STALLION (NIG) LTD v. ADEOJO
(2021)LCN/15566(CA)
In The Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, March 04, 2021
CA/L/93/2016
Before Our Lordships:
Hussein Mukhtar Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
STALLION NIGERIA LIMITED APPELANT(S)
And
ALHAJI AYOADE YEKINI ADEOJO RESPONDENT(S)
RATIO:
GROUNDS OF APPEAL
Before arguing on the issues distilled for resolution, counsel went to great length of almost 3½ pages of the brief to address what he termed “allegations of distortion made against counsel to the Appellant by the learned trial Judge….” With due respect to the learned counsel to the appellant, I do not see this point as arising from any of the three grounds of appeal. The law is well settled that points not raised in any ground of appeal cannot be competently raised in a brief of argument. This position of law was confirmed by the apex Court in the case of OLUMOLU V ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR, PT 430, 253 where the Court held as follows:
“The law is that points not raised in any ground of appeal and for which no leave to argue has been sought and obtained cannot be competently raised in a brief of argument. See: OSINUPEBI V SAIBU (1982) 7 SC, 104. In order that any issue raised for determination may be considered by the Court (appeal Court), such issue must be based on and arise from a proper or competent ground of appeal. See: NWOSU V UDEAJA (1990) 1 NWLR, PT 125, 188 and ONYIDO V AJEMBA (1991) 4 NWLR, PT 184, 203.” See also ACHIAKPA V NDUKA (2001) 7 SC, PT 11, 125 at 146 and MANI & ORS V SHANONO (2006) 4 NWLR, PT 969, 132. PER PATRICIA AJUMA MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice M. A. Dada of the Lagos State High Court sitting in Lagos and delivered on the 30th day of April, 2015. By the said decision, the learned trial Court entered judgment in favour of the Claimant/Respondent in the sum of N18,000,000 (Eighteen Million Naira), being the cost of renovation work carried out on the Claimant/Respondent’s property situated at NO. 55D Adebisi Omotola Close, Victoria Island, Lagos.
The Claimant/Respondent had by a writ of summons dated and filed on the 1st June, 2012, claimed against the defendant/appellant the following four reliefs:
1. A DECLARATION that the Defendant is indebted to the Claimant in the sum of N22,365,400.00 being the total cost of renovation work carried out on the Claimant’s property comprising of 12 Residential Flats together with Quarters and Apartment situated at NO. 55D. Adebisi Omotola Close, Victoria Island, Lagos.
2. An Order that the Defendant pay the Claimant the sum of N22,365,400.00 being the total cost of renovation work carried out on the Claimant’s property comprising of 12 Residential Flats together with Quarters and Apartment situated at NO. 55D, Adebisi Omotola Close, Victoria Island, Lagos.
3. An Order that the Defendant pay the Claimant the sum of N5,000,000.00 (Five Million Naira), cost of suit, and which cost includes the Legal fees.
4. Interest at the rate of 30% per annum on the sum of N22,365,400.00 from the 31st of August, 2011 to the date of judgment being the prevailing interest rate.
The brief facts of this case are that the claimant/Respondent had by an agreement entered into on the 1st day of September, 2006 leased his building comprising 12 residential flats, together with boys quarters and appurtenances situated at No. 55D, Adebisi Omotola Close, Victoria Island, Lagos to the Defendant/Appellant for a term of five years commencing from the 1st day of September, 2006 to the 31st day of August, 2011 at an annual rent of N18,000,000 (Eighteen Million Naira) payable in advance for the entire five years making the total amount of N72,000,000 (Seventy Two Million Naira) payable to the Respondent. The Respondent and the Appellant agreed that the sum of N18,000,000 (Eighteen Million Naira) be deducted for the cost of repairs from the total amount of the five years’ lease and the balance of the rent paid to the Respondent. By virtue of the lease agreement, the appellant covenanted with the respondent to carry out all the repairs and renovations of the demised premises to a good tenantable condition of a high standard and with the best material to the satisfaction of the Respondent having furnished the Appellant the sum of N18,000,000 (Eighteen Million Naira) for the purpose. The Appellant failed to carry out the repairs as agreed. Following this failure, the Respondent instructed its agents to carry out the repairs to the tune of N22, 365,400. Aggrieved by the Appellant’s breach of the agreement, the Respondent instructed his solicitors to recover the N22, 365,400 as cost of the repairs/renovation work on the property. Upon the settlement of pleadings, the hearing of this suit and in proof of his case, the claimant/Respondent called two, witnesses and tendered 8 exhibits marked as Exhibits 1 – 8. The defendant/appellant on the other hand called one witness in its defence and tendered one document. This was admitted in evidence and marked as Exhibit D. At the conclusion of hearing, written addresses were ordered and adopted. In a considered judgment his Lordship in finding for the claimant aforesaid also awarded him interest at the rate of 10% and N50, 000 costs.
By this appeal the appellant challenged the judgment of the lower Court by filing a Notice of Appeal on the 13th day of May, 2015 consisting of three grounds of appeal with their particulars as follows:
GROUND 1:
The Learned Trial Judge erred in law when she held that the Appellant would be liable to make restitution of the sum of N18,000,000.00 (Eighteen Million Naira) to the Respondent, being money deducted from the rent due at inception of the Lease Agreement towards renovating the property.
Particulars of Error
i. The claim of the Respondent was for renovation after delivery of possession and not renovation at inception of the lease.
ii. The Respondent never at any time sought as a relief a restitution of N18,000,000.00 (Eighteen Million Naira) as deduction from the rent due at inception towards renovating the property.
iii. The claim was not contained in the Pleadings of the Respondent at the Trial and was not an issue for determination.
iv. The totality of the Respondent’s case against the Appellant was hinged on the claim for N22,365,400.00 (Twenty Two Million, Three Hundred and Sixty Five Thousand, Four Hundred Naira) being the total cost of renovation work carried out on the Respondent’s property, which the Respondent failed to prove.
GROUND 2
The Learned trial Judge erred in law when she held that the property was in a deplorable state owing to the fact that the Appellant did not expend the N18,000,000.00 (Eight Million Naira) that was deducted from the rent due at inception towards renovating the property.
Particulars of Error
i. There was no evidence before the Court to establish the state of the Property.
ii. The Appellant did not admit that the property was in a deplorable state.
GROUND 3
The judgment of the lower Court is against the weight of evidence.
In prosecuting the appeal, parties filed their briefs of argument. The appellant’s brief, dated and filed on the 11th February, 2019 was settled by Mr. Laolu Owolabi while that of the Respondent, dated and filed on the 4th December, 2020 but deemed on the 8th December, 2020 was settled by Mr. Ajibo Ariba. The appellant also filed a reply brief on the 7th December, 2020 which was deemed on the 8th December, 2020. At the hearing of this appeal on the 8th December, 2020, Mr. O. A. Owolabi, of counsel for the appellant adopted both the brief and the reply brief as their legal arguments in support of the appeal. In it, Counsel submitted two issues for the determination of the Court thus:
1. WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN SHE HELD THAT THE APPELLANT WOULD BE LIABLE TO MAKE RESTITUTION OF THE SUM OF N18,000,000.00 (EIGHTEEN MILLION NAIRA) TO THE RESPONDENT, BEING MONEY DEDUCTED FROM THE RENT DUE AT INCEPTION OF THE LEASE AGREEMENT TOWARDS RENOVATING THE PROPERTY (GROUND ONE OF THE NOTICE OF APPEAL).
2. WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN SHE HELD THAT THE PROPERTY WAS IN A DEPLORABLE STATE OWING TO THE FACT THAT THE APPELLANT DID NOT EXPEND THE N18,000,000.00 (EIGHTEEN MILLION NAIRA) THAT WAS DEDUCTED FROM THE RENT DUE AT INCEPTION TOWARDS RENOVATING THE PROPERTY (GROUND(sic) TWO AND THREE OF THE NOTICE OF APPEAL). Before arguing on the issues distilled for resolution, counsel went to great length of almost 3½ pages of the brief to address what he termed “allegations of distortion made against counsel to the Appellant by the learned trial Judge….” With due respect to the learned counsel to the appellant, I do not see this point as arising from any of the three grounds of appeal. The law is well settled that points not raised in any ground of appeal cannot be competently raised in a brief of argument. This position of law was confirmed by the apex Court in the case of OLUMOLU V ISLAMIC TRUST OF NIGERIA (1996) 2 NWLR, PT 430, 253 where the Court held as follows:
“The law is that points not raised in any ground of appeal and for which no leave to argue has been sought and obtained cannot be competently raised in a brief of argument. See: OSINUPEBI V SAIBU (1982) 7 SC, 104. In order that any issue raised for determination may be considered by the Court (appeal Court), such issue must be based on and arise from a proper or competent ground of appeal. See: NWOSU V UDEAJA (1990) 1 NWLR, PT 125, 188 and ONYIDO V AJEMBA (1991) 4 NWLR, PT 184, 203.” See also ACHIAKPA V NDUKA (2001) 7 SC, PT 11, 125 at 146 and MANI & ORS V SHANONO (2006) 4 NWLR, PT 969, 132.
There is no ground of appeal in respect of the argument contained at pages 4 – 7 of the appellant’s brief regarding the alleged prejudicial and injurious comments of the learned trial Judge against counsel to the defendant. The submissions therein therefore go to no issue. They are accordingly discountenanced.
In arguing both issues together, counsel submitted that there was no averment by the Claimant/Respondent on the failure of the appellant to renovate the property at the inception of the lease. That the case was contested wholly on the Claimant/Respondent’s claim for renovation at the expiration of the lease. Counsel submitted that the learned trial Judge having found at page 301 of the Record that the Respondent failed to discharge the burden of proof to establish his claim, ought to have dismissed the claim but he instead ordered the Appellant to refund the sum of N18,000,000.00 (Eighteen Million Naira) to the Respondent being money deducted from the rent at the inception of the lease agreement towards renovating the property. Counsel referred to the cases of ELIOCHIN (NIG) LIMITED & ORS V MBADIWE (1986) 1 NWLR, PT 14, 47 and ODUTOLA V PAPER SACK NIGERIA LIMITED (2006) 11 – 12 SC, 60, (2006) 18 NWLR, PT 1012, 470 to submit that the principle of Ubi Jus Ibi Remedium is not at large to entitle a party to a remedy for a claim not set up in its statement of claim and for which the other party was led to believe was not an issue. Counsel also contended that it is not a good proposition of the law that the principle of pacta sunt servanda will create an obligation and a relief which the other party was not aware was in issue to enable him establish or disproof the claim. Counsel referred to the cases of OSUMBA & ALADUN FAMILIES V MOLAKE (1975) 12 SC (REPRINT), 46; OKOYE V DUMEZ NIG LTD & ANOR (1985) 1 NWLR, PT 4, 783 and OBIJURU V OZIMS (1985) 2 NWLR, PT 6, 167 to argue that evidence given which is not referable to the pleadings should not be admitted as it goes to no issue and where admitted inadvertently, it should be ignored and expunged from the record for the purpose of making findings of fact. Counsel also referred to the cases of EBENEZER NWOKORO & 7 ORS V TITUS ONUMA & ANOR (1990) 5 SC, PT 1, 124 and FHA V EMELIE (2013) 3 NWLR, PT 1342, 478 AT 500, PARAGRAPHS G – H to emphasise the importance of Courts limiting themselves only to issues raised by parties, as to act otherwise might result in the denial to one or the other of the parties, the right to fair hearing. Counsel pointedly contended that the Appellant’s right to fair hearing was denied by the lower Court when it gave judgment on a ground which was not an issue for determination and for which there was no joinder of issues. Counsel also contended that there was no evidence before the Court as to the state of the property as to justify the finding of the learned trial Judge that the property was in a deplorable condition. That such finding amounts to speculation which a Court is not supposed to indulge in. Counsel further submitted that the trial Court failed to consider that the claim for repayment of the deducted rent for renovation had become statute barred and thereof unobtainable as at 30th April, 2015 when the learned trial Judge raised it. Counsel urged the Court to allow the judgment of the trial lower Court.
Mr. Ajibola Ariba, of counsel for the Respondent also adopted their brief as their legal arguments in opposition to the appeal. In it, counsel distilled three issues for determination by the Court thus:
1. Whether from the evidence before the lower Court the Respondent established that he justified that he was entitled to the reliefs sought and consequently granted by the Court? (Ground (sic) one, and two of the Notice of Appeal).
2. Whether the respondent proved by admission evidence that the property was in a deplorable state, and the Appellant failed to honour the lease Agreement and thereby made the Appellant indebted to the Respondent to the tune or value expended for the renovation? (Ground (sic) two, and three of the Notice of Appeal).
3. Whether the lower Court can award the sum of N18,000,000.00 (Eighteen Million Naira) in favour of the Respondent? (Ground (sic) one and two and three of the Notice of Appeal).
The three issues submitted by the Respondent are similar to the two issues raised by the Appellant and can be subsumed therein. This is why I continue to advocate for respondents to adopt the issues submitted for resolution by the Appellant rather than formulate distinct issues. This is as it should be, not only because the Appellant is the ‘owner’ of the appeal in a manner of speaking but also because the sole responsibility of a respondent especially where he does not have a cross appeal is to answer to the issues raised by the appellant by trying to justify the judgment of the lower Court given in his favour. That way too, the respondent is not distracted from the key issues raised by the appellant and is able to more effectively respond to them.
Another advantage of this is that it enables the Respondent avoid the risk of running foul of certain legal principles. For instance the respondent herein in distilling its issues claim to have formulated issue 1 from grounds 1 and 2; issue 2 from grounds 2 and 3 and issue 3 from grounds 1 and 2. The settled position of the law is that while an issue can be formulated from one or several grounds of appeal, two or more issues cannot be formulated from the one ground of appeal. To do so as done by the Respondent is not permissible as it amounts to proliferation of issues: OKWU AGBALA V IKWUEME (2010) 19 NWLR, PT 1226, 54; NWANKWO V YAR’ ADUA (2010) PT 1209, 518 and NEW NIGERIA BANK LTD V EDOMA & ORS (2001) 1 NWLR, PT 695, 535. The three issues formulated by the respondent are therefore incompetent for proliferation. They are all accordingly discountenanced.
Happily it is not the appellant that ran foul of proliferation as all the three grounds which being left without issues would have also been struck out. In the more recent case of the apex Court inIKUFORIJI V FRN (2018) LPELR – 43884 (SC), the Court seems to have taken a more practical position on this issue when it held:
“However, as recent decisions of this Court, particularly CPL DESMOND ONONUJU v. THE STATE (2013) LPELR 20803 (SC); PARTRICK MICHAEL & ORS v. BANK OF THE NORTH (2015) LPELR – 24690 (SC) demonstrate, the Courts, in their discretion exercised in the interest of justice, when parties proliferate issues from valid grounds of appeal, still reframe issues and determine the appeal on such reframed issues. When the appellant proliferates issues from one ground of appeal, the appeal Court can, in its discretion or at its liberty, elect to prefer and adopt the respondent’s issue that is either not offensive or which is more succinct and clear as this Court did in PATRICK MICHAEL & SONS v. BANK OF THE NORTH (SUPRA). The purpose of formulating issues for determination of the appeal is merely to enable the parties narrow down the issues raised in the grounds of appeal. See LABIYI v. ANRETIOLA (1992) 8 NWLR, PT 258, 138 AT 159; ADELAJA v. FANOIKI (1990) 2 NWLR, PT 131, 148.”
Flowing from this authority and in the circumstance, I hold that I will determine this appeal on the two issues raised by the Appellant.
In determining issue 1 as raised by the appellant, it is important to point out that both parties are in agreement that there is a valid tenancy and lease agreement which subsisted between the parties until the pre-vacation inspection. It was also not in contention that the building in issue was in a deplorable state before the appellant paid for the lease and the reason the sum of N18,000,000 representing one year’s rent was given to the Appellant by the respondent was for the proper renovation of the property to make it tenantable. The crux of the matter as I understand it from the appellant’s submission in respect of issue 1 is this: that there was no claim pleaded and proved by the Claimant/Respondent. That the agreement to renovate the leased property at the inception of the lease by the appellant was not effected, yet the learned trial Judge granted the relief not sought to the Respondent. I have gone through the Claimant/Respondent’s statement of claim upon which this matter went to trial in the lower Court. Three paragraphs of the pleadings are relevant to this issue of renovation and I reproduce them:
“5. The claimant avers that by the said Tenancy Agreement, the Claimant and defendant agreed that the sum of N18,000,000 (Eighteen Million Naira) be deducted by the defendant for cost of repairs from total amount of the five (5) years lease …”
6. The Claimant avers that by virtue of paragraphs ii and v, of the aforesaid Tenancy Agreement, the Defendant covenanted with the claimant to carry out all the repairs, and renovations of the demised premises to a good tenantable condition to a high standard and with the best materials to the satisfaction of the Landlord. The Claimant further avers that his agent, Messrs JIDE TAIWO & CO (Estate Surveyors & valuers) and the Defendant conducted the pre-vacation inspection of the property and inspection of other municipal bills in respect of the property and a report was made as regards the Agent’s findings and the Defendant agreed to renovate the property to a tenantable condition.”
By paragraph 2 of the defendant/appellant’s statement of defence they joined issues with the plaintiff/respondent on these three paragraphs. Throughout the pleadings of the plaintiff/respondent, it was clear that there was no time limit put to the renovation to be carried out by the Appellant. As far as the plaintiff/respondent was concerned no renovation work was done on the property by the defendant/appellant. Indeed, it is clear from Exhibit, the letter from the plaintiff/respondent’s agent to the Defendant/Appellant that the reason why the renovation works were being done by the end of the tenancy was because the defendant/appellant failed to carry out the bulk of the renovation. This though not directly averred in the pleading of the plaintiff/respondent but was clearly spelt out in the above Exhibit thus:
“Evidence from the information made available to us as contained in the letter from our client’s former Agent, TOB TOBAB & SONS LTD to your company, dated 11th July, 2001 reveals that most of the above defects observed during the inspection (though access was not granted into some of the flats) from bulk of the outstanding repairs/renovation works, your company agreed with our client to be carried out on his behalf through your commissioned contractors.” The Renovation/Repairs were based on the specification and costs estimated at N18,000,000 (Eighteen Million Naira) as per the quotations of third Dimensions which was paid for by our client by way of rent deduction.”
After all by clause (ii) of Exhibit, the Tenancy Agreement, the defendant/appellant as tenant, covenanted with the Landlord, plaintiff/Respondent thus:
“(ii) To carry out to a high standard and with best materials and complete to the satisfaction of the landlord, within the next three months of the commencement of this tenancy, all the repairs, renovations and replacement works at the demised premises in accordance with the specifications and details indicated in the Estimates dated 21st July, 2006, submitted to you by your contractors, Messrs. Third Dimensions (Architects planners and Development Consultants) a copy of which is attached herewith as a schedule to this Tenancy Agreement.”
This clause amounts to a covenant to repair. By not showing that the repairs have been carried out as agreed the defendant/appellant can be held to be in breach of the covenant to repair. The Supreme Court in the case of REYNOLDS CONSTRUCTION COMPANY LTD V ROCKONOH PROPERTIES COMPANY LTD (2005) 10 NWLR, PT 934, 615 set out the three remedies open to the landlord for breach by the tenant of his repairing covenant: “… (1) Forfeiture and/or (2) An action for damages or (3) entry to carry out the repairs and recovery of the cost of doing so if the terms of the Lease so provide.” See also: ISHOLA-WILLIAMS V HAMMOND PROJECT LTD (1988) 1 NWLR, PT 71; 481.
In the instant case the respondent took the third option by entering and carrying out the repairs and recovering the costs. The only difference is that the learned trial Judge instead of awarding the actual cost of repairs as pleaded, of N22,365,000 awarded N18,000,000 which was the one year’s rent given to the Appellant to effect repairs/renovations on the property, which repair was to be undertaken by the Appellant’s own selected contractor, Messrs Third Dimension. It is not open to the Appellant to allege that the Respondent did not plead the failure of the Appellant to carry out the repairs. The settled principle is that agreements must be kept: “Pacta sunt servanda”: INCORPORATED TRUSTEES of NIGERIAN BAPTIST CONVENTION & ORS V GOVERNOR of OGUN STATE & ORS (2016) LPELR – 41134 (CA) and OKECHUKWU V ONUORAH (2000) 15 NWLR, PT 691, 597. The Appellant who covenanted to carry out repairs has a legal burden to show that he complied with the terms of his covenant. This is especially so in view of the positive averment of the defendant/Appellant in paragraph 7 of its Statement of Defence thus:
“contrary, the Defendant states that renovation works were carried out on the property in accordance with the agreement, and this was eventually admitted and conceded by the former agents of the claimant Messrs. TOB TOBAB & SONS LTD.”
First of all, this averment admits of the fact that the Respondent has an opposite averment, hence the opening expression, “contrary to the averments of the claimant….”. Secondly, and more importantly, the law is trite that he who asserts must prove: CROWN FLOUR MILLS LTD & ANOR V OLOKUN (2007) 4 NWLR PT 1077, 254. See also DASUKI V FRN & ORS (2018) LPELR – 43897 (SC) and AYALA V DANIEL & ORS (2019 LPELR – 47184 (CA). This principle is the essence of SECTION 131 (1) of the EVIDENCE ACT, 2011. It actually means that the burden of proving a fact rests on the person who asserts the affirmative of the issue and not on the person who asserts the negative for a negative is usually incapable of proof: OMISORE & ANOR v. AREGBESOLA & ORS (2015) LPELR – 24803 and FAMUROTI v. AGBEKE (1991) 5 NWLR, PT 189, 13. This principle goes hand in hand with SECTION 132 of the EVIDENCE ACT, 2011, which places the burden of proof in every suit or proceeding on the party who will fail if no evidence at all were given on either or each side. The appellant asserted the affirmative that they carried out the renovation works on the property in accordance with the agreement. They did not lead any evidence in support of this positive assertion. Having not proved the fact that they carried out the repairs in line with their assertion, the learned trial Judge was right to have found against the appellant. Learned counsel to the appellant was therefore misconceived when he contended that the trial Judge wrongly placed the burden on them. It is the law that placed the burden on them. Counsel is also misconceived when he contended that the learned trial judge found for the Respondent only on the principle of “Ubi jus ubi Remedieum.” Both parties are ad idem that there was a covenant to repair and the respondent gave the Appellant the money for this repair at the agreed cost of N18,000,000. There is no evidence that this renovation was carried out or the money refunded to the Respondent. This will put the appellant out as having breached the covenant to repair the demised property. All the auxiliary issues about the judgment not being based on issues raised by the parties, etc. are mere irritations which do not go to the root of issue (1) under consideration. The undisputed fact is that there was an agreement to repair, the money to carry out the repair was duly given to the appellant and there is no evidence that the appellant carried out the repairs. Under every known law and the principles of equity, the Respondent is at the very least entitled to a refund of his money. After all in the popular parlance, the respondent is not a “father Christmas” landlord to be doling out to his tenants one year’s rent! I resolve this issue in favour of the respondent and against the appellant.
Issue 2 as raised by the Appellant is a bit vague and ambiguous and perhaps outright incorrect. It questions the holding of the learned trial Judge that the property was in a deplorable condition owing to the fact that the Appellant did not expend the N18,000,000 (Eighteen Million naira) that was deducted towards renovating the property. The alleged holding of his Lordship is found at Page 301 Lines 19 – 22. I reproduce it:
“However, both parties are ad idem that the property subject matter of the suit is in a deplorable state and that it was for this very reason the annual rent of N18 Million was deducted from the 5 years rent to enable the defendant effect necessary repairs to make it habitable.”
This is a statement of fact as it is borne out of the lease agreement between the parties particularly clause (ii) thereof already quoted in this judgment. The schedule of the renovation works to be carried out by the Appellant’s appointed contractor, Messrs Third Dimension, was attached as a schedule to the lease agreement. Throughout the proceedings at the lower Court, neither of the parties denied this fact. The learned trial Court cannot therefore be faulted for holding that both parties are ad idem on the fact that N18,000,000 was given to the Appellant for the agreed renovation works in accordance with the schedule of works forming part of the agreement. The lease agreement does not, as expected contain any preamble to the effect that the house or property was in a deplorable state. This can however be implied from the lease agreement. For why else would the parties engage in such a comprehensive repair at the inception of the agreement? This fact was confirmed by the appellant itself in paragraph 5 of its statement of defence. There, it unequivocally pleaded that it met the property in a deplorable state which required massive renovation and refurbishing for it to be in a tenantable condition. The defendant/appellant went on in paragraph 6 to aver that as a means to placate them, the Claimant/Respondent agreed in the lease to deduct the sum of N18,000,000 (Eighteen Million Naira) from the rent to be expended by the defendant/appellant as per schedule of works submitted and annexed to the lease agreement. This amounts to an admission by the appellant of the receipt of the said amount. The learned trial Judge was therefore right and that is also the settled position of law that whatever is admitted in the pleadings does not need further proof; See: SABRU MOTORS NIG LTD V PAJAB ENTERPRISES NIG LTD (2002) 7 NWLR, PT 766, 243; OLIYIDE & SONS LTD V OAU, ILE-IFE (2018) LPELR – 43711 (SC) and IFABIYI & COMPANY NIGERIA LIMITED V UNITY BANK PLC (2020) LPELR – 50366 (CA).
An admission is the strongest proof of the fact in issue. The fact in issue is that the appellant was given the N18,000,000 by the Respondent. I hold that the admission is conclusive on the issue and needs no further proof. The defendant/appellant went further in paragraph 7 of its statement of defence to aver that it carried out renovation works on the property in accordance with the agreement. It was on this basis that the learned trial Judge rightly in my view relied on SECTION 132 of the EVIDENCE ACT, 2011, to hold that the burden was on the defendant/Appellant to prove that this renovation was indeed carried out as aforesaid because they will be the ones who will fail if no evidence were given which was indeed what happened. Indeed, his Lordship appreciated the law and properly applied it in this case. There is no dispute in this case that there is a covenant to repair the tenanted premises by the defendant/appellant, the tenant. I have found earlier in this judgment that one of the remedies available to a landlord faced with a breach of the covenant to repair is to go into the premises, carry out the repairs and claim for the cost of the repairs. This appears to be what the claimant/Respondent did, when he claimed N22,365,400 as the total cost of the said repairs/renovation of the demised property. His lordship in his judicial wisdom held again, rightly in my view, that Exhibit 7 which was the renovation proposal by Bayor Engineering Company Ltd, the fulcrum of the monetary claim by the claimant/respondent was insufficient evidence to prove that the plaintiff/respondent actually spent the said amount on renovation. This was the reason for the finding that the Plaintiff/Respondent did not prove his claim before the Court. On the other hand his Lordship was faced with a situation in which there is undisputed evidence, indeed an admission by the defendant/appellant that N18,000,000 (Eighteen Million Naira) was given to it by the plaintiff/respondent to effect repairs/renovations in the demised property. There is no evidence to support the averments of the appellant that they indeed carried out the renovation. It is well established that no Court will believe what a party has pleaded and on which he has not led any credible evidence. This is expectedly so because averments are only activated by credible evidence led in support thereon: ANYAKA V ANYAKA (2015) AFWLR, PT 799, 1150; GILSOD ASSOCIATES LTD V ALGON (2011) LPELR – 41971 (CA) and NKUMA V ODILI (2006) 4 SCM, 127. Since the appellant led no evidence to give life to the said pleadings, the learned trial Judge was right to have discountenanced it. In the circumstances of this case and given all that I have found in this judgment, the learned trial judge acted appropriately in entering judgment against the appellant and in favour of the Respondent.
This finding is anchored on the acceptable duty of the Court. The Court has the duty to prevent injustice and to avoid rendering a decision which enable a party to escape from his obligation under contract by his failure, default, refusal, own wrongful act or howsoever. I hold that the trial Judge has performed his duty diligently, ingeniously and within the confines of the law. The essence of law is to ensure justice and equity between contesting parties. In the instant case, the appellant undoubtedly collected N18,000,000 from the Respondent for renovation that he never proved he carried out. It has both a legal and moral burden to return the said money. The justice of this case is for an order to the appellant to refund the said money to the Respondent. If his Lordship needed to use the doctrine of “Ubis jus Ibi Remedium’ to ensure the attainment of this justice, he cannot be faulted. It would have indeed been great injustice in the circumstance of this case for the learned trial Judge to have dismissed in toto the claim of the plaintiff/respondent on the altar of some technicalities as sought by the appellant’s counsel. This issue, like the first is resolved against the appellant. This renders this appeal unmeritorious. It is consequently dismissed.
The judgment of Hon. Justice M. A. Dada delivered on the 30th day of April, 2015 is hereby affirmed. I assess costs at N400,000 in favour of the Respondent and against the Appellant.
HUSSEIN MUKHTAR, J.C.A.: I was privileged to read, in advance, the lead judgment of my learned brother PATRICIA AJUMA MAHMOUD, J.C.A. and agree with the entire reasoning therein for conclusion that the appeal is bereft of substance and deserves an outright dismissal.
I hereby dismiss the appeal and subscribe to the consequential orders made in the judgment.
PAUL OBI ELECHI, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother PATRICIA AJUMA MAHMOUD, J.C.A. just delivered.
I agree with his reasoning and conclusion that the appeal be dismissed which I also agree. As a result, I do not have anything to add.
I also abide by the issue as to cost.
Appeal Dismissed.
Appearances:
Mr. O. A. Owolabi with him, MR. A. A. Lawal For Appellant(s)
Mr. Ajibola Ariba For Respondent(s)