Alhaji Oseni Oyewo V. Dr. B. D. Komolafe (2010)

LawGlobal-Hub Lead Judgment Report

ABDU ABOKI, J.C.A.

This Appeal is against the judgment of the High Court of the Federal Capital Temtory delivered on the 18th day of March, 2005 by Hon. Justice S. D. Bage.

The brief fact of the case is that the Appellant, the landlord of a premise situated at Area 8 Garki, Abuja let out the said premises to the Respondent as a yearly Tenant. The premises being at a final stage of completion it was agreed between the parties that rent would be utilized by the Respondent to compete the building. The parties entered into a Tenancy agreement concerning the premises whilst the Respondent commenced the final completion of the building. The Appellant however alleges that the Respondent breached the terms of the agreement and later gave the Respondent six months notice to vacate the premises. After the expiration of the six months notice, a notice of owner’s intention to recover possession was given to the Respondent. Thereafter, the Respondent/Cross-Appellant commenced this suit; the Appellant filed his defence and included a counter-claim. The main claim of the Respondent/Cross-Appellant was struck out and the counter-claim went into trial. Judgment was delivered by the trial Court and certain reliefs were granted.

The parties were both dissatisfied with the Judgment. The Appellant filed this Appeal at the lower Court on 12th May, 2005 whilst the Respondent/Cross Appellant applied for and obtained leave of this Court to file his Cross-Appeal out of time. The Appellant/Cross-Respondent also filed an amended Notice of Appeal with the leave of this Court.

The Appellant’s Brief of Argument dated 10th April, 2007 was deemed filed on 4th December, 2007. The Respondent’s/Cross-Appellant’s Brief of Argument dated 24th march, 2009 was filed same day. Appellant also filed on 15th April, 2009 a reply to Respondent’s/Cross-Appellant’s Brief dated 8th April, 2009; whilst the Respondent/Cross-Appellant filled on 6th May, 2009 a reply to Cross-Respondent’s Brief dated 4th May, 2009. Parties have exchanged their various Briefs.

From the Appellant’s original Six Grounds of Appeal and the additional Ground of Appeal, five issues were distilled for the determination of this Appeal. They are as follows:

“1. Whether the learned trial Judge was right in awarding N150, 000.00 mesne profit per annum, when the Respondent had not traversed the claim of N750,000.00 mesne profit per annum in his own pleadings.

2. Whether the learned trial Judge was right in fixing the mesne profit at N150, 000.00per annum on his own rather than relying on the evidence before Him which put the rental value of the premises at between N600,000 to N800,000per annum.
3. Whether the learned trial Judge was right in dismissing Appellant’s claim for cost of restoring the building to its original design in view of the alteration by the Respondent and cost of repair of the premises in view of the premises in view of the unconverted evidence of the negligence of the Respondent in failing to properly hand over the premises to the Appellant which led to its vandalisation.
4. Whether the learned trial Judge was in error in failing to award pre-judgment interest on the amount claimed in view of the circumstances of this case.
5. Whether the learned trial Judge exercised his discretion judiciously and judicially when he awarded cost of N10,000 out of N100,000 asked for by the Appellant in view of the circumstances of this case.”

On behalf of the Respondent the following respondent, the following issues were distilled for the determination of this Appeal as follows:-

“1. Whether, from the state of the parties pleading and the evidence adduced before him, the trial Judge was right in his exercise of discretion to fix and award mesne profit of N150.000.00 to the Appellant as against the claim of N750,000.00.

2. Whether, from the parties’ pleadings and evidence, the trial judge erred in holding that the Appellant failed to prove his claim for alteration, vandalisation and repairs to prove his claim for reimbursement of expenses.
3. Whether or not the trial judge was right in holding that the Appellant had failed to discharge the burden of proof regarding his claim for vandalisation of the property and any pre-judgment interest.
4. Whether, from the record, the Appellant has proved any special circumstances to justify this appellate Court interfering with the trial Court’s discretion in the award of cost.”

On behalf of the Cross-Appellant, the following three issues were distilled for the determination of the Cross-Appeal:

“1. Whether, on the facts and evidence before the trial Court, the Judge did no, err in his conclusion that the Cross-Appellant ceased to be Cross-Respondent’s tenant upon the service and expiration of the purported Statutory Notices in the light of events which had overtaken the effect of the Notices.

2. Whether from the pleadings and evidence before the trial Court, the statutory notices served by Cross-Respondent through his Agents/Solicitors on the Cross- Appellant are valid in law.
3. Whether or not, having regard to the state of pleadings and evidence led before the trial Court, the Cross-Appellant did not discharge the burden of proof to establish his claim of set-off.”

It is tidier to resolve the Appeal first before delivering into the Cross-Appeal. I have carefully perused the issues as distilled by both the Appellant and Respondent for the determination of the Appeal and I am of the opinion that they are similar; however, I prefer the issues as formulated by the Appellant and I adopt them accordingly for the determination of this Appeal.

Issue One:

“Whether the learned trial Judge was right in warding N150,000.00 mesne profit per annum, when the Respondent had not traversed the claim of N750.000.00 mesne profit per annum in his own pleadings.”

Counsel for the Appellant, Akin Adewale argued that the Appellant in paragraph 20 of his Statement of defence and counter-claim pleaded as follows: “Between June 1993 and May 1995 prospective tenants offered to rent the said Defendant’s house for an annual rent of between N700,000.00k and N800,000.00k per annum. The house attracts good rent because of its good location at the centre of the city where commercial activities are very high. There are banks, offices and business centre in the area. All infrastructure facilities are in the area. Estate valuers and builders put the rental value of the house of its kind at N750,000.00k per annum”. He referred the court to page 0010 of the Record.

Learned Counsel submitted that the above averments were not traversed by the Plaintiff/Respondent and that the Respondent only pleaded in paragraph 6 of his reply to the amended counterclaim as follows: “The Plaintiff denies pararaghs 19 and 20 of the counterclaim and will at the trial put the Defendant to the strictest proof thereof’. He referred the Court to page 0014 of the Record.

He further submitted that the above paragraph 6 of the Respondent’s pleading did not answer the point in issue, to wit, that the house was in good location and that prospective tenants offered to rent the house for between N700,000.00k and N800,000.00k per annum and estate valuers and builders put the rental value of the house of its kind at N750,000.00k per annum.

Learned Counsel referred the Court to the case of:

Debs & ors. V. Cenico Nig. Ltd. (1989) 3 NWLR Pt. 32 page 846; and submitted that since the Respondent failed to traverse the issue of N750,000.00k rental value or mesne profit of the Appellant’s house, that issue should have been regarded as established and judgment ought to have been entered in favour of the Appellant.

He further submitted that the Counsel for the Appellant in his written address referred to the case of Debs & ors. V. Cenico Nig. Ltd. (supra) and extensively hammed on the fact that the Respondent did not traverse the averments contained in paragraph 20 of the counter claimant’s pleadings as required by the decision in the above case, the proper thing for the Counsel for the respondent to do was to apply to amend his pleadings and answer the point in issue by traversing the said averments.

Learned Counsel maintained that the failure to take steps after he has been duly put on notice shows that he had no answer to the said averment and the issue should have been regarded as established.

Akin Adewale pointed out that the learned trial Judge at page 0208 line 25-29 of the Record referred to the submissions of the Appellant’s Counsel that the claim of N750,000.00 per annum as mesne profit can succeed on pleading of both parties as per decision in Debs 7 ors. V. Cenico Nig. Ltd. (supra).

He submitted with due respect that since the learned trial Judge was aware of the decision in the above case but failed to follow it without any just cause or explanation, then his decision is perverse and not according to law.

Learned Counsel further submitted that the decision Debs & ors. V. Cenico Nig. Ltd. (supra), that decision was not done according to law and that when justice is not done according to law, then there is a miscarriage of justice. He referred the Court to the case of: Okonkwo v. Udoh (1997) 9 NWLR Pt. 519 page 16 at 17.

Learned Counsel urged the Court to allow the Appeal on this ground and to invoke its power under Section 16 of the Court of Appeal Act, and enter judgment in favour of the Appellant as the claim for mesne profit can succeed on either of the following grounds: where the Defendant fails to traverse material issues raised in Plaintiff’s pleadings or on preponderance of evidence adduced by the Plaintiff.

A traverse is a denial by a party to an averment by another party as to fact raised in pleadings between then. The law is that in order to raise an issue of fact, there must be a proper traverse. A proper traverse is a complete and sufficient denial, which has the effect of joining issues between the parties. See UBN Plc v. Scpok (Nig.) Ltd (1998)12 NWLR Pt. 578 page 439; Okoromaka v. Odiri (1995) 7 NWLR Pt. 408 page 411.

This is also enshrined in Order 23 Rule 14 of the High Court of the Federal Capital Territory Abuja Civil Procedure Rules 2004 which states that:

14(1) Where a party denies an allegation of fact he shall not do so evasively, but shall answer the point of substance.

(2) Where a matter of fact is alleged with diverse circumstances it shall no, be sufficient to deny it as alleged along with those circumstances, but a full substantial answer shall be given.”

Paragraph 6 of the Respondent’s Reply to the Appellant’s amended counterclaim at the trial Court is pertinent and is hereby reproduced as follows:

“6. the Plaintiff denies paragraph 19 and 20 of the Counter Claim and will at the trial put the Plaintiff to the strictest proof thereof.”

A careful study of above-produced paragraph 6 shows that the Respondent did not properly traverse the assertions of the Counterclaimant/Appellant’s the claim of N750,000.00 mesne profit per annum and thus, cannot amount to a denial.

I am of the opinion that since the Counter-claimant’s claim of N750,000.00 mesne profit per annum was not properly traversed and denied, the trial Court erred in law by awarding N150,000.00 mesne profit per annum occasioning a miscarriage of justice.

In Okonkwo v. Uoh (1997) 9 NWLR (Pt. 519) at 20-21 (Para. H-A, the Supreme Court stated that:

“What will constitute a miscarriage of justice may not in relation to the particular facts but also With regard to the jurisdiction which has been invoked by the proceedings in question; and to reach the conclusion that a miscarriage of justice has taken place does no, require a finding that a different result necessarily could have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law.” (Underline mine)

It is also pertinent to note that by Order 17 Rule 4(2) of the Rules of this Court, 2007 that there is an obligation on the Respondent to answer all material points of substance contain in the Appellant’s Brief.

In the present case, the Respondent failed to address this issue in his Brief even when it was raised by the Plaintiff as one of the issues distilled from the Grounds of Appeal for the determination of this Appeal.

I am of the opinion that this non-action on the part of the Respondent means that he was nothing to say on the issue and as such he is deemed to have adopted the submissions of the Appellant on this issue. Accordingly, I shall have no other option but to hold that issue one is resolved in favour of the Appellant.

Issue Two:

“Whether the learned trial Judge was right in fixing the mesne profit at N150,000.00 per annum on His own rather than relying on the evidence before him which put the rental valve of the premises at between N600,000 to N800,000per annum.”

Counsel for the Appellant Akin Adewale submitted that the trial Court erred in law in awarding mesne profit of N150,000.00 per annum when there was no evidence by parties to support the decision.

He referred the Court to page 0216 lines 13 to 14 of the Record where the trial Court while reviewing and making his findings said: “The next stage is at what rate will the mesne profit be calculated. From all the facts before the Court, it is a fact which requires no proof.”

Leaded Counsel submitted that the above conclusion is not the true position of the law as the only facts which need not be proved are judicially noticeable and admitted facts and referred the Court to Sections 73 and 75 of the Evidence Act.

Akin Adewale further submitted that where a Clairn for mesne profit is made as in the instant case, the onus was on the Plaintiff to establish what the yearly value was. He referred the Court to the case of: Debs & ors. v. Cenico Nig. Ltd. (supra)

He maintained that it would appear that the trial Court did not fully advert his mind to the issue he was to determine when he asked at page 0216 lines 22 to 27 – “could the same house which values N50,000.00K in 1993 by April of 1995 in the same location with the controversy surrounding its completion and the nature of its finishing which is not at the task of the counterclaimant attract a rent of N750,000.00k per annum”.

Learned Counsel stressed that there was no evidence before the trial Court that the value of the house was N50,000.00K in 1993; and that the evidence and pleadings before the Court was that the Respondent was to pay rent of N50,000.00K per annum in 1991. He referred the Court to the testimony of CW 2 at page 0068 lines 24 to 25 reply to amended countered paragraph 11 lines 30 to 31 and Exhibit 1, the tenancy agreement page 1 paragraph 2.

He submitted that the trial Court did not avert his mind to the fact that rent and rental value or mesne profits are not the same and thereby came to a wrong conclusion.

Akin Adewale pointed out that rent is the amount payable during the subsistence of tenancy while mesne profits is profit accruing between the date when the Defendant ceased to hold the premises as a tenant and the date he gives up possession. He referred the Court to the case of:

Debs & ors, v. Cenico Nig. Ltd. (supra).

He further pointed out that the trial Court said at page 0217 lines 8 to 9 – “it is contested that the finishing of the Defendant was unattractive to Plaintiff.”

Learned Counsel maintained that there was no such evidence before the trial Court and the parties did not join issues in their pleadings on the above issue raised by the learned trial Judge. He referred to the case of Ozazuwa v. Edo State Civil Service Commission (1999) 4 NWLR Pt. 597 page 155 was held that the Court must base its decision on the issues joined by the parties in their pleadings.

He submitted that in view of the above the trial Court was in error in making findings on issues not joined in pleading and without evidence in support.

Learned Counsel argued that the trial Court said at page 0217 lines 11 to 23 – what was to show what and what facilities were in place that will hijack the rent payable at N50,000.00K in ,993 to N750,000.00k in ,995 The Court equally has a duty to consider whether those pieces of evidence are in accord with reality not necessary absolute perfection is of course lacking from human ideas and products and from man himself. Faced with this situation this Court is of the opinion that it will call for some measure of discretion on the part of this Court to arrive at what will be the reasonable value of this property as at 1995.”

He submitted that the duty of the trial Court as a Judge was to decide issues based on evidence before him, evaluate evidence of witnesses and if he believes or disbelieves evidence of particular witnesses he should give reasons and thereafter put the evidence of both parties on an imaginary scale and arrive at the decision based on the preponderance of evidence and that this was not done in the instant case.

Learned Counsel further submitted that the trial Court did not advert its mind to the unchallenged and unconverted paragraphs 20 and 23 of the Appellant’s pleadings. He referred the Court to page 0010 of the Record and also maintained that there is evidence to show that the building is in a commercial area and referred to CWT. evidence at pages 0065 – 0066 of the Record.

He argued that even though the Respondent in paragraphs 6 and 9 of his pleadings made a general denial of paragraphs 20 and 23 of the Appellant’s Pleadings, the denial did not meet the requirements of the law as laid down in the Case of Debs & ors. V. Cenico Nig. Ltd. (supra) and Order 23 rule 14 of the High Court (Civil Procedure Rules) since the Respondent failed to traverse the above paragraphs in the Appellant’s pleadings and did not answer the points in issue.

Akin Adewale contended that the trial Court did not advert its mind to the fact that in the case of Debs & ors. V. Cenico Nig. Ltd. (supra), the tenant paid rent of N16,300.00k per annum up till September 1979 but after the expiration of the tenancy in that September 1979, the landlord sued for possession and mesne profit of N220,000.00k per annum with effect from 1st October, 1979 and judgment was entered in favour of the landlord for the sum of N220,000.00k mesne profit.

He maintained that the mesne profit of N220,000.00k is more than thirteen times the rent of N16,300.00k paid in September 1979 and that the Supreme Court, whose decision is binding on the trial Court, did not base his decision on the previous rent or the wide difference between the earlier rent paid and the amount claimed as mesne profit but on evidence given on rental value.

Learned Counsel submitted that the guiding factor in determining mesne profit is not the small or big difference between rent and the amount claimed as mesne profit but the rental value of the house.

He further submitted that the landlord is not bound to use rent payable during the tenancy as an index of rate of mesne profits and referred the Court to the case of:

Debs & ors. V. Cenico Nig. Ltd. (supra) at page 852 line 12 – 13.

Learned Counsel referred the Court to the findings of the trial Court at page 0217 lines 23 to 29 of the Record and maintained that the non-completion of the house and its being habitable or otherwise were not joined in the Pleadings as issues in the determination of mesne profits of the house.

He referred to the case of:Remi v. Sunday (1999) 8 NWLR Pt. 613 page 92 at 97 and submitted that the trial Court was in error to have relied on matters on which issues were not joined in pleadings of the parties to arrive at its decision.

He further submitted that the trial Court based its conclusion (at page 0217 lines 23 to 29 of the Record) on mere speculation and also substituted its own views for issues in contention in the absence of evidence and referred the Court to the case of:Ivienaghor v, Razuave (1999) 9 NWLR Pt 620 page 552 page 555.

Akin Adewale maintained that apart from the above errors of the trial Court, the evidence before the trial Court did not support the Court’s decision He pointed out that the evidence before the Court was that the house was uncompleted in 1991 but the agreement between the Appellant and the Respondent was that the Respondent would use two years to complete the house. He referred the Court to paragraphs 5(b), (c), and (e) of the Plaintiff/Respondents Statement of Claim at page 0004 of the Record, paragraph 8 of the Statement of defence and counterclaim at page 0014 of the Record and the evidence of Appellant CW2 at page 0069 line 1 to 11 page 0071 lines 3 to 8 and page 0084 line 18 to 29 of the Record.

Learned Counsel submitted that since the unchallenged evidence of the Appellant at page 54 line 3 shows that the agreement was that the Respondent could use 2 years rents to complete the house to high taste and since the Respondent said in his letter Exhibit 13 that he had completed the house and that is was beautiful there was no basis for the trial Court not to enter judgment in favour of the Defendant/Appellant.

He maintained that assuming without conceding that the house was completed, it will be unfair and unjust to visit the sin of the Respondent whose duty it was to compete the house on the Appellant.

Akin Adewale contended that there is evidence that the house had been completed by 1993 and referred to the Respondent’s Statement of Claim and that the total authorized amount spent in completing the house was N79,978.00k out of N95,000.00k as shown at pages 0006-0007 of the Record.

He urged the Court in view of the foregoing to allow the Appeal and use its power under Section 16 of the Court of Appeal Act to enter judgment for the sum of N750,000.00k per annum as mesne profits.

Learned Counsel submitted that the Record that the Record shows that the Appellant called credible evidence to prove his case. He maintained that PW1 testified at pages 0065-0066 of the Record that some people from Lagos agreed to rent counterclaimant’s house, negotiated a price of N750,000.00k per annum as rent and further testified that Area 8 where the Appellant’s house is located is a commercial place and there are banks there.

Akin Adewale further pointed out that CW2 testified at page 0081 line 4 to 5 of the Record that he had offers ranging from N700,000.00k to N800,00.00k from prospective tenants who wanted to rent the house, that CW3 at page 0115 lines 11 to 15 of the Record put the rent, value of the house at between N600,000.00k and N700,000.00k and that CW4 at page 0117 line 19 to 21 and page 0119 lines 27 to 29 of the Record tendered tenancy agreement between CW4 (new tenant) and the Appellant which showed that the new tenancy took off from 1-10-95 less than six months after the Respond left and he paid rent of N700,000.00k per annum.

He maintained that CW10 tendered Exhibit H in respect of twin duplexes at No. 2 Lobito Crescent Wuse which were rented for a total sum of N1.4 Million, that is N700,000.00k per each duplex.

Learned Counsel submitted that the Respondent called two witnesses but two of them did not challenge or controvert the contents of Exhibits 9 and 11 and the testimonies of CW1, 2, 3, and 4.

He further submitted that since the Respondent and his witnesses did not adduce any evidence to controvert or challenge the evidence adduced by the witnesses to the countered, minimum proof is required and referred the Court to the case of:Olujule v. Adeagbo (1988) 1NSCC Pt. 1 625 at 627.

Akin Adewale maintained that since the Respondent did not challenge paragraph 20 of the Statement of defence and Countered which deals with the rental value of the house and the rents offered by prospective tenant as well as he evince of CW, 2, 3, and 4 and Exhibits 9 and 11 the Readings and evidence are deemed to have been admitted.

He urged the Court to use the testimonies of CW1 and 2 that prospective tenants offered to rent the house at the rate of between N700,000.00k and N800,000.00k per annum, the testimonies of CW3 on rental value of the house, Exhibits 9 and Evidence of CW4 the tenant who rented the house in 1995 for a sum of N700,000.00k to determine the mesne profit as there is no laid down rules to be followed. Learned Counsel referred the Court to the case of:

Debs & ors. V. Cenico Nig. Ltd (supra) per Oputa JSC at page 843.

In his response on this issue, Counsel for the Respondent Kamin Bello Asunogie pointed out that this issue in the main seeks to ascertain the justification or otherwise of the trial Court’s exercise of his discretion toward N150,000.00 mesne profit to the Appellant whereas the Appellant claimed N750,000.00.

He referred the Court to page 0217 lines 9 – 23 of the Record, paragraphs 20, 22, 23 of the Appellant’s Amended statement of defence and Counter-claim at page 0010 Of the Record and also paragraphs 7 – 12 of the Respondent’s reply to the Appellant’s counter-claim at page 0014 of the Record- and submitted that a detailed study of the much vaunted paragraphs 20, 22, 23 of the Appellant’s Amended statement of defence and Counter-claim would reveal that all of them violate the rules of pleadings.

Learned Counsel further submitted that it is trite law that pleadings are not meant to be Trojan horses laying ambush for unsuspecting victims.

He maintained that pleadings are meant to be brief and direct evidence of facts and not wieldy and nebulous statements containing facts, opinion and ewdence. Learned Counsel referred the Court to the case of Dr. Chris Ngige v. Obi & ors (2006) 14 NWLR Pt. 999 page 1 at 141-143.

Kamin Bello Asunogie submitted that from the hazy and nebulous nature of the averments of the Appellant, the trial Court ought to have struck out the paragraphs for offending the rules of pleadings.

Counsel for the Respondent queried that assuming, without conceding, that those paragraphs are allowed to stand, are they by their very nature not paragraphs on facts only within the knowledge of the pleader?

He maintained that paragraphs 20, 22, 23 of the Appellant’s Amended statement of defence and Counter-claim contain issues within the exclusive and personal knowledge of the party alleging i.e. the Appellant and that the Law is that he who bears the burden of proof must prove same by evidence because only he is in a position to know and tell what offers he received from prospective tenants.

Learned Counsel submitted that the averments of the Appellant cannot be said not to have been denied in the light of the last sentence of paragraph 11 of the Respondent’s reply to the Appellant’s counter-claim.

He further submitted that the denial in paragraph 11 of the Respondent’s reply to the Appellant’s counter-claim is a sufficient traverse which to all intents and purposes joins issues with the Appellant on the pleading.

Counsel for the Respondent pointed out that while the Appellant was claiming N750,000.00 – N800,000.00, the Respondent was denying and conceding N50,000.00 per annum. He maintained that this is a joinder of issues and issues can only be made out by a holistic appraisal of the pleadings. He referred the Court to the case of:

Bank of the North Ltd v. Alhaji Bala Yau (2001) 5 SCNJ page 168.

Learned Counsel submitted that the contention on behalf of the Appellant that issues were not joined on the question of mesne profit is not only misleading but is also not borne out by record. He urged the Court to affirm the view of the trial Court that this point could only be resolved by the evidence.

Kamin Bello Asunogie contended that the next point to examine is whether the evidence on record tallied with the findings of the trial Court.

He referred the Court to the evidence of PW1, PW 2 and the cross-examination of PW 2 at pages 0065, 0068, 0069, 0087 and 0088 of the Record.

Learned Counsel also pointed out that one Oluwasegun Ayeni gave evidence for the Appelant and put the rental value at N600,000.00; and that the 4th witness of the Appellant, the owner of Suleja Clinics who at the time of trial was the tenant in the house, tendered Exhibit 9 which is his own tenancy agreement with the Appellant.

He argued that Exhibit 9 is dated 1/10/95, a date well after the suit was filed in 1993 and that the Appellant’s amended counterclaim was filed on 2/7/2001 wherein the fact of the current rent of the house was stated.

Learned Counsel referred the Court to paragraph 23 of the amended countered and maintained that Exhibit 9 was tendered to prove the averment in paragraph 23. He argued that the Exhibit curiously put the rent at N700.000.00 whilst the pleadings said N800.000.00.

Counsel for the Respondent submitted that the evidence led here by the Appellant is inconsistent with his pleadings and that where evidence is in conflict with pleading, such evidence is to be rejected and the pleading so unsubstantiated is deemed abandoned. He referred to the ease of:

Consolidated Breweries Plc v. Aisowieren (2001) 15 NWLR Pt. 736 page 424 at 456-457.

He further submitted that in the face of glaring inconsistent pleadings and evince coupled with witnesses who were unworthy of credit, the trial Court was right in disbelieving them and adopting former rent as yardstick for determining mesne profit.

Learned Counsel maintained that the evidence of the Appellant which sought to justify his N750,000.00 mesne profit claim was manifestly unsatisfactory and unreliable.

He contended that there is consensus that the first, two year term of September 1, 1991 – August 31, 1993 attracted only N50.000.00 per annum, that there was no credible evidence to show any improvements to raise the rate to N750.000.000, that there were negotiations to increase the rent to N100,000.00 per annum which failed as parties did not agree, that the question of offer to sell at N2Million is crucial and the issue could only be resolved easily if the letter written and pleaded by the Respondent to the applicant had been produced; and that failure to produce same amounts to withholding evidence. He referred to Section 149(d) of the Evidence Act, and the case of:

A. N. T. S. V. Atoloye (1993) 6 NWLR pt. 298 page 233.

Learned Counsel referred to page 0131 lines 10 – 12 of the Record and argued that how could a house offered for outright sale for N2Million attract N750,000.00 rent per annum.

He submitted that they are convinced that the evidence before the trial Court being unreliable to prove the claimed mesne profit, the trial Court was left to use its discretion to determine from the circumstances what rent of mesne profit was reasonable.

Learned Counsel urged the Court to refrain from interfering with this exercise as no good and compelling reasons are available in the Record He further urged the Court to uphold the decision of the trial Court on this issue.

The term ‘Mesne profits’ is used to describe the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time the tenant gives up possession. It follows therefore that mesne profits only start to run when the tenancy expires and the tenant holds over.

The position of our law is that mesne profits are generally calculated on the yearly value of the premises and so a landlord is not bound to use the rent payable during the tenancy as an index of the rate of mesne profits.

This was affirmed by Supreme Court in Debs v. Cenico Nigeria Ltd. (supra) at 857 Per Oputa JSC when it stated thus:

“… I dare say the Plaintiffs are not bound to use the rent payable during the tenancy as an index of the rate of mesne profits. This point was brought out by the Judgment of this Court in Felix O. Osawaru v. Simeon O. Ezeruka (1978) 6/7 SC. 135 at p. 139. With respect the view of Ademola, J.C.A. that the learned trial Judge ‘should have used the annual rent being paid by the Appellant to the Respondent as a yardstick in his determination of mesne profits’ does not seem to be applicable in this case in view of the state of the pleadings and the evidence led in the trial Court. It is trite law that mesne profits are generally calculated on the yearly value of the premises. The rent in a lease made in April 1969 may not reflect the value of the property in 1979 It is agreed that the onus is on the person alleging to establish what this yearly or rental value of the premises is. In the instant case, it is on record that the Appellant in his pleadings and evidence before the trial Court has put the rental value of the premises at between N600,000.00 and N800,000.00 per annum. It is also on record that the Respondent did not challenge this claim of the Appellant.

I therefore hold that the trial Court was not right in fixing the mesne profit at N150,000 per annum on its own rather than relying on the rental value evidenced before it, which uncontrovertedly put the value between N600 000 and N800,000 per annum.

This second issue is also resolved in favour of the Appellant and invoking the powers of this Court under Section 16 of the Court of Appeal Act I hereby award the sum of N600,000 as Mesne profit in favour of the Appellant.

Issue Three:

Whether the learned trial Judge was right in dismissing Appellant’s claim for cost of restoring the building to its original design in view of the alteration by the Respondent and cost of repair of the premises in view of the uncontroveried evidence of the negligence of the Respondent in failing to properly hand over the premises to the Appellant which Id n, its vandalisatlon.

Counsel for the Appellant, Akin Adewale pointed out that the trial Court at page 0219 lines 23 to 30 said – “the property was itself at an uncompleted State …It was the defendant that was to use the rent agreed upon to make it habitable. Also there was confusion even from counterclaimant’s own witnesses as some agreed that the defendant had vacated the premises and they visited the place and found a guard there but could not say who kept him there. Defendant to his evidence said soon after vacating the property, the counterclaim put an Ibo man guard at the premises.” He also referred to page 0220 lines 1 – 5 of the Record.

Learned Counsel contended that it would appear that the trial Court did not advert his mind to the claim of the Appellant which is as follows: “Sum of N300,000.00k cost of repairs and renovation of the counter-claimant’s house, vandalized by unknown people, because of the negligence of the Plaintiff in not properly handing over the house to the counterclaimant – He referred to page 0012 lines 6-10 of the Record.

He maintained that it is glaring from the above that the claim is based on expenses incurred due to the negligence of the Respondent in not properly handing over the house to the Appellant.

Learned Counsel pointed out that in Exhibit 6 the Respondent wrote that he vacated the house on 31/3/95 and that in paragraph 5(c) of Respondent’s Pleading,, the Respondent admitted that though the keys to the house were sent to the Respondent on 14th May 1995 but that the Respondent handed over to the Appellant through an Ibo guard in April. He referred the Court to page 0014 lines 4 – 7 of the Record.

He submitted that since the Respondent wrote in Exhibit 6 that he vacated the house on 31/3/95 but that the keys were sent to Appellant on 14/5/95, the Respondent would be deemed to be in actual possession of the house during the period that he retained the keys. Learned Counsel referred the Court to the case of:

Thomas v. Metropolitan Housing Corporation Ltd. (1936) All e. r. 210 C.C. at page 216 per Scott L. H.

Learned Counsel further submitted that since the Respondent failed to produce any letter from the Appellant authorizing the Ibo guard to guard his house and since there was no discussion between the parties on that and since there was no evidence that the parties handing over should be done through a security guard or any third party the Respondent acted improperly by handing over to the Ibo guard as he claimed or any person apart from the Appellant.

He maintained that since the Respondent vacated the premises on 31/3/95, the handing over ought to have been done on that day and not in May because even if the handover to the security guard was done on 1/4/95, the house might have been vandalized on the night of 31/3/95.

Counsel for the Appellant submitted that since the Respondent admitted being a tenant of the Appellant and since he was negligent in not properly handing over the house to the Appellant, he is liable for the claim.

He further submitted that there is evidence on the Record to show that the Respondent was negligent in not properly handing over the house to the Appellant and that there is also evidence in support of the claim of N300,000.

Learned Counsel maintained that the claim of N44,000 is not for the destruction or distortion of the plan as stated by the trial Court but to reconstruct the structures put up in the house and that it is also not correct as stated by the trial Court that the counterclaimant only placed emphasis on the motor garage as there were evidence on the Record to show that alterations were made on the garage, courtyard, dining area, part of the toilets, the sitting room and the bedrooms.

He submitted that the Respondent has a duty to put the structures he tampered with in the position he met them before vacating the house as that was signed by the parties and he referred the Court to paragraph 2 (c) vii of the Tenancy agreement, Exhibit 9.

Counsel for the Respondent further submitted that what CW4 did after the Respondent had vacated the house had no bearing to the instruction Respondent gave to CW 8 to remove some block works, construct partition and replace the big door of the garage with a small one.

He argued that the Respondent did not call any evidence to challenge or controvert the testimonies of CWs 3 and 4 and in view of the above, he urged the Court to regard the testimonies as truthful in view of the decision in the case of: Agundo v. Gberbo (1999) 9 NWLR Pt. 617 page 71 at 78.

In his response on this issue, Counsel for the Respondent pointed out that from the pleadings, it is the Appellant’s claim that the Respondent vacated the house without handing over the property to him or failed to put security around the house and that this led to the vandalization of the property by unknown persons, that while living in the property, Respondent altered its structure by constructing wails which changed the original concept of the house, that he had to spend fortunes to remove unwarranted alterations and replace vandalized items; that the Appellant seeks to recoup the expenses and the interest he ought to have received there from.

He submitted that the word “vandalization by unknown persons” connotes crime of criminal negligence on the part of the Respondent and that this averment requires proof beyond reasonable doubts. He referred to Section 138 of the Evidence Act and the case of:Nwobodo v. Onoh (1984) 7 SCNLR page 1.

Learned Counsel also referred to page 19 of the Appellant’s amended counterclaim and submitted that the allegations therein are purely criminal and must be proved beyond reasonable doubt. He referred to the case of:

Buhari v. Obasanjo & ors (2005) 7 SCNJ page 1.

Counsel for the Respondent further submitted that the Appellant admitted that between the time the Respondent vacated the house and the time the keys were delivered to his solicitors on one hand and the time the solicitor received then and sent them to him all had gaps in between; so he could not tell the Court when precisely the ‘vandalization’ and ‘theft’ took place.

He maintained that if the acts alleged were done before the keys got to the solicitors, then the Respondent is reliable; but if on the other hand, the acts occurred after the solicitors got the keys but before releasing them to the Appellant, then the Respondent is not liable.

Learned Counsel contended that there was no evidence led to show when exactly the alleged acts took place and that there is doubt as to whether the alleged acts occurred at all and if they did occur, the time is not known neither is it known who actually did it.

He submitted that since the allegations contain criminal elements, any doubt in evidence must be exercised in favour of the Respondent and referred to the case of:

Ernest Uchegbu v. The State (1993) 8 NWLR Pt. 309 page 89; Nwobodo V. Onoh (supra).

Counsel for the Respondent urged the Court to hold that failure to call as a witness the Court registrar as pleaded in paragraph 9 of the counterclaim amount to withholding evidence wh.ch would have decided the issue of the alleged acts one way or the other. He referred the Court to Section 149 Evidence Act and the case of:A. N. T. S. v Atoloye (supra).

He maintained that the Appellant’s failure to move the Court to the locus in quo to see the property is equally fatal and that same goes for the Appellant’s failure to present evidence by way of photographs taken of the alleged acts and or the completed renovation/replacements.

Learned Counsel submitted that this shows that the Claim is spurious and that where there is no credible evidence the Claim fails as it is trite law that mere averment without more cannot prove a fact and urged the Court to so hold.

He further submitted that the question of reimbursement cannot arise because where head Claim is not established, an ancillary Claim must fail and that the evidence on the claimed expenses are equally hollow and unreliable

Learned Counsel pointed out that in the Appellant’s evidence on record tested as a contractor that supplied the items used for renovation/replacement i.e. aluminum doors, windows and keys; that Exhibits 10 a – d are receipts purportedly issued by the said contractor.

He maintained the Exhibits failed to show where the purported items were used as they could well have been used somewhere else completely unrelated to the subject matter of the suit and that this raises the question of credibility of the evidence.

Counsel for the Respondent pointed out that Exhibit 10a talks of fixing of door key and glasses alone for N6,500 in 1995 without showing how many door keys and glasses were involved and that in the light of evidence on record vide Exhibit 3 where five aluminum door frames were bought for N700.00, could the N6,500 claim be real? He further pointed out that Exhibit 10d is part payment of supply and installation named whilst Exhibit 10c is the purported part payment for aluminum products and supply and it was not signed.

Learned Counsel maintained that these yawing gaps raise too many questions which are not answered by the Appellant and that this failure makes the Exhibits unreliable.

Counsel for the Respondent also argued that the oral evidence given by the witness is at best suspect and that in the record he is an aluminum fabricator and general contractor, he also claims in his evidence-in-chief to be an estate surveyor who rented out a 4- Bedroom bungalow situate at Lobito Crescent, Wuse 2, Abuja, that he said he did not inspect the Appellant’s house and that when he came to the house everywhere was empty without windows and doors. He maintained that the above evidence of Kazim Abioye, PW7 was sought to be remedied by PW 10 and that while Abioye who tendered Exhibit 10 a – d said he rented out a 4-Bedroom bungalow at Wuse 2, Appellant became afraid of a visit to the property to ascertain the truth of the witness’ evince and called PW10 to save the situation; that PW 10 contradicted the evince of PW 7. He referred the Court to page 0130 of the record and submitted that where a party’s evidence is self contradictory, the Court cannot rely on it.

Learned Counsel further submitted that in the face of these contradictions to the Appellant’s evidence on this issue coupled with his failure to prove vandalization and repair, the Appellant has failed to establish his claim He urged the Court to uphold the finding of the trial Court that is based on the evidence of CW 4 that he met a guard in the house thus negativing the claim of negligent abandonment of the house, thus the claim on this issue shall fail.

Learned Counsel pointed out that the next ancillary issue is that of alteration of the building and if proved the claim for reimbursement and interest thereon. He maintained that from the pleadings of the Appellant this fact was confirmed in paragraphs 21 and 22 while the Respondent concerted same vide paragraphs 7 and 8 of his reply and this has raised an issue which requires proof.

He submitted that the onus of proof of the original building plan and the clamed alteration was at all material times on the Appellant and that there was no where in the evidence where the original building plan was tendered.

Learned Counsel further submitted that the best evidence on this issue could have been by way of tendering of the building plan which is presumably revered with the Development Control and the original kept by the Appellant. He maintained that in its absence the Court was only being invited to make a conjecture and referred the Court to the case of:Obasi Bros. Ltd. v. Merchant Bank of Securities Ltd. (2005) 9 NWLR Pt. 929 page 117 at 131-132.

Counsel for the Respondent maintained that the trial Court was also never taken to the property to see for itself all the alleged alterations. He urged the Court to hold that his claim was not made out by the evidence at the trial and referred the Court to the Section 149(d) of the Evidence Act and the case of:

NSC Akpan Udoh v Okitipupa Oil Palm Plc (2005) 9 NWLR Pt. 929 page 58 at 79.

He contended that in the light of the failure of the head claim founded on alteration of the structure, the purported claim for refund of alleged cost of reinstatement must fail and urged the Court to so hold.

The position of the law as embodied in Section 138 (1) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria 1990, is that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. See Buhari v. Obasanjo & ors (2005) 7 SCNJ page 1; Nwobodo v. Onoh (1984) 7 SCNLR page 1.

The Supreme Court in the case of Mufutau Bakare v. The State (1987) 3 S.C.1 at 5 per Obaseki, JSC stated that:

“Proof beyond reasonable doubt means proof of an offence with the certainty of the criminal law. That certainty is that the offence has been committed and no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these two facts, the case h said to be proved beyond reasonable doubt.”

In the present case, the act of vandalization alleged against the Respondent is criminal in nature and as such the standard of proof required to prove them is beyond reasonable doubt.

I have carefully studied the pleadings as well as evidence adduced by the Counter-claimant/Appellant before the trial Court and I am of the opinion that he failed to prove the act of vandalization which he alleges against the Respondent It beats my imagination on why there was no initial recording, may be in terms of snap shots or video recording, of the house in the vandalized state and another recording after the Appellant may have put the house in a testable state.

In view of the above position of the law, I hold that the Appellant’s claim is spurious and it is also trite that where no evidence is led to establish the claims made before a Court, such claims will be dismissed for want of evidence. See

– Rimi v. INEC (2005) 6 NWLR Pt. 920 page 56.

This issue is resolved in favour of the Respondent.

Issue Four:

-Whether the learned trial Judge was in error in failing to award pre-judgment interest on the amount claimed in view of the circumstances of this case.”

Counsel for the Appellant submitted that there is no evidence that the counterclaimant attempted to equate interest to what the intended profit would have generated for him and that the claim of the counterclaimant/Appellant was speculative as concluded by the trial Court.

He maintained that the evidence before the Court was that it was the Respondent who stated at page 1 lines 10 to 13 of his Exhibit 13 that the Appellant wanted to put his money in fixed deposit and he referred to it in his written address.

Learned Counsel pointed out that the pieces of evidence adduced by the Appellants support of the claim for interest are the testimonies of PW 6 and PW 9. He maintained that PW 6 a staff of Diamond Bank Plc testified at pages 0122-0123 that the rate of interest on fixed deposit between 1993 and 1995 ranged between 13.25% to 44% and that it was 13.5% in 2005 that he all tested that between 1993 and ,995, it ranged between 12% and 13% on savings account.

He posited that PE9, a banker with Eagle Bank Ltd. testified at page 0127 that rate on fixed deposit account ranged between 1997 and 2003 and that interest on saving account was a flat rate of 7% interest from 1997 and rose to 10% in year 2003.

Learned Counsel submitted that the above unchallenged evidence could have been used by the trial Court as yardstick in determining rate of interest and since the above evidence of PW 6 and PW 9 were not challenged by cross-examination or when the defence witnesses testified, their evidence should be regarded as truthful. He referred to the case of:

Agundo v. Gberdo (1999) 9 NWLR Pt. 617 page 771 at 78

Counsel for the Appellant pointed out that another issue which is of legal significant raised by the Appellant’s Counsel in his address and which the trial Court failed to comment upon was the decision in the case of Koloko v. Nasir 2001 11 NWLR Pt. 725 page 537 at 575.

He maintained that in the instant case, the Respondent was served with six months notice to quit and seven days notice of Landlord’s intention to recover possession; and when the case came up forbearing on 14/10/1993 both the Respondent and his Counsel were absent and the case was adjourned to 15/11/93, that on 15/11/93, the Respondent’s Counsel requested for an adjournment to settle the matter out of Court. Learned Counsel further referred the Court to pages 0012, 0022, 0023, 0048, 0050, 0064, 0072, 0104, 0106 of the Record where the Respondent requested for unnecessary advents or was absent.

Learned Counsel submitted that the Respondent’s application to appeal out of time was a ploy to delay this case and that after his application for leave to appeal was granted, Respondent abandoned his appeal and the progress of the case was unduly delayed for about one year and one month.

Counsel for the Appellant urged the Court that in view of the evidence of PW 6 and PW 9 on the rate of interest which the trial Court ought to have used as yardstick to determine rate of interest and in view of the decision in the case of Koloko v. Nasir (supra), to allow the appeal and also to use its powers under Section 16 of the Court of Appeal Act to enter judgment for the Appellant at the rate of interest claimed or any other reasonable rate of interest He submitted that since the Respondent did not traverse and did not deny the data, of 25% interest per annum on mesne profits and claim of N300,000 on repairs of Appellant’s house that was vandalized and claim of N44, 000 for the reconstruction of structures erected by the Respondent, the trial Court ought to have followed the decision in Debs Cenico (supra) and give judgment for the Appellant accordingly.

Learned Counsel further submitted that the denial of the Respondent in paragraphs 11 and 12 of his reply to the counter-claimant’s pleadings is in respect of arrears of rent and not interest on mesne profit. He referred the Court to the case of:

Ogiale v. Shell Dev. Co. Ltd. (1997) 1 NWLR Pt. 480 page 148 at 154 and Order 25 Rule 14 of the High Court Civil Procedure Rules.

Counsel for the Appellant urged the Court, in view of the foregoing to allow the appeal and use its power under Section 16 of the Court of Appeal Act to order the Respondent to pay interest on all heads of claim as prayed or decide and order any reasonable rate of interest. He referred the Court to the case of: Enahoro & Co. Ltd & anor. v. Bank of W.A Ltd. (1971) 1 NCLR page 180 at 182.

In his response, Counsel for the Respondent submitted that his sessions on issue three above applies to the claim for pre-judgment interest with equal force as the law is that where there is a wrong there is a remedy and that conversely where an legation of a wrong is not proved, there is no wrong and as such there will be no remedy. He referred the Court to the case of:

International Trust Bank Plc v. Kautal Hairu Co. Ltd. (2006) 3 NWLR Pt. 968 page 443 at 455.

He posited that based on the pleadings and evidence, the Appellant herein has not shown whether his contract with the Respondent gave provision for payment of interest and whether there is a Statute or custom establishing his claim and referred again to the case of:

International Trust Bank Plc v. Kautal Hairu Co. Ltd. (supra) at 455 his lordship concluded as follows – “The law in the payment of interest on debt must be strictly proved by evidence for a trial Court will no, infer payment of interest for alleged usage or custom unless such usage or custom is established by evidence.”

Learned Counsel pointed out that it was argued on behalf of the Appellant in his Brief that the claim be sustained because the Respondent has not proved proper handing over and a formal letter of the engagement of the guard. He maintained that this is not the issue and the Law, that the issue is whether the Appellant has proved vandalization, alteration and the claimed repairs or restoration of the property to its original state.

He submitted that to this, the Appellant has failed and that the Law of burden of proof is that a party cannot rely on the weakness of his opponent’s case as proof of his own claim and referred to the cases of:

Piaro v. Tenalo & ors (1975) 12 SC31;

Simon Ansambe v. Bank of the North Ltd. (2005) 8 NWLR Pt. 928 page 650 at 661 – 662 para H-B.

The law is Ubi jus Ubi remedium which means that where there is a wrong there is a remedy and conversely where an allegation of a wrong is not proved, there is no wrong.

Having held earlier that the acts of vandalization and alteration alleged by the Appellant against the Respondent were not proved beyond reasonable doubt, this issue which is predicated on issue three will fail as you cannot place something on nothing and expect it to stand. See UAC v. Mcfoy

This issue is also resolved in favour of the Respondent.

Issue Five:

“Whether the learned trial Judge exercised his discretion judiciously and judicially when he awarded cost of N10,000 out of N100,000 asked for by the Appellant in view of the circumstances of this case.”

Counsel for the Appellant contended that there were about 100 appearances and the counterclaim, that some of his witnesses traveled from Suleja to Minna (sic) to appear and testify and that fuel expenses from Suleja to Abuja and back was N1,000 per appearance and the counterclaimant also paid about N2,000 as filing fees on Writ of Summons and various applications. He maintained that based on the above, Appellant requested the trial Court for N100,000 costs but the trial Court awarded a ridiculous sum of N10,000 as costs.

Learned Counsel submitted that an appellate Court will not interfere with the discretion of the trial Court as to the amount of costs unless the amount awarded is out of proportion to the costs properly recoverable in the case of show that the trial Court has proceeded on wholly erroneous estimate and he referred the Court to the case of:

Okpara v. Umeh (1997) NWLR Pt. 511 page 95 at page 99.

Counsel for the Appellant further submitted that in the present case because of the cost of transportation from Suleja to Abuja which is N1,000 both ways, the cost of N100,000 will be most appropriate since there were more than 100 appearances and he urged this Court to so hold.

In his response Counsel for the Respondent pointed out that this issue seeks to ascertain whether from the Record before this Court, the Appellant has shown sufficient reasons to warrant this Court’s interference with the trial Court’s exercise of discretion in the award of cost. He referred the Court to the case of:

Dr. Mathias Oko Ofoboche v. Ogoja LGA & ano. (2001) 16 NWLR Pt. 739 page 458.

Learned Counsel contended that the trial Court awarded N10,000 as cost to the Appellant in its judgment and this was consequent upon the application by the Appellant’s Counsel as could be gleaned from the Record.

He maintained that it is trite law that an application for cost is a request for the exercise of the Court’s discretion and that it is the duty of the Appellant who is the Appellant herein to present sufficient materials to guide the Court Learned Counsel referred the Court to the case of:Chief Dipreye Alamieyesiegha v. F. R. N. & ors. (2006) 16 NWLR Pt. 1004 page 1.

Learned Counsel conceded that the case arose in 1993 and had suffered series of adjournments. He maintained mat from the entire Record, part of the reasons for the delay was the desire by both parties to settle out of Court which to the knowledge of the trial Court failed on account of the Appellant’s uncompromising disposition.

He further submitted that no facts were placed before the trial Court that in 1993, N1000 each day was spent by the Appellant to attend Court and that the Record does not even show that the Appellant was always in Court.

Learned Counsel maintained that it is unreasonable to claim that the Appellant started in 1993 with N1000 and continued like that till judgment was delivered. He argued that the trial Court must have considered all the circumstances and facts including parties’ conduct to assess the cost.

He submitted that only the trial Court was placed advantageously to consider all the special details to arrive at a just, fair and equitable decision and that the Appellant has failed to show what special circumstances exist to warrant this Court’s interference with the exercise of discretion by the trial Court and he prayed the Court to so hold and referred to the cases of:

Okpara v. Umeh (supra) at page 99;

Simetequip Ltd v. Omega Bank Plc (2001) 16 NWLR Pt. 739 page 324

It is a notorious fact that litigation involves expenses by both parties.

These expenses include amount spent for the preparation and filing of processes and other documents, summoning of witnesses and of course, the legal practitioner’s fees where on is engaged.

Costs are meant to compensate one of the parties, most often the successful party, for the expense he has incurred in the litigation. The Court orders (hat the other party to pay him a certain sum of money awarded for this purpose by the Court.

However, it must be noted that Costs rarely indemnifies fully the party in whose favour it is ordered for the entire amount spent by him and it is not awarded to punish the unsuccessful litigant. See

J. D. Inneh v. Chief Obaraye (1957) 2 FSC 58 at 59

The exercise of the power is at the discretion of the Court. See Afribank (Nig.) Plc v. Geneva (1999) 12 NWLR Pt. 632 page 567.

Whenever the exercise of the Court’s discretion is sought, the Court is enjoined to consider all the evidence placed before it and relied on by the Applicant, as well as the peculiar facts and circumstances of the case. See Chief Dipreye Alamieyesiegha v. F. R. N. & ors, (supra) page 1 at 115; Ikhazuagbe v, C.O.P. (2004) 7 NWLR Pt. 872 page 346; Atiku v. State (2002) 4 NWLR Pt. 555 page 524.

I have carefully perused the judgment of the trial Court on the assessment of the Costs awarded and I am of the opinion that it considered all the circumstances and facts of this case before arriving at N10,000 costs in favour of the Appellant. I see no reason to interfere with this finding. This issue is resolved in favour of the Respondent.

Below are the submissions of Counsel on the Cross-Appeal.

Counsel for the Cross-Appellant Kamin Bello Asunogie contended that Issues one and two distilled for the determination of the Cross-Appeal are closely related and decided to argue them together. The Issues one and two are as follows”

“1. Whether, on the facts and evidence before the trial Court, the Judge did not err in his conclusion that the Cross-Appellant ceased to be Cross-Respondent’s tenant upon the service and expiration of the purported Statutory Notices in the light of events which had overtaken the effect of the Notices.

2. Whether from the pleadings and evidence before the trial Court, the statutory notices served by Cross-Respondent through his Agents/Solicitors on the Cross- Appellant are valid in law.”

Learned Counsel pointed out that the issues query the reliance of the trial Court on the Cross-Respondent’s Statutory quit notices served by his agents when from the evidence available the quit notice and the notice to recover possession were either invalid or at best had been overtaken by events.

He contended that the trial Court in its judgment on page 0126 of the Record said that by the pleadings and evidence, the Cross-Appellant was served with a six-month quit notice, that after its expiration, a seven-day notice to recover possession was also served and that the latter notice expired on 15/6/93.

Learned Counsel maintained that the trial Court noted that the only argument by the Cross-Appellant was that after the expiration of the notices, another term was negotiated and deemed to inure from 1/9/93 to 31/8/95 and that the trial Court concluded and held interlia – “With due respect to the defendant he had ceased being counter-claimant’s tenant after the requisite statutory notices which he claims as 2nd term renewal cannot going by AHMED DEB’S case supra be a renewal but a fresh tenancy. Renewal can only happen where the tenancy was still in existence between the parties.”

He pointed out that the trial Court concluded – “Whatever that transpired which the defendant wants to lay claim upon with the counter-claimant can only be made by way of set-off on the mesne profit for his holding over after the tenancy had ceased.”

Learned Counsel submitted that the above conclusion of the trial Court is in error as a cursory examination of the evidence should lead to a contrary conclusion. He maintained that it is on record in the evidence-in-chief of the Cross-Respondent that in 1982 prior to the expiration of the first two year term he collected the sun, of N3.000.00 from the Cross-Appellant. He referred the Court to page 0086 lines 23-28 of the Record.

Counsel for the Cross-Appellant contended that from the evidence of the Cross-Respondent, the sum of N3,000.00 was tied to the renewal which he had initiated by requesting for N100,000.000 as the new rent and that this happened around May 1992 when the first term was still running to expire on 1/9/93 and the renewal started to run from 1993-1995 as per the usual two year arrangement.

Learned Counsel submitted that the conclusion that a tenancy can only be renewed when the term had not expired though correct in law was misapplied in the instant case to hold that the notices were valid.

He maintained that their view finds truth in the fact that the evidence reveals a renewal of the term from September 1993 to August 1995 by the Cross-Respondent’s request for and receipt of the N3,000.00 as deposit in May 1992 whereas the term extant was to expire in September 1993.

Learned Counsel contended that it stands to reason to say that since the renewal had taken effect with the deposit of N3,000.00, the quit notices issued to determine the tenancy in June 1993 were wrong and ineffectual as the tenancy could only be determined at the end of August, 1995.

He pointed out that it is in evidence by Exhibit 1 that the term was running from 1/9/91 – 31/8/93, so any six month quit notice terminating before 31/8/93 was invalid.

Counsel for the Cross-Appellant submitted that in this case, the quit notice purported to determine the tenancy in June 1993. He queried what happens to the balance of the rent between June and August which had already been expended on completing the house.

He further submitted that as long as the instant notice determined the tenancy earlier than 31/8/93 it was void and therefore had no effect on the tenancy.

Counsel for the Cross-Appellant referred the Court to page 0086 of the Record and contended that the Cross-Respondent permitted the Cross-Appellant to continue with the job of completing the house despite being aware that the Cross-Appellant in his own view had exhausted the first term’s sum of N100,000.00 as agreed on the job.

Learned Counsel pointed out that before all the expenditures, the Cross-Respondent had minute in Exhibit 3 at page 8 that: “other things to be done at home should be itemized and sent to the landlord for further negotiations.”

He submitted that the above was a whisper of protest by the Cross-Respondent about the future expenditure by the Cross-Appellant and that between pages 8 containing the protest and page 14, the Cross-Appellant continued to work on the house.

Learned Counsel maintained that no scintilla of evidence exists to show whether there was any negotiation or not to permit the jobs but that what is certain is that the expenditure was not disowned because at page 15 of the Exhibit, the Cross-Respondent further minute as follows – “Please do not spend any amount on the house again without my written consent. I will give the usual go-ahead after the last account has been ratified by me and Lasisi.”

Counsel for the Cross-Appellant submitted that the above remark only prohibited the Cross-Appellant from spending ‘again’ and did not disclaim the previous expenditure of N61,904.60 before 1/11/92 when the order was passed.

He contended that nowhere in the Exhibit 3 and in the Record did the Cross-Respondent disclaim the expenditure.

Counsel for the Cross-Appellant maintained that it is an admission by conduct of the expenditure and that this formed part of the rent for the period of 1993 – 1995 August because when the deposit of N3,000 is added, the total will then stand at N64,904.60 which at least covered the period of 1993 – 1994 He also pointed out that their term must, though not express in the Record, be had to the existing tradition of two years per term.

Learned Counsel submitted, in the light of above, that the quit notice served on the Cross-Appellant and the subsequent notice to recover possession were ineffectual, null and void same having been given at an inappropriate time.

He maintained that since the quit notice purportedly determined the tenancy in June 1993 whereas the renewed tenancy could only be determined in August 1995, it was invalid; that consequently any claim as m this case founded on it could not stand and indeed the action for counterclaim being one of tenancy was initiated when the Court had no jurisdiction to try it and he urged the Court to so hold.

Learned Counsel submitted that in consequence of these arguments the question of mesne profit cannot arise and be sustained upon an invalid set of notices and he urged the Court to so hold.

He further urged the Court to dismiss the claim of mesne profit and set aside the judgment of the trial Court and any consequential orders all having been made without jurisdiction.

Counsel for the Cross-Appellant argued that assuming, without conceding, that they were wrong on the above submissions, the trial Court was not right in his judgment when there is no evidence before him of the Cross-Respondent’s written authority to his Solicitors/Agents to issue and serve the statutory notices.

He submitted that in law a transaction relating to landed property, power to act and represent the owner must be donated to the agent in writing and that it is not implied in law as the donation of such power must pre-date the time at issuance and services of notices in that behalf.

Learned Counsel further submitted that this fact not being in evidence makes the notices bad in law thereby depriving the trial Court requisite jurisdiction to determine the matter and making any orders as to the claim for mesne profit. He urged the Court to set aside the reliefs granted under this head to the Cross-Respondent all having been made without jurisdiction.

In his response, Counsel for the Cross-Respondent Akin Adewale referred the Court to page 0216 of the Record and submitted that the trial Court erred when it said that the claim of the Respondent could only be mad by set-off or the mesne profit for his holding over after the tenancy had ceased. He contended that the sum of N3,000.00 was tied to the renewal which Cross-Respondent initiated by requesting for N100,000.00 as new rent.

He maintained that the Cross-Appellant failed to advert his mind to the relevant issues for consideration to wit:

(1) Whether the sum of N3,000.00 the Cross-Respondent collected from the Cross-Appellant was deposit for renewal of a new tenancy.

He contended that the above sum of N3,000.00 was part payment for the renovation of the building since at the time the said sum N3,000.00 was collected, the Cross-Appellant had not exhausted the rent of N 100,000.00 for two years and that only N79,978.00 has been exhausted.

Learned Counsel referred the Court to page 2 lines 10 to 12 of Exhibit 13 where the Cross-Appellant wrote – “in your letter you said part payment of the money for renovation of your building.” He submitted that the content of the letter is admissible since the Cross-Appellant is presumed to be in possession of the letter written to him and failed to produce it.

He maintained that the Cross-Respondent in his testimony when recalled said that the N3,000.00 he collected from the Cross-Appellant was part of rent and not deposit for new tenancy; and that the above piece of evidence was not challenged.

Learned Counsel submitted that the Cross-Appellant in his testimony said that the Cross-Respondent asked for N3,000.00 but did not say that the money was deposit for renewal of tenancy and that in fact did not say what the money was meant for.

He referred the Court to their written address on pages 12 – 14 of the Record on the Cross-Respondent’s detailed account of how he arrived at the said sum of N79,978.00.

(2) Whether there existed a tenancy agreement between the two parties when the Cross-Respondent rent out his house for N100,000.00 after the expiration of the first two years tenancy and the Cross-Appellant offered to pay N80,000.00.

Learned Counsel submitted that since the two parties failed to agree on the rent to be paid, there was no valid agreement.

(3) Assuming that there was an agreement to rent out house for a specific term; can the landlord still determine agreement before the expiration of the tenancy?

He maintained that the answer is yes as the position of the law is that where there is a tenancy which is determined at the expiration of the tenancy period, what the landlord is to do is to give seven days notice of intention to recover possession and that it is only where the tenancy subsists that six months notice is required in the case of yearly tenancy.

Learned Counsel submitted that in the instant case, the Cross-Appellant admitted in paragraph 15 of his pleading that he was given six months notice and seven days notice of landlord’s intention to recover possession.

He further submitted that the finding of the trial Court at page 4 of the Record that since the defendant remained in the Cross-Respondent’s house after the expiration of the above notices and since he was no longer the Cross-Respondent’s tenant, what he should pay for remaining in the house would be rental value or mesne profit and not rent is supported by evidence before him.

Counsel for the Cross-Respondent pointed out that the Cross-Appellant in its Brief contended that in law transactions relating to landed property, power to act and represent the owner must be donated to the agent in writing.

He maintained that the issue before the Court is not land transaction but tenancy matter and that it is too late at this stage to canvass the issue as it was not raised nor made an issue at the trial Court.

Issue Three:

“Whether or not, having regard to the state of pleadings and evidence led before the trial Court, the Cross-Appellant did not discharge the burden of proof to establish his claim of set-off”

Counsel for the Cross-Appellant Kamin Bello Asunogie pointed out that this issue complains that the trial Court erred in holding that the Cross-

Appellant failed in discharging the burden of proof to justify his claim that he paid N66.000.00 to the Cross-Respondent through one A. A. Kayode.

He referred the Court to paragraphs 24 and 25 of the Cross-Respondent’s Statement of defenee on page 0011 of the Record and maintained that from the averments in the two paragraphs, two sets of payments were made to the Cross-Respondent; the first N66.000 was made through Mr. Kayode while the second sum of N40.000 was made through Unity Chambers and Mr. Akin Adewale.

Learned Counsel further stated that while the one of N40.000 vide two cheques through Unity Chambers/Mr. Akin Adewale was returned to the Cross-Appellant’s Counsel and there is no averment that one of N66,000 through Kayode was returned.

He submitted that since these facts were not disputed by the Cross-Appellant, they are in law deemed to be admitted and therefore require no proof by way of evidence.

Learned Counsel further submitted that, assuming without conceding, issues were joined in the pleadings, it is necessary to look through the evidence pleaded before the trial Court to see if its conclusion flowed with the evidence.

Counsel for the Cross-Appellant referred the Court to the Cross-Respondent’s evidence-in-chief at page 0083 of the Record where the Cross-Respondent said-” …Mr. Kayode after 1st judgment came to me and said he was approaching me on behalf of the defendant I consented only if they could meet my terms. He made proposal which was not acceptable to me and brought some money as part payment …I refused the money since settlement out of Court had not been concluded. He said if I receive the money it will be part of the claim and will not have anything to do with the attempts to settle out of Court. He gave me out (sic) on various occasions totaling N66,000.00.”

Learned Counsel pointed out that the witness (Cross-Respondent) concluded as follows – “The defendant is entitled to the refund of the following out of the amount I am claiming namely:

1. N3,000.00 cash he gave me
2. N7,000.00 for louvers window.
3. N66,000.00 received from him Kayode

He submitted that the concision of the trial Court is wrong in the face of the evidence available to the Court as no witness said on record that the sum of N66,000.00 was returned by the Cross-Respondent to the Cross-Appellant.

Learned Counsel maintained that the conclusion of the trial Court was in error for two reasons:

(a) There was no joinder on the issue of N66.000.00 paid to the Cross-Respondent which he admitted that he received and as such needed no proof.

(b) There was evidence given by the Cross-Respondent that the Cross-Appellant was entitled to refund of not only N66.000.00 but also another sum of N7,000.00.

Counsel for the Cross-Appellant urged the Court to hold that the Cross-Appellant was and still is entitled to a set-off or refund of N66,00.00 + N7.000.00 which add up to a total of N73.000.00 had and received and acknowledged by the Cross-Respondent.

He further submitted that the trial Court erred in his evaluation of the evidence in this regard and urged this Court to interfere and correct this error by holding that the Cross-Appellant was entitled to set-off in the sum of N66.000.00 admitted by the Cross-Respondent as having received through Kayode SAN.

Learned Counsel also submitted that since the Cross-Appellant was forced out of the house on 31/2/95, he was denied his right of continued occupation for five months and therefore entitled to set-off the rent for this Period. He maintained that if the rant is assessed at N80.000.00 per annum for two years, the total is N160 000 00 which amounts to N6.666.00 per month which when multiplied by 5 months will be N33,3333 and if subtracted from N160,000.00 is N127,000.00.

He Submitted that this leaves the Cross-Appellant entitled to a refund of N90,400 and he urged the Court to set aside the trial Court, decision and order the Cross-Respondent to refund the sum of N904.00 to the Cross-Appellant.

In his response Counsel for the Cross-Respondent submitted that they admitted before the trial they received a total sum of N66,000.00 from the Cross-Appellant through Mr. Kayode SAN in piecemeal but that the two other cheques were returned and that they indicated their willingness to refund the above sum of N66,000.00 plus another sum of N7,000 making a total of N73,000.

He maintained that if the Cross-Appellant had wanted to legally claim the above sum of N73.000.00, he ought to have made a specific Cairn or set off in respect of the said sum bet he did not.

Learned Counsel submitted that the Court is not a Father Christmas and referred the Court to the case of:

Onwe Onu & ors. v Oke Agu & ors (1996) 5 SCNJ 74.

He further submitted that the Cross-Appellant’s submission that he was forced out of the premises was not supported by the evidence before the Court in that after the expiration of the two notices, the Cross-Appellant remained in the house for a period of one year and 11 months and he did not inform the Cross-Respondent that he was vacating the house at the time he did.

Counsel for the Respondent maintained that the Cross-Appellant’s assessment of the rent of N80,000.00 per annum has no basis in law since the Appellant, was no longer a tenant in the house after the expiration of the two notices and that what he should pay is the rental value or mesne profit and not rent.

Learned Counsel submitted that the claim of N904.00 was never asked for both in Cross-Appellant’s pleadings and in his evidence before the Court and consequently cannot succeed.

He further submitted that this Cross-Appeal is baseless and should be dismissed as the claims therein were never raised before the trial Court as the Cross-Appellant did not counterclaim or raised them as set off. He urged this Court to dismiss the cross-Appeal and allow the main Appeal.

Where a Respondent wants a reversal of decision, a part thereof, or any conclusion of fact in the decision, his proper procedure is by way of a Cross-Appeal. A Cross-Appeal is therefore like any other Appeal and accordingly is governed by the same rules as the main Appeal.

The rule is that a party who seeks to raise a fresh point on Appeal must in addition to seeking leave to Appeal or leave to file and argue additional Ground of Appeal were so necessary, expressly or specially ask for leave to raise on appeal a fresh 1Ssue that was not canvassed in the trial Court. See Kadzi Int’l Ltd. v. Kano Tannery Co. Ltd (2004) 4 NWLR Pt. 864 page 545;

Ajuwon v. Adenti (1990) 2 NWLR Pt. 132 page 271;

Yusuf v. UBN (1996) 6 NWLR Pt. 457 page 632;

Obioha v. Duru (1994) 8 NWLR Pt. 365 page 631.

The Plaintiff/Cross-Appellants Statement of Claim on page 0003 of the Record without the particulars of Claim is pertinent and is hereby reproduced as follows:

1. A declaration that the attempt by the landlord to eject the Plaintiff amounts to a violation of the terms of agreement entered into by the plaintiff as tenant and the Defendant as landlord on the 1st September, 1991.
2. A declaration that the various letters written to the plaintiff by the Defendant and his lawyers are unlawful and unconstitutional.
3. An injunction restraining the Defendant from ejecting the Plaintiff until his tenancy expires.

Alternatively, that the landlord provides the Plaintiff with suitable and convenient accommodation.”

A cursory look at the Cross-Appellant’s Statement of Claim reproduced above shows that the issues raised in the trial Court as well as the reliefs sought are not the same as those raised in the Cross-Appeal. Thus, the issues raised in this Cross-Appeal are fresh issues which ought to be canvassed or raised with the leave of this Court.

Since the Cross-Appellant failed to seek and obtain the necessary leave I am of the opinion that the issues as well as the reliefs sought goes to no issue.

In view of the above, I hold that this Cross-Appeal is lacking in merit, it ought to be dismissed and is hereby dismissed. The Appeal however succeeds in part.

There shall be no order as to Costs.

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Other Citations: (2010)LCN/3543(CA)