Chief S. I. Agu V General Oil Limited (2015)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting in Benin delivered on 27th May, 2004 wherein the lower court allowed in part the appeal of the respondent herein against the judgment of the High Court of Delta State. A brief facts leading to this appeal will suffice.

The appellant herein subleased his piece of land situate along Effurum/Patani Expressway for a period of ten years subject to renewal to the respondent. Clause 4B of the lease agreement stipulated that the respondent shall not sublet, assign or part with possession of the property without the consent of the appellant. In apparent violation of the said clause 4B, the respondent mortgaged the property to First Bank of Nigeria Plc. As a result of the mortgage between the respondent and First Bank, the appellant was unable to rent, lease or use his landed property for two years. Consequently, the appellant brought an action at the High Court of Delta State against the respondent seeking the following reliefs:-

“(i) A declaration that the Deed of Mortgage dated 17/10/1990 created by the 1st Defendant in favour of the 2nd Defendant and registered as No. 33 at page 33 in Volume 783 at the Lands Registry Office Asaba is null and void and of no effect.

(ii) Special Damage of N240,000.00 per annum being receivable rent in respect of the premises effecting from 12:11:93 and to 02:06:95.

(iii) General damages of N10,000,000.00 for the said breach.”

Pleadings were filed and exchanged. At the trial, the appellant testified on his own behalf and called no other witness. One witness also testified for the respondent. After address of counsel, the learned trial judge in a reserved judgment, dismissed the appellant’s first claim and granted the other two reliefs. In respect of the appellant’s claim for special damages (as plaintiff) the learned trial judge held as follows:

“Thus in the instant case, going by Exhibit “G” and plaintiffs evidence, plaintiff is entitled to special damages as the same is specifically claimed and strictly proved, being rents due to and receivable by plaintiff from 2/11/83 up to 12/11/93 when first defendant refused to renew the sublease after the 1st ten year period. The total receivable rent due and payable to the 1st defendant to the plaintiff is N300,000.00.

Accordingly, I hold that special damages in the sum of N300,000.00 which is pleaded specifically and strictly proved by reference to Exhibit G is hereby awarded plaintiff against the 1st defendant.”

With regards to the claim for general damages, the learned trial judge stated that “damages are the natural or probable consequences of such breach being within the contemplation of parties to a contract.” He then concluded:

“In the light of the above, and having regard to the available evidence, I hold that 1st defendant is in breach of contract; and that plaintiff suffered damages.

Accordingly, I hereby award the sum of N7.5 Million (Seven Million, Five Hundred Thousand Naira) as general damages in favour of the plaintiff against 1st defendant for breach of contract.”

Dissatisfied with the above judgment, the respondent herein appealed to the Court of Appeal. After hearing argument from both sides, the lower court allowed the appeal in part in the following words:

“In the result, this appeal succeeds in part. The judgment of Narebo, J, delivered on 1st April, 1999 awarding to the respondent the sum of N7.5 Million as general damages is hereby set aside. The award of N300,000.00 as special damages is hereby affirmed.”