OTERI HOLDINGS LTD v. HERITAGE BANKING CO. LTD (2020)

OTERI HOLDINGS LTD v. HERITAGE BANKING CO. LTD

(2020)LCN/15370(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, September 17, 2020

CA/L/995/2017

RATIO

DAMAGES: WHETHER SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED

Decisions of Courts are replete on the trite law that special damages must be specifically pleaded. In Eneh vs. Ozor & Anor (2016) LPELR-40830 (SC), it was stated thus:
“The law is well settled, that special damages must be specifically pleaded with distinct particularity and it must also be strictly proved. The Court should not act within the realm of conjecture in awarding special damages and also should not rely simply on fluid and speculative estimate of alleged loss or injury sustained by the plaintiff. See B.J. NGILARI v. MOTHERCAT LTD (1999) 12 SC (Pt. 11) 1, OSUJI v. ISIOCHA (1989) 6 SC (Pt. II) 158. In the case of NEKA BBB MANUFACTURING CO. LTD v. AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt. 1) 32 this Court stated thus. “Where the claimant specifically alleges that he suffered special damages he must perforce prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms, easily cognizable, the loss or damages he has suffered so that the opposing party and the Court will see and appreciate the nature of the special damages suffered and being claimed” The law in fact is also well settled, that special damages must be strictly proved by the person who claims to be entitled to them even though the nature of proof depends on the circumstances of each case. See Gabriel O. Okunzua v. Mrs. E. B. Amosu & Anor (1992) NWLR (Pt. 248) 416 or (1992) 7 SCNJ 243. In proof of special damages, the claimant must therefore lead evidence to prove the type of damages of such a character as would suggest that he is indeed entitled to such award under the head. See OSHINJINRIN & ORS v. ELIAS AND ORS (1970) All NLR 153 at 156.
One more case on this trite principle of law will not do anyone harm. I will refer to the case of Anyanwu & Ors vs. Uzowuaka & Ors (2009) LPELR-515 (SC), where the apex Court held:
“With respect to the special damages claimed the settled principle of law is that special damages must be specifically pleaded and strictly proved. See SHELL B.P. v COLE (1978) 3 SC 183; DUMEZ v OGBOLI (1972) 2 SC 45; SOMMER v FEDERAL HOUSING AUTHORITY (1992) 1 NWLR (Part 219 548 at 560; OKUNZUA v AMOSU (1992) 6 NWLR (Part 248) 416 at 432; OSHINJIRIN v ELIAS (1970) 1 ALL NLR 153 at 156; A.G. OYO STATE v FAIRLAKES HOTELS (No. 2) (1989) 5 NWLR (Part 121) 255 at 278-279.” PER EBIOWEI TOBI, J.C.A.

RULES OF INTERPRETATION: LITERAL MEANING

It is a cardinal rule of interpretation that where words are clear in their meaning, a literal interpretation should be given to them. See Gana vs. SDP & Ors (2019) LPELR-47153 (SC); Ugwuanyi vs. Nicon Insurance Plc (2013) LPELR-20092 (SC). PER EBIOWEI TOBI, J.C.A.

CONTRACT: INGREDIENTS OF A VALID CONTRACT

CONTRACT: BINDINGNESS OF THE TERMS OF AN AGREEMENT

It is beyond paradventure that where parties have freely entered into agreement, they are bound by the terms of their agreement and the Court is bound to give effect to those terms. In Babatunde & Anor vs. Bank of the North Ltd & Ors (2011) LPELR-8249 (SC) the Supreme Court per Adekeye, JSC stated this principle thus:
“The law is that written contract agreement freely entered into by the parties is binding on them. A Court of law is equally bound by the terms of any written contract entered into by the parties. Where the intention of the parties to a contract is clearly expressed in a document, a contract agreement; the Court cannot go outside that document to give effect to the intention of the parties. The general principle is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument, Okonkwo v. C.C.B. (Nig.) Plc. (1997) 6 NWLR (pt.507) pg.48 Dalek (Nig) v. OMPADEC (2007) 7 NWLR (pt.1033) pg.402. U.B.N. Ltd. v. Ozigi (1994) 3 NWLR (pt.333) pg.385 at pg.404. Nneji v. Zakhem Con. (Nig) Ltd. (2006) 12 NWLR (pt.994) pg.297 SC. U.B.N. Ltd. v. Sax (1994) 8 NWLR (pt.361) pg.402.

Similarly, in Larmie vs. Data Processing Maintenance and Services Ltd (2005) LPELR-1756 (SC) the principle was restated thus:
“The law is trite regarding the bindingness of terms of agreement on the parties. Where parties enter into an agreement in writing, they are bound by the terms thereof. This Court, and indeed any other Court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad-idem. See Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 5 NWLR (Pt.192) 388; Union Bank of Nigeria Ltd. v. B. U. Umeh & Sons Ltd. (1996) 1 NWLR (Pt.426) 565; S.C.O.A. Nigeria Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt. 138) 380 and Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492 at 514.”
See also A.G Ferrero & Co. Ltd vs. Henkel Chemicals (Nig) Ltd (2011) LPELR-12 (SC); Best Nig (Ltd) vs. Blackwood Hodge Nig Ltd &Anor (2011) LPELR-776 (SC).

If this is the settled position of the law as I know it is, it means that the effective date for the termination of the lease agreement was 31/2/2005 (sic) and I so hold.

The law is well settled on the ways by which a lease agreement can be terminated. In Helios Towers (Nig) Ltd vs. Mundili Investments Ltd (2014) LPELR-24608, this Court per Abiru, JCA held:
“It must be stated from the onset that the law governing the determination of a lease agreement of landed property for a term of years is different from the law governing the determination of other types of contract. The law recognizes that a lease agreement of landed property can be determined in any of four ways; namely (i) by effluxion of time; (ii) by a surrender of the lease; (iii) by abandonment of the lease; and (iv) where there has been a breach of covenants, by forfeiture.” PER EBIOWEI TOBI, J.C.A.

DUTY OF COURT: WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF FACT OF A LOWER COURT

It is trite law which has been settled that the appellate Court will not interfere with the findings of fact of the lower Court which had the opportunity of evaluating and analyzing the evidence before it and ascribing probative value. See Fasikun II & Ors vs. Oluronke II & Ors (1999) LPELR-1248 (SC). The exception however is that if the finding of the lower Court is perverse, that is the finding is not in line with the evidence before the Court, the appellate Court can interfere. See Dada & Ors. vs. Bankole & Ors (2008) LPELR-907 (SC). PER EBIOWEI TOBI, J.C.A.

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

OTERI HOLDINGS LIMITED APPELANT(S)

And

HERITAGE BANKING COMPANY LIMITED RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): This appeal is predicated upon the judgment of Hon. Justice O.H. Oshodi of the High Court of Lagos State sitting in Ikeja delivered on 24/5/2017 in Suit No. LD/901/2012 – Oteri Holdings Limited vs. Heritage Bank Company Limited. The brief set of facts at the lower Court is that the Appellant (Claimant at the lower Court) entered into a lease agreement with the Respondent (Defendant at the lower Court) wherein the Appellant leased to the Respondent all four (4) floors left wing of the premises known as Ibru Glass House situate at 33, Olorogun Michael Ibru Boulevard, Apapa Lagos for a term of 20 years with an option to renew. After the expiration of the term, the Appellant instituted an action against the Respondent at the lower Court vide a Writ of Summons and in its 3rd Amended Statement of Claim, claiming the following:
a. The sum of N35,770,479.00 (Thirty Five Million, Seven Hundred and Seventy Thousand, Four Hundred and Seventy Nine Naira) being mesne profits for all the four (4) floors left wing of the premises known as Ibru Glass House, situate and being at 33 Olorogun Michael Ibru Boulevard, Apapa Lagos from the 1st March, 2005 to 28th March 2012 at the rate of N425,417 (Four Hundred and Twenty Five Thousand, Four Hundred and Seventeen Naira) per month.
b. The sum of N93,164,814.00 (Ninety Three Million, One Hundred and Sixty Four Thousand, Eight Hundred and Forty One Naira) being damages for willful destruction of the Claimant’s premises by the Defendant and in breach of the Defendant’s covenants to put the premises to a tenantable state.
c. The sum of N5,950,000.00 (Five Million, Nine Hundred and Fifty Thousand Naira) being professional fees in respect of Quantities Surveyors, estate Surveyors and Solicitors engaged by the Claimant to remedy the Defendant’s breach of covenant.
d. Interest on the sum of N128,935,320.00 (One Hundred and Twenty Eight Million, Nine Hundred and Thirty Five Thousand, Three Hundred and Twenty Naira) (claims A and B) at the rate of 21% per annum with effect from 16th day of May 2012 until judgment is given and thereafter at the rate of 6% per annum until the entire sum is finally liquidated.

The lower Court after the conclusion of trial gave a considered judgment found on pages 388 – 400 of the record of appeal (pages 1 -13 of the judgment) where it held specifically at page 400 of the record (page 13 of the judgment) thus:
“To answer the sole issue formulated by the Court above, that is, whether the Claimant based on the evidence proffered has proved that it is entitled to its claims, the answer to that is No! In sum total, the Court finds no merit in this suit. Same is hereby dismissed.
This is the judgment of this Court.”

The Appellant dissatisfied with the above decision of the lower Court filed an appeal vide a notice of appeal dated 28/6/2017 containing nine grounds of appeal. The notice of appeal is found on pages 401 –410 and the grounds are hereunder reproduced.
GROUND 1
The learned trial Judge erred in law when his lordship held that:
“To the Court, the rents due up till the tenancy was determined by the instrumentality of the Court, should be arrears of rent and not mesne profit, and the amount due after the demised property was wrested from the Defendant will then be mesne profit as the Defendant then becomes a trespasser.”

GROUND 2
The learned trial Judge erred in law when his lordship held that:
“In paragraph 4.13 of the Written Final Address of the Claimant particularly at No 5 thereof, learned counsel to the Claimant got it wrong when it is submitted the relationship of landlord and tenant terminated on 28th February, 2005.”
GROUND 3
The learned trial Judge erred in law when his lordship held that:
“A read of Exhibit E, which is a letter dated 26th March, 2009 contradicts this notion that the relationship of landlord and tenant between the parties terminated on 28th February, 2005. In that exhibit, communication is made to the Defendant stating that if it wishes to continue in occupation of the demised property it will be on new terms and conditions.”
GROUND 4
The learned trial Judge erred in law when his lordship held that:
“How learned counsel to the Claimant did not realize that from 28th February, 2005 up till sometime in September, 2011, the Defendant cannot be adjudged as a trespasser for the claim of mesne profits to arise beats the Court.”
His lordship went further to hold that:
“The Claimant cannot claim for mesne profit from 1st day of March 2005 to 28th March, 2012. At best from the evidence led, mesne profit will only arise after the suit was filed in the Magistrate seeking for possession of the demised premises, which is from September 2011 up until the day possession was wrested from the Defendant on 28th March, 2012. In this respect, the claim for mesne profit will fail.”
GROUND 5
The learned trial Judge erred in law when his lordship held:
“Furthermore, for the Claimant to have taken out action against the Defendant for the recovery of possession at the Magistrate Court and for it to obtain judgment on 26th January, 2012, it does mean that the tenancy was effectively determined on 26th January, 2012.”
GROUND 6
The learned trial Judge erred in law when his lordship held as follows:
“The Court has looked through the 3rd amended statement of claim and cannot find in it where the particulars of the willful destruction was pleaded. Nowhere in the 3rd amended statement of claim is it pleaded as to what specifically was willfully damaged by the Defendant. What specifically was willfully damaged to amount to the sum claimed is not pleaded.”
GROUND 7
The learned trial Judge erred in law when his lordship held as follows:
“As rightly argued in the final address of the Defendant, under issue 2, by virtue of Section 348 of the Criminal Law of Lagos State, willful destruction of property is a crime. This being the case, the standard of proof is that of beyond reasonable doubt. This, the Claimant, on the evidence evaluated by the Court, has failed to do.”
GROUND 8
The learned trial Judge erred in law when his lordship held as follows:
“Furthermore, the evidence before the Court does not support the allegation of willful destruction. A read of Exhibits D1 & D2, both letters written by the Claimant’s agent to the Defendant, both made in January 2010, it will be seen that as at that year, the Claimant was aware that the demise premises needs renovation. Nowhere in this exhibits did the Claimant accuse the Defendant of any willful destruction. Going on, the contents of these exhibits contract (sic) the evidence sought to be led by the Claimant in that the destruction was only seen upon the opening of the demise property by the order of Court in 2012.”
GROUND 9
The learned trial Judge erred in law when his lordship held as follows:
“Furthermore, it is noted that in the evidence of CW2 during cross-examination, he stated that he requested for the sum of N500,000.00 (Five Hundred Thousand Naira) and was only paid the sum between N250,000.00 (Two Hundred and Fifty Thousand Naira) and N300,000.00 (Three Hundred Thousand Naira). This piece of evidence is totally at variance with the content of paragraph 24 of the 3rd amended statement of claim where it is pleaded that the sum of N950,000.00 (Nine Hundred and Fifty Thousand Naira) was paid as fees to the Quantity Surveyor.”

The Appellant brief dated and filed on 18/9/2017 was settled by I.A. Ovbagbedia, Esq. Counsel raised the following four issues for determination:
1. Whether the Lease Agreement (Exhibit H) was determined on the 28th day of February 2005 when the parties failed to renew same.
2. Whether the Appellant is not entitled to claim mesne profit on the premises from the 1st day of March 2005 up and until the 28th of March 2012 when the Appellant finally recovered possession by an order of Court.
3. Whether the Appellant specifically pleaded particulars of damages in relation to the destruction of the property in its 3rd Amended Statement of Claim to entitle it to the damages claimed.
4. Whether the documentary evidence led by the Appellant as contained in Exhibit A and A1 did not sufficiently prove the quantum of professional fees paid to the professionals engaged to assess the cost of restoring the premises to a tenantable state.

On issue one, it is the submission of counsel that the learned trial Judge was in error to hold that the relationship of landlord and tenant between the parties was determined on the 26th day of January 2012 and not the 28th day of February 2005. Counsel posited that the relevant question before this Court is, when was the relationship of landlord and tenant between the parties determined, which question can only be determined by the evidence led and the findings of the learned trial Judge. It is the contention of counsel that the lower Court rightly found that by the terms of Exhibit H the tenure of the interest of the Respondent on the Appellant’s property was for 20 years commencing from 1/3/1985 – 28/2/2005. He cited JFS Investment Ltd vs. Brawal Line Ltd & 2 Ors (2010) NWLR (Pt. 1225) 495 @ 531 to the effect that the Court is not permitted to make new contracts for the parties as parties are bound by their contract. It is the further contention of counsel that the relationship of landlord and tenant will cease to exist the moment the tenure set by the parties comes to an end except where properly renewed. For this, he relied on DEBS vs. Cenico Ltd (1986) 3 NWLR (Pt. 32) 846 @ 853. On this point, it is the submission of counsel that having found that the term of the lease was for 20 years, the learned trial Judge ought to have rested the matter there, moreso when the parties did not renew the rent and not going further to state that the term came to an end on 26/1/2012 by the order for possession from the Magistrate Court. Counsel placed reliance on Eliochin Nig. Ltd & 2 Ors vs. Victor NgoziMbadiwe (1986) 1 NWLR (Pt. 14) 47. Counsel further relied on Felicia Akinbisade vs. The State (2006) 17 NWLR (Pt. 1007) 184 in submitting that the learned trial Judge was in error to hold that Exhibit E contradicted the notion that the relationship of landlord and tenant between the parties terminated on 28/2/2005 contrary to the stipulation of the exhibit. It is the final submission of counsel on this issue that the content of Exhibit E did not contradict the fact that the tenancy between the parties terminated on the 28/2/2005.

On issue two, it is the submission of counsel that the learned trial Judge was in error when his lordship dismissed the claim of the Appellant in relation to mesne profit which had accrued on the premises with effect from 1/3/2005 up and until the 28/3/2012 when possession was lawfully wrested from the Respondent by an order of Court. To learned counsel, the relevant question before this Court is whether in the circumstances of this case and taking into consideration the clear findings of the learned trial Judge, mesne profit was not properly claimed at the lower Court. Counsel relied on Abeke vs. Odunsi (2013) 13 NWLR (Pt. 1370) 1 @ 27 in stating the circumstances where a claim for mesne profit will arise. It is the argument of counsel that though the learned trial Judge stated the position of the law correctly, he wrongly applied the law to the facts that the Court itself found established. It is the contention of learned counsel that from a reading of the judgment, it was found by the learned trial Judge that the Appellant had established that the Respondent’s tenure of interest on the demised premises had come to an end and this clearly brings the case of the Appellant within the purview of the circumstance under which a claim for mesne profit can be made as stated in the case of Abeke vs. Odunsi (supra). It is submitted by Appellant’s counsel that the learned trial Judge having found that the relationship between the parties came to an end on 28/2/2005 and that the Respondent did not agree on any further review of rent with the Appellant, ought to have concluded that the Appellant was entitled to claim for mesne profit. Reliance was placed on Marine and General Assurance Ltd vs. Roseek (1986) 2 NWLR (Pt. 25) 750 @ 764; DEBS vs. Cenico Ltd (supra); Umeanyi vs. Ezeobi (1990) 3 NWLR (Pt. 140) 621

Counsel relying on Felix O. Osawaru vs. Simeon O. Ezeiruka (1978) 6-7 SC 91 further submitted that mesne profit being damages for trespass can be claimed from the date when the Defendant ceased to hold the premises as lessee and became technically a trespasser. He went on to contend that the Respondent had admitted that its tenancy on the premises came to an end by effluxion of time on 28/2/2005 and had not challenged the mesne profit claimed and communicated to it between March 2009 and September 2011 by Exhibits D and A which are letters sent to the Respondent. It is the further contention of counsel that in the absence of any challenge to the amount claimed, the Appellant is entitled to the sum of N35,770,479.00 (Thirty Five Million, Seven Hundred and Seventy Thousand, Four Hundred and Seventy Nine Naira) claimed as mesne profit from 1/3/2005 – 28/3/2012.

On issue three, it is submitted by learned counsel for the Appellant that the learned trial Judge was in error when he held that the particulars of willful destruction was not specifically pleaded to entitle the Appellant to damages. It is the further submission of counsel that the holding of the learned trial Judge that nowhere in the 3rd Amended Statement of Claim is it pleaded as to what specifically was willfully damaged by the Respondent cannot be further from the truth with due regard to the facts. Counsel referring to paragraphs 22 and 23 of Appellant’s 3rd Amended Statement of Claim which made reference to the schedule sent to the Respondent, contended that contrary to the finding of the learned trial Judge, the Appellant pleaded the full particulars of the items willfully damaged by the Respondent. Counsel relied on Oyelakin Balogun vs. Adejobi & Anor (1995) 2 NWLR (Pt. 376) 131 on the essence of a pleading being concise and brief. He also cited British Airways vs. Atoyebi (2014) 13 NWLR (Pt. 1424) 253 @ 287 to the effect that the essence of strict proof for special damages is to give the Defendant access to facts which has led to such calculation of figures; which was done by forwarding those particulars to the Respondent via Exhibits F and F1. Counsel argued that the learned trial Judge was in error in not accepting and considering Exhibits F and F1 as full particulars of the damage to the Appellant’s premises when it is trite that documents referred to in a pleading form part of that pleading. For this position, counsel made reference to JFS Investment Ltd vs. Brawal Line Ltd & 2 Ors (supra) @ 540; Lagos City Council Caretaker Committee vs. Unachukwu (1978) 3 SC Reprint 137 @ 139; UBN Ltd vs. Odusote Brothers Ltd (1995) 9 NWLR (Pt. 421) 558; Solanke vs. Ajibola (1969) 1 NMLR 253; Garba vs. Kur (2003) 11 NWLR (Pt. 831) 280.

It is the contention of counsel that the holding of the learned trial Judge that the Appellant failed to prove the allegation of willful destruction was clearly a misapprehension of the evidence led before the trial Court. Counsel claimed that had the learned trial Judge considered Exhibits B-B32, he would have come to the irresistible conclusion that the damage shown in those exhibits go far beyond fair wear and tear that the renovation in Exhibits D1 and D2 was talking about. Counsel contended that contrary to the findings of the learned trial Judge that the Appellant failed to prove willful damage beyond reasonable doubt, from the nature of the claim presented to the Court and the Exhibits B1-B32, no allegation of crime was made and even if there is allegation of crime, the evidence before the trial Court clearly established a proof beyond reasonable doubt of the allegation of willful destruction of property which entitles the Appellant to claim damages. He cited Galadima vs. The State (2012) 2 SC (Pt. II) 51; Umudje vs. Shell (1975) 9-11 SC 95 @ 100.

On issue four, it is submitted by counsel that the learned trial Judge was in error when he held that the Appellant failed to prove the quantum of professional fees paid to the professionals engaged to access the cost of restoring the premises to a tenantable state. Counsel relied on Exhibits A and A1 which he claimed was not contradicted at the lower Court and as such, the lower Court ought to have relied on it as cogent proof of the Appellant’s claim and being the best form of evidence. He cited Akinbisade vs. The State (2006) 17 NWLR (Pt. 1007) 184 @ 201. It is the contention of counsel that contrary to the conclusion of the learned trial Judge that CW1 said in his evidence in chief that CW2 was paid the sum of N950,000.00, the evidence before the learned trial Judge clearly showed that no such evidence was led. On the contrary, counsel stated that the evidence was to the effect that the sum of N600,000.00 was paid to CW2 as evidenced by Exhibit A and the sum of N350,000.00 to Jide Oladosu, the Estate Valuer as evidenced by Exhibit A1. Relying on the cases of Skye Bank Plc & Anor vs. Chief Moses Akinpelu (2010) 3 SC (Pt. II) 29; Vincent Egharevba vs. Dr Orobor Osagie (2009) 12 SC (Pt. III) 123; Akinbisade vs. The State (supra) @ 201; Chief S.O. Agbareh & Anor vs. Dr Anthony Mimra & 2 Ors (2008) 1 SCNJ 409 learned counsel submitted that oral evidence cannot be given to contradict the content of a document and for Exhibit A1 to be contradicted, there must be an averment alleging that it was fraudulently obtained. Counsel therefore submitted that since there is no such averment and evidence against the exhibit, the learned trial Judge was clearly wrong in law to rely on the cross examination of CW2 to contradict it. He therefore urged this Court to resolve this issue in favour of the Appellant and enter judgment in respect of the claim. On a whole, counsel urged this Court to allow the appeal by granting the entire claims sought by the Appellant.

The Respondent’s brief dated and filed 7/11/2017 but deemed as properly filed and served on 6/7/2020 was settled by Kolade Obafemi, Esq. Respondent’s counsel equally raised four issues for determination. These are:
1. Was the learned trial Judge correct in holding that upon the expiration of the Lease Agreement (Exhibit “H”), the Respondent became a statutory tenant, so as to disentitle the Appellant from claiming mesne profit from the Respondent?
2. Whether the Appellant was entitled to claim mesne profit for the period 1st day of March 2005 to the 28th day of February 2012 and if yes, (a fact denied) whether the Appellant before the lower Court proved by admissible evidence the claim of N35,770,479.00 (Thirty Five Million Seven Hundred and Seventy Thousand, Four Hundred and Seventy Nine Naira) claimed mesne profit?
3. Did the Appellant in line with the requirement of the law plead and prove by admissible evidence the claim in the sum of N93,164,841.00 (Ninety Three Million, One Hundred and Sixty Four Thousand Eight Hundred and Forty One Naira) made as special damages for the alleged willful destruction caused to the premises?
4. Whether the Appellant established by admissible evidence the claim made in respect of the sum of N5,950,000.00 (Five Million, Nine Hundred and Fifty Thousand Naira) paid as professional fees? It is the submission of learned counsel to the Respondent that the issue which is distilled from the grounds 2, 3, and 5 of the Appellant’s notice of appeal and its argument in Appellant’s issue one do not reflect the holding of the Court as contained in its judgment. It is the submission of counsel that considering the evidence before the Court below, the lower Court was correct that upon the expiration of Exhibit H on 28/2/2005 and in the absence of notice to quit determining the tenancy and considering the various discussions on the renewal of the lease, as well as the Appellant’s demand for payment of rent, the Respondent became a statutory tenant. It was the contention of counsel that the Appellant who was contending that the lease had expired as at 28/2/2005, was still demanding for rent as at 10/9/2011. He referred this Court to Exhibits E and E1. Counsel submitted that with respect to the contents of the exhibits, the Appellant cannot contend that the lease granted to the Respondent had expired by effluxion of time, thus entitling them to claim for rate whether as rent or mesne profit. It is further submitted by counsel that though the Appellant purport to solely rely on effluxion of time of Exhibit H as the determination date of the lease, the Appellant did not take into consideration that it demanded for rent thereafter and indeed the Respondent opened discussion for the renewal of the lease, which after failure to agree on renewal, entitles the Respondent to statutory notice to quit. He relied on African Petroleum Ltd vs. Owodunni (1991) 8 NWLR (Pt. 210) 391 @ 412; Alhaji J.A. Odutola & Anor vs. Papersack Nig. Ltd (2006) LPELR-2259 (SC).

On issue two, it is the submission of counsel that the issue as joined before the lower Court went beyond whether the Appellant was entitled to claim mesne profit simpliciter to include whether the Appellant proved the mesne profit by admissible evidence. It is the further submission of counsel that considering the state of the evidence before the lower Court, the conclusion of the lower Court on this issue cannot be faulted as the lower Court was right on this point in the absence of evidence from the Appellant specifically as to the determination of the lease vide issuance and service of statutory notice to quit. Relying on Section 15 of the Court of Appeal Act, counsel urged this Court to consider the evidence of the Appellant which was supposedly given in proof of the claim for mesne profit. Learned counsel relying on Garuba vs. Omokhodion (2011) 15 NWLR (Pt. 1269) 145 @ 179 argued that contrary to the claim for mesne profit contained in the Appellant’s 3rd Amended Statement of Claim, what was claimed by the Appellant in its 1st Writ of Summons and 2nd Amended Statement of claim was arrears of rent and as such the documents tendered before the lower Court do not support the claim for mesne profit. He therefore called on this Court to examine the records and make use of the materials which are before the Court.

Counsel contended that the sum of N35,770,479.00 (Thirty Five Million, Seven Hundred and Seventy Thousand Four Hundred and Seventy Nine Naira) having been claimed as mesne profit constitute an item of special damages which must not only be specifically pleaded but must be strictly proved and that no denial need be made by the Respondent. Counsel relied on Order 15 Rule 5 of the High Court of Lagos (Civil Procedure) Rules 2012; African Petroleum Ltd vs. Owodunni (1981) 8 NWLR (Pt. 210) 391 @ 417. Counsel also cited Debs vs. Cenico (1986) 3 NWLR (Pt. 32) 846 @ 851; Alhaja Sabalemotu Ayinke vs. Alhaji Muniru Lawal & Ors (1994) LPELR-680 (SC) on what constitute mesne profit. It is the submission of counsel that where a fact is relied upon as constituting admission, it is within the power of the Court to request that the said facts be proved otherwise than by the admission relied upon. He further submitted that Exhibit C2 and C4 do not constitute admission of the amount claimed as mesne profit by the Appellant. Learned counsel placed reliance on Nwankwo vs. Nwankwo (1995) 5 NWLR (Pt. 394) 153 @ 171; Okunade vs. Olawale (2014) 10 NWLR (Pt. 1415) 207 @ 258-259; Osawaru vs. Ezeriruka (1978) Vol. 11 NSCC 390 @ 395 and Section 20 of the Evidence Act, 2011. He therefore urged this Court to resolve issue two against the Appellant.

On issue three, it is the submission of counsel that considering the evidence before the lower Court, the Court was right in holding that the Appellant did not specifically plead the items that constitute willful damage by the Respondent. It is the contention of Respondent’s counsel that paragraphs 17 and 18 of the Appellant’s Amended Statement of Claim are grossly insufficient to constitute specific pleading of items of special damages in order to justify a claim and the cost of willful damage alleged by the Appellant. He placed reliance on Order 15 Rule 3(1) of the High Court of Lagos State (Civil Procedure) Rules 2012. Going further, counsel contended that there was nothing to support the allegation of willful destruction alleged by the Appellant and against the Respondent and that by making the claim for the sum of N93,164,841.00 (Ninety Three Million, One Hundred and Sixty Four Thousand Eight Hundred and Forty One Naira) as damages for willful damage to the property, the Appellant has put in issue the fact of whether or not the damage done to the property was willful and intentional; which standard of proof is beyond reasonable doubt. He referred to Section 135 of the Evidence Act, 2011; Section 348 of the Criminal Law of Lagos State, Cap No. 11 of 2011; Ojo vs. FRN (2008) 11 NWLR (Pt. 1099) 467 @ 512.

With respect to the photographs as well as the Report prepared by the firm of Jide Oladosu Consulting, counsel contended that they are of no evidential value as the photographer who allegedly took the photographs was not called to testify so as to be cross examined on them. It is the further contention of counsel that apart from the fact that the works and report submitted by the Appellant’s 2nd witness, Mr. Amusa Alani who testified as an expert was discredited under cross examination, the purported expert did not give his educational qualifications in evidence. He referred to the cases of Goyol vs. INEC (No. 2) (2012) 11 NWLR (Pt. 1311) 218 @ 233; Sowemimo vs. State (2004) 11 NWLR (Pt. 885) 515 @ 532. It is the final submission of counsel on this issue that the claim of N93,164,841.00 (Ninety Three Million One Hundred and Sixty Four Thousand Eight Hundred and Forty One Naira) can only arise if the lower Court finds that the Respondent is culpable or liable for same and in the absence of the lower Court finding that the terminal obligations of the Respondent were inclusive of all the alleged works, no issue arises as to the question of damages. For this position, counsel relied on Durowaiye vs. UBN (2015) 16 NWLR (Pt. 1484) 19 @ 38; Amadi vs. Essien (1994) 7 NWLR (Pt. 354) 91 @ 121.

On the last issue which is issue four, counsel contended that there is contradiction between the sum of N950,000.00 (Nine Hundred and Fifty Thousand Naira) Appellant is claiming as professional cost for Quantity Surveyor and the said amount stated under cross examination of Appellant’s 2nd witness as to how much was paid and that the evidence contradicts the receipt for payment allegedly issued by the Appellant’s 2nd witness. He relied on Ayanwale & Ors vs. Atanda & Anor (1988) 1 NSCC 1 @ 10. It is the submission of counsel that this issue of credibility invariably affects the report prepared and robs it of any reliability. Also, with respect to the sum of N5,000,000.00 (Five Million Naira) Appellant claimed to have paid as solicitor’s fee, it is the submission of counsel that there was no evidence of any invoice having been issued by the said solicitors to the Appellant and as such, this Court should hold that the lower Court was right in dismissing the claim. He placed heavy reliance on Ihekwoaba vs. A.C.B Ltd (1998) 10 NWLR (Pt. 571) 590 @ 610-611. Finally, counsel called upon this Court to uphold the dismissal of the Appellant’s claim for the sum of N5,000,000.00 (Five Million Naira) allegedly paid as solicitors fees and N950,000.00 (Nine Hundred and Fifty Thousand Naira) claimed as professional fees for Quantity Surveyor; as same having been made an item of special damages ought not only to be specifically pleaded but strictly proved with cogent evidence to support the allegation. He relied on UNIJOS vs. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478 @ 497; Nwanji vs. Coastal Serv. (Nig) Ltd (2004) 11 NWLR (Pt. 885) 552 @ 568-569.

The Appellant filed a reply brief dated and filed on 3/4/2018 but deemed as properly filed and served on 6/7/2020. Replying to issue one, it is the submission of counsel that the issue of whether the Respondent was a statutory tenant never arose in the pleadings between the parties which is tantamount to making a different case from what it made at the lower Court. He relied on the cases of Ajide vs. Kelani (1985) 3 NWLR (Pt. 12) 248; Ezomo vs. A.G Bendel (1986) 4 NWLR (Pt. 36) 448 @ 462; Abeke vs. Odunsi (supra); Spasco Vehicle and Plant Hire Vehicle Co. vs. Alraine Nig Ltd (1995) 8 NWLR (Pt. 416) 655; Orji vs. Amara (2016) 14 NWLR (Pt. 1531) 21 @ 49-50. Counsel contends that where this Court finds that the issue of statutory tenancy was properly raised and considered by the learned trial Judge, the cases of African Petroleum Ltd vs. Owodunni (supra) and Alhaji J.A. Odutola & Anor vs. Papersack Nig Ltd (supra) relied upon by the learned trial Judge and the Respondent are inapplicable in this case as the subject matter in this case is not in respect of a residential premise as to bring it under the purview of the decisions in the aforementioned cases. He therefore submitted that the question of whether a party is a statutory tenant or not is irrelevant in determining when mesne profits starts accruing especially in cases where the lease has been determined by effluxion of time.

Replying to issue two, it is the submission of counsel relying on Ayinke vs. Lawal (supra) and Debs vs. Cenico that a lease with a term certain is determined at the expiration of the time agreed to by the parties and as such a quit notice is not required. With respect to the Respondent’s argument on amendment, it is the submission of counsel that the pleadings of the Appellant having been amended by order of the lower Court, it has become totally immaterial in the determination of the issues to be tried in the instant suit and what therefore is material, is the 3rd Amended Statement of Claim. He relied on A.S.E.S.A vs. Ekwenem (2009) 13 NWLR (Pt. 1158) 410 @ 435.

In replying to issue three, it is the contention of Appellant’s counsel that the photographs tendered through CW1 were uncontroverted and admitted in evidence as Exhibit B – B32. He relied on Section 84(1) of the Evidence Act 2011; Kubor vs. Dickson (2013) 4 NWLR (Pt. 1345) 534 @ 577; Oando (Nig) Plc vs. Adijere (W/A) Ltd (2013) 15 NWLR (Pt. 1377) 374 @ 393; Ajani vs. The Comptroller General of Customs (1954) 12 WACA 37 @ 39 on the admissibility of computer generated evidence and that an expert need not necessarily have an educational qualification but has practical knowledge in the relevant field. Counsel placed reliance on Obasuyi vs. Business Ventures Ltd (2000) 5 NWLR (Pt. 658) 668 @ 694; Lagos City Council Caretaker Committee vs. Unachukwu (supra); Umudje vs. Shell (1975) 9-11 SC 95 @ 100 and Mayne and Mcgrecor on Damages 12th Edition, Article 973 at page 815 in arguing that the Appellant specifically pleaded and strictly proved at the lower Court the precise amount of the particular items damaged through Exhibits F and F1. On a whole, counsel urged this Court to allow the appeal, set aside the judgment of the lower Court and in its place enter judgment in favour of the Appellant.

I have gone extensively through the briefs of the respective parties as argued by counsel and I make bold to say that the issues formulated by counsel are one and the same save for the wording and the way they were couched. In the light of this, I wish to adopt the issues for determination as formulated by the Respondent. The Court is at liberty to adopt any of the issues for determination as formulated by counsel for the parties. See Federal Housing Authority & Anor vs. Mr Kalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) All FWLR (Pt. 751) 1480. For completeness, I will reproduce the issues for determination hereunder:
1. Was the learned trial Judge correct in holding that upon the expiration of the Lease Agreement (Exhibit “H”), the Respondent became a statutory tenant, so as to disentitle the Appellant from claiming mesne profit from the Respondent?
2. Whether the Appellant was entitled to claim mesne profit for the period 1st day of March 2005 to the 28th day of February 2012 and if yes, whether the Appellant before the lower Court proved by admissible evidence the claim of N35,770,479.00 (Thirty Five Million Seven Hundred and Seventy Thousand, Four Hundred and Seventy Nine Naira) claimed mesne profit?
3. Did the Appellant in line with the requirement of the law plead and prove by admissible evidence the claim in the sum of N93,164,841.00 (Ninety Three Million, One Hundred and Sixty Four Thousand Eight Hundred and Forty One Naira) made as special damages for the alleged willful destruction caused to the premises?
4. Whether the Appellant established by admissible evidence the claim made in respect of the sum of N5,950,000.00 (Five Million, Nine Hundred and Fifty Thousand Naira) paid as professional fees?

Having reproduced the issues for determination, I will now go on to consider the issues one after the other.

The crux of the appeal on issue one is a determination of the effective date when the lease between the Appellant and the Respondent came to an end. Appellant counsel has argued that the lease came to an end on the 28/2/2005 when the parties failed to renew the lease. The Respondent on the other hand argued that there was no way the lease would have ended on the said date as no notice to quit was served on the Respondent and that as at 2011, the Appellant was demanding for rent. Who among the parties is correct? One of the parties has to be correct in their argument as both parties cannot be correct. The lower Court in considering this quagmire held thus:
“In paragraph 4.1.3 of the written final address of the Claimant, specifically at number 5 thereof, learned counsel to the Claimant got it wrong when it is submitted that the relationship of landlord and tenant between the parties terminated on 28th February 2005.
A read of exhibit E, which is a letter dated 26th March 2009, contradicts this notion that the relationship of landlord and tenant between the parties terminated on 28th February 2005. In that exhibit, communication is made to the Defendant stating that if it wishes to continue in occupation of the premises, it will be on new terms and conditions.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Furthermore, for the Claimant to have taken out action against the Defendant for the recovery of possession at the Magistrate Court, and to obtain judgment on 26th January 2012, it does mean that the tenancy was effectively determined on 26th January 2012.”

The question that now arises from the judgment of the lower Court is when was the effective date of the determination of the tenancy between the Appellant and the Respondent and whether the lower Court was right to have held that upon expiration of the lease agreement, the Respondent became a statutory tenant? It is not in dispute that the parties entered into a lease agreement for a term of 20 years which was to expire on 31/2/2005 (sic) and which indeed terminated by effluxion of time on 31/2/2005 (sic). The Respondent counsel is however arguing that from the facts before the lower Court and in the absence of notice to quit determining the tenancy, the Respondent became a statutory tenant. It is trite law which has been settled that the appellate Court will not interfere with the findings of fact of the lower Court which had the opportunity of evaluating and analyzing the evidence before it and ascribing probative value. See Fasikun II & Ors vs. Oluronke II & Ors (1999) LPELR-1248 (SC). The exception however is that if the finding of the lower Court is perverse, that is the finding is not in line with the evidence before the Court, the appellate Court can interfere. See Dada & Ors. vs. Bankole & Ors (2008) LPELR-907 (SC).

In answering this question which is before us, I will refer to the agreement between the parties which is contained on pages 6 –36 of the record of appeal. The introductory part of the agreement reads:
“We, OTERI HOLDINGS LIMITED, a Company incorporated under the laws of Nigeria and having its registered office at 33 Creek Road, Apapa, Lagos State, (hereinafter called “The Under lessor” which expression shall, where the context so admits include it’s successors-in-title and assigns) of the ONE PART by this Deed underlease ALL THAT the right wing of office block facing Creek Road, Apapa with for the greater part, autonomous system and services described in the first schedule hereto together with all the easements appertaining thereto as described in the second schedule hereto and called “The demised premises” being part of the premises comprised in the above title TO SOCIETE GENERALE BANK NIGERIA LIMITED, a company incorporated under the laws of Nigeria and having its registered office at Sarah House, 13 Martins Street, Lagos, Lagos State (hereinafter called “The Underlessor” which expression shall where the context so requires or admits include it’s successors-in-title and assigns) of the OTHER PART for a term of (20) Twenty years from 1st March 1985 to 31st February 2005 YIELDING and paying therefor rent for the whole term thereby granted in, the total sum of N12,067,603.20 (Twelve Million, sixty seven thousand, six hundred and three naira, twenty kobo), the above mentioned sum having been already paid by the Underlessee to the Underlessor (Receipt whereof the Underlessor hereby acknowledges).”

From a clear reading of the aforementioned, it is incapable of double interpretation in that from the agreement of the parties, the lease which is for 20 years has a determination date of 28/2/2005. It is beyond paradventure that where parties have freely entered into agreement, they are bound by the terms of their agreement and the Court is bound to give effect to those terms. In Babatunde & Anor vs. Bank of the North Ltd & Ors (2011) LPELR-8249 (SC) the Supreme Court per Adekeye, JSC stated this principle thus:
“The law is that written contract agreement freely entered into by the parties is binding on them. A Court of law is equally bound by the terms of any written contract entered into by the parties. Where the intention of the parties to a contract is clearly expressed in a document, a contract agreement; the Court cannot go outside that document to give effect to the intention of the parties. The general principle is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument, Okonkwo v. C.C.B. (Nig.) Plc. (1997) 6 NWLR (pt.507) pg.48 Dalek (Nig) v. OMPADEC (2007) 7 NWLR (pt.1033) pg.402. U.B.N. Ltd. v. Ozigi (1994) 3 NWLR (pt.333) pg.385 at pg.404. Nneji v. Zakhem Con. (Nig) Ltd. (2006) 12 NWLR (pt.994) pg.297 SC. U.B.N. Ltd. v. Sax (1994) 8 NWLR (pt.361) pg.402.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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If this is the settled position of the law as I know it is, it means that the effective date for the termination of the lease agreement was 31/2/2005 (sic) and I so hold.

Going by the agreement of the parties and the decision of the Court above mentioned, can it be said that the lease agreement was determined by the effluxion of time? I beg to answer this question in the affirmative. Counsel for the Appellant citing authorities have submitted that the relationship of landlord and tenant will cease to exist the moment the tenure set by the parties comes to an end except where properly renewed. I wish to agree with counsel for the Appellant on this fact except for the fact that counsel has an incorrect interpretation of the holding of the lower Court on this issue. If counsel had appreciated the holding of the lower Court on this issue, he would have formulated his issue one to capture the judgment of the lower Court. I will, at this point refer to a portion of the judgment found on page 397 of the record (page 10 of the judgment) which reads thus:
“There is evidence that at the end of the tenure as agreed exhibit H, the Defendant was still in occupation until 28th March 2012 when by Court order, possession was wrested from the Defendant. There is also evidence that during this time, the Defendant did not pay any further rent to the Claimant. The consequence of this is that the Defendant then became a tenant-at-sufferance, and thus a statutory tenant.”

An appreciation of the judgment just reproduced above will reveal that, the lower Court acknowledged that by the agreement of the parties contained in Exhibit H, the tenure of the lease came to an end on 31/2/2005 (sic) but a tenancy relationship still subsisted as the Respondent was still holding possession of the premises even until 28/3/2012 when possession was wrested from him by Court order. This fact is revealed by the Appellant’s letters of 26/3/2009, 28/1/2010, 29/1/2010 and 9/2/2010 which are Exhibits D, D1, D2 & D3. From these documents, it is clear that as at 28/2/2005 when the tenancy expired, the Respondent did not yield over possession of the property to the Appellant. It is a cardinal rule of interpretation that where words are clear in their meaning, a literal interpretation should be given to them. See Gana vs. SDP & Ors (2019) LPELR-47153 (SC); Ugwuanyi vs. Nicon Insurance Plc (2013) LPELR-20092 (SC).

From the evidence before the lower Court, there is no indication that the rent was renewed as between the parties even though the Respondent’s counsel claimed that there were discussions between the parties as to the renewal of rent. The law of contract stipulates that for there to be a valid contract between parties, there must be offer, acceptance and consideration. See the cases of Abba vs. Shell Petroleum Development Company of Nigeria Limited (2013) LPELR-20338 (SC); Baliol (Nig) Ltd vs. Navcon (Nig) Ltd (2010) LPELR-717 (SC). I have perused through the record of appeal and can only see letters written by the Respondent to the Appellant indicating interest to renew the lease. The Respondent letter of 28/6/2010 (Exhibit C2) and letter of 8/8/2011 (Exhibit C) indicate the interest of the Respondent to renew the lease. In the letter of 8/8/2011, that is Exhibit C, the Respondent promised to pay the sum between N5,000,000 to N10,000,000 as outstanding rent on the property. I make bold to say that intention cannot culminate into an agreement between parties. Even though the Respondent made his intention known by letters to the Appellant that it wished to continue with the lease, there was no express agreement from the Appellant or any document to show that there was a renewal of the lease. That aside, the law is that where a tenant is desirous of exercising the option to renew, he must conform to the conditions in the lease as to its exercise. This principle was stated in Conoil Plc vs. Dutse (2016) LPELR-40236 (SC), where the apex Court held:
“In BATA NIGERIA LTD v. GEORGE (1985) LPELR-21153 (CA), it was held that “The option to renew in the sublease created an estate contract which in the particular circumstances of this case the respondent has not taken up.” Similarly, in ADEJUMO v. DAVID HUGHES AND COMPANY LTD (1989) LPELR-20454 (CA), Per AKPATA, J.C.A., held: “It is also stated in Halsbury’s Law of England, 4th Edition, Vol 27, paragraph 113, page 92, cited by Mr. Davies, that: ‘A tenant who wishes to exercise an option to renew must conform with the condition in the lease as to its exercise, and those conditions will be strictly construed.”
I will also refer to the case of Ezenwa vs. Oko & Ors (2008) LPELR-1206 (SC) where the Supreme Court held:
“I hold the considered view that an option to renew a lease is an offer made to the landlord, the acceptance of which would constitute a valid contract enforceable by specific performance; it remains an offer until accepted.”
One last case on this issue will not do anyone harm. This is the decision of this Court in Nwisu vs. Okagbue & Ors (2015) LPELR-25884 per Agim, JCA:
“A lessee desirous of exercising an option to renew must conform with the conditions in the lease as to how it is to be exercised. Where a written request is required to be made by the lessee within a certain period before the expiration of the lease, as is usually the case, the requirement must be strictly complied with. See AGBAJE V BANKOLE (Supra).”

To this end, I hold that the lease agreement between the Appellant and the Respondent came to an end by effluxion of time vide Exhibit H as there is nothing to show that there was agreement between the parties for the renewal of the lease. All that the exhibits show is that the Respondent had indicated interest to renew the lease. This serves like offer which in law is not competent on its own to create a contract without acceptance of the offer and consideration agreed. Exhibit E which is a letter from the Appellant requesting for the payment of the outstanding rent agreed for between N5,000,000 to N10,000,000 cannot qualify as acceptance of the offer. There is also no agreed consideration. There is a valid contract for the rent that expired on 28/2/2005 but there is no such valid contract for the subsequent stay of the Respondent on the property.

What then is the argument of the parties at the lower Court? The purport of the Respondent counsel’s argument is to the effect that even though the lease came to an expiration on 28/2/2005, the Respondent still remained in possession without a formal renewal of the lease or tenancy. Learned counsel for the Respondent referred this Court to Exhibits D and E which goes to show that by a community reading of the exhibits, the tenancy relationship could not be said to have ended when the Appellant was still demanding for rent from the Respondent. I will refer to these documents later on in this judgment.

The parties to the agreement are bound by their contract and in determining whether the Respondent after 28/2/2005 is still a regular tenant or a statutory tenant, Clause 8 of the Under Lease Agreement will assist this Court. It will not be out of place to reproduce the said clause which both parties agreed to. The clause states thus:
“RENEWAL: RENT TO BE BASED ON MARKET VALUE AT TIME OF RENEWAL AND TO BE REVIEWED THEREAFTER
Unless the Tenant shall not more than twelve nor less than six months before the expiration of the term hereby granted give to the landlord notice in writing that it does not wish to take a lease of the demised premises for a further term of five years from the expiration of the term hereby granted at the rent and on the terms and conditions hereinafter mentioned then the landlord will let the demised premises to the Tenant for a further term of five years from such termination aforesaid at a rent to be initially determined and subsequently review in the manner provided by the fifth Schedule hereto and payable as therein provided and subject in all other respect to the same stipulations as are herein contained EXCEPT this clause for renewal.”

This clause which all the parties to this lease agreed to is to the effect that there is almost an automatic renewal after the first 20 years for a further period of five years. If the tenant does not want the renewal for the five years after the 20 years, between 6 months to 12 months, the tenant (the Respondent) is to communicate such to the landlord (the Appellant). This automatic renewal will end on 28/2/2010. Up till this time the Respondent is a tenant in line with the original agreement. It is safe to conclude that the outstanding rent referred to in Exhibit C and E is the rent covering the period that ends on 28/2/2010.

Further in Exhibit C2, the Respondent indicated further interest in the property. At this stage, what kind of tenant is the Respondent holding on the property until possession was recovered on 28/3/2012? Is it a statutory tenancy or contractual tenancy for which the Appellant will be entitled to mesne profit? At this stage I will state as I had earlier found that there is no formal agreement as to the terms of the new tenancy but the point is clear that the Respondent was still in possession until 28/2/2012. The argument by the Respondent’s counsel is that the Respondent is a statutory tenant and therefore the Appellant is not entitled to mesne profit. I must make bold to say that the argument that the mere fact that the Respondent was still in possession after 28/2/2010 makes him a statutory tenant is not correct for all purposes. In some cases, a party can be a statutory tenant or a trespasser after his tenancy expires. If he is a trespasser, the landlord will be entitled to mesne profit but if he is a statutory tenant, the landlord shall not be entitled to arrears of rent. This is the appropriate place to determine who is a statutory tenant?
In A.P Ltd vs. Owodunni (1991) LPELR-213 (SC) where the apex Court in explaining what a statutory tenant is held thus:
“…Sometimes there is a statute which gives security of tenure to such a tenant after his contractual tenancy has expired. When such a statute exists he now holds the premises no longer as a contractual tenant because there no longer exists a contract between him and the landlord. But he none-the-less retains possession by virtue of the provisions of the statute and is entitled to all the benefits and is subject to all the terms and conditions of the original tenancy. As Idigbe. J.S.C., stated in Pan Asian African Co. Ltd. v. National Insurance Corp. (Nig.) Ltd. (1982) 9 S.C. 1 at p. 13: “Put simply, the statutory tenant is an occupier, who when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions. He has also been described as “that anomalous legal entity,..who holds the land of another contrary to the will of that other person who strongly desires to turn him out. Such a person will not ordinarily be described as a tenant.” (See Scrutton, L. J., in Shuter v. Hersh (1922) 1 K.B. 438, at 448.”

See Abeke vs. Odunsi & Anor (2013) LPELR-20640 (SC); Briggs vs. C.L.O.R.S.N. & Ors (2005) LPELR-805 (SC).
Looking at the above case, I find it really difficult to hold that the Respondent is a statutory tenant. Under what statute is the Respondent holding on to the possession of the property? What is the law apart from the usual contractual relationship that governs the tenancy of the Respondent bearing in mind the circumstance of the evidence before the lower Court? The continued stay of the Respondent cannot be said to be contrary to the will of the Appellant as from the totality of the evidence before the lower Court, the Appellant was not forceful about moving the Respondent out of the property. The problem only came up because the Respondent has not paid the outstanding rent and was not paying hence it went to Court. The circumstance can clearly not qualify the Respondent as a statutory tenant. That apart, it is also worthy of note, that the apex Court has held that a limited liability company cannot be a statutory tenant. In Pan Asian Africa Co Ltd vs. Nicon (1982) ANLR 229, the apex Court held:
“I agree with the submission of the plaintiff that the defendant, being a limited liability company did not after the expiration of the lease become a statutory tenant. In Hiller v. United Dairies (London) Ltd. (1934) 1 KB57 CA., it was held that a limited company which by its very nature is incapable of occupying premises as a home cannot become a statutory tenant even if a servant of the company lives on the premises.”
The totality of the evidence and the position of the law in my opinion does not make the Respondent a statutory tenant. I therefore cannot see my way clear to resolve issue 1 in favour of the Respondent. In clear terms I resolve issue 1 in favour of the Appellant.

Having resolved issue one, I will now go on to consider issue two. Worthy of note is the fact that issue two has a direct correlation with issue one as it takes its bearing from issue one. The bone of contention in issue two is, at the expiration of the lease agreement vide Exhibit H, what was the Appellant supposed to claim up till 28/3/2012 when possession was wrested from the Respondent; is it mesne profit? The lower Court in deciding this issue held:
“In this respect, the Claimant cannot claim for mesne profit from the 1st day of March 2005 to 28th March 2012. At best from the evidence led, mesne profit will only arise after the suit was filed in the Magistrate seeking for possession of the demised premises, which is from September 2011 up until the day possession was wrested from the Defendant on 28th March 2012.
In this respect, the claim for mesne profit will fail.”

From the view of the lower Court, the Appellant can only be said to be entitled for a claim for mesne profit when the Respondent is adjudged to be a trespasser after the determination of the lease; in the absence of which, the Appellant is only entitled to a claim for arrears of rent.

The Appellant counsel has argued that since the tenure of the Respondent has expired by effluxion of time, the Appellant is entitled to a claim of mesne profit on the property. The Respondent on the other hand is of the view in agreeing with the lower Court that it is a statutory tenant and therefore the Appellant is not entitled to mense profit. It is important at this stage to make a distinction between mesne profit and arrears of rent. In Osawaru vs. Ezeiruka (1978) LPELR-2791 (SC) relied on by the learned trial Judge, the apex Court made a distinction between mesne profit and arrears of rent in these words:
“The rents due up to that date were arrears and not mesne profits. The amounts due after that date would properly be termed “mesne profits” since the tenancy had been determined by that date and any further occupation by the appellant after that date was a holding over which technically was a trespass but of a kind arising specially from particular relationship of landlord and tenant. In an arrears of rent claim, the tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent, the landlord is not challenging the validity of the continued occupation of the premises by the tenant; indeed, he concedes that the tenant is validly and legally in possession. But in a claim for mesne profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. (See Butterworth’s Words and Phrases Legally Defined, 2nd Edition P. 251).”
The meaning of mesne profit is brought out clearly in Ayinke vs. Lawal & Ors (1994) 7 NWLR (Pt.356) 263, where the apex Court held:
“Mesne profits” has been described as the rents and profits which a tenant who holds over after the lawful termination or expiration of his tenancy or a trespasser has or might have received during his occupation of the land or premises in issue and which he is liable to pay as compensation to the person entitled to possession of such land or premises. As was explained by Goddard, L.J., the expression is another term for damages for trespass arising from the particular relationship of landlord and tenant. See Bramwell v. Bramwell (1942) 1 KB. 370.
It is the name given for the intermediate profits or value for the use and occupation of land during the time it is held by one who is in wrongful possession or who has not agreed on any rents with the landlord, even though such an occupier cannot strictly speaking be described as a trespasser. They may therefore only be claimed as from the date when a tenant ceased to hold the demised premises as tenant and has become a trespasser. Indeed in Ahmed Debs and other v. Cenico Nigeria Limited., (1986) 3 NWLR (Part 32) 846 at 851 – 856, Oputa, J.S.C. aptly described the term as follows:-
The expression “mesne profits” 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. Rent is different from mesne profits. Rent is liquidated, mesne profits are not. Rent is operative during the subsistence of the tenancy, while mesne profits starts to run when the tenancy expires and the tenant holds over. The action for mesne profits does not lie unless either the landlord has recovered possession or the tenents interest in the land has come to an end, or his claim is joined with a claim for possession.”
See Chemiron (Intl) Ltd vs. Stabilini Visinoni Ltd (2018) LPELR 44353.
The contractual tenancy of the Respondent expired by effluxion of time on 28/2/2005 and in line with clause 8, there was an automatic renewal until 31/2/2010. From the evidence before the Court, the Respondent did not pay for the rent for the period of automatic renewal. The Appellant for the period of 28/2/2005 to 28/2/2010 is entitled to arrears of rent as the Respondent was in lawful occupation as a tenant but did not pay rent. However from February 2010 to when possession was taken on28/2/2012, the Appellant is entitled to mesne profit. I make bold to say that the Appellant need not serve the Respondent with a notice to quit but a seven days notice of owners intention to apply to Court to recover possession which the lower Court rightly held in my view to have been issued sometime in September 2011. On this I will refer to the case of Ajayi vs. Harry (2014) LPELR-24127 (CA) where this Court held:
“Indeed, the legal position of a tenant in a fixed tenancy has been settled by the Supreme Court in the case ODUTOLA v. PAPERSACK SUPRA at page 470 and it was reiterated in the case of HILDA JOSEF v. CHIEF A.S. ADOLE (2010) LPELR 4367 (CA) thus: “The position of the law is that a lease or tenancy for a fixed term automatically determines when the fixed term expires. Quit notice is usually obviated in the case of a fixed tenancy since the term of expiration is normally known unlike periodic tenancies that continues automatically from period to period until it is determined by a notice to quit”. See NWEKE v. IBE (1974) 46 CSLR 54 and ONWUAGHAMBA EZENWA v. OPARA OKO & ORS (1999) 14 NWLR pt 637 95 at 197″. The position is that all the Landlord for a fixed term tenancy as in this case, needs to do is to serve on the tenant a seven days notice of owner’s intention to apply to Court to recover possession. This notice was served in this case and I agree with trial Court that it is valid and effective.”
This view also is buttressed by the fact that despite the fact that the contractual tenancy had expired on 28/2/2005 and renewal expired on 28/2/2010, the Respondent made an offer for further lease by negotiating via Exhibit C and C1 but it did not get to the contract stage. Between 28/2/2005 and 28/2/2010 the Respondent is a tenant and therefore the Appellant is entitled to arrears of rent but from 28/2/2010 to 28/2/2012 when possession was taken, the Appellant is entitled to mesne profit as there was no agreement as to the extension of the lease and so the Respondent was a trespasser from 28/2/2010 to 28/2/2012.
In Abeke vs. Odunsi & Anor (2013) LPELR-20640 (SC), the Supreme Court held:
“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.”
Similarly, in Consolidated Tin Mines Ltd & Anor vs. Mangu (2017) LPELR-43297 (CA), this Court per Abiru, JCA held:
“This Court must say that while it agrees with the lower Court that with the expiration of re-granted certificate of occupancy the relation of grantor and grantee between the Plateau State Government and the first Appellant ended, it is not correct that the Appellants ceased to have any title to the land in dispute. The position of the Appellants on the land is akin to that of a lessee who holds over after the expiration of his lease. The law is that by holding over and retaining possession of the land in dispute after the expiration of the tenure of the certificate of occupancy without the Plateau State Government assenting or dissenting to a further grant, the Appellants became grantees at sufferance because they came into possession of the land lawfully in the first place. This new right which enures to the Appellants by operation of possessory law is quite distinct from rights obtained by virtue of the certificate of occupancy and this right persists against the whole world until the Plateau State Government recovers possession from the Appellants in the manner authorized by law, by suing for possession in Court –Okoye vs Dumez (Nig) Ltd (1985) 1 NWLR (pt 4) 783, Ude vs Nwara (1993) 2 NWLR (Pt 278) 638, Obioha vs Dafe (1994)2 NWLR (Pt 325) 157, Ezenwa Vs Oko (1999) 14 NWLR (Pt 637) 95, Briggs Vs The Chief Lands Officer of Rivers State of Nigeria (2005) 12 NWLR (Pt 938) 59. This point was explained by Iguh, JSC in Ogualaji Vs Attorney General, Rivers State (1997) 6 NWLR (PT 508) 209 at pages 233-234 H-F thus: “Secondly, while the appellant under the said State Lands Law was entitled to a further use and possession of the demised property for three months after the expiration of his lease, he remained, at common law, a tenant at sufferance of the property in dispute until he was lawfully ejected or sued for possession by the lessor. This is because, where a tenant, having entered the demised premises lawfully or under a valid tenancy in the first place, holds the same over at the expiration of the lease and remains in possession thereof without the landlord’s assent or dissent, he automatically becomes a tenant at sufferance… This class of lease or tenancy arises only by operation of law and not by express grant for it assumes an absence of an agreement between the lessor or landlord of the one part, and the lessee or tenant of the other part… It is nonetheless well recognized in law as a special class of tenancy or leasehold, enjoying as it were, its attendant rights and privileges and terminable by the lessor or landlord by the ejection of the lessee or tenant by the due process of law. This generally takes the form of a Court action against such lessee or tenant for possession of the demised premises.” Thus, by retaining possession of the land in dispute after the expiration of the certificate of occupancy, the Appellants acquired an equitable interest in the land in the terms of the expired certificate of occupancy and which is entitled to the protection of the law and is enforceable against the whole would, except the grantor, the Plateau State Government. Therefore, notwithstanding the expiration of the tenure of their certificate of occupancy on the land in dispute, the Appellants still possessed a right to the land which is enforceable against the Respondent. This Court finds that the Appellants proved a better title to the land than the Respondent.”

In the circumstance of the analysis of the law and the facts as disclosed by the record of appeal, I resolved the second issue in favour of the Appellant to the extent that from 1/3/2005 – 28/2/2010, the Appellant is entitled to arrears of rent in the sum of N3,016,900 and mesne profit from 1/3/2010 – 28/2/2012 which is assessed at N5,000,000.

On issue three, the argument of counsel is whether or not the Appellant was able to plead the particulars of the willful destruction of its property by the Respondent to entitle it to a claim for damages. By their submissions, counsel are calling on this Court to evaluate the evidence of the parties before the lower Court. As a preliminary point, I must at this point state that this Court being an appellate Court does not have powers to evaluate evidence as it is the trial Court which has the singular responsibility of examining and evaluating evidence. See Tinubu vs. Khalil & Dibbo Transport Ltd (2000) LPELR-3249 (SC). Although where the appellate Court is of the opinion that the lower Court has failed in its responsibility of properly examining and evaluating the evidence of the parties, then the appellate Court can exercise such powers under Section 15 of the Court of Appeal Act. See Nguma vs. AG Imo State (2014) LPELR-22252 (SC).

The Appellant’s claim contained in its second claim of its Writ of Summons and 3rd Amended Statement of Claim are in the nature of special damages and as such must conform to the stipulations of the law on it being specifically pleaded and strictly proved. What this Court will now consider is to determine if the claim of the Appellant on this head of claim was specifically pleaded and if same was strictly proved. In resolving this issue, the lower Court held that the particulars of the willful destruction were not specifically pleaded. Can this be true? The Appellant on the other hand has argued that the particulars of willful destruction was pleaded as it made reference to the schedule containing the particulars in certain paragraphs of its 3rd Amended Statement of Claim. I will now refer to the specific paragraphs of the Appellant’s 3rd Amended Statement of claim where it made reference to the schedule containing the particulars of willful destruction. This is contained in paragraphs 22 and 23 of the 3rd Amended Statement of Claim found on pages 246-257 of the record.
“21. In breach of the express and implied covenants, the Defendant allowed the properties to fall in disrepair and uninhabitable state, full particulars of which were given to the Defendant in a Schedule attached to the Claimant’s Solicitors’ letter dated 8th May 2012, copy of which was served on the Defendant on the same date.
23. The cost of repairs and restoring the premises back to a tenantable state and necessary to remedy the dilapidation as listed in the Schedule of Cost by the Quantities Surveyors amounts to N93,164,841.00.”

I take cognizance of the fact that the essence of pleading particulars of special damages is to give the Defendant notice of the origin and cost of what he is to pay so as to prepare for his defence. This was the purport of the Supreme Court’s decision in Ajigbotosho vs. RCC (2018) LPELR-44774 (SC) where it held:
“To start with, special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly. For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. See DUMEZ (NIG) LTD. VS OGBOLI (1972) 1 All NLR 241; TABER VS BASMA 14 WACA 140. In GONZEE (NIG) VS NERDC (2005) 13 NWLR (Pt. 943) at 639. This Court held that: – “Strict proof in the context of special damages means that the person making a claim in special damages should establish his entitlement to that type or class of damages by credible evidence of such character as would satisfy the Court that he is indeed entitled to an award under that head. OSHINJINRIN VS. ELIAS (1970) 1 All NLR 153, DUMEZ (NIG) LTD VS. OGBOLI (1972) 1 All NLR 241. There is a distinction between special damages and general damages in terms of pleading and proof and model of assessment of each. Special damages is specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim. Where general damages is averred as having been suffered, the law will presume it to be the direct or probable consequence of the act complained of but the quantification thereof is at the discretion of the Court. See: – IJEBU-ODE LOCAL GOVERNMENT VS. ADEDEJI BALOGUN & CO. LTD. (1991) 1 NWLR (pt. 166) 136, ESEIGBE VS AGHOLOR (1993) 9 NWLR (pt.316) 128 BADMUS VS ABEGUNDE (1999) 11 NWLR (pt. 627) 493. This Court however, in XTOUDOS SERVICES NIG. LTD VS TAISEI (W.A) LIMITED (2006) 15 NWLR (pt. 1003) at 537 on how to plead and prove special damages held as follows: – “Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage. The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. In the instant case, there was no single paragraph in the statement of claim where the Appellants specifically pleaded facts with particulars in support of their claim for special damages, and also for general damages. As a result, the subject matter of the Appellants’ alternative relief for special and general damages for breach of contract was neither pleaded nor proved to justify being awarded by the trial Court. B.E.O.O. INDUSTRIES NIG. LTD. VS MADUAKOH (1975) 12 SC 91 referred to (Pg. 551, paras. B-E).” From the foregoing, special damages will only be awarded if strictly proved and for this, the Appellant in this case ought to have gone beyond stating the estimate of the amount it will cost him to repair the damaged road and rehabilitate the damage done to the parcel of land.”

The Appellant by the aforementioned paragraphs referred the lower Court to the schedule containing the particulars of the damages. Can this be said to amount to specifically pleading same? To my mind, I would answer this in the affirmative. The schedule being attached to the processes of the Appellant forms part of the pleadings of the Appellant which is before the Court and the Court can take cognizance of its content. Also, it gives the Respondent access to the facts which make such calculation possible. To this extent, I do not agree with the learned trial Judge in his holding that the particulars of special damages were not pleaded. Going further, it would seem that putting those figures on the body of the statement of claim will only make it unnecessary and wordy when same is already attached as a document to the 3rd Amended Statement of Claim.

Suffice to say that pleading particulars of special damages is quite different from proving same. The fact that a party is able to plead particulars of special damages does not automatically entitle such a party to a grant of same as special damages must be proved. Where such a party is not able to prove its claim for special damages, he will not be entitled to his claim. See Institute of Health Abu Hospital Management Board vs. Anyip (2011) LPELR-1517 (SC).

In respect of the Exhibits D1 and D2 referenced by the lower Court, I have gone through the letters and I do not seem to agree with the holding of the lower Court that at the time those letters were written around January 2010, the Appellant did not accuse the Defendant of any willful destruction. A close look at the letters will reveal that the Appellant’s letter was to the effect that the Respondent has breached the contract between the parties in respect of the property allowing it to deteriorate. There was no evidence borne out of the record to attest to the fact that the Appellant had been in the premises to have sufficient information as to the damage done. I have gone through the pictorial evidence, and I make bold to say the damages done to the Appellant’s premises go beyond what will be seen by a reasonable man to constitute fair wear and tear. The argument of learned counsel for the Respondent on the competence and admissibility of the photographs does not hold water and will be discountenanced as same was not raised in the lower Court and this is more so that when the photographs were tendered as exhibit, the Respondent did not object to their admissibility. It is too late at this time to object to their admissibility. See Sani vs. Kogi State House of Assembly & Ors (2019) LPELR-46404 (SC). From the evidence before the lower Court, I am not of the opinion that the Appellant proved all the items of special damage. The 2nd witness of the Appellant in paragraph 5 of the written deposition made an averment to the effect that he conducted the survey. I will reproduce his evidence in chief as he adopted the written statement. He said:
“That I conducted a survey inspection of the premises and a comprehensive schedule of the survey and the cost of renovating the premises which was attached to our letter dated the 25nd day of April 2012.”

This is the evidence in chief. While for the purpose of pleading, it is enough to tender the survey report as a whole since it was pleaded, however for the purpose of proof or evidence before the Court, the Appellant ought to prove before the Court item by item or at least head of items to satisfy the laid down law on the proof of special damages. The Appellant did not do this. In my opinion, the Appellant cannot be said to have specially proved the damages by a sweeping document. This in my view does not satisfy the proof of special damages. In the evidence in chief, the Appellant through the two witnesses was unable to prove the special damages. However in the 2nd witness’ cross examination he specifically mentioned item A (N500,000) and item K (a) (N23,800,000) for the passengers lift. What therefore has been proved specifically for the cost of renovation is N24,300,000 (Twenty Four Million, Three Hundred Thousand Naira).

This issue therefore is resolved in favour of the Appellant for the sum of N24,300,000. (Twenty Four Million, Three Hundred Thousand Naira).

On issue four, the claim of the Appellant falls under the category of special damages and same ought to be specifically pleaded. I will not belabor this issue as special damages have already been dealt with on issue three. With respect to the claim of N5,000,000 being claim for solicitor’s fee, I have gone through the record and apart from the paragraph 24 of the Appellant’s 3rd Amended Statement of Claim where it pleaded that it spent the sum of N5,000,000 as professional fees and apart from Exhibits A and B there was no other document to support its claim. The law is that where a further proof is needed, and none provided to support the ipse dixit of a party, the Court will not rely on same. See Debs & Ors vs. Cenico (Nig.) Ltd (1986) LPELR-934 (SC). The Appellant pleaded that it paid the aforementioned sum. What evidence is before the lower Court? The 2nd witness under cross examination said he was paid between N250,000- N300,000 for the survey conducted. Exhibit A1 is receipt for Jide Oladosu for the sum of N350,000 being for valuation/schedule of dilapidation on property at 33 Creek Rd (Olorogun Michael Ibru). The receipt is for Jide Oladosu while the 2nd witness is Amusa Alani. It would appear that there is conflict in the evidence and the case presented by the Appellant as to who was commissioned for the survey work. This contradiction is material and therefore I cannot rely on the evidence to say that the amount spent for survey has been specifically proved. The conflict comes within the exception to the general rule that oral evidence cannot be allowed to vary the documentary evidence. See Anyanwu vs. Nwachukwu & Ors (2017) LPELR-42849 (CA).

For the bill of quantities, there is a receipt (Exhibit A) for payment to Azolad Global Services Limited for N600,000. This receipt is sufficient special prove for the profession fees for the bill of quantity. Apart from that, there is no other proof to justify the claim of N5,950,000. The amount the Appellant is entitled to is N600,000. I resolved this issue in favour of the Appellant to the tune of the sum of N600,000.

On a whole, issue 1 is resolved fully in favour of the Appellant, issues 2, 3 and 4 are resolved also in favour of the Appellant not in full as the amount claimed but rather in issue 2, the Appellant is entitled to N8,016,900 representing arrears of rent from 2005 – 2010 at N3,016,900 and mesne profit assessed at N5,000,000 for the period of 2010 – 2012 when possession was eventually given to the Appellant. On issue 3, the Appellant is entitled to the sum of N24,3000,000 while for issue 4, the Appellant is entitled to N600,000. By and large the appeal is meritorious and same is allowed and the judgment of Hon. Justice O.H. Oshodi of the High Court of Lagos sitting in Ikeja delivered on 24/5/2017 in Suit No. LD/901/2012 – Oteri Holdings Limited vs. Heritage Bank Company Limited is hereby set aside. For completeness, the appeal largely succeed and this Court award the total sum of N32,916,900 to the Appellant.
I award N300,000 (Three Hundred Thousand Naira) in favour of the Appellant.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I entirely agree with, and I do not desire to add to, the reasoning and conclusion in the leading judgment of my learned brother, Ebiowei Tobi, JCA, which has just been rendered.

I adopt the leading judgment as mine and also allow the appeal on the same terms as contained in the leading judgment.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother EBIOWEI TOBI JCA. afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

A. OVBAGBEDIA, ESQ. For Appellant(s)

KOLADE OBAFEMI, ESQ. For Respondent(s)