Alfred Yahaya V. Felix Chukwura (2001)
LawGlobal-Hub Lead Judgment Report
MANGAJI, J.C.A.
This is an appeal from the Judgment of S.O. Adagun, J. sitting in the Biu Judicial Division of Borno State, in Suit No. BU/18/89, dated 31/10/91, wherein the respondent herein, as plaintiff in the court below was awarded N15,000.00 (Fifteen Thousand Naira) general damages after his claim for special damages had been dismissed. As a passing remark, Adagun, J. had transferred his services from the Borno State Judiciary, to the Lagos State Judiciary, shortly after he had delivered this judgment now on appeal. Indeed, he has voluntarily retired from the High Court Bench, after having attained the statutory age of sixty five years.
Naturally, the appellant felt aggrieved with the award made by the court below of general damages after the main claim had failed. On 5/1/92 therefore the appellant filed, through his counsel a notice and grounds of appeal containing one ground of appeal. Much later on 15/5/2000 and upon an application filed on 17/2/2000, this court granted the appellant leave to file an amended notice and grounds of appeal containing five grounds of appeal. The lone ground of appeal in the original notice and grounds of appeal was incorporated in the amended notice and grounds of appeal. Thus, in all the appeal, contains five grounds of appeal.
In compliance with the rules of this court, parties, by their counsel filed and exchanged briefs of argument. Each party however, had to seek for and obtain extension of time to do so after the time allowed by the rules of court had expired. In his brief of argument, learned Counsel for the appellant identified three issues as arising for determination from the five grounds of appeal. The issues are the following:
(a) Whether the learned trial Judge was right in giving judgment on a statement of claim that was not before him.
(b) Whether on the pleadings and evidence adduced, the lower court, was right in giving judgment for the respondent in the sum of N15,000 as general damages.
(c) Whether the learned trial Judge was right in dismissing the appellant’s counter-claim moreso, that there was no defence filed by the respondent.”
On his part and as contained in the respondent’s brief of argument, learned Counsel also identified three issues for determination namely:
“(a) Whether from the record, it can be said that the respondent did not file a further amended statement of claim.
(b) Whether from the totality of the evidence before the court, the learned trial Judge was right in awarding damages of N15,000.00 to the respondent.
(c) Whether the appellant proved his counter-claim and was entitled to judgment.”
For a just disposition of this appeal, I shall consider the arguments of both learned Counsel on their respective issues. I shall however, consider the issues together such that issues identified by learned Counsel for the appellant shall be considered along with the corresponding issues formulated by learned Counsel for the respondent as it appears clear that the corresponding issues seem to address the matters in difference in the light of the perception of learned Counsel. The conclusion one would arrive at however. would settle the issues without the necessity of having to view them separately.
The facts which gave rise to the suit before the court below are themselves product of another suit. The defendant at the court below (the appellant herein) inherited from his deceased father, a landed property. The property was being occupied by the plaintiff, who established and operated hotel business therein even before the death of the defendant’s father. The plaintiff continued to be the tenant of the defendant, after the latter had inherited it. Sometime in the year 1987, the defendant increased the rental amount from N2,000.00 to N8,000.00 per annum. As the plaintiff would not have it, the defendant issued him with a quit notice. Having failed to quit and deliver up possession, the defendant sued him at the Upper Area Court, Biu seeking for the recovery of the premises. Judgment was given in his favour and the plaintiff was ordered to vacate the premises immediately. This the plaintiff did.
Be that as it may, the plaintiff was not satisfied with the said judgment of the Upper Area Court. It seems as a result, he appealed against the judgment at the court below. Almost simultaneously, he filed an application at the said High Court praying to have the judgment of the Upper Area Court (which incidentally had been executed) stayed. The learned trial Judge granted the application. When the defendant failed to return the keys of the demised premises as ordered by the court below, the plaintiff filed yet another application seeking to commit the defendant for being in contempt of the court order. Realising the looming danger in which he would find himself, the defendant obliged. The order of the court below dated 25/9/87 staying the execution of the judgment of the Upper Area Court was only complied with on 25/7/88. Informed by the above, the plaintiff filed the suit giving rise to this appeal seeking for special damages as itemised in the plaintiff’s amended statement of claim, dated 30/8/89 being loss of earning occasioned by the failure of the defendant to handover the keys to the demised premises as ordered by the court below. Paragraph 19 of the said amended statement of claim dated 30/8/89 gave particulars of the items of special damages claimed. I reproduce it hereunder:
“That the plaintiff by reason and in consequence of the defendant action has suffered loss of earning as a Hotelier from the said premises as from the 25th September, 1987, to the 5th day of July, 1988, and claim as follows:
(a) The sum of N57,570.00 being special damages sustained due to the loss of earning for the use of the premises as a hotel and itemised as:
(1) Five lodging rooms at the rate of N3 per room as from 25th September, 1987 – 5th July, 1988 (285 days) == N4,275.
(2) N90 daily for the sale of beer as from 25th September, 1987 – 5th July, 1988 == N25,650.00
(3) N60 daily for the sale of soft drink as from 25th September, 1987 to 5th July, 1988 == N17,100.00
(4) N5 daily from the restaurant as from 25th September, 1987 to 5th July, 1988 == N1,425.00 (5) N30 daily for the sale of hot drink for the same == N 8,550.00
(6) N2 daily from the sales of the provisions for the same period. N 570.00
TOTAL == N57,570.00
Plus the cost of this proceeding including the counsel professional charges.”
In response to the suit, the defendant filed a statement of defence incorporating a counter-claim on 8/9/89. From the record, it does appear that the plaintiff did not file any reply or defence to the counter-claim and the suit was fought as such at the court below. Evidence was led on both sides at the end, of which learned Counsel made their submissions viva voce.
After considering the whole case, the learned trial Judge dismissed the plaintiff’s claim for his case. He however, granted special damages on the ground, that he had failed to prove the plaintiff general damages in the sum of N15,000.00. He gave reason why he had to award the general damages. Said he, at page 20 of the judgment:-
“In the age old celebrated case of Hardly v. Baxendale (1854) Exch 341, the rule had been laid down that defendant would be liable for the actual loss caused by him, provided that, in light of the knowledge actual or constructive possessed by him at the time of the contract he ought reasonably to have foreseen that the loss of earning was likely to occur by his act in breaching the contract.
As in this case, the defendant knowing fully that the plaintiff had been using the premises for hotel business for over seven years ought to have known that by his interference with his business without giving him sufficient notice to quit his premises would result to his loss of his earning.
As this has been proved by preponderance of evidence, the plaintiff will be entitled to the general damages of N15,000 as reasonably assessed by this court.”
The learned trial Judge also adverted to the counter-claim and dismissed it for want of evidence. The defendant felt thoroughly aggrieved. He accordingly, filed his appeal. Henceforth, I shall refer to the defendant as “appellant” and the plaintiff as “respondent” accordingly.
The corresponding issues for determination seek an answer to the question, whether a further amended statement of claim was infact filed and whether the judgment of the court below was based on a statement of claim that was not before it. In arguing the issue, learned Counsel recounted how the respondent who had filed a statement of claim dated 16/3/89, sought for and was granted leave to amend it. That as a result the respondent filed an amended statement of claim dated 30/8/89. Learned Counsel further recalled that in the course of proceedings, respondent again applied for and was granted leave to further amend the amended statement of claim but that no such pleading was ever filed. He pointed out that the learned trial Judge in his judgment alluded to another statement of claim filed on 12/6/91 and upon which he based his judgment. He submitted on the above score that failure to file a further amended statement of claim for which leave was duly sought and obtained left the respondent without any valid pleading. In other words, he contends that the grant of leave to file a further amended statement of claim tantamount to abandoning the amended statement of claim. He submitted therefore, that there was no pleading on the side of the respondent and that evidence adduced by him accordingly went to no issue as a party is generally only permitted to adduce evidence in support of his pleading. He cited and relied on the cases of Sadhwani v. Sadhwani (Nig.) Ltd. (1989) 2 NWLR (Pt. 101) 72 at 79 and Umenyi v. Ezeobi (1990) 3 NWLR (Pt. 140) 62.
Continuing in submissions, learned Counsel said the reliance placed by the learned trial Judge on a further amended statement of claim in coming to findings as he did occasioned complete failure of justice. He reasoned that since the respondent had no pleading in the eyes of the law, the only option open to the court was to dismiss the suit. He urged the court to hold that there was no valid statement of claim upon which evidence would be called in proof.
On his part learned Counsel for the respondent argued that the learned trial Judge was perfectly right in basing his judgment on the further amended statement of claim. He submitted that apart from the amended statement of claim there were two further amendments to it even though the amendments are not contained in the record of appeal. Learned Counsel referred to the order of court, dated 20/9/90 and submitted that it was based on that that the respondent filed a further amended statement of claim incorporating the defence to the counter-claim. He contended also that the court below infact referred to yet another amendment to the statement of claim filed on 10/5/91 and to which learned Counsel for the appellant referred to in his final address. Continuing with the discovery of more amendments to the statement of claim, learned Counsel said the learned trial Judge had also acknowledged another filed on 12/6/91, which was endorsed with a counter-claim. Learned Counsel reasoned that with all the references made to the amendments above by the learned trial Judge, there is a presumption of regularity namely that the pleadings were amended as recounted. He relied on Q. v. ljoma (1960) WNLR 130 and Amako v. The State (1995) 8 NWLR (Pt.399) 11 at 17. He submitted that even if leave was granted (as indeed it was) to the respondent to amend his pleading dated 30/8/89, failure to so file an amendment in compliance with the leave does not render the last subsisting pleading invalid in the absence of an express application to withdraw it. He relied on Agbahomowa v. Eduyegbe (1999) 2 SCNJ 94 at 102; (1999) 3 NWLR (Pt.594) 170, on the principle that where a pleading is amended with leave of court the pleading so amended does not cease to exist as it still forms part of the proceedings. He therefore, submitted that it was erroneous to assume that the further amended statement of claim, dated 30/8/89 is rendered invalid. He urged that the issue be resolved in the favour of the respondent.
I must from the onset acknowledge that, the record of appeal as compiled contained an amended statement of claim dated 30/8/89. Infact that is the only pleading to be found in the record as filed by the respondent. The appellant on his side filed a statement of defence, dated 8/9/89 which incorporates a counter-claim. It is remarkable that the counter-claim was not addressed at all in the amended statement of claim. It does appear from page 25 of the record of appeal that on 20/9/90, the court below had granted the respondent leave to amend his amended statement of claim dated 30/8/89. He was granted seven days from the date of the order to file a further amendment to the amended statement of claim. This the respondent failed to do. In order to justify an obviously unjustifiable act Mr. Babati for the respondent made the below quoted submissions.
“Babati – The defence counsel submitted that we have not filed the amended statement of claim and the defence to the counter-claim as ordered by this court on the 20/9/90, to file the same within 7 days. I submit that 7 days start from 21st of September, 1990, expired by 2/10/90, because 20th September, 1990, ends on the 1/10/90, which was public holiday. When the order was given, I drafted the amended statement of claim and defence to counter-claim and gave it to Chief Superintendent of Police to give it to the plaintiff so that it could be filed in court. The plaintiff informed me that he filed the papers on the 2/10/90 and official receipt R.C.R. No. 300812 was issued to him since the papers had been filed, and the defence had not received the amended statement of claim but acknowledge the receipt to the counter-claim. It is our submission failure to serve him with the amended statement of claim is the fault of the Registry and not our own fault.”
One needs put no industry at all to see how scraggy the reasoning of learned Counsel is. If the respondent was ordered to file an amendment to the amended statement of claim within 7 days from 20/9/90, the order should be complied with latest, on 28/9/90. Even if there was an intervening Sunday, which is an excluded day the process should have been filed on 29/9/90. This is because by the provision of section 6(b) of the Interpretation Law, Cap. 52 of the Laws of Northern Nigeria, 1963 (applicable to Borno State) in computing time for the purpose of any law, if the last day of the period is Sunday or a public holiday, the period shall include the next following day. Thus, Sunday or public holiday is an excluded day. So when the respondent filed an amendment by virtue of the court’s leave only on 2/10/90, it becomes clear as crystal that the order was not complied with and the process so filed is rendered invalid.
It is idle to contend as Mr. Babati did that an order made on 20/9/90, granting leave to file a process within seven days from that date would expire only on 2/10/90. That is an astonishing reasoning to say the least. In any case the further amendment to the amended statement of claim upon which much furore is raised is not contained either in the main record of appeal or the supplementary record. Since the amendment of 2/10/90, alluded to does not infact exist in the record of appeal or anywhere for that matter, reference to it, just as reference to amendments filed on 10/5/91 and 12/6/91, are absolutely irrelevant. They are simply speculative make belief. The reliance placed by learned counsel for respondent on presumption of regularity is ill-founded and misconceived. Learned Counsel himself failed to point out any application moved by the respondent for which leave was secured and as a result of which the purported amendments filed on 10/5/91 and 12/6/91 are based. Infact, learned Counsel only referred to the amendments because the learned trial Judge made reference to them. The truth however is that they do not exist in fact. Learned Counsel vehemently supports their existence not because they are infact shown to be in existence but because the learned trial Judge in his judgment alluded to them. Even if they do exist (although there is no evidence to that effect) they could not have been valid pleadings since they purport to be amendments to processes of court in respect of which no leave was sought and obtained. Pleadings properly filed are only amended when leave to do so is duly applied for and expressly granted by the court. It is not a matter of free for all or a process by which a party with fine tricks on his side would overreach the other.
Each step taken in our adversarial system is governed by the rules of court. As far as this appeal is concerned, the only valid and subsisting pleadings upon which parties contested the suit at the court below, are the amended statement of claim dated 30/8/89 and the statement of defence dated 8/9/89, which incorporates a counter-claim.
I do not share the view of learned Counsel for the appellant, that the grant of leave to the respondent to further amend his amended statement of claim presupposes the withdrawal of his said amended statement of defence. Far from it, the respondent’s pleading is very much valid and subsisting and shall be used until the amendment is effected in terms of the order and within time. Where, as in this case, the respondent had failed to file any amendment as duly applied for and granted within the time specified by court, the pleading intended to be amended shall subsist. The pleading only becomes irrelevant when it is expressly withdrawn and accordingly struck out. But even where a statement of claim or defence is amended with leave of court, it does not ipso facto cease to exist. It still forms part of the proceedings and the court cannot shut its eyes against it. See Aghahomova v. Eduyegbe (supra) cited by learned Counsel for respondent.
Having said that and in the light of the issue raised, the learned trial Judge was in very grave error in referring to and relying on further amended statement of claim dated 10/5/91 and another filed on 12/6/91, in his judgment when there was no prior leave sought and obtained from the court to so amend and when the amendments alluded to infact are not contained in the proceedings of the court below. The amendments to the amended statement of claim in respect of which the learned trial Judge, so much devoted considerable energy do not infact exist. They exist only in his imagination. My answer to the first issue identified by the appellant is in the negative. That also settles the first issue identified by the respondent in the affirmative, since from the record the respondent did not file any further amended statement of claim.
The second issue for determination posits the question whether from the pleadings and the evidence adduced, the court below was right in giving judgment for the respondent in the sum of N15,000.00 as general damages. In arguing the issue, learned Counsel for the appellant referred to paragraph 19 of the amended statement of claim and stressed that the respondent’s claim was for special damages clearly itemised therein. Learned Counsel submitted that the respondent had failed to prove any and all the items of special damages, He drew his conclusion from the evidence of 4th PW, 6th PW and 7th PW and said that all of them failed to establish the various items of special damages, He cited a number of decisions on the strict nature of proof of items of special damages including A.-G., Oyo State v, Fair Lakes Hotels (No,2) 1989) 5 NWLR (PU2l) 255 at 278; Okoronkwo v. Chukwueke (1992) 1 NWLR (Pt.216) 175 at 194 and Osuji v. Isiocha (1989) 3 NWLR (Pt.11) 623, Learned Counsel submitted that because the respondent had failed to prove the special damages he claimed, there was no basis for the trial court to have awarded him general damages. Learned Counsel stressed that even if it was the statement of claim purportedly filed on 12/6/91 that was used by the court below, it was immaterial that the respondent claimed general damages when infact the heads of the claim are for anticipated profits and are therefore items of special damages, He submitted on the above score therefore, that going by the evidence before the court below, the learned trial Judge was in error in his finding that the failure of the appellant to hand over the keys of the disputed property as ordered by the court had caused the respondent loss of earning. He urged this court to allow the appeal on this ground.
In arguing the issue and as contained in the brief, learned Counsel for the respondent firmly stressed that learned Counsel for the appellant only belaboured the issue of proof of special damages. He said the learned trial Judge had put in clear focus the need far strict proof of items of special damages, That he accordingly, held that paragraph 19 of the statement of claim was not proved, Learned Counsel continued and argued as hereunder, reproduced viz:
“It is imperative to submit that the learned trial Judge was handicapped in awarding damages for loss of earnings as claimed, not because he did not believe the respondent’s case, Rather, the respondent could not have the benefit of this award because as it happened, his business was not yet sophisticated as to properly document daily sales and earnings in either of the items claimed, that could be examined by the court and opposing party,”
In continuation, learned Counsel recapitulated the findings of the court below and submitted that the award of N15,000.00, general damages made by the court was proper moreso that the court applied the correct test of causation and foresee ability of the damages eventually occasioned. He submitted that an award of damages by the court needed not be based on positive findings of fact. He cited and relied on Ijebu-Ode Local Government v. Balogun & Co. (1991) 1 NWLR (pt.166) 39 at 158. He further referred to few other authorities on the import of general damages and the basis of its assessment.
Learned Counsel found the submission of the appellant that the respondent had found an alternative business premises almost immediately, as absolutely unhelpful since all that the respondent did was to mitigate the loss as the law expected him to do. He urged that the appeal be dismissed on this issue.
Perhaps it is just to point out that both learned Counsel are in agreement that the learned trial Judge had dismissed the special damages claimed by appellant and as contained in paragraph 19 of the statement of claim. In arriving at that finding and in order to justify the award of general damages, the learned trial Judge found as follows at page 19 of the record:
“However, as there is credible evidence from the plaintiff that immediately the Biu Upper Area court ordered for the plaintiff (sic) eviction from the premises and he had established a new Unity Hotel and had resumed his hotel moreover, the record for the sale of all items stated in the paragraph 19 of the statement of claim could not be tendered, as there is no record kept, plaintiff would only be considered for the claim on general damages, which the statutory notice of six months could have been given to the plaintiff for determining the tenancy agreement.”
Learned Counsel for the respondent himself, realising that the respondent claim for special damages had been dismissed by the learned trial Judge emphasized as follows at page 5 of the brief:
“Appellant’s counsel in this issues (sic) is entirely misconceived in that he failed to affirm that the learned trial Judge equally appreciated the strict proof required to sustain a claim on loss of earning and consequently – declined to award same to the respondent.”
(Underlining mine)
Based on the above, I too, find the much laboured argument about the failure of the respondent to prove the items of special damages he claimed as a worthless exercise. The learned trial Judge himself found the claim unproven and accordingly dismissed it. Reference to whether the special damages had been proved, in my judgment is but only much-talk-about-nothing.
Be that as it may, from my discussions on issue No.1, I arrived at a clear decision that the latest amendment to the statement of claim on which the respondent’s case stands is the amended statement of claim dated 30/8/89. There is no further amendment to it even though the court below had, on 20/9/90, granted the respondent seven days from that date within which to file an amendment to the amended statement of claim. That was not to be because none was filed before, the expiry of the seven days. All the amendments referred to in the judgment like the amendments of 10/5/91 and 12/6/91, are but old woman’s tale. They do not exist either as court orders or in fact none of the amendments actually exists in the record of appeal and both learned Counsel appear to appreciate their purported existence only from the judgment. The learned trial Judge, with all due respect to him, did not help matters as he only referred to the amendments by the dates they were made without saying what they are all about or when they were sought for and granted by the court. But from the record before this court the only last valid and subsisting amendment to the statement of claim is the amended statement of claim dated 30/8/89.
Attention should now be drawn to the propriety of granting reliefs by courts of law. With specific reference to special and general damages, there is no doubting that they must be claimed and specifically averred. A claim or relief, it must be emphasized, has to be proper, precise and certain. A claim for general damages, must be averred and should be shown to have been suffered although the quantification of the measure of damages is entirely a Jury question. Therefore, before a court of law grants any relief, it must infact be one that has been claimed. See Nwobosi v. A.C.B. Ltd. (1995) 6 NWLR (Pt. 404) 658; West African Shipping Agency v. Kalla (1978) 3 SC 21; Badmus v. Abegunde (1999) 11 NWLR (Pt.627) 493 at 504. It has been emphasized in a long line of decided authorities that courts ought not grant reliefs that are not sought for except of course those reliefs that are ancillary or incidental in order to make the relief effectual. See Atanda v. Lakanmi (1974) 3 SC 109; Okhideme v. Toto (1962) 2 SCNLR 8; (1962) 1 All NLR (Pt.1) 309; Oyediran v. Amoo & Ors.(1970) 1 All NLR 313 at 317; Omoboriowo v. Ajasin (1984) 1 SCNLR 108at 131; Ademola v. Sodipo (1992) 7 NWLR (Pt.253) 251.
With reference to the appeal at hand, there is no doubting the fact that the respondent did not claim any relief in the nature of general damages. I have elsewhere in this judgment, reproduced the claim of the respondent. He only itemised the heads of the special damages he was claiming but said nothing about any claim for general damages. Since therefore, the respondent did not ask for general damages, there was no basis for the court below to have granted him one. The respondent clearly lost on all items of special damages he claimed. The learned trial Judge, rightly too in my view, dismissed the claim. Having lost on all the items of special damages, he cannot be presumed to have lost anything which the law would presume to flow in his favour deserving compensation in the nature of genera] damages. See U.B.A. Ltd. v. Achorn (1987) 1 NWLR (Pt.48) 172; Nzeribe v. Dave Eng. Co. Ltd. (1994) 8 NWLR (Pt.361) 124; 140; UBN Plc. v. Odusote (1995) 9 NWLR (Pt.421) 558; Onwu v. Nka (1996) 7 NWLR (Pt.458) 1.
Taking into consideration the award made by the court below in respect of which the respondent made no claim, the whole of the award made is gratuitous. Indeed, the award was made because the respondent lost on his items of special damages and the learned trial Judge felt it expedient to compensate him for the losses he suffered in his projected earnings. As records, the reasons for the learned trial Judge himself found at page 20 of the award of general damages are primarily because:
“In the old celebrated case of Hardley v. Baxendale (1854) 9 Exch. 341, the rule had been laid down that defendant would be liable for the actual loss caused by him, provided that, in light of the knowledge actual or constructive possessed by him at the time of the contract he ought reasonably to have foreseen that loss of earning was likely to occur by his act in breaching the contract. As in this case, the defendant knowing fully that the plaintiff had been using the premises for hotel business for over seven years ought to have known that by his interference with his business without giving him sufficient notice to quit his premises would result to his loss of earning.
As this have (sic) been proved by preponderance of evidence, the plaintiff will be entitled to the general damages of N15,000.00 as personally assessed by this court.”
Although the case of Hardley v. Baxendale discussed above, drew attention to actual loss suffered (which is a matter of special damages) nevertheless the learned trial Judge used the principle to justify the award of general damages, which in the first place was not claimed for, after having found the claim of special damages unproven. Clearly, the award is made as a restitutio ill opulalltum, coming as it was, as a windfall in order to compensate the respondent for having failed to prove his items of special damages. I am of the view therefore that this court ought to interfere with the award of general damages made by the learned trial Judge. This is so particularly because the award was not premised on any claim in the pleading at all. A court of law not being a charitable organisation would under no circumstances grant a relief which is neither claimed nor pleaded by the party in whose benefit it is awarded. See Edebiri v. Edebiri (1997) 4 NWLR (pt. 498) 165; Otanioku v. Alli (1977) 11-12 SC 9; Ilodibia v. Nig. Cement Co. (1997) 7 NWLR (Pt.512). Neither can it be said that it was an ancillary or incidental claim, since at any rate all the items of special damages claimed had failed.
It appears plain from the argument of learned Counsel that they are based on the false premise that there is a relief claimed by the respondent in the nature of general damages. Counsel are clearly oblivious of the reality of the pleading of the respondent, who did not find it expedient to ask for any general damages. It is accordingly unnecessary for me to consider arguments that are pitch forked on the view that there is a valid relief made for general damages. For all that I have said above, I hereby set aside the award of the sum of N15,000.00 as general damages. Issue No. II therefore, is answered in the negative. Consequently grounds 1, 3 and 4 from which the issue is formulated accordingly succeed.
The third and last issue, is whether the learned trial Judge was right in dismissing the appellant’s counterclaim. Learned Counsel for the appellant who recounted the claim in the counter-claim, pointed out that there is no reply to the said counter-claim. He submitted therefore, that where a counter-claim is served and the defendant fails to serve a reply to it, he is deemed to have admitted all the averments therein contained and that no evidence need be called in proof of it. He referred to Orah v. Nyam (1992) 1 NWLR (Pt. 217) 279 at 286. He urged this Court to allow this issue and enter judgment for the appellant on his counter-claim.
On his part, learned Counsel for the respondent referred to page 2 of the supplementary record and page 25 of the main record and submitted that the respondent had filed a reply to the counter claim. May I here say parenthetically, that page 2 of the supplementary record does not show that there was a defence filed to the counter-claim. Rather, it is a casual passing remark made by the learned trial Judge who referred to an amendment made to the statement of claim containing a reply to the counter-claim filed on 12/6/91. However, that purported amendment was the one I found to exist only in the imagination of the court below. As I have already found, that amendment was never sought for and/or granted by the court below. Most seriously, the amendment does not exist infact. It is neither contained in the record of appeal nor has any of the parties or the court below appears to know of its existence. That explains why beyond the purported filing of it on 12/6/91, nothing is known about it. The only known amended statement of claim is that dated 30/8/89. It is remarkable to note that that amendment contains no reply to the counter-claim.
Learned counsel further submitted that the respondent had led evidence on his defence to the counter-claim without objection and that that showed the existence of the reply to the counter-claim. He submitted in the main that the appellant had failed to prove the counter-claim by credible evidence.
Learned Counsel had an alternative submission. He said, assuming without conceding that there was no defence filed to the counter-claim, the appellant had led credible evidence to warrant getting judgment in his favour. He urged this court to affirm the dismissal of the counter-claim.
The conclusion I reached earlier on in this judgment is that, the respondent had filed no reply to the counter-claim as can be found from the record of appeal. Even if it were possible to bend over back wards, to accommodate the purported amendment to the amended statement of claim said to have been filed on 12/6/91, the reality is that it does not infact exist. It cannot be found anywhere in the record and it is anybody’s guess what the reply is. Thus, the only valid and subsisting pleading of the respondent is the amended statement of claim dated 30/8/89 and that amendment contains no reply to the appellant’s counter -claim. It must be emphasized that a counter-claim, for all intents and purposes is a separate and independent action and it is joined to the main suit only for reason of convenience and speed. See Oyegbola v. Esso W.A. (1966) 1 All NLR 170; Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt.220) 647 at 675. Thus, where the defendant incorporates in his statement of defence a counter-claim, the plaintiff is duty bound to file a reply in defence to the counter-claim. This is because a counter-claim in law is treated as a separate and independent action. See Hassan v. Reg. Trustees of the Nigerian Baptist Convention (1993) 7 NWLR (Pt. 308) 679, where the plaintiff fails to file a reply to the counter-claim, as in this appeal, the court is entitled to assume that there is no defence to the counter-claim and in an appropriate case, may enter judgment for the defendant accordingly. It is understandable because where the plaintiff has failed to file a reply to the counter-claim it becomes clear as crystal that no issue is joined that is triable and the court may, in the circumstance, enter judgment for defendant, especially where the defendant moves the court for judgment in terms of the counter-claim.
I must however say that the case of Orah v. Nyam (1992) 1 NWLR (Pt.217) 279 at 284 so heavily relied upon by learned Counsel for appellant is no authority for the proposition he advanced that where the Plaintiff failed to file a reply to the counter-claim, no evidence need be called in proof of the counter-claim. It all depends on the nature of the claim and the view of the trial Judge as to whether evidence ought be adduced. Where the counter-claim is for a declaratory relief, the defendant has to lead evidence that satisfies the trial Judge that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence. See Ogbonna v. A.-G., Imo State (supra).
I keep in my mind’s eyes, the fact that the respondent has not applied for judgment in default of reply to the counter-claim. In my judgment, the learned trial Judge was right in allowing the appellant to lead evidence on his counter-claim and to assess the evidence in the light of the pleading, since it is not the law that a defendant shall get judgment in his favour, on his counter-claim once the plaintiff fails to file a reply.
Learned Counsel for respondent appears to make heavy weather of the evidence led by the respondent on his purported reply to the counter-claim. He said because there was no objection to the admission of the evidence, it cannot now be questioned and that the court below was right in relying on it to dismiss the counter-claim I think, nothing can be further from the truth. The law is that where evidence is adduced or attempted to be adduced on facts not pleaded, such evidence should not be allowed to be given. And where the evidence is given, it should be discountenanced or expunged. See Njoku, & Ors. v. Eme & Ors (1973) 5 SC 293; Okafor & Ors. v. Okitiakpe (1973) 2 SC 49; Emegokwue v. Okadigbo (1973) 4 SC 113; Onamade v. ACB Ltd. (1997) 1 NWLR (Pt. 480) 123; Shell Dev. Co. v. Ambah (1999) 3 NWLR (Pt.593) 1; Alli Otaru & Sons Ltd. v. Idris (1999) 6 NWLR (pt. 606) 330. So it is immaterial that the appellant had raised no objection, when the respondent led evidence in proof of facts that have not been pleaded as no reply was filed in defence of the counter-claim.
The counter-claim in question, for ease of reference, is hereunder reproduced vide:
PARTICULARS OF COUNTER-CLAIM
“The defendant claims from the plaintiff the sum of N13,333.28 (Thirteen thousand, three hundred and thirty three Naira twenty-eight kobo), being arrears of rent owed the defendant by the plaintiff at the rate of N8,000 (Eight thousand Naira) per annum, for the period of May, 1987, to December,1988 and mense profits at the rate of N666.66k (Six hundred and sixty-six Naira, sixty-six Kobo) monthly for the period January – 1989 to June, 1989.
The plaintiff had been defendant’s yearly tenant in the premises House No. H.M. 608 Birikuthi Bin at the yearly rent of N2,000 till April, 1987, when defendant reviewed the rent to N8,000 yearly, whereupon plaintiff failed, delayed and refused to pay the rent and still occupied the premises till December, 1988, when defendant through his Solicitors, served him notice to quit, but still occupied the premises till June, 1989, when plaintiff gave up possession of the said premises.
The defendant also claim general damages from the plaintiff in the sum of N30,000 (Thirty thousand Naira) and the cost of this suit.
The defendant shall rely on the statement of facts in this defence.”
While giving evidence on the counter-claim, DW1 so well made out his case on how he unilaterally increased the rents. The evidence as contained at pages 17 & 18 of the record of appeal is hereunder reproduced. Viz:
“As earlier on testified, the plaintiff has been my tenant before 1/6/87. The rent for the premises was N1,200 per annum, I increased the rent to N8,000 per annum. The plaintiff left the premises in June, 1989, that is, he gave up the possession of the premises. Up till June,1987, the rentage of the premises was N8,000; since I increased the rent, the plaintiff has not paid me. I gave him quit notice on the 20/11/88. He replied to the notice to quit on the 5/1/89, that the matter is over and he had ceased to be tenant from that, and he received the notice in good faith. Since he replied to the notice to quit, he has never or did not vacate the premises. He vacated the premises in June, 1989. I want the plaintiff to pay me the rent arrears from May, 1987 to June, 1989. I want him also to pay the General damages, +xmn. by Mr. Babati- I did not collect advance payment of N12,000 from the plaintiff for the rent of the premises. I did not write a letter admitting that I collected money of N2,000. I remember writing a letter to the plaintiff increasing rent from N1,200 to N8,000. I can remember the letter Exhibit ‘AA’ was the one written by me for increasing the rent. I have no reason why I did not take the possession of the premises but he did not vacate the premises by then. I remember in July, 1988, the court ordered me to release the key of the premises to the Registrar of this court and I did not. I remember I have applied to this court on the 29/5/89 and collected the keys of the premises on the 29/5/89, or in July, 1989. The plaintiff vacated the premises in June, 1989. Since the Upper Area Court ordered the plaintiff to vacate the premises and the High Court ordered in July, 1989, the hand over of the keys to the plaintiff who has been in physical possession of the premises. The keys I handed over to the Registrar of this court, are the actual keys for the premises. I never allowed him into the premises whereas the key of the premises are with me. I did not take him to Rent Tribunal before I increased the rent from N1,200 to N8,000.00”
The above pieces of evidence were neither challenged nor controverted. The evidence led by the respondent purportedly in line with a reply to the counter-claim that was not filed is understandably of no moment for the evidence cannot, by any shred of imagination be said to be legally admissible. I discountenance the evidence. The obvious syllogism is that the evidence led by the appellant on his counter-claim stands unchallenged.
The findings of the learned trial Judge based on the unchallenged evidence of the appellant also in my view, are sound. The learned trial Judge found as follows at pages 20 to 21 of the supplementary record of appeal:
“With regards to the counter-claim of the plaintiff, there is no positive evidence that the parties – plaintiff and defendant, ever agreed with the proposal of the reviewing rent of N8,000 put up by the defendant before the defendant instituted the action against the plaintiff in the Upper Area Court, Biu. It was true that defendant made an offer of new rent of N8000 to be paid by the plaintiff but the offer has not been accepted by the plaintiff, hence he requested for notice from the landlord to quit the premises. The advance of N2000 made to the defendant by the plaintiff ipse dixit was not the rent and it was not agreed that it would be a rent which would establish a new tenancy agreement between the parties. The amount N2000 was different from what had been agreed before. (See the case of Alhaji R. A. Afolabi Trading as Ofolodum, Bros. v. Polythera Industries (Nigeria) Ltd (1977) 1 All NLR). An offer cannot be accepted by any one, except the person to whom it is made and acceptance means the assent of that person signified in the mode required by the terms of the offer. See Halsbury Law of England, 3rd Edition page 72.
There as there was no breach of any contractual obligation on the parties of the plaintiff that he would pay N8000 per annum as offered by the defendant, the arrears of rent claimed in that respect could not be sustained.
If the defendant has properly determined the tenancy agreement in accordance with the law, that is, in accordance with section 8 of the Recovery of Premises Act, as there were no express agreement between the plaintiff and defendant, at any rate, no deed of agreement was tendered by either side, stipulating the notice which ought to be given before the determination of the tenancy agreement; therefore, statutory notice of six months half yearly notice, could have been given. And since the defendant held on the keys of the premises when he was asked to be delivered, to the Registrar of Upper Area Court, Biu for the enlargement collection of the plaintiff and refused to do so. I could not see in what way he could claim mesne profits on his counter-claim. It is therefore dismissed for want of evidence.”
I hold the view that the above decision is right. So also are the reasons given. If the appellant had unilaterally increased the rents which had not been accepted by the respondent, there seems to be no justification for the respondent to be asked to pay rents above the amount the parties were in agreement. As things are, the learned trial Judge was right in holding that there was no breach of contract. I also share this view. For the reason of non tendering of the tenancy agreement, I too would agree with the learned trial Judge on his finding reacting to the claim for mesne profit. Issue No.3 is hereby answered in the affirmative. Thus, the issue is resolved against the appellant. Accordingly, ground 5 of the grounds of appeal from which it is formulated fails.
On the whole, this appeal succeeds in part. It is allowed in its entirety as it affects the main suit at the court below and is dismissed as lacking in merit as it affects the counter-claim before the court below. As far as the main suit in suit No. BU/18/89 before the High Court of Borno State is concerned, the judgment of Adagun J. dated 31/10/91, is hereby set aside. In its place, there shall be judgment dismissing the respondent’s case before the court below. The said judgment however, is hereby affirmed as it affects the counter-claim in the suit.
The appellant is entitled to costs, which I assess and fix at N4,000.00.
Other Citations: (2001)LCN/0968(CA)
