R. A. Akingbade V. L.T. Gen. T. Y. Danjuma & Anor. (2009)
LawGlobal-Hub Lead Judgment Report
ABUBAKAR DATTI YAHAYA, J.C.A.
The facts briefly, are that the appellant and the respondents, entered into a lease agreement in respect of property No. 29 Ahmadu Bello Way, Jos, belonging to the 1st respondent, whilst the 2nd respondent was the care-taker. The lease agreement signed by the parties, expired on the 31/8/1991 and the appellant paid another N10,000.00 as one year’s rent in respect of the said property, commencing from the 1/9/1991, to end on the 31/8/1992. During the subsistence of the lease agreement, the appellant sub-let the premises to other persons without the consent of the respondents, contrary to Clause 2(g) of the lease agreement. The respondents terminated the agreement and on the 23/10/91, the 2nd respondent, in the company of his staff and two labourers, entered the premises, removed the goods therein, and locked it.
Aggrieved by the action of the respondents, the appellant as plaintiff took a Writ out of the High Court in Jos, in Suit No. PLD/J319/91, against the defendants (respondents) jointly and severally, praying in the Amended Statement of Claim, for
(a) N15,000 as special damages
(b) General Damages of N100,000 as aggravated damages
(c) Possession of the said premises
(d) Injunction restraining both defendants by themselves or their agents from continuing in occupation of the aid premises, and
(e) Further or other relief.
The Respondents on their part also sued the appellant in the High Court in Jos, in Suit No. PLD/J341/91, and prayed in the Amended Statement of Claim, for
(a) A declaration that the tenancy / sublease granted in favour of the defendant was determined by reason of his breach of its terms, for sub-under leasing without consent and also by the plaintiffs’ reentry of the premises in question;
(b) N20,795.00 damages being the cost of effecting repairs to remedy the damages caused to the premises by the defendant.
(c) N5,000.00 general damages.
At the hearing, both Suits were consolidated. The trial High Court in its judgment dismissed the appellant’s claims as unmeritorious. It found that the appellant had sub-let the premises without the requisite consent and had also vacated it. The right of re-entry was properly exercised since the appellant had breached the covenant. Further, that the goods removed from the said premises, were those of the sub-tenants who were there illegally, and not those of the appellant’s. It therefore granted the declaration sought by the respondents and also awarded N3,000:00 as general damages.
The appellant filed a Notice and six grounds of appeal, which are reproduced hereunder, without their particulars-
- The judgment is against the weight of evidence.
- The learned trial judge erred in law when he held that the act of respondents is justified when he (sic) forcefully ejected the appellant from the premises i.e. No. 29 Ahmadu Bello Way Jos and stated as follows:
“The plaintiff (PLD/J341/97 (sic) were justified when in exercise of their rights of re-entry as prescribed by clause 4 of Exhibit 7, they terminated the tenancy and evicted the defendant’s illegal sub-tenants as he was not in law or in fact in possession of the premises and had no interest legal or equitable in the shop and is therefore not competent to bring any action.”
- The learned trial judge misdirected himself in law and fact when he held that he disbelieved the evidence of PW2 and PW3 and believed the evidence of DW2 and stated as follows:
“The Court does not believe the evidence of PW2 and PW3 in view of the evidence of PW1 under cross-examination as well as DW2, a tenant he let into the premises.”
- The learned trial judge erred in law when he dismissed the action of the appellant and the trial court held as follows:-
“It is the law that a landlord who does not want subletting is required to give notice in the tenancy agreement or the receipt to the tenant that the premises or apartment shall not be sublet, assigned or leased out, where he gives this notice, any person the tenant puts in the premises or apartment cannot be landlord’s tenant as he did not get into possession of the premises lawfully.
The person is seen at best as a trespasser or a squatter and had no protection of a tenant under the law.
It is sufficient to say that such a person can be forced out of the premises or apartment.”
- The learned trial judge erred in law when he relied on the expired lease agreement to decide the case when he held as follows:
“The plaintiff in PLD/J341/91 (respondent) were justified when in exercise of their right of re-entry as prescribed by clause 4 of Exhibit 7, terminated the tenancy and evicted the defendants’ (appellant) illegal subtenant as he was not in law or in fact in possession of the premises and had no interest legal or equitable in the shop and is therefore not “competent to bring the action.”
- The learned trial judge erred in law when he rewarded N3,000.00 as general damages having held as follows:
“On the 2nd head of claim that is damages caused to the premises by the defendant (appellant), there is no evidence before the court to sustain this head of claim. Special damages must not only be pleaded but strictly proved. There is nothing to show that certain items were purchased for the purpose of effecting any repairs. This head of claim fails and is hereby dismissed.”
The appellant’s brief filed on the 21/2/2007 was, by the Order of this court, deemed filed on the 21/6/2007. The respondents’ joint brief was filed on the 2/8/2007 within time. The appellant’s reply brief filed on the 26/11/2007 was, by the Order of this court, deemed filed on the 7/5/2009. At the hearing of this appeal, the parties adopted all the briefs of argument.
In the appellant’s brief, settled by his counsel Omolade Makanjuola Esq, four issues were identified for determination. They are –
- Whether having regard to the evidence adduced by the parties, was it proper for the trial Court in endorsing the forcible ejection of the plaintiff (now appellant) by the defendants (respondents) from the premises in question – No. 29 Ahmadu Bello Way, Jos without due process of law and dismissed the appellant’s case.
- Whether the learned trial judge was right when he relied on the evidence of DW2 and disbelieved the evidence of PW2 and PW3 in view of the fact that the DW2 has financial interest to protect in the property in question having taken the whole store after the forcible ejectment of the appellant and became tenant of the respondents as at the time he gave evidence as DW2.
- Whether the learned trial judge could rely on the expired lease Agreement between the parties and even if the lease was subsisting can the breach if any, lead to forcible ejection of the appellant.
- Whether the learned trial judge can award general damages in favour of the respondent in the counter-claim when the trial Court ruled that there was no proof of any damage to the premises by the appellant.
The respondents, in their joint brief of argument, settled by Ibrahim Hamman Esq, argued the Preliminary Objection against Issue No. 1 identified by the appellant, for being incompetent. It is their argument that none of the grounds of appeal complained of “forcible ejection of the plaintiff without due process of law,” and that since the trial court had made a finding that the appellant was no longer in possession and had vacated the premises in question, no issue can arise in this appeal, concerning the ejection of the ‘plaintiff.’ Furthermore it was submitted, Issue No.1 as formulated by the appellant, was not related to any ground of appeal, is therefore incompetent and should be struck out. Reference was made to ANSAMBE VS. B.O.N. LTD. (2005) 8 NWLR {PT.928} 650 at 669; BARIDAM V. STATE (1994) 1 S.C.N.J 1; OKPALA VS. IBEME (1989) 2 NWLR {PT.102} 208; AFRICAN PETROLEUM V. OWODUNNI (1991) 8 NWLR (PT. 210) 391 and ANON LODGE HOTELS V. MERCANTILE BANK OF NIGERIA LTD. (1993) 3 NWLR (PT. 284) 721.
The appellant took up the issue of the Preliminary Objection in the Reply brief. Grounds 1 and 2 of the grounds of appeal and the first issue for determination said to be based on grounds 1 and 2 of the appeal, were reproduced. It was then argued that the evidence led before the trial court, had established that the appellant was a tenant in the premises, having paid his rent in August 1991 to cover up to September 1992. Since this was so, it was wrong for the trial court to endorse the forcible ejection of the appellant by the respondents, through self-help, it was argued.
Counsel then urged us to dismiss the Preliminary Objection.
It is correct, that ground 2 of the grounds of appeal, attacks the endorsement by the trial court, of the forcible ejection of the appellant from the premises in question, by the respondents, even though the quotation did not support the body of the ground. So Issue No. 1 raised by the appellant, which is on the propriety of the trial court justifying the forcible ejection of the appellant by the respondents, is clearly based on ground 2 of the appeal. This is plainly obvious, contrary to the submission of the respondents in their arguments on the Preliminary Objection. But that is not the point. The crux of the matter is that the trial court did not make a finding or did not at all, decide that the plaintiff was rightly forcibly ejected by the respondents. Rather, as correctly submitted by the respondents in their brief of argument in respect of the Preliminary Objection, the decision of the trial court was that it was the appellant’s “illegal sub-tenants” that were evicted from the premises in question, since the appellant “was not in law or in fact, in possession of the premises.” So ground of appeal No. 2, was not attacking a decision of the trial court. ‘Decision’ is defined by S. 227 (3) of the Evidence Act, to include “a judgment, order, finding or verdict.”
A ground of appeal is raised by an appellant as an attack or complaint against a decision of the trial court or an appellate court. It is an indication of his dissatisfaction with the judgment and the particular areas of grudge – DERE V. EBWA (2006) 1 SCNJ 160 at 204. A ground of appeal is not at large, attacking every cough or grunt made in the course of a judgment. No. A ground of appeal must firstly, arise from and be directed at what was decided by the court and secondly, it must relate to the ratio decidendi. The first hurdle to cross, is to ensure that the ground of appeal is attacking a decision of the court, See NWANKWO V. EDCS (2007) 2 SCNJ 89 at 99. So if a point was not decided by the court, no competent ground of appeal can be formulated therefrom, unless it is a complaint that there was a failure to so decide.
The second hurdle (and both hurdles must be crossed) is that the decision appealed against, must have been the ratio decidendi, not an obiter dictum made in passing. See ONI V. FAYEMI (2008) 8 NWLR (PT. 1089) 400 at 427 – 428; BUHARI V. INEC (2008) 12 SCNJ 1.
In the instant appeal, as stated earlier on, the trial court did not decide that the appellant was properly forcibly ejected by the respondents and therefore, there cannot conceivably, be a complaint by way of a ground of appeal, that the court was in error to hold that he was properly forcibly ejected. As this did not form part of the conclusions of the trial court, this court will therefore not entertain a ground of appeal in which the trial court did not decide upon. In CO-OPERATIVE COMMERCE BANK V. JONAH EKPERI (2007) 1 SCNJ 461, at 477 – 478 Onnoghen JSC in the lead judgment, held –
“the complaint in the original sole ground of appeal contained in the Notice of Appeal does not relate to the decision of the Court of Appeal allegedly appealed against.
It is clear that the sole ground of appeal does not arise from that judgment. It is settled law that for grounds of appeal to be valid and competent, they must be related to the decision being appealed against and should constitute a challenge to the ratio of decision on appeal. It is still good law that where a ground of appeal as formulated does not arise from the judgment and purports to raise and attack an issue not decided by the judgment appealed against, as is evident in the instant appeal, the same becomes incompetent and liable to be struck out.”
Following all of above, I hold that the second ground of appeal is incompetent – ABISI V. EKWEALOT (1993) 6 NWLR (PT. 302) 643. It is struck out. Issue No.1 therefore has no ground of appeal to support it, since an Omnibus ground (ground 1 of the appeal) cannot be used to raise or attack a specific finding of the trial court -OPARA V. SCHUMBERGER LTD. (2006) 7 SCNJ 373 at 386 – let alone in a situation where there is no decision regarding the complaint in the ground of appeal. In this vein therefore, Issue. No. 1 is also incompetent and is struck out along with all the arguments proffered on it – KALU MARK V. EKE (2004) 1 SCNJ. 245 at 267 – 268; UNITY BANK V. BOURI (2008) 2 SCNJ 116 at 133 and DERE V. EBWA (supra) at 204. The Preliminary Objection therefore succeeds and it is upheld.
In my view, the issues that call for determination in this appeal are those that were formulated by the respondents, with a slight modification, thus –
- Whether on the evidence before him, the learned trial judge was right when he accepted the evidence of DW2 and disbelieved the testimony of PW2 and PW3. Ground 3 of the grounds of appeal.
- Whether on the evidence before the learned trial judge, he was right when he relied on Exhibit 7, the lease agreement, and dismissed the Appellant’s claims on the premise that it was the appellant’s illegal sub-tenants that were evicted. Grounds 2, 4 and 5 of the grounds of appeal.
- Whether the learned trial judge was right to award general damages to the Respondents in the circumstances of this case? Ground 6 of the grounds of appeal.
ISSUE NO.1
This has to do with believing DW2 and disbelieving PW2 and PW3.
The learned counsel for the appellant in the brief referred to the evidence of PW2 and PW3 at pages 87 – 91 of the record and submitted that it was these witnesses who helped the appellant to carry out his property thrown out of the premises in question, to other places for safekeeping.
He then referred to the evidence of DW2 at pages 107 – 109 of the record, and submitted that DW2 was a tenant of the appellant at the time he gave evidence before the lower court, in the whole premises in question, – No. 29 Ahmadu Bello Way, Jos, – having paid N20,000.00 per annum (double the amount the appellant was paying). This, he argued, indicates that DW3 had financial interest to protect in the outcome of the proceedings. He referred to paragraph 24 of the amended statement of claim which averred that the appellant wanted the court to return him to the premises in question, and argued that if that was granted, DW3 who was now occupying the premises would lose out financially and that that explains why he gave evidence in line with the 2nd respondent’s evidence. Furthermore, if DW3 did not give evidence in line with the 2nd respondent’s evidence, he would be ejected from the premises, as the 2nd respondent had earlier threatened to remove the goods of DW3, if he remained in the property, at the time the property was being locked up.
He placed reliance on MRS. ANYABOSI V. R. T. BRISCOE NIG. LTD. (1987) 1 NWLR (PT. 59) 84 at 109 and GABRIEL DUROSHIMIRI V. DUROODINZE (2001) 9 NWLR (PT.717) at 244.
The contra argument of counsel for the respondents on this issue is that the oral evidence of the appellant under cross-examination, the 2nd respondent as DW1 and DW2, as well as the documentary evidence in Exhibits 3 and 6, had established that the appellant had vacated the premises in question and had no goods therein. On the other side of the coin, the evidence of PW2and PW3and the appellant in his evidence-in-chief, had shown that the appellant was still in occupation of the premises in question and that the goods removed therefrom, were his goods. The trial court therefore had a duty to assess the credibility of the witnesses, in order to arrive at a conclusion. Counsel submitted that the trial judge put the evidence led, on the imaginary scale of justice and resolved the issue in favour of the respondents, after he disbelieved the evidence of PW2 and PW3. Since the assessment of the credibility of the witnesses was within the trial judges’ domain, and his findings are not perverse, they should be upheld, counsel argued. He referred to OGUNDULU AND ORS V. PHILLIPS AND ORS. (1973) 2 S.C 71 at 8O; EGRI V. UPERI (1974) 1 N.M.L.R 22 and BAMIGBADE V. BALOGUN (1994) 1 NWLR (PT.323) 718 at 745.
Counsel submitted also, that the evidence of PW2 and PW3, even if accepted, contradicts the evidence of the appellant under cross-examination, when he admitted sub-letting the premises in question, without consent and that he was no longer carrying on business in the premises in question but at No. 5/7 Rwang Pam Street, Jos. He referred to YUSUF V. OBASANJO (2005) 18 NWLR (PT. 956) 96 AT 213 and urged us to reject the evidence of the appellant and his witnesses.
On the rejection of the evidence of DW2 due to his financial interest, counsel submitted that the point was not taken at the trial court and since no leave has been sought and obtained to raise it in this court, it is incompetent and should be discountenanced. On the merit, counsel submitted that the “financial interest” of DW2 has not been established, especially as he was compelled by means of a subpoena to testify in court, after he failed to voluntarily testify. He referred to section 76 of the Evidence Act and submitted that DW2 was a competent witness.
Now, it has been established, by a long line of authorities that the finding of facts and assessment of the credibility of the testimony of witnesses, belong to the exclusive province of a trial court. Once the trial court properly exercises those functions, an appellate court is not at liberty to interfere. See MAJORUMORU VS. ALHAJI ZIBIRI (2003) 6 SCNJ 290 at 302; CIVIL DESIGN CONSTRUCTION V. SCOA LTD. (2007) 2 SCNJ 252 at 278; and WAMADI EJILEMELE V. BELEME (2003) 5 SCNJ 1 at 15. In a situation where the demeanour of witness is involved, clearly, the trial court, which had the sole advantage of seeing and hearing the witness, has the exclusive preserve to ascribe probative value to his testimony- AMSON OWIE V. SOLOMON IGHIWI (2005) 1 SCNJ 187 at 194 and KAMALU VS. UMUNNA (1975) 5 NWLR (PT. 505) 321 and BAMGBADE V. BALOGUN (supra) cited by counsel to the respondents. However, where the trial court fails in its time – honoured duty to properly evaluate the evidence led before it, an appellate court would be justified to interfere and evaluate the evidence on record, provided the demeanour of witnesses, is not involved NIGERIAN AIRWAYS LTD V. ABE (1988) 4 NWLR (PT. 90) 524; EBBA V. OGODO (1984) 1 SCNLR 372; KAZEEM V. MOSAKU (2007) 2 SCNJ 135 at 152 and OKWEJIMINOR VS GBAKEJI (2008) 1 SCNJ 481. So where the findings of fact by a trial court are perverse, not supported by the evidence or contrary to law, an appellate court would be perfectly justified to interfere.
In the instant appeal, the trial judge reminded himself that in civil cases, issues are decided on the balance of probabilities, by putting evidence adduced by both parties on an imaginary scale, and then evaluating the evidence. He then came to the conclusion that he did not believe the evidence of PW2 and PW3 in view of the evidence of PW1 elicited under cross-examination and also, the evidence of DW2. This goes to the credibility of the witnesses, and this court is not at liberty to interfere with the findings and assessment of the credibility of the witnesses. In OKWEJIMINOR V. GBAKEJI (supra) AT PAGE 507, the Supreme Court per Onnoghen JSC held –
“in appeals against the finding of facts the issue of credibility of the witnesses who testified at the trial cannot be taken before the appellate court.” (Emphasis mine)
As to the evidence led which the trial court assessed, PW2 throughout her testimony, never stated that the goods removed from the premises in question, belonged to the appellant. She said at page 87 of the record, that she saw “Labourers inside the shop removing items out. ….” She did not say they belonged to the appellant. Again, PW1 in his evidence under cross-examination, admitted telling a lie concerning the sub-letting of part of the premises to DW2. He also said that the goods removed “were not toilet” meaning toiletries; but PW2 at page 88 of the record, said the items included “toilet rolls”, thus contradicting him. Again, PW2 at page 89, said that the appellant had “no shop elsewhere”, thus contradicting the appellant who at page 82 of the record, stated that he was carrying on business at No.5 Rwang Pam Street temporarily, showing that he had a shop there. The testimony of PW2 is also in contradiction to the evidence of PW3 who at page 90 of the record, stated that he went to the “plaintiff’s shop along Rwang Pam Street…..”
DW1 on his part at page 98 of the record, stated that the goods removed from the premises in question, belong to NICE TOP Industries, and at page 100, that the appellant “had left the premises. He was no longer in possession.” This was corroborated by the evidence of DW2 at page 108 of the record, when he said that the appellant had “removed all his goods from the part he was using to his new place before NICE TOP entered the premises.” Under cross-examination, he said “After the plaintiff left the place, I stayed in the premises for more than five years…..
I was present when the properties of NICE Paper were packed out. ……
The goods of the plaintiff were no longer in the shop. The goods that were removed out of the store did not belong to the plaintiff but to NICE Paper Company”.
There is therefore, abundant evidence upon which the trial judge based his finding and rejected the evidence of PW2 and PW3. The finding clearly, is therefore not perverse. DW2 did not voluntarily, give evidence. He had to be compelled to testify by means of a subpoena and this does not indicate the attitude of a person who wanted to serve his interest. It is only incidental that he became a tenant in the premise in question and was paying double the amount the appellant was paying.
This is not a ground of financial interest strong enough to disqualify him as a competent witness to the appellant. After all, if the appellant had succeeded in going back to the premises in question, the un-utilised part of the rent paid by DW2 would have been refunded to him, just like the appellant was refunded the un-utilised part of the one year rent he paid when the tenancy was terminated on the grounds of his breach of the agreement.
Again, when the 2nd respondent removed the property of NICE TOP from the premises in question, he directed DW2 to vacate the premises the following day, otherwise his goods would be removed. This buttresses the fact that DW2 was there illegally and the 2nd respondent wanted him to vacate. This does not show any favouritism to DW2 or a threat, compelling him to testify for the 2nd respondent.
In the Reply brief, counsel submitted that paragraph 18 of the amended statement of claim, which pleaded the list of goods belonging to the appellant which were thrown out, was not denied by the respondents.
This is not correct, for at page 65 of the record, paragraph 21 of the amended statement of claim shows that there was such denial.
“The defendants deny paragraph 18 of the claim. In further answer, the defendants aver that the goods removed were only bales of toilet roll and furniture belonging to NICE TOP Paper Industries limited and not the plaintiff ….”
Evidence was led to that effect and the trial court accepted same.
This court cannot interfere with the finding since it is supported by evidence.
The respondents have argued that the financial interest of DW2 in the property in question is a new issue which was not canvassed at the trial court and since no leave was granted, it cannot be raised in this court. I don’t think they are on proper ground here. Evaluation of the evidence and the acceptance of the evidence of DW 2, arose in the judgment of the trial court, and since it was a decision of that court, the appellant can raise it. In sum, Issue No. 1 is resolved against the appellant.
Issue No.2 has to do with the reliance on Exhibit 7 by the trial court and the dismissal of the appellant’s claim on the premise that it was the appellant’s illegal sub-tenants that were evicted. Counsel for this appellant argued here, that Exhibit 7, the lease agreement, had expired and was not renewed and therefore, could not be relied upon by the court to make a finding that the appellant had breached its terms, especially as the consent of the Governor had not been obtained. It was the argument of counsel for the appellant also, that there was no breach of the agreement, since the appellant had intimated the respondent that NICE TOP Paper was coming into the premises and the one year rent for the premises, was paid by means of a cheque of the NICE TOP Paper and a request made to issue the receipt in its name. Alternatively, the 2nd respondent had condoned the breach if any, it was argued. Counsel for the respondents in his response, submitted that in law, when a tenancy agreement expires but the tenant holds over and paid his rents which the landlord accepted, a renewal of the original lease by the same terms, would be deemed. He cited in aid, UDE V. NWARA (1993) 2 NWLR (PT. 278) 638 at 660 – 661. Further on the evidence, counsel submitted that the appellant had in his evidence. I before the trial court stated that his tenancy was renewed on the same terms as Exhibit 7. On the 2nd respondent being aware of the coming into the premises of NICE TOP Paper and its payment of rent for one year via its cheque, counsel argued that this was contrary to the pleadings and the evidence of the appellant wherein he admitted bringing the company into the premises, without the consent of the landlord.
It is not controverted, that the four year lease agreement (Exhibit 7) was to last up to August 1992. There is also the evidence of the appellant that in August 1991, he paid rent for one year in respect of the premises, which was to terminate on 31/8/1992. Exhibit 1A is the receipt issued to him for the one year renewal. This is clear at page 18 of the record. Under cross-examination at page 84, the appellant stated thus –
“Exhibit 7 is the second tenancy agreement with the defendant. Exhibit 7 was renewed by Exhibit 1A:
The terms and conditions of the renewal -of the tenancy was my payment of rent for one year. After the payment of the rent, a new agreement was to be drawn up. I was to remain in the premises on the same terms and condition I was staying there i.e. Exhibit 7”
The above shows very clearly, that Exhibit 7 was the operational agreement between the parties in respect of the premises in question, up to the 31st of August 1992. It was therefore the applicable agreement as at the 25th of October 1991, when the sub-tenants were evicted from the premises. Counsel for the appellant is not correct therefore, when he submitted that the Exhibit was not renewed. By operation of law also, Exhibit 7 had been renewed and was the document governing the relationship between the parties in respect of the premises at the material time of eviction. See UDE V. NWARA (supra) helpfully cited by counsel for the respondents, where it was held that-
“As a lessee whose term of lease had expired but who held over and remained in possession……. Once that situation arose in this case, if the lessee holding over paid rents and the landlord accepted it, it would be deemed to be a renewal of the lease on the same terms and conditions as the original lease.”
Clause 2 (g) of Exhibit 7 is a covenant of the tenant (appellant),
“Not to assign, underlet or part with possession of the premises without the consent of the Landlord and the Government of the Plateau State”
Clause 4, (not 7 as stated in the respondents’ brief), states in parts, that
“…… if any of the covenants on the part of the Tenant shall not be performed or observed then the Landlord may re-enter upon the said premises or any part thereof and thereupon this demise shall absolutely determine……”
Out of the mouth of babies, wisdom sometimes flows. In his own words under cross-examination, the appellant stated at pages 82 – 83 of the record, that
“I sub-let the place to Emmanuel Okpala. The same No. 29 Ahmadu Bello Way 1 rented the place to Emmanuel Okpala at N2,500.00 and each time he paid me I issued receipt to him. I don’t know if I obtained the consent of my Landlord before I sublet part of No. 29 to Okpala.
When the 2nd defendant confronted me, I told him that we were trading together. I do realize that what I told the 2nd defendant was a lie.
I know a Company called NICE TOP Paper Industry Limited, the company deals in toilet rolls. The company started business in the premises rented to me (No. 29) in October 1991….. I brought them into the premises ….. I did not obtain the consent of the Landlord before calling in NICE TOP Paper Industry.”
It is plain therefore, that the appellant had admitted breaching his covenants in Exhibit 7, contrary to the submission of counsel for the appellant. Admission of a party, is evidence of facts against him and the court is entitled to make use of it – NIGERIAN BANK V. INTERGRATED GAS (2005) 1 SCNJ 104 at 121. The breadth entitled the respondents to determine the tenancy which they did, and then evicted the illegal sub-tenants of the appellant. It is to be noted that the finding of the trial court to the effect that it was the appellants illegal sub-tenants that were evicted from the premises, and not the appellant, “as he was not in law or in fact in possession of the premises and had no interest legal or equitable in the shop” has not been appealed against. In such a situation, the finding must be taken as correct and settled. No argument can arise therefrom at this stage
See CHARLES UDEGBUNA V. F.C.D.A. (2003) 5 SCNJ 131 at 139. All submissions by the appellant that he was still in occupation of the premises and could not be evicted without a court order go to no issue, since there is no appeal against the finding of the trial court.
They are discountenanced.
Following SOLANKE V. ABED (1962) NNLR 92, counsel for the respondents is right, that failure to obtain the consent of the Governor does not vitiate a tenancy agreement. Again, Exhibit – I could not be said to be a communication that NICE TOP Paper was coming into the premises. A specific request for consent of the Landlord and a grant of that request for consent of the Landlord and a grant of that request was necessary, to enable the appellant to so sub-let. He has agreed that he did not obtain the consent. The payment of the rent by means of cheque of NICE TOP Paper is no proof that it was NICE TOP Paper that paid the rent since anybody’s cheque could be used to effect the payment. The refusal of 2nd respondent to issue the receipt in the name of NICETOP Paper shows that he did not accept the sub-letting and did not condone it. Issue No.2 is thus resolved
against the appellant.
ISSUE NO.3 is in respect of general damages, awarded to the respondents. Counsel for the appellant argued that since the trial court had made a finding that no items were purchased for the purpose of effecting any repairs to the premises in question, the respondents did not suffer any damages and could therefore not be entitled, to any general damages, especially as the appellant had not committed any wrong. ADENIRAN V. ALAO (1992) 2 NWLR (Pt. 223), 250 at 372 and CALABAR VS. IKOT (1999) 14 NWLR (PT. 638) 225 at 243 were referred to.
For the respondents, it was submitted that the award was not unreasonable or excessive and that expenses incurred by DW2 in effecting repairs to the premises damaged, was deducted from the rents paid by DW2, and is a basis for the award.
The trial court made a finding that the appellant had sub-let the premises in question to illegal sub-tenants who went into possession.
The appellant was warned by the respondents that he should remove his illegal tenants but he refused to heed the warning – page 150 of the record. He had thus committed the tort of trespass, according to the court and claim for trespass, there is no requirement to prove damages as it is actionable per se unless compensation is required by way of special damages. Once trespass is proved, a court would award general damages. See AJAYI V. JALAOSHO (2004) 2N NWLR (PT.856) 89.
An appellate court will generally not interfere with the assessment of the trial court, unless it is proved to its satisfaction, that the award is manifestly too high or too little or was proceeded of a wrong principle. See SHELL PETROLEUM V. TIEBO VII (2005) 4 SCNJ 39, at 58 and 61. There is no complaint before this court, let alone proof, that the award of N3,000.00 general damages is too high or too little or that it was proceeded upon a wrong principle. An appellate court cannot whimsically interfere with an award when there is no cause shown: Issue No.3 is thus resolved against the appellants.
On the whole, therefore, this appeal lacks merit and it is dismissed. The judgment of the lower court is hereby affirmed.
No order as to costs.
Other Citations: (2009)LCN/3459(CA)
