ADEKANBI v OSENI

ADEKANBI v OSENI


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON THURSDAY, 2ND MARCH, 2017


Appeal No: CA/I/24/2014
CITATION:

Before Their Lordships:

MONICA BOLNA’AN DONGBAN-MENSEM, JCA

MODUPE FASANMI, JCA

NONYEREM OKORONKWO, JCA


BETWEEN

ITUNU ADEKANBI

(CROSS-APPELLANT)

AND

MR. YINKA OSENI
MR. OLATUBOSUN ADEDIPE

(CROSS-RESPONDENTS)


PRONOUNCEMENTS


A. DAMAGES
1. Special Damages –

Whether a claim for special damages must be specifically pleaded and strictly proved

“Going through issue two, it is not in doubt that damage is deemed to be in issue and this type of damage is in the realm of special damages which requires strict proof which would readily lead itself to quantification and assessment. See Osuji v. Isiocha (1989) 3 NWLR (part 111) pages 623 at 638 para F and Odulaja v. Haddad (1973) S.C. 357.”Per FASANMI, J.C.A. read in context

2. Special Damages – Proof of claim for special damages

Whether a claim for special damages must be specifically pleaded and strictly proved

“By no means can the sum be ordered to be paid by the Court be over and above that which was being paid as rent before the termination of the tenancy. Such payment can only come by way of special damages, if pleaded and proved in accordance with the law. This fact also afflicts the issue of electricity bill which must be proved by evidence.

See KOSILE v. FOLARIN 4 SC Pt 1, 50 per OBASEKI JSC. “What is required of proof of special damages is that the person claiming should establish his entitlement to the type of damages by credible evidence that will convince the Judge that he is entitled to an award under that head. ” See also the case ofAKINKUGBE v. E.H. NIG LTD (2008) 12 NWLR pt 1098, 375 SC where ADEREMI JSC stated that:

“General damage often consists in all items of loss which a plaintiff is not required to specify in his pleadings in order to allow him recover monetary compensation in respect of them at the trial. But special damage consists in all items of loss which must be specified or stated by him in his pleadings before they will be allowed to be proved at the trial and recovery of same granted.” (emphasis mine).

“Special damages… means the particular damage (beyond the general) which results from the particular circumstances of the case, and of the Plaintiff’s claim to be compensated for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.”Per DONGBAN-MENSEM, J.C.A. read in context

B. EVIDENCE
3. Unchallenged Evidence – Duty of the Trial Court where evidence is unchallenged and uncontroverted
Duty of Court where evidence is unchallenged and uncontroverted

“Where the evidence is unchallenged and uncontroverted, the trial Court has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim. See the case of Genze Nig. Ltd v. N.E.R.D.C. (2005) All FWLR (part 274 page 235 at 248-249 paras H-A. The learned trial Judge rightly refused the sweeping pleading and statement on oath of the Cross-Appellant. Since there was no evidence led to particularize the outstanding electricity bill consumed by the Cross-Respondents, the learned trial Judge rightly refused the claim – See the case of Osuji v. Isiocha (1989) 3 NWLR (part 111) page 623 at 640 paras B-C.”Per FASANMI, J.C.A. read in context

C. LAND LAW
4. Mesne Profit – Nature and definition of mesne profit

Meaning/nature of mesne profit

“Mesne profit is only another term for damages for trespass arising from the particular relationship of landlord and tenant. In Abeke v. Odunsi (2013) 13 NWLR (part 1370) page 1 at 27 paras A-D, the learned jurist Ariwoola JSC had this to say:

“The expression simply means intermediate profits” – that is the profits accruing between two points of time, that is between the date when the defendant ceased to hold the premises as a tenant and the date he gives up possession. As a result, the action for mesne profits, ordinarily does not lie unless either the landlord has recovered possession or the tenant’s interest in the land has come to an end or the landlord’s claim is joined with a claim for possession. See the case of Ahmed Debs & Ors v. Cenico Nigeria Ltd (1986) 3 NWLR (part 32) page 846, LPELR 183/1984 per Oputa JSC in Branwell v. Branwell (1942) 1 K.B. 370; (1942) 1 All ELR 137 at 138, Goddard L.J had earlier described the expression “mesne profits” as follows:

“Only another term for damages for trespass arise, damages which from the particular relationship of landlord and tenant.”

It is therefore the duty of the Court to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. It has been held that while previous rent may not be conclusive, it may sometimes be a guide. See Ayinke v. Lawal & Ors (1994) 7 NWLR (part 356) page 263. Mesne profit is therefore not a fixed and ascertained amount and cannot be styled as “Liquidated damages.” Mesne profits are generally calculated on the yearly value of the premises and so a landlord is not bound to use the rent payable during the tenancy as an index of the rate of mesne profit. See Oserawu v. Ezeiruka (1978) 6-7 SC page 135. The onus is on the landlord to establish what this yearly value is. See Debs v. Cenico Ltd (1986) 3 NWLR (part 32) page 846 at 852 paras D-E.”Per FASANMI, J.C.A. read in context

5. Mesne Profit – Nature and definition of mesne profit

Meaning/nature of mesne profit

“The cross-appellant is aggrieved that the trial Court awarded the sum of seven thousand naira (N7,000:00) against the thirty thousand naira sum for mesne profit. The trial Court gave the reason for so deciding. Although mesne profit need not be the same as the rent paid in the preceeding year, the fact that the amount has changed is an assertion of fact that must be established. The landlord cannot just call up any figure and expect the Court to so pronounce.

I find fortification in the definition of mesne profit as:

“… the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such a tenant gives up possession. SeeDEBS v. CENICO NIG. LTD (1986) 3 NWLR pt. 32, 846. Mesne profit are the rents and profits which a trespasser has, or might have received or made during his occupation of the premises and which therefore he must pay over to the true owner as compensation for the tort which he has committed..” Per TOBI JSC, in ODUTOLA v. PAPERBACK NIG. LTD (2006) NWLR pt. 1012, 470.”Per DONGBAN-MENSEM, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY FASANMI, JCA.


This is a Cross/Appeal by the Cross-Appellant as Claimant at the lower Court against the judgment of the Oyo State High Court of Justice in Suit No. 1/765/12 delivered on the 31st of October 2013.

The Appeal arose out of a Landlord/Tenant relationship. The claims of the Cross/Appellant against the Cross-Respondents at the trial Court at pages 4-5 of the record of appeal transmitted on the 12th of May 2015 but deemed properly transmitted on 26/1/16 are as follows:

1. Possession of each 3 bedroom flat with all appurtenances attached hereto occupied by each Defendant as tenant of the Claimant at No. 32, Lawoyin Street, Afani Layout, Ibadan.

2. Arrears of rent against the 1st Defendant in the sum of Forty-two Thousand Naira (N42,000.00) being rent owed by the 1st Defendant at the monthly rent of Seven Thousand Naira (N7, 0.00) from 1st January, 2012 to 30th June, 2012 in respect of the upstairs flat occupied by the 1st Defendant.

3. Arrears of rent against the 2nd Defendant in the sum of Forty-two Thousand Naira (N42,000.00) being rent owed by the 1st Defendant at the monthly rent of Seven Thousand Naira (N7,000.00) from 1st January, 2012 to 30th June, 2012 in respect of the upstairs flat occupied by the 2nd Defendant.

4. Mesne profits at the rate of Thirty Thousand Naira (N30,000.00) per month against each and either Defendant from 30th June, 2012 (the date on which the quit notice expired) until possession is given up.

5. An order directed to each and either Defendant to pay all outstanding PHCN bills for electricity consumed by each and either Defendant while in occupation of the premises occupied by such Defendant.

Pleadings were filed and exchanged between the parties. The case proceeded to trial and parties called their witnesses. At the conclusion of proceedings, judgment was entered substantially in favour of the Cross-Appellant.

The Cross-Respondents being dissatisfied with the judgment filed a notice of appeal on the 4th of November, 2013. By an application filed on 30/1/15 the Cross-Respondents who were the Appellants withdrew their notice of appeal and it was granted by the order of this Court on the 4th of February 2015. We now have the Cross-appeal since the main appeal had been withdrawn.

The Cross-Appellant being dissatisfied with parts of the judgment filed a notice of Cross-appeal containing two grounds of appeal. The notice of Cross-appeal was filed on 17/1/2014 at pages 94-96 of the record. The record of appeal was transmitted on 12/5/15 and deemed 26/1/16. The Cross-Appellant’s brief of argument was filed on the 2nd of February 2016. Cross-Appellant filed an application seeking the Order of this Court to set the Cross-Appeal down for hearing solely on the basis of the Cross-Appellant’s brief on the 24th March 2 16 on the ground that Cross-Respondents have failed to file their Cross-Respondents brief of argument in response and time limited by the rules of Court for doing so has elapsed. Cross-Respondents have not sought extension of time within which to file their Cross-Respondents brief. The Cross-Appellant’s application was granted on the 22nd of April 2016. The Cross-Appellant’s brief of argument was filed on 2nd of February, 2016.

At the hearing of the cross-appeal, bailiff’s report showed that Cross-Respondents were served through their counsel Mrs O.A. Akande on the 18th of January 2017. The Court being satisfied that the Cross-Respondents were duly served through their Counsel with the hearing notice of the Cross-appeal proceeded to hearing on the Cross-Appellant’s brief alone.

Cross-Appellant distilled two issues for determination from the two grounds of appeal filed. Learned Counsel for the Cross-Appellant adopts and relies on the arguments contained in the brief and urged the Court to allow the cross-appeal.

The two issues distilled for determination by the Cross-Appellant are stated as follows:

1. Whether the learned trial judge was right in fixing the mesne profits awarded in favour of the Cross-Appellant at the parties’ rental rate of N7,000.00K (Seven Thousand Naira) per month.

2. Whether the learned trial judge was right in holding that there was no evidence led in support of the Cross-appellant’s claim for an order directing payment of electricity consumed by the Cross-Respondents.

The Cross-Appeal will be determined on the two issues formulated by the Cross-Appellant.

Issue One

Whether the learned trial Judge was right in fixing the mesne profits awarded in favour of the Cross-Appellant at the parties’ rental rate of N7,000.00K (Seven Thousand Naira) per month.

Learned Counsel for the Cross-Appellant submitted that a claim for mesne profit differs from a claim for rent. Submitted that a claim for mesne profit is a claim in damages for use and occupation reflecting the rents as well as the profit a landlord would have made on the property held over. It is unliquidated and thus unascertained in contrast with a claim for rent which is an ascertained sum agreed by the parties as consideration under the tenancy agreement. He referred to the cases of Debs v. Canico Ltd (1986) 3 NWLR (part 32) page 846 at 851-852 paras H-A and Omotosho v. Oloriegbe (1988) 4 NWLR (part 87) page 225 at 234 paras C-F.

Learned Counsel for the Cross-Appellant contended that what a landlord elects to charge as rent under a subsisting tenancy like the choice of consideration under any contract is entirely his prerogative. He may insist that it reflects the economic value of the property and he may not. Whereas a claim in mesne profit is based on the fair, real or actual value of the property usually expressed in its annual value rather than the value of rent paid by the tenant before the termination of the tenancy. He argued that the Cross-Appellant in paragraph 9 of her statement of claim and paragraph 11 of the witness statement on oath pleaded and led direct evidence on the actual value of the property. He submitted further that the Cross-Respondents by their pleadings in paragraph 11 of the joint statement of defence responded in reaction to the averment of the Cross-Appellant. He submitted that the 1st Respondent at the trial under cross-examination attempted to deny his assertion.

Submitted that where a witness fails to be cross-examined on a material fact, the Court is bound to accept it as true. He referred to the case of American Cyanamid Co. v. Vitality Pharm Ltd (1991) 2 NWLR part 171 page 15 at 28 para F. The 2nd Cross-Respondent on his part having abandoned his pleadings led no evidence in rebuttal and consequently the evidence against him stood unchallenged and uncontroverted. Learned Counsel for the Cross-Appellant submitted that the learned trial Judge erred in law by applying the wrong principles in awarding the sum of N7,000.00 as mesne profit rather than N30,000.00 as pleaded and proved at the lower Court. He referred to the case of Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR (part 1256) page 574 at 603 paras D- E. Learned Counsel for the Cross-Appellant urged the Court to set aside this award and replace it with an award of N30,000 as claimed at the lower Court. Learned Counsel for the Cross-Appellant urged the Court to resolve issue one in favour of the Appellant.

Mesne profit is only another term for damages for trespass arising from the particular relationship of landlord and tenant. In Abeke v. Odunsi (2013) 13 NWLR (part 1370) page 1 at 27 paras A-D, the learned jurist
Ariwoola JSC had this to say:

“The expression simply means intermediate profits” – that is the profits accruing between two points of time, that is between the date when the defendant ceased to hold the premises as a tenant and the date he gives up possession. As a result, the action for mesne profits, ordinarily does not lie unless either the landlord has recovered possession or the tenant’s interest in the land has come to an end or the landlord’s claim is joined with a claim for possession. See the case of Ahmed Debs & Ors v. Cenico Nigeria Ltd (1986) 3 NWLR (part 32) page 846, LPELR 183/1984 per Oputa JSC in Branwell v. Branwell (1942) 1 K.B. 370; (1942) 1 All ELR 137 at 138, Goddard L.J had earlier described the expression “mesne profits” as follows: “Only another term for damages for trespass arise, damages which from the particular relationship of landlord and tenant.”

It is therefore the duty of the Court to ascertain an amount which may constitute a reasonable satisfaction for the use and occupation of the premises held over by the tenant. It has been held that while previous rent may not be conclusive, it may sometimes be a guide. See Ayinke v. Lawal & Ors (1994) 7 NWLR (part 356) page 263.

Mesne profit is therefore not a fixed and ascertained amount and cannot be styled as “Liquidated damages.” Mesne profits are generally calculated on the yearly value of the premises and so a landlord is not bound to use the rent payable during the tenancy as an index of the rate of mesne profit. See Oserawu v. Ezeiruka (1978) 6-7 SC page 135. The onus is on the landlord to establish what this yearly value is. See Debs v. Cenico Ltd (1986) 3 NWLR (part 32) page 846 at 852 paras D-E.

In the instant case, Cross-Appellant did not prove or establish how she came about the Mesne profits or yearly value of the premises at the rate of thirty thousand Naira. Paragraph 9 of the statement of claim at page 4 of the record and paragraph 11 of the Crosss-Appellant’s Statement on oath at page 8 of the record were rebutted by the Cross-Respondents in paragraph 11 of their statement of Defence at pages 22-23 of the record. Their statements on oath in paragraph 12 at page 26 of the record for the 1st Respondent and paragraph 11 at page 29 of the record for the 2nd Respondent controverted the pleadings and evidence of the Cross-Appellant.

Cross-Appellant’s reply to the Cross-Respondents’ statement of defence and the Cross-Appellant’s further statement on oath did not rebut the defence of the Cross-Respondents that no flat in the area fetched a monthly rate of the outrageous sum of thirty thousand Naira (N30,000.00). For the continuous use of the premises as from July 2012 until possession is given up, the Cross-Appellant is entitled to be paid for such use. She had claimed a higher amount of money as remuneration for the usage. The burden is on the Cross-Appellant to justify the claim for higher remuneration.

It is also on record that each of the two Cross-Respondents was sued severally and not jointly. The implication is that the pleadings on behalf of the 2nd Cross-Respondent Mr Olatubosun Adedipe over which no evidence has been led is deemed abandoned. 2nd Cross-Respondent is deemed not to have contested the claim. Notwithstanding the Cross-Appellant will only be entitled to judgment against him if the pieces of evidence led by the Cross-Appellant are sufficient in support of her claim as she bears the burden of prove. See Section 131 Subsection 1 of the Evidence Act 2011 which states:

“Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts shall prove that those facts exist.” Section 132 of the Evidence Act 2011 also stipulates:

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

See also the case of N.A.B. Ltd v. Shuaibu (1991) 4 NWLR (part 186) page 450 at 468. From the evidence on record, I am of the view that Cross-Appellant has not justified the claim of mesne profit for higher remuneration against the Cross-Respondents. The learned trial Judge at page 92 of the record rightly found as follows:

“This Court is unable to accept the evidence led in support of this claim as sufficient as she failed to communicate her intention to increase the remuneration to the defendants prior to claiming it or instituting this action. It will therefore not constitute an exception or variation of the principle that the mesne profit or the compensation for the use and occupation will attract the same value as the rent previously agreed upon by parties and paid by the tenants which is a sum of N7,000.00. I find he is entitled to mesne profit or remuneration for the usage at the rate of N7,000.00 per month until possession is given up.”

From the foregoing, I hereby resolve issue one against the Cross-Appellant.

Issue Two

Whether the learned trial Judge was right in holding that there was no evidence led in support of the Cross-Appellant’s claim for an order directing payment of electricity consumed by the Cross-Respondents.

Learned Counsel for the Cross-Appellant submitted that in her writ of summons and statement of claim at pages 1-2 and 3-5 respectively of the record of appeal, the Cross-Appellant prays for:

“An order directed to each and either Defendant to pay all outstanding PHCN bills for electricity consumed by each and either defendant while in occupation of the premises occupied by such Defendant.”

In her pleadings, she avers at paragraph 10 of her statement of claim thus:

“The Defendants continue to consume electricity on their said individual premises without paying for same and unless this Court makes an order compelling the Defendants to pay for all such consumption forthwith, the Defendants will yield possession and flee without making payment and the Power Holding Company of Nigeria will disconnect electricity to the premises with all attendant inconveniences before reconnection at the expense of the claimant.”

Learned Counsel for the Cross-Appellant submitted further that the Cross-Respondents failed to offer any defence to the above assertions. They did not deny the claims and consequently are deemed to have admitted this. Learned Counsel for the Cross-Appellant contended further that at paragraph 10 of the Cross-Appellant’s witness statement on oath at page 8 of the record, testified as follows:

“After the expiration of the notice of owner’s intention to recover possession, the Defendats still continue to hold possession of the premises and consume electricity on their individual premises without paying for services.”

Learned Counsel for the Cross-Appellant submitted that the Cross-Respondents failed to challenge the witness on this part of his testimony. He submitted that this entitles the Cross-Appellant to her prayer. Cross-Appellant had no further obligation to proffer evidence in support of these averments. He refers to the case of U.B.N. Plc v. Akinrinmade (2000) 2 NWLR (part 645) page 466 at 478 para G. Learned Counsel for the Cross-Appellant urged the Court to resolve issue two in favour of the Cross-Appellant.

Going through issue two, it is not in doubt that damage is deemed to be in issue and this type of damage is in the realm of special damages which requires strict proof which would readily lead itself to quantification and assessment. See Osuji v. Isiocha (1989) 3 NWLR (part 111) pages 623 at 638 para F and Odulaja v Haddad (1973) S.C. 357. The tenancy as adjudged by the learned trial Judge is a monthly tenancy. Cross-Appellant should have itemized the outstanding electricity consumed by the Cross-Respondents while in occupation of the premises. The general statement made in the pleading and the witness statement on oath alone without more is not sufficient to justify the claim. Where the evidence is unchallenged and uncontroverted, the trial Court has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim. See the case of Genze Nig. Ltd v. N.E.R.D.C. (2005) All FWLR (part 274 page 235 at 248-249 paras H-A. The learned trial Judge rightly refused the sweeping pleading and statement on oath of the Cross-Appellant. Since there was no evidence led to particularize the outstanding electricity bill consumed by the Cross-Respondents, the learned trial Judge rightly refused the claim – See the case of Osuji v. Isiocha (1989) 3 NWLR (part 111) page 623 at 640 paras B-C.

Issue two is hereby resolved against the Cross-Appellant.

Finally, the cross-appeal is devoid of merit and it is accordingly dismissed. The judgment of the lower Court in Suit No. I/765/2012 delivered on the 31st of October 2013 is hereby affirmed. Parties are to bear their respective costs.

DONGBAN-MENSEM, JCA

I agree with the lead judgment prepared by my learned brother MODUPE FASANMI JCA dismissing the cross-appeal which challenges the exercise of discretion by the trial Court.

The cross-appellant is aggrieved that the trial Court awarded the sum of seven thousand naira (N7,000:00) against the thirty thousand naira sum for mesne profit. The trial Court gave the reason for so deciding. Although mesne profit need not be the same as the rent paid in the preceeding year, the fact that the amount has changed is an assertion of fact that must be established. The landlord cannot just call up any figure and expect the Court to so pronounce.

I find fortification in the definition of mesne profit as:

“… the sum due to a landlord from the time his tenant ceases to hold the premises as tenant to the time such a tenant gives up possession. See DEBS v. CENICO NIG. LTD (1986) 3 NWLR pt. 32, 846. Mesne profit are the rents and profits which a trespasser has, or might have received or made during his occupation of the premises and which therefore he must pay over to the true owner as compensation for the tort which he has committed..” Per TOBI JSC, in ODUTOLA v. PAPERBACK NIG. LTD (2006) NWLR pt. 1012, 470.

By no means can the sum be ordered to be paid by the Court be over and above that which was being paid as rent before the termination of the tenancy. Such payment can only come by way of special damages, if pleaded and proved in accordance with the law. This fact also afflicts the issue of electricity bill which must be proved by evidence.

See KOSILE v. FOLARIN 4 SC Pt 1, 50 per OBASEKI JSC.

“What is required of proof of special damages is that the person claiming should establish his entitlement to the type of damages by credible evidence that will convince the Judge that he is entitled to an award under that head. “ See also the case ofAKINKUGBE v. E.H. NIG LTD (2008) 12 NWLR pt 1098, 375 SC where ADEREMI JSC stated that:

“General damage often consists in all items of loss which a plaintiff is not required to specify in his pleadings in order to allow him recover monetary compensation in respect of them at the trial. But special damage consists in all items of loss which must be specified or stated by him in his pleadings before they will be allowed to be proved at the trial and recovery of same granted.” (emphasis mine). “Special damages… means the particular damage (beyond the general) which results from the particular circumstances of the case, and of the Plaintiff’s claim to be compensated for which he ought to give warning in his pleadings in order that there may be no surprise at the trial.”

I too find no merit in this cross-appeal which is hereby dismissed.

OKORONKWO JCA

I have been opportuned to read in advance the draft of the judgment in this appeal by my lord Modupe Fasanmi (J.C.A). I agree with the reasoning and conclusion.