ABUBAKAR MOHAMMED v. KENANA MOMOH
March 30, 2025MR. IKWULEMENZE MAZICO HENRY v. MR. EXAMPLE BRIGGS
March 30, 2025Legalpedia Citation: (2020) Legalpedia (CA) 13041
In the Court of Appeal
HOLDEN AT YOLA
Wed Sep 16, 2020
Suit Number: CA/L/995/2017
CORAM
PARTIES
OTERI HOLDINGS LIMITED
HERITAGE BANKING COMPANY LIMITED
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant entered into a lease agreement with the Respondent wherein the Appellant leased to the Respondent all four (4) floors left wing of the premises known as Ibru Glass House situate at 33, Olorogun Michael Ibru Boulevard, Apapa Lagos for a term of 20 years with an option to renew. After the expiration of the term, the Appellant instituted an action against the Respondent at the High Court of Lagos State, sitting in Ikeja vide a Writ of Summons and in its 3rd Amended Statement of Claim, sought for the sum of N35,770,479.00 (Thirty Five Million, Seven Hundred and Seventy Thousand, Four Hundred and Seventy Nine Naira), being mesne profits from the 1st March, 2005 to 28th March 2012 at the rate of N425,417 (Four Hundred and Twenty Five Thousand, Four Hundred and Seventeen Naira) per month; the sum of N93,164,814.00 (Ninety Three Million, One Hundred and Sixty Four Thousand, Eight Hundred and Forty One Naira) being damages for willful destruction of the Appellant’s premises by the Respondent and in breach of the Respondent’s covenants to put the premises to a tenantable state; Interest; amongst other reliefs. At the end of the trial, the lower Court dismissed the claims of the Appellant. Aggrieved by the judgment of the lower Court, the Appellant filed an appeal vide a Notice of Appeal to the Court of Appeal, Lagos Division, containing nine Grounds of Appeal.
HELD
Appeal Allowed
ISSUES
Was the learned trial Judge correct in holding that upon the expiration of the Lease Agreement (Exhibit “H”), the Respondent became a statutory tenant, so as to disentitle the Appellant from claiming mesne profit from the Respondent? Whether the Appellant was entitled to claim mesne profit for the period 1st day of March 2005 to the 28th day of February 2012 and if yes, whether the Appellant before the lower court proved by admissible evidence the claim of N35,770,479.00 (Thirty Five Million Seven Hundred and Seventy Thousand, Four Hundred and Seventy Nine Naira) claimed mesne profit? Did the Appellant in line with the requirement of the law plead and prove by admissible evidence the claim in the sum of N93,164,841.00 (Ninety Three Million, One Hundred and Sixty Four Thousand Eight Hundred and Forty One Naira) made as special damages for the alleged willful destruction caused to the premises? Whether the Appellant established by admissible evidence the claim made in respect of the sum of N5,950,000.00 (Five Million, Nine Hundred and Fifty Thousand Naira) paid as professional fees?
RATIONES DECIDENDI
ISSUES FOR DETERMINATION – POWER OF THE COURT TO ADOPTED ISSUES FOR DETERMINATION FORMULATED BY ANY OF THE PARTIES
“The court is at liberty to adopt any of the issues for determination as formulated by counsel for the parties. See Federal Housing Authority &Anor vs. MrKalejaiye (2010) 19 NWLR (Pt. 1226)147; Emeka vs. The State (2014) All FWLR (Pt. 751) 1480. –
FINDINGS OF FACT OF A TRIAL COURT – CIRCUMSTANCES WHEN AN APPELLATE COURT WOULD INTERFERE WITH THE FINDINGS OF FACT OF THE LOWER COURT
“It is trite law which has been settled that the appellate court will not interfere with the findings of fact of the lower court which had the opportunity of evaluating and analyzing the evidence before it and ascribing probative value. See Fasikun II &Ors vs. Oluronke II &Ors (1999) LPELR-1248 (SC).The exception however is that if the finding of the lower court is perverse, that is the finding is not in line with the evidence before the court, the appellate court can interfere. See Dada &Ors. vs. Bankole&Ors (2008) LPELR-907 (SC). –
TERMS OF AN AGREEMENT – PARTIES ARE BOUND BY THE TERMS AN AGREEMENT
“It is beyond paradventure that where parties have freely entered into agreement, they are bound by the terms of their agreement and the court is bound to give effect to those terms. In Babatunde & Anor vs. Bank of the North Ltd &Ors (2011) LPELR-8249 (SC) the Supreme Court per Adekeye, JSC stated this principle thus:
“The law is that written contract agreement freely entered into by the parties is binding on them. A Court of law is equally bound by the terms of any written contract entered into by the parties. Where the intention of the parties to a contract is clearly expressed in a document, a contract agreement; the Court cannot go outside that document to give effect to the intention of the parties. The general principle is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument, Okonkwo v. C.C.B. (Nig.) Plc. (1997) 6 NWLR (pt.507) pg.48 Dalek (Nig) v. OMPADEC (2007) 7 NWLR (pt.1033) pg.402. U.B.N. Ltd. v. Ozigi (1994) 3 NWLR (pt.333) pg.385 at pg.404.Nneji v. Zakhem Con. (Nig) Ltd. (2006) 12 NWLR (pt.994) pg.297 SC. U.B.N. Ltd. v. Sax (1994) 8 NWLR (pt.361) pg.402.”
Similarly, in Larmie vs. Data Processing Maintenance and Services Ltd (2005) LPELR-1756 (SC) the principle was restated thus:
“The law is trite regarding the bindingness of terms of agreement on the parties. Where parties enter into an agreement in writing, they are bound by the terms thereof. This court, and indeed any other court will not allow anything to be read into such agreement, terms on which the parties were not in agreement or were not ad-idem. See Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 5 NWLR (Pt.192) 388; Union Bank of Nigeria Ltd. v. B. U. Umeh& Sons Ltd. (1996) 1 NWLR (Pt.426) 565; S.C.O.A. Nigeria Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt. 138) 380 and Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492 at 514.”
See also A.G Ferrero & Co. Ltd vs. Henkel Chemicals (Nig) Ltd (2011) LPELR-12 (SC); Best Nig (Ltd) vs. Blackwood Hodge Nig Ltd &Anor (2009) LPELR-776 (SC). –
DETERMINATION OF A LEASE AGREEMENT – WAYS BY WHICH A LEASE AGREEMENT CAN BE DETERMINED
“The law is well settled on the ways by which a lease agreement can be terminated. In Helios Towers (Nig) Ltd vs. Mundili Investments Ltd (2014) LPELR-24608, this court per Abiru, JCA held:
“It must be stated from the onset that the law governing the determination of a lease agreement of landed property for a term of years is different from the law governing the determination of other types of contract. The law recognizes that a lease agreement of landed property can be determined in any of four ways; namely (i) by effluxion of time; (ii) by a surrender of the lease; (iii) by abandonment of the lease; and (iv) where there has been a breach of covenants, by forfeiture.”
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CANONS OF INTERPRETATION –INTERPRETATION OF CLEAR AND UNAMBIGOUS WORDS IN A STATUTE
“It is a cardinal rule of interpretation that where words are clear in their meaning, a literal interpretation should be given to them. See Gana vs. SDP &Ors (2019) LPELR-47153 (SC); Ugwuanyi vs. Nicon Insurance Plc (2013) LPELR-20092 (SC). –
CONTRACT – INGREDIENTS OF A VALID CONTRACT
“The law of contract stipulates that for there to be a valid contract between parties, there must be offer, acceptance and consideration. See the cases of Abba vs. Shell Petroleum Development Company of Nigeria Limited (2013) LPELR-20338 (SC); Baliol (Nig) Ltd vs. Navcon (Nig) Ltd (2010) LPELR-717 (SC). –
LEASE AGREEMENT – DUTY OF A TENANT WHO IS DESIROUS OF EXERCISING THE OPTION TO RENEW A LEASE
“I make bold to say that intention cannot culminate into an agreement between parties. Even though the Respondent made his intention known by letters to the Appellant that it wished to continue with the lease, there was no express agreement from the Appellant or any document to show that there was a renewal of the lease. That aside, the law is that where a tenant is desirous of exercising the option to renew, he must conform to the conditions in the lease as to its exercise. This principle was stated in Conoil Plc vs. Dutse (2016) LPELR-40236 (SC), where the apex court held:
“In Bata Nigeria Ltd v. George (1985) LPELR-21153(CA), it was held that “The option to renew in the sublease created an estate contract which in the particular circumstances of this case the respondent has not taken up.” similarly, in Adejumo v. David Hughes And Company Ltd (1989) LPELR-20454 (CA), Per AKPATA, J.C.A., held: “It is also stated in Halsbury’s Law of England, 4th Edition, Vol 27, paragraph 113, page 92, cited by Mr. Davies, that: ‘A tenant who wishes to exercise an option to renew must conform with the condition in the lease as to its exercise, and those conditions will be strictly construed.”
I will also refer to the case of Ezenwa vs. Oko & Ors (2008) LPELR-1206 (SC) where the Supreme Court held:
“I hold the considered view that an option to renew a lease is an offer made to the landlord, the acceptance of which would constitute a valid contract enforceable by specific performance; it remains an offer until accepted.”
One last case on this issue will not do anyone harm. This is the decision of this court in Nwisu vs. Okagbue&Ors (2015) LPELR-25884 per Agim, JCA:
“A lessee desirous of exercising an option to renew must conform with the conditions in the lease as to how it is to be exercised. Where a written request is required to be made by the lessee within a certain period before the expiration of the lease, as is usually the case, the requirement must be strictly complied with. See Agbaje V Bankole (Supra).”
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STATUTORY TENANT – WHO IS A STATUTORY TENANT?
“In A.P Ltd vs. Owodunni (1991) LPELR-213 (SC) where the apex court in explaining what a statutory tenant is held thus:
“…Sometimes there is a statute which gives security of tenure to such a tenant after his contractual tenancy has expired. When: such a statute exists he now holds the premises no longer as a contractual tenant because there no longer exists a contract between him and the landlord. But he none-the-less retains possession by virtue of the provisions of the statute and is entitled to all the benefits and is subject to all the terms and conditions of the original tenancy. As Idigbe. J.S.C., stated in Pan Asian African Co. Ltd. v. National Insurance Corp. (Nig.) Ltd. (1982) 9 S.C. 1 at p. 13: “Put simply, the statutory tenant is an occupier, who when his contractual tenancy expires, holds over and continues in possession by virtue of special statutory provisions. He has also been described as “that anomalous legal entity,..who holds the land of another contrary to the will of that other person who strongly desires to turn him out. Such a person will not ordinarily be described as a tenant.” (See Scrutton.L. J., in Shuter v. Hersh (1922) 1 K.B. 438, at 448.”
See Abeke vs. Odunsi&Anor (2013) LPELR-20640 (SC); Briggs vs. C.L.O.R.S.N. &Ors (2005) LPELR-805 (SC).
Looking at the above case, I find it really difficult to hold that the Respondent is a statutory tenant. Under what statute is the Respondent holding on to the possession of the property? What is the law apart from the usual contractual relationship that governs the tenancy of the Respondent bearing in mind the circumstance of the evidence before the lower court? The continued stay of the Respondent cannot be said to be contrary to the will of the Appellant as from the totality of the evidence before the lower court, the Appellant was not forceful about moving the Respondent out of the property. The problem only came up because the Respondent has not paid the outstanding rent and was not paying hence it went to court. The circumstance can clearly not qualify the Respondent as a statutory tenant. That apart, it is also worthy of note, that the apex court has held that a limited liability company cannot be a statutory tenant. In Pan Asian Africa Co Ltd vs.Nicon (1982) ANLR 229, the apex court held:
“I agree with the submission of the plaintiff that the defendant, being a limited liability company did not after the expiration of the lease become a statutory tenant. In Hiller v. United Dairies (London) Ltd. (1934) 1 KB57 CA., it was held that a limited company which by its very nature is incapable of occupying premises as a home cannot become a statutory tenant even if a servant of the company lives on the premises.”
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LEASE – MEANING OF MESNE PROFIT – DISTINCTION BETWEEN MESNE PROFIT AND ARREARS OF RENT
“It is important at this stage to make a distinction between mesne profit and arrears of rent. In Osawaru vs. Ezeiruka (1978) LPELR-2791 (SC) relied on by the learned trial Judge,the apex court made a distinction between mesne profit and arrears of rent in these words:
“The rents due up to that date were arrears and not mesne profits. The amounts due after that date would properly be termed “mesne profits” since the tenancy had been determined by that date and any further occupation by the appellant after that date was a holding over which technically was a trespass but of a kind arising specially from particular relationship of landlord and tenant. In an arrears of rent claim, the tenant is deemed to be lawfully and validly in possession, but is owing rent. In such a claim for arrears of rent, the landlord is not challenging the validity of the continued occupation of the premises by the tenant; indeed, he concedes that the tenant is validly and legally in possession. But in a claim for mesne profits the landlord by implication is challenging the continued occupation of the premises by the tenant whom he now regards as a trespasser, and is therefore claiming damages which he has suffered through being out of possession of the premises. Mesne profits being, therefore, damages for trespass can be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. (See Butterworth’s Words and Phrases Legally Defined, 2nd Edition P. 251).”
The meaning of mesne profit is brought out clearly in Ayinke vs. Lawal & Ors (1994) 7 NWLR (Pt.356) 263,where the apex court held:
“Mesne profits” has been described as the rents and profits which a tenant who holds over after the lawful termination or expiration of his tenancy or a trespasser has or might have received during his occupation of the land or premises in issue and which he is liable to pay as compensation to the person entitled to possession of such land or premises. As was explained by Goddard, L.J., the expression is another term for damages for trespass arising from the particular relationship of landlord and tenant. See Bramwell v. Bramwell (1942) 1 KB. 370.
It is the name given for the intermediate profits or value for the use and occupation of land during the time it is held by one who is in wrongful possession or who has not agreed on any rents with the landlord, even though such an occupier cannot strictly speaking be described as a trespasser. They may therefore only be claimed as from the date when a tenant ceased to hold the demised premises as tenant and has become a trespasser. Indeed in Ahmed Debs and other v. Cenico Nigeria Limited., (1986) 3 NWLR (Part 32) 846 at 851 – 856, Oputa, J.S.C. aptly described the term as follows:-
The expression “mesne profits” simply means intermediate profits, that is, 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. Rent is different from mesne profits. Rent is liquidated, mesne profits are not. Rent is operative during the subsistence of the tenancy, while mesne profits starts to run when the tenancy expires and the tenant holds over. The action for mesne profits does not lie unless either the landlord has recovered possession or the tenents interest in the land has come to an end, or his claim is joined with a claim for possession”
See Chemiron (Intl) Ltd vs. Stabilini Visinoni Ltd (2018) LPELR 44353.-
LEASE OR TENANCY FOR A FIXED TERM – PROPER NOTICE TO BE GIVEN IN A LEASE OR TENANCY FOR A FIXED TERM
“The contractual tenancy of the Respondent expired by effluxion of time on 28/2/2005 and in line with clause 8, there was an automatic renewal until 31/2/2010. From the evidence before the court, the Respondent did not pay for the rent for the period of automatic renewal. The Appellant for the period of 28/2/2005 to 28/2/2010 is entitled to arrears of rent as the Respondent was in lawful occupation as a tenant but did not pay rent. However from February 2010 to when possession was taken on28/2/2012, the Appellant is entitled to mesne profit. I make bold to say that the Appellant need not serve the Respondent with a notice to quit but a seven days notice of owners intention to apply to court to recover possession which the lower court rightly held in my view to have been issued sometime in September 2011. On this I will refer to the case of Ajayi vs. Harry (2014) LPELR-24127 (CA) where this court held:
“Indeed, the legal position of a tenant in a fixed tenancy has been settled by the Supreme Court in the case Odutola v. Papersack Supra at page 470 and it was reiterated in the case of Hilda Josef v. Chief A.S. Adole (2010) LPELR 4367 (CA) thus: “The position of the law is that a lease or tenancy for a fixed term automatically determines when the fixed term expires. Quit notice is usually obviated in the case of a fixed tenancy since the term of expiration is normally known unlike periodic tenancies that continues automatically from period to period until it is determined by a notice to quit”. See Nweke v. Ibe (1974) 46 CSLR 54 and Onwuaghamba Ezenwa v. Opara Oko & Ors (1999) 14 NWLR pt 637 95 at 197″. The position is that all the Landlord for a fixed term tenancy as in this case, needs to do is to serve on the tenant a seven days notice of owner’s intention to apply to Court to recover possession. This notice was served in this case and I agree with trial Court that it is valid and effective.”
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MENSE PROFIT – WHEN CAN MENSE PROFIT BE CLAIMED?
“In Abeke vs. Odunsi &Anor (2013) LPELR-20640 (SC), the Supreme Court held:
“Generally, a claim for mesne profits is based on trespass by the defendant in occupation and it is inappropriate in respect of lawful occupation as a tenant it can only be maintained when the tenancy has been duly determined and the tenant becomes a trespasser.”
Similarly, in Consolidated Tin Mines Ltd &Anor vs. Mangu (2017) LPELR-43297 (CA), this court per Abiru, JCA held:
“This Court must say that while it agrees with the lower Court that with the expiration of re-granted certificate of occupancy the relation of grantor and grantee between the Plateau State Government and the first Appellant ended, it is not correct that the Appellants ceased to have any title to the land in dispute. The position of the Appellants on the land is akin to that of a lessee who holds over after the expiration of his lease. The law is that by holding over and retaining possession of the land in dispute after the expiration of the tenure of the certificate of occupancy without the Plateau State Government assenting or dissenting to a further grant, the Appellants became grantees at sufferance because they came into possession of the land lawfully in the first place. This new right which enures to the Appellants by operation of possessory law is quite distinct from rights obtained by virtue of the certificate of occupancy and this right persists against the whole world until the Plateau State Government recovers possession from the Appellants in the manner authorized by law, by suing for possession in Court –Okoye vs Dumez (Nig) Ltd (1985) 1 NWLR (pt 4) 783, Ude vs Nwara (1993) 2 NWLR (Pt 278) 638, Obioha vs Dafe (1994)2 NWLR (Pt 325) 157, EzenwaVs Oko (1999) 14 NWLR (Pt 637) 95, Briggs Vs The Chief Lands Officer of Rivers State of Nigeria (2005) 12 NWLR (Pt 938) 59. This point was explained by Iguh, JSC in Ogualaji Vs Attorney General, Rivers State (1997) 6 NWLR (PT 508) 209 at pages 233-234 H-F thus: “Secondly, while the appellant under the said State Lands Law was entitled to a further use and possession of the demised property for three months after the expiration of his lease, he remained, at common law, a tenant at sufferance of the property in dispute until he was lawfully ejected or sued for possession by the lessor. This is because, where a tenant, having entered the demised premises lawfully or under a valid tenancy in the first place, holds the same over at the expiration of the lease and remains in possession thereof without the landlord’s assent or dissent, he automatically becomes a tenant at sufferance . . . This class of lease or tenancy arises only by operation of law and not by express grant for it assumes an absence of an agreement between the lessor or landlord of the one part, and the lessee or tenant of the other part . . ..It is nonetheless well recognized in law as a special class of tenancy or leasehold, enjoying as it were, its attendant rights and privileges and terminable by the lessor or landlord by the ejection of the lessee or tenant by the due process of law. This generally takes the form of a Court action against such lessee or tenant for possession of the demised premises.” ?Thus, by retaining possession of the land in dispute after the expiration of the certificate of occupancy, the Appellants acquired an equitable interest in the land in the terms of the expired certificate of occupancy and which is entitled to the protection of the law and is enforceable against the whole would, except the grantor, the Plateau State Government. Therefore, notwithstanding the expiration of the tenure of their certificate of occupancy on the land in dispute, the Appellants still possessed a right to the land which is enforceable against the Respondent. This Court finds that the Appellants proved a better title to the land than the Respondent.”
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EVALUATION OF EVIDENCE – CIRCUMSTANCES WHEN AN APPELLATE COURT CAN EXERCISE ITS POWERS UNDER SECTION 15 OF THE COURT OF APPEAL ACT TO EVALUATE EVIDENCE OF PARTIES
“As a preliminary point, I must at this point state that this court being an appellate court does not have powers to evaluate evidence as it is the trial court which has the singular responsibility of examining and evaluating evidence. See Tinubu vs. Khalil &Dibbo Transport Ltd (2000) LPELR-3249 (SC). Although where the appellate court is of the opinion that the lower court has failed in its responsibility of properly examining and evaluating the evidence of the parties, then the appellate court can exercise such powers under Section 15 of the Court of Appeal Act. See Nguma vs. AG Imo State (2014) LPELR-22252 (SC). –
SPECIAL DAMAGES – SPECIAL DAMAGES MUST BE SPECIFICALLY PLEADED WITH DISTINCT PARTICULARITY AND BE STRICTLY PROVED
“Decisions of courts are replete on the trite law that special damages must be specifically pleaded. In Eneh vs. Ozor &Anor (2016) LPELR-40830 (SC), it was stated thus:
“The law is well settled, that special damages must be specifically pleaded with distinct particularity and it must also be strictly proved. The Court should not act within the realm of conjecture in awarding special damages and also should not rely simply on fluid and speculative estimate of alleged loss or injury sustained by the plaintiff. See B.J. Ngilari v. Mothercat Ltd (1999) 12 SC (Pt. 11) 1, Osuji v. Siocha (1989) 6 SC (Pt. II) 158. In the case of Neka Bbb Manufacturing Co. Ltd v. African Continental Bank Ltd (2004) 1 SC (Pt. 1) 32 this Court stated thus. “Where the claimant specifically alleges that he suffered special damages he must perforce prove it. The method of such proof is to lay before the Court concrete evidence demonstrating in no uncertain terms, easily cognizable, the loss or damages he has suffered so that the opposing party and the Court will see and appreciate the nature of the special damages suffered and being claimed” The law in fact is also well settled, that special damages must be strictly proved by the person who claims to be entitled to them even though the nature of proof depends on the circumstances of each case. See Gabriel O. Okunzua v. Mrs. E. B. Amosu &Anor (1992) NWLR (Pt. 248) 416 or (1992) 7 SCNJ 243. In proof of special damages, the claimant must therefore lead evidence to prove the type of damages of such a character as would suggest that he is indeed entitled to such award under the head. See Oshinjinrin & Ors v. Elias And Ors (1970) All NLR 153 at 156.
One more case on this trite principle of law will not do anyone harm. I will refer to the case of Anyanwu & Ors vs. Uzowuaka & Ors (2009) LPELR-515 (SC), where the apex court held:
“With respect to the special damages claimed the settled principle of law is that special damages must be specifically pleaded and strictly proved. See Shell B.P. v Cole (1978) 3 SC 183; Dumez v Ogboli (1977) 2 SC 45; Sommer v Federal Housing Authority (1992) 1 NWLR (Part 219 548 at 560; Okunzua v Amosu (1992) 6 NWLR (Part 248) 416 at 432; Oshinjirin v Elias (1970) 1 ALL NLR 153 at 156; A.G. Oyo State v Fairlakes Hotels (No. 2) (1989) 5 NWLR (Part 121) 255 at 278-279.”
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SPECIAL DAMAGES – ESSENCE OF PLEADING PARTICULARS OF SPECIAL DAMAGES
“I take cognizance of the fact that the essence of pleading particulars of special damages is to give the Defendant notice of the origin and cost of what he is to pay so as to prepare for his defence. This was the purport of the Supreme Court’s decision in Ajigbotosho vs. RCC (2018) LPELR-44774 (SC) where it held:
“To start with, special damages are such damages as the law will not infer from the nature of the act as they do not follow in the ordinary course but exceptional in their character and therefore must be claimed specially and proved strictly. For a claim in the nature of special damages to succeed, it must be proved strictly and the Court is not entitled to make its own estimate on such a claim. It should be noted that special damages should be specifically pleaded in a manner clear enough to enable the defendant know the origin or nature of the special damages being claimed against him to enable him prepare his defence. See Dumez (Nig) Ltd. VS Ogboli (1972) 1 All NLR 241 Taber Vs Basma 14 WACA 140. In Gonzee (Nig) Vs NERDC (2005) 13 NWLR (Pt. 943) at 639. This Court held that: – “Strict proof in the context of special damages means that the person making a claim in special damages should establish his entitlement to that type or class of damages by credible evidence of such character as would satisfy the Court that he is indeed entitled to an award under that head. Oshinjinrin Vs. Elias (1970) 1 All NLR 153, Dumez (Nig) Ltd Vs. Ogboli (1972) 1 All NLR 241. There is a distinction between special damages and general damages in terms of pleading and proof and model of assessment of each. Special damages is specifically pleaded and strictly proved because it is exceptional in its nature, such as the law will not infer from the nature of the act which gave rise to the claim. Where general damages is averred as having been suffered, the law will presume it to be the direct or probable consequence of the act complained of but the quantification thereof is at the discretion of the Court. See: – Ijebu-Ode Local Government Vs. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (pt. 166) 136, Eseigbe Vs Agholor (1993) 9 NWLR (pt.316) 128 Badmus Vs Abegunde (1999) 11 NWLR (pt. 627) 493. This Court however, in Xtoudos Services Nig. Ltd Vs Taisei (W.A) Limited (2006) 15 NWLR (pt. 1003) at 537 on how to plead and prove special damages held as follows: – “Special damages must be specifically pleaded and strictly proved. In this respect, a plaintiff claiming special damages has an obligation to plead and particularise any item of damage. The obligation to particularise arises not because the nature of the loss is necessarily unusual, but because the plaintiff who has the advantage of being able to base his claim on a precise calculation must give the defendant access to the facts which make such calculation possible. In the instant case, there was no single paragraph in the statement of claim where the Appellants specifically pleaded facts with particulars in support of their claim for special damages, and also for general damages. As a result, the subject matter of the Appellants’ alternative relief for special and general damages for breach of contract was neither pleaded nor proved to justify being awarded by the trial Court. B.E.O.O. Industries Nig. Ltd. Vs Maduakoh (1975) 12 SC 91 referred to (Pg. 551, paras. B-E).” From the foregoing, special damages will only be awarded if strictly proved and for this, the Appellant in this case ought to have gone beyond stating the estimate of the amount it will cost him to repair the damaged road and rehabilitate the damage done to the parcel of land.”
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SPECIAL DAMAGES – CONSEQUENCES OF FAILURE TO PROVE SPECIAL DAMAGES
“Suffice to say that pleading particulars of special damages is quite different from proving same. The fact that a party is able to plead particulars of special damages does not automatically entitle such a party to a grant of same as special damages must be proved. Where such a party is not able to prove its claim for special damages, he will not be entitled to his claim. See Institute of Health Abu Hospital Management Board vs. Ayip (2011) LPELR-1517 (SC). –
OBJECTION TO THE ADMISSIBILITY OF DOCUMENTARY EVIDENCE – CONSEQUENCE OF FAILURE TO TIMEOUSLY RAISE AN OBJECTION TO THE COMPETENCE AND ADMISSIBILITY OF A DOCUMENTARY EVIDENCE
“The argument of learned counsel for the Respondent on the competence and admissibility of the photographs does not hold water and will be discountenanced as same was not raised in the lower court and this is more so that when the photographs were tendered as exhibit, the Respondent did not object to their admissibility. It is too late at this time to object to their admissibility. See Sani vs. Kogi State House of Assembly &Ors (2019) LPELR-46404 (SC)”.-
PROOF – CONSEQUENCE OF FAILURE TO PROVIDE FURTHER PROOF WHEN NECESSARY
“The law is that where a further proof is needed, and none provided to support the ipse dixit of a party, the court will not rely on same. See Debs &Ors vs. Cenico (Nig.) Ltd (1986) LPELR-934 (SC). The Appellant pleaded that it paid the aforementioned sum. What evidence is before the lower court? The 2nd witness under cross examination said he was paid betweenN250,000- N300,000 for the survey conducted. Exhibit A1 is receipt for Jide Oladosu for the sum of N350,000 being for valuation/schedule of dilapidation on property at 33 Creek Rd (Olorogun Michael Ibru). The receipt is for Jide Oladosu while the 2nd witness is Amusa Alani. It would appear that there is conflict in the evidence and the case presented by the Appellant as to who was commissioned for the survey work. This contradiction is material and therefore I cannot rely on the evidence to say that the amount spent for survey has been specifically proved. The conflict comes within the exception to the general rule that oral evidence cannot be allowed to vary the documentary evidence. See Anyanwu vs. Nwachukwu & Ors (2017) LPELR-42849 (CA)”. –
CASES CITED
STATUTES REFERRED TO
Criminal Law of Lagos State, Cap No. 11 of 2011|Evidence Act, 2011|High Court of Lagos State (Civil Procedure) Rules 2012|
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