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TIVLUMUN v. I. COMPLIANCE TECH. (NIG) LTD (2020)

TIVLUMUN v. I. COMPLIANCE TECH. (NIG) LTD

(2020)LCN/15601(CA)

In The Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/MK/244/2017

Before Our Lordships:

Onyekachi Aja Otisi Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

JEROME IGBE TIVLUMUN APPELANT(S)

And

COMPLIANCE TECH. (NIG) LTD RESPONDENT(S)

 

RATIO:

Proof of special damages

Special damages must be strictly pleaded and proved. Strict proof of special damages does not mean that the law has set a minimum measure of evidence or that the law has laid down a special category of evidence required to establish special damages. What is required is that the claimant should establish his claim by credible evidence that he is entitled to special damages. See Oshinjinrin V Elias (1970) 1 All NLR 153 and Adim V NBC Ltd (2011) 9 NWLR (Pt. 1200) 543. JOSEPH EYO EKANEM, J.C.A. 

Principle of law where evidence is not led in support of an averment in a pleading

The law is that where evidence is not led in support of an averment in a pleading, the same is deemed abandoned. See Emmanuel V Umana (2016) All FWLR (Pt. 856) 214 and Ahmed V Registered Trustees of Archdiocese of Kaduna of the Roman Catholic Church (2019) 5 NWLR (Pt. 1665) 300. JOSEPH EYO EKANEM, J.C.A. 

When the appellate court can interfere with the damages awarded by the trial court

……the attitude of appellate Courts is not to interfere with damages awarded by trial Courts unless it is shown that damages is manifestly too high or extremely too low or that the award was made on an entirely wrong principle of law so as to make it an entirely erroneous estimate of damages. See Neka BB B Manufacturing Company Ltd V ACB Ltd (2004) 2 NWLR (Pt. 858) 521 and Benjamin V Kalio (2018) 5 NWLR (Pt. 1641) 38. JOSEPH EYO EKANEM, J.C.A. 

 

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Benue State holden at Makurdi (the trial Court) delivered on 2/11/2016 in suit No. MHC/263/2014. In the judgment, the trial Court presided over by Kpojime, J, entered judgment in favour of the respondent (as plaintiff) for:
(1) Refund to the respondent of N800,000:00 being one year’s unexpired rent.
(2) N2,567,600:00 as special damages
(3) N100,000:00 general damages for breach of contract.

The trial Court dismissed the counter – claim of the appellant.

Aggrieved by the decision, the appellant appealed to this Court by means of a notice of appeal filed on 14/2/2017.

The facts of the case giving rise to this appeal are as summarised below:
​The appellant entered into a tenancy agreement with the respondent to rent to it the four bedroom flat with a garage located at No. 54 Old Otukpo Road, Makurdi, Benue State (the property) for the sum of N800,000:00 per year. The respondent as agreed paid to the appellant rent for two years in the first instance totalling N1,600.000. Subsequent rent was agreed at N900,000:00 per year. The respondent was to effect repairs in the property and the appellant, as agreed, assisted him with N500,000:00. The agreement was reduced into writing and signed on 12/4/2013.

In January, 2014, the respondent mobilised its workers to the property. It commenced renovation. By means of a letter dated 12/4/2014 written by the appellant’s solicitor, the appellant revoked the tenancy agreement on the ground that the respondent was unable to honour the agreement. The respondent was further notified that the appellant shall start renovation of the property after twenty four hours from the date of the letter. The appellant regained possession of the property after driving out respondent’s workers. The respondent therefore sued the appellant claiming declaratory, injunctive and monetary reliefs for unlawful interference with its rights. The appellant counter – claimed for monetary and declaratory reliefs. The trial Court, after hearing evidence and taking written addresses, entered judgment in favour of the respondent as earlier stated.

​At the hearing of the appeal on 19/11/2020, I. Womboh, Esq. (leading S.O. Haamaikyur, Esq.) for appellant adopted and relied on the appellant’s brief of argument filed on 5/9/2017 in urging the Court to allow the appeal, set aside the judgment of the trial Court and enter judgment in appellant’s favour.

T.Y. Yaji, Esq. for the respondent adopted the respondent’s brief of argument filed on 15/3/2018 in urging the Court to dismiss the appeal and affirm the judgment of the trial Court.

In appellant’s brief of argument, the following issues have been formulated for the determination of the appeal:
“1. Whether the Trial Judge was right by awarding the reliefs sought by the Respondent without evaluation and/or proper evaluation of the evidence adduced by the Appellant.
2. Whether the learned trial Judge was right to have dismissed the counter- claim of the Appellant”.

In the respondent’s brief of argument, the following issues have been presented for the determination of the appeal:
“1. Whether or not the Lower Court properly evaluated the evidence before awarding the reliefs sought by the respondents.
2. Whether the Lower Trial Court rightly dismissed the Appellant’s counter – claim”.

I shall pause at this point to observe that in the respondent’s brief of argument, pages 4 – 7 paragraphs 3.01 – B (ii), a notice of preliminary objection and argument thereon are set out. At the hearing of the appeal, respondent’s counsel was completely silent regarding the preliminary objection. The conclusion is that he abandoned the preliminary objection without expressly saying so. I accordingly strike out the same along with the argument in respect of it. See Oforkire V Maduike (2003) 5 NWLR (Pt. 812) 166, Magit V University of Agriculture, Makurdi (2006) 133 LRCN 46 and Suberu V Polaris Bank Ltd (2020) 9 NWLR (Pt. 1728) 79.

Returning to the appeal, it is noticeable that the two sets of issues distilled by both sides are in substance the same. I will therefore be guided by the issues formulated by the appellant’s counsel in the determination of the appeal.

Issue 1
Appellant’s counsel submitted that the trial Court erred in holding that the appellant failed to show which terms of the tenancy were breached by the respondent. This he said is because the trial Court did not avert its mind to clause 7 of the tenancy agreement, as the actions of the respondent annoyed, inconvenienced and disturbed he appellant, thus breaching clause 7. He stated that the respondent did not re-roof the property but abandoned it for several months. It was his contention that the trial Court should have used the reasonable man’s test in the absence of a provision in the tenancy agreement as to time for completion of the renovation. He added that the appellant could not stand by and watch his premises collapse. He posited that there was evidence that the property was to be used for commercial purposes contrary to the holding of the trial Court that it was for residential purpose.

In respect of award of what counsel described as “costs” he submitted that contrary to the holding of the trial Court, there was nothing in the face of the tenancy agreement to show that the architectural plan for the renovation was made available to the appellant. He stressed that there was no quantity surveyor’s report and no picture to show how respondent used the colossal materials listed to raise the height of the building by two courses. He lamented that the trial Court did not give weight to the evidence of DW3 who he said is a professional and was on site as a project supervisor. He contended that the respondent was not entitled to special damages; rather that the appellant was entitled to a refund of N500, 000.00 which he contributed to the renovation.

For the respondent, it was submitted that the breach of clause 7 of the tenancy agreement was not pleaded or canvassed as the reason for the revocation. Counsel argued that the trial Court properly evaluated evidence and he urged the Court not to disturb the conclusion flowing from it. He further argued that if time was of the essence in respect of the renovation, it would have been clearly stated in the tenancy agreement. In any event, he posited, the respondent was entitled to proper notice of revocation, to wit; 6 months’ notice. Counsel submitted that the architectural plan had been submitted to the appellant as is expressed in clause 4 of the tenancy agreement.

​In respect of award of damages, counsel stated that the sum of the N500,000.00 given by the appellant was an assistance to the respondent and therefore he could not be entitled to claim for it. He noted that the respondent itemized the heads of damages and tendered receipts and/or evidence of payments for them. He contended that the PW1 was not cross-examined as to the veracity of the expenses nor were the documents impugned. He noted that the appellants did not demonstrate the contradiction in the particulars of special damages.

Evaluation of evidence and ascription of probative value to same are essentially within the province of a trial Court. Where the trial Court has not only assessed and given value to the evidence at its disposal but also leaves no one in doubt as to how and why in arriving at its conclusion, it preferred the evidence of the respondent to that of the appellant, it is not the function of the appellate Court to set in and re-evaluate the evidence as evaluation has already been carried out. Where however the trial Court did not properly evaluate evidence, the appellate Court is entitled to interfere. See Mogaji V Odofin (1978) 4 SC 1 and Woluchem V Gudi(1981) 5 SC 291.

It was contended by appellant’s counsel that the trial Court did not avert its mind to the fact that the respondent breached clause 7 of the tenancy agreement and that the trial Court therefore erred in holding that the appellant did not show a breach of any clause of the agreement. I agree with respondent’s counsel that the appellant did not plead the alleged breach. Indeed, the notice of revocation does not allege a breach of clause 7 of the tenancy agreement and so the point is not tenable.

At page 274 of the record of appeal, the trial Court held that no time is stipulated in the tenancy agreement for the completion of the renovation work. I agree with the trial Court that there is no time stipulated in the said agreement for the completion of the renovation work. The law is that if a contract is silent as to time of performance, the presumption is that performance is to be given within a reasonable time. See Edem V Canon Balls Ltd (2005) 12 NWLR (Pt. 938) 27, 56. The respondent was therefore bound to complete the renovation within reasonable time of its commencement. What is reasonable time depends on the facts and circumstances of each case.

​In this instance, the renovation included changing the roofs completely, increasing the height of the building by adding two coaches or courses of blocks and structural alterations/modifications in line with the architectural plan attached to the tenancy agreement. See clauses 4 and 4 of the agreement at pages 19 and 18 of the record of appeal. Appellant’s counsel was therefore wrong to contend that there was nothing on the face of the said agreement to show that the architectural plan for the renovation was made available to the appellant. The term of the tenancy commenced on 12/4/2013. The respondent started the renovation work sometime in January, 2014. The appellant revoked the tenancy vide a letter dated 12/4/2014, that is three months after the renovation work started. Be it noted that the respondent pleaded and led evidence to the effect that the appellant stopped the workers and interrupted the renovation work on two occasions, to wit; January, 2014 and 3/4/2014. In the first instance, the work resumed in February 2014 when he allowed the workers to resume work. Respondent was not cross – examined on this evidence and so I hold it as established. The law is that a party who fails to cross – examine his adversary on a particular matter is deemed to have accepted the truth of the matter as led in evidence. See Nwankwo V Adewunmi (1962) WRNLR 298, Gaji V Paye (2003) 8 NWLR (Pt. 825) 583 and Egba V State (2019) 15 NWLR (Pt. 1695) 201. It should be borne in mind that by the pleading and evidence of the appellant, the roof of the property was removed by the respondent on 1/4/2014 while he (appellant) sent the workers away on 3/4/2014.

In view of the above narrative, it is my view that the respondent was within reasonable time in the renovation of the property by the time the appellant terminated the tenancy.

​In Exhibit 4, the revocation notice, it is stated that the respondent “came to remove the roof at the property and have allowed rain to destroy the landlord’s properties in the one room that was for him as agreed”. There is nothing in the tenancy agreement regarding such agreement. Again, if the appellant left his property in the building after the roof was removed and he was present when the de – roofing was done, he must blame himself for leaving his property there. Did he expect the respondent to remove the roof and re – roof the property in one day? Surely not. I therefore agree with the learned trial Judge that the appellant cannot turn round to say that the respondent annoyed or inconvenienced him. It was at best self – induced annoyance or inconvenience.

There is evidence on record to support the learned trial Judge’s conclusion that the respondent did not breach clause 7 of the tenancy agreement. I see no reason therefore to interfere with it.

I must quickly say that there is enough evidence to show that the property was rented for commercial purpose. However, being a yearly tenant and not having breached the tenancy agreement, the respondent was entitled to continue to peacefully hold and enjoy the premises in line with clause 1 page 2 of the tenancy agreement. The appellant was therefore not entitled to terminate the tenancy by whatever length of notice.

In regard to damages that the trial Court awarded, the attitude of appellate Courts is not to interfere with damages awarded by trial Courts unless it is shown that damages is manifestly too high or extremely too low or that the award was made on an entirely wrong principle of law so as to make it an entirely erroneous estimate of damages. See Neka BB B Manufacturing Company Ltd V ACB Ltd (2004) 2 NWLR (Pt. 858) 521 and Benjamin V Kalio (2018) 5 NWLR (Pt. 1641) 38.

Special damages must be strictly pleaded and proved. Strict proof of special damages does not mean that the law has set a minimum measure of evidence or that the law has laid down a special category of evidence required to establish special damages. What is required is that the claimant should establish his claim by credible evidence that he is entitled to special damages. See Oshinjinrin V Elias (1970) 1 All NLR 153 and Adim V NBC Ltd (2011) 9 NWLR (Pt. 1200) 543.

The learned trial Judge based his assessment of special damages on the evidence of the PW1 and the receipts tendered by him. The receipts were not impugned by the appellant. I do not see any factor to warrant an interference in the award except that the total sum awarded, to wit; N2,567,600.00 should be less the sum of N500,000:00 being the contribution of the appellant to the renovation work. The proper sum of special damages therefore stands at N2,067,000:00.

​I therefore enter an affirmative answer to issue 1 and resolve it against the appellant except in respect of the sum of money stated immediately above.

Issue 2
Appellant’s counsel contended that the purpose for which the appellant contributed the sum of N500,000:00 was defeated and so the appellant is entitled to the refund of the money. He set out the sums of money claimed by the appellant in the counter – claim. He stated that the appellant gave details of the heads of damages claimed including detailed particulars of the items destroyed as well as cost of materials purchased for the renovation of the property. He concluded by saying that even if the appellant failed to depose to a sworn statement in support of his counter – claim, the trial Judge ought to have struck out the counter – claim instead of dismissing it.

Respondent’s counsel conceded that Appellant pleaded details of his monetary claims, but he contended that no evidence was given in support of the pleading. He posited that Exhibits 7 – 8B relied upon by the appellant were thus dumped on the trial Court, and finally that the trial Court was right to dismiss the counter-claim.

Having factored the sum of N500,000.00 into the award of special damages, I do not see any reason to reverse the decision of the trial Court that the appellant is not entitled to the same. As regards the remainder of the claims, to wit, special and general damages, it is noteworthy that no evidence was led in support of the pleading. See the written deposition of the appellant at pages 216 – 232 of the record of appeal. The law is that where evidence is not led in support of an averment in a pleading, the same is deemed abandoned. See Emmanuel V Umana (2016) All FWLR (Pt. 856) 214 and Ahmed V Registered Trustees of Archdiocese of Kaduna of the Roman Catholic Church (2019) 5 NWLR (Pt. 1665) 300.

Furthermore the trial Court held at page 278 of the record of appeal that:
“Exhibit 7 tendered by the defendant is a bunch of receipts showing purchase of various materials. I have carefully gone through the evidence in Chief of the defendant. He did not testify that he bought any building materials. DW3 – Jerome Tivlumun Igbe testified that the defendant purchased the needed building materials needed to put the building back in habitable shape. He did not give the cost of the materials so purchased. In essence exhibit 7 was simply dumped on the Court. I find no evidence in support of the claims of N1,184,100.00 and N770, 000.00 as special damages. I do not see him entitled to any special damages. Since it is the defendant that has breached the contract the parties, he is not entitled to any general damages.”

I am unable to fault the above reasoning by the Court and the appellant has also not shown any error in the reasoning. What is curious about the counter-claim of the appellant is that he claimed the sum of N2,242,500.00 for items said to have been destroyed in the art shop of his brother (Igbe Terzungwe). He thus made himself a busy body and knight errant quixotically pursuing a relief which can only be claimed by his brother. He had no locus standi to seek the relief. See Attorney-General of Cross River State V Federal Republic of Nigeria (2019) 10 NWLR (Pt. 1681) 401, 440.

I therefore enter an affirmative answer to issue 2 and resolve it against the appellant.

​Having resolved the two issues for determination against the appellant, I come to the conclusion that the appeal is without merit except in respect of subtraction of the sum of N500,000.00 from the special damages awarded by the trial Court. I accordingly dismiss the appeal and affirm the decision of the trial except that the special damages that the respondent is entitled to is reduced from N2,567,000.00 to N2,067,000.00.
The parties shall bear their costs.

ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my Learned Brother, Joseph E. Ekanem, JCA, in which this appeal has been allowed in part. The resolution of the issues arising for determination have been fully considered and resolved, and, I adopt same as mine.
I also allow this appeal in part and abide by the orders made in the lead Judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE. J.C.A.: I have read in draft the judgment of my learned brother, Joseph .E. Ekanem, JCA and I am in agreement with my Lord’s reasoning and conclusion. I concur therewith.

Appearances:

I. Womboh, Esq., with him, S. O. Haamaikyur, Esq. For Appellant(s)

T. Y. Yaji, Esq. For Respondent(s)