Tufu Akubueze Chinekwe & Ors Vs Chief M. Ogo Ibeziako (1975)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN.

This is an appeal against the judgment of Egbuna J., which was delivered at the Onitsha High Court on March 29, 1972, in Suits 0/6/71 and 0/20/71 in which the plaintiff was granted a declaration of title and interest in a piece of land and in the storey building at No. 1 Kano Road, Onitsha as well as a demolition order in respect of the buildings, structure and stores of the defendants on the land in question. It is convenient to set out the respective claims and counter-claims in this consolidated action. In suit 0/6/71, the plaintiff claimed against the defendants jointly and severally as follows:     “(a) £17,000 as general and special damages for trespass on a storey building and a piece of land situate at I Kano Road, Onitsha. (b) An injunction restraining the defendants their servants and agents from entering the said storey building and premises and/or interfering with plaintiff’s possessory rights therein.

The particulars of the special damages were given as £6,000.”   In suit 0/20/71 the plaintiff claimed against the defendants jointly and/or severally and/or in the alternative as follows: “(a) declaration of possession title and interest in the said piece or parcel of land situate at No. 1 Kano Road, Onitsha and possession of same. (b) declaration of title and ownership of the storey building situate at 1 Kano Road, Onitsha and possession of same. (c) A demolition order of the building, structures and/or stores of the defendants on the land in dispute.”

After pleadings had been ordered and duly filed by both parties, the 1st, 2nd and 3rd defendants filed a counter-claim for the sum of £3,150 being arrears of rent due from the plaintiff to them and the other members of the Chinekwe family of Ndom; whereas in their statement of defence in suit 0/6/71, these same defendants claimed only £2,850 as rent outstanding. These defendants also asked and were permitted to defend this action in a representative capacity.   The plaintiff filed a plan of the land in dispute, but the defendants did not file any. The plaintiff’s case is that the three defendants for themselves and on behalf of the Chinekwe family granted him a lease of a piece of land measuring 120 feet by 68 feet at No. 1, Kano Road, Onitsha for a period of 53 years at an agreed rent of £150 per annum, the lease having been granted in 1950.

The plaintiff claimed to have been put into possession immediately thereafter and to have erected a storey building thereon. He later let it to tenants and collected rents from them from 1951 to 1967, when Onitsha was disturbed and everybody including both parties to the two suits left Onitsha. When the war ended in January, 1970, the plaintiff claimed that he returned to Onitsha and resumed possession of No.1 Kano Street, Onitsha, employed labourers to clear the weeds and rubbish around the premises. Since the premises had been made ready, the defendants went into occupation of the storey building by putting tenants into it and collecting rents therefrom. When they refused to vacate at the plaintiff’s insistence, the latter was obliged to sue them and their tenant, the 4th defendant.

The plaintiff further complained that the defendants had in breach of their lease agreement caused a building or structure to be erected on a portion of the premises leased to him without his consent or authority.   The defendants, for their part, claimed to be the owners of the premises known as No. 1, Sokoto Road, Onitsha, on part of which the plaintiff had erected the storey building in question. It was their case that the agreement between them and the plaintiff in 1950 was that the plaintiff should enter upon a portion of the land at No. 1, Kano Road, Onitsha, and to erect the storey building on the condition that he would pay to the defendants the sum of £150 per annum with effect from the date of completion and occupation of the storey building, and that the defendants agreed to execute in favour of the plaintiff a deed of lease of the storey building and the adjoining portion of land for a term of 53 years, the story building being regarded as the property of the defendants. They stated that, contrary to these terms, the plaintiff failed to pay them the agreed rent of £150 for the storey building and the land between 1951 and 1967, that on a number of occasions before they all left Onitsha in 1967, the defendants made demands upon the plaintiff for the payment of the rent and would have put him to court but for his solicitatios asking for time to settle the outstanding rent. The defendants claimed to have instructed a solicitor in 1967 to institute an action against the plaintiff but, as this effort was frustrated by the war, the defendants returned to Onitsha on January 12, 1970 and promptly took possession of the storey building and its premises after they had cleared them.  

The terms of the agreement between both parties are to be found in Exhibit C which was signed by the parties and executed before a Magistrate Grade III, but the defendants contended that this agreement for 53 years was not in writing and so could not be binding upon them. The learned trial Judge, after a detailed review of the contents of Exhibit C, came to the conclusion that the agreement for the lease, though not under seal, was as good as a duly executed Deed of Lease: Furness v. Bond (1888) 40 LR. 457; the learned Judge therefore held that the defendants were bound. The learned trial Judge also found that a sum of £200 paid by the plaintiff to the defendants was in fact rent in pursuance of the agreement, but the defendants denied this.

The learned Judge made the following observations:   “From Exhibit C it is clear that in consideration of the £200 which the defendants acknowledged to have been paid to them (as per Ex. C) by the plaintiff, the plaintiff was allowed to occupy the land, see para. 2 which says ‘on the execution of these presents, the lessee shall be permitted to occupy forthwith the said land.’ Rent is the sum which a tenant pays for the right of occupying land or premises. Had the plaintiff not paid the amount stated in Exhibit C “the plaintiff would not have the right of occupying the land. I find that the amount paid by the plaintiff is rent in respect of No.1 Kano Road.”   PAGE| 4   He thereupon held that the doctrine of Walsh v. Lonsdale (1882) 21 Ch. D. 9 applied to the case so as “to create equitable tenancy on the premises expressed in the Agreement, provided and this is an essential condition, and that it be found to be an Agreement of which a Court of Equity would Decree specific performance: Grey v. Spyer (1922) 2 Ch. 22.” The learned Judge went on to observe that “in this case a Court of Equity would decree specific performance as the contents of Exhibit C show the terms of a valid Agreement in law. In this case there is no question of specific performance.” He came to this conclusion because he took the view that the plaintiff had paid rent and had been let into possession.

The present appeal has been brought against the decisions of the learned trial Judge on a total of thirteen grounds. Mr. Egonu, learned counsel for the appellant, began his argument before us with ground 6 of the appeal which reads as follows: “6(a) That the special and general damages awarded by the learned trial Judge were excessive in that they were manifestly too high and were also based on a wrong principle of law and that if the plaintiff-respondent was entitled to any damages the award must not only be within the terms of this claim but must also be a just and fair compensation for the loss or damage rightly flowing from the alleged acts of trespass. (b) That the plaintiff-respondent claimed special damages for one year and therefore the learned trial Judge was wrong in awarding his special damages for two years. (c) That the award of special and general damages are inappropriate in a case such as this.   (d) That it was wrong for the learned trial Judge to enhance the damages awarded to the plaintiff-respondent on the ground that he is a Red Cap chief as the plaintiff-respondent did not make any issue of that and as there is no rule of law supporting such an enhancement in a case such as this. (e) That Exhibit “E’ was admitted in evidence “only to show acts of ownership and nothing more in respect of 1, Kano Street.” The learned trial Judge also held that the plaintiff-respondent was not basing his claim on Exhibit “E” the learned trial Judge was therefore wrong to rely on the contents of the Exhibit to find that there was a subsisting sub-lease in respect of the premises and to use the terms of the alleged subsisting sub-lease in the assessment of the special damages.”

He referred to paragraphs 20, 21 and 23 of the Statement of Claim in respect of the particulars of damages claimed by the plaintiff/respondent, and pointed out that, whereas the plaintiff/respondent was there claiming for one annual rent of £6,000 from January 1970 to January 1971 only, the learned trial Judge in fact awarded damages for two years at £3,100 (Three Thousand and One Hundred Pounds) per annum. The judge should have awarded, not £6,000 but only £3,100 because the plaintiff’s claim was for one year only. Again, learned counsel contended that the plaintiff did not claim on the basis of £3,100 per annum but on £6,000 per annum, and he must establish his claim by satisfactory evidence. All that the plaintiff did was, however, to assert that he had received many offers, without giving particulars of the offers or of the offerors. The learned Judge nevertheless went on to base his judgment upon the contents of Exhibit E which he himself said that he was only using as evidence of title of the plaintiff and nothing more. The learned Judge had observed as follows: “The plaintiff in this case is not basing his claim on this agreement sought to be tendered. I therefore over-ruled the objection. This agreement is admitted only to show acts of ownership and nothing more in respect of No.1, Kano Street. The document is marked Exhibit “E”.   Learned counsel further submitted that, at any rate, Exhibit E cannot be the basis of assessing loss of rent, since the plaintiff must establish by evidence the rents of similar premises in the area after the Nigerian Civil War or give evidence of the amounts in fact offered to him after the civil war. He cited a passage from May and McGregor on damages, 12th Edition, page 646, paragraph 755 – 756 which read as follows: “Para: 755 The normal measure of damages is the market rental value of the property occupied or used for the period of wrongful occupation or user. There is little authority, but this measure is consonant with general principles and with the name of the action for wrongful occupation as one for mesne profit.   If the rental value varies due to market fluctuations during the period of wrongly occupation, these fluctuations should be taken into account. If the defendant makes improvements on the land, the rental value should be assessed upon the unimproved value. 756. The only issue which has received any full attention by the courts is whether the plaintiff is entitled to the market rental value where he cannot be said to have lost this amount because he would not have let out the land during the period of occupation or, more particularly, would not have let out its use during the period of user.”

Learned counsel, therefore, submitted that the plaintiff/respondent’ averment in his statement of claim on this head had not been established by evidence as required by law. But learned counsel’s strong argument was that, as Exhibit E had not been registered under Section 15 of the Land Instruments Registration Law of the East Central State (Cap. 72) 1963, it was clearly inadmissible in evidence.   Learned counsel again submitted that, apart from the £6,000 special damages, the learned Judge also awarded £500 as general damages, and it was his contention that this was contrary to the rule against double compensation. The basis of the action in suit 0/6/71 was the occupation of the storey building erected upon the defendants’ family land by the plaintiff, and, according to learned counsel, all that the plaintiff could claim was for loss of rent, although he could also cut something for any damage proved to have been done to the building itself: Onaga & Ors. v. Ejoko & Co. (1961) 1 All NLR (Part II) 324, at page 325. Learned counsel also pointed out, quite rightly in our view, that the learned trial Judge could not have taken into account the plaintiff/respondent’s personal status as a Red Cap. Chief of Onitsha in assessing the damages payable to him as plaintiff/respondent: Onasanya v. Adeniji 4 WACA 81.   The next two grounds argued by learned counsel for the appellant read as follows:- “8. That the ‘Reply and Defence to Counter-claim’ filed by the plaintiff-respondent in Suit No. 0/6/71 was improperly filed and should not have been countenanced as no leave of the Court was obtained to file it. 9. That the defendants-appellants are entitled to the whole sum of £2,850:-:-d. as claimed by them in their counter-claim in Suit No. 0/6/71 and that the learned trial Judge was wrong in holding that that part of the Counter-claim was statute barred as no statute of limitation was properly pleaded and as it would even be inequitable for the plaintiff-respondent to raise such a defence on the ground that the defendants-appellants deferred the enforcement of their rights on the solicitations of the plaintiff-respondent and also on the ground of the settlement reached by the parties in 1970.”   The two short points raised under these grounds of appeal are (a) that leave of court was not obtained before the Reply was filed; and (b) that no statute of limitation was pleaded by the respondent in the Court below. Learned counsel pointed out that, although he had objected at the trial, counsel for the other side had submitted that leave of the court was not necessary before the filing of a reply and defence to a counter-claim; he also pointed out that although the learned trial Judge then promised to rule on the point later, he nevertheless did not do so at any time afterwards, not even in his judgment.

He, therefore, submitted that the reply and defence to counter-claim should be disregarded, and that the result is that there was no plea of statute of limitation against the counter-claim. The learned Judge certainly erred, he submitted, in holding that part of the counter-claim was statute – barred. While we agree with this submission, we think that the learned counsel for the defendants/appellants was not right in arguing that there was a settlement between the parties in 1970 and that the plaintiff/respondent should not therefore raise the question of statute of limitation at all. As regards his submission that leave should have been obtained before the reply and defence to counter-claim was served, we do not decide the point as it is unnecessary to do so in this appeal. We consider, however, that his further submission is right when he argued that, assuming that the statute of limitation is admissible, the Limitation Act of 1939 in England does not apply in the East Central State.   This is because, in accordance with Section 15 (1) of the High Court Law of Eastern Nigeria, 1963, post – 1900 English legislation is not applicable in that part of the Federation. Learned counsel, therefore, submitted that the defendants/appellants should be awarded the full amount of rents claimed. Grounds 7 and 10 read as follows: “7. That the costs awarded by the learned trial Judge against the defendants-appellants were wholly arbitrary and manifestly excessive.” “10. That the costs awarded to the defendants-appellants were wholly arbitrary and manifestly too low.”   Under these two grounds, learned counsel for the appellants submitted that the costs awarded against the defendants/appellants were arbitrary and manifestly excessive and that the costs awarded to the defendants/appellants were equally arbitrary and too low. His reason for making these submissions is that, since the learned trial Judge held that Claim (c) in Suit 0/20/71 failed, he should have realized that Claims (a) and (b) in Suit 0/20/71 clearly contradict suit 0/6/71 in which plaintiff/respondent claimed damages for trespass and injunction.

He submitted that, in order to succeed, plaintiff/respondent must prove his possession and that, as Claims (a) and (b) contradict suit 0/6/71, they are unnecessary and should have been struck out by the learned trial Judge; See Aromire & Ors. v. Awoyemi (1972) 2 S.C.1, at p. 7. He accordingly submitted that the costs awarded in suit 0/20/71 should have gone to the defendants/appellants, pointing out that the disparity in the awards made by the learned trial Judge could be seen from the fact that the amount awarded to the plaintiff/respondent is 300 guineas but that awarded to the defendants/appellants is only 50 guineas. We think that there is substance in these contentions.

Ground 5 reads as follows: “That as the plaintiff-respondent failed to prove the area which he claimed was demised to him it was wrong for the learned trial Judge to grant him declaration, possession and injunction over the area so claimed.”   Under this ground, it was contended by learned counsel for the appellants that the plaintiff failed to prove the exact area leased to him and that the Judge could not have granted him declaration, possession and injunction in respect of an imperfectly defined area. He pointed out that there was no plan at all made of the land till 1971. But, on a careful examination, it will be found that the learned Judge gave the plaintiff more than the area granted to him under the alleged lease. Failure to prove the area claimed has resulted in error on the part of the trial Judge in granting him the declaration that the plaintiff/respondent sought: Okorie & Ors. v. Udom & Ors. (1960) 5 FSC. 162 at p. 163. In this case, there was, besides trespass, a claim for an injunction, which therefore imposed a duty on the trial Judge to consider the issue of title to the land in dispute or of exclusive possession of it. The Supreme Court held that the appellants must fail since they had not proved the boundary between their land and that of the respondents, nor had they established exclusive possession of the area they claimed. Learned counsel also pointed out that the learned trial Judge, when he found that the area could not be determined with any degree of exactitude, did some surveying exercise of his own, thereby excising the area in respect of which he granted declaration; the learned Judge should not have done this: Bornu Holding Co. Limited v. Ogogo (1971) 1 All NLR 324 at pp. at pp. 329 – 332.

In that case, we held inter alia that the trial Judge should not have relied on his own observations from an examination of an Exhibit O to decide matters which had not emerged from the actual evidence given before him without either first putting the points to the witnesses or inviting counsel to comment on them if they so wished. It did not make any difference that the Exhibit O in question was put in by the defendants, and the trial Judge was wrong to have dealt with the document as he did.   This same point had been made by us in Owe v. Oshinbajo (1965) 1 All NLR 72 at p. 75 when we observed:

“The trial Judge, however, without referring what he thought was a discrepancy to the parties for their explanation, took upon himself to decide the issue he created for himself on his own examination and inspection of the plans. With respect, we think it was a mistake on the part of the learned trial Judge to take that course of his own accord and to give judgment upon matters on which the parties or their counsel were not heard or on which there was no evidence before him.” We, therefore, think that these points are well taken.   PAGE| 9   Under ground 4, the complaint is as follows: “That as the parties had settled their dispute on the terms that the defendants-appellants would let the plaintiff-respondent into possession of the premises in dispute on the plaintiff-respondent paying all outstanding sums for the use and occupation thereof and on a deed of lease being executed by the parties, the plaintiff-respondent was precluded from enforcing any rights contrary to the settlement.”

Mr. Egonu submitted that, as a general principle of law, a plaintiff may not be given more rights than are contained in any settlement reached between the parties. In the instant case it was his view that the plaintiff/respondent asked to be given time to pay to the defendants/appellants by instalments and that he should not later have turned round to sue as he did, because he agreed to pay back all that he was owing and he put back into possession.   We do not think that the issue of the settlement between the parties at one stage of the proceedings should be raised in this way. Learned counsel substantially adopted his argument under Ground 5 as sufficient for the purpose of Ground 13 which reads as follows: “That the learned trial Judge was wrong in supplementing the evidence of the 3rd Plaintiff’s witness, Mr. Chukwurah, by conducting measurements of the areas shown on the plan Exhibit ‘A’ and by using the result of his exercise in determining whether or not the defendants-appellants’ storey building encroached on the area where the plaintiff-respondent was allowed to build on.”  

The next ground argued by learned counsel for the appellants is Ground 2, that the judgment is against the weight of evidence. Mr. Egonu submitted that the learned trial Judge failed to make a proper appraisal of the evidence before him and that his findings are contrary to that evidence. As an illustration, he pointed out that the plaintiff/respondent himself gave evidence on the question of rent and said that he did not pay any rent to the defendants/appellants’ family. Despite this, the learned Judge said that rent was paid.

We are of the opinion that the £200 paid in advance can only be regarded as the usual premium, not rent, which an intending leasee sometime pays to induce his lessor to negotiate the terms of a lease; such premium is not usually regarded as part of the rent, unless there is express stipulation to the contrary. Mr. Egonu again referred us to Exhibit C and the evidence of the plaintiff/respondent that the document was not signed by the 1st defendant/appellant. Evidence was also led to show what had happened at the end of the Nigerian Civil war, in particular that people had been occupying the premises, contrary to the learned trial Judge’s findings.   PAGE| 10   Yet again, learned counsel pointed out that Claims (a) and (b) in suit 0/20/71 postulate that the plaintiff/respondent was not in possession when he brought his action against the defendants/appellants, and that, nevertheless, the learned trial Judge gave him possession in his judgment. This, submitted learned counsel for the defendants/appellants, should not have been done: Jimoh Adebakin v. Odujegbe (1972) 6 S.C. 208.   Ground 3 reads as follows: “(a) That the plaintiff in his pleadings based his claim on an alleged deed of lease and as such it was not open to him at the trial to found his case on the agreement for a lease tendered as Exhibit “C”. (b) That the said Exhibit “C’ was and is null and void ab initio as the Head of the defendants-appellants’ Family was not a party to it and as such the plaintiff cannot found his case on it. (c) That a clear case of forgery of Exhibit “C” by affixing seals on it to make it appear to be a deed of lease was made out against the plaintiff-respondent but the learned trial Judge wrongly refused to take the matter into account in determining the suits.  

It was learned counsel’s submission that, as Exhibit C was not signed by the 1st defendant/appellant as the head of the family, and that as there was evidence of forgery, the document is inadmissable. He submitted that the statement of claim refers to a Deed of Agreement, not to an Agreement for a Lease; and that, unless the pleadings had been amended, the learned Judge was wron

Other Citation: (1975) LCN/2030(SC)