TEXACO NIGERIA PLC & ANOR. v. REUBEN ILOKA
(2011)LCN/4698(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of July, 2011
CA/J/110/2010
RATIO
GROUNDS OF APPEAL: PURPOSE OF THE GROUNDS OF APPEAL
It has been held by the Supreme Court that grounds of appeal are the reasons for considering a decision of a court wrong. Thus, the purpose of the grounds is to isolate and accentuate for attack, the basis of the reasoning of the decision being challenged; it is also to give notice to the respondent of the errors complained of. See Saraki V. Kotoye (1992) 9 NWLR (Pt. 264 ) 156; Bhojsons Plc. V. Daruel-Kalio (2006) 5NWLR (Pt. 973) 330. PER UCHECHUKWU ONYEMENAM, JCA
GROUND OF APPEAL: WHEN IS A GROUND OF APPEAL SAID TO BE VAGUE
It is correct that a ground which is vague or general in terms or which discloses no reasonable ground of appeal is not good in law. See Order 3 Rule 2 (4) Court of Appeal Rules 2002. A ground is vague where it is couched in such a manner that the respondent and the court are left to speculate as to the appellant’s complaint. A ground will also be adjudged vague if the particulars are clearly irrelevant. See C. B. N, V. okogie (2002) 8 NWLR (Pt.768) 48. A ground is therefore not vague or general in terms if it has disclosed a reasonable ground of appeal and gives sufficient notice and information to the other side of the precise nature of the complaint of the appellant. PER UCHECHUKWU ONYEMENAM, JCA
AMENEDMENT OF NOTICE OF APPEAL: WHETHER THE COURT OF APPEAL CAN ALLOW AN AMENDMENT OF A NOTICE OF APPEAL AT ANY TIME
The Rules allow the amendment of notice and grounds of appeal with leave of the Court of Appeal at any time. In other words, the Court of Appeal has power to allow an amendment of a notice of appeal from the time the appeal was filed and until at such time that it may even be ready for hearing so long as the discretion is exercised judicially and judiciously. See Order 6 Rules 15 Court of Appeal Rules, 2002; Okpala V. Ibeme (1989) 20 N.S.C.C. (Pt.1) 567; First Bank of Nig. Plc v. May Medical Clinics and Diagnostic (2001) 27 W.R.N. 162; Pharmatek Industrial Projects Ltd. V. Bayo Ojo (1996) 1NWLR (Pt.424) 330 at 338. PER UCHECHUKWU ONYEMENAM, JCA
LANDLORD AND TENANT: WHETHER A TENANT CAN NEVER SEVER A THING HE HAS AFFIXED TO THE DEMISED PREMISES DURING HIS TERM, WITHOUT THE CONSENT OF HIS LANDLORD
It is correct that whenever a tenant has affixed anything to the demised premises during his term, he can never sever it, without the consent of his landlord. The property by being annexed to the land, immediately belongs to the freeholder, the tenant by making it part of the freehold is considered to have abandoned all future right to it. PER UCHECHUKWU ONYEMENAM, JCA
LANDLORD AND TENANT: WHO IS A TENANT; WHAT IS THE MOST IMPORTANT INGREDIENT OF TENANCY
In a landlord and tenant relationship the Supreme Court has described a tenant as any person who occupies premises lawfully. It includes a sub-tenant or any person occupying any premises whether on payment of rent or otherwise. The most important ingredient of tenancy is lawful occupation. It is immaterial whether the tenant pays regular rent, subsidized rent or indeed no rent so long as the initial occupation is lawful. See African Petroleum Ltd v. owodunni (1991) 8 NWLR (pt.210) 391. PER UCHECHUKWU ONYEMENAM, JCA
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
TEXACO NIG. PLC & ANOR Appellant(s)
AND
REUBEN ILOKA Respondent(s)
UCHECHUKWU ONYEMENAM, JCA (Delivering the Leading Judgment): This is an appeal against the judgment of the Benue State High Court, sitting at Makurdi in suit No. MHC/96/92 delivered by E.O. OGBOLE J. on the 18th day of August, 1998 awarding the total sum of N800, 487.03 against the appellants jointly and severally in favour of the plaintiff/respondent made up of N710,487.03 being special damages and N90,000.00 being general damages.
By the statement of claim dated 16:12:92, at paragraph 28 the respondent sought Reliefs as follows:-
“Wherefore the plaintiff claims from the defendants jointly and severally the sum of N1,000,000.00 (One million naira) only made up as follows:-
Cost of 1st gen set ….. N181000.00
Cost of 2nd gen set …. N24,000.00
Cost Of repairing the gen set …….. N25,000.00
value of Tex Garden and Restaurant …….. N425,000.00
Value of petroleum paid for by the plaintiff but diverted
to another outlet instead of Code 0880……N245,70.00
Erroneous deductions on DAPS ….. N31,020,00
Plaintiffs working capital kept by the 1st defendant …. N110,000.00
Value of personal properties lost at Code 0880
since 9/5/92 ….. N94,036.00
Charge for record sales book .. N9.00
Total …….. N1,000,000.00
See pages 13 – 22 of the record.
The first appellant a limited Liability Company and its Area Manager the 2nd appellant in response filed their statement of defence. See pages 30 – 32 of the records.
The respondent as a business man entered into an agreement with the 1st appellant on 19:4:83 and 1:3:83 for dealership in petroleum products. The agreement entitled the respondent to operate at the Texaco filling station known as code 0880, North Bank, Makurdi, Benue State. Two types of agreements were entered into and the respondent operated on commission basis. The first agreement was on cash and carry system while the second was on “DAPS”. See Exhibits 1 and 2.
Following the agreements the respondent took over the said Texaco filling station and was given a set target which he duly met. For the enhancement of the business at the station, promotion of productivity and the image of the 1st appellant, the respondent made great improvements in the station. He purchased and installed two giant generating sets at the costs of N18,000.00 and N24, 000.00 respectively. He got the approval of the landlord of the premises to construct Tex Garden and Restaurant. See Exhibits 5, 6 and 7. The respondent also opened a supermarket to promote sales.
While the respondent was operating the station, he was congratulated for his good performances and proficiency, and was awarded certificates of proficiency. Vide Exhibits 9A and 9B. When the 2nd appellant took over from the then Area Manager, Mr. A.C.B. Attah, the respondent began to notice hostile and repugnant business relationship with the appellants. Respondent also noticed wrong entry of indebtedness in his account as products paid for by the respondent were diverted to other stations contrary to the agreement between the respondent and the 1st appellant. The respondent paid cash for two trucks of engine oil containing 62, 000 litres through the Regional Office of the 1st appellant at Enugu in the sum of N 219, 780.00, this should have attracted a discount, but when the products were supplied through the 2nd appellant, the 2nd appellant debited the account of the respondent as if the products were supplied to the respondent on credit. The respondent protested and the appellants replied see Exhibits 10A 10F and Exhibit 13. The business relationship continued to deteriorate because of the 2nd appellant until eventually by Exhibit 17 the 1st appellant terminated the agreement with the respondent. After this, while the respondent was away for treatment in a hospital at Lagos, appellants invaded the Texaco station code 0880 removing the respondent’s belongings, left some of the properties under the rain and took the inventory of some.
Aggrieved by the acts of the appellants, the respondent herein took out the writ leading to the judgment, against which this appeal has been brought before this court. After hearing evidence and addresses of counsel to the parties, the learned trial Judge Ogbole J, as he then was, entered judgment for the respondent as stated in the opening paragraph.
The appellant initially filed three grounds of appeal and indicated that further grounds of appeal would be filed upon receipt of a copy of the judgment. Subsequently further four grounds of appeal were filed on the 10th day of November, 1998. It is from a combination of these grounds of appeal that the issues for determination were formulated.
Briefs were filed and exchanged by parties. While Dr. E.E. J. Okereke settled the appellants’ brief, Mr. J.S. Okutepa settled that of the respondent. Appeal was heard on 26:5:11. Dr. Okereke adopted and relied on the appellants’ amended brief dated 13:6:06 and filed 19:6:06 but deemed filed by the order of court on 27:6:06. On their own, Mr. P. H. Ogbole leading O.M. Ajonye Esq adopted and relied on the respondent’s brief dated 14:1:05 and filed 10:1:05 but deemed filed by the order of court on 10:5:07. Mr. Ogbole also adopted the respondent’s notice of preliminary objection filed on 7:12:04 which notice was raised in the respondent’s brief. While Dr. Okereke urged the court to allow the appeal, Mr. Ogbole urged the court to dismiss the appeal.
Firstly, I will determine the preliminary objection raised in the respondent’s brief. It is respondent’s contention that there are no competent grounds of appeal before the court as grounds 2, 3 and 4 of the notice and grounds of appeal filed on 21:8:98 and grounds 1, 2, 3 and 4 of the further grounds filed on 10:11:98 (herein referred to as the original grounds and further grounds respectively), together with their particulars are vague and general in terms and disclose no reasonable grounds of appeal. Counsel placed reliance on: Order 3 Rule 2 (4) Court of Appeal Rules 2002; Iwambe V. Swande (2002) FWLR (Pt. 85) 355 at 362; Atuyeye V. Ashamu (1987) INSCC 117. The respondent also submitted that the grounds of appeal filed on the two dates stated above constitute an abuse of the court’s process in that grounds 2 and 3 of the original grounds and grounds 1 and 2 of the further grounds are one and the same thing in substance and in intendment respectively. Learned counsel for the respondent urged the court to so hold and to dismiss the grounds that are identical. He referred to: African Reinsurance Corporation v. JDP Construction (Nig.) Ltd (2003) FWLR (Pt. 153) 251 at 270; Saraki V. kotoye (1992) 9 NWLR (Pt.264) 156; Arubo V. Aiyeleru (1993) 3 NWLR (pt.280)126; kode V. Yusuf (2001) FWLR (pt.40)1727
Learned counsel also submitted that the issues formulated by the appellant were formulated in the abstract as they do not relate to the grounds of appeal. To this effect he urged the court to hold that the grounds of appeal have been abandoned by the appellant and to strike out the grounds, the issues and dismiss the appeal. He placed reliance on: ojegbe v. Omastone (1999) 6 NWLR (Pt.608) 591 at 597, okpala v. Ibeme (1998) 2 NWLR (Pt.102) 208 at 221; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 at 665; Adigun v. Ayinde (1993) 8 NWLR (Pt. 232) 516. Mr. okutepa of counsel also contended that the issues as formulated are prolix.
On the whole, learned counsel urged the court to hold that there is no competent brief and the appeal not being supported by brief is deemed abandoned.
Mr. Okutepa’s submissions on the competence of the appellant’s brief, videlicet; the issues as formulated are prolix; the 7 issues formulated are abstract; by the incompetence of the appellant’s brief the appeal is deemed abandoned are of no moment, Mr. Okutepa based his submissions on non existing brief. The brief of argument under attack ceased to exist by the order of this court granting leave to the appellant on 27:6:06 to amend her Brief. All submissions based on the non existing process are hereby discountenanced.
It has been held by the Supreme Court that grounds of appeal are the reasons for considering a decision of a court wrong. Thus, the purpose of the grounds is to isolate and accentuate for attack, the basis of the reasoning of the decision being challenged; it is also to give notice to the respondent of the errors complained of. See Saraki V. Kotoye (1992) 9NWLR (Pt. 264 ) 156; Bhojsons Plc. V. Daruel-Kalio (2006) 5NWLR (Pt. 973) 330. It is correct that a ground which is vague or general in terms or which discloses no reasonable ground of appeal is not good in law. See Order 3 Rule 2 (4) Court of Appeal Rules 2002. A ground is vague where it is couched in such a manner that the respondent and the court are left to speculate as to the appellant’s complaint. A ground will also be adjudged vague if the particulars are clearly irrelevant. See C. B. N, V. okogie (2002) 8 NWLR (Pt.768) 48. A ground is therefore not vague or general in terms if it has disclosed a reasonable ground of appeal and gives sufficient notice and information to the other side of the precise nature of the complaint of the appellant. I have perused the grounds in the instant case, I appreciate the fact that the grounds are inelegantly framed but the grounds conclusively lead to a definite understanding of the complaint, they do not leave either the respondent nor the court to speculate as to what the appellant’s complaints are. The grounds are therefore good in law and cannot be struck out for being vague and general in terms. I have also examined ground s 2 and 3 of the original grounds and grounds 1 and 2 of the further grounds, I am of the opinion that the learned counsel for the respondent is correct that ground 3 of the original grounds and ground 2 of the further grounds are identical; the later is therefore an abuse of court process and is hereby struck out. Also on a careful examination of the grounds, it is my view that ground 2 of the original grounds is not the same in substance and form with ground 1 of the further grounds. The same cannot therefore be struck out for being an abuse of the court process.
In all, preliminary objection succeeds in part.
Having struck out ground 2 of the further grounds of appeal what is left of the appellant’s grounds are 6 grounds. The appellant in his brief of argument embarked on a novel procedure when at pages 5-6 of her brief “harmonized” and renumbered the original and the further grounds of appeal and crystallized them into 4 grounds of appeal from where he formulated three issues for determination. I have painstakingly perused the harmonization exercise of the appellant and come to the conclusion that what counsel for the appellant did was to reframe the 3 original grounds with the 3 remaining further grounds and summed them up into 4 main grounds of appeal.
Order 6 Rule 4 Court of Appeal Rules, 2002 allows grounds outside notice only with the leave of court. The 4 grounds reframed by the appellant in her brief do not qualify as grounds on the notice nor grounds on the further grounds for which leave of court was obtained. I hold that the 4 grounds which are outside the notice of appeal amount to an amendment of the notice. The Rules allow the amendment of notice and grounds of appeal with leave of the Court of Appeal at any time. In other words, the Court of Appeal has power to allow an amendment of a notice of appeal from the time the appeal was filed and until at such time that it may even be ready for hearing so long as the discretion is exercised judicially and judiciously. See Order 6 Rules 15 Court of Appeal Rules, 2002; Okpala V. Ibeme (1989) 20 N.S.C.C. (Pt.1) 567; First Bank of Nig. Plc v. May Medical Clinics and Diagnostic (2001) 27 W.R.N. 162i Pharmatek Industrial Projects Ltd. V. Bayo Ojo (1996) 1NWLR (Pt.424) 330 at 338. Since the harmonized 4 grounds as I have held amount to an amendment of the notice, the appellant requires leave of the court before she can urge on the court on those grounds. As the appellant failed to seek and obtain the leave, the 4 grounds as a result of the harmonization exercise are incompetent and are accordingly struck out. The appellant is left with her 6 grounds from the original grounds and further grounds. It is from these 6 grounds that the appellant can rightly distill issues for determination. The 3 issues distilled by the appellant are as follows:
“1. Was the learned Trial Judge right to award the plaintiff/respondent in this appeal the sum of N425, 000,00 as special damages for the Texaco Garden and Restaurant which the plaintiff erected having regard to the fact that the structure became landlords fixture immediately after the erection and this claim was made as special damages without satisfactory proof of the damages claimed.
2. was the Learned Trial Judge right to make an award to the plaintiff/respondent in the sum of N245, 770,00 as special damages in respect of the value of petroleum products allegedly paid for by plaintiff but diverted to another outlet without strict proof by the plaintiff who failed to give details of the invoices and the quantity of litres diverted to tally with the sum claimed,
3. Was the Trial Judge right in law to grant the relief for general damages of N90,000.00 when the evidence at the trial is at variance with the claim more particularly without stating how the award was assessed.”
On his own the respondent’s sole issue for determination is:
“Whether from the facts of this case and the evidence before the court below, the learned trial judge, Ogbole J, (as he then was) was right and correct to have awarded the various damages complained of in this appeal to the Respondent”.
From the issues distilled by the parties, I am of the view that 2 issues couched there from will aptly determine the fate of this appeal. In doing this I shall submerge issues nos. 1 and 2 of the appellant’s issues into 1 issue and rephrase issue no. 3 of the appellant’s issue. The 2 issues that therefore arise for determination are:
1. Whether from the facts of the case and the evidence before the lower court, the trial Judge was right in awarding the various special damages to the respondent.
2. Whether the trial Judge was right in law to grant the relief for general damages of N90.000.00 in the circumstances of the case.
The appellant’s counsel submitted that the permanent building erected by the respondent as a tenant for use as a restaurant and garden became a fixture. He added that a permanent fixture in law becomes part of the land and does not belong to the tenant but to the landlord. He relied on: Woodfall 26th Edition P. 760 paragraph 1724 -1725 to submit that although the respondent constructed the Tex Garden and Restaurant at his cost the moment he completed the erection, the same being a permanent fixture became part of the property of the landlord. The learned counsel also referred to: Buckland V. Buttefield (1820) 2 Broad and B 54 cited in Woodfall (supra) page 763; Palser V. Grinling (1948) AC 291. The appellant contended that the respondent was not entitled in law to sue for the value of the Tex Garden and Restaurant since the same constituted permanent fixtures and became the property of the landlord. It was appellant’s further submission that the learned trial Judge erred when he held that by virtue of Exhibits 5, 6 and 7 the respondent became the tenant of Alhaji Nyako Umoru in respect of the premises over which the Petrol Station and the Tex Garden and Restaurant were sited. He argued that it was this wrong appraisal of the relationship between the respondent and the 1st appellant on the one hand and the respondent and Alhaji Nyako on the other that made the trial Judge come to a wrong conclusion that by law and in equity the respondent is entitled to the value of the Tex Garden and Restaurant. The learned counsel urged the court to hold that the respondent could not be held to be a tenant in respect of a portion of the premises for which the 1st appellant was already in possession by virtue of a lease agreement with the landlord – Alhaji Nyako. He contented that the respondent also lacked the locus to sue for any damage caused to the landlord’s fixture. He referred to Mobile Nig. Ltd. v. Johnson (1961) All NLR 93.
Learned counsel further submitted that the respondent neither proved the items nor the value of each of the items allegedly destroyed and so was not entitled to the award of special damages. He cited: Eseigbe v. Agholor (1993) 12 SCNJ 82 at 85; Horst Sommer & 2 Ors v. Federal Housing Authority (1992) 1 SCNJ 73 at 74; Ijebuode L.G. v. Balogun (1991) 1 SCNJ 18; Warner and Warner Int. Associates (Nig.) Ltd. v. Federal Hoursing Authority (1993) 7 SCNJ 1 at 45; NEPA v. Alli (1992) 10 SCNJ 34 at 37.
On the award of special damages for the sum of N245, 770,00 as value of petroleum products paid for by the respondent but diverted to another outlet instead of code 0880, learned counsel made similar submissions as the earlier ones summarized above. His further contention on this head is that, the claimant did not specifically plead nor strictly prove his claim in his evidence. He cited the following additional authorities: Nzeribe V. Dave Engr. Co. Ltd (1994) 9 SCNJ 161; J.B. Ogbechie v. Gabriel Onochie & Ors. (1998) 2 S.C.N.J. 170 at 171 to urge the court to set aside the award of special damages in respect of the value of petroleum products allegedly paid for but diverted.
In reply learned counsel for the respondent submitted that the learned trial Judge took into consideration the circumstances of the case before him: the conduct of the appellants in forcibly and forcefully taking possession from the respondent; the fact that by Exhibits 5, 6 and 7 the respondent was regarded as the owner of the property in issue; the fact that the appellants had let in another dealer in the property after taking possession by self help in respondent’s absence.
While the learned counsel conceded that there cannot be two landlords and two tenants in respect of the same premises, he submitted that the relationship between the 1st appellant and the respondent was business relationship or that of a licensor and licensee. He cited: Mobil Oil (Nig.) Ltd. V. Johnson (1961) ALL NLR 93 at 100-101. Learned counsel further submitted that even if the respondent was the 1st appellant’s tenant, not conceding, the appellants had no right to force the respondent out without following due process. He referred to:
The Registered Trustees Mission House V. All States Trust Bank Plc (2003) FWLR (Pt. 172) 1804 at 1833; Sule V. Nigeria Cotton Board (1985) 2 NWLR (Pt. 5) 17; Pan Asian African Co. Ltd. V . Nicon Ltd (1982) 1 ALL NLR (Pt.1) 215. Learned counsel urged the court to affirm the decision of the lower court awarding the sum of N425,000.00 to the respondent on this point.
In further response counsel conceded to the fact that special damages need to be pleaded and specifically proved. He however submitted that by the combined effect of paragraphs 10(d) and 28(e) of the statement of claim, paragraph 17 of the statement of defence, the unchallenged evidence of the respondent and Exhibits 13 and 16 A-B, the learned trial Judge was correct to have awarded N245,770.00 special damages to respondent for products he paid for but which the appellant diverted without a refund to him. Learned counsel contended that the trial Judge was right to have relied on the evidence available to him to arrive at his decision. He submitted that it is settled that strict proof of special damages does not mean that the law requires extraordinary measure of evidence to establish entitlement to special damages. He referred to: Fadlallah V. Arewa iles Ltd. (1997) 7 SCNJ 202 at 210; Uman V. Owoeye (2003) FWLR (Pt.152) 38; Onwuka V. Omogui (1992) 3 SCNJ 98 at127.
Learned counsel urged the court to uphold the lower court’s award of N245,770.00 special damages to the respondent.
The learned counsel for the appellant relied heavily on the learned author Woodfall on the general rule as to annexations by a tenant especially at page 765 paragraph 1730. It is correct that whenever a tenant has affixed anything to the demised premises during his term, he can never sever it, without the consent of his landlord. The property by being annexed to the land, immediately belongs to the freeholder, the tenant by making it part of the freehold is considered to have abandoned all future right to it. Based on this the appellants argued that the respondent was not entitled in law to sue for the value of the Tex Garden and Restaurant being that the same constituted permanent fixtures and became the property of the landlord. By this heavy reliance it would appear that the appellants conceded that the respondent was Alhaji Nyako’s tenant, but no, as the appellants immediately on full swing urged this court to hold that the lower court erred when it held that by virtue of Exhibits 5, 6 and 7 the respondent was Alhaji Nyako’s tenant which wrong appraisal made it arrive at a wrong conclusion that the respondent was entitled to claim the value of the fixtures. Learned counsel for the respondent whose submissions in the lower court swayed the learned trial Judge to arrive at the conclusion that the respondent was Alhaji Nyako’s tenant equally had a change of position in his address. The respondent in his brief conceded that Alhaji Nyako was not his landlord in the light of Exhibits 5,6 and 7.
The respondent also contended that by virtue of Exhibits 1 and 2, his relationship with the 1st appellant was that of licensee and licensor. He relied on: Mobil Oil (Nig) Ltd. V. Johnson (1961) All NLR 93 at 100-101.
The learned trial Judge while appraising the relationship between the 1st appellant, Alhaji Nyako and the respondent was thrown into obvious confusion as to the status of the respondent on the premises in question. The learned trial Judge made the following statements:
“The relationship between them i.e the 1st defendant and Alhaji Nyako is that of landlord and tenant: (Lessor and Lessee). But it seems to me that the relationship created by Exhibits 1 and 2 between the plaintiff and the 1st defendant is that of licensor and licensee relationship …. By virtue of exhibits 5, 6 and 7 the plaintiff has become the tenant of Alhaji Nyako carrying on the business of running Tex garden and Restaurant ……. and in Exhibit 7 dated 13/4/91 the said Alhaji Nyako, regarding the plaintiff as his tenant demanded annual rent of N3, 000.00.” See pages 195 lines 32-34,196 lines 1-24 and 197 lines 3-5 of the record.
Exhibit 5 is a letter seeking Alhaji Nyako’s consent by the respondent to construct a restaurant at code 0880 Makurdi, Exhibit 6 is a letter granting the consent by Alhaji Nyako while Exhibit 7 is a letter to the 1st appellant for renewal of lease and increment of annual rents. In the last paragraph of Exhibit 7, Alhaji Nyako demanded N3,000.00 rent from the respondent for the restaurant. The facts not in dispute stand out as follows: the respondent is not Alhaji Nyako’s tenant as there cannot be two tenants and two landlords in a given premises; the 1st appellant is Alhaji Nyako’s tenant in respect of the premises over which the Petrol Filling Station, Tex Garden and Restaurant are sited; it was the 1st appellant who let in the respondent as a Dealer to run the Petrol Station before he sought the consent of both the 1st appellant and the landlord to construct Tex Garden and Restaurant; the respondent was paying rent to Alhaji Nyako in respect of the restaurant. The issue that must be resolved at this point is the position of the respondent in law having regard to the circumstances of the case as highlighted above.
In a landlord and tenant relationship the Supreme Court has described a tenant as any person who occupies premises lawfully. It includes a sub-tenant or any person occupying any premises whether on payment of rent or otherwise. The most important ingredient of tenancy is lawful occupation. It is immaterial whether the tenant pays regular rent, subsidized rent or indeed no rent so long as the initial occupation is lawful. See African Petroleum Ltd v. owodunni (1991) 8 NWLR (pt.210) 391. This broad meaning of a tenant as handed down by the Supreme Court to my understanding covers a wide range of tenants. This meaning in our circumstances seem to make the respondent in the instant case a tenant, but could that rightly be the position since the 1st appellant was already the landlord’s tenant by reason of a lease agreement in which case the 1st appellant is a lessee of the premises in question. By Exhibits 1 and 2, the 1st appellant who is unquestionably Alhaji Nyako’s tenant or a lessee let the respondent into a lawful possession of the premises. Exhibit 2 is quite identical with the agreement in Mobil Oil (Nig) Ltd. (supra) except that in the instant case the dealer/respondent with the consent of the landlord/Alhaji Nyako and the operator/1st appellant erected permanent structures where he carried out extra business and paid rent to the landlord annually. In Mobil Oil ( Nig.) Ltd. the high court held that the agreement created the relationship of landlord and tenant between the parties and awarded substantial damages to the respondent for unlawful entry. On appeal by the company, it was held:
“That the decisive consideration in this type of transaction is the intention of the parties, The respondent received a mere right to occupy and use the filling station premises and equipment for the purposes set forth in the agreement, The clear intention of the parties was to create no more than the relationship of Licensor and Licensee.”
The supreme court in Mobil oil Nig. (supra) at page 109 noted that the principles for determining whether an agreement creates a lease or licence are set out in 23 Halsbury’s laws of England 3rd Edition page 427, para . 1022, as follows:-
“In determining whether an agreement creates between the parties the relationship of landlord and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties. The parties to an agreement cannot, however, turn a lease into a licence merely by stating that the document is to be deemed a licence or describing it as such; the relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement, nor will the employment of words appropriate to a lease prevent the agreement from conferring a licence only if from the whole document it appears that it was intended merely to confer a licence”
Again in the case of Booker V. Palmer (1942) 2 ALL, E.R, 674, referred to by the Supreme Court still in Mobil Oil V. Johnson (Supra) at page 110, it was stressed that the decisive consideration in these types of cases is the intention of the parties. Lord Greene, M.R., delivering the judgment of the Court in that case, said: –
“To suggest there is an intention there to create a relationship of landlord and tenant appears to me to be quite impossible, There is one golden rule which is of every general application, namely, that the law does not impute intention to enter into legal relationships whether the circumstances and the conduct of the parties negative any intention of the kind. It seems to me that this is a clear example of the application of that rule”,
In the more recent case of Isaac V. Hotel de Paris Ltd. (1960) 1 ALL E.R. 348, it was held that the intention of the parties and the conduct of the parties must be the deciding factor whether a tenancy has been created or the relationship was merely that of a licensor and licensee even though there was exclusive possession by the appellant and the acceptance of the amount of rent by the respondent company. This was an appeal before the Privy Council from the Federal Supreme Court of the West Indies. Their Lordships of the Privy Council referred to, with approval, the statement of the law by Archer, J. in the Federal Supreme Court. This is what he said: –
“It is clear from the authorities that the intention of the parties is the paramount consideration and while the fact of exclusive possession together with the payment of rent is of the first importance, the circumstances in which exclusive possession has been given and the character in which money paid as rent has been received are also matters to be considered. The circumstances in which (the appellant) was allowed to occupy the Parisian Hotel show that Joseph never intended to accept him as a tenant and that he was fully aware of it.
The payments he made were only part of the disbursements for which he made himself responsible and the so-called rent was in the nature of a reimbursement of the rent payable by the (respondent company)”.
From the circumstances of this case and the agreement aforesaid, can one conclude that the intention of the 1st appellant and the respondent on the one hand; and the landlord and the respondent on the other was to create a tenancy? From the series of authorities examined above, in the present appeal, it is clear to me from a careful look at the agreement itself-Exhibit 2 as well as from the circumstances of the whole matter and the conduct of the parties that it was never the parties intention to create a tenancy. Although the respondent paid rent to Alhaji Nyako, both of them understood same not to create a landlord tenant relationship. In my view, the way and manner Alhaji Nyako demanded the rent from the respondent through a letter to the 1st appellant was to ensure the tenancy relationship he has with the 1st appellant was not undermined by the rent he was to receive from the respondent. See Exh.7 Also to my mind, the rent was only received to keep the respondent abreast of the fact that Alhaji Nyako is the freeholder of the premises. Again, the manner in which the respondent was let into legal possession of the premises speaks everything contrary to tenancy. I am of the opinion therefore and I so hold that the relationship between the 1st appellant and respondent was no more than that of a licensor and licensee. I further hold that the relationship that existed between the respondent and Alhaji Nyako derived from the fact that respondent was a licensee of Alhaji Nyako’s tenant. Having held that the respondent cannot be described as Alhaji Nyako’s tenant although he was paying rent for the restaurant he erected on the land because the intention of the parties negates tenancy, it follows and I accordingly hold that the lower court erred when it held that the relationship between the respondent and Alhaji Nyako was that of a landlord and tenant. The case of African Petroleum Ltd. (supra) is therefore not apposite. The position of the Supreme Court in African Petroleum Ltd. (supra) relates to landlord and tenant and not a licensor and licensee as in the present case, The appellants contended that the misconception by the trial Judge that the respondent was Alhaji Nyako’s tenant made him to wrongly award special damages for the value of Tex Garden and Restaurant. On their part, the respondent has conceded that he was not Alhaji Nyako’s tenant, he submitted that the award of special damages for the value of the Tex Garden and Restaurant was borne out of the evidence before the court and so was correct in law. For a claim in special damages to succeed it must be proved strictly and the court is not entitled to make its own estimate on such an issue. The rule that special damages, unlike general damages, must be strictly proved requires, in effect, that anyone making a claim in special damages must prove strictly that he did suffer such special damages claimed. This, however, does not mean that the law requires an extra-ordinary measure of evidence or that the law lays down or requires a special category of evidence to establish entitlement to special damages, It does not mean either that an award in special damages cannot be made unless such damages are established beyond reasonable doubt as is the position in criminal cases. All that the rule requires is 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, otherwise the general law of evidence or weight of evidence which ordinarily applies in civil cases operates. See Hyacinth Nwachukwu Nzeribe v. Dave Engineering Co. Ltd (1994) 9 SCNJ 161 at 176 – 177; Oshinjinrin & Ors v. Alhaji Elias & Ors (1970) 1 All NLR 153 at 156; Dumez (Nig.) Ltd. V. Patrick Ogboli (1972) 1 All N.L.R. (Pt. 1) 241.
Having earlier held that there is no tenancy between the respondent and either Alhaji Nyako or the 1st appellant it is my humble opinion that the general rule in respect of fixtures affixed by a tenant on premises during his term does not apply here. In the court below, the respondent pleaded the construction and the value of Tex Garden and Restaurant in paragraphs 7, 8 (d) and 9 of the respondent’s statement of claim. He equally led evidence on this fact. See pages 14, 15 and 99 of the record. The appellants did not deny the fact that the Tex Garden belongs to the respondent nor did they dispute its value, Appellants merely said they are not in a position to confirm the cost but will put the plaintiff to the strictest proof and will rely on the legal status of permanent fixtures attached to landlords property. From the record therefore there is no dispute over the fact that it was the respondent who constructed the Tex Garden and Restaurant, Exhibits 5, 6 and 7 also confirms this fact. I had earlier in this judgment opined that the general rule of permanent fixtures on a landlord’s property is not applicable for the simple reason that the respondent was neither Alhaji Nyako’s or 1st appellant’s tenant.
The respondent had a business relationship with the 1st appellant who let him into the premises she leased from Alhaji Nyako. From the evidence before the court the premises and indeed Tex Garden and Restaurant did not revert to the landlord after the appellant’s forcefully recovered possession from the respondent. It is also on record that the 1st appellant who held reversionary right had let into possession another dealer in her code 0880 outlet and said dealer is doing business in Tex Garden and Restaurant. In essence I am saying that, so long as the appellant’s through the new dealer is still doing business in Tex Garden and Restaurant, in the circumstances of the relationship between the 1st appellant and the respondent it is only equitable and just that the respondent be awarded the value of the Tex Garden and Restaurant. Although the learned trial Judge arrived at his conclusion based on a wrong principle of law, however his conclusion is correct and does not occasion a miscarriage of justice. Based on my reasoning above and also for the fact that the respondent; by Exhibits 29(a) and (b) (Valuation report of Tex Garden and Restaurant dated 25:9:87 and 22:4:92 respectively), by his evidence at pages 99 lines 22 -31 and 100 lines 1-4 proved the value of the Tex Garden and Restaurant which the appellants dispossessed him of; I will not interrupt nor disturb the finding of the lower court that the respondent is entitled to the value of the Tex Garden and Restaurant. I affirm the decision of the lower court awarding special damages in the sum of N425, 000.00 value of Tex Garden and Restaurant to the respondent.
The appellants also contended that the award of N245, 770.00 special damages was wrong in law as the respondent did not specifically prove same. The trial court before awarding the special damages took into consideration the pleading of the respondent in paragraph 10(d) of his statement of claim, the evidence of the respondent in support and Exhibit 13. For ease of understanding, I shall reproduce paragraph 10(d) of the statement of claim and the evidence of the respondent on this issue at page 103 lines 20-32 in the course of which he tendered exhibit 13.
Paragraph 10 (d) states:
“The plaintiff also contends and will specially rely on the following ugly developments which surfaced during the subsistence of his relationship with the 1st defendant:
(d) Illegal diversion of petroleum products paid for and meant for code 0880 to other dealers to the detriment of the plaintiff who paid for them.
The value of such illegally diverted products were never refunded to the plaintiff and this is totaled altogether N245, 770,00 being cost of 357, 100 litres of fuel diverted at 7k per litre. The plaintiff will rely on all the 1st defendant’s customer invoices relevant to this issue for code 0880; about 36 invoices are involved representing 935280 litres paid for”.
Evidence of respondent at page 103 lines 20 – 32 is:
“Over 357, 100 liters of the white products (petrol) amounting to N245, 770 was diverted from the quantity I paid for which was about N 935,780 or (thereabout). I have documents to show that I placed order for such products, (These are the documents),
Mr. Ekumankama: I tender the whole documents in evidence, Dr, Okereke: No objection, Court: a bulk of documents containing 55 invoices for various sums of money with different dates is accepted and marked Exhibit 13. The amount for the products i.e, N245,770 diverted was not refunded to me”
The learned trial Judge before the award made the following observations and findings at pages 198 lines 20-33, 200 lines 15 -24, lines 29 to 201 lines 1- 12; of the record as reproduce hereunder
“I find as a fact that exhibit 13 contains 55 invoices showing various sums of money paid by the plaintiff for quantities of products quoted as loaded and meant for code 0880, addressed to R. Iloka (plaintiff) North Bank road, Makurdi. ….These facts were pleaded in paragraph 10 (d) of the statement of claim. The total sum involved is N245, 770 for 351, 100 litres at 7k per litre paid for and acknowledged as per Exhibit 13, The plaintiff gave evidence in support of these facts. The defendants denied any diversion and regarded diversion as illegal if it was not authorized by NNPC. …The fact that they failed to adduce evidence to negatise (sic) the allegation of diversion means that evidence of the plaintiff in respect of diversion of his products paid for remains unchallenged and should be accepted as proved. See Artra Inductries v. NACB (1998) 3 SCNJ 97 at P.129 …” Odulaja v. Haddad (1973) 11 SC 357 at 359 – 360… I am unable to agree with the submission that the claim is speculative. The burden of rebuttal has now been shifted to the Defendants. See the case of A.K. Fadlallah V. Arewa iles Ltd (1997) 7 SCNJ 202 at P.210. In the instant case the defendants have failed to rebut the allegation. I am satisfied that the plaintiff has proved the claim of diversion considering Exhibits 13,…… and evidence in support of the averments in paragraph 10 (d) of statement of claim ….. and the fact that the defence has failed woefully to rebut the allegation. The plaintiff is therefore entitled to the claim of N245,770 being the total cost of products paid for by the plaintiff but diverted to another station by the defendants and which cost they failed to refund to the plaintiff”.
I cannot improve upon the reasoning of the learned trial Judge for awarding the special damages, all I need do and which is what I here and now do is to affirm the conclusion of the learned trial Judge that the respondent proved the special damages of N245,770.00 value of petroleum products paid for by the respondent but diverted to another outlet. On the whole, I resolve issue no. 1 in favour of the respondent.
Dr. Okereke of counsel on issue no.2 submitted that award of general damages is based on evidence adduced at the trial. He cited: Francis Osawe Eseigbe V. Friday Agholor & Anor (1993) 12 SCNJ 82. He added that it is improper to make an award without stating how it was assessed, He referred to: Victor Olurobimi V. Mrs. Felicia M. Ige (1993) 10 SCNJ 1. Learned counsel submitted that the trial Judge acted upon wrong principle of law in awarding general damages for injuries when the claim was not for tort neither could he award general damages for vandalization of the Tex Garden and Restaurant after making an award under special damages for the same. He relied on: Nzeribe V. Dave Eng. Co. Ltd. (1994) 9 SCNJ 16. He finally urged the court to allow the appeal.
In reply Mr. Okutepa of counsel submitted that Dr. Okereke’s submission on general damages is untenable and misconceived. He argued that the trial court reviewed the evidence on the conduct of the appellants in taking possession through self help and the terrible devastating effect the act had on the respondent before exercising his discretion in the award of general damages.
General damages in law is presumed to have accrued from the wrong complained of. By implication it flows from the immediate, direct and proximate result complained of. The court in exercising its discretion in awarding general damages, has the responsibility to calculate what sum of money will be reasonable in the circumstances of the case. See Ijebu-Ode Local Govt. V. Balogun & Co. (1991) 1NWLR (Pt. 166) 136. The award of general damages being an exercise of judicial discretion of the lower court; the appellant having not shown that the discretion was exercised arbitrarily or based on wrong principles of law; cannot successfully urge this court to interfere. Accordingly, I decline to interfere. There is no principle of law that inhibits the award of both special and general damages on a related issue if the circumstances warrant it. In the instant case the award of special damages was on the value of the Tex Garden and Restaurant while the general damages is hinged on the effect of the forceful dispossession and destruction of properties in the process. The damages and the basis for their award are therefore not the same. Damages are in the main the assessment by the trial Judge where the plaintiff succeeds in proving that he is entitled to them. The learned trial Judge must base his assessment on the evidence led in establishing the claim. See Eseigbe V. Agholor (1993) 12 S.C.N.J, 82. The evidence of the respondent on the way he was ejected from the premises which was evidenced by Exhibit 22, the effect of loss of business on the outlet code 0880, the Tex Garden and Restaurant, the fact that certificate of excellent performance had earlier been awarded to the respondent were duly considered by the learned trial Judge before he came to the conclusion that:
“Having considered the circumstances of this case I consider it equitable to award a sum of N90,000 as general damages in favour of the plaintiff. Accordingly, N90,000 damages is hereby awarded against the defendant in favour of the plaintiff.”
It is my view and I so hold that the trial court in the award of the general damages exercised his discretion judicially and judiciously, I therefore affirm the award of N90, 000.00 general damages by the learned trial Judge in favour of the respondent. Issue no.2 is resolved against the appellants.
In the totality, I hold that the appeal is lacking in merits.
Appeal is accordingly dismissed. The decision of the High Court of Benue state Makurdi in suit No. MHC/96192 by E. O. Ogbole J. delivered on 18:8:98 is hereby upheld. I award a cost of N50,000.00 in favour of the respondent.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the benefit of reading in draft the judgment of my learned brother Onyemenam, JCA, just delivered. His lordship has meticulously considered and resolved the issues in contention in this appeal. I agree with his lordship’s reasoning and conclusion that the appeal lacks merit and should be dismissed. I accordingly dismiss it. I affirm the judgment of the Benue State High Court in Suit No; MHC/96/92 delivered on 18/08/1998 per E.O. Ogbole , J. I assess costs at N50,000.00 in favour of the respondent.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother Onyemenam , JCA. I entirely agree with him that this appeal totally locks merit. I too would accordingly dismiss some. I abide by the order for costs.
Appearances
Dr. E.E.J. OkerekeFor Appellant
AND
MR. P.H. Ogbole
O.M. Ajonye EsqFor Respondent
