEANIC BANK INTERNATIONAL PLC v. AWETO GUEST QUARTERS HOTELS LTD (2011)

OCEANIC BANK INTERNATIONAL PLC v. AWETO GUEST QUARTERS HOTELS LTD

(2011)LCN/4566(CA)

In The Court of Appeal of Nigeria

On Monday, the 23rd day of May, 2011

CA/PH/210/2008

RATIO

MESNE PROFIT: WHAT A “MESNE PROFIT” ENTAILS

Mesne Profits, as oputa, JSC put it in DEBS v. CENICO LTD (1986) 3 NWLR (pt. 32) 846 at 851, is “only another term for damages for trespass arising from the particular relationship of landlord and tenant”. PER EJEMBI EKO, J.C.A

MESNE PROFIT: WHAT A CLAIMANT MUST PROVE IN A CLAIM FOR MESNE PROFIT

Mesne Profits is not a claim for special damage, requiring strict or specific proof. Suffices only that the claimant for Mesne Profits proves his assertion that his tenant held over his demised property unlawfully after the termination of his tenancy. The claimant does not have any greater burden of proof to discharge than the burden of proof under sections 135 – 137 of the Evidence Act. He only needs to prove that the defendant, his tenant, held over the leased property after the termination of his tenancy and that this has prevented him from realizing or earning economic rents from the property. PER EJEMBI EKO, J.C.A

AWARD OF DAMAGES: WHETHER A COURT CAN AWARD DAMAGES FOR UNLIQUIDATED PECUNIARY DAMAGES WITHOUT TAKING EVIDENCE FOR THE ASSESSMENT OF THE AMOUNT OF DAMAGES

A court is not to enter summary or default on a claim based on a relief for payment of unliquidated pecuniary damages without taking evidence for the assessment of the amount of damages that may be proved as such a claim must be established by credible evidence. This is because it not enough for the court to simply award damages in an unliquidated pecuniary damages claim without giving any reason as to how it arrived at what in its opinion amounted to reasonable damages UMUNNA v. OKWURAIWE (1978) 6-7 SC. 1; OLUROTIMI V. IGE (1993) 8 NWLR (pt 311) 257 referred to) Upon my community reading of Order 20, Rules 3,4, and 7 of the 2006 Rules of the High Court of Rivers state. PER EJEMBI EKO, J.C.A

ADMITTED FACTS: WHETHER ADMITTED FACT NEEDS FURTHER PROOF; EFFECT OF ADMITTED FACTS ON THE PARTY MAKING THEM

Evidence Act also provides that facts which are expressly admitted or which by the rules of pleading are deemed admitted need no further proof. See section 75 thereof and DIN V. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR (pt 139) 392 at 405. Admissions per se may not be conclusive proof of the facts admitted but they may, by dint of Section 151 of the of Evidence Act, operate as estoppel against the party admitting or deemed to be admitting the facts. PER EJEMBI EKO, J.C.A

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

OCEANIC BANK INTERNATIONAL PLC Appellant(s)

AND

AWETO GUEST QUARTERS HOTELS LTD Respondent(s)

EJEMBI EKO, J.C.A (Delivering the Leading Judgment): On 4th June, 2007 Hon. P. E. Ebeku, J of the Rivers State High Court in a judgment delivered upon an application for final judgment in the suit No. PHC/430/2006 on the ground that the defendant, the present Appellant, had failed, neglected or refused to deliver his defence to the suit of the respondent, who was the claimant. The learned trial judge, in the said default judgment, make the following orders directing the defendant/Appellant.
1. To deliver, immediately, vacant possession of the property and Premises with appurtenances situate, lying and being at plot 333 Trans-Amadi Industrial Layout, Port Harcourt to the Claimant/Respondent, and
2. To pay mesne profits at the rate of N15,000.000.00 per annum from 1s June, 2005 until vacant
possession of the property is given to the Claimant/Respondent.
The Appellant, as the defendant, being aggrieved by the said judgment and/or orders has appealed on two grounds of appeal, namely:
GROUND 1
The learned trial Judge erred in law when he proceeded to enter final Judgment for the Respondent in default of pleadings by the Appellant without calling upon the Respondent to lead evidence in proof of its case.
PARTICULARS OF ERROR
(a) The Respondent’s claim before the court below is for vacant possession and the sum of N15,000,000.00 Per annum as mesne profit
(b) Mesne Profit is unliquidated damages which requires the person claiming it to lead evidence in Proof of its entitlement to it to enable the court assess the quantum of damages to award as mesne profit
(c) The Trial Judge did not call evidence (sic) from the Respondent to support its claim for mesne profit before proceeding to enter final judgment on the claim for mesne profit
GROUND 2.
The learned trial Judge erred in law when he proceeded to enter final Judgment against the Appellant in default on (sic) pleadings based on the Respondent’s motion on Notice dated and filed 22.09.2006.
PARTICULARS OF ERROR
(a) The Respondent’s motion on Notice was dated and filed on 22.09.2006 before the matter was even assigned to the trial Judge and the facts in support of the motion occurred on or before 22.09.2006.
(b) Subsequently, the matter was stayed pending reference to arbitration until 23.04.2007 when the order was varied and the proceedings continued wherein the learned Trial Judge granted the Appellant 14 days from 23.04.2007 to file and serve its statement of Defence on the Appellant.
(c) Consequent upon the default by the Appellant the learned Trial Judge Proceeded to enter final Judgment based on the motion on Notice filed and dated 22.09.2006 which had been overtaken by events.
It is from these two grounds of appeal that the Appellant, from its Brief of Argument filed on 5th June, 2008, has formulated the following lone issue . That is:-
Whether the learned Trial Judge could have properly relied upon the Respondent’s motion dated 22.09.2006 to enter final Judgment against the Appellant in default of pleadings in absence of specific proof of the mesne profit claimed by the Respondent?
It is clear from the lone issue formulated by the Appellant that it has no complaint against the order directing it to immediately surrender vacant possession of the property and premises with appertuances situate, lying and being at plot 333 Trans-Amadi Industrial/Layout Port Harcourt to the claimant/Respondent.
The focus of the appeal, as narrowed down by the lone issue for determination, is whether in absence of any evidence proving the mesne profits the learned trial judge could have properly relied on the Respondent’s motion on Notice filed on 22nd September, 2006 to enter the final judgment directing it, the Appellant, to pay N 15,000,000.00 as mesne profits annually to the Claimant/Respondent from 1st June 2005 until vacant possession of the said property was delivered to the Claimant/Respondent, as the Landlord.
The suit, the subject of this appeal, was commenced under the High Court (Civil Procedure) Rules 2006 of Rivers State, the commencent date of which was the 1st day of January 2006. The writ of summons was taken out on 25th April, 2006 and it was served on Appellant, as the defendant, on 26th April, 2006. The writ served on the Appellant was accompanied by the statement of claim and depositions on oath of two witnesses. There were documents exhibited to the said depositions on oath of the two witnesses. Order 15 Rule 1 (2) of the said High Court (Civil Procedure/Rules, 2006 makes it imperative that the defendant, as this Appellant, served the writ of summons taken out in terms of Order 3, Rule 2 of the Rules,  “shall file his statement of defence.. not later than 42 days after service on him of the Claimant’s originating process and accompanying documents”. Under Order 3, Rule 2 –
(1) All Civil Proceedings commenced by writ of summons shall be accompanied by:
(a) Statement of claim;
(b) List of witnesses to be called at the trial;
(c) Written statements an oath of the witnesses and (d) Copies of every document to be relied upon at the trial.
The writ of summons, the originating process, served on the Appellant, as the defendant, on 26th April, 2006 was duly accompanied by the statement of Claim, written statements on oath of two witnesses to be called at the trial and copies of the documents the Claimant/Respondent intended to rely upon at the trial. The Appellant, in the Brief of Argument acknowledges that the Claimant’s Claim served on it was “endorsed on the writ of summons” and that the Claim was “amplified by the statement of claim which was filed simultaneously with the writ of summons”
The statement of claim endorsed with the statement of claim, as I earlier stated, was served on the Appellant on 26th April, 2006. He entered conditional Appearance to the suit on 10th May, 2006. On 2nd June, 2006 (about 37 days after the writ of summons and the statement of claim were served on it) the Appellant filed a motion for “stay of further proceedings pending Reference to Arbitration.” By this 2nd June, 2006 the Appellant, as the defendant, had about 5 more days to file statement of defence. This apparently is a dilatory strategy to enable the Appellant buy time. Order 22 of the High Court (Civil Procedure) Rules has abolished demurrer and Rule 2 thereof states that “any party may by his pleadings raise any point of law and the Judge may dispose of the point so raised before or at the trial”. The Appellant, as at the time of filing this motion for stay of proceedings pending reference to arbitration, had not filed any statement of defence wherein he could have raised such special defence or point of law. On 26th March, 2007 the learned trial Judge granted on order staying further proceedings pending reference to arbitration of the purported dispute over the lease of 2003 a two year term that lapsed on 31st May 2007 without renewal. When it became apparent that the Appellant was in no mood of referring the dispute to arbitration the court below, on the application of the landlord, the Respondent, vacated the order staying further proceedings on 23rd April, 2007, and further directed the Appellant’ the defendant, to” without fail file and serve its statement of defence and other relevant documents -on the Claimant within 14 days ” The Appellant did not take advantage of this magnanimity of the court below. No defence was filed until the trial court entered final judgment on 4th June, 2007 on the application for the same filed on 22nd September, 2006.
It is the contention of the Appellant that since on 23rd April, 2007 the trial court granted it further 14 days to file statement of defence, which ended on B May, 2007; it was only after the  said 8th May, 2007 that the Respondent, the Claimant, could apply for final judgment under Order 20 Rules 3, 4 and 7of the High Court (Civil procedure) Rules. In otherwords, it is the contention of the Appellant that the application for final judgment filed on 22nd September, 2006 was premature and irregular since the 42 days allowed it to file statement of defence after service of the statement of claim on it on 26 April, 2006 had not yet elapsed. In my own reckoning the 42 days elapsed on or about the 8th June, 2006. The Claimant/Respondent filed the application for final judgment on 22nd September, 2006 about 148 days after the Writ of Summons together with  the Statement of Claim was served on the Appellant, the defendant.
The Appellant had no doubt misconceived the law when it argued that the motion for final judgment in default of pleadings, filed on 22nd September, 2006, “was dead at the time it was heard and the learned trial Judge erred not only by allowing it to be revived but also by entertaining and relying on it to enter judgment against the Appellant”. The argument, if not delusive, is most disingenuous and has been proferred out of sheer desperation. The fact that the motion filed on 22nd September, 2006 for final judgment was dormant or in hibernation and was kept in abeyance does not in any way render it less viable or potent after wards. An application in hibernation or kept in abeyance can always be revived, and when it is revived it is as good as any application for the reliefs it seeks.
The contention of the Appellant that an application is made in court at the time of filing and not when it is moved, relying on UBA Plc v. MODE (NIG) LTD (2000), NWLR (Pt. 640) 270; (2001) FWLR (Pt.40) 1664, does not avail the Appellant. As at the time the motion for final judgment was filed on 22nd September, 2006 the Appellant, served the Writ and statement of Claim on 26th April, 2006 was grossly or inordinately out of time in filing its statement of defence by no less than 106 days. From 26th April, 2006 to 22nd September, 2006 was about 148 days. The Appellant had 42 days by virtue of order 15 Rule 1 (2) of the extant Rules of the trial court to file its statement of defence.
I also do not agree with the Appellant that the motion for final judgment filed on 22nd September, 2006 at the time it was moved and in view of the further 14 days the trial court suo motu, and gratuitously for that matter, granted the Appellant to file its defence ought to have been deemed abandoned and over taken by events.
These facts, in actuality, reinforce the claimant/Respondent’s position that the Appellant was not interested in defending the suit . Not even the ex-gratia prodding of the trial court could move it to file defence.
The suit was one for vacant possession of a business premises and mesne profits. I agree with the Appellant that a claim for mesne Profits is an unliquidated claim. see MARINE AND GENERAL ASSURANCE V. ROSSEK (1986) 2 NWLR (pt. 25) 750 at 763 and WEMABOD LTD V. JOYLAND LTD (2001) 8 NWLR (pt 74) 22. Mesne Profits, as oputa, JSC put it in DEBS v. CENICO LTD (1986) 3 NWLR (pt. 32) 846 at 851, is “only another term for damages for trespass arising from the particular relationship of landlord and tenant”. Mesne Profits is not a claim for special damage, requiring strict or specific proof. Suffices only that the claimant for Mesne Profits proves his assertion that his tenant held over his demised property unlawfully after the termination of his tenancy. The claimant does not have any greater burden of proof to discharge than the burden of proof under sections 135 – 137 of the Evidence Act. He only needs to prove that the defendant, his tenant, held over the leased property after the termination of his tenancy and that this has prevented him from realizing or earning economic rents from the property.
The facts of this case are that the claimant, the Respondent, leased his property, a business premises, to the Appellant in 2003 for a term certain of two years from 1st June 2003 to 31st May 2005. This fact is in the deed of lease exhibited in the originating process and verified by the depositions on oath that accompanied the writ of summons and the statement of claim. This lease, in paragraph 1 (g) thereof, has a clause to the effect that at the expiration of the lease the tenant (the Appellant) shall peaceably yield up the demised premises to the landlord ( the Respondent). Paragraphs (a) of the said deed of lease provides inter alia-
3. (a) if the Tenant wishes to take a further lease of the demised premises from the end of the contractual term (he shall give) to the Landlord not less than three (3) months Notice of that wish, then the Landlord may grant to the Tenant a further lease of the demised premises for a term of two (2) years or more commencing for the day following the last day of the contractual term on the Same term and conditions as lease except as to this option to renew for a further lease and the rent payable.
The case of the Claimant/Respondent, as averred in paragraphs 5,6,7,8 and 9 of the statement of Claim, is that the Appellant, the tenant, “did not exercise the option to take a further lease of the demised premises and that the said Lease (therefore) became determined by affluxion of time on the 31st May, 2005”. That upon the determination of the said lease by affiuxion of time the Respondent, as the Landlord, “negotiated with other prospective tenants to let the demised premises at the rate of N15 million per annum”‘ That the Respondent’s Chairman following the determination of the lease, met several times with the Managing Director of the Appellant to demand vacant possession of the demised premises and all the efforts yielded no result. It is further averred that consequent upon the failure and I or refusal of the Appellant to yield up vacant possession of the demised premises the Respondent on the 2nd December, 2005 instructed their Counsel to issue “Notice to Tenant of Owner’s Intention to apply to recover possession of the Premises (a.k.a the seven (7) days Notice) and that Respondent’s Counsel issued the said Notice which was served on the Appellant on 7th December 2005. Both the instruction to counsel to issue the Notice, and the Notice dated 6th December, 2005 are pleaded. They are, like the deed of lease, exhibited in the deposition on oath of Ernest Asak, Esq. at pages 10-35 of the Record.
It is further averred in the Statement of Claim and verified by the deposition on oath of Ernest Asak,, Esq that the Appellant on 19th December, 2005, upon receipt of the Landlord’s Notice of Intention to Recover vacant possession of the demised premises, “offered to renew the expired lease for a further term of two (2) years at the old rate of N3 Million per annum”. The Respondent’s solicitors refused the offer of N3,000,000,00 per annum as rent for the demised premises and insisted on the prevailing rental value of N15,000,000.00 per annum for the demised premises. These documents are exhibited in the deposition on oath of Ernest Asak, Esq. at pages 10 -35 of the Record. The deposition on oath of chief H. I. S Idisi, the chairman/chief Executive of the Respondent, is at pages 7-9 of the Record. In paragraph L7 of the said deposition the said chief Idisi states without ambiguity.
17. The Claimant on all occasions/correspondence between the parties, made it abundantly clear to the Defendant (Appellant) that the going rental for the demised premises since 1st June, 2005 is N15 Million per annum which same Defendant is expected to pay as Mesne Profits having unilaterally stayed over till date.
This deposition on oath, like that of Ernest Asak, Esq at pages 10-35 of the Record were served on the Appellant together with the Writ of Summons and the statement of claim on 26th April, 2006, was neither challenged nor traversed’ They are part of the processes the Claimant/Respondent was enjoined by Order 3 Rule 2 (1) of the High Court (Civil Procedure) Rules, 2006 to serve on the Defendant /Appellant. They were served timeously on the Appellant on 26th April, 2006. The Appellant neither filed statement of defence nor made any feeble effort whatsoever, notwithstanding the further 14 days indulgence the learned trial Judge granted gratis to the Appellant on 23rd April, 2007 to file and serve the Claimant/Respondent their statement of defence.
It is on this foregoing premises that the arguments of the parties in this appeal can be appreciated. Notwithstanding the provisions of order 3 Rule 2 (1) of the extant Rules of the trial court and the processes served on the Appellant on 26th April, 2006 the appellant argues that the learned trial judge erred in law by proceeding to enter final judgment for Mesne Profits without calling on the Respondent to led evidence in support of the amount claimed as Mesne profits and that there was no form or iota of evidence from the Respondent to ascertain the amount of N15,000,000.00 per annum claimed as Mesne profits. The Appellant has completely misconstrued the essence and intendment of order 3, Rule 2 (1) of the extant Rules of court on front loading of the evidence the Claimant in a suit intends to use at the trial against the defendant.
The front loaded evidence of Chief Idisi and Ernest Asak, Esq at pages 7-35 of the Record are prima facie credible and they support and verify the claim for N15,000,000.00 annually as Mesne Profits for the demised property of the Respondent held over by the Appellant after the 2003 deed of lease had run out by affluxion of time. The appellant did not refute the assertion verified by the depositions on oath that the prevailing annual rental value for the said business premises was N15,000.000.00 and that some tenants had agreed to pay the same rent per annum for the said premises. It is, therefore, idle as posted by the appellant, that there was no form or iota of   evidence from the Respondent to support the amount of N15,000,000.00 claimed by the Respondent as Mesne Profits annually for the said demised premises herd over by the Appellant, unlawfully’ after its lease for true years had been determined by affluxion of time without renewal.
Finally, the Appellant contended that the learned trial judge did not follow the procedural steps in order 20, Rules 3, 4 and 7 of the extant Rules of the trial court. And that in the absence of defence the learned trial Judge ought first to have entered an interlocutory judgment for the Respondent and thereafter call upon the Respondent to ascertain the amount claimed as Mesne Profits. Appellant further submits that the failure of the learned trial Judge to follow the procedural stipulations had materially affected the merits of the case and thus had made the Appellant to suffer substantial miscarriage of justice. The case of MAJA v. SAMOURIS (2002) 7 NWLR (Pt765) 78, (2002) FWLR (pr. 98) 818 was cited in aid of the contention that procedural steps were not followed and that where the defendant is in default of pleading in a claim for Mesne Profits the trial judge shall first enter an interlocutory Judgment in favour of the claimant and thereafter call upon the claimant to establish his claim to mesne profits or unliquidated sum.
I have read MAJA v. SAMOURIS (supra). It was decided under the 1972 High Court (Civil Procedure) Rules of Lagos State which do not have the innovative provisions for front loading of the evidence the claimant intends to rely upon at the trial as Order 3, Rule 2 (1) of the extant Rules of Rivers State High Court. That judgment emphasized the point that summary or default judgment in an action for unliquidated pecuniary damages shall be based on credible evidence. At page 879 E-F of (2002) FWLR (pt 98) Iguh JSC drives home the point thus-
A court is not to enter summary or default on a claim based on a relief for payment of unliquidated pecuniary damages without taking evidence for the assessment of the amount of damages that may be proved as such a claim must be established by credible evidence. This is because it not enough for the court to simply award damages in an unliquidated pecuniary damages claim without giving any reason as to how it arrived at what in its opinion amounted to reasonable damages UMUNNA v. OKWURAIWE (1978) 6-7 SC. 1; OLUROTIMI V. IGE (1993) 8 NWLR (pt 311) 257 referred to) Upon my community reading of Order 20, Rules 3,4, and 7 of the 2006 Rules of the High Court of Rivers state, it is my firm view that the emphasis is on the proof or ascertainment of the amount  claimed as mesne profits. The rules of evidence had not been. jettisoned By sections 135-137 of the Evidence Act the burden is on the party who asserts the existence of a fact, in order to be entitled to the judgment of the court, to prove the fact he asserts. Therefore, where an amount, claimed as mesne profits is a fact in issue, such fact must be proved or ascertained by the claimant. Evidence Act also provides that facts which are expressly admitted or which by the rules of pleading are deemed admitted need no further proof. See section 75 thereof and DIN V. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR (pt 139) 392 at 405. Admissions per se may not be conclusive proof of the facts admitted but they may, by dint of Section 151 of the of Evidence Act, operate as estoppel against the party admitting or deemed to be admitting the facts.
Accordingly, the Appellant having not denied the depositions on oath of the Respondent’s two witnesses and having also not denied the   averments in the statement of claim is deemed to have admitted those facts. The Respondent is therefore estopped from denying that the current rental value of the demised premises which it held over after the ceasation of the 2003 deed lease by effluxion of time is N15,000,000.00 per annum. In the circumstance what other proof or ascertainment of the N15,000.000.00 claimed as annual mesne profit of the demised property does the Appellant need, apart from recourse to crass or arcane technicality in order to remain on the demised property.”
The Appellant seems to think, and incorrectly too, that Order 20, Rules 3 & 4, his talisman, are sacrosanct. Surely, in view of legislative superiority the provisions of the Evidence Act enjoys over the High court (Civil Procedure) Rules in respect of admitted facts by dint of section 4 (2) & (5) of the Constitution of the Federal Republic of Nigeria, 1999, if ever there is a conflict between Order 20, Rules 3 & 4 of the High Court (Civil Procedure) Rules and the provisions of the Evidence Act (evidence being item 23 on the Exclusive List) over facts admitted the provisions of the Evidence Act will prevail. The effect of Sections 75 and 151 of the Evidence Act is that facts which are admitted and which are deemed admitted need no further proof. Let me reproduce order 20 Rules 3, 4 and 7 of the High Court (Civil Procedure) rules of Rivers State to drive home the point.
20.3. If the Claimant’s claim be for pecuniary damages or for detention of goods with or without a
claim for pecuniary damages only, and the defendant or all the defendants, if more than one, make default as mentioned in Rule 1 of this Order, the claimant may apply to a judge for interlocutory judgment against the defendant or defendants and the value of the goods and the damages, or the damages only, as the case may be, shall be ascertained in any way which the judge may order.
4. When in any such action as in Rule 3 of this Order there are several defendants. If one or more of them make default as mentioned in Rule 1 of this Order, the Claimant may apply to a Judge for Interlocutory Judgment against the defendant or defendants so making default and proceed with his action against the others.
In such case the value and amount of damages against the defendant making the default shall be assessed at the trial of the action or issues therein against the other defendants, unless the judge shall otherwise Order.
7. Where the Claimant has indorsed a claim for mesne profit or arrears of rent in respect of the premises claimed, or any part of them , or damages for breach of contract or wrong or injury to the premises claimed upon a writ for recovery of land, if the defendant makes default as mentioned in Rule L, or if there be more than one defendant, some or one of the defendants make such default, the claimant may apply for final judgment against the defaulting defendant or defendants and proceed as mentioned in Rules 3 and 4.
The draftsman any be clumsy in the way the foregoing rules are drafted. one thing however is very clear. The claim for mesne profit or unliquidated or pecuniary damages has to be ascertained. The foregoing Rules have to be read together with order 3, Rule 2 (1) earlier reproduced. If at the end of the day the mesne profit or pecuniary damage, as the case may be, claimed is articulated and verified under order 3, Rule 2 (1) of the extant Rules are not denied or challenged then they are deemed admitted. And facts admitted need no further proof. It is trite that admissions are the best form of evidence.
I have read MOBIL PRODUCING (NIG) UNLIMITED & ANOR V. CHIEF HON. SIMEON MONOKPO & ORS (2001) 18 NWLR (Pt.744) 212 cited by the Respondent wherein at page 245 Ekpe, JCA states-
Where the plaintiff’s claim against a Defendant is for unliquidated damages only, then if that Defendant makes default in pleading, the plaintiff may after the expiration of the period fixed aforesaid for service of defence have judgment entered against the defendant for damages to be assessed by the Court and costs and may proceed against the other defendants, if any.
His Lordship is not saying any thing different from Iguh, JSC as he did in MAJA v. SAMOURIS (supra). The point I have been labouring to make is that where there are materials on which the court can exercise its discretion judicially and judiciously, as in the instant case, nothing prevents the trial court from proceeding to enter final judgment in favour of the claimant of mesne profits or pecuniary damages after duly assessing the amount ordered to be paid as mesne profit or pecuniary damages from the available evidential materials.
From the peculiar circumstance of this case I do not think the appellant is right on their insistence that in the absence of their defence the learned trial judge ought to have first entered interlocutory judgment for the Respondent and thereafter call upon the Respondent to ascertain the amount claimed as mesne profit.
The amount of N15,000.000.00 claimed as mesne profit per annum until the Appellant delivered vacant possession was articulated in the statement of claim that accompanied the writ of summons. The said amount was verified or ascertained by the depositions on oath of the two witnesses. The said depositions, like the statement of claim, accompanied the writ of summons served on the Appellant on 26th April, 2006 in accordance with order 3 Rule 2(1) of the extant Rules of the trial court. I am satisfied that there has been no substantial miscarriage of justice. The appellant was given sufficient opportunity to join issues with the averments in the statement of claim and refute or challenge the depositions on oath of the witnesses namely chief Idisi and Ernest Asak, Esq but however chose not is to. The Appellant therefore estopped from insisting that the Respondent did not ascertain his claim of N15,000,000.00 as the mesne profit per annum in respect of the demised business premises which upon ceasation of the two year lease the Appellant unlawfully and unilaterally held over from the Respondent and refused to deriver vacant possession of to Respondent, the Landlord.
In view of all I have laboured to say; it is my considered view that there is no substance in the tone issue for determination in this appeal. I therefore resolve the issue against the Appellant.
on the whole there is no substance this appeal and it is hereby dismissed.
The orders made by the court below are hereby affirmed.
Costs assessed at N60, 000.00 are hereby awarded against the appellant in favour of the Respondent.

M. DATTIJO MUHAMMAD, J.C.A.: I read before now the read judgment of my learned brother EKO JCA, I entirely agree with his reasonings and conclusions that the appeal lacks merit. For all the reasons contained in the lead judgment, I also dismiss the appear and affirm the lower court’s decision. I abide by the order on cost decreed in the lead judgment.

T.O. AWOTOYE, J.C.A.: I have had a preview of the judgment just delivered by my learned brother EJEMBI EKO JCA. I completely agree with that this appeal lacks substance and deserves to be dismissed.
I wish to however make some additional comments. The lone issue distilled from the brief of argument it:-
“whether the learned trial judge could have  properly relied upon the Respondents motion dated 22/9/2006 to enter final judgment against the Appellant in default of pleadings in absence of specific proof of the use of mesne profit claimed by the Respondent?”
Learned counsel for the appellant rested heavily on the cage MAJA v. SAMOURIS (2002) 7 NWLR (pt. 765) 78 at 104 where Iguh JSC said:-
“It cannot be emphasized that a court is not entitled to enter summary or default judgment on a claim based on a relief for payment of unliquidated pecuniary damages that may be proved as such a claim must be established by creditable evidence. This is because it is not enough for the court to simply award damages in an unliquidated pecuniary damages claim without giving reason as to how it arrived at what in its opinion amount to reasonable
Damages.”
Learned counsel referred to order 20 Rules 3 and 7 of rivers State High Court Civil Procedure Rules of 2006 and submitted that the learned trial judge erred by proceeding to enter final judgment against the appellant without taking any form of evidence from the respondent to ascertain the amount to be awarded as mesne profit.
What was before the court below that warranted the entry of the judgment?
No doubt, the defendant failed to file its statement of defence as required by the rules of court. It is also beyond argument that the provision of order 20 of the rules was rightly invoked to give judgment against the defendant kin default of pleadings. That clearly is not the grouse of the defendant now appellant. the real complaint of the appellant is about the mesne profit of 15 Million Naira award against him. Appellant’s contention is that:
(i) evidence was not adduced
(ii) the mesne profit was not assessed or ascertained.
Is this correct?
By virtue of order 3 rule 2(1) of the 2006 rules the plaintiff must accompany its writ of summons with, among other things, written statement on oath of the witnesses. This the plaintiff did at the court below. Copies of documents to be relied upon in assessing the mesne profit and proving its claim were also filed and served on the defendant. See pages 1 – 34  of record of appeal. in paragraphs 13 and 15 of the statement on oath of ERNEST ASAK on pages 10 – 12 of record and paragraph 17 of the statement on oath of Chief IDISI, on page 9, the witnesses deposed to the fact the new rate of n15, Million was demanded from the defendant. The relevant documents were served on the defendant, yet the defendant did not file necessary processes.
There is need to first state that it is not every error in a case that will result in an appeal being allowed.
Only on error that has occasioned miscarriage of justice to the can lead disturbance of the judgment of the court below. see NWAEZE V. THE STATE (1996) 2 NWLR (pt. 428) 1; CHIEF OJE & ANOR V. CHIEF BABATOLA & 2 ORS (1991) 4 NWLR (pt. 185) 267 at 282; ALL  & ANOR V. CHIEF ALESINLOYE & ORS (2006) 6 NWLR (PT. 660)177 at 213; IKE v. OGBAJS (1993) 3 WACA 45. For this appeal to succeed the appellant must show there was indeed an error and miscarriage of justice had been occasioned.
Was there evidence before the court below to sustain the mesne profit of 15 million awarded? I have earlier reviewed the processes filed by the claimant.
What remains to be added to it is that on 22/9/2006 the claimant filed a motion on notice praying for final judgment. The application was supported by 10 paragraph affidavit.
paragraph 10 of the said affidavit is to the effect that the Defendant/Respondent had no defence on merits to the claimant’s claim. see page 38 of record of appeal. The motion on notice and affidavit were served on the defendant (now appellant) but it did not file a counter-affidavit to controvert. The meaning is the averment in paragraph 10 0f the said affidavit is unchallenged and is to be deemed as true. See OGOEJE OFO V. OGOEJE OFO (2006) 3 NWLR (pt. 966) 205. The trial judge in his judgment on page 93 of record of appear remarked. “There is no counter affidavit to the instant motion for judgment notwithstanding that the said process was served on the defendant/respondent on 11th October 2006.” The learned trial obviously acted on this evidence. Was he right?
True, order 20 Rule 34 and 7 of the Rivers state High court Rules require assessment or ascertainment of mesne profit before it is awarded. It also true that evidence of fact under the Rules shall be proved by written deposition and oral examination of witnesses. see order 32 Rule 1 and that a witness is to confirm his written deposition
and tender documents that are disputed as exhibit. see order 32 Rules 2 Undisputed documents, shall be tendered from the Bar as Exhibits. see order 32 Rule 2. This means documents to be used by the court must be tendered and admitted as exhibits which was not done by the court below.
However a look at order 11 Rule 1 – 3 and 5 (2) which is on summary judgment reveals, that in similar situations “where it appears that the defendant has no good defence the judge may thereupon enter judgment, for a claimant.” see order 11 Rules 1 3 and 5(2) of the Rivers state High court civil Procedure Rules of 2006 which read.”
“1. persons may be joined in one action as plaintiffs in whom any right to relief (in respect of or arising out of the same transaction or in a series of transactions) is alleged to exist whether jointly, severally, or in the alternative, where, if such persons brought separate actions, any common question of raw or fact would arise; and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief , for such relief as he or they may be entitled to, without any amendment:
Provided that if, upon the application of any defendant, it appears that the joinder may embarrass any of the parties or delay the trial of the action, the court or a Judge in Chambers may order separate trials, or make such other order as may be expedient in the circumstances.
2. Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Judge in Chambers, may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just.
3(1) All persons may be joined as defendants against whom the right to any relief is alleged to exist, whether jointly, severally or in the alternative.
(2) And judgment may be given against such one or more of the defendants as may be found to be liable according to their respective liabilities without any amendment.
5(2) In such case the Court shall issue a notice to the persons which shall be served in the manner provided by these rules for the services of a writ of summons or in such other manner as the court thinks fit to direct; and on proof of the due service of the notice, the person so served whether he appears or not, shall be bound by all proceedings in the cause:
Provided that a person so served, and failing to appear within the time limited by the notice for his appearance, may at any time before judgment in the suit apply to the court for leave may be given upon such terms (if any) as the Court thinks fit.”
A community reading of Order 20 and Order 11 Rules 1- 3 and 5(2) of the Rules will reveal that the uncontroverted averment in paragraph 10 of the claimant’s affidavit filed on 221912006 is enough evidence and proof to amount to assessment or ascertainment to justify the award of 15 million Naira as mesne profit against the defendant/Appellant.
If it is enough under Order 11 for summary judgment to be entered, it should be enough under Order 20 for final judgment to be entered.
No miscarriage of justice has been done in this case.
This appeal is clearly unmeritorious. I also dismiss it I abide by the order as to cost as assessed in the lead judgment.