Nigerian Bottling Company Plc. Vs. Chief Uzoma Ubani (2013)

LAWGLOBAL HUB Lead Judgment Report

M. CHUKWUMA-ENEH, J.S.C.

This appeal is against the decision of the Calabar Division of the Court of Appeal adjudging the defendant/appellant in this court liable to pay a total sum of N18,982.700 (Eighteen Million, Nine Hundred and Eighty-Two Thousand and Seven Hundred Naira Only) as general and special damages for trespass occasioned by an unlawful use and occupation of the plaintiff’s warehouse and premises situate at No.55, Obudu Road, Ikom, Cross River State.

From the facts of this matter the claim of the plaintiff at the trial court as per his Further Amended statement of Claim is as follows:

Particulars of Special Damages

(i) N196, 274.00 being loss of rent by the plaintiff on the property from August 1991 when the 1st defendant broke into the property to July 1993 (two years) at N98, 137.00 per annum.

(ii) N157,020.00 being loss of rent on the property from August 1993 when the value of the property appreciated to July 1994 (one year) at the reviewed rent of N157,020.00 per annum.

(iii) N15 Million being loss of income by the plaintiff in the 1994/95 cocoa season when the plaintiff was unable to use his premises to execute his contract with Zorbacrest Limited.

(iv) N353,295.00 being loss of rent on the property from July 1995 to September 1997 when the terminal repairs on the property were completed for the plaintiff to take effective possession (two years and two months) at the rate of N157,020.00 per annum.

(v) N909,500.00 being cost incurred by the plaintiff in the repairs and renovation of the property after it was abandoned by the 1st defendant.

Total amount of special damages = N16, 616,089.00.

(vi) N10 Million as general damages for other losses and expenses incurred by plaintiff as a result of the 1st defendant’s trespass and unlawful occupation of the plaintiff’s warehouse and premises.

GRAND TOTAL = N26, 616,099.00.

In furtherance to the facts of this matter at the trial court, parties have filed and exchanged their respective pleadings and have called witnesses. It is the defendant/appellant’s case that the 2nd defendant at the trial court, the erstwhile wife of the plaintiff/respondent, is the lessor of the said property and premises in question to the defendant/appellant for its use and occupation. The plaintiff/respondent is a cocoa merchant and the owner of the vast warehouse as aforesaid, and in 1990 he has moved to England where he has secured in 1994 a contract to supply 1500 tonnes of “fermented Nigerian cocoa beans” to Messrs Zorbacrest Limited of No.173 Winchester Road, London, the provisions of the agreement are as articulated in Exhibit D an agreement entered into between the plaintiff/respondent and Messrs Zorbacrest Limited. In furtherance of Exhibit D he returned to Nigeria in 1994 with the aim to using the aforesaid warehouse for the process of fermenting cocoa beans in connection with the alleged contract with Messrs Zorbacrest Limited only to discover that the defendant/appellant has broken into the said warehouse and environs without his knowledge as far back as August 1991 using and occupying the same as its branch office, soft drink depot, staff quarters and distribution trucks garage. Inspite of the plaintiff/respondent’s request of defendant/appellant to vacate the premises as per his solicitors letter dated 5/8/1994 so as to enable him among other things use the same for processing his cocoa beans in order to meet his contractual obligations to Messrs Zorbacrest Limited as per Exhibit D or alternatively to pay to him what the plaintiff has called “a concessional sum” to enable the plaintiff to rent a warehouse for “sourcing and drying the cocoa beans to be exported to Messrs Zorbacrest Limited” as per Exhibit D. The defendant/appellant has not reacted to the letter and has refused or neglected to quit the property and also has brazenly refused to pay any rents for the use and occupation of the premises. The defendant/appellant has remained in the property for seven years and has only vacated the same in 1997 having left the property in a most deplorable disrepairs; even although this action has been instituted against it in September of 1994 for recovery of the property and damages thereof for the unlawful use and occupation of the property. Following the plaintiff/respondent need for the premises for his business and being unable to recover the property and premises from the defendant/appellant as and when needed for the execution of the said contract as per Exhibit D plaintiff/respondent a huge financial loss of earnings has been occasioned to the plaintiff/respondent as a direct result of the defendant/appellant’s neglect and failure to vacate the premises for purposes of enabling the appellant to execute his contract with Messrs Zorbacrest Limited, consequently he has lost that business.

It is on the backdrop of these facts-situation that the trial court’s award to the plaintiff of the sum of N19, 618,089.00 as special and general damages for trespass has been predicated. Aggrieved by that decision, the defendant/appellant has appealed to the lower court which in affirming the trial court’s judgment has re-evaluated the total award by reducing it to N18, 982,700.00.