May 11, 2025
Legalpedia Citation: (2014) Legalpedia (CA) 97191 In the Court of Appeal HOLDEN AT LAGOS Thu Feb 6, 2014 Suit Number: CA/L/22/08 CORAM PARTIES 1. JOINT PROJECT DEVELOPMENT […]
CORAM
PARTIES
1. JOINT PROJECT DEVELOPMENT COMPANY2. CHIEF CHARLES ADEBIYI3. PAUL OSAJI AND COMPANY APPELLANTS
ALHAJI LATEEF AKINLADE
AREA(S) OF LAW
SUMMARY OF FACTS
In February, 1986, the Respondent entered into a Project Finance Development Agreement with the 1st and 2nd Appellants for his property at No. 206, Muri Okunola Street, Victoria Island, Lagos. One of the Terms of the Agreement was that the Respondent would execute a Power of Attorney in their favour. He executed a Power of Attorney dated 15/4/1987, wherein Clause 7 states that it shall be irrevocable during the currency of the lease which shall not exceed fourteen years. The 1st Appellant erected two detachable duplexes on the property – ‘A Wing’ and ‘B Wing’. Subsequently, the 2nd Appellant, who is the Managing Director of the 1st Appellant, offered the Respondent by a letter dated 24/6/1996 to buy out their interest at a price not less than N1.6M and the offer was to remain open for only one week beginning 28/6/1996 in view of the pressures on them to dispose same. The Respondent in response agreed to buy but stated that he would only be able to pay the said sum at a much later date than that offered by the1st and 2nd Appellant to which they rejected as they had a deadline of June 17 to pay up their debt to CBN, hence the 1st Appellant accepted the 3rd Appellant’s offer, and transferred its residue of 6 years to the Company, who put its Chairman in the A Wing of the property and leased out the B Wing to Mikado Nigeria Ltd. The 3rd Appellant later made moves to purchase the property from the Respondent for N22m which he rejected out rightly and this fact was communicated to them vide a letter written by his Solicitors. At the expiration of the development Agreement/sublease covered by Power of Attorney, the Respondent wrote to the Appellants of his intention to recover the property and when they failed to vacate the property, the Respondent filed a Writ of Summons at the Lagos State High Court claiming an injunction restraining the Appellants from entering or remaining on the property, Possession, Mense profits at the rate of N3, 000,000.00 per annum, General damages, Costs amongst other reliefs. Upon being served, the 1st and 2nd Appellants filed a Memorandum of Appearance and later filed an Application to file their Statement of Defence out of time but failed to move same, therefore entering no defence at the lower Court. Mikado Nigeria Ltd. & “Unknown Persons”, never made any representations. The 3rd Appellant, filed a Statement of Defence which was later amended. At the end of the trial, judgment was entered in favour of the Respondent against the Appellants. Dissatisfied, the Appellants appealed to this Court with a Notice of Appeal containing five Grounds of Appeal.
HELD
Appeal Allowed In Part
ISSUES
Whether the handing over of keys of the property was a sine quo non for delivery of possession as held by the Lower Court considering the relationship between the parties and the entire facts of this case. Whether by the totality of the pleadings and the evidence led during the trial the Appellants are liable to the Respondent for mense profit on ‘B Wing’ from April 2002 to September 2003 considering the fact that the Respondent has undisturbed possession and has regularized the tenancy of the 4th Defendant. Whether the award of special and general damages against the Appellants on the same issue is proper in this suit and in law. Whether the Lower Court has the jurisdiction to sit both as the Pre-Trial Conference Judge and the trial Judge in the same matter contrary to the provisions of the High court of Lagos State Civil Procedure Rules.
RATIONES DECIDENDI
ISSUE OF JURISDICTION – IMPORTANCE OF RAISING THE ISSUE OF JURISDICTION TIMEOUSLY
“we must first consider the issue of whether the Lower Court had jurisdiction to sit as the Pre-Trial Conference Judge and trial Judge, After all, a Court without jurisdiction automatically lacks the competence to try the case in the first place, and “it is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity” – see P.E. Ltd. & Anor V. Leventis Tech. Co. Ltd. (1992) NWLR (Pt.244) 675 SC.
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ISSUE FOR DETERMINATION – WHETHER AN APPELLATE COURT CAN CONSIDER AN ISSUE NOT DECIDED BY THE LOWER COURT
“Suffice it to say that their arguments/submissions on same are of no moment; they did not complain about it or make it an issue at the Lower Court so as to give the Lower Court opportunity to consider the issue and pronounce thereon. What’s more, they cannot raise that issue in this Court without leave of Court because an appeal is an extension of the matter thrashed at the trial Court, and any issue sought to be introduced outside those determined by that Court becomes a new issue, which can only be raised on appeal with leave of Court – see Afribank Nig. Ltd. V. Ubana (2011) LPELR-CA/C/174/2010, which dealt with the issue of pre-trial conference, and wherein this Court per Akeju, JCA, held –
“- – A decision in relation to a Court as defined in Section 318(1) of the Constitution is a determination of the Court, which includes judgment, decree, order, conviction, sentence or recommendation. Thus, the Court of Appeal does not entertain a point, which the Lower Court had no opportunity to consider and render its decision – – – Issues 1 and 2 have no basis or foundation in this appeal being issues that were never placed before the Lower Court far adjudication and determination. A ground of appeal to be valid, appeal must have its root in the judgment appealed against while a competent issue must be distilled from a valid ground of appeal. A fortiori, an issue for determination must itself be firmly rooted in the judgment of the Lower Court – – An appellate Court cannot consider an issue or issues not decided by the Lower Court except where the leave of Court had first been sought and obtained. The treatment of such issue without leave of Court is a nullity and a futile exercise”.
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BURDEN OF PROOF- NATURE OF THE BURDEN OF PROOF IN CIVIL CASES
“Obviously, the key to resolving this issue lies in the answer to the question of who had to prove what in deciding when the Appellants vacated the property. First of all, it is a basic principle of law that – “he who asserts must prove” – see Famfa Oil Ltd. V. AG Fed. (2003) 9-10 SC 31. But it is also settled law that the burden of proof is not static in civil cases; it does have a way of shifting – see Zubairu V. Mohammed (2009) LPELR -51.24(CA) where Oredola, JCA, said –
“By Section 137 (of the Evidence Act) the burden of proof is not static. It fluctuates between the parties. Subsection (1) places the first burden on the party against whom the Court will give Judgment if no evidence is adduced on either side. – – the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party – – and so the burden changes place almost like the colour of a chameleon until all the issues in the pleadings have been dealt with. By Section 137(2), the burden of proof shifts between the parties in the course of giving evidence in the proceedings. From the language of the subsection, there is some amount of versatility in the shifting process of the burden. The shifting process, in the language of the subsection, will be so on until all the issues in the pleadings have been dealt with. Thus, as firmly established, the standard of proof in civil cases – – is on the balance of probabilities or preponderance of evidence. Hence, where evidence adduced is loaded or tilted to one side and there is nothing forthcoming on the imaginary scale from the other side, the evidence proffered from the former will satisfy the requirement of proof’.
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BURDEN OF PROOF-EFFECT OF A PARTY’S FAILURE TO DISCHARGE THE BURDEN OF PROOF
“It is the Appellants that asserted that the 3rd Appellant vacated the “A Wing” at “the expiration of the sub lease term in March 2002”, and they must prove it. The burden shifted to them to prove their assertion but there appears to be nothing on their side of the scale to outweigh that on the Respondent’s side, and the law is that where the evidence is tilted to one side and there is nothing on the imaginary scale from the other side, evidence proffered from that side satisfy the requirement of proof – see Zubairu V. Mohammed (supra). –
CAUSE OF ACTION – WHETHER A PARTY WOULD BE ALLOWED TO INTRODUCE AN ENTIRELY NEW CAUSE OF ACTION WHICH AROSE AFTER THE COMMENCEMENT OF AN ACTION
“In the case of Gowon V. Ike-Okongwu (2003) 5 NWLR (Pt.515) 38 SC, which may not be on all fours with the situation in this case, the Supreme Court held-
“Just as the Plaintiff cannot be allowed to bring into his case an entirely fresh cause of action, which arose after the action had been started, a Defendant will not be allowed to raise by way at an amendment to the Statement of defences a counterclaim in respect of a cause of action that arose subsequent to the issue of the Writ – I think it is good sense. To bring in such a fresh cause of action, does not, viewed from any angle, constitute an amendment. It means what it is, starting a new cause of action, and one which did not accrue, and therefore could not have been sued upon, at the time the action was brought”.
Applying the same analogy to this case, the Appellants cannot be allowed to use something that arose after the Respondent had filed his suit against them as a defence to escape liability for what was on ground when the suit was filed. All the evidence point to the fact that at the time the Respondent filed the tenant his suit, the 3rd Appellant put in possession had not vacated the property, and what the Respondent did with the tenant thereafter is of no concern to us because an appeal is an invitation to this court to review the decision of the Lower Court on the case brought before it, and not what transpired thereafter. –
MENSE PROFIT – MEANING OF MENSE PROFIT
“Mense profit is the rent and profit that a trespasser has or might have received or made during his occupation of the premises, and which he must pay over to the true owner as compensation for the tort he has committed – see Bolori V. Offorke (2010) LPELR – 3886 (CA) and Osawaru V. Ezeiruka (1978) NSCC (Vol. 11) 390, where the Supreme Court per Aniagolu, JSC, explained –
“In a claim for mense 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. – – The word “mense” was derived from the Latin word “Medius” meaning middle, intervening or intermediate – – – And so a landlord in claiming for “mense profit” is claiming for the profits intermediate from the date the tenant ought to have given up possession. It is, therefore, damages for trespass the measure of which is the amount the tenant had been paying rent for the corresponding period when he was lawfully in occupation as a tenant”.
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AWARD OF DAMAGES – WHETHER A COURT CAN AWARD MORE THAN WHAT THE PARTIES HAVE CLAIMED
“Surely, this issue has to be resolved in favour of the Appellants because the law on the subject is iron-clad; and it is that
“a Court may award less and not more than what the parties have claimed”
See Abenga v. Benue State Judicial Service Commission (2005) All FWLR (Pt.321) 1327, African Petroleum v. Aborisade & Anor (2013) LPELR-20362(CA), where Mbaba, JCA, held that –
“It is the law- – that a Court is barred from making an award or granting a relief, outside what was claimed in the pleadings and proved by evidence at trial. This is because, being regulated by laws and principles relating to pleadings, and due to the need to be disciplined, predictable and act on evidence before it, the Court cannot afford to stray to play the comic role of a ‘father Christmas’, who doles out gifts, unsolicited, to whoever he delights to please”.
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AWARD OF DAMAGES – COURT SHOULD BE GUARDED BY THE RULE AGAINST DOUBLE COMPENSATION IN THE AWARD OF DEMAGES
“And I will quickly say that I agree with the Appellants that the award of general damages in addition to the award of rent due to the Respondent during the period as mense profit offends the rule against “double compensation”, which prevents a party from claiming under two heads using different names – see Armels Transport V. Transco (Nig.) Ltd. (1974) 11- SC 237 and Tsokwa Motors (Nig.) Ltd. v. UBA Plc. (2008) 2 NWLR (Pt.1071) 347 SC, wherein the Supreme Court reiterated that –
“It has been repeatedly held by this Court that where a victim of an injury has been fully compensated under one head of damages, it is improper to award him damages in respect of the same injury under another head – – ”
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AWARD OF DAMAGES – WHETHER A PLAINTIFF CAN RECOVER UNDER BOTH SPECIAL AND GENERAL DAMAGES
“A party may claim Special and General Damages in the same suit. Special Damages decidedly must be specifically pleaded and established. General Damages are what the Court, in the exercise of its discretion, having perused the circumstances of the case, can grant. But the Courts are not allowed to grant double compensation to a party as EQUITY LEANS AGAINST DOUBLE PORTIONS. Decidedly, where a Plaintiff recovers in full under Special damages for an injury, he cannot recover general damages for the same injury. Nicon Hotels V. N.D.C. Ltd (2007) 13 NWLR (Pt.1051) 237.-
RELIEF – DUTY ON COURTS NOT TO GRANT A RELIEF NOT ASKED FOR BY PARTIES
“I need however emphasize on the well settled law that a court must not grant to a party a relief which he has not sought and may not in fact desire. See Ekpeyong vs. Nyong (1975) 2 SC 71 and Makanjuola vs. Balogun (1989) 3 NWLR (Pt.108) 192 and Bhojson Plc VS. Daniel Kaio (2006)5 NWLR (Pt.973) 330. In NEPA vs. Auwal (2011) 5 NWLR (Pt.1241) 571 at 594 this court held per Okoro JCA, (as he then was) that
“A court of law has no jurisdiction to grant a relief not asked for by the Plaintiff. The court is not a Father Christmas and does not grant what a party does not ask for. Therefore, a party who desire a court to grant him a relief must ask for it. Where a party fails to ask for a relief from the court, no matter how sympathetic the situation may be, no relief shall be granted as sympathy has no place in the determination of disputes in the court.”
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CASES CITED
Not Available
STATUTES REFERRED TO
High Court of Lagos State (Civil Procedures) Rules, 2004|
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