Alhaji Adamu Hamidu & Anor V. Sahar Ventures Ltd. (2003)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the judgment of Bauchi State High Court of Justice, dated 14th May, 1997, delivered by J. C. Ozoh, J. The respondent in this appeal was the plaintiff in the court below, while the two appellants herein were the defendants thereat. By a writ of summons dated 23/9/1994, filed by the plaintiff at the lower court in suit No. BA/257/94, the plaintiff claimed a declaratory and injunctive reliefs and the sums of fifty thousand naira (N50,000.00) and thirty-three thousand, four hundred naira (N33,400.00) as general and special damages respectively.

After filing the writ, the court below became engaged in taking some interlocutory applications, until 28/11/94, when it ordered the parties to file their pleadings. Pleadings were thereafter filed and exchanged. The plaintiff filed its statement of claim dated 2nd of December, 1994, whereas the defendants filed their copious joint statement of defence dated 12th December, 1994. It is however, instructive to note that in the statement of claim which obviously supercedes the writ (See case of A.C.B. Ltd. v. Eagle Super Park (Nigeria) Ltd. (1995) 2 NWLR (Pt. 379) 590 SC) the plaintiff maintained its declaratory and injunctive reliefs contained in its writ but enhanced or increased the amounts claimed as general and special damages and also included claim of breach of contract not contained in its writ of summons.

The claims made in the statement of claim filed by the plaintiff/respondents on which the suit was fought by the parties are reproduced underneath. They are:
“(a) A declaration that the revocation of the lease/tenancy agreement between the plaintiff and the 1st defendant by the 1st defendant is wrongful, illegal, null and void.
(b) An injunction restraining the defendants either by themselves, their agents, servants and privies from further discharging petroleum products or trespassing into the petrol filling station at Kano Road, Ningi, until proper termination of the lease/tenancy agreement.
(c) The sum of N100,000.00 being general damages for costs of trespass committed by the defendants on the 20/9/94 and 26/9/94 by forcefully entering and discharging diesel and petrol at the petrol filling station situates at Kano Road, Ningi, Bauchi State.
(d) The sum of N50,000.00 being damages for breach of contract by the defendant.
(e) Special damages for loss of use of the petrol filling station at Kano Road Ningi, occasioned by the defendants and assessed at N1,140,480.00 commencing from July, 1994 to 31st March, 1995, when the lease/tenancy agreement would terminate by effusion of time.”

The facts that gave rise to this appeal are summarised as below. The plaintiff/respondent company was engaged in marketing of petroleum products even though it was neither an independent nor major marketer and had no petrol filling station of its own. It approached the first defendant/appellant who owned a filling station along Kano Road in Ningi, Bauchi State covered by a Certificate of Occupancy No. BA/7847 issued to him by Bauchi State Government for a 40 year term beginning on 13/12/1982. By a deed of sub-lease dated 3/10/1992, the filling station was leased to the plaintiff by the 1st defendant/appellant for a term of two years at an annual rent of N25,000.00 per annum to take effect from 1/1/1993 and N50,000.00 rentage was paid to the defendant by the plaintiff for the two years.

As it has been one of the regulations of the NNPC that only an independent or major marketer that can license a petrol filling station and since it was neither major nor independent marketer, the plaintiff/respondent contracted with the 2nd defendant/appellant an independent marketer to license the petrol filling station under a written agreement. The latter processed and acquired a license for the filling station dated 29/1/1993 and the parties after obtaining NNPC’s permission commenced business in earnest. On 31/1/94 a “Proprietary agreement” was entered into between the plaintiff/respondent and 2nd defendant/appellant to regulate their business relationship.

Before the expiry of the first term of the tenancy agreement, the 1st defendant issued 2 weeks notice of revocation of the lease and later terminated the proprietary agreement. Thereafter, the plaintiff approached the 2nd defendant/ appellant to release to it the original license and a release letter of the filling station so as to enable it relicense the station with another independent marketer, but the 2nd defendant refused and instead the 2nd defendant continued using the license and on seeing that the plaintiff/respondent wrote the NNPC Depot Chief to stop the 2nd defendant from lifting petroleum products since he had no filling station.

On 20th & 26th September, 1994 the defendants/appellants lifted petroleum products and discharged them in the filling station and when the plaintiff/respondent saw the trucks arrive they tried to stop them from discharging the products by force but the police were alerted and petrol was however sold to the public. Aggrieved with the situation, the plaintiff filed ex parte motion at the lower court and obtained an order of injunction restraining the defendants/appellants from entering the premises and discharging any petroleum products.

The said petrol filling station was closed on the order of the court as from 27/9/94 till the 18/1/1995 when this court upon an appeal filed against the ex parte order vacated the said order of injunction granted by the lower court. It is worthy of note that afterwards an attempt was made by the parties to settle their dispute after, of course, the second defendant and the plaintiff reconciled their account. The plaintiff/respondent demanded that the 2nd defendant should give it the original license and the release letter, but the latter refused to give such documents to the plaintiff/respondent because according to it the license is in its name as the licensee of the station because according to it the plaintiff/respondent no longer had a filling station upon which to operate and that giving the release letter would amount to encouraging it to continue diverting petroleum products.

Aggrieved by the action of the defendant, the plaintiff sued the two defendants at the lower court.

Pleadings were filed and exchanged by parties after which hearing commenced. The plaintiff called only one witness and closed it case. The defendant who jointly conducted their defense called three witnesses. In the end, the lower court found and entered judgment in favour of the plaintiff/respondent against the two defendants. It inter alia, awarded N1,140,480.00 special damages for loss of use of the said filling station between July, 1994 and 31/3/95, when the tenancy agreement was deemed to have expired.

Dissatisfied with the decision of the lower court, the two appellants appealed to this court. They filed seven grounds of appeal as contained in their notice and grounds of appeal which are set out below without their particulars. The grounds of appeal read thus:

Ground One
The learned trial Judge erred in law and came to a wrong interpretation of the law when he regarded “The sublease agreement” exhibit’ A’ between the 1st defendant and the plaintiff as a tenancy agreement and wrongly held that exhibit ‘A’ was not a registrable reasonable instrument under sections 6 and 8(1) of the Land Registration Law of Northern Nigeria as applicable to Bauchi State, Cap. 58, Laws of Northern Nigeria.

The learned trial Judge also ignored the effect of sections 22 and 26 of the Land Use Act of 1978, with regard to exhibit ‘A’.

Ground Two
The learned trial Judge erred in law, in holding that the addendum to exhibit ‘A’ marked exhibit ‘B’ extended the life of the sublease agreement to 31st day of March, 1995 and by so doing came to a wrong decision in the matter.

Ground Three
The learned trial Judge erred in law, in holding that the revocation of exhibit ‘A’ by the 1st defendant was wrongful. Also, that revocation by the 2nd defendant of exhibit ‘C’. The proprietary agreement was wrongful erroneously suggesting in the judgment that both defendants acted in concert to drive plaintiff out of business, but without adverting his mind to the reasons each of the defendants had for revoking the agreement.

Ground Four
The learned trial Judge erred in law, in holding that the plaintiff was right to have amended his writ of summons without leave of court and to have claimed enhanced reliefs without paying necessary fees to court against Supreme Court decision of Iguh, JSC, reported in Onwugbufor and Ors. v. Okoye (1996) MAC 1.

Ground Five
The learned trial Judge erred in law and came to a wrong decision, when he said that the 1st and 2nd defendants committed acts of trespass on 20th September, 1994 and 26th September, 1994, when the 2nd defendant consigned 2(two) trucks of petroleum products to the Ningi petroleum station for sale after appointing him their dealer.

Ground Six
The learned trial Judge erred in law, when he held that the 2nd defendant was in breach of contract in exhibit C, when the 2nd defendant failed to return to the plaintiff at the determination of exhibit ‘C’, the original license and the deed of release without considering the evidence on record giving the reasons for refusing to do so by the 2nd defendant.

Ground Seven
The learned trial Judge erred in law, in holding that the plaintiff proved his claim under special damages to be entitled to the judgment of the court.
From these seven grounds of appeal, the appellant also distilled eight issues for determination of this appeal by this court in its brief filed on 7/7/1998. The said seven issues are set out below:

Issue No. 1(a)
Whether the learned trial Jude was right in holding that exhibit A which created an interest in land by virtue of sections 2 and 6 of the Land Registration Law, Cap. 58, Laws of Northern Nigeria applicable to Bauchi State was not a registrable instrument and the effect of section 15 of the said law for such default.

Issue No. 1(b)
Whether the learned trial Judge was right in holding that exhibit A whether treated as a lease under section 22 or as an under lease under section 26 of the Act for non registration at all on the authority of Savannah Bank of Nigeria Ltd. v. Ajilo (1989) 1 NWLR (Pt.199) 205.

Issue No.2
Whether exhibit B, the so called addendum to exhibit A and exhibit D, the purported letter of consent were made on the instruction of the 2nd defendant as the plaintiff claimed and whether the plaintiff having asserted that Lawyer Hassan Yakubu prepared them on the instruction of DW1 whether the plaintiff discharged the burden of proving that fact at the trial in view of 1st defendant’s denial that he knew anything about them as provided under section 135(1) & (2) of the Evidence Act, 1990.

Issue No.3
Whether the learned trial Judge was right in holding without due consideration for the reasons the appellants had for independently revoking exhibits A & C on the record that exhibits A & C were wrongfully revoked and that the appellants did so out of a clear manifestation of the illicit relationship between them against the respondent.

Issue No.4
Was the learned trial Judge right in holding that the plaintiff in the court below could file a much higher claim in the statement of claim, without first of all obtaining leave to amend his writ of summons and was not obliged to any summons fees for the extra reliefs claimed as was decided by the Supreme Court in the case of Onwugbufor & Anor. v. Okoye (1996) MAC 1.

Issue No.5
Whether the learned trial Judge was right in holding that the 1st and 2nd defendants committed acts of trespass, when they entered the petrol filling station on the 20th September, 1994 and 26th September, 1994, to discharge fuel after the revocation of exhibits A & C and the 2nd defendant had settled all the plaintiff’s claims in their business relationship as far back the 8th September, 1994.

Issue No.6
Whether the learned trial Judge was right in holding that the 2nd defendant by refusing to hand over the original licence and a release letter to the plaintiff was in breach of exhibit C without considering the reason for 2nd defendant’s refusal.

Issue No.7
Judging by the evidence of the plaintiff before the court and what was left of this evidence after cross examination, can it be said that the plaintiff proved his special damages to be entitled to the award made in his favour by the learned trial Judge?

In keeping with the provisions of rules of this court, the respondents upon being served with the appellants’ brief of argument, also timeously filed its respondent’s brief of argument. In the respondent’s brief of arguments filed on 21/8/98, seven issues were also identified for the determination of the appeal. The issues are also set out hereunder:
“(a) Whether exhibit A is void for non-compliance with section 6 of the Land Registration Law and section 26 of the Land Use Act No.6 of 1978.

(b) Whether the trial Judge was right in holding that exhibit B extended the life span of exhibit A to 31/3/95 having regard to the pleadings and evidence led.

(c) Whether the trial Judge was right in holding that the revocation of exhibits A and C were wrongful.

(d) Whether the trial Judge was right in holding that the respondent in the court below could amend the reliefs in the writ of summons and claim enhanced reliefs in the statement of claim without leave of court and payment of necessary fees against the authority of Onwubufor & Others v. Okoye & Others.

(e) Whether the trial Judge was right in holding that the appellants committed acts of trespass by entering and discharging petroleum products at the Ningi Petrol filling station, on the 20/9/94 and 26/9/94.

(f) Whether the trial Judge was right in holding that the 2nd appellant breached exhibit C, when it refused to issue a release letter and surrender the original licence of the petrol station to the Respondent.

(g) Whether the trial Judge was right in holding that the Respondent proved the special damages to be entitled to the judgment of the court.”

It is observable that the issues identified for determination of the appeal by the respondent’s counsel in the respondent’s brief are similar to those formulated in the corresponding number of the issues formulated by the appellants. The only difference is more or less in the way they were couched as those issues in the respondent’s brief are simply precise of the appellants issues but they are certainly the same. I shall therefore, be guided by the issues formulated by the appellant since they are more encompassing and elaborately couched and in determining the appeal I shall deal with the issues seriatim. But before doing so, it needs to be stated that when the appeal was heard by us on 8/5/2003 the respondent’s counsel was absent. Having ascertained that notice for the hearing of the appeal was served on the respondent through substituted service with leave of this court we took the argument of the appellants’ counsel and treated the appeal as having been duly argued by the respondent in keeping with the provisions of Order 6 rule 5 of Court of Appeal Rules of 2002, since brief had already been filed on its behalf.

On issue No. 1(a) and (b) which I shall take together, the centre point is on the alleged non-registration of exhibits A & B, the lease or tenancy agreement and the addendum thereto. The learned appellants’ counsel argued that exhibit A is an instrument that creates an interest on land by virtue of the provisions of sections 2 and 6 of Land Registration Law, Cap. 58, Laws of Northern Nigeria applicable in Bauchi State and as such, they are registrable instrument under section 15 of the said law.

He argued that since such document which were registrable, but were not registered they cannot be pleaded and also shall not be given in evidence. He submitted that since they were given in evidence at the lower court the trial or lower court ought not to have accepted and acted on them but ought to have rejected them. He relied on the case of Ajayi v. Fisher 1 FSC 97.

He further submitted that exhibits A and B were inadmissible evidence and that he would have objected to their admissibility, but for the fact that he was not present at the trial when they were tendered and admitted by the trial court. It was further submitted by the appellants’ counsel that the two exhibits i.e. A and B were written or made in the English language and that since the 1st defendant and the respondents were illiterates in the English language and the said two documents did not contain jurat, showing that their contents were read and explained to them in the language they understand before they entered into the transaction and they did not show that they were prepared by the lawyer called Hassan Yakubu, the said documents were short of compliance with the provisions of Illiterate Protection Act or the provisions of sections 6 and 15 of the Land Registration Law.

The learned Counsel for the appellants extended his argument to the issue of consent of Governor, which he argued as a prerequisite  before a lease, sublease or assignment cannot be granted. He said with regard to exhibit A no such consent of Governor was sought and obtained prior to the execution of the said instrument (exhibit A). It was further argued that since the learned trial Judge had found that consent fees were not paid and no consent was infact obtained from the Governor on exhibit A which is an under lease, the provisions of sections 22 and 23 of the Land Use Act were breached and as such the trial court should have declared the transaction void under the provisions of section 26 of the Land Use Act of 1978. He cited and relied on Dexoning vs Edward (1961)AC 245; Awojugbagbe Light Industries Ltd. v. Chinukwe (1993) 1 NWLR (Pt. 270) 485. He urged this court to declare the transaction void under section 26 of the Land Use Act of 1978, since no fees was paid and no consent was obtained.

In his reply to the above submissions by the appellant’s counsel, the respondent’s counsel submitted on the issue of non-obtaining of consent from the Governor that the parties to exhibits A and C are not the same and the subject-matter in the two agreement in the two exhibits are not the same. Also when signing exhibit A the respondent/ plaintiff did not covenant to apply for Governor’s consent in the transaction. The respondent according to the learned Counsel, was never asked to pay any consent fee. He further submitted that it was the responsibility of a holder of a statutory right of occupancy in this case the 1st appellant, to obtain Governor’s consent before alienating his interest (See section 22 of Land Use Act) and the lower court was right in so holding. He argued that having failed to obtain such consent, the 1st appellant cannot now be heard saying exhibit A was void because of his wrongful act of not obtaining the necessary consent required to be obtained by section 22 of the Land Use Act.

The learned Counsel for the respondent further submitted that a holder of statutory right of occupancy who permits a tenant to enter into his land based on a tenancy agreement and who has accepted rent therefore, but who had earlier failed to obtain the requisite statutory consent to the transfer or possession, cannot rely on his wrongful act of non-receipt of content and consent that the tenancy agreement was illegal or void in an action of trespass and damage brought by the tenant. See Solanke v. Abed (1962) 1 All NLR (Pt. 1) 230; Rufai v. Olugbeja (1986) 5 NWLR (Pt.610).

On the issue of non-registration of exhibit A, the learned Counsel for the respondent submitted that such non-registration of that exhibit did not render it void. He argued that where a lessee is in possession of land by virtue of a registrable instrument which has not been registered and has paid the rent to the lessor, the lessee has acquired an equitable interest in the land which is as good as a legal estate and the equitable interest can only be defeated by a purchaser of the land for value without notice of the prior equity. He cited the cases of Okoye v. Dumez Nigeria Ltd. (1985) 1 NWLR (Pt. 4) 783; Registered Trustees of Apostolic Faith Mission v. James (1987) 3 NWLR (Pt.61) 556 and Tewogbade v. Obadina (1994) 4 SCNJ 161. He argued further that in the instant case, the plaintiff responded by paying the sum of N50,000 as rentage for two years to the 1st defendant (1st appellant) and was let in possession, had acquired an equitable interest in the filling station through exhibits A and B, even though the two exhibits were not registered. He referred to Okoye v. Damez Nigeria Ltd. (supra); Tewogbade vs. Obadina (supra); Registered Trustees of Apostolic Faith Mission v. James (supra).

On the issue of admissibility in evidence of exhibits A and B due to non-registration, the learned Counsel submitted that a registrable instrument, which has not been registered is still admissible to prove equitable interest and to prove payment of purchase money as rent. He referred to Okoye v. Damez Nigeria Ltd. (supra); Tewogbade v. Obadina (supra); Registered Trustees of Apostolic Faith Mission v. James (supra). He added that exhibit A is not void for non-compliance with section 6 of the Land Registration Law and section 26 of the Land Use Act No.6 1978 and that the trial Judge was right in so ruling.

Also, on the alleged non-compliance with the provisions of section 8(1) of the Land Registration Law, the learned Counsel for the respondent submitted that that was not part of the 1st defendant’s/appellant’s case at the lower court. He submitted further that such was not pleaded and that the lower court did not make any pronouncement on it, hence, it could not be raised and argued in this appeal without leave of this court sought and obtained. He cited Achineku v. Ishagba (1988) 4 NWLR (Pt.89) 411. He however, nevertheless went further to argue that exhibit A was prepared by the 1st defendant’s Solicitor, one Hassan El Yakubu and therefore, even if section 8(1) of Land Registration Law was not complied with, he can not rely on his own wrongful act to challenge it. See Solanke v. Abed (supra).

Now, let me first of all deal with the issue of the alleged non-registration of exhibit A. Perhaps, it will be apt to examine the relevant provisions referred to by the parties counsel.
Section 6 of the Land Registration Law, Cap. 58, Laws of Northern Nigeria provides thus:-
“Subject to the provisions of this law, every instrument executed after the commencement of this law shall be registered.”

Also section 2 of the same law defines an instrument to mean:-
“a document affecting land in Northern Nigeria whereby one party (hereafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right, or title to or interest in land, in Northern Nigeria and includes a certificate of purchase and a power of attorney, under which any instrument may be executed, but does not include a will.”

Similarly, section 22 of the Land Use Act of 1978 provides as follows:-
“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise, however without the consent of Governor first had and obtained.”

Then, section 26 of the Land Use Act of 1978 states:-
“Any transaction or any instrument which purports to confer or vest in any person any interest or right over land other than in accordance with the provisions of this Act shall be null and void” (underline supplied by me)

The lower court in its judgment had this to say in relation to exhibit A.

“It is clear by the evidence led before the court that the prior consent of the Governor was not obtained in exhibit A. Further, it is clear from the evidence of the 1st defendant that he is aware that the prior consent of the Governor must be obtained before he can grant a sublease of his filling station. Common sense dictates that it is the owner of the property that can apply for the consent of the Governor to grant a sublease of his property.”

The court went further to say in another paragraph in its judgment as follows: –

Having failed to obtain the prior consent of the Governor and still went on with the agreement, do not intend to create leasehold relationship. In the first place, the defendant leased a leasehold of the property from Bauchi State Government therefore what he can grant is a sublease and not a lease of the property. Secondly, the prior consent of the Governor, not having been obtained for the transaction, exhibit A cannot be a lease agreement, but a tenancy agreement what the document is described as or so called by the parties is immaterial. It is the substance rather than the form that matters. See case of Addiscombe F. Georabbe reported in (1958) 1 RB 513 also Nigerian Law of Conveyance by P. A. Oloyede at p. 206: based on these proposition of the law as contained in these authorities, the parties are aware of the need of the Governor’s consent and did not obtained and entered into the agreement. It then follows that the intention of the parties at the time exhibit A was entered into was to create a relationship of Landlord and tenant. Accordingly, exhibit A being a merely tenancy agreement because the prior consent of the Governor was not obtained is not any instrument that should be registered…”

I think it needs to be emphasized that the overall intentions of the parties, who and when they executed the said exhibit i.e. exhibit A. Their intention on what it is meant to be is of paramount importance, exhibit A which was titled ”Lease Agreement” appeared to have been prepared by a legal practitioner or at least with the knowledge of a legal practitioner as a legal practitioner one Hassan U. El. Yakubu, Esq. witnessed its execution and also appeared in exhibit B which is an addendum to it. If the parties who executed it meant to be actually be a lease which requires prior consent of the Governor and registration as required by section 6 of Land Registration Law or section 22 of the Land Use Act of 1978 efforts would have been made to comply with these mandatory provisions.

Also in exhibit D which is a letter written to the respondents by the 1st appellant’s counsel duly referred to the transaction entered into or executed by the parties as simply a Tenancy Agreement. If the parties had meant the transaction they entered into and executed through exhibit A to be a lease agreement which requires prior Governor’s consent sought and obtained before registration, the appellant would have endeavoured to comply with these prerequisites more especially since he had all along been represented by a counsel in the transaction. Failure to comply with these requirements clearly indicate the parties intention not to regard the instrument (i.e. exhibit A) as a lease, but as a simple tenancy agreement which requires no such consent or registration notwithstanding the title given to it. The parties to an agreement cannot turn a single tenancy agreement into a lease agreement simply by calling or determining the agreement to be so or deeming it to be so or describing it as such.

The relationship of the parties is determined by law on a consideration of all relevant provisions of the agreement nor will the employment of words used normally on a lease will convert a simple tenancy agreement into a lease unless of course, if the purport of the transaction from the contents of the document was intended to be a sublease.

See Mobil Oil (Nigeria) Ltd. v. Johnson (1961) 1 SCNLR 157. In the instant case, although the words employed in exhibit A are those used on lease and that it is titled as lease agreement, the action of the parties and the surrounding correspondences the parties intention can be construed to be that the purport of exhibit A was meant to be a tenancy agreement and as such failure to comply with the provisions of section 6 of Land Instrument Law and section 22 of Land Use Act of 1978 did not render it null and void under section 26 of the Land Use Act of 1978. I am therefore, in entire agreement with the learned trial Judge that the transaction created by exhibit A was meant to be regarded as tenancy agreements, which require no registration or prior consent of Governor before being entered into.

Now in the event I am wrong on my conclusion above, then could it be correct to say that exhibit A is void and therefore inadmissible as evidence. Assuming that the exhibit is a lease agreement can the 1st appellant be heard to say that it is void because he did not seek and obtain governor’s consent and also got it registered? I think not. If it is regarded as a lease agreement, the instrument is registrable. Before the registration consent of governor is a pre-condition. As the owner of the title to the property in question, the 1st appellant had the responsibility squarely saddled on him by law to undergo these processes. Even if it is the respondent, who should register the instrument, it could not do so unless and until the 1st appellant who is the title holder had sought and obtained the consent of the Governor.

This aspect of his responsibility was not accomplished by him. Admittedly, a holder of a statutory right of occupancy granted by a governor must comply with the provision of section 22 of Land Use Act and failure to so comply would attract the full effect of section 26 of the Act and thereby renders such transaction or instrument arising therefrom null and void. See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) 1 NWLR (Pt.97) 305, (1989) 1 SC (Pt. 11) 90. In fact by virtue of section 22 of the Act the holder of a right of occupancy alienating or transferring his right of occupancy must obtain the consent of the Governor to make the transaction valid. If he fails to obtain such consent, then the transaction is null and void under section 26 of the Act. See International iles Industries (Nig.) Ltd. v. Aderemi (1999) 6 SC (Pt. 1).

In fact, where a holder of right of occupancy, who obviously has the duty to seek consent of the Governor to alienate, transfer, mortgage, etc., and obtained such consent, he cannot later be heard to subsequently claim that the consent he obtained was void. See Ugochukwu v. C.C.B. Ltd. (1996) 6 NWLR (Pt. 456) 524. It goes without saying too, that where a holder of right of occupancy, who also has the onus to obtain consent of the governor before alienating his right of occupancy failed to obtain such consent and yet alienates such right of occupancy, he can as well not be heard saying that the transaction was void due to non-registration by the assignee of the right since the registration of the instrument would not have been possible without prior consent of the governor which he himself should have obtained but failed or refused to obtain. It is said he who seeks equity must come with clean hands.

The law is clear that no person is allowed to benefit from his own wrongful act; that is Nemo commodum capere potest injuria sua propria or ex turpi causa non oritur actio – Ekanem v. Akpan (1991) 8 NWLR (Pt. 211) 616; Adedeji v. NBN (1989) 1 NWLR (Pt. 96) 212. Again, even if exhibit A is inadmissible as a lease due to its non-registration, it is still admissible as a receipt of payment. It is trite that a registrable instrument which has not been so registered, is still admissible to prove equitable interest and to prove payment of purchase money and rent. See Okoye v. Dumez Nigeria Ltd. (supra); Tewogbade v. Obadina (supra) and Registered Trustees of Apostolic Faith Mission v. James (supra) Ogunbambi v. Abowaba 13 WACA 222; Olowoake v. Salawu (2000) 11 NWLR (Pt. 677) 127; Adesanya v. Aderounmu (2000) 6 SC (Pt. II) 18; Elema v. Akenzua (2000) 6 SC (Pt. 111) 26; Buraimoh v. Karimu (1999) 9 NWLR (Pt. 618) 310; Afeaugbo v. Igwe (1963) 1 SCNLR 252.

It should be noted that the said exhibit A was not tendered at the proceeding to transfer the title of the land to the respondent/plaintiff but it was simply to serve as evidence to prove monetary transaction and a memorandum of land transaction proving that the 1st appellant rented the said filling station out to the respondent/plaintiff and same was delivered to the latter – see Ijukpan v. Orovuyovbe (1967) NMLR 287; Ogunbanmi v. Abawola (supra). See also Adesanya v. Aderonmu (supra). In result of all I said above, I hold that exhibit A is admissible.

The learned Counsel to the appellants while arguing this first issue for determination raised the issue of illiteracy on the part of the 1st appellant with regard to the execution of exhibits A and B. It is instructive to note that there is no ground of appeal touching on the issue of illiteracy. There is also nowhere in the pleadings where such issue was raised by the parties. The learned trial Judge also did not comment on it in his judgment.

The grounds of appeal did not also contain omnibus ground of appeal. Similarly, it was never an issue before the trial or lower court that exhibits A and B were registered without compliance with the provisions of section 8(1) of the Land Registration Law which says that no instrument shall be registered if the grantor is illiterate, unless such grantor executed same in the presence of a Magistrate or Justice of the peace. There is also no leave sought and had to raise fresh issue on appeal. It is trite law that, where a party seeks to file and/or argue in an appeal court any fresh issue which was not canvassed at the lower court leave to file and argue such fresh issue must be sought and obtained first except of course, if such issue raised relates to the issue of jurisdiction which point or issue can be filed and argued with or without leave of the court even if it is being raised for the first time. See Obiakor v. State (2002) 10 NWLR (Pt. 776) 612; Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583 at 599.

The issue of illiteracy having not been pleaded, raised at the court below or commented on by the lower court and having not obtained leave to raise it and also having not emanated from any of the grounds of appeal, it is not properly raised in the brief. Issues formulated or argued must always emanate from any or some of the grounds of appeal. I shall therefore, hold that the issue of illiteracy is not competently raised. I therefore, refuse to comment on it and do hereby strike out all the arguments related thereto for the reasons given above. In the light of all that I have posited above, the 1st issue i.e. 1(a) and (b) is hereby resolved against the appellant.

The second issue for determination relates to whether in view of the denial by 1st defendant/appellant of the authorship of exhibits B and D, the trial court was right in holding that the ability and enforceability of the exhibits? The appellants’ Counsel submitted that his client the appellant, when confronted at the trial with exhibits B and D he denied their existence or having instructed any body to prepare them on his behalf. He said at the trial the 1st appellant/defendant never denied his signature on exhibit A.

But as regards exhibits B and D, he urged the court to compare his signature on exhibit A with the signature on the exhibits B and D alleged to have been made by him. He queried that exhibits B and D could have been prepared by his counsel Hassan El Yakubu on the instruction of the respondent, but certainly not on his instruction. He also argued that since the respondent/plaintiff stated that it was prepared by Hassan El Yakubu on his instruction the respondent has the onus to show that he instructed him to do so by calling the said Hassan to testify, but the respondent failed to do so. He referred to section 35 of Evidence Act. He also argued that failure to call Hassan El Yakubu to testify warrants the court to presume that they refuse to call him because his evidence could be disfavourable to their case. He referred to section 149(d) of Evidence Act.

Also, on the purported existence of exhibits B and D the learned appellants’ Counsel argued that there are many reasons to suggest that they never existed. Some of these reasons are:-
(a) That by exhibit A the term of the tenancy was two years commencing on 1/1/1993.

(b) Rent was only paid for 2 years only and none was paid for additional 3mm, extending to 31/3/95 by the respondent.

(c) Exhibit E did not make mention of any addendum extending the tenure of the tenancy to 31/3/95.

(d) That the licence for the operation of the petrol filling station was obtained on 29/1/1993 vide exhibit K hence, the respondent had no reason to wait for another 3 months before starting operation unless they procured exhibits B and D to simply suit their convenience bearing in mind that exhibit C, the proprietary agreement entered into by 2nd appellant and the respondent took effect from 31/1/1994 and did not contain any provision to show that lifting of petrol would be delayed for another three months.

The learned appellants’ Counsel submitted that the learned trial Judge did not advert his mind to these factors before concluding that the appellant alleged forgery without proving it beyond reasonable doubt as he ought to. The learned Counsel for the appellants concluded his submission on this issue by arguing that exhibits B and D were never made by the 1st appellant and that the life of exhibit A was never intended to be extended by the defendant/appellant beyond 31/12/1994 and urged us to resolve this issue in the appellants’ favour and allow the ground of appeal related thereto.

In his response, the learned Counsel for the respondent/plaintiff urged this court to have recourse to the pleadings. He referred us particularly to paragraphs 5 and 6 of the statement of claim and also to the defendants/appellants reply in paragraphs 6 to 12 of their statement of defence. He argued that issues admitted require no proof and since the 2nd appellant at paragraph 11 of their statement of defence, had already admitted the deposition in paragraph 6 of the plaintiff/respondent’s statement of claim that the strange licence was issued on 29/1/1993 and the authority to operate in April, 1993, then no proof is required. He also referred us to clause 2 of exhibit B.

It was further submitted on behalf of the respondent that the 1st appellant, having denied making exhibit B and alleged that his signature therein was forged he had the burden of proving the alleged crime beyond reasonable doubt by virtue of the provision of section 135 of the Evidence Act. Having failed to prove that the signature on exhibit B was not his own, his claim of forgery was irrelevant. He cited the case of Tewogbade v. Obadina (supra).

On the complaint by the 1st appellant that the lower court failed to make any finding on 1st appellant’s request that the court below should compare the signatures on exhibits A and B, as pleaded in paragraph 9 of the statement of defence, the learned Counsel for the respondent replied that neither the 1st appellant nor his counsel, requested the court to make such comparison, during the trial and that being the case, the failure to make such request during the trial could be deemed that the request was abandoned hence, the lower court was right in not making any finding based on any comparison of signatures on exhibits A and B. He urged us to hold that the trial Judge was correct in holding that exhibit B extended the life span of exhibit A to 31/3/ 1995.

I think in order to appreciate the arguments on the effect of and enforceability of exhibits B and D vis-a-vis, the arguments posed by the learned Counsel of the parties. I deem it appropriate and worthwhile to consider the relevant averments in the pleadings filed by the parties. The relevant averments in the pleadings are reproduced underneath;-

In the statement of claim the plaintiff/respondent inter alia, averred thus –
Paragraph 4
“The plaintiff avers that sometimes in October, 1992, it leased the petrol filling station at Kano Road, Ningi, Bauchi State to the 1st defendant for a period of 2 years at the rent of N50,000.00. At the trial of this suit, the plaintiff will found on the lease agreement.

Paragraph 5
Further to paragraph 4 of this statement of claim, the plaintiff averred that in the addendum of the lease agreement, it was agreed with 1st defendant that the commencement date of the lease agreement dated 3rd October, 1992, shall be the day a storage licence and authority to operate is given by the Nigerian National Petroleum Corporation. At the hearing of this suit, the plaintiff will rely on the said addendum dated the 3rd day of December, 1992.

Paragraph 6
The plaintiff avers that the storage licence was issued on the 29th day of January, 1993 and authority to operate in April, 1993. At the trial of this action the plaintiff will rely on the storage and sell licences and the authority to operate, which are hereby, pleaded and 2nd defendant put on notice to produce the originals which are in her possession.

Paragraph 7
Further to paragraphs 5 and 6 of this statement of claim, the plaintiff avers that the commencement date of the lease agreement entered into with the 1st defendant is 1st April, 1993 and 2 years rent paid to the 1st defendant, will expire on the 31st day of March, 1995, Replying to these averments of the plaintiff/respondent, the appellants as defendants in the court below in their joint statement of defence averred as follows:-

Paragraph Six
“The 1st defendant claims also that there was no other lease agreement, he signed apart from the one dated 3rd October, 1992. Any attempt to suggest that he signed any addendum to this lease as forgery. Also, any suggestion that he signed the document dated 20th October, 1992, authorizing Sahar Ventures Ltd. To give out the petrol filling station to the 2nd defendant is also a forgery.

Paragraph Seven
That such a letter in the English language, could not have been authorized by him and will also rely on the plea of non est factum in respect of the document, his signature having been forged thereon.

Paragraph Eight
The 1st defendant claims he was seeing both the alleged addendum to the lease and the so called letter of consent for the first time, when the plaintiff went to court in this matter and annexed those papers to his application for  interim injunction.

Paragraph Nine
At the trial, the Hon. Court will be called upon to examine the disputed signature with the one he signed on the lease agreement of 3rd October, 1992.

Paragraph Ten
In answer to paragraph 5 of the claim the 1st defendant strongly denied being a party to the so called addendum to the lease.

Paragraph Eleven
In answer to the averment in paragraph 6, the 2nd defendant contends that while the averments are true that the plaintiff is a stranger in matters of licence, the said licence does not bear plaintiff’s name, and plaintiff is not an independent marketer of petroleum products.

Paragraph Twelve
The 1st defendant denies the averment contained in paragraph 7 of the claim and reiterate, that the lease he knows about is that which begins to run in 3rd October, 1992 and no other one else.

From the above averments, it is clear as crystal and indisputable that by their paragraph eleven of their statement of defence the defendants have admitted the averment of the plaintiff/respondent in paragraph 6 of its statement of claim to the effect that the storage licence was issued on the 29th day of January, 1993 and that the authority to operate in April, 1993, when the two defendants in paragraph 11 of the joint statement of defence stated that the 2nd defendant contends that the averments in paragraph 6 are true. It is a settled principle of law that facts admitted need no further proof.

A cursory look at exhibit B, the addendum, clearly shows that the parties while executing the addendum agreed that vide Clause 2 thereof, that the effective date of the lease agreement, dated 3/10/92 would be the day the storage licence and the day the NNPC gave as when the licence would start operating as opposed to 1/1/1993 as reflected in the lease agreement.

Again while testifying on behalf of the plaintiff one Nze Sam. O. Chukwueweghi who testified as PW1 testified as follows at page 23 of the printed record:-
“The agreement did not become effective immediately. When we signed the agreement the filling station had not been licensed and because of this an addendum was prepared by the same solicitor who prepared the agreement. I will be able to identify it. If I see this addendum to these agreement. I will be able to identify it. I would identify them, if I see the two parties Sahar Ventures Ltd. and Alhaji Adamu Hamidu and my signature. This is the document I am referring to. Ike Ogu seek to tender it in evidence court: -An addendum to the lease agreement dated 3/10/92 between Alhaji Adamu Hamidu and Sahar Ventures Ltd. Tendered admitted and marked exhibit B. The storage lease of the NNPC was issued on 29/1/93. The authority, to operate was issued in April, 1993. The lease agreement will commence on the 1st April, 1993. The two years rent paid for the filling station will expire 31/3/93.”

Also, when testifying for the defence at the lower court the 1st appellant was recorded in page 33 of the printed record to have said thus:-
“Sometimes in 1992, I entered into a hire agreement with PW1 and his company; the agreement was written if I see the agreement I will be able to identify it by my signature (witness identifies his signature on exhibit A at page 3). I know Alhaji Adamu Lasisi. He is a witness in exhibit A (witness identifies Alhaji Lasisi’s signature in exhibit A). I did not know anything concerned exhibit B. Exhibit A was for a term of 2 years the rent I received for the years was N50,000.00 I don’t speak or write English. I do not know anything in respect of exhibit B. I did not give any instruction to that effect.”

While being cross-examined by the learned Counsel for the plaintiff this witness said as below:-

“I went to the Ministry in Bauchi together with Alhaji Awalu Etokhane, PW1 and a Lawyer called Hassan, I invited the said Hassan. It is true that when I was negotiating with PW1, Hassan acted on my behalf I do not speak or write English. Exhibit A was prepared by Hassan. See pages 33, 38 and 35 of the printed record.”

Although, the 1st appellant denied any knowledge about exhibits B and C it is apposite to note that the names and signature of his Lawyer Hassan El Yakubu appeared in exhibits B and C as they appeared in exhibit A which the 1st appellant acknowledged. The 1st appellant while denying knowing anything about exhibits B and C also claimed that the signature on them purported to be on them was forged. He simply denied the signature to be his and alleged that it was forgery.

He did not lead any evidence to prove the allegation which involves criminal act. it is an age long settled principle of law that any allegation of commission of a criminal offence in a proceeding be it criminal or civil must be proved beyond reasonable doubt and the burden to prove such allegation is on the person who alleges such commission of the offence. It is not enough to simply allege the commission of offence without proving it. See cases of Jim Nwobodo v. CC Onoh (1984) 1 SCNLR 1; Tewogbade v. Obadina (supra); Anyah v. A.N.N. Ltd. (1992) 6 NWLR (Pt. 247) 319 at 333.The 1st appellant admitted that Hassan El Yakubu who executed exhibit A was his counsel.

He however, did not call him to testify as to the 1st appellant’s knowledge about exhibits B and C since the Lawyer witnessed the execution of both exhibit A the lease agreement as well as exhibit B the addendum even if he was not the one who prepared it on the 1st appellant’s behalf similarly on the 1st appellant’s complaint that the lower court did not make any comparison of the signature on exhibit A with the one purported to be his own on exhibit B, I agree with the learned Counsel for the respondent that though such request was pleaded, the appellant/defendant never pressed the court to do so during the trial and as such it could be right in not embarking in such comparison as it could rightly deem the defendants had abandoned such request.

Thus, in view of the circumstance surrounding this case particularly the 1st appellant’s admission on the operative date of the storage licence as indicated in exhibit B and the failure of the 1st appellant to establish forgery of his signature on exhibits B and C as required by section 138 of Evidence Act, I am of the view that the trial Judge was right in holding that exhibit B has actually expanded the duration to 31/3/1995. The second issue is also resolved against the appellant.

Coming to issue number three raised in the appellants’ brief of argument, it is the submission of the learned appellants’ Counsel that the learned trial Judge was wrong in holding that exhibit A (the lease agreement) and exhibit C (the proprietory agreement) were wrongfully revoked by the appellants adding that the two exhibits related to two different and distinct contract entered on different subject-matters by two different parties.

The learned Counsel further argued that the 1st appellant had given reason why he decided to revoke exhibit A and such reasons are advanced by the 1st defendant/appellant was that the respondent/plaintiff with whom he entered into agreement covered by exhibit A had parted with its possession of the premises to another strange company without his consent or knowledge in violation of section 2(c) of the agreement (exhibit A). The second reason was the threat by the Ministry of Commerce, Industry and Tourism Development to close down the petrol filling station vide exhibit E due to failure to maintain a register at the filling station for recording incoming petroleum products and diversion of such products sent for sale to the public to black market.

He argued that imminent threat for closure of the station informed it of the revocation without giving the one year notice of termination to the plaintiff/respondent and that if not revoked immediately the respondent could have continued with the illegal diversion as could lead to the closure of the station by the said Ministry.

He also argued that the trial court was wrong in finding that the allegation of diversion was not substantiated. He added that section 2(h) of exhibit A allows the landlord to terminate the agreement in certain circumstances before expiration of the term and in this case the plaintiff/respondent did not deny diversion that it did not maintain the register for recording incoming products.

He also argued that there was evidence of diversion of the product brought to the filling station on 20/9/1994. He also submitted that the landlord/1st appellant had offered to refund to the tenant/respondent five months unexpired rentage but the latter refused to accept the refund.

With reference to exhibit C, the learned appellants’ Counsel submitted that the 2nd respondent had breached the conditions laid down in exhibit C by the diversion of the petroleum products and the failure to keep and maintain register of incoming products at the filling station. It was further argued on behalf of the appellants that the provisions of clause 2 of exhibit C states that on breach or defaulting any of its covenants the aggrieved party may determine the agreement without issuing any notice to that effect. By determining the agreement in exhibit C therefore, the 2nd appellant was covered by that provision of the clause in exhibit C and its action was therefore lawful.

He concluded his submission on this issue by arguing that the lower court was in error by merely holding that the allegation of diversion of the products was not substantiated without expressing its view on that.

Responding to the appellants’ Counsel argument summarized above, the learned Counsel for the respondent submitted that the trial court nowhere stated in its judgment that the revocation of exhibit C was wrongful. He added that it was not the case made out by the respondent and such was also never canvassed at the lower court and therefore ground appeal No.3 in the appellant’s notice and ground of appeal as it relates to exhibit C was misconceived.

Continuing with his argument on exhibit A he submitted that the revocation of exhibit A was wrongful as held by the trial court. After it evaluated the evidence adduced led before it. It is the submission of the learned respondent’s Counsel that even, if we take the 1st appellant’s view that exhibit A was to commence on 1/1/1993 or the respondent’s view that it commenced on 1/4/1993, the important thing to note is that since both are agreed that the term was for two years the notice for revocation of the lease agreement in exhibit E made on 13/7/1993 was wrong since no one year notice was given as required by exhibit A. The 1st appellant was therefore, wrong to have determined exhibit A before its expiration since no notice of termination was given and no money was refunded for the remaining period within the one month as stipulated in exhibit A.

On the alleged error on the part of the trial court, when it held that allegation of diversion of petroleum product was substantiated, the respondents’ counsel submitted that such finding was a finding on fact made by the trial Judge and the appellants did not appeal on such finding hence, he can not be heard on that. He further argued that the allegation of diversion of petroleum product is a crucial offence vide section 12(1) of Petroleum Decree of 1969 and the NNPC guidelines as such the appellants being the accuser must have the burden to prove such alleged crucial act beyond reasonable doubt but it, failed to do so. See Tewogbade v. Obadina (supra) at 182.

He further submitted that the trial Judge had considered all the evidence adduced by parties before concluding that the allegation of diversion was unsubstantiated. The lower court also considered reasons adduced by the appellant for the revocation as contained in exhibit A on the alleged breach of Clauses B and C of exhibit A, before it arrived at the inevitable conclusion and held that the revocation of exhibit A by 1st appellant was wrongful.

The learned trial Judge had this to say on the 1st appellant’s/defendant’s revocation of exhibit A on page 76/78 of the record of proceeding:
“Exhibit A was wrongful revoked, this is so because exhibit A at clause E provides that one year notice to determine, should be given and not two weeks as given by the 1st defendant. Further, the reason given by the 1st defendant for the determination has not been substantiated. The 1st defendant alleged that the plaintiff is in breach of Clauses 3 and E of exhibit A. In his letter of revocation exhibit E Clause B of exhibit A takes of using the premises for purposes of selling fuel and other lubricants. It has not been showed that the plaintiff used the premises for any other purpose. Clause C of exhibit A is a covenant not to assign mortgage or sublet part of the premises without the consent of the 1st defendant: It has not been proved that the plaintiff assigned, mortgaged or sublet part of the premises before the court and exhibit C shows that the 2nd defendant has contracted to licence the petrol station with the written consent of the 1st defendant. The fact that the 1st defendant entered into business with the second defendant immediately after the revocation and which 2nd defendant has his own reason for the revocation of exhibit A is clear manifestation of the elicit relationship between them i.e. 1st and 2nd defendants. And the reason for revocation is a means to an end. I therefore, hold that the two weeks notice issued to the plaintiff by the 1st defendant is wrongful and as such exhibit A was wrongfully determined.”

Having gone through the judgment, there is nowhere in it, where the trial court found that the revocation of exhibit C was wrongful. In fact, it is noted that it was not the case of the plaintiff/respondent at the lower court that exhibit C was wrongfully revoked as such issue was never canvassed. Therefore, the reference of exhibit C in ground 3 of the notice of appeal is misconceived. I shall therefore, not say anything on it. It is clear from the judgment that before the lower court came to the conclusion or finding quoted above it had really evaluated the evidence adduced before it. Much as the 1st appellant/defendant had the right to determine the agreement before it expires, such determination can only be validly made after given the required one year notice in advance and he must also refund the outstanding rentage paid to him which said residue rent must also be paid within one month after giving such notice.

These preconditions were not complied with, there are other reasons that could allow the 1st appellant to terminate the agreement. But the reasons relied on by the 1st appellant in attempting to revoke the agreement especially the allegation of diversion of petroleum product by the respondent were found to have been unsubstantiated by the lower court, after it reviewed the evidence adduced in the matter. It is settled principle of law that evaluation of evidence is a special assignment preserved for a trial court which had the opportunity of seeing, watching hearing and assessing the witnesses that testified before it. By such opportunity it had, it is placed in better place to evaluate such evidence than appellate court which had not been so opportuned darely and hesitatingly interfere with the evaluation exercise made by the lower court except in special circumstance that glaringly shows non-evaluation or perversion or wrong evaluation or utter misuse or abuse of such opportunity preserved to the trial court.

In the instant case, the trial court has properly evaluated the evidence placed before finding that the allegation of diversion was not substantiated or proved by the 1st appellant. This, as an appeal court will decline to interfere with such finding of fact. See Makinde v. Ojajuke (1997) 4 NWLR (Pt.497) 80; Okwara v. Okwara (1997) 11 NWLR (Pt. 527) 160; Salako v. Dosunmu (1997) 8 NWLR (Pt. 577) 371; Sharu v. Umane (2003) 1 NWLR (Pt.800) 46. The trial court’s finding that the revocation of exhibit A by the 1st appellant was wrongful, in our view, is correct. This issue is also determined against the appellant as it relates to exhibit A only.

I shall now go to the 4th issue for determination. On this issue, the appellant’s Counsel submitted that the plaintiff having failed to pay fees for the extra claim he made in his statement of claim, which was not earlier claimed in the writ of summons it had earlier filed, that learned trial Judge was wrong in holding that such issue could not be raised since it was not pleaded and that the issue of payment of extra fees could not be raised by counsel in their addresses. He cited case of Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252, (1996) MAC 1.

He also submitted that any alteration of a writ without leave of the court is void. Expatiating on this, the learned Counsel for the appellants stated that on 27/9/94 the plaintiff filed a writ but without statement of claim. Then later on 2/12/94, it filed statement of claim enhancing the claim in the relief to N100,000.00 as opposed to the N50,000.00 claimed in the writ it earlier filed and in paragraph 31(d) of the statement of claim a new claim of N50,000.00 general damages was made. Also, in paragraph 31(d) of the statement of claim a new date of 26/9/1994, appeared as opposed to 20/9/1994, which appeared in the writ of summons. Similarly, added the learned Counsel for the appellant, relief claimed in paragraph 3(d) of the statement of claim covered a period up to 31/3/95 only as opposed to the 8/4/95 shown in the writ. Again in paragraph 31(d) of the statement of claim the sum of N1,140,480.00 special damages, was claimed while in the writ earlier filed no any such claim was made.

The learned Counsel for the appellants submitted that before all these amendments and addition could be validly made prior leave must be sought and extra fees must be paid before the court could entertain its action. Therefore, since no leave was sought and had no extra fees was paid and no evidence to show that payment fees was waived such failures are fatal to the respondent and action was therefore not properly before the court.

By way of reply, the learned Counsel for the respondent argued that the court below was right in holding that the respondent could amend the relief in the writ of summons and claim enhanced reliefs in its statement of claim without seeking leave of court and paying further necessary fees since the statement of claim supercedes the writ. See Adombe v. Odiese (1990) 1 NWLR (Pt.125) 165 and Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) 63.

He submitted that a plaintiff can alter, modify or extend the claim in the writ in his statement of claim without amending the former and what is not allowed to do is to set-up a totally different allegation in his statement of claim without amending the writ of summons. The learned respondent’s Counsel stated that the plaintiff/respondent did not completely change the cause of action on the writ of summon or introduce an entirely new and additional cause of action (See P.1 of Record of Proceedings).

On the appellant’s contention of introduction of N50,000.00 claim for general damages in the statement of claim, which was not claimed in the writ. The respondent counsel argued that a claim of general damages for breach of contract is a consequential relief which can be deemed as claimed. See Lahan & Ors. v. Lajoyetan & Ors. (1972) 1 All NLR (Pt.2) 74. Also on the new date of 26/9/1994, appearing in statement of claim as opposed to 20/9/94 and the restriction of claim in the statement of claim to 31/3/1995 and not extending same to 8/4/1995 as shown in the writ the learned respondent Counsel submitted that no leave is required since statement of claim supercedes the writ of summons adding that where there are different averments in the writ and statement of claim the averment in the latter overrides the one in the former and any matter contained in the writ but omitted in the statement of claim is deemed to have been abandoned. Similarly, with regard to appellant’s complaint on the claim of N1.140,480.00 as special damages which differs from the claim in the writ of summon, it was explained by the respondent’s Counsel to be in order since quantum of damages claimed in a writ can be increased in the statement of claim. See Chief J. O. Fadahunsi v. The Shell Co. Nigeria Ltd. (1969) 1 NMLR 304.

Finally on this issue, the respondent’s Counsel argued that the issue of payment of requisite fees as enunciated in the cases Onwugbufor & Ors. v. Okoye & Ors. (supra) is not applicable to this instant case as rightly distinguished by the learned trial Judge. Parties are always bound by their pleading and payment of fees issue was never canvassed by the parties in this suit at the lower court.

In the first place, I think it is proper to note the distinction between writ of summons and statement of claim. While a writ of summons is simply designed to commence an action, a statement of claim is a process that gives details and particulars of the cause of action at the actual event that took place in the action in full details. See Ezechigbo & Ors. v. Governor Anambra State & Ors. (1999) 9 NWLR (Pt. 619) 386.

It is clear that when the plaintiff/respondent filed the writ in the suit before the lower court dated 23/9/94, it did not file its statement of claim. It was later that it filed its statement of claim dated 2/12/1994. The said statement of claim cannot therefore, be regarded as an amended one, since none was filed earlier along with the writ of summons. In this situation, since it is not an amendment, I feel there is no need to seek for any leave to amend statement of claim the plaintiff/respondent when it filed its statement of claim simply amended the claim and enhanced the claim as per the statement of claim. It also, changed the dates with statement of claim from those in the writ of summons covering its claims without seeking for leave to do so. I think that the plaintiff is not totally, changing the cause of action.

It is settled law that a statement of claim supercedes the writ of summons what a party is not allowed to do is to set up a totally different allegation, claim or cause of action in a statement of claim different from those contained in the writ. See Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) 63; Adombe & Ors. v. Odiese & Ors. (1990) 1 NWLR (Pt. 125) 165. Admittedly, the plaintiff had also increased the amount for his claim in the statement of claim different from the amount claimed as per the writ it filed earlier without seeking and obtaining leave. I think no leave is required by the plaintiff before increasing the amount claimed as damages since such increased amount is the proper quantum of damages claimed before the court as per the statement of claim, which supercedes the writ of summons. See Fadahumsi v. The Shell Co. of Nigeria Ltd. (supra). I must quickly add that although statement of claim supercedes the writ and may alter the reliefs the latter must not completely abrogate it.

This is because the statement of claim always require the writ to stand on and the new reliefs introduced in the statement of claim must be one that can be encompassed in the cause of action in respect of which the writ was filed initially. See Ikpo v. Azubuike. The new reliefs introduced in the statement of claim are consequential reliefs and are not claimed on an entirely different cause of action. See Lahan v. Lajoyetan (1972) 1 All NLR (Pt.2) 217 the statement of claim is therefore rightly relied upon by the trial court and no leave to amend it is required and no additional fees need be paid. See Ikpo v. Azubuike (2000) 14 NWLR (Pt.686) 166; Lahan v. Lajoyetan & Ors. (1972) 1 All NLR (Pt.2) 72 The ground of appeal from which this issue was distilled fails and is accordingly dismissed. The issue is resolved against the appellant.

The fifth issue for determination relates to whether the 1st and 2nd defendants/respondents have committed trespass by their entry into the filling station on 20/9/94 and 26/9/94 to discharge petroleum products there. The learned appellants’ Counsel submitted that allegation of trespass to land can only be sustained by proving that the alleged trespasser has entered a land occupied by some one or remained there without any Justification. See Kponuglo v. Kudadja 2 WACA 24. He also referred to a book titled Clerk and Lindsell on Torts, 12th edition 1138 at page 595.

He also submitted that action of trespass can only be brought against any other person except the true owner or person with better title. See Amakor v. Obiefuna (1974) 3 SC 67; Evbnomwan v. Elema (1994) 7-8 SCNJ (Pt.11) 243. The learned Counsel for the appellant further submitted that claim of trespass or injunction puts the title of the land in dispute in issue and the onus of proof of such trespass is not discharged by mere proof of possession.

The learned appellants’ Counsel went further to argue that the appellants did not commit any act of trespass because:
“(a) It served the respondent with exhibit F (notice of termination of contract).
(b) 1st appellant while testifying as DW 1 denied knowledge of the existence of exhibits A and D and gave two reasons for his determination of exhibit A vide exhibit E namely subletting of exhibit A premises to 2nd defendant in notation of exhibit.”

The other reason given for the determination of exhibit A is the issue of diverting of fuel meant for the filling station to black market. He further argued that there was evidence that the plot of land with all its fixtures belong to the landlord i.e. 1st appellant/defendant and there had been no acts of possession by the respondent after 13/7/94 and no evidence was also shown that it kept its staff to guard the filling station. The appellants’ Counsel further submitted that the 1st defendant/appellant is the true owner of the petrol filling station and had lawfully terminated the lease agreement executed vide exhibit A and that by 20th and 26th of September, 1994, he had determined the tenancy with the respondent hence the latter was no longer in possession of the filling station as far as he was concerned hence, he could not maintain any action on trespass against him (1st appellant) being the true owner of the land.

He concluded his submissions on this issue that the learned trial Judge was in error by holding that the 1st and 2nd defendants were liable in trespass for the discharge of the fuel petrol station on the 20th and 26th of September, 1994. He urge us to allow his appeal on this ground.

In his reply to the submissions of the appellants’ Counsel, the learned Counsel for the respondent argued in the respondents’ brief of argument that trespass being a wrong to possession can be established upon showing that the plaintiff has exclusive possession to the land. See Osho v. Foreign Finance Corp. (1991) 4 NWLR (Pt. 184) 157. He referred to paragraphs 17 and 18 of the statement of claim wherein the plaintiff/respondent pleaded that it was in possession of the filling station as at 20th and 26th of September, 1994, and also referred to paragraph 39 of the joint statement of defence filed by the two appellants wherein they admitted such facts pleaded in paragraphs 17 and 18 of the statement of claim filed by plaintiff/respondent. Having so admitted, the respondent argued that facts admitted need no further proxy and referred to pages V and X of the printed record of proceedings.

It was further argued that by exhibit A, the 1st appellant/defendant agreed with the plaintiff/respondent that the tenancy was for 2 years and the notice of termination i.e. exhibit E given by 1st appellant was issued at the time exhibit A had not expired hence, the purported termination was not valid hence the respondent was in possession of the premises when exhibit E was issued. He further argued that the 1st appellant brought Police and used self-help through the task force members to enable him discharge the petroleum products, while in company of the task force members. It was also argued that the 1st defendant/appellant could only regain possession of the premises from his tenant through legal means and not by the use of self-help as he did in this instant case. Due process of law should be followed, see Eliochin (Nig.) Ltd. v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47 at 86.

Having not followed due process of law in the recovery of the premises, the two appellants were liable in trespass, submitted the learned respondent’s Counsel and the trial court was correct in so holding. It is clear and beyond any dispute that the plaintiff was in possession of the petrol filling station as at 20th and 26th of September, 1994, when the two defendants went to discharge petrol in the filling station. As rightly found, in my view, by the lower court during that period the plaintiffs tenancy did not come to an end going by the contents of exhibits A and B.

The plaintiff/respondent therefore, remained a tenant (as at those days) of the 1st defendant who also was and remained its landlord. In the case of African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391, the word ‘tenant’ was defined by the Supreme Court as below:
“The definition of the tenancy is very wide and includes all persons who occupy premises lawfully. Whether a person pays regular rent, subsidized rent or indeed no rent is immaterial. The qualification for becoming a tenant under the law is lawful occupation. Hence, when the initial occupation of premises is lawful, the occupier, even if holding over becomes a protected tenant qua the landlord.”

The plaintiff from the above definition is a tenant whether the tenancy agreement expired or not is immaterial. Evidence adduced at the trial which was also believed by the lower court has established that the 1st appellant entered into the filling station by use of self help and discharged fuel and also in order to take or retain possession of the filling station forcefully and forcibly. In order to retain or recover possession of land from a tenant a landlord ought to proceed against the tenant under the provisions of Recovery of Premises Law and not to apply self help to get the tenant forcibly evicted therefrom. See Bayo v. Anyekoti (1973) 1 All NLR (Pt.1) 319; Uchendu v. Ogbomi (1994) 4 SC (Pt.1) 1. In the case of Eliochin Nigeria Ltd. v. Mbadiwe (supra) the Supreme Court had this to say;

“It is not the law of this country that a landlord has unbridled right to invade premises in the lawful occupation of a tenant… moreso when the intention of the landlord is to recover possession after refusal by the tenant to pay higher rent…”

In this instant case since the landlord applied self-help instead of resorting to court proceedings he is and was rightly held liable to pay damages in action of trespass by the court below. See also Ajao v. Ashiru (1973) 11 SC 23,  Ihenacho v. Uzochukwu (1997) 2 NWLR (Pt. 487) 257; Governor of Lagos State v. Ojukwu (1986) 1 All NLR (Pt. 1) 194 at 203/204; Agbor v. Metropolitan Police Commissioner (1969) 1 WLR 703 at 707; Lugande v. Services Hotel Ltd. (1969) 1 All ER 692 at 695) 696; Banjo v. Aiyekoti (1973) 1 All NLR (Pt.1) 319; Oyefona v. Ajani (1959) WNLR 213.

The action of the 1st defendant by invading the premises with Assistance of Police on 20th and 26th September, 1994, to discharge fuel and to recover same was surely wrongful and unlawful. The two defendants are therefore liable to pay damages as rightly found by the learned trial Judge. This ground also fails and is accordingly dismissed too. The issue related to the grounds is therefore resolved against the two appellants.

The sixth and penultimate issues raises question whether the 2nd appellant/defendant by its refusal to surrender original licence and the deed of release letter to the respondent had breached exhibit C. On this issue, it is the submission of the appellant’s counsel that with the loss of petrol station, Clause 7 (page 4) of exhibit C was enforceable since the loan was repaid. He added that if the original licence was surrendered to the respondent then the 2nd defendant would not get fuel supply since it is an independent marketer. Also it was argued for the appellant that, if the respondent was allocated fuel by NNPC, it will divert and sell it in black market in violation of the government policy.

The appellants argued in their brief of argument that the respondent is not entitled to the fuel licence of the station and release letter for the following reasons:
“(1) That the licence belongs to the 2nd respondent.
(2) The 2nd Respondent had fully paid the loan.
(3) The Release letter is for the landlord and not the tenant.
(4) The landlord had terminated the sublease.
(5) That it is not possible to give the release letter to the marketer to relicence the station because the petrol station is not with the respondent again.”

It was further submitted on behalf of the appellant that a party who committed an illegal act cannot seek to benefit from his illegal or wrongful act. Responding to these appellants submissions, the respondent’s counsel submitted that the trial Judge was right in holding that the 2nd defendant/appellant breached exhibit C, when he refused to release the letter and to surrender the original licence of the petrol station to the respondent.

As reflected on pages 23/24 of the printed record, and according to the testimony of PW1, the plaintiff entered into an agreement with the 1st defendant for the lease of the filling station which said agreement gave birth to exhibit A and the addendum exhibit B which stated the actual time the lease agreement (i.e. exhibit A) will come into operation, that is to say, upon the procurement of licence to sell petroleum products and from the operational data authorized in the licence which later came to be the 1st of April, 1993 and to expire on 31/3/1995, since the tenancy is for 2 years. Now since the plaintiff had no licence and being not an independent or major marketer it engaged the 2nd defendant with the prior consent of the 1st defendant of course, to obtain licence on its behalf. They entered into a written agreement namely between the plaintiff and the 2nd defendant and that agreement gave birth to exhibit C (the Proprietary Agreement.)

The written consent received from the 1st defendant was exhibit D. DW3, Alhaji Awalu Etakhane, the Managing Director of the 2nd defendant/appellant testified in line with the above on page 36 of the record of proceedings. For all intend and purposes, the contents of exhibit C binds the plaintiff and the 2nd respondent. Now on page 4 of exhibit C, the under mentioned deposition appeared on Clause 7 thereof:-

“That in the event of determination of the agreement either by notice, breach or effluxion of time, the petrol filling station licence shall give to the Sublease of petrol filling station the original licence of the petrol filling station and release letter.”

This proprietary agreement (exhibit C) continued to be in operation until exhibit F terminated it. Thereupon, the plaintiff/respondent attempted to invoke the provisions of Clause 7 to the agreement and demanded the release of the original licence and the release letter from the 2nd defendant in order to relicence the petrol filling station through another independent marketer when 2nd appellant terminated exhibit C. The letter for or the demand of release of the document is exhibit H. The 2nd appellant however refused to release the documents to the plaintiff/ respondent on the ground that loss of the Filling Station was never envisaged when exhibit C was executed by it. I think that is not a reason good enough to warrant the 2nd appellant to retain the documents of the plaintiff. The refusal to release these document is contrary and contradictory to the agreement as contained in Clause 7 of the proprietary agreement (exhibit C). It is therefore a clear breach of exhibit C duly entered into by the plaintiff/ respondent on one part and the 2nd appellant of the other part as rightly held by the trial Judge. This issue is also resolved against the appellants.

The seventh and last issue pertains to the award of special damages made by the learned trial Judge in favour of the respondent/plaintiff.

It is the submission of the learned Counsel for the appellants that special damages claims must be pleaded specially and also strictly proved. He relied on and cited Omonuwa v. Walabi (1976) 4 SC 37 at 49; Kalu v. Mbuko (1988) 3 NWLR (Pt.80) 86; Pezestre v. United Paint (1969) 1 WLR 570; Monk v. Redwing Aircraft Co. Ltd. (1942) 1 KB 182. He further submitted that it is not correct for the lower court to simply rely on the evidence of the claimant above in awarding special damages. See Agbaje v. James (1967) NMLR 49; LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt.60) 413. He argued that before awarding the damages the lower court failed to consider exhibit R1 – R5 which showed that the station got two to three trucks only in a month during the period record of fuel scarcity. He said the amount awarded therefore was not justifiable. He also argued that the claim for special damages was speculative. Replying the learned Counsel for the respondent submitted that the plaintiff/respondent had proved special damages and that the trial Judge was right in making the award. It was further submitted that the appellant did not attack the amount or the evidence adduced, since the trial court in the absence of any contrary evidence challenging the amount claimed was correct in awarding the claim as respondent’s loss of earnings. See WAS v. KALLA (1978) 3 SC 2 1.

It is settled law that special damages can only be proved and recovered, if they are specially pleaded and strictly proved. A trial Judge cannot on his own make an individual assessment. He must act strictly on evidence adduced before him which he accepts as actually establishing the amount to be awarded. See Alhaji Otaru and Sons Ltd. v. Audu Idris and Anor. (1994) 4 SC WJ 156 at 172; Imane vs. Robinson (1979) 3 – 4 SC 1; Nzeribe v. Dave Engineering Co. Ltd. (1994) 8 NWLR (Pt. 361) 124; WACC Ltd. v. Caroline Poultry Farm Ltd. (2000) 2 NWLR (Pt. 644) 197 Mark vs. Redusing Aircraft Co. Ltd. (supra); Omonuwa v. Wahabi (1976) (supra); Kalu v. Mbuko (supra); N.B. Plc. v. Adefole Oladeji (Nig.) Ltd. (2002) 15 NWLR (Pt. 791) 589. In the instant case, the only evidence relied upon by the trial court before it awarded the entire amount claimed by the plaintiff was the oral evidence or the mere ipse dixit of the claimant alone who testified on behalf of the plaintiff as PW1, one Nze Sam O. Chukwueweghi a company Director of the plaintiff/ respondent company (see pages 22 – 27 of the record of proceedings).

Now, going by the contents of exhibit C the proprietary agreement, the 2nd appellant/defendant was to assist the plaintiff/respondent to obtain super petrol (PMS) diesel (AGO) or kerosene (DPK) from the NNPC without stating the quantity. In paragraph 19 of its statement of claim however, the plaintiff averred that the NNPC made allocation for 1,800,000 litres of PMS (Petrol), 900,000  litres of diesel (AGO) and 900,000 litres of kerosene (DPK) every year. This was also what PW1 confirmed in his evidence in chief.

Also in paragraph 21 of the statement of claim the plaintiff said that the filling station if not for the wrongful termination of the defendants it should have received four trucks of petrol, two trucks of kerosene monthly. But under cross examination regarding their claims of the allocation by the NNPC, PW1 had this answer to give at page 32 lines 32 to 36 of the printed record.

“My speculations of 1 million eight hundred thousand litres petrol in the allocation given to Ningi Petrol Station by NNPC. I am not in a position to say if this was supplied, the same thing for the 900,000 litres of kerosene.”

From this answer by PW1, one is convinced that the computation or projection was based on mere speculation. He was not certain on the computation. This is moreso because in another answer on the same page 32, but in lines 22 -32 of the record, PW1 exposed further uncertainty when he stated;
“Despite my projections, I agree that what I can get will depend on what I can get from NNPC Depot, Kano and what I can get through bridging from other depots in the country, Uralo gives me what I get. I agreed that there was fuel scarcity in 1994. The fuel I get also will depend on the fuel I am able to pay for.”

It is clear that the PW1’s speculations cannot be true. One would have expected the plaintiffs to call the NNPC staff to testify in order to support or give more weight to its case especially on the yearly projection. No evidence was also adduced by the plaintiff to prove the official price of each truck of fuel for its margin of profit or to verify same. I agree with the submission of the appellant Counsel that the basis of the computation of the allocation was speculative and the figures arrived at as loss of earnings or loss based on alleged margin of profit were not strictly proved as they could be wrong too. In the case of Agbaje v. James (supra) the Supreme Court held that documentary proof is sine qua non to prove of special damages. The plaintiff should have called the NNPC, who is the authorized national supplier of petroleum product to testify on the projected supplies, the actual price of each category of its products and the possibly quantity the plaintiff would have been supplied within a given period or should have its (NNPC’s) guidelines in that regard or receipts of its previous supplies or purchases. Also no independent evidence was called by the plaintiff/respondent on its marginal profit. In the case of LSDPC v. Foreign Finance Corporation (1987) 1 NWLR (Pt.50) 413, where the plaintiff claimed a certain sum as special damages as cost of graders, 2 tractors, 2 mixing machines, this court held that the plaintiff should have called the suppliers of those types of machines to give evidence on cost of each of such items and failure to do so led to the disallowance of the claim for special damages in its entirety.

A plaintiff claiming special damages for loss on earning or loss of profit must not only specially plead it with sufficient particulars, but must also lead neat and credible evidence in strict proof thereof which would readily lead itself to establish the quantity or assessment. In the instant case besides the averments in the statement of claim, which were denied in the defendant’s statement of defence reliance was simply and solely relied on the ipse dixit of the plaintiff’s director which to say the least was short strict proof. See Haway v. Mediawa (Nig.) Ltd. (2000) 13 NWLR (Pt. 683) 77 at 85/86.

There is no indication that PW1 is an expert or experienced in the transaction with NNPC regarding supplies of petroleum products. In Wasa v. Kalla the ipse dixit of a plaintiff was accepted as sufficient proof of special damages of loss of profit claimed by the plaintiff, because the witness was an expert in the trade. That is not the case in this instant case. Also in the case of Bonham Carter v. Hyde Park Hotel Ltd. (1948) TLR 177, Lord Goddard said that it was not enough to write down the particulars of loss and so to speak through them at the head of court, saying “This is what I have lost I ask you to give me these damages.” I agree with the submission of the learned Counsel for the respondent that strict proof of special damages does not connote that it must or can only be done through documentary evidence. But then the evidence be it oral must be credible, reliable and categorical and must go along way in establishing as in this instance case, the profit margin, qualification or assessment and the actual projection from the answers given by the only witness who testified on that, it was mere speculation. I think the lower court was wrong in relying heavily on the sole evidence of ipse dixit of the PW1 which was given within the realm of conjecture in making such a huge but unverified claim.

In the light of what I have said above, I entirely agree with the appellant’s counsel that special damages claimed by the plaintiff was not proved strictly to justify the award made by the lower court. This ground therefore, succeeds and is accordingly allowed. The issue related thereto is resolved in favour of the appellant.

As a corollary, all the grounds of appeal, but one have failed and are accordingly, dismissed by me. The seventh ground on award of special damages, has however, succeeded and is accordingly allowed. The judgment of the lower court is affirmed with regard to 1st to 6th grounds of appeal. The seventh ground of appeal having succeeded is accordingly allowed. The award of special damages made by the lower court is hereby, set aside. I decline to make any order on cost.

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Other Citations: (2003)LCN/1454(CA)